Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 http://www.seyfarth.com:80/publications/MA022318-LE New York City Human Right Law Imposes Stringent Accommodation Requirements for Businesses http://www.seyfarth.com:80/publications/MA022318-LE Fri, 23 Feb 2018 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>:&nbsp; On January 19, 2018, the New York City passed a law requiring that businesses engage in &ldquo;cooperative dialogue&rdquo; with individuals with disabilities and in other protected categories in the context of employment, housing and public accommodations.</em></p> <p> The New York City Council recently <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/amendments/Int. No. 804-A.pdf">amended the New York City Human Rights Law</a> to expressly require that a broad cross section of businesses dialogue with individuals with disabilities and others regarding their accommodation needs. Specifically, housing providers, employers, and public accommodations must comply with a specific protocol for evaluating requests for accommodations by individuals with disabilities.&nbsp; While generally consistent with the requirement that employers engage in the &ldquo;interactive process&rdquo; under Title I of the Americans with Disabilities Act (&ldquo;ADA&rdquo;), the scope of the new law, which will take effect on October 15, 2018, is broader than existing federal requirements.</p> <p> <strong>The &ldquo;Cooperative Dialogue&rdquo; Obligation </strong></p> <p> <u>Here are the key components of the amendment: </u></p> <ul> <li> The new law applies to &ldquo;covered entities,&rdquo; which include housing providers (i.e. owners, landlords, and cooperative and condominium boards), employers, and places of public accommodation (i.e. retailers and other public-facing businesses).</li> <li> The amendment makes it an &ldquo;unlawful discriminatory practice&rdquo; for a covered entity to fail to engage in the &ldquo;cooperative dialogue,&rdquo; which refers to a written or oral dialogue concerning an individual&rsquo;s accommodation needs, the individual&rsquo;s requested accommodation and potential alternatives, and difficulties that potential accommodations may pose for the business.&nbsp;</li> <li> The cooperative dialogue requirement is not only triggered by requests for accommodation, but also when the covered entity is considered on notice of an individual&rsquo;s need for an accommodation.</li> <li> The determination must be made within a &ldquo;reasonable time&rdquo; (the statute does not provide any definition or other guidance as to what qualifies as &ldquo;reasonable&rdquo;).</li> <li> <strong>Significantly, employers and housing providers (not public accommodations) must provide a written final determination identifying any accommodation granted or denied. &nbsp;&nbsp;&nbsp;</strong></li> </ul> <p> <strong>What The Amendment Means For Businesses </strong></p> <p> <em>Housing Providers</em></p> <p> Housing providers must engage in the cooperative dialogue with unit owners, co-op shareholders, tenants, and other residents with disabilities, and issue a written decision.&nbsp; Although it is a best practice to memorialize these communications, some housing providers may not be accustomed to issuing written determinations in every case.&nbsp; These issues arise, for example, when residents &nbsp;have service or emotional support animals in &ldquo;no pet&rdquo; multi-family buildings, or where residents with mobility disabilities request alteration of common areas.&nbsp; The requirement of a timely written determination, and issues concerning when a housing provider is on &ldquo;notice&rdquo; of the need for a potential accommodation, are additional reasons why housing providers should confer with experienced counsel in addressing these issues. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p> <em>Employers</em></p> <p> Under the amendment, employers are required to engage in the cooperative dialogue with individuals seeking disability-related accommodations, religious accommodations, pregnancy-related accommodations, and accommodations for victims of domestic violence, sex offenses, or stalking.&nbsp; The amendment underscores the need to train managerial and human resource employees to respond appropriately to accommodation requests, including by identifying potential accommodations, interfacing effectively with employees, and memorializing the determination.</p> <p> <em>Places of Public Accommodation</em></p> <p> This category consists of public-facing businesses, including, for example, retailers, hotels, theaters, restaurants, and educational institutions.&nbsp; The ADA already requires that businesses make &ldquo;reasonable modifications&rdquo; to their policies, practices and procedures to facilitate access for patrons with disabilities.&nbsp; Moreover, for certain specific accommodations (such as allowing individuals with service animals to enter premises that prohibit animals), federal regulations and regulatory guidance set forth specific protocols for businesses to evaluate these requests.&nbsp; The interplay between the new law and existing federal requirements under Title III of the ADA is not entirely clear at this early stage.</p> <p> <strong>Conclusion</strong></p> <p> This is an opportune time for businesses to revisit their policies, practices, and procedures, as well as employee training programs, to ensure that they have a sufficient process in place for evaluating accommodation requests.&nbsp;</p> http://www.seyfarth.com:80/publications/MA022318-LE2 If Pain, Yes Gain—Part XLIV: Austin Becomes First City In Texas To Mandate Paid Sick Leave http://www.seyfarth.com:80/publications/MA022318-LE2 Fri, 23 Feb 2018 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:</strong> Catching the paid sick leave bug, on February 16, 2018, Austin became the first Texas city </em><em>&ndash; and the first Southern jurisdiction </em><em>&ndash; to pass a mandatory paid sick leave ordinance, which will take effect on October 1, 2018 for most employers.</em></p> <p> On February 16, 2018, Austin became the first city in Texas &ndash; and the first Southern jurisdiction &ndash; to enact a mandatory sick leave law (the &ldquo;Ordinance&rdquo;). The new Ordinance, which received an overwhelming 9-2 vote, will apply to <em>all</em> private employers. Over 200 residents testified at last week&rsquo;s City Council meeting, the majority expressing support for the legislation. The Ordinance will go into effect on October 1, 2018 for larger businesses, though all employers will eventually be required to comply. As discussed in greater detail below, the main requirements of the ordinance are as follows:</p> <ul> <li> Employees who perform 80 hours of work in Austin during a calendar year are eligible for paid sick leave (&ldquo;PSL&rdquo;).</li> <li> Employees earn one hour of PSL for every 30 hours worked, up to the applicable maximum accrual cap.</li> <li> Employees working for &ldquo;medium to large employers&rdquo; &ndash; those who have more than 15 employees &ndash; can accrue up to <strong>64 hours</strong> (eight days) of PSL. Employees working for &ldquo;small employers&rdquo; &ndash; with 15 or fewer employees &ndash; can accrue up to <strong>48 hours</strong> (six days) of PSL.</li> <li> The Ordinance allows employees to use PSL to care for covered family members&rsquo; physical or mental health conditions, as well as their own, and for covered purposes relating to domestic abuse or sexual assault.</li> </ul> <p> For businesses employing five employees or less, the Ordinance will not take effect until October 1, 2020. After the Ordinance&rsquo;s passage, members of the Texas State Legislature promised to introduce bills in the next legislative session that would preclude municipalities from enacting paid sick leave laws. However, it is unclear how quickly the Texas State Legislature will act.&nbsp;</p> <p> <strong>Which Employers Are Covered Under the Ordinance?</strong></p> <p> All private employers are covered.</p> <p> <strong>Which Employees Are Covered By the Ordinance?</strong></p> <p> An employee who works at least 80 hours in Austin during a calendar year. It includes work performed through a temporary or employment agency, but expressly excludes independent contractors and unpaid interns from coverage.</p> <p> <strong>How Much Sick Time Can Employees Accrue, Use and Carryover? </strong></p> <p> Employees will begin accruing PSL on October 1, 2018 or their commencement of employment, whichever is later. Employees can generally begin using PSL as soon as it is accrued. However, employers can restrict the use of PSL during the first 60 days of employment if the employee has a term of employment for at least one year.</p> <p> All sick time will accrue in hour-unit increments. As noted above, employers with more than 15 employees must allow employees to accrue one hour of PSL for every 30 hours worked up to a maximum of 64 hours. Employees of smaller employers (15 or fewer employees) will accrue PSL at the same rate, but up to a maximum of 48 hours. Employers do not need to provide more than the applicable yearly cap of PSL to an employee.</p> <p> Employers can put certain usage restrictions on the use of PSL, though the Ordinance does not set a minimum increment of use. The Ordinance states that employers are not required to allow the use of PSL on &ldquo;more than 8 calendar days in a given calendar year.&rdquo; Thus, for example, it would not allow employees to use their PSL allotment <em>exclusively</em> in &ldquo;half-day,&rdquo; four-hour increments (which would, for larger employers, result in 16 calendar days of use). The Ordinance does not otherwise address limitations on use of PSL.</p> <p> Employees can carry over all earned and unused PSL into the following year. However, for employers who decide to lump sum grant the maximum amount of PSL at the beginning of a year, carry over is not required.</p> <p> <strong>Under What Circumstances May Employees Use Sick Leave? </strong></p> <p> An employee may use PSL earned under the Ordinance for any of the following reasons:</p> <ul> <li> The employee&rsquo;s or family member&rsquo;s physical or mental illness, injury or health condition, preventative medical or health care;</li> <li> The employee&rsquo;s need to seek medical attention, seek relocation or obtain services of a victim services organization.</li> <li> Time off needed for an employee to participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault, or stalking involving the employee or employee&rsquo;s family member.</li> </ul> <p> The Ordinance defines &ldquo;family member&rdquo; to include an employee&rsquo;s spouse, child, parent, or any other individual related by blood or &ldquo;whose close association with the employee is the equivalent of a family relationship.&rdquo;</p> <p> <strong>What Notice Must Employees Provide When Using Sick Leave? </strong></p> <p> The Ordinance states that employers must provide earned PSL to an employee upon his or her request if that request is timely made &ldquo;before their scheduled work time.&rdquo; It does not provide any detail regarding the manner of such request. Employers cannot prevent the use of PSL for an unforeseeable qualified absence.</p> <p> <strong>Can Employers Require Employees to Provide Medical or Other Documentation?</strong></p> <p> For leave requests of more than three consecutive work days, employers can adopt &ldquo;reasonable verification procedures&rdquo; to establish an employee&rsquo;s qualification for PSL.</p> <p> <strong>What Notice Must Employers Provide?</strong></p> <p> Employers with employee handbooks or policy manuals must include notice of employees&rsquo; rights and remedies under the Ordinance. In addition, employers must post signs describing the Ordinance requirements in at least English and Spanish in a conspicuous place where notices to employees are customarily posted.</p> <p> On a monthly basis, employers are required to provide a statement (electronically or in writing) to each covered employee showing the amount of PSL accrued.</p> <p> <strong>Must Unused Sick Time Be Paid Upon Employment Separation?</strong></p> <p> The Ordinance is silent as to payment of PSL upon termination. Texas law does not require payment of any accrued and used sick time upon separation, absent an agreement stating otherwise.</p> <p> <strong>What Records Must Employers Maintain? </strong></p> <p> The Ordinance requires employers maintain records, in accordance with federal statutes, establishing the amount of earned sick time accrued and used by each covered employee. It does not, however, create a new requirement for certified payroll.</p> <p> <strong>Anti-Retaliation</strong></p> <p> The Ordinance prohibits employers from transferring, demoting, discharging, suspending, reducing hours, or threatening any employee for requesting or using PSL, or for reporting any violations of the Ordinance.</p> <p> <strong>What Employers Should Do</strong></p> <p> Employers with employees working in Austin should begin taking steps now to ensure their policies are in compliance with the Ordinance before the October 1, 2018 effective date. Things to consider include:</p> <ul> <li> Reviewing existing sick leave policies and either implement new policies or revise existing policies to satisfy the Ordinance.</li> <li> Reviewing policies on attendance, anti-retaliation, conduct, and discipline for compliance with the Ordinance.</li> <li> Monitor the Austin City Council website for information on the Ordinance, including any proposed and final regulations.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> As the paid sick leave landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj"><strong>click here</strong></a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> http://www.seyfarth.com:80/publications/TBT022218 The Week in Weed: February 23, 2018 http://www.seyfarth.com:80/publications/TBT022218 Thu, 22 Feb 2018 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/the-week-in-weed-february-23-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA022218-EB Massive Budget Deal Includes Important Changes to Hardship Withdrawal Rules http://www.seyfarth.com:80/publications/MA022218-EB Thu, 22 Feb 2018 00:00:00 -0500 <div> On Friday, February 9, 2018, the Bipartisan Budget Act of 2018 (the &ldquo;Act&rdquo;) was signed into law by President Trump, ending a brief government shutdown that began at 12:01 a.m. on Thursday, February 8, 2018.&nbsp; In addition to creating a two-year budget deal, the Act includes a number of important employee benefit changes &ndash; most notably to the hardship withdrawal rules for defined contribution plans &ndash; as generally described below.</div> <div> &nbsp;</div> <h3> Hardship Withdrawals</h3> <div> &nbsp;</div> <div> Effective for plan years beginning after December 31, 2018, the Act makes a number of changes to the rules governing hardship withdrawals from defined contribution plans (i.e., 401(k) and 403(b) plans).&nbsp; Notably, the Act:</div> <div> &nbsp;</div> <ul> <li> Directs the Department of Treasury to modify IRS regulations to remove the six month suspension requirement for employee contributions to all plans maintained by the employer following a hardship withdrawal.&nbsp;<br /> &nbsp;</li> <li> Amends the Internal Revenue Code to (1) expand the plan assets from which a participant may take a hardship withdrawal to include qualified nonelective contributions (QNECs), qualified matching contributions (QMACs), and earnings on QNECs, QMACs and employee contributions (even if these contributions and earnings were credited to the participant&rsquo;s account after 1988); and (2) provide that a participant may take a hardship withdrawal before requesting a plan loan.&nbsp;</li> </ul> <div> &nbsp;</div> <div> It is worth noting that this is not the first time that we have seen these changes proposed to the hardship withdrawal rules, as some or all of the changes were included in early versions of the tax reform bills that passed in the House and Senate last year.&nbsp; However, those proposed changes did not remain in the final tax reform bill as it worked its way through the legislative process and onto President&rsquo;s Trump desk for signature on December 22, 2017.&nbsp; (Please see our <a href="http://www.seyfarth.com/uploads/siteFiles/publications/TaxReformManagementAlert_Issue4_122117.pdf">previous alert</a> for more information on the final version of the tax reform bill.)</div> <div> &nbsp;</div> <div> It appears that the removal of the six month suspension requirement applies to hardship withdrawals actually made in plan years beginning after 2018.&nbsp; However, it&rsquo;s not clear whether the removal of the six month suspension requirement may also be applied to a suspension that begins in 2018 (or begins in early 2019 as the result of a hardship withdrawal that is made in late 2018), and continues into the 2019 plan year.&nbsp; It also seems that the expansion of sources available for hardship withdrawals and the ability to take a hardship withdrawal before requesting a plan loan may be optional, and not required changes.&nbsp; It would be helpful if the Department of Treasury provided some additional clarification.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Department of Treasury has one year from the enactment date of the Act (i.e., February 9, 2019) to modify the IRS regulations to remove the suspension requirement.&nbsp; In the meantime, it is important that employers consider these changes, and speak with their Seyfarth employee benefits attorney about next steps.&nbsp; We also expect that pre-approved plan providers will be reviewing their underlying base plan documents and adoption agreements in anticipation of these changes, and preparing amendments to these documents.&nbsp;&nbsp;</div> <div> &nbsp;</div> <h3> Additional Highlights</h3> <div> &nbsp;</div> <div> Some of the other notable retirement and health-related provisions within the Act include the following:</div> <div> &nbsp;</div> <ul> <li> <em><strong>Disaster Relief for California Wildfire Victims.</strong></em>&nbsp; The Act provides disaster relief to the victims of the 2017 California wildfires that is similar to the relief provided to victims of Hurricanes Harvey, Maria and Irma under legislation passed last year, including an increased limit for plan loans, the availability of &ldquo;qualified wildfire distributions&rdquo; of up to $100,000 without penalty and the ability to recontribute certain distributions.&nbsp; Plans are not required to offer this relief, but if they choose to do so, a plan amendment reflecting these provisions must be adopted no later than the last day of the first plan year beginning on or after January 1, 2019 (i.e., December 31, 2019 for calendar year plans).<br /> &nbsp;</li> <li> <em><strong>Relief for Improper IRS Levy on Retirement Accounts.</strong></em>&nbsp; Effective January 1, 2018, the Act allows an individual who receives a refund of retirement plan amounts that were subject to a wrongful levy by the IRS to recontribute those amounts (plus interest) to the plan or an IRA to prevent taxation.&nbsp; The amounts must be recontributed by the individuals&rsquo; tax filing deadline (including extensions) for the year of the refund to take advantage of this relief.<br /> &nbsp;</li> <li> <em><strong>Joint Select Committee on Solvency of Multiemployer Pension Plans.</strong></em>&nbsp; The Act establishes a joint Congressional committee to address solvency concerns facing certain multiemployer pension plans and the Pension Benefit Guaranty Corporation.<br /> &nbsp;</li> <li> <em><strong>Children&rsquo;s Health Insurance Program (CHIP).</strong></em>&nbsp; The Act extends CHIP for an additional four years.&nbsp; This extension, in conjunction with the six-year extension that was passed by Congress last month in the bill that ended the January 2018 government shutdown, means that CHIP will now be fully funded through at least fiscal year 2027.</li> </ul> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/BIO022218 Webinar: Bridging the Gap Between EU and U.S. Biotech Inventions Protection http://www.seyfarth.com:80/publications/BIO022218 Thu, 22 Feb 2018 00:00:00 -0500 <p> This webinar is hosted by The Knowledge Group.<br /> <br /> <a href="https://www.bioloquitur.com/webinar-bridging-gap-eu-u-s-biotech-inventions-protection/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/nljbitar022218 Karen Bitar authored an article in the National Law Journal http://www.seyfarth.com:80/publications/nljbitar022218 Thu, 22 Feb 2018 00:00:00 -0500 <p> Karen Bitar authored a February 22 article in the National Law Journal, &quot;Opinion: MSU Faces Legal Risk as Culpability Questions Are Raised in the Nassar Scandal.&quot; MSU is in the public eye as the survivors of Nassar&#39;s abuse are beginning to question why the school refused to act after many of them came forward to report his misconduct. You can read the <a href="https://www.law.com/nationallawjournal/sites/nationallawjournal/2018/02/22/opinion-msu-faces-considerable-legal-risk-as-questions-are-raised-about-the-schools-culpability-in-the-nassar-scandal/">full article here</a>.</p> http://www.seyfarth.com:80/publications/EL022218 Tenth Circuit Rules Reasonableness of Religious Accommodations Requires Factual Determination http://www.seyfarth.com:80/publications/EL022218 Thu, 22 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The Tenth Circuit has recently vacated summary judgment in favor of an employer in a religious accommodation case that centers on what constitutes a &ldquo;reasonable&rdquo; accommodation of an employee&rsquo;s observance of &ndash; and consequent inability to work on &ndash; the Sabbath. In this case, the Court found that the employer&rsquo;s reliance on neutral paid time off policies and voluntary swift swaps could not be determined &ldquo;reasonable&rdquo; as a matter of law. While the Court&rsquo;s decision remanding the case for further proceedings leaves the ultimate question of &ldquo;reasonableness&rdquo; open, the Court&rsquo;s analysis is instructive for employers facing similar religious accommodation requests. Tabura, et al. v. Kellogg, USA, Case No. 16-4135 (10th Cir. Jan. 17, 2018).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/the-tenth-circuit-says-that-the-reasonableness-of-religious-accommodations-relating-to-employees-observance-of-sabbath-requires-factual-determination/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS022218 Washington State’s Legislature Rains on Non-Compete Critics’ Parade Yet Again http://www.seyfarth.com:80/publications/TS022218 Thu, 22 Feb 2018 00:00:00 -0500 <p> For the third year in a row, the Washington state legislature failed to pass non-compete legislation, declining to take action on two separate bills that would have severely restricted employers&rsquo; ability to enforce former employees&rsquo; non-competition agreements.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/noncompete-enforceability/washington-states-legislature-rains-on-non-compete-critics-parade-yet-again/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/doyles022218 Seyfarth Earns Top Recognition in 2018 Doyles Guide in Australia http://www.seyfarth.com:80/news/doyles022218 Thu, 22 Feb 2018 00:00:00 -0500 <p> Seyfarth is pleased to announce that our Australian team were recognized again as leading employment lawyers in the 2018 <em>Doyles</em> Guide.</p> <p> The firm was named a first tier &lsquo;Leading Employment Law Firm (Employer Representation)&rsquo; in Melbourne and Sydney for the second year in a row. In addition, <em>Doyles</em> recognised the firm as a first tier &ldquo;Workplace Health &amp; Safety Law Firm&rdquo; in Melbourne and Sydney. You can <a href="http://doylesguide.com/?s=Seyfarth+Shaw">read more here</a>.</p> <p> A number of our partners were recognized by the guide, as leaders in their fields.</p> http://www.seyfarth.com:80/news/forbesvu022218 Minh Vu quoted in Forbes http://www.seyfarth.com:80/news/forbesvu022218 Thu, 22 Feb 2018 00:00:00 -0500 <p> Minh Vu was quoted in a February 22 story from Forbes, &quot;An &#39;Onslaught&#39; Of Lawsuits From The Blind Is Happening; Blame Obama&#39;s and Trump&#39;s DOJ,&quot; on how the U.S. Department of Justice has yet to release long-promised clarifications on the Americans with Disabilities Act that would help judges handle lawsuits that claim businesses&rsquo; websites are not handicap-accessible. Vu said that the DOJ, under both the Obama and Trump administrations, is responsible for the onslaught of these lawsuits. You can read the <a href="https://www.forbes.com/sites/legalnewsline/2018/02/22/an-onslaught-of-lawsuits-from-the-blind-is-happening-blame-obamas-and-trumps-doj/#37ce101e262a">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360022218 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360022218 Thu, 22 Feb 2018 00:00:00 -0500 <p> Marshall Babson was quoted in a February 22 story from Law360, &quot;4 Things To Know As NLRB Joint Employer Saga Continues,&quot; on the National Labor Relations Board inspector general&#39;s recent conclusion that board member William Emanuel&#39;s ties to a law firm should have precluded him from voting to tighten the board&rsquo;s test for determining joint employment. Babson said he believes the inspector general&#39;s report is dubious at best and reaches the wrong conclusions about what the standard for recusal should be.</p> http://www.seyfarth.com:80/news/oracleada022118 Seyfarth's ADA Title III News & Insights Blog referenced in The Oracle http://www.seyfarth.com:80/news/oracleada022118 Wed, 21 Feb 2018 00:00:00 -0500 <p> Seyfarth&#39;s ADA Title III News &amp; Insights Blog was referenced in a February 21 story from The Oracle, &quot;New bill targets the disabled,&quot; on H.R.620 &ndash; the ADA Education and Reform Act. Seyfarth&#39;s ADA Title III News &amp; Insights Blog estimated that ADA Title III lawsuits increased by 37 percent in 2016. You can read the <a href="http://www.usforacle.com/news/view.php/1032374/New-bill-targets-the-disabled-">full article here</a>.</p> http://www.seyfarth.com:80/publications/TS022118 In-House Counsel Survey Results: Increased Risk for Trade Secrets http://www.seyfarth.com:80/publications/TS022118 Wed, 21 Feb 2018 00:00:00 -0500 <p> Friends of our blog recently published a first-of-its-kind survey about how in-house counsel view various issues in trade secret law. Approximately 80 in-house counsel completed the 20-question survey, and the results were interesting. More than 75% of respondents said the risks to their company&rsquo;s trade secrets have increased over the past 10 years, with 50% saying the risks have increased significantly. For another example, respondents described their company&rsquo;s current and former employees as those most likely to try to steal that company&rsquo;s trade secrets.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/in-house-counsel-survey-results-increased-risk-for-trade-secrets/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS022118a Robert Milligan on the Inaugural Steering Committee of the Sedona Conference’s New Working Group 12 on Trade Secrets http://www.seyfarth.com:80/publications/TS022118a Wed, 21 Feb 2018 00:00:00 -0500 <p> To develop consensus and non-partisan principles for best practices in managing trade secret litigation and well-vetted recommendations for consideration in protecting trade secrets, recognizing that every organization, both large and small, has and uses trade secrets; that trade secret disputes frequently intersect with other important public policies such as employee mobility and international trade; and that trade secret disputes are litigated in both state and federal courts.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/robert-milligan-on-the-inaugural-steering-committee-of-the-sedona-conferences-new-working-group-12-on-trade-secrets/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM022118-HL Texas and CMS Allow More Expansive Uses of Telemedicine http://www.seyfarth.com:80/publications/OMM022118-HL Wed, 21 Feb 2018 00:00:00 -0500 <p> <em>This is the second in a series of alerts from Seyfarth&rsquo;s <a href="http://www.seyfarth.com/healthcare" target="_blank">Health Law</a> practice highlighting significant changes in health care regulations and policy as providers and other industry participants enter 2018.</em></p> <p> Changes to both federal and Texas law which occurred in 2017 will broaden the circumstances under which physicians can make use of telemedicine services.</p> <p> In Texas, a bill (SB 1107) which was passed in May 2017 and effective as of September 1, 2017 marks the end of a long and tortured fight between the Texas Medical Board (&ldquo;TMB&rdquo;) and Teladoc, a national telehealth provider.&nbsp; Teladoc had waged a years-long campaign against the restrictive Texas telemedicine rules before SB 1107 was signed into law.&nbsp; Prior to the new statute and new rules promulgated by the TMB on September 15, 2017, Texas required an initial face-to-face consultation before a practitioner could utilize telemedicine technology.&nbsp; This seriously limited the effectiveness and potential of telemedicine, particularly in Texas&rsquo; rural counties, where physicians and specialists are scarce.</p> <p> The new law (codified in Chapter 111 of the Texas Occupations Code) allows physicians (or other professionals acting under their supervision) to form a valid practitioner-patient relationship via telemedicine technology, without the need for an initial face-to-face meeting or in-person follow-up visit.&nbsp; Physicians must provide patients with information and guidance about obtaining follow-up care, and with the consent of the patient, provide medical records and other information to the patient&rsquo;s primary care physician (if applicable).&nbsp; The TMB will require that all services and professionals providing services via telemedicine meet the same standard of care as if performed in an in-person setting.&nbsp; Importantly, under further revisions to the Texas Insurance Code (which were also part of SB 1107), Texas now prohibits insurers from excluding telemedicine services from coverage if the same service would have been covered if performed in-person, as well as any increases to deductibles, copayments or coinsurance for telemedicine services.</p> <p> The new TMB rules promulgated weeks after SB 1107 went into effect deleted many of the definitions that were key to the more restrictive regulations.&nbsp; The 2017 TMB rules go into greater detail than SB 1107 including on the issue of issuing prescriptions through telemedicine services.&nbsp; As with other types of health care services, the issuance of prescriptions is subject to the same standard of care as a prescription issued after an in-person visit.&nbsp; However, in a nod to concerns about the ongoing opioid crisis, treatment of chronic pain with scheduled drugs via telemedicine is prohibited.&nbsp; The rules likewise emphasize that telemedicine services must meet the same privacy and medical recordkeeping requirements as in-person services, consistent with both Texas and federal law.</p> <p> CMS, which, like Texas, has also restricted coverage for telemedicine services, introduced new opportunities for telemedicine as part of its bundled care payment models focus on hip and knee replacement surgeries.&nbsp; While participating in these programs, hospitals could utilize telehealth as part of a post-operative plan of care regardless of the patient&rsquo;s location (including the patient&rsquo;s home), whereas previously Medicare restricted telemedicine to uses only between two participating facilities.&nbsp; <a href="http://www.seyfarth.com/publications/OMM011018-HL" target="_blank">With CMS recently canceling or reducing the scope of certain bundled payment models</a>, it remains to be seen how much these changes will affect the use of covered telemedicine services.</p> <p> Below is a flowchart showing how and when a physician (or other practitioner) can form a valid practitioner-patient relationship under the new TMB rules.</p> <p align="center"> <img src="http://www.seyfarth.com/dir_docs/publications/OMM022118-HL_Chart.png" width="617px" /></p> http://www.seyfarth.com:80/publications/OMM022118-LE Supreme Court Unanimously Confirms Scope of Whistleblower Protection Under Dodd-Frank http://www.seyfarth.com:80/publications/OMM022118-LE Wed, 21 Feb 2018 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:</strong> The United States Supreme Court ruled 9-0 today that whistleblowing employees seeking to sue for retaliation under the Dodd-Frank Wall Street Reform and Consumer Protection Act must bring their concerns to the Securities and Exchange Commission before suing their employer.<a href="#_ftn1" name="_ftnref1" style="background-color: rgb(255, 255, 255);" title="">[1]</a>&nbsp; </em>Digital Realty Trust v. Somers<em>, U.S. S. Ct. Case No. 161276 (Feb. 21, 2018).&nbsp; In an opinion by Justice Ruth Bader Ginsburg, the High Court found that Dodd-Frank&#39;s anti-retaliation provision does not extend to an individual who has not first reported a violation of securities laws to the SEC.&nbsp;&nbsp;</em></p> <p> The Court reached this conclusion through straightforward statutory interpretation. &nbsp;Dodd-Frank, the Court first observed, explicitly defines a &ldquo;whistleblower&rdquo; as an individual who provides pertinent information &ldquo;to the Commission.&rdquo; Section 78u-6(a)(6). The statute further instructs that this &ldquo;whistleblower&rdquo; definition &ldquo;shall apply&quot; &quot;[i]n this section&quot;&mdash;that is, throughout Section 78u-6. &nbsp;Consequently, the Court concluded, the statute provides &ldquo;an unequivocal answer&rdquo;&mdash;the only person who can be a whistleblower under Dodd-Frank is an individual who provides information to the SEC.</p> <p> Also in Section 78u-6 are retaliation protections for &ldquo;whistleblowers&rdquo; who engage in one of three types of conduct.&nbsp; Section 78u-6(h)(1)(A).&nbsp; These protections are available to whistleblowers, but not to employees who only complain internally to their employer without also going to the SEC.&nbsp; The Court held, &ldquo;an individual who falls outside the protected category of &lsquo;whistleblowers&rsquo;&rdquo; (<em>i.e.</em>, someone who has not gone to the SEC) is &ldquo;ineligible&rdquo; for protection under the statute even if they engage in the conduct that would otherwise be protected.</p> <p> As the Court found the statutory definition of &ldquo;whistleblower&rdquo; to be &ldquo;clear and conclusive,&rdquo; it declined to &ldquo;accord deference to the contrary view advanced by the SEC.&rdquo;&nbsp; For similar reasons, the Court rejected the invitation of the plaintiff/employee and the U.S. Solicitor General to &ldquo;construe the term &lsquo;whistleblower&rsquo; in its &lsquo;ordinary sense,&rsquo; <em>i.e.</em>, without any SEC-reporting requirement.&rdquo; &nbsp;</p> <p> There were two concurring opinions that the liberal and conservative wings of the Court used to debate whether legislative intent, as found in a Senate Report, should be used to interpret statutes. Justice Sotomayor, joined by Justice Breyer, wrote that &ldquo;even when, as here, a statute&rsquo;s meaning can clearly be discerned from its text, consulting reliable legislative history can still be useful, as it enables us to corroborate and fortify our understanding of the text.&rdquo;&nbsp; On the other hand, Justice Thomas, joined by Justices Alito and Gorsuch, found no use for legislative history, honing tightly to the words of the statute rather than any extraneous information associated with the statute&#39;s debate or passage in the legislature.&nbsp; Despite this disagreement, the entire Court agreed with the ultimate outcome in this matter.</p> <p> This is a wonderful victory for employers that are governed by the Dodd-Frank Act. Employees still have many ways to secure whistleblower protections, such as under the Sarbanes-Oxley Act and state laws that protect whistleblowers from retaliation.&nbsp; But this opinion reinforces the importance of rigorous statutory interpretation, and is a clear triumph for simple textualism over policy.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a>&nbsp; Seyfarth Shaw represented the employer in this case before the Supreme Court, the Ninth Circuit and the district court.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/CP022118 Robots Are Taking Our Jobs! UBI and the Future Workplace http://www.seyfarth.com:80/publications/CP022118 Wed, 21 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: From Mark Zuckerberg to the mayor of Stockton, the concept of Universal Basic Income is catching fire. What is this newfangled concept, and what can employers expect in the new emerging economy?<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/21/robots-are-taking-our-jobs-ubi-and-the-future-workplace/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS022118 Has the “outer limit” contract reached its expiry date? http://www.seyfarth.com:80/publications/WLS022118 Wed, 21 Feb 2018 00:00:00 -0500 <p> The key takeout is that if the employee does not voluntarily leave employment and the driving force causing the employment to end is a decision or act of the employer, it could be a &ldquo;dismissal&rdquo;, even if the employment ends on the agreed expiry date. In addition to unfair dismissal, this change could also have broader impacts, for example:<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/02/has-the-outer-limit-contract-reached-its-expiry-date/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ClientAlert022018-TEO Be the Next Paul Newman - Give 100% of Your Business to Your Private Foundation, Newman’s Own Style http://www.seyfarth.com:80/publications/ClientAlert022018-TEO Tue, 20 Feb 2018 00:00:00 -0500 <p class="BodySingle"> The &ldquo;Bipartisan Budget Act of 2018&rdquo; added the &ldquo;Newman&rsquo;s Own&rdquo; exception to the private foundation excess business holdings rule, allowing business owners to make a charitable contribution of 100% of a business to their private foundation, and keep it there in one piece.&nbsp; The business must then give all of its profits &ldquo;upstream&rdquo; to the private foundation, and meet certain other requirements. &nbsp;The new law creates a significant planning opportunity for business owners seeking to convert their company into a social enterprise 100% owned and controlled by their private foundation.<o:p></o:p></p> <p class="BodySingle"> Notwithstanding the 100% private foundation ownership, equity-based incentive compensation can still be utilized by the business, including through the use of phantom stock options.&nbsp; Non-voting stock or options can also be utilized, which could prove highly valuable in the case of a sale of the business by the foundation or an initial public offering (IPO) of 80% or more of the foundation&rsquo;s stock in the business enterprise.&nbsp; In other words, the business can continue to operate and provide incentive compensation as a for-profit company &ndash; a wholly-owned taxable subsidiary that dividends its profits to its parent private foundation.<o:p></o:p></p> <p class="BodySingle"> Also, notwithstanding the independent ownership rules, it appears that the business owner making the contribution can retain ultimate control of the private foundation by retaining the right to appoint and remove a majority or more of the private foundation&rsquo;s board of directors.<o:p></o:p></p> <p class="BodySingle"> In the absence of this exception to the excess business holdings rules, the Newman&rsquo;s Own Foundation would have been forced to sell most of its now nearly ten years old 100% ownership interest in the ubiquitous &ldquo;Newman&rsquo;s Own&rdquo; salad dressing and pasta sauce company.<o:p></o:p></p> <p class="BodySingle"> Note that the parameters of the Newman&rsquo;s Own exception do not need to be met during the 5 or 10 year period during which excess business holdings acquired other than by purchase, such as by gift or bequest, are not yet subject to tax.<o:p></o:p></p> <p class="BodySingle"> <span style="font-size:14px;"><b>Parameters of the &ldquo;Newman&rsquo;s Own&rdquo; Exception</b></span><b><o:p></o:p></b></p> <p class="BodySingle"> The tax on excess business holdings no longer applies to a private foundation&rsquo;s holdings in any business enterprise that meets certain ownership rules, distributes all profits to the parent private foundation, and operates independently of the foundation.&nbsp; <o:p></o:p></p> <p class="BodySingle"> <strong><i>100% Voting Stock Ownership </i></strong><i><o:p></o:p></i></p> <p class="BodySingle"> The ownership requirements are satisfied if: <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (1) 100% of the voting stock in the business enterprise is held by the private foundation at all times during the taxable year; and <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (2) 100% of the private foundation&rsquo;s ownership interests in the business enterprise were acquired other than by purchase (i.e., by gift or bequest).<o:p></o:p></p> <p class="BodySingle"> <strong><i>&ldquo;All Profits to Charity&rdquo;</i></strong><i><o:p></o:p></i></p> <p class="BodySingle"> No later than 120 days after the close of the taxable year, the business enterprise must distribute an amount equal to its &ldquo;net operating income&rdquo; for such taxable year to the private foundation.&nbsp; <o:p></o:p></p> <p class="BodySingle"> For this purpose, &ldquo;net operating income&rdquo; is the gross income of the business enterprise for the taxable year, reduced by:<o:p></o:p></p> <ol> <li class="Number1"> the deductions for the taxable year directly connected with the production of the income,<br /> <br /> <o:p></o:p></li> <li class="Number1"> the federal income tax imposed on the business enterprise for the taxable year, and<br /> <br /> <o:p></o:p></li> <li class="Number1"> an amount for a reasonable reserve for working capital and other business needs of the business enterprise.<br /> <o:p></o:p></li> </ol> <p class="BodySingle"> <br /> The foundation&rsquo;s receipt of these required dividend distributions is exempt from federal income tax, but the income will be subject to the 2% (or 1%, in certain cases) private foundation excise tax on net investment income.<o:p></o:p></p> <p class="BodySingle"> <strong><i>Independent Operation</i></strong><i><o:p></o:p></i></p> <p class="BodySingle"> The following three independent operation requirements must be met at all times during the taxable year: <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (1) No substantial contributor to the private foundation, or family member of such a contributor, is a director, officer, trustee, manager, employee, or contractor of the business enterprise (or an individual having powers or responsibilities similar to any of the foregoing).&nbsp; <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> In other words, the private foundation&rsquo;s contributing family cannot be on the business enterprise side in any capacity.<o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (2) At least a majority of the board of directors of the private foundation are not also (i) directors or officers of the business enterprise or (ii) family members of a substantial contributor to the private foundation.<o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> So, a minority of the private foundation board can be made up of family members of a substantial contributor, and a minority of the foundation&rsquo;s board (the non-substantial contributor/family directors) can also serve as directors and officers of the business enterprise.&nbsp; <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> While the law is silent as to control of the private foundation itself, presumably the foundation, as a nonprofit corporation, could have substantial contributors or their family members serve as statutory members of the private foundation.&nbsp; Those statutory members could have the right to appoint and remove all of the foundation&rsquo;s directors, such that the contributing family maintains ultimate control although constituting only a minority of the foundation&rsquo;s board.&nbsp; Alternatively, the substantial contributor and/or his or her family could hold designation rights with respect to the foundation&rsquo;s board of directors.&nbsp; Of course, regardless of the source of their election, appointment or designation to the board, the directors owe their fiduciary duties to the private foundation and its charitable purposes.<o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (3) There is no loan outstanding from the business enterprise to a substantial contributor to the private foundation or a family member of such a contributor.<o:p></o:p></p> <p class="BodySingle"> Note that the Newman&rsquo;s Own exception does not apply to donor advised funds and certain supporting organizations that are subject to the excess business holdings rules, charitable trusts, or split-interest trusts.<o:p></o:p></p> <p class="BodySingle"> <span style="font-size:14px;"><b>Excess Business Holdings (Generally)</b></span><b><o:p></o:p></b></p> <p class="BodySingle"> The excess business holdings rules applicable to private foundations and certain deemed private foundations (e.g., donor advised funds and certain supporting organizations) are designed to limit an individual&rsquo;s ability to retain control of a business enterprise by establishing a private foundation and transferring substantial ownership of the business to such private foundation.<o:p></o:p></p> <p class="BodySingle"> Section 4943 of the Internal Revenue Code limits the percentage interest that a private foundation and its disqualified persons can together own in a business enterprise to 20%, though the limit is increased to 35% if the foundation can demonstrate that an unrelated person or persons have effective control over the business enterprise.&nbsp; A foundation generally has a 5-year period to dispose of excess business holdings acquired other than by purchase, such as by gift or bequest, without being subject to tax on such excess business holdings.&nbsp; This 5-year period may be extended an additional 5 years in limited circumstances, such as an unusually large gift or bequest of diverse business holdings or holdings with complex corporate structures.<o:p></o:p></p> <p class="BodySingle"> The initial tax is equal to 5% of the value of the excess business holdings held during the foundation&rsquo;s applicable taxable year. &nbsp;After the initial tax has been imposed, an excise tax of 200% of the excess holdings is imposed on the foundation if it has not disposed of the remaining excess business holdings by the end of the applicable taxable period.&nbsp; This 200% confiscatory tax ensures that private foundations seek to immediately dispose of any excess business holdings.<o:p></o:p></p> <p class="BodySingle"> <span style="font-size:14px;"><b>Conclusion</b></span><b><o:p></o:p></b></p> <p class="BodySingle"> The new exception appears best suited to situations where an individual is seeking to transfer ownership of a wholly-owned business to a private foundation by gift or bequest, and for the business to pay dividends of all of its profits to the foundation.&nbsp; <o:p></o:p></p> <p class="BodySingle"> Notwithstanding the independent operation requirements, the contributor and his or her family can still maintain ultimate control of the private foundation (through statutory membership interests or director designation rights) while the private foundation retains 100% of the voting interest in the business enterprise.<o:p></o:p></p> <p class="BodySingle"> Also, as a for-profit, the business enterprise can utilize &ldquo;phantom&rdquo; stock or similar equity-based incentive compensation plans for senior executives and other key employees as an alternative to stock options or an employee stock ownership plan (ESOP).&nbsp; Non-voting stock or options can also be utilized and eventually monetized upon a sale of the business by the foundation or an initial public offering (IPO) of 80% or more of the foundation&rsquo;s stock in the business enterprise.&nbsp;&nbsp;<o:p></o:p></p> http://www.seyfarth.com:80/publications/LR022018 The Federal Antitrust and Labor Law Double Bind: The Ninth Circuit Hears Oral Argument in Challenge to Seattle’s Ordinance Granting Collective Bargaining Rights to “Gig-Economy” Drivers http://www.seyfarth.com:80/publications/LR022018 Tue, 20 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: On Monday, February 5, 2018, the U.S. Chamber of Commerce&rsquo;s lawsuit challenging the City of Seattle&rsquo;s ordinance allowing independent-contractor drivers to engage in collective bargaining was before the U.S. Court of Appeals for the Ninth Circuit for oral argument. The outcome of the litigation could have a far reaching impact on the growth of the &ldquo;gig-economy.&rdquo;<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/20/the-federal-antitrust-and-labor-law-double-bind-the-ninth-circuit-hears-oral-argument-in-challenge-to-seattles-ordinance-granting-collective-bargaining-rights-to-gig-economy/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL022018 Eighth Circuit: Employer May “Elaborate” on Explanation for Termination During Litigation http://www.seyfarth.com:80/publications/EL022018 Tue, 20 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In a recent decision, the Eighth Circuit held that Title VII does not require an employer to provide an employee a reason for termination at the time of termination, and that an employer is not strictly bound in litigation to whatever reasons may have been provided at the time of termination. Rooney v. Rock Tenn Converting Company, et. al., No,. 16-3631 (8th Cir. Jan. 9, 2018).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/eighth-circuit-employer-may-elaborate-on-explanation-for-termination-during-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE022018 District Court Upholds OSHA’s Refusal to Permit Compliance Officer’s Testimony in Personal Injury Case http://www.seyfarth.com:80/publications/WSE022018 Tue, 20 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: OSHA may refuse to allow its compliance officers to testify in civil tort proceedings.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/litigation/district-court-upholds-oshas-refusal-to-permit-compliance-officers-testimony-in-personal-injury-case/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/babsonbloomberg022018 Marshall Babson quoted in Bloomberg http://www.seyfarth.com:80/news/babsonbloomberg022018 Tue, 20 Feb 2018 00:00:00 -0500 <p> Marshall Babson was quoted in a February 20 story from Bloomberg, &quot;Trump Appointee &lsquo;Conflict&rsquo; Throws Key Labor Ruling Into Doubt,&quot; on how the NLRB inspector general David Berry says a Republican board member should have recused himself from a decision protecting companies. Babson said that Berry&rsquo;s conclusions are erroneous, required neither by the law or by ethics requirements. You can read the <a href="https://www.bloomberg.com/news/articles/2018-02-20/trump-appointee-conflict-throws-key-labor-ruling-into-doubt">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellicbs021818 Angelo Paparelli interviewed on CBS News http://www.seyfarth.com:80/news/paparellicbs021818 Sun, 18 Feb 2018 00:00:00 -0500 <p> Angelo Paparelli was interviewed February 18th on CBS News, &quot;Ice Cracking Down On Employers Hiring Undocumented Workers.&quot; You can watch the <a href="https://www.cbsnews.com/video/ice-cracking-down-on-employers-hiring-undocumented-workers/">interview here</a>.</p> http://www.seyfarth.com:80/news/olsoncnbc021818 Camille Olson quoted in CNBC.com http://www.seyfarth.com:80/news/olsoncnbc021818 Sun, 18 Feb 2018 00:00:00 -0500 <p> Camille Olson was quoted in a February 18 story from CNBC.com, &quot;The gig economy is lacking in this one important respect,&quot; on a recent Senate hearing on &quot;Exploring the &#39;Gig Economy&#39; and the Future of Retirement Savings,&quot; where economists and business leaders proposed ways to fix the alarming reality that many people in this expanding labor market are not preparing for old age. Olson said that there is a near-perfect storm of reasons for why retirement saving is difficult for independent contractors. You can read the <a href="https://www.cnbc.com/2018/02/16/gig-economy-workers-must-get-creative-to-save-for-retirement.html">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc021718 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbc021718 Sat, 17 Feb 2018 00:00:00 -0500 <p> Andrew Boutros was interviewed February 17th on CBC News Network, &quot;Special Counsel Robert Mueller indicts 13 Russian nationals.&quot; Boutros discussed the Mueller investigation&#39;s indictment of 13 Russian nationals over meddling in the 2016 presidential election. You can watch the <a href="http://www.cbc.ca/player/play/1168599107549">full interview here</a>.</p> http://www.seyfarth.com:80/news/paparellicnbc021618 Angelo Paparelli quoted in CNBC.com http://www.seyfarth.com:80/news/paparellicnbc021618 Fri, 16 Feb 2018 00:00:00 -0500 <p> Angelo Paparelli was quoted in a February 16 story from CNBC.com, &quot;US agents arrest more than 200 undocumented immigrants, target 122 businesses in California sweep.&quot; Paparelli said that this seems to be a battle between California as a state and the federal government. You can read the <a href="https://www.cnbc.com/2018/02/16/federal-immigration-raids-in-southern-california-target-122-businesses.html">full article here</a>.</p> http://www.seyfarth.com:80/news/vasquezsantosshrm021618 Jinouth Vasquez Santos quoted in SHRM http://www.seyfarth.com:80/news/vasquezsantosshrm021618 Fri, 16 Feb 2018 00:00:00 -0500 <p> Jinouth Vasquez Santos was quoted in a February 16 story from SHRM, &quot;Navigate Workers&rsquo; Medical and Recreational Use of Marijuana,&quot; on how California businesses can refuse to hire anyone who fails a pre-employment drug test, provided businesses require all applicants to be tested. Vasquez Santos said that California employers generally can require random drug testing for employees only if they can make a strong argument that drug testing would protect public safety. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/ca-medical-recreational-use-marijuana.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/WLS021618 Bargaining levers – a legal pendulum http://www.seyfarth.com:80/publications/WLS021618 Fri, 16 Feb 2018 00:00:00 -0500 <p> To be fair, finding the right balance in a system which directly effects wage outcomes is difficult. But Labor&rsquo;s legislation cemented collective bargaining as a central platform for agreement making and did away with a statutory regime to make individual agreements. In doing so unions were given the best legislative platform to date to compel employers to bargain &ndash; even with a union that has a minority membership interest in the business.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/02/bargaining-levers-a-legal-pendulum/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS021618 Top Developments/Headlines in Trade Secret, Computer Fraud, and Non-Compete Law in 2017/2018 http://www.seyfarth.com:80/publications/TS021618 Fri, 16 Feb 2018 00:00:00 -0500 <p> Continuing our annual tradition, we present the top developments/headlines for 2017/2018 in trade secret, computer fraud, and non-compete law.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/top-developments-headlines-in-trade-secret-computer-fraud-and-non-compete-law-in-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/bwccr021618 Katherine Perrelli, Andrew Boutros and John Schleppenbach authored an article in Bloomberg White Collar Crime Report http://www.seyfarth.com:80/publications/bwccr021618 Fri, 16 Feb 2018 00:00:00 -0500 <p> Katherine Perrelli, Andrew Boutros and John Schleppenbach authored a February 16 article in Bloomberg White Collar Crime Report, &quot;Hunting Season Begins: DOJ Warns of Criminal Actions Against Companies with Agreements Not to Poach Competitors&#39; Employees.&quot; You can read the <a href="http://www.seyfarth.com/dir_docs/publications/PoachEmployeesPublishWCR.PDF">full article here</a>.&nbsp;</p> http://www.seyfarth.com:80/publications/TBT021518 The Week in Weed: February 16, 2018 http://www.seyfarth.com:80/publications/TBT021518 Thu, 15 Feb 2018 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/the-week-in-weed-february-16-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL021518 Back Pay Burden-New Trial Ordered Where Jury Slashed Plaintiff’s Request for Back Pay http://www.seyfarth.com:80/publications/EL021518 Thu, 15 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The Sixth Circuit ordered a new trial in a Title VII case where plaintiff presented evidence he was entitled to back pay, the employer presented no evidence to the contrary, and the jury only awarded a small percentage of plaintiff&rsquo;s ask. In ordering the new trial, the Sixth Circuit noted that the jury cannot &ldquo;infer&rdquo; the plaintiff was entitled to less because it is the employer&rsquo;s burden to show plaintiff did not seek out new employment after termination. Pittington v Great Smoky Mountain, No. 17-5590 (6th Cir. Jan. 24, 2018).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/back-pay-burden-new-trial-ordered-where-jury-slashed-plaintiffs-request-for-back-pay/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE021518 California Supreme Court Clears the Way for Employee Cal/OSHA Lawsuits http://www.seyfarth.com:80/publications/WSE021518 Thu, 15 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Cal/OSHA regulations are enforced by a state agency in administrative litigation. A new Supreme Court decision, Solus Industrial Innovations, Inc. v. Superior Court, allows employees allegedly suffering injuries caused by Cal/OSHA violations to sue for unfair business practices.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/california-supreme-court-clears-the-way-for-employee-cal-osha-lawsuits/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM021518 California Continues to Shine Under ICE’s Spotlight http://www.seyfarth.com:80/publications/IMM021518 Thu, 15 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Following the wave of Notices of Inspection (NOI) at 77 Northern California businesses last month, Immigration and Customs Enforcement&rsquo;s (ICE) Homeland Security Investigations (HSI) agents are continuing to spread the cheer with NOIs targeting businesses in Southern California this week. Serving NOIs throughout the greater Los Angeles area, the inspections appear industry agnostic. The NOIs delivered by HSI agents and auditors notify businesses that they must produce their employees&rsquo; Forms I-9, Employment Eligibility Verifications within 72 hours. The notices often include a list requesting additional company information and documents as well.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/02/california-continues-to-shine-under-ices-spotlight/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM021518a March 2018 Visa Bulletin http://www.seyfarth.com:80/publications/IMM021518a Thu, 15 Feb 2018 00:00:00 -0500 <p> Where are we this month?<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/02/march-2018-visa-bulletin/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/liesit021518 Mark Lies quoted in Inside Towers http://www.seyfarth.com:80/news/liesit021518 Thu, 15 Feb 2018 00:00:00 -0500 <p> Mark Lies was quoted in a February 15 story from Inside Towers, &quot;Stop Work If You See a Hazard On A Job Site.&quot; Lies said that if any one employer created a hazard and exposed workers to that hazard, they&rsquo;re liable. You can read the <a href="https://insidetowers.com/stop-work-see-hazard-job-site/">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlettbna021418 Brett Bartlett quoted in Bloomberg BNA Daily Labor Report http://www.seyfarth.com:80/news/bartlettbna021418 Wed, 14 Feb 2018 00:00:00 -0500 <p> Brett Bartlett was quoted in a February 14 story from Bloomberg BNA Daily Labor Report, &quot;Tip-Sharing Rule Leaves Lawyers Hungry for Certainty,&quot; on how restaurants could see a drop in litigation in the short term as the Labor Department considers a plan to rescind an Obama-era regulation that governs &ldquo;tip pooling,&rdquo; or sharing of tips, among restaurant employees. Bartlett said that there could be a downturn in new lawsuits over tipped wages filed in the next few months given the intrinsic uncertainty surrounding the rules.</p> http://www.seyfarth.com:80/publications/CP021418 California Employers Beware: W-2 Phishing Scams Skyrocket During Tax Season http://www.seyfarth.com:80/publications/CP021418 Wed, 14 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Employers have been scammed into sending sensitive W-2 information to malicious third parties. This article outlines the key steps California employers must immediately take if subject to this unfortunate event.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/14/california-employers-beware-w-2-phishing-scams-skyrocket-during-tax-season/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT021418 The High Court Could Review the IRS’ Power to Investigate and Determine Whether Cannabis Dispensaries Engage in Illegal Activities http://www.seyfarth.com:80/publications/TBT021418 Wed, 14 Feb 2018 00:00:00 -0500 <p> In October 2017, Green Solution Retail, Inc., a cannabis retailer, petitioned the U.S. Supreme Court (SCOTUS) to review a decision which held that the Anti-Injunction Act and Declaratory Judgment Act barred Green Solution&rsquo;s request to enjoin the IRS from enforcing &sect; 280E of the Internal Revenue Code.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/the-high-court-could-review-the-irs-power-to-investigate-and-determine-whether-cannabis-dispensaries-engage-in-illegal-activities/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC021318a Updating Guidelines And Asking For Dough: EEOC’s 2018-2022 Strategic Plan & 2019 Budget Request http://www.seyfarth.com:80/publications/WC021318a Tue, 13 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: This month the EEOC released its 2018-2022 strategic plan, which focuses on preventing and combating discrimination and improving the EEOC&rsquo;s organizational functionality. It also released the agency&rsquo;s 2019 budget request, which mirrors its $363 million dollar request from last year.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/updating-guidelines-and-asking-for-dough-eeocs-2018-2022-strategic-plan-2019-budget-request/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE021318 Corporate Culture and the Board of Directors’ Strategic Role http://www.seyfarth.com:80/publications/FE021318 Tue, 13 Feb 2018 00:00:00 -0500 <p> In today&rsquo;s global and transparent world where companies are under a microscope more so than ever before, leaders must forge a delicate balance between confidence and vulnerability, express hope and optimism, and get engagement back on track to succeed. Boards and company leaders who are focused on the strategic growth of their enterprises have a responsibility to create and foster innovation, engagement, and profitability, yet they often focus on only one or two of these with any real commitment. To create balance and achieve success in all areas, companies must create and promote a healthy corporate culture.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/13/corporate-culture-and-the-board-of-directors-strategic-role">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA021318-LE California Supreme Court Clears the Way for Employee Cal/OSHA Lawsuits http://www.seyfarth.com:80/publications/MA021318-LE Tue, 13 Feb 2018 00:00:00 -0500 <p class="BodySingle"> <b><i>Seyfarth Synopsis</i></b><i>: Cal/OSHA regulations are enforced by a state agency in administrative litigation. A new Supreme Court decision, Solus Industrial Innovations, Inc. v. Superior Court, allows employees allegedly suffering injuries caused by Cal/OSHA violations to sue for unfair business practices.</i></p> <p class="BodySingle"> <o:p></o:p></p> <p class="BodySingle"> <b>The Facts<o:p></o:p></b></p> <p class="BodySingle"> A water heater explosion at Solus Industrial Innovations, Inc. left two employees dead. After an investigation, the Division of Occupational Safety and Health issued five citations against Solus for alleged violations of Cal/OSHA regulations. Solus appealed the citations to the Cal/OSHA Appeals Board.<o:p></o:p></p> <p class="BodySingle"> Meanwhile, the California Bureau of Investigations (BOI) conducted a separate investigation, as it must when an employee is killed at work. The BOI forwarded its investigation results to the Orange County district attorney (DA), who then filed criminal charges against the plant manager and maintenance supervisor for felony violations of the Labor Code. <o:p></o:p></p> <p class="BodySingle"> The DA also filed a civil action against Solus, claiming that Solus had violated California&rsquo;s Unfair Competition Law (UCL) and Fair Advertising Law (FAL). These claims alleged that Solus, by maintaining an unsafe work environment, had engaged in unfair and unlawful business practices, while also committing false advertising by making &ldquo;numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards,&rdquo; which allowed it to attract and retain customers and employees.<o:p></o:p></p> <p class="BodySingle"> Solus demurred to the DA&rsquo;s lawsuit, which was overruled. On an expedited appeal, the Court of Appeal ruled in favor of Solus. The Court of Appeal reasoned that the federal Occupational Safety and Health Act (OSHA) preempted UCL and FAL claims arising from alleged Cal/OSHA violations. The DA sought review by the California Supreme Court. &nbsp;<o:p></o:p></p> <p class="BodySingle"> <b>The Supreme Court&rsquo;s Decision</b><o:p></o:p></p> <p class="BodySingle"> A unanimous California Supreme Court reversed. The Court held that federal OSHA did not preempt the DA&rsquo;s civil action against Solus. Rather, California law preempted federal OSHA&mdash;a sort of reverse preemption.<o:p></o:p></p> <p class="BodySingle"> Understanding the Supreme Court&rsquo;s holding requires a brief summary of federal OSHA&rsquo;s relationship with Cal/OSHA. Federal OSHA occupies the field of workplace safety and health, but permits states to create their own regulatory plans subject to federal review and approval. California has had such a federally approved state plan since 1973. Under this system, federal OSHA provides a regulatory &ldquo;floor&rdquo; under which state plans may not fall. But states may enact broader workplace safety protection than found under federal OSHA. <o:p></o:p></p> <p class="BodySingle"> The Supreme Court rejected Solus&rsquo;s argument that federal law explicitly or impliedly preempted California law except for provisions of the federally approved state plan. Federal OSHA identifies specific areas (such as workers&rsquo; compensation laws) that are not preempted. Yet it does not identify precisely what is preempted. According to the Supreme Court, federal OSHA, by allowing states to provide broader protections, anticipates that states may use enforcement mechanisms other than administrative litigation under the state plans to further their aims. Civil litigation under state law, according to the Court, is not foreclosed by the federal statutory scheme.<o:p></o:p></p> <p class="BodySingle"> The Supreme Court noted that UCL and FAL actions may be brought by both government officials <i>and</i> by persons who have suffered an &ldquo;injury in fact.&rdquo;<o:p></o:p></p> <p class="BodySingle"> <b>What<i> Solus </i>Means For Employers<o:p></o:p></b></p> <p class="BodySingle"> While California law (specifically, PAGA) previously has allowed claims against employers based on alleged workplace safety violations, PAGA poses several obstacles to ultimate recovery, including exhaustion of administrative remedies and, for some alleged violations, allowing an employer thirty-three days to cure the violations.<o:p></o:p></p> <p class="BodySingle"> Those obstacles do not exist for would-be plaintiffs in UCL and FAL litigation. Accordingly, <i>Solus</i> may result in a spike in workplace safety and health litigation against employers, for several reasons. First, <i>Solus</i> does not require a final order of the Cal/OSHA Appeals Board affirming the underlying administrative citations. Indeed, though the Division had filed citations against Solus, the case was put on hold. During a BOI investigation and any ensuing prosecution, litigation between the Division and an employer concerning administrative citations is held in abeyance. This point raises the possibility that an employer may defeat Division citations and criminal charges, yet still be subject to civil claims. <o:p></o:p></p> <p class="BodySingle"> Second, nothing in the California Supreme Court&rsquo;s decision suggests that administrative citations are a prerequisite to filing a UCL or FAL claim. Employees may attempt to establish injury in fact in litigation without resorting to filing an administrative complaint with the Division. By contrast, PAGA requires notice to the Division, along with &ldquo;the facts and theories to support the alleged violation.&rdquo; Although damages are not available under the UCL, restitution and injunctive relief are. An employee must prove some kind of economic injury in these cases, which may make it more difficult to recover restitution, but may lead to injunctions against employers. <o:p></o:p></p> <p class="BodySingle"> Third, while the Division has six months to issue a citation, the statute of limitations is four years for a UCL claim and three years for a FAL claim. Therefore, the &ldquo;repose&rdquo; promised by a six-month administrative limitations period may be shattered by an employee civil action filed long thereafter.&nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/WSE021318 States, NRDC, and NWF Sue EPA and Corps on Applicability Date Final Rule http://www.seyfarth.com:80/publications/WSE021318 Tue, 13 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Continuing the fight over the Obama-era Waters of the United States (WOTUS) Rule, the Natural Resources Defense Council, Inc., the National Wildlife Federation, and a host of states, including New York and California have brought lawsuits against the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (USEPA) in response to their final rule to delay the applicability date for the WOTUS Rule. States of New York et al. v. USEPA and Corps (State Litigation), No. 18-cv-1030 (S.D. NY February 6, 2018), and NRDC v USEPA and Corps (Association Litigation), No 18-cv-1048 (S.D. NY February 6, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/cwa/states-nrdc-and-nwf-sue-epa-and-corps-on-applicability-date-final-rule/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS021318 Court Certifies Class In Duke-UNC No-Hire Workplace Antitrust Lawsuit http://www.seyfarth.com:80/publications/TS021318 Tue, 13 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: On February 1, 2018, the U.S. District Court for the Middle District of North Carolina entered an order granting in part, and denying in part, the plaintiff&rsquo;s motion for class certification in a no-hire antitrust case entitled Seaman v. Duke University, 1:15-CV-462, at 1-2 (M.D.N.C. Feb. 1, 2018) (A copy of the decision can be found here.) The case was brought against Duke University, Duke University Health System (collectively &ldquo;Duke&rdquo;), and various University of North Carolina entities and one of its executives (collectively &ldquo;UNC&rdquo;). The complaint alleged that the defendants had entered into an agreement not to hire each other&rsquo;s medical faculty employees in violation of federal antitrust laws. With some notable exceptions it has been difficult for plaintiffs to achieve class certification in wage suppression cases such as Seaman. The ruling is a &ldquo;must read&rdquo; for employers, as the Court&rsquo;s reasoning and conclusions make it difficult to predict whether this case will be helpful to the plaintiffs&rsquo; bar in other cases.</p> <p> &nbsp;</p> <p> <a href="https://www.tradesecretslaw.com/2018/02/articles/noncompete-enforceability/court-certifies-class-in-duke-unc-no-hire-workplace-antitrust-lawsuit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL021318 Texts From Your Ex? Not So Fast- Make Sure to Preserve your Evidence http://www.seyfarth.com:80/publications/EL021318 Tue, 13 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: A case out of the District of Oregon recently dismissed a Plaintiff&rsquo;s sexual harassment and retaliation claims where the allegations relied on manufactured text messages that Plaintiff failed to produce.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/texts-from-your-ex-not-so-fast-make-sure-to-preserve-your-evidence/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC021318 Court Certifies Class In Duke-UNC No-Hire Workplace Antitrust Lawsuit http://www.seyfarth.com:80/publications/WC021318 Tue, 13 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: On February 1, 2018, the U.S. District Court for the Middle District of North Carolina entered an order granting in part, and denying in part, the plaintiff&rsquo;s motion for class certification in a no-hire antitrust case entitled Seaman v. Duke University, 1:15-CV-462, at 1-2 (M.D.N.C. Feb. 1, 2018) (A copy of the decision can be found here.) The case was brought against Duke University, Duke University Health System (collectively &ldquo;Duke&rdquo;), and various University of North Carolina entities and one of its executives (collectively &ldquo;UNC&rdquo;). The complaint alleged that the defendants had entered into an agreement not to hire each other&rsquo;s medical faculty employees in violation of federal antitrust laws. With some notable exceptions it has been difficult for plaintiffs to achieve class certification in wage suppression cases such as Seaman. The ruling is a &ldquo;must read&rdquo; for employers, as the Court&rsquo;s reasoning and conclusions make it difficult to predict whether this case will be helpful or hurtful to the plaintiffs&rsquo; bar in other cases.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/court-certifies-class-in-duke-unc-no-hire-workplace-antitrust-lawsuit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA021318 Vindication! Fifth Circuit Reverses Notorious District Court Health Care Fraud Decision http://www.seyfarth.com:80/publications/ERISA021318 Tue, 13 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In a major victory for ERISA plans and other payors, the Fifth Circuit recently overturned a district court&rsquo;s notorious decision in favor of a healthcare provider and reinstated a plan administrator&rsquo;s ability to guard against healthcare billing fraud, waste, and abuse.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/02/13/vindication-fifth-circuit-reverses-notorious-district-court-health-care-fraud-decision/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/olsonwe021318 Camille Olson quoted in the Washington Examiner http://www.seyfarth.com:80/news/olsonwe021318 Tue, 13 Feb 2018 00:00:00 -0500 <p> Camille Olson was quoted in a February 13 story from the Washington Examiner, &quot;Trump administration to tackle &#39;gig economy&#39; this spring.&quot; Before a Senate Health, Education, Labor and Pensions subcommittee hearing, Olson testified that many state, federal and local laws regulating the status of worker relationships effectively prevent those companies that treat workers as independents from providing those workers with access to even non-ERISA employees benefits without undermining the legal status of their business models. You can read the <a href="http://www.washingtonexaminer.com/trump-administration-to-tackle-gig-economy-this-spring/article/2648464">full article here</a>.</p> http://www.seyfarth.com:80/news/milliganlaw360021318 Robert Milligan quoted in Law360 http://www.seyfarth.com:80/news/milliganlaw360021318 Tue, 13 Feb 2018 00:00:00 -0500 <p> Robert Milligan was quoted in a February 13 story from Law360, &quot;After Big Waymo Settlement, Uber Criminal Probe Still Looms.&quot; Milligan said that the misconception might be that because the civil case is over, the criminal case is over, too, but that&#39;s just not the case.</p> http://www.seyfarth.com:80/news/casciarishrm021318 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm021318 Tue, 13 Feb 2018 00:00:00 -0500 <p> Joan Casciari quoted in a February 13 story from SHRM, &quot;The Flu: Coordinate Compliance Among FMLA, ADA, Paid Leave Laws.&quot; Casciari said that most paid-sick-leave laws allow workers to use paid leave to recover from the flu. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/flu-coordinate-compliance-leave-laws.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/ssawwbns021218 Seyfarth Shaw at Work's survey referenced by WBNS-10TV http://www.seyfarth.com:80/news/ssawwbns021218 Mon, 12 Feb 2018 00:00:00 -0500 <p> Seyfarth Shaw at Work&#39;s survey referenced in a February 12 story by WBNS-10TV,&quot;A call to overhaul sexual harassment training in the wake of the #MeToo movement.&quot; Statistics from a 2018 Seyfarth Shaw LLP at Work Survey of 400 managers and bosses in small to mid-sized companies shows trends in the wake of the #MeToo and #TimesUp movements. According to the survey, more than one-third of key managers and bosses surveyed have seen an unexpected increase in internal complaints regarding misconduct, as compared to one year ago. You can read the full article here: https://www.10tv.com/article/call-overhaul-sexual-harassment-training-wake-metoo-movement</p> http://www.seyfarth.com:80/news/wcarcblr021218 Seyfarth's Workplace Class Action Report profiled in Compensation.BLR.com http://www.seyfarth.com:80/news/wcarcblr021218 Mon, 12 Feb 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a February 12 story from Compensation.BLR.com, &ldquo;ERISA Class Actions Settlements Cost Employers Nearly $1 Billion in 2017.&quot; The Report&#39;s author Gerald Maatman said that one certain conclusion is that employment law class action and collective action litigation is becoming ever more sophisticated and will continue to be a source of significant financial exposure to employers well into the future. You can read the <a href="https://compensation.blr.com/Compensation-news/Retirement-Planning/ERISA/ERISA-Class-Actions-Settlements-Cost-Employers-Nea/">full article here</a>.</p> http://www.seyfarth.com:80/news/milligandailyjournal021218 Robert Milligan quoted in the Daily Journal http://www.seyfarth.com:80/news/milligandailyjournal021218 Mon, 12 Feb 2018 00:00:00 -0500 <p> Robert Milligan was quoted in a February 12 story from the Daily Journal, &quot;Uber-Waymo settlement may encourage more caution when pursuing employees.&quot; Milligan said that California&#39;s employment mobility law is considered lax compared to most other states because noncompete clauses aren&#39;t allowed there, but the Uber settlement is an indication that it&#39;s still possible to get in trouble by failing to take precautions when adding workers that are highly valued by their previous employers.</p> http://www.seyfarth.com:80/publications/CCD021218 BIPA: Plaintiff’s New Cash Cow http://www.seyfarth.com:80/publications/CCD021218 Mon, 12 Feb 2018 00:00:00 -0500 <p> Since its enactment a decade ago, the Illinois Biometric Information Privacy Act (BIPA) has seen a recent spike in attention from employees and consumers alike. This is due, in large part, to the technological advancements that businesses use to service consumers and keep track of employee time.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/02/bipa-plaintiffs-new-cash-cow/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/GPW021218 BIPA: Plaintiff’s New Cash Cow http://www.seyfarth.com:80/publications/GPW021218 Mon, 12 Feb 2018 00:00:00 -0500 <p> Since its enactment a decade ago, the Illinois Biometric Information Privacy Act (BIPA) has seen a recent spike in attention from employees and consumers alike. This is due, in large part, to the technological advancements that businesses use to service consumers and keep track of employee time.<br /> <br /> <a href="https://www.globalprivacywatch.com/2018/02/bipa-plaintiffs-new-cash-cow/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM021218 ICE Targets California http://www.seyfarth.com:80/publications/IMM021218 Mon, 12 Feb 2018 00:00:00 -0500 <p> True to its word, last week Immigration and Customs Enforcement (ICE) agents issued Notices of Inspection (NOIs) at seventy-seven Northern California businesses. ICE&rsquo;s Homeland Security Investigations (HSI) agents spread out across northern California, serving NOIs in Sacramento, San Francisco, and San Jose at the end of January. No employees or employers were arrested at the time; instead, HSI agents notified businesses that they are being audited and provided seventy-two hours to produce their employees&rsquo; Forms I-9, Employment Eligibility Verifications.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/02/ice-targets-california/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE021218 Will Blockchain Revolutionize Bio/Pharma R&D, Tech Transfer, and IP? http://www.seyfarth.com:80/publications/FE021218 Mon, 12 Feb 2018 00:00:00 -0500 <p> On the one hand, the Winklevoss twins asserted that Bitcoin&rsquo;s price could easily go up another twenty times while Nobel-laureate economist Joseph Stieglitz admonishes that the whole concept should be illegalized all together. Either way, the blockchain open and immutable ledger transaction recording technology itself, is emerging as one of the key aspects of Bitcoin&rsquo;s value proposition and when applied to other areas of business, e.g., by Ethereum, it has the potential to have an enormous impact on the mechanics of information exchange in bio/pharma R&amp;D and as result will change how we approach legal issues of intellectual property and technology transfer.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/8/will-blockchain-revolutionize-biopharma-rd-tech-transfer-and-ip">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT021218 Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment http://www.seyfarth.com:80/publications/TBT021218 Mon, 12 Feb 2018 00:00:00 -0500 <p> The California Division of Occupational Safety and Health (DOSH) recently held advisory meetings on the Agency&rsquo;s draft rules for the Marijuana/Cannabis Industry and for the Heat Illness Prevention in Indoor Places of Employment. It is seeking public comments.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/cal-osha-drafts-rules-for-the-marijuana-cannabis-industry-and-heat-illness-prevention-in-indoor-places-of-employment/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC021018 Bloomberg BNA’s Perry Cooper Presents On The “Top Trends In Workplace Class Action Litigation” http://www.seyfarth.com:80/publications/WC021018 Sat, 10 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: This year we were lucky enough to have Perry Cooper, Senior Legal Editor of Bloomberg BNA, as our special guest at Seyfarth Shaw&rsquo;s &ldquo;Top Trends In Workplace Class Action Litigation&rdquo; event. Perry provided our over 1,000 in-person and webcast attendees with an overview of major Supreme Court class action decisions, as well as led the discussion on other important topics for employers including arbitration, ascertainability, and the Fairness in Class Action Litigation Act. Today&rsquo;s post allows our blog readers to watch Perry&rsquo;s entire presentation. Check it out in the link below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/bloomberg-bnas-perry-cooper-presents-on-the-top-trends-in-workplace-class-action-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/lorbernyt021018 Lawrence Lorber quoted in the New York Times http://www.seyfarth.com:80/news/lorbernyt021018 Sat, 10 Feb 2018 00:00:00 -0500 <p> Lawrence Lorber was quoted in a February 10 story from the New York Times, &quot;Administration Imposes Sweeping Limits on Federal Actions Against Companies.&quot; Lorber said that the Labor Department often used guidance documents in enforcing wage and hour laws and laws banning job discrimination by federal contractors. You can read the full article here: https://www.nytimes.com/2018/02/10/us/politics/legal-violations-federal-rules.html</p> http://www.seyfarth.com:80/news/milliganrecorder020918 Robert Milligan quoted in The Recorder http://www.seyfarth.com:80/news/milliganrecorder020918 Fri, 09 Feb 2018 00:00:00 -0500 <p> Robert Milligan was quoted in a February 9 story from The Recorder, &quot;3 Takeaways From the Swift End to Waymo v. Uber.&quot; Milligan said that it was definitely the trade secret trial of the century.</p> http://www.seyfarth.com:80/news/maatmanlaw360020918 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360020918 Fri, 09 Feb 2018 00:00:00 -0500 <p> Gerald Maatman was quoted in a February 9 story from Law360, &quot;Employers Eagerly Await EEOC Sexual Harassment Guidance.&quot; Maatman said that once released, the harrasment guidance will be in a sense, the EEOC weighing in on the #MeToo-era issue.</p> http://www.seyfarth.com:80/publications/WC020918 Seyfarth Shaw’s Jerry Maatman Presents On The “Top Trends In Workplace Class Action Litigation” http://www.seyfarth.com:80/publications/WC020918 Fri, 09 Feb 2018 00:00:00 -0500 <br /> <br /> <p> <a href="https://www.workplaceclassaction.com/2018/02/seyfarth-shaws-jerry-maatman-presents-on-the-top-trends-in-workplace-class-action-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH020918 Massachusetts Highest Court Refuses to Award a Triple Windfall http://www.seyfarth.com:80/publications/WH020918 Fri, 09 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: A recent decision by the Massachusetts Supreme Judicial Court limits the scope of the Wage Act to exclude sick time payments and potentially other types of contingent compensation.<br /> <br /> <a href="https://www.wagehourlitigation.com/state-claims/massachusetts-refuses-to-award-triple-windfall/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL020918 Business-Friendly Times – USDOJ Limits the Use of Agency Guidance Documents in Civil Enforcement http://www.seyfarth.com:80/publications/EL020918 Fri, 09 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In another business-friendly move, the U.S. Department of Justice (USDOJ) recently directed its Attorneys to not use its civil enforcement authority for violations based on agency guidance documents.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/business-friendly-times-usdoj-limits-the-use-of-agency-guidance-documents-in-civil-enforcement/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE020918 Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment http://www.seyfarth.com:80/publications/WSE020918 Fri, 09 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The California Division of Occupational Safety and Health (DOSH) recently held advisory meetings on the Agency&rsquo;s draft rules for the Marijuana/Cannabis Industry and for the Heat Illness Prevention in Indoor Places of Employment. It is seeking public comments.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/cal-osha-drafts-rules-for-the-marijuana-cannabis-industry-and-heat-illness-prevention-in-indoor-places-of-employment/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA020918-LE If Pain, Yes Gain—Part XLIII: Delay Efforts Stall, Maryland Sick Leave Symptoms Set to Begin http://www.seyfarth.com:80/publications/MA020918-LE Fri, 09 Feb 2018 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Legislative efforts to delay the Maryland Healthy Working Families Act&rsquo;s February 11, 2018 effective date have been unsuccessful thus far. While the state legislature continues to work on an antidote, its prognosis for passing such a bill before February 11 looks bleak. As a result, employers should take steps immediately to meet the Act&rsquo;s requirements by its rapidly approaching effective date.</em></p> <p> On January 12, 2018, Maryland became the <a href="http://www.seyfarth.com/publications/MA011518-LE">ninth state to enact a mandatory paid sick leave law</a>,<a href="#_ftn1" name="_ftnref1" title="">[1]</a> after the Maryland Senate voted to override Governor Larry Hogan&rsquo;s 2017 veto of a paid sick leave bill that was passed during the state&rsquo;s 2017 legislative session.&nbsp; In light of the veto override, the Maryland Healthy Working Families Act (&ldquo;HWFA&rdquo; or the &ldquo;Act&rdquo;) was scheduled to go into effect 30 days after the override, i.e., on February 11, 2018.</p> <p> A 30-day turnaround from enactment to being in effect is uncommon in the paid sick leave landscape, especially for statewide laws.&nbsp; For example, covered employers had more than six months to prepare for the California, Massachusetts, Oregon, and Arizona statewide paid sick leave laws after they were enacted. Rhode Island employers have more than nine months to prepare for the state&rsquo;s paid sick leave law&rsquo;s July 1, 2018 effective date. And Washington employers had more than a year to get ready for the Washington statewide paid sick leave law before it went into effect in January 2018.</p> <p> Aware of the administrative and enforcement challenges created by the current February 11 effective date, the Maryland state Senate proposed Senate Bill (SB) 304.&nbsp; SB 304 is an emergency legislation seeking to delay the implementation of the HWFA.&nbsp; Following amendments in committee and from the full state Senate, SB 304 seeks to delay the Act&rsquo;s effective date until July 1, 2018.</p> <p> Yesterday, the state Senate passed SB 304, as amended. Unfortunately, it must also pass in the Maryland House of Delegates. &nbsp;We will continue to monitor the HWFA effective date and provide any updates on whether this date is extended, either before or after February 11.</p> <p> As a reminder, the Act requires covered employers with 15 or more employees to provide eligible employees with <u>paid</u> sick and safe leave benefits, while employers with fewer than 15 employees must provide eligible employees with <u>unpaid</u> sick and safe leave benefits.&nbsp; All eligible employees are entitled to accrue sick and safe leave at a rate of at least one hour for every 30 hours worked.&nbsp; Under the Act, employers are not required to allow employees to accrue more than 40 hours of sick and safe leave per year, nor are employers required to allow employees&rsquo; bank of accrued, unused sick and safe leave to reach more than 64 hours at any one time.&nbsp; Employers must allow eligible employees to use at least 64 hours of available sick and safe leave in a year.&nbsp; For more information on the HWFA, including the Act&rsquo;s carryover and frontloading requirements, as well as other substantive, technical obligations, please see our <a href="http://www.seyfarth.com/publications/MA011518-LE">prior alert</a>.</p> <p> As of today, there is no cure for the HWFA&rsquo;s February 11 effective date. Accordingly, employers should take steps immediately to comply with the requirements of the HWFA. Here are some steps to consider:</p> <ul> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the HWFA.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the HWFA.</li> <li> Monitor the Maryland Department of Labor and Industry website for information on the HWFA, including a model poster, model notice, and proposed and final regulations.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> We will continue to monitor and provide updates on Maryland paid sick leave developments as the February 11th effective date approaches and any changes that take place thereafter.&nbsp; To stay up-to-date on Paid Sick Leave developments, sign up for <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">Seyfarth&rsquo;s Paid Sick Leave mailing list</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The other eight states that have passed a statewide mandatory paid sick leave law are: (1) <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>; (2) <a href="https://www.calpeculiarities.com/2015/07/14/at-last-amendments-to-cas-paid-sick-leave-law-signed-by-governor/">California</a>; (3) <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>; (4) <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>; (5) <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont</a>; (6) <a href="http://www.seyfarth.com/publications/MA120817-LE">Arizona</a>; (7) <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington</a>; (8) <a href="http://www.seyfarth.com/publications/MA092117-LE">Rhode Island</a>. The Rhode Island governor signed the state&rsquo;s paid sick leave law on September 28, 2017 and it is scheduled to go into effect on July 1, 2018. The Washington statewide paid sick leave law went into effect on January 1, 2018. The other six statewide laws are in effect.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM020918-LE New Jersey’s Conscientious Employee Protection Act Requires Election of Remedies Before Summary Judgment http://www.seyfarth.com:80/publications/OMM020918-LE Fri, 09 Feb 2018 00:00:00 -0500 <p class="BodySingle"> <i><strong>Seyfarth Synopsis</strong>: The U.S. District Court for the District of New Jersey recently held that the proper time for a plaintiff to elect whether to proceed with a statutory whistleblower claim under CEPA, or a common law </i>Pierce<i> claim for wrongful termination, is at the close of discovery, before the summary judgment stage.</i></p> <p class="BodySingle" style="text-align:justify"> In <i>Hrinuk v. Pub. Serv. Elec. &amp; Gas Co.</i>,<i> </i>an <a href="https://law.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2014cv00988/300504/73/">unpublished decision</a> issued on January 30, 2018, the District of New Jersey dismissed a plaintiff&rsquo;s common law<i> </i>wrongful termination claim at the close of discovery, finding that it was preempted by plaintiff&rsquo;s concurrent claim under the Conscientious Employee Protection Act (&ldquo;CEPA&rdquo;). With the common law claim dismissed, the case proceeds to the summary judgment stage in leaner form, with the CEPA claim only. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> The plaintiff in the case had been employed as an inspector for thirty-three years, and his job was to monitor residential and business connections at construction sites. He claimed that, given the excessive work load he was assigned, supervisors instructed him to sign off on work that he had not actually inspected and knew had not been done. The plaintiff alleged that he raised these inspection practice problems with his managers, but was instead suspended and ultimately terminated. The plaintiff filed a lawsuit alleging, among other things, a CEPA whistleblower claim and a common law <i>Pierce </i>wrongful termination claim.<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> In New Jersey, it is not uncommon for plaintiffs to initially plead a CEPA claim as well as a common law <i>Pierce</i> claim. Interestingly, CEPA was a statutory codification of the common law wrongful termination <i>Pierce</i> doctrine, which was established by the New Jersey Supreme Court in <i>Pierce v. Ortho Pharmaceutical</i> in 1980. But, CEPA specifically provides that, &ldquo;the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under . . . under the common law.&rdquo; N.J.S.A. &sect; 34:19-8. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> Here, as is common practice, after the parties completed discovery, the defense sought for Plaintiff to elect whether he would proceed under CEPA or <i>Pierce</i>, because, as explained, a Plaintiff must elect his remedy under CEPA. The issue before the District of New Jersey was whether it was necessary for Plaintiff to drop his <i>Pierce </i>claim prior to the summary judgment stage, or, conversely, whether Plaintiff would be allowed to test whether his CEPA claim would survive summary judgment. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> Plaintiff did not make the election, and instead argued that CEPA statute should be interpreted broadly to allow for the viability of the claim to be tested before having to elect. The defense disagreed, and filed a motion for judgment on the pleadings to dismiss the <i>Pierce </i>claim. The court first stated that the &ldquo;[t]he waiver provision in CEPA bars plaintiff from bringing a parallel claim under New Jersey common law when both claims are based on the same conduct.&rdquo; The court reiterated that Plaintiff had to elect between pursuing a remedy under CEPA or common law, because the counts were based on the same alleged conduct. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> In granting the defense&rsquo;s motion, the Court clarified that the close of discovery was the appropriate time for Plaintiff to elect his remedy. The CEPA claim was not considered formally &ldquo;instituted&rdquo; until the close of discovery, because it was only until that time that Plaintiff would have been fully provided with the opportunity to explore the facts at issue. Accordingly, it was after the close of discovery that Plaintiff had to elect whether he wished to proceed with a CEPA claim or common law claim. Concluding that the &ldquo;institution&rdquo; of Plaintiff&rsquo;s CEPA claim pre-empted him from pursuing any other recourse, the judge ultimately dismissed the common law count in the Amended Complaint. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> The court&rsquo;s clarification of this point serves as a reminder that a plaintiff does not get two bites of the same apple. While employers may have to conduct discovery with both a CEPA claim and <i>Pierce</i> claim at play, allowing for the broadest amount of discovery possible, nonetheless, at the close of discovery, a plaintiff must elect his choice of remedy. Plaintiffs have incentive to elect CEPA, which allows for attorneys&rsquo; fees with the potential for enhanced fees, as opposed to a common law, <i>Pierce</i> claim, which has no fee shifting mechanism. After discovery is complete, if a plaintiff&rsquo;s complaint still contains overlapping remedies for wrongful termination and CEPA, a motion to strike the common law claim may be warranted.&nbsp;<o:p></o:p></p> http://www.seyfarth.com:80/publications/FE020918 Seyfarth Shaw Partner Camille Olson Testifies Before Senate HELP Subcommittee on Behalf of the U.S. Chamber of Commerce http://www.seyfarth.com:80/publications/FE020918 Fri, 09 Feb 2018 00:00:00 -0500 <p> On February 6, 2018, the U.S. Senate Committee on Health, Education, Labor, and Pensions Subcommittee on Primary Health and Retirement Security held a hearing entitled Exploring the &lsquo;Gig Economy&rsquo; and the Future of Retirement Savings. Working together with the U.S. Chamber of Commerce&rsquo;s Employee Benefits Committee and its Technology Engagement Center (C_TEC), Seyfarth partner Camille Olson prepared suggestions for the Subcommittee on how to solve the issues facing gig economy workers, and presented these solutions to the Subcommittee on the Chamber&rsquo;s behalf.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/9/seyfarth-shaw-partner-camille-olson-testifies-before-senate-help-subcommittee-on-behalf-of-the-us-chamber-of-commerce">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC020818 Dollars And Sense: Federal Court Refuses To Enjoin State Court Squabble Over Attorneys’ Fees http://www.seyfarth.com:80/publications/WC020818 Thu, 08 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In a TCPA class action where final settlement (including attorneys&rsquo; fees) had already received final approval, a federal district court in California denied class counsel&rsquo;s request to enjoin a pending state court action brought by their former colleague to recoup a portion of the attorneys&rsquo; fees awarded as part of the settlement.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/dollars-and-sense-federal-court-refuses-to-enjoin-state-court-squabble-over-attorneys-fees/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE020818 DApps: A Potential Answer to On-Demand Contractor-Employee Questions? http://www.seyfarth.com:80/publications/FE020818 Thu, 08 Feb 2018 00:00:00 -0500 <p> We have previously blogged on opportunities and challenges in the gig economy. The myriad risks&mdash;from independent contractor-employee misclassification to confidential information and privacy protection missteps&mdash;are ever present because fast-growing players in the gig economy are attractive targets for potential plaintiffs seeking a deep pocket and a novel factual or legal issue that might evade a fast or easy resolution.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/2/dapps-a-potential-answer-to-on-demand-contractor-employee-questions">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH020818 California Supreme Court Hears Oral Argument to Define “Independent Contractor” http://www.seyfarth.com:80/publications/WH020818 Thu, 08 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The California Supreme Court heard oral arguments Tuesday morning in Dynamex Operations v. Superior Court, a case addressing the legal standard for determining whether a worker should be classified as an independent contractor or an employee. The opinion will be significant for any entity using independent contractors in California.