Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 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 footballs 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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/WH110717 Big Commissions & FLSA Omissions: How Employers Could Be Required to Pay Six-Figure Earners Overtime Wages http://www.seyfarth.com:80/publications/WH110717 Tue, 07 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: A recent decision highlights why the FLSA is not always the remedial statute created to protect low-income workers by holding that four commission-based sales representatives, each earning six figures, were not exempt from the overtime requirements because they were not paid on a salary basis.<br /> <br /> <a href="https://www.wagehourlitigation.com/misclassification/employers-required-to-pay-six-figure-earners-overtime-wages/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL110717 LinkedIn – in whose professional interest? http://www.seyfarth.com:80/publications/EL110717 Tue, 07 Nov 2017 00:00:00 -0500 <p> LinkedIn is the biggest online network of professionals in the world. Many employers encourage staff to use LinkedIn to promote their organisation.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/11/linkedin-in-whose-professional-interest/">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/BIO110617 FDA Provides New Product Specific Guidance for Development of Certain Generic Drug Products http://www.seyfarth.com:80/publications/BIO110617 Mon, 06 Nov 2017 00:00:00 -0500 <p> This article summarizes information taken from the following sources: FDA&rsquo;s Draft Guidance for Industry on Bioequivalence Studies With Pharmacokinetic Endpoints for Drugs Submitted Under an Abbreviated New Drug Application (ANDA) (Dec. 2013) &amp; information set forth in the following link: https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/ucm075207.htm<br /> <br /> <a href="https://www.bioloquitur.com/fda-provides-new-product-specific-guidance-development-certain-generic-drug-products/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/launeybi110617 Kristina Launey quoted in Business Insurance http://www.seyfarth.com:80/news/launeybi110617 Mon, 06 Nov 2017 00:00:00 -0500 <p> Kristina Launey was quoted in a November 6 story from Business Insurance, &quot;Disability suits over website access surge,&quot; on how more courts are ruling against companies over the issue of website accessibility, while the number of lawsuits filed against them continues to grow dramatically. Launey said that a court ruling on the issue really depends on what court you&rsquo;re in and which judge you get, but each pro-plaintiff ruling emboldens plaintiff attorneys to push harder. You can read the<a href="http://www.businessinsurance.com/article/20171106/NEWS06/912317033/Americans-with-Disabilities-Act-lawsuits-over-website-access-surge"> full article here</a>.</p> http://www.seyfarth.com:80/news/grossenbacherbi110617 Karla Grossenbacher quoted in Business Insurance http://www.seyfarth.com:80/news/grossenbacherbi110617 Mon, 06 Nov 2017 00:00:00 -0500 <p> Karla Grossenbacher was quoted in a November 6 story from Business Insurance, &quot;Augmented reality makes an appearance in the workplace,&quot; on how the surge in development and use of wearable technology is helping employers protect workers and encourage healthy behavior, but is also raising privacy concerns. Grossenbacher said that companies need to obtain their workers&rsquo; consent when collecting sensitive information. You can read the <a href="http://www.businessinsurance.com/article/20171106/NEWS08/912317021/Augmented-reality-makes-an-appearance-in-the-workplace">full article here</a>.</p> http://www.seyfarth.com:80/news/weisswgn110617 Philippe Weiss interviewed on WGN-AM Radio http://www.seyfarth.com:80/news/weisswgn110617 Mon, 06 Nov 2017 00:00:00 -0500 <p> Philippe Weiss was interviewed November 6th on WGN-AM Radio, &quot;Wintrust Business Lunch 11/6/17: Pearachute Targeting, Sexual Harassment Training, &amp; iOS Glitch.&quot; Weiss joined the program to provide businesses a perspective of what sexual harassment prevention training is like. You can listen to the full interview at minute 11:28 <a href="http://wgnradio.com/2017/11/06/wintrust-business-lunch-11617-pearachute-targeting-sexual-harassment-training-ios-glitch/">here</a>.</p> http://www.seyfarth.com:80/news/bizaritc David Bizar quoted in Inside the CFPB http://www.seyfarth.com:80/news/bizaritc Mon, 06 Nov 2017 00:00:00 -0500 <p> David Bizar was quoted in a November 6 story from Inside the CFPB, &quot;Industry Groups Celebrate Demise of CFPB Arbitration Rule,&quot; on the news that the Republican-controlled Congress and the Trump administration were able to cooperate and overturn the CFPB&rsquo;s controversial rule banning mandatory arbitration clauses in most consumer financial services contracts. Bizar said that the demise of the CFPB&rsquo;s ill-considered arbitration class-action waivers ban will benefit both consumers and industry, and the only real losers are the lawyers who would have profited from all of the litigation that would have ensued if the ban had gone into effect.</p> http://www.seyfarth.com:80/news/rabebi110317 Scott Rabe quoted in Business Insurance http://www.seyfarth.com:80/news/rabebi110317 Fri, 03 Nov 2017 00:00:00 -0500 <p> Scott Rabe was quoted in a November 3 story from Business Insurance, &quot;Transgender professor&rsquo;s bias suit can proceed,&quot; on how a U.S. District Court has refused to dismiss a discrimination lawsuit filed by a transgender English professor who lost her job after she failed to achieve tenure. Rabe said that the ruling is quite significant because it follows shortly after the Oct. 4 memo by Mr. Sessions, which rescinds the Obama administration&rsquo;s Department of Justice 2014 memo on the issue and states the department now takes the position that Title VII&rsquo;s prohibition on sex discrimination does not encompass discrimination based on gender identity per se, including transgender status. You can read the <a href="http://www.businessinsurance.com/article/20171103/NEWS06/912317019/Transgender-English-professor-Title-VII-bias-suit-can-proceed-Oklahoma-State">full article here</a>.</p> http://www.seyfarth.com:80/news/netheryuva110317 Allegra Nethery profiled in UVA Lawyer http://www.seyfarth.com:80/news/netheryuva110317 Fri, 03 Nov 2017 00:00:00 -0500 <p> Allegra Nethery was profiled in a November 3 story from UVA Lawyer, &quot;Helping Others, Staying Firm&quot;. When Nethery wanted to do more good, Seyfarth took note. You can read the <a href="https://content.law.virginia.edu/news/201711/helping-others-staying-firm">full story here</a>.</p> http://www.seyfarth.com:80/publications/ERISA110317 Timing is Everything: Tenth Circuit Overturns Insurer’s Disability Decision as Arbitrary and Capricious http://www.seyfarth.com:80/publications/ERISA110317 Fri, 03 Nov 2017 00:00:00 -0500 <p> Even when a claims administrator approves a claim for disability benefits, its job is not done. That principle was again demonstrated in the recent case Owings v. United of Omaha Life Insurance Co., No. 16-3128 (10th Cir. Oct. 17, 2017). The plaintiff&rsquo;s claim for long-term disability benefits had been approved, but he claimed that the benefits paid were based on the wrong salary.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2017/11/03/timing-is-everything-tenth-circuit-overturns-insurers-disability-decision-as-arbitrary-and-capricious/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE110317 Australia: Industrial Manslaughter – Will the Response to Community Outrage Deliver Results? http://www.seyfarth.com:80/publications/WSE110317 Fri, 03 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: We are aware that many of the clients we advise on U.S. workplace safety and health laws and regulations also have operations in Australia. The below blog provides insights into recent significant developments in workplace safety and health law in Queensland. Please feel free to contact the authors, or any of our workplace safety and health attorneys in Australia, with any questions you may have on this or any related topics.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/international/australia/australia-industrial-manslaughter-will-the-response-to-community-outrage-deliver-results/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS110317 Industrial manslaughter – will the response to community outrage deliver results? http://www.seyfarth.com:80/publications/WLS110317 Fri, 03 Nov 2017 00:00:00 -0500 <p> Much of the focus in the legal media and beyond has been on the headline grabbing figures of penalties of up to AUD$10m for body corporates and 20 years imprisonment for individuals &ndash; making these the toughest workplace penalties in Australia at the moment. The new offences respond to the sense of outrage, but with the attention on the penalties, there has been little pause to ask:<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2017/11/industrial-manslaughter-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM110317-LIT Another One Bites the Dust - the President Kills the CFPB Arbitration Rule http://www.seyfarth.com:80/publications/OMM110317-LIT Fri, 03 Nov 2017 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:</strong> Pursuant to the&nbsp; the Congressional Review Act, President Trump officially repealed the CFPB Arbitration Rule.&nbsp;</em></div> <div> &nbsp;</div> <div> As expected, President Trump <a href="https://www.whitehouse.gov/the-press-office/2017/11/01/president-donald-j-trump-signs-hjres-111-law">signed the resolution</a> to repeal the arbitration rule proposed by the Consumer Financial Protection Bureau (CFPB). The resolution effectively nullified the CFPB&rsquo;s rule restricting the rights of financial institutions to include arbitration clauses in their contracts. Under the <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM071717LE.pdf">proposed rule</a>, financial institutions would have had to re-draft their consumer agreements to carve out an exception in pre-dispute resolution clauses and to permit consumers to join class actions. The rule also required financial institutions to regularly supply information about customer disputes to the CFPB. For now, companies can table such redrafting and return to business as usual.&nbsp;</div> <div> &nbsp;</div> <div> The CFPB, however, did not go down without a fight. After the Senate <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM102617LIT.pdf">narrowly voted</a> to repeal the rule, CFPB Director Richard Cordray made a final plea to save the arbitration rule in a <a href="http://www.seyfarth.com/dir_docs/publications/CFPB-Letter.pdf">letter</a><strong>&nbsp;</strong>to President Trump. The letter was a &ldquo;personal appeal&rdquo; to President Trump to uphold the arbitration rule. Director Cordray claimed that his message was not about &ldquo;charts or graphs or studies,&rdquo; but rather about &ldquo;protecting people who simply want to be able to take action together&rdquo; to pursue their rights. He asserted that most Americans &ldquo;cannot afford&rdquo; to go to court and implied that, without the rule, &ldquo;American families, including veterans and service members, [would] get cheated out of their hard earned money.&rdquo; In an attempt to appeal to the President&rsquo;s vanity, Director Cordray stated that the President &ldquo;alone now ha[s] the power to safeguard people&rsquo;s ability to take action together.&rdquo; The plea, which rang hollow, fell on deaf ears as President Trump signed the congressional resolution, consistent with his <a href="https://www.whitehouse.gov/the-press-office/2017/10/24/statement-regarding-senate-passage-hj-res-111">previous position</a>.&nbsp;</div> <div> &nbsp;</div> <div> This action marks the 15th resolution passed by Congress and approved by the President since January 2017 to repeal regulations via the Congressional Review Act. Proponents of the resolution interpret President Trump&rsquo;s approval as a message that the CFPB should not interfere in the free market in an effort to override consumer choices the agency dislikes by denying consumers and financial institutions the freedom to contract. Other critics argued that the rule was a product of Director Cordray&rsquo;s supporters--trial attorneys--and not actual consumer interests. These critics noted that trial attorneys typically walk away with millions in class actions, leaving little or nothing for consumers.&nbsp; In the end, it appears that consumers and the financial industry have come out ahead of the lawyers.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/HCRMA110317 Issue 114: Relief from HIPAA Certification Requirement http://www.seyfarth.com:80/publications/HCRMA110317 Fri, 03 Nov 2017 00:00:00 -0500 <div> <em>This is the one hundred and fourteenth 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> As we <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HealthCareReformManangementAlert_Issue78_02.28.2014.pdf">previously reported</a>, on January 2, 2014, HHS issued a proposed rule addressing how health plans would certify compliance with adopted HIPAA standards and operating rules for three electronic transactions:&nbsp; eligibility for a health plan, health care claim status, and health care electronic fund transfers (EFT) and remittance advice.&nbsp; The proposed rule also established penalties for health plans that failed to comply with the certification requirements.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> On October 4, 2017, HHS withdrew the proposed rule in order to reexamine the issues raised in the public comments received.&nbsp; HHS warned, however, that the &ldquo;withdrawal of this proposed rule does not remove the requirements for covered entities to comply with any of the [existing HIPAA standards and operating rules for each covered transaction].&rdquo;</div> <div> &nbsp;&nbsp;</div> <div> HHS indicated that they received approximately 72 public comments on the proposed rule which, for example, raised the following issues:&nbsp;&nbsp;</div> <div> &nbsp;</div> <ul> <li> The majority of employers offering self-funded health plans do not regularly perform the standard transactions which the HIPAA rules are designed to govern.&nbsp; Therefore, self-funded plans should be permitted to rely on the certification of their third party vendors with whom they contract to perform these transactions.&nbsp;<br /> &nbsp;</li> <li> The rule should not apply to certain health plans such as:&nbsp; wellness or employee assistance programs which typically do not process claims electronically using standard transactions;&nbsp; flexible spending accounts (FSAs) and health savings accounts (HSAs) which are not required to obtain a Health Plan Identifier (HPID); or certain benefits (e.g. accident-only coverage or disability income coverage) which are excepted from HIPAA&rsquo;s electronic transaction rules.</li> </ul> <div> <br /> In a related move, CMS recently updated its webpage with recommendations from an HHS advisory committee regarding HPIDs.&nbsp; The National Committee on Vital and Health Statistics recommended that HHS rescind the final rule issued September 5, 2012 that would require health plans to obtain and use HPIDs.&nbsp; HPIDs were going to be used to identify health plans submitting compliance certification.</div> <div> &nbsp;</div> <div> The withdrawal of this proposed rule is welcome news for employers.&nbsp; We will continue to monitor developments in this area.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM110317-CORP UBIT May Be In Your Future http://www.seyfarth.com:80/publications/OMM110317-CORP Fri, 03 Nov 2017 00:00:00 -0500 <div> <strong>Overview</strong></div> <div> &nbsp;</div> <div> The proposed Tax Cuts and Jobs Act released by the House of Representatives on November 2, 2017 calls into question the position long taken by government pension plans that they are exempt from the unrelated business income tax rules (the &ldquo;UBIT&rdquo; rules).&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> <strong>Current Approach of Government Pension Plans</strong></div> <div> &nbsp;</div> <div> In 1977 the IRS released a brief statement in which it advised it was considering whether government pension plans were subject to tax on their income.&nbsp; Pending further review and guidance, the IRS stated that its position would be that government pension plans were not subject to tax on their income.&nbsp; In the intervening 40 years, the IRS has not provided any further guidance.&nbsp; As a result, government plans generally have taken, and continue to take, the position that they are not subject to the unrelated business taxable income (&ldquo;UBIT&rdquo;) rules.&nbsp;</div> <div> &nbsp;</div> <div> Some government pension plans also take the position that they are exempt from tax pursuant to Section 115(1) of the Internal Revenue Code (the &ldquo;Code&rdquo;), which exempts from gross income any income derived from the &ldquo;exercise of a governmental function.&rdquo;&nbsp; Though an analysis of Code Section 115(1) is beyond the scope of this alert, we note that whether the operations of a government pension plan fit the criteria for tax exemption under Code Section 115(1) remains an open question.&nbsp; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <strong>Proposal</strong></div> <div> &nbsp;</div> <div> The Committee on Ways and Means, in its section-by-section summary of the proposed legislation, specifically notes that it is unclear whether public pension plans are subject to the UBIT rules.&nbsp; The proposed legislation resolves the apparent ambiguity by making clear that any entity exempt from taxation under Section 501(a) of the Internal Revenue Code (the &ldquo;Code&rdquo;) would, regardless of whether the entity claims an exemption from taxation under any other section of the Code, be subject to the UBIT rules.&nbsp; Government plans, as set out in Section 401(a) of the Code, are included in Section 501(a).</div> <div> &nbsp;</div> <div> The Joint Committee on Taxation estimates that this provision will raise approximately $1.1 billion dollars in additional revenue from 2018 - 2027.</div> <div> &nbsp;</div> <div> <strong>Rapid Reactions</strong></div> <div> &nbsp;</div> <div> The current proposed legislation draws from the proposal put forth by Congressman David Camp in 2014.&nbsp; However, where the Camp proposal left open a possible avenue for government pension plans to continue to claim a UBIT exemption, the current proposed legislation does not.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Should the proposed legislation make its way through the House of Representatives and the Senate and ultimately be signed into law by the President it will add a layer of analysis to the investment underwriting process.&nbsp; For example, many government plans currently prefer not to invest through REITs (which are often used to &ldquo;block&rdquo; UBIT for non-government plan tax exempt investors).&nbsp; That may change if the proposed legislation as currently drafted becomes law.&nbsp; It is not clear is whether previous investments which were entered into by government pension plans on the assumption that UBIT was not a necessary consideration will be exempted from the new law.&nbsp; If they are not, government plans will need to work with their existing fund sponsors to explore setting up alternative investment vehicles or parallel funds to minimize the impact of the revised UBIT rules.&nbsp; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> It is not time to panic.&nbsp; As noted above, it is unknown what the final legislation will look like or whether the current UBIT proposal will be included in the final legislation.&nbsp; It may be time, however, for government plans, internally and then with their fund sponsors, to explore options that could minimize the impact of the proposed legislation, should it become law.</div> http://www.seyfarth.com:80/publications/TBT110217 The Week in Weed: November 3, 2017 http://www.seyfarth.com:80/publications/TBT110217 Thu, 02 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-3-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE110217 OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards http://www.seyfarth.com:80/publications/WSE110217 Thu, 02 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: OSHA has recently published &ldquo;Small Entity Compliance&rdquo; Guides for the new Crystalline Silica Standard for Construction and General Industry.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/chemical-safety/osha-publishes-small-entity-compliance-guides-for-the-crystalline-silica-standards/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA110217-EB Missing Participants and Beneficiaries and Required Minimum Distributions http://www.seyfarth.com:80/publications/MA110217-EB Thu, 02 Nov 2017 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:</strong></em> <em>The Internal Revenue Service released guidance detailing specific procedures qualified retirement plans may utilize to satisfy required minimum distribution standards for missing participants and beneficiaries.</em></div> <div> &nbsp;</div> <div> Internal Revenue Code section 401(a)(9) establishes required minimum distribution (&ldquo;RMD&rdquo;) standards for qualified retirement plans. Generally, these standards require a participant&rsquo;s benefit payments to begin no later than April 1 of the calendar year after the participant attains the age 70&frac12; or retires. In the case of a deceased participant, RMD payments must generally be made to a non-spouse beneficiary within five calendar years after the year of the participant&rsquo;s death. The Internal Revenue Service (&ldquo;IRS&rdquo;) has released administrative guidance regarding how qualified retirement plans may satisfy RMD standards when the participant or beneficiary to whom the payment is due cannot be located.</div> <div> &nbsp;</div> <div> A qualified retirement plan that cannot locate a participant or beneficiary will be treated as satisfying RMD standards if the plan: (1) searches plan and publically available records for the participant&rsquo;s contact information; (2) uses a commercial locator service, credit reporting agency or proprietary internet search tool to locate the participant or beneficiary; and (3) attempts to contact the participant or beneficiary via United States Postal Service certified mail to the last known mailing address and any other appropriate means of contact, such as by email or telephone.</div> <h2> &nbsp;</h2> <h2> Implications for Employers</h2> <div> &nbsp;</div> <div> Prior to this guidance, qualified retirement plans that did not make RMDs to missing participants or beneficiaries risked being considered in violation of the RMD requirements, and different IRS regions could apply different standards on audit. Now, qualified retirement plans that cannot locate a participant or beneficiary will be treated as not violating the RMD standards if in compliance with the procedures above.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Although this new guidance is very helpful to plan sponsors, note that the Department of Labor (&ldquo;DOL&rdquo;) also audits retirement plans to assure that a plan maintains a prudent process for locating participants and paying benefits. The IRS&rsquo;s guidance does not necessarily reflect what efforts the DOL may require a plan to make to locate lost participants.&nbsp;&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL110217 TITLE VII: Court Breaks from Department of Justice on Transgender Rights http://www.seyfarth.com:80/publications/EL110217 Thu, 02 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In the first case following the Department of Justice&rsquo;s pronouncement that Title VII does not prohibit discrimination against transgender persons on the basis of gender identity, a court in the Western District of Oklahoma held that Title VII protects transgender individuals from discrimination. Tudor v. Se. Okla. State Univ., No. civ-15-324-C. (W.D. Okla. Oct. 26, 2017).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/11/title-vii-court-breaks-from-department-of-justice-on-transgender-rights/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/paparellimarketplaceradio110217 Angelo Paparelli interviewed on Marketplace Radio http://www.seyfarth.com:80/news/paparellimarketplaceradio110217 Thu, 02 Nov 2017 00:00:00 -0500 <p> Angelo Paparelli was interviewed November 2nd on Marketplace Radio, &quot;The tax medium is the political message,&quot; about the new changes in the Republicans&#39; tax plan. Paparelli said that he would prefer elimination of tax complexity. You can listen at <a href="https://www.marketplace.org/shows/marketplace/11022017?utm_source=feedburner&amp;utm_medium=feed&amp;utm_campaign=Feed%3A+MarketplacePodcast+%28APM%3A+Marketplace+Podcast%29">Min. 10:30</a>.</p> http://www.seyfarth.com:80/news/mandelkerwsj110117 Lawrence Mandelker quoted in the Wall Street Journal http://www.seyfarth.com:80/news/mandelkerwsj110117 Wed, 01 Nov 2017 00:00:00 -0500 <p> Lawrence Mandelker was quoted in a November 1 story from the Wall Street Journal, &quot;Why Couples Should See a Financial Adviser Before They Get Married,&quot; on why people&rsquo;s spending habits and other money issues are often overlooked in premarital planning. Mandelker said that it&rsquo;s a function of the fact that people are accumulating assets before marriage, getting married later in life, and seeing more and more people getting divorced. You can read the <a href="https://www.wsj.com/articles/why-couples-should-see-a-financial-adviser-before-they-get-married-1509546214">full article here</a>.