</p> <p> <a href="https://www.wagehourlitigation.com/independent-contractors/california-supremes-to-define-independent-contractor/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO020818 Now Available! Seyfarth Shaw’s Hatch-Waxman and Biosimilars Litigation: 2017 Year-in-Review http://www.seyfarth.com:80/publications/BIO020818 Thu, 08 Feb 2018 00:00:00 -0500 <p> Seyfarth Shaw Offers Hatch-Waxman And Biosimilars Litigation: 2017 Year-in-Review<br /> <br /> <a href="https://www.bioloquitur.com/now-available-seyfarth-shaws-hatch-waxman-biosimilars-litigation-2017-year-review/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT020818 The Week in Weed: February 9, 2018 http://www.seyfarth.com:80/publications/TBT020818 Thu, 08 Feb 2018 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/the-week-in-weed-february-9-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM20818-LE Kansas City, Missouri Bans the Box for Private Employers http://www.seyfarth.com:80/publications/OMM20818-LE Thu, 08 Feb 2018 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis</em>:&nbsp;</strong><em>Kansas City, Missouri becomes the latest jurisdiction to &ldquo;ban the box&rdquo; by delaying inquiries into criminal history until an applicant has been deemed qualified -- and has been at least interviewed -- by a prospective employer.</em></p> <p> <strong>Ordinance No. 180034</strong></p> <p> Kansas City, Missouri is the latest jurisdiction to &ldquo;ban the box.&rdquo;&nbsp; <a href="http://cityclerk.kcmo.org/LiveWeb/Documents/Document.aspx?q=IHt5yW%2fwQpduyxYNDuTxlMQbdsERD1G%2fjjDf37FMsawqjhA1eHf90k4dIT18NOZp">Ordinance&nbsp; No. 180034</a> was signed into law on February 1, 2018.&nbsp; Private employers with 6 or more employees may not inquire about criminal history until a determination has been made that an individual is otherwise qualified -- and interviews -- for the position.&nbsp; Alternatively, inquiry may be made of all applicants who are within the final selection pool of candidates from which a position may be filled.&nbsp; The Ordinance will take effect on June 9, 2018.</p> <p> The Ordinance defines employee as &ldquo;any individual employed by an employer, . . . &ldquo; but does not state whether that would include temporary and seasonal work, contract and contingent employment, or work through a temporary or other employment agency.</p> <p> The Ordinance expressly states that it does not apply to jobs where employers are required to exclude applicants with certain criminal convictions from employment due to federal, state, local law or regulations.&nbsp;</p> <p> Additionally, the Ordinance makes it unlawful for an employer to base a decision to hire or promote on an applicant&rsquo;s criminal history, unless the employer can demonstrate that the decision was based on all information available, including consideration of the frequency, recentness and severity of a criminal record and that the record was reasonably related to the duties and responsibilities of the job.</p> <p> Remedies for violation of the Ordinance include reinstatement, back pay, actual damages and civil penalties.</p> <p> <strong>Implications for Employers</strong></p> <p> Employers with employees in Kansas City should review their employment applications and relevant employment forms to ensure compliance with federal, state, and local law, especially if using standardized forms across multiple jurisdictions.&nbsp; Impacted employers also should ensure that all hiring and recruiting personnel are aware of &ldquo;ban the box&rdquo; jurisdictions.</p> <p> <strong>Pamela Q. Devata is a partner in Seyfarth&rsquo;s Chicago office and Stacey L. Blecher is Counsel in the firm&rsquo;s New York office.&nbsp; If you would like further information or have any questions about compliance with the Kansas City Ban the Box Ordinance, please contact your Seyfarth attorney, Pamela Devata at </strong><a href="mailto:pdevata@seyfarth.com"><strong>pdevata@seyfarth.com</strong></a> <strong>or Stacey Blecher at </strong><a href="mailto:sblecher@seyfarth.com"><strong>sblecher@seyfarth.com</strong></a><strong>, or anyone on Seyfarth&rsquo;s Background Screening Compliance Team.&nbsp;</strong></p> http://www.seyfarth.com:80/news/olsonara020818 Camille Olson quoted by the American Retirement Association http://www.seyfarth.com:80/news/olsonara020818 Thu, 08 Feb 2018 00:00:00 -0500 <p> Camille Olson was quoted in a February 8 story from the American Retirement Association, &quot;Senate Panel Explores Ideas to Foster Retirement Savings for &lsquo;Gig&rsquo; Workers.&quot; In her Senate testimony, Olson said that the current legal and regulatory scheme effectively discourages companies who utilize independent workers from offering retirement benefits. You can read the <a href="http://www.asppa-net.org/News/Article/ArticleID/9577">full article here</a>.</p> http://www.seyfarth.com:80/news/nikelpm020718 Jon Meer, Sheryl Skibbe and Michael Afar's blog post referenced in Loss Prevention Media Insider http://www.seyfarth.com:80/news/nikelpm020718 Wed, 07 Feb 2018 00:00:00 -0500 <p> Jon Meer, Sheryl Skibbe and Michael Afar&#39;s blog post was referenced in a February 7 story from Loss Prevention Media Insider, &quot;Security Footage Sinks Employee Lawsuit Targeting Employee Bag Checks.&quot; Seyfarth represented Nike as it prevailed in a class action lawsuit filed by hourly retail workers demanding that the company pay them for the time they spent waiting for loss prevention inspections after clocking out and before leaving stores. In their blog post, the authors write that, for the moment, this ruling is good news for employers who can put away their stop watches when small increments of off-the-clock time are irregular and difficult to record. You can read the <a href="http://losspreventionmedia.com/insider/employee-theft/security-footage-sinks-employee-lawsuit-targeting-employee-bag-checks/">full article here</a>.</p> http://www.seyfarth.com:80/publications/WSE020718 Cal/OSHA Drafts Rules for Workplace Violence Prevention in General Industry http://www.seyfarth.com:80/publications/WSE020718 Wed, 07 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The California Division of Occupational Safety and Health (DOSH) recently held an advisory meeting on the Agency&rsquo;s draft rules for Workplace Violence Prevention in General Industry. It is seeking public comments.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/cal-osha-drafts-rules-for-workplace-violence-prevention-in-general-industry/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH020718 The Road to FLSA Litigation is Often Paved With Good Intentions http://www.seyfarth.com:80/publications/WH020718 Wed, 07 Feb 2018 00:00:00 -0500 <p> Even as FLSA litigation has surged to historic highs, it is rare to see a nefarious violation of the Act by a manager or supervisor. Far more prevalent, it seems, are stories of managers who, while intending to afford employees freedom and flexibility, instead trip over one of many hurdles scattered across the 1938 legislation. At a time when plaintiffs&rsquo; attorneys are more regularly naming individual managers, not just corporations, as FLSA defendants, preventing these stories is important as ever.<br /> <br /> <a href="https://www.wagehourlitigation.com/overtime/the-road-to-flsa-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS020718 Seyfarth Takes The 2018 AIPLA Trade Secret Law Summit By Storm http://www.seyfarth.com:80/publications/TS020718 Wed, 07 Feb 2018 00:00:00 -0500 <p> On March 1&ndash;2, 2018, five Seyfarth attorneys will be attending the American Intellectual Property Law Association&rsquo;s annual Trade Secret Law Summit in San Diego, California, one of the preeminent events for trade secret practitioners in the nation. Erik Weibust is on the planning committee for the Summit and will be moderating a panel entitled &ldquo;The Ethics of Law Firm Cybersecurity,&rdquo; featuring Seyfarth&rsquo;s own John Tomaszewski; National Litigation Department chair Kate Perrelli will be participating in a facilitated discussion regarding various problems all trade secret and noncompete practitioners face; and Seyfarth attorneys Dawn Mertineit and Eric Barton will be in attendance as well. Other topics will include:<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/seyfarth-takes-the-2018-aipla-trade-secret-law-summit-by-storm/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP020718 California Supreme Court Hears Oral Argument to Define “Independent Contractor” http://www.seyfarth.com:80/publications/CP020718 Wed, 07 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The California Supreme Court heard oral arguments yesterday morning in Dynamex Operations v. Superior Court, a case addressing the legal standard for determining whether a worker should be classified as an independent contractor or an employee. We expect the Supreme Court&rsquo;s opinion will be significant for any entity using independent contractors in California.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/07/california-supreme-court-hears-oral-argument-to-define-independent-contractor/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT020718 Maine Employees Now Protected From Repercussions of Off-Duty Marijuana Use http://www.seyfarth.com:80/publications/TBT020718 Wed, 07 Feb 2018 00:00:00 -0500 <p> On November 8, 2016, Maine voters approved &ldquo;Question 1 &ndash; An Act to Legalize Marijuana&rdquo; (&ldquo;the Act&rdquo;), which allows for, among other things, the recreational use of marijuana. The Act contains within it an anti-discrimination in employment provision, which is effective today, February 1, 2018, making it the first law of its kind in the nation because it protects employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/maine-employees-now-protected-from-repercussions-of-off-duty-marijuana-use/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS020618 Report on Sedona Conference on Trade Secrets http://www.seyfarth.com:80/publications/TS020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> On December 6-8, the inaugural Sedona Conference on trade secrets took place in Scottsdale, Arizona. The invitation-only conference brought together outside counsel, in-house counsel, and experts to have an in-depth discussion of developments in trade secrets law.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/report-on-sedona-conference-on-trade-secrets/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC020618 Seyfarth Shaw’s Jerry Maatman and Bloomberg’s Perry Cooper Present “Top Trends In Workplace Class Action Litigation Panel Discussion” http://www.seyfarth.com:80/publications/WC020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: On February 6, 2018, Seyfarth Shaw Partner Jerry Maatman and Bloomberg Law Senior Legal Editor Perry Cooper presented a timely event on &ldquo;Top Trends In Workplace Class Action Litigation Panel Discussion.&rdquo; The discussions focused on views of cutting edge issues relative to the workplace class action litigation landscape. With nearly 500 people attending either in person at our Chicago office or via our live Webcast, Maatman and Cooper&rsquo;s discussion was a &ldquo;must see&rdquo; for representatives of businesses across the country.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/seyfarth-shaws-jerry-maatman-and-bloombergs-perry-cooper-present-top-trends-in-workplace-class-action-litigation-panel-discussion/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL020618 Sexual Harassment Legal Settlements: What Employers Need to Know About the New Tax Act http://www.seyfarth.com:80/publications/EL020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The new Tax Act prohibits employers from deducting payments to individuals alleging sexual harassment or sexual abuse if the settlement or payment requires the Claimant to execute a nondisclosure agreement.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/sexual-harassment-legal-settlements-what-employers-need-to-know-about-the-new-tax-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS020618 Big issues impacting workplaces in 2018 http://www.seyfarth.com:80/publications/WLS020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> In 2016 the CEDA reported that 40% of Australia&rsquo;s workforce could be replaced by automation within the next 10 to 20 years. Of course, automation has been happening since the industrial revolution &ndash; but the nature, pace and scale of automation is now being fuelled by digital disruption. These changes are happening now, or their seeds are being sown in many a workplace.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/02/big-issues-impacting-workplaces-in-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT020618 San Francisco DA’s Office to Dismiss Thousands of Marijuana Convictions http://www.seyfarth.com:80/publications/TBT020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> The San Francisco District Attorney&rsquo;s Office has announced that it will retroactively apply Proposition 64, which legalized the possession and recreational use of marijuana in California, to marijuana related misdemeanor and felony convictions dating back to 1975 with immediate effect. As a result, over 3,000 misdemeanor convictions will be dismissed and sealed, and nearly 5,000 felony convictions will be reviewed and potentially reduced.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/san-francisco-das-office-to-dismiss-thousands-of-marijuana-convictions/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR020618 Are Graduate-Students Assistants Employees Under the NLRA? The Answer of the Obama Board Will Not be the Final Word http://www.seyfarth.com:80/publications/LR020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: A 2016 decision of the National Labor Relations Board (&ldquo;Board&rdquo;) finding that the graduate students at Columbia University were employees under the National Labor Relations Act (&ldquo;NLRA&rdquo;) has been teed up for review by the Court of Appeals. In order to obtain appellate review of the Board&rsquo;s decision, Columbia University has refused to bargain with the union certified to represent its graduate-student assistants.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/06/are-graduate-students-assistants-employees-under-the-nlra-the-answer-of-the-obama-board-will-not-be-the-final-word/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD020618 Win Some, Lose Some: Trump Gets a Loss and a Win in the Fight to Control the CFPB http://www.seyfarth.com:80/publications/CCD020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: One court upholds protection of Dodd-Frank limiting the President&rsquo;s removal authority, while another court stifles a challenge against Mulvaney serving as acting Director of CFPB.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/02/win-some-lose-some-trump-gets-a-loss-and-a-win-in-the-fight-to-control-the-cfpb/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM20618-LE Are Graduate-Students Assistants Employees Under the NLRA? The Answer of the Obama Board Will Not Be the Final Word http://www.seyfarth.com:80/publications/OMM20618-LE Tue, 06 Feb 2018 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>: A 2016 decision of the National Labor Relations Board (&ldquo;Board&rdquo;) finding that the graduate students at Columbia University were employees under the National Labor Relations Act (&ldquo;NLRA&rdquo;) has been teed up for review by the Court of Appeals. In order to obtain appellate review of the Board&rsquo;s decision, Columbia University has refused to bargain with the union certified to represent its graduate-student assistants.</em></p> <p> In a landmark ruling, <em>Columbia University</em>, 364 NLRB No. 90 (2016), the Obama Board reversed prior precedent and held that graduate-student assistants at Columbia University were employees and therefore could vote on whether to form a union.&nbsp;After the Union prevailed at the election in December 2016, Columbia filed objections and requested a rerun election. In a decision issued in December 2017, the current Board rejected those objections and certified the Union as the exclusive bargaining representative of the graduate-student assistants. 365 NLRB No. 136.</p> <p> Teeing up the issue of whether graduate-student assistants are employees under the NLRA, Columbia has now refused to bargain with the Union.&nbsp;There is no right to a direct appeal of Board decisions in representation cases, and the only way for the University to obtain review of the earlier election determination is by refusing to bargain with the Union.&nbsp; Presumably, the Union will file an unfair labor practice charge against Columbia that will then lead to an adverse Board decision against Columbia.&nbsp;At that point, the University would be able to ask a federal Court of Appeals to assess whether the Board correctly decided the employee issue in the first instance.</p> <p> While it is not the Board&rsquo;s practice to review representation cases in the context of a refusal to bargain, there is reason to believe that the current Board may revisit whether graduate-student assistants are employees under the NLRA. Both Columbia decisions included vigorous dissents by a Republican Board member. In addition, in a separate December 2017 decision in a case involving Harvard University, another Republican Board member noted his view that Board precedent on the employee-status of students warrants reconsideration.&nbsp;Indeed, the Board had previously gone back and forth on the issue. In <em>Brown University</em>, 342 NLRB 483 (2004), the Board held that graduate-student assistants were not employees. Just two years earlier, in <em>New York University</em>, 332 NLRB 1205 (2000), the Board had held that graduate-student assistants were employees under the NLRA.</p> <p> Regardless of whether the Columbia University decision is revisited through the appeals process or by the Board itself, it is unlikely that the 2016 decision will be the last word on the issue. The final outcome will most certainly impact efforts by unions to organize graduate-student assistants and other students such as residence assistants.&nbsp; The final decision also may impact the cases in which certain college athletes, usually scholarship athletes, are claiming employee status for purposes of state and federal wage-hour laws.</p> http://www.seyfarth.com:80/publications/OMM020617-LIT Win Some, Lose Some: Trump Gets a Loss and a Win in the Fight to Control the CFPB http://www.seyfarth.com:80/publications/OMM020617-LIT Tue, 06 Feb 2018 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:</strong> One court upholds protection of Dodd-Frank limiting the President&rsquo;s removal authority, while another court stifles a challenge against Mulvaney serving as acting Director of CFPB.&nbsp;</em></div> <div> &nbsp;</div> <div> Last week, the Trump Administration experienced mixed results in the ongoing litigation over the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;).&nbsp; As we&rsquo;ve mentioned in our <a href="http://www.seyfarth.com/ConsumerFinancialServices">prior publications</a>, there are several actions pending that involve the President&rsquo;s authority to control the CFPB.&nbsp; The first action discussed below, which had been languishing in the court for some time, raised the issue of whether the CFPB&rsquo;s structure as an independent agency is constitutional.&nbsp; The Trump Administration lost on this issue for the moment. In the second action, the Trump Administration dodged, at least temporarily, a challenge to President Trump&rsquo;s appointment of current CFPB Director Mick Mulvaney because the court determined that the plaintiff, a non-profit credit union, had no standing to bring its case.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> On January 31, 2018, the United States Court of Appeals for the District of Columbia, sitting <em>en banc</em>, <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/$file/15-1177.pdf">ruled </a>that the CFPB&rsquo;s structure is constitutional by upholding Dodd-Frank&rsquo;s restriction that the Director of the CFPB can be removed by the President only for cause.&nbsp; The court reasoned that under Dodd-Frank, independence of the agency is persevered and that with Article II, the &ldquo;President [still] retains &lsquo;ample authority to assure&rsquo; that the official &lsquo;is competently performing his or her statutory responsibilities.&rsquo;&rdquo; This ruling is a blow to the Trump Administration&rsquo;s recent efforts to challenge the CFPB&rsquo;s structure on grounds that the director was unaccountable to the executive branch, and that he or she should be subject to removal for any reason and not only for inefficiency, neglect or wrongdoing.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> In 2015, PHH Corporation challenged the CFPB&rsquo;s authority after the Bureau levied a $109 million fine against the company for allegedly taking kickbacks for sending customers to mortgage insurers. In October 2016, a three-judge panel of the D.C. Circuit held that the Constitution requires the President to have authority to fire the director for any reason, prompting a rehearing before the full court. Given the Trump Administration&rsquo;s public criticism of the CFPB, the <em>en banc</em> ruling likely won&rsquo;t end the long-running dispute over the bureau.&nbsp; Instead, the case will likely head to the U.S. Supreme Court for the final ruling on this issue. Until then, this decision highlights that the CFPB was established as an <em>independent </em>agency, insulated from the control of the executive branch, and in this particular instance, that agency leadership is protected from at-will removal by the President.&nbsp;</div> <div> &nbsp;</div> <div> Meanwhile, the Trump Administration had its second win over challenges to the President&rsquo;s authority to appoint the CFPB&rsquo;s acting director.&nbsp; On February 2, U.S. District Judge Paul Gardephe of the U.S. District Court for the Southern District of New York <a href="http://www.seyfarth.com/dir_docs/publications/2018-02-01_Lower_East_Side_Decision_SDNY.pdf">dismissed </a>the Lower East Side People&rsquo;s Federal Credit Union lawsuit because the credit union lacked standing to sue.&nbsp; While acknowledging that the credit union was not a &ldquo;mere outsider&rdquo; to the changing agency leadership, the court found that the credit union had not shown that Mulvaney&rsquo;s appointment would adversely affect the credit union.&nbsp; According to the court, the credit union&rsquo;s &ldquo;speculation&rdquo; that Mulvaney may withdraw existing CFPB rules or not enact long-expected CFPB rules &ldquo;is not sufficient to establish an imminent injury&rdquo; necessary for standing.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This ruling follows on another district court&rsquo;s ruling last month that the President has authority to appoint the CFPB&rsquo;s acting director.&nbsp; The district court rejected Deputy Director Leandra English&rsquo;s claim to be the rightful acting director based on former Director Richard Cordray&rsquo;s attempt to name her as his successor.&nbsp; English has already appealed this ruling and is on the track for an expedited review with initial briefing to be completed by March 6, and the credit union may appeal its dismissal as well.</div> <div> &nbsp;</div> <div> As the fight for control of the CFPB continues, we will keep you apprised of the battles won and lost.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/wexlerbloomberglaw020618 Howard Wexler quoted in Bloomberg Law http://www.seyfarth.com:80/news/wexlerbloomberglaw020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Howard Wexler was quoted in a February 6 story from Bloomberg Law, &quot;Breast-Feeding Accommodation: New Laws Expand Employer Duties.&quot; Wexler said that he expects this trend of state and local breast-feeding protections to continue. He stated that similar to other areas of the labor and employment law world where a patchwork of state/city/local laws have developed - like minimum wage or paid sick leave - we are seeing a similar trend with respect to accommodations for women who express breast milk at work.</p> http://www.seyfarth.com:80/news/wgnweiss020618 Philippe Weiss interviewed by WGN Radio http://www.seyfarth.com:80/news/wgnweiss020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Philippe Weiss was interviewed February 6th by WGN Radio, &quot;Wintrust Business Lunch 2/6/18: The #MeToo Movement.&quot; Weiss provided perspective from the corporate world with the #MeToo Movement. You can listen to the full interview at <a href="http://wgnradio.com/2018/02/06/wintrust-business-lunch-2-6-18-market-corrections-lady-doritos-the-metoo-movement/">minute 18:30 here</a>.</p> http://www.seyfarth.com:80/news/olsonnlj020618 Camille Olson quoted in the National Law Journal http://www.seyfarth.com:80/news/olsonnlj020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Camille Olson was quoted in a February 6 story from the National Law Journal, &quot;US Chamber Pushes Benefits for Gig Workers, but Don&#39;t Call Them Employees.&quot; Olson, on behalf of the U.S. Chamber, told a U.S. Senate subcommittee that the current legal and regulatory scheme effectively discourages companies who utilize independent workers from offering retirement benefits.</p> http://www.seyfarth.com:80/news/olsonpolitico020618 Camille Olson quoted in Politico http://www.seyfarth.com:80/news/olsonpolitico020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Camille Olson was quoted in a February 6 story from Politico, &quot;Morning Shift,&quot; on a Senate HELP subcommittee hearing on the gig economy and the future of retirement savings. Olson appeared as a witness on behalf of the U.S. Chamber of Commerce. You can read the <a href="https://www.politico.com/newsletters/morning-shift/2018/02/06/tight-shutdown-timeline-094823">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonhill020618 Camille Olson quoted in The Hill http://www.seyfarth.com:80/news/olsonhill020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Camille Olson was quoted in a February 6 story from The Hill, &quot;Lawmakers eye retirement help for gig economy workers.&quot; Olson, speaking for the Chamber of Commerce said the solution lies in adjusting the definition of an independent contractor. You can read the <a href="http://thehill.com/policy/technology/372663-lawmakers-eye-retirement-help-for-gig-economy-workers">full article here</a>.</p> http://www.seyfarth.com:80/news/mccoylaw360020618 Ryan McCoy quoted in Law360 http://www.seyfarth.com:80/news/mccoylaw360020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Ryan McCoy was quoted in Law360, &quot;Calif. Justices Mull Classification Tests In Dynamex Wage Suit,&quot; on the long-awaited California Supreme Court oral arguments in a case that experts say could bring significant implications for worker classification in the gig-economy era. McCoy said that the Dynamex case has the potential to bring much-needed certainty to how independent contractors are defined.</p> http://www.seyfarth.com:80/news/boutroscbc020618 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbc020618 Tue, 06 Feb 2018 00:00:00 -0500 <p> Andrew Boutros was interviewed February 1st on the CBC News Netowrk, &quot;What are the legal consequences of the Nunes memo?&quot; Boutros answers questions about the legal implications of the the Nunes memo - which reveals FBI surveillance activities. You can watch the <a href="http://www.cbc.ca/player/play/1155055683946">full interview here</a>.</p> http://www.seyfarth.com:80/news/wcarshrm020518 Seyfarth's Workplace Class Action Report profiled in SHRM http://www.seyfarth.com:80/news/wcarshrm020518 Mon, 05 Feb 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a February 5 story from SHRM, &quot;Wage and Hour Class Actions Can Cost Employers Millions,&quot; on how the top 10 employment-related lawsuits in 2017 had a combined value of $2.72 billion. The Report&#39;s author Gerald Maatman said that the growth in wage and hour settlements&mdash;which rose the past two years to a combined value of $1.2 billion&mdash;is the No. 1 exposure for corporations heading into 2018. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Wage-and-Hour-Class-Actionss.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonhelp020518 Camille Olson to Testify Before Senate HELP Committee on ‘Gig Economy’ http://www.seyfarth.com:80/news/olsonhelp020518 Mon, 05 Feb 2018 00:00:00 -0500 <p> On Tuesday, February 6, Seyfarth Shaw LLP partner Camille Olson will testify before the U.S. Senate Committee on Health, Education, Labor &amp; Pensions (HELP) on behalf of the U.S. Chamber of Commerce, where she serves as Chairwoman of its equal employment opportunity policy subcommittee.</p> <p> The Senate HELP Committee hearing, &ldquo;Exploring the &lsquo;Gig Economy&rsquo; and the Future of Retirement Savings,&rdquo; will begin at 2:30 p.m. ET; the webcast and more details can be found <a href="https://www.help.senate.gov/hearings/exploring-the-gig-economy-and-the-future-of-retirement-savings">here</a>. Camille&rsquo;s written testimony is available&nbsp;<a href="https://www.help.senate.gov/imo/media/doc/Olson3.pdf">here</a>.&nbsp;</p> <p> Throughout the last decade, Olson has regularly appeared before the United States Senate, the United States House of Representatives, the EEOC, and the United States Department of Labor on her own behalf (as a recognized expert in various fields), and on behalf of the United States Chamber of Commerce and the Society for Human Resource Management. For nearly 30 years, Olson has represented companies nationwide in all areas of litigation, with emphasis on employment discrimination and harassment, wage and hour matters, and independent contractor status.</p> <p> The Chamber is the world&rsquo;s largest business federation, representing more than 3 million businesses and organizations of every size, industry sector and geographical region.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/publications/TS020518 Seyfarth’s Robert Milligan Co-Edits and Co-Authors New Treatise on Defend Trade Secrets Act http://www.seyfarth.com:80/publications/TS020518 Mon, 05 Feb 2018 00:00:00 -0500 <p> Robert B. Milligan, Partner and Co-Chair of Seyfarth&rsquo;s National Trade Secret, Computer Fraud, and Non-Compete practice group, just finished co-editing and co-authoring a prominent new California trade secret treatise.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/dtsa/seyfarths-robert-milligan-co-edits-and-co-authors-new-treatise-on-defend-trade-secrets-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR020518 Been Harassed? Vote Yes. How Unions Are Leveraging #MeToo To Organize Female Workers http://www.seyfarth.com:80/publications/LR020518 Mon, 05 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Union organizers are increasingly embracing the #MeToo movement as an organizing tool, claiming that unions are the key to eliminating gender inequity and sexual harassment in the workplace.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/05/been-harassed-vote-yes-how-unions-are-leveraging-metoo-to-organize-female-workers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO020518 Will Blockchain Revolutionize Bio/Pharma R&D, Tech Transfer, and IP? http://www.seyfarth.com:80/publications/BIO020518 Mon, 05 Feb 2018 00:00:00 -0500 <p> As a special feature of our blog, we include special guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry which includes guest author Rolf J. Haag.[1]<br /> <br /> <a href="https://www.bioloquitur.com/will-blockchain-revolutionize-bio-pharma-rd-tech-transfer-ip/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP020518 Recent Pay Equity Cases Show That Such Cases Are Ill-Suited For Class Treatment http://www.seyfarth.com:80/publications/CP020518 Mon, 05 Feb 2018 00:00:00 -0500 <p> We&rsquo;re pleased to share a thoughtful look at whether lawsuits alleging illegal pay disparities under California law are suitable as class actions. This post, recently featured on Seyfarth&rsquo;s Pay Equity Issues &amp; Insights Blog, provides some compelling reasons to argue that they&rsquo;re not.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/05/recent-pay-equity-cases-show-that-such-cases-are-ill-suited-for-class-treatment/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP020518a Recent Pay Equity Cases Show That Such Cases Are Ill-Suited For Class Treatment http://www.seyfarth.com:80/publications/CP020518a Mon, 05 Feb 2018 00:00:00 -0500 <p> We&rsquo;re pleased to share a thoughtful look at whether lawsuits alleging illegal pay disparities under California law are suitable as class actions. This post, recently featured on Seyfarth&rsquo;s Pay Equity Issues &amp; Insights Blog, provides some compelling reasons to argue that they&rsquo;re not.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/05/recent-pay-equity-cases-show-that-such-cases-are-ill-suited-for-class-treatment/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC020318 California Court “Swipes Left” And Reverses Tinder’s Age-Based Price Discrimination Win http://www.seyfarth.com:80/publications/WC020318 Sat, 03 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In a class action lawsuit alleging that Tinder discriminated on the basis of age in violation of California state laws by charging consumers age 30 and over a higher price for Tinder Plus subscriptions, the California Court of Appeal recently reversed the trial court&rsquo;s judgment in favor of Tinder, holding there was no strong public policy that justified the allegedly discriminatory pricing model.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/california-court-swipes-left-and-reverses-tinders-age-based-price-discrimination-win/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE020218 Business-Friendly Times – USDOJ Limits the Use of Agency Guidance Documents in Civil Enforcement http://www.seyfarth.com:80/publications/WSE020218 Fri, 02 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In another business-friendly move, the U.S. Department of Justice (USDOJ) recently directed its Attorneys to not use its civil enforcement authority for violations based on agency guidance documents.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-enforcement/business-friendly-times-usdoj-limits-the-use-of-agency-guidance-documents-in-civil-enforcement/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE020218a U.S. EPA Moves Program Responsibilities Back to Resource-Starved States http://www.seyfarth.com:80/publications/WSE020218a Fri, 02 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In a guidance document issued last week, U.S. EPA sets out to deliberately move environmental enforcement responsibilities back to the states. While this may, to local interests, represent a noble purpose, few states are manned and ready to take on additional responsibilities.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/environmental-compliance/u-s-epa-moves-program-responsibilities-back-to-resource-starved-states/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM020218 February 2018 Visa Bulletin http://www.seyfarth.com:80/publications/IMM020218 Fri, 02 Feb 2018 00:00:00 -0500 <p> Where are we this month?<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/02/february-2018-visa-bulletin/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/wcarbenefitspro020218 Seyfarth's Workplace Class Action Report profiled in BenefitsPro.com http://www.seyfarth.com:80/news/wcarbenefitspro020218 Fri, 02 Feb 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a February 2 story from BenefitsPro.com, &quot;Top 10 ERISA class action settlements in 2017.&quot; Seyfarth&#39;s recently released annual report shows church plan cases dominate top settlements. You can read the <a href="http://www.benefitspro.com/2018/02/02/top-10-erisa-class-action-settlements-in-2017?slreturn=1517845374">full article here</a>.</p> http://www.seyfarth.com:80/news/karasikccr020218 Alex Karasik quoted in the Cook County Record http://www.seyfarth.com:80/news/karasikccr020218 Fri, 02 Feb 2018 00:00:00 -0500 <p> Alex Karasik was quoted in a February 2 story from the Cook County Record, &quot;Recent ruling in glutamine powder case could have far-reaching implications for class action cases, lawyer says,&quot; on how a recent ruling by a federal judge that non-Illinois residents cannot participate in a class-action suit has far-reaching implications. Karasik said that for businesses and employers facing nationwide class action lawsuits, this ruling is instructive in regards to strategies to fracture and minimize the class size, and limit potential liability. You can read the <a href="https://cookcountyrecord.com/stories/511327520-recent-ruling-in-glutamine-powder-case-could-have-far-reaching-implications-for-class-action-cases-lawyer-says">full article here</a>.</p> http://www.seyfarth.com:80/news/driznercnbc020118 Paul Drizner quoted in CNBC.com http://www.seyfarth.com:80/news/driznercnbc020118 Thu, 01 Feb 2018 00:00:00 -0500 <p> Paul Drizner was quoted in a February 1 story from CNBC.com, &quot;New tax law takes a hatchet to these worker expenses,&quot; on how the new tax code&#39;s impact on employees. Drizner said that many teachers will have to chose between spending less on their classroom or taking home less money. You can read the <a href="https://www.cnbc.com/2018/02/01/unreimbursed-employee-expenses-could-hurt-taxpayers.html">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellisfchronicle020118 Angelo Paparelli quoted in the San Francisco Chronicle http://www.seyfarth.com:80/news/paparellisfchronicle020118 Thu, 01 Feb 2018 00:00:00 -0500 <p> Angelo Paparelli was quoted in a February 1 story from the San Francisco Chronicle, &quot;Immigration agents raid 77 Northern California workplaces; no arrests reported.&quot; Paparelli said that serving 77 notices of inspection on different employers in the last three days within a single area of responsibility, in this case, San Francisco, appears unprecedented. You can read the <a href="https://www.sfgate.com/bayarea/article/ICE-workplace-sweep-hits-Northern-California-12544863.php">full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarthcvls020118 Kevin Fritz, Rashal Baz and Kyla Miller profiled by Chicago Volunteer Legal Services http://www.seyfarth.com:80/news/seyfarthcvls020118 Thu, 01 Feb 2018 00:00:00 -0500 <p> Kevin Fritz, Rashal Baz and Kyla Miller were profiled in a February 1 story by Chicago Volunteer Legal Services (CVLS), &quot;Team Seyfarth Shaw Reporting For Duty.&quot; Working with CVLS&#39; Guardians Ad Litem (GAL) program, the Seyfarth team helped ensure safe living environments for elderly clients. You can read the <a href="https://www.cvls.org/sites/all/files/newsletter/news18feb.pdf">full story on p. 4 here</a>.</p> http://www.seyfarth.com:80/publications/weissinlander020118 Philippe Weiss authored an article in The Inlander http://www.seyfarth.com:80/publications/weissinlander020118 Thu, 01 Feb 2018 00:00:00 -0500 <p> Philippe Weiss authored a February 1 article in The Inlander, &quot;Building A Culture Of Accountable Allies.&quot; Weiss writes that organizations must help employees at all levels to find a voice so that they can react and respond quickly to disrespect on behalf of others. You can read the <a href="http://www.inlandpress.org/stories/building-a-culture-of-accountable-allies,8736">full article&nbsp;here</a>.</p> http://www.seyfarth.com:80/publications/ADA020118 ADA Title III Lawsuits Increase by 14% Percent in 2017 Due Largely to Website Access Lawsuits; Physical Accessibility Legislative Reform Efforts Continue http://www.seyfarth.com:80/publications/ADA020118 Thu, 01 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The number of federal ADA Title III lawsuits continue to surge in 2017, fueled largely by website accessibility claims; while legislative reform efforts continue to mitigate the physical accessibility portion of those lawsuit numbers.<br /> <br /> <a href="https://www.adatitleiii.com/2018/02/ada-title-iii-lawsuits-increase-by-14-percent-in-2017-due-largely-to-website-access-lawsuits-physical-accessibility-legislative-reform-efforts-continue/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR020118 Employers Beware: Potential Rise in Union Corporate Campaigns http://www.seyfarth.com:80/publications/LR020118 Thu, 01 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Although many employers may think they can let their guard down a little bit when it comes to the NLRB under the Trump Administration, history suggests otherwise. During the last Republican Administration, labor unions often decided to wage their battles outside the NLRB, using tactics like the &ldquo;corporate campaign.&rdquo; Although corporate campaigns have been around for a long time and continued even during the Obama Administration, union corporate campaign activity during the Bush Administration suggests that employers would be well advised to implement strategies aimed at reducing their vulnerability to such campaigns and effectively responding to such campaigns in the event they become a target.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/01/employers-beware-potential-rise-in-union-corporate-campaigns/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL020118 Under New Leadership, CFPB No Longer Interested in Pushing the Envelope on Consumer Protection Laws http://www.seyfarth.com:80/publications/EL020118 Thu, 01 Feb 2018 00:00:00 -0500 <p> Seyfarth Synopsis: On January 23, 2018, the Consumer Financial Protection Bureau&rsquo;s (CFPB) Acting Director, Mick Mulvaney, issued a mission statement to the CFPB redirecting the agency&rsquo;s mission and focus. Mulvaney emphasized that the law mandates the enforcement of consumer protection laws and that, although things would be different under new leadership, the CFPB will continue to fulfill its mandate.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/under-new-leadership-cfpb-no-longer-interested-in-pushing-the-envelope-on-consumer-protection-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM020118-LE Maine Employees Now Protected From Repercussions of Off-Duty Marijuana Use http://www.seyfarth.com:80/publications/OMM020118-LE Thu, 01 Feb 2018 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:</strong> On November 8, 2016, Maine voters approved &ldquo;Question 1 &ndash; An Act to Legalize Marijuana&rdquo; (&ldquo;the Act&rdquo;), which allows for, among other things, the recreational use of marijuana. The Act contains within it an anti-discrimination in employment provision, which is effective today, February 1, 2018, making it the first law of its kind in the nation because it protects employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana.</em><br /> <br /> The Act prohibits employers from refusing to employ or otherwise taking any adverse action against any person age 21 or older based on that individual&rsquo;s &ldquo;consuming marijuana outside the &hellip; employer&rsquo;s &hellip; property.&rdquo; &nbsp;However, the Act permits employers to bar the use and possession of marijuana &ldquo;in the workplace&rdquo; and to &ldquo;discipline employees who are under the influence of marijuana in the workplace.&rdquo; &nbsp;Employers may no longer test job applicants for marijuana. &nbsp;Moreover, according to the Maine Department of Labor, &nbsp;an employee&rsquo;s positive drug test, by itself, will not be sufficient to prove that the employee is &ldquo;under the influence&rdquo; of marijuana. Of course, employers required to&nbsp;comply with federally mandated testing for marijuana (e.g., U.S. Department of Transportation regulated employers) are not subject to the Act.&nbsp;&nbsp;<br /> <br /> As a reminder, Maine employers may drug test applicants and employees if they have a written drug testing policy that has been approved by the Maine Department of Labor. This is no small feat because the policy must, among other things, address specific topics set out in the statute (such as, among others, which positions will be subject to testing, substances tested for and cutoff levels, and the consequences of a positive result), and the employer <strong><em><u>must</u></em></strong> &ldquo;appoint an employee committee to develop a written policy&rdquo; and&nbsp;consult with those employees in the &ldquo;development of any portion of a substance abuse testing policy ... that relates to the employees.&rdquo; However, the employer is not required to consult with the employees on those portions of a policy that relate only to applicants. It is only after the policy is submitted to and approved by the state can the employer drug test Maine applicants and employees.&nbsp;</p> <p> In the meantime, Maine employers that do have a state-approved&nbsp;workplace drug-testing policy should consider (1)&nbsp;modifications to their existing policy, (2) whether to continue testing employees for marijuana, except when the test is based on reasonable suspicion of an impairment at work, (3) immediately discontinuing testing applicants for marijuana and (4) determining how best to address any employee positive test result for marijuana.&nbsp;Maine employers also must continue to be mindful of the state&rsquo;s&nbsp;medical&nbsp;marijuana law. It remains to be seen, however, whether the anti-discrimination portion of the Act will be upheld given the conflict between it and federal law, which still considers marijuana an unlawful controlled substance.&rdquo;</p> http://www.seyfarth.com:80/publications/WSE013118 EPA Withdraws “Once In Always In” Policy for Major HAP Sources http://www.seyfarth.com:80/publications/WSE013118 Wed, 31 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In another example of business-friendly regulatory agency actions, the U.S. Environmental Protection Agency has just rescinded the &ldquo;Seitz Memo&rdquo; associated with the &ldquo;Once In, Always In&rdquo; policy affecting the classification of certain major sources of hazardous air pollutants under section 112 of the Clean Air Act. Memorandum: Reclassification of Major Sources as Area Sources under Section 112 of the Clean Air Act, William L. Wehrum, Assistant Administrator, Office of Air and Radiation, U.S. Environmental Protection Agency (January 25, 2018) (Reclassification Memo).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/environmental-compliance/epa-withdraws-once-in-always-in-policy/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP013118 Our Ear in the Crowd: FEHC Hears Comments on New Regulations http://www.seyfarth.com:80/publications/CP013118 Wed, 31 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The Fair Employment and Housing Council issues regulations to implement California&rsquo;s employment and housing anti-discrimination laws, including the FEHA, the CFRA, and the Unruh and Ralph Civil Rights Acts. The FEHC also conducts inquiries and holds hearings on various civil rights issues. The latest FEHC meeting was held on December 11, 2017. Our own correspondent was there, and files this report of coming regulatory attractions in the areas of age discrimination, religious creed discrimination, and national origin discrimination.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/01/31/our-ear-in-the-crowd-fehc-hears-comments-on-new-regulations/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA013118-LIT Manhattan District Attorney’s Office Forms New “Work-Related Sexual Violence Team” http://www.seyfarth.com:80/publications/MA013118-LIT Wed, 31 Jan 2018 00:00:00 -0500 <div> In further demonstration of how law enforcement is being faced with new challenges in light of the recent attention paid to work-related sexual violence, Manhattan District Attorney Cyrus R. Vance, Jr., just announced a new effort to engage and encourage alleged victims of work-related sexual violence to report these incidents. His Office will be deploying specially-trained sex crimes prosecutors to swiftly investigate such reports. Staffed by 15 Assistant District Attorneys and a social worker, the Work-Related Sexual Violence Team will be led by seasoned prosecutors with years of experience in the investigation and prosecution of sexual assault.</div> <div> &nbsp;</div> <div> As District Attorney Vance explained, &ldquo;Work-related relationships grant predators unique access to people who are vulnerable to sexual abuse and assault due to the power imbalance inherent in so many work hierarchies. When an act of work-related sexual misconduct constitutes a crime, it is not enough that the abuser loses his job or his industry cachet&mdash;justice demands, and survivors deserve, that criminal abusers be held accountable in court.&rdquo;&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Thanking those who have come forward and the new team he has assembled, Vance noted that these individuals &ldquo;are serving on the front lines of justice as this historic moment of reckoning arrives.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> Hoping to garner support for the initiative, Vance introduced Gloria Steinem, noted activist and author. Steinem praised the initiative noting that &ldquo;It puts New York City in the leadership of the country, and more important, increases the safety and dignity of women in the workplace. From the executive suite to the night cleaning crew, justice may be only a phone call away.&rdquo;</div> <div> &nbsp;</div> <h2> The Specifics</h2> <div> Assistant District Attorneys will receive specialized training in &ldquo;Forensic Experiential Trauma Interview&rdquo; (FETI) techniques. FETI is a trauma-informed interviewing practice designed to minimize the use of questions that cause victims to relive their assaults.</div> <div> &nbsp;</div> <div> In addition, Manhattan Sex Crimes Unit prosecutors will regularly conduct trainings to help New Yorkers better identify and report sexual assault. This initiative will now be broadened to focus on workplace-related conduct.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Work-Related Sexual Violence Team will encourage anyone who believes a sex crime has occurred in Manhattan to call the District Attorney&rsquo;s Sex Crimes &ldquo;24/7/365&rdquo; Hotline at 212-335-9373. In addition to victims, others who become aware of work-related sexual misconduct&mdash;including company executives and human resources personnel&mdash;are encouraged to call the Hotline.</div> <div> &nbsp;</div> <div> The Work-Related Sexual Violence Team will also work in close collaboration with the New York City Police Department&rsquo;s Special Victims Division. Victims of sexual violence committed anywhere in New York City can also call the NYPD&rsquo;s hotline at 212-267-RAPE.</div> <div> &nbsp;</div> <div> This initiative, the first of its kind in New York, will likely be the prototype for similar initiatives across the country as victims, and society at large, become more aware of, and more vocal in their opposition to, the issue of sexual violence in the workplace.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/finkellucehr013118 Noah Finkel and Cheryl Luce authored an article in HR.com http://www.seyfarth.com:80/publications/finkellucehr013118 Wed, 31 Jan 2018 00:00:00 -0500 <p> Noah Finkel and Cheryl Luce authored a January 31 story in HR.com, &quot;Tip Pooling Rule: What Next?: DOL finally sounds the death knell for the rule.&quot; You can read the <a href="https://www.hr.com/en/magazines/legal_compliance_excellence_essentials/february_2018_hr_legal_compliance/tip-pooling-rule-what-next-dol-finally-sounds-the-_jd2tup0n.html">full article here</a>.</p> http://www.seyfarth.com:80/news/weissap013118 Philippe Weiss quoted in the Associated Press http://www.seyfarth.com:80/news/weissap013118 Wed, 31 Jan 2018 00:00:00 -0500 <p> Philippe Weiss was quoted in a January 31 story from the Associated Press, &quot;No penalty: Small businesses let sports fans enjoy big games,&quot; on how small business owners and managers are cutting staffers a little slack to chat about big sporting events. Weiss said that a flexible attitude is a good management practice for company owners. You can read the <a href="https://apnews.com/654b39a0e420412d83674b26e4074de7/No-penalty:-Small-businesses-let-sports-fans-enjoy-big-games">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanbi013018 Gerald Maatman quoted in Business Insurance http://www.seyfarth.com:80/news/maatmanbi013018 Tue, 30 Jan 2018 00:00:00 -0500 <p> Gerald Maatman was quoted in a January 30 story from Business Insurance, &quot;One year later: Trump administration continues regulation cuts.&quot; Maatman said that at the U.S. Equal Employment Opportunity Commission, in particular, there will be a claw back from the field with respect to the decision-making on which lawsuits to be filed especially on the systemic front. You can read the <a href="http://www.businessinsurance.com/article/20180130/NEWS06/912318822/One-year-later-Trump-administration-continues-regulation-cuts">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarwje013018 Seyfarth's Workplace Class Action Report profiled in Westlaw Journal Employment http://www.seyfarth.com:80/news/wcarwje013018 Tue, 30 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Repoprt was profiled in a January 30 issue of Westlaw Journal Employment, &quot;Employment-related settlements shattered records in 2017, Seyfarth report says.&quot; The Report&#39;s author Gerald Maatman said that a ruling expected by June from the high court on the validity of class-action waivers in employment agreements could radically reshape the litigation landscape in employers&#39; favor.</p> http://www.seyfarth.com:80/publications/MA013018-LE Tenth Circuit Leaves Unresolved When Off-Campus Social Media Posts Can Subject Students to Discipline http://www.seyfarth.com:80/publications/MA013018-LE Tue, 30 Jan 2018 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: The U.S. Court of Appeals for the Tenth Circuit&rsquo;s recent opinion in </em><a href="https://laborandemploymentlawcounsel.lexblogplatform.com/wp-content/uploads/sites/224/2018/01/Yeasin-v-Durham-U-of-Kansas-10-Cir-16-3367.pdf"><em>Yeasin v. Durham</em></a><em>, No. 16-3367, 2018 WL 300553 (10th Cir. Jan. 5, 2018), addresses the &ldquo;tension between some students&rsquo; free-speech rights and other students&rsquo; Title IX rights to receive an education absent sex discrimination in the form of sexual harassment.&rdquo;&nbsp; The Court of Appeals did not specify a test to be applied when a student&rsquo;s alleged First Amendment right to free speech intersects another student&rsquo;s alleged right to be free from harassment in a university community, but did affirm the district court&rsquo;s decision that a KU administrator did not violate clearly established law when she expelled Yeasin for misconduct related to an off-campus incident and tweets.</em></p> <p> The court specifically refrained from deciding &ldquo;whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university.&rdquo;&nbsp; The Court&rsquo;s analysis in this case is of particular interest to public colleges, universities and schools who grapple with managing and balancing student First Amendment rights and the responsibility to maintain an educational environment free from harassment.</p> <p> <strong>Background and Procedural History </strong></p> <p> In November, 2013, Dr. Tammara Durham, Vice Provost for Student Affairs, made a decision to expel Navid Yeasin from the University of Kansas (&ldquo;KU&rdquo;) after her review of a hearing panel&rsquo;s findings of fact based on a preponderance of the evidence that Yeasin had violated KU&rsquo;s sexual harassment policy by engaging in conduct which included posting off-campus social media tweets making derogatory statements about his ex-girlfriend&rsquo;s body, but not naming her.</p> <p> Yeasin proceeded to contest the expulsion in Kansas state court which concluded that the findings, adopted by Dr. Durham, &ldquo;were not supported by substantial evidence&rdquo; and that &ldquo;KU and [Dr.] Durham erroneously interpreted the Student Code of Conduct by applying it to off-campus conduct.&rdquo; &nbsp;KU appealed, arguing that its interpretation of &nbsp;KU&rsquo;s Code of Conduct was &ldquo;consistent with the obligations imposed on it under Title IX&rdquo; and allowed for the University to expel Yeasin since its student code allowed for students to be punished for off-campus conduct that violates federal, state, or local law. &nbsp;In September 2015, that court affirmed the lower state court&rsquo;s findings and Yeasin subsequently re-enrolled at KU.</p> <p> Thereafter, Yeasin brought suit in federal court against Dr. Durham under 42 U.S.C. Section 1983 alleging her action to expel him from KU for the content of his on-line, off campus speech violated his First Amendment right to free speech and his Fourteenth Amendment right to substantive due process.&nbsp; He sought monetary damages claiming that KU&rsquo;s wrongful expulsion delayed completion of his education, cost him lost employment and wages, and caused him emotional distress and mental anguish.&nbsp; Dr. Durham moved to dismiss both of Yeasin&rsquo;s claims on qualified-immunity grounds.&nbsp; The federal district court granted Dr. Durham&rsquo;s motion to dismiss, concluding that she did not violate Yeasin&rsquo;s clearly established rights under the First and Fourteenth Amendments.&nbsp; On January 5, 2018, the Tenth Circuit Court of Appeals affirmed.&nbsp;</p> <p> <strong>The Tenth Circuit Court of Appeals Analysis and Findings </strong></p> <p> Qualified immunity protects government officials from liability for civil damages if their conduct &ldquo;does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.&rdquo; In order to overcome this defense, a plaintiff must show (1) that the official violated a statutory or constitutional right, <em>and</em> (2) that the right was clearly established. The Court of Appeals here found that Yeasin&rsquo;s claim failed the second prong of this analysis.</p> <p> In reaching its conclusion, the Court analyzed free speech cases in secondary school and college/university settings including consideration of <a href="https://supreme.justia.com/cases/federal/us/393/503/case.html"><em>Tinker v. Des Moines Indep. Community Sch. Dist.</em></a>, 393 U.S. 503 (1969) (finding that, while secondary-school students retained free-speech rights, schools can still prohibit actions that &ldquo;would materially and substantially disrupt the work and discipline of the school&hellip;&rdquo;); <a href="https://supreme.justia.com/cases/federal/us/551/393/"><em>Morse v. Frederick</em></a>, 551 U.S. 393 (2007) (allowing a K-12 school to discipline a student for flying a banner reading &ldquo;BONG HiTs 4 JESUS&rdquo; at an off-campus, school-approved activity because the banner could reasonably be viewed as promoting drug use); <a href="https://www.law.cornell.edu/supremecourt/text/478/675"><em>Bethel Sch. Dist. No. 403 v. Fraser</em></a>, 478 U.S. 675 (1986) (K-12 schools can restrict lewd, vulgar, or indecent speech even without a forecast of disruption); and <a href="https://supreme.justia.com/cases/federal/us/484/260/case.html"><em>Hazelwood Sch. Dist. v. Kuhlmeier</em></a>, 484 U.S. 260, 273 (1988) (allowing public officials to restrict K-12 school-sponsored speech).</p> <p> Yeasin argued that First Amendment cases which allow for the restriction of student speech in the secondary school context cannot be applied in the university context in the same way. Rather, Yeasin argued that cases including <a href="https://supreme.justia.com/cases/federal/us/410/667/"><em>Papish v. Bd. of Curators of the Univ. of Missouri</em></a>, 410 U.S. 667 (1973) (addressing distribution of newspaper in the university setting &ldquo;containing forms of indecent speech&rdquo;); <a href="https://supreme.justia.com/cases/federal/us/454/263/case.html"><em>Widmar v. Vincent</em></a>, 454 U.S. 263 (1981) (addressing a university&rsquo;s refusal to allow a registered religious student group to meet in university buildings); and <em>Healy v. Jame</em>s, 408 U.S. 169 (1972) (addressing a state college&rsquo;s refusal to officially recognize a student group known because of its potential affiliation with a national organization known for campus disruption) should be applied.&nbsp; The Tenth Circuit Court of Appeals distinguished the cases advanced by Yeasin noting that the cases didn&rsquo;t concern &ldquo;university-student conduct that interferes with the rights of other students or risks disrupting campus order.&rdquo;&nbsp; The Court also countered with language from <em>Widmar</em>, quoting <em>Healy</em>, which &ldquo;suggests that the Supreme Court believes that the material-and-substantial-disruption test applies in the university setting.&rdquo;&nbsp; Ultimately, the Tenth Circuit Court of Appeals concluded that Yeasin could not establish that Dr. Durham had violated clearly established law when she took action to expel him, in part, for his off-campus social media tweets.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;</p> <p> The Court considered Yeasin&rsquo;s substantive due process argument, and found that it was flawed. The Court reasoned that Yeasin needed to show that the school&rsquo;s decision to expel him was arbitrary, lacked a rational basis, or shocked the conscience. <a href="https://openjurist.org/341/f3d/1197/butler-v-rio-rancho-public-schools-board-of-education"><em>Butler v. Rio Rancho Pub. Sch. Bd. of Educ.</em></a>, 341 F.3d 1197, 1200 (10th Cir. 2003). The court declined to resolve the question of whether Dr. Durham&rsquo;s decision to expel Yeasin violated his right to substantive due process, and limited its opinion to a finding that she violated no clearly established law in doing so.</p> <p> The need for college and university administrators and school officials to navigate their legal obligations when addressing decisions to discipline a student for off-campus speech on social media will no doubt remain a prevailing issue, especially when such conduct implicates the rights of another student to be educated in a harassment-free learning environment.&nbsp; Not surprisingly, KU modified its student code of conduct after this incident to explicitly extend its disciplinary jurisdiction to off-campus incidents.</p> <p> Seyfarth Shaw continues to monitor the developments in the battle between the First Amendment right to freedom of speech and rights under Title IX to an educational environment free of sexual harassment.&nbsp; We will keep our readers apprised.&nbsp; &nbsp;</p> http://www.seyfarth.com:80/publications/OMM013018-LIT Federal Trade Commission Announces 2018 Hart-Scott-Rodino Act Thresholds http://www.seyfarth.com:80/publications/OMM013018-LIT Tue, 30 Jan 2018 00:00:00 -0500 <div> On Friday, January 27, 2018, the Federal Trade Commission (FTC) <a href="https://www.ftc.gov/news-events/press-releases/2018/01/ftc-announces-annual-update-size-transaction-thresholds-premerger">announced</a> the revised &ldquo;size of transaction&rdquo; thresholds for 2018 for reporting proposed mergers and acquisitions under Section 7A of the Clayton Act, as added by the Hart-Scott-Rodino (HSR) Antitrust Improvements Act of 1976 (15 U.S.C. &sect; 18a).</div> <div> &nbsp;</div> <div> Under the size-of-transaction thresholds for 2018, parties must file the required HSR notification with the FTC and U.S. Department of Justice (DOJ) for all transactions valued above $337.6 million. Parties to transactions valued between $84.4 million and $337.6 million must also file the required HSR notification with the FTC and DOJ if they meet the &ldquo;size of parties&rdquo; threshold. For 2018, the size-of-parties thresholds will increase to $16.9 million and $168.8 million.&nbsp;</div> <div> &nbsp;</div> <div> The FTC adjusts these thresholds annually based on changes in gross national product. The new thresholds will become effective on February 28, 2018, and will apply to all transactions that close on or after that effective date.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/ERISA013018 Central District of California Finds No ERISA Preemption Where Determination of Benefits at Termination Is Non-Discretionary http://www.seyfarth.com:80/publications/ERISA013018 Tue, 30 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Claims for benefits at termination may proceed as a breach of contract claim in state court, and avoid ERISA preemption, where the calculations are individualized, straightforward and do not implicate an ongoing administrative scheme.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/01/30/central-district-of-california-finds-no-erisa-preemption-where-determination-of-benefits-at-termination-is-non-discretionary/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL013018 Tenth Circuit Leaves Unresolved When Off-Campus Social Media Posts Can Subject Students to Discipline http://www.seyfarth.com:80/publications/EL013018 Tue, 30 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The U.S. Court of Appeals for the Tenth Circuit&rsquo;s recent opinion in Yeasin v. Durham, No. 16-3367, 2018 WL 300553 (10th Cir. Jan. 5, 2018), addresses the &ldquo;tension between some students&rsquo; free-speech rights and other students&rsquo; Title IX rights to receive an education absent sex discrimination in the form of sexual harassment.&rdquo; The Court of Appeals did not specify a test to be applied when a student&rsquo;s alleged First Amendment right to free speech intersects another student&rsquo;s alleged right to be free from harassment in a university community, but did affirm the district court&rsquo;s decision that a KU administrator did not violate clearly established law when she expelled Yeasin for misconduct related to an off-campus incident and tweets.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/tenth-circuit-leaves-unresolved-when-off-campus-social-media-posts-can-subject-students-to-discipline/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO013018 FDA Issues New Guidance for IND Sponsors http://www.seyfarth.com:80/publications/BIO013018 Tue, 30 Jan 2018 00:00:00 -0500 <p> In late December the FDA issued a new guidance, entitled &ldquo;Best Practices for Communication Between IND Sponsors and FDA During Drug Development.&rdquo; The purpose of the guidance is to &ldquo;describe best practices and procedures for timely, transparent, and effective communications between investigational new drug application (IND) sponsors and FDA at critical junctures in drug development.&rdquo; The hope is the guidance facilitates an earlier availability of safe, effective and high-quality drugs to the American public, including biosimilars.<br /> <br /> <a href="https://www.bioloquitur.com/fda-issues-new-guidance-ind-sponsors/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE013018 California Moves Closer to Regulating Hotels Toward Musculoskeletal Injury Prevention http://www.seyfarth.com:80/publications/WSE013018 Tue, 30 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: This past week, the Cal/OSHA Standards Board approved a new regulation that will require hotels and other lodging establishments (such as resorts and bed and breakfast inns) to implement new requirements to protect employees who perform housekeeping tasks from any &ldquo;musculoskeletal injury.&rdquo;<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/california-moves-closer-to-regulating-hotels-toward-musculoskeletal-injury-prevention/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS013018 Wisconsin U.S. Attorneys Actively Prosecuting Trade Secret Theft—With Mixed Results http://www.seyfarth.com:80/publications/TS013018 Tue, 30 Jan 2018 00:00:00 -0500 <p> The United States Attorneys&rsquo; Offices in Wisconsin criminally prosecuted two trade secret theft cases last week. In the Eastern District of Wisconsin (United States of America v. Tan Liu), the United States charged a former employee, Tan Liu, with 12 counts of stealing trade secrets from his former employer, Rockwell Automation, Inc. According to the government, in the last few weeks of his Rockwell employment, and in anticipation of leaving Rockwell for a new employer, Liu downloaded 2,500 files that contained the proprietary software and source code Rockwell uses to operate various systems and controllers.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/01/articles/trade-secrets/wisconsin-u-s-attorneys-actively-prosecuting-trade-secret-theft-with-mixed-results/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS012918 Are Financial Services Firms Reconsidering the Protocol? http://www.seyfarth.com:80/publications/TS012918 Mon, 29 Jan 2018 00:00:00 -0500 <p> The Protocol for Broker Recruiting (&ldquo;Protocol&rdquo;) allows for reciprocal poaching of brokers. More specifically, if a broker leaves one Protocol firm for another Protocol firm, the broker can a) take certain account information (client names, addresses, telephone numbers, e-mail addresses, and account title information) to his/her new firm and b) solicit the clients he/she serviced at his/her former firm. Naturally then, the Protocol&rsquo;s requirements conflict with confidentiality and restrictive covenant provisions that are commonly found in broker employment agreements and firm policies.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/01/articles/restrictive-covenants/are-financial-services-firms-reconsidering-the-protocol/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM012918-LIT Under New Leadership, CFPB No Longer Interested in Pushing the Envelope on Consumer Protection Laws http://www.seyfarth.com:80/publications/OMM012918-LIT Mon, 29 Jan 2018 00:00:00 -0500 <div> On January 23, 2018, the Consumer Financial Protection Bureau&rsquo;s (&ldquo;CFPB&rdquo;) Acting Director, Mick Mulvaney, issued a <a href="http://www.seyfarth.com/dir_docs/publications/Mulvaney-Memo.pdf">mission statement</a> to the CFPB redirecting the agency&rsquo;s mission and focus. Mulvaney emphasized that the law mandates the enforcement of consumer protection laws and that, although things would be different under new leadership, the CFPB will continue to fulfill its mandate.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Mulvaney made clear that he did not see the CFPB as the &ldquo;good guys&rdquo; out to fight the &ldquo;bad guys,&rdquo; but instead he noted that the agency would treat both consumers and financial services companies fairly and equally. To that end, the CFPB will focus its enforcement efforts on quantifiable and unavoidable harm to the consumer. Where no such harm exists, the agency will not go looking for excuses to bring lawsuits.</div> <div> &nbsp;</div> <div> With regards to regulation, Mulvaney promised formal rulemaking on which financial institutions and other regulated businesses can rely and less regulation by enforcement. The CFPB will prioritize its efforts on debt collection because of the high number of consumer complaints on that issue. In contrast, Mulvaney noted that only 0.9% of complaints received by the CFPB related to prepaid credit cards and only 2% to payday lending. As such, less focus will be given to those areas.</div> <div> &nbsp;</div> <div> Mulvaney also promised &ldquo;a lot more math in our future,&rdquo; a reference to the Dodd Frank Act&rsquo;s requirement to consider the potential costs and benefits to consumers and covered persons. Mulvaney indicated that a true consideration of costs and benefits likely requires more quantitative analyses into the impact the agency&rsquo;s actions have on the public.</div> <div> &nbsp;</div> <div> Mulvaney&rsquo;s mission statement suggests that unlike under his predecessor, the CFPB will no longer &ldquo;push the envelope.&rdquo; Instead, the CFPB will enforce the law in furtherance of its congressional mandate by regulating more through rulemaking and less through ad hoc enforcement actions.&nbsp; Enforcement through rulemaking should result in a more balanced and fair approach that considers the interests of consumers and businesses alike, while providing certainty and stability with regards to the country&rsquo;s consumer protection laws. Moreover, focusing enforcement on quantifiable harm to consumers is good for business because businesses can focus more on providing services that comply with existing law without concern for what might be coming down the pike from the agency. Time will tell what impact Mulvaney&rsquo;s leadership will have on the future of the CFPB, consumers, and financial services providers.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/johnsoncnn012918 Randel Johnson quoted in CNN http://www.seyfarth.com:80/news/johnsoncnn012918 Mon, 29 Jan 2018 00:00:00 -0500 <p> Randel Johnson was quoted in a January 29 story from CNN, &quot;Reality sets in that DACA deal might not get done.&quot; Johnson said that he thinks the danger is both sides begin posturing to their respective bases and both sides will walk away earning brownie points with their bases and get nothing done. You can read the <a href="https://www.cnn.com/2018/01/29/politics/daca-deal-reality/index.html">full article here</a>.</p> http://www.seyfarth.com:80/news/bloomberglawjohnson012918 Randel Johnson quoted in Bloomberg Law http://www.seyfarth.com:80/news/bloomberglawjohnson012918 Mon, 29 Jan 2018 00:00:00 -0500 <p> Randel Johnson was quoted in a January 29 story from Bloomberg Law, &quot;PUNCHING IN: State of Labor,&quot; on the news that NLRB General Counsel Peter Robb is thinking about overhauling the regional director system. Johnson said that it&rsquo;s important that the general counsel tell regional directors it&rsquo;s time to take a more balanced approach to these cases.</p> http://www.seyfarth.com:80/news/karasikforbes012918 Alex Karasik quoted in Forbes http://www.seyfarth.com:80/news/karasikforbes012918 Mon, 29 Jan 2018 00:00:00 -0500 <p> Alex Karasik was quoted in a January 29 story from Forbes, &quot;EEOC Loses Again As It Backs Muslim Women Who Say They Weren&#39;t Hired Because Of Hijabs.&quot; Karasik said that employers should carefully consider any and all requests for accommodations, including requests made during the hiring process. You can read the <a href="https://www.forbes.com/sites/legalnewsline/2018/01/29/eeoc-loses-again-as-it-backs-muslim-women-who-say-they-werent-hired-because-of-hijabs/#3004e6796b89">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlettbloomberglaw012918 Brett Bartlett quoted in Bloomberg Law http://www.seyfarth.com:80/news/bartlettbloomberglaw012918 Mon, 29 Jan 2018 00:00:00 -0500 <p> Brett Bartlett was quoted in a January 29 story from Bloomberg Law, &quot;Courts Get Discovery Guidance for Federal Wage Cases,&quot; on how the Federal Judicial Center recently developed a set of protocols for plaintiffs and defendants in wage and hour cases to exchange information and documents early in litigation. Bartlett said that any time you add structure to how a case begins so that parties are forced to exchange information and speak with one another, it becomes more likely that they&rsquo;ll work together.</p> http://www.seyfarth.com:80/news/gesinskyhrdive012918 Loren Gesinsky quoted in HR Dive http://www.seyfarth.com:80/news/gesinskyhrdive012918 Mon, 29 Jan 2018 00:00:00 -0500 <p> Loren Gesinsky was quoted in a January 29 story from HR Dive, &quot;Wage and hour gets a shakeup from litigation, state laws,&quot; on how the influx of state and local laws has been the most pressing challenge for HR professionals. Gesinsky said that there is definitely a trend at local and state levels that&rsquo;s really rampant around the country. You can read the <a href="https://www.hrdive.com/news/wage-and-hour-gets-a-shakeup-from-litigation-state-laws/515179/">full article here</a>.</p> http://www.seyfarth.com:80/news/shermanfnr012918 Andrew Sherman interviewed on Federal News Radio http://www.seyfarth.com:80/news/shermanfnr012918 Mon, 29 Jan 2018 00:00:00 -0500 <p> Andrew Sherman was interviewed January 29th on Federal News Radio, &quot;3 pillars of success: human, financial and intellectual capital.&quot; Sherman talks about the sandtraps that every entrepreneur must avoid. You can listen to the <a href="https://federalnewsradio.com/whats-working-washington/2018/01/3-pillars-of-success-human-financial-and-intellectual-capital/">full interview here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc012718 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbc012718 Sat, 27 Jan 2018 00:00:00 -0500 <p> Andrew Boutros was interviewed January 27th on CBC News Network, &quot;U.S. President Donald Trump willing to testify in Mueller investigation.&quot; Boutros breaks down what U.S. President Donald Trump testifying under oath to special counsel Robert Mueller could look like. You can watch the <a href="http://www.cbc.ca/player/play/1149631043770">full interview here</a>.</p> http://www.seyfarth.com:80/news/wcarxperthr012618 Seyfarth's Workplace Class Action Report profiled in Xpert HR http://www.seyfarth.com:80/news/wcarxperthr012618 Fri, 26 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 26 story from Xpert HR, &quot;Workplace Class Action Settlements Escalated in 2017, but Employers Had Wins Too.&quot; The Report&#39;s author Gerald Maatman said that he can tell when an organization fundamentally has a good HR function &ndash; there should be a high number of internal complaints and resolutions and a low number of outside complaints. You can read the <a href="http://www.xperthr.com/blog/2018/01/26/workplace-class-action-settlements-escalated-in-2017-but-employers-had-wins-too/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarhre012618 Seyfarth's Workplace Class Action Report profiled in Human Resource Executive http://www.seyfarth.com:80/news/wcarhre012618 Fri, 26 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 26 story from Human Resource Executive, &quot;Workplace Litigation Report Offers Mixed Bag.&quot; The Report&#39;s author Gerald Maatman predicts employers should see a precipitous drop both in the number of filings and in the settlement amounts with respect to those cases in 2018. You can read the <a href="http://hreonline.com/litigation/">full article here</a>.</p> http://www.seyfarth.com:80/publications/CCD012618 Under New Leadership, CFPB No Longer Interested in Pushing the Envelope on Consumer Protection Laws http://www.seyfarth.com:80/publications/CCD012618 Fri, 26 Jan 2018 00:00:00 -0500 <p> On January 23, 2018, the Consumer Financial Protection Bureau&rsquo;s (&ldquo;CFPB&rdquo;) Acting Director, Mick Mulvaney, issued a mission statement to the CFPB redirecting the agency&rsquo;s mission and focus. Mulvaney emphasized that the law mandates the enforcement of consumer protection laws and that, although things would be different under new leadership, the CFPB will continue to fulfill its mandate.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/01/under-new-leadership-cfpb-no-longer-interested-in-pushing-the-envelope-on-consumer-protection-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC012618 4 Key Trends In Workplace Class Action Litigation For 2017: #4 U.S. Supreme Court Video http://www.seyfarth.com:80/publications/WC012618 Fri, 26 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Earlier this week, our blog posting analyzed pivotal rulings by the U.S. Supreme Court in 2017, which was the penultimate trend of this year&rsquo;s Workplace Class Action Report (WCAR). In today&rsquo;s finale of the WCAR video series, author Jerry Maatman provides his analysis on the Supreme Court jurisprudence for our readers. In addition to outlining the highlights of 2017, Jerry discusses the importance of the Supreme Court itself, as well as what hot topics employers should monitor in 2018. Watch our video in the link below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/4-key-trends-in-workplace-class-action-litigation-for-2017-4-u-s-supreme-court-video/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM012618 Auto Extension Influx: Automatic Extension of El Salvador TPS EADs http://www.seyfarth.com:80/publications/IMM012618 Fri, 26 Jan 2018 00:00:00 -0500 <p> United States Citizenship and Immigration Services (USCIS) issued automatic extensions of Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from Nicaragua, Honduras, Haiti, and most recently, El Salvador. Employers should be prepared to recognize these automatically extended EADs and correctly handle the resulting influx of Form I-9 updates.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/01/auto-extension-influx-automatic-extension-of-el-salvador-tps-eads/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC012518 DOJ To Announce Criminal Enforcement Actions For “No-Poach” Agreements http://www.seyfarth.com:80/publications/WC012518 Thu, 25 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Criminal prosecution of &ldquo;no-poaching/no-hire&rdquo; agreements appears imminent. Employers should investigate their hiring and compensation practices to ensure compliance with recent antitrust pronouncements.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/doj-to-announce-criminal-enforcement-actions-for-no-poach-agreements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS012518 DOJ to Announce Criminal Enforcement Actions for “No-Poach” Agreements http://www.seyfarth.com:80/publications/TS012518 Thu, 25 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Criminal prosecution of &ldquo;no-poaching/no-hire&rdquo; agreements appears imminent. Employers should investigate their hiring and compensation practices to ensure compliance with recent antitrust pronouncements.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/01/articles/trade-secrets/doj-to-announce-criminal-enforcement-actions-for-no-poach-agreements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM012518-LIT Supreme Court to Decide Whether Crime Victims Are Entitled to Mandatory Reimbursement of Internal Investigations Costs http://www.seyfarth.com:80/publications/OMM012518-LIT Thu, 25 Jan 2018 00:00:00 -0500 <div> On January 12, 2018, the United States Supreme Court granted certiorari in <em>Lagos v. United States</em>, No. 16-20146 (2018), which presents the question of whether victims (including corporate victims) are entitled to have their internal investigatory costs reimbursed by defendants under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. &sect; 3663A. This issue has divided the circuit courts for years. The Fifth Circuit and five other federal courts of appeals have concluded that these costs, including fees paid by victims to outside counsel and forensic experts, constitute &ldquo;other expenses incurred during participation in the investigation or prosecution of the offense&rdquo; within the meaning of the MVRA. The D.C. Circuit, meanwhile, has determined that the term &ldquo;investigation&rdquo; in the statute refers to the actual government investigation rather than an internal investigation, and that a company cannot be said to have &ldquo;participated&rdquo; in such an investigation through activities and investigative costs that took place prior to the matter being referred to the government for prosecution.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> In granting certiorari, the Supreme Court is poised to issue a decision that will have a significant impact on how (and when) corporations investigate potential crimes and report them to the government. If the Court sides with the D.C. Circuit, it will create bottom-line incentives for encouraging early reporting of crimes to the government&mdash;incentives above and beyond those created by the Department of Justice (and its sister agencies) and their policies. If the Court adopts the approach favored by the other circuits, it will give companies greater certainty that their investigative costs will be recoverable (absent a judgment-proof defendant) regardless of how and when the investigation was initiated. Either way, this is certainly a case to watch for corporations everywhere.&nbsp;</div> <div> &nbsp;</div> <div> For the full version of a related article that comprehensively examines the certiorari grant discussed in this Alert and that originally appeared in Bloomberg Law White Collar Crime Report, 13 WCR 57 (Jan. 19, 2018), please <a href="http://www.seyfarth.com/dir_docs/publications/BoutrosSchleppenbachPublishWCR.pdf">click here</a>.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA012518-LE DOJ To Announce Criminal Enforcement Actions For “No-Poach” Agreements http://www.seyfarth.com:80/publications/MA012518-LE Thu, 25 Jan 2018 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>Criminal prosecution of &ldquo;no-poaching/no-hire&rdquo; agreements appears imminent.&nbsp; Employers should investigate their hiring and compensation practices to ensure compliance with recent antitrust pronouncements.</em></p> <p> <strong>Background</strong></p> <p> In October 2016, the U.S. Department of Justice (&ldquo;DOJ&rdquo;) and the Federal Trade Commission (&ldquo;FTC&rdquo;) under the Obama Administration issued a joint Antitrust Guidance for Human Resource Professionals (&ldquo;HR Guidance,&rdquo; available <a href="https://www.justice.gov/atr/file/903511/download">here</a>).&nbsp; Among other things, the HR Guidance announced that so-called &ldquo;naked&rdquo; agreements among employers not to recruit employees or not to compete on employee compensation would be considered <em>per se</em> violations of the antitrust laws and prosecuted criminally.&nbsp;</p> <p> On September 12, 2017, at the Global Antitrust Enforcement Symposium, then Acting Assistant Attorney General Andrew Finch reiterated that such &ldquo;naked&rdquo; agreements may be prosecuted criminally.&nbsp; Thus, although the Trump Administration has withdrawn other Obama-era employment law policy statements (<em>see, e.g</em>., News Release: US Secretary Of Labor Withdraws Joint Employment, Independent Contractor Informal Guidance, available <a href="https://www.dol.gov/newsroom/releases/opa/opa20170607">here</a>), it has adopted the Obama Administration&rsquo;s position as stated in the HR Guidance.</p> <p> <strong>Most Recent Developments</strong></p> <p> According to reported statements by current Assistant Attorney General Makan Delrahim, Finch&rsquo;s comments were not empty words.&nbsp; On January 19, 2018, at a conference sponsored by the Antitrust Research Foundation at George Mason University, Delrahim announced that DOJ had been &ldquo;very active&rdquo; in reviewing potential violations of the antitrust laws resulting from agreements among employers not to compete for workers (reports from that conference are available <a href="https://biglawbusiness.com/justice-dept-is-going-after-no-poach-agreements/">here</a> and <a href="https://www.law360.com/competition/articles/1003788/delrahim-says-criminal-no-poach-cases-are-in-the-works">here</a>).&nbsp;</p> <p> Reportedly, Delrahim went on to say that &ldquo;[i]n the coming couple of months you will see some announcements, and to be honest with you, I&rsquo;ve been shocked about how many of these there are, but they&rsquo;re real.&rdquo;&nbsp; According to Delrahim, if the conduct occurred or continued after issuance of the HR Guidance, the DOJ will treat those agreements as criminal.</p> <p> <strong>Antitrust Legality Of &ldquo;No-Poaching&rdquo; Agreements</strong></p> <p> &ldquo;No-poaching&rdquo; agreements are agreements between or among two or more employers not to solicit each other&rsquo;s employees.&nbsp; They are similar to, but slightly different from, &ldquo;no-hire&rdquo; agreements (sometimes referred to as &ldquo;no-switching&rdquo; agreements).&nbsp; A &ldquo;no-poaching&rdquo; agreement merely prohibits the solicitation of employees; if an employee applies without solicitation, there is no prohibition on hiring that worker.&nbsp; A &ldquo;no-hire&rdquo; agreement prohibits the hiring of the worker even if he or she was not solicited.&nbsp; It appears that the DOJ considers both such agreements &ndash; if they are &ldquo;naked&rdquo; &ndash; to be <em>per se</em> unlawful and subject to criminal prosecution.</p> <p> What is a &ldquo;naked&rdquo; agreement?&nbsp; It is an agreement that stands alone.&nbsp; It is not ancillary to a larger, legitimate collaboration.&nbsp; Ancillary &ldquo;no-hire&rdquo; or &ldquo;no-poaching&rdquo; agreements do not violate the antitrust laws if they are reasonable in scope and duration and are reasonably necessary to further the interests of the legitimate collaboration.&nbsp; For example, in <em>Eichorn v. AT&amp;T Corp</em>., 248 F.3d 131, 146 (3d. Cir. 2001), the Third Circuit held that an agreement on behalf of all AT&amp;T affiliates not to hire or solicit any employees from a company (Paradyne) that it sold to Texas Pacific Group, for a period of eight months after the sale, was lawful under Section 1 of the Sherman Act.&nbsp; The Third Circuit found that the agreement was a legitimate ancillary restraint and that its primary purpose was to ensure that the purchaser could retain the skilled services of the Paradyne employees.&nbsp; It concluded that any restraint on the plaintiffs&rsquo; ability to seek employment at AT&amp;T or its affiliates was incidental to the sale of Paradyne.&nbsp;</p> <p> <strong>Employer Concerns</strong></p> <p> In spite of the publicity given to the issuance of the HR Guidance in 2016 and high-profile class action cases such as <em>In Re High-Tech Employee Antitrust Litigation</em>, No. 11-CV-02509 (&ldquo;High-Tech&rdquo;) (selected case documents available <a href="http://www.cand.uscourts.gov/lhk/hightechemployee">here</a>), human resources personnel and other executives often do not realize that the antitrust laws apply to the employment marketplace.&nbsp; Thus, many simply are not aware that an agreement among employers not to hire employees or to exchange wage information could result in a violation of the antitrust laws.&nbsp; As noted, Delrahim reportedly expressed shock at the number of potential violations DOJ is investigating even after the issuance of the HR Guidance, but this &ldquo;number&rdquo; may simply be the result of a lack of awareness and understanding by employers.</p> <p> In addition to the impending criminal cases, employers subject to an enforcement action should anticipate that civil lawsuits will follow.&nbsp; These will likely be class actions, and if a class is certified, it could expose the employers to substantial monetary liability.&nbsp; This is the pattern that occurred in the <em>High-Tech</em> consolidated cases which resulted in a settlement of $435 million&nbsp; (settlement website available <a href="http://www.hightechemployeelawsuit.com/">here</a>).</p> <p> <strong>Recommendations</strong></p> <p> Employers should consider conducting an internal investigation to ascertain whether they are currently engaging in conduct outlined by the DOJ and the FTC in the HR Guidance as potentially unlawful.&nbsp; The investigation should include investigation of potential wage fixing and wage information sharing in addition to &ldquo;no-poaching/no-hiring&rdquo; agreements.&nbsp; Employers should also make sure that they have an antitrust compliance policy in place that includes instructions on these practices.</p> <p> Seyfarth Shaw has substantial experience advising and defending employers in antitrust matters impacting the employment marketplace, such as those involving wage information sharing and no-hiring agreements.&nbsp; Seyfarth also has substantial experience in handling criminal investigations and prosecutions.&nbsp; Should you have any questions, feel free to contact one of the authors or any Seyfarth Shaw attorney with whom you work.</p> http://www.seyfarth.com:80/publications/EL012518 Webinar – Best Practices for Investigating and Addressing Sexual Harassment Complaints in the Workplace (Sign Up to Reserve Your Spot!) http://www.seyfarth.com:80/publications/EL012518 Thu, 25 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In this February 1, 2018, hot-topic webinar, we will provide a roadmap for conducting legally compliant and effective sexual harassment investigations. There is no cost to attend this program, but registration is required.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/webinar-best-practices-for-investigating-and-addressing-sexual-harassment-complaints-in-the-workplace-sign-up-to-reserve-your-spot/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/gppg012518 Former U.S. Chamber of Commerce Senior Vice President Randel Johnson Joins Seyfarth http://www.seyfarth.com:80/news/gppg012518 Thu, 25 Jan 2018 00:00:00 -0500 <p> <span style="font-size:14px;"><em>Firm Launches New Government Relations and Policy Practice Group </em></span></p> <p> <strong>Washington, DC - January 25, 2018</strong> - Randel K. Johnson, former senior vice president for Labor, Immigration, and Employee Benefits at the U.S. Chamber of Commerce, is joining Seyfarth Shaw LLP as a partner in the firm&rsquo;s Labor &amp; Employment department and will help build the firm&rsquo;s new Government Relations and Policy practice group in Washington, D.C. Joining Seyfarth with Johnson is Walter Mullon, former manager of operations for Labor, Immigration and Employee Benefits at the U.S. Chamber of Commerce. Mullon will serve as Senior Manager, Policy &amp; Government Affairs in the firm&rsquo;s Washington, D.C. office.</p> <p> For the last 20 years, Johnson has served as senior vice president at the U.S. Chamber of Commerce, where he was primarily responsible for labor, immigration, and employee benefits issues pending before Congress and the federal agencies. In this role, Johnson determined the Chamber&rsquo;s position and set strategy on a wide variety of issues, including union-driven initiatives such as card check legislation, ergonomics, and blacklisting regulations; pension funding reform and health care; civil rights and wage and hour; and comprehensive immigration reform, including visa and border policy. Having spent 10 years on Capitol Hill, Johnson regularly testified before Congress, and also served six years as an attorney with the Department of Labor.</p> <p> &ldquo;Many of us at Seyfarth have worked closely with Randy throughout his prestigious career, and his experience on Capitol Hill and longtime insights into labor policy are virtually unmatched in the industry,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &quot;He is a fierce advocate for employer issues, but one who has always shown a willingness to build bipartisan coalitions to advance legislation. We are proud to officially welcome him to the firm and we look forward to pairing his policy expertise with our top labor and employment platform.&rdquo;</p> <p> &ldquo;We are thrilled to bring Randy to the firm to help lead our new Government Relations and Policy practice group,&rdquo; said Pete Miller, chair and managing partner of Seyfarth. &ldquo;With a unique window into the most pressing business issues facing corporate America today, Randy is well positioned to guide our clients through the breakneck pace of change in Washington.&rdquo;</p> <p> Before joining the U.S. Chamber of Commerce, Johnson was labor counsel and coordinator for the U.S. House of Representatives Committee on Education and the Workforce where he was responsible for employment policy and legal issues before the committee. His work centered on legislative activity under the Occupational Safety and Health Act, the National Labor Relations Act, the Congressional Accountability Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Civil Rights Act of 1991, and the Americans with Disabilities Act of 1990. Johnson received his J.D. from the University of Maryland Francis King Carey School of Law and earned a Master of Laws in Labor Relations from the Georgetown University Law Center. He earned a graduate certificate from the Harvard Kennedy School of Government for Senior Managers in Government and is a fellow of the College of Labor and Employment Lawyers. He received his undergraduate degree from Denison University.</p> <p> &ldquo;I am grateful for my many years at the Chamber and I look forward to using the expertise I developed there to start a new practice at Seyfarth Shaw, a firm that I have long respected for its sophisticated legal expertise in employment,&rdquo; said Johnson. &ldquo;Employment issues, particularly in the area of immigration, are at a critical juncture in Washington today and I look forward to representing our clients as they face new challenges arising from government legislation on the horizon.&rdquo;</p> <p> &ldquo;Randy is a well-respected figure on the Hill, and we are excited to have him spearhead our new and developing Government Relations and Policy practice group. His keen insight into labor policy and reputation throughout the Beltway can quickly provide our clients with guidance they can&rsquo;t find anywhere else,&rdquo; said Robert Bodansky, managing partner of Seyfarth&rsquo;s Washington, D.C. office.</p> <p> In his role as manager of operations for Labor, Immigration and Employee Benefits at the U.S. Chamber of Commerce, Walter Mullon helped to coordinate the development of the Chamber&rsquo;s labor and employment policy agenda, working on issues such as the Americans with Disabilities Act, human trafficking, the new economy, joint employer, various immigration reform matters, and retirement policy initiatives related to defined contribution plans.</p> <p> <strong>Seyfarth Shaw&rsquo;s New Government Relations and Policy Practice Group </strong></p> <p> Beginning with the firm&rsquo;s efforts to help draft the Taft-Hartley Act of 1947, Seyfarth attorneys have always been central to the labor and employment policy issues that affect every aspect of employment. Continuing this tradition over the years, the firm has expanded its leadership position in public policy and built expertise across many areas of emerging risk for clients in legislative and regulatory affairs, such as labor arbitrations, pension administration, Title VII of the Civil Rights Act of 1964, immigration, FLSA, EEO, and many others.</p> <p> With the addition of Johnson and Mullon, Seyfarth has formalized this practice, and announced the launch of a new Government Relations and Policy practice group. The goal of the new practice group will be to coordinate Seyfarth Shaw&rsquo;s substantial resources to provide legal expertise to clients regarding the actions of Congress and federal, state, and local administrative agencies. Comprised of Seyfarth attorneys with government relations and policy experience, the team will develop solutions for clients and provide ongoing education and advocacy on policy issues. Specifically, the practice group will be formed to:</p> <ul> <li> Understand, communicate and educate the impact of the policy developments important to employers</li> <li> Track and influence key legislation, regulations and court rulings that impact employers</li> <li> Build coalitions with organizations and individuals who are focused on employer issues, to identify and respond to policy trends</li> <li> Provide analysis and input on legislation and other regulatory developments</li> <li> Provide testimony before Congress and government agencies</li> <li> Author written submissions on key policy issues including amicus briefs, legislative comments to agencies and others</li> <li> Publish studies and reports on important issues to clients</li> </ul> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/bitarreuters012518 Karen Bitar quoted in Reuters http://www.seyfarth.com:80/news/bitarreuters012518 Thu, 25 Jan 2018 00:00:00 -0500 <p> Karen Bitar was quoted in a January 25 story from Reuters, &quot;Victim testimony raises settlement pressure in Nassar suit,&quot; on how statutes of limitations often are the biggest impediment to lawsuits over sexual abuse from many years ago. Bitar said that there was danger in pushing such defenses. She stated that all those legal arguments may be extraordinarily valid, but you don&rsquo;t want to give the impression that you got out on a simple legal technicality. You can read the <a href="https://www.reuters.com/article/us-gymnastics-usa-nassar-lawsuits-analys/victim-testimony-raises-settlement-pressure-in-nassar-suit-idUSKBN1FE31S">full article here</a>.</p> http://www.seyfarth.com:80/news/millerbbj012518 Barry Miller quoted in the Boston Business Journal http://www.seyfarth.com:80/news/millerbbj012518 Thu, 25 Jan 2018 00:00:00 -0500 <p> Barry Miller was quoted in a January 25 story from the Boston Business Journal, &quot;#MeToo&#39;s darkest side: Dialogue about workplace sexual harassment overlooks threat of physical assault or rape.&quot; Miller said that typical best practice for companies responding to rape accusations includes keeping the investigations short, keeping accusers up to date on progress, and putting the accused employee on leave.</p> http://www.seyfarth.com:80/news/liesbi012418 Mark Lies quoted in Business Insurance http://www.seyfarth.com:80/news/liesbi012418 Wed, 24 Jan 2018 00:00:00 -0500 <p> Mark Lies was quoted in a January 24 story from Business Insurance, &quot;California moving forward with broad workplace violence, marijuana rules,&quot; on how the California Division of Occupational Safety and Health is moving to create a new safety standard to prevent and handle workplace violence for general industries. Lies said that other states are looking at similar measures given statistics that show workplace violence to be a growing safety concern for employers. You can read the <a href="http://www.businessinsurance.com/article/20180124/NEWS08/912318703/California-moving-forward-with-broad-workplace-violence-marijuana-rules">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinonlj012418 Alex Passantino quoted in the National Law Journal http://www.seyfarth.com:80/news/passantinonlj012418 Wed, 24 Jan 2018 00:00:00 -0500 <p> Alex Passantino was quoted in a Janaury 24 story from the National Law Journal, &quot;The #MeToo Implications of the Supreme Court&#39;s Workplace Class-Action Case.