</p> http://www.seyfarth.com:80/news/bestlawyers110217 Seyfarth Earns Top Rankings from U.S. News – Best Lawyers http://www.seyfarth.com:80/news/bestlawyers110217 Wed, 01 Nov 2017 00:00:00 -0500 <p> Seyfarth Shaw LLP announced today that it has been named a National Tier 1 &ldquo;Best Law Firm&rdquo; in 12 practice areas by <em>U.S. News &ndash; Best Lawyers&reg;</em> in 2018, earning a total of 23 National rankings. Seyfarth received its National Tier 1 rankings in the following practices:</p> <ul> <li> Appellate Practice</li> <li> Commercial Litigation</li> <li> Construction Law</li> <li> Employee Benefits (ERISA) Law</li> <li> Employment Law - Management</li> <li> Health Care Law</li> <li> Immigration Law</li> <li> Labor Law - Management</li> <li> Litigation - Construction</li> <li> Litigation - ERISA</li> <li> Litigation - Labor &amp; Employment</li> <li> Real Estate Law</li> </ul> <p> Regionally, the firm earned 40 Tier 1 rankings and a total of 72 rankings across nine metropolitan markets, including Atlanta, Boston, Chicago, Houston, Los Angeles, New York, Sacramento, San Francisco and Washington, D.C.</p> <p> The <em>U.S.News &ndash; Best Lawyers&reg;</em> &quot;Best Law Firms&quot; rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. Clients were asked to provide feedback on firm practice groups, addressing expertise, responsiveness, understanding of a business and its needs, cost-effectiveness, civility, and whether they would refer another client to the firm. Practices are classified and ranked in national and metropolitan categories established by <em>U.S. News &ndash; Best Lawyers&reg;</em>.</p> <p> For a complete listing of Seyfarth&#39;s rankings <a href="http://bestlawfirms.usnews.com/profile/seyfarth-shaw-llp/rankings/3844">click here</a>.&nbsp;</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/maatmanlaw360110117 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360110117 Wed, 01 Nov 2017 00:00:00 -0500 <p> Gerald Maatman was quoted in a November 1 story from Law360, &quot;EEOC Launches National Online Complaint System.&quot; Maatman said that the new program takes the EEOC into the digital age and reflects that at least part of its constituency is more adept with mobile devices than submitting &quot;old-fashioned letters.&quot;</p> http://www.seyfarth.com:80/news/babsonlaw360110117 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360110117 Wed, 01 Nov 2017 00:00:00 -0500 <p> Marshall Babson was quoted in a November 1 story from Law360, &quot;NLRB&#39;s Griffin Left Mark With Broad Take On Worker Rights,&quot; on how Griffin interpreted the employee handbook ruling more broadly than his predecessors. Babson said that&rsquo;s been something that has bedeviled employers, what can and can they not say.</p> http://www.seyfarth.com:80/publications/WC110117 The Class Action Jurisprudence Of Judge Richard Posner http://www.seyfarth.com:80/publications/WC110117 Wed, 01 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In early September of 2017, Judge Richard Posner announced his retirement from the U.S. Court of Appeals for the Seventh Circuit, a position he had held since his appointment by President Reagan in 1981. Judge Posner served as Chief Judge of the Seventh Circuit from 1993-2000. Scholars and commentators agree that Judge Posner wrote some of the most influential legal decisions of the past 50 years. In this video, Partner Jennifer Riley discusses the accomplished career of Justice Posner with esteemed class action litigator Jerry Maatman. In particular, they highlight the class action legacy in Judge Posner&rsquo;s opinions.<br /> <br /> <a href="https://www.workplaceclassaction.com/2017/11/the-class-action-jurisprudence-of-judge-richard-posner/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA110117-LE H-1B Work Permit Filings: Will You Beat the Cap? http://www.seyfarth.com:80/publications/MA110117-LE Wed, 01 Nov 2017 00:00:00 -0500 <p> <strong style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">To stay up-to-date on Immigration developments,&nbsp;<a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b" style="text-decoration-line: none; color: rgb(0, 168, 225); cursor: pointer;">sign up</a>&nbsp;for Seyfarth&rsquo;s new BIG Immigration Law Blog</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong> This Management Alert is intended to enable employers to identify any current employees and employment candidates who may require H-1B work permit sponsorship before October 1, 2019. We recommend that employers identify any such candidates as soon as possible, as on April 2, 2018, United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for the fiscal year 2019 H-1B quota (which begins on October 1, 2018). It is likely that, as in previous years, USCIS will receive H-1B requests far in excess of the annual quota within the<strong> first week</strong> of filing eligibility, in effect resulting in a random lottery-type selection process. This occurred last year in the 2018 H-1B cap, which was reached in the first week of filing eligibility based on USCIS receiving over 199,000 H-1B cap petitions. The most conservative and recommended approach is to submit all 2018 cap cases during the first week of filing eligibility, which begins on April 2, 2018.</em></p> <p> <strong>Background</strong></p> <p> There is an annual limit on the number of H-1B petitions that USCIS can approve during the government&#39;s 2019 fiscal year (beginning October 1, 2018 and ending September 30, 2019). The H-1B cap for fiscal year 2019 is 65,000 (of which about 6,800 are reserved for nationals of Chile and Singapore under Free Trade Agreements with those countries). USCIS will begin accepting petitions for FY 2019 on April 2, 2018.</p> <p> There is an additional quota of 20,000 H-1Bs reserved for persons holding a master&#39;s degree or higher awarded by <u>an</u> accredited college or university in the United States. To be eligible for the &quot;master&#39;s cap,&quot; the employee must have completed the master&#39;s degree program prior to the filing date. This additional quota of 20,000 H-1Bs has historically not been exhausted as early as the general H-1B quota of 65,000. However, both the regular cap and the master&#39;s cap were exhausted last year during the first week of availability.</p> <p> If USCIS receives more than 20,000 H-1B petitions towards the so-called master&#39;s cap, a separate lottery process is applied. USCIS will apply the random selection process to the master&#39;s cap petitions prior to conducting the regular H-1B lottery. Any master&#39;s cap petitions not selected in the master&#39;s lottery will be eligible for selection in the regular H-1B lottery, effectively being granted two opportunities at H-1B status.</p> <p> <strong>Exceptions</strong></p> <p> With some exceptions, current H-1B workers are not subject to the annual cap. Non-cap cases include H-1B workers extending their status, changing from one H-1B employer to another, changing the terms of existing H-1B employment, or filing for a second (concurrent) H-1B position. In addition, foreign nationals seeking to work for an institution of higher education, for a related or affiliated nonprofit entity, or for a nonprofit research organization or a government research organization are not subject to the H-1B cap.</p> <p> <strong>Anticipated Unavailability of H-1B Work Permits Means Filing Early</strong></p> <p> In 2008, USCIS announced that it would apply the lottery process to all H-1B petitions received during the first five business days of the cap period, even if enough petitions were received to fill the annual quota on the first day of the filing period (i.e., April 1). We do not know how quickly the H-1B numbers will be exhausted this year, but the most conservative strategy is to assume that the H-1B numbers will be unavailable after the initial five-day filing period. Once the H-1B numbers are exhausted, new H-1B work permits will not be available until October 1, 2019.</p> <p> Thus, to maximize the likelihood that affected employees will obtain an H-1B number effective as of October 1, 2018, employers must be in a position to file the H-1B petition with the government between Monday, April 2, 2018 and Friday, April 6, 2018. We are preparing &quot;cap-subject&quot; H-1B petitions at this time and recommend that employers begin the process now for any employees or candidates who need an H-1B.</p> <p> <strong>Persons Affected</strong></p> <p> The persons who need to file an H-1B include any current employees who hold F-1 student status and who will thus need H-1B status to continue working once their F-1 Employment Authorization (known as Optional Practical Training or &quot;OPT&quot;) expires. In addition, any pending hires should be assessed to determine whether an H-1B will be needed for eventual continued employment, including those in J-1 academic programs with limited practical training time as well as those who currently reside outside the United States. Further, any current employees who hold TN, E-3, or L-1 status and who are beginning the green card process may need to convert to H-1B status.</p> <p> <strong>&quot;Cap-Gap&quot; Relief for F-1 Students</strong></p> <p> Under a rule issued in 2008, DHS grants &quot;cap-gap&quot; relief to F-1 students whose OPT expiration dates fall between April 1, 2018 and September 30, 2018 and whose employers have filed H-1B petitions on their behalf. Such students will be given a bridge of both status and work authorization until October 1, 2018. This means that individuals in the U.S. in F-1 status who are completing OPT and whose employers have filed H-1B &quot;change of status&quot; petitions on their behalf will have their work authorization automatically extended until October 1, 2018 (the required start date on the H-1B petition), provided that the H-1B petition is received and approved. These individuals will not experience the gap in employment eligibility or in status that may otherwise have occurred. If the petition is rejected or denied prior to October 1, 2018, the &quot;cap-gap&quot; employment eligibility ends immediately.</p> <p> In addition, the 2008 &quot;cap-gap&quot; rule grants a bridge of status -- but not work authorization -- to individuals in the U.S. during the 60-day grace period following completion of their F-1 status who do not hold a valid EAD. This means that individuals in the U.S. in F-1 status who are in their 60-day grace period and whose employers have filed H-1B &quot;change of status&quot; petitions on their behalf will have their status, but not employment authorization, automatically extended until October 1, 2018, provided that the H-1B petition is received and approved.</p> <p> <strong>Alternatives to the H-1B Work Permit</strong></p> <p> In some cases, there may be alternatives to the H-1B work permit. If an affected employee falls into one of the following categories, that employee may not need to file for an H-1B work permit in April:</p> <ul> <li> Citizens of Canada or Mexico who are eligible for a TN visa. Please note, however, that not all H-1B eligible Canadian or Mexican employees will qualify for TN status.&nbsp; In addition, TN visa classification falls under the North American Free Trade Agreement (NAFTA) which continues to be closely examined by the current administration.</li> <li> Citizens of Australia, Chile, or Singapore.</li> <li> The spouse of an L, E or H-1B work permit holder, who is eligible for spousal employment authorization (EAD).</li> <li> J-1 nonimmigrants who have at least 18 months of academic training available as of April 1, 2017.</li> <li> With limited exceptions, H-1B employees who have held H-1B status at any time during the last six years with a cap-subject employer.</li> <li> A foreign national who is married to a U.S. citizen and has received or will receive an Employment Authorization Document in connection with the pending green card process.</li> <li> Certain other foreign nationals who may qualify for O, E, or L visas.</li> </ul> <p> <strong>Conclusion</strong></p> <p> Employers must act now to identify and begin H-1B processing for candidates or current employees who require sponsorship and who do not meet one of the above exceptions. If an employer misses the filing deadline for an employee who requires H-1B sponsorship, the employee can lose legal status in the United States, including permission to work.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/CP110117 AB 450: California’s Law of Unintended Immigration Consequences http://www.seyfarth.com:80/publications/CP110117 Wed, 01 Nov 2017 00:00:00 -0500 <p> Seyfarth Synopsis: California&rsquo;s new law, Assembly Bill 450, signed by Governor Brown on October 5, and effective January 1, 2018, imposes several new immigration-related duties on California employers and the potential for civil fines. AB 450 will require employers to understand or seek guidance on where the new law ends and federal immigration law begins. The complexities of U.S. immigration law make drawing this distinction very difficult. This blog post provides an in-depth analysis of foreseeable challenges California employers &ndash; whether or not they petition for foreign workers &ndash; will likely face.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/11/01/ab-450-californias-law-of-unintended-immigration-consequences/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/els110117 Noah Finkel, Colton Long, Kyle Petersen and John Giovannone authored an article in Employment Law Strategist http://www.seyfarth.com:80/publications/els110117 Wed, 01 Nov 2017 00:00:00 -0500 <p> Noah Finkel, Colton Long, Kyle Petersen and John Giovannone authored a November 1 article in Employment Law Strategist, &quot;The FLSA&#39;s Overtime Provisions.&quot; The authors write that FLSA cases holding against employers typically invoke a canon of construction that the FLSA should be construed broadly, and any of its exemptions narrowly. But a study of the roots of this language shows that the canon has a dubious foundation and that it tends to be applied inconsistently to justify a result. You can read the <a href="http://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/11/01/the-flsas-overtime-provisions/?slreturn=20171002120504">full article here</a>.</p> http://www.seyfarth.com:80/publications/greensteinhabitat110117 Dennis Greenstein authored an article in Habitat Magazine http://www.seyfarth.com:80/publications/greensteinhabitat110117 Wed, 01 Nov 2017 00:00:00 -0500 <p> Dennis Greenstein authred a November 1 article in Habitat Magazine, &quot;When Nuisances Flare, Go Back To The Basics.&quot; The article discusses some of the most common examples of issues which prompt board members to question whether or not a lease should be amended. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/HabitatMag_Nov2017_Greenstein.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT103117 FAA Rule May Permit Air Shipment of Marijuana to Islands http://www.seyfarth.com:80/publications/TBT103117 Tue, 31 Oct 2017 00:00:00 -0500 <p> Transport of marijuana in states where it is legal to islands located within the state is complicated by the fact that transportation by air generally violates federal law. Rule 91.19 of the Federal Aviation Regulations (14 CFR 91.19) generally prohibits civil aircraft from knowingly transporting marijuana and other types of illicit drugs within the US. The prohibition initially applied to flights between US and Mexico but was subsequently amended to include flights solely within the US. However, the rule contains an exception for the transport of drugs &ldquo;authorized by or under any Federal or State statute or by any Federal or State agency&rdquo; and, as was recently reported by The Boston Globe (State Eyes Flight Rule to Ship Marijuana to Islands), the chairman of Massachusetts&rsquo; Cannabis Control Commission is looking at the exception as a means to potentially permit air transport of marijuana to Martha&rsquo;s Vineyard and Nantucket.<br /> <br /> <a href="https://www.blunttruthlaw.com/2017/10/faa-rule-may-permit-air-shipment-of-marijuana-to-islands/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE103117 The Future of Work: Opportunities and Challenges in the Gig Economy http://www.seyfarth.com:80/publications/FE103117 Tue, 31 Oct 2017 00:00:00 -0500 <p> The benefits of the gig economy are not difficult to see. Businesses can outsource non-core functions to workers who can perform important business tasks on an as-needed basis without the administrative burden of employing full-time employees. In turn, workers can perform jobs when (and sometimes where) they like with flexibility unknown in most industries until recently.<br /> <br /> <a href="https://www.futureemployer.com/blog/2017/10/31/the-future-of-work-opportunities-and-challenges-in-the-gig-economy">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM103117 H-1B Work Permit Filings: Will You Beat the Cap? http://www.seyfarth.com:80/publications/IMM103117 Tue, 31 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: This blog post is intended to enable employers to identify any current employees and employment candidates who may require H-1B work permit sponsorship before October 1, 2019. We recommend that employers identify any such candidates as soon as possible, as on April 2, 2018, United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for the fiscal year 2019 H-1B quota (which begins on October 1, 2018). It is likely that, as in previous years, USCIS will receive H-1B requests far in excess of the annual quota within the first week of filing eligibility, in effect resulting in a random lottery-type selection process. This occurred last year in the 2018 H-1B cap, which was reached in the first week of filing eligibility based on USCIS receiving over 199,000 H-1B cap petitions. The most conservative and recommended approach is to submit all 2018 cap cases during the first week of filing eligibility, which begins on April 2, 2018.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2017/10/h-1b-work-permit-filings-will-you-beat-the-cap/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR103117 “Save Local Business Act” Clears Committee http://www.seyfarth.com:80/publications/LR103117 Tue, 31 Oct 2017 00:00:00 -0500 <p> On October 5, 2017, H.R. 3441, the &ldquo;Save Local Business Act,&rdquo; cleared its first hurdle when it passed the House Committee on Education and the Workforce. The bill, which would clarify the definition of &ldquo;joint employer&rdquo; under both the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA), passed by a comfortable margin with 23 &ldquo;yea&rdquo; votes and 17 &ldquo;nay&rdquo; votes.</p> <p> <a href="https://www.employerlaborrelations.com/2017/10/31/save-local-business-act-clears-committee/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=1ecb7a701b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-1ecb7a701b-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/sonnebornhirschcl103117 Amanda Sonneborn and Cory Hirsch quoted in Chicago Lawyer http://www.seyfarth.com:80/news/sonnebornhirschcl103117 Tue, 31 Oct 2017 00:00:00 -0500 <p> Amanda Sonneborn and Cory Hirsch were quoted in an October 31 story from Chicago Lawyer, &quot;2017 Law Firm Spaces Survey,&quot; on a look at the moves, trends and designs of the office spaces where lawyers work in Chicago. Sonneborn said that 1970s-style promises of the corner office shouldn&rsquo;t be motivators in the 21st century workplace. Hirsch said that collaboration spaces are a necessity if you&rsquo;re moving to a uniform office size or in our case even less individual office space. You can read the <a href="http://www.chicagolawyermagazine.com/Articles/2017/11/CL1117_SpacesSurvey">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellireuters103017 Angelo Paparelli interviewed by Reuters http://www.seyfarth.com:80/news/paparellireuters103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> Angelo Paparelli participated in an October 30 Q&amp;A from Reuters, &quot;Q&amp;A: Seyfarth Shaw&#39;s Angelo Paparelli on California&#39;s new immigration law.&quot; Paparelli said that the ambiguities in the law and the uncertainties caused by the state trying to interpret federal immigration law could lead to a big legal headache for employers.</p> http://www.seyfarth.com:80/news/casciarishrm103017 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> Joan Casciari was quoted in an October 30 story from SHRM, &quot;Leave Employees Alone During FMLA Time Off ,&quot; on why workplace investigations and promotion discussions probably can wait. Casciari said that asking an employee to report to work during FMLA leave could be viewed as unfair, and employees have alleged that such a request is a form of FMLA interference. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/leave-employees-alone-fmla-time-off.aspx?widget=mostpopular1">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc103017 Andrew Boutros quoted in CBC News Network http://www.seyfarth.com:80/news/boutroscbc103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> Andrew Boutros was quoted in an October 30 story from CBC News Network, &quot;Paul Manafort&#39;s indictment was big. Trump &#39;volunteer&#39; George Papadopoulos&#39;s plea may be even bigger,&quot; on how legal scholars see signs of strategy to &#39;flip&#39; defendants Manafort, Gates and Papadopoulos. Boutros didn&#39;t anticipate the Papadopoulos development, but he predicted Manafort&#39;s indictment as well as some of the charges he&#39;s facing related to his being an unregistered foreign agent. You can read the <a href="http://www.cbc.ca/news/world/trump-manafort-rick-gates-george-papadopoulos-indictments-1.4379118">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroscbcradio103017 Andrew Boutros interviewed on CBC News Network Radio http://www.seyfarth.com:80/news/boutroscbcradio103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed October 30th on CBC News Network Radio, &quot;Mueller indictments the first &#39;shot across the bow,&#39; says former U.S. federal prosecutor.&quot; After U.S. Special Counsel Robert Mueller issues indictments against three ex-Trump campaign officials, former U.S. federal prosecutor Andrew Boutros wonders whether it&#39;s a sign of the investigation winding up or winding down. You can listen to the <a href="http://www.cbc.ca/player/play/1084789827881">full interview here</a>.</p> http://www.seyfarth.com:80/news/boutroscbctv103017 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbctv103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed October 30th on CBC News Network, &quot;Former U.S. federal prosecutor&#39;s take on Manafort indictment.&quot; Boutros said that this is significant, no question about it. You can watch the <a href="http://www.cbc.ca/player/play/1084429379662">full interview here</a>.</p> http://www.seyfarth.com:80/news/weissshrm103017 Philippe Weiss quoted in SHRM http://www.seyfarth.com:80/news/weissshrm103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> Philippe Weiss was quoted in an October 30 story from SHRM, &quot;How Employers&rsquo; Haunted House and Fright Night Went Way Wrong,&quot; on how Halloween celebrations can create safety hazards. Weiss said that if a company is not in the business of running haunted houses, it should think twice before setting one up. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Halloween-safety.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/weissbna103017 Philippe Weiss quoted in Bloomberg BNA Daily Labor Report http://www.seyfarth.com:80/news/weissbna103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> Philippe Weiss was quoted in an October 30 story from Bloomberg BNA Daily Labor Report, &quot;Halloween Hijinks at Work Could Scare Up Legal Trouble.&quot; Weiss said that wearing an outfit that is representative of what most view as offensive can create the potential of liability.</p> http://www.seyfarth.com:80/news/boutroscbcnn103017 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbcnn103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed October 30th on the CBC News Network, &quot;Trump campaign aid charged, enters guilty plea.&quot; Boutros speaks about the latest in the Mueller investigation. You can watch the <a href="http://www.cbc.ca/player/play/1088543811522">full interview here</a>.</p> http://www.seyfarth.com:80/publications/OMM103017-LE New York Paid Family Leave Forms Released http://www.seyfarth.com:80/publications/OMM103017-LE Mon, 30 Oct 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>: The New York Workers&rsquo; Compensation Board has made forms necessary for the implementation of the Paid Family Leave Law available on its website.&nbsp; The available forms include the long anticipated PFL-1 form through which employees may request leave, and forms specific to each covered purpose of paid family leave.</em></p> <p> The New York Workers&rsquo; Compensation Board has released the PFL-1 form for employees who are seeking New York Paid Family Leave (&ldquo;PFL&rdquo;) benefits. &nbsp;The PFL-1 is attached to specific forms for employees requesting bonding leave (<a href="https://www.ny.gov/sites/ny.gov/files/atoms/files/bonding.pdf">PFL-2</a>), leave for a family member&rsquo;s serious health condition (<a href="https://www.ny.gov/sites/ny.gov/files/atoms/files/careforfamilymember.pdf">PFL-3</a>), and leave for a qualifying exigency under the Family and Medical Leave Act (<a href="https://www.ny.gov/sites/ny.gov/files/atoms/files/military.pdf">PFL-5</a>).