&quot; On a panel hosted by Bloomberg Law, Passantino said that the pending Supreme Court case is extremely important to employers, particularly as an effort for certainty into the process.</p> http://www.seyfarth.com:80/news/morashrm012418 Jennifer Mora quoted in SHRM http://www.seyfarth.com:80/news/morashrm012418 Wed, 24 Jan 2018 00:00:00 -0500 <p> Jennifer Mora was quoted in a January 24 story from SHRM, &quot;Opioid Testing By Employers Is Becoming More Common.&quot; Mora said that, currently, most employers do not test for opioid use. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/opioid-testing.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP012418 Defamation: Containing Fire and Fury in the Deep Blue State http://www.seyfarth.com:80/publications/CP012418 Wed, 24 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: As Californians grow tragically familiar with wildfire, California employers face another threat of fire in the form of defamation lawsuits. The rapidly burning #MeToo anti-harassment movement, and constant talk in the news about peoples&rsquo; reputations being destroyed, has rained down fire and fury for California employers forced to consider possible defamation lawsuits by current or former employees.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/01/24/defamation-containing-fire-and-fury-in-the-deep-blue-state/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC012418 Nixing Nationwide Class Action Claims: Federal Court Ruling Provides Blueprint For Businesses http://www.seyfarth.com:80/publications/WC012418 Wed, 24 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In a nationwide consumer fraud class action involving false labeling claims under various state laws, a federal district court in Illinois granted the company&rsquo;s motion to dismiss claims relative to a putative national class of plaintiffs, holding it did not have jurisdiction over the claims of the non-resident class of plaintiffs based on the recent U.S. Supreme Court opinion in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (2017). For businesses and employers facing nationwide class action lawsuits, this ruling is instructive in regards to strategies to fracture and minimize the class size, and limit potential liability.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/nixing-nationwide-class-action-claims-federal-court-ruling-provides-blueprint-for-businesses/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD012318 4 Key Trends In Workplace Class Action Litigation For 2017: #4 U.S. Supreme Court http://www.seyfarth.com:80/publications/CCD012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The fourth and final key trend from our 14th Annual Workplace Class Action Litigation Report involves rulings by the U.S. Supreme Court. Over the past few years, the country&rsquo;s highest court has issued a number of rulings that impacted the prosecution and defense of class actions in significant ways. Today, we provide readers with an outline of the most important workplace rulings issued by the Supreme Court in 2017, as well as which upcoming decisions employers should watch for in 2018. Read the full breakdown below!<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/01/4-key-trends-in-workplace-class-action-litigation-for-2017-4-u-s-supreme-court/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM012318-LE Spokeo v. Robins: The U.S. Supreme Court Declines An Encore Performance http://www.seyfarth.com:80/publications/OMM012318-LE Tue, 23 Jan 2018 00:00:00 -0500 <p class="BodySingle"> <strong><i>Seyfarth Synopsis</i></strong>: <em>In deciding to deny certiorari to review Spokeo, Inc. v. Robins, No. 17-806 (U.S. 2017), the U.S. Supreme Court has declined to reconsider the standing principles it announced in its landmark 2016 Spokeo opinion, which has led to &ldquo;wide confusion&rdquo; among the lower courts regarding what is a sufficient concrete harm under Article III to establish standing for statutory violations.</em></p> <p class="BodySingle"> On January 22, 2018, the U.S. Supreme Court declined to grant <i>certiorari</i> in <i>Spokeo, Inc. v. Robins</i>, No. 17-806 (U.S. 2017), which we have been watching closely for its potential implications on the future of workplace class action litigation.&nbsp; &nbsp; &nbsp;</p> <p class="BodySingle"> By way of brief background, Plaintiff Thomas Robins, alleged that Spokeo, an internet people search engine, reported inaccurate information about him regarding his marital status and education, among other things. Plaintiff alleged that Spokeo violated the federal Fair Credit Reporting Act (&ldquo;FCRA&rdquo;) by failing to &ldquo;follow reasonable procedures to assure maximum possible accuracy,&rdquo; and that the dissemination of false information could negatively affect his future employment prospects.</p> <p class="BodySingle"> While the district court initially found that Plaintiff did not have standing, the Ninth Circuit later reversed. Spokeo then appealed to the U.S. Supreme Court, which granted <i>certiorari</i> and ultimately reversed and remanded the matter back to the Ninth Circuit for further consideration. We have previously covered the U.S. Supreme Court&rsquo;s grant of <i>certiorari</i> and its oral argument <a href="http://www.seyfarth.com/publications/WC031715">here</a>, <a href="http://www.seyfarth.com/publications/WC042715">here</a>, <a href="http://www.seyfarth.com/publications/OMM042715-LE">here</a>, <a href="http://www.seyfarth.com/publications/EL081115">here</a>, <a href="http://www.seyfarth.com/publications/El103015">here</a>, and <a href="http://www.seyfarth.com/publications/WC110215">here</a>. &nbsp;In <i>Spokeo I</i>, the Supreme Court laid out what qualifies as a tangible or intangible concrete injury for standing purposes and remanded the dispute to the Ninth Circuit to apply the appropriate concreteness standard.&nbsp; We have previously analyzed the U.S. Supreme Court&rsquo;s ruling in <i>Spokeo I</i> <a href="http://www.seyfarth.com/publications/MA051616-LE">here</a>.</p> <p class="BodySingle"> On remand, the Ninth Circuit held that Plaintiff alleged a sufficient concrete harm. The Ninth Circuit found that an intangible harm might constitute a concrete harm under a two-part test that considers whether the statute at issue was established to protect concrete interests, as opposed to procedural rights, and whether the alleged statutory violation actually harms or presents a material risk of harm to such concrete interests. Under this approach, the Ninth Circuit found that that the FCRA protects against the dissemination of false information and that the inaccuracies in this matter were not &ldquo;mere technical violations,&rdquo; but posed a sincere risk of harm.&nbsp; We have discussed the Ninth Circuit&rsquo;s ruling in <i>Spokeo II</i> <a href="http://www.seyfarth.com/publications/wc081617">here</a> and <a href="http://www.seyfarth.com/publications/CCD102417">here</a>.</p> <p class="BodySingle"> Spokeo immediately filed a second petition for <i>certiorari</i> with the U.S. Supreme Court, challenging the Ninth Circuit&rsquo;s<i> Spokeo II</i> ruling.&nbsp; Spokeo argued that the Ninth Circuit wrongly applied standing principles, and that the Supreme Court must resolve a growing confusion among the lower courts since the Supreme Court&rsquo;s initial ruling in <i>Spokeo I</i>.&nbsp; Despite the Ninth Circuit&rsquo;s expansive ruling and the notable divergence in the lower courts, the Supreme Court declined <i>certiorari</i>. We will continue to monitor how <i>Spokeo I</i> influences workplace class action litigation.&nbsp; &nbsp; &nbsp;&nbsp;<o:p></o:p></p> http://www.seyfarth.com:80/publications/EL012318 Ninth Circuit Seeks Guidance on Meal and Rest Periods for Ambulance Attendants http://www.seyfarth.com:80/publications/EL012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Do ambulance drivers working twenty-four hour shifts have to be available all twenty-four hours, even when they&rsquo;re eating or resting? The Ninth Circuit wants the California Supreme Court&rsquo;s opinion.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/ninth-circuit-seeks-guidance-on-meal-and-rest-periods-for-ambulance-attendants/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC012318 4 Key Trends In Workplace Class Action Litigation For 2017: #4 U.S. Supreme Court http://www.seyfarth.com:80/publications/WC012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The fourth and final key trend from our 14th Annual Workplace Class Action Litigation Report involves rulings by the U.S. Supreme Court. Over the past few years, the country&rsquo;s highest court has issued a number of rulings that impacted the prosecution and defense of class actions in significant ways. Today, we provide readers with an outline of the most important workplace rulings issued by the Supreme Court in 2017, as well as which upcoming decisions employers should watch for in 2018. Read the full breakdown below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/4-key-trends-in-workplace-class-action-litigation-for-2017-4-u-s-supreme-court/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO012318 Federal Circuit Opens Door for PTAB Institution Decision Appeals http://www.seyfarth.com:80/publications/BIO012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> The Federal Circuit on Wednesday reversed Court precedent and long held belief that inter partes review (&ldquo;IPR&rdquo;) institution decisions were categorically non-reviewable. The Court, sitting en banc, held that the issue of whether a petitioner is time-barred from filing an IPR petition under 35 U.S.C. &sect; 315(b) is in fact reviewable.[i]<br /> <br /> <a href="https://www.bioloquitur.com/federal-circuit-opens-door-ptab-institution-decision-appeals/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/partnerpromotions012318 Seyfarth Promotes 11 as Partners http://www.seyfarth.com:80/news/partnerpromotions012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> CHICAGO (January 23, 2018) &mdash; Seyfarth Shaw LLP is pleased to announce today the promotion of 11 of the firm&rsquo;s lawyers to partners across seven offices and five practice departments, effective January 1, 2018.</p> <p> The following have been promoted to partner:&nbsp;</p> <p> &nbsp;</p> <p> <strong>Corporate&nbsp;</strong></p> <p> Chris DeMeo - Houston</p> <p> <strong>International </strong></p> <p> John Tomaszewski - Houston</p> <p> <strong>Labor &amp; Employment </strong></p> <p> Michelle Gergerian - Boston</p> <p> Kyllan Kershaw - Atlanta</p> <p> Eric Lloyd - San Francisco</p> <p> Michael Wahlander - San Francisco</p> <p> Howard Wexler - New York</p> <p> <strong>Litigation </strong></p> <p> Kristine Argentine - Chicago</p> <p> Joseph Escarez - Los Angeles</p> <p> Dawn Mertineit - Boston</p> <p> <strong>Real Estate </strong></p> <p> Tobi Pinsky - Chicago&nbsp;</p> <p> &nbsp;</p> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/wcarhr012318 Seyfarth's Workplace Class Action Report profiled in HR.com http://www.seyfarth.com:80/news/wcarhr012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 23 story from HR.com, &quot;Workplace Settlements Explode to All-Time High.&quot; The monetary value of workplace class action settlements skyrocketed in 2017. You can read the <a href="https://www.hr.com/en/app/blog/2018/01/workplace-settlements-explode-to-all-time-high_jcrhj4ff.html">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellilaw360012318 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparellilaw360012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> Angelo Paparelli was quoted in a January 23 story from Law360, &quot;4 Ways GCs Can Prepare For Potential Worksite Raids.&quot; Paparelli said that if a GC&#39;s organization has previously been the subject of an inspection, understand it could be in the crosshairs of federal enforcement efforts and proceed with caution.</p> http://www.seyfarth.com:80/news/vulegalnewsline012318 Minh Vu quoted in Legal Newsline http://www.seyfarth.com:80/news/vulegalnewsline012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> Minh Vu was quoted in a January 23 story from Legal Newsline, &quot;DOJ punts on rulemaking, likely boosting ADA lawsuits and forcing judges to regulate,&quot; on how the Department of Justice has withdrawn proposed rules for accessible websites of public accommodations and state and local governments, in addition to non-fixed equipment and furnishings used in public places. Vu said that the absence of regulations means that the law in this area will be created over the next several years through a patchwork of judicial decisions. You can read the <a href="https://legalnewsline.com/stories/511313337-doj-punts-on-rulemaking-likely-boosting-ada-lawsuits-and-forcing-judges-to-regulate">full article here</a>.</p> http://www.seyfarth.com:80/news/weissshrm012318 Philippe Weiss quoted in SHRM http://www.seyfarth.com:80/news/weissshrm012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> Philippe Weiss was quoted in a January 23 story from SHRM, &quot;As &lsquo;Chief of Fun,&rsquo; HR May Struggle to Fight Harassment,&quot; on how managers should share in the role of boosting morale. Weiss said that, looking at today&#39;s fraught climate, a high degree of HR professionalism and proper comportment is key. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/chief-of-fun-harassment-investigations.aspx?utm_source=dlvr.it&amp;utm_medium=linkedin">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonpropublica012318 Marshall Babson quoted in ProPublica http://www.seyfarth.com:80/news/babsonpropublica012318 Tue, 23 Jan 2018 00:00:00 -0500 <p> Marshall Babson was quoted in a January 23 story from ProPublica, &quot;Trump NLRB Appointee Finds a Way Around Conflict of Interest Rules,&quot; on how William Emanuel has recused himself from ruling on disputes involving his former law firm&rsquo;s clients. Babson said that even when a legal issue arises in a case where an NLRB member has a conflict, you&rsquo;re not precluded from deciding a similar issue in another case that you&rsquo;re not recused from. You can read the <a href="https://www.propublica.org/article/trump-nlrb-appointee-finds-a-way-around-conflict-of-interest-rules">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellisacbee012218 Angelo Paparelli quoted in the Sacramento Bee http://www.seyfarth.com:80/news/paparellisacbee012218 Mon, 22 Jan 2018 00:00:00 -0500 <p> Angelo Paparelli was quoted in a January 22 story from the Sacramento Bee, &quot;California employers caught between feds and state on immigration,&quot; on the new Immigrant Worker Protection Act (AB 450). Paparelli said that the new California law creates a dilemma for employers. You can read the <a href="http://www.sacbee.com/news/local/article196066869.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/ERISA012218 Tenth Circuit Answers Questions Left Open Following Supreme Court’s Advocate Health Network v. Stapleton Decision, Significantly Diminishing Plaintiffs’ Ability to Challenge a Church-Affiliated Healthcare Organization’s Retirement Plan’s Church Plan Status Under ERISA http://www.seyfarth.com:80/publications/ERISA012218 Mon, 22 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In Medina v. Catholic Health Initiatives, &mdash; F.3d &mdash;, 2017 WL 6459961 (10th Cir. Dec. 19, 2017), the Tenth Circuit held that a retirement plan sponsored by Catholic Health Initiatives (&ldquo;CHI&rdquo;), a church-affiliated healthcare organization, is a &ldquo;church plan&rdquo; under ERISA. This decision strengthens the litigation positions of religiously-affiliated healthcare systems who are facing similar lawsuits across the country and gives other courts a solid framework to analyze the relevant statutory provisions.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/01/22/tenth-circuit-answers-questions-left-open-following-supreme-courts-advocate-health-network-v-stapleton-decision-significantly-diminishing-plaintiffs-ability-to-challenge-a-church-a/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/2018-RE-Survey Seyfarth’s 2018 Real Estate Market Sentiment Survey http://www.seyfarth.com:80/publications/2018-RE-Survey Mon, 22 Jan 2018 00:00:00 -0500 <div> As we begin the new year, Seyfarth Shaw&rsquo;s Real Estate practice would like to know your top concerns for the market in 2018 and invites you to take our short five-minute survey.&nbsp; In Seyfarth&rsquo;s 2018 Real Estate Market Sentiment Survey, commercial real estate executives from all sectors are being asked about their sentiments surrounding tax reform, investment in infrastructure, ride-sharing, and cryptocurrency, among others.</div> <div> &nbsp;</div> <div> The survey is confidential and any responses you provide will be used only in combination with those of other survey responses.</div> <div> &nbsp;</div> <div> <strong><a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F76819D6E70AEDC1D181ADD32F9519D5BE7A95FEA738E1676" target="_blank">Take the survey</a></strong></div> <div> &nbsp;</div> <div> We look forward to sharing the results, which will be published later in the first quarter.</div> http://www.seyfarth.com:80/publications/WC012218 4 Key Trends In Workplace Class Action Litigation For 2017: #3 Governmental Enforcement Litigation Video http://www.seyfarth.com:80/publications/WC012218 Mon, 22 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Our latest blog gave readers a detailed breakdown of a busy year on the litigation front at the U.S. Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;) and Department of Labor (&ldquo;DOL&rdquo;). Notably, our 2018 Workplace Class Action Report highlighted a doubling in EEOC-initiated lawsuits despite the incorporation of a pro-business Trump Administration. In today&rsquo;s blog, author Jerry Maatman explains this important trend, and provides his analysis on the direction of government-initiated litigation in 2018. Watch the video in the link below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/4-key-trends-in-workplace-class-action-litigation-for-2017-3-governmental-enforcement-litigation-video/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/vuccr012118 Minh Vu quoted in the Cook County Record http://www.seyfarth.com:80/news/vuccr012118 Sun, 21 Jan 2018 00:00:00 -0500 <p> Minh Vu was quoted in a January 21 story from the Cook County Record, &quot;With regulation in flux, litigation over website accessibility for the blind, other ADA rules, could also remain unsettled,&quot; on the Trump administration&#39;s decision to stop drafting new regulations on the accessibility of websites, furniture and non-fixed equipment and how this area of law could remain open for a while, as the courts work through the questions in a patchwork of judicial decisions. Vu said that those decisions will very likely be inconsistent across judicial circuits on some key issues. You can read the <a href="https://cookcountyrecord.com/stories/511317402-with-regulation-in-flux-litigation-over-website-accessibility-for-the-blind-other-ada-rules-could-also-remain-unsettled">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA012018-LE Federal Shutdown Poses Risk for Private Employers With Federal Contracts, Especially in California http://www.seyfarth.com:80/publications/MA012018-LE Sat, 20 Jan 2018 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>: With the federal government shut down as of this morning, private employers &ndash; federal contractors especially &ndash; are considering their options. No matter who or what is responsible for the shutdown happening, it poses two overarching issues for private employers who may need to stop work on federal contracts. Both relate to some form of furlough &ndash; a temporary layoff that may occur for days or weeks. The first is whether such action by private employers risks jeopardizing the exempt status of employees properly classified as exempt, thereby triggering potential back pay and overtime obligations. Because that risk arises under the federal Fair Labor Standards Act (FLSA) plus various state and local laws, it&rsquo;s a risk faced by federal contractors everywhere. The second risk, like so many faced by private employers, is unique to California. Under a recent court case binding across California, even short-term layoffs must be preceded by 60 days&rsquo; notice. Absent that notice, the employer owes back pay and benefits for whatever part of that period the employer fails to provide a California-compliant notice.</em></p> <p> <u><strong>Wage and Hour Issues</strong></u></p> <p> <strong>Reductions in Wages and Salaries</strong></p> <p> Across-the-board wage and salary reductions are one possible way to reduce operating costs without employee layoffs. Employers can generally reduce wages prospectively, provided the employee is not working under a collective bargaining agreement or an employment contract governing pay. Those circumstances aside, unilateral reductions are permissible under the Fair Labor Standards Act (FLSA) plus state wage and hour laws, because those laws don&rsquo;t protect an employee&#39;s hourly rate above minimum wage. (For government contractors subject to a prevailing wage law including the Service Contract Act, any decrease in employee pay must stay at or above the applicable prevailing wage.) Employers must exercise caution in reducing exempt employees&rsquo; pay, however. Under the FLSA, the minimum salary for most exempt employees remains $455 per week; some state laws impose a much higher threshold (e.g., $880/week in California). Reducing salary below these amounts will result in the loss of exempt status for that employee and could create overtime obligations.</p> <p> Even reducing salary to an amount above the required minimum requires care. If salary reductions occur on a week-to-week or even month-to-month basis, an employer may lose the exemption if it is determined that reductions were intended as short-term fixes intended to evade the salary-basis requirement. In order to ensure continued exempt status, salary reductions should be prospective and applied over the long-term &ndash; an impractical or otherwise undesirable prospect for employers in a tight labor market facing what may be a very short-term federal shutdown.</p> <p> In addition, a few states require advance notice for reductions to wages or salaries. (The FLSA does not.) &nbsp;For example, employers in Iowa must provide written notice at least one pay period before implementing changes. North Carolina employers must notify employees at least 24 hours before any wage changes. Even in states where advance notice is not legally required, it is a good practice from an employee relations standpoint. That makes an indeterminate shutdown all the more frustrating for federal contractors and others impacted by federal shutdown.</p> <p> <strong>Furloughs/Reduced Schedules/Temporary Shutdowns</strong></p> <p> Rather than simply reducing pay, many employers may consider reducing an employee&rsquo;s hours. Hours reductions can be achieved through various mechanisms, including furloughs, reduced hours schedules, and temporary plant shutdowns. In most jurisdictions, such hours reductions are legally safe under the FLSA and state law as to non-exempt (hourly) employees. Regardless of what the decrease in hours/compensation is called, however, employers should consider the following factors before proceeding:</p> <ul> <li> First, employers should comply with notice requirements discussed above. The fact that a decrease in pay is tied to a decrease in hours will not necessarily change an employer&#39;s obligation to negotiate or provide notice.</li> <li> Second, employers must exercise caution if certain employees will be &quot;on call&quot; for all or part of their non-work hours. Under the FLSA, &quot;on call&quot; employees may still be deemed to be &quot;working&quot;; if so those hours must be compensated (and will trigger an overtime obligation if total hours for the workweek exceed 40). Similarly, employees who perform even some of their normal duties during a furlough day &ndash; even if those duties are performed at home &ndash; are &quot;working&quot; while performing those duties.</li> <li> Third, &quot;reporting pay&quot; or &quot;show-up pay&quot; create additional complications for non-exempt employees. Under some state laws, employees who report for work but are sent home due to lack of work must be paid a minimum amount for their time. In New York, employees who report for work on any day must be paid the basic minimum hourly wage for at least 4 hours, or the number of hours in the regularly scheduled shift, whichever is less. Similarly, if a California employee is required to and does report for work but works less than half of his/her usual day&#39;s work, the employee must be paid for half the usual day&#39;s work at the employee&#39;s regular rate.</li> </ul> <p> Reduced schedules or compensation for exempt employees is more complex. In brief, partial week furlough of exempt employees may jeopardize their exempt status. Under the FLSA, exempt employees must receive their full salary (above $455 per week) in any workweek in which the employee performs any services. As noted above, under no circumstances may an exempt employee&#39;s salary fall below the minimum. Exempt employee generally may not have their salary reduced due to an employer&#39;s failure to provide work. For example, if an employer decides to close a plant one Friday, the exempt employee must receive full salary for the week, even if she does not perform any work on one or more weekdays during the week.</p> <p> The Department of Labor&#39;s Wage and Hour Division has approved several mechanisms for employers to address short-term staffing issues for exempt employees. For example, an employer can substitute or reduce an exempt employee&#39;s accrued leave for the time an employee is absent from work, even if it is less than a full day and even if the absence is directed by the employer because of lack of work, without affecting the employee&rsquo;s salary basis status. Alternatively, the employer can reduce an exempt employee&#39;s salary and substitute paid leave so long as the employee still receives pay equal to his/her regular salary in any week during which any work is performed. This is true even if the employee has no leave remaining (and such reduction puts the employee in a &quot;negative leave&quot; situation). This approach does not reduce payroll costs but can help promote an employer&#39;s overall financial condition by eliminating some accrued liability in the form of paid leave from the employer&#39;s books. Employers can also furlough exempt employees for an entire week and not pay any salary. Failure to pay salary for a workweek in which an exempt employee performs no work does not jeopardize salary basis status.</p> <p> Employers should be cautious in these situations, however, because &ndash; as with non-exempt employees &ndash; exempt employees may often perform &quot;work&quot; while away from the normal work location, including sending or reading e-mails or participating in phone calls, which may require payment of the weekly salary under FLSA. In addition, some state rules limit an employer&#39;s ability to reduce exempt employee&#39;s salary and/or schedule in the ways discussed here. For example, Washington prohibits deductions due to lack of work for any amount of time less than a full week.</p> <p> <u><strong>California WARN Act Concerns</strong></u></p> <p> <em>Under the federal WARN ACT, a temporary layoff of six (6) months or less is not an &ldquo;employment loss&rdquo; triggering notice requirements. However, according to a recent California Court of Appeal decision, California&rsquo;s WARN Act (Cal-WARN) requires sixty days&rsquo; notice of a wide range of short-term layoffs (such as furloughs). Failure to provide that notice triggers liability for back pay, lost benefits, medical expenses, civil penalties, and attorneys&rsquo; fees. International Brotherhood of Boilermakers v. NASSCO Holdings, Inc. (Cal. Ct. App. Nov. 30, 2017).</em></p> <p> <strong>The <em>NASSCO</em> Decision</strong></p> <p> NASSCO Holdings needed to temporarily reduce its workforce &ndash; much of it represented by the Boilermakers Union &ndash; because of a lack of work. NASSCO ultimately laid off ninety employees for four to five weeks. During this furlough, employees did not receive wages, did not earn vacation pay, and did not accrue service credit for pension purposes. NASSCO gave no prior notice of the furlough.&nbsp;The Boilermakers Union and three individual employees sued NASSCO under Cal-WARN for failing to provide a 60-day notice of the furlough. The plaintiffs sought back pay and millions of dollars in civil penalties. When the parties cross-moved for summary judgment, the trial court ruled against NASSCO, holding that the laid-off employees were entitled to back pay and lost pension benefits, but not to civil penalties. &nbsp;</p> <p> NASSCO argued on appeal that the furlough was not a &ldquo;separation from a position&rdquo; that triggered Cal-WARN&rsquo;s 60-day notice obligation. The Court of Appeal disagreed. Looking to the plain meaning of &ldquo;separation,&rdquo; the Court of Appeal noted that separation could be &ldquo;an action of moving apart&rdquo; that need not be either &ldquo;permanent&rdquo; or &ldquo;temporary.&rdquo; Thus, being &ldquo;separated <em>from a position</em>&rdquo; does not mean that the employment relationship must entirely end. Instead, Cal-WARN notice requirements apply to &ldquo;a temporary job loss, even if some form of the employment relationship continues and the employees are given a return date.&rdquo;</p> <p> The Court of Appeal was unwilling to specify how long a furlough must be to constitute a &ldquo;separation&rdquo; that would trigger Cal-WARN. Rather, the court advised more generally that Cal-WARN applies to temporary layoffs &ldquo;where advance notice would provide the workers time to plan and prepare for their sudden wage loss,&rdquo; even if workers subject to a temporary layoff would not need training for a new job. In reaching this conclusion, the Court of Appeal underscored the California Legislature&rsquo;s &ldquo;judgment that California employers, not California employees, should bear the risk of surprise resulting from an unexpected layoff,&rdquo; and that Cal-WARN is a remedial statute akin to &ldquo;a wage workers&rsquo; equivalent of business interruption insurance.&rdquo; In so holding, the court rejected the employer&rsquo;s argument that pointed to language in the statute deeming employers &ldquo;liable to each employee entitled to notice who lost his or her employment.&rdquo; It concluded that this language neither triggers liability nor affects the definition of &ldquo;mass layoff,&rdquo; which is defined elsewhere in the statute. While the Court of Appeal indicated that the <em>de minimis</em> doctrine would keep extremely short furloughs from triggering Cal-WARN, the Court of Appeal did not specify a threshold.</p> <p> <strong>What <em>NASSCO</em> Means for Employers Contemplating Furlough</strong></p> <p> Not every workforce reduction or temporary layoff is covered by Cal-WARN. Among other triggers, there must be a &ldquo;mass layoff,&rdquo; which includes layoffs of at least fifty employees over a rolling thirty-day period. Additionally, those layoffs must be due to a &ldquo;lack of funds or lack of work.&rdquo; Further, the layoffs must occur at a &ldquo;covered establishment,&rdquo; which means an industrial or commercial facility that has employed seventy-five or more people within the preceding twelve months.&nbsp;</p> <p> Unfortunately, all of those conditions likely apply to defense contractors and other large employers contemplating furlough in California during a federal government shutdown. Under those conditions, <em>NASSCO</em> says the employer may need to provide a 60-day WARN-compliant notice for planned layoffs of any length, particularly where income loss equivalent to the kind of furlough in <em>NASSCO</em> is a possibility. While the Court of Appeal&rsquo;s reference to a <em>de minimis</em> exception suggests that furloughs lasting just a few days may not trigger the statute, the decision fails to identify the tipping point. In any event, the decision implies that the employer will get little leeway absent a compelling reason why it could not have provided compliant notice.&nbsp;Whether loss of funds occasioned by a federal shutdown would excuse the duty to provide notice under Cal-WARN is unexplored territory &ndash; rarely firm ground for employers in California.&nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/RD011918-CORP Sexual Harassment Legal Settlements: What Employers Need to Know About the New Tax Act http://www.seyfarth.com:80/publications/RD011918-CORP Fri, 19 Jan 2018 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis</em>: </strong><em>The new Tax Act prohibits employers from deducting payments to individuals alleging sexual harassment or sexual abuse if the settlement or payment requires the Claimant to execute a nondisclosure agreement.</em></p> <p> The #MeToo movement continues to have a significant impact on all employers, forcing human resource professionals to review their protocols for preventing, reporting and investigating sexual harassment claims. Now, Congress has passed&nbsp; the Tax Cuts and Jobs Act (the &ldquo;Tax Act&rdquo;), which may make sexual harassment settlements more expensive for employers who seek to keep these settlements private.</p> <p> Under current tax law, an employer may deduct the ordinary and necessary expenses it incurs in carrying on its trade or business.&nbsp; This deduction generally includes legal settlements or payments to a plaintiff (including plaintiff&rsquo;s attorney fees) and any legal fees the employer has incurred for its defense.</p> <p> There has been an outcry by high profile victims&rsquo; advocates who have characterized confidentiality payments in settlements as &ldquo;hush money&rdquo; arguing that they mask inappropriate corporate conduct.&nbsp; In response, Congress included a provision in the Tax Act which is aimed directly at deterring employers from using nondisclosure agreements in sexual harassment settlements.&nbsp; Pursuant to new Internal Revenue Code Section 162(q), the government will no longer permit employers to deduct &nbsp;&nbsp;&ldquo;any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement&rdquo; or &ldquo;attorney&rsquo;s fees related to such a settlement or payment.&rdquo;</p> <p> <strong>Implications and Challenges</strong></p> <p> New Section 162(q) has important implications for employers but there remain a number of questions regarding its application.&nbsp;&nbsp; We expect the IRS to issue guidance in the future which will clarify some of the current ambiguities, but employers must devise a plan now for new legal settlements since Section 162(q) applies to payments made after December 22, 2017.</p> <p> <strong>First</strong>, the price for confidentiality just increased.&nbsp; When an employer settling a sexual harassment claim includes a nondisclosure provision in the agreement, it will be unable to deduct any payments&nbsp; related to the matter, including the settlement payment and attorney&rsquo;s fees. This may backfire on the Plaintiff&rsquo;s Bar, because there are certainly&nbsp; instances where the plaintiff desires confidentiality for a variety of reasons, including that publication of the agreement may make it more difficult for the plaintiff to find another job.&nbsp; In cases where the plaintiff desires confidentiality more than the employer, the employer may use this leverage to lower its settlement offer, essentially charging the plaintiff for the additional cost of confidentiality.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p> <strong>Second</strong>, the broad language of the statute makes it uncertain whether the IRS will consider payments made pursuant to a confidential agreement that does not settle sexual harassment claims but which contains a broad waiver of claims, including for sexual harassment,&nbsp; as &ldquo;related to sexual harassment&rdquo; and, thus, preclude the deduction. Unfortunately, we do not know the answer yet.&nbsp; Until this issue is clarified, employers may want to consider adding a provision to their settlement agreements by which the parties acknowledge that even though the claimant is waiving a broad range of potential claims, there was no claim of sexual harassment or sexual abuse and none of the settlement payments are related to such claims.</p> <p> It is also unclear exactly which deductions the IRS is precluding in connection with the confidential settlement of a sexual harassment claim.&nbsp; The statute is clearly intended to apply to the settlement payment itself, as well as attorney&rsquo;s fees.&nbsp; But what about other payments?&nbsp; If an employer hires an investigator or expert to assist with its case, are those costs deductible? What if the employer provides outplacement services for the plaintiff or pays the plaintiff&rsquo;s COBRA premiums, are those costs deductible? Finally, if an employer has Employment Practices Liability&nbsp;Insurance and the insurance carrier makes the settlement and/or attorney&rsquo;s fees payment, will the insurance company be denied a deduction for those payments?&nbsp; These are questions that will hopefully be answered with future official guidance.&nbsp; Plaintiffs often bring sexual harassment claims along with other discrimination claims like age and race.&nbsp; We will need the IRS to clarify whether a portion of the settlement may be allocated to sex harassment, so that the employer may deduct remaining payments.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p> <strong>Third</strong>, the statute explicitly provides that attorney&rsquo;s fees related to the confidential settlement of a sexual harassment or sexual abuse matter are not deductible.&nbsp; This provision creates separate implications for both plaintiffs and employers.&nbsp;</p> <p> We read the new statute to prohibit any deduction for an employer&rsquo;s own attorney&rsquo;s fees incurred for defense, or the payments made to the plaintiff&rsquo;s attorneys.&nbsp; The provision would also seem to prohibit a plaintiff from deducting any attorney&rsquo;s fees the plaintiff pays to his or her attorneys.&nbsp;&nbsp; A plaintiff has income if the employer pays his or her attorney&rsquo;s fees.&nbsp; In the past, a plaintiff was generally allowed to deduct the amount of the plaintiff&rsquo;s attorney&rsquo;s fees that the employer&nbsp; paid, resulting in no net income to the plaintiff for the attorney&rsquo;s fees.&nbsp; The broad language of new Section 162(q) appears to change that general rule and prohibit a plaintiff from deducting the attorney&rsquo;s fees the employer paid.&nbsp;&nbsp; As such, the plaintiff may now owe tax on income that the plaintiff never received and this will significantly reduce his or her net recovery.&nbsp;</p> <p> Although it is unlikely that Congress intended to place a tax burden on plaintiffs who raise sexual harassment claims, there is no clear guidance on these issues.&nbsp; As a result, until the IRS issues further clarification, plaintiffs may look to employers to cover their additional tax liability, which will add to the cost of settlement and make negotiations more difficult.</p> <p> The result of all of this is that employers will have to carefully evaluate the cost/benefit of confidentiality.&nbsp; It will remain important to continue to monitor developments concerning the new tax law and incorporate the issues discussed above into the legal and financial analysis when settling cases involving sexual harassment or sexual abuse.</p> <p> Seyfarth Shaw will provide further alerts as new developments occur.</p> http://www.seyfarth.com:80/publications/MA011918-LE Shifty Business V: New NYC Law Allows Employees to Request Temporary Schedule Changes; Comment Period for NYS Call-In Pay Rules Extended http://www.seyfarth.com:80/publications/MA011918-LE Fri, 19 Jan 2018 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis</em></strong><em><strong>:</strong> A new NYC law entitles employees to two temporary schedule changes per year for certain personal events.&nbsp; Separately, the comment period for call-in pay rules proposed by the State DOL has been extended to January 22.</em></p> <p> New York City has enacted a bill that allows employees to request two temporary schedules changes per year for certain personal events.&nbsp; Unlike other recent changes to employee scheduling requirements in NYC, the law applies to nearly all NYC employers and is <em>not</em> limited to the retail and fast food industries.</p> <p> The bill was originally part of the same legislative package as the <a href="http://www.seyfarth.com/publications/MA120117-LE">NYC Fair Workweek Law</a>, which was enacted in May 2017.&nbsp; But the City Council deferred further action on the bill pending certain revisions.&nbsp; It was finally passed on December 19, 2017, and adopted on January 19, 2018. The law will be effective on July 18, 2018.</p> <p> This legislation requires employers to grant employees two temporary schedule changes, of up to one business day each, per calendar year for certain personal events.&nbsp; If the employer grants an employee a single request spanning two business days, then it does not need to grant a second request that year.</p> <p> Qualifying personal events include:</p> <ul> <li> the need to provide care for a minor child or other individual under the employee&rsquo;s care;</li> <li> the need to attend legal proceedings for subsistence benefits to which the employee, the employee&rsquo;s family member, or the employee&rsquo;s care recipient is a party; or</li> <li> any circumstance that would qualify for use of safe time or sick time under the recently-amended <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA102017LE.pdf">Earned Safe and Sick Time Act</a> (&ldquo;ESSTA&rdquo;).</li> </ul> <p> The law provides examples of temporary schedule changes to which the employee will be entitled on the applicable days:</p> <ul> <li> using paid time off;</li> <li> working remotely;</li> <li> changing work hours;</li> <li> swapping shifts; or</li> <li> using short- term unpaid leave.</li> </ul> <p> The law mandates the process by which employees request a schedule change and employers respond.&nbsp;</p> <p> Employees must provide notice of the need for a temporary change as soon as they are aware of it and propose a temporary schedule change, unless they seek unpaid leave.&nbsp; The employee&rsquo;s initial notice need not be written, but the employee must submit a written request within two days after returning to work.&nbsp; The written notice must state (a) the date for which the change was requested; and (b) that it was due to the employee&rsquo;s personal event.</p> <p> The employer must<em> immediately</em> respond to a temporary schedule change request.&nbsp; This initial response need not be written, but a written response is required within 14 days of the employee&rsquo;s written request.&nbsp; The written response must state (a) whether the employer agrees to the employee&rsquo;s requested temporary change or provide leave without pay; (b) if the request is denied, an explanation for the denial; and (c) how many requests and how many business days the employee has left in the calendar year, after taking into account the decision on the employee&rsquo;s current request.&nbsp; If the employee does not submit a written request, the employer does not need to respond in writing.&nbsp;</p> <p> Employers can deny a temporary schedule change request relating to a defined personal event <em>only</em> if the employee has exhausted the two allotted requests in the calendar year or if one of the exemptions listed below applies.&nbsp;</p> <p> The requirements of this law are in addition to any obligations under ESSTA, and employees do <em>not</em> need to use leave under ESSTA before requesting a schedule change.&nbsp; Unpaid leave granted under this law does not count towards the employer&rsquo;s obligation to grant leave under the ESSTA.&nbsp; Leave granted under the ESSTA does not count towards the obligation to grant leave under this law.</p> <p> The law includes a non-retaliation provision protecting employees who request schedule changes other than those that employers must grant under this law.&nbsp; Those requests must still follow the process required by this law.</p> <p> The law does not apply to:</p> <ul> <li> employees covered by a valid collective bargaining agreement, if it waives the provisions of this law and addresses</li> <li> temporary changes to work schedules;</li> <li> employees who have been employed by the employer fewer than 120 days;</li> <li> employees working fewer than 80 hours in NYC in a year; or</li> <li> individuals performing certain types of work in the theater, film, or TV industry.</li> </ul> <p> <strong>NYS Call-In Pay Rules</strong></p> <p> Separately, the New York Department of Labor has extended the comment period for its <a href="http://www.seyfarth.com/publications/MA111317-LE">proposed rules</a> entitling employees to additional pay for on-call scheduling practices.&nbsp; Those rules were published in the State Register on November 22, 2017, and then subject to a 45-day comment period.&nbsp; The new deadline is January 22, 2018.&nbsp; Employers should expect swift action on the rules thereafter.&nbsp;</p> http://www.seyfarth.com:80/publications/EL011918 Webinar – Best Practices for Investigating and Addressing Sexual Harassment Complaints in the Workplace http://www.seyfarth.com:80/publications/EL011918 Fri, 19 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In this February 1, 2018, hot-topic webinar, we will provide a roadmap for conducting legally compliant and effective sexual harassment investigations. There is no cost to attend this program, but registration is required.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/webinar-best-practices-for-investigating-and-addressing-sexual-harassment-complaints-in-the-workplace/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM011918 Déjà vu – Possible Government Shutdown and Impacts on Immigration http://www.seyfarth.com:80/publications/IMM011918 Fri, 19 Jan 2018 00:00:00 -0500 <p> <em>Seyfarth Synopsis: As we wait to hear the fate of yet another temporary extension to continue funding the government after midnight on Saturday January 20th &ndash; employers should know how a shutdown may impact processing of immigration petitions and immigration programs.</em></p> <p> <a href="https://www.bigimmigrationlawblog.com/2018/01/deja-vu-possible-government-shutdown-and-impacts-on-immigration/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP011918 A New Year, A New Wellness Program http://www.seyfarth.com:80/publications/CP011918 Fri, 19 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: New Year&rsquo;s resolutions typically address health and well-being. Many among us have resolved this year to get off the couch, to sweat a bit more often to the &ldquo;oldies,&rdquo; to meditate and be mindful, and to eat less cake and fewer tacos. And so one might think that courts would endorse the EEOC&rsquo;s approval of employer-sponsored wellness programs, as a great way to encourage employees to follow through on their health goals. But beware! A recent federal court decision in D.C. has cited two statutes&mdash;the ADA and GINA&mdash;to roll back the EEOC regulation approving employer wellness programs. This decision, though prospective only, may significantly affect the structure of such programs, including those in California.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/01/19/a-new-year-a-new-wellness-program/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/wcarbmd011918 Seyfarth's Workplace Class Action Report profiled in Business Management Daily http://www.seyfarth.com:80/news/wcarbmd011918 Fri, 19 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 19 story from Business Management Daily, &quot;Fewer class certs, but settlements soared in 2017.&quot; The Report&#39;s author Gerald Maatman said that the top 10 settlements in employment-related categories totaled a record high of $2.72 billion&mdash;nearly $1 billion more than 2016. You can read the <a href="https://www.businessmanagementdaily.com/50623/fewer-class-certs-but-settlements-soared-in-2017">full article here</a>.</p> http://www.seyfarth.com:80/news/houstonlcld011918 Seyfarth’s Tamaron Houston Selected as a 2018 Fellow of the Leadership Council on Legal Diversity http://www.seyfarth.com:80/news/houstonlcld011918 Fri, 19 Jan 2018 00:00:00 -0500 <p> Seyfarth Shaw LLP is pleased to announce that Real Estate partner Tamaron Houston was recently selected to the 2018 class of Fellows of the Leadership Council on Legal Diversity (LCLD).</p> <p> The LCLD Fellows program was developed to identify, train and advance the next generation of leaders in the legal profession through a dynamic, year-long leadership training course designed to elevate career paths of high-potential attorneys.</p> <p> According to LCLD Executive Director Robert J. Grey, Jr., the LCLD Fellows Program offers participants &ldquo;an extraordinarily rich year of relationship-building, virtual and in-person training, peer-group projects, and extensive contact with LCLD&rsquo;s top leadership.&rdquo;</p> <p> Based in the firm&rsquo;s Atlanta office, Houston is an active member of the firm&rsquo;s Diversity Action Team, serving as the National Chair of the firm&rsquo;s African American Affinity Group. Since 2012, she has co-chaired the Spelman and Morehouse Internship Program, which provides students who are interested in attending law school with an opportunity to gain practical experience working at Seyfarth Shaw. While attending law school at The University of Virginia, Houston clerked for the NAACP legal department in Houston, Texas during Hurricane Katrina, helping evacuees with landlord and tenant disputes, wrongful evictions and foreclosure issues. She also served as president of the law school&#39;s Women of Color student group, and as a contributing editor of the Virginia Sports &amp; Entertainment Journal.</p> <p> Founded in 2009, the Leadership Council on Legal Diversity (LCLD) has grown to an organization of more than 275 Members, who serve as either general counsel of major corporations or managing partners of the nation&#39;s leading law firms. United by a spirit of activism and personal commitment, LCLD Members participate widely in the programs they&#39;ve created&mdash;leading by example, taking action, and challenging the legal profession to prepare future generations of diverse talent for the highest positions of leadership. To learn more, visit <a href="http://www.lcldnet.org/">here</a>.</p> http://www.seyfarth.com:80/news/paparellisjmn011918 Angelo Paparelli quoted in the San Jose Mercury News http://www.seyfarth.com:80/news/paparellisjmn011918 Fri, 19 Jan 2018 00:00:00 -0500 <p> Angelo Paparelli was quoted in a January 19 story from the San Jose Mercury News, &quot;If immigration authorities raid the Bay Area, could the state stop them?,&quot; on AB450, a state law that went into effect Jan. 1 prohibiting employers from allowing immigration officials to enter the private areas of their workplaces without a judicial warrant. The law also bans employers from handing over employee immigration records without warrants in some cases. Paparelli said that it will cause a lot of confusion for employers as to walking the fine line between cooperating with immigration agents and refusing to cooperate. He predicted that if any broad immigration raids do happen in California, the new law would quickly be challenged in the courts. You can read the <a href="https://www.mercurynews.com/2018/01/18/if-immigration-authorities-raid-the-bay-area-could-the-state-stop-them/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarpi011918 Seyfarth's Workplace Class Action Report profiled in Pensions & Investments http://www.seyfarth.com:80/news/wcarpi011918 Fri, 19 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 19 story from Pensions &amp; Investments, &quot;Church-plan challenges lead uptick in ERISA class-action settlements in 2017.&quot; The Report found that the largest ERISA class-action settlements involved pension plans claiming church-plan status exempting them from ERISA; breaches of fiduciary duty; failures to make required contributions into retirement funds; and other claims of mismanagement. You can read the <a href="http://www.pionline.com/article/20180119/ONLINE/180119828/church-plan-challenges-lead-uptick-in-erisa-class-action-settlements-in-2017">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarhr011818 Seyfarth's Workplace Class Action Report profiled in HR.com http://www.seyfarth.com:80/news/wcarhr011818 Thu, 18 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 18 story from HR.com, &quot;Workplace class action settlements hit all-time high, among key trends in Seyfarth Shaw&#39;s annual review.&quot; You can read the <a href="https://www.hr.com/en/app/blog/2018/01/workplace-class-action-settlements-hit-all-time-hi_jck5ulhq.html">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarccr011818 Seyfarth's Workplace Class Action Report profiled in the Cook County Record http://www.seyfarth.com:80/news/wcarccr011818 Thu, 18 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a new story from the Cook County Record, &quot;Report: Settlement payments to end employment-related class action lawsuits skyrocketed in 2017.&quot; The Report&#39;s author Gerald Maatman said that 2018 shapes up as a whole new world, one highlighted with considerably less suits being filed by the government than the year before. You can read the <a href="https://cookcountyrecord.com/stories/511314429-report-settlement-payments-to-end-employment-related-class-action-lawsuits-skyrocketed-in-2017">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarwsj011818 Seyfarth's Workplace Class Action Report referenced in the Wall Street Journal http://www.seyfarth.com:80/news/wcarwsj011818 Thu, 18 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in a January 18 story from the Wall Street Journal, &quot;Survey Roundup: More Money.&quot; A review of U.S. workplace class-action lawsuits in 2017 by Seyfarth found the monetary value of settlements in these cases was $2.7 billion, an increase of around $970 million from 2016. You can read the <a href="https://blogs.wsj.com/riskandcompliance/2018/01/18/survey-roundup-climate-change-cracks-top-risks-list-for-first-time/">full article here</a>.</p> http://www.seyfarth.com:80/publications/IMM011818 More Form I-9 Confusion for Employers: TPS and Limited Automatic Extensions http://www.seyfarth.com:80/publications/IMM011818 Thu, 18 Jan 2018 00:00:00 -0500 <p> With the recent slew of news from US Citizenship and Immigration Services (USCIS) concerning Temporary Protected Status (TPS), it is important employers know how to update Forms I-9 for TPS beneficiaries. Over the last several months, we reported on USCIS terminating TPS for El Salvador, Nicaragua, and Haiti while deferring a decision for Honduras. The debate in Congress surrounding the loss of status to almost 300,000 individuals continues to intensify. Employers are also affected by the phase out of TPS as they consider how to handle the TPS beneficiaries in their workforce, some of whom have been with companies for many years.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/01/more-form-i-9-confusion-for-employers-tps-and-limited-automatic-extensions/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM011818a DACA: Drama over Dreamer’s Program Continues http://www.seyfarth.com:80/publications/IMM011818a Thu, 18 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: On January 13, 2018, per a federal district court order, U.S. Citizenship and Immigration Services (USCIS) began accepting Deferred Action for Childhood Arrivals (DACA) renewals and requests from certain individuals. On January 16, 2018, the United States government stated its intent to appeal the district court&rsquo;s injunction to both the Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/01/drama-over-dreamers-program-continues/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT011818 The Weed in Weed: January 19, 2017 http://www.seyfarth.com:80/publications/TBT011818 Thu, 18 Jan 2018 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/01/the-weed-in-weed-january-19-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD011818 4 Key Trends In Workplace Class Action Litigation For 2017: #2 Class Certification Video http://www.seyfarth.com:80/publications/CCD011818 Thu, 18 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In our recent blog on the second workplace class action litigation trend of 2017, we provided our readers with a comprehensive analysis of class certification statistics. As this year&rsquo;s Report profiled, court decisions throughout the country resulted in a favorable landscape for employers in terms of defeating certification motions in the decertification process. In today&rsquo;s blog, author Jerry Maatman breaks down all aspects of the Report&rsquo;s class certification findings, and tells employers what to watch for in 2018. Check out Jerry&rsquo;s analysis in the link below!<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/01/4-key-trends-in-workplace-class-action-litigation-for-2017-2-class-certification-video/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM011718-LIT D.C. Circuit to Hear Appeal in Fight to Control CFPB http://www.seyfarth.com:80/publications/OMM011718-LIT Wed, 17 Jan 2018 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:</strong> A federal judge on Wednesday denied a request to remove Mick Mulvaney as the CFPB&rsquo;s acting director,&nbsp;<span style="font-size: 12px;">finding that the President has authority to appoint the acting director despite former CFPB Director Cordray&rsquo;s attempt to&nbsp;</span><span style="font-size: 12px;">handpick his successor.</span></em></div> <div> &nbsp;</div> <div> On January 10, 2018, Judge Timothy Kelly of the U.S. District Court for the District of Columbia and a Trump Administration&nbsp;<span style="font-size: 12px;">appointee denied Consumer Financial Protection Division (&ldquo;CFPB&rdquo;) Deputy Director Leandra English&rsquo;s request for preliminary&nbsp;</span><span style="font-size: 12px;">injunctive relief that would displace current CFPB Acting Director Mick Mulvaney. Former CFPB Director Richard Cordray&nbsp;</span><span style="font-size: 12px;">resigned effective at midnight on November 24, 2017, triggering a political showdown. That day, Cordray designated English&nbsp;</span><span style="font-size: 12px;">as the CFPB&rsquo;s Deputy Director and purported to name her as his successor. At the same time, the President announced that&nbsp;</span><span style="font-size: 12px;">he had appointed Mulvaney, the Director of Management and Budget, as Cordray&rsquo;s replacement.</span></div> <div> &nbsp;</div> <div> On November 26, 2017, English filed a <a href="http://www.seyfarth.com/dir_docs/publications/CFPB-Deputy-Lawsuit.pdf">lawsuit </a>against the President and Mulvaney, requesting declaratory and injunctive&nbsp;<span style="font-size: 12px;">relief that would restrain the President from appointing an acting director other than her, direct the President to withdraw&nbsp;</span><span style="font-size: 12px;">Mulvaney&rsquo;s appointment, and prohibit Mulvaney from serving as acting director. After a hearing, the Court denied English&rsquo;s&nbsp;</span><span style="font-size: 12px;">request for emergency relief, finding that English had not shown a likelihood of success on the merits and had otherwise&nbsp;</span><span style="font-size: 12px;">failed to meet the prerequisites for emergency relief.</span></div> <div> &nbsp;</div> <div> On December 6, English filed an <a href="http://www.seyfarth.com/dir_docs/publications/English-First-Amended-Complaint.pdf">amended complaint</a> and moved for a <a href="http://www.seyfarth.com/dir_docs/publications/English-v-Trump-MOTION-for-Preliminary-Injunction.pdf">preliminary injunction</a> seeking substantially the same&nbsp;<span style="font-size: 12px;">relief. The Court held a hearing on the motion on December 22. In its decision, issued on Wednesday, the Court found that&nbsp;</span><span style="font-size: 12px;">once again English was not likely to succeed on the merits of her claim nor was she likely to suffer irreparable harm absent&nbsp;</span><span style="font-size: 12px;">the injunctive relief sought. The Court also noted that the &ldquo;balance the equities and the public interest also weigh against&nbsp;</span><span style="font-size: 12px;">granting the relief.&rdquo;</span></div> <div> &nbsp;</div> <div> In reaching its <a href="https://www.law360.com/dockets/download/5a56b154a2bcd23f01000006?doc_url=https%3A%2F%2Fecf.dcd.uscourts.gov%2Fdoc1%2F04516381028&amp;label=Case+Filing">second decision</a>, the Court relied largely on the Federal Vacancies Reform Act of 1998 (&ldquo;FVRA&rdquo;), which&nbsp;<span style="font-size: 12px;">permits the President to appoint a temporary officer to a vacant position without Senate confirmation if the President and&nbsp;</span><span style="font-size: 12px;">Senate cannot promptly agree on a replacement. The Court rejected English&rsquo;s argument that the CFPB Director position was&nbsp;</span><span style="font-size: 12px;">excluded from the FVRA and that Dodd-Frank instructs that the Deputy Director shall serve as acting Director in the absence&nbsp;</span><span style="font-size: 12px;">of the Director. Instead, the Court found that reading the two statutes together, Dodd-Frank requires that the Deputy&nbsp;</span><span style="font-size: 12px;">Director &ldquo;shall&rdquo; serve as acting Director, but that under the FVRA the President &ldquo;may&rdquo; override that default rule.</span></div> <div> &nbsp;</div> <div> On January 12, English filed her <a href="http://www.seyfarth.com/dir_docs/publications/English-v-Trump-Notice-of-Appeal.pdf">notice</a> of appeal in the U.S. Court of Appeals for the D.C. Circuit, challenging the district&nbsp;<span style="font-size: 12px;">court&rsquo;s decision. In her notice, she requested expedited review of the appeal because a new director could be nominated and&nbsp;</span><span style="font-size: 12px;">confirmed before she can become the acting director.</span></div> <div> &nbsp;</div> <div> Meanwhile, the Lower East Side People&rsquo;s Federal Credit Union, an entity regulated by the CFPB, filed a similar <a href="http://www.seyfarth.com/dir_docs/publications/SDNY-Case-CU-Complaint.pdf">lawsuit</a> in the&nbsp;<span style="font-size: 12px;">U.S. District Court for Manhattan. The credit union has filed a <a href="http://www.seyfarth.com/dir_docs/publications/SDNY-CAse-CU-MPI.PDF">motion </a>for a preliminary injunction removing Mulvaney as&nbsp;</span><span style="font-size: 12px;">acting director and instating English as the acting director. The Trump Administration opposes that motion and has filed a&nbsp;</span><span style="font-size: 12px;">competing <a href="http://www.seyfarth.com/dir_docs/publications/SDNY-Case-DOJ-MTD.PDF">motion </a>to dismiss the credit union&rsquo;s complaint for lack of subject matter jurisdiction. The court held a hearing&nbsp;</span><span style="font-size: 12px;">Friday on the dueling motions, and we expect the court to rule on the motions promptly, perhaps as early as this week.</span></div> <div> &nbsp;</div> <div> <span style="font-size: 12px;">Seyfarth Shaw continues to monitor the developments in &ldquo;the battle of the directors&rdquo; and will keep its readers apprised of&nbsp;</span><span style="font-size: 12px;">updates.</span></div> http://www.seyfarth.com:80/publications/EL011718 No Good Deed Goes Unpunished: Google Now Accused Of Bias Against Women And Men http://www.seyfarth.com:80/publications/EL011718 Wed, 17 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Google now finds itself in the unfortunate position of being accused of discrimination against women in pay and promotions and &ndash; according to a new complaint filed in California Superior Court &ndash; against conservative white men. Most troubling, Plaintiffs in that case point to Google&rsquo;s diversity and inclusion efforts, which are meant to combat discrimination in the workplace, as the very basis for their allegations of sex and race discrimination.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/no-good-deed-goes-unpunished-google-now-accused-of-bias-against-women-and-men/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD011718 D.C. Circuit to Hear Appeal in Fight to Control CFPB http://www.seyfarth.com:80/publications/CCD011718 Wed, 17 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: A federal judge on Wednesday denied a request to remove Mick Mulvaney as the CFPB&rsquo;s acting director, finding that the President has authority to appoint the acting director despite former CFPB Director Cordray&rsquo;s attempt to handpick his successor.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/01/d-c-circuit-to-hear-appeal-in-fight-to-control-cfpb/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE011718 Transportation and Workplace Violence Stand Out in Census of 2016 Fatal Occupational Injuries http://www.seyfarth.com:80/publications/WSE011718 Wed, 17 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The Bureau of Labor Statistics (BLS) has found a seven percent increase in 2016 fatal injuries reported over those reported in 2015. BLS noted that this was the third consecutive increase in annual workplace fatalities. The statistics show an ongoing struggle for employers with a number of occupational safety and health health hazards.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/transportation-and-workplace-violence-standout-in-census-of-2016-fatal-occupational-injuries/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC011718 4 Key Trends In Workplace Class Action Litigation For 2017: #2 Class Certification Video http://www.seyfarth.com:80/publications/WC011718 Wed, 17 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis:&nbsp; In our recent blog on the second workplace class action litigation trend of 2017, we provided our readers with a comprehensive analysis of class certification statistics.&nbsp; &nbsp;As this year&rsquo;s Report profiled, court decisions throughout the country resulted in a favorable landscape for employers in terms of defeating certification motions in the decertification process.&nbsp; In today&rsquo;s blog, author Jerry Maatman breaks down all aspects of the Report&rsquo;s class certification findings, and tells employers what to watch for in 2018.&nbsp; Check out Jerry&rsquo;s analysis in the link below!</p> <p> <a href="https://www.workplaceclassaction.com/2018/01/4-key-trends-in-workplace-class-action-litigation-for-2017-2-class-certification-video/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/wcareba011718 Seyfarth's Workplace Class Action Report profiled in Employee Benefit Adviser http://www.seyfarth.com:80/news/wcareba011718 Wed, 17 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 17 story from Employee Benefit Adviser, &quot;ERISA class action settlements reach almost $1 billion.&quot; The Report&#39;s author Gerald Maatman said that of the $2.7 billion in total settlements, $927.8 million came from ERISA cases. You can read the <a href="https://www.employeebenefitadviser.com/news/erisa-class-action-settlements-reach-almost-1-billion">full article here</a>.</p> http://www.seyfarth.com:80/news/karasikccr011718 Alex Karasik quoted in the Cook County Record http://www.seyfarth.com:80/news/karasikccr011718 Wed, 17 Jan 2018 00:00:00 -0500 <p> Alex Karasik was quoted in a January 17 story from the Cook County Record, &quot;Attorney: Seventh Circuit&#39;s decision to OK AmEx settlement giving lawyers more than class members an &#39;eye-opener&#39;.&quot; Karasik said that a key takeaway for businesses is that even in situations where the parties in a class-action lawsuit settle within the first few years of its filing, they must be cognizant of how the settlement approval process can quickly become expensive, and perhaps even worth more than the actual claims at issue. You can read the <a href="https://cookcountyrecord.com/stories/511314426-attorney-seventh-circuit-s-decision-to-ok-amex-settlement-giving-lawyers-more-than-class-members-an-eye-opener">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanln011718 Gerald Maatman quoted in Legal Newsline http://www.seyfarth.com:80/news/maatmanln011718 Wed, 17 Jan 2018 00:00:00 -0500 <p> Gerald Maatman was quoted in a January 17 story from Legal Newsline, &quot;Six Flags case could clarify requirements for biometric claims used in class actions.&quot; Maatman said that the putative class action marks the first time the Illinois Biometric Information Privacy Act has ever been interpreted at the state&#39;s appellate level in Illinois. You can read the <a href="https://legalnewsline.com/stories/511317081-six-flags-case-could-clarify-requirements-for-biometric-claims-used-in-class-actions">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarbloomberg011618 Seyfarth's Workplace Class Action Report profiled in Bloomberg http://www.seyfarth.com:80/news/wcarbloomberg011618 Tue, 16 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a Janaury 16 story from Bloomberg, &quot;Workplace Lawyers Race Against the Trump Clock.&quot; The Report&#39;s author Gerald Maatman said that the government litigated more cases, filed more cases, and got higher settlement values for those cases in 2017 than at any time in the last decade. You can read the <a href="https://www.bloomberg.com/news/articles/2018-01-16/workplace-lawyers-race-against-the-trump-clock">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarlaw011618 Seyfarth's Workplace Class Action Report referenced in Law.com http://www.seyfarth.com:80/news/wcarlaw011618 Tue, 16 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in a January 16 story from Law.com, &quot;Critical Mass: Spike in Workplace Class Action Settlements.&quot; The Report&#39;s author Gerald Maatman said that what keeps a CEO or general counsel up at night is not the threat of EEOC or private discrimination cases. He said what keeps them up at night is these large-scale wage and hour class action suits. You can read the <a href="https://www.law.com/sites/almstaff/2018/01/16/critical-mass-ogletree-sued-for-gender-bias-spike-in-workplace-class-action-settlements-no-padding-time-equifax-judge-warns-lawyers/?slreturn=20180017102220">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarcfo011618 Seyfarth's Workplace Class Action Report profiled in CFO http://www.seyfarth.com:80/news/wcarcfo011618 Tue, 16 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 16 story from CFO, &quot;Workplace Class Actions Soared in 2017.&quot; The Report&#39;s author Gerald Maatman said that, coupled with the appointment of Justice Neil Gorsuch in 2017 and potential additional appointments to the Supreme Court by President Trump in 2018 and beyond, litigation dynamics may well be reshaped in ways that further change the playbook for prosecuting and defending class actions. You can read the <a href="http://ww2.cfo.com/legal/2018/01/workplace-class-actions-soared-2017/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarlaw2011618 Seyfarth's Workplace Class Action Report referenced in Law.com http://www.seyfarth.com:80/news/wcarlaw2011618 Tue, 16 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action report was referenced in a January 17 story from Law.com, &quot;Labor of Law: We Asked for Labor-Law Predictions for 2018. Here&#39;s What You Said.&quot; The Report&#39;s author Gerald Maatman predicts the number of government enforcement actions will slow in 2018. You can read the <a href="https://www.law.com/sites/almstaff/2018/01/12/labor-of-law-we-asked-for-labor-law-predictions-for-2018-heres-what-you-said/?slreturn=20180017115011">full article here</a>.</p> http://www.seyfarth.com:80/publications/WSE011618 OSHA Removes List of “Workplace Fatalities” from its Website Home Page http://www.seyfarth.com:80/publications/WSE011618 Tue, 16 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In another example of OSHA&rsquo;s refocus it has dropped from its home page the prominently placed listing of Worker Fatalities.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-enforcement/osha-removes-list-of-workplace-fatalities-from-its-website-home-page/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT011618 U.S. Trustee Issues Warning to ALL Participants in the Cannabis Industry: Bankruptcy Relief May Not be Available, So Don’t Let Your Profits Go Up in Smoke http://www.seyfarth.com:80/publications/TBT011618 Tue, 16 Jan 2018 00:00:00 -0500 <p> In a recent article, senior officials with the Department of Justice&rsquo;s Office of the United States Trustee (the &ldquo;UST&rdquo;), the federal government&rsquo;s watchdog of the bankruptcy system, reaffirmed the department&rsquo;s position that bankruptcy relief is not available to businesses in the weed industry. Such a reaffirmation of a well-established policy is not new. However, the article is noteworthy in that it clarifies just how broadly the UST is willing to expand the scope of that policy and that it may prevent &ldquo;downstream&rdquo; participants, such as landlords of marijuana dispensaries, from accessing relief under the bankruptcy code.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/01/u-s-trustee-issues-warning-to-all-participants-in-the-cannabis-industry-bankruptcy-relief-may-not-be-available-so-dont-let-your-profits-go-up-in-smoke/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA011518 SEVENTH CIRCUIT SAYS: CLEAR ERROR STANDARD APPLIES TO COURT REVIEW OF WITHDRAWAL LIABILITY ARBITRATOR’S CBA INTERPRETATION http://www.seyfarth.com:80/publications/ERISA011518 Mon, 15 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The Seventh Circuit has now applied a clear error standard of review to a withdrawal liability arbitrator&rsquo;s interpretation of a collective bargaining agreement, thus enhancing the role of the arbitrator in resolving withdrawal liability disputes.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/01/15/seventh-circuit-says-clear-error-standard-applies-to-court-review-of-withdrawal-liability-arbitrators-cba-interpretation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA011518-LE If Pain, Yes Gain—Part XLII: Maryland Becomes Ninth State to Enact Paid Sick Leave Law http://www.seyfarth.com:80/publications/MA011518-LE Mon, 15 Jan 2018 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Following successful votes by the Maryland Senate and House of Delegates to override Governor Larry Hogan&rsquo;s veto of a 2017 paid sick leave bill, on January 12, 2018 Maryland became the ninth state in the country to pass a mandatory paid sick leave law. While the effective date could be delayed given the procedural hurdle of having to override the Governor&rsquo;s veto, the law currently is scheduled to go into effect on February 11, 2018.</em></p> <p> As the 2018 calendar year (and, by extension, flu season) are now upon us, so too is the country&rsquo;s ninth statewide paid sick leave law. On January 12, 2018, the Maryland Senate voted to override Governor Larry Hogan&rsquo;s 2017 veto of a paid sick leave bill that was <a href="http://www.seyfarth.com/publications/MA031717-LE">passed by the Maryland legislature during the 2017 legislative session</a>. The Senate&rsquo;s successful vote follows the Maryland House of Delegates&rsquo; vote from January 11, 2018 to override the Governor&rsquo;s paid sick leave veto.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p> <p> The Maryland paid sick leave law, which is known as the Healthy Working Families Act (&ldquo;HWFA&rdquo; or the &ldquo;Act&rdquo;) is scheduled to go into effect on February 11, 2018 -- 30 days from the January 12th state Senate vote. Under Maryland law, bills that become law following an overridden governor veto take effect on the later of the effective date listed in the bill or 30 days after the override. Because the HWFA calls for a January 1, 2018 effective date, the current effective date is scheduled for February 11, 2018.&nbsp; We will continue to monitor the HWFA effective date and provide any updates on whether this date is extended to afford affected businesses more than a 30-day window to comply.</p> <p> Here are the highlights of the HWFA:</p> <ul> <li> <strong>Preemption of Local Paid Sick Leave Laws: </strong>The HWFA does not preempt or otherwise affect any other law that provides more generous paid sick leave benefits than that provided under the HWFA. However, there is one major caveat. Namely, local Maryland jurisdictions are preempted from passing ordinances on or after January 1, 2017 that impose sick and safe leave obligations on private employers.&nbsp; As a result, the <a href="http://www.seyfarth.com/publications/MA093016-LE">Montgomery County, MD Earned Sick and Safe Leave Act</a>, which went into effect on October 1, 2016 and was amended in November 2016, is shielded from the HWFA&rsquo;s preemption, but the preemption would apply to the <a href="http://www.seyfarth.com/publications/MA122817-LE">Prince George&rsquo;s County Earned Sick and Safe Leave ordinance</a>, which was enacted on December 12, 2017 and planned to go into effect in May 2018. It is unclear if the January 1, 2017 preemption cutoff date will be updated in consideration of the delay in enacting the HWFA.</li> <li> <strong>Existing Paid Leave Policies:</strong> The HWFA expressly states that employers do not need to modify existing paid leave policies to comply with the Act if (a) employees can accrue and use paid leave under terms and conditions that are at least equivalent to paid sick leave provided under the Act, <strong><u>or</u></strong> (b) the paid leave policy does not reduce employee compensation for an absence due to sick or safe leave. At this time, the safest course of action for employers that want to use an existing non-sick paid leave policy for HWFA compliance is to ensure their existing policy meets all substantive, technical requirements of the Act. That being said, the HWFA later states in the law that an employer&rsquo;s existing paid leave policy will be &ldquo;presumed to be equivalent&rdquo; to the sick and safe leave provided under the Act if the existing policy allows an employee to (i) accrue paid leave at least as fast as sick and safe leave accrual under the HWFA, and (ii) use paid leave for the same purposes set forth in the HWFA. We expect this position to be further clarified in forthcoming sick leave rules and regulations from the state and will provide updates as new information becomes available. <ul> <li> <strong>Types of &ldquo;Existing Paid Leave&rdquo;:</strong> The HWFA notes that &ldquo;existing paid leave&rdquo; includes vacation days, sick days, short-term disability benefits, floating holidays, parental leave, and other PTO.</li> </ul> </li> <li> <strong>Employee Eligibility: </strong>The HWFA excludes certain individuals from its definition of &ldquo;employee.&rdquo; Specifically, the HWFA excludes individuals who (a) work under a contract for hire that is determined not to be covered employment under Maryland law, (b) are certain licensed real estate salespersons or brokers, (c) are under the age of 18 years old before the beginning of the year, and (d) are employed in the agricultural sector on an agricultural operation. <ul> <li> <strong>Staffing Agencies:</strong> The HWFA also expressly excludes individuals who are employed by a temporary services agency to provide temporary staffing services to another person as long as the agency does not maintain day to day control over and supervision of the individual&rsquo;s work assignments while he/she is providing the temporary services. In addition, the HWFA states that an employee does not include someone who is directly employed by an employment agency to provide part-time or temporary services to another person.</li> <li> <strong>Weekly Hours Worked:</strong> The HWFA does not apply to an employee who regularly works less than 12 hours per week for an employer.</li> <li> <strong>Construction Industry:</strong> The HWFA does not apply to an employee who works in the construction industry and is covered by a collective bargaining agreement that expressly waives the HWFA&rsquo;s requirements in clear and unambiguous terms. This exception does not apply to individuals who are employed as a janitor, building cleaner, building security officer, concierge, door person, handyperson or building superintendent.</li> <li> <strong>Health or Human Services Industry </strong>The HWFA does not apply to an employee who (a) is called to work by the employer on an as needed basis in the health or human services industry, (b) can reject or accept the shift offered by the employer, (c) is not guaranteed to be called on to work by the employer, and (d) is not employed by a temporary services agency.</li> </ul> </li> <li> <strong>Covered Employers: </strong>Employers with 15 or more employees must provide <u>paid</u> sick and safe leave benefits to eligible employees, while employers with fewer than 15 employees must provide their employees with <u>unpaid</u> sick and safe leave benefits.&nbsp; An employer&rsquo;s number of employees is determined by calculating the average monthly number of employees employed during the immediately preceding year.&nbsp; The HWFA explains that each employee of an employer is included in this calculation, regardless of whether the employee is a full-time, part-time, temporary or seasonal employee <strong>or</strong> would be eligible for paid sick leave under the HWFA.</li> <li> <strong>Start of Accrual:</strong> Employees begin to accrue sick and safe leave on the later of their date of hire or, presumably due to the delay in overriding the vetoed sick leave bill, the HWFA&rsquo;s February 11, 2018 effective date or other effective date that is set (see above for further discussion on the HWFA&rsquo;s effective date).</li> <li> <strong>Accrual of Sick Leave: </strong>Eligible employees will accrue sick and safe leave at a rate of at least one hour for every 30 hours worked.&nbsp; Unlike most paid sick leave laws and ordinances which contain either an annual accrual cap or a &ldquo;point in time&rdquo; accrual cap,<a href="#_ftn2" name="_ftnref2" title="">[2]</a> covered Maryland employers must comply with both forms of accrual caps.&nbsp; The HWFA states that employees can accrue up to 40 hours of sick and safe leave per year.<a href="#_ftn3" name="_ftnref3" title="">[3]</a> Further, the HWFA sets a 64 hour &ldquo;point in time&rdquo; accrual cap, meaning that employers are only required to allow employees&rsquo; bank of accrued, unused sick and safe leave to reach 64 hours at any one time. <ul> <li> <strong>Exceptions to Accrual: </strong>Employers are not required to allow an employee to accrue sick and safe leave during a (a) two-week pay period in which the employee worked less than 24 hours total, (b) one-week pay period if the employee worked less than a combined total of 24 hours in the current and immediately preceding pay period, <strong>or</strong> (c) pay period in which the employee is paid twice a month, regardless of the number of weeks in a pay period, and the employee worked fewer than 26 hours in the pay period.</li> <li> <strong>Exempt Employees:</strong> For purposes of sick and safe leave accrual, an employee exempt from the FLSA&rsquo;s overtime wage requirements is presumed to work 40 hours each workweek, unless the employee&rsquo;s normal workweek is less than 40 hours, in which case the number of hours in the normal workweek should be used.</li> </ul> </li> <li> <strong>Usage Cap:</strong> Employers must allow eligible employees to use at least 64 hours of sick and safe leave in a year.</li> <li> <strong>Year-End Carryover:</strong> Subject to the &ldquo;frontloading&rdquo; exception discussed below, employees must be allowed to carry over up to 40 hours of earned, unused sick and safe leave at year-end.</li> <li> <strong>Frontloading: </strong>The HWFA states that employers can award employees the full amount of sick and safe 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 the Act.</li> <li> <strong>Usage Waiting Period:</strong> Employers are not required to allow an eligible employee to begin using earned sick and safe leave during the first 106 calendar days the employee works for the employer.</li> <li> <strong>Increments of Use:</strong> While an employer generally must allow employees to use sick and safe leave in the smallest increment that the employer&rsquo;s payroll system uses to account for absences or use of the employee&rsquo;s work time, the HWFA expressly states that an employer can require employees to take the leave in an increment not exceeding four hours.</li> <li> <strong>Protected Reasons for Use:</strong> Under the HWFA, employees can use sick and safe leave for the following absences: <ul> <li> To care for or treat the employee&rsquo;s own mental or physical illness, injury or condition, or to obtain preventive medical care;</li> <li> To care for a covered family member with a mental or physical illness, injury or condition, or to obtain preventive medical care for the family member;</li> <li> For maternity or paternity leave; or</li> <li> For certain absences from work that are necessary due to domestic violence, sexual assault, or stalking committed against the employee or the employee&rsquo;s covered family member.</li> </ul> </li> <li> <strong>Covered Family Members:</strong> The HWFA defines covered family members to include&nbsp; children, parents, spouses, grandparents, grandchildren, and siblings. &ldquo;Child&rdquo; includes a biological, adopted, foster, or step child of the employee, a child for whom the employee has legal or physical custody or guardianship, and a child for whom the employee stands in loco parentis, regardless of the child&rsquo;s age.&nbsp; &ldquo;Parent&rdquo; includes a biological, adoptive, foster or step parent of the employee or the employee&rsquo;s spouse, the legal guardian of the employee, and an individual who acted as a parent or stood in loco parentis to the employee or the employee&rsquo;s spouse when they were a minor. The HWFA defines &ldquo;grandparent,&rdquo; &ldquo;grandchild,&rdquo; and &ldquo;sibling&rdquo; to include biological, adoptive, foster and step relationships.</li> <li> <strong>Payment of Leave:</strong> When employees use paid sick and safe leave under the HWFA, the leave should be paid at the same wage rate as the employee normally earns. Employers are not required to pay a tipped employee more than the applicable minimum wage for use of paid sick and safe leave.</li> <li> <strong>Employer Ability to Prohibit Employee Abuse:</strong> The HWFA expressly allows employers to adopt and enforce a policy that prohibits employees from improperly using sick and safe leave, including prohibiting a pattern of abuse of paid sick and safe leave.</li> <li> <strong>Employee Notice to the Employer:</strong> <u>Foreseeable Absences</u>: An employer can require the employee to provide reasonable advance notice of not more than seven days before the sick and safe leave will begin; <u>Unforeseeable Absences</u>: An employer can require the employee to provide notice as soon as practicable. <ul> <li> <strong>Employer Ability to Deny Employee Request:</strong> The HWFA notes that an employer can deny an employee&rsquo;s request to use sick and safe leave if the employee failed to provide the required notice <u>and</u> the absence would cause a disruption to the employer.</li> </ul> </li> <li> <strong>Documentation:</strong> Employers can require an employee to provide documentation justifying that their sick leave absence was appropriate if (a) the leave was used for more than two consecutive shifts <strong>or</strong> (b) the employee used the leave between the 107th and 120th calendar days (both inclusive) of their employment, and the employee agreed to provide documentation under terms agreed upon by the employer and employee when the employee was hired. <ul> <li> <strong>Employer Ability to Deny Employee Subsequent Request:</strong> The HWFA states that if an employee fails or refuses to provide required documentation, the employer can deny an employee&rsquo;s <u>subsequent</u> request to take sick and safe leave for the <u>same</u> reason.</li> </ul> </li> <li> <strong>Notice of Available Leave:</strong> The HWFA mandates that employers provide employees with a statement of their available sick and safe leave balance each time wages are paid.&nbsp; This requirement can be met through the use of an online system.</li> <li> <strong>Notice and Posting Requirement:</strong> The HWFA states that employers must notify employees of their entitlement to sick and safe leave under the Act. The notice must include various topics, including a statement about how sick and safe leave is accrued and the reasons for which the leave can be used under the Act. While the Act does not state whether this notice requirement includes a posting obligation and/or obligation to provide individual notice to employees upon hire, it does state that the Maryland Commissioner of Labor and Industry must create and distribute to employers a poster and model notice for compliance with this notice requirement.</li> <li> <strong>Recordkeeping:</strong> Employers must keep for at least three years a record of sick and safe leave accrued and used by each employee.</li> <li> <strong>No Payout on Termination:</strong> The HWFA does not require employers to compensate employees for earned, unused paid sick and safe leave upon separation of employment. However, if an employee is rehired by the employer with 37 weeks of separation, the employer must reinstate any earned, unused sick leave to the employee. This reinstatement requirement does not apply if the employer paid an employee for his/her unused sick and safe leave upon separation.</li> </ul> <p> Employers should take steps now to comply with the requirements of HWFA before the Act&rsquo;s current February 11, 2018 effective date. Here are some steps to consider:</p> <ul> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the HWFA.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the HWFA.</li> <li> Monitor the Maryland Department of Labor and Industry website for information on the HWFA, including a model poster, model notice, and proposed and final regulations.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> We will continue to monitor and provide updates on Maryland paid sick leave developments as the February 11th effective date approaches and any changes that take place thereafter.&nbsp; To stay up-to-date on Paid Sick Leave developments, <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> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The other eight states that have passed a statewide mandatory paid sick leave law are: (1) <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>; (2) <a href="https://www.calpeculiarities.com/2015/07/14/at-last-amendments-to-cas-paid-sick-leave-law-signed-by-governor/">California</a>; (3) <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>; (4) <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>; (5) <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont</a>; (6) <a href="http://www.seyfarth.com/publications/MA120817-LE">Arizona</a>; (7) <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington</a>; (8) <a href="http://www.seyfarth.com/publications/MA092117-LE">Rhode Island</a>. The Rhode Island governor signed the state&rsquo;s paid sick leave law on September 28, 2017 and it is scheduled to go into effect on July 1, 2018. The Washington statewide paid sick leave law went into effect on January 1, 2018. The other six statewide laws are in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The Minneapolis and St. Paul paid sick leave ordinances are among the few existing paid sick leave jurisdictions that impose both an annual and &ldquo;point in time&rdquo; accrual cap on covered employers. For more information, here are our prior alerts on <a href="http://www.seyfarth.com/publications/MA060716-LE">Minneapolis</a> and <a href="http://www.seyfarth.com/publications/MA091416-LE">St. Paul</a> paid sick leave.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> The HWFA defines &ldquo;year&rdquo; as a regular and consecutive 12-month period as defined by the employer.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WSE011418 EPA Adjusts for Inflation the Maximum Civil Penalties for Violations of Environmental Statutes http://www.seyfarth.com:80/publications/WSE011418 Sun, 14 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: EPA has promulgated its new per violation penalty rules for 2018.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/environmental-enforcement/epa-adjusts-for-inflation-the-maximum-civil-penalties-for-violations-of-environmental-statutes/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA011218-LE Following a Long Thaw, ICE Returns with Increased Worksite Enforcement http://www.seyfarth.com:80/publications/MA011218-LE Fri, 12 Jan 2018 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:&nbsp;</em></strong><em>&ldquo;ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.&rdquo; &nbsp;Referring to Immigration and Customs Enforcement&rsquo;s (ICE) early morning raids at nearly a hundred franchisee convenience stores across the nation, the ensuing public comments from agency officials confirm that 2018 will be a year of increased immigration enforcement.&nbsp; ICE investigations can result in the arrest of employers and employees and the imposition of large-scale fines; under the current Administration, though, it&rsquo;s not only ICE that companies need to consider. &nbsp;Following the &ldquo;Buy American, Hire American&rdquo; Executive Order, a myriad of reinvigorated agencies that span all parts of the government have increased immigration-related oversight. &nbsp;Employers should proactively prioritize addressing immigration compliance.&nbsp;</em></p> <p> <strong>What Happened?</strong></p> <p> The January 10, 2018 reports of early morning nationwide &ldquo;raids&rdquo; at nearly 100 franchisee convenience stores confirmed the anticipated increase in worksite enforcement.&nbsp; Following the pre-dawn visits by Immigration and Customs Enforcement (ICE) agents, where some employees were checked for employment authorization and others arrested, Acting ICE Director Thomas Homan warned employers that <strong>&ldquo;today&rsquo;s actions send a strong message to U.S. businesses that hire and employ an illegal work force: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.&rdquo;</strong> &nbsp;His statement went on to say: &ldquo;<strong>Businesses that hire illegal workers are a pull factor for illegal immigration and we are working hard to remove this magnet. &nbsp;ICE will continue its efforts to protect jobs for American workers by eliminating unfair competitive advantages for companies that exploit illegal immigration.&rdquo;&nbsp; </strong>With the new Administration&rsquo;s one-year anniversary approaching, there is no doubt that increased and aggressive immigration enforcement is underway.&nbsp;</p> <p> <strong>The Past, Present and Future</strong></p> <p> The Administration appears to be combining the successful tactics of both the Bush and Obama eras, with a large scale enforcement action coordinated at the national level including administrative arrests of employees <strong>and </strong>requests for Forms I-9 through a Notice of Inspection (NOI) to the employers.&nbsp; In connection with the most recent worksite raid, Derek Benner, Acting Executive Associate Director, Homeland Security Investigations (HSI) told the Associated Press: &ldquo;This is what we&rsquo;re gearing up for this year and what you&rsquo;re going to see more and more of is these large-scale compliance inspections, just for starters. &nbsp;From there, we will look at whether these cases warrant an administrative posture or criminal investigation.&rdquo; &nbsp;ICE&rsquo;s HSI component oversees cases against employers.&nbsp; In 2017, the largest judgment in U.S. history for illegally employing undocumented immigrants was levied against Asplundh Tree Expert Co.&mdash;<u>t</u><a href="http://www.seyfarth.com/publications/IMM101017">he company had to pay a total of $95 million in forfeitures and civil claims</a>.&nbsp; At the time, ICE contended that &ldquo;the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States.&rdquo;</p> <p> Worksite enforcement, including the widespread arrests of employees, was a favored enforcement tool during the Bush years before falling out of favor under the Obama administration.&nbsp; During the Obama administration, desk audits, in which ICE requires the employer to submit I-9s and their supporting documents rather than conduct an onsite review, became the preferred tool.&nbsp; Even so, the numbers declined&mdash;in 2016, ICE conducted 1,279 audits of I-9s, assessing employers $17.2 million in fines, which was a drop from the 3,127 audits conducted in 2013.&nbsp; Now, not only is worksite enforcement back on the rise, but the civil monetary penalty amounts also have risen, with the increases effective for civil penalties assessed after February 3, 2017, whose associated violations occurred after November 2, 2015.</p> <p> <strong>IMAGE and the Culture of Compliance</strong></p> <p> &quot;ICE&rsquo;s worksite enforcement strategy continues to target both employers who knowingly hire unauthorized workers and the workers themselves,&rdquo; according to a statement by ICE.&nbsp; The ICE spokesperson went on to say, &quot;As Acting Director Homan stated, he has directed ICE Homeland Security Investigations to step up its efforts in this area&mdash;to include pursuing more investigations and conducting more I-9 audits.&quot;&nbsp;&nbsp;</p> <p> <em>ICE&rsquo;s Three-Pronged Approach</em></p> <p> Recently ICE issued a <a href="https://www.ice.gov/news/releases/worksite-enforcement-targets-employment-law-violators">press release</a>, outlining a revitalized strategy. &nbsp;The ICE strategy incorporates a three-prong approach to worksite enforcement: &ldquo;compliance, thorough I-9 inspections, civil fines and referrals for debarment; enforcement, through the arrest of employers knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.&rdquo;</p> <p> <strong>The BAHA Bandwagon</strong></p> <p> What was predicted throughout 2017 is now occurring in 2018: increased enforcement. &nbsp;With the &ldquo;Buy American, Hire American&rdquo; (BAHA) Executive Order and the Administration&rsquo;s focus on immigration, ICE is not the only agency to be mindful of when considering compliance with immigration related laws and regulations&mdash;other agencies are falling in line.&nbsp; It is clearly a priority for this Administration, and companies across the U.S. will now experience increased interest not only from ICE, but from a plethora of government agencies tasked with protecting U.S. workers and jobs.</p> <p> The dramatic uptick in enforcement comes as agencies across different Departments of the federal government increase their efforts to coordinate immigration-related matters following the BAHA Executive Order.&nbsp; As the orders from the top filter down to the agencies, both large and small, ICE, U.S. Citizenship and Immigration Services (USCIS), the Department of Labor (DOL), the Department of State (DOS), and the Department of Justice (DOJ) have all increased their focus on protecting US workers and ensuring that employers have a &ldquo;legal workforce.&rdquo;</p> <p> <em>Department of Justice Initiative</em></p> <p> Different components of the DOJ have touted increased immigration enforcement. Recently, a federal grand jury brought charges against 20 undocumented immigrants for using fraudulent papers to obtain employment.&nbsp; The U.S. Attorney for the Western District of Tennessee said the indictments showed DOJ&rsquo;s &ldquo;renewed commitment&rdquo; to criminal immigration enforcement, saying &ldquo;these indictments&hellip; promote lawfulness in our immigration system.&rdquo;&nbsp; Elsewhere in the Department, the Civil Rights Division&rsquo;s Immigrant and Employee Rights Section (IER) launched its Protecting U.S. Workers Initiative to protect U.S. workers from discrimination, settling at least two such claims already.&nbsp; As part of the Initiative, IER also entered into a Memoranda of Understanding with other Departments, mostly recently with DOS&rsquo; Bureau of Consular Affairs, increasing interagency cooperation.</p> <p> <em>USCIS Actions</em></p> <p> Finally, USCIS continues to make news, most recently with its <a href="http://www.seyfarth.com/publications/MA011018-LE">termination of Temporary Protected Status (TPS)</a> for several countries, which affects the employment authorization of hundreds of thousands of individuals.&nbsp; USCIS&rsquo; E-Verify program has also increased its oversight of employers who use the program.&nbsp; More importantly, the government&rsquo;s FY 2018 budget mandates the use of E-Verify, and, while that may not occur, companies would be wise to learn more about the program.&nbsp; For companies already using E-Verify, they should ensure that they are compliant with the program&rsquo;s rules.&nbsp; The Associate Director of Immigration Records and Identity Services Directorate, Tammy Meckley, recently stated that E-Verify would be moving from its historically soft compliance posture to a more forceful compliance position.&nbsp; To start, E-Verify has started sending out letters to companies, specifically to those with federal contracts, who do not appear to be complying with the FAR E-Verify clause.&nbsp; Meckley also noted that E-Verify conducts onsite inspections of companies enrolled in E-Verify but who may not be compliant.</p> <p> <strong>What Can Employers Do?</strong></p> <p> <strong>1.&nbsp;</strong><strong>Conduct an Internal Assessment.</strong>&nbsp; Have experienced counsel review your policies, processes, and sample I-9s, and decide if a full I-9 audit or broader cross section is necessary. &nbsp;The assessment should review immigration language in vendor/supplier and staffing contracts and could also review general visa compliance for companies that sponsor foreign nationals. &nbsp;Visits to company sites should be considered as well as a review of the E-Verify process and E-Verify account reports for those who are enrolled in the program.</p> <p> <strong>2.&nbsp;</strong><strong>I-9 Internal Audits and Remediation</strong>.&nbsp; The Form I-9 is said to be the most complicated 3-page form in America.&nbsp; Failure to follow the appropriate guidance in the I-9 verification process can lead to civil fines, forfeitures, criminal penalties, and even government contractor debarment. &nbsp;After a general assessment of immigration compliance, companies should consider an internal I-9 audit under the direction of experienced counsel. &nbsp;Perhaps even more important than the audit itself is the remediation of the Forms I-9 after identifying paperwork violations, missing forms, expired work authorizations, fraudulent documents and other issues.&nbsp; It is important to address the more serious issues as quickly as possible. &nbsp;Being proactive will reduce fines and penalties and also establish a good faith defense in the face of an ICE audit.</p> <p> <strong>3.&nbsp;</strong><strong>Review/Establish Policies and Procedures.&nbsp; </strong>The Asplundh case reminded us that upper management and executives face the largest risks from &quot;willful blindness&quot; to the implications of decentralized practices. &nbsp;Management cannot turn a blind eye to what is happening in the field and should insist upon compliant practices.&nbsp; Don&rsquo;t Ask, Don&rsquo;t Tell-based immigration policies are something ICE appears to be interested in targeting. Companies should look at pre-hire applications, I-9 retention schedules, photocopying policies, Social Security number-related &ldquo;mismatch&rdquo; issues, reverification and other processes to ensure compliance with the law and, from an anti-discrimination perspective, consistency. &nbsp;Any policy should be thoughtful, useful and in circulation.&nbsp; Polices that sit on a shelf and are not disseminated to Human Resources or other I-9 Administrators can cause more harm than good. &nbsp;Another thought is to consider investing in a reputable electronic I-9 system (after conducting diligence on the product) or updating your paper Form I-9 process.</p> <p> <strong>4.&nbsp;</strong><strong>Train, Train, Train</strong>.&nbsp; While tight policies and procedures can reduce errors, the churn of HR personnel, combined with the new Forms I-9 and updated USCIS guidance, makes ongoing reinforced training, job aids and in-house subject matter expertise critical.&nbsp; Aside from imparting technical knowledge, trainings should highlight the importance of the Form I-9 and the need to take the process seriously. &nbsp;Some companies have also opted to include a training component that targets management and focuses on the personal and professional exposure, civil and criminal penalties as well as the reputational and branding risk associated with government-exposed compliance failures.</p> <p> <strong>5.&nbsp;</strong><strong>Prepare for a Government Visit.&nbsp; </strong><a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA033017LE.pdf">We have written in depth about how a company may prepare for an eventual knock at the door by the government.</a>&nbsp; Regardless of industry or company size, this is something for which every company should have a practical plan. &nbsp;Based on recent trends, companies that have had ICE over for dinner in the past 5 years should set a place at the table and be ready for another visit.&nbsp; Follow-up actions for companies dinged in the past should be expected.</p> <p> ICE&rsquo;s latest action is a reminder that franchisors may have additional issues relating to their relationship with franchisees, specifically the level of control and supervision exerted over them.&nbsp; Franchisors need to consider what language should be in their contracts with franchisees; for example, whether they want to contractually bind their franchisees to comply with immigration laws and/or offer best practices and training programs.&nbsp; Specific contractual obligations could also include mandating third-party I-9 audits at the franchise locations, insulating a franchisor form direct knowledge of possible immigration-related violations while improving the franchisees&rsquo; compliance.&nbsp; Especially if the franchisor is primarily responsible for certain activities (i.e. onboarding, including the storage of Forms I-9 for its franchisees, and payroll), now is the time to review the relationship agreements with its franchisees.</p> <p> Given the clear message across agencies of stepped-up enforcement, the President&rsquo;s expressed focus on immigration issues, and a newfound emphasis on interagency cooperation, 2018 looks sure to be an interesting and challenging year for employers on the immigration compliance frontier.&nbsp; This is the time to pay attention and invest resources&mdash;it is crucial that companies prioritize compliance today to prevent problems tomorrow. &nbsp;Please contact the author, Dawn Lurie, at <a href="mailto:dlurie@seyfarth.com">dlurie@seyfarth.com</a> or any member of the <a href="http://www.seyfarth.com/Immigration-Compliance-Enforcement-Team">Seyfarth Immigration Compliance and Enforcement Team</a> with questions.&nbsp; You may also wish to subscribe to the <a href="https://www.bigimmigrationlawblog.com/">Seyfarth BIG Immigration Blog</a>.</p> http://www.seyfarth.com:80/publications/WSE011218 Mugno Nomination for OSHA Administrator Back Before the Senate http://www.seyfarth.com:80/publications/WSE011218 Fri, 12 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Due to Senate Rules, the Trump nomination of Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health, has now been &ldquo;returned&rdquo; to the Senate for consideration.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/mugno-nomination-for-osha-administrator-back-before-the-senate/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM011218a TPS Ending for El Salvador, Haiti & Nicaragua, and a Short Reprieve for Hondurans Still Waiting to Know Their Fate – Now What? http://www.seyfarth.com:80/publications/IMM011218a Fri, 12 Jan 2018 00:00:00 -0500 <p> What is TPS and What Should Employers Know About It?<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/01/tps-ending-for-el-salvador-haiti-nicaragua-and-a-short-reprieve-for-hondurans-still-waiting-to-know-their-fate-now-what/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/wcarcdlb011218 Seyfarth's Workplace Class Action Report profiled in the Chicago Daily Law Bulletin http://www.seyfarth.com:80/news/wcarcdlb011218 Fri, 12 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 12 story from the Chicago Daily Law Bulletin, &quot;CLASS-ACTION SETTLEMENTS SOAR.&quot; The Report&#39;s author Gerald Maatman said that settlements totaling $2.72 billion were reached in 2017 in 1,408 employment-related, class-action lawsuits.</p> http://www.seyfarth.com:80/news/wcarbenefitspro011218 Seyfarth's Workplace Class Action Report profiled in Benefits Pro http://www.seyfarth.com:80/news/wcarbenefitspro011218 Fri, 12 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 12 story from Benefits Pro, &quot;Workplace class-action settlements hit $2.72 billion in 2017.&quot; The Report&#39;s author Gerald Maatman said that not only did the number of class-action rulings hit a record, at 1,408, but wage and hour settlements alone accounted for a combined $1.2 billion out of the total of $2.72 billion. You can read the <a href="http://www.benefitspro.com/2018/01/12/workplace-class-action-settlements-hit-272-billion?&amp;slreturn=1515787987">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarhrdive011118 Seyfarth's Workplace Class Action Report profiled in HR Dive http://www.seyfarth.com:80/news/wcarhrdive011118 Thu, 11 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action report was profiled in a January 11 story from HR Dive, &quot;Workplace class action settlements ballooned to $2.72B in 2017, report says.&quot; The Report&#39;s author Gerald Maatman spotlights four class action trends for 2018: 1) Rising settlement costs, which soared to a record-high $2.72 billion last year; 2) More decertification wins for employers, who won 63% of wage and hour decertification rulings last year, up nearly 20% from 2016; 3) More roll backs in government enforcement by the Trump administration; and 4) More employer-friendly U.S. Supreme Court decisions. You can read the <a href="https://www.hrdive.com/news/workplace-class-action-settlements-ballooned-to-272b-in-2017-report-says/514565/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcareld011118 Seyfarth's Workplace Class Action Report profiled in Employment Law Daily http://www.seyfarth.com:80/news/wcareld011118 Thu, 11 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a Janaury 11 story from Employment Law Daily, &quot;Seyfarth Shaw class action report: Wage-hour settlements top exposure for companies in 2018.&quot; The Report&#39;s author Gerald Maatman said that the twists and turns of the transition in the White House also created one of the most surprising and dramatic spikes in government enforcement litigation that we&rsquo;ve ever seen. You can read the <a href="http://www.employmentlawdaily.com/index.php/news/seyfarth-shaw-class-action-report-suggests-wage-hour-settlements-top-exposure-for-companies-in-2018/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarpolitico011118 Seyfarth's Workplace Class Action Report referenced in Politico http://www.seyfarth.com:80/news/wcarpolitico011118 Thu, 11 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in a January 11 story from Politico&#39;s Morning Shift, &quot;WORKER PAYOUTS SURGE.&quot; The Report&#39;s author Gerald Maatman said that settlements from the 10 biggest class-action suits reached a record $2.72 billion last year. You can read the <a href="https://www.politico.com/newsletters/morning-shift/2018/01/11/dem-revolt-over-daca-deal-071424">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP011118 Paying Employees Who Haven’t Worked: Split Shifts And Reporting Pay http://www.seyfarth.com:80/publications/CP011118 Thu, 11 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Yes, it&rsquo;s true: California employees can be entitled to pay for time they haven&rsquo;t worked. Here, we highlight two common instances: split shifts and reporting time.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/01/11/paying-employees-who-havent-worked-split-shifts-and-reporting-pay/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM011118-LIT Freedom to Surcharge—Ninth Circuit Rules Businesses’ Can Charge Card Fees http://www.seyfarth.com:80/publications/OMM011118-LIT Thu, 11 Jan 2018 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:</strong></em> <em>Ninth Circuit upholds district court decision granting five businesses injunctive relief, finding that state law banning credit card surcharges is unconstitutional as applied to the five businesses.</em></div> <div> &nbsp;</div> <div> In a unanimous decision last week, a panel of the Ninth U.S. Circuit Court of Appeals affirmed a district court&rsquo;s ruling holding that California&rsquo;s law barring businesses from imposing a credit card surcharge is unconstitutional. In <em>Italian Colors Restaurant v. Xavier Becerra, Attorney General</em>, five California businesses challenged California Code Section 1748.1, which prohibits retailers from imposing a surcharge on customers who make payments with credit cards, but permits discounts for payments by cash or other means. The court heard from the five businesses who all desire to post a single price on their goods and charge an extra fee on customers who use credit cards, without the threat of an enforcement action for violating California&rsquo;s surcharge statute.</div> <div> &nbsp;</div> <div> <strong>Plaintiffs&rsquo; story</strong></div> <div> &nbsp;</div> <div> Plaintiffs sued the Attorney General of California alleging that the statute restricts free speech in violation of the First Amendment and that it is unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment. Plaintiffs explained that they pay thousands of dollars each year on credit fees incurred when customers swipe their plastic to make a purchase. To account for these fees, the plaintiffs increase their &ldquo;sticker-price&rdquo; for products. Customers who pay with cash or debit cards are offered a discount from these escalated prices. The businesses would rather charge customers directly a surcharge for credit cards than offer a discount because: (i) credit card surcharges more effectively communicate to consumers the high cost of credit cards; (ii) the fees require businesses to increase their prices to accommodate the credit cards costs, which makes their goods look more expensive; and (iii) a credit card surcharge would be more effective than offering a cash discount in encouraging consumers to use cash.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Statute history&nbsp;</strong></div> <div> &nbsp;</div> <div> In 1976, the Truth-in-Lending Act (TILA) prohibited retailers from imposing a charge on a cardholder who elected to use a credit card in lieu of cash, check, or payment of the like. The federal ban expired in 1984. Despite this change, California and other states maintain a local law barring business from imposing a surcharge on a customer who uses a credit card in lieu of another form of payment. But California&rsquo;s law permits businesses to offer discounts for the purposes of inducing payment by cash, check, or similar means not involving a credit card. Violators of the law are liable for three times actual damages, plus the cardholder&rsquo;s attorney&rsquo;s fees and costs in an action enforcing the law. The stated purpose of the statute is to promote the effective operation of the free market and protect consumers from deceptive price increases.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Court&rsquo;s review</strong></div> <div> &nbsp;</div> <div> The panel examined the California statute under an &ldquo;as-applied&rdquo; challenge, limiting its review to whether the statute was unconstitutional as applied to the businesses, rather than a facial challenge, which considers whether the statute is always unconstitutional. The court noted that&nbsp; the activity that Plaintiffs&rsquo; sought<span style="font-size: 12px;">&mdash;</span>charging credit cards users more than cash users&mdash;is not unlawful. Additionally, while the Attorney General argued that the statute was intended to protect consumers, the panel found that the conduct intended by the businesses was not unlawful or misleading. In fact, the court found that the statute does not promote the accuracy of information in plaintiffs&rsquo; places of business. To that end, the court found that the statute was more extensive than necessary and did not advance the state&rsquo;s interest because California has other means of preventing consumers&rsquo; deception. For example, the court suggested that &ldquo;the state could simply ban deceptive or misleading surcharges.&rdquo; In all, the court held that California could not prevent plaintiffs from communicating credit card surcharges to their customers and awarded the plaintiffs&rsquo; injunctive relief.&nbsp;</div> <div> &nbsp;</div> <div> <strong>The trend</strong></div> <div> &nbsp;</div> <div> The Ninth Circuit&rsquo;s decision is the latest in a series of rulings in other states, including Florida and New York, which have indicated that the surcharge ban is unconstitutional. Major credit card companies have also generally eliminated from their contracts language that bans retailers from imposing surcharges on customers using credit cards. However, some card companies require advance notice and other disclosure requirements from the business if the business intends to impose a surcharge. Additionally, certain credit card companies prohibit surcharging debit cards, while other card companies require merchants that choose to surcharge credit cards to surcharge all payment card options, including debit cards.&nbsp; This effectively makes it impossible for most merchants to surcharge credit card transactions and still comply with the various credit card merchant agreements. It may be a stretch to say that customers will start using cryptocurrency, but customers may be more inclined to pay with cash, debit cards, or checks to avoid the credit card fees if more businesses add a surcharge to sticker-prices for those who pay with credit cards. Thus, notwithstanding the Ninth Circuit&rsquo;s ruling, businesses in California should think about the implications of imposing a surcharge that may affect both their commercial and customer relations.</div> <div> &nbsp;</div> <div> Businesses who maintain credit card payment systems and credit card companies who contract with retailers that accept their credit cards are welcome to reach out to us for further guidance and compliance recommendations on this issue.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL011118 DOL Bids Adieu to Six-Factor Internship Test http://www.seyfarth.com:80/publications/EL011118 Thu, 11 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The Department of Labor has scrapped its 2010 Fact Sheet on internship status and adopted the more flexible and employer-friendly test devised by Second Circuit.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/dol-bids-adieu-to-six-factor-internship-test/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS011018 Upcoming Webinar! 2017 National Year In Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete, and Computer Fraud Law http://www.seyfarth.com:80/publications/TS011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> On January 25th at 12:00 p.m. Central Time, in Seyfarth&rsquo;s first installment of its 2018 Trade Secrets Webinar series, Seyfarth attorneys will review noteworthy cases and other legal developments from across the nation over the last year in the areas of trade secrets and data theft, non-competes and other restrictive covenants, and computer fraud. Plus, they will provide their predictions for what to watch for in 2018.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/01/articles/trade-secrets/upcoming-webinar-2017-national-year-in-review-what-you-need-to-know-about-the-recent-cases-developments-in-trade-secrets-non-compete-and-computer-fraud-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/neih011018 Robert Fisher and Molly Mooney authored an article in New England In-House http://www.seyfarth.com:80/publications/neih011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> Robert Fisher and Molly Mooney authored a January 10 article in New England In-House, &quot;Company investors and board members off the hook for unpaid wages.&quot; The article discusses the important decision from the Massachusetts Supreme Judicial Court which clarified the scope of personal liability for unpaid wages under the Massachusetts Wage Act. You can read the <a href="http://newenglandinhouse.com/2018/01/10/company-investors-and-board-members-off-the-hook-for-unpaid-wages/">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM011018-HL CMS Publishes Final Rule to Cancel Medicare Episode Payment and Cardiac Rehab Incentive Payment Models, and to Cut Back Joint Replacement Model http://www.seyfarth.com:80/publications/OMM011018-HL Wed, 10 Jan 2018 00:00:00 -0500 <div> <em>This is the first in a series of alerts from Seyfarth&rsquo;s <a href="http://www.seyfarth.com/healthcare" target="_blank">Health Law</a> practice highlighting significant changes in health care regulations and policy as providers and other industry participants enter 2018.</em></div> <div> &nbsp;</div> <div> On December 1, 2017, the Centers for Medicare and Medicaid Services (CMS) published a final rule to cancel Medicare&rsquo;s hospital Episode Payment Models (EPMs) and Cardiac Rehabilitation (CR) incentive payment models, and to rescind the related Obama-era regulations.&nbsp; In addition, CMS revised certain aspects of the Comprehensive Care for Joint Replacement (CJR) model.&nbsp; The CJR changes reduce the number of mandatory hospital participants in CJR by approximately one-half, and create a one-time voluntary option to participate in CJR for hospitals whose participation was mandatory but is voluntary under the new rule.&nbsp; The opt-in also applies to rural hospitals and low volume hospitals in the MSAs to which CJR applies.</div> <div> &nbsp;</div> <div> <strong>EPMs and CR</strong></div> <div> &nbsp;</div> <div> CMS had previously established three bundled payment models for acute myocardial infarction, coronary artery bypass graft, and surgical hip/femur fracture treatment.&nbsp; As noted, CMS has cancelled these models.&nbsp; CMS concluded, based on stakeholder feedback, that certain aspects of the design of the EPMs and CR incentive payment model should be improved and more fully developed prior to the start of the models, and to start the models as previously scheduled would not be in the interest of providers or beneficiaries.</div> <div> &nbsp;</div> <div> <strong>CJR</strong></div> <div> &nbsp;</div> <div> Under the final rule, the CJR model would continue on a mandatory basis in approximately half of the originally selected MSAs (that is, 34 of the 67 selected areas) with an exception for low-volume and rural hospitals, and continue on a voluntary basis in the other areas (that is, 33 of the 67 areas).&nbsp; The mandatory and voluntary MSAs are listed in the December 1, 2017 <em>Federal Register</em> at pages 57076-57079.&nbsp; Low-volume and rural hospitals, and hospitals located in a voluntary MSA, may opt in to CJR on a one-time basis from January 1, 2018 through January 31, 2018.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Finally, CMS published in this rule a final rule with comment period allowing for CJR payment adjustments for hospitals affected by extreme and uncontrollable circumstances.&nbsp; In general, these are hospitals located in declared disaster areas.&nbsp; Examples given by CMS include areas impacted by Hurricanes Harvey, Irma and Nate, and the recent California wildfires.&nbsp; Hurricane Maria was not mentioned because there are no CJR hospitals in Puerto Rico.&nbsp; The new rule allows for a CJR payment increase for hospitals affected by these circumstances.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Hospitals for which CJR participation is no longer mandatory (as well as rural and low-volume hospitals) should assess, as soon as possible, whether it is advantageous to opt in to CJR.</div> <div> &nbsp;</div> <div> Comments on this final rule with comment period are due by 5:00 p.m., January 30, 2018.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA011018-LE TPS Ending for El Salvador, Haiti & Nicaragua, and a Short Reprieve for Hondurans Still Waiting to Know Their Fate - Now What? http://www.seyfarth.com:80/publications/MA011018-LE Wed, 10 Jan 2018 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:&nbsp;</em></strong><em>The Department of Homeland Security ends Temporary Protected Status for El Salvador, Nicaragua, and Haiti, affecting close to 300,000 individuals.&nbsp; Employers should be prepared to handle the influx of work authorization automatic extensions, expiring work authorizations, and other Form I-9 issues that may arise.</em></p> <p> <strong>What Happened?</strong></p> <p> On Monday, January 8, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced the termination of Temporary Protected Status (TPS) for El Salvador.&nbsp; El Salvador&rsquo;s TPS designation was set to expire on March 9, 2018, but Secretary Nielsen delayed termination for 18 months to September 9, 2019 in order to &ldquo;provide for an orderly transition.&rdquo;&nbsp; This decision affects an estimated 200,000 Salvadoran foreign nationals.</p> <p> Similarly, Nicaragua&rsquo;s TPS was set to expire on January 5, 2018, but was extended to January 5, 2019.&nbsp;&nbsp; The Department of Homeland Security (DHS) also previously announced the termination of TPS for Haiti.&nbsp; Haiti&rsquo;s TPS termination was delayed for 18 months from the original expiration, with TPS now terminating on July 22, 2019.&nbsp; Together, these decisions affect an estimated 5,300 Nicaraguan and 59,000 Haitian foreign nationals.</p> <p> DHS has delayed its decision related to the future of TPS for Honduras, a country with an estimated 86,000 TPS beneficiaries.&nbsp; Instead, USCIS published another Federal Register notice, extending Honduras&rsquo; TPS designation for six months until July 5, 2018.</p> <p> With the termination of TPS for El Salvador, Nicaragua, and Haiti, fewer than 100,000 persons will remain beneficiaries of TPS.&nbsp; Current TPS beneficiaries may remain in the United States, if eligible to seek an alternative immigration status.&nbsp; For some Salvadorans in particular, this may be possible as there are an estimated 190,000 U.S. citizen children of Salvadoran TPS beneficiaries.&nbsp; As some of them near the age of 21, they will be old enough to file family-based immigration petitions for their parents.</p> <p> <strong>What is TPS and What Should Employers Know About It?</strong></p> <p> TPS allows foreign nationals to live and work in the United States if the Secretary of Homeland Security designates that the conditions in the foreign country prevent the country&rsquo;s nationals from returning safely, or if the country is unable to handle the return of its nationals.&nbsp; Because decisions to extend TPS have historically taken place with little notice and new Employment Authorization Documents (EADs) take many months to be issued, existing TPS EADs are automatically extended in order to allow for continued work authorization and limit disruption to the workforce.</p> <p> <strong>Form I-9</strong></p> <p> Human Resources professionals and other individuals performing I-9 related duties should be familiar with how to complete the Form I-9 for individuals with TPS automatic extensions.&nbsp; Where DHS automatically extends the validity date of the employee&rsquo;s EAD, the employee does not need to also present an I-797C, Notice of Action (I-797C).&nbsp; According to a recent notice issued by the Department of Justice, Immigrant and Employee Rights Section (IER) &ldquo;if your employee has an Employment Authorization Document with an original expiration date of January 5, 2018 and containing the category code &lsquo;A-12&rsquo; or &lsquo;C-19,&rsquo; this EAD is automatically extended and the employee may continue to work without a new one (and without a receipt notice) through the end of the automatic extension period.&rdquo;&nbsp; TPS Honduras EADs have been automatically extended for six months, through July 4, 2018.&nbsp; TPS Nicaragua EADs have been automatically extended for 60 days, through March 6, 2018.&rdquo;&nbsp; USCIS has not yet posted on auto-extensions for El Salvador.&nbsp;</p> <p> Information on when an employee may choose to show their EAD and I-797C is available in this USCIS <a href="https://www.uscis.gov/sites/default/files/USCIS/Verification/I-9%20Central/FactSheets/Fact-Sheet-AutoExtendEAD.pdf">Fact Sheet</a>.&nbsp; An I-797C comes in many forms, and the specific type that an employer should watch for is also known as a &ldquo;Receipt Notice.&rdquo;&nbsp; Further discussion of how to complete a Form I-9 based on an automatic extension will be posted shortly on the Seyfarth <a href="https://www.bigimmigrationlawblog.com/">Immigration Blog</a>.</p> <p> <strong>What Should Employers Do Now?</strong></p> <p> To the extent possible, employers with large TPS populations should encourage their employees to file applications for EADs as early as possible; for Salvadorans, it is important they receive the Form I-797C, before March 6, 2018, pending further guidance from USCIS.&nbsp; USCIS has reminded employers that &ldquo;filing early will help them avoid lapses in their employment authorization documentation.&rdquo;&nbsp;</p> <p> Furthermore, understanding how to complete, update and maintain the Form I-9 is at the core of immigration compliance.&nbsp; Timely completion and reverification, including recording an automatic extension, are essential to avoid fines and penalties by Immigration and Customs Enforcement (ICE).&nbsp; For a detailed review of how to record TPS and other automatic extensions, visit the posted guidelines on the USCIS <a href="https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension">website</a>.&nbsp; The automatic extension is an interim (and potentially complicated) step, necessitating additional follow up after the automatic extension expiration and Section 3 updates.</p> <p> Employers utilizing electronic Forms I-9 should ensure that these interim updates are recorded correctly by the software, both on the I-9 printout and in the electronic audit trail.&nbsp; The immigration regulations at 8 CFR 274a.2 require that whenever an electronic I-9 is created, completed, updated, modified, altered or corrected, an electronic I-9 system must create a secure and permanent record that establishes the date accessed, who accessed it, and what action was taken.&nbsp; Not all electronic I-9 vendors correctly support the complicated process that USCIS requires to record automatic extensions and relevant updates.&nbsp; Accordingly, employers should ensure their vendors are actually adhering to compliance on an ongoing basis, not just taking for granted that everything is correct.</p> <p> <strong>What Should Employers Consider Going Forward?</strong></p> <p> U.S. companies may wish to conduct an assessment of the number of potentially affected individuals in their employ.&nbsp; As discussed, recent Form I-9 guidance and auto-extension rules generally require employers to now review and match employment eligibility basis codes with I-797C.&nbsp; Reviewing, and perhaps tracking these category codes, which are listed on employment authorization documents, may provide a starting point to assess the impact of the loss of TPS beneficiaries on the workforce.&nbsp; While a discussion of Deferred Action for Childhood Arrivals (DACA) is beyond the scope of this article, some companies are also considering a similar review of Forms I-9 in order to determine the number of employees in DACA status in an effort to plan with an eye towards ensuring workforce stability.&nbsp; Such an undertaking should be implemented with the assistance of competent counsel to ensure that there are no anti-discrimination-based missteps.</p> <p> With the recent termination of several TPS programs, including that of El Salvador and the possibility of termination for Honduras, the number of potentially affected individuals exceeds 300,000, with some being in the U.S. for two decades.&nbsp; Despite respective countries lobbying the White House, Congress, and other stakeholders to retain their TPS designations, these recent decisions have demonstrated the administration&rsquo;s continued interest in terminating the TPS program.&nbsp; Coupled with the scheduled staggered termination of the DACA program, hundreds of thousands of individuals are set to lose their work authorization throughout 2019.&nbsp; The Seyfarth Immigration Compliance and Enforcement Team will continue to keep employers up to date on Form I-9 obligations as well as the latest news from DHS.&nbsp; Subscribe to our blog <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">here</a>.</p> http://www.seyfarth.com:80/publications/MA011018-EB DOL’s New Disability Plan Claims Regulations to Become Effective http://www.seyfarth.com:80/publications/MA011018-EB Wed, 10 Jan 2018 00:00:00 -0500 <div> The Department of Labor&rsquo;s new regulations governing disability claims and appeals <a href="https://www.gpo.gov/fdsys/pkg/FR-2016-12-19/pdf/2016-30070.pdf">published </a>on December 19, 2016 will go&nbsp;<span style="font-size: 12px;">into effect on April 1, 2018, as <a href="https://www.dol.gov/newsroom/releases/ebsa/ebsa20180105">announced by the DOL</a> on January 5, 2018.</span></div> <div> &nbsp;</div> <div> The stated purpose of the new regulations is to strengthen the current disability claims rules under ERISA primarily by&nbsp;<span style="font-size: 12px;">adopting certain procedural protections and safeguards applicable to group health plans under the Affordable Care Act.&nbsp;</span><span style="font-size: 12px;">The new regulations were originally effective as of January 18, 2017, but were intended to apply only to disability claims&nbsp;</span><span style="font-size: 12px;">filed on or after January 1, 2018. After a short delay by the DOL, the regulations now will apply to claims filed on or after&nbsp;</span><span style="font-size: 12px;">April 1, 2018. The DOL announced that comments received during the delay did not establish that their &ldquo;final rule imposes&nbsp;</span><span style="font-size: 12px;">unnecessary regulatory burdens or significantly impairs workers&rsquo; access to disability insurance benefits.&rdquo; This clearly&nbsp;</span><span style="font-size: 12px;">establishes the April 1, 2018 effective date and there is unlikely to be another extension.</span></div> <div> &nbsp;</div> <div> <span style="color:#800080;"><strong>What Do the Final Rules Require?</strong></span></div> <div> &nbsp;</div> <div> The final regulations make several substantive changes to the existing regulations applicable to disability claims and appeals:</div> <div> &nbsp;</div> <ul> <li> To ensure the independence and impartiality of claims and appeals decision-makers, any decisions regarding&nbsp;<span style="font-size: 12px;">hiring, compensation, termination, promotion, or other similar matters with respect to any individual (such as a&nbsp;</span><span style="font-size: 12px;">claims adjudicator or medical expert) must not be made based on the likelihood that the individual will support&nbsp;</span><span style="font-size: 12px;">a denial of benefits.</span><br /> &nbsp;</li> <li> Adverse benefit determinations must: <ul> <li> Include a discussion of the decision, with the basis for disagreeing with the views or decisions of any&nbsp;<span style="font-size: 12px;">treating health care professionals, vocational experts, or other payers of benefit who granted the&nbsp;</span><span style="font-size: 12px;">claimant&rsquo;s similar claims (including disability determinations by the SSA);</span></li> <li> Include the plan&rsquo;s specific internal rules, guidelines, protocols, standards, or other similar criteria relied&nbsp;<span style="font-size: 12px;">upon in making the adverse determination or, alternatively, a statement that such plan rules, guidelines,&nbsp;</span><span style="font-size: 12px;">protocols, standards or other similar criteria do not exist;</span></li> <li> Include a statement that the claimant is entitled to receive, upon request and free of charge, reasonable&nbsp;<span style="font-size: 12px;">access to, and copies of, all documents, records, and other information relevant to the claim (previously,&nbsp;</span><span style="font-size: 12px;">this statement was only required for adverse determinations at the appeals stage);</span></li> <li> Be provided in a culturally and linguistically appropriate manner; and</li> <li> Describe (in addition to the claimant&rsquo;s right to bring an action under ERISA &sect;502(a)) any applicable&nbsp;<span style="font-size: 12px;">contractual limitation period that applies to the claimant&rsquo;s right to bring such an action, including the&nbsp;</span><span style="font-size: 12px;">calendar date on which the contractual limitations period expires.</span><br /> &nbsp;</li> </ul> </li> <li> A plan&rsquo;s disability claims procedures must: <ul> <li> Allow a claimant to review the claim file and present evidence and testimony as part of the claims and&nbsp;<span style="font-size: 12px;">appeals process;</span></li> <li> Provide that the plan administrator shall provide the claimant, free of charge, with any new or additional&nbsp;<span style="font-size: 12px;">evidence considered, relied upon, or generated by the plan (or at the direction of the plan) in connection&nbsp;</span><span style="font-size: 12px;">with the claim. Such evidence must be provided as soon as possible and sufficiently <em>in advance</em> of the&nbsp;</span><span style="font-size: 12px;">date on which the notice of adverse benefit determination on review is required to give the claimant a&nbsp;</span><span style="font-size: 12px;">reasonable opportunity to respond before that date; and</span></li> <li> Provide that before a plan administrator can issue an adverse benefit determination on review based on <span style="font-size: 12px;">a new or additional rationale, the plan administrator must provide the claimant, free of charge, with the&nbsp;</span><span style="font-size: 12px;">rationale. Such rationale must be provided as soon as possible and sufficiently <em>in advance</em> of the date on&nbsp;</span><span style="font-size: 12px;">which the notice of adverse benefit determination on review is required to give the claimant a reasonable&nbsp;</span><span style="font-size: 12px;">opportunity to respond before that date.</span><br /> &nbsp;</li> </ul> </li> <li> Failure to establish or follow claims procedures consistent with the new (and existing) requirements will result&nbsp;<span style="font-size: 12px;">in the claimant being deemed to have exhausted the administrative remedies under the Plan and entitled to&nbsp;</span><span style="font-size: 12px;">pursue any available remedies under ERISA &sect;502(a). When this occurs, the claim or appeal will be deemed&nbsp;</span><span style="font-size: 12px;">to have been denied on review without the plan fiduciary exercising any discretion, unless the violation is <em>de&nbsp;</em></span><span style="font-size: 12px;"><em>minimis</em>. <em>De minimis</em> errors are those that:</span> <ul> <li> Do not cause, or are not likely to cause, prejudice or harm to the claimant;</li> <li> Were violations for good cause or due to matters beyond the control of the plan;</li> <li> Occurred in the context of an ongoing, good faith exchange of information between the plan and claimant;&nbsp;<span style="font-size: 12px;">or</span></li> <li> Are not part of a pattern or practice of violations by the plan.</li> </ul> </li> </ul> <div> <br /> In the event of any error, the claimant may request a written explanation from the plan, including a specific description of the&nbsp;<span style="font-size: 12px;">plan&rsquo;s bases, if any, for asserting that the error is <em>de minimis</em> and should not result in deemed exhausting of administrative&nbsp;</span><span style="font-size: 12px;">remedies. The Plan must provide this written explanation, if requested, within 10 days. The claimant may then decide&nbsp;</span><span style="font-size: 12px;">whether or not to pursue remedies under ERISA &sect;502(a). If a court rejects a claimant&rsquo;s request for immediate review on the&nbsp;</span><span style="font-size: 12px;">basis that the Plan&rsquo;s error was <em>de minimis</em>, the claim shall be considered as re-filed on appeal upon the Plan&rsquo;s receipt of the&nbsp;</span><span style="font-size: 12px;">court&rsquo;s decision, and the plan must provide the claimant with notice of the resubmission within a reasonable period of time.</span></div> <ul> <li> The term &ldquo;adverse benefit determination&rdquo; will include any rescission of disability coverage with respect to a&nbsp;<span style="font-size: 12px;">participant or beneficiary (whether or not, in connection with the rescission, there is an adverse effect on any&nbsp;</span><span style="font-size: 12px;">particular benefit at that time.) For this purpose, rescission means a cancellation or discontinuance of coverage&nbsp;</span><span style="font-size: 12px;">that has retroactive effect, except to the extent it is attributable to a failure to timely pay required premiums or&nbsp;</span><span style="font-size: 12px;">contributions towards the cost of coverage.</span></li> </ul> <div> &nbsp;</div> <div> <span style="color:#800080;"><strong>Impact on Employee Benefit Plans</strong></span></div> <div> &nbsp;</div> <div> These regulations will change the manner in which disability claims and appeals are processed with respect to both disability&nbsp;<span style="font-size: 12px;">welfare plans and retirement plans.</span></div> <div> &nbsp;</div> <div> <strong><em>Welfare</em></strong></div> <div> &nbsp;</div> <div> If your long-term disability plan is fully insured, the insurer will be incorporating the new regulatory requirements into their&nbsp;<span style="font-size: 12px;">processes. For those sponsors with self-funded long-term disability plans, the third party administrator will similarly have&nbsp;</span><span style="font-size: 12px;">to modify its internal processes to incorporate the new regulations. (Note that short term disability plans are not generally&nbsp;</span><span style="font-size: 12px;">subject to these regulations as they are typically an exempt payroll practice, not subject to ERISA.)</span></div> <div> &nbsp;</div> <div> <strong><em>Retirement</em></strong></div> <div> &nbsp;</div> <div> <span style="font-size: 12px;">Retirement plans may also be impacted by the final regulations if, upon a disability, the plan either pays a distribution inservice&nbsp;</span><span style="font-size: 12px;">or vests accrued benefits. In these cases, a determination must be made as to whether the participant has incurred&nbsp;</span><span style="font-size: 12px;">a disability within the meaning of the plan. Where the plan relies on a definition of disability as a determination made by the&nbsp;</span><span style="font-size: 12px;">Social Security Administration or the plan sponsor&rsquo;s long-term disability insurer, then the retirement plan administrator does&nbsp;</span><span style="font-size: 12px;">not have a concern. However, if the determination of disability resides with the retirement plan administrator, the retirement&nbsp;</span><span style="font-size: 12px;">plan must be amended to reflect the standards in the new regulations and administration must also be adjusted accordingly.</span></div> <div> &nbsp;</div> <div> <em><strong>Action Items:</strong></em></div> <div> &nbsp;</div> <ul> <li> Employers who handle disability claims and appeals internally will need to re-evaluate their existing procedures&nbsp;<span style="font-size: 12px;">and tailor them to the new requirements. Even employers who utilize third-party administrators for disability&nbsp;</span><span style="font-size: 12px;">claims and appeals will need to work with their third-party administrators to ensure that any necessary changes&nbsp;</span><span style="font-size: 12px;">are incorporated into existing procedures.</span></li> <li> All plan sponsors will need to review their plan documents and update as appropriate to reflect these new&nbsp;<span style="font-size: 12px;">regulations.</span></li> <li> Plan administrators will need to ensure that summary plan descriptions reflect the new regulatory requirements.</li> </ul> http://www.seyfarth.com:80/publications/OMM11018-LE Governor Christie Expands Protections For Breastfeeding Women Under The New Jersey Law Against Discrimination http://www.seyfarth.com:80/publications/OMM11018-LE Wed, 10 Jan 2018 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:</strong> On January 8, 2018 Governor Chris Christie signed into law an amendment to the New Jersey Law Against Discrimination making it unlawful for an employer to terminate or discriminate against women who breastfeed or pump milk on the job. In addition, effective immediately, employers must provide accommodations to nursing women to express breast milk unless the employer can demonstrate that providing the accommodation would be an undue hardship.</em></p> <p> <span style="text-align: justify;">With his term coming to an end later this month, Governor Chris Christie signed into law on January 8, 2018 an amendment to the New Jersey Law Against Discrimination (&ldquo;NJLAD&rdquo;) making it unlawful for an employer to terminate or discriminate against women who breastfeed or pump milk on the job. In addition, effective immediately, employers must provide accommodations to nursing women, including reasonable break time each day and a suitable room or other private location, other than a toilet stall, in close proximity to the work area for women to express breast milk unless the employer can demonstrate that providing the accommodation would be an undue hardship on the employer&rsquo;s business operations.</span></p> <p class="BodySingle" style="text-align:justify"> <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> Pursuant to the NJLAD, an employer can consider the following factors when determining whether granting an accommodation would impose an undue hardship: &ldquo;the overall size of the employer&rsquo;s business with respect to the number of employees, number and type of facilities, and size of budget; the type of the employer&rsquo;s operations, including the composition and structure of the employer&#39;s workforce; the nature and cost of the accommodation needed, taking into consideration the availability of&nbsp; tax credits, tax deductions, and outside funding; and the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.&rdquo; <o:p></o:p></p> <p class="BodySingle"> The bill&rsquo;s sponsors backed the new law as a means to support breastfeeding women in balancing work and motherhood without fear of repercussions.<o:p></o:p></p> <p class="BodySingle"> Employers should be sure to make these accommodations available now and update their anti-discrimination policies to include breastfeeding status as a protected trait under the NJLAD.<o:p></o:p></p> http://www.seyfarth.com:80/publications/WC011018 Seyfarth’s 2018 Workplace Class Action Litigation Report Is Now Available! http://www.seyfarth.com:80/publications/WC011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: At 878 pages, Seyfarth&rsquo;s 14th Annual Workplace Class Action Litigation Report analyzes 1,408 rulings and is our biggest and most voluminous Report ever.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/seyfarths-2018-workplace-class-action-litigation-report-is-now-available/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH011018 “They’re Back. . . Part II: The DOL Reissues 17 Previously Withdrawn Opinion Letters” http://www.seyfarth.com:80/publications/WH011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The DOL has reissued 17 opinion letters it withdrew in 2009. It has also issued two new field assistance bulletins. The DOL&rsquo;s new openness to answering employer questions, and providing written guidance, harbors good things for both employers and employees.<br /> <br /> <a href="https://www.wagehourlitigation.com/dol-compliancerule-making/theyre-back-part-ii-the-dol-reissues-17-previously-withdrawn-opinion-letters/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/wcar011018 Settlements Explode to All-Time High: Seyfarth’s 14th Annual Workplace Class Action Report Details Historic Explosion with Billions in Settlements and Four Key Trends in Workplace Class Action Litigation for 2018 http://www.seyfarth.com:80/news/wcar011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> CHICAGO (January 10, 2018) &ndash; Seyfarth Shaw LLP has released its 14th annual edition of the <em>Workplace Class Action Litigation Report</em>, which is recognized as the nation&rsquo;s most complete guide to workplace-related complex litigation. In this year&rsquo;s <em>Report</em>, Seyfarth analyzed a record number of 1,408 class action rulings on a circuit-by-circuit and state-by-state basis to capture key themes from 2017 and emerging litigation trends facing U.S. companies in 2018.</p> <p> Described as the &ldquo;definitive source of information on employment class action litigation&rdquo; and a resource that &ldquo;no practitioner who deals with employment claims. . . should be without&rdquo; by <em>EPLiC Magazine</em>, Seyfarth&rsquo;s <em>Report</em> is the sole compendium in the U.S. dedicated exclusively to workplace class action litigation. In its largest edition to date, the 885-page <em>Report</em> is the &ldquo;go to&rdquo; research and resource guide for businesses and their corporate counsel facing complex litigation in the coming year.</p> <p> &ldquo;When one delves into the most striking aspects of this year&rsquo;s class action litigation in state and federal courts, the growth in wage and hour settlements, which have risen the past two years to a combined value of 1.2 billion dollars, is the number one exposure for corporations heading into 2018,&rdquo; said Seyfarth partner and author of the <em>Report</em>, Gerald L. Maatman, Jr. &ldquo;The twists and turns of the transition in the White House also created one of the most surprising and dramatic spikes in government enforcement litigation that we&rsquo;ve ever seen.&rdquo;</p> <p> Building on these class action litigation developments, the Seyfarth <em>Report</em> details the four key employment litigation trends for corporations in 2018:</p> <ol> <li> <strong>Settlements Skyrocket:</strong> The monetary value of the top workplace class action settlements shot up nearly $1 billion dollars, rising by over $970 million to reach an all-time record high of $2.72 billion in 2017.</li> <li> <strong>Employers Continue to Improve Batting Average in Defeating Class Certification:</strong> Evolving case law precedents and new defense approaches resulted in better statistical outcomes for employers in opposing class certification requests for the second straight year. In one of the most active categories, wage &amp; hour litigation, employers won 63% of decertification rulings, a success rate up nearly 20% from 2016.</li> <li> <strong>Government Enforcement Litigation Ballooned:</strong> With the federal government in transition with a new Administration, 2017 results were heavily influenced by Obama Administration holdover policies and personnel as government enforcement litigation increased. EEOC filings more than doubled, rising to 184 lawsuits in 2017 from 86 the previous year, while the top government settlements spiked nearly ten-fold -- from $52.3 million in 2016 to $485.25 million in 2017. This balloon is expected to burst in 2018 as the Trump Administration settles in further, pulling back these policies and positions; yet, at the same time, it is expected that the private plaintiffs&rsquo; class action bar will step up their lawsuit filings and &ldquo;fill the void.&rdquo;</li> <li> <strong>U.S. Supreme Court Poised to Reshape Employment and Class Action Landscape:</strong> After issuing several key decisions in 2017 that were arguably more pro-business and pro-employer than in the past, the Supreme Court could profoundly change the class action playing field in 2018 with its highly anticipated ruling on the legality of workplace arbitration agreements with class action waivers.</li> </ol> <p> To view additional videos, charts and data from the <em>Workplace Class Action Litigation Report</em> please visit <a href="http://www.workplaceclassactionreport.com">www.workplaceclassactionreport.com</a>, where you may also request a copy. Available as a downloadable eBook, the Seyfarth <em>Report </em>is fully searchable, compatible with all major devices, allows readers to bookmark useful sections for easy future reference, and includes a number of other features, such as note-taking, highlighting and more.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/wcarwsj011018 Seyfarth's Workplace Class Action Report profiled in the Wall Street Journal http://www.seyfarth.com:80/news/wcarwsj011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action report was profiled in a January 10 story from the Wall Street Journal, &quot;Employers&rsquo; Payouts Surge to Settle Claims Over Worker Treatment,&quot; on how U.S. employers are shelling out more money than ever to resolve legal fights over their treatment of workers. The Report&#39;s author Gerald Maatman said that several longstanding private plaintiff class actions and government enforcement lawsuits initiated by the Obama administration coalesced into some blockbuster settlements in 2017. You can read the <a href="https://www.wsj.com/articles/employers-payouts-surge-to-settle-claims-over-worker-treatment-1515596400">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarnlj011018 Seyfarth's Workplace Class Action Report profiled in the National Law Journal http://www.seyfarth.com:80/news/wcarnlj011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 10 story from the National Law Journal, &quot;Workplace Class Action Balloon Will &#39;Burst&#39; as Trump Takeover Settles: Seyfarth Report.&quot; The Report&#39;s author Gerald Maatman predicted 2018 will be a year of a dramatic shift and agencies are not expected to be pursue with the same vigor the number of suits they did in previous years. You can read the <a href="https://www.law.com/nationallawjournal/sites/nationallawjournal/2018/01/10/workplace-class-action-balloon-will-burst-as-trump-takeover-settles-seyfarth-report/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarbi011018 Seyfarth's Workplace Class Action Report profiled by Business Insurance http://www.seyfarth.com:80/news/wcarbi011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 10 story from Business Insurance, &quot;Government still pushing envelope on workplace issues: report.&quot; The Report&#39;s author Gerald Maatman writes that, despite the change in administration, litigation filed by the U.S. Equal Employment Opportunity Commission and the U.S. Department of Labor have continued to manifest an aggressive &ldquo;push-the-envelope&rdquo; agenda, with regulatory oversight of workplace issues still a high priority. You can read the <a href="http://www.businessinsurance.com/article/20180110/NEWS06/912318430/Government-still-pushing-envelope-on-workplace-issues-report">full article here</a>.</p> http://www.seyfarth.com:80/news/wcareld011018 Seyfarth's Workplace Class Action Report profiled in Employment Law Daily http://www.seyfarth.com:80/news/wcareld011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 10 story from Employment Law Daily, &quot;REPORTS&mdash;Seyfarth Shaw class action report suggests wage-hour settlements top exposure for companies in 2018.&quot; The Report&#39;s author Gerald Maatman said that when one delves into the most striking aspects of this year&rsquo;s class action litigation in state and federal courts, the growth in wage and hour settlements, which have risen the past two years to a combined value of 1.2 billion dollars, is the number one exposure for corporations heading into 2018.</p> http://www.seyfarth.com:80/news/wcarlaw360011018 Seyfarth's Workplace Class Action Report profiled in Law360 http://www.seyfarth.com:80/news/wcarlaw360011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 10 story from Law360, &quot;Plaintiffs Will Pick Up Labor Enforcement Slack: Study.&quot; Overall, the report found that the top 10 settlements in government enforcement litigation increased nearly tenfold from $52.3 million in 2016 to over $485 million in 2017. The Report&#39;s author Gerald Maatman attributed the enforcement scrutiny to a holdover of cases from the Obama administration, adding that the process for getting Trump administration nominees confirmed to key labor agency posts was slow and kept new agency priorities from taking hold.</p> http://www.seyfarth.com:80/news/wcarreuters011018 Seyfarth's Workplace Class Action Report profiled in Reuters http://www.seyfarth.com:80/news/wcarreuters011018 Wed, 10 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 10 story from Reuters, &quot;Employment-related settlements shattered records in 2017- Seyfarth.&quot; The Report&#39;s author Gerald Maatman said the high settlement totals, up from $1.75 billion in 2016, suggested that plaintiffs&rsquo; lawyers have found creative ways to work around the high bar for class certification set by the U.S. Supreme Court in the 2011 case Wal-Mart Stores Inc v. Dukes.</p> http://www.seyfarth.com:80/news/adahrdive010918 Seyfarth's ADA Title III blog referenced in HR Dive http://www.seyfarth.com:80/news/adahrdive010918 Tue, 09 Jan 2018 00:00:00 -0500 <p> Seyfarth&#39;s ADA Title III blog was referenced in a January 9 story from HR Dive, &quot;Website accessibility suits flooded the courts in 2017.&quot; According to the blog post, plaintiffs filed at least 814 website accessibility lawsuits last year. You can read the <a href="https://www.hrdive.com/news/website-accessibility-suits-flooded-the-courts-in-2017/514359/">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonshrm010918 Camille Olson quoted in SHRM http://www.seyfarth.com:80/news/olsonshrm010918 Tue, 09 Jan 2018 00:00:00 -0500 <p> Camille Olson was quoted in a January 9 story from SHRM,&quot;Will DOL&rsquo;s New Intern Test Revive Unpaid Internships?,&quot; on how the new test provides employers with more flexibility. Olson said that the new test is meant to eliminate confusion by aligning the DOL&#39;s position to that of the trend in case law and to give both businesses and DOL investigators more flexibility in examining internship programs. She continued that the test is also meant to take into consideration that nonmonetary benefits often flow to interns in connection with an internship relationship. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/intern-employee-DOL-new-test.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT010918 And Now for the Rest of the Year http://www.seyfarth.com:80/publications/TBT010918 Tue, 09 Jan 2018 00:00:00 -0500 <p> It&rsquo;s only the second week of January, and it has already been a wild year in the cannabis industry. First, legal sales of recreational marijuana started in California, and then Jeff Sessions rescinded the Cole Memorandum. What next? Here are seven stories to follow in 2018.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/01/and-now-for-the-rest-of-the-year/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/HCRMA010917 Issue 117: DOL Issues Proposed Rules On Association Health Plans http://www.seyfarth.com:80/publications/HCRMA010917 Tue, 09 Jan 2018 00:00:00 -0500 <p> <em>This is the one hundred and seventeenth 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 our series.)&nbsp; This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></p> <div> In October 2017, President Trump issued Executive Order 13813 directing the Department of Labor (DOL) to propose rules&nbsp;<span style="font-size: 12px;">expanding access to health coverage by allowing more employers to form association health plans (AHPs). On January 4,&nbsp;</span><span style="font-size: 12px;">2018, in response to this directive, the DOL proposed rules which would allow employers to form an AHP on the basis of&nbsp;</span><span style="font-size: 12px;">geography or industry. In general, the rules would benefit small employers, but large employers could potentially realize cost&nbsp;</span><span style="font-size: 12px;">savings or administrative efficiencies from using an AHP.&nbsp;</span></div> <div> &nbsp;</div> <div> <span style="font-size: 12px;">An employee welfare benefit plan is defined in ERISA to include a plan, fund or program established or maintained by an&nbsp;</span><span style="font-size: 12px;">&ldquo;employer or by an employer organization&rdquo; for the purpose of providing for its participants or their beneficiaries, medical,&nbsp;</span><span style="font-size: 12px;">surgical or hospital care or benefits&hellip;.Thus, in order to be an employee welfare benefit plan, a plan must be established or&nbsp;</span><span style="font-size: 12px;">maintained by an employer or employee organization. Under the current definition of &ldquo;employer,&rdquo; groups of employers&nbsp;</span><span style="font-size: 12px;">can participate in a single plan if they are part of the same controlled group, or if they are part of a bona fide employer&nbsp;</span><span style="font-size: 12px;">group or association. Under existing guidance, a bona fide group of employers must share &ldquo;some common economic or&nbsp;</span><span style="font-size: 12px;">representation interest or genuine organizational relationship unrelated to the provision of benefits&rdquo;. (See ERISA Opinion&nbsp;</span><span style="font-size: 12px;">Letter No. 2008-07A.)</span></div> <div> &nbsp;</div> <div> The proposed rules would redefine &ldquo;employer&rdquo; and broaden the common interest requirement to remove the condition that&nbsp;<span style="font-size: 12px;">employers must have a purpose other than offering health coverage. In other words, employers could join together for the&nbsp;</span><span style="font-size: 12px;">sole purpose of providing health coverage to employees, if the employer members have a &ldquo;commonality of interest&rdquo;, defined&nbsp;</span><span style="font-size: 12px;">as either: i) being in the same trade, industry, line of business or profession; or ii) having a principal place of business in a&nbsp;</span><span style="font-size: 12px;">region that does not exceed the boundaries of the same State or metropolitan area.</span></div> <div> &nbsp;</div> <div> In addition, the rules would require each employer member be the common law employer of at least one employee who is&nbsp;<span style="font-size: 12px;">participating in the plan, and the group to:</span></div> <div> &nbsp;</div> <ul> <li> exist for the purpose, in whole or in part, of sponsoring a group health plan that it&nbsp;<span style="font-size: 12px;">offers to its employer members;</span></li> <li> <span style="font-size: 12px;">have a formal organizational structure with a governing body and by-laws or other&nbsp;</span><span style="font-size: 12px;">similar indications of formality;</span></li> <li> make health coverage available only to employees and former employees (and family&nbsp;<span style="font-size: 12px;">members or other beneficiaries);</span></li> <li> control the establishment and maintenance of the group health plan;</li> <li> comply with various HIPAA nondiscrimination provisions to prevent discrimination based&nbsp;<span style="font-size: 12px;">on health status; and</span></li> <li> not be a health insurance issuer.</li> </ul> <div> &nbsp;</div> <div> Finally, the rules provide that a working owner of a trade or business could qualify both as an employer and employee. This&nbsp;<span style="font-size: 12px;">would give sole proprietors the opportunity to join together to provide health plans to their employees.&nbsp;</span></div> <div> &nbsp;</div> <div> <span style="font-size: 12px;">Although the new AHPs would arguably provide more affordable health care to small employers, critics say that the plans&nbsp;</span><span style="font-size: 12px;">would be considered &ldquo;large-group plans&rdquo; and, thus, employees would lose certain protections. Additional ACA requirements&nbsp;</span><span style="font-size: 12px;">apply in the small group market that do not apply in the large group or self-insured markets, such as required coverage for&nbsp;</span><span style="font-size: 12px;">essential health benefits.</span></div> <div> &nbsp;</div> <div> Notably, AHPs are a type of multiple employer welfare arrangement (MEWA). Accordingly, the Department points out that&nbsp;<span style="font-size: 12px;">AHPs would be subject to existing rules governing ERISA plans and MEWAs. For example, AHP MEWAs would be generally&nbsp;</span><span style="font-size: 12px;">subject to State insurance regulation. Specifically, if an AHP is self-insured, then any State insurance law that regulates&nbsp;</span><span style="font-size: 12px;">insurance may apply to the extent that such State law is not inconsistent with ERISA. If, on the other hand, an AHP is fullyinsured,&nbsp;</span><span style="font-size: 12px;">only those State insurance laws that regulate the maintenance of specified contribution and reserve levels may apply&nbsp;</span><span style="font-size: 12px;">to the AHP. (The Department notes that State rules vary widely in practice, and many States regulate AHPs less stringently&nbsp;</span><span style="font-size: 12px;">than the individual or small group market.) With respect to reporting requirements, AHP MEWAs that have 100 participants</span></div> <div> or more would be required to file a Form 5500 annual report, and would be required to file a Form M-1.&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size: 12px;">Comments on the proposed rules are due on or before March 6, 2018. The Department specifically invites comments on&nbsp;</span><span style="font-size: 12px;">whether additional provisions should be added to the final rule to assist existing employer associations, including MEWAs&nbsp;</span><span style="font-size: 12px;">that do not now constitute AHPs, in making adjustments to their business structures, governing documents, or group health&nbsp;</span><span style="font-size: 12px;">coverage to become AHPs under the final rule.</span></div> http://www.seyfarth.com:80/publications/OMM010918-LIT Warning to General Contractors: New California Law Makes Them Liable for Unpaid Subcontractor Wages http://www.seyfarth.com:80/publications/OMM010918-LIT Tue, 09 Jan 2018 00:00:00 -0500 <div> The California legislature has just enacted a new law that places a significant additional burden on general contractors performing private work in the state. The new law, codified as California Labor Code Section 218.7, makes a general contractor jointly liable for the failure of a subcontractor of any tier to pay the wages or fringe benefits owed to or on behalf of its workers. The new law applies to all construction contracts for private work entered into on or after January 1, 2018.</div> <div> &nbsp;</div> <div> The key features of Labor Code Section 218.7 are:</div> <div> &nbsp;</div> <ul> <li> General contractors are liable for their subcontractors&rsquo; (and all lower-tier subcontractors&rsquo;) failure to pay wages, fringe benefits or any other benefit payment or contributions, including any interest owed on such unpaid amounts.</li> <li> However, this liability does not extend to any penalties or liquidated damages.</li> <li> While wage claimants do not have a direct right of action against a general contractor, the State Labor Commissioner and Joint Labor-Management Corporation Committees may bring a direct civil action against a general contractor to recover unpaid wages on behalf of wage claimants. The Labor Commissioner may also initiate administrative hearings for the same purpose.&nbsp;&nbsp;</li> <li> In addition, Union Trust Funds owed fringe or other benefit payments on behalf of wage claimants may bring a direct civil action against a general contractor on behalf of the unpaid claimants.&nbsp;&nbsp;</li> <li> If either a Joint Labor-Management Corporation Committee or a Union Trust Fund prevails in its direct action against a general contractor, it shall be entitled to recover its reasonable attorneys&rsquo; fees and costs (including expert witness fees) from the general contractor; however, if the general contractor prevails, it is not entitled to recover its attorneys&rsquo; fees and costs.&nbsp;&nbsp;</li> </ul> <div> &nbsp;</div> <div> While there is no way for a general contractor to totally avoid the new law, there are several best practices and procedures that general contractors should follow in order to try and insulate themselves from the law&rsquo;s full force. These best practices and procedures include adding subcontract provisions that enable a general contractor to better monitor its subcontractors&rsquo; wage payment practices; that allow a general contractor to withhold payments based upon a good faith concern over the non-payment of wages and benefits; and that expressly require subcontractors to indemnify and defend a general contractor against non-payment claims of this type.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL010918 Rock and a [Softer] Hard Place: Seventh Circuit Eases the Burden for Accommodating Employees with Mental Health Disabilities http://www.seyfarth.com:80/publications/EL010918 Tue, 09 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Complying with the ADA, particularly when an employee has a mental health-related disability, can be challenging. Fortunately, a recent decision out of the Seventh Circuit provides helpful guidance for employers struggling to accommodate employees with mental health issues while at the same time maintaining safe and productive workplaces. The decision makes clear that in the appropriate circumstances, employers can require an employee to undergo a mental health examination as part of a fitness-for-duty test. The decision&mdash;and the New Year&mdash;also provides a good excuse for employers to evaluate their ADA policies and procedures.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/rock-and-a-softer-hard-place-seventh-circuit-eases-the-burden-for-accommodating-employees-with-mental-health-disabilities/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM10917-LE New Jersey Clarifies that Statewide Ban-the-Box Law Includes Expunged Records and Online Applications http://www.seyfarth.com:80/publications/OMM10917-LE Tue, 09 Jan 2018 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:</strong> The New Jersey ban-the-box law - &ldquo;The Opportunity to Compete Act&rdquo; &ndash; which restricts the ability of covered employers to inquire into, and use, criminal records, became effective on March 1, 2015. More recently, the New Jersey governor signed a bill amending that law to clarify that it covers online employment applications and includes requests for expunged records early in the hiring process.</em></p> <p> As previously reported, on August 11, 2014, New Jersey Governor Chris Christie signed &ldquo;The Opportunity to Compete Act&rdquo; &ndash; New Jersey&rsquo;s so-called &ldquo;ban-the-box&rdquo; law &ndash; which restricts the ability of covered employers to inquire into, and use, criminal records. That law became effective on March 1, 2015 and was part of a nationwide trend by states and local governments to enact legislation requiring employers to wait until later in the hiring process to inquire about and consider criminal history.</p> <p> <strong>What is Current Law in New Jersey?</strong></p> <p> As a reminder, the Act prohibits covered employers from requiring an &ldquo;applicant for employment&rdquo; to complete any &ldquo;employment application that makes any inquiries regarding an applicant&rsquo;s criminal record during the initial employment application process.&rdquo; &ldquo;Employment application&rdquo; is broadly defined to mean any &ldquo;form, questionnaire or similar document or collection of documents that an application for employment is required by an employer to complete.&rdquo;</p> <p> In addition, the Act makes it unlawful for covered employers to make &ldquo;any oral or written inquiry regarding an applicant&rsquo;s criminal record during the initial employment application process.&rdquo;&nbsp; The &ldquo;initial employment application process&rdquo; means &ldquo;the period beginning when an applicant for employment first makes an inquiry to an employer about a prospective employment position or job vacancy or when an employer first makes any inquiry to an applicant for employment about a prospective employment position or job vacancy, and ending when an employer has conducted a first interview, whether in person or by any other means, of an applicant for employment.&rdquo;&nbsp; This means that employers can make this inquiry after the initial employment application process has concluded (i.e., post-interview).</p> <p> If an applicant voluntarily discloses information about his or her criminal record during the initial employment application process, the employer may &ldquo;make inquiries regarding the applicant&rsquo;s criminal record during the initial employment application.&rdquo;</p> <p> Some positions are exempted from the ban-the-box requirement, including positions where, among other things:</p> <ul> <li> a criminal history record background check is required by law, rule or regulation;</li> <li> an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by any law, rule or regulation; or</li> <li> any law, rule or regulation restricts an employer&rsquo;s ability to engage in specific business activities based on the criminal records of its employees.</li> </ul> <p> <strong>What&rsquo;s New in the Act?</strong></p> <p> On December 20, 2017, Governor Chris Christie signed Senate Bill S-3306, which amended the Act in two respects.</p> <p> First, it clarified that the restrictions into inquiring about criminal history on an employment application apply to expunged records. The addition of &ldquo;expunged criminal records&rdquo; to the law is curious because the original version of it broadly covered &ldquo;criminal records&rdquo; generally, which certainly would have included expunged records.</p> <p> Second, the original law provided that employers could not make any &ldquo;oral or written&rdquo; inquiry regarding an applicant&rsquo;s criminal record during the initial employment application process. To make clear the prohibition is more broad, S-3306 also amends the Act to state that the law also applies to an &ldquo;<strong><em>online</em></strong>&rdquo; application.</p> <p> <strong>Next Steps for Employers</strong></p> <p> Although the ban-the-box law has been effective since 2015, New Jersey employers should determine whether they need to revise job applications, interview guidelines, and policies and procedures for criminal background checks. Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history information and the fair credit reporting laws.</p> http://www.seyfarth.com:80/publications/MA010818-LIT New Year and New Legal Considerations: A Careful Review of Corporate Document Retention Policies Should be a Part of Your New Year’s Resolutions http://www.seyfarth.com:80/publications/MA010818-LIT Mon, 08 Jan 2018 00:00:00 -0500 <div> <em>There are many competing business and legal considerations that can shape corporate record retention policies. Federal and state governments have enacted statutes, and agencies have issued myriad regulations that require corporations to hold certain categories of documents for certain defined periods, particularly with regard to areas such as labor and employment, customs and border entry, immigration, and tax. Often overlooked in this complex web of requirements are the practical considerations involved in potentially responding to white collar criminal investigations, enforcements, or related litigation. Specifically, retained documents can be used to demonstrate corporate knowledge of the information contained in those records. And materials that have been retained for twenty years or more may even qualify for the ancient documents exception to the rule against hearsay brining to bear the old adage that some things seem to get &ldquo;better&rdquo; with age.</em></div> <div> &nbsp;</div> <div> <em>As companies step into 2018, it is the perfect time to reassess their document retention policies, which are often taken for granted and usually assumed as being appropriate and sufficient. Laws relevant to preservation change, and it is important to stay abreast of the latest developments and their implications. For example, federal rule-makers recently recognized the concern about the ancient documents exception outlined above and on December 1, 2016, amended the relevant Federal Rule of Evidence 803(16) to apply only to materials &ldquo;prepared before January 1, 1998, and whose authenticity is established.&rdquo; Some similar state rules, however, remain unchanged. Forward-looking companies would do well to work with in-house counsel and their outside advisors to carefully reevaluate their document preservation calculus to ensure it properly takes into account white collar criminal and other retention considerations. Doing so can make all the difference in enforcement and litigation matters, especially in high-profile matters and highly-regulated industries.</em></div> <div> &nbsp;</div> <div> For the full version of a related article that comprehensively examines many of the issues flagged in this Alert and that originally appeared in Bloomberg Law White Collar Crime Report, 12 WCR 1061 (Dec. 22, 2017), please <a href="http://www.seyfarth.com/dir_docs/publications/RecordsRetentionPublishWCR.pdf">click here</a>.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WSE010518 OSHA Publishes Crystalline Silica Standards Rule Fact Sheets for Construction http://www.seyfarth.com:80/publications/WSE010518 Fri, 05 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: OSHA has just released several fact sheets applicable to industries regulated under the Crystalline Silica Standards in Construction Rule.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/osha-publishes-crystalline-silica-standards-rule-fact-sheets-for-construction/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH010518 Company Investors and Board Members Off The Hook For Unpaid Wages In Massachusetts http://www.seyfarth.com:80/publications/WH010518 Fri, 05 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: In an important decision, the Massachusetts Supreme Judicial Court clarified the scope of personal liability for unpaid wages under the Massachusetts Wage Act. The SJC held that board members and directors of a company generally cannot be held personally liable for unpaid wages, unless they take on significant management duties of the company.<br /> <br /> <a href="https://www.wagehourlitigation.com/uncategorized/company-investors-and-board-members-off-the-hook-for-unpaid-wages-in-massachusetts/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA010518 New York Passes Law Against Service Animal Fraud, Joining Other States http://www.seyfarth.com:80/publications/ADA010518 Fri, 05 Jan 2018 00:00:00 -0500 <p> Seyfarth Shaw Synopsis: Effective December 18, 2017, New York became the latest state to enact a law cracking down on fake service animals.<br /> <br /> <a href="https://www.adatitleiii.com/2018/01/new-york-passes-law-against-service-animal-fraud-joining-other-states/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/boutrosnetflix010518 Andrew Boutros interviewed on Netflix http://www.seyfarth.com:80/news/boutrosnetflix010518 Fri, 05 Jan 2018 00:00:00 -0500 <p> Andrew Boutros was interviewed January 5th on Netflix, &quot;Lawyers, Guns and Honey.&quot; Boutros discussed his work, as a former federal prosecutor, on the largest food fraud investigation and prosecution in history, known as Honeygate.</p> http://www.seyfarth.com:80/news/passantinobloombergbna010518 Alex Passantino quoted in Bloomberg BNA http://www.seyfarth.com:80/news/passantinobloombergbna010518 Fri, 05 Jan 2018 00:00:00 -0500 <p> Alex Passantino was quoted in a January 5 story from Bloomberg BNA, &quot;Outlook 2018: Wage Hour Division Targets Overtime Rewrite, Opinion Letters,&quot; on the impending addition of a Wage and Hour Division administrator Cheryl Stanton. Passantino said that issuing opinion letters and making a final decision about how to update automatic overtime eligibility standards on how to proceed with a rule proposal that updates will be Stanton&rsquo;s highest-profile, but not her only, initial objectives upon confirmation.</p> http://www.seyfarth.com:80/news/jutkowitzgmr010418 Stanley Jutkowitz quoted in the Green Market Report http://www.seyfarth.com:80/news/jutkowitzgmr010418 Thu, 04 Jan 2018 00:00:00 -0500 <p> Stanley Jutkowitz was quoted in a January 4 story from the Green Market Report, &quot;Attorney General Jeff Sessions Rescinds Cole Memorandum.&quot; Jutkowitz said that whether or not federal prosecutions increase, the rescission of the Cole Memorandum is sure to cause many businesses and investors in the cannabis industry to rethink their strategies. You can read the <a href="https://www.greenmarketreport.com/sessions-reverse-marijuana-guidance-today/">full article here</a>.</p> http://www.seyfarth.com:80/publications/HCRMA010418 Issue 116: Due Date Extended For Employers To Provide Reports To Employees http://www.seyfarth.com:80/publications/HCRMA010418 Thu, 04 Jan 2018 00:00:00 -0500 <div> <em>This is the one hundred and sixteenth 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 our 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.&nbsp;&nbsp;</em></div> <div> &nbsp;</div> <div> Once again, right before the holidays, the IRS gave employers some relief.&nbsp; On December 22nd, the IRS issued Notice 2018-6 extending the due date for furnishing the 2017 Forms 1095-B and 1095-C to employees.&nbsp; The deadline was extended from January 31, 2018 to <strong>March 2, 2018</strong>.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <strong><span style="font-size: 12px;">Form 1095-C</span></strong></div> <div> &nbsp;</div> <div> Large employers sponsoring self-funded group health plans use Forms 1094-C and 1095-C (&ldquo;C Forms&rdquo;) to report information to the IRS and to employees about their employer-provided health coverage.&nbsp; The C Forms are used by the IRS in determining whether an employer owes a payment under the employer shared responsibility provisions.&nbsp; (In our last alert, found <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HCRMA_Issue115_111317.pdf">here</a>, we announced that the IRS had begun issuing notices to employers of their potential liability for employer shared responsibility payments.)&nbsp; Employees covered under self-funded plans use Form 1095-C to determine whether, for each month of the calendar year, they are entitled to a premium tax credit on their income tax return.</div> <div> &nbsp;</div> <div> <strong>Form 1095-B</strong></div> <div> &nbsp;</div> <div> Forms 1094-B and 1095-B (&ldquo;B Forms&rdquo;) are used by insurers and other providers of minimum essential coverage to report enrollment information about health coverage. If a large employer sponsors a fully insured health plan, then the insurer (rather than the employer) will report enrollment information on the B Forms.&nbsp; However, employers that offer insured health coverage to non-employees may use the B Forms to report coverage for those individuals and other family members.&nbsp; Similarly to Form 1095-C, Employees covered under insured plans use Form 1095-B to determine whether, for each month of the calendar year, they may claim the premium tax credit on their income tax return.</div> <div> &nbsp;</div> <div> Notice 2018-6 points out that because of the extension, some individuals may not receive a Form 1095-B or Form 1095-C by the time they are ready to file their 2017 tax return.&nbsp; Taxpayers may rely on other information received from their employer for purposes of filing their returns.</div> <div> &nbsp;</div> <div> The deadline extension to March 2, 2018 is automatic -- no application is required.&nbsp; The Notice specifically points out that the due date for filing 2017 information returns with the IRS is not extended.&nbsp; The due dates for filing information returns with the IRS are:</div> <div> &nbsp;</div> <ul> <li> February 28 for paper filers</li> <li> April 2 for electronic filers</li> </ul> <div> &nbsp;</div> <div> Notice 2018-06 also provides relief from penalties that would usually apply for filing an incorrect or incomplete return with the IRS or furnishing an incorrect or incomplete return to employees, provided an employer can show that it made good-faith efforts to comply with the reporting requirement. The relief applies to missing and inaccurate taxpayer identification numbers and dates of birth, as well as other information required on the Forms.&nbsp; No relief is provided for employers who fail to file an information return or furnish a statement by the due dates.&nbsp;&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL010418 No Religious Bias Against Hospital Employee Who Refused to Get Flu Shot http://www.seyfarth.com:80/publications/EL010418 Thu, 04 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Mandatory vaccines and flu shots present challenges to employers attempting to accommodate the sincerely held religious beliefs of employees. In this case, a hospital worker claimed that he was terminated for failing to get a flu shot due to his religious beliefs. In affirming the District Court&rsquo;s decision granting the employer&rsquo;s motion to dismiss, the Third Circuit held that the worker&rsquo;s anti-vaccination beliefs were not religious and that, as a result, he was not entitled to the protections of Title VII. Fallon v. Mercy Catholic Med. Ctr. of S. Pa., No. 16-3573 (3rd Cir. Dec. 14, 2017).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/no-religious-bias-against-hospital-employee-who-refused-to-get-flu-shot/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM010418 Revanchist Immigration: The Aftermath of “Buy American, Hire American” Revanchist Immigration: The Aftermath of “Buy American, Hire American” http://www.seyfarth.com:80/publications/IMM010418 Thu, 04 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Employers take note. The April 18, 2017 &ldquo;Presidential Executive Order on Buy American and Hire American,&rdquo; has unleashed an array of legally dubious grounds from officials at U.S. Citizenship and Immigration Services as their basis to ask for burdensome additional evidence and to deny requests for work visas and employment-based green cards on behalf of both existing and prospective employees.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/01/home-uscis-revanchist-immigration-the-aftermath-of-buy-american-hire-american-revanchist-immigration-the-aftermath-of-buy-american-hire-american/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT010418 The Week in Weed: January 5, 2018 http://www.seyfarth.com:80/publications/TBT010418 Thu, 04 Jan 2018 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at legalized marijuana. And what a week it was! From California&rsquo;s legalization of recreational pot to the rescinding of the Cole Memorandum, this has been a roller coaster ride for the industry.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/01/the-week-in-weed-january-5-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM010418a Revanchist Immigration: The Aftermath of “Buy American, Hire American” http://www.seyfarth.com:80/publications/IMM010418a Thu, 04 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Employers take note. The April 18, 2017 &ldquo;Presidential Executive Order on Buy American and Hire American,&rdquo; has unleashed an array of legally dubious grounds from officials at U.S. Citizenship and Immigration Services as their basis to ask for burdensome additional evidence and to deny requests for work visas and employment-based green cards on behalf of both existing and prospective employees.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/01/home-uscis-revanchist-immigration-the-aftermath-of-buy-american-hire-american-revanchist-immigration-the-aftermath-of-buy-american-hire-american/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM010418aa Newest Administration Target – U.S. Visa Waiver Program http://www.seyfarth.com:80/publications/IMM010418aa Thu, 04 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: Citing security reasons, the Trump administration announces expansion of requirements for the 38 countries that participate in the U.S. Visa Waiver Program (VWP) allowing limited travel to the U.S. for business and tourism.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/01/newest-target-administration-target-u-s-visa-waiver-program/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT010418a Breaking News: Department of Justice to Rescind Cole Memorandum http://www.seyfarth.com:80/publications/TBT010418a Thu, 04 Jan 2018 00:00:00 -0500 <p> According to reports appearing this morning in the New York Times and the Washington Post, Attorney General Sessions is expected to rescind the Cole Memorandum later today. The Cole Memorandum is a Department of Justice policy that strongly discourages federal prosecutors from enforcing federal marijuana laws in states in which possession and use of marijuana is legal under state law.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/01/breaking-news-department-of-justice-to-rescind-cole-memorandum/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP010318 Fifth Anniversary Edition: Coming Attractions for 2018, and Beyond! http://www.seyfarth.com:80/publications/CP010318 Wed, 03 Jan 2018 00:00:00 -0500 <p> Dear Readers:<br /> <br /> <a href="https://www.calpeculiarities.com/2018/01/03/fifth-anniversary-edition-coming-attractions-for-2018-and-beyond/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/gergerianshrm010318 Michelle Gergerian quoted in SHRM http://www.seyfarth.com:80/news/gergerianshrm010318 Wed, 03 Jan 2018 00:00:00 -0500 <p> Michelle Gergerian was quoted in a January 3 story from SHRM, &quot;Trump Administration Plans to Rescind Work Permits for Spouses of H-1B Workers,&quot; on how the 2018 immigration agenda includes reforms to professional, student visa worker programs. Gergerian said that the 2018 DHS regulatory agenda contains many changes that could greatly affect employers&#39; business immigration programs as they pertain to individuals in H-1B, H-4 and F-1 status. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/trump-dhs-h4-rescind-work-permits-spouses-h1b.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/waldman010318 International Employment Lawyer Daniel Waldman Joins Seyfarth in New York http://www.seyfarth.com:80/news/waldman010318 Wed, 03 Jan 2018 00:00:00 -0500 <p> NEW YORK (January 3, 2018) -- Seyfarth Shaw LLP announced today that Daniel E. Waldman has joined the firm&rsquo;s International Employment Law practice group as a partner in New York.</p> <p> Waldman has extensive international employment experience assisting multinational clients with their cross-border employment needs from day-to-day counseling, to complex multi-jurisdictional transactions. Waldman&rsquo;s clients are comprised of international companies ranging from established start-ups to Fortune 100 companies across a large range of industries.</p> <p> &ldquo;Dan is a very highly credentialed international employment lawyer. His experience, capability and commercial approach is a perfect fit for our international employment practice. We are excited to welcome him to the team.&rdquo; said Darren Gardner, chair of Seyfarth&rsquo;s International Department.</p> <p> Earlier in his career, Waldman served as Vice President and Assistant General Counsel for Employment Law and Litigation at a global financial services firm. He also previously served as Corporate Counsel Manager for Employment Law &amp; Litigation at a leading international manufacturer of semiconductors. There, he established the in-house Employment Law and Litigation departments and managed all employment law and litigation cases globally.</p> <p> &ldquo;Dan has a proven track record of success in the international employment field and adds valued depth and bench strength to our outstanding practice in New York,&rdquo; said Lorie Almon, co-managing partner of Seyfarth&rsquo;s New York office. &ldquo;As we continue to build our international employment law practice, we are thrilled to welcome a lawyer of Dan&rsquo;s caliber.&rdquo;</p> <p> &ldquo;Dan&rsquo;s practice is a perfect complement to our international employment group and its successful cross-border service model. He is an excellent fit for the office, the practice and the firm,&rdquo; said John Napoli, co-managing partner of Seyfarth&rsquo;s New York office.</p> <p> Waldman received his J.D. and M.B.A. in Human Resource Management, <em>cum laude</em>, from the University of Wisconsin. He earned a B.A. from the University of Rochester as part of its Political Science Honors Program.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/jansonbloomberglaw010318 Eric Janson quoted in Bloomberg Law http://www.seyfarth.com:80/news/jansonbloomberglaw010318 Wed, 03 Jan 2018 00:00:00 -0500 <p> Eric Janson was quoted in a January 3 story from Bloomberg Law, &quot;Outlook 2018: Will Agency Shift Priorities On Gay Rights?,&quot; on the EEOC&#39;s fight against sexual harassment in the workplace. Janson said that we&rsquo;ll see a substantial increase both in charges filed and, toward the latter part of fiscal year 2018, lawsuits brought by EEOC alleging sexual harassment. You can read the <a href="https://biglawbusiness.com/outlook-2018-will-agency-shift-priorities-on-gay-rights/">full article here</a>.</p> http://www.seyfarth.com:80/news/eeoc010218 Seyfarth Releases 2017 EEOC Litigation Report: Increased Enforcement Activity in a Year of Political Transition and Uncertainty http://www.seyfarth.com:80/news/eeoc010218 Tue, 02 Jan 2018 00:00:00 -0500 <p> Seyfarth Shaw LLP has released its annual report on EEOC legal activities and court rulings, entitled <em>EEOC-Initiated Litigation: Case Law Developments In 2017 And Trends To Watch For In 2018</em>, the most definitive source of analysis that focuses exclusively on EEOC-related litigation.</p> <p> Authored by Seyfarth lawyers Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew J. Gagnon, this year&rsquo;s report provides detailed analysis of the major case filings and all decisions involving the EEOC in 2017. This past year, the EEOC faced a period of political transition under the new Trump Administration and Republican control of both houses of Congress. Despite this seismic shift in political geography, the aftershocks have not yet appeared to reach the agency in any measurable way. Indeed, at a time when many expected retrenchments, the EEOC&rsquo;s Fiscal Year 2017 was marked by a significant increase in enforcement activity. FY 2017 is also the first year of the EEOC&rsquo;s new Strategic Enforcement Plan (&ldquo;SEP&rdquo;) for FY 2017-2021. This year, the report has been arranged in to three main parts:</p> <ul> <li> <strong>Part I</strong> of this book will give a broad examination of the substantive theories that the EEOC has focused on in FY 2017 with respect to each of the six enforcement priorities identified in the new SEP. Those priorities are: (1) the elimination of systemic barriers in recruitment and hiring; (2) protection of immigrant, migrant, and other vulnerable workers; (3) addressing emerging and developing issues; (4) enforcing equal pay laws; (5) preserving access to the legal system; and (6) preventing harassment through systemic enforcement and targeted outreach. <ul> <li> <strong>Uncertainty In A Period Of Transition</strong> - Part I also discusses the significant changes in EEOC leadership. The EEOC presently lacks a General Counsel, a permanent Chair and, notably, no new Regional Attorneys have been named since President Trump took office on January 20, 2017.</li> <li> <strong>Addressing Emerging And Developing Issues</strong> - In addition, Part I breaks down the EEOC&rsquo;s new mission to monitor trends and developments in the law, workplace practices, and labor force demographics in order to identify emerging and developing issues that can be addressed through its enforcement program. The 2017 SEP identifies five emerging and developing issues as strategic priorities:</li> </ul> <ol style="margin-left: 40px;"> <li> Qualification standards and inflexible leave policies that discriminate against individuals with disabilities;</li> <li> Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA);</li> <li> Protecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex;</li> <li> Clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and</li> <li> Addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the United States and abroad.</li> </ol> </li> <li> <strong>Part II </strong>of this book addresses the various stages of an EEOC litigation. This section tracks the notable developments in FY 2017 as they relate to each stage of an EEOC enforcement action &ndash; starting with the filing of the charge of discrimination and continuing all the way through settlement or a decision on the merits.</li> <li> <strong>Part III</strong> of this book contains summaries of all the significant decisions arising from EEOC litigation in 2017. The decisions are categorized by subject matter to allow for easy navigation to the topic of interest.</li> </ul> <p> Given the new political landscape and potential changes to the EEOC&rsquo;s enforcement agenda, it is more important now than ever for employers to keep abreast of the EEOC&rsquo;s priorities and trends. Seyfarth&rsquo;s EEOC-Initiated Litigation report contains a detailed legislative update, case studies and variety of charts, graphs, and maps tracking key EEOC case categories and historical data. You can learn more about the report at Seyfarth&rsquo;s <a href="https://www.workplaceclassaction.com/">Workplace Class Action Blog</a> and the complete edition is once again available for order as an eBook <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=IaGhzGfaw6On6Tq5Pw_qzxIAUfSk6B6pf1wYJW-JKZtPwbiNuJ1C0bQVcWc-ER5B">here</a>.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations</p> <p> (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager</p> <p> (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/publications/WSE010218 OSHA Civil Penalties Going Up Again – Adopts 2018 Maximums http://www.seyfarth.com:80/publications/WSE010218 Tue, 02 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: The DOL has published its 2018 OSHA civil penalties.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-enforcement/osha-civil-penalties-going-up-again-adopts-2018-maximums/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA010218 2017 Website Accessibility Lawsuit Recap: A Tough Year for Businesses http://www.seyfarth.com:80/publications/ADA010218 Tue, 02 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: 2017 saw an unprecedented number of website accessibility lawsuits filed in federal and state courts, and few courts willing to grant early motions to dismiss.<br /> <br /> <a href="https://www.adatitleiii.com/2018/01/2017-website-accessibility-lawsuit-recap-a-tough-year-for-businesses/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM010218-LE Failure to Investigate and Fat-Shaming Permit Employment Claims to Proceed http://www.seyfarth.com:80/publications/OMM010218-LE Tue, 02 Jan 2018 00:00:00 -0500 <p class="BodySingle"> <b><i>Seyfarth Synopsis</i></b><i>: Under California law, obesity can qualify as a disability if it has a physiological cause and limits a major life activity. Proving such a claim has been difficult. The First District Court of Appeal&rsquo;s decision in Cornell v. Berkeley Tennis Club, however, may have made the claim easier to prove, while making it harder for employers to win summary judgment.</i></p> <p class="BodySingle"> <o:p></o:p></p> <p class="BodySingle"> <b>The Alleged Facts<o:p></o:p></b></p> <p class="BodySingle"> Ketryn Cornell was severely obese, weighing over 350 pounds at just five feet, five inches, tall. She had been obese since childhood. In 1997, while in college, she began working at the Berkeley Tennis Club as a lifeguard and pool manager. She continued working there as a manager after college. During her employment, the Club gave her positive performance reviews, raises, and bonuses.<o:p></o:p></p> <p class="BodySingle"> In 2012, the Club hired a new manager, who instituted a new uniform requirement (shirts). Cornell told the manager she would need a specially ordered shirt to fit her size. In response, the manager mocked her, asked her about weight-loss surgery, and then ordered a shirt that was five sizes too small for her. Cornell, humiliated, eventually bought her own specially ordered shirt. The manager refused to provide Cornell extra shifts, refused to consider her for promotions, and paid her less than newly hired employees. Cornell complained about this treatment.<o:p></o:p></p> <p class="BodySingle"> In 2013, the Club held a board meeting to discuss personnel issues. Cornell had helped set up the room. Before the meeting, her manager found a tape recorder placed in a cleaning cart that had been recording. Another employee hid in the room after the meeting and saw Cornell go to the cart. The Club fired Cornell for trying to surreptitiously record the board meeting.