&nbsp;</p> <p> Employers must fill out &ldquo;Part B&rdquo; of the PFL-1 form, including the employee&rsquo;s average gross weekly wage and whether the employer will be seeking reimbursement from the carrier in the event the employee is receiving full wages from the employer while on leave (<em>e.g.</em>, where the employee has elected to use paid time off or the company&rsquo;s salary continuation policy).&nbsp; The employer must also state whether the employee has taken leave in the past year for statutory disability or PFL and if so, the dates of any periods of leave.&nbsp; (As a reminder, employees may only take a combined 26 weeks of leave for statutory disability and PFL in a 52-week period).&nbsp; In addition, the employer must indicate whether the employee&rsquo;s leave will run concurrently with FMLA.&nbsp; PFL leave may run concurrently with FMLA only if the leave is taken for a qualifying reason under both laws.&nbsp;</p> <p> For employees, the forms detail instructions as to how to file a claim, including what forms of proof are required for various types of leave.</p> <p> The Board also previously made available the <a href="https://www.ny.gov/sites/ny.gov/files/atoms/files/PFLWaiver.pdf">waiver form</a> for employees who will not reach eligibility and the Employer&rsquo;s Application for Voluntary Coverage (<a href="https://www.ny.gov/sites/ny.gov/files/atoms/files/PFL-135_1017.pdf">PFL-135</a> (without employee contribution) and <a href="https://www.ny.gov/sites/ny.gov/files/atoms/files/PFL-136_1017.pdf">PFL-136</a> (with employee contribution)).</p> <p> As a reminder, only those employers who currently self-insure for New York State statutory disability coverage are eligible to self-insure for PFL.&nbsp; The deadline to elect to self-insure PFL was September 30, 2017.&nbsp; Employers who currently self-insure for disability benefits and who wish to self-insure for PFL, should submit the <a href="http://www.wcb.ny.gov/content/main/forms/SIEmpForms/db_150.pdf">DBL-150</a> form as soon as possible. &nbsp;</p> <p> The law will go into effect on January 1, 2018.&nbsp; In addition to obtaining coverage through a carrier or taking steps to self-insure and collecting employee contributions, there is a written policy requirement for employers.&nbsp; Due to the law&rsquo;s complexities, many employers&rsquo; existing leave policies may need to be revised.&nbsp;</p> <p> See our earlier alerts on the<a href="http://www.seyfarth.com/publications/MA041916-LE"> law,</a> <a href="http://www.seyfarth.com/publications/MA031017-LE">proposed regulations</a>, <a href="http://www.seyfarth.com/publications/MA060117-LE">revised proposed regulations</a>, <a href="http://www.seyfarth.com/publications/MA072117-LE">final regulations</a>, <a href="http://www.seyfarth.com/publications/OMM060217-LE2">employee contribution amount</a>, and <a href="http://www.seyfarth.com/publications/OMM082917-LE">tax treatment of PFL benefits</a> for more information.&nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/MA103017-LE Shifty Business II: Rules Proposed for NYC’s Fair Workweek Law http://www.seyfarth.com:80/publications/MA103017-LE Mon, 30 Oct 2017 00:00:00 -0500 <p class="BodySingle"> <b><i>Seyfarth Synopsis:</i></b><i> The NYC Department of Consumer Affairs has proposed rules implementing the Fair Workweek Law, which imposes significant constraints on shift scheduling in the retail and fast food industries. The comment period extends until November 17, 2017, and the law takes effect on November 26. <o:p></o:p></i></p> <p class="BodySingle"> The Office of Labor Policy and Standards (&ldquo;OLPS&rdquo;), part of the New York City Department of Consumer Affairs, has proposed rules implementing the City&rsquo;s Fair Workweek Law. That law, a set of five bills signed into law by Mayor Bill de Blasio in May and effective November 26, 2017, strictly regulates the scheduling practices of fast food and retail employers in New York City. (Further details about the law are available in our prior client alert <a href="http://www.seyfarth.com/publications/MA053117-LE">here</a>.)<o:p></o:p></p> <p class="BodySingle"> Below is a summary of the proposed regulations. The comment period ends on November 17, 2017, after a public hearing that morning.</p> <p class="BodySingle"> <o:p></o:p><b><i>Fast Food Employers</i></b></p> <p class="BodySingle"> <i>&bull; Actual hours worked: </i>As described below, all covered employers will need to keep records of employees&rsquo; &ldquo;actual hours worked.&rdquo; The proposed 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. <o:p></o:p></p> <p class="BodySingle"> <i>&bull; Additional shift: </i>This means a shift not previously scheduled that would be offered to a new fast food employee in the absence of the Fair Workweek Law&rsquo;s access-to-hours requirement.<o:p></o:p></p> <p class="BodySingle"> <i>&bull; Good faith estimate:</i> Fast food employers are required to provide each employee with the expected number, days, times, and locations of hours the employee can anticipate working each week. This information must be provided before the employee&rsquo;s first day of work.<o:p></o:p></p> <p class="BodySingle"> <i>&bull; New fast food employee:</i> Fast food employers must comply with the access-to-hours provisions of the Law before hiring new employees and provide new employees with a written schedule and an estimate of hours the employee can expect to work. The proposed regulations define a &ldquo;new employee&rdquo; as one who has not worked for that fast food employer in the 6 months prior to commencing employment. <o:p></o:p></p> <p class="BodySingle"> <i>&bull; Overtime pay:</i> This 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. Fast food employers will not be 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;</p> <p class="BodySingle"> <o:p></o:p><b><i>Retail Employers</i></b></p> <p class="BodySingle"> <i>&bull; Engaged primarily in the sale of consumer goods:</i> This refers to retail businesses with more than 50% of sales transactions in a calendar year at one or more locations in New York City to retail consumers. Retail businesses that do not meet this definition are not subject to the Fair Workweek Law.<o:p></o:p></p> <p class="BodySingle"> <i>&bull; Retail consumer:</i> 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. <o:p></o:p></p> <p class="BodySingle"> <b>Fast Food Employers<o:p></o:p></b></p> <p class="BodySingle"> Fast food employers are also affected by the following rules implementing the substantive provisions of the Law.<o:p></o:p></p> <p class="BodySingle"> <b><i>Good Faith Estimate<o:p></o:p></i></b></p> <p class="BodySingle"> 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 proposed 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. <o:p></o:p></p> <p class="BodySingle"> 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. <o:p></o:p></p> <p class="BodySingle"> The rules provide 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:<o:p></o:p></p> <p class="BodySingle"> &bull; Number of hours worked differs by 20% from the estimate;<o:p></o:p></p> <p class="BodySingle"> &bull; Days or locations worked differ at least once per week; or<o:p></o:p></p> <p class="BodySingle"> &bull; A change in any morning, afternoon, or night shift to another part of the day at least once per week.<o:p></o:p></p> <p class="BodySingle"> The rules exclude a change in shift time of 15 minutes or less from the definition. Additionally, each <i>occurrence</i> of a long-term or indefinite change for which the employer does not provide an updated good faith estimate is a violation of the advance scheduling requirement.<o:p></o:p></p> <p class="BodySingle"> <b><i>Shift Changes<o:p></o:p></i></b></p> <p class="BodySingle"> The Fair Workweek 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. <b><i><o:p></o:p></i></b></p> <p class="BodySingle"> The rules also provide that employers will not be obligated to pay a premium for a change in an employee&rsquo;s work schedule by 15 minutes or less. The example provided is that of an employee who agrees to stay up to 15 minutes past the scheduled end of her shift.<o:p></o:p></p> <p class="BodySingle"> <b><i>Notice and Offer of Additional Shifts<o:p></o:p></i></b></p> <p class="BodySingle"> 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 proposed rules provide that:<o:p></o:p></p> <p class="BodySingle"> &bull; 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 that same method to notify all accepting employees as soon as possible after the offered shift has been filled. <o:p></o:p></p> <p class="BodySingle"> &bull; Employers must post a notice of additional available shifts for three consecutive calendar days. When the employer has less than three days&rsquo; notice of the need to fill a shift (<i>i.e.,</i> when an employee unexpectedly quits or takes time off), the notice should be posted as soon as possible. The employer may temporarily assign an existing employee to work a shift that becomes available with less than three days&rsquo; notice, but must comply with the shift notice provisions for any shifts available in more than three days. <o:p></o:p></p> <p class="BodySingle"> &bull; 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. <o:p></o:p></p> <p class="BodySingle"> <b><i>Accepting and Awarding Additional Shifts<o:p></o:p></i></b></p> <p class="BodySingle"> 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.<o:p></o:p></p> <p class="BodySingle"> Employers must first award additional shifts to employees currently working at the location of the available shifts. <o:p></o:p></p> <p class="BodySingle"> 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. <o:p></o:p></p> <p class="BodySingle"> An employee may accept an open shift that overlaps with that employee&rsquo;s current shift. The employer must award the employee the offered shift instead of the current shift and cannot require the employee to work both shifts&rsquo; hours as a condition of that grant. <o:p></o:p></p> <p class="BodySingle"> If an employee accepts an offered shift that would entitle the employee to overtime pay, the employer is not required to award that employee the shift, but 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 open shift.<o:p></o:p></p> <p class="BodySingle"> <b><i>Recordkeeping<o:p></o:p></i></b></p> <p class="BodySingle"> 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 they were noted on wage stubs or other written documentation.<o:p></o:p></p> <p class="BodySingle"> <b><i>General Provisions<o:p></o:p></i></b></p> <p class="BodySingle"> <i>Notice of Rights:</i> The required notice of rights under the Fair Workweek Law must be posted on 11 inch by 17 inch paper with at least 12 point font. A notice of rights has not yet been published. <o:p></o:p></p> <p class="BodySingle"> <i>Posted Notice of Schedules</i>: 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.<o:p></o:p></p> <p class="BodySingle"> <i>Recordkeeping:</i> 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. <o:p></o:p></p> <p class="BodySingle"> <i>Employee Records Requests:</i> The Fair Workweek 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. <o:p></o:p></p> <p class="BodySingle"> <i>Private Right of Action:</i> Once an individual has filed a complaint with OLPS or commenced a lawsuit based on the Fair Workweek 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 Fair Workweek Law to OLPS must withdraw that complaint in writing prior to filing a lawsuit. A person who filed a lawsuit based on the Fair Workweek Law must withdraw those claims or have them dismissed with prejudice before filing a complaint with OLPS. <o:p></o:p></p> <p class="BodySingle"> <b>Implications for Employers<o:p></o:p></b></p> <p class="BodySingle"> Employers should prepare to revise their written policies in accordance with the Fair Workweek Law, and may receive questions from employees in advance of implementation. We will continue to track implementation of the legislation, and advise of any updates.<o:p></o:p></p> http://www.seyfarth.com:80/publications/WLS103017 Bargaining power in favour of employers – really? http://www.seyfarth.com:80/publications/WLS103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> A key tenet of Shadow Minister O&rsquo;Connor&rsquo;s National Press Club speech is that employers are &ldquo;gaming&rdquo; the Act. He relies on the example of an employer that sought to outsource work and have the services performed by a third party. Hardly remarkable. So what might employers say about this? In what ways do unions &ldquo;game&rdquo; the Act? Here&rsquo;s a short list. Some involve taking advantage of existing laws and are therefore legal. Some are not.