<o:p></o:p></p> <p class="BodySingle"> Cornell sued the Club under the Fair Employment and Housing Act (FEHA), alleging that the Club discriminated against her because of her disability (obesity), failed to accommodate her disability, harassed her because of her disability, and retaliated against her for requesting an accommodation. The trial court granted the Club&rsquo;s motion for summary judgment, holding that Cornell had failed to produce evidence that her obesity qualified as a disability. Cornell appealed.<o:p></o:p></p> <p class="BodySingle"> <b>The Court of Appeal&rsquo;s Decision<o:p></o:p></b></p> <p class="BodySingle"> The Court of Appeal reversed the rulings as to the discrimination and harassment claims, while affirming the rulings as to the accommodation and retaliation claims. <o:p></o:p></p> <p class="BodySingle"> As to the discrimination claim, the Court of Appeal observed that the California Supreme Court, in <i>Cassista v. Community Foods, Inc.</i>, recognized that obesity can be a disability if it results from a physiological condition affecting a basic bodily system, and limits a major life activity. The Court of Appeal noted that some developments under the ADA had eased the burden associated with meeting this requirement under the ADA and, by extension, FEHA. Next, the Court of Appeal held that the Club failed to show that Cornell could not establish that her obesity had a physiological cause. The Court of Appeal also concluded that the Club&rsquo;s failure to conduct a follow-up investigation of the recorder incident and her manager&rsquo;s discriminatory comments were sufficient evidence to defeat summary judgment.<o:p></o:p></p> <p class="BodySingle"> As to the harassment claim, the Court of Appeal found a triable issue as to whether the alleged harassment was sufficiently severe and pervasive. The Court of Appeal indicated that the manager&rsquo;s inappropriate comments about Cornell&rsquo;s weight themselves were too isolated to preclude summary judgment. But the manager had also reduced Cornell&rsquo;s hours, passed her over for internal jobs, and paid her less. This combination of evidence precluded summary judgment on the harassment claim. <o:p></o:p></p> <p class="BodySingle"> As to the accommodation claim, the Court of Appeal held that there was insufficient evidence to show that the Club was aware that Cornell&rsquo;s obesity constituted a disability. Under <i>Cassista</i>, the Club needed to be aware that Cornell&rsquo;s obesity stemmed from a physiological cause in order to have a duty to accommodate her. The Court of Appeal held that the Club, absent that awareness, had no duty to accommodate Cornell and, thus, affirmed the summary adjudication against her.<o:p></o:p></p> <p class="BodySingle"> Lastly, as to the retaliation claim, the Court of Appeal affirmed the trial court because, under the then-current law, requesting an accommodation was not an activity protected from retaliation. (Under a later FEHA amendment, requesting an accommodation for a disability is now a protected activity. But that amendment did not apply retroactively.)<o:p></o:p></p> <p class="BodySingle"> <b>What <i>Cornell</i> Means For Employers<o:p></o:p></b></p> <p class="BodySingle"> <i>Cornell</i> has several potential implications for employers with respect to obesity-based disability claims. While it remains the law that obesity is a disability only if it results from a physiological cause, a plaintiff&rsquo;s proof seems easier in light of ADA developments construing the term &ldquo;disability&rdquo; in favor of finding coverage. Thus, employers should avoid being dismissive of complaints about obesity discrimination or requests for accommodations based on obesity. Employers seeking summary judgment on these claims must make a significant evidentiary showing and conduct thorough discovery. Given <i>Cornell</i>&rsquo;s rulings on the discrimination claim, employers should ensure that they investigate any alleged employee misconduct that forms the basis of discipline or termination. Finally, employers should remember that accommodation requests are now protected against retaliation.<o:p></o:p></p> http://www.seyfarth.com:80/publications/WC010218 2017’s Top 5 Most Intriguing Developments in EEOC-Initiated Litigation (And A Preview of Our Annual EEOC Litigation Report) http://www.seyfarth.com:80/publications/WC010218 Tue, 02 Jan 2018 00:00:00 -0500 <p> Seyfarth Synopsis: We are once again pleased to offer our loyal blog readers a breakdown of the five most intriguing developments in EEOC litigation in 2017, in addition to a pre-publication preview of our annual report on developments and trends in EEOC-initiated litigation. This year&rsquo;s book, titled EEOC-Initiated Litigation: FY 2017, provides a comprehensive examination of the EEOC&rsquo;s FY 2017 filings (from October 2016 through September 2017), and the major decisions handed down this year in pending EEOC litigation.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/2017s-top-5-most-intriguing-developments-in-eeoc-initiated-litigation-and-a-preview-of-our-annual-eeoc-litigation-report/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/szeliga010118 Jamaica Szeliga quoted in Law360 http://www.seyfarth.com:80/news/szeliga010118 Mon, 01 Jan 2018 00:00:00 -0500 <p> Jamaica Szeliga was quoted in a January 1 story from Law360, &quot;Life Sciences Cases To Watch In 2018,&quot; on how the biosimilar battles continue. Szeliga said that when you look at what is making money in the U.S. and where we&rsquo;re going, biologics is the source of new discoveries.</p> http://www.seyfarth.com:80/news/maatmanlaw360010118 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360010118 Mon, 01 Jan 2018 00:00:00 -0500 <p> Gerald Maatman was quoted in a January 1 story from Law360, &quot;5 New Faces To Watch At DOL, EEOC In 2018,&quot; on Janet Dhillon and Daniel Gade. Maatman said that any changes in the EEOC&#39;s direction once Dhillon and Gade are presumably confirmed can be dropped into two categories: policy and litigation.</p> http://www.seyfarth.com:80/news/passantinopolitico010118 Alex Passantino quoted in Politico http://www.seyfarth.com:80/news/passantinopolitico010118 Mon, 01 Jan 2018 00:00:00 -0500 <p> Alex Passantino was quoted in a January 1 story from Politico, &quot;The Real Future of Work,&quot; on the push to strengthen enforcement of current laws, cracking down on misclassification, and raising labor standards for all employees. Passantino said that the economics are driven by this ancient law and ancient legal structure. You can read the <a href="https://www.politico.com/magazine/story/2018/01/04/future-work-independent-contractors-alternative-work-arrangements-216212">full article here</a>.</p> http://www.seyfarth.com:80/news/boutrosaba010118 Andrew Boutros' book reviewed by the ABA http://www.seyfarth.com:80/news/boutrosaba010118 Mon, 01 Jan 2018 00:00:00 -0500 <p> Andrew Boutros&#39; book, &quot;THE ABA COMPLIANCE OFFICER&rsquo;S DESKBOOK,&quot; written alongside co-authors T. Markus Funk and James T. O&rsquo;Reilly, was reviewed in the Winter issue of the ABA Criminal Justice Magazine, &quot;Three Important Books Worthy of Your Time.&quot; The review states, &quot;If you are a compliance officer or know someone who is, this is the one book to own or give them. It is a complete guide on how to conquer the day-to-day challenges in the compliance world. The book offers 15 chapters written in a crisp and engaging style designed to inform readers about the reality of the compliance world as well as to offer possible solutions to common issues. The authors offer decades of experience in this field and use their background to write a &#39;user-friendly/subject rich&#39; book. It is designed to be a &#39;first-line&#39; resource rather than a nuanced treatise in the area. You can read the <a href="https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_magazine_home.html">full Winter issue here</a>.&nbsp;</p> <p> You can order the book <a href="https://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=268758182">here</a>.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/news/boutroscbc123117 Andrew Boutros interviewed by the CBC News Network http://www.seyfarth.com:80/news/boutroscbc123117 Sun, 31 Dec 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed December 31st by the CBC News Network, &quot;New York Times: Australian diplomat gave intel to Russia probe investigators.&quot; Former U.S. Federal prosecutor Andrew Boutros joins CBC&#39;s John Northcott to discuss the latest media report on the Russian interference probe. You can watch the <a href="http://www.cbc.ca/player/play/1130161219967">full interview here</a>.</p> http://www.seyfarth.com:80/publications/WC122917 2018 – Best Wishes For A Happy New Year! http://www.seyfarth.com:80/publications/WC122917 Fri, 29 Dec 2017 00:00:00 -0500 <p> The Workplace Class Action Team wanted to take the time to wish all of our loyal blog readers a very Happy New Year. We will be taking the next few days to reflect on the year and recharge. We look forward to bringing you more interesting and though provoking content on workplace class action issues as we enter into 2018 &ndash; including our start-of-the-year kick-off publication &ndash; Seyfarth Shaw&rsquo;s Annual Workplace Class Action Litigation Report. We anticipate going to press on January 10th and launching the 2018 Report to our readers from our blog. Stay tuned!<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/12/2018-best-wishes-for-a-happy-new-year/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM122817-LE California’s Salary History Ban Goes Into Effect But With A Twist http://www.seyfarth.com:80/publications/OMM122817-LE Thu, 28 Dec 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:</strong> Effective on January 1, 2018, California&rsquo;s new salary history ban law will prohibit inquiries about an applicant&rsquo;s salary history and will create an affirmative obligation to disclose a &ldquo;pay scale&rdquo; upon an applicant&rsquo;s &ldquo;reasonable request.&rdquo; </em></p> <p> In less than a week, on January 1, 2018, California&rsquo;s new law prohibiting employers from relying on prior salary as a factor in setting compensation goes into effect.&nbsp; The law extends to public and private employers, as well as their agents, who will no longer be able to seek information about an applicant&rsquo;s &ldquo;compensation and benefits.&rdquo;</p> <p> For most employers, the new requirements are necessitating changes to existing recruiting practices, ranging from revising application forms to reviewing interview guidelines.&nbsp; Most importantly, however, many employers are grappling with how best to make starting salary decisions, now that a key factor that was often used as an additional indicia of experience, will&nbsp; no longer be available.&nbsp; To fill this gap, some employers are relying more heavily on market survey data.&nbsp; Others are taking a fresh look at their overall salary structure and implementing salary grades and ranges where none currently exist or are considering changes such as building in experience levels or other pay differentiators for purposes of making starting salary decisions.</p> <p> While California&rsquo;s new Labor Code Section 432.3 will prohibit employers from asking about or relying on prior salary information in deciding whether to offer a job and in deciding how much to pay, the new law does permit employers to consider salary history information in setting the applicant&rsquo;s starting salary when an applicant, &ldquo;voluntarily and without prompting,&rdquo; discloses the information. &nbsp;However, employers who choose to base starting salary decisions on voluntarily disclosed information should keep in mind that the California Fair Pay Act (Lab. Code &sect; 1197.5(a)(2)) will preclude employers from relying on prior salary, by itself, to justify any gender, ethnicity or race-based disparities in pay.</p> <p> Not to be out shone by other jurisdictions that already have similar laws on the books, California&rsquo;s Section 432.3 adds an new twist to the salary history ban landscape: an obligation to provide the &ldquo;pay scale&rdquo; upon reasonable request by the applicant.&nbsp; This seemingly simple provision &mdash; &ldquo;An employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment&rdquo; &mdash; has already generated far more questions than answers.&nbsp; In particular, employers are scratching their heads as they consider (1) What is a pay scale? and (2) What makes a request reasonable?</p> <p> Surprisingly, the California legislature left both &ldquo;pay scale&rdquo; and &ldquo;reasonable request&rdquo; as undefined terms.&nbsp; Accordingly, unless and until there is further guidance, employers are free to determine how best to comply with this new disclosure requirement.&nbsp; At a minimum, however, employers should ensure that those involved in the hiring process are made aware of the new requirement and are provided with guidance about how to respond to such inquiries.&nbsp;&nbsp;</p> <p> From a practical standpoint, it may be helpful to consider that while a response is now mandated, hiring managers and recruiters have been routinely fielding the question &ldquo;how much does the position pay&rdquo; for years.&nbsp; Understanding the company&rsquo;s practice in responding to this age-old question may be a good starting point for purposes of establishing a coordinated approach and practice in light of the new requirement, in the absence of further guidance from the legislature, courts or agencies.&nbsp; &nbsp;&nbsp;</p> <p> Seyfarth&rsquo;s Pay Equity Group will continue to evaluate how compliance with this new California law evolves and will alert you with further developments.</p> http://www.seyfarth.com:80/publications/MA122817-LE If Pain, Yes Gain — Part XLI: Prince George’s County, MD Passes Paid Safe Leave Ordinance http://www.seyfarth.com:80/publications/MA122817-LE Thu, 28 Dec 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Earlier this month Prince George&rsquo;s County, MD passed a paid safe leave ordinance that is scheduled to go into effect in May 2018. The ordinance mandates that covered employers provide eligible employees with certain amounts of &ldquo;earned sick and safe leave&rdquo; during a benefit year. However, despite its title and referring to the leave benefit as &ldquo;sick and safe leave,&rdquo; the ordinance limits the protected reasons for use to certain absences from work related to the employee or the employee&rsquo;s covered family member&rsquo;s status as a victim of domestic violence, sexual assault or stalking. </em></p> <p> Prince George&rsquo;s County, MD enacted a paid &ldquo;safe&rdquo; time law, titled &ldquo;Earned Sick and Safe Leave&rdquo; (the &ldquo;Law&rdquo;), on December 12, 2017.&nbsp; The Law will become effective on May 24, 2018 (45 calendar days after the April 9, 2018 adjournment of the 2018 Maryland General Assembly).&nbsp; The Law requires that covered employers provide employees with certain amounts of paid leave to use for certain absences in connection with domestic violence, sexual assault or stalking.&nbsp; Notably, despite the Law&rsquo;s title, it is unique in that its focus is exclusively on &ldquo;safe leave&rdquo; and does not contain a separate paid sick leave component.</p> <p> Some of the primary requirements of the Law are:</p> <ul> <li> Employers with more than 15 employees who are not owners must provide earned sick and safe leave to their eligible Prince George&rsquo;s County (the &ldquo;County&rdquo;) employees.</li> <li> Employees must accrue paid sick and safe leave at a rate of at least one hour for every 30 hours the employee works in the County.</li> <li> Employers may cap earned sick and safe leave accrual at 40 hours per calendar year.</li> <li> Employers may cap earned sick and safe leave use at 64 hours per calendar year. However and notably, if an employee begins working outside the County, the employer still must allow the employee to use any accrued, unused earned sick and safe leave.</li> <li> Employers must permit employees to carry over up to 40 hours of unused earned sick and safe leave at year-end.</li> <li> Employers must provide employees with a written statement of available earned sick and safe leave each time the employer pays wages to the employee.</li> </ul> <p> <strong>Which Employers Are Covered Under the Law?</strong></p> <p> Employers who are required to provide earned sick and safe leave include any person, individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity operating and doing business in the County that employs 15 or more persons in the County in addition to the owners. Employer includes the County government, but does not include the United States, any State, or any other local government.</p> <p> <strong>Which Employees Are Covered Under the Law?</strong></p> <p> The Law provides earned sick and safe leave to any person permitted or instructed to work or be present by an employer in the County.&nbsp; However, this broad definition of employee contains several exclusions.&nbsp; The Law does <u>not</u> apply to individuals who: (1) do not have a regular work schedule with the employer; (2) contact the employer for work assignments and are scheduled to work the assignments within 48 hours after contacting the employer; (3) have no obligation to work for the employer if they do not contact the employer for work assignments; (4) perform work under a contract for hire as defined by the Maryland Code; (5) are real estate salespersons or associate real estate brokers under Maryland&rsquo;s Workers&rsquo; Compensation law; (6) are under the age of 18 before the beginning of the calendar year; (7) are employed in the agricultural sector; (8) are employed by a temporary services agency to provide temporary staffing services to another person if the temporary services agency does not have day-to-day control over the work assignments and supervision of the individual while the individual is providing the temporary staffing services; or (9) are directly employed by an employment agency to provide part-time or temporary services to another person.</p> <p> <strong>How Much Sick and Safe Leave Can Employees Use, Accrue and Carry Over?</strong></p> <p> <em>Accrual:</em>&nbsp; An employee must accrue paid sick and safe leave at least as fast as one hour of leave for every 30 hours worked in the County. For exempt employees, accrual shall be based on the employee&rsquo;s hours worked in a normal workweek up to 40 hours per week.&nbsp; An employer is not required to permit an employee to earn more than 40 hours of sick and safe leave per calendar year.</p> <p> <em>Frontloading:</em>&nbsp; The Law expressly allows employers to award the full amount of paid sick and safe leave that an employee would earn over an entire calendar year at the beginning of the calendar year.&nbsp; However, unlike many other paid sick and safe time laws and ordinances, the Law does not identify the impact, if any, that frontloading earned sick and safe leave has on employers&rsquo; year-end carry over obligations.</p> <p> <em>Use:</em>&nbsp; Employers are not required to permit an employee to use more than 64 hours of paid sick and safe leave per calendar year.&nbsp; Employees must be permitted to use sick and safe leave in the smallest increment that an employer&rsquo;s payroll system uses to record absences or work time; however, an employer cannot require employees to use sick and safe leave in increments larger than one hour.</p> <p> <em>Carry Over:</em>&nbsp; An employer must permit employees to carry over at least 40 hours of unused, earned sick and safe leave at year-end.&nbsp;</p> <p> <strong>Under What Circumstances May Employees Use Sick and Safe Leave?</strong></p> <p> Employees may use earned sick and safe leave for absences due to domestic violence, sexual assault or stalking committed against the employee or the employee&rsquo;s family member <u>if</u> the leave is used for any one of the following reasons:</p> <ul> <li> Obtaining medical attention needed to recover from physical or psychological injury due to domestic violence, sexual assault or stalking;</li> <li> Obtaining services from a victim services organization related to domestic violence, sexual assault or stalking;</li> <li> Obtaining legal services, including preparation for or participation in a civil or criminal proceeding related to domestic violence, sexual assault or stalking; or</li> <li> Leave during the time that an employee has temporarily relocated due to domestic violence, sexual assault or stalking.</li> </ul> <p> Family member is defined broadly and includes: (1) an employee&rsquo;s child (biological, adopted, foster, or stepchild, child for whom the employee has legal or physical custody or guardianship, or child for whom the employee is a primary caregiver); (2) biological, adoptive, foster, or step parent of the employee or the employee&#39;s spouse; (3) an employee&rsquo;s legal guardian; (4) an individual who served as the primary caregiver of the employee when the employee was a minor; (5) an employee&rsquo;s spouse; (6) an employee&rsquo;s grandparent; (7) spouse of a grandparent of the employee; (8) an employee&rsquo;s grandchild; (9) an employee&rsquo;s sibling (biological, adopted, foster); and (10) an employee&rsquo;s sibling&#39;s spouse.</p> <p> <em>Work Outside of the County:</em>&nbsp; Significantly, if an employee earns sick and safe leave under the Law while working in the County, but later begins working for the same employer outside of the County, the employee must still be permitted to use the earned sick and safe leave that accrued while working for the employer in the County. In other words, while accrual of sick and safe leave is limited to work performed within the County, use of sick and safe leave is not.</p> <p> <strong>What Employers Can and Cannot Do:</strong></p> <p> <em>Verification of Need for Safe Time:</em>&nbsp; An employer may require an employee that uses more than three consecutive days of earned sick and safe leave to provide &ldquo;reasonable documentation&rdquo; to verify that the leave was used appropriately.&nbsp; The Law does not provide any guidance as to what constitutes &ldquo;reasonable documentation.&rdquo;&nbsp; However, the Law expressly forbids employers from requiring employees to: (1) disclose details of the mental or physical illness, injury or condition of the employee or the employee&rsquo;s family member; or (2) provide as certification any information that would violate the Federal Social Security Law or the Federal Health Insurance Portability and Accountability Law.</p> <p> <em>Employee Notice of Need for Safe Time:</em>&nbsp; To use earned sick and safe time, an employee must take these steps: (1) request leave from the employer as soon as practicable after the employee determines the need to take leave; (2) notify the employer of the anticipated duration of the leave; and (3) comply with any reasonable procedures established by the employer when requesting and taking leave.&nbsp; Notably, the Law does not differentiate between employee notice requirements for foreseeable and unforeseeable absences and also leaves open the question of how &ldquo;as soon as practicable&rdquo; will be interpreted.</p> <p> <em>Denial Permitted:</em>&nbsp; An employer may deny an employee&rsquo;s request to take earned sick and safe leave if (1) the employee fails to provide the required notice, <u>and</u> (2) the employee&rsquo;s absence will cause a disruption to the employer.&nbsp; Both requirements must be met to lawfully deny a request to use earned sick and safe leave.</p> <p> <em>Retaliation Prohibited:</em>&nbsp; Employers may not retaliate against an employee for lawfully opposing a violation of the Law or for filing a complaint, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the Law. &nbsp;Employers also may not obstruct or prevent enforcement or compliance with the Law.</p> <p> <em>Separation of Employment:</em>&nbsp; There is no requirement in the Law that an employer &ldquo;cash out&rdquo; an employee&rsquo;s accrued, unused sick and safe leave.&nbsp; However, an employer is obligated to reinstate any accrued, unused sick and safe leave if an employee is rehired within 12 months of separation.</p> <p> <strong>Notice and Recordkeeping Requirements</strong></p> <p> <em>Notice and Posting:</em>&nbsp; An employee must provide notice to employees that they are entitled to earned sick and safe leave under the Law.&nbsp; The notice must include (1) a statement of how earned sick and safe leave is accrued, (2) the permitted uses of earned sick and safe leave, (3) a statement that the employer will not retaliate against an employee for exercising rights under the Law, and (4) information about the employee&rsquo;s right to file a complaint for violation of any rights under the Law.&nbsp; The County&rsquo;s Human Relations Commission will create a model notice in English and Spanish that the employer may use to comply with its notice obligations under the Law.</p> <p> An employer may provide the required notice by (1) displaying the notice in a conspicuous and accessible area at each of the employer&rsquo;s work locations in the County, (2) including the notice in an employee handbook or written guidance distributed to all employees, or (3) distributing the notice to each employee upon hire.</p> <p> <em>Available Balance Notification:</em>&nbsp; Employers must provide employees with a written statement of available earned sick and safe leave each time the employer pays wages to the employee.&nbsp; However, the Law is silent as to the specific form this notification must take, including whether the obligation may be fulfilled through an online system allowing employees to access their own earned sick and safe leave balances.</p> <p> <em>Record Retention:</em>&nbsp; Employers must maintain records for at least three years containing the earned sick and safe leave accrued and used by each employee.</p> <p> <strong>Looking Ahead</strong></p> <p> Prince George&rsquo;s County joins <a href="http://www.seyfarth.com/publications/MA093016-LE">Montgomery County, Maryland</a> as the second county in the state to pass its own paid leave legislation in advance of the anticipated statewide paid leave legislation.&nbsp; Although there are significant similarities in the requirements of the Prince George&rsquo;s County and Montgomery County legislation, the Prince George&rsquo;s County Law is less detailed, leaving more open questions for employers regarding its implementation once effective.</p> <p> In addition to those open issues under the Law itself, there also remains a possibility of complete preemption of the Law under the expected Maryland statewide paid sick and safe leave legislation.&nbsp; Although Governor Hogan vetoed the Maryland Healthy Working Families Act (HB1) in 2017, it is anticipated that the House and Senate will have sufficient votes to pass that legislation over the veto in the 2018 legislative session.&nbsp; If passed as previously drafted, the Act would preempt any local legislation regulating sick and safe leave provided by an employer that was enacted after January 1, 2017.&nbsp; However, it is unknown at this time if those dates will be updated in consideration of the delay in the enactment of the Maryland Healthy Working Families Act, or if other compromise legislation providing for complete preemption of local paid sick and safe time laws will pass in its stead.</p> <p> Therefore, employers will want to keep informed on any guidance from the Prince George&rsquo;s Human Relations Commission to address the open questions created by the Law and on the actions of the 2018 Maryland General Assembly as it looks to pass some form of statewide paid sick and safe leave legislation.&nbsp; To stay up-to-date on those, and other, Paid Sick Leave developments, click <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> http://www.seyfarth.com:80/publications/CP122817 Happy New Year! http://www.seyfarth.com:80/publications/CP122817 Thu, 28 Dec 2017 00:00:00 -0500 <p> Your CalPecs team is taking the holiday week off to recharge, and reflect on our good fortune during 2017. As we enter 2018, we are eager to continue bringing you the thoughtful and practical content to which our longtime readers have become accustomed.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/12/28/happy-new-year/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL122717 2018! — And to All a Happy and Prosperous New Year http://www.seyfarth.com:80/publications/EL122717 Wed, 27 Dec 2017 00:00:00 -0500 <p> The Employment Law Lookout Team is taking the holiday week off to recharge and reflect on the year that was. We look forward to bringing you more interesting and though provoking content as we enter into 2018. We wish all of you a peace-filled week. (Stay warm!)<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/12/2018-and-to-all-a-happy-and-prosperous-new-year/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MRM122717 Noah Finkel and Cheryl Luce authored an article in Modern Restaurant Management http://www.seyfarth.com:80/publications/MRM122717 Wed, 27 Dec 2017 00:00:00 -0500 <p> Noah Finkel and Cheryl Luce authored a December 27 article in Modern Restaurant Management, &quot;The Death Knell for Tip Pooling?&quot; The article discusses the Department of Labor&#39;s newly issued Notice of Proposed Rulemaking regarding the tip pooling regulations of the Fair Labor Standards Act. The authors write that the end of the rule does not come as a surprise as both the DOL and courts have sounded the death knell this year. You can read the <a href="https://www.modernrestaurantmanagement.com/the-death-knell-for-tip-pooling/">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonshrm122617 Camille Olson quoted in SHRM http://www.seyfarth.com:80/news/olsonshrm122617 Tue, 26 Dec 2017 00:00:00 -0500 <p> Camille Olson was quoted in a December 26 story from SHRM, &quot;Some Deductions for Salaried Staff Are Permitted,&quot; on how the exceptions to the salary-basis rule are narrow. Regarding sickness or disability, Olson recommends that employers use a policy that allows for at least six sick days per year. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Some-Deductions-for-Salaried-Staff-Are-Permitted.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/bergerccr122217 Meredith-Anne Berger quoted in the Cook County Record http://www.seyfarth.com:80/news/bergerccr122217 Fri, 22 Dec 2017 00:00:00 -0500 <p> Meredith-Anne Berger was quoted in a December 22 story from the Cook County Record, &quot;New bill before Congress would offer paid leave to many more Americans, &quot; on the Workflex in the 21st Century Act. Berger said that employers who offer a plan in accordance with this statute would be able to credit up to six paid holidays toward meeting the minimum required amounts of leave. You can read the <a href="https://cookcountyrecord.com/stories/511298981-new-bill-before-congress-would-offer-paid-leave-to-many-more-americans">full article here</a>.</p> http://www.seyfarth.com:80/publications/ClientAlert-122217 Nonprofit Guide to the “Tax Cuts and Jobs Act” http://www.seyfarth.com:80/publications/ClientAlert-122217 Fri, 22 Dec 2017 00:00:00 -0500 <div> The 2017 &ldquo;Tax Cuts and Jobs Act&rdquo; impacts tax-exempt organizations in a variety of ways, including by reducing incentives for charitable giving, applying an excise tax on executive compensation in excess of $1 million per year, creating tax &ldquo;silos&rdquo; for each line of unrelated business taxable income (UBTI) producing businesses, and characterizing expenses for certain fringe benefits as UBTI.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This Nonprofit Guide briefly summarizes the provisions applicable to nonprofits and tax-exempt organizations, and provides guidance as to what the provisions may mean for nonprofits and how they might respond to and plan for the changes in their budgeting, unrelated business income tax (UBIT) planning, compensation decisions, and other areas.</div> <div> &nbsp;</div> <div> Generally referred to as the Tax Cuts and Jobs Act (the name was dropped due to a legislative procedural issue), H.R. 1 became law on December 22, 2017.</div> <div> &nbsp;</div> <div> The following provisions and their implications for nonprofits are addressed:</div> <ul> <li> Excise tax on executive compensation</li> <li> UBIT silos - computation of UBIT separately for each line of business</li> <li> Inclusion of certain fringe benefits in the calculation of UBTI</li> <li> Excise tax on investment income of certain &ldquo;wealthy&rdquo; private colleges and universities</li> <li> Corporate and trust tax provisions / impact on UBIT</li> <li> Net operating loss deduction<span style="white-space:pre"> </span></li> <li> Selected provisions related to charitable giving:</li> </ul> <div style="margin-left: 40px;"> a.<span style="white-space:pre"> </span>Reduction of top individual income tax rate (Temporary)</div> <div style="margin-left: 40px;"> b.<span style="white-space:pre"> </span>Increase in standard deduction (Temporary)</div> <div style="margin-left: 40px;"> c.<span style="white-space:pre"> </span>Reduction in Estate, Gift, and Generation Skipping Transfer Taxes (Temporary)</div> <div style="margin-left: 40px;"> d.<span style="white-space:pre"> </span>Charitable contribution deduction limitation increased (Temporary)</div> <div style="margin-left: 40px;"> e.<span style="white-space:pre"> </span>Overall limitation (&ldquo;Pease&rdquo; limitation) on itemized deductions suspended (Temporary)</div> <div style="margin-left: 40px;"> f.<span style="white-space:pre"> </span>Denial of Deduction for Amounts Paid in Exchange for College Athletic Event Seating Rights</div> <div style="margin-left: 40px;"> g.<span style="white-space:pre"> </span>Repeal of Substantiation Exception in Case of Contributions Reported by Donee</div> <div> &nbsp;</div> <div> As for charitable giving generally, this Nonprofit Guide does not attempt to predict the impact of the Act on charitable giving.&nbsp; Some are clearly displeased in this regard.&nbsp; For example, the National Council of Nonprofits, which advocates on behalf of charitable nonprofits nationwide, released a statement predicting that the Act will, among other things:&nbsp;</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> damage charitable giving by $13 billion or more annually; destroy more than 220,000 nonprofit jobs; and impair the ability of nonprofits to address community needs by taxing tax-exempt organizations to fund tax cuts for wealthy corporations and individuals.</div> <div> &nbsp;</div> <div> Fundraising charities may also pivot their attention and activities from attracting broad-based support from the many who formerly had charitable giving tax incentives (e.g., prior to the large increase in the standard deduction), focusing instead on the far fewer, but far wealthier, individuals who will continue to benefit from charitable contribution deductions.</div> <div> &nbsp;</div> <div> Finally, in case you heard of one or another provision throughout the course of the legislative process and are wondering what happened to it, we include a section listing certain provisions from the House and Senate bills that did <u>not</u> make it through.&nbsp; See below under <em>The Ones that Didn&rsquo;t Make It</em>.&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Excise Tax on Executive Compensation</strong></span></div> <div> &nbsp;</div> <div> <strong>Prior Law</strong></div> <div> &nbsp;</div> <div> Historically, tax-exempt organizations have not been subject to excise taxes on reasonable compensation paid to their executives.</div> <div> &nbsp;</div> <div> <strong>Changes</strong></div> <div> &nbsp;</div> <div> The Act generally imposes an excise tax equal to 21% of annual compensation paid in excess of $1 million to the top five highest compensated employees, and to certain &ldquo;golden parachute&rdquo; separation pay.&nbsp; The tax is payable by the tax-exempt organization, not the employee.</div> <div> &nbsp;</div> <div> Specifically, the new excise tax applies to: (1) &ldquo;remuneration&rdquo; (other than any &ldquo;excess parachute payment&rdquo;) in excess of $1 million paid to a &ldquo;covered employee&rdquo; by an applicable tax-exempt organization (including all organizations exempt from tax under section 501(a)<sup>1</sup>) for a tax year, plus (2) any &ldquo;excess parachute payment&rdquo; paid by an applicable tax-exempt organization to a covered employee.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The two provisions operate independently, so the excise tax may be imposed on an excess parachute payment even if the covered employee&rsquo;s remuneration does not exceed the $1 million threshold amount.</div> <div> &nbsp;</div> <div> The new excise tax applies to amounts paid by tax-exempt organizations after December 31, 2017.</div> <div> &nbsp;</div> <div> <strong>Definitions</strong></div> <div> &nbsp;</div> <div> A &ldquo;covered employee&rdquo; includes an employee (including any former employee) of an applicable tax-exempt organization if the employee is one of the five highest compensated employees of the organization for the taxable year or was a covered employee of the organization for any preceding taxable year beginning after December 31, 2016.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> &ldquo;Remuneration&rdquo; includes all amounts treated as wages for federal income tax withholding purposes, but does not include designated Roth contributions.&nbsp; Remuneration also includes amounts vesting and taxable under section 457(f) with such amounts being treated as paid when the rights to the remuneration are no longer subject to a substantial risk of forfeiture.&nbsp; However, remuneration does not include loans, including loans made to executives under split dollar life insurance arrangements.</div> <div> &nbsp;</div> <div> Compensation paid by related persons is also added to the calculation of total remuneration.&nbsp; If a covered employee&rsquo;s remuneration from more than one employer is taken into account for these purposes, then the excise tax is pro-rated among the various employers in proportion to the remuneration paid by each.</div> <div> &nbsp;</div> <div> An &ldquo;excess parachute payment&rdquo; is an amount paid to a covered employee upon such employee&rsquo;s separation from employment in an amount with a present value that equals or exceeds three times the employee&rsquo;s base amount.&nbsp; Excluded from the definition of an excess parachute payment are: (i) payments under qualified plans; (ii) any payment under or to an annuity contract described in section 403(b) or a plan described in section 457(b); and (iii) any payments made to an individual who is not a highly compensated employee (within the meaning of section 414(q)).</div> <div> &nbsp;</div> <div> <strong>The Surgeon Exception?</strong></div> <div> &nbsp;</div> <div> Compensation attributable to medical services provided by doctors, nurses, and veterinarians is excluded.&nbsp; Specifically, for purposes of determining who is a covered employee, remuneration paid to a licensed medical professional which is directly related to the performance of medical services by such professional is not taken into account, whereas remuneration paid to such professional in any other capacity is taken into account.&nbsp;</div> <div> &nbsp;</div> <div> So, if a nonprofit hospital system pays five surgeons each in excess of $1 million annually, while all other employees make less than $1 million annually (and no excess parachute payments are made), then the hospital, having no covered employees, can expect to be immune from the excise tax.</div> <div> &nbsp;</div> <div> <strong>Implications</strong></div> <ul> <li> From a tax policy perspective, the excise tax appears intended to create a sort of parity between tax-exempt organizations and taxable entities or, at least, publicly held corporations.&nbsp; Under section 162(m), publicly held corporations cannot deduct compensation in excess of $1 million per year with respect to certain employees.&nbsp; Effectively, this generates tax on those excess amounts at the corporate tax rate, now 21% per the Act, the same rate as the excise tax.&nbsp;&nbsp;<br /> <br /> Notably, the Act eliminates performance-based compensation and commissions exceptions from section 162(m), and the excise tax on tax-exempt organizations likewise has no such exclusion from the calculation of remuneration.<br /> &nbsp;</li> <li> Tax-exempts can expect to continue to have to pay market rates for recruiting and retention purposes, and still compete with for-profits for talent.<br /> &nbsp;</li> <li> Particularly in the case of compensation owed under employment agreements already in effect, the obligation to make these excise tax payments when paying reasonable compensation (or a reasonable amount on separation pursuant to a &ldquo;golden parachute&rdquo; arrangement) would not appear to amount to an automatic excess benefit transaction, private inurement or a violation of the limitation on private benefit.&nbsp;&nbsp;<br /> &nbsp;</li> <li> The Act may put added pressure on compensation determinations in any case where the excise tax will or could become payable (compensation in excess of $1 million or golden parachute severance arrangements).&nbsp; In those cases, it may be even more important to meet the requirements to establish the &ldquo;rebuttable presumption of reasonableness&rdquo; and procure a reasonableness opinion in each such case (with updates as appropriate).&nbsp;&nbsp;<br /> &nbsp;</li> <li> Affected tax-exempt organizations should maintain a roster of their &ldquo;covered employees&rdquo; and &ldquo;related&rdquo; entities, and track the total amount of &ldquo;remuneration&rdquo; being paid.<br /> &nbsp;</li> <li> If compensation could appropriately be paid by an affiliate which is not &ldquo;related&rdquo; for this purpose, tax-exempt organizations may seek to bifurcate a covered employee&rsquo;s compensation to reduce or avoid the excise tax.</li> </ul> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>UBIT Silos - Computation of UBIT Separately for Each Line of Business</strong></span></div> <div> &nbsp;</div> <div> <strong>Prior Law</strong></div> <div> &nbsp;</div> <div> Tax-exempt organizations that operated multiple unrelated trades or businesses historically were permitted to aggregate income and expenses and other deductions from all unrelated trade or business activities.&nbsp; This allowed tax-exempt organizations to use net operating losses (NOLs) from one unrelated trade or business to offset UBTI from another, reducing UBIT overall.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <strong>Changes</strong></div> <div> &nbsp;</div> <div> The Act requires tax-exempt organizations operating one or more unrelated trades or businesses to compute UBTI separately for each unrelated trade or business activity.&nbsp; So, NOLs from one line of business will not be available to offset taxable income from another. However, NOL carryovers from years prior to January 1, 2018 can still be used to reduce all UBTI.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This provision applies to taxable years beginning after December 31, 2017.</div> <div> &nbsp;</div> <div> <strong>Implications</strong></div> <ul> <li> The inability to now offset losses from one unrelated trade or business against gains from another (including, for example, gains and losses from alternative investments or pass-through entities) may result in an increase the amount of UBIT owed.<br /> &nbsp;</li> <li> Nonprofits may wish to consider auditing their UBTI producing activities, including their UBTI producing private equity and other investments, in order to capture and report all expenses reasonably allocable and directly connected to that activity.&nbsp; This may include allocable amounts of employee compensation, investment advisory fees, and other administrative overhead.<br /> &nbsp;</li> <li> It is unclear what separates lines of unrelated businesses under the fragmentation rule.&nbsp; For example, will all investment income reside in a single UBIT silo?&nbsp; Does each K-1 received from an investment in a partnership constitute a single line of business?&nbsp; Can the losses from one hotel be used to offset UBTI from another, more successful hotel investment?&nbsp; These questions will require careful consideration and planning pending further guidance.<br /> &nbsp;</li> <li> Tax-exempt organizations engaged in multiple lines of unrelated business may wish to consider housing those operations in a single taxable corporate subsidiary, so that expenses and income can again be &ldquo;cross-pollinated.&rdquo;&nbsp;&nbsp;<br /> &nbsp;</li> <li> From the perspective of the IRS, this change appears to simply make a statute of their already existing position on the matter.&nbsp; That is, on audit, the IRS has been known to take the position that NOLs from a &ldquo;losing&rdquo; line of business cannot be utilized to offset other income anyway, because either (i) the &ldquo;losing&rdquo; business had no profit motive (making the expenses non-deductible - a &ldquo;hobby&rdquo; loss rule of sorts), or (ii) the &ldquo;losing&rdquo; business was substantially related to the tax-exempt organization&rsquo;s exempt purposes (and not an unrelated trade or business).</li> </ul> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Inclusion of Certain Fringe Benefits in the Calculation of UBTI</strong></span></div> <div> &nbsp;</div> <div> <strong>Prior Law</strong></div> <div> &nbsp;</div> <div> Prior to the Act, tax-exempt organizations could provide employees with certain fringe benefits free from tax at the employer level.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Changes</strong></div> <div> &nbsp;</div> <div> The Act treats amounts used by tax-exempt organizations to pay for certain fringe benefits offered to employees as UBTI (provided that the amounts are not deductible under section 274).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The triggering fringe benefits include qualified transportation fringe benefits, any parking facility used in connection with qualified parking, and on-premises athletic facilities.&nbsp; This provision does not apply to payment of amounts that are directly connected with a regularly carried-on unrelated trade or business.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This provision applies to amounts paid or incurred after December 31, 2017.</div> <div> &nbsp;</div> <div> <strong>Implications</strong></div> <ul> <li> From a tax policy perspective, this provision attempts to create parity with another newly-enacted provision applicable to taxable organizations that eliminates a tax exemption for certain employer-provided fringe benefits.&nbsp; Given this change, tax-exempt organizations providing these types of fringe benefits to their employees will be required to pay a corporate tax rate on the value of such benefits.&nbsp;&nbsp;<br /> &nbsp;</li> <li> Tax-exempt organizations may wish to consider replacing these benefits with higher compensation or other benefits of equivalent value to their employees, but which do not trigger UBIT.</li> </ul> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Excise Tax on Investment Income of Private Colleges and Universities</strong></span></div> <div> &nbsp;</div> <div> <strong>Prior Law</strong></div> <div> &nbsp;</div> <div> Historically, private colleges and universities have not been subject to excise taxes on their net investment income.</div> <div> &nbsp;</div> <div> <strong>Changes</strong></div> <div> &nbsp;</div> <div> The Act imposes a new 1.4% excise tax on the net investment income (i.e., endowment earnings) of certain private colleges and universities and their related organizations.&nbsp; State colleges and universities are not subject to the new tax.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Net investment income is defined to correspond to the definition under the private foundation rules, which generally includes interest, dividends, rents, royalties (and income from similar sources), and capital gain net income, reduced by expenses incurred to earn this income.</div> <div> &nbsp;</div> <div> The tax applies only to private colleges and universities with at least 500 students, more than 50% of the students of which are located in the United States, and with assets valued at the close of the preceding taxable year of at least $500,000 per full-time student.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Assets used directly by the institution in carrying out its educational purpose (e.g., classroom buildings and physical facilities used for educational activities) are not included in this calculation.&nbsp; The assets and net investment income of related organizations, such as controlling and controlled organizations and supported and supporting organizations, generally are treated as the assets of the private college or university.</div> <div> &nbsp;</div> <div> Per the conference report that accompanied the Act, it is expected that future regulations will provide guidance regarding: (1) assets that are used directly in carrying out the educational institution&rsquo;s exempt purpose; (2) the computation of net investment income; and (3) assets that are intended or available for the use or benefit of the private college or university.</div> <div> &nbsp;</div> <div> The provision applies to taxable years beginning after December 31, 2017.</div> <div> &nbsp;</div> <div> <strong>Implications</strong></div> <ul> <li> Initially, the excise tax is expected to apply to approximately 30 private colleges and universities.&nbsp;&nbsp;<br /> &nbsp;</li> <li> Because the assets-per-student threshold of $500,000 is not indexed for inflation, schools near the threshold may wish to plan ahead and adjust their projections accordingly.<br /> &nbsp;</li> <li> Private colleges and universities may wish to consider reviewing the related organizations listed on their latest Form 990 filing.&nbsp; This can then be used to determine what assets may need to be combined with the college or university&rsquo;s for purposes of calculating total assets-per-student and overall net investment income.</li> </ul> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Corporate and Trust Tax Provisions / Impact on UBIT</strong></span></div> <div> &nbsp;</div> <div> <strong>Prior Law</strong></div> <div> &nbsp;</div> <div> Prior to the Act, the corporate tax rate (and the UBIT rate) was determined under a graduated rate structure.&nbsp; The top corporate tax rate was 35% on taxable income in excess of $10 million.&nbsp; &nbsp;In addition, the highest rate applicable to tax-exempt trusts was 39.6%.</div> <div> &nbsp;</div> <div> An alternative minimum tax (AMT) was also imposed to the extent that the AMT exceeded regular tax.&nbsp; The tentative minimum tax was computed at a rate of 20% on the alternative minimum taxable income (AMTI) in excess of a $40,000 exemption amount that phased out.&nbsp; AMTI consisted of regular taxable income that was increased for certain preference items and adjusted by determining the tax treatment of certain items in a manner that negated the deferral of income resulting from the regular tax treatment of those items.</div> <div> &nbsp;</div> <div> <strong>Changes</strong></div> <div> &nbsp;</div> <div> The Act eliminates the graduated rate structure and instead taxes corporate income at a flat 21% rate.&nbsp; The Act also repeals the corporate AMT and allows prior year AMT credits to offset regular tax liability for any taxable year.&nbsp; Taxpayers with AMT credit carryforwards are allowed to claim a refund of 50% of the remaining credits for any taxable year between 2018 and 2021, and then can claim the full amount of any remaining credits in taxable years beginning in 2021.&nbsp;</div> <div> &nbsp;</div> <div> These provisions are effective for taxable years after December 31, 2017.</div> <div> &nbsp;</div> <div> <strong>Implications</strong></div> <ul> <li> The UBIT rate applicable to tax-exempt trusts is 37%, creating an impetus to reevaluate use of the charitable trust form for tax-exempt organizations with UBTI.<br /> &nbsp;</li> <li> The lower corporate tax rate may serve to increase post-UBIT profits from a tax-exempt organization&rsquo;s unrelated businesses, including taxable investment income.<br /> &nbsp;</li> <li> Repeal of the corporate AMT can be expected to reduce the tax compliance costs and administrative burdens associated with operating unrelated trade or business activities.&nbsp;</li> </ul> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Net Operating Loss Deduction<span style="white-space:pre"> </span></strong></span></div> <div> &nbsp;</div> <div> <strong>Prior Law</strong></div> <div> &nbsp;</div> <div> Prior to the Act, NOLs could be carried forward 20 years to offset taxable income in such years.&nbsp; NOLs could be carried back 2 years to offset income recognized in the past, sometimes generating a refund of previously paid taxes.&nbsp; NOLs could be used to offset a full 100% of a corporation&rsquo;s taxable income.</div> <div> &nbsp;</div> <div> <strong>Changes</strong></div> <div> &nbsp;</div> <div> Under the Act, carrybacks of NOLs incurred in 2018 and beyond are no longer permitted.&nbsp; In addition, a carryforward of any 2018 or later incurred NOL may only be used against 80% of a corporation&rsquo;s taxable income.&nbsp; The 20 year limit is eliminated, so that NOLs can be carried forward indefinitely, along with an interest factor to preserve their value.&nbsp;</div> <div> &nbsp;</div> <div> This provision applies to losses arising in taxable years beginning after December 31, 2017.</div> <div> &nbsp;</div> <div> <strong>Implications</strong></div> <ul> <li> No longer can NOLs be used to entirely eliminate the income that is earned from unrelated business activities.&nbsp; As a result, tax-exempt organizations with significant NOL carryforwards may now become subject to tax on at least 20% their UBTI.&nbsp;&nbsp;<br /> &nbsp;</li> <li> The endless life of NOLs makes it all the more important for a nonprofit to identify and report all appropriate UBIT deductions and expenses on their Form 990-Ts, particularly while the activities are in &ldquo;startup&rdquo; mode.&nbsp;&nbsp;</li> </ul> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Selected Provisions Impacting Charitable Giving</strong></span></div> <div> &nbsp;</div> <div> <strong>Reduction of Top Individual Income Tax Rate (Temporary)</strong></div> <div> &nbsp;</div> <div> The Act reduces the top marginal tax rate from 39.6% to 37% for taxable years beginning after December 31, 2017 and before January 1, 2026.&nbsp; Generally, a reduction in the top marginal tax rate decreases the value of charitable contributions for the highest-income taxpayers, reducing the tax incentive to contribute.</div> <div> &nbsp;</div> <div> <strong>Increase in Standard Deduction (Temporary)</strong></div> <div> &nbsp;</div> <div> While the deduction for charitable contributions remains in place, taxpayers have to itemize deductions to claim a charitable contribution deduction on their federal income tax return.&nbsp; An estimated 94% of taxpayers are now expected to claim the increased standard deduction, up from approximately 70% under pre-Act law.&nbsp; So, 94% of taxpayers are expected to have no tax benefit from their charitable giving.</div> <div> &nbsp;</div> <div> Prior to the Act, an individual who does not itemize deductions could reduce adjusted gross income (AGI) by the standard deduction.&nbsp; The standard deduction is the sum of the basic standard deduction and, if applicable, the additional standard deduction.&nbsp; The basic standard deduction varies depending upon a taxpayer&rsquo;s filing status.&nbsp; For 2017, the amount of the basic standard deduction was $6,350 for single individuals and married individuals filing separate returns, $9,350 for heads of households, and $12,700 for married individuals filing a joint return and surviving spouses.</div> <div> &nbsp;</div> <div> Under the Act, the amount of the basic standard deduction increases to $12,000 for single individuals and married individuals filing separate returns, $18,000 for heads of households, and $24,000 for married individuals filing a joint return and surviving spouses for taxable years beginning after December 31, 2017 and before January 1, 2026.&nbsp; The standard deduction amounts will be adjusted for inflation in taxable years beginning after December 31, 2018.</div> <div> &nbsp;</div> <div> <strong>Reduction in Estate, Gift, and Generation Skipping Transfer Taxes (Temporary)</strong></div> <div> &nbsp;</div> <div> The Act doubles the estate and gift tax exemption for estates of decedents and gifts made after December 31, 2017, and before January 1, 2026.&nbsp; This is accomplished by increasing the basic exclusion amount provided in section 2010(c)(3) from $5 million to $10 million.&nbsp; The $10 million exclusion is indexed for inflation (after 2011) and is expected to be approximately $11.2 million in 2018.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Increasing the exclusion is expected to reduce the tax incentive for wealthy individuals to make deductible charitable bequests.</div> <div> &nbsp;</div> <div> <strong>Charitable Contribution Deduction Limitation Increased (Temporary)</strong></div> <div> &nbsp;</div> <div> Under pre-Act law, the deduction for charitable contributions of cash by an individual taxpayer to certain tax-exempt organizations (those described in section 170(b)(1)(A) - including public charities and private operating foundations) was limited to 50% of the taxpayer&rsquo;s adjusted gross income.</div> <div> &nbsp;</div> <div> Solely for cash contributions made in taxable years beginning after December 31, 2017, the Act temporarily (through taxable years beginning before January 1, 2026) increases the percentage limit, including in carryforward years, from 50% to 60% of AGI.&nbsp; Excess amounts can continue to be carried forward for up to 5 years.</div> <div> &nbsp;</div> <div> <strong>Overall Limitation (&ldquo;Pease&rdquo; Limitation) on Itemized Deductions Suspended (Temporary)</strong></div> <div> &nbsp;</div> <div> Under pre-Act law, higher-income taxpayers who itemize their deductions were subject to a limitation on these deductions, including charitable contribution deductions (commonly known as the &ldquo;Pease limitation&rdquo;).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> For taxpayers who exceeded the applicable threshold, the otherwise allowable amount of itemized deductions was reduced by 3% of the amount of the taxpayer&rsquo;s adjusted gross income exceeding the threshold.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> For 2017, the threshold amounts (which are indexed for inflation) were $261,500 for single taxpayers, $287,650 for heads of household, $313,800 for married couples filing jointly, and $156,900 for married taxpayers filing separately.&nbsp; The otherwise allowable itemized deductions could not be reduced by more than 80% by reason of the overall limit on itemized deductions.</div> <div> &nbsp;</div> <div> Under the Act, the &ldquo;Pease limitation&rdquo; on itemized deductions is suspended for taxable years beginning after December 31, 2017 and before January 1, 2026.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> So, the ultimate value of charitable contribution deductions will increase for taxpayers who would otherwise have been subject to the Pease limitation.</div> <div> &nbsp;</div> <div> <strong>Denial of Deduction for Amounts Paid in Exchange for College Athletic Event Seating Rights</strong></div> <div> &nbsp;</div> <div> A taxpayer can usually deduct a contribution of money or property made to a qualified organization.&nbsp; No charitable contribution is generally allowed to the extent that the taxpayer receives or expects to receive a benefit in return.&nbsp; Notwithstanding this prohibition, pre-Act law permitted taxpayers to claim a charitable contribution equal to 80% of the amount paid to an educational institution for the right to purchase tickets for seating at an athletic event in the stadium at such institution.&nbsp;</div> <div> &nbsp;</div> <div> The Act eliminates this exception and makes these type of quid pro quo contributions non-deductible, regardless of the amount involved.&nbsp; As such, taxpayers will no longer be able to claim charitable contribution deductions for any amounts paid for college athletic seating rights.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This provision applies to contributions made in taxable years beginning after December 31, 2017.</div> <div> &nbsp;</div> <div> <strong>Repeal of Substantiation Exception in Case of Contributions Reported by Donee</strong></div> <div> &nbsp;</div> <div> Generally, no charitable contribution deduction for any single contribution of $250 or more is allowed unless a taxpayer substantiates the contribution with a contemporaneous written acknowledgment of the contribution by the donee organization.&nbsp; Pre-Act law authorized the IRS to develop optional donee reporting procedures for substantiating charitable contributions of $250 or more that could be used in lieu of a contemporaneous written acknowledgment.</div> <div> &nbsp;</div> <div> In September 2015, the IRS issued proposed regulations which adopted donee reporting as an alternative means for satisfying the substantiation requirements for charitable contributions.&nbsp; In response to those proposed regulations the IRS received a substantial number of public comments questioning the need for the donee reporting option and expressing significant concerns about organizations collecting and storing donee taxpayer identification numbers.&nbsp; As a result of those comments, the IRS decided to withdraw the regulations.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Act repeals the IRS&rsquo;s authority to develop optional reporting procedures for substantiating charitable contributions.&nbsp; As such, taxpayers making any single charitable contributions in the amount of $250 or more will need to substantiate the contribution with a contemporaneous written acknowledgement in order to be claim a charitable contribution deduction for such contribution on their tax return.</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>The Ones That Didn&rsquo;t Make It</strong></span></div> <div> &nbsp;</div> <div> Along the way, the following selected provisions were included in the House bill, the Senate bill, or both, but did NOT end up included in the Act:</div> <ul> <li> Clarification that an organization is not exempt from UBIT solely because the tax-exempt organization also is exempt, or excludes amounts from gross income, by reason of another provision of the Code (in addition to section 501) - in effect clarifying that state and local government section 401(a) plans are subject to UBIT regardless of the application of section 115.</li> <li> Limiting to publicly available research the exclusion of research income from UBTI.</li> <li> Application of UBIT to revenue from the sale or licensing of name and logo.</li> <li> Elimination of tax exemption for professional sports leagues.</li> <li> Simplification of excise tax on private foundation investment income by replacing the two-tiered tax (2% or 1%) with a single rate of 1.4%</li> <li> Private operating foundation requirements relating to operation of an art museum which would require them to be open to the public during normal business hours for at least 1,000 hours per year.</li> <li> Exception to the private foundation excess business holding rules for philanthropic business holdings (the &ldquo;Newman&rsquo;s Own&rdquo; rule).</li> <li> Exception under the Johnson Amendment which would permit section 501(c)(3) organizations to make statements relating to political campaigns.</li> <li> Addition of reporting requirements for the sponsoring organizations of donor advised funds.</li> <li> Modifications to intermediate sanctions excise tax on excess benefit transactions, including: <ul> <li> the imposition of a 10% excise tax on a tax-exempt organization if an initial tax is imposed on a disqualified person for purposes of the intermediate sanctions rules,</li> <li> the elimination of the rebuttable presumption of reasonableness,</li> <li> the elimination of the special rule providing that an organization manager&rsquo;s participation in an excess benefit transaction is not knowing if the manager relied on professional advice and the rule that a manager does not act knowingly where the organization satisfies the rebuttable presumption,</li> <li> the addition of investment advisors and athletic coaches to the definition of &ldquo;disqualified persons&rdquo; for the purposes of the excess benefit transactions rules, and</li> <li> the extension of the intermediate sanctions excess benefit transactions rules to section 501(c)(5) and section 501(c)(6) organizations.</li> </ul> </li> <li> Adjustment of the charitable mileage rate.</li> </ul> <div> <br /> <span style="font-size:14px;"><strong>Conclusion</strong></span></div> <div> &nbsp;</div> <div> Tax-exempt organizations and nonprofits should consider carefully the impacts of the Act on their operations, including fundraising, budget projections, executive compensation and fringe benefits decisions, and structuring (or spinning off) unrelated/taxable business operations.</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> ____________________</div> <div> &nbsp;</div> <div> <sup>1</sup> All section references are to the Internal Revenue Code.</div> http://www.seyfarth.com:80/publications/TRMA-122217 Tax Reform Impact on Estate Taxes http://www.seyfarth.com:80/publications/TRMA-122217 Fri, 22 Dec 2017 00:00:00 -0500 <div> <em>This is the sixth issue in a planned series of alerts designed to provide an in-depth analysis on topics related to tax reform.</em></div> <div> &nbsp;</div> <div> Like all new things, new years typically welcome many changes, opportunities and new approaches.&nbsp; This will hold especially true for 2018 in light of the sweeping changes made by the Federal Tax Cuts and Jobs Act (the &ldquo;Act&rdquo;), recently passed by Congress and expected to be signed by the President effective on January 1.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Changes to Federal Transfer Tax Laws</strong></div> <div> &nbsp;</div> <div> Currently, each person may transfer up to $5.49 million without incurring Federal gift, estate or generation skipping transfer taxes (collectively referred to as &ldquo;transfer taxes&rdquo;) during life, at death, or by combination.&nbsp; Married couples may transfer a combined $10.98 million.&nbsp; Property transferred in excess of the exemption is subject to tax at a rate of 40%.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Act provides for a doubling of the exemption amount to approximately $11.2 million per person, adjusted annually for inflation.&nbsp; Married couples will be able to transfer a combined $22.4 million.&nbsp; This doubled exemption is scheduled to remain in effect for 8 years and will expire at the end of 2025.&nbsp; Property transferred in excess of the increased exemption will continue to be taxed at a rate of 40%.</div> <div> &nbsp;</div> <div> In addition, the annual exclusion from gift tax for direct gifts and gifts to a trust which are subject to a <em>Crummey </em>power will increase to $15,000 (a married couple may make gifts of $30,000 per recipient).&nbsp; This change is due to inflation and not the new legislation.</div> <div> &nbsp;</div> <div> Also, it is important to note that the rules regarding income tax basis remain the same.&nbsp; Thus, a donor&rsquo;s basis in property which is gifted will &ldquo;carry-over&rdquo; to the gift recipient while property owned at death will receive a &ldquo;step-up&rdquo; in basis equal to the date of death value.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Changes to State Transfer Tax Laws</strong></div> <div> &nbsp;</div> <div> In addition to the Federal changes, clients who live in, or own property in, the following states may also be affected by local law changes.</div> <div> &nbsp;</div> <div> <u>New York</u></div> <div> &nbsp;</div> <div> There continues to be no New York gift tax and the exemption from the New York estate tax will continue to be $5.25 million.&nbsp; The exemption will rise for decedents dying on or after January 1, 2019 and a &ldquo;guesstimate&rdquo; is that the exemption will be between $5.6 million and $6 million at that time.&nbsp; Estates in excess of the exemption will continue to be taxed at a maximum rate of 16%.&nbsp; The estate tax &ldquo;cliff&rdquo; will continue such that there is no exemption for estates exceeding the NY exemption amount by more than 5%.</div> <div> &nbsp;</div> <div> <u>New Jersey</u></div> <div> &nbsp;</div> <div> New Jersey currently has no gift tax and a $2 million exemption from estate tax.&nbsp; Beginning in 2018, New Jersey has repealed its estate tax.&nbsp; New Jersey continues to have an inheritance tax.</div> <div> &nbsp;</div> <div> <u>Connecticut</u></div> <div> &nbsp;</div> <div> Connecticut currently has both a gift tax and an estate tax, subject to a $2 million exemption, which increases to $2.6 million in 2018 and $3.6 million in 2019.&nbsp; Beginning in 2020, Connecticut&rsquo;s exemption is scheduled to match the Federal exemption of $11.2 million.&nbsp; Property transferred in excess of the exemption amount is subject to tax at a maximum rate of 12%.&nbsp; The maximum amount of gift and estate tax that a taxpayer must pay is currently $20 million, but this cap will be reduced to $15 million beginning in 2019.</div> <div> &nbsp;</div> <div> <u>Illinois</u></div> <div> &nbsp;</div> <div> No changes have been made to Illinois transfer tax laws and its estate tax exemption remains at $4 million which is significantly less than the Federal amount.&nbsp; As a result of this difference and the inability under Illinois law (unlike under Federal law) for the surviving spouse to utilize any unused exemption of the first spouse to die, it is necessary to properly structure the estate plans of married Illinois residents in particular to maximize the use of the Illinois exemption and marital deduction.</div> <div> &nbsp;</div> <div> <strong>What Should I Do?</strong></div> <div> &nbsp;</div> <div> Given the significant changes to the Federal and State estate, gift and generation skipping transfer taxes effective on January 1, 2018, clients should consider the following:</div> <div> &nbsp;</div> <div> <strong>Review Your Estate Plan - </strong>Your current estate plan reflects the transfer taxes in effect at the time your documents were executed.&nbsp; In light of the current fundamental changes to those transfer taxes, your estate plan should be reviewed to ensure that it still accomplishes your estate planning objectives.</div> <div> &nbsp;</div> <div> <strong>Increase Flexibility -</strong> The Federal tax law changes are scheduled to expire after 8 years, and given the current political climate, it is possible that future elections could bring about significant changes sooner.&nbsp; Further, it is unknown whether these Federal tax law changes will cause the states to change their tax laws.&nbsp; As a result, estate planning documents should be drafted to incorporate more flexibility, including allowing for <em>post-mortem</em> (after death) planning.</div> <div> &nbsp;</div> <div> <strong>Consider Gifting - </strong>The doubling of the Federal transfer tax exemption provides an opportunity for clients to make significant gifts.&nbsp; By gifting property during life, donors may successfully avoid transfer taxes on post-gift appreciation and, in many cases, state transfer taxes on the entire value of the gifted property.&nbsp; Given that the increase in exemption is scheduled to expire (or may be reduced by a future Congress), there is an added incentive to make gifts sooner, rather than later.&nbsp; Further, property gifted to a trust is protected from the creditors (including, in some cases, a divorcing spouse) of a beneficiary.</div> <div> &nbsp;</div> <div> <strong>Change of Domicile -</strong> The new Federal law also provides for significant changes to the income tax laws, including the limit on state income and property tax deductions.&nbsp; Given this, many may consider changing their domicile.&nbsp; Before finalizing such a decision, you should contact us to discuss the possible estate, gift and generation skipping transfer tax effects of such a change, and the necessary steps to complete such a change.</div> <div> &nbsp;</div> <div> Seyfarth Shaw will continue to monitor Congressional and regulatory efforts and will provide further alerts as new developments occur.&nbsp;&nbsp;</div> http://www.seyfarth.com:80/publications/WSE122217 Circuit Court Finds OSHA Failed to Adequately Explain the Crystalline Silica Standards Rule http://www.seyfarth.com:80/publications/WSE122217 Fri, 22 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In a win for labor, the DC Circuit Court of Appeals orders the remand of the Crystalline Silica Standard for Construction and General Industry (Silica Rule) for OSHA to explain its decision to omit medical removal protections.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/chemical-safety/circuit-court-finds-osha-failed-to-adequately-explain-the-crystalline-silica-standards-rule/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR122217 Collyer Deferral: GC Memorandum 18-02 Upholds Parties’ Agreed Upon Method of Grieving and Arbitrating Certain Unfair Labor Practice Charges http://www.seyfarth.com:80/publications/LR122217 Fri, 22 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, here, here, here, here, here &amp; here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/22/collyer-deferral-gc-memorandum-18-02-upholds-parties-agreed-upon-method-of-grieving-and-arbitrating-certain-unfair-labor-practice-charges/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA122217 DOJ Nixes All Pending ADA Rulemakings, Including Website Access Rules http://www.seyfarth.com:80/publications/ADA122217 Fri, 22 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Justice Department withdraws pending rulemakings for accessible websites, furniture and non-fixed equipment. The current Department of Justice&rsquo;s (DOJ) regulatory approach to Title III of the ADA is yet another example of what a difference an election can make.<br /> <br /> <a href="https://www.adatitleiii.com/2017/12/doj-nixes-all-pending-ada-rulemakings-including-website-access-rules/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC122217 Illinois Appellate Court Turns The Tide In Favor Of Employers In Class Actions Brought Under The Illinois Biometric Privacy Act Alleging Mere Technical Violations http://www.seyfarth.com:80/publications/WC122217 Fri, 22 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: As the number of class action lawsuits alleging violations of the Illinois&nbsp;Biometric Information Privacy Act&nbsp;(&ldquo;BIPA&rdquo;) has exploded in the last six months, defendants have been eagerly awaiting guidance from an Illinois appellate court regarding what a Plaintiff must allege in order to have a viable right of action under the statute. In Rosenbach v. Six Flags, 2017 IL App (2d) 170317 (Ill. App. Ct., Dec. 21, 2017), the Illinois Appellate Court for the Second District issued the first such ruling in this area, holding that a Plaintiff must allege an actual injury to be &ldquo;aggrieved&rdquo; under the Act in order to seek statutory damages and injunctive relief.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/12/illinois-appellate-court-turns-the-tide-in-favor-of-employers-in-class-actions-brought-under-the-illinois-biometric-privacy-act-alleging-mere-technical-violations/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/acg122217 Andrew Lucano, Richard Lutkus, Tushar Vaidya authored an article in the ACG Chicago Journal http://www.seyfarth.com:80/publications/acg122217 Fri, 22 Dec 2017 00:00:00 -0500 <p> Andrew Lucano, Richard Lutkus, Tushar Vaidya authored a December 22 article in the ACG Chicago Journal, &quot;Cybersecurity Threats May Be Lurking In Your Next M&amp;A Deal.&quot; The article discusses what companies could and should be doing to protect their data. You can read the <a href="http://www.acgleaderboard.info/2017Journal/Q4_2017_Journal.pdf">full article on p.18 here</a>.</p> http://www.seyfarth.com:80/publications/WH122117 Here We Come a Waiver-ing: 2017 Year in Review http://www.seyfarth.com:80/publications/WH122117 Thu, 21 Dec 2017 00:00:00 -0500 <br /> <br /> <p> <a href="https://www.wagehourlitigation.com/uncategorized/here-we-come-a-waiver-ing-2017-year-in-review/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL122117 Insights from the Trenches: Proven Strategies to Combat Harassment in 2018 from Seyfarth Shaw at Work (SSAW) http://www.seyfarth.com:80/publications/EL122117 Thu, 21 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In the last in a three-part series addressing sexual harassment in the workplace, we asked Philippe Weiss, Esq., Managing Director of Seyfarth Shaw at Work, to share insights from the front lines, that can help organizations credibly and effectively ensure their company culture is respectful and not tolerant of discrimination, harassing behavior or other inappropriate workplace conduct.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/12/insights-from-the-trenches-proven-strategies-to-combat-harassment-in-2018-from-seyfarth-shaw-at-work-ssaw/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR122117 A Few (More) of Employers’ Favorite Things From GC 18-02: The End of Alan Ritchey And Preservation of the Levitz and Tri-Cast Doctrines? http://www.seyfarth.com:80/publications/LR122117 Thu, 21 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, here, here, here, here, &amp; here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/21/a-few-more-of-employers-favorite-things-from-gc-18-02-the-end-of-alan-ritchey-and-preservation-of-the-levitz-and-tri-cast-doctrines/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC122117 Class Action Cash-In: 7th Circuit Allows Attorneys’ Fees To Exceed Plaintiffs’ Payout http://www.seyfarth.com:80/publications/WC122117 Thu, 21 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In a class action asserting claims for breach of contract, unjust enrichment, and statutory fraud in regards to the sale of general-use, pre-paid gift cards, the Seventh Circuit affirmed the final approval of a settlement agreement whereby the attorneys&rsquo; fees and costs totaled $1.95 million, while the class members would only receive approximately $1.8 million.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/12/class-action-cash-in-7th-circuit-allows-attorneys-fees-to-exceed-plaintiffs-payout/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM122117-LE Not Up In Smoke: Employers Can Still Enforce Drug Policies http://www.seyfarth.com:80/publications/OMM122117-LE Thu, 21 Dec 2017 00:00:00 -0500 <p> <strong>Seyfarth Synopsis</strong>: <em>California employers can still enforce their drug-free workplace policies and discharge employees who test positive for marijuana, despite the recreational marijuana laws that go into effect in January 2018</em>.&nbsp;&nbsp;</p> <p> On November 8, 2016, California voters enacted the Adult Use of Marijuana Act. Effective January 1, 2018, adults over the age of 21 can smoke marijuana recreationally. Health &amp; Safety Code &sect;&nbsp;11362.1(a)(4). Marijuana, meanwhile, will remain legal for medical use by patients who have a physician&rsquo;s recommendation, under California&rsquo;s Compassionate Use Act of 1996. Health &amp; Safety Code &sect;&nbsp;11362.5. So how will the new law affect employers?</p> <p> As the Golden State goes green in 2018, California employers can be thankful that the new law leaves undisturbed an employer&rsquo;s ability to maintain drug-free workplaces. The Adult Use of Marijuana Act, Health &amp; Safety Code &sect; 11362.45(f), explicitly allows &ldquo;public and private employers to maintain a drug and alcohol free workplace.&rdquo; Thus, employers can still drug-test employees for marijuana and discharge them for testing positive, even though marijuana is legal for recreational use in the State.</p> <p> And employers likewise can still deny employment to job applicants who test positive for marijuana. Section 11362.45(f) provides that an employer need not &ldquo;permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace.&rdquo; The new law therefore does not disturb the California Supreme Court&rsquo;s 2008 holding in <em>Ross v. RagingWire Telecommunications Inc.</em> that an employer may enforce a policy of refusing to hire an applicant who tests positive for marijuana&mdash;even if the applicant was using the marijuana for medical purposes under the protection of the Compassionate Use Act.</p> <p> In <em>Ross</em>, the plaintiff tested positive for marijuana that he was using on his physician&rsquo;s recommendation, to ease chronic pain. When his employer fired him, he sued for disability discrimination under California&rsquo;s Fair Employment and Housing Act (FEHA). The Supreme Court held that (1) FEHA does not require employers to accommodate the use of drugs that are illegal under federal law, and (2) firing the plaintiff for using marijuana did not violate a fundamental state public policy.</p> <p> California employers can remain grateful that the <em>Ross </em>court was more solicitous to employers than some other courts might be. In <em>Barbuto v. Advantage Sales &amp; Marketing,</em> a 2017 case, Massachusetts&rsquo;s highest court differed with <em>Ross</em>, permitting an employee who was fired for using medical marijuana (to treat Crohn&rsquo;s disease) to sue under Massachusetts law for a failure to provide a reasonable accommodation. <em>Barbuto</em> rejected the employer&rsquo;s argument that it would be unreasonable to require an employer to accommodate the use of medical marijuana that is illegal to use under federal law. <em>Barbuto </em>held that employers must engage in an interactive process with employees to see if there are equally effective medical alternatives to the prescribed medication that would not violate the employer&rsquo;s anti-drug policy.</p> <p> While California employers are currently afforded protection from permitting employee marijuana use (due to marijuana&rsquo;s federal status), employers should review their handbooks and written policies to ensure that their drug policies are broad enough to invoke this available protection. Employers should also communicate their anti-drug policies clearly to employees to weed out any confusion caused by the legalization of marijuana.</p> http://www.seyfarth.com:80/publications/TRMA122117 Senate and House Reconcile their Versions of Tax Reform http://www.seyfarth.com:80/publications/TRMA122117 Thu, 21 Dec 2017 00:00:00 -0500 <div> <em>This is the fourth issue in a planned series of alerts designed to provide an in-depth analysis on topics related to tax reform. This Tax Reform Management Alert issue focuses on executive compensation and employee benefits aspects of the tax reform proposals and how they will impact your business.</em></div> <div> &nbsp;</div> <div> On Wednesday, December 20, 2017, Congress passed The Tax Cuts and Jobs Act (Bill).&nbsp; The Senate passed the Bill by a 51 to 48 vote along party lines at about 1 a.m. Wednesday.&nbsp; The House passed the Bill by a vote of 224 to 201 later in the day on Wednesday.&nbsp; (The House had to re-vote due to a technical snafu with their first vote.)&nbsp;</div> <div> &nbsp;</div> <h3> <strong>What Happens Next?</strong></h3> <div> &nbsp;</div> <div> President Trump is expected to sign the Bill although, as of the time and date of this Alert, his schedule for doing so is unclear.&nbsp; While the Bill will almost certainly become law and will dramatically reshape the business and individual tax landscape in the United States, the vast majority of the individual tax changes expire in 10 years; however, the corporate rate reduction is permanent.&nbsp; As noted above, the Bill was passed along party lines and, as a result, expect to see efforts to change the law as soon as politics permit it.</div> <div> &nbsp;</div> <div> As we&rsquo;ve previously reported, the Bill&rsquo;s impact on employee benefits and executive compensation were greatly diminished as the Bill wound its way through Congress (see our previous alerts, <a href="http://www.seyfarth.com/uploads/siteFiles/publications/TaxReformManagementAlert_Issue1_112117.pdf">Issue #1</a>, <a href="http://www.seyfarth.com/uploads/siteFiles/publications/TaxReformManagementAlert_Issue2_120817.pdf">Issue #2</a> and <a href="http://www.seyfarth.com/uploads/siteFiles/publications/TaxReformManagementAlert_Issue3_121917.pdf">Issue #3</a>). Nonetheless, the Bill does make some important and material changes in this area.&nbsp; The following table updates our prior summaries by providing the highlights of the final Bill, as compared to the earlier versions of the House Bill and Senate Bill.</div> <div> &nbsp;</div> <h3> <strong>Executive Compensation</strong></h3> <div> &nbsp;</div> <div> <table border="1" cellpadding="1" cellspacing="1" style="width: 600px;" valign="top"> <tbody> <tr> <td style="width: 100px;"> <strong>ISSUE</strong></td> <td style="width: 250px;"> <strong>HOUSE BILL, AS PASSED</strong></td> <td style="width: 250px;"> <strong>SENATE BILL, AS PASSED</strong></td> <td style="width: 250px;"> <b>RECONCILED BILL</b></td> </tr> <tr> <td style="vertical-align: top;"> Right to Defer Stock (Private Companies)</td> <td> <div> Effective for stock attributable to options exercised or RSUs settled after&nbsp;</div> <div> December 31, 2017</div> <ul> <li> Right to defer income on stock received in connection with an option exercise or RSU settlement if an employee, who is not an &ldquo;excluded employee,&rdquo;<sup>1</sup>&nbsp;makes an election no later than 30 days after the first time the right to the stock is substantially vested or transferable (whichever is earlier);<sup>2</sup>&nbsp;right is limited and will not apply to public corporations</li> <li> Clarifies that Section 83 does not apply to restricted stock units</li> </ul> </td> <td style="vertical-align: top;"> Same</td> <td style="vertical-align: top;"> Same</td> </tr> <tr> <td style="vertical-align: top;"> <div> Section 162(m)&nbsp;</div> <div> $1 million Deductibility Limit</div> </td> <td> <div> Effective tax years beginning after 2017 with no grandfather or transition period</div> <ul> <li> Eliminates the performance based compensation and commission exceptions, further limiting compensation that can be deducted&nbsp;</li> <li> Includes principal financial officer as &ldquo;covered employee,&rdquo; realigning definition with the SEC disclosure rules</li> <li> Once an employee becomes a covered employee after 2016, he or she stays one, including if amounts are paid to a beneficiary</li> </ul> </td> <td style="vertical-align: top;"> <p> Effective tax years beginning after 2017 with limited grandfather</p> <ul> <li> Same</li> <li> Same</li> <li> Same</li> <li> Same</li> </ul> </td> <td style="vertical-align: top;"> <p> Effective tax years beginning after 2017 with limited grandfather</p> <ul> <li> Same</li> <li> Same</li> <li> Same</li> <li> Same</li> </ul> </td> </tr> <tr> <td style="vertical-align: top;"> New Tax on Excess Compensation Paid by Not-for-Profits</td> <td> <div> Beginning 2018, a new tax is imposed on excess compensation paid by a tax exempt employer:</div> <ul> <li> Tax equals 20% of compensation paid to a covered employee over $1,000,000, plus excess parachute payments</li> <li> The employer is liable for the tax</li> <li> Covered employees are the 5 highest compensated employees; once an employee becomes a covered employee after 2016, he or she stays one</li> <li> Excess parachute payments are payments contingent on termination of employment that exceed 3 times the employee&rsquo;s average annualized base compensation (a change in control Is not required for this purpose)</li> </ul> </td> <td style="vertical-align: top;"> Same, except compensation is treated as paid, and therefore subject to the excise tax, when no longer subject to a substantial risk of forfeiture</td> <td style="vertical-align: top;"> <div> Adopts Senate version, except:</div> <ul> <li> the excise tax is increased to 21%</li> <li> the excise tax will not apply to any excess compensation or parachute payments paid to a licensed medical professional (including a doctor, nurse or veterinarian) directly related to the performance of medical or veterinarian services, and</li> <li> payments made to an individual who is considered non-highly compensated for purposes of tax-qualified retirement plans will not be subject to excise tax for the payment of excess parachute payments.</li> </ul> </td> </tr> <tr> <td colspan="3" style="text-align: center;"> <strong>FRINGE BENEFITS</strong></td> <td style="text-align: center;"> &nbsp;</td> </tr> <tr> <td style="vertical-align: top;"> Repeal of Deduction for Common Executive Perks</td> <td> Eliminate employer deduction for entertainment expenses, membership dues and other common perquisites, unless the individual pays tax on these benefits, effective for expenses incurred after 2017</td> <td style="vertical-align: top;"> More limited changes to current law</td> <td style="vertical-align: top;"> Adopts Senate version.&nbsp; No employer deduction is allowed for expenses paid or incurred after 2017 with respect to (1) an activity generally considered to be entertainment, amusement or recreation, (2) membership dues with respect to any club organized for business, pleasure, recreation or other social purposes, or (3) a facility or portion thereof used in connection with any of the above items.&nbsp; Employers may still generally deduct 50 percent of food and beverage expenses associated with operating their trade or business (e.g., meals consumed by employees on work travel).</td> </tr> <tr> <td style="vertical-align: top;"> Employer-Provided Housing</td> <td> Beginning in 2018, the exclusion for housing under IRC 119 will be limited to $50,000 ($25,000 for a married individual filing a joint return) and will phase out for highly compensated individuals</td> <td style="vertical-align: top;"> No change to current law</td> <td style="vertical-align: top;"> No change to current law</td> </tr> <tr> <td style="vertical-align: top;"> Moving Expenses</td> <td> Eliminate employer deduction for moving expenses incurred after 2017 and the exclusion from income for qualifying moving expense reimbursements made after 2017</td> <td style="vertical-align: top;"> Same, except deduction and exclusion will remain for certain members of the armed forces on active duty (provision sunsets after 2025)</td> <td style="vertical-align: top;"> Adopts Senate version</td> </tr> </tbody> </table> <div> &nbsp;</div> <div> <span style="font-size: 10px;">1. Generally, an excluded employee is (1) the CEO, CFO (or individual acting in either capacity), (2) family member of CEO or CFO, (3) an employee who has been one of the four highest compensated officers for the corporation for any of the 10 preceding taxable years, or (4) a 1% owner of the corporation at any time during the 10 preceding taxable years.</span></div> <div> &nbsp;</div> <div> <span style="font-size: 10px;">2. If deferred, the deferred income is taxed upon the earliest of (1) the first date the qualified stock becomes transferable, including to the employer, (2) the date the employee first becomes an excluded employee, (3) the date the stock becomes readily tradeable on an established securities market, (4) the date five years after the first date the employee&rsquo;s right to the stock becomes transferable or is not subject to a substantial risk of forfeiture, whichever is earlier (the Senate version simply provides the date that is five years after the first date the right to the stock becomes substantially vested), or (5) the date the employee revokes the deferral election.</span></div> </div> <p> &nbsp;</p> <h3> Welfare</h3> <p> &nbsp;</p> <table border="1" cellpadding="1" cellspacing="1" style="width: 600px;"> <tbody> <tr> <td style="width: 100px;"> <strong>ISSUE</strong></td> <td style="width: 250px;"> <strong>HOUSE BILL, AS PASSED</strong></td> <td style="width: 250px;"> <strong>SENATE PROPOSAL</strong></td> <td style="width: 250px;"> <strong>RECONCILED BILL</strong></td> </tr> <tr> <td> Individual Mandate</td> <td> No change to current law</td> <td> Reduces penalty for individual mandate to $0, beginning in 2019</td> <td> Adopts Senate version</td> </tr> <tr> <td> Medical expense deduction (individuals may deduct unreimbursed medical expenses that exceed 10% of AGI)</td> <td> Repeals deduction entirely</td> <td> <div> The medical expense deduction would be retained, but in the following amounts:</div> <ul> <li> 7.5% for 2017 and 2018</li> <li> 10% for subsequent years.</li> </ul> <div> &nbsp;</div> </td> <td> Adopts Senate version</td> </tr> <tr> <td> Archer Medicals Savings Accounts (MSAs)</td> <td> Eliminates deduction for contributions to Archer MSAs but permits rollover to Health Savings Accounts (HSAs)</td> <td> No change to current law</td> <td> No change to current law</td> </tr> <tr> <td> Qualified Transportation Fringe Benefit</td> <td> Eliminates deductions for transportation fringe benefit</td> <td> Eliminates deductions for transportation fringe benefit.</td> <td> Adopts Senate version, effective for amounts paid or incurred after 2017</td> </tr> <tr> <td> Qualified Bicycle Reimbursement</td> <td> No change to current law</td> <td> Repeals qualified bicycle exclusion (provision sunsets after 2025)</td> <td> Adopts Senate version</td> </tr> <tr> <td> Dependent Care Assistance Programs</td> <td> Exclusion repealed beginning in 2023</td> <td> No change to current law</td> <td> No change to current law</td> </tr> <tr> <td> Adoption Assistance Program</td> <td> Exclusion repealed beginning in 2018</td> <td> No change to current law</td> <td> No change to current law</td> </tr> <tr> <td> Educational Assistance</td> <td> Repeals tax exclusion under Code Section 127 (but not under Code Section 132(d)) for certain employer reimbursements of education-related expenses</td> <td> No change to current law</td> <td> No change to current law</td> </tr> </tbody> </table> <p> &nbsp;</p> <h3> Retirement</h3> <p> &nbsp;</p> <table border="1" cellpadding="1" cellspacing="1" style="width: 600px;"> <tbody> <tr> <td style="width: 100px;"> <strong>ISSUE</strong></td> <td style="width: 250px;"> <ul> <li> <strong>HOUSE BILL, AS PASSED</strong></li> </ul> </td> <td style="width: 250px;"> <strong>SENATE PROPOSAL</strong></td> <td style="width: 250px;"> <strong>RECONCILED BILL</strong></td> </tr> <tr> <td> Hardship Withdrawals</td> <td> <ul> <li> Deletes the six month suspension requirement for elective deferrals following a hardship distribution</li> <li> Increases the plan assets from which a participant can take a hardship distribution to include earnings and employer QNEC and QMAC contributions in addition to employee contributions&nbsp;</li> <li> Provides that a participant can take a hardship before requesting a loan from the plan</li> </ul> </td> <td> <ul> <li> No change to current law</li> <li> Same</li> <li> Same</li> </ul> </td> <td> <ul style="font-size: 12px;"> <li> No change to current law</li> <li> No change to current law</li> <li> No change to current law</li> </ul> </td> </tr> <tr> <td> Loans</td> <td> Following a plan termination or separation from service, allows participants to rollover a qualified plan loan offset amount to an eligible retirement plan by the due date (including extensions) of the participant&rsquo;s federal income tax return for the year in which the offset occurs, thereby avoiding taxation on the offset amount</td> <td> Same, except substitutes &ldquo;severance from employment&rdquo; for &ldquo;separation from service&rdquo;</td> <td> Adopts Senate version</td> </tr> <tr> <td> In-Service Distributions</td> <td> Age for in-service distributions from governmental plans lowered to earlier of normal retirement date or age 59 1/2&nbsp;</td> <td> No change to current law</td> <td> No change to current law</td> </tr> <tr> <td> Frozen DB Plans</td> <td> Frozen pension plans allowed to protect grandfathered benefits as long as grandfathered group not modified in a discriminatory manner after plan is closed to new hires</td> <td> No change to current law</td> <td> No change to current law</td> </tr> <tr> <td> Disaster Rlelief</td> <td> No change to current law</td> <td> Provides relief for certain retirement plan (and IRA) distributions taken on or after 1/1/16 and before 1/1/18, by individuals residing in a presidentially declared disaster area who have suffered economic loss by reason of the disaster</td> <td> Adopts Senate version</td> </tr> </tbody> </table> <p> &nbsp;</p> <div> Seyfarth Shaw will continue to monitor Congressional and regulatory efforts and will alert clients as new developments occur.&nbsp;</div> http://www.seyfarth.com:80/publications/TRMA-122117-2 Tax Reform Impact on Employers and Employees http://www.seyfarth.com:80/publications/TRMA-122117-2 Thu, 21 Dec 2017 00:00:00 -0500 <div> <em>This is the fifth issue in a planned series of alerts designed to provide an in-depth analysis on topics related to tax reform.</em></div> <div> &nbsp;</div> <div> On December 15, 2017, Congressional Leaders announced that the conferees appointed by both the House and the Senate reached an agreement to reconcile differences between the House&rsquo;s version of the Tax Cuts and Jobs Act (the &ldquo;House Bill&rdquo;) with the Senate&rsquo;s version of the Tax Cuts and Jobs Act and unveiled the text of a final bill (the &ldquo;Tax Bill&rdquo;).&nbsp; On December 19, 2017, the Senate voted to approve the Tax Bill and, on December 20, 2017, the House voted to approve the Tax Bill.&nbsp; The Tax Bill was sent to the White House for President Trump&rsquo;s signature.&nbsp; We expect that the Tax Bill will be signed into law without further changes.</div> <div> &nbsp;</div> <div> The Tax Bill has many provisions that impact employers with respect to their employees.&nbsp; We have summarized some of the more important provisions below.</div> <div> &nbsp;</div> <div> <strong>Denial of deduction for settlements subject to nondisclosure agreements paid in connection with sexual harassment or sexual abuse:&nbsp; </strong>Under current law (Internal Revenue Code (&ldquo;Code&rdquo;) Section 162(a)), a taxpayer is generally allowed a deduction for ordinary and necessary expenses paid or incurred in carrying on any trade or business.&nbsp; Under the Tax Bill, no deduction is allowed for any settlement, payout, or attorney fees related to sexual harassment or sexual abuse if such payments are subject to a nondisclosure agreement.</div> <div> &nbsp;</div> <div> <strong>Repeal of employee deduction and income exclusion for moving expenses:&nbsp;</strong> Under current law (Code Section 132(a)(6) and (g)), an employee can exclude qualified moving expense reimbursements from gross income.&nbsp; Under current law (Code Section 217), an employee can deduct qualified moving expenses for which the employee is not reimbursed.&nbsp; The Tax Bill suspends the exclusion for qualified moving expense reimbursements for taxable years 2018 through 2025.&nbsp; The Tax Bill also suspends the deduction for qualified moving expenses for taxable years 2018 through 2025.&nbsp; However, during the suspension period, the provision retains the exclusion for qualified moving expense reimbursements, the deduction for qualified moving expenses, and the rules providing for exclusions of amounts attributable to in-kind moving and storage expenses (and reimbursements or allowances for these expenses) for members of the Armed Forces (or their spouse or dependents) on active duty that move pursuant to a military order and incident to a permanent change of station.</div> <div> &nbsp;</div> <div> <strong>Repeal of deduction for business entertainment:</strong>&nbsp; Under current law (Code Section 274(a)(1) and 274(n)(1)(A)), no deduction is allowed with respect to an activity generally considered to be entertainment, amusement, or recreation, unless the taxpayer establishes that the activity was directly related to (or, in certain cases, associated with) the active conduct of the taxpayer&rsquo;s trade or business.&nbsp; If the taxpayer can establish the relationship, then the taxpayer can deduct 50% of the amount otherwise deductible.&nbsp; Similarly, under current law, (1) no deduction is allowed with respect to a facility used in connection with entertainment, amusement, or recreation (Code Section 274(n)(1)(B)), and (2), no deduction is allowed for membership dues with respect to any club organized for business, pleasure, recreation, or other social purpose (Code Section 274(a)(3)).&nbsp; The Tax Bill repeals the present-law exception to the deduction disallowance for entertainment, amusement, or recreation that is directly related to (or, in certain cases, associated with) the active conduct of the taxpayer&rsquo;s trade or business (and the related rule applying a 50% limit to such deductions) and retains the current law rules that deny a deduction with respect to (1) a facility or portion thereof used in connection with entertainment, amusement, or recreation, or (2) membership dues with respect to any club organized for business, pleasure, recreation or other social purposes.