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2017/10/bargaining-power-in-favour-of-employers-really/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE103017 Trump Nominates FedEx VP for Safety as OSHA Administrator http://www.seyfarth.com:80/publications/WSE103017 Mon, 30 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The White House picks Scott A. Mugno as the new Administrator of federal OSHA.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/trump-nominates-fedex-vp-for-safety-as-osha-administrator/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/weissher102917 Philippe Weiss quoted in HER Magazine http://www.seyfarth.com:80/news/weissher102917 Sun, 29 Oct 2017 00:00:00 -0500 <p> Philippe Weiss was quoted in an October 29 story from HER Magazine, &quot;Halloween Hijinks Can Cause Confusion, Complaints, And Even Lawsuits.&quot; Weiss said that there are at least three major categories of legal problems that companies should be aware of if they celebrate Halloween: (1) Costume and Conduct Calamities, (2) Creeped-Out Customers, and (3) Complaints of Discrimination. You can read the <a href="http://hermag.co/halloween-hijinks/">full article here</a>.</p> http://www.seyfarth.com:80/news/lcld102717 Seyfarth Named a 2017 Top Performer by the Leadership Council on Legal Diversity http://www.seyfarth.com:80/news/lcld102717 Fri, 27 Oct 2017 00:00:00 -0500 <p align="center"> <img height="250" src="http://www.seyfarth.com/dir_docs/publications/LCLD-Top-Seal_2017.png" /></p> <p> Seyfarth Shaw LLP was recognized as a 2017 &quot;Top Performer&quot; by the Leadership Council on Legal Diversity (LCLD). The designation &quot;Top Performer&quot; is for the most active LCLD Member Corporations and Law Firms, those who are most involved in LCLD&rsquo;s programs and the promotion of LCLD&rsquo;s mission.</p> <p> Organizations receive points for a variety of LCLD-related activities, including attending the Annual Membership Meeting, having a Fellows Alumna speak at a regional event, or nominating a 1L Scholar. &quot;Top Performers&quot; also led the charge on some of LCLD&rsquo;s newest projects by participating in LCLD&rsquo;s collaborative data initiative and sending representatives to the inaugural Diversity Professionals Summit. 2017 marks the fifth year that LCLD has recognized those organizations with the most active commitment to its mission.</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/publications/MA102717-LE If Pain, Yes Gain — Part XXXVIII: Washington Releases Final Paid Sick Leave Rules http://www.seyfarth.com:80/publications/MA102717-LE Fri, 27 Oct 2017 00:00:00 -0500 <p class="BodySingle"> <b><i>Seyfarth Synopsis:</i></b><i> On October 20, 2017, the Washington Department of Labor &amp; Industries released the state&rsquo;s final paid sick leave rules. Among other things, the final rules impose a number of additional burdens on covered employers, including broad recordkeeping requirements and multiple notice obligations,&nbsp;</i><em>that must be satisfied and understood by the state paid sick leave law&#39;s January 1, 2018 effective date.</em></p> <p class="BodySingle"> <i><o:p></o:p></i>Last week, the Washington Department of Labor &amp; Industries (the &ldquo;Department&rdquo;) released the state&rsquo;s long-awaited final paid sick leave rules (the &ldquo;Final Rules&rdquo;).<a href="#_ftn1" name="_ftnref1" style="background-color: rgb(255, 255, 255);" title="">[1]</a> When the Washington paid sick leave (&ldquo;PSL&rdquo;) law goes into effect on January 1, 2018, Washington will become the seventh state in the country with a statewide PSL law that is in effect.<a href="#_ftn2" name="_ftnref2" style="background-color: rgb(255, 255, 255);" title="">[2]</a>&nbsp; Washington employers should assess and take the Final Rules into account as they prepare to comply with the impending law.<a href="#_ftn3" name="_ftnref3" style="background-color: rgb(255, 255, 255);" title="">[3]</a></p> <p> There currently are four municipal paid sick leave <a href="http://www.seyfarth.com/publications/MA020416-LE">ordinances</a> in the state of Washington &mdash; Seattle, SeaTac, Tacoma, and Spokane.<a href="#_ftn4" name="_ftnref4" title="">[4]</a>&nbsp; The Washington PSL law expressly states that it will not preempt municipalities from establishing standards relating to PSL that are more favorable to employees than that under the state law.&nbsp; However, the Spokane PSL ordinance contains a section titled &ldquo;Sunset,&rdquo; which states that the ordinance will be in effect until the later of December 31, 2017 or the effective date of the Washington PSL law. Thus, come January 1, 2018, Spokane employers will only need to follow the Washington PSL law.<a href="#_ftn5" name="_ftnref5" title="">[5]</a></p> <p> While not going as far as Spokane, Tacoma also is adjusting its PSL requirements based on the impending statewide law. Tacoma amended its PSL ordinance on September 26, 2017 and, per the city&rsquo;s <a href="https://www.cityoftacoma.org/cms/one.aspx?objectId=75860">paid sick leave website</a>, the amendments are designed so Tacoma &ldquo;paid sick leave will match the more generous standards set by State law.&rdquo; The amended Tacoma PSL ordinance goes into effect on January 1, 2018.</p> <p> It is unclear at this time if Seattle plans on revising its municipal PSL requirements based on the Washington PSL law. We will keep you posted on any developments.</p> <p> Here are the highlights of the Washington Final PSL Rules:</p> <p> <strong>Covered Employers</strong></p> <p> The Final Rules add a definition of &ldquo;employer&rdquo; to the state&rsquo;s PSL law, which otherwise lacks any such definition. In particular, the Final Rules broadly define employer to include any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.</p> <p> <strong>Covered Employees</strong></p> <p> The Final Rules fill in another gap in the Washington PSL law by including a definition of &ldquo;employee.&rdquo; Who is included in the definition is quite short &mdash; &ldquo;any individual employed by an employer.&rdquo;&nbsp; However, the definition includes a lengthy list of individuals who are not considered employees for purposes of Washington PSL.</p> <p> Among other groups, this list includes: (a) certain hand harvest laborers; (b) individuals employed in casual labor in or about a private home (with a few exceptions); (c) any individual employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesperson; (d) any newspaper vendor, carrier, or delivery person selling or distributing newspapers on the street, to offices, to businesses, or from house to house and any freelance news correspondent or &ldquo;stringer;&rdquo; (e) individuals engaged in forest protection and fire prevention activities; (f) certain individuals employed by a charitable institution; and (g) any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi municipal corporation.</p> <p> <strong>Frontloading PSL</strong></p> <p> Employers covered by the Washington PSL law must allow employees to accrue one hour of PSL for every 40 hours worked. Employers also must allow 40 hours of earned, unused PSL to carry over at year-end. However, neither the Washington PSL law nor the corresponding Final Rules include any language that would cap how much PSL employees can ultimately accrue and use in a single year.&nbsp;</p> <p> One ambiguous aspect of the Washington PSL law is its provision on &ldquo;frontloading&rdquo; PSL. The law states that &ldquo;frontloading&rdquo; is permitted as long as it &ldquo;meets or exceeds the requirements&hellip;for accrual, use, and carryover of paid sick leave.&rdquo; This provision is unclear on how &ldquo;frontloading&rdquo; meshes with the law&rsquo;s nonexistent caps on accrual and usage and whether frontloading PSL would absolve an employer&rsquo;s year-end carryover obligation, as is the case under many existing PSL laws.</p> <p> The Final Rules contain language that partially resolves this uncertainty. The Final Rules define &ldquo;frontloading&rdquo; as providing an employee with PSL <u>before it has accrued</u> at the required one hour for every 40 hours worked accrual rate. The Final Rules state that employers should determine the amount of the frontload by reasonably calculating how much PSL an employee is projected to accrue based on anticipated hours worked.&nbsp; If an employer overestimates this amount and frontloads the employee with more PSL than he/she would have accrued, the employer is expressly prohibited from seeking reimbursement for the excess PSL.&nbsp; On the other hand, if the employer underestimates and frontloads the employee with less PSL than he/she would have accrued, the employer must make the additional PSL available to the employee as soon as practicable, and no later than 30 days after identifying the shortcoming. Employers taking advantage of the above &ldquo;frontloading&rdquo; option, must have a written policy in place that addresses the practice.</p> <p> While the above guidance is instructive, the Final Rules do not explicitly explain what impact &ldquo;frontloading&rdquo; has on year-end carryover.&nbsp; That being said, both the Final Rules&rsquo; and Washington PSL law&rsquo;s language on &ldquo;frontloading&rdquo; describe an approach that acts more as an advance on accrual than an alternative to accrual.&nbsp; In the PSL context this typically means that frontloading does not remove year-end carryover obligations.<a href="#_ftn6" name="_ftnref6" title="">[6]</a> As a result, employers who &ldquo;frontload&rdquo; Washington PSL to their employees most likely will need to permit year-end carryover of up to 40 hours of unused PSL.&nbsp; To avoid the carryover requirement, it appears that employers will have to frontload the anticipated accrual for the year, plus the 40 hours that would otherwise be carried over at the beginning of each year.&nbsp;</p> <p> <strong>Minimum Increment of Use</strong></p> <p> Generally, employers must allow employees to use PSL in increments consistent with the employer&rsquo;s payroll system and practices, not to exceed one hour.&nbsp; For example, an employer must allow employees to use PSL in 15 minute increments, if an employer&rsquo;s normal practice is to track work in 15 minute increments for purposes of compensation.&nbsp;</p> <p> Despite the above standard, the Department will grant employers a variance from the required increments of PSL use if the employer can make a showing of &ldquo;good cause.&rdquo;&nbsp; &ldquo;Good cause&rdquo; will exist where the employer demonstrates that the mandated increments of use are infeasible, and that granting a variance will not have a significant harmful effect on the health, safety, and welfare of the involved employees. To be approved for a variance, an employer must submit a written application to the Department and follow other procedures spelled out in the Final Rules.</p> <p> <strong>Sick Time Payment</strong></p> <p> The Washington PSL law is unclear on whether employees should be compensated for used PSL in their &ldquo;normal hourly compensation&rdquo; or &ldquo;regular and normal wage.&rdquo;&nbsp; However, the Final Rules clarify that &ldquo;regular and normal wage&rdquo; has the same meaning as &ldquo;normal hourly compensation.&rdquo;</p> <p> Pursuant to the Final Rules, &ldquo;normal hourly compensation&rdquo; means &ldquo;the hourly rate that an employee would have earned for the time during which the employee used paid sick leave.&rdquo;&nbsp; The Final Rules specify that normal hourly compensation does not include tips, gratuities, service charges, holiday pay, or other premium rates, unless otherwise provided by the employer. &nbsp;The Final Rules also provide examples of reasonable calculations of &ldquo;normal hourly compensation&rdquo; for commissioned employees, piece-rate employees, nonexempt employees paid a salary, employees whose hourly rate fluctuates, and employees who are scheduled to work a shift of indeterminate length.</p> <p> <strong>Reasonable Notice by Employees</strong></p> <p> The Final Rules state that when an employee&rsquo;s PSL absence is foreseeable, the employer may require that the employee provide notice at least 10 days in advance of the absence, or otherwise as early as practicable.&nbsp; If the need for the absence is unforeseeable, the employer may require notice as soon as possible before the required start of the employee&rsquo;s shift, unless it is impracticable to do so.&nbsp; If an employer requires employees to provide notice of a PSL absence related to domestic violence, sexual assault, or stalking, such notice must comply with the notice requirements under the Washington Domestic Violence Leave Act.</p> <p> Notably, the Final Rules require that employers maintain and notify employees about a written policy &ldquo;outlining any requirements of an employee to give reasonable notice for the use of paid sick leave.