</div> <div> &nbsp;</div> <div> <strong>Repeal of deduction for transportation expenses:</strong>&nbsp; Under current law (Code Section 132(f)(1) and (5)), an employee can exclude qualified transportation fringes (including qualified parking (parking on or near the employer&rsquo;s business premises or on or near a location from which the employee commutes to work by public transit), transit passes, vanpool benefits, and qualified bicycle commuting reimbursements) from income.&nbsp; The Tax Bill disallows a deduction for expenses associated with providing any qualified transportation fringe to employees, and except as necessary for ensuring the safety of an employee, any expense incurred for providing transportation (or any payment or reimbursement) for an employee&rsquo;s commuting between his or her residence and place of employment.</div> <div> &nbsp;</div> <div> <strong>Modification and later repeal of the employee income exclusion for food and beverage provided at an employer eating facility:&nbsp; </strong>Under current law (Code Section 119(a)), an employee or an employee&rsquo;s spouse or dependents can exclude the value of meals furnished to them by or on behalf of the employer if the meals are furnished for the convenience of the employer and are provided on the employer&rsquo;s business premises.&nbsp; For amounts incurred and paid after December 31, 2017 and until December 31, 2025, the Tax Bill expands the 50% limitation to employer expenses associated with providing food and beverages to employees through an eating facility that meets requirements for <em>de minimis</em> fringes and for the convenience of the employer.&nbsp; Such amounts incurred and paid after December 31, 2025 are not deductible.&nbsp; An employer may still generally deduct 50% of the food and beverage expenses associated with operating its trade or business, such as amounts paid for an employee&rsquo;s meals while traveling for business.</div> <div> &nbsp;</div> <div> <strong>Limitation on the deduction for employee achievement awards:</strong>&nbsp; Under current law (Code Section 274(j)), an employer may deduct a certain amount of the costs associated with providing an employee achievement award that is tangible personal property.&nbsp; The Tax Bill adds a definition of &ldquo;tangible personal property.&rdquo;&nbsp; The provision provides that &ldquo;tangible personal property&rdquo; does not include cash, cash equivalents, gift cards, gift coupons or gift certificates (other than arrangements conferring only the right to select and receive tangible personal property from a limited array of such items pre-approved by the employer), or vacations, meals, lodging, tickets to theater or sporting events, stocks, bonds, other securities, and other similar items.</div> <div> &nbsp;</div> <div> <strong>Repeal of certain miscellaneous itemized deductions subject to the 2% floor:</strong>&nbsp; Under current law, employees may claim itemized deductions for certain miscellaneous expenses.&nbsp; Certain of these expenses are not deductible unless, in aggregate, they exceed 2% of the employee&rsquo;s adjusted gross income.&nbsp; The Tax Bill suspends all miscellaneous itemized deductions that are subject to the 2% floor under present law.&nbsp; This includes the following deductions that an employee had been permitted to deduct under current law:&nbsp; (1) casualty and theft losses from property used in performing services as an employee, (2) business bad debt of an employee, (3) business liability insurance premiums, (4) damages paid to a former employer for breach of an employment contract, (5) depreciation on a computer a employee&rsquo;s employer requires him or her to use in his or her work, (6) dues to a chamber of commerce if membership helps the employee perform his or her job, (7) dues to professional societies, (8) educator expenses, (9) home office or part of a employee&rsquo;s home used regularly and exclusively in his or her work, (10) job search expenses in the employee&rsquo;s present occupation, (11) legal fees related to the employee&rsquo;s job, (12) licenses and regulatory fees, (13) malpractice insurance premiums, (14) medical examinations required by an employer, (15) occupational taxes, (16) passport fees for a business trip, (17) research expenses of a college professor, (18) subscriptions to professional journals and trade magazines related to the employee&rsquo;s work, (19) tools and supplies used in the employee&rsquo;s work, (20) costs for travel, transportation, meals, entertainment, gifts, and local lodging related to the employee&rsquo;s work, (21) union dues and expenses, (22) work clothes and uniforms if required and not suitable for everyday use; and (23) work-related education.&nbsp; Thus, under the provision, employees may not claim the above-listed items as itemized deductions for taxable years 2018 through 2025.</div> <div> &nbsp;</div> <div> <strong>Modification of limitation on excessive employee remuneration:</strong>&nbsp; Under current law, an employer generally may deduct reasonable compensation for personal services as an ordinary and necessary business expense. Code Section 162(m) limits the deductibility of compensation expenses in the case of publicly traded corporate employers.&nbsp; The otherwise allowable deduction for compensation with respect to a covered employee of a publicly held corporation is limited to no more than $1 million per year.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Tax Bill makes several modifications to the Code Section 162(m) limitation on the deductibility of compensation expenses (in excess of $1 million) for &ldquo;covered employee&rdquo; of publicly traded corporate employers.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> First, the provision makes several revisions to the definition of covered employee:&nbsp; (1) the definition under the Tax Bill includes both the principal executive officer and the principal financial officer, (2) the definition applies to individuals who hold one of those positions at any time during the taxable year, (3) the definition also includes the three (rather than four) most highly compensated officers for the taxable year (other than the principal executive officer or principal financial officer) who are required to be reported on the company&rsquo;s statement required pursuant to executive compensation disclosure rules promulgated under the Exchange Act (the proxy statement) for the taxable year (or who would be required to be reported on such a statement for a company not required to make such a report to shareholders).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Second, the provision states that if an individual is a covered employee on December 31, 2016, the individual will continue to be a covered employee for all subsequent years and his or her compensation will continue to be subject to the Code Section 162(m) limitation even after (1) he or she is no longer employed by the company or (2) he or she dies.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Third, the provision extends the definition of &ldquo;publicly held corporation&rdquo; to include all domestic publicly traded corporations and all foreign companies publicly traded through American depository receipts. The proposed definition may include certain additional corporations that are not publicly traded, such as large private C or S corporations.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Fourth, the provision eliminates the exceptions for commissions and performance-based compensation from the definition of compensation subject to the deduction limit. As a result, such compensation is taken into account in determining whether the amount of a covered employee&rsquo;s compensation for a taxable year exceeds $1 million and is therefore not deductible under Code Section 162.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Finally, the provision adds a transition rule for compensation that is provided pursuant to a written binding contract which was in effect on November 2, 2017.&nbsp; Under the transition rule, compensation provided pursuant to a contract that qualifies for the rule will not be subject to the changes made by the Tax Bill.&nbsp; The transition rule does not apply once (1) there is a material modification to the terms of the contract, (2) the contract is renewed, or (3) the contract becomes terminable or cancelable unconditionally at will by either party to the contract without the consent of the other or by both parties.</div> <div> &nbsp;</div> <div> <strong>Observations</strong></div> <div> &nbsp;</div> <div> Overall, the Tax Bill may have a detrimental impact on employees because it does away with several tax-free fringe benefits that employers currently provide to their employees.&nbsp; However, it is worth noting that several other tax-free fringe benefits that would have been eliminated under the House Bill were not eliminated under the Tax Bill.&nbsp; Most notably, the (1) deduction for qualified tuition and related expenses, (2) exclusion for qualified tuition reductions, (3) exclusion for educational assistance programs, (4) exclusion for employer-provided housing, and (5) exclusion for adoption assistance programs all survived the Tax Bill.&nbsp; Perhaps the most interesting change made in the Tax Bill is the repeal of the deduction for sexual harassment or sexual abuse settlements subject to nondisclosure agreements.&nbsp; This repeal appears to be a punitive response to the use of nondisclosure agreements, perhaps triggered by the recent increase in sexual harassment and sexual abuse claims and lawsuits against high-profile individuals.&nbsp; This new provision may impact the way that the parties to a sexual harassment or sexual abuse suit negotiate during the settlement process, but is unlikely to significantly deter the use of nondisclosure agreements.</div> <div> &nbsp;</div> <div> Seyfarth Shaw will continue to monitor Congressional and regulatory efforts and will provide further alerts as new developments occur.</div> http://www.seyfarth.com:80/publications/TBT122117 The Week in Weed: December 22, 2017 http://www.seyfarth.com:80/publications/TBT122117 Thu, 21 Dec 2017 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/12/the-week-in-weed-december-22-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/alb122117 Darren Gardner and Julia Gorham featured in Asian Legal Business http://www.seyfarth.com:80/news/alb122117 Thu, 21 Dec 2017 00:00:00 -0500 <p> Darren Gardner and Julia Gorham were featured in a December 21 story from Asian Legal Business, &quot;Seyfarth Shaw launches in HK: &lsquo;There are very few employment specialists in the market&rsquo;.&quot; Gardner and Gorham talk about how Seyfarth plans to compete for employment law work in Hong Kong. You can read the <a href="http://www.legalbusinessonline.com/news/alb-insights-seyfarth-shaw-launches-hk-%E2%80%98there-are-very-few-employment-specialists-market%E2%80%99/75217">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanbna122117 Gerald Maatman quoted in Bloomberg BNA http://www.seyfarth.com:80/news/maatmanbna122117 Thu, 21 Dec 2017 00:00:00 -0500 <p> Gerlad Maatman was quoted in a December 21 story from Bloomberg BNA, &quot;Outlook 2018: The Top Five Workplace Issues to Watch,&quot; on sexual harassment issues in 2018. Maatman said that there is a cause and effect between the sexual harassment public scandals and public dialogue, and workplace lawsuits filed.</p> http://www.seyfarth.com:80/news/netherybloomberglaw122117 Allegra Nethery quote in Bloomberg Law http://www.seyfarth.com:80/news/netherybloomberglaw122117 Thu, 21 Dec 2017 00:00:00 -0500 <p> Allegra Nethery was quoted in a December 21 story from Bloomberg Law, &quot;Pro Bono Group Poised to Take on Greater Role,&quot; on her election to President of the Association of Pro Bono Counsel. Nethery will assume leadership Jan. 1, on the heels of two years of tremendous growth for the organization, she said.</p> http://www.seyfarth.com:80/publications/OMM122017-LIT Delaware Supreme Court Reverses Controversial Dell Appraisal Ruling http://www.seyfarth.com:80/publications/OMM122017-LIT Wed, 20 Dec 2017 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:&nbsp;</strong> The Delaware Supreme Court issued its much-anticipated unanimous <a href="https://courts.delaware.gov/Opinions/Download.aspx?id=266610">decision </a>last Thursday in the &ldquo;long-running appraisal saga&rdquo; that took place following the 2013 management-led buyout of Dell.&nbsp; In reversing the lower court&rsquo;s ruling that had awarded stockholder petitioners a 28 percent premium over the deal price, the Court emphasized that the Vice Chancellor erred in relying exclusively on the Chancery Court&rsquo;s own discounted cash flow analysis to reach a fair value calculation, where, as here, the decision to give no weight to either the stock price or the deal price was not supported by the court&rsquo;s key factual findings or by relevant, accepted financial principles.&nbsp; The Supreme Court suggested that the Chancery Court on remand should instead give &ldquo;heavy weight&rdquo; to the deal price due to the compelling &ldquo;evidence of market efficiency, fair play, low barriers to entry, outreach to all logical buyers, and the chance for any topping bidder to have the support of Mr. Dell&rsquo;s own votes.&rdquo;&nbsp;&nbsp;</em></div> <div> &nbsp;</div> <div> <strong>Background</strong></div> <div> &nbsp;</div> <div> Dell, a computer technology company, announced on February 5, 2013 that the Company&rsquo;s founder and CEO Michael Dell and affiliates of a private equity firm, Silver Lake Partners, would take the company private.&nbsp; In March 2013, the Blackstone Group and Carl Icahn offered to buy the Company.&nbsp; In April 2013, the Blackstone Group withdrew from bidding due to an unprecedented 14 percent market decline in PC volume in the first quarter of 2013 and the eroding financial profile of the Company.&nbsp; Two months later, Mr. Icahn disclosed that he and affiliates had purchased 72 million Company shares and that he planned to nominate his own slate of directors who would launch a self-tender for 1.1 billion shares.&nbsp; Mr. Dell and Silver Lake Partners increased their proposal and closed the acquisition.&nbsp; Holders of over 38 million Company shares exercised their appraisal rights.</div> <div> &nbsp;</div> <div> In the lower court&rsquo;s appraisal decision, it acknowledged that the deal price is &ldquo;one form of market price data, which Delaware courts have long considered in appraisal proceedings[,]&rdquo; but the court concluded that several purported flaws in Dell&rsquo;s sale process meant that the deal price should not be afforded any weight and therefore disregarded Dell&rsquo;s deal price and pre-transactional stock price entirely.</div> <div> &nbsp;</div> <div> The Company argued on appeal, <em>inter alia</em>, that the lower court committed legal error in failing to assign any weight to the deal price because (1) there is no requirement under Delaware law that the deal price be the &ldquo;best&rdquo; evidence of fair value in order for it to be given any weight; (2) there is no requirement that the Court of Chancery disregard the deal price entirely if it cannot unequivocally quantify the precise amount of sale process mispricing; and (3) the Court of Chancery also erred in creating what seems akin to a bright-line rule that the deal prices in management-led buyout transactions are distorted and should be disregarded.</div> <div> &nbsp;</div> <div> In reversing and remanding the Chancery Court&rsquo;s decision, the Delaware Supreme Court acknowledged that due to &ldquo;the human element in the appraisal inquiry&rdquo; &ldquo;[t]here may be no perfect methodology for arriving at fair value for a given set of facts[.]&rdquo;&nbsp; Nonetheless, a lower court&rsquo;s conclusions as to fair value will only be upheld &ldquo;if they follow logically from those facts and are grounded in relevant, accepted financial principles.&rdquo;&nbsp; The Delaware Supreme Court found that neither of those guideposts were met here.&nbsp; The record itself suggested that &ldquo;the deal price deserved heavy, if not dispositive, weight.&rdquo;&nbsp; The Court of Chancery lacked a valid basis for finding a &ldquo;valuation gap&rdquo; between Dell&rsquo;s market and fundamental values because the record showed that analysts had scrutinized Dell&rsquo;s long-range outlook in evaluating the Company and that the market was capable of accounting for Dell&rsquo;s recent M&amp;A activity and its prospects in valuing the Company.&nbsp; Likewise, the court&rsquo;s complete discounting of the deal price due to the buyer&rsquo;s status as a private equity firm rather than a strategic buyer was error.&nbsp; As the Court found in its recent decision in <em>DFC Global Corp. v. Muirfield Value Partners,</em> -- A.3d --, 2017 WL 3261190 (Del. Aug. 1, 2017), the notion of a &ldquo;private equity carve out&rdquo; stands &ldquo;on especially shaky footing where other objective indicia suggested the deal price was a fair price.&rdquo;&nbsp; Nothing in the record suggested that increased competition would have produced a better result than the special committee reached in persuading Silver Lake Partners to raise its bid six times.&nbsp; While the Court of Chancery felt that more bidders should have been involved in the sale process, the Delaware Supreme Court stated that assessment ignored the important reality that &ldquo;if a company is one that no strategic buyer is interested in buying, it does not suggest a higher value, but a lower one.&rdquo;&nbsp; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <strong>Takeaways</strong></div> <div> &nbsp;</div> <div> 1. <u>Reaffirmation that when certain conditions are met the deal price will be deemed strong evidence of fair value.</u>&nbsp; The Delaware Supreme Court held that where a Company is sold as the result of a robust sale process, the Court of Chancery must give the deal price &ldquo;heavy weight&rdquo; in its ruling.&nbsp; The Court reiterated that it will reject the lower court&rsquo;s methodology for determining fair value if it has not adequately justified its methodology based on the record before it and relevant, accepted financial principles.&nbsp; The Court also noted that the Court of Chancery in its own opinion suggested that the deal price deserved weight by characterizing the sale process as one that &ldquo;easily would sail through if reviewed under enhanced scrutiny&rdquo; and observing that &ldquo;[t]he Committee and its advisor did many praiseworthy things&rdquo; that were too numerous to catalog in its opinion.&nbsp;</div> <div> &nbsp;</div> <div> 2. <u>Outlined pitfalls in Court of Chancery&rsquo;s reliance on its own DCF analysis.</u>&nbsp; The Delaware Supreme Court expressed concern with the Court of Chancery&rsquo;s decision to give no weight to Dell&rsquo;s stock price or the deal price and instead to arrive at its own value of nearly $7 billion above the transaction price.&nbsp; The Court took the lower court to task for settling on a DCF value that &ldquo;did not reflect a value deemed attractive to the buyers of Dell&rsquo;s [] publicly traded shares&rdquo; and &ldquo;did not reflect the value that private equity buyers (including the biggest players such as KKR, TPG, and Blackstone) put on it, as it was too high for any of them to pay.&rdquo;&nbsp; The Court went on to note that &ldquo;[w]hen an asset has few, or <em>no</em>, buyers at the price selected, that is not a sign that the asset is stronger than believed&mdash;it is a sign that it is weaker.&nbsp; This fact should give pause to law-trained judges who might attempt to outguess all of these interested economic players with an actual stake in a company&rsquo;s future.&rdquo;</div> <div> &nbsp;</div> <div> 3.&nbsp; <u>Rejection of expert testimony claiming that management-led buyouts suffer from structural problems that diminish reliability of deal price.</u>&nbsp; The Court of Chancery focused on three problems purportedly present in all management-led buyouts in finding the deal price was not evidence of fair value: (a) structural issues; (b) the &ldquo;winner&rsquo;s curse&rdquo;; and (c) management&rsquo;s perceived value to the company.&nbsp; The Delaware Supreme Court held that &ldquo;none of these theoretical characteristics detracts from the reliability of the deal price on the facts presented here.&rdquo;&nbsp; The main &ldquo;structural problem&rdquo; identified did not result from the sale process itself, but from the inherent size and complexity of the Company.&nbsp; The threat of a &ldquo;winner&rsquo;s curse,&rdquo; <em>i.e.</em>, the phenomenon of a buyer likely overpaying for a company in outbidding incumbent management, who presumably would have paid more if a company were really worth it, can be mitigated, as the Court found was done here, through the provision of extensive due diligence to prospective buyers.&nbsp; The Court determined that &ldquo;[t]he more likely explanation for the lack of a higher bid is that the deal market was already robust and that a topping bid involved a serious risk of overpayment.&rdquo;&nbsp; The Delaware Supreme Court likewise rejected the lower court&rsquo;s presumption that Mr. Dell&rsquo;s value to the Company imposed another impediment to the likelihood of rival bidders succeeding.&nbsp; The record instead showed that, <em>inter alia</em>, Blackstone and Mr. Icahn did not regard Mr. Dell as essential to their bids, and there was no indication that Mr. Dell would have stopped serving the Company if another reputable buyer had prevailed.</div> <div> &nbsp;</div> <div> For a copy of the opinion, click <a href="https://courts.delaware.gov/Opinions/Download.aspx?id=266610">here</a>.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/CP122017 The Stale Harassment Complaint: Coal In Your Stocking? http://www.seyfarth.com:80/publications/CP122017 Wed, 20 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The natural inclination is to ignore attempts to dredge up claims of harassment that happened long ago. But no harassment claim is too old to investigate. Having strong anti-harassment policies and investigation procedures, along with a good work culture, can help employers avoid getting caught in the cross-fire of the &ldquo;me-too&rdquo; harassment dialogue.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/12/20/the-stale-harassment-complaint-a-coal-in-your-stocking/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR122017 GC Memorandum 18-02 “Remedies” – Board’s Approach to Remedies http://www.seyfarth.com:80/publications/LR122017 Wed, 20 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here &amp; here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/20/gc-memorandum-18-02-remedies-boards-approach-to-remedies/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE121917 OSHA Accepting 2016 Electronically Submitted Injury, Illness Reports through December 31 AND Intends to Significantly Revise the Rule http://www.seyfarth.com:80/publications/WSE121917 Tue, 19 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: OSHA&rsquo;s has indicated in a news release that it &ldquo;will continue accepting 2016 OSHA Form 300A data through the Injury Tracking Application (ITA) until midnight on December 31, 2017.&rdquo;<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/osha-accepting-2016-electronically-submitted-injury-illness-reports-through-december-31-and-intends-to-significantly-revise-the-rule/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TRMA121917 Tax Reform for REITs and Real Estate Businesses http://www.seyfarth.com:80/publications/TRMA121917 Tue, 19 Dec 2017 00:00:00 -0500 <div> <div> <em>This is the third issue in a planned series of alerts designed to provide an in-depth analysis on topics related to tax reform.</em></div> <div> &nbsp;</div> </div> <div> <strong>Background</strong></div> <div> &nbsp;</div> <div> On November 2, 2017, House Republicans introduced the Tax Cuts and Jobs Act (the &ldquo;House Bill&rdquo;).&nbsp; On November 9, 2017, the Senate introduced its own version of the Tax Cuts and Jobs Act (the &ldquo;Senate Bill&rdquo;).&nbsp; On November 16, 2017, the House passed the House Bill and, on December 2, 2017, the Senate passed the Senate Bill.&nbsp; The House and the Senate both appointed conferees to reconcile differences between the two bills and arrive at a final bill.&nbsp; On December 15, 2017, Congressional Leaders announced that the conferees reached an agreement and unveiled the text of a final bill (the &ldquo;Tax Bill&rdquo;).&nbsp; We expect that the Tax Bill will be signed into law this week without further changes.</div> <div> &nbsp;</div> <div> <strong>Most Important Provisions for REITs and Real Estate Businesses</strong></div> <div> &nbsp;</div> <div> The Tax Bill has many provisions that will impact real estate investment trusts (&ldquo;REITs&rdquo;) and real estate businesses.&nbsp; We have summarized the most important provisions below.</div> <div> &nbsp;</div> <div> <strong>Pass-through business deduction:&nbsp;</strong> The Tax Bill creates a new 20% tax deduction for pass-through businesses.&nbsp; For taxpayers with incomes above certain thresholds, the 20% deduction is limited to the greater of:&nbsp; (1) 50% of the W-2 wages paid by the business, or (2) 25% of the W-2 wages paid by the business, plus 2.5% of the unadjusted basis, immediately after acquisition, of depreciable property (which includes structures, but not land).&nbsp; However, REIT dividends are not subject to this wage restriction.</div> <div> &nbsp;</div> <div> <strong>Business interest deduction:&nbsp;</strong> For most taxpayers, the Tax Bill disallows the deductibility of business interest to the extent that net interest expense exceeds 30% of EBITDA (2018 through 2022) or EBIT (beginning in 2022).&nbsp; However, a real property trade or business can elect out of the new business interest disallowance regime.&nbsp; The real estate exception extends to (1) the activities of corporations and REITs, and (2) the operation or management of a hotel.&nbsp; This provisions applies to existing debt and applies at the entity level.</div> <div> &nbsp;</div> <div> <strong>Cost recovery:</strong>&nbsp; For certain taxpayers, the Tax Bill permits businesses an immediate write-off of the full cost of new equipment.&nbsp; However, taxpayers that elect to use the business interest real estate exception will see little change to current law cost recovery rules.&nbsp; Such taxpayers must depreciate real property under slightly longer recovery periods:&nbsp; 40 years for nonresidential property, 30 years for residential rental property, and 20 years for qualified interior improvements.&nbsp; &nbsp;However, such taxpayers will be permitted to fully expense land improvements and tangible, personal property used in their real property trade or business from 2018 to 2023.</div> <div> &nbsp;</div> <div> <strong>Section 179 expensing:</strong>&nbsp; The Tax Bill increases the maximum amount that a taxpayer may expense under Code Section 179 to $1,000,000, and increases the phase-out threshold amount to $2,500,000.&nbsp; The provision also expands the definition of Code Section 179 property to include:&nbsp; (1) certain depreciable tangible personal property used predominantly to furnish lodging or in connection with furnishing lodging, and (2) any of the following improvements to nonresidential real property placed in service after the date the real property was first placed in service: roofs; heating, ventilation, and air-conditioning property; fire protection and alarm systems; and security systems.</div> <div> &nbsp;</div> <div> <strong>Like-kind exchanges:&nbsp; </strong>The Tax Bill permits taxpayers to continue to defer gain on real estate like-kind exchanges.&nbsp; Improved real estate and unimproved real estate will continue to be considered property of a like kind.&nbsp; However, the Tax Bill does repeal the deferral of gain for other types of like-kind exchanges.</div> <div> &nbsp;</div> <div> <strong>Active loss limitation:</strong>&nbsp; The Tax Bill prohibits taxpayers from deducting losses incurred in an active trade or business from their wage income or portfolio income (i.e. interest and dividends).&nbsp; The provision applies to existing investments.</div> <div> &nbsp;</div> <div> <strong>Carried interest:</strong>&nbsp; The Tax Bill requires holders of a carried interest in certain types of partnerships, including hedge funds, private equity funds, and real estate, to hold the interest for 3 years in order to receive long-term capital gain treatment.&nbsp; The 3-year holding period applies the partnership interest and to the assets held by the partnership.</div> <div> &nbsp;</div> <div> <strong>Sales of partnership interests by foreign partners:&nbsp; </strong>The Tax Bill added a provision that treats gain or loss from the sale of a partnership interest by a foreign partner as effectively connected income (&ldquo;ECI&rdquo;) that is taxable in the U.S. if the gain or loss from the sale of the underlying assets held by the partnership would be treated as ECI. The provision also requires the purchaser of a partnership interest from a partner to withhold 10% of the amount realized on the sale or exchange of the partnership interest unless the transferor certifies that the transferor is not a nonresident alien individual or a foreign corporation.&nbsp; This provision statutorily reverses the Tax Court&rsquo;s recent decision in <em>Grecian Magnesite Mining, Industrial &amp; Shipping Co., SA vs. Commissioner, </em>149 T.C. No. 3 (Jul. 13, 2017) and returns to a rule similar to Revenue Ruling 91-32 (1991-1 C.B. 107).</div> <div> &nbsp;</div> <div> <strong>Other Relevant Provisions for REITs and Real Estate Businesses</strong></div> <div> &nbsp;</div> <div> We have also summarized some of the other relevant provisions below.</div> <div> &nbsp;</div> <div> <strong>State and local tax deduction:</strong>&nbsp; The Tax Bill continues to permit pass-through entities the ability to deduct state and local taxes paid or accrued in carrying on a trade or business or in an activity related to the production of income.</div> <div> &nbsp;</div> <div> <strong>Historic preservation and rehabilitation tax credits:&nbsp;</strong> The Tax Bill preserves the 20% tax credit for the rehabilitation of historically certified structures, but now requires that taxpayers claim the credit ratably over a 5-year period.&nbsp; The Tax Bill repeals the 10% credit for the rehabilitation of pre-1936 structures.</div> <div> &nbsp;</div> <div> <strong>Low-income housing tax credit:&nbsp;</strong> The Tax Bill retains the low-income housing tax credit without changes.</div> <div> &nbsp;</div> <div> <strong>Partnership technical terminations:&nbsp;</strong> The Tax Bill repeals the rule that caused a technical partnership termination when 50% or more of the interests in the capital and profits of a partnership were sold or exchanged within a 12-month period.</div> <div> &nbsp;</div> <div> <strong>Observations</strong></div> <div> &nbsp;</div> <div> Overall, the Tax Bill is benign to even favorable for REITs and real estate businesses.&nbsp; This contrasts starkly with the impact of the landmark Tax Reform Act of 1986, which implemented, among other things, the passive activity loss deduction limitations.&nbsp; The Tax Bill appears to increase incentives for investors to invest in real estate:&nbsp; REIT shareholders and real estate partnerships will enjoy the benefit of the new 20% deduction for pass-through businesses, REITs and real estate businesses can continue to deduct business interest, and like-kind exchanges are preserved.&nbsp; As a trade-off, REITs and real estate businesses will not be able to enjoy the full benefit of the new full and immediate expensing provision.&nbsp; Nonetheless, the Tax Bill should act as a catalyst for investment in REITs and real estate businesses.</div> <div> &nbsp;</div> <div> Seyfarth will continue to monitor Congressional and regulatory efforts and will provide further alerts as new developments occur.</div> http://www.seyfarth.com:80/publications/MA121917-LE The Board’s Return To Civility and Common Sense Regarding Workplace Rules http://www.seyfarth.com:80/publications/MA121917-LE Tue, 19 Dec 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>: In a decision issued late last week, The Boeing Company, 365 NLRB No. 154 (Boeing), the newly constituted &ldquo;Trump&rdquo; National Labor Relations Board (&ldquo;Board&rdquo;) announced that employers could once again maintain common sense rules regarding employee conduct at the workplace.</em></p> <p> Of all the decisions issued in recent years by the previous Board, none were more baffling than those regarding an employer&rsquo;s required standards of employee conduct contained in employee handbooks. These decisions were premised on a 13-year old decision in &nbsp;<em>Lutheran Heritage Village-Livonia&nbsp;</em>(<em>Lutheran Heritage</em>) which held that, in addition to an employer&rsquo;s policy being found &nbsp;unlawful if it explicitly restricted protected, concerted activities under Section 7 of the National Labor Relations Act, a policy would also be found unlawful if :</p> <p style="margin-left: 40px;"> (1) employees would reasonably construe the language to prohibit Section 7 activity,</p> <p style="margin-left: 40px;"> (2) the rule was promulgated in response to union activity, or</p> <p style="margin-left: 40px;"> (3) the rule has been applied to restrict the exercise of Section 7 rights</p> <p> The Obama Board used the first test (how would employees &ldquo;reasonably construe&rdquo; the language of a policy) to invalidate numerous common sense policies, such as requiring employees not to engage in conduct that impedes &ldquo;harmonious interactions or relationship&rdquo; or prohibiting &ldquo;abusive or threatening language to anyone on company premises.&rdquo; The Board found these and other policies to be illegal without taking into account an employer&rsquo;s legitimate justifications or the &ldquo;real-world complexities&rdquo; in a workplace.</p> <p> To further complicate matters, the Obama Board sometimes found policies with the same objective (civility in the workplace) to be lawful. The byzantine nature of these decisions made it nearly impossible for an employer to maintain policies regarding employee conduct with any assurance that the Board would find the policies to be lawful.</p> <p> In the <em>Boeing </em>decision, the Board majority (Chairman Miscimarra, and Members Emanuel and Kaplan), over a strong dissent (Members Pearce and McFerran), thankfully overruled the &nbsp;<em>Lutheran Heritage </em>&nbsp;&ldquo;reasonably construe&rdquo; standard and established a new test for evaluating whether a facially neutral policy, rule, or handbook provision, when reasonably interpreted, would interfere with employee Section 7 rights. Specifically, the Board in evaluating a policy will seek to strike a proper balance between (1) the nature and extent of the potential impact of the policy on employee Section 7 rights and (2) the employer&rsquo;s legitimate justifications associated with the rule.</p> <p> To provide greater clarity to all parties, the Board&rsquo;s majority announced that, in the future, it will analyze the legality of workplace policies based on three categories:</p> <ul> <li> <strong>Category 1</strong> will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights, and thus no balancing of employee rights versus employer justification is warranted; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.</li> <li> <strong>Category 2</strong>&nbsp;will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.</li> <li> <strong>Category 3</strong>&nbsp;will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. The Board gave as an example under Category 3 a policy prohibiting employees from discussing wages or other working conditions.</li> </ul> <p> The Board specifically highlighted as examples of policies that would be legal under Category 1, including policies requiring employees to foster &ldquo;harmonious interactions and relationships&rdquo; or &ldquo;rules requiring employees to abide by basic standards of civility,&rdquo; and overruled previous cases that held to the contrary.</p> <p> To be sure, there will be some confusion and issues to be addressed as the newly-announced categories are applied to employee handbook policies, but what <strong><em>is</em></strong> certain is that employers can once again lawfully require that employees maintain a reasonable level of civility in the workplace.</p> http://www.seyfarth.com:80/publications/OMM121917-LE DHS Releases Regulatory Agenda for 2018 - Major Changes Possible for H-1B, H-4, and F-1 Visa Holders http://www.seyfarth.com:80/publications/OMM121917-LE Tue, 19 Dec 2017 00:00:00 -0500 <p class="BodySingle"> <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 class="BodySingle"> <em><strong>Seyfarth Synopsis:</strong> The Department of Homeland Security (DHS) published its regulatory plan for 2018, which aligns with President Trump&rsquo;s Executive Order, Buy American Hire American.</em><o:p></o:p></p> <p class="BodySingle"> Although the specifics of each proposed rule will remain confidential until published in the Federal Register, the Regulatory Agenda does provide insight on what is likely ahead. Changes to the existing visa programs will be accomplished through a notice and comment period, and will not become effective immediately. <o:p></o:p></p> <p class="BodySingle"> <b>H-1B Cap Lottery Pre-Registration and Selection</b><o:p></o:p></p> <p class="BodySingle"> DHS will propose a rule that would require all H-1B petitioners to pre-register for the H-1B lottery. Only those petitioners that have been selected in the lottery could then submit H-1B petitions for that fiscal year.<o:p></o:p></p> <p class="BodySingle"> As introduced in the <i>Buy American Hire American</i> Executive Order, DHS is also expected to propose a priority system for the allocation of H-1B visa numbers. Priority would be given to the beneficiaries that DHS deems to be the most highly skilled and also the highest paid. (Potential Publication Date: February 2018)<o:p></o:p></p> <p class="BodySingle"> <b>H-1B Eligibility <o:p></o:p></b></p> <p class="BodySingle"> The proposed rule would revise the definition of &ldquo;employer-employee relationship&rdquo; and add new requirements designed to ensure that employers pay appropriate wages to H-1B workers. In addition, the rule is expected to raise the standard on what constitutes a specialty occupation with the stated goal to &ldquo;increase the focus on truly obtaining the best and brightest.&rdquo; (Potential Publication Date: October 2018)<o:p></o:p></p> <p class="BodySingle"> <b>Termination of H-4 Work Authorization<o:p></o:p></b></p> <p class="BodySingle"> DHS will propose the elimination of the February&nbsp; 2015 regulation permitting certain H-4 spouses to apply for employment authorization. (Potential Publication Date: February 2018)<o:p></o:p></p> <p class="BodySingle"> <b>Revisions to Practical Training for Foreign Students<o:p></o:p></b></p> <p class="BodySingle"> Immigration and Customs Enforcement (ICE) may issue a proposed rule to reform the practical training programs for foreign students. Revisions will likely include additional employer obligations and possibly a rescission or limitation of the Obama Administration&rsquo;s extension of STEM Optional Practical Training from 17 to 24 months. (Potential Publication Date: October 2018)<o:p></o:p></p> <p class="BodySingle"> <b>Summary</b></p> <p class="BodySingle"> DHS&rsquo;s Regulatory Agenda for 2018 contains many changes that could greatly affect employers&rsquo; business immigration programs as they pertain to individuals in H-1B, H-4 and F-1 status. Although some of these proposed rules could be introduced as early as February 2018, the rules must first go through a notice and comment period followed by a formal approval process that will take many months to pass. Seyfarth Shaw LLP will closely monitor these developments.<o:p></o:p></p> http://www.seyfarth.com:80/publications/LR121917 The Board’s Return to Civility and Common Sense Regarding Workplace Rules http://www.seyfarth.com:80/publications/LR121917 Tue, 19 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In a decision issued late last week, The Boeing Company, 365 NLRB No. 154 (Boeing), the newly constituted &ldquo;Trump&rdquo; National Labor Relations Board (&ldquo;Board&rdquo;) announced that employers could once again maintain common sense rules regarding employee conduct at the workplace.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/19/the-boards-return-to-civility-and-common-sense-regarding-workplace-rules/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL121917 Breakfast Briefing: Year In Review and Crystal Ball Predictions for 2018 http://www.seyfarth.com:80/publications/EL121917 Tue, 19 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Last week, members of the Chicago L&amp;E Team hosted the Fourth Quarter Breakfast Briefing to a packed room. This Briefing looked at four key governmental agencies/trends (OSHA, OFCCP and equal pay, EEOC, and NLRB) to review key highlights from 2017 and how 2018 was shaping up.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/12/breakfast-briefing-year-in-review-and-crystal-ball-predictions-for-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM121917 DHS Releases Regulatory Agenda for 2018 – Major Changes Possible for H-1B, H-4, and F-1 Visa Holders http://www.seyfarth.com:80/publications/IMM121917 Tue, 19 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Department of Homeland Security (DHS) published its regulatory plan for 2018, which aligns with President Trump&rsquo;s Executive Order, Buy American Hire American.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2017/12/dhs-releases-regulatory-agenda-for-2018-major-changes-possible-for-h-1b-h-4-and-f-1-visa-holders/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/schwartzfenwickbi121917 Sam Schwartz-Fenwick quoted in Business Insurance http://www.seyfarth.com:80/news/schwartzfenwickbi121917 Tue, 19 Dec 2017 00:00:00 -0500 <p> Sam Schwartz-Fenwick was quoted in a December 19 story from Business Insurance, &quot;Supreme Court kicks matter of sexual orientation bias down the road,&quot; on how the U.S. Supreme Court last week refused to consider an appellate court ruling on the issue of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation. Schwartz-Fenwick said he thinks they want the issue to play out more in the courts of appeal and that there&rsquo;s a concern with the Supreme Court wading into the scope of Title VII, that they very much don&rsquo;t want to be setting the standard. He says they want to see more of what other courts are doing before they weigh in. You can read the <a href="http://www.businessinsurance.com/article/20171219/NEWS06/912317999/US-Supreme-Court-kicks-declines-sexual-orientation-bias-case">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarcnnmoney121817 Seyfarth Shaw's 2017 Workplace Class Action Report referenced in CNN Money http://www.seyfarth.com:80/news/wcarcnnmoney121817 Mon, 18 Dec 2017 00:00:00 -0500 <p> Seyfarth Shaw&#39;s 2017 Workplace Class Action Report was referenced in a December 18 story from CNN Money. The value of just the top 10 wage and hour settlements, as compiled by Seyfarth in the report, tripled between 2014 and 2016, to $695 million. Seyfarth&#39;s Gerald Maatman said that prosecution of wage and hour lawsuits is a relatively low cost investment, without significant barriers to entry, and with the prospect of immediate returns as compared to other types of workplace class action litigation. You can read the <a href="http://money.cnn.com/2017/12/18/news/economy/wage-theft-workers/index.html">full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarthdii121817 Seyfarth’s Donald Featherstun and Seyfarth Shaw at Work Selected to Serve as New Defense Industry Initiative Coordinator Team http://www.seyfarth.com:80/news/seyfarthdii121817 Mon, 18 Dec 2017 00:00:00 -0500 <p> After an extensive search of law firm attorneys and management consulting entities, the Defense Industry Initiative (DII) recently selected Seyfarth Shaw partner Donald G. Featherstun, and Seyfarth Shaw at Work (SSAW) as the new Coordinator Team for DII.</p> <p> DII is a non-profit organization formed by many of the top defense companies in the U.S. Its mission is the continued promotion and advancement of a culture of ethical conduct in every company that provides products and services to the U.S. Armed Forces.</p> <p> In his position, Featherstun has been selected to serve as a liaison with the defense industry stakeholders. Seyfarth Shaw at Work was selected to manage critical day-to-day management functions and support membership communications and marketing.</p> <p> For more than 35 years, Featherstun&rsquo;s practice has focused on commercial litigation with an emphasis on government contract law.</p> <p> SSAW is a legal compliance and consulting services company and Seyfarth Shaw subsidiary. SSAW partners with clients and organizations to create highly effective compliance communications, core values, policy/code designs and training programs. The company also deploys market-focused tactical communications (via verbal, visual or virtual/social media platforms) and manages large-scale logistics for national organizations.</p> http://www.seyfarth.com:80/publications/CDL121817 Now Available! Seyfarth Shaw’s Data Privacy & Protection in the EU-U.S. Desktop Guide http://www.seyfarth.com:80/publications/CDL121817 Mon, 18 Dec 2017 00:00:00 -0500 <p> On May 25, 2018, the EU General Data Protection Regulation (&ldquo;GDPR&rdquo;) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to &euro;20 million or 4% of their global annual revenue for the most egregious violations. What does the future passage of GDPR mean for your business?<br /> <br /> <a href="https://www.carpedatumlaw.com/2017/12/now-available-seyfarth-shaws-data-privacy-protection-eu-u-s-desktop-guide/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA121817-LE NLRB Overturns Browning-Ferris Joint Employer Standard http://www.seyfarth.com:80/publications/MA121817-LE Mon, 18 Dec 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:</strong> In </em>Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., <em>365 NLRB No. 156 (December 14, 2017), by a 3-2 vote, the National Labor Relations Board (NLRB or Board) overturned its 2015 decision in</em> Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery (Browning-Ferris),<em> 362 NLRB No. 186 (2015), </em>petition for review docketed Browning-Ferris Indus. of Cal. v. NLRB<em>, No. 16-1028 (D.C. Cir. filed Jan. 20, 2016) &nbsp;and restored its 30-year test for determining whether separate businesses are &ldquo;joint employers&rdquo; under the National Labor Relations Act (NLRA).&nbsp; &nbsp;&nbsp;</em></p> <p> Joint employer status potentially can exist under the NLRA -- and other employment laws -- in a variety of circumstances including labor user-supplier, parent-subsidiary, contractor-subcontractor, franchisor-franchisee, predecessor-successor, creditor-debtor, and contractor-consumer relationships.</p> <p> The Board&rsquo;s joint employer doctrine is significant because a unionized joint employer has or shares an obligation to collectively bargain over those employment terms it controls or jointly controls.&nbsp; Similarly, a union or non-union joint employer may be found to have committed unfair labor practices within the scope of its control over the workplace.&nbsp; Additionally, under the NLRA, a union can engage in certain forms of picketing, secondary boycotts, or other economic protest activity against an entity determined to be a joint employer instead of a neutral third party.&nbsp;</p> <p> In <em>Browning-Ferris</em>, the Board majority (3-2) held that even when two entities never &nbsp;have exercised joint control over essential employment terms, and even when any joint control is not &ldquo;direct and immediate,&rdquo; they still will be joint employers based on the existence of &ldquo;reserved&rdquo; joint control or &ldquo;indirect&rdquo; control or control that is &ldquo;limited and routine.&rdquo;</p> <p> As the <em>Hy-Brand</em> Board majority underscored, the breadth and vagueness of such a joint employer test threatened to ensnare a vast range of economic relationships, including:</p> <ul> <li> <div> insurance companies that require employers to take certain actions with their employees in order to comply with policy requirements for safety, security, health, etc.</div> </li> <li> <div> franchisors</div> </li> <li> <div> banks or other lenders whose financing terms may require certain performance measurements</div> </li> <li> <div> any company that negotiates specific quality or product requirements</div> </li> <li> <div> any company that grants access to its facilities for a contractor to perform services there, and then regulates the contractor&rsquo;s access to the property for the duration of the contract</div> </li> <li> <div> any company that is concerned about the quality of contracted services</div> </li> <li> <div> consumers or small businesses who dictate times, manner, and some methods of performance of contractors</div> </li> </ul> <p> Among the criticisms of the <em>Browning-Ferris</em> test were the NLRB&rsquo;s inability to clearly articulate what &ldquo;indirect&rdquo; and &ldquo;reserved&rdquo; control meant, and how to distinguish such factors from realities which the common law long recognized were part of a contractor relationship, such as establishing the standards of a worker&rsquo;s performance, the mere fact that the customer owns the premises where services will be provided, the customer&rsquo;s bargaining power in relation to (but not actual control over) the service provider, cost control initiatives which influence but do not dictate the provider&rsquo;s employees&rsquo; compensation, and potential/reserved but unexercised terms of service contracts intended to protect against unacceptable performance.&nbsp;</p> <p> Prior to <em>Browning-Ferris</em>, since at least 1984, joint employer status turned on whether two entities exercised joint control over essential employment terms, and evidence that an entity had &ldquo;reserved&rdquo; the right to exercise such control would not result in a joint employer finding.&nbsp; Moreover, the putative joint employer&rsquo;s control over employment matters had to be &ldquo;direct and immediate.&rdquo;</p> <p> Additionally, prior to <em>Browning-Ferris</em>, the Board found that a customer&rsquo;s &ldquo;limited and routine&rdquo; supervision of a service provider&rsquo;s employees was insufficient to create a joint employer relationship.&nbsp; This meant that a &ldquo;supervisor&rsquo;s instructions consist[ing] primarily of telling employees what work to perform, or where and when to perform it, but not how to perform it&rdquo; -- without an ability to hire, fire, discipline, or directly determine compensation --would not give rise to joint employer status.</p> <p> <em>Hy-Brand</em> returned to those requirements and boundaries of a joint employer relationship.&nbsp;&nbsp; That does not mean that forms of indirect or contractually-reserved control are irrelevant, just that they are not determinative. The <em>Hy-Brand</em> Board majority noted that its &ldquo;fundamental disagreement with the Browning-Ferris test is not that it treats indicia of indirect, and even potential, control to be probative of join employer status, but that it makes such indicia potentially dispositive without any evidence of direct control in even a single area. Under the common law, in our view, evidence of indirect control or contractually-reserved authority is probative only to the extent that it supplements and reinforces evidence of direct control.&rdquo;&nbsp; As a result, employers seeking to reduce their risk of a joint employer finding should continue to minimize arguable forms of control over another entity&rsquo;s employees to the extent possible consisten with business objectives.</p> <p> Applying the pre <em>Browning-Ferris</em> test to the facts in <em>Hy-Brand</em>, the Board found that the two companies were joint employers because they exercised significant direct and immediate control over each other&rsquo;s employees, and shared common benefit plans, policies, and other employment terms.</p> <p> The two dissenting Board members in <em>Hy-Brand</em> (Pearce and McFerran) raised various objections to the majority decision, including that the majority allegedly did not follow the Administrative Procedures Act&rsquo;s requirement of &ldquo;reasoned decisionmaking&rdquo; in reversing precedent.</p> <p> The strongly diverging views of pro-labor and pro-management Board members in this area likely means that the NLRB&rsquo;s joint employer doctrine will continue to change as Board composition changes in successive administrations.&nbsp; The House of Representatives recently passed the Save Local Business Act, which would amend the NLRA to reflect the pre-<em>Browning-Ferris</em> test, but the chances of the bill overcoming a likely Senate filibuster are considered uncertain.</p> http://www.seyfarth.com:80/publications/WLS121817 A Modern Slavery Act for Australia http://www.seyfarth.com:80/publications/WLS121817 Mon, 18 Dec 2017 00:00:00 -0500 <p> Over 40 million people around the world are trapped in conditions of modern slavery, according to estimates from the Walk Free Foundation and International Labour Organization, including an estimated 4300 victims &ldquo;hidden in plain sight&rdquo; in Australia.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2017/12/a-modern-slavery-act-for-australia/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO121817 FDA Announces New Digital Health Policy Documents to Encourage Efficient Development of Digital Health Tools http://www.seyfarth.com:80/publications/BIO121817 Mon, 18 Dec 2017 00:00:00 -0500 <p> On December 7, 2017, the FDA announced three new policy documents geared toward advancing and properly overseeing innovative new digital health tools. The documents mark an acute recognition by the FDA that as consumers and health care providers increasingly use digital technologies as health tools to acquire information, the FDA&rsquo;s policies must continue to encourage the development of such technologies.<br /> <br /> <a href="https://www.bioloquitur.com/fda-announces-new-digital-health-policy-documents-encourage-efficient-development-digital-health-tools/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR121817 NLRB Overturns Browning Ferris Joint Employer Standard http://www.seyfarth.com:80/publications/LR121817 Mon, 18 Dec 2017 00:00:00 -0500 <p> The NLRB has overruled Browning Ferris and returned to its previous standard for determining joint employer status. For more information, see our Management Alert here.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/18/nlrb-overturns-browning-ferris-joint-employer-standard/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR121817a GC Memorandum 18-02 Suggests a More Sane Approach to Independent Contractors http://www.seyfarth.com:80/publications/LR121817a Mon, 18 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here &amp; here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/18/gc-memorandum-18-02-suggests-a-more-sane-approach-to-independent-contractors/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/GPW121817 Now Available! Seyfarth Shaw’s Data Privacy & Protection in the EU-U.S. Desktop Guide http://www.seyfarth.com:80/publications/GPW121817 Mon, 18 Dec 2017 00:00:00 -0500 <p> On May 25, 2018, the EU General Data Protection Regulation (&ldquo;GDPR&rdquo;) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to &euro;20 million or 4% of their global annual revenue for the most egregious violations. What does the future passage of GDPR mean for your business?<br /> <br /> <a href="https://www.globalprivacywatch.com/2017/12/now-available-seyfarth-shaws-data-privacy-protection-in-the-eu-u-s-desktop-guide/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR121717 THE BIG(ger) BA(rgaini)NG THEORY http://www.seyfarth.com:80/publications/LR121717 Sun, 17 Dec 2017 00:00:00 -0500 <p> In yet another significant decision overturning a controversial Obama-era ruling, the NLRB has reverted to its prior standards in determining what will be an appropriate bargaining unit for union organizing and bargaining. PCC Structurals, Inc., 365 NLRB No. 160 (December 15, 2017). Just a day before his term on the Board ended leaving a vacancy and 2-2 split among its members, Chairman Miscimarra along with the two newest Board members appointed by President Trump &mdash; over the sharp dissent of the Board&rsquo;s two Democratic members &mdash; reversed the so-called &ldquo;micro bargaining unit&rdquo; test set out in Specialty Healthcare &amp; Rehabilitation Center of Mobile, 357 NLRB 934 (2011). It&rsquo;s now a Big(ger) Ba(rgaini)ng Theory, or as Sheldon Cooper might say: Bazinga!<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/17/the-bigger-bargaining-theory/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/boutroscbc121717 Andrew Boutros interviewed by CBC News Network http://www.seyfarth.com:80/news/boutroscbc121717 Sun, 17 Dec 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed December 17th by the CBC News Network. Boutros discussed how the Mueller investigation into Russian meddling in the 2016 presidential election came under fire from the Presidential Transition Team over emails they say were private. You can watch the <a href="http://www.cbc.ca/player/play/1118489155837">full interview here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc121617 Andrew Boutros quoted in CBC News http://www.seyfarth.com:80/news/boutroscbc121617 Sat, 16 Dec 2017 00:00:00 -0500 <p> Andrew Boutros was quoted in a December 16 story from CBC News, &quot;Mueller obtains thousands of Trump transition emails,&quot; on how a Trump transition lawyer contends investigators obtained emails through &#39;unauthorized&#39; disclosure. Boutros said that the Trump Presidential Transition Team could apply to a federal court judge for Mueller&#39;s disqualification if there is evidence the investigators reviewed attorney-client privileged materials. You can read the <a href="http://www.cbc.ca/news/world/robert-mueller-special-counsel-trump-transition-emails-1.4453123">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM121517-LIT Much-Needed Certainty and Transparency Created by DOJ’s New FCPA Corporate Enforcement Policy http://www.seyfarth.com:80/publications/OMM121517-LIT Fri, 15 Dec 2017 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:</strong> After many years of criticism, the Department of Justice recently announced a revised FCPA Corporate Enforcement Policy aimed at incentivizing&mdash;and providing substantially more certainty and transparency to&mdash;the FCPA voluntary disclosure process. The Policy, which has been incorporated into the U.S. Attorneys&rsquo; Manual, sets out an important FCPA prosecutorial enforcement presumption, namely, that the government will decline to prosecute non-recidivist companies whose FCPA conduct is not particularly egregious and that meet certain specified standards in an effort to concretely incentivize companies to come forward and self-report their misconduct. Those particular standards include voluntary self-disclosure, full cooperation, disgorgement of ill-gotten profits, and timely and appropriate remediation. The Policy also offers staggered sentencing benefits to companies that fall short of satisfying all of the criteria for receiving the full incentives of the new FCPA Policy, but who still deserve some concrete and pre-ordained sentencing credit.</em></div> <div> &nbsp;</div> <div> <em>Under those staggered benefits, a company that voluntarily self-discloses its FCPA misconduct but whose conduct is particularly aggravating will qualify for a 50% reduction off the low end of the applicable U.S. Sentencing Guidelines fine range and generally not require appointment of a monitor, assuming in the case of the latter that the company has an effective compliance program in place at the time of the resolution. In those matters where a company does not make a voluntary self-disclosure to the government, but otherwise fully cooperates with the government in its investigation and upholds the other standards of the Policy, the DOJ will recommend a sentencing reduction of up to 25% off of the low end of the applicable Guidelines range.</em></div> <div> &nbsp;</div> <div> The new DOJ FCPA Corporate Enforcement Policy can be found <a href="https://www.justice.gov/criminal-fraud/file/838416/download">here</a>.</div> <div> &nbsp;</div> <div> For the full version of this article, which originally appeared in Bloomberg Law White Collar Crime Report, 12 WCR 999 (Dec. 8, 2017), please <a href="http://www.seyfarth.com/dir_docs/publications/BoutrosSchleppPublishWCRFcpa.pdf">click here</a>.</div> http://www.seyfarth.com:80/publications/OMM121517-LE ’Tis the Season for New Jersey CEPA and Gender Equity Notices and Increased Minimum Wage http://www.seyfarth.com:80/publications/OMM121517-LE Fri, 15 Dec 2017 00:00:00 -0500 <p class="BodySingle" style="text-align:justify"> <em><strong>Seyfarth Synopsis:</strong> It is once again that time of year when we remind our clients with operations in New Jersey of their obligation to distribute certain required notices to their employees as well as an increase in the minimum wage.</em><o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> First, those employers with 10 or more employees, regardless of whether those employees work in New Jersey or outside the state, must distribute annually (not merely post) the required notice under the Conscientious Employee Protection Act (CEPA).&nbsp; The CEPA Notice, which must be provided in both English and Spanish to New Jersey employees, can be accessed <a href="http://lwd.state.nj.us/labor/forms_pdfs/lwdhome/CEPA270.1.pdf">here</a>.&nbsp; Please be sure to fill out the &ldquo;Contact Information&rdquo; section prior to distribution.&nbsp; This distribution may take the form of email, provided the subject employees typically have access to email in the course of their job duties.&nbsp; Otherwise, hardcopy distribution is required. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> Second, on or before December 31, employers with 50 or more employees, regardless of whether those employees work in New Jersey or outside the state, must provide employees with a Gender Equity Notice, which can be accessed <a href="http://lwd.dol.state.nj.us/labor/forms_pdfs/EmployerPosterPacket/genderequityposterenglish.pdf">here</a>.&nbsp; <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> The Gender Equity Notice can be distributed to New Jersey employees by:</p> <ul> <li class="BodySingle" style="text-align: justify;"> <span style="text-indent: 0.5in;">email;</span></li> <li class="BodySingle" style="text-align: justify;"> printed material &ldquo;including, but not limited to, a pay check insert, brochure or similar informational packet provided to new hires, an attachment to an employee manual or policy book; or flyer distributed at an employee meeting&rdquo;; or</li> <li class="BodySingle" style="text-align: justify;"> an internet or intranet website &ldquo;if the site is for the exclusive use of all workers, can be accessed by all workers, and the employer provides notice to the workers of its posting.&rdquo;</li> </ul> <p class="BodySingle" style="margin-left:.5in;text-align:justify"> <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> Importantly, the Gender Equity Notice must be accompanied by an acknowledgment of receipt (signed or e-verified) by the employee, which must be returned within 30 days of receipt of the Notice.&nbsp; The law also requires that the acknowledgement be signed every time that the Notice is distributed.&nbsp; While CEPA does not expressly require such a signed acknowledgement, employers may wish to consider it.<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> Finally, the minimum wage in New Jersey will increase to $8.60 an hour effective January 1, 2018.&nbsp; As such, employers should be sure to post the updated minimum wage poster, which can be accessed <a href="http://lwd.dol.state.nj.us/labor/forms_pdfs/lsse/mw-220.pdf">here</a>.<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> Happy Holidays!<o:p></o:p></p> http://www.seyfarth.com:80/publications/WSE121517 Senate Nominations Committee Approves Trump Nomination for OSHA Administrator http://www.seyfarth.com:80/publications/WSE121517 Fri, 15 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Senate Nominations Committee, during a December 13, 2017 meeting, approved the Trump nomination of Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health,.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/senate-nominations-committee-approves-trump-nomination-for-osha-administrator/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL121517 Preventing #MeToo in the Workplace: How Employers Talk the Talk And Walk the Walk http://www.seyfarth.com:80/publications/EL121517 Fri, 15 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Gone are the days where sexual harassment training will be enough. It&rsquo;s time to shift the workplace focus from just ticking a box (i.e., training complete) to creating a culture where harassment (or discrimination) of any kind is truly not tolerated. Promptly and effectively responding to such allegations is one step in the right direction. This is the second article in a three-part series addressing sexual harassment in the workplace, which looks closely at corporate culture and provides tips on how companies might avoid being the next sexual harassment headline.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/12/preventing-metoo-in-the-workplace-how-employers-talk-the-talk-and-walk-the-walk/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR121517a Will the NLRB Let Employers Go Back to Conducting Confidential Investigations in the Workplace? http://www.seyfarth.com:80/publications/LR121517a Fri, 15 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, here, &amp; here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/15/will-the-nlrb-let-employers-go-back-to-conducting-confidential-investigations-in-the-workplace/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR121517aa Weingarten Rights: GC Memorandum 18-02 Forecasts that the Trump Board May Rein in the Obama Board’s Heyday on Weingarten Rights http://www.seyfarth.com:80/publications/LR121517aa Fri, 15 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, &amp; here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/15/weingarten-rights-gc-memorandum-18-02-forecasts-that-the-trump-board-may-rein-in-the-obama-boards-heyday-on-weingarten-rights/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS121417 Accelerating towards changes in CoR and heavy vehicles http://www.seyfarth.com:80/publications/WLS121417 Thu, 14 Dec 2017 00:00:00 -0500 <p> In our Safeguard Series, we partnered with the Australian Logistics Council (ALC), highlighting how broad the impact will be on your business, your board and your senior executives. There are a number of resources available, highlighting the risks and pressure points.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2017/12/accelerating-towards-changes-in-cor-and-heavy-vehicles/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT121417 The Week in Weed: December 15 http://www.seyfarth.com:80/publications/TBT121417 Thu, 14 Dec 2017 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/12/the-week-in-weed-december-15/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/whitmanbi121417 Robert Whitman quoted in Business Insurance http://www.seyfarth.com:80/news/whitmanbi121417 Thu, 14 Dec 2017 00:00:00 -0500 <p> Robert Whitman was quoted in a December 14 story from Business Insurance, &quot;New York ruling on class settlements could cost businesses,&quot; on a ruling by New York&rsquo;s highest court that notice of settlements must be sent to possible class members even if the class has not yet been certified. Whitman said that it could drive up the cost of settlements and therefore make settlements even more expensive, or less likely, or both. You can read the <a href="http://www.businessinsurance.com/article/20171214/NEWS06/912317946/New-York-Court-of-Appeals-ruling-class-settlements-could-cost-businesses">full article here</a>.</p> http://www.seyfarth.com:80/news/meierspgmi121417 Steven Meier quoted in S&P Global Market Intelligence http://www.seyfarth.com:80/news/meierspgmi121417 Thu, 14 Dec 2017 00:00:00 -0500 <p> Steven Meier was quoted in a December 14 story from S&amp;P Global Market Intelligence, &quot;Commercial real estate a likely &#39;winner&#39; in tax reform, experts say.&quot; Meier said that the sausage-making process from this point forward could be fast and ugly. You can read the <a href="https://marketintelligence.spglobal.com/our-thinking/news/commercial-real-estate-a-likely-winner-in-tax-reform-experts-say">full article here</a>.</p> http://www.seyfarth.com:80/news/yapbloomberg121317 Julie Yap quoted in Bloomberg http://www.seyfarth.com:80/news/yapbloomberg121317 Wed, 13 Dec 2017 00:00:00 -0500 <p> Julie Yap was quoted in a December 13 story from Bloomberg, &quot;Hotels Add &lsquo;Panic Buttons&rsquo; to Protect Housekeepers From Guests,&quot; on how the hotel industry is confronting harassment in the workplace. Yap said that she advises companies to emphasize their policies against harassment by non-employees as well as employees, to encourage reporting of incidents, and to require robust training. You can read the <a href="https://www.bloomberg.com/news/articles/2017-12-13/hotels-add-panic-buttons-to-protect-housekeepers-from-guests">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM121317-IP December 31, 2017: Last Day To Designate DMCA Agent Or Lose Safe Harbor Eligibility http://www.seyfarth.com:80/publications/OMM121317-IP Wed, 13 Dec 2017 00:00:00 -0500 <div> Starting December 31, 2017, all online service providers (which includes website owners) who want to take advantage of the Digital Millennium Copyright Act (DMCA) Safe Harbor must designate a registered agent with the U.S. Copyright Office via the electronic registration system. Any prior designation not made through the online registration system will expire and become invalid after December 31, 2017.</div> <div> &nbsp;</div> <div> The DMCA provides a safe harbor from copyright infringement liability for online service providers that allow content to be posted by third parties. To qualify for the safe harbor, online service providers must designate an agent to receive complaints of alleged copyright infringement on behalf of the company.</div> <div> &nbsp;</div> <div> If you have not done so already, to use the new electronic agent registration system each service provider must first open an account with the Copyright Office <a href="https://dmca.copyright.gov/osp/p1.html">here</a>. From there, you must provide the first name, last name, position or title, organization, physical mail address (street address or post office box), telephone number, and email address of two representatives of the service provider who will serve as primary and secondary points of contact for communications with the Office, and a telephone number and email address for the service provider.</div> <div> &nbsp;</div> <div> Of note, designations made electronically are effective for a period of three years from the date of filing. Although the Copyright Office is obligated to notify companies of their agent designation renewal dates, we suggest companies calendar the renewal dates themselves. For additional information, check out the Copyright Office&rsquo;s FAQs on the electronic agent designation process <a href="https://www.copyright.gov/rulemaking/onlinesp/NPR/faq.html">here</a>.</div> <div> &nbsp;</div> <div> If you have any questions, please contact Seyfarth Shaw Intellectual Property Attorneys, <a href="http://www.seyfarth.com/VincentSmolczynski">Vincent Smolczynski</a>, <a href="http://www.seyfarth.com/KennethWilton">Kenneth Wilton</a>, <a href="http://www.seyfarth.com/EdwardFMaluf">Edward Maluf</a> or <a href="http://www.seyfarth.com/BrianMichaelis">Brian Michaelis</a>.</div> http://www.seyfarth.com:80/publications/MA121317-LIT 2017 Trade Secrets Webinar Series Year in Review http://www.seyfarth.com:80/publications/MA121317-LIT Wed, 13 Dec 2017 00:00:00 -0500 <div> Throughout 2017, Seyfarth Shaw&rsquo;s dedicated Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group hosted a series of CLE webinars that addressed significant issues facing clients today in this important and ever-changing area of law. The series consisted of six webinars:</div> <div> &nbsp;</div> <ol> <li> 2016 National Year in Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets,&nbsp;Non-Compete and Computer Fraud Law&nbsp;</li> <li> Simple Measures for Protecting Intellectual Property and Trade Secrets</li> <li> Protecting Confidential Information and Client Relationships in the Financial Services Industry</li> <li> Protecting Your Trade Secrets in the Pharmaceutical Industry</li> <li> Trade Secret Protection: What Every Employer Needs to Know</li> <li> Protecting Trade Secrets in the Social Media Age</li> </ol> <div> &nbsp;</div> <div> As a conclusion to this well-received 2017 webinar series, we compiled a list of key takeaway points for each program, which are listed below. For those clients who missed any of the programs in this year&rsquo;s series, the webinars are available on <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=9X_ehCnQjiCaZrES8lKP7p532tEzZRqXV64ETcwlQYnHS1Zc0f21JPRo6QpxFr5qoIWjshjD1zpzFp2NxknP_g">DVD upon request</a>, or you may click on the title of each webinar for the online recording. Seyfarth Trade Secrets, Computer Fraud &amp; Non-Compete attorneys are happy to discuss presenting similar presentations to your groups for CLE credit. Seyfarth will continue its trade secrets webinar programming in 2018, and we will release the 2018 trade secrets webinar series topics in the coming weeks.&nbsp;</div> <div> &nbsp;</div> <h3> <a href="http://www.seyfarth.com/dir_docs/publications/Webinar_020217.wmv">2016 National Year in Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete and Computer Fraud Law</a></h3> <div> &nbsp;</div> <div> The first webinar of the year, led by Robert Milligan, Michael Wexler, and Joshua Salinas, reviewed noteworthy cases and other legal developments from across the nation over the last year in the areas of trade secret and data theft, non-compete enforceability, computer fraud, and the interplay between restrictive covenant agreements and social media activity, and provided predictions for what to watch for in 2017.</div> <div> &nbsp;</div> <ul> <li> The DTSA can be a powerful tool to protect intellectual capital. However, in order to take full advantage of the DTSA, businesses should carefully check their agreements with employees, handbooks and equity awards to make sure they contain language mandated by the Defend Trade Secrets Act.</li> <li> 2016 was a record year for data and information security breaches. Organizations should alert and train employees on following company policies, spotting potential social engineering attacks, and having a clear method to escalate potential security risks. Employee awareness, coupled with technological changes towards better security will reduce risk and exposure to liability.</li> <li> Several states enacted laws to limit the scope and duration of non-competes in 2016. There were also some significant decisions limiting their scope and enforceability in 2016 as well. Companies should have their non-disclosure and non-compete agreements reviewed to ensure that they comply with the latest state and federal laws, including the new Defend Trade Secrets Act.</li> </ul> <div> &nbsp;</div> <h3> <a href="http://www.seyfarth.com/dir_docs/publications/Simple_Measures_for_Protecting_Intellectual_Property_and_Trade_Secrets.wmv">Simple Measures for Protecting Intellectual Property and Trade Secrets</a></h3> <div> &nbsp;</div> <div> 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, or 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.&nbsp;</div> <div> &nbsp;</div> <div> In this webinar, Seyfarth attorneys Patrick Muffo and Kevin Mahoney provided a basic overview of what types of intellectual property and trade secrets are protectable, how to protect them, and helpful tips to ensure that a company is doing everything they can to avoid common issues assocaited with intangible property.</div> <div> &nbsp;</div> <ul> <li> Businesses routinely miss out on opportunities to protect their valuable intellectual property simply because they do not realize that their inventions or developments qualified as intellectual property in the first place. Particularly in light of changes in patent law that reward the first party to file for a patent&mdash;regardless of whether they invented something first or not&mdash;it is important to be proactive about applying for patent protection as early as possible. If a business believes that an invention may qualify for either a design or utility patent, it should take steps to start the patent application process as soon as possible.</li> <li> Copyright and trademark protection are also an important, and often overlooked, component of intellectual property protection. Trademarks are routinely granted for patterns, brands, logos, trade dress, and other identifying images which businesses may have thought were too generic to qualify for such protection. Copyrights are also becoming an increasingly important tool in protecting computer code.</li> <li> Trade secrets are also intellectual property, but are governed by an entirely different set of laws and are protected in different ways, often through litigation. Because the recently-enacted Defend Trade Secrets Act of 2016 requires the owner of trade secrets to have taken reasonable steps to protect that information, businesses should identify their processes for identifying what information qualifies as a trade secret and what steps they have taken to protect that information, including the implementation of employee confidentiality agreements. Confidentiality agreements drafted before 2016 need to be updated to include certain whistleblower language as a result of the passage of the Defend Trade Secrets Act.</li> </ul> <div> &nbsp;</div> <h3> <a href="http://www.seyfarth.com/dir_docs/publications/Webinar_042717.wmv">Protecting Confidential Information and Client Relationships in the Financial Services Industry</a></h3> <div> &nbsp;</div> <div> In Seyfarth&rsquo;s third installment of its 2017 Trade Secrets Webinar series, 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. This webinar also 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.&nbsp;</div> <div> &nbsp;</div> <ul> <li> Remember that you can seek court injunctive relief (Temporary Restraining Order and, possibly, Preliminary Injunction) before proceeding in FINRA.</li> <li> The definition of a trade secret varies by company, but you must take adequate steps to protect them as a company, and the information cannot be publicly available or easily discovered, to merit enforcement under the law.</li> <li> Employers can take steps at all stages to protect their confidential information&ndash;don&rsquo;t forget to implement on-boarding and off-boarding procedures, as well as policies and procedures that will be in effect during an employee&rsquo;s tenure, to protect your information before a problem arises.</li> </ul> <div> &nbsp;</div> <h3> <a href="http://www.seyfarth.com/dir_docs/publications/17-06-28-Protecting_Your_Trade_Secrets_in_the_Pharmaceutical_Industry.wmv">Protecting Your Trade Secrets in the Pharmaceutical Industry</a></h3> <div> &nbsp;</div> <div> Seyfarth&rsquo;s fourth installment, presented by Justin Beyer, Marcus Mintz, Dean Fanelli, and Thomas Haag, focused on how to define and protect trade secrets in the pharmaceutical industry, including a review of significant civil and criminal cases in the industy, a discussion on how federal and state trade secret statutes and decisions may impact the protection of trade secrets, and best practices for protecting trade secrets from invention through sale.&nbsp;</div> <div> &nbsp;</div> <ul> <li> Trade secret laws cover any information which is confidential, kept confidential, and from which the owner derives economic benefit. In order to maintain such protections, owners must be vigilant and proactive about maintaining the secrecy of their trade secret information. One of the ways in which employers should do so is to update their employment agreements to comply with the immunity notice provisions of the Defend Trade Secrets Act, without which the employer may lose the ability to recover attorney&rsquo;s fees or double damage awards.</li> <li> In the pharmaceutical and biotechnology space, companies should also take active steps to develop internal guidelines and protocols for the identification and protections of information that may be the subject of trade secret protection, whether that information is related to research and development, strategic business plans, or future opportunities and trends. These steps include, but are not limited to: (i) advising all employees of the confidential and proprietary nature of their work; (ii) limiting access to proprietary and confidential information to only those employees requiring such information; (iii) actively monitoring how information is distributed both internally and externally; and (iv) regularly updating employees of the necessity to maintain confidentiality of all information.</li> <li> Trade secrets are particularly valuable with respect to the development of biologics. Given long clinical development timelines, composition patents covering reference biologics may be about to expire or will have already expired, at time of marketing approval. Confidential and proprietary details relating to reference protein drug production, isolation, storage and delivery; as well as its post-transnational modifications, are at least as important to know as the identity of the reference protein&rsquo;s amino acid sequence, when creating a biosimilar. Thus these trade secrets represent potentially enormous barriers to market entry for third party developers of biosimilar versions. They should, therefore, be kept in the strictest confidence.</li> <li> If a company does, however, find itself in a situation in which it fears that an employee has or may misappropriate its trade secret information, it should take certain immediate steps, including: (a) reminding the employee of his/her obligations; (b) forensically imaging and reviewing the employee&rsquo;s email communications, downloading history, and/or internet activity; (c) cutting off the employee&rsquo;s access to company confidential information, as soon as notice is provided that the employee is taking a position with a competitor; and (d) if necessary, filing suit to recover and protect the secrecy of the trade secrets. Once trade secrets are disclosed in public, whether properly or improperly, it becomes exceedingly difficult to prove the ongoing secrecy of the information and even harder to put the secret back in its box.</li> </ul> <h3> &nbsp;</h3> <h3> <a href="http://www.seyfarth.com/dir_docs/publications/Trade_Secret_Protection_What_Every_Employer_Needs_to_Know.wmv">Trade Secret Protection: What Every Employer Needs to Know</a></h3> <div> &nbsp;</div> <div> In Seyfarth&rsquo;s fifth installment, attorneys Robert Milligan and Daniel Joshua Salinas were joined by Jim Vaughn, one of California&rsquo;s leading forensics experts. The panel focused on how to help employers navigate the tricky trade secrets waters and provided best practices for trade secret protection.&nbsp;</div> <div> &nbsp;</div> <ul> <li> Employers should review their non-disclosure and non-compete agreements to determine whether they have accurately defined the scope of categories of their confidential information, as well included the whistleblower immunity language required under the Defend Trade Secrets Act. Additionally, they should ensure their agreement complies with recent changes in non-compete law, including legislative changes in Nevada, Oregan, idaho, and Alabama.&nbsp;</li> <li> Employers should consider how they treat employee-owned devices for work, as well as corporate-issued mobile devices. Getting access to those devices may prove to be challenging upon an employee&rsquo;s departure. Having technology and a policy in place to allow the employer to gain access to their data is critical.&nbsp;</li> <li> Effectively protecting trade secrets includes not only creating an internal culture of confidentiality with employees but also limiting information made available to vendors and subcontractors and having appropriate trade secret protection agreements with third parties.&nbsp;</li> </ul> <div> &nbsp;</div> <h3> <a href="http://www.seyfarth.com/dir_docs/publications/Protecting_Trade_Secrets_in_the_Social_Media_Age.wmv">Protecting Trade Secrets in the Social Media Age</a></h3> <div> &nbsp;</div> <div> There is no denying that social media has transformed the way companies conduct business, but social media and related issues in the workplace can be a headache for employers. In light of the rapid evolution of social media, companies today face significant legal challenges on a variety of issues, ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property. Request a copy of our 2017&ndash;2018 Social Media Privacy Legislation Desktop Reference <a href="https://www.tradesecretslaw.com/2017/11/articles/social-media-2/now-available-seyfarth-shaws-2017-2018-edition-of-the-social-media-privacy-legislation-desktop-reference/">here</a>.&nbsp;</div> <div> &nbsp;</div> <div> In Seyfarth&rsquo;s sixth installment, attorneys Justin Beyer, Dawn Mertineit, and Ryan Behndelman discussed the relationship between trade secrets and social media, including the interplay between social media privacy laws and workplace investigations and how developing internal company policy and/or contracts can protect company assets; how to define, understand, and protect trade secrets in social media; how courts are intepreting ownership of social media accounts and whether social media sites constitue property; how to prevent trade secret misappropriation or distribution through social media channels; and the interplay between protection of company information and ovnership of company accounts in the social media age.</div> <div> &nbsp;</div> <ul> <li> By allowing social media in the workplace, companies are exposed to multiple risks, including the theft of confidential information and potential embarrassment to the company. It is imperative that companies craft a social media policy that will not only protect the company, but will also work within the company&rsquo;s individual structure.</li> <li> In defining an employee&rsquo;s obligations as it relates to social media usage, companies should make sure they have policies in place (as well as a provision in any employment agreements) regarding the ownership of company social media accounts. Having clear, written policies and agreements can eliminate or reduce the need for costly and time-consuming litigation to determine who owns company-related social media presences.</li> <li> Finally, due to the concern about employer involvement in an employee&rsquo;s social media presence, employers should be mindful to abide by direction provided by state legislation as well as the National Labor Relation Board&rsquo;s interpretation of what constitutes improper interference in speech activities. Because of this, it is important to craft any social media policy with a view toward protecting company assets and reputation, without being perceived to infringe on the speech or privacy rights of employees.</li> </ul> <div> &nbsp;</div> <h2> 2018 Trade Secret Webinar Series</h2> <div> &nbsp;</div> <div> Beginning in January 2018, we will begin another series of trade secret webinars. The first webinar of 2018 will be &ldquo;2017 National Year in Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete, and Computer Fraud Law.&rdquo; To receive an invitation to this webinar or any of our future webinars, please sign up for our Trade Secrets, Computer Fraud &amp; Non-Competes mailing list by clicking here.</div> <div> Seyfarth Trade Secrets, Computer Fraud &amp; Non-Compete attorneys are happy to discuss presenting similar presentations to your groups for CLE credit.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA121317-LE NLRB General Counsel Rescinds Controversial Memo Regarding Section 7 Rights of University Faculty, Student Assistants, and Student-Athletes http://www.seyfarth.com:80/publications/MA121317-LE Wed, 13 Dec 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis: </strong>On December 1, 2017, the newly-confirmed General Counsel of the National Relations Board, Peter Robb, issued a memorandum to the NLRB regional offices listing legal issues that should be submitted for review to the Division of Advice prior to the issuance of an unfair labor practice complaint.&nbsp; Among other responsibilities, the Division of Advice provides guidance to the General Counsel and the regional offices with respect to significant legal issues arising in the processing of unfair labor practice charges.&nbsp;</em></p> <p> The memorandum also listed seven different legal memoranda, commonly known as &ldquo;GC Memos,&rdquo; issued by Mr. Robb&rsquo;s predecessor that were being rescinded. Of significant importance to colleges and universities is that among the seven rescinded GC Memos was the Memorandum entitled &ldquo;General Counsel&rsquo;s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context&rdquo; (&ldquo;the Report&rdquo;).&nbsp; This Report set out then-General Counsel Richard F. Griffin Jr.&rsquo;s views as to the applicability of three election cases previously decided by the NLRB -- <em>Pacific Lutheran University</em>, <em>Columbia University</em>, and <em>Northwestern University</em> -- to unfair labor practice cases involving the Section 7 rights of faculty, student assistants and student-athletes.&nbsp; Our prior description of the Report can be found <a href="http://www.seyfarth.com/publications/OMM020217-LE3">here</a>.&nbsp; The rescission of the Report signals that the new General Counsel intends to depart from his predecessor on these issues.&nbsp;</p> <p> <strong>NLRB Jurisdiction Over Religious Colleges and Universities and Managerial Status</strong></p> <p> In <em>Pacific Lutheran University</em>, 361 NLRB No. 157 (December 16, 2014), the NLRB, departing from well-established case law, including decisions of the United States Supreme Court, announced a new test to determine when jurisdiction would be asserted over religious colleges and universities in representation cases.&nbsp; The test established in <em>Pacific Lutheran </em>increased the instances in which jurisdiction would be asserted.&nbsp; Also breaking with a prior decision of the Supreme Court, the <em>Pacific Lutheran </em>decision narrowed the circumstances in which faculty involved in school decision-making would be deemed to be managerial and thus excluded from protection of the National Labor Relations Act (&ldquo;the Act&rdquo;).&nbsp; Analysis of the decision can be found <a href="http://www.seyfarth.com/publications/MA122214-LE">here</a>.</p> <p> As specifically intended, &nbsp;Griffin&rsquo;s Report extended the holdings of <em>Pacific Lutheran </em>beyond representation cases to the unfair labor practice context.&nbsp; The positive effects of&nbsp; the new General Counsel&rsquo;s rescission of the Report should be felt in both unfair labor practice and representation cases.</p> <p> <strong>Student Assistants</strong></p> <p> In <em>Columbia University</em>, 364 NLRB No. 90 (2016), the Board, departing from years of decision-making, held that students who performed services for the university in connection with their studies, specifically teaching and research assistants, were employees within the meaning of the Act for the purposes of <a href="http://www.seyfarth.com/publications/MA082516-LE">organizing</a>.&nbsp; The Report extended this conclusion to the unfair labor practice context.&nbsp; Moreover, and although the Board in <em>Columbia University</em> did not address the status of non-academic student workers such as those who work in cafeterias and bookstores, the Report also concluded that such student workers have rights under the Act.</p> <p> Taken together, the Report meant that prior General Counsel Griffin believed that student assistants and non-academic student workers not only could unionize under the Act, but that they also were protected from actions being taken against them because of their efforts to unionize.&nbsp; Colleges and universities should expect positive effects in both areas as a result of Robb&rsquo;s rescission of the Report.</p> <p> <strong>Student-Athletes</strong></p> <p> Lastly, Griffin&rsquo;s Report addressed the Board&rsquo;s decision in <em>Northwestern University</em>, 362 NLRB No. 167 (2015), in which, based on public policy considerations, it declined to exercise jurisdiction over a representation petition relating to the University&rsquo;s scholarship football players.&nbsp; In doing so, the Board specifically left unresolved the question of whether college scholarship football players are <a href="https://www.laborandemploymentlawcounsel.com/2015/08/college-football-unions-the-refs-call-off-the-game/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=36428ecf32-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-36428ecf32-70701745">employees</a> subject to the Act. &nbsp;Undaunted by the fact that the Board would not decide the employee status issue, former General Counsel Griffin concluded that, based on the record in <em>Northwestern University</em>, Division I scholarship football players are employees under the Act and left open the possibility of a similar determination as to scholarship athletes in other sports.&nbsp;</p> <p> The Report already had been used by plaintiffs in wage-hour litigation to support their position that certain scholarship athletes are employees for purposes of state and federal wage-hour laws, including the Fair Labor Standards Act.&nbsp; The rescission of the Report should prevent that in the future.</p> <p> <strong>Conclusion</strong></p> <p> General Counsel Robb&rsquo;s recession of the Report is not surprising.&nbsp; After the Report was issued by former General Counsel Griffin, Congressional Committee Head Virginia Foxx (R-NC) and Subcommittee Chair Tim Walberg (R-MI) asked Griffin to either immediately rescind the Report or &ldquo;step down.&rdquo;&nbsp; We reported on this <a href="https://www.employerlaborrelations.com/2017/02/03/federal-legislators-tell-nlrb-gc-griffin-to-rescind-his-education-report-or-step-aside/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=584d20349d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-584d20349d-71423401">here</a>.&nbsp; Although the Report is only directed toward unfair labor practice cases, it would not be surprising if the Board decided to revisit its underlying holdings in <em>Pacific Lutheran </em>and <em>Columbia University.&nbsp; </em>Indeed, on December 12, 2017, Board Member Emanuel noted in an unpublished decision that the Board&rsquo;s precedent regarding the status of students as employees under the Act &ldquo;warrants reconsideration.&rdquo;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/WH121317 New York’s Highest Court: Pre-Certification Settlements Require Classwide Notice http://www.seyfarth.com:80/publications/WH121317 Wed, 13 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The New York Court of Appeals holds that the state&rsquo;s class action rules require notice of settlements to be sent to putative class members &ndash; even though no class has been certified.<br /> <br /> <a href="https://www.wagehourlitigation.com/settlement/new-yorks-highest-court-pre-certification-settlements-require-classwide-notice/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP121317 Don’t “Shoot Your Eye Out” Defending Unemployment Benefits Claims http://www.seyfarth.com:80/publications/CP121317 Wed, 13 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The ordinary headaches of responding to unemployment claims with the EDD do not have to bog down employers in 2018. Here, we provide recommendations for managers to consider before the ball drops in Times Square this New Year.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/12/13/dont-shoot-your-eye-out-defending-unemployment-benefits-claims/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT121317 Invest in That?? What are you Smoking?? http://www.seyfarth.com:80/publications/TBT121317 Wed, 13 Dec 2017 00:00:00 -0500 <p> There is a segment of the investment community that wants to invest in the cannabis industry in the worst way, and that is exactly how some are doing it. Over the past several months our firm has reviewed a number of private placement memoranda (PPM) for clients, and while some appear to be solid and well written, others remind us of the early days of the internet boom when business plans were sometimes written on napkins. Deficiencies we have found in PPMs include confusing descriptions of business plans, lack of financial projections, lack of basis for valuations, inadequate disclosure of risk factors and vague discussion of management compensation and/or equity holdings.<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/12/invest-in-that-what-are-you-smoking/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/weisshre121317 Philippe Weiss authored an article in Human Resource Executive http://www.seyfarth.com:80/publications/weisshre121317 Wed, 13 Dec 2017 00:00:00 -0500 <p> Philippe Weiss authored a December 13 article in Human Resource Executive, &quot;Training Harassment&#39;s First Responders.&quot; Weiss provides a few strategies organizations can adopt to avoid becoming unwitting harassment enablers of bad behavior. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534363421">full article here</a>.</p> http://www.seyfarth.com:80/publications/LR121317 NLRB General Counsel Rescinds Controversial Memo Regarding Section 7 Rights of University Faculty, Student Assistants, and Student-Athletes http://www.seyfarth.com:80/publications/LR121317 Wed, 13 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On December 1, 2017, the newly-confirmed General Counsel of the National Relations Board, Peter Robb, issued a memorandum to the NLRB regional offices listing legal issues that should be submitted for review to the Division of Advice prior to the issuance of an unfair labor practice complaint. Among other responsibilities, the Division of Advice provides guidance to the General Counsel and the regional offices with respect to significant legal issues arising in the processing of unfair labor practice charges.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/13/nlrb-general-counsel-rescinds-controversial-memo-regarding-section-7-rights-of-university-faculty-student-assistants-and-student-athletes/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE121217 Senate Committee Set for December 13, 2017 Vote on Confirmation of Trump Nomination for OSHA Administrator http://www.seyfarth.com:80/publications/WSE121217 Tue, 12 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Senate Nominations Committee has scheduled a vote on the Trump nomination, Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/senate-committee-set-for-december-13-2017-vote-on-confirmation-of-trump-nomination-for-osha-administrator/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC121217 Google Dodges Gender Discrimination Class Action For Now http://www.seyfarth.com:80/publications/WC121217 Tue, 12 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In Ellis v. Google, Inc., No. CGC-17-561299 (Cal Sup. Ct. Dec. 4, 2017), Judge Mary Wiss of the Superior Court of California granted a motion to dismiss a class action lawsuit brought by Google employees who claimed that all female Google employees are paid less than their counterparts. Specifically, Judge Wiss found that the plaintiffs failed to plead sufficient facts to conclude that Google paid all female employees less than their male counterparts, even though the complaint alleged that a statistical analysis &ldquo;found systematic compensation disparities against women pretty much across the entire workforce.&rdquo; Id. at 4. This case represents a win for employers, who too often are forced to defend large class actions based on conclusory allegations.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/12/google-dodges-gender-discrimination-class-action-for-now/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL121217 Multinational Company in China – Are You Concerned About the Personal Credit System and Privacy Provisions in China? You Should Be! http://www.seyfarth.com:80/publications/EL121217 Tue, 12 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The People&rsquo;s Republic of China is making progress in implementing its mandatory &ldquo;social credit system.&rdquo; Multinational businesses in China should be watchful of this system, and ready for it when it rolls out &ndash; if it hasn&rsquo;t already.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/12/multinational-company-in-china-are-you-concerned-about-the-personal-credit-system-and-privacy-provisions-in-china-you-should-be/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/meerlaw360121217 Jon Meer profiled in Law360, “MVP: Seyfarth's Jon Meer” http://www.seyfarth.com:80/news/meerlaw360121217 Tue, 12 Dec 2017 00:00:00 -0500 <p> Jon Meer was profiled in a December 12 story from Law360 as a 2017 &ldquo;Employment MVP&rdquo;. Meer was named an &ldquo;Employment MVP&rdquo; for securing numerous victories for companies in wage-related class actions, including a significant win in a &ldquo;bag check&rdquo; case for shoe giant Nike.</p> http://www.seyfarth.com:80/news/billowswapo121217 Tracy Billows quoted in the Washington Post http://www.seyfarth.com:80/news/billowswapo121217 Tue, 12 Dec 2017 00:00:00 -0500 <p> Tracy Billows was quoted in a December 12 story from the Washington Post on the potential human resources issues involved with company holiday parties. Billows said that people tend to feel more comfortable away from the workplace.</p> http://www.seyfarth.com:80/news/weissap121117 Philippe Weiss quoted in the Associated Press http://www.seyfarth.com:80/news/weissap121117 Mon, 11 Dec 2017 00:00:00 -0500 <p> Philippe Weiss was quoted in a December 11 story from the Associated Press, &quot;Will misconduct scandals make men wary of women at work?&quot; Weiss said that certain managers are considering whether to make sure they&rsquo;re never alone with a staffer, despite the complications of adding a third person in situations like performance reviews. You can read the <a href="https://apnews.com/d2f8656d20fc4dfda89831fa77f6dd84/Will-misconduct-scandals-make-men-wary-of-women-at-work">full article here</a>.</p> http://www.seyfarth.com:80/news/lorberhre121117 Lawrence Lorber quoted in Human Resource Executive http://www.seyfarth.com:80/news/lorberhre121117 Mon, 11 Dec 2017 00:00:00 -0500 <p> Lawrence Lorber was quoted in a December 11 story from Human Resource Executive, &quot;An End to Sexual-Harassment Arbitration?,&quot; on the &ldquo;Ending Forced Arbitration of Sexual Harassment Act of 2017.&quot; Lorber predicts that the bill, as its currently worded, will likely meet some opposition. You can read the <a href="http://blog.hreonline.com/2017/12/11/sexual-harassment/">full article here</a>.</p> http://www.seyfarth.com:80/news/schwartzfenwickshrm121117 Sam Schwartz-Fenwick quoted in SHRM http://www.seyfarth.com:80/news/schwartzfenwickshrm121117 Mon, 11 Dec 2017 00:00:00 -0500 <p> Sam Schwartz-Fenwick was quoted in a December 11 story from SHRM, &quot;Supreme Court Declines to Clarify Law on Sexual Orientation Discrimination,&quot; on the U.S. Supreme Court announcing it would not yet resolve a split among the appeals courts over the question of whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. Schwartz-Fenwick predicted that the Supreme Court will eventually resolve the split, unless Congress passes legislation that clarifies the scope of Title VII. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/supreme-court-declines-title-vii-clarification.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA121117-LE Spokane City Council Approves “Ban-the-Box” Ordinance for Private Sector Employers http://www.seyfarth.com:80/publications/MA121117-LE Mon, 11 Dec 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong>The Spokane City Council recently approved a &ldquo;ban-the-box&rdquo; ordinance, which, if it becomes law, will prohibit employers from requesting and considering criminal history until after an interview. The Mayor has until December 14, 2017 to veto or sign the ordinance.</em></p> <p> On November 27, 2017, the City of Spokane City Council approved a new ordinance that restricts the ability of private sector employers to request and consider conviction records for employment purposes, including a requirement that covered employers &ldquo;ban the box&rdquo; asking applicants to self-disclose their criminal history on employment applications and defer requesting and considering any criminal history information, including through a criminal background check, until after an interview or, if no interview, after a conditional offer of employment.</p> <p> Mayor David Condon has until December 14, 2017 to sign or veto the ordinance. If passed, Spokane employers will have until July 2018 to comply with the new ordinance, although the City will not enforce it until 2019.</p> <p> <strong>Coverage</strong></p> <p> The ordinance applies to all private employers in the Spokane city limits, but does not apply to the following:</p> <ul> <li> to any employer hiring an employee who will have unsupervised access to children under the age of 18 or vulnerable adults or persons as defined under state law;</li> <li> to employers who are expressly permitted or required under any federal or Washington state law to inquire into, consider, or rely on information about an applicant&rsquo;s arrest or conviction record for employment purposes;</li> <li> to certain law enforcement agencies as defined under state law; or</li> <li> where criminal background checks are specifically permitted or required under state or federal law.</li> </ul> <p> The ordinance is broad enough to cover all types of work, including &ldquo;temporary or seasonal work, contracted work, contingent work and work through the services of a temporary or other employment agency; or any form of vocational or educational training, whether offered with or without pay.&rdquo; The ordinance arguably only applies to those applying for positions in the Spokane city limits.</p> <p> <strong>What the Ordinance Prohibits</strong></p> <p> Covered employers may not:</p> <ul> <li> advertise job openings in a way that excludes people with arrest or conviction records from applying, such as using advertisements which state &ldquo;no felons&rdquo; or &ldquo;no criminal background,&rdquo; or which otherwise convey similar messages;</li> <li> include any question on a job application, inquire orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant&rsquo;s arrest or conviction record until <strong><em>after</em></strong> the applicant has participated in an in-person or video interview or received a conditional offer of employment;</li> <li> use, distribute, or disseminate an individual&rsquo;s arrest or conviction record except as required by law;</li> <li> disqualify an individual solely because of a prior arrest or conviction <strong><em>unless</em></strong> the conviction is related to significant duties of the job or disqualification is otherwise allowed by this chapter; or</li> <li> reject or disqualify an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position (&ldquo;otherwise qualified&rdquo; means the applicant meets certain criteria for the position as set out in the job advertisement or description without considering the existence or absence of a conviction or arrest record).</li> </ul> <p> The ordinance makes it clear that it is not intended to prohibit an employer from inquiring into or obtaining information about an applicant&rsquo;s criminal conviction or arrest record or background, and from considering the information regarding such information, after the conclusion of a job interview, and from using such information in any pre-hire decision.&nbsp; The ordinance also states that it is not intended to prohibit an employer from &ldquo;declining to hire an applicant with a criminal record or from terminating the employment of an employee with a criminal record.&rdquo;&nbsp; Employers also are not required to provide any accommodations or job modifications in order to facilitate the employment or continued employment of individuals with an arrest or conviction record or who are facing pending criminal charges.</p> <p> <strong>Enforcement and Remedies </strong></p> <p> A violation of the ordinance is a class one civil infraction in the amount of $261. The City may double the infraction for any subsequent violations.</p> <p> <strong>Recommendations for Employers</strong></p> <p> Now more than ever, it is advisable for employers that use criminal history in pre-hire and other employment decisions to take steps to ensure compliance with the ban-the-box laws sweeping the nation.&nbsp; Moreover, given the onslaught of class litigation against employers alleging violations of the Fair Credit Reporting Act, employers should continue to be mindful of their obligations under that federal statute and state fair credit reporting laws when using criminal background reports provided by third-party background screening companies.</p> http://www.seyfarth.com:80/publications/WH121117 Interns Flunk the Class http://www.seyfarth.com:80/publications/WH121117 Mon, 11 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Second Circuit has upheld summary judgment against magazine interns seeking payment as &ldquo;employees&rdquo; under the FLSA.<br /> <br /> <a href="https://www.wagehourlitigation.com/misclassification/interns-flunk-the-class/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP121117 Google It: Pay Equity Class Action Complaint Dismissed http://www.seyfarth.com:80/publications/CP121117 Mon, 11 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In the first case of its kind under the California Fair Pay Act, a court dismissed a pay equity class claim against Google, holding that alleging wage discrimination for &ldquo;all women&rdquo; does not plead enough information to sustain a complaint.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/12/11/google-it-pay-equity-class-action-complaint-dismissed/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO121117 No Longer the Stuff of Science Fiction: The FDA’s New Policy Approach to Regenerative Medicine Products http://www.seyfarth.com:80/publications/BIO121117 Mon, 11 Dec 2017 00:00:00 -0500 <p> The ability to facilitate the regeneration of parts of the human body is &ldquo;no longer the stuff of science fiction&rdquo; according to FDA Commissioner Scott Gottlieb.[i] According to Commissioner Gottlieb, the cell based therapies and their use in regenerative medicine is one of the most promising fields of science already producing &ldquo;improbable advances.&rdquo; At the current early stages of development, deceptive claims from unscrupulous actors risks &ldquo;jeopardizing the legitimacy and advancement of the entire field.&rdquo; In order to curb such deception while simultaneously providing a clear and efficient path for product developers, the FDA has recently published a suite of four new guidance documents related to their regenerative medicine policy framework.<br /> <br /> <a href="https://www.bioloquitur.com/no-longer-stuff-science-fiction-fdas-new-policy-approach-regenerative-medicine-products/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/meerlaw360121017 Jon Meer recognized in Law360, "Law360 MVP Awards Go To Top Attorneys From 78 Firms” http://www.seyfarth.com:80/news/meerlaw360121017 Sun, 10 Dec 2017 00:00:00 -0500 <p> Jon Meer was recognized by Law360 in a December 10 story regarding the publication&rsquo;s &ldquo;MVP Awards&rdquo; for employment. Notably, in the &ldquo;Employment MVP&rdquo; class, Jon is 1 of only 5 honorees.</p> http://www.seyfarth.com:80/news/meerfootwear120817 Jon Meer quoted in Footwear News http://www.seyfarth.com:80/news/meerfootwear120817 Fri, 08 Dec 2017 00:00:00 -0500 <p> Jon Meer was quoted in a December 8 story from Footwear News, &quot;Employee Bag Checks: The Hidden Issue Taking Aim at Retailers This Holiday Season.&quot; Meer said that employee bag check litigation is very prevalent, especially here in California, and that every big national retailer has been hit with one. You can read the <a href="http://footwearnews.com/2017/business/retail/retail-workers-lawsuit-employee-bag-checks-holiday-season-465968/">full story here</a>.</p> http://www.seyfarth.com:80/publications/TRMA120817 Tax Reform Passes the Next Hurdle -- The Senate http://www.seyfarth.com:80/publications/TRMA120817 Fri, 08 Dec 2017 00:00:00 -0500 <div> <div> <em>This is the second issue in a planned series of alerts for employers on selected topics on tax reform. The series of Tax Reform Management Alerts is designed to provide an in-depth analysis of executive compensation and employee benefits aspects of the tax reform proposals and how they will impact your business.&nbsp;</em></div> <div> &nbsp;</div> <div> After much last minute wrangling, Senator Mitch McConnell finally had the votes needed to pass tax reform in the Senate.&nbsp; Using a heavily hand-marked version, in the early hours of December 2, 2017, the Senate passed its Tax Cuts and Jobs Act (the &ldquo;Senate Bill&rdquo;) by the narrowest of margins with a vote of 51 to 49.&nbsp;</div> <div> &nbsp;</div> <div> There were very few changes from the Senate Finance Committee proposal, as modified (the &ldquo;Senate Proposal&rdquo;), which were reported on in our last <a href="http://www.seyfarth.com/publications/trma112117">Alert</a>. As a result, the Senate Bill, as passed, still retains several significant provisions that make important changes affecting executive compensation and employee benefits generally.&nbsp;</div> </div> <div> &nbsp;</div> <h2> What Happens Next?&nbsp;</h2> <div> &nbsp;</div> <div> <div> Now that both the House and Senate have passed their respective bills, both bills head to Conference to reconcile the differences. Congressional leaders have promised a reconciled bill to be on the President&rsquo;s desk for signature by Christmas.</div> <div> &nbsp;</div> <div> The following table updates the prior summary by providing the highlights of the Senate Bill, as passed, as compared to the current version of the House Bill.</div> </div> <h3> &nbsp;</h3> <h3> Executive Compensation</h3> <div> &nbsp;</div> <div> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;" valign="top"> <tbody> <tr> <td style="width: 100px;"> <strong>ISSUE</strong></td> <td style="width: 250px;"> <strong>HOUSE BILL, AS PASSED</strong></td> <td style="width: 250px;"> <strong>SENATE BILL, AS PASSED</strong></td> </tr> <tr> <td style="vertical-align: top;"> Right to Defer Stock (Private Companies)</td> <td> <div> Effective for stock attributable to options exercised or RSUs settled after&nbsp;</div> <div> December 31, 2017</div> <ul> <li> Right to defer income on stock received in connection with an option exercise or RSU settlement if an employee, who is not an &ldquo;excluded employee,&rdquo;<sup>1</sup> makes an election no later than 30 days after the first time the right to the stock is substantially vested or transferable (whichever is earlier);<sup>2</sup> right is limited and will not apply to public corporations</li> <li> Clarifies that Section 83 does not apply to restricted stock units</li> </ul> </td> <td style="vertical-align: top;"> Same</td> </tr> <tr> <td style="vertical-align: top;"> <div> Section 162(m)&nbsp;</div> <div> $1 million Deductibility Limit</div> </td> <td> <div> Effective tax years beginning after 2017 with no grandfather or transition period</div> <ul> <li> Eliminates the performance based compensation and commission exceptions, further limiting compensation that can be deducted&nbsp;</li> <li> Includes principal financial officer as &ldquo;covered employee,&rdquo; realigning definition with the SEC disclosure rules</li> <li> Once an employee becomes a covered employee after 2016, he or she stays one, including if amounts are paid to a beneficiary</li> </ul> </td> <td style="vertical-align: top;"> <p> Effective tax years beginning after 2017 with limited grandfather</p> <ul> <li> Same</li> <li> Same</li> <li> Same</li> <li> Same</li> </ul> </td> </tr> <tr> <td style="vertical-align: top;"> New Tax on Excess Compensation Paid by Not-for-Profits</td> <td> <div> Beginning 2018, a new tax is imposed on excess compensation paid by a tax exempt employer:</div> <ul> <li> Tax equals 20% of compensation paid to a covered employee over $1,000,000, plus excess parachute payments</li> <li> The employer is liable for the tax</li> <li> Covered employees are the 5 highest compensated employees; once an employee becomes a covered employee after 2016, he or she stays one</li> <li> Excess parachute payments are payments contingent on termination of employment that exceed 3 times the employee&rsquo;s average annualized base compensation (a change in control Is not required for this purpose)</li> </ul> </td> <td style="vertical-align: top;"> Same, except compensation is treated as paid, and therefore subject to the excise tax, when no longer subject to a substantial risk of forfeiture</td> </tr> <tr> <td colspan="3" style="text-align: center;"> <strong>FRINGE BENEFITS</strong></td> </tr> <tr> <td style="vertical-align: top;"> Repeal of Deduction for Common Executive Perks</td> <td> Eliminate employer deduction for entertainment expenses, membership dues and other common perquisites, unless the individual pays tax on these benefits, effective for expenses incurred after 2017</td> <td style="vertical-align: top;"> More limited changes to current law</td> </tr> <tr> <td style="vertical-align: top;"> Employer-Provided Housing</td> <td> Beginning in 2018, the exclusion for housing under IRC 119 will be limited to $50,000 ($25,000 for a married individual filing a joint return) and will phase out for highly compensated individuals</td> <td style="vertical-align: top;"> No change to current law</td> </tr> <tr> <td style="vertical-align: top;"> Moving Expenses</td> <td> Eliminate employer deduction for moving expenses incurred after 2017 and the exclusion from income for qualifying moving expense reimbursements made after 2017</td> <td style="vertical-align: top;"> Same, except deduction and exclusion will remain for certain members of the armed forces on active duty (provision sunsets after 2025)</td> </tr> </tbody> </table> <div> &nbsp;</div> <div> <span style="font-size:10px;">1. Generally, an excluded employee is (1) the CEO, CFO (or individual acting in either capacity), (2) family member of CEO or CFO, (3) an employee who has been one of the four highest compensated officers for the corporation for any of the 10 preceding taxable years, or (4) a 1% owner of the corporation at any time during the 10 preceding taxable years.</span></div> <div> &nbsp;</div> <div> <span style="font-size:10px;">2. If deferred, the deferred income is taxed upon the earliest of (1) the first date the qualified stock becomes transferable, including to the employer, (2) the date the employee first becomes an excluded employee, (3) the date the stock becomes readily tradeable on an established securities market, (4) the date five years after the first date the employee&rsquo;s right to the stock becomes transferable or is not subject to a substantial risk of forfeiture, whichever is earlier (the Senate version simply provides the date that is five years after the first date the right to the stock becomes substantially vested), or (5) the date the employee revokes the deferral election.</span></div> </div> <p> &nbsp;</p> <h3> Welfare</h3> <p> &nbsp;</p> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <tbody> <tr> <td style="width: 100px;"> <strong>ISSUE</strong></td> <td style="width: 250px;"> <strong>HOUSE BILL, AS PASSED</strong></td> <td style="width: 250px;"> <strong>SENATE PROPOSAL</strong></td> </tr> <tr> <td> Individual Mandate</td> <td> No change to current law</td> <td> Reduces penalty for individual mandate to $0, beginning in 2019</td> </tr> <tr> <td> Medical expense deduction (individuals may deduct unreimbursed medical expenses that exceed 10% of AGI)</td> <td> Repeals deduction entirely</td> <td> No change to current law</td> </tr> <tr> <td> Archer Medicals Savings Accounts (MSAs)</td> <td> Eliminates deduction for contributions to Archer MSAs but permits rollover to Health Savings Accounts (HSAs)</td> <td> No change to current law</td> </tr> <tr> <td> Qualified Transportation Fringe Benefit</td> <td> Eliminates deductions for transportation fringe benefit</td> <td> Eliminates deductions for transportation fringe benefit.</td> </tr> <tr> <td> Qualified Bicycle Reimbursement</td> <td> No change to current law</td> <td> Repeals qualified bicycle exclusion (provision sunsets after 2025)</td> </tr> <tr> <td> Dependent Care Assistance Programs</td> <td> Exclusion repealed beginning in 2023</td> <td> No change to current law</td> </tr> <tr> <td> Adoption Assistance Program</td> <td> Exclusion repealed beginning in 2018</td> <td> No change to current law</td> </tr> <tr> <td> Educational Assistance</td> <td> Repeals tax exclusion under Code Section 127 (but not under Code Section 132(d)) for certain employer reimbursements of education-related expenses</td> <td> No change to current law</td> </tr> </tbody> </table> <p> &nbsp;</p> <h3> Retirement</h3> <p> &nbsp;</p> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <tbody> <tr> <td style="width: 100px;"> <strong>ISSUE</strong></td> <td style="width: 250px;"> <ul> <li> <strong>HOUSE BILL, AS PASSED</strong></li> </ul> </td> <td style="width: 250px;"> <strong>SENATE PROPOSAL</strong></td> </tr> <tr> <td> Hardship Withdrawals</td> <td> <ul> <li> Deletes the six month suspension requirement for elective deferrals following a hardship distribution</li> <li> Increases the plan assets from which a participant can take a hardship distribution to include earnings and employer QNEC and QMAC contributions in addition to employee contributions&nbsp;</li> <li> Provides that a participant can take a hardship before requesting a loan from the plan</li> </ul> </td> <td> <ul> <li> No change to current law</li> <li> Same</li> <li> Same</li> </ul> </td> </tr> <tr> <td> Deferral Limits</td> <td> No change to current law</td> <td> <ul> <li> Senate Proposal combined governmental 457(b) deferrals of the same employer with 401(k) or 403(b) deferrals for purposes of annual limit</li> <li> Senate Bill deleted provision; no change to current law as a result</li> </ul> </td> </tr> <tr> <td> 415 Contribution Limits</td> <td> No change to current law</td> <td> <ul> <li> Senate Proposal reduced the maximum aggregate contributions for individuals that are eligible for more than one plan (401(k), 403(b) and/or governmental 457(b)) of the same employer</li> <li> Senate Bill deleted provision; no change to current law as a result</li> </ul> </td> </tr> <tr> <td> Loans</td> <td> Following a plan termination or separation from service, allows participants to rollover a qualified plan loan offset amount to an eligible retirement plan by the due date (including extensions) of the participant&rsquo;s federal income tax return for the year in which the offset occurs, thereby avoiding taxation on the offset amount</td> <td> Same</td> </tr> <tr> <td> Post-termination contributions</td> <td> No change to current law</td> <td> <ul> <li> Senate Proposal eliminated special rule allowing employer contributions to governmental 403(b) plans for up to five years after termination of employment</li> <li> Senate Bill deleted provision; no change to current law as a result</li> </ul> </td> </tr> <tr> <td> Catch-Ups Contributions</td> <td> No change to current law</td> <td> Eliminates special 403(b) and governmental 457(b) catch-up contributions; retains the general catch-up limit</td> </tr> <tr> <td> In-Service Distributions</td> <td> Age for in-service distributions from governmental plans lowered to earlier of normal retirement date or age 59 1/2&nbsp;</td> <td> No change to current law</td> </tr> <tr> <td> Frozen DB Plans</td> <td> Frozen pension plans allowed to protect grandfathered benefits as long as grandfathered group not modified in a discriminatory manner after plan is closed to new hires</td> <td> No change to current law</td> </tr> </tbody> </table> <p> &nbsp;</p> <div> Seyfarth Shaw will continue to monitor Congressional and regulatory efforts and will alert clients as new developments occur.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/LR120817 Email Systems: GC Memorandum 18-02 Signals that the Trump Board May Review the Controversial Obama Board Changes Allowing Employees to Use Employer’s Email Systems for Protected, Concerted Activities http://www.seyfarth.com:80/publications/LR120817 Fri, 08 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/08/email-systems-gc-memorandum-18-02-signals-that-the-trump-board-may-review-the-controversial-obama-board-changes-allowing-employees-to-use-employers-email-systems-for-protected-concerted-activities/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC120817 Court Refuses To Release Correctional Facility Employer From Age Discrimination Suit, But Orders The EEOC To Identify Aggrieved Individuals http://www.seyfarth.com:80/publications/WC120817 Fri, 08 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In an ADEA action brought by the EEOC alleging that the New Mexico Department of Corrections failed to promote correctional officers over the age of 40, a federal district court in New Mexico denied the employer&rsquo;s motion to dismiss but ordered the EEOC to file a supplemental pleading identifying previously unnamed aggrieved parties.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/12/court-refuses-to-release-correctional-facility-employer-from-age-discrimination-suit-but-orders-the-eeoc-to-identify-aggrieved-individuals/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP120817 Be Fore-WARNed: California Really Is Peculiar http://www.seyfarth.com:80/publications/CP120817 Fri, 08 Dec 2017 00:00:00 -0500 <p> Seyfarth synopsis: Companies contemplating a mass layoff must comply with the federal Worker Adjustment and Retraining Notification Act. In California, alas, companies must also consider the even more stringent requirements of California&rsquo;s own WARN act. That is the harsh lesson recently imparted by the California Court of Appeal in Boilermakers v. NASSCO Holdings Inc.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/12/08/be-fore-warned-california-really-is-peculiar/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC120817a The 2017 Judicial Hellholes Report Is Out And Makes For An Interesting Read http://www.seyfarth.com:80/publications/WC120817a Fri, 08 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Each year the American Tort Reform Association (&ldquo;ATRA&rdquo;) publishes its &ldquo;Judicial Hellholes Report&rdquo; that focuses on litigation problems in state court systems and challenges for corporate defendants in the fair and unbiased administration of justice. The ATRA&rsquo;s 2017 Report was recently published; a copy is here, as well as an executive summary here.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/12/the-2017-judicial-hellholes-report-is-out-and-makes-for-an-interesting-read/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA120817-LE If Pain, Yes Gain—Part XL: Arizona Publishes Final Sick Leave Rules http://www.seyfarth.com:80/publications/MA120817-LE Fri, 08 Dec 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> More than several months after the Arizona Fair Wages and Healthy Families Act went into effect, the state published its long-awaited paid sick time final rules. The final rules, among other things, explain how employers should handle unused sick time at year-end and the Act&rsquo;s notice and posting requirements.</em></p> <p> The Industrial Commission of Arizona (the &ldquo;Commission&rdquo;) published the Notice of Final Rulemaking (the &ldquo;final rules&rdquo;) for the Fair Wages and Healthy Families Act (the &ldquo;Act&rdquo;). The Act, which went into effect on July 1, 2017, provides eligible Arizona employees with paid sick time benefits.&nbsp; After months of anticipation and as explained below, the final rules bring clarity to a number of gray areas in the Act.&nbsp; &nbsp;&nbsp;</p> <p> The final rules represent the third iteration of the Commission&rsquo;s sick time rules. After releasing its <a href="http://www.seyfarth.com/publications/MA051017-LE2">proposed rulemaking</a> in May 2017, the Commission made significant substantive changes to employers&rsquo; would-be sick time obligations in its <a href="http://www.seyfarth.com/publications/MA062917-LE2">Notice of Supplemental Proposed Rulemaking</a>, which was released in late-June 2017.&nbsp; The final rules are largely consistent with the state&rsquo;s paid sick time supplemental proposed rulemaking. Here are the highlights:</p> <ul> <li> <strong><em>Equivalent Paid Time Off:</em></strong> The final rules include the phrase &ldquo;equivalent paid time off&rdquo; (defined below) when referencing earned paid sick time. This is helpful for employers seeking to use their current paid time off or other paid leave policies for Arizona sick leave compliance.</li> <li> <strong><em>Definitions: </em></strong>The final rules also contain the following definitions: <ul> <li> &ldquo;Amount of earned paid sick time available to the employee&rdquo; means the amount of earned paid sick time or equivalent paid time off that is available to the employee for use in the current year. &nbsp;This definition, along with the three that immediately follow, will assist employers in meeting the Act&rsquo;s burdensome paystub notice requirements.</li> <li> &ldquo;Amount of earned paid sick time taken by the employee to date in the year&rdquo; means the amount of earned paid sick time or equivalent paid time off taken by the employee to date in the current year.</li> <li> &ldquo;Amount of pay the employee has received as earned paid sick time&rdquo; means the amount of pay the employee has received as earned paid sick time or equivalent paid time off to date in the current year.</li> <li> &ldquo;Employee&rsquo;s regular paycheck&rdquo; is defined as a regular payroll record that is readily available to employees and contains the information set forth in the Act&rsquo;s paystub notice requirements.&nbsp; The final rules expressly state that physical or electronic paychecks or paystubs are permitted.</li> <li> &middot;&ldquo;Equivalent paid time off&rdquo; &ldquo;means paid time off provided under a paid leave policy, such as a PTO policy, that makes available an amount of paid leave sufficient to meet the accrual requirements of the Act that may be used for the same purposes and under the same conditions as earned paid sick time.&rdquo;</li> <li> &ldquo;Heath care professional&rdquo; means a physician, physician assistant, registered nurse practitioner, certified nurse midwife who is a registered nurse practitioner, licensed dentist, or a behavioral health provider practicing as a psychologist, clinical social worker, family therapist, or professional counselor.</li> <li> &nbsp;&ldquo;Smallest increment that the employer&rsquo;s payroll system uses to account for absences or use of other time&rdquo; means the smallest increment of time that an employer utilizes, either by policy or practice, to account for employees&rsquo; absences or use of other paid time off.&nbsp; This clarification will aid employers in determining what minimum increment of use they must set in order to satisfy the Act.</li> <li> Same Hourly Rate: The final rules also amend and reorganize the definition of &ldquo;same hourly rate&rdquo; by: (1) modifying the methods for determining &ldquo;same hourly rate&rdquo; to result in hourly rates, not lump sums; (2) referencing minimum wage in each method of determining &ldquo;same hourly rate&rdquo;; (3) amending the method for determining &ldquo;same hourly rate&rdquo; for salaried employees; (4) modifying and adding an option for determining &ldquo;same hourly rate&rdquo; for commission, piece-rate, or fee-for-service employees; and (5) adding language clarifying that &ldquo;same hourly rate&rdquo; does not include bonuses, tips, gifts, or certain other types of incentive pay, but does include shift differentials and premiums meant to compensate an employee for work performed under differing conditions. The final rules also provide guidance on determining the &ldquo;same hourly rate&rdquo; for employees who are paid multiple hourly rates when they use sick time.</li> </ul> </li> <li> <strong><em>Frontloading:</em></strong> Section R20-5-1206&rsquo;s of the final rules references the ability to &ldquo;front load&rdquo; earned paid sick time, and includes subsections F, G, H, and I to address procedures for front loading earned paid sick time and the effect of front loading on accrual and carry over requirements. The final rules also address: (1) an employer&rsquo;s carry over obligations; (2) an employer&rsquo;s ability to permit greater carry over than that required by the Act; and (3) the impact of carry over on accrual, usage rights, and usage limits. <ul> <li> Subsection F: This subsection notably states that an employer can prorate the amount of paid sick time it provides to new hires. Specifically, an employer is not required to provide employees with additional earned paid sick time during the year in which the employee was hired if the employer provides the employee for immediate use by his or her 90th day of employment an amount of earned paid sick time that meets or exceeds the employer&rsquo;s reasonable projection of how much paid sick time the employee would have accrued from the date of hire through the end of the employer&rsquo;s benefit year at a rate of one hour for every 30 hours worked. If the employer&rsquo;s projection is too low, it must provide the employee with the difference between the projection and the actual amount of sick time the employee would have earned.</li> <li> Subsections G, H, and I: The combination of these three subsections is the most interesting and noteworthy aspect of the final rules. Subsections G and H state that an employer with 15 or more employees that frontloads its workers at least 40 hours of paid sick time at the start of each year or an employer with fewer than 15 employees that frontloads at least 24 hours of paid sick time at the start of each year is not required to provide carryover or additional accrual. Significantly, Subsection I then states that &ldquo;unless an employer: (1) elects to pay an employee for unused earned paid sick time or equivalent paid time off at the end of a year pursuant to A.R.S. &sect; 23-372(D)(4); or (2) meets the requirements of subsections (G) or (H), [as set forth above,] unused earned paid sick time and equivalent paid time off may be carried over to the next year&hellip;&rdquo;&nbsp; Based on this language, it appears that if an employer frontloads its employees with 40 hours of paid sick time at the start of each benefit year, it does not have to either allow year-end carryover or cash out unused sick time at year end. <ul> <li> While the above frontloading provision could be read as inconsistent with the Act&rsquo;s provision on year-end carryover, see our earlier <a href="http://www.seyfarth.com/publications/MA110816-LE2">client alert on Arizona paid sick time</a> for more information, because the Commission is tasked with enforcing the Act, and the updated frontloading language was proposed by the Commission itself, employers likely can take advantage of the language in practice barring any future contrary judicial interpretations or administrative guidance.</li> </ul> </li> </ul> </li> <li> <strong><em>Recordkeeping:</em></strong> The final rules make several updates to employers&rsquo; recordkeeping requirements, including adding a requirement to maintain records concerning employees&rsquo; earned paid sick time balances. The final rules state that employers also should retain records of: (1) the amount of earned paid sick time available to the employee; (2) the amount of earned paid sick time taken by the employee to date in the year, (3) the amount of pay the employee has received as earned paid sick time, and (4) the employee&rsquo;s earned paid sick time balance.&nbsp; &ldquo;The employee&rsquo;s earned paid sick time balance&rdquo; means the sum of earned paid sick time that is: (1) carried over to the current year; (2) accrued to date in the current year; and (3) provided to date in the current year.</li> <li> <strong><em>Posting Requirement:</em></strong> The final rules make an exception to the Act&rsquo;s posting requirements for businesses deemed to be &ldquo;small employers.&rdquo;&nbsp; The final rules state that <em>with the exception of small employers</em>, every employer must place the posters prescribed by the Department in a conspicuous place in every establishment where employees are employed and where notices to employees are customarily placed.&nbsp; The final rules define a &ldquo;small employer&rdquo; as a corporation, proprietorship, partnership, joint venture, limited liability company, trust, or association that has less than $500,000 in gross annual revenue.</li> </ul> <p> Now that Arizona&rsquo;s paid sick time final rules are published and in effect, employers should take steps to ensure that their paid sick time policies and practices comply with both the Act and final rules.</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> http://www.seyfarth.com:80/publications/TBT120717 The Week in Weed: December 8, 2017 http://www.seyfarth.com:80/publications/TBT120717 Thu, 07 Dec 2017 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/12/the-week-in-weed-december-8-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA120717-LE U.S. Supreme Court Hears Oral Argument in Key Case on LGBT Rights and Religious Liberty http://www.seyfarth.com:80/publications/MA120717-LE Thu, 07 Dec 2017 00:00:00 -0500 <p class="BodySingle"> <b><i>Seyfarth Synopsis</i>:&nbsp;</b>Oral argument suggests the Supreme Court is narrowly divided on how to reconcile non-discrimination protections for LGBT individuals with claims for religious liberty, with Justice Kennedy appearing likely to cast the decisive vote. <o:p></o:p></p> <p class="BodySingle"> On December 5, 2017, the United States Supreme Court heard oral arguments in <i>Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission</i>, No. 16-111.&nbsp; The question presented was &ldquo;Whether applying Colorado&rsquo;s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.&rdquo;&nbsp; <o:p></o:p></p> <p class="BodySingle"> The case involves Jack Phillips, the owner of Masterpiece Cakeshop in Colorado, who refused to bake a custom wedding cake for a same-sex couple.&nbsp; The owner asserted that the First Amendment rights to freedom of speech and religious liberty protected his refusal to make custom cakes for same-sex couples.&nbsp; Based on his refusal, he was ultimately found to have violated Colorado&rsquo;s Anti-Discrimination Act, and the Supreme Court ultimately took up the case.<o:p></o:p></p> <p class="BodySingle"> At oral argument, the baker&rsquo;s attorney argued that the government cannot force a person &ldquo;to express messages that violate religious convictions&rdquo; and that requiring the bakery owner to &ldquo;sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions&rdquo; would violate those rights.&nbsp; <o:p></o:p></p> <p class="BodySingle"> Conversely, counsel for Colorado argued that the bakery, as a commercial enterprise holding itself open to the public, cannot invoke religious beliefs to avoid application of a generally applicable anti-discrimination law, which &ldquo;extended to LGBT people the same protections used to fight discrimination against race, sex and persons of faith.&rdquo; <o:p></o:p></p> <p class="BodySingle"> At the spirited oral argument, Justice Ginsburg and Justice Kagan pressed the baker&rsquo;s counsel to explain where the line could be drawn:&nbsp; after admitting that it would not be compulsion of speech to require a baker to sell a pre-made cake, but suggesting that a custom cake is protected speech, the Justices asked whether florists, jewelers, and hairstylists also could claim First Amendment protections to refuse service to customers.&nbsp; Justice Sotomayor also expressed concern that a rule where expressive speech trumps public accommodation laws against discrimination could have an impact on race discrimination and other civil rights laws.&nbsp; <o:p></o:p></p> <p class="BodySingle"> However, Justice Kennedy &mdash; &nbsp;historically a champion for LGBT rights &mdash; &nbsp;challenged Colorado&rsquo;s position.&nbsp; He pressed counsel for Colorado on whether the application of the anti-discrimination law in this case expressed impermissible hostility to religious views.&nbsp; Justice Kennedy later stated: &ldquo;[T]olerance is essential in a free society. And is most meaningful when it&rsquo;s mutual.&nbsp; It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips&rsquo; religious beliefs.&rdquo;&nbsp;&nbsp;&nbsp; <o:p></o:p></p> <p class="BodySingle"> Justice Gorsuch suggested that the requirements of the anti-discrimination law amounted to compelled speech.&nbsp; He also asked whether a baker would have to serve a customer who wants a red cross to celebrate the Red Cross, but also provide the same red cross to someone who wishes to celebrate the KKK.<o:p></o:p></p> <p class="BodySingle"> At the close or oral argument, Justice Sotomayor noted the importance of public accommodations law in changing discriminatory views and promoting an inclusive society: &ldquo;[T]he problem is that America&rsquo;s reaction to mixed marriages and to race didn&rsquo;t change on its own.&nbsp; It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.&nbsp; It&rsquo;s not denigrating someone by saying. . . : If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not.&nbsp; You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.&rdquo;&nbsp;&nbsp; <o:p></o:p></p> <p class="BodySingle"> A decision in <i>Masterpiece Cakeshop</i> may have significant impact on the status of LGBTQ+ employees.&nbsp; While the case does not address employment nor revolve around employment law, the ruling will serve as a touchstone for the reach of religious liberty claims. A ruling for the bakery would likely lead to a slew of case filings testing the landscape between religious liberty and principles of non-discrimination.&nbsp; Justice Ginsburg warned of such an eventuality in her 35-page dissent in <i>Burwell v. Hobby Lobby Stores, Inc.</i>, 134 S. Ct. 2751 (2014). Specifically, she noted that by extending religious rights to businesses the Court had &ldquo;ventured into a minefield.&rdquo;&nbsp; She asked,&nbsp; &ldquo;Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah&rsquo;s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?&rdquo;<o:p></o:p></p> <p class="BodySingle"> A victory for the bakery<i> </i>would strengthen the argument that religious beliefs trump notions of non-discrimination and allow disparate treatment of individuals (customers or employees) based on their LGBTQ+ status (and potentially another form of legally protected statuses). Such a result would lead to litigation on whether a religious liberty defense in a state with an LGBTQ+ inclusive non-discrimination law protect an employer&rsquo;s termination of a gay employee on the basis of that employee marrying his same-sex spouse or from providing transition related medical services to a transgender employee or spousal benefits to a same sex spouse.<o:p></o:p></p> <p class="BodySingle"> A ruling for the bakery, would impact workplace dynamics and likely lead to an increase in LGBTQ+ discrimination. Pending a decision from the Supreme Court, employers are wise to consider how their policies, practices, and procedures impact their LGBT employees.&nbsp; Employers who wish to implement LGBTQ+ inclusive policies and practices must set forth their expectation of inclusion and protection of the rights of LGBT employees. <o:p></o:p></p> <p class="BodySingle"> As always, we invite employers to reach out to their Seyfarth contact for solutions and recommendations regarding anti-harassment and EEO policies and addressing compliance with LGBTQ+ issues in the law.<o:p></o:p></p> http://www.seyfarth.com:80/publications/EL120717 Will the “Spirits” of the Holiday Haunt You? (Not Just Your Obligatory “Holiday Party” Blog Post) http://www.seyfarth.com:80/publications/EL120717 Thu, 07 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Over the next few weeks, we&rsquo;re going to weigh in on the growing national debate around the recent wave of sexual harassment allegations. To date, no one seems immune from the allegations: celebrities, politicians, presidents. See for instance Time Magazine&rsquo;s Person of the Year 2017 issue. We hope this dialogue will empower employees and employers, alike, to speak up before inappropriate, but previously unmentioned conduct, festers. This conversation also creates an opportunity for a company to look hard at its corporate culture and how it can strive to make it welcoming and inclusive. Welcome to our three part series.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/12/will-the-spirits-of-the-holiday-haunt-you-not-just-your-obligatory-holiday-party-blog-post/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR120717 Work Stoppages: GC Memorandum 18-02 Signals the “Trump Board” Will Have the Opportunity to Review Controversial Changes With Respect to Work Stoppages http://www.seyfarth.com:80/publications/LR120717 Thu, 07 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo setting forth a wide range of issues that must be submitted to Advice before Complaints will be authorized. Generally these issues involve areas of the law where the &ldquo;Obama Board&rdquo; issued decisions departing from previously established precedent. The memo strongly suggests that instead of declining to exercise prosecutorial discretion not to issue Complaints where the General Counsel disagrees with the legal principles announced in these decisions, he intends to given the newly constituted Board the opportunity to assess these legal principles as the opportunity arises. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Today&rsquo;s blog looks at controversial changes with respect to work stoppages. Click here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/07/work-stoppages-gc-memorandum-18-02-signals-the-trump-board-will-have-the-opportunity-to-review-controversial-changes-with-respect-to-work-stoppages/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC120717 Ouch: EEOC Gets Summary Judgment Win Relative To Employer’s Medical Testing http://www.seyfarth.com:80/publications/WC120717 Thu, 07 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In an ADA action alleging that a maker of train components discriminated against a group of applicants by regarding them as disabled, a federal district court in Illinois granted the EEOC&rsquo;s partial motion for summary judgment, holding that the company&rsquo;s decision to deny them work was based on improper tests concerning prospective injuries.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/12/ouch-eeoc-gets-summary-judgment-win-relative-to-employers-medical-testing/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS120717 2017 Trade Secrets Webinar Series Year in Review http://www.seyfarth.com:80/publications/TS120717 Thu, 07 Dec 2017 00:00:00 -0500 <p> Throughout 2017, Seyfarth Shaw&rsquo;s dedicated Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group hosted a series of CLE webinars that addressed significant issues facing clients today in this important and ever-changing area of law. The series consisted of six webinars:<br /> <br /> <a href="https://www.tradesecretslaw.com/2017/12/articles/trade-secrets/2017-trade-secrets-webinar-series-year-in-review/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH120717 SLOW DOWN Congress: You Are About to Render the FAA Inapplicable to Employment Disputes (and Class Waivers), and You Probably Don’t Realize It http://www.seyfarth.com:80/publications/WH120717 Thu, 07 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Pending bi-partisan legislation aimed at preventing employers from enforcing arbitration agreements of sexual harassment claims might make employers unable to enforce arbitration agreements, and class waivers included in them, as to any employment claim.<br /> <br /> <a href="https://www.wagehourlitigation.com/arbitration-agreements/slow-down-congress-you-are-about-to-render-the-faa-inapplicable-to-employment-disputes-and-class-waivers-and-you-probably-dont-realize-it/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/rhubarb120717 Seyfarth Represents rhubarb on Hudson Yards Restaurant Lease http://www.seyfarth.com:80/news/rhubarb120717 Thu, 07 Dec 2017 00:00:00 -0500 <p> NEW YORK - (December 7, 2017) - Seyfarth Shaw LLP represented rhubarb, a leading British hospitality group, in the signing of a restaurant lease and rooftop management agreement at Hudson Yards in Manhattan, New York City.</p> <p> The rhubarb lease is for 5,800 square feet of restaurant space on the fifth level at The Shops &amp; Restaurants at Hudson Yards and 10,000 square feet of restaurant and event space on the top of 30 Hudson Yards, the tallest tower in the neighborhood. The latter space will encompass the top two levels of the tower which is also home to the highest outdoor observation deck in New York City. rhubarb will operate an indoor-outdoor bar on the observation deck itself. Both venues are expected to open in 2019.</p> <p> Found in 1996, rhubarb creates and delivers premium food and beverage experiences across events and iconic locations. The largest private development in the United States, Hudson Yards comprises more than 18 million square feet of mixed-use development at the southwest corner of 33rd Street and 10th Avenue. Developed by Related Companies and Oxford Properties Group, it will include more than 100 shops and restaurants; approximately 4,000 residences; 14-acres of public open space; a new 750-seat public school and a hotel.</p> <p> The Seyfarth Real Estate team was led by partners Miles Borden and Barry Mandel in New York.</p> http://www.seyfarth.com:80/news/moradybi120617 Ilana Morady quoted in Business Insurance http://www.seyfarth.com:80/news/moradybi120617 Wed, 06 Dec 2017 00:00:00 -0500 <p> Ilana Morady was quoted in a December 6 story from Business Insurance, &quot;Addition of third commissioner should clear safety review backlog,&quot; on how employers and their representatives will be watching how the review commission weighs in on several key issues, including OSHA&rsquo;s use of the general duty clause, which the agency has increasingly relied on to cite employers in the absence of OSHA standards covering particular risks. Morardy said that&rsquo;s really a hot issue right now &mdash; how the general duty clause applies to workplace violence and what employers&rsquo; duties are to protect their patients who might have a history of violence. You can read the <a href="http://www.businessinsurance.com/article/20171206/NEWS08/912317748/Occupational-Safety-and-Health-Review-Commission-James-Sullivan-clear-backlog">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc120617 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbc120617 Wed, 06 Dec 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed December 6th on the CBC News Network, &quot;Are Trump&#39;s tweets official documents?&quot; Boutros discussed the U.S. president&#39;s tweets, including the Flynn firing tweet that his lawyer alleges he wrote. You can watch the <a href="http://www.cbc.ca/player/play/1110848068001">full interview here</a>.</p> http://www.seyfarth.com:80/news/wongiba120617 Raymond Wong quoted in the International Bar Association http://www.seyfarth.com:80/news/wongiba120617 Wed, 06 Dec 2017 00:00:00 -0500 <p> Raymond Wong was quoted in a December 6 story from the International Bar Association, &quot;Debt concerns prompt greater scrutiny of China&rsquo;s entrepreneurs,&quot; on China&rsquo;s regulatory attitude towards outbound M&amp;A. Wong said that China becoming more cautious is positive from a buyer&rsquo;s perspective as it should create greater market certainty. You can read the <a href="https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=af40bfb8-5bbe-4179-84db-956d35488717">full article here</a>.</p> http://www.seyfarth.com:80/news/hoffmanbna120617 Valerie Hoffman quoted in Bloomberg BNA http://www.seyfarth.com:80/news/hoffmanbna120617 Wed, 06 Dec 2017 00:00:00 -0500 <p> Valerie Hoffman was quoted in a December 6 story from Bloomberg BNA, &quot;Lawmakers Want Harassment Cases Made Public,&quot; on how forced arbitration agreements would be a thing of the past under legislation from a bipartisan group of lawmakers. Hoffman said that the real issue here is that management, including boards of directors, needs to take action to eradicate harassment when they have good evidence that there is a problem.</p> http://www.seyfarth.com:80/publications/OMM120617-LE Short-Term Layoffs Require Advance Notice Under California WARN http://www.seyfarth.com:80/publications/OMM120617-LE Wed, 06 Dec 2017 00:00:00 -0500 <p class="BodySingle"> <b><i>Seyfarth Synopsis:</i></b> <i>Like the Federal WARN Act, California&rsquo;s WARN Act (Cal-WARN) requires employers to notify employees of certain covered layoffs that will affect them. The California Court of Appeal has now confirmed that Cal-WARN requires sixty days&rsquo; notice of a wide range of short-term layoffs (such as furloughs). Failure to provide that notice triggers liability for back pay, lost benefits, medical expenses, civil penalties, and attorneys&rsquo; fees.</i> <b><i><o:p></o:p></i></b></p> <p class="BodySingle"> <b>The Facts<o:p></o:p></b></p> <p class="BodySingle"> In early 2014, NASSCO Holdings, because of a lack of work, needed to temporarily reduce its workforce&mdash;much of it represented by the Boilermakers Union. NASSCO ultimately laid off ninety employees for four to five weeks. During this furlough, employees did not receive wages, did not earn vacation pay, and did not accrue service credit for purposes of pension benefits. NASSCO did not give prior notice of the furlough.&nbsp; <o:p></o:p></p> <p class="BodySingle"> The Boilermakers Union and three individual employees sued NASSCO under Cal-WARN for failing to provide a sixty-day notice of the furlough. The plaintiffs sought back pay and millions of dollars in civil penalties. When the parties cross-filed for summary judgment, the trial court ruled for the plaintiffs, holding that the laid-off employees were entitled to back pay and lost pension benefits, but not to civil penalties. &nbsp;<o:p></o:p></p> <p class="BodySingle"> <b>The Court of Appeal&rsquo;s Decision<o:p></o:p></b></p> <p class="BodySingle"> NASSCO argued that the furlough was not a &ldquo;separation from a position&rdquo; that would trigger Cal-WARN&rsquo;s sixty-day notice obligation. The Court of Appeal disagreed. Looking to the plain meaning of &ldquo;separation,&rdquo; the Court of Appeal noted that separation could be &ldquo;an action of moving apart&rdquo; that need not be either &ldquo;permanent&rdquo; or &ldquo;temporary.&rdquo; Thus, being &ldquo;separated <i>from a position</i>&rdquo; does not mean that the employment relationship must entirely end. Instead, under Cal-WARN, a triggering separation &ldquo;encompasses a temporary job loss, even if some form of the employment relationship continues and the employees are given a return date.&rdquo;<o:p></o:p></p> <p class="BodySingle"> The Court of Appeal was not willing to specify how long a furlough need be to constitute a &ldquo;separation&rdquo; that would trigger Cal-WARN. Rather, the Court of Appeal advised more generally that Cal-WARN applies to temporary layoffs &ldquo;where advance notice would provide the workers time to plan and prepare for their sudden wage loss,&rdquo; even if workers subject to a temporary layoff would not need training for a new job. In reaching this conclusion, the Court of Appeal underscored the California Legislature&rsquo;s &ldquo;judgment that California employers, not California employees, should bear the risk of surprise resulting from an unexpected layoff,&rdquo; and that Cal-WARN is a remedial statute akin to &ldquo;a wage workers&rsquo; equivalent of business interruption insurance.&rdquo; In so holding, the Court of Appeal dismissed the employer&rsquo;s argument that pointed to language in the statute deeming employers &ldquo;liable to each employee entitled to notice who lost his or her employment.&rdquo; It concluded that this language does not actually trigger liability or affect the definition of &ldquo;mass layoff,&rdquo; which is defined elsewhere in the statute. While the Court of Appeal indicated that the <i>de minimis</i> doctrine would keep extremely short furloughs from triggering Cal-WARN, the Court of Appeal did not specify a threshold.<o:p></o:p></p> <p class="BodySingle"> <b>What <i>NASSCO</i> Means for Employers <o:p></o:p></b></p> <p class="BodySingle"> As an initial consideration, not every workforce reduction or temporary layoff is covered by Cal-WARN. Among other triggers, the statute requires a &ldquo;mass layoff,&rdquo; which includes layoffs of at least fifty employees over a rolling thirty-day period. Additionally, those layoffs must be due to a &ldquo;lack of funds or lack of work.&rdquo; Further, the layoffs must occur at a &ldquo;covered establishment,&rdquo; which is an industrial or commercial facility that has employed seventy-five or more people within the preceding twelve months.&nbsp; <o:p></o:p></p> <p class="BodySingle"> Assuming that the number and location of layoffs potentially implicate Cal-WARN, <i>NASSCO</i> suggests that an employer should consider providing a sixty-day WARN-compliant notice for planned layoffs of any length, particularly where income loss equivalent to the kind of furlough in <i>NASSCO</i> is a possibility. While the Court of Appeal&rsquo;s reference to a <i>de minimis</i> exception suggests that furloughs lasting just a few days may not trigger the statute, the decision does not identify the tipping point. In any event, the Court of Appeal&rsquo;s discussion implies that an employer will get less leeway if it lacks a very good reason why it could not have provided compliant notice.&nbsp; <o:p></o:p></p> <p class="BodySingle"> While certain short-term events announced to employees well in advance (more than sixty days) that arguably do not involve separations from positions &ldquo;for lack of funds or lack of work&rdquo;&mdash;such as planned holiday shutdowns, equipment turnarounds, and scheduled long weekends&mdash;probably do not need to be formalized through WARN-compliant notice, <i>NASSCO</i>&nbsp; highlights that reliance on this position it not free from doubt or legal risk.&nbsp;<o:p></o:p></p> http://www.seyfarth.com:80/publications/WSE120617 EPA Determines No Need for Additional Superfund Financial Responsibility Rules for Hardrock Mining Industry http://www.seyfarth.com:80/publications/WSE120617 Wed, 06 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) announced that it will not issue a final rule for the Obama-era&rsquo;s proposed regulations for financial responsibility requirements for certain hardrock mining (HRM) facilities. 82 Fed. Reg. ______ (Dec. __, 2017).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/cercla/epa-determines-no-need-for-additional-superfund-financial-responsibility-rules-for-hardrock-mining-industry/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR120617 GC Memo 18-02 May Signal a Shift Away From Finding Disparate Treatment of Employees During Contract Negotiations to be Unlawful Where Only General Antiunion Animus is Found http://www.seyfarth.com:80/publications/LR120617 Wed, 06 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/06/gc-memo-18-02-may-signal-a-shift-away-from-finding-disparate-treatment-of-employees-during-contract-negotiations-to-be-unlawful-where-only-general-antiunion-animus-is-found/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP120617 San Francisco Regulators Provide Anticipated Guidance For Lactation Ordinance http://www.seyfarth.com:80/publications/CP120617 Wed, 06 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In June 2017, the San Francisco Board of Supervisors passed an ordinance requiring employers to provide a private &ldquo;lactation location&rdquo; where new mothers can pump their milk as well as a &ldquo;lactation break&rdquo; during the work day, in addition to other amenities. The ordinance is effective January 1, 2018 and is more expansive than current state and federal law requiring employers to make reasonable efforts to provide lactation breaks throughout the workday. In the wake of its passage and the approaching effective date, the City&rsquo;s Office of Labor Standards Enforcement and Department of Public Health are issuing administrative guidance for employers.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/12/06/san-francisco-regulators-provide-anticipated-guidance-for-lactation-ordinance/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM120517-LE Happy New Year? 2018 Brings New Minimum Wage & Exempt Thresholds for New York Employers http://www.seyfarth.com:80/publications/OMM120517-LE Tue, 05 Dec 2017 00:00:00 -0500 <p> <em><span style="font-size:12px;"><strong>Seyfarth Synopsis:&nbsp;</strong></span>New York employers are facing a host of changes in 2018, including an increase to the minimum salary amounts for exempt status and increases in the minimum wage.</em></p> <p> <span style="font-size:12px;">If employers in New York did not have enough on their minds this holiday season &ndash; with the rollout of <a href="http://www.seyfarth.com/publications/OMM103017-LE">Paid Family Leave</a> across the state, the <a href="http://www.seyfarth.com/publications/MA120117-LE">New York City Fair Workweek Law</a>, changes to the <a href="http://www.seyfarth.com/publications/OMM11917-LE">New York City Earned Sick Time Act</a>&nbsp;and proposed rules requiring pay for <a href="http://www.seyfarth.com/publications/MA111317-LE">on-call scheduling practices</a>&nbsp;&ndash; both the minimum wage and salary threshold for exempt employees are scheduled to increase on December 31, 2017.</span></p> <p> <span style="font-size:12px;"><strong>Minimum Wage</strong></span></p> <p> <span style="font-size:12px;">The minimum wage increase is part of the &ldquo;tiered&rdquo; minimum wage structure that was signed into law last year and aimed at bringing the minimum wage across the state to $15 per hour.&nbsp; The increase is dependent on where employees work and on the size of the employer, as follows:</span></p> <table border="1" cellpadding="0" cellspacing="0"> <tbody> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;"><strong>Size/Location of Employer</strong></span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;"><strong>Minimum Wage as of December 31, 2017</strong></span></p> </td> </tr> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;">New York City,&nbsp;11 or more employees</span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;">$13.00</span></p> </td> </tr> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;">New York City,&nbsp;10 or fewer employees</span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;">$12.00</span></p> </td> </tr> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;">Nassau, Suffolk, and Westchester counties, regardless of size of employer</span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;">$11.00</span></p> </td> </tr> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;">Remainder of state, regardless of size of employer</span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;">$10.40</span></p> </td> </tr> </tbody> </table> <p> &nbsp;</p> <p> <span style="font-size:12px;">Along with the increase to the minimum wage, the amounts employers can deduct from employees&rsquo; wages for items such as tip credits, uniform allowances and meals is also set to change on December 31.&nbsp; The Department of Labor has summarized the revisions applicable to&nbsp;<a href="https://labor.ny.gov/formsdocs/wp/Part146.pdf">hospitality employers</a>, employers in&nbsp;<a href="https://labor.ny.gov/formsdocs/wp/Part142.pdf">&ldquo;miscellaneous industries,&rdquo;</a>&nbsp;and employers in the&nbsp;<a href="https://labor.ny.gov/formsdocs/wp/Part141.pdf">&ldquo;building service industry&rdquo;</a>. &nbsp;Employers should consult these summaries to determine how much they can deduct for a uniform allowance and claim as a meal, lodging and tip credits.&nbsp;</span></p> <p> <span style="font-size:12px;"><strong>Salary Threshold for Exempt Employees</strong></span></p> <p> <span style="font-size:12px;">In keeping with the gradual increase in the State&rsquo;s minimum wage levels, the new tiered salary thresholds across the state, effective December 31, 2017, are now:</span></p> <table border="1" cellpadding="0" cellspacing="0"> <tbody> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;"><strong>Size/Location of Employer</strong></span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;"><strong>Salary Threshold as of December 31, 2017</strong></span></p> </td> </tr> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;">New York City,&nbsp;11 or more employees</span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;">$975.00 per week</span></p> </td> </tr> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;">New York City,&nbsp;10 or fewer employees</span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;">$900.00 per week</span></p> </td> </tr> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;">Nassau, Suffolk, and Westchester counties, regardless of size of employer</span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;">$825.00 per week</span></p> </td> </tr> <tr> <td style="width:312px;"> <p> <span style="font-size:12px;">Remainder of state, regardless of size of employer</span></p> </td> <td style="width:312px;"> <p> <span style="font-size:12px;">$780.00 per week</span></p> </td> </tr> </tbody> </table> <p> &nbsp;</p> <p> <span style="font-size:12px;"><strong>Conclusion</strong></span></p> <p> <span style="font-size:12px;">Employers in New York should be on &ldquo;high alert&rdquo; given these recent changes to the minimum wage, permissible wage deductions/credits, and salary thresholds for exempt employees on top of the host of other changes in store for 2018.</span></p> http://www.seyfarth.com:80/publications/WH120517 Department of Labor’s Wage and Hour Division Proposes to Nix Unpopular Tip Pooling Rule http://www.seyfarth.com:80/publications/WH120517 Tue, 05 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Monday, the DOL issued a Notice of Proposed Rulemaking announcing rescission of a rule that regulates tip pooling by employers who do not take the tip credit.<br /> <br /> <a href="https://www.wagehourlitigation.com/service-chargesgratuities/department-of-labors-wage-and-hour-division-proposes-to-nix-unpopular-tip-pooling-rule/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL120517 Nothing to Sneeze At: Evaluating Employee Safety Protections in the Healthcare Industry http://www.seyfarth.com:80/publications/EL120517 Tue, 05 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/12/nothing-to-sneeze-at-evaluating-employee-safety-protections-in-the-healthcare-industry/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR120517 No Winter Blues Here: GC Memorandum 18-02 Brings Handbook Cheer to Employers http://www.seyfarth.com:80/publications/LR120517 Tue, 05 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/05/handbooks-gc-memorandum-18-02-brings-cheers-to-employers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE120517 Nothing to Sneeze At: Evaluating Employee Safety Protections in the Healthcare Industry http://www.seyfarth.com:80/publications/WSE120517 Tue, 05 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/nothing-to-sneeze-at-evaluating-employee-safety-protections-in-the-healthcare-industry/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD120417 What Employers Should Know About This Week’s “Drama” At The CFPB http://www.seyfarth.com:80/publications/CCD120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: A somewhat bizarre event &ndash; even by this year&rsquo;s standard of unusual current events &ndash; hit the news stream earlier this week, as two &ldquo;Acting Directors&rdquo; showed up to work on Monday morning at the U.S. Government&rsquo;s Consumer Financial Protection Bureau, also known as the CFPB. In today&rsquo;s vlog, Partner Jerry Maatman of Seyfarth Shaw, LLP gives our readers an explanation of the situation at the CFPB, discusses the agency&rsquo;s significance for employers, and forecasts potential class action implications based on these developments.<br /> <br /> <a href="https://www.consumerclassdefense.com/2017/12/what-employers-should-know-about-this-weeks-drama-at-the-cfpb/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH120417a Extra Credit: Franchise Restaurant Workers Clear Path to Massive Payout on Technicality Under New York Law http://www.seyfarth.com:80/publications/WH120417a Mon, 04 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Tipped workers who didn&rsquo;t receive notice of the tip credit get a win under New York state minimum wage law in a case that echoes technical traps we have seen in FLSA decisions.<br /> <br /> <a href="https://www.wagehourlitigation.com/state-claims/extra-credit-restaurant-workers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA120417 SCOTUS Declines To Address Texas Supreme Court Ruling Limiting Reach of Obergefell http://www.seyfarth.com:80/publications/ERISA120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Supreme Court announced that it would not hear an appeal from the City of Houston in a case challenging the city&rsquo;s ability to offer spousal benefits to same-sex spouses of municipal employees. By leaving in place the Texas Supreme Court&rsquo;s ruling that the Obergefell decision does not, in fact, require such benefits to be extended, the decision to deny cert will return the case to the trial court, where plaintiffs will argue that the benefits violate Texas state law and seek an order forcing the city to rescind them.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2017/12/04/scotus-declines-to-address-texas-supreme-court-ruling-limiting-reach-of-obergefell/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM120417-LE New York Court of Appeals Establishes Standard for Punitive Damages Under NYCHRL http://www.seyfarth.com:80/publications/OMM120417-LE Mon, 04 Dec 2017 00:00:00 -0500 <p class="BodySingle" style="text-align:justify"> <b><i>Seyfarth Synopsis</i></b><i>: The New York Court of Appeals, on a question certified by the Second Circuit, announced the standard for punitive damages in claims under the New York City Human Rights Law.<o:p></o:p></i></p> <p class="BodySingle" style="text-align:justify"> Punitive damages are appropriate under the New York City Human Rights Law where the defendant&rsquo;s actions amount to recklessness or willful or wanton negligence, or where there is &ldquo;a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.&rdquo;&nbsp; So held the state&rsquo;s Court of Appeals in <a href="https://www.nycourts.gov/ctapps/Decisions/2017/Nov17/113opn17-Decision.pdf"><i>Chauca v. Abraham</i></a>, resolving a long-undecided issue at the request of the Second Circuit.<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> <b>Background</b><o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> In November 2010, Veronika Chauca (&ldquo;Chauca&rdquo;) sued her former employer, Park Management Systems, LLC., and two supervisory employees, in the Eastern District of New York for pregnancy discrimination under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law (&ldquo;NYCHRL&rdquo;).&nbsp; At trial, over Chauca&rsquo;s objection, the District Court declined to provide a punitive damages instruction, finding that Chauca had failed to introduce any evidence that the employer had intentionally discriminated with &ldquo;malice&rdquo; or with &ldquo;reckless indifference&rdquo; to her protected rights&ndash;the standard under Title VII.&nbsp; <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> After receiving a jury award of $60,500 in compensatory damages, Chauca appealed, arguing that, with respect to her NYCHRL claim, the District Court erred in using the Title VII standard for punitive damages.&nbsp; She argued that the City law, which mandates that its provisions be &ldquo;liberally&rdquo; construed and analyzed &ldquo;separately and independently&rdquo; of federal law, calls for a more lenient, pro-plaintiff approach &ndash; specifically, that a punitive damages jury instruction is appropriate and necessary upon <i>any</i> finding of liability, regardless of whether the employer discriminated with malice or reckless indifference. The defendants argued, on the other hand, that the District Court was correct all along, and that&nbsp; the NYCHRL standard is the same as Title VII.<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> The Second Circuit, after concluding that neither the statute nor case law provided sufficient guidance as to the appropriate standard, certified the following question to the New York Court of Appeals: &ldquo;What is the standard for finding a defendant liable for punitive damages under the [NYCHRL]?&rdquo;<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> <b>New York Court of Appeals Analysis<o:p></o:p></b></p> <p class="BodySingle" style="text-align:justify"> On certification, the New York Court of Appeals, in a 6-1 decision, took a middle ground. Regarding Chauca&rsquo;s argument, it noted that punitive damages are intended to address &ldquo;gross misbehavior&rdquo; or conduct that &ldquo;wilfully and wantonly causes hurt to another.&rdquo;&nbsp; As a result, the court held, there must be some heightened standard for punitive damages, and a finding of liability cannot by itself automatically support a jury charge pertaining to punitive damages.<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> As to the defendants&rsquo; argument, the court explained that New York City has twice amended the NYCHRL out of concern that the statute was being too strictly construed, cautioning courts that similarly worded federal statutes may be used as interpretive aids only to the extent that they are viewed &ldquo;as a floor below which the City&#39;s Human Rights Law cannot fall, rather than a ceiling above which the local law cannot rise,&rdquo; and only to the extent that those decisions may provide guidance as to the &ldquo;uniquely broad and remedial purposes of the local law.&rdquo;&nbsp; Against this backdrop, the court held that the punitive damages standard must be less stringent than the one imposed by Title VII.<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> The court then held that &ldquo;punitive damages&rdquo; is a legal term of art that has an established meaning under New York common law, under which punitive damages are appropriate in cases with &ldquo;conduct having a high degree of moral culpability which manifests a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.&rdquo;&nbsp;&nbsp; This standard requires neither a showing of malice nor awareness of the violation of a protected right.<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> <b>Implications<o:p></o:p></b></p> <p class="BodySingle" style="text-align:justify"> The court&rsquo;s decision now makes clear that the standard for punitive damages under the NYCHRL is broader, and more plaintiff-friendly, than under Title VII. (The State Human Rights Law does not permit punitive damages at all.)&nbsp; While punitive damages will not be available in every NYCHRL case where an employee prevails, the plaintiff will be entitled to a jury instruction on punitive damages whenever there is evidence that the defendant acted with &ldquo;malice&rdquo; or with &ldquo;reckless indifference&rdquo; to the plaintiff&rsquo;s protected rights, or when the defendant&rsquo;s actions amount to &ldquo;a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.&rdquo;<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> As a practical matter, the standard foreshadows that trial courts will issue punitive damages charges more frequently than they have before now.&nbsp; As argued by the New York City Law Department in its amicus brief, which urged the court not to tie the standard to Title VII&rsquo;s: &ldquo;[T]he very same evidence that establishes liability in a given case may well warrant punitive damages. For example, if a jury finds that an employee has been fired because of his or her race, it will be quite difficult for a defendant acting in the year 2017 to claim that there is no basis to conclude that it was acting with at least reckless disregard or gross negligence toward the employee&rsquo;s rights or toward the possibility that it was causing harm based on a protected characteristic.&rdquo;<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> The decision thus serves as a further reminder that employers in New York City should adopt and enforce strong anti-discrimination policies, train their employees on avoidance of discriminatory and harassing behaviors, thoroughly investigate internal complaints of such behavior, and swiftly discipline those who transgress.&nbsp; Juries throughout the five boroughs will be waiting to punish them through damages awards if they fail to do so.<o:p></o:p></p> http://www.seyfarth.com:80/publications/LR120417 Year-End News From The NLRB’s General Counsel http://www.seyfarth.com:80/publications/LR120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration, which our blog will be exploring over the next three weeks.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/12/04/an-advent-calendar-for-labor-lawyers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC120417 The 2018 Annual Workplace Class Action Litigation Report Is Coming Soon! http://www.seyfarth.com:80/publications/WC120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> Happy Holiday season to our loyal readers of the Workplace Class Action Blog!<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/12/the-2018-annual-workplace-class-action-litigation-report-is-coming-soon/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH120417 9th Circuit’s Xerox Decision Copies Sister Circuits in Affirming Workweek Standard for FLSA Compliance http://www.seyfarth.com:80/publications/WH120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Ninth Circuit recently joined the Second, Fourth, Eighth, and D.C. Circuits in holding that the relevant unit for determining minimum-wage compliance under the FLSA is the workweek as a whole, rather than each individual hour within the workweek.<br /> <br /> <a href="https://www.wagehourlitigation.com/defenses/9th-circuits-xerox-copies-workweek-standard-for-flsa/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO120417 FDA Releases Draft Guidance on Determining Whether to Submit an ANDA or a 505(b)(2) Application http://www.seyfarth.com:80/publications/BIO120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> This article provides a summary of the draft guidance[1] released by the FDA to assist applicants in determining which one of the abbreviated approval pathways under the Federal Food, Drug and Cosmetic Act (FD&amp;C Act) is appropriate for the submission of a marketing application to the FDA. The draft guidance was released on October 13, 2017, for which comments are due by December 12, 2017.<br /> <br /> <a href="https://www.bioloquitur.com/fda-releases-draft-guidance-determining-whether-submit-anda-505b2-application/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatmanbi120417 Gerald Maatman quoted in Business Insurance http://www.seyfarth.com:80/news/maatmanbi120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> Gerald Maatman was quoted in a December 4 story from Business Insurance, &quot;Sexual harassment cases to remain a priority,&quot; on how the U.S. Equal Employment Opportunity Commission may change focus on other areas, but it is still expected to pursue sexual harassment. Maatman said that sexual harassment issues have always been very important to the EEOC and he doesn&#39;t see that changing. You can read the <a href="http://www.businessinsurance.com/article/20171204/NEWS06/912317610/Sexual-harassment-cases-remain-EEOC-priority">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanbusinessinsurance120417 Gerald Maatman quoted in Business Insurance http://www.seyfarth.com:80/news/maatmanbusinessinsurance120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> Gerald Maatman was quoted in a December 4 story from Business Insurance, &quot;EEOC likely to exercise restraint on litigation,&quot; on how the U.S. Equal Employment Opportunity Commission is expected to change its processes and policies to reflect a more pro-business stance under the Trump administration. Maatman said that his sense is less systemic cases will be brought with more cases filed on behalf of only one or two workers. You can read the <a href="http://www.businessinsurance.com/article/20171204/NEWS06/912317611/EEOC-likely-to-exercise-restraint-on-employer-litigation">full article here</a>.</p> http://www.seyfarth.com:80/news/youngbi120417 Adam Young quoted in Business Insurance http://www.seyfarth.com:80/news/youngbi120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> Adam Young was quoted in a December 4 story from Business Insurance, &quot;Recovery workers face toxic water risks,&quot; on how employers should conduct a job hazard assessment before sending workers to work in areas with waste water from natural disasters. Young said that you are going to have a lot of different factors to the work environment that were not there before, and you may be using employees who aren&rsquo;t used to working in this environment. You can read the <a href="http://www.businessinsurance.com/article/20171204/NEWS08/912317599/Catastrophe-recovery-workers-face-toxic-water-risks">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlettbna120417 Brett Bartlett quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bartlettbna120417 Mon, 04 Dec 2017 00:00:00 -0500 <p> Brett Bartlett was quoted in a December 4 story from Bloomberg BNA, &quot;PUNCHING IN: Labor Nominees, SCOTUS Cases, and a Question for the NLRB,&quot; on whether employer trade groups might step in and request opinion letters from the Wage and Hour Division (WHD) on behalf of members, who could then wave the WHD opinion in front of the judge. Bartlett said that it is clear from the past that the WHD would issue opinions in response to what could be viewed to be proxy requests made by associations or consortiums of employers even while the practices about which the requests were made were the subject of private litigation.</p> http://www.seyfarth.com:80/news/boutroscbc120317 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbc120317 Sun, 03 Dec 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed December 3rd on the CBC News Network, &quot;Trump&#39;s Twitter storm: what&#39;s the legal risk?&quot; You can watch the <a href="http://www.cbc.ca/player/play/1108662339535">full interview here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc120217 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbc120217 Sat, 02 Dec 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed December 2nd on the CBC News Network, &quot;Micheal Flynn&#39;s guilty plea: who&#39;s next?&quot; You can watch the <a href="http://www.cbc.ca/player/play/1108246083560">full interview here</a>.</p> http://www.seyfarth.com:80/publications/WC120217 What Employers Should Know About This Week’s “Drama” At The CFPB http://www.seyfarth.com:80/publications/WC120217 Sat, 02 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: A somewhat bizarre event &ndash; even by this year&rsquo;s standard of unusual current events &ndash; hit the news stream earlier this week, as two &ldquo;Acting Directors&rdquo; showed up to work on Monday morning at the U.S. Government&rsquo;s Consumer Financial Protection Bureau, also known as the CFPB. In today&rsquo;s vlog, Partner Jerry Maatman of Seyfarth Shaw, LLP gives our readers an explanation of the situation at the CFPB, discusses the agency&rsquo;s significance for employers, and forecasts potential class action implications based on these developments.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/12/what-employers-should-know-about-this-weeks-drama-at-the-cfpb/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA120117 California Passes Website Accessibility Requirements Applicable to State Agencies http://www.seyfarth.com:80/publications/ADA120117 Fri, 01 Dec 2017 00:00:00 -0500 <p> Seyfarth Synopsis: California will soon have a new law requiring WCAG 2.0 AA compliance for state agencies&rsquo; websites by 2019.<br /> <br /> <a href="https://www.adatitleiii.com/2017/12/california-passes-website-accessibility-requirements-applicable-to-state-agencies/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA120117-LE Shifty Business IV: NYC Fair Workweek Law and Final Rules Are Now Effective http://www.seyfarth.com:80/publications/MA120117-LE Fri, 01 Dec 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>The New York City Department of Consumer Affairs has issued final rules to implement the Fair Workweek Law, which imposes significant constraints on shift scheduling in the retail and fast food industries and took effect on November 26.</em></p> <p> Two days after the Fair Workweek Law took effect, the Office of Labor Policy and Standards (OLPS), part of the New York City Department of Consumer Affairs (DCA), published final rules implementing the Law.&nbsp; Those rules took effect immediately.&nbsp; They do not significantly change or expand upon the obligations imposed by the statute, nor do they vary materially from the proposed rules issued a few weeks ago.</p> <p> Below is a summary of the final rules. For further details about the Law, see our prior alerts <a href="http://www.seyfarth.com/publications/MA053117-LE">here</a>&nbsp;and <a href="http://www.seyfarth.com/publications/MA103017-LE">here</a>.</p> <p> <strong><u>Definitions</u></strong></p> <p> The final rules define several terms used without definition in the Law. The key definitions are detailed below.</p> <p> <strong><em>General </em></strong></p> <p> <em>Actual hours worked:</em> As described below, all covered employers will need to keep records of employees&rsquo; &ldquo;actual hours worked.&rdquo; The rules define this term to mean the number, dates, times, and locations of hours worked by the employee, regardless of whether that reflects a departure from the advance work schedule provided.</p> <p> <strong><em>Fast Food Employers</em></strong></p> <ul> <li> <em>Additional shift:</em> This means a shift not previously scheduled that would be offered to a new fast food employee in the absence of the Law&rsquo;s access-to-hours requirement.</li> <li> <em>Good faith estimate:</em> Fast food employers are required to provide each employee with the number, days, times, and locations of hours the employee can expect to work each week. &ldquo;Times&rdquo; for this purpose means the start and end time of each shift. This information must be provided before the employee&rsquo;s first day of work.</li> <li> <em>Current fast food employee:</em> Fast food employers must provide current employees the opportunity to work an available shift before hiring a new employee to fill the shift.&nbsp; The final rules define &ldquo;current employee&rdquo; as one who has worked at least 8 hours in the past 30 days or is otherwise currently on the employer&rsquo;s payroll.</li> <li> <em>New fast food employee:</em> The final rules revise the definition of &ldquo;new employee&rdquo; to one who has not worked at least 8 hours in the prior 30 days for the employer.</li> <li> <em>Overtime pay:</em> Fast food employers are not required to award additional shifts, or portions thereof, under the access-to-hours provision where doing so would entitle the employee to overtime pay.&nbsp; &ldquo;Overtime pay&rdquo; means payment at a rate (i) at least one and a half times the employee&rsquo;s regular rate of pay under the Fair Labor Standards Act; or (ii) governed by the overtime requirements of the New York Labor Law or applicable wage orders.</li> <li> <em>Salaried: </em>Fast food employees who are salaried are not covered by the Law.&nbsp; The rules clarify that &ldquo;salaried&rdquo; means not covered by the overtime requirements of New York state law or regulations.</li> </ul> <p> <strong><em>Retail Employers</em></strong></p> <ul> <li> <em>Engaged primarily in the sale of consumer goods:</em> This refers to retail businesses with more than 50% of sales transactions to retail consumers in a calendar year at one or more locations in New York City. Retail businesses that do not meet this definition are not subject to the Law.</li> <li> <em>Retail consumer:</em> This is an individual who buys or leases consumer goods. Excluded are manufacturers, wholesalers, or others who buy or lease consumer goods to resell them as new to others. This definition, in conjunction with &ldquo;engaged primarily in the sale of consumer goods,&rdquo; identifies the retail businesses that will be subject to the Law.</li> </ul> <p> <strong><u>Fast Food Employers</u></strong></p> <p> Fast food employers are affected by the following rules implementing the substantive provisions of the Law.</p> <p> <strong><em>Good Faith Estimate</em></strong></p> <p> The Law requires fast food employers to provide each employee, upon hire, with a written work schedule and a good faith estimate of hours the employee can expect to work weekly. The final rules clarify what information is required in the good faith estimate and provide examples of long-term or indefinite changes for which the estimate must be updated.</p> <p> Employers must update the good faith estimate of hours for employees if there are any long-term or indefinite changes thereto as soon as possible and before the employee receives the first work schedule following the change.</p> <p> In one significant deviation from the proposed rules, the final rules provide revised examples of such changes. Long-term and indefinite changes exist if, in any 3 of 6 consecutive workweeks, there are substantial departures from the good faith estimate, such as:</p> <ul> <li> Number of hours worked differs by 20% per week;</li> <li> Start and end times of one shift per week differ by at least one hour and a total of 6 hours are changed over 6 weeks; or</li> <li> Locations or days worked differ at least once per week.</li> </ul> <p> Each occurrence of a long-term or indefinite change for which the employer does not provide an updated good faith estimate before the employee&rsquo;s next work schedule is a violation of the advance scheduling requirement.</p> <p> <strong><em>Work Schedules</em></strong></p> <p> Fast food employers are required to provide employees with a written notice of work schedules containing all of an employee&rsquo;s scheduled shifts.&nbsp; The rules provide that on or before a fast food employee&rsquo;s first day of work, the employer must provide an initial work schedule containing all shifts the employee will work until the start of the first shift on the next work schedule. The employer must also issue an updated work schedule as required by the advance scheduling provisions of the Law.</p> <p> <strong><em>Shift Changes</em></strong></p> <p> The Law requires fast food employers to pay an amount between $10 and $75 in &ldquo;premium pay&rdquo; for each change to an employee&rsquo;s schedule made less than two weeks in advance.</p> <p> The final rules provide that employers are not obligated to pay a premium for changes to a scheduled shift <em>totaling</em> 15 minutes or less<em>.</em> &nbsp;A schedule change premium is required when total changes to a shift exceed 15 minutes. Employers will still be required to secure an employee&rsquo;s written consent to work the additional time.</p> <p> <strong><em>Notice and Offer of Additional Shifts</em></strong></p> <p> Under the access-to-hours provisions of the Law, fast food employers must first offer additional shifts to current employees before hiring a new employee to work those shifts. The final rules provide that:</p> <ul> <li> Employers must notify employees in writing, upon hire, of the method by which additional shifts under the access-to hours-provision of the Law will be posted. They must also notify employees of any changes to the notification method within 24 hours of the change. Employers must use this same method to notify all accepting employees as soon as possible after the offered shift has been filled.</li> <li> Employers must post a notice of additional available shifts for three consecutive calendar days, even for shifts made available with less than three days&rsquo; notice.</li> <li> When an employer has less than three days&rsquo; notice of the need to fill a shift, the employer must post the additional shift within 24 hours of being notified. The employer may then temporarily offer any current employee that shift, but must comply with the shift notice provisions for any shifts available in more than three days.</li> <li> Employers with 50 or more fast food establishments within New York City may offer additional shifts to employees at all New York City locations or to only those employees working in the same borough as the open shifts.</li> </ul> <p> <strong><em>Accepting and Awarding Additional Shifts</em></strong></p> <p> The rules further elaborate how current fast food employees may accept and be awarded additional shifts to be offered under the Law&rsquo;s access-to-hours requirement.</p> <p> Employers must first award additional shifts to current employees working at the location of the available shifts, regardless of the employer&rsquo;s other criteria for awarding shifts.</p> <p> Employees may accept a subset of additional shifts offered, an entire shift, or any shift increment. However, an employer does not have to award a shift increment to an employee when the remainder of the shift is 3 hours or less and was not accepted by other employees.</p> <p> An employee may even accept an open shift that overlaps with that employee&rsquo;s current shift. The employer must award that employee the offered shift instead of the employee&rsquo;s currently scheduled shift and cannot require the employee to work both shifts&rsquo; hours as a condition of that grant. Only then may the employer hire a new employee for the shift.</p> <p> An employer is not required to award an accepting employee an offered shift that would entitle the employee to overtime pay. The employer must still award the largest shift increment possible that would not cause the employee to earn overtime pay (provided that the remainder of the shift is at least 3 hours or is accepted by another employee). Only then may the employer hire a new employee for the entire shift.</p> <p> <strong><em>Recordkeeping</em></strong></p> <p> Fast food employers must maintain records in addition to those described in General Provisions below. Fast food employers must maintain records showing good faith estimates provided to employees and the dates and amounts of any premium payments, whether noted on wage stubs or other written documentation.</p> <p> <strong><u>Retail Employers</u></strong></p> <p> <strong><em>Work Schedules</em></strong></p> <p> The final rules require written work schedules provided by retail employers to span at least seven days.</p> <p> <u><strong>General Provisions</strong></u></p> <ul> <li> <em>No Waivers:</em> The final rules explicitly preclude the use of employee waivers of rights under the Law.</li> <li> <em>Written Consent:</em> Employers must obtain written consent to work additional hours or shifts in reference to <em>a specific schedule change</em>. The final rules prohibit a general or ongoing consent, such as one issued at the start of employment.</li> <li> <em>Notice of Rights: </em>The required notice of rights under the Fair Workweek Law must be posted on 11 x 17-inch paper. Notices have been released: <a href="http://www1.nyc.gov/assets/dca/downloads/pdf/workers/Retail-FairWorkweek-Notice-English.pdf">Retail</a>, <a href="http://www1.nyc.gov/assets/dca/downloads/pdf/workers/FastFood-FairWorkweek-Notice-English.pdf">Fast Food - Fair Workweek</a>, and <a href="http://www1.nyc.gov/assets/dca/downloads/pdf/workers/FastFood-Deductions-Notice-English.pdf">Fast Food - Pay Deductions</a>. Employers should expect notices to be released in additional languages and must post notices in any language that is the primary language of 5% of their employees.&nbsp;</li> <li> <em>Posted Notice of Schedules:</em> Employers must not post or otherwise disclose to other fast food or retail employees the work schedule of an employee if the disclosure would conflict with the employee&rsquo;s accommodation based on domestic violence, stalking, or sexual assault victim status.</li> <li> <em>Recordkeeping: </em>Employers must maintain and retain records documenting their compliance with the law in an electronically accessible format for 3 years. These records must show actual hours worked by each employee each week; an employee&rsquo;s written consent to any schedule changes, where required; and each written schedule provided to an employee. Fast food employers are subject to additional recordkeeping obligations, as discussed above.</li> <li> <em>Employee Records Requests:</em> The Law requires employers to provide employees, upon request, with their past schedules as well as the current schedule of other employees in the same work location. Employers have 14 days to complete a request for an employee&rsquo;s own previous schedule. Employers have one week to complete an employee&rsquo;s request for the current schedule of all employees in that location, but cannot disclose the schedule of an employee with an accommodation due to domestic violence, stalking, or sexual assault victim status.</li> <li> <em>Private Right of Action: </em>Once an individual has filed a complaint with OLPS or commenced a lawsuit based on the Law, OLPS may continue to investigate an employer even if the complainant&rsquo;s involvement in the case ends. An individual who submitted a complaint under the Law to OLPS must withdraw that complaint in writing prior to filing a lawsuit. An individual &nbsp;who filed a lawsuit based on the Law must withdraw those claims or have them dismissed with prejudice before filing a complaint with OLPS.</li> </ul> <p> <strong><u>Implications for Employers</u></strong></p> <p> In addition to its final rules, the DCA announced that OLPS &ldquo;will be going door-to-door to ensure that New Yorkers are aware of their rights and their obligations under these new laws. While [the agency&rsquo;s] focus in these initial months will be on outreach and education, [it] will investigate any complaints [it] receive[s].&rdquo;&nbsp; Employers should revise their written policies in accordance with the Fair Workweek Law, and may receive questions from employees about the newly implemented law.</p> <p> We will continue to track developments related to the Law and advise of any updates.</p> http://www.seyfarth.com:80/news/boutroscnbc120117 Andrew Boutros interviewed on CNBC http://www.seyfarth.com:80/news/boutroscnbc120117 Fri, 01 Dec 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed December 1st on CNBC&#39;s &quot;Power Lunch.&quot; Boutros provided his take on the legal implications following Michael Flynn pleading guilty to lying to the FBI. You can watch the <a href="https://www.cnbc.com/video/2017/12/01/lawyer-on-flynn-plea-its-not-conduct-but-the-coverup-that-becomes-the-crime.html">interview here</a>.</p> http://www.seyfarth.com:80/news/meershrm120117 Jon Meer quoted in SHRM http://www.seyfarth.com:80/news/meershrm120117 Fri, 01 Dec 2017 00:00:00 -0500 <p> Jon Meer was quoted in a December 1 story from SHRM, &quot;Stores Lawfully Checked Bags of Exiting Employees Off the Clock,&quot; on his successful representation of Nike and Converse in class-action cases challenging uncompensated exit inspections. Meer said that employees tend to overestimate the time they spend waiting, like people tend to overestimate time spent awaiting an elevator or a green light. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/bag-checks-upheld.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/milliganlaw360120117 Robert Milligan quoted in Law360 http://www.seyfarth.com:80/news/milliganlaw360120117 Fri, 01 Dec 2017 00:00:00 -0500 <p> Robert Milligan was quoted in a December 1 story from Law360, &quot;Noncompete Roundup: Developments You Might Have Missed,&quot; on the news that New Jersey and Pennsylvania lawmakers are proposing curbing noncompetes. Milligan said that the bills &mdash; especially the Pennsylvania proposal &mdash; are long shots to pass, though they could be models for other states to follow, or for defendants to argue against a particular noncompete.</p> http://www.seyfarth.com:80/publications/IMM113017 Possible Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees http://www.seyfarth.com:80/publications/IMM113017 Thu, 30 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: If Congress cannot resolve FY2018 funding issues by December 8, 2017, resulting in a federal government shutdown, it will have a ripple effect on employers, both large and small, with an impact on several agencies involved in the processing of immigration petitions.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2017/11/possible-government-shutdown-immigration-consequences-for-employers-and-their-foreign-national-employees/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM113017-LE Possible Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees http://www.seyfarth.com:80/publications/OMM113017-LE Thu, 30 Nov 2017 00:00:00 -0500 <p class="BodySingle"> <em><b>Seyfarth Synopsis:&nbsp;</b>If Congress cannot resolve FY2018 funding issues by December 8, 2017, resulting in a federal government shutdown, it will have a ripple effect on employers, both large and small, with an impact on several agencies involved in the processing of immigration petitions.