&rdquo;&nbsp;&nbsp;</p> <p> <strong>Verification</strong></p> <p> Employers can require an employee to provide verification that his/her PSL absence was for a covered purpose when the absence exceeds three days. The Final Rules explain that employers cannot require that the employee provide this verification until at least 10 calendar days after the first day the employee uses PSL.</p> <p> The Final Rules further note that if an employee believes the employer&rsquo;s verification requirement will result in an unreasonable burden or expense, the employee must be allowed to provide an oral or written explanation to the employer asserting (1) the PSL use is proper, and (2) how the verification requirement creates an unreasonable burden or expense. The Final Rules outline steps for employers to follow in assessing and responding to these employee claims.</p> <p> If an employer requires employee verification, it must maintain and distribute a written policy outlining any such requirements, including employees&rsquo; right to assert that the requirement results in an unreasonable burden or expense.</p> <p> <strong>Suspected Abuse of PSL</strong></p> <p> Under the Final Rules, if an employer can demonstrate that an employee&rsquo;s use of PSL was for an unauthorized purpose, the employer may withhold payment of PSL for such hours. However, in this situation, the employer may not subsequently deduct those hours from an employee&rsquo;s legitimately accrued, unused PSL hours.</p> <p> If an employer withholds payment when PSL is used for unauthorized purposes, the employer must inform the employee of the withholding.&nbsp; The Final Rules note that if the employee disagrees with the withholding, he/she may file a complaint with the Department.</p> <p> <strong>Employer Notice Requirements</strong></p> <p> The Final Rules impose multiple notice requirements on covered employers. First, at least monthly, employers must provide each employee with written or electronic notification detailing (1) the amount of PSL accrued, (2) the PSL reductions since the last notification, and (3) any unused PSL available for use by the employee. Employers can satisfy this notification requirement by listing the information in employees&rsquo; regular payroll statements.&nbsp; &ldquo;Frontloading&rdquo; PSL as discussed above, does not remove employers&rsquo; obligation to provide at least monthly notice of an employee&rsquo;s PSL that is available for use.</p> <p> Second, the Final Rules mandate that covered employers provide notice to an employee of the amount of accrued, unused PSL that is available for use when the employee is rehired following separation of employment.</p> <p> Third, employers must notify each employee of certain rights under the Washington PSL law either upon hire for employees hired on or after January 1, 2018, or no later than March 1, 2018 for existing employees.&nbsp; The Department will release a model notice for employers to use in satisfying this obligation.</p> <p> <strong>Recordkeeping Requirement</strong></p> <p> The Final Rules also add a broad recordkeeping burden on employers.&nbsp; With respect to each eligible employee, a covered employer must retain, among nearly a dozen other records, (a) PSL accruals each month, (b) any unused PSL available for use by an employee, and (c) any PSL reductions each month including, but not limited to PSL used by an employee, PSL donated to a coworker through a shared leave program, or PSL not carried over to the following year.</p> <p> <strong>What Should Employers Do Now?</strong></p> <p> Washington employers should take steps now to ensure that they will be able to achieve full compliance with the Washington PSL law and Final Rules by their January 1, 2018 effective date. These are among the specific actions to consider:</p> <ul> <li style="margin-left: 0.5in;"> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the Final Rules and Washington PSL law.</li> <li style="margin-left: 0.5in;"> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the Final Rules and Washington PSL law.</li> <li style="margin-left: 0.5in;"> Monitor the Department website for information on the Final Rules and Washington PSL law, including a forthcoming model notice.</li> <li style="margin-left: 0.5in;"> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Importantly, Washington is still finalizing a separate PSL rulemaking that is specifically designed to address enforcement of the PSL law&rsquo;s retaliation and enforcement directives.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Including Washington, there currently are eight states with PSL laws that are either in effect or scheduled to go into effect in the coming months. The other seven states include Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, and Rhode Island. As of January 1, 2018, only the Rhode Island PSL law will not yet be in effect.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> For more information on the Washington PSL law, see our earlier posts <a href="https://www.laborandemploymentlawcounsel.com/2016/11/2016-election-infected-with-paid-sick-leave/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=a237430bd4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-a237430bd4-71256185">here</a> and <a href="https://www.laborandemploymentlawcounsel.com/2016/11/2016-election-infected-with-paid-sick-leave-part-ii/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=1742b5ae3e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-1742b5ae3e-71256185">here</a>.</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> The Seattle paid sick and safe time ordinance has been in effect since September 2012. The SeaTac PSL ordinance went into effect in January 2014 and only applies to certain hospitality and transportation employers. The Tacoma and Spokane PSL ordinances went into effect in February 2016 and January 2017, respectfully.</p> </div> <div id="ftn5"> <p> <a href="#_ftnref5" name="_ftn5" title="">[5]</a> The Spokane PSL ordinance expressly states that &ldquo;[t]his chapter shall be effective until December 31, 2017, or until the implementation by the state of Washington of the paid sick leave requirements established by the passage of I-1433, whichever occurs last.&rdquo;</p> </div> <div id="ftn6"> <p> <a href="#_ftnref6" name="_ftn6" title="">[6]</a> See discussion of a PSL &ldquo;advance&rdquo; and providing PSL &ldquo;up-front&rdquo; under the San Francisco, CA PSL ordinance <a href="http://sfgov.org/olse/modules/showdocument.aspx?documentid=13606">FAQs</a>.&nbsp;</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM102617-LIT Vice President Casts Deciding Vote to Overturn CFPB’s Proposed Arbitration Rule http://www.seyfarth.com:80/publications/OMM102617-LIT Thu, 26 Oct 2017 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis: </strong>Financial institutions can maintain the status quo of their pre-dispute resolution clauses in consumer contracts because Senate voted against CFPB&rsquo;s proposed arbitration rule.</em></div> <div> &nbsp;</div> <div> In a <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&amp;session=1&amp;vote=00249">51 - 50 vote</a>, on October 24, 2017, the Senate passed H.J.Res.111, which provided for congressional disapproval of the Consumer Financial Protection Bureau&rsquo;s (&ldquo;CFPB&rdquo;) proposed rule relating to arbitration agreements. Under the CFPB&rsquo;s rule, companies would have been prohibited from including pre-dispute arbitration clauses in customer agreements that precluded a consumer from joining class actions. The CFPB justified the rule in part because of its <a href="https://www.consumerfinance.gov/about-us/newsroom/let-consumers-sue-companies/">own study</a> that concluded that group lawsuits have greater success than individual actions, especially arbitration proceedings.&nbsp;</div> <div> &nbsp;</div> <div> Other government agencies, however, questioned the CFPB&rsquo;s conclusions in its report.&nbsp; The Office of the Comptroller of the Currency (&ldquo;OCC&rdquo;) sharply <a href="https://www.occ.treas.gov/publications/publications-by-type/other-publications-reports/occ-arbitration-study.pdf">criticized </a>the CFPB&rsquo;s report as flawed and stated that, properly interpreted, the underlying data showed that &ldquo;[c]onsumers face significant risk of a substantial rise in the cost of credit&rdquo; as a result of the proposed rule.&nbsp; Likewise, the U.S. Department of Treasury <a href="https://www.treasury.gov/press-center/press-releases/Documents/10-23-17 Analysis of CFPB arbitration rule.pdf">concluded</a> that &ldquo;[t]he Rule will impose extraordinary costs &mdash;based on the Bureau&rsquo;s own incomplete estimates,&rdquo; &ldquo;will effect a large wealth transfer to plaintiffs&rsquo; attorneys,&ldquo;&nbsp; and will &ldquo;upend a century of federal policy favoring freedom of contract to provide for low-cost dispute resolution.&rdquo;</div> <div> &nbsp;</div> <div> Congress used its authority under the Congressional Review Act to pass a joint resolution that concisely states that Congress disapproves of the rule submitted by the CFPB and it should have no force or effect. The House had already voted to rescind the rule, and, with the Senate joining that effort, there is only one step left to squash the CFPB&rsquo;s proposed rule&mdash;President Trump&rsquo;s signature.&nbsp; President Trump is expected to swiftly sign the resolution.&nbsp; White House press secretary Sarah Huckabee Sanders stated that President Trump supports overturning the rule because &ldquo;the rule would harm our community banks and credit unions by opening the door to frivolous lawsuits by special interest trial lawyers.&rdquo;&nbsp; The Administration also issued a <a href="https://www.whitehouse.gov/the-press-office/2017/07/24/hj-res-111-disapproving-rule-submitted-consumer-financial-protection">statement </a>this summer expressing its disapproval with the &ldquo;CFPB&rsquo;s harmful rule.&rdquo;</div> <div> &nbsp;</div> <div> The passage of Congress&rsquo; joint resolution has been coined one of Wall Street&rsquo;s and other financial institutions&rsquo; biggest feats thus far under the Trump administration, and the resolution may also benefit consumers.&nbsp; OCC Acting Comptroller Keith Noreika praised the vote as &ldquo;a victory for consumers and small banks across the country&rdquo; by stopping a rule &ldquo;that would have likely increased the cost of credit for hardworking Americans and made it more difficult for small community banks to resolve differences with their customers.&rdquo;&nbsp; Proponents of the resolution believe that the rule, while well-intentioned, missed the mark.&nbsp; As Rob Nichols, president of the American Banker Association stated, &ldquo;Today&rsquo;s vote puts consumers first rather than class-action lawyers.&rdquo; And the Credit Union National Association agreed explaining that the CFPB&rsquo;s proposed rule &ldquo;was just the latest example of the one-size-fits-all rulemaking coming from the CFPB and thankfully Congress acted to remedy the situation.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> The joint resolution is also a sign of the current Congress&rsquo; growing rejection and questioning of the CFPB&rsquo;s authority.&nbsp; As Sen. Mike Crapo (R-Idaho) noted, the Senate&rsquo;s vote &ldquo;was an important step in asserting Congressional oversight of an agency that has routinely demonstrated a lack of accountability.&rdquo;</div> <div> &nbsp;</div> <div> Reactions from the other side of the political spectrum included CFPB Director Richard Cordray calling the Senate&rsquo;s vote &ldquo;a giant setback for every consumer in this country&rdquo; and Sen. Elizabeth Warren (D-Mass.) referring to the Senate vote as a &ldquo;giant wet kiss to Wall Street&rdquo; and lamenting that financial institutions have &ldquo;hurt millions of consumers and tried to escape accountability using forced arbitration clauses.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> Based on the Senate&rsquo;s action, financial institutions can put down their pens if they had begun excising mandatory arbitration provisions from agreements or pick up their pens if they had been refraining from adding such provisions in light of the proposed rule.&nbsp; &nbsp; &nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL102617 Click for Backup: New Ordinance Requires Chicago Hotels to Provide Staff with “Panic Buttons” http://www.seyfarth.com:80/publications/EL102617 Thu, 26 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On October 11, 2017, the Chicago City Council passed an ordinance that will require Chicago hotels to provide certain staff with &ldquo;panic buttons&rdquo; and develop enhanced anti-sexual harassment policies.