&nbsp; </em><o:p></o:p></p> <p class="BodySingle"> <b>U.S. Citizenship and Immigration Services (USCIS)<o:p></o:p></b></p> <p class="BodySingle"> In the event of a shutdown, USCIS will be minimally impacted because it is largely a fee-funded service.&nbsp; This means USCIS will continue to process applications and petitions for immigration benefits, with some processing delays possible.&nbsp; However, petitions for which a Department of Labor (DOL) certification is required -- such as an H-1B or E-3 petition that requires a Labor Condition Application (LCA) -- may be adversely affected, as discussed. &nbsp;<o:p></o:p></p> <p class="BodySingle"> E-Verify, USCIS&rsquo; free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be inaccessible during a shutdown.&nbsp; Employers must continue to complete I-9 forms in compliance with the law and create cases in E-Verify if E-Verify becomes available.<o:p></o:p></p> <p class="BodySingle"> Other agencies of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) would likely retain most of their essential staff, so it is expected that TN and L-1 petitions for Canadian nationals would continue to be adjudicated at the border.<o:p></o:p></p> <p class="BodySingle"> <b>Department of Labor (DOL)<o:p></o:p></b></p> <p class="BodySingle"> Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, &nbsp;are considered non-essential and would likely be placed in furlough status during a &nbsp;government shutdown.&nbsp; OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, applications for permanent employment certification (PERM applications), or PERM audit responses.<o:p></o:p></p> <p class="BodySingle"> <b>Department of State (DOS)<o:p></o:p></b></p> <p class="BodySingle"> In the event of a shutdown, it is likely that visa issuance will continue, at least temporarily.&nbsp; It is expected that domestic and overseas Consular operations will remain fully operational as long as sufficient fees exist to support operations.&nbsp; &nbsp;<o:p></o:p></p> <p class="BodySingle"> Seyfarth Shaw&rsquo;s Business Immigration Group is closely monitoring this developing situation.&nbsp; If you should have any questions about how the government shutdown might affect your workforce, please reach out to your contact person at Seyfarth Shaw LLP. We will be happy to address your questions.&nbsp; &nbsp;<o:p></o:p></p> http://www.seyfarth.com:80/publications/ebn113017 Paul Galligan, Gena Usenheimer and Meredith-Anne Berger authored an article in Employee Benefit Adviser http://www.seyfarth.com:80/publications/ebn113017 Thu, 30 Nov 2017 00:00:00 -0500 <p> Paul Galligan, Gena Usenheimer and Meredith-Anne Berger authored a November 30 article in Employee Benefit Adviser, &quot;Proposed national paid leave could preempt state leave laws.&quot; The article discusses the the Workflex in the 21st Century Act which signals the increasing frustration with the complexities of multi-state compliance among business owners. You can read the<a href="https://www.employeebenefitadviser.com/opinion/proposed-national-paid-leave-could-preempt-state-leave-laws"> full article here</a>.</p> http://www.seyfarth.com:80/publications/EL113017 More Coffee Please: CBP Rules that Coffee’s Country of Origin is Determined by Where Beans are Roasted — Not Where Raw Beans Actually Originate http://www.seyfarth.com:80/publications/EL113017 Thu, 30 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: U.S. Customs &amp; Border Protection recently issued a Final Determination that the coffee roasting process &ldquo;substantially transforms&rdquo; raw coffee for purposes of country-of-origin determinations and U.S. Government &ldquo;Buy American&rdquo; regulations. This clear new guidance should help corporations and their executives avoid civil, administrative, and criminal legal exposure as President Trump fulfills a campaign promise to crack down on illegal trade.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/11/more-coffee-please-cbp-rules-that-coffees-country-of-origin-is-determined-by-where-beans-are-roasted-not-where-raw-beans-actually-originate/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM112917-RE DC Proposed Regulations Modify Deed of Trust Recording Tax Exemptions http://www.seyfarth.com:80/publications/OMM112917-RE Wed, 29 Nov 2017 00:00:00 -0500 <div> <strong>Overview</strong></div> <div> &nbsp;</div> <div> New regulations proposed by the District of Columbia affect the recordation tax exemptions for purchase money deeds of trust not recorded simultaneously with the deed, deeds of trust recorded to refinance construction loans and certain other deeds of trust.</div> <div> &nbsp;</div> <div> <strong>Current Law For Delayed Recording of Purchase Money Deeds of Trust</strong></div> <div> &nbsp;</div> <div> Section 42-1102 of the D.C. Code provides for an exemption from recordation tax for &ldquo;a purchase money mortgage or purchase money deed of trust that is recorded simultaneously with the deed conveying the real property.&rdquo; Section 42-1103(b-1)(1)(B) provides, in part, that a purchase money deed of trust shall &ldquo;be <u>recorded within 30 days</u> of the date that the deed conveying title to the real property to the purchaser is duly recorded.&rdquo; [Emphasis added.] The District of Columbia Recorder of Deeds and the real estate community at large have interpreted these two provisions as allowing a thirty day grace period after a deed is recorded within which to record a purchase money deed of trust exempt from a second recordation tax.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Proposed Change</strong></div> <div> &nbsp;</div> <div> A proposed amendment to Section 501 of Title 9 of the District of Columbia Code of Municipal Regulations (DCMR) would limit the recordation tax exemption for purchase money deeds of trust to those instruments recorded <strong>simultaneously </strong>with the deed conveying the real property. A proposed change to Section 519.3a of the Regulations would make this change also applicable to purchase money deeds of trust securing indebtedness incurred to acquire an economic interest in real property. These proposed amendments as well as the other proposed amendments discussed in this One Minute Memo will be effective for instruments executed on or after December 15, 2017.</div> <div> &nbsp;</div> <div> <strong>Other Proposed Changes</strong></div> <div> &nbsp;</div> <div> Another important change is the way the Recorder of Deeds will tax modifications to construction loan deeds of trust. Currently if a construction loan is increased and a modification to the deed of trust is recorded, the recordation tax will be imposed on the excess of the face value of the modified deed of trust over the face value of the original deed of trust less any repayments of principal. Under proposed amendments to the regulations, the recordation tax will be imposed on the excess of the face value of the modified deed of trust over <strong>the balance due </strong>on the construction loan secured by the original deed of trust.&nbsp;</div> <div> &nbsp;</div> <div> If the deed of trust is modified early in the construction process, this could result in a double recordation tax being paid on a large portion of the construction loan. For example, assume a secured construction loan of $50 million, of which $10 million has been drawn down. Further assume the loan is increased to $55 million and a modification to the deed of trust is recorded. Under the current rules, a recordation tax would be due on $5 million ($55-$50 million); under the proposed regulations a recordation tax would be due on $45 million ($55-$10 million).&nbsp;</div> <div> &nbsp;</div> <div> When a permanent deed of trust replaces a construction loan deed of trust, then D.C. Code Section 42-1102(11) exempts the permanent deed of trust from the recordation tax except to the extent that the amount secured by the permanent deed of trust exceeds the amount secured by the construction loan deed of trust. Proposed amendments to Sections 510.1 and 510.2 of the DCMR make it clear that the exemption contained in Section 42-1102(11) is applicable only if the obligors under both the construction loan and the permanent loan secured by the deeds of trust are the same obligors, and the exemption applies except to the extent that the amount secured by the permanent deed of trust exceeds<strong> the balance due </strong>on the construction loan secured by the construction deed of trust.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Reaction</strong></div> <div> &nbsp;</div> <div> The District of Columbia Office of Tax and Revenue characterizes these proposed regulations as &ldquo;coordinating&rdquo; various sections of the law while it appears to many real estate practitioners as an attempt to change current statutory law by regulation. Unless and until these proposed regulations are challenged, they will become effective for security instruments dated on or after December 15, 2017.&nbsp;</div> http://www.seyfarth.com:80/publications/WC112917 The Second Circuit Weighs In On Tidal Wave Of Class Actions Under The Illinois Biometric Privacy Act http://www.seyfarth.com:80/publications/WC112917 Wed, 29 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: As biometric technology has become more advanced and affordable, more companies and employers have begun implementing procedures and systems that rely on biometric data. Given the serious repercussions of compromised biometric data, a number of states have proposed or passed laws regulating the collection and storage of biometric data, including Illinois through the passage of the Illinois Biometric Privacy Act (&ldquo;BIPA&rdquo;) &ndash; the only biometric statute which provides a private cause of action.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/11/the-second-circuit-weighs-in-on-tidal-wave-of-class-actions-under-the-illinois-biometric-privacy-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE112917 Senate Hearing Scheduled on Trump Nomination for OSHA Administrator http://www.seyfarth.com:80/publications/WSE112917 Wed, 29 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Senate hearing scheduled for the White House pick, Scott A. Mugno, as the new Administrator of OSHA.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/senate-hearing-scheduled-on-trump-nomination-for-osha-administrator/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR112917 Unions Looking to Increase Diversity in Their Leadership Ranks http://www.seyfarth.com:80/publications/LR112917 Wed, 29 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Recognizing the rise of Millennials and the increasing diversity of the workforce, some labor unions appear to be taking a keen interest in increasing the diversity of those in their leadership ranks, which is at least in part a key organizing tactic.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/11/29/unions-looking-to-increase-diversity-in-their-leadership-ranks/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/passantinohre112917 Alex Passantino quoted in Human Resource Executive http://www.seyfarth.com:80/news/passantinohre112917 Wed, 29 Nov 2017 00:00:00 -0500 <p> Alex Passantino was quoted in a November 29 story from Human Resource Executive, &quot;An HR-Backed Workflex Act,&quot; on a newly proposed House bill that seeks to give employers latitude in crafting flexible work arrangements. Passantino said that while the proposal has overwhelming support of the HR community, there will undoubtedly be a number of HR challenges if it becomes law. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534363340">full article here</a>.</p> http://www.seyfarth.com:80/news/bizarbna112917 David Bizar quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bizarbna112917 Wed, 29 Nov 2017 00:00:00 -0500 <p> David Bizar was quoted in a November 29 story from Bloomberg BNA, &quot;CFPB Leadership Lawsuit May Be Headed to Appeals Court,&quot; on how Leandra English, deputy director under former CFPB Director Richard Cordray, might ask Judge Timothy J. Kelly for a preliminary injunction. Bizar said that&#39;s significant because if English asks for the preliminary injunction and Kelly says no, English likely would be positioned to take her case to the U.S. Court of Appeals for the District of Columbia Circuit.</p> http://www.seyfarth.com:80/publications/WSE112817 EPA and the Corps Propose to Add Years to “Effective” Applicability Date of WOTUS Rule http://www.seyfarth.com:80/publications/WSE112817 Tue, 28 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) propsed a rule that would add an applicability date two years in the future to the Obama-era Waters of the United States (WOTUS) rule. 82 Fed. Reg. 55542 (Nov. 22, 2017).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/cwa/epa-and-the-corps-propose-to-add-years-to-effective-applicability-date-of-wotus-rule/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL112817 Proposed National Paid Leave and Flexible Work Options Law Will Preempt State Leave Laws http://www.seyfarth.com:80/publications/EL112817 Tue, 28 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Three Republicans from the House of Representatives hailing from states with paid family and sick leave laws have sponsored the Workflex in the 21st Century Act, signaling increasing frustration with the complexities of multi-state compliance. Representatives Mimi Walters of California, Elise Stefanik of New York, and Cathy McMorris Rodgers of Washington have pitched a bill that would exempt employers who offer certain amounts of paid time off from complying with state paid leave laws. In its current form, the bill would serve to drastically reduce employee access to paid leave, but would also grant employees alternative work arrangements, known as &ldquo;workflex&rdquo; options.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/11/proposed-national-paid-leave-and-flexible-work-options-law-will-preempt-state-leave-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA112817-LE The Supreme Court To Clarify Who Is a Whistleblower Under the Dodd-Frank Act; Employers Have a Reason to be Hopeful http://www.seyfarth.com:80/publications/MA112817-LE Tue, 28 Nov 2017 00:00:00 -0500 <p> <strong>Seyfarth Synopsis:</strong>&nbsp; <em>Following oral argument, employers can be cautiously optimistic that the U.S. Supreme Court will hold that the Dodd-Frank Act&rsquo;s anti-retaliation protections apply only to those employees who have made a report to the SEC, not to those who make reports internally or to other agencies.</em></p> <p> On Tuesday, the U.S. Supreme Court heard argument in <em>Digital Realty Trust, Inc. v. Somers</em>, a closely-watched case that will clarify the scope of whistleblower protection under the Dodd-Frank Act.&nbsp;</p> <p> The issue, in simple terms, is whether an employee who only reports alleged wrongdoing to his or her employer may sue for whistleblower retaliation under the Act, even though the statute expressly defines a &ldquo;whistleblower&rdquo; as one who reports a securities law violation &ldquo;to the [Securities and Exchange] Commission.&rdquo;&nbsp;&nbsp; This seemingly straightforward question has divided the Second, Fifth, and Ninth Circuit Courts of Appeal, prompting the high court&rsquo;s review.&nbsp;</p> <p> A significant source of the circuit conflict is that the SEC, through administrative rule-making, has taken the position that, despite the statutory &ldquo;whistleblower&rdquo; definition, a report to the agency is <em>not</em> required in order to trigger whistleblower protection; an internal report to the employer suffices.&nbsp; The SEC&rsquo;s expansive definition of &ldquo;whistleblower,&rdquo; if endorsed by the Supreme Court, could open the floodgates for Dodd-Frank whistleblower suits based solely on internal reports (or reports to other agencies or law enforcement), and those suits bring with them the risk of double back-pay awards.</p> <p> Making predictions from oral argument is difficult, and the authors of this post, who attended the argument, offer these insights with all of the usual caveats.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; Based on the tone and substance of the questioning, we are cautiously optimistic that the Court will adhere to the statutory text and require a report &ldquo;to the Commission&rdquo; as a prerequisite to a Dodd-Frank whistleblower claim.</p> <p> <strong>Events Leading Up to the Oral Argument</strong></p> <p> Paul Somers, a former vice president of portfolio management for Digital Realty, alleged that, shortly before he was discharged, he had complained to senior management that his supervisor had eliminated some internal controls. Somers did not report any securities law violation to the SEC.&nbsp; Digital Realty moved to dismiss the Dodd-Frank Act retaliation claim on the basis that Somers had not made a report &ldquo;to the Commission&rdquo; and thus was not a statutory &ldquo;whistleblower.&rdquo;&nbsp;</p> <p> A divided Ninth Circuit, while acknowledging the narrow &ldquo;whistleblower&rdquo; definition, nevertheless found the statute ambiguous overall and gave the SEC&rsquo;s regulation <em>Chevron</em> deference&mdash;that is, deference that courts will give to an administrative agency&rsquo;s &ldquo;reasonable&rdquo; interpretation of an &ldquo;ambiguous&rdquo; statute.&nbsp; <em>Chevron v. Natural Resources Defense Council</em>. &nbsp;The court also concluded that its broader view fulfilled &ldquo;Congress&rsquo;s overall purpose.&rdquo;&nbsp; It thus joined the Second Circuit in finding that the Act&rsquo;s anti-retaliation provisions protect purely internal reporters.</p> <p> The Fifth Circuit, in contrast, found the Act&rsquo;s plain language crystal-clear in protecting only those who make reports &ldquo;to the Commission,&rdquo; and gave no <em>Chevron</em> deference to the SEC&rsquo;s contradictory regulation.&nbsp;&nbsp;</p> <p> The Supreme Court&rsquo;s decision to review this case attracted notice from commentators, who pointed out that it could bring to the forefront core differences among the justices in their general approaches to statutory interpretation and agency deference.&nbsp; The proponents of strict &ldquo;textualism&rdquo; advocate close adherence to the statutory text&mdash;Justice Gorsuch, in particular, has been vocal both in his support of this approach and in his skepticism of <em>Chevron</em> deference.&nbsp; Others, among them Justices Breyer, Ginsburg and Sotomayor, have been more willing to consider a law&rsquo;s broader purpose as a tool in statutory interpretation. &nbsp;<em>See, e.g., King v. Burwell</em>.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;</p> <p> <strong>The Oral Argument</strong></p> <p> Based on Tuesday&rsquo;s argument, it does not appear that the justices are divided along the predicted &ldquo;textualism&rdquo; vs. &ldquo;purpose&rdquo; lines in this particular case.&nbsp; The tenor of the questioning suggests that a majority of the justices share a concern about departing from the Act&rsquo;s explicit text, a view that favors Digital Realty&rsquo;s position.</p> <p> Justice Gorsuch, one of the more vigorous questioners, repeatedly directed Somers&rsquo; counsel, Daniel Geyser, back to the statutory text.&nbsp; &ldquo;I&rsquo;m just stuck on the plain language,&rdquo; he remarked, before noting that the Act mandates that the whistleblower definition &ldquo;shall apply&rdquo; to the anti-retaliation provisions.&nbsp; &ldquo;How much clearer could they have possibly been?,&rdquo; he asked Geyser. &nbsp;</p> <p> Justice Gorsuch returned to this theme in his questions to the government, which provided amicus support to Somers.&nbsp; The government&rsquo;s lawyer, Christopher Michel, argued that &ldquo;it&#39;s quite clear that what Congress was trying to do in Dodd-Frank was bolster the remedies that were available under Sarbanes-Oxley,&rdquo; which protects internal reports.&nbsp; Justice Gorsuch responded that &ldquo;we don&#39;t follow what [Congress is] trying to do. We follow what they <em>do</em> do, right?&rdquo;</p> <p> Justices Breyer also questioned whether Congress intended to cover internal reporters in Dodd-Frank&rsquo;s anti-retaliation provisions, as they are already protected under the Sarbanes-Oxley Act (SOX).&nbsp; &ldquo;If we read it your way,&rdquo; he told Somers&rsquo; counsel, &ldquo;we&rsquo;ve basically eliminated Sarbanes-Oxley because everybody would bring it this way&rdquo;&mdash;that is, under Dodd-Frank, which has more generous remedies and fewer administrative requirements than a SOX claim.&nbsp;</p> <p> Justices Breyer and Gorsuch also appeared to share a concern that, during the rule-making process, the SEC did not provide adequate notice to the public that it might expand Dodd-Frank&rsquo;s whistleblower definition to include those who had not made a report to the SEC.&nbsp; That &ldquo;seems to me to put the whole administrative process on its head,&rdquo; Justice Gorsuch remarked.&nbsp; Justice Breyer echoed this point, stating that the SEC&rsquo;s notice, which described reports &ldquo;to the Commission,&rdquo; did not tell the public it was considering non-SEC reports&mdash;&ldquo;I mean, that&#39;s English, I would think.&rdquo;</p> <p> &nbsp; Other justices picked up on this latter point, with Justice Ginsburg noting that &ldquo;I thought &hellip; if the statute gives a definition, you follow the definition in the statute unless it would lead not merely to an anomaly, but to an absurd result.&rdquo;</p> <p> <strong>After the Oral Argument</strong></p> <p> While we are cautiously optimistic that the Court will rule favorably to employers, there will be no definitive answer until the Court issues its opinion.&nbsp; A decision is expected in the Spring.&nbsp; No matter how the Court rules, employers should carefully examine their corporate compliance and reporting systems to ensure that they are fair, robust and responsive.&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> One more caveat: Seyfarth Shaw LLP represents Digital Realty Trust in this case and is co-counsel at the Supreme Court.&nbsp; The views expressed in this blog post are Seyfarth Shaw&rsquo;s and not necessarily those of Digital Realty.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM112817-LIT Recent Ethics Opinion Provides Key Guidance for All Attorneys Crossing the Border with Client Information http://www.seyfarth.com:80/publications/OMM112817-LIT Tue, 28 Nov 2017 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:</strong> In a much-needed opinion, the New York City Bar recently issued a first-of-its-kind Ethics Opinion setting out the ethical obligations that all attorneys must adhere to when crossing the U.S. border with confidential client materials, whether print or electronic. The Opinion takes the groundbreaking step of setting out many of the best practices that attorneys can&shy;&mdash;and should&mdash;strive to achieve in their passport travels. And, given many of the same considerations that govern U.S. border crossings apply equally&mdash;if not more&mdash;to international border crossings in countries such as Brazil, Russia, India, and China, among others, the Opinion provides the analytical ethical framework for all border crossings undertaken by all U.S.-licensed attorneys regardless of practice area. In this regard, not only is the New York Opinion important in its own right but it also provides guidance that other jurisdictions are expected to follow or otherwise expound upon.</em></div> <div> &nbsp;</div> <div> With President Donald J. Trump&rsquo;s increased focus on border security, the number of border searches of electronic devices by United States Customs &amp; Border Protection (CBP) has risen exponentially, from an average of less than 2,000 per month in 2016, to more than 5,000 in February 2017. For attorneys, who are obligated to safeguard client confidences under ABA Model Rule of Professional Conduct 1.6, this presents special concerns. The New York City Bar recently underscored those concerns in a groundbreaking Formal Ethics Opinion, namely, 2017-5, finding that attorneys are ethically obligated to (1) take reasonable steps to avoid disclosing confidential information before even reaching the U.S. border; (2) disclose client information to CBP at the border only to the extent reasonably necessary to comply with a claim of lawful authority; and (3) inform affected clients about any border disclosures.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Ethics Opinion advises that attorneys have a variety of obligations towards their clients before they even get to the border, including duties to become familiar with the relevant laws and practices regarding border searches of electronic devices and to think carefully about the client information they possess and how it could be harmful if disclosed. According to Opinion 2017-5, attorneys should consider not taking confidential client information across the border at all, such as by carrying blank &ldquo;burner&rdquo; phones or laptops or using software designed to securely delete information. At the border, the Opinion states that attorneys have an obligation to limit disclosures by exploring reasonable, lawful alternatives to disclosure.&nbsp; This means informing border agents of the presence of privileged or confidential materials, supporting the claim of privilege with bar association identification or business cards, and asking to speak to a border supervisor. The Opinion makes clear that attorneys need not refuse searches of their devices to the point that they are denied entry into the United States or taken into custody, however.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <div> If disclosures are made at the border, the Opinion counsels that attorneys have an obligation to promptly notify clients who are impacted, and to do so with enough specifics that the client can tell precisely what information was reviewed and seized, and how, so that the client may pursue a legal challenge to the search if so desired.</div> <div> &nbsp;</div> <div> New York is an influential jurisdiction and tends to be an early-actor that sets the standard for other jurisdictions. And the ABA Model Rules upon which the Opinion relies have been enacted in some form across much of the United States. As such, arguably, these obligations already exist in other states under those rules, even if the local ethics authorities have not yet specifically articulated them. Moreover, the same logic underlying this Opinion applies with equal&mdash;if not&nbsp; more&mdash;force to all border crossings (such as those in the BRIC nations, among others), not just crossings in and out of the United States. Thus, U.S.-licensed attorneys everywhere should be prepared to take reasonable steps to safeguard client confidences when they travel.</div> <div> &nbsp;</div> <div> For the full version of this article, which originally appeared in Bloomberg Law White Collar Report and contains the authors&rsquo; detailed practical tips for complying with attorney ethical obligations during border crossings, <a href="http://www.seyfarth.com/dir_docs/publications/BorderSearchPublishWCR.pdf">click here</a>.</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/BIO112717 Amicus Briefs at the PTAB Permitted For Question on Termination of Allergan IPR Case Based on Tribal Sovereign http://www.seyfarth.com:80/publications/BIO112717 Mon, 27 Nov 2017 00:00:00 -0500 <p> In an unprecedented move by the U.S. Patent and Trademark Office (USPTO), the Patent Trials and Appeals Board (PTAB) has permitted the filing of amicus briefs on whether the Saint Regis Mohawk Tribe (&ldquo;Tribe&rdquo;) should be permitted to terminate the inter partes review of Allergan&rsquo;s patents contested in IPR2016-00127, IPR2016-01128, IPR2016-01129, IPR2016-01130, IPR2016-01131, and IPR2016-01132. Allergan assigned the patents challenged in these IPRs to the Tribe, while retaining an exclusive license in exchange for ongoing payments. As a sovereign entity, the Tribe seeks to terminate the IPR challenges of these patents, a move which the PTAB had ruled in 2016 shielded the University of Florida Research Foundation as a sovereign entity from IPRs. See Covidien LP v University of Florida Research Foundation Inc., IPR2016-01274, Paper 21 (PTAB Jan. 25, 2016). Amicus briefs of no more than 15 pages are due to be filed by December 1, 2017, and the Petitioners and Tribe are each authorized to file a single response to any amicus brief by December 15, 2017.<br /> <br /> <a href="https://www.bioloquitur.com/amicus-briefs-ptab-permitted-question-termination-allergan-ipr-case-based-tribal-sovereign/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maechtlenhrdive112717 Laura Maechtlen quoted in HR Dive http://www.seyfarth.com:80/news/maechtlenhrdive112717 Mon, 27 Nov 2017 00:00:00 -0500 <p> Laura Maechtlen was quoted in a November 27 story from HR Dive, &quot;Legal debate over LGBT discrimination &#39;a hot mess&#39; &mdash; but finally at a crossroads,&quot; on the American Bar Association&#39;s Labor and Employment Law Conference panel &quot;Marriage Equality &amp; Religious Liberty: The Crossroads or Crosshairs of the First Amendment?&quot; Maechtlen said that most employers want to do the right thing and want to take the practical approach. You can read the <a href="https://www.hrdive.com/news/legal-debate-over-lgbt-discrimination-a-hot-mess-but-finally-at-a-cross/511645/">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonbna112717 Marshall Babson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/babsonbna112717 Mon, 27 Nov 2017 00:00:00 -0500 <p> Marshall Babson was quoted in a November 27 story from Bloomberg BNA, &quot;Union Membership Decline Doesn&#39;t Explain Drastic Drop in Strikes.&quot; Babson said that employers and unions have become smarter in reaching agreements.</p> http://www.seyfarth.com:80/news/ashfordforbes Alison Ashford quoted in Forbes Insights http://www.seyfarth.com:80/news/ashfordforbes Mon, 27 Nov 2017 00:00:00 -0500 <p> Alsion Ashford was quoted in a November 27 special report from Forbes Insights, &quot;Filling the Gap: A Realistic Look at Today&rsquo;s Challenges and Opportunities in U.S. Infrastructure.&quot; Ashford said that, overall, P3 is a proven model for sharing the risks and the opportunities and to get things done. You can download the <a href="https://www.forbes.com/forbes-insights/commonwealth-bank-of-australia/filling-the-gap/">full report here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc112617 Andrew Boutros interviewed by CBC News Network http://www.seyfarth.com:80/news/boutroscbc112617 Sun, 26 Nov 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed November 26th by the CBC News Network, &quot;Is Michael Flynn working with U.S. federal prosecutors?&quot; Boutros discussed the news that Michael Flynn has stopped communicating with President Donald Trump&#39;s lawyers, indicating he might be working with special counsel Robert Mueller in the Russian elections meddling probe. You can watch the <a href="http://www.cbc.ca/player/play/1103762499523">full interview here</a>.</p> http://www.seyfarth.com:80/news/greensteinnyt112517 Dennis Greenstein quoted in the New York Times http://www.seyfarth.com:80/news/greensteinnyt112517 Sat, 25 Nov 2017 00:00:00 -0500 <p> Dennis Greenstein was quoted in a November 25 story from the New York Times, &quot;Will the Loss of a View Lead to Lower Maintenance Costs?,&quot; on how maintenance fees are determined by how many shares of the corporation are allocated to an apartment. Greenstein said that shares are allocated to each apartment and they&rsquo;re set. You can read the <a href="https://www.nytimes.com/2017/11/25/realestate/will-the-loss-of-a-view-lead-to-lower-maintenance-costs.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/bloombergwccr112417 Andrew Boutros, Leon Rodriguez and John Schleppenbach authored an article in Bloomberg White Collar Crime Report http://www.seyfarth.com:80/publications/bloombergwccr112417 Fri, 24 Nov 2017 00:00:00 -0500 <p> Andrew Boutros, Leon Rodriguez and John Schleppenbach authored a November 24 article in Bloomberg White Collar Crime Report, &quot;Don&#39;t Just Wing It: First-of-Its-Kind Ethics Opinion Gives Critical Guidance for All Attorneys Crossing Border with Client Information.&quot; The authors provide an in-depth analysis of a recent New York City Bar Ethics Opinion on the obligations of attorneys to protect client information from disclosure during border searches by U.S. Customs. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/BorderSearchPublishWCR.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT112317 The Week in Weed: November 24, 2017 http://www.seyfarth.com:80/publications/TBT112317 Thu, 23 Nov 2017 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/11/the-week-in-weed-november-24-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE112217 OSHA Extends E-Reporting Deadline to December 15, 2017 http://www.seyfarth.com:80/publications/WSE112217 Wed, 22 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: As most employers probably know by now, OSHA&rsquo;s revised recordkeeping rule requires certain employers to electronically file injury and illness data with OSHA. Originally the reporting deadline was July 1, 2017. OSHA has again extended the deadline, this time to December 15, 2017.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/reminder-osha-e-reporting-deadline-is-december-1-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP112217 Predictive Scheduling Laws: Guide to Avoid Becoming A Cotton-Headed Ninnymuggins http://www.seyfarth.com:80/publications/CP112217 Wed, 22 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Since the days of Buddy the Elf&rsquo;s short stint as a retail employee, New York City and many other municipalities have adopted predictive scheduling laws. Though California does not yet have a such a law, San Francisco, Emeryville, and San Jose have adopted predictive scheduling ordinances. With the bustling holiday season upon us, covered employers should make sure that they are complying with these ordinances. We highlight here the requirements of these predictive scheduling ordinances while pointing out some of the best ways to ensure compliance with them.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/11/22/predictive-scheduling-laws-guide-to-avoid-becoming-a-cotton-headed-ninnymuggins/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/rabebi112217 Scott Rabe quoted in Business Insurance http://www.seyfarth.com:80/news/rabebi112217 Wed, 22 Nov 2017 00:00:00 -0500 <p> Scott Rabe was quoted in a November 22 story from Business Insurance, &quot;Oklahoma jury awards fired transgender professor over $1 million,&quot; on the news that an Oklahoma City jury awarded $1,165,000 in damages to a transgender English professor who filed a discrimination lawsuit after she failed to achieve tenure and lost her job. Rabe said that the verdict by a jury in a conservative state such as Oklahoma should send a message to both employers and potential plaintiffs that there is a path to a discrimination claim on the basis of gender identity. You can read the <a href="http://www.businessinsurance.com/article/20171122/NEWS06/912317421/Oklahoma-jury-awards-fired-transgender-professor-over-1-million-dollars">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlettbloomberglaw112217 Brett Bartlett quoted in Bloomberg Law http://www.seyfarth.com:80/news/bartlettbloomberglaw112217 Wed, 22 Nov 2017 00:00:00 -0500 <p> Brett Bartlett was quoted in a November 22 story from Bloomberg Law, &quot;U.S. Drivers Suing Uber Hope U.K. Ruling Ripples Across the Pond,&quot; on how a regulatory tribunal across the Atlantic may have given U.S. drivers suing Uber a slight boost in their claim that they aren&rsquo;t independent contractors. Bartlett said that the U.K. tribunal isn&rsquo;t binding on any court in the U.S. And the concepts it weighed don&rsquo;t easily translate to the U.S. You can read the <a href="https://biglawbusiness.com/u-s-drivers-suing-uber-hope-u-k-ruling-ripples-across-the-pond/">full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarthnlj112117 Scott Rabe and Sam Schwartz-Fenwick quoted in the National Law Journal http://www.seyfarth.com:80/news/seyfarthnlj112117 Tue, 21 Nov 2017 00:00:00 -0500 <p> Scott Rabe and Sam Schwartz-Fenwick&#39;s blog post, &quot;TITLE VII: Court Breaks from Department of Justice on Transgender Rights,&rdquo; was referenced in a November 21 story from the National Law Journal, &quot;The US Justice Department Retreated From a Transgender Professor&#39;s Case. She Still Won.&quot; The nearly $1.2 million jury verdict Monday for a transgender professor in Oklahoma followed a years-long battle in which the U.S. Justice Department&mdash;once a plaintiff in the case&mdash;retreated from the dispute in the Trump administration, highlighting the increasingly complex landscape for gender identity discrimination complaints. The Seyfarth team wrote that employers should be vigilant in establishing and maintaining nondiscrimination and anti-harassment policies that extend protections to individuals on the basis of gender identity.</p> http://www.seyfarth.com:80/publications/WC112117 District Court Awards Punitive Damages In Sex-Based Harassment EEOC Suit http://www.seyfarth.com:80/publications/WC112117 Tue, 21 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In E.E.O.C. v. Scott Medical Health Center, P.C. No. CV 16-225, 2017 WL 5493975, at *2 (W.D. Pa. Nov. 16, 2017), a default judgement of liability was entered against the defendant company for sex-based harassment, and the Court awarded the EEOC back pay, prejudgment interest, and compensatory and punitive damages. Although the Court found that an award of compensatory damages above $50,000 would be consistent with cases with comparable emotional distress, the Court determined that it was not authorized by statute to award more than this statutory cap.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/11/district-court-awards-punitive-damages-in-sex-based-harassment-eeoc-suit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TRMA112117 Tax Reform: Employee Benefits http://www.seyfarth.com:80/publications/TRMA112117 Tue, 21 Nov 2017 00:00:00 -0500 <div> <em>This is the first issue in a planned series of alerts for employers on selected topics on tax reform. The series of Tax Reform Management Alerts is designed to provide an in-depth analysis of executive compensation and employee benefits aspects of the tax reform proposals and how they will impact your business.&nbsp;</em></div> <div> &nbsp;</div> <div> On November 2, 2017, Republicans revealed their tax plan in the Tax Cuts and Jobs Act (the &ldquo;House Bill&rdquo;). While most of the media attention has been focused narrowly on the cut to corporate tax rates and the changes in the individual tax brackets and deductions, the House Bill, and the soon-to-come companion Senate version, have several significant provisions that make important changes affecting executive compensation and employee benefits generally.&nbsp;</div> <div> &nbsp;</div> <div> On November 16, 2017, the House Bill, as modified by the House Ways &amp; Means Committee, passed with a vote of 227&ndash;205. The House initially took a heavy hand to many favorable executive compensation provisions and made some important changes in the retirement and welfare areas, but the House Ways and Means Committee relented a bit. The Senate Finance Committee proposal, as modified (the &ldquo;Senate proposal&rdquo;), released late Thursday followed suit in its approach to executive compensation. Thus, employers seem to have avoided sweeping changes that would have effectively ended nonqualified deferred compensation plans.&nbsp;</div> <div> &nbsp;</div> <div> Nonetheless, the changes that remain will make a significant imprint for many companies if they remain in the bills as they work through the legislative process.&nbsp;&nbsp;</div> <div> &nbsp;</div> <h2> What Happens Next?&nbsp;</h2> <div> &nbsp;</div> <div> Seyfarth is tracking the legislation as it happens and will issue alerts to cover the evolution of what could shape up to be a changed landscape in the executive compensation, retirement, and welfare arenas. The Senate proposal came out of Committee and is expected to be debated on the floor the week after Thanksgiving.</div> <div> &nbsp;</div> <div> The following provides the highlights of the House Bill, as passed, as compared to the current version of the Senate proposal.&nbsp;</div> <h3> &nbsp;</h3> <h3> Executive Compensation</h3> <div> &nbsp;</div> <div> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;" valign="top"> <tbody> <tr> <td style="width: 100px;"> <strong>ISSUE</strong></td> <td style="width: 250px;"> <strong>HOUSE BILL, AS PASSED</strong></td> <td style="width: 250px;"> <strong>SENATE PROPOSAL</strong></td> </tr> <tr> <td style="vertical-align: top;"> Right to Defer Stock (Private Companies)</td> <td> <div> Effective for stock attributable to options exercised or RSUs settled after&nbsp;</div> <div> December 31, 2017</div> <ul> <li> Right to defer income on stock received in connection with an option exercise or RSU settlement if an employee, who is not an &ldquo;excluded employee,&rdquo;<sup>1</sup> makes an election no later than 30 days after the first time the right to the stock is substantially vested or transferable (whichever is earlier);<sup>2</sup> right is limited and will not apply to public corporations</li> <li> Clarifies that Section 83 does not apply to restricted stock units</li> </ul> </td> <td style="vertical-align: top;"> Same</td> </tr> <tr> <td style="vertical-align: top;"> <div> Section 162(m)&nbsp;</div> <div> $1 million Deductibility Limit</div> </td> <td> <div> Effective tax years beginning after 2017 with no grandfather or transition period</div> <ul> <li> Eliminates the performance based compensation and commission exceptions, further limiting compensation that can be deducted&nbsp;</li> <li> Includes principal financial officer as &ldquo;covered employee,&rdquo; realigning definition with the SEC disclosure rules</li> <li> Once an employee becomes a covered employee after 2016, he or she stays one, including if amounts are paid to a beneficiary</li> </ul> </td> <td style="vertical-align: top;"> <p> Effective tax years beginning after 2017 with limited grandfather</p> <ul> <li> Same</li> <li> Same</li> <li> Same</li> </ul> </td> </tr> <tr> <td style="vertical-align: top;"> New Tax on Excess Compensation Paid by Not-for-Profits</td> <td> <div> Beginning 2018, a new tax is imposed on excess compensation paid by a tax exempt employer:</div> <ul> <li> Tax equals 20% of compensation paid to a covered employee over $1,000,000, plus excess parachute payments</li> <li> The employer is liable for the tax</li> <li> Covered employees are the 5 highest compensated employees; once an employee becomes a covered employee after 2016, he or she stays one</li> <li> Excess parachute payments are payments contingent on termination of employment that exceed 3 times the employee&rsquo;s average annualized base compensation (a change in control Is not required for this purpose)</li> </ul> </td> <td style="vertical-align: top;"> Same</td> </tr> <tr> <td colspan="3" style="text-align: center;"> <strong>FRINGE BENEFITS</strong></td> </tr> <tr> <td style="vertical-align: top;"> Repeal of Deduction for Common Executive Perks</td> <td> Eliminate employer deduction for entertainment expenses, membership dues and other common perquisites, unless the individual pays tax on these benefits, effective for expenses incurred after 2017</td> <td style="vertical-align: top;"> More limited changes to current law</td> </tr> <tr> <td style="vertical-align: top;"> Employer-Provided Housing</td> <td> Beginning in 2018, the exclusion for housing under IRC 119 will be limited to $50,000 ($25,000 for a married individual filing a joint return) and will phase out for highly compensated individuals</td> <td style="vertical-align: top;"> No change to current law</td> </tr> <tr> <td style="vertical-align: top;"> Moving Expenses</td> <td> Eliminate employer deduction for moving expenses incurred after 2017 and the exclusion from income for qualifying moving expense reimbursements made after 2017</td> <td style="vertical-align: top;"> Same (provision sunsets after 2025)</td> </tr> </tbody> </table> <div> &nbsp;</div> <div> <span style="font-size:10px;">1. Generally, an excluded employee is (1) the CEO, CFO (or individual acting in either capacity), (2) family member of CEO or CFO, (3) an employee who has been one of the four highest compensated officers for the corporation for any of the 10 preceding taxable years, or (4) a 1% owner of the corporation at any time during the 10 preceding taxable years.</span></div> <div> &nbsp;</div> <div> <span style="font-size:10px;">2. If deferred, the deferred income is taxed upon the earliest of (1) the first date the qualified stock becomes transferable, including to the employer, (2) the date the employee first becomes an excluded employee, (3) the date the stock becomes readily tradeable on an established securities market, (4) the date five years after the first date the employee&rsquo;s right to the stock becomes transferable or is not subject to a substantial risk of forfeiture, whichever is earlier (the Senate version simply provides the date that is five years after the first date the right to the stock becomes substantially vested), or (5) the date the employee revokes the deferral election.</span></div> </div> <p> &nbsp;</p> <h3> Welfare</h3> <p> &nbsp;</p> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <tbody> <tr> <td style="width: 100px;"> <strong>ISSUE</strong></td> <td style="width: 250px;"> <strong>HOUSE BILL, AS PASSED</strong></td> <td style="width: 250px;"> <strong>SENATE PROPOSAL</strong></td> </tr> <tr> <td> Individual Mandate</td> <td> No change to current law</td> <td> Reduces penalty for individual mandate to $0, beginning in 2019</td> </tr> <tr> <td> Medical expense deduction (individuals may deduct unreimbursed medical expenses that exceed 10% of AGI)</td> <td> Repeals deduction entirely</td> <td> No change to current law</td> </tr> <tr> <td> Archer Medicals Savings Accounts (MSAs)</td> <td> Eliminates deduction for contributions to Archer MSAs but permits rollover to Health Savings Accounts (HSAs)</td> <td> No change to current law</td> </tr> <tr> <td> Qualified Transportation Fringe Benefit</td> <td> Eliminates deductions for transportation fringe benefit</td> <td> Eliminates deductions for transportation fringe benefit.</td> </tr> <tr> <td> Qualified Bicycle Reimbursement</td> <td> No change to current law</td> <td> Repeals qualified bicycle exclusion (provision sunsets after 2025)</td> </tr> <tr> <td> Dependent Care Assistance Programs</td> <td> Exclusion repealed beginning in 2023</td> <td> No change to current law</td> </tr> <tr> <td> Adoption Assistance Program</td> <td> Exclusion repealed beginning in 2018</td> <td> No change to current law</td> </tr> <tr> <td> Educational Assistance</td> <td> Repeals tax exclusion under Code Section 127 (but not under Code Section 132(d)) for certain employer reimbursements of education-related expenses</td> <td> No change to current law</td> </tr> </tbody> </table> <p> &nbsp;</p> <h3> Retirement</h3> <p> &nbsp;</p> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <tbody> <tr> <td style="width: 100px;"> <strong>ISSUE</strong></td> <td style="width: 250px;"> <strong>HOUSE BILL, AS PASSED</strong></td> <td style="width: 250px;"> <strong>SENATE PROPOSAL</strong></td> </tr> <tr> <td> Hardship Withdrawals</td> <td> <ul> <li> Deletes the six month suspension requirement for elective deferrals following a hardship distribution</li> <li> Increases the plan assets from which a participant can take a hardship distribution to include earnings and employer contributions in addition to employee contributions&nbsp;</li> <li> Provides that a participant can take a hardship before requesting a loan from the plan</li> </ul> </td> <td> No change to current law</td> </tr> <tr> <td> Deferral Limits</td> <td> No change to current law</td> <td> Combines governmental 457(b) deferrals of the same employer with 401(k) or 403(b) deferrals for purposes of annual limit</td> </tr> <tr> <td> 415 Contribution Limits</td> <td> No change to current law</td> <td> Reduces the maximum aggregate contributions for individuals that are eligible for more than one plan (401(k), 403(b) and/or governmental 457(b)) of the same employer</td> </tr> <tr> <td> Loans</td> <td> Following a plan termination or separation from service, allows participants to rollover a qualified plan loan offset amount to an eligible retirement plan by the due date (including extensions) of the participant&rsquo;s federal income tax return for the year in which the offset occurs, thereby avoiding taxation on the offset amount</td> <td> Same</td> </tr> <tr> <td> Post-termination contributions</td> <td> No change to current law</td> <td> Eliminates special rule allowing employer contributions to governmental 403(b) plans for up to five years after termination of employment</td> </tr> <tr> <td> Catch-Ups Contributions</td> <td> No change to current law</td> <td> Eliminates special 403(b) and governmental 457(b) catch-up contributions; retains the general catch-up limit</td> </tr> <tr> <td> In-Service Distributions</td> <td> Age for in-service distributions from governmental plans lowered to earlier of normal retirement date or age 59 1/2&nbsp;</td> <td> No change to current law</td> </tr> <tr> <td> Frozen DB Plans</td> <td> Frozen pension plans allowed to protect grandfathered benefits as long as grandfathered group not modified in a discriminatory manner after plan is closed to new hires</td> <td> No change to current law</td> </tr> </tbody> </table> <p> &nbsp;</p> <div> Seyfarth Shaw will continue to monitor Congressional and regulatory efforts and will alert clients as new developments occur.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL112117 Thankful (and Bonus Social Media Privacy Legislation Desktop Reference) http://www.seyfarth.com:80/publications/EL112117 Tue, 21 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Wishing you a wonderful holiday season.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/11/thankful-and-bonus-social-media-privacy-legislation-desktop-reference/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS112017a Now Available! Seyfarth Shaw’s 2017-2018 Edition of the Social Media Privacy Legislation Desktop Reference http://www.seyfarth.com:80/publications/TS112017a Mon, 20 Nov 2017 00:00:00 -0500 <p> There is no denying that social media continues to transform the way companies conduct business. In light of the rapid evolution of social media, companies today face significant legal challenges on a variety of issues ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property.<br /> <br /> <a href="https://www.tradesecretslaw.com/2017/11/articles/social-media-2/now-available-seyfarth-shaws-2017-2018-edition-of-the-social-media-privacy-legislation-desktop-reference/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO112017 “Tax Cut and Jobs Act” H.R. 1 Passes House Of Representatives: Provisions To Watch http://www.seyfarth.com:80/publications/BIO112017 Mon, 20 Nov 2017 00:00:00 -0500 <p> BioLoquitur has reported on legislative developments in the past, but never did we expect to discuss a tax bill. Last week, however, the U.S. House of Representatives passed the &ldquo;Tax Cut and Jobs Act&rdquo; Bill (H.R. 1) and H.R. 1 deserves a spotlight. After all, one of our goals is to provide the life science industry with the latest news that could affect the industry.<br /> <br /> <a href="https://www.bioloquitur.com/tax-cut-jobs-act-h-r-1-passes-house-representatives-provisions-watch/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS112017 Webinar Recap! The Defend Trade Secrets Act–The Biglaw Partner and Forensic Technologist Perspective http://www.seyfarth.com:80/publications/TS112017 Mon, 20 Nov 2017 00:00:00 -0500 <p> Robert Milligan, along with Certified Forensic Computer Examiner Jim Vaughn, presented The Defend Trade Secrets Act &ndash; The Biglaw Partner and Forensic Technologist Perspective webinar for Metropolitan Corporate Counsel on Thursday, November 2. They focused on the key features of the DTSA and compared its key provisions to the state Uniform Trade Secrets Act (UTSA) adopted in many states, and they provided practical tips and strategies concerning the pursuit and defense of trade secret cases in light of the DTSA and some predictions concerning the future of trade secret litigation.<br /> <br /> <a href="https://www.tradesecretslaw.com/2017/11/articles/dtsa/webinar-recap-the-defend-trade-secrets-act-the-biglaw-partner-and-forensic-technologist-perspective/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/olsonsl112017 Camille Olson quoted in Super Lawyers http://www.seyfarth.com:80/news/olsonsl112017 Mon, 20 Nov 2017 00:00:00 -0500 <p> Camille Olson was quoted in a November 20 story from Super Lawyers, &quot;To Pay or Not to Pay Interns,&quot; on how a combination of federal, state and local laws govern whether or not an employer is required to pay interns. Olson said that a common mistake is only checking the federal wage hour laws established in the FLSA. You can read the <a href="https://www.superlawyers.com/united-states/article/to-pay-or-not-to-pay-interns/50018bbb-87eb-4096-b436-4045a741fd0d.html">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360111717 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360111717 Fri, 17 Nov 2017 00:00:00 -0500 <p> Marshall Babson was quoted in a November 17 story from Law360, &quot;NLRB&#39;s New Top Cop Crucial To Anticipated Pro-Biz Shift,&quot; on new National Labor Relations Board General Counsel Peter Robb. Babson said that the general counsel shapes the prosecutorial profile of the NLRB.</p> http://www.seyfarth.com:80/news/hoffmanwapo111717 Valerie Hoffman quoted in the Washington Post http://www.seyfarth.com:80/news/hoffmanwapo111717 Fri, 17 Nov 2017 00:00:00 -0500 <p> Valerie Hoffman was quoted in a November 17 story from the Washington Post, &quot;Why sexual harassment training doesn&rsquo;t stop harassment.&quot; Hoffman said that training is effective for people who are open to modifying their conduct, but not to those who don&rsquo;t want to get it. You can read the <a href="https://www.washingtonpost.com/news/on-leadership/wp/2017/11/17/why-sexual-harassment-training-doesnt-stop-harassment/?utm_term=.3b5794b9e345">full article here</a>.</p> http://www.seyfarth.com:80/publications/WSE111717a Senate Confirms Trump Selection for MSHA http://www.seyfarth.com:80/publications/WSE111717a Fri, 17 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: President Trump&rsquo;s selection for Administrator at MSHA has been confirmed this week by the Senate.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/msha-compliance/senate-confirms-trump-selection-for-msha/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE111717 DOT Amends Employee Drug Testing Requirements http://www.seyfarth.com:80/publications/WSE111717 Fri, 17 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On November 13, 2017, the Department of Transportation amended its drug testing program regulation which, among other things, adds certain semi-synthetic opioids to its drug testing panel.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/transportation/dot-amends-employee-drug-testing-requirements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP111617 ComMISSION Impossible: The Pitfalls of California Commission Agreements http://www.seyfarth.com:80/publications/CP111617 Thu, 16 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: There are many different ways to pay employees in California. What is the scoop behind paying commissions? What are commission agreements and how have courts deciphered their coded mysteries? Read on for the most current intelligence from the SIA (Seyfarth Intelligence Agency).<br /> <br /> <a href="https://www.calpeculiarities.com/2017/11/16/commission-impossible-the-pitfalls-of-california-commission-agreements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL111617 Beware the Rumor Mill: Massachusetts Court Finds Reporting of Rumored Office Romance May Be Protected Activity http://www.seyfarth.com:80/publications/EL111617 Thu, 16 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: A Massachusetts federal court has found that reporting a rumored office romance and complaining about paramour favoritism can be protected activity that is protected by anti-retaliation laws. The court also found for the first time that paramour favoritism can be the basis of an unlawful discrimination claim.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/11/beware-the-rumor-mill-massachusetts-court-finds-reporting-of-rumored-office-romance-may-be-protected-activity/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR111617 DOT Amends Employee Drug Testing Requirements http://www.seyfarth.com:80/publications/LR111617 Thu, 16 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On November 13, 2017, the Department of Transportation amended its drug testing program regulation which, among other things, adds certain semi-synthetic opioids to its drug testing panel.<br /> <br /> <a href="https://www.employerlaborrelations.com/2017/11/16/dot-amends-employee-drug-testing-requirements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT111617 The Week in Weed: November 17, 2017 http://www.seyfarth.com:80/publications/TBT111617 Thu, 16 Nov 2017 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/11/the-week-in-weed-november-17-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatmanlaw360111617 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360111617 Thu, 16 Nov 2017 00:00:00 -0500 <p> Gerald Maatman was quoted in a November 16 story from Law360, &quot;EEOC Report Spotlights Bias Suit Spike, Backlog Cut.&quot; Maatman said that a significant issue affecting the commission going forward is what happens when the President&#39;s appointees take hold and have their hands on the commission&rsquo;s decision-making activities, such as what types of lawsuits get filed and against whom.</p> http://www.seyfarth.com:80/news/hilbernlaw360111617 Dyann DelVecchio Hilbern quoted in Law360 http://www.seyfarth.com:80/news/hilbernlaw360111617 Thu, 16 Nov 2017 00:00:00 -0500 <p> Dyann DelVecchio Hilbern was quoted in a November 16 story from Law360, &quot;4 Tips For Handling Work-Based Green Card Interviews,&quot; on how foreign nationals will also want to bring the correct documents to these interviews, which can be quite extensive. Hilbern said that we&rsquo;re talking about files that are 20 and 30 pounds, adding that it just makes sense to bring everything.</p> http://www.seyfarth.com:80/news/paparellibna111617 Angelo Paparelli quoted in Bloomberg BNA http://www.seyfarth.com:80/news/paparellibna111617 Thu, 16 Nov 2017 00:00:00 -0500 <p> Angelo Paparelli was quoted in a November 16 story from Bloomberg BNA, &quot;California Immigration Law Creates New Challenges for Employers,&quot; on California&rsquo;s A.B. 450, which restricts &ldquo;immigration enforcement agents&rdquo; from entering nonpublic areas of an employer&rsquo;s property without a judicial warrant and from accessing personnel records without a subpoena or judicial warrant. Paparelli said that officers from several other federal agencies conduct enforcement actions that could fall under A.B. 450&rsquo;s purview.</p> http://www.seyfarth.com:80/news/casciarishrm111517 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm111517 Wed, 15 Nov 2017 00:00:00 -0500 <p> Joan Casciari was quoted in a November 15 story from SHRM, &quot;Following ADA Leave Decision &lsquo;Huge Mistake&rsquo; Outside 7th Circuit,&quot; on how the Supreme Court might resolve courts&rsquo; divide on ADA leave. Casciari said that, as a practical matter, the EEOC will scrutinize any employer leave policy that cuts off leave after a specified period. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/ada-leave-decision.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/ERISA111517 Fourth Circuit Affirms Health Care Fraud Convictions for Billing Insurers for Medically Unnecessary Services http://www.seyfarth.com:80/publications/ERISA111517 Wed, 15 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Fourth Circuit found that the medical necessity of a given service constitutes a material element of representations regarding submissions for payment, potentially providing payors with another legal authority to fight health care fraud.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2017/11/15/fourth-circuit-affirms-health-care-fraud-convictions-for-billing-insurers-for-medically-unnecessary-services/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC111517 Bulldozing The Backlog & Doubling Filings: EEOC’s 2017 Performance And Accountability Report Shows Decreased Inventory And A Surge In Filings http://www.seyfarth.com:80/publications/WC111517 Wed, 15 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On November 15, 2017, the EEOC released its annual Performance and Accountability Report for Fiscal Year 2017 &ndash; its internal &ldquo;report card&rdquo; for its fiscal year 2017. The report touts the EEOC&rsquo;s progress in reducing charge inventory, as well as the increased number of merits lawsuits that were filed by the EEOC over last fiscal year. The report notes that those filings more than doubled over FY 2016.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/11/bulldozing-the-backlog-doubling-filings-eeocs-2017-performance-and-accountability-report-shows-decreased-inventory-and-a-surge-in-filings/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS111517 Enterprise bargaining: can employers still grow a forest from a few seeds? http://www.seyfarth.com:80/publications/WLS111517 Wed, 15 Nov 2017 00:00:00 -0500 <p> In recent blogs, we have been looking at recent trends in enterprise bargaining including issues about how the group of employees covered by an agreement is selected. The trends include:<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2017/11/enterprise-bargaining-can-employers-still-grow-a-forest-from-a-few-seeds/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA111517-LE DOT Amends Employee Drug Testing Requirements http://www.seyfarth.com:80/publications/MA111517-LE Wed, 15 Nov 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> On November 13, 2017, the Department of Transportation amended its drug testing program regulation which, among other things, adds certain semi-synthetic opioids to its drug testing panel.</em></p> <p> The Department of Transportation (&ldquo;DOT&rdquo;) has published its long-awaited <a href="https://www.gpo.gov/fdsys/pkg/FR-2017-11-13/pdf/2017-24397.pdf" title="82 FR 52229">final rule</a> amending its drug testing program for DOT-regulated employers. The new rule comes in the wake of the Department of Health and Human Services (&ldquo;HHS&rdquo;) revised &ldquo;Mandatory Guidelines for Federal Workplace Drug Testing Programs&rdquo; (found <a href="https://www.federalregister.gov/documents/2017/01/23/2017-00979/mandatory-guidelines-for-federal-workplace-drug-testing-programs">here</a>) which became effective on October 1, 2017.</p> <p> The new DOT rule makes the following significant changes:</p> <ul> <li> Adding four semi-synthetic opioids (hydrocodone, oxycodone, hydromorphone, and oxymorphone) to the drug testing panel, which is &ldquo;intended to help address the nation-wide epidemic of opioid abuse&rdquo; and create safer conditions for transportation industries and the public;</li> <li> Adding methylenedioxyamphetamine (&ldquo;MDA&rdquo;) as an initial test analyte because, in addition to being considered a drug of abuse, it is a metabolite of methylenedioxyethylamphetaime (&ldquo;MDEA&rdquo;) and methylenedioxymethamphetamine (&ldquo;MDMA&rdquo;), and such testing potentially acts as a deterrent;</li> <li> Removing testing for MDEA from the existing drug testing panel;</li> <li> Removing the requirement for employers and consortium/third party administrators (&ldquo;C/TPAs&rdquo;) to submit blind specimens in order to relieve unnecessary burdens on employers, C/TPAs, and other parties; and</li> <li> Adding three &ldquo;fatal flaws&rdquo; to the list of when a laboratory would reject a specimen and modifying the &ldquo;shy bladder&rdquo; process so that the collector will discard certain questionable specimens.</li> </ul> <p> The new rule goes into effect on January 1, 2018. Employers who comply with DOT standards when drug testing should modify their drug testing policies accordingly. Employers that are not subject to DOT requirements, but comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs also should consider whether to modify their drug testing policies to comply with the new rules and guidelines. If you have questions about the new regulations or employee drug testing in general, please contact the authors or your Seyfarth attorney.&nbsp;</p> http://www.seyfarth.com:80/publications/WLS111517a The future of work: pioneering health and safety professionals http://www.seyfarth.com:80/publications/WLS111517a Wed, 15 Nov 2017 00:00:00 -0500 <p> Addressing issues including mental wellbeing and workplace responses to domestic violence and sexual misconduct require multidisciplinary approaches. The risk management skill set which health and safety professionals possess has an important part to play in a holistic approach that should be used in collaboration with human and resource management professionals. The most creative organisations understand that cross-disciplinary teams are best placed to respond to new workplace challenges and facilitate pooling of ideas from safety, human resources, industrial, wellbeing and other professionals &ndash; working in true collaboration.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2017/11/the-future-of-work-pioneering-health-and-safety-professionals/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO111517 When Are Swashbuckling Experts Seemingly ‘Flooding’ a Court with Large Number of References? http://www.seyfarth.com:80/publications/BIO111517 Wed, 15 Nov 2017 00:00:00 -0500 <p> In Bayer Pharma AG v. Watson Laboratories, Inc. (Fed. Cir. November 1, 2017), the Federal Circuit overturned the District of Delaware&rsquo;s finding that Watson failed to prove by clear and convincing evidence that the subject matter encompassed by the claims of Bayer&rsquo;s U.S. Patent 8,613,950 (the &lsquo;950 patent) was obvious under 35 USC 103. The CAFC invalidated claims 9 and 11 of the &rsquo;950 patent as unpatentably obvious. The Federal Circuit made this determination de novo based on the underlying findings of fact from the district court.<br /> <br /> <a href="https://www.bioloquitur.com/swashbuckling-experts-seemingly-flooding-court-large-number-references/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC111417 What Employers Should Know About The EEOC’s New Focus http://www.seyfarth.com:80/publications/WC111417 Tue, 14 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Blog readers will recall our Vlog in early October recapping the EEOC&rsquo;s 2017 Fiscal Year. Today, Jerry Maatman of Seyfarth Shaw, LLP discusses recent developments from the EEOC that ought to be &ldquo;required reading&rdquo; for employers. Specifically, Jerry analyzes the agency&rsquo;s new technological initiatives, end-of-year litigation statistics, and the line of high-ranking officials awaiting appointment. Lastly, he gives his predictions for the EEOC&rsquo;s priorities during FY 2018.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/11/what-employers-should-know-about-the-eeocs-new-focus/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/schwartzfenwicknlj111417 Sam Schwartz-Fenwick quoted in the National Law Journal http://www.seyfarth.com:80/news/schwartzfenwicknlj111417 Tue, 14 Nov 2017 00:00:00 -0500 <p> Sam Schwartz-Fenwick was quoted in a November 14 story from the National Law Journal on whether and to what extent transgender and also gay workers are entitled to full workplace protections under federal civil rights laws. Schwartz-Fenwick said that there is a lot of confusion on what the law requires that has been going on for a long time, and more uncertainty is negatively perceived by many employers, who prefer to work in black and white, not shades of gray. You can read the <a href="https://www.law.com/nationallawjournal/sites/nationallawjournal/2017/11/14/walmarts-top-lgbt-ranking-came-with-an-asterisk-and-what-that-means/?slreturn=20171015103150">full article here</a>.</p> http://www.seyfarth.com:80/publications/HCRMA111317 Issue 115: Ready or Not, Here Come ACA Employer Mandate Penalty Notices http://www.seyfarth.com:80/publications/HCRMA111317 Mon, 13 Nov 2017 00:00:00 -0500 <div> <em>This is the one hundred and fifteenth issue in our series of alerts for employers on selected topics on health care reform. (Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here</a> to access our general Summary of Health Care Reform and other issues in this series.)&nbsp; This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> The notices are coming.&nbsp; As described in Issues <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HealthCareReformSeries_Issue4511_27_12.pdf">45</a> and <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HealthCareReformSeries_Issue481_04_13.pdf">48</a>, the Affordable Care Act&nbsp; requires large employers to pay a penalty if they fail to offer qualifying health coverage.&nbsp; These rules were delayed until 2015, but, the IRS had not yet assessed any penalties.</div> <div> &nbsp;</div> <div> The IRS has now announced through FAQs on its <a href="https://www.irs.gov/affordable-care-act/employers/questions-and-answers-on-employer-shared-responsibility-provisions-under-the-affordable-care-act#Making">website</a> that it will begin issuing notices to employers of their potential liability for an employer shared responsibility payment under the ACA &ldquo;in late 2017.&rdquo;&nbsp; As promised in earlier regulatory guidance, the IRS will provide an opportunity for employers to respond and challenge proposed employer shared responsibility payments (ESRP) before the penalties are actually assessed.</div> <div> &nbsp;</div> <div> Here&rsquo;s how the process will work:</div> <div> &nbsp;</div> <ul> <li> The IRS will send the employer a Letter 226-J. (The IRS has released a sample of this letter which can be found <a href="https://www.irs.gov/individuals/understanding-your-letter-226-j">here</a>.)&nbsp; Letter 226J will include:<br /> <ul> <li> A summary table itemizing the proposed payment by month;</li> <li> An Employee Premium Tax Credit (PTC) Listing (Form 14765) listing employees who received a premium tax credit for the year in question; and</li> <li> A form (Form 14764) on which the employer can provide a response to the proposed assessment.<br /> &nbsp;</li> </ul> </li> <li> The employer will generally have 30 days from the date of the IRS notice to respond to the IRS.&nbsp; If the employer disagrees with the proposed ESRP, the employer must submit a completed Form 14764, with a statement explaining why the employer disagrees with the assessment and supporting documentation.&nbsp; The statement should describe any changes requested to the information previously reported on Forms 1094-C or 1095-C.&nbsp; If corrections are necessary to the Employee PTC Listing, a revised Employee PTC Listing should be included with Form 14764.&nbsp;<br /> &nbsp;</li> <li> The IRS will respond to an employer&rsquo;s submission of Form 14764 with a version of Letter 227 which will describe further actions the employer may need to take.<br /> &nbsp;</li> <li> If the employer, is not satisfied with the response, the employer may request a pre-assessment conference with the IRS Office of Appeals, by the response date shown on Letter 227, which generally will be 30 days from the date of Letter 227.</li> </ul> <div> Employer Action Steps</div> <ul> <li> Be on the look-out for IRS notices as employers only have 30 days to respond.<br /> &nbsp;</li> <li> Have 1095-C reporting records handy to check the accuracy of any proposed penalties and be ready to respond.<br /> &nbsp;</li> <li> If you do receive an IRS notice, review and confirm the data (e.g., was this actually an employee of the employer, was it a full-time employee, was the individual offered coverage, etc.).<br /> &nbsp;&nbsp;</li> <li> Then consider your options in responding to the assessment.&nbsp;&nbsp;</li> </ul> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM111317-LE Albany County, New York Passes Salary History Ban http://www.seyfarth.com:80/publications/OMM111317-LE Mon, 13 Nov 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong></em>In line with a wave of salary history bans going into effect across the country, Albany County, New York just passed its own salary history ban.&nbsp;</p> <p> Last month, the Albany County Legislature unanimously voted to amend the Albany County Human Rights Law to prohibit employers from requiring job applicants to provide prior or current salary information before offering them employment. &nbsp;(The text of the bill can be located <a href="http://albanycounty.com/Libraries/County_Executive/20171030-PH-16-LL_P.sflb.ashx">here</a>). Earlier last week on November 6, 2017, Albany County Executive Daniel McCoy signed the bill into law. The law will go into effect thirty days after it is filed with the New York Secretary of State.</p> <p> The law will prohibit all Albany County employers with four or more employees, and employment agencies, from:</p> <ul> <li> screening applicants based on their current or prior wages or other compensation;</li> <li> requiring that an applicant&rsquo;s prior wages satisfy minimum or maximum criteria;</li> <li> requesting or requiring that applicants disclose salary history information as a condition of being interviewed or considered for employment; and</li> <li> seeking information about the current or prior salary of an applicant from his or her current or former employers.</li> </ul> <p> The Albany County law contains a narrow exception. <strong><em>Only after</em></strong> extending an offer of employment &ldquo;with compensation&rdquo; details to the applicant, and with the written authorization of the applicant, employers or employment agencies may confirm the prior wages, benefits or other compensation history of the applicant.</p> <p> Seyfarth Shaw is tracking this emerging area of law closely. We will keep you updated regarding any developments. For information on how this law might affect your company, contact any member of <a href="http://www.seyfarth.com/pay-equity-group">Seyfarth&rsquo;s Pay Equity Group</a>.&nbsp;</p> http://www.seyfarth.com:80/publications/TBT111317 Maine Legislature Fails to Override Governor’s Veto of Recreational Marijuana Law http://www.seyfarth.com:80/publications/TBT111317 Mon, 13 Nov 2017 00:00:00 -0500 <p> On November 8, 2016, Maine voters approved &ldquo;Question 1 &ndash; An Act to Legalize Marijuana&rdquo; (&ldquo;Act&rdquo;), and joined a handful of other states, including California, to have legalized the recreational use, retail sale and taxation of marijuana. As approved, the Act would have allowed persons 21 years of age or older to use or possess up to 2&frac12; ounces of marijuana, consume marijuana in nonpublic places (including a private residence), and grow, at the person&rsquo;s residence, up to 6 flowering marijuana plants (and up to 12 immature plants). The Act also would have legalized the purchase of marijuana or marijuana seedlings or plants from retail marijuana stores and cultivation facilities. Importantly for employers, the Act was the first law of its kind in the nation establishing express anti-discrimination protections for recreational marijuana users.<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/11/maine-legislature-fails-to-override-governors-veto-of-recreational-marijuana-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL111317 Long-Term Leave Under the ADA May Be Another Step Closer to Becoming a Thing of the Past http://www.seyfarth.com:80/publications/EL111317 Mon, 13 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Eleventh Circuit is the next to find a long-term leave of absence is not a reasonable accommodation under the ADA.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/11/long-term-leave-under-the-ada-may-be-another-step-closer-to-becoming-a-thing-of-the-past/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH111317 Passage of the Save Local Businesses Act in the House May Signal a Broader Rejection of Obama-Era Rules On Joint Employment http://www.seyfarth.com:80/publications/WH111317 Mon, 13 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On November 7, 2017, the U.S. House of Representatives passed the Save Local Businesses Act. If passed by the Senate, the bill would overturn Obama-era decisions and agency guidance broadly defining and holding separate, unrelated companies liable as &ldquo;joint employers&rdquo; under federal wage &amp; hour and labor law. Perhaps more importantly, the bill signifies a broader trend to provide more clear guidance and roll-back various Obama-era rules on wage &amp; hour issues.<br /> <br /> <a href="https://www.wagehourlitigation.com/joint-employment/passage-of-the-save-local-businesses-act-in-the-house-may-signal-a-broader-rejection-of-obama-era-rules-on-joint-employment/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA111317-LE Shifty Business III: NYS Proposes Rules Requiring Pay for On-Call Scheduling Practices http://www.seyfarth.com:80/publications/MA111317-LE Mon, 13 Nov 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Proposed rules released by the NYS DOL would require employees to be paid for time not worked due to on-call scheduling practices.&nbsp;&nbsp; </em></p> <p> The New York State Department of Labor has <a href="https://labor.ny.gov/workerprotection/laborstandards/pdfs/employee-scheduling-proposed-rule.pdf"><u>proposed rules</u></a> that would significantly expand entitlement to call-in pay for employees in New York State. Currently, the call-in pay provisions only require any employee who reports for a shift to be paid for that shift. The proposed rules would require call-in pay when an employee reports to work, works an unscheduled shift, has a shift cancelled, is on-call, or has to call to confirm a shift. The proposed rules will be subject to a 45-day comment period after publication in the State Registrar on November 22.</p> <p> The rules followed Governor Cuomo&rsquo;s <a href="https://www.governor.ny.gov/news/governor-cuomo-directs-commissioner-labor-hold-public-hearings-employee-scheduling"><u>September directive</u></a> that the DOL hold hearings on the issue of employee scheduling.&nbsp; The DOL held <a href="https://labor.ny.gov/workerprotection/laborstandards/oncallscheduling.shtm"><u>four hearings</u></a> across the state and solicited written testimony in September and October. On November 10, <a href="http://on.ny.gov/2As4zd7"><u>Governor Cuomo announced</u></a> the proposed rules, quoting Commissioner Roberta Reardon: &ldquo;I&rsquo;m proud to announce these regulations that I believe will incentivize fairness in scheduling practices throughout New York.&rdquo;</p> <p> This announcement comes only weeks before implementation of the <a href="http://www.seyfarth.com/publications/MA103017-LE"><u>New York City Fair Workweek Law</u></a>, imposing strict scheduling requirements on New York City retail and fast food employers. The rules proposed by the DOL will apply to employees other than those covered by an industry-specific minimum wage order.&nbsp; Governor Cuomo&rsquo;s office has indicated that these proposed rules are meant to supplement the Fair Workweek Law.</p> <p> <strong>Coverage</strong></p> <p> The proposed rules apply to <em>all employees</em> subject to the Miscellaneous Industries and Occupations minimum wage order.&nbsp; Employers subject to the <a href="https://www.labor.ny.gov/formsdocs/wp/CR146.pdf"><u>DOL&rsquo;s Hospitality Industry Wage Order</u></a> remain subject to the call-in pay requirements set forth therein. The proposed rules would not apply to employees covered by a collective bargaining agreement that expressly provides for call-in pay. Call-in pay requirements, other than for reporting to work, also would not apply in weeks where an employee earns more than 40 times the hourly minimum wage.&nbsp;</p> <p> <strong>Situations Requiring Call-in Pay</strong></p> <p> The proposed rules would mandate call-in pay in the situations set forth below.</p> <ul> <li> <em>Reporting to work:</em> at least 4 hours of call-in pay.</li> <li> <em>Unscheduled shift:</em> 2 additional hours of call-in pay for any shift with hours not scheduled at least 14 days in advance.</li> <li> <em>Cancelled shift:</em> 4 hours of call-in pay for any shift cancelled less than 72 hours in advance.</li> <li> <em>On-call:</em> 4 hours of call-in pay if the employee has to be available for work.</li> <li> <em>Call for schedule:</em> 4 hours of call-in pay if the employee has to contact the employer up to 72 hours in advance to confirm whether to report for a shift.</li> </ul> <p> <strong>Rate of Call-in Pay</strong></p> <p> The proposed rules calculate call-in pay as set forth below.</p> <ul> <li> <em>Actual attendance:</em> the employee&rsquo;s regular rate of pay or overtime rate of pay, whichever applies.</li> <li> <em>Minimum rate:</em> any hours, other than those for actual attendance, are paid at the basic hourly minimum wage, with no allowances. Because this is not payment for work, it is not included in the employee&rsquo;s regular rate of pay for calculating overtime.</li> <li> <em>Offsets:</em> call-in pay cannot be offset by requiring the use of leave or by payments exceeding those required by this law.</li> <li> <em>Shorter work days:</em> if an employee normally works a shift shorter than four hours, call-in pay for reporting to work or cancelled shifts is only required for the number of hours the employee normally works. This only applies if the employee&rsquo;s total hours worked or scheduled for the shift do not change weekly.</li> </ul> <p> <strong>Exceptions </strong></p> <p> A new employee or regularly scheduled employee is not entitled to call-in pay for volunteering to cover: (i) a new and additional shift during the first two weeks it is worked; or (ii) a shift that was scheduled 14 days in advance to be worked by another employee.</p> <ul> <li> <em>New employee:</em> one who has been employed for less than two weeks.</li> <li> <em>Regularly scheduled employee: </em>one who is scheduled at least 14 days in advance for shifts, consistent with a written good faith estimate of hours provided at the time the employee was hired, and which can be amended at the employee&rsquo;s request.</li> <li> <em>Volunteering to cover a shift:</em> accepting a request from another regularly scheduled employee or an open request from an employer, provided there are no consequences for employees who do not extend or accept these requests.</li> </ul> <p> Employees are not entitled to call-in pay when an shift is cancelled due to:</p> <ul> <li> the employee&rsquo;s request for time off; or</li> <li> an act of God or other cause not within the employer&rsquo;s control, because of which the operations at the workplace cannot begin or continue.&nbsp; If operations can begin but staffing needs are reduced in this situation, the employer can cancel shifts of regularly scheduled employees 24 hours in advance without call-in pay.</li> </ul> <p> <strong>Implications for Employers</strong></p> <p> Given the Governor&rsquo;s support, employers should prepare to revise their written policies in accordance with the proposed rules on call-in pay. We will continue to track implementation of the legislation, and advise of any updates.</p> http://www.seyfarth.com:80/publications/EL111017 Upcoming Webinar: Using Biometric Technology Wisely http://www.seyfarth.com:80/publications/EL111017 Fri, 10 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In this hot topic webinar, on Thursday, November 16, 2017, we will discuss how to avoid becoming the next target in a lawsuit concerning the collection and retention of biometric data. There is no cost to attend this program, but registration is required.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/11/upcoming-webinar-using-biometric-technology-wisely/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR111017 Peter Robb Confirmed as NLRB General Counsel http://www.seyfarth.com:80/publications/LR111017 Fri, 10 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis:&nbsp;<em>Former management-side labor attorney Peter Robb was confirmed as the General Counsel for the National Labor Relations Board, the last key piece to what many employers hope will result in the Board&rsquo;s reversals of several Obama-era rulings.</em></p> <p> <a href="https://www.employerlaborrelations.com/2017/11/10/peter-robb-confirmed-as-nlrb-general-counsel/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=6a0c97c2d1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-6a0c97c2d1-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/olsoncrains101017 Camille Olson quoted in Crain's Chicago Business http://www.seyfarth.com:80/news/olsoncrains101017 Fri, 10 Nov 2017 00:00:00 -0500 <p> Camille Olson was quoted in a November 10 story from Crain&#39;s Chicago Business, &quot;Looking to sue a law firm for discrimination? Good luck.&quot; Olson said that over the past decade more law firms have added a section to partnership agreements mandating arbitration, a reflection of the wider business trend. You can read the <a href="http://www.chicagobusiness.com/article/20171110/ISSUE01/171119985/law-firms-are-hard-to-sue">full article here</a>.</p> http://www.seyfarth.com:80/news/hrccei110917 Seyfarth Receives Perfect Score in Corporate Equality Index for 10th Straight Year http://www.seyfarth.com:80/news/hrccei110917 Thu, 09 Nov 2017 00:00:00 -0500 <p> Seyfarth Shaw LLP announced today that, for the tenth consecutive year, the firm earned a perfect score of 100 in the annual Human Rights Campaign Foundation&rsquo;s Corporate Equality Index (CEI) and was named a &ldquo;Best Place to Work for LGBTQ Equality.&rdquo; CEI is a national benchmarking survey and report on corporate policies and practices related to LGBTQ workplace equality, administered by the Human Rights Campaign Foundation.</p> <p> Seyfarth&rsquo;s chair and managing partner Peter Miller remarked, &ldquo;For a decade straight, we have been honored to receive a perfect score from the Human Rights Campaign. This recognition strongly demonstrates the firm&rsquo;s ability to adopt new policies and remain on the forefront of best practices for creating a diverse and inclusive workplace for all attorneys and staff.&rdquo;</p> <p> The 2018 CEI rated 947 businesses in the report, which evaluates LGBTQ-related policies and practices including non-discrimination workplace protections, domestic partner benefits, transgender-inclusive health care benefits, competency programs, and public engagement with the LGBTQ community. Seyfarth&rsquo;s efforts in satisfying all of the CEI&rsquo;s criteria results in a 100 percent ranking and the designation as a &ldquo;Best Place to Work for LGBTQ Equality.&rdquo;</p> <p> The Human Rights Campaign Foundation (HRC) is the educational arm of America&#39;s largest civil rights organization working to achieve equality for lesbian, gay, bisexual transgender and queer people. HRC envisions a world where LGBTQ people are embraced as full members of society at home, at work and in every community. For more information on the 2018 Corporate Equality Index, visit <a href="http://www.hrc.org/campaigns/corporate-equality-index">here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></p> <p> Martin Grego, Public Relations Manager (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/allabilities110917 Seyfarth Launches All Abilities Affinity Group, Expands Diversity & Inclusion Efforts http://www.seyfarth.com:80/news/allabilities110917 Thu, 09 Nov 2017 00:00:00 -0500 <p> CHICAGO and NEW YORK (November 9, 2017) -- Seyfarth Shaw LLP announced today the expansion of its Diversity &amp; Inclusion Action Team&rsquo;s affinity group program, launching the All Abilities Affinity Group, which is dedicated to developing the talent of all, innovating solutions to access, and empowering the disability community and its allies.</p> <p> The first law firm affinity group designed for those of all abilities, Seyfarth All Abilities is led by New York partner Loren Gesinsky and Chicago associate Kevin Fritz. At launch, Seyfarth All Abilities includes more than 50 lawyers across the firm and represents the firm&rsquo;s sixth affinity group, joining those for African-American, Asian-American, Hispanic, LGBT, and women&rsquo;s interests.</p> <p> &ldquo;Our affinity groups play a key role in expanding the footprint of our diversity efforts and creating a more inclusive organization,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;Our All Abilities group&rsquo;s universal mission connects all of our affinity groups together, providing a new and powerful platform for change.&rdquo;</p> <p> &ldquo;We are constantly exploring ways to innovate and increase diversity and inclusion at the firm,&rdquo; explained Laura Maechtlen, co-chair of Seyfarth&rsquo;s Diversity &amp; Inclusion Action Team. &ldquo;Seyfarth All Abilities presents a unique opportunity for our lawyers to collaborate on accessibility issues that directly impact our colleagues and communities.&rdquo;</p> <p> Beyond the talent of the firm, Seyfarth All Abilities will also focus externally, working closely with clients and allied organizations to advocate for disability awareness and greater accessibility.</p> <p> &ldquo;Building on the firm&rsquo;s longstanding partnership with Best Buddies, we have seen firsthand how taking a lead role as an organization can have a major impact in the disability community,&rdquo; said Lisa Damon, Seyfarth partner and a founding member of Seyfarth All Abilities. &ldquo;We&rsquo;re proud to bring that same energy and dedication to our own efforts and help increase our collective impact.&rdquo;</p> http://www.seyfarth.com:80/publications/OMM11917-LE If Pain, Yes Gain—Part XXXIX: NYC Mayor Signs Amendment to Earned Sick Time Act http://www.seyfarth.com:80/publications/OMM11917-LE Thu, 09 Nov 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Use of paid sick time for &ldquo;safe time&rdquo; reasons is coming to New York City following Mayor Bill de Blasio&rsquo;s signing of an amendment to the city&rsquo;s Earned Sick Time Act earlier this week.</em></p> <p> On November 6, 2017, New York City Mayor Bill de Blasio signed the Earned Safe and Sick Time Act (&ldquo;ESSTA&rdquo;) (Int. No. 1313-A), an amendment to the city&rsquo;s Earned Sick Time Act.&nbsp; The New York City Council passed the amendment approximately three weeks ago, on October 17, 2017.&nbsp; ESSTA will take effect on May 5, 2018 &mdash; 180 days after it was signed by Mayor de Blasio.</p> <p> As discussed in our <a href="http://www.seyfarth.com/publications/MA102017-LE">prior alert</a>, ESSTA will result in several notable amendments to the city&rsquo;s paid sick leave landscape.&nbsp; Among other things, ESSTA introduced protected &ldquo;safe time&rdquo; reasons for the use of New York City paid sick time and expanded the ordinance&rsquo;s definition of &ldquo;family member.&rdquo;</p> <p> ESSTA will allow paid sick time to be used for the following &ldquo;safe time&rdquo; reasons for employees or their covered family members (as set forth below) who are victims of a family offense matter, sexual offense, stalking, or human trafficking:</p> <ul> <li> to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;</li> <li> to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee&rsquo;s family members from future family offense matters, sexual offenses, stalking, or human trafficking;</li> <li> to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;</li> <li> to file a complaint or domestic incident report with law enforcement;</li> <li> to meet with a district attorney&rsquo;s office;</li> <li> to enroll children in a new school; or</li> <li> to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee&rsquo;s family member or to protect those who associate or work with the employee.</li> </ul> <p> A covered &ldquo;family member,&rdquo; as expanded by ESSTA, which applies for both sick and safe time absences, includes (a) child, (b) spouse, (c) domestic partner, (d) parent, (e) sibling, (f) grandchild, (g) grandparent, (h) the child or parent of an employee&rsquo;s spouse or domestic partner, (i) <u>any other individual related by blood to the employee</u>, and (j) <u>any other individual whose close association with the employee is the equivalent of a family relationship</u>.&nbsp;</p> <p> As a reminder, covered New York City employers must provide employees hired on or after the May 5, 2018 effective date with notice of their paid sick time rights, including their right to &ldquo;safe time&rdquo; under ESSTA.&nbsp; This notice should be provided to employees upon commencement of employment.&nbsp; Covered employers also must provide an updated paid sick time notice to existing employees within 30 days of ESSTA&rsquo;s effective date, i.e., June 4, 2018.</p> <p> In anticipation of the May 5, 2018 effective date, 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> http://www.seyfarth.com:80/publications/TBT110917 The Week in Weed: November 10, 2017 http://www.seyfarth.com:80/publications/TBT110917 Thu, 09 Nov 2017 00:00:00 -0500 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/11/the-week-in-weed-november-10-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS110817 Are your employees texting? Risks to employers taking workplace communications offline http://www.seyfarth.com:80/publications/WLS110817 Wed, 08 Nov 2017 00:00:00 -0500 <p> Impacts are emerging in workplaces, globally. We thought we would share the thought leadership of our colleague, Karla Grossenbacher, a partner in our Washington, D.C. team. It seems to us that her insights on these issues are equally applicable to Australian workplaces and we hope you find them of value.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2017/11/are-your-employees-texting-risks-to-employers-in-taking-workplace-communications-offline/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH110817 “Similarly Situated” Seriously Scrutinized by Southern District http://www.seyfarth.com:80/publications/WH110817 Wed, 08 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: A judge in the Southern District of New York held that FLSA off-the-clock claims could not proceed collectively because the employer&rsquo;s policy enforcement and approval of overtime compensation varied by supervisor.<br /> <br /> <a href="https://www.wagehourlitigation.com/decertification/similarly-situated-scrutinized-by-sdny/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP110817 Happy Veterans Day! Celebrate the Benefits of Hiring California Veterans http://www.seyfarth.com:80/publications/CP110817 Wed, 08 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Countless California employers have found that veterans make outstanding employees. As we approach the Veterans Day holiday, read on for a list of the benefits of hiring veterans, as well as helpful resources for veterans seeking employment. We further discuss some state and federal job protections for employees who are in the military.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/11/08/happy-veterans-day-celebrate-the-benefits-of-hiring-california-veterans/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO110817 Is Medical Marijuana Really Medicinal? http://www.seyfarth.com:80/publications/BIO110817 Wed, 08 Nov 2017 00:00:00 -0500 <p> This is a cross-posted blog from The Blunt Truth.<br /> <br /> <a href="https://www.bioloquitur.com/medical-marijuana-really-medicinal/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/billowsworkforce110817 Tracy Billows quoted in Workforce http://www.seyfarth.com:80/news/billowsworkforce110817 Wed, 08 Nov 2017 00:00:00 -0500 <p> Tracy Billows was quoted in a November 8 story from Workforce, &quot;The Price of a Family-Friendly Workplace,&quot; on how paid family leave remains a contentious issue for employers nationwide. Billows said that she doesn&rsquo;t think that paid family leave on a federal level is completely off the table as we&rsquo;ve sometimes seen in prior administrations. You can read the <a href="http://www.workforce.com/2017/11/08/price-family-friendly-workplace/">full article here</a>.</p> http://www.seyfarth.com:80/news/soloweylaw360110817 Dawn Reddy Solowey authored an article in Law360 http://www.seyfarth.com:80/news/soloweylaw360110817 Wed, 08 Nov 2017 00:00:00 -0500 <p> Dawn Reddy Solowey authored a November 8 article in Law360, &quot;What I Learned In My 1st Year: Get Real, But Get It Right.&quot; In the article, Solowey looks back at some of her earliest experiences as a lawyer &mdash; experiences from which she learned both the value of providing clear and timely legal guidance to clients in need of an immediate answer, and the importance of solid reasoning, attention to detail and high standards.</p> http://www.seyfarth.com:80/news/weissfastcompany110817 Philippe Weiss quoted in Fast Company http://www.seyfarth.com:80/news/weissfastcompany110817 Wed, 08 Nov 2017 00:00:00 -0500 <p> Philippe Weiss was quoted in a November 8 story from Fast Company, &quot;Your Employee Flipped Off The President&ndash;What Happens Next?,&quot; on political speech in the workplace. Weiss said that, from a management perspective, you want to be very cautious. You can read the <a href="https://www.fastcompany.com/40493025/your-employee-flipped-off-the-president-what-happens-next">full article here</a>.</p> http://www.seyfarth.com:80/news/bitarwth110817 Karen Bitar quoted in Waco Tribune-Herald http://www.seyfarth.com:80/news/bitarwth110817 Wed, 08 Nov 2017 00:00:00 -0500 <p> Karen Bitar was quoted in a November 8 story from the Waco Tribune-Herald, &quot;Baylor makes final push to protect years-old student records in Title IX lawsuit,&quot; on how some 6,200 current and former Baylor University students could soon receive letters in the mail asking their permission for the University to submit their college records within the Title IX lawsuit it faces. Bitar said that she could not think of any such document request that demanded so broad of a time frame. You can read the <a href="http://www.wacotrib.com/news/courts_and_trials/baylor-action-is-final-push-to-protect-years-old-student/article_97e506f1-d3b5-5816-9526-cfed84212f26.html">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanscotus110717 Gerald Maatman's blog post referenced in Supreme Court Cert. Petition http://www.seyfarth.com:80/news/maatmanscotus110717 Tue, 07 Nov 2017 00:00:00 -0500 <p> Gerald Maatman&#39;s blog post, &quot;What 2016 Workplace Class Action Filings Suggest Employers Are Apt to Face in 2017,&quot; was referenced in a new Supreme Court cert. petition in <em>Monroe v. FTS</em>. You can read the <a href="https://www.workplaceclassaction.com/2017/02/what-2016-workplace-class-actions-filings-suggest-employers-are-apt-to-face-in-2017/">full blog post here</a>.</p> http://www.seyfarth.com:80/news/meercl110717 Jon Meer quoted in California Lawyer http://www.seyfarth.com:80/news/meercl110717 Tue, 07 Nov 2017 00:00:00 -0500 <p> Jon Meer was quoted in a November 7 story from California Lawyer, &quot;Labor &amp; Employment Roundtable,&quot; on employment law in the Trump era, pay equity, LGBTQ discrimination, and medical marijuana accommodation. Meer said that it is problematic to try and put pay equity at a standard that is different from the ones used for other forms of discrimination. You can read the <a href="http://www.callawyer.com/2017/11/labor-and-employment-roundtable/">full article here</a>.</p> http://www.seyfarth.com:80/publications/ADA110717 Florida Lawmakers Take Action To Curb Access Suits, But Will It Work? http://www.seyfarth.com:80/publications/ADA110717 Tue, 07 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Florida&rsquo;s recently-enacted House Bill 727 gives businesses a way to deter serial plaintiffs from suing them in Florida courts.<br /> <br /> <a href="https://www.adatitleiii.com/2017/11/florida-lawmakers-take-action-to-curb-access-suits-but-will-it-work/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT110717 Is Medical Marijuana Really Medicinal? http://www.seyfarth.com:80/publications/TBT110717 Tue, 07 Nov 2017 00:00:00 -0500 <p> Despite the dearth of approved marijuana products, the term &ldquo;medical marijuana&rdquo; has become commonplace, and the term&rsquo;s prevalence continues to increase as more states legalize the use of the marijuana plant and its active derivatives for medical purposes, and marijuana dispensaries continue to expand throughout the United States. As of 2017, 29 states and the District of Columbia have approved the use of marijuana for medical purposes. (Despite state laws legalizing marijuana for medical and/or recreational use, marijuana remains a Schedule I controlled substance its distribution and use remain illegal under Federal law.)<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/11/is-medical-marijuana-really-medicinal/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH110717 Big Commissions & FLSA Omissions: How Employers Could Be Required to Pay Six-Fig