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/10/click-for-backup-new-ordinance-requires-chicago-hotels-to-provide-staff-with-panic-buttons/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD102617 Senate Kills CFPB Rule Prohibiting Class Action Waivers http://www.seyfarth.com:80/publications/CCD102617 Thu, 26 Oct 2017 00:00:00 -0500 <p> Today the Senate struck down a new Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;) rule which would have prohibited providers of financial products and services from including class action waivers in their arbitration agreements with consumers. The action is a win for the financial services industry.<br /> <br /> <a href="https://www.consumerclassdefense.com/2017/10/senate-kills-cfpb-rule-prohibiting-class-action-waivers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP102617 Not As You Wish: Wage Statement Law’s Pit of Despair http://www.seyfarth.com:80/publications/CP102617 Thu, 26 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: With the widespread use of direct deposit, the thought of an employee regularly reviewing wage statements may seem inconceivable. Still, employers must ensure that their wage statements strictly comply with California law, as even trivial, inadvertent failures to do so can lead to heavy penalties. We highlight here the information to include on wage statements while pointing out some of the legal landmines trod upon by unwary employers.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/10/26/not-as-you-wish-wage-statement-laws-pit-of-despair/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT102617 The Week in Weed: October 27, 2017 http://www.seyfarth.com:80/publications/TBT102617 Thu, 26 Oct 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/2017/10/the-week-in-weed-october-27-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/gardnerlabj102617 Darren Gardner Named Los Angeles Business Journal’s “International Attorney of the Year” http://www.seyfarth.com:80/news/gardnerlabj102617 Thu, 26 Oct 2017 00:00:00 -0500 <p> Seyfarth Shaw&rsquo;s Darren Gardner, chair of the firm&rsquo;s International practice, was selected as the <em>Los Angeles Business Journal</em>&rsquo;s &ldquo;International Attorney of the Year&rdquo; at its 2017 &ldquo;Leaders in Law&rdquo; Awards reception on October 24th in Los Angeles.</p> <p> The <em>Los Angeles Business Journal</em> 2017 &ldquo;Leaders in Law&rdquo; Awards recognize the accomplishments and significant role that general counsel and leading attorneys play in the success of a business enterprise. Candidates in each category were recognized for exceptional legal skill across the full spectrum of responsibility, exemplary leadership, and for contributions to the Los Angeles community at large. Darren won the top honor over more than 75 other nominations received by the<em> Los Angeles Business Journal</em> in the International category.</p> <p> Darren is recognized globally as a pioneer in the International Employment Law practice area and he is the trusted advisor to many of the world&#39;s largest companies in respect of matters ranging from day-to-day complex cross-border employment matters on a single country basis, to large and complex multi-jurisdictional employment law projects. He has undertaken more than 500 multi-jurisdictional strategic, compliance and transactional employment related projects, covering more than 170 different countries, including projects covering more than 150 countries at one time.</p> <p> In addition, Darren has received a number of international awards for his work in the international employment area. <em>Chambers USA 2017</em> described him as &ldquo;uber-responsive and pragmatic&rdquo; and said that he &ldquo;has an encyclopedic knowledge of the law, and understands in house challenges.&rdquo; <em>Who&rsquo;s Who Legal</em> recently called Darren a &ldquo;world-renowned practitioner&rdquo; and a &ldquo;great strategist&rdquo; in his field.</p> <p> The award-winning <em>Los Angeles Business Journal</em> examines the many ways that the L.A. economy operates. First-rate editorial and research teams provide in-depth analyses of the community&rsquo;s dynamic business and economic scene. You can read more <a href="http://labusinessjournal.com/about/">here</a>.</p> http://www.seyfarth.com:80/news/weisstlnt102617 Philippe Weiss quoted in TLNT.com http://www.seyfarth.com:80/news/weisstlnt102617 Thu, 26 Oct 2017 00:00:00 -0500 <p> Philippe Weiss was quoted in an October 26 story from TLNT.com, &quot;Halloween: The Scariest Time of the Year for HR.&quot; Weiss said that even well-intentioned efforts at Halloween fun can have unintended consequences. You can read the <a href="https://www.tlnt.com/halloween-the-scariest-time-of-the-year-for-hr/">full article here</a>.</p> http://www.seyfarth.com:80/news/hoffmanwapo102617 Valerie Hoffman quoted by the Washington Post http://www.seyfarth.com:80/news/hoffmanwapo102617 Thu, 26 Oct 2017 00:00:00 -0500 <p> Valerie Hoffman was quoted in an October 26 story from the Washington Post, &quot;Nearly 80 percent of board members haven&rsquo;t discussed recent sexual harassment news, survey says.&quot; Hoffman said that most employer groups with whom she works with feel pretty well positioned with their harassment prevention policies. You can read the <a href="https://www.washingtonpost.com/news/on-leadership/wp/2017/10/26/nearly-80-percent-of-board-members-havent-discussed-recent-sexual-harassment-news-survey-says/?utm_term=.92333087d6b8">full article here</a>.</p> http://www.seyfarth.com:80/news/launeywsj102517 Kristina Launey quoted in the Wall Street Journal http://www.seyfarth.com:80/news/launeywsj102517 Wed, 25 Oct 2017 00:00:00 -0500 <p> Kristina Launey was quoted in an October 25 story from the Wall Street Journal, &quot;Ask Me How Much Money I Make: Pay Gets More Transparent,&quot; on how nearly half of millennials surveyed said they talk about their compensation with friends, compared with 36% of Americans overall. Launey said that the attitude shift has put greater pressure on employers to explain why some workers are paid more than others and to formalize compensation and promotion practices. You can read the<a href="https://www.wsj.com/articles/ask-me-how-much-money-i-make-pay-gets-more-transparent-1508929200"> full article here</a>.</p> http://www.seyfarth.com:80/news/launeymarketplace102517 Kristina Launey interviewed by Marketplace Radio http://www.seyfarth.com:80/news/launeymarketplace102517 Wed, 25 Oct 2017 00:00:00 -0500 <p> Kristina Launey was interviewed on October 25 by Marketplace Radio, &quot;New laws ban employers from using salary history in hiring.&quot; Launey said that the new law could cause difficulties for employers&rsquo; ability to attract talent, negotiate wages, and ensure that the employer and applicant have compensation expectations more or less on the same page from early on. You can listen to the <a href="https://www.marketplace.org/2017/10/25/world/new-laws-ban-employers-using-salary-history-hiring">full interview here</a>.</p> http://www.seyfarth.com:80/publications/WH102517 What Do Sushi and Burritos Have in Common? Second Circuit Ready to Sample Tasty Wage-Hour Procedural Issues http://www.seyfarth.com:80/publications/WH102517 Wed, 25 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Second Circuit will soon decide key issues for FLSA practitioners: whether settlements pursuant to an Offer of Judgment are subject to court review and approval, and whether the standards for final collective certification of FLSA claims are different from those for class certification of state law wage claims under Rule 23.<br /> <br /> <a href="https://www.wagehourlitigation.com/collective-certification/second-circuit-ready-to-sample-tasty-wage-hour-procedural-issues/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS102417 Robert Milligan to Present Defend Trade Secrets Act Webinar http://www.seyfarth.com:80/publications/TS102417 Tue, 24 Oct 2017 00:00:00 -0500 <p> Robert Milligan, along with Certified Forensic Computer Examiner Jim Vaughn, is presenting The Defend Trade Secrets Act &ndash; The Biglaw Partner and Forensic Technologist Perspective webinar for Metropolitan Corporate Counsel on Thursday, November 2 at 1:00 p.m. Eastern.<br /> <br /> <a href="https://www.tradesecretslaw.com/2017/10/articles/dtsa/robert-milligan-to-present-defend-trade-secrets-act-webinar/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE102417 Chipping Employees: The “Wave” of the Future? http://www.seyfarth.com:80/publications/FE102417 Tue, 24 Oct 2017 00:00:00 -0500 <p> The most recent application by employers is by Three Square Market, a technology company in Wisconsin. According to the New York Times, Three Square recently offered to implant a microchip under its employees&#39; skin that will give them access to the building and the ability to pay for food in the cafeteria, all with the wave of a hand. And despite some initial misgivings, more than 50 out of 80 employees at Three Square&rsquo;s headquarters have volunteered.<br /> <br /> <a href="https://www.futureemployer.com/blog/2017/10/5/chipping-employees-the-waive-of-the-future">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL102417 Targeted ICE Investigations ~ in it for the Long Haul with Record $95 Million Plea Deal for I-9 Violations http://www.seyfarth.com:80/publications/EL102417 Tue, 24 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Today&rsquo;s post is by our colleague, Mahsa Aliaskari, Seyfarth Shaw LLP&rsquo;s Senior Counsel. Mahsa has advised and defended businesses with up to 100,000+ nationwide employees on U.S. immigration compliance programs and practices. She and Angelo A. Paparelli &mdash; along with former USCIS Director, Leon Rodriguez, noted worksite enforcement lawyer, Dawn Lurie, and Alexander Madrak, who recently joined Seyfarth from the Immigrant and Employee Rights Section in the Civil Rights Division of the U.S. Department of Justice &mdash; are part of Seyfarth&rsquo;s Immigration Compliance Specialty Team, within the firm&rsquo;s Immigration Group. Mahsa&rsquo;s basic message is that, given the Administration&rsquo;s focus on immigration worksite-enforcement, employers &mdash; no matter how vigilant corporate leaders perceive their immigration compliance measures to be &mdash; must take nothing for granted. Stop assuming and check things out.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/10/targeted-ice-investigations-in-it-for-the-long-haul-with-record-95-million-plea-deal-for-i-9-violations/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD102417 Robins v. Spokeo, Inc.: Ninth Circuit Holds That A Materially Inaccurate Report Is A Concrete Injury Even If The Inaccuracy Did Not Adversely Affect The Consumer http://www.seyfarth.com:80/publications/CCD102417 Tue, 24 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In Spokeo, Inc. v. Robins, the U.S. Supreme Court held that a plaintiff must have a concrete injury to sue for FCRA violations. Following Spokeo&rsquo;s remand, courts have held that consumers have standing to sue if their reports are inaccurate even if an inaccuracy did not adversely affect them.<br /> <br /> <a href="https://www.consumerclassdefense.com/2017/10/robins-v-spokeo-inc-ninth-circuit-holds-that-a-materially-inaccurate-report-is-a-concrete-injury-even-if-the-inaccuracy-did-not-adversely-affect-the-consumer/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE102417 California Passes the Cleaning Product Right to Know Act http://www.seyfarth.com:80/publications/WSE102417 Tue, 24 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Cleaning Product Right to Know Act makes California the first state to require ingredient labeling both on product labels and online for consumer cleaning products.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/california-passes-the-cleaning-product-right-to-know-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP102417 California’s “Naming and Shaming” Gender Pay Bill is Toast, But Pay Equity Headaches Remain: Tomorrow’s Free Webinar on Pay Equity Laws http://www.seyfarth.com:80/publications/CP102417 Tue, 24 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: California Governor Jerry Brown recently vetoed the Gender Pay Gap Transparency Act (AB 1209), which would have required California employers to produce pay data, without consideration of legitimate reasons for differences in pay, to the Secretary of State, who then would publish the data on the internet.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/10/24/californias-naming-and-shaming-gender-pay-bill-is-toast-but-pay-equity-headaches-remain-tomorrows-free-webinar-on-pay-equity-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/shermanleftfoot102417 Andrew Sherman interviewed on the LeftFoot Podcast http://www.seyfarth.com:80/news/shermanleftfoot102417 Tue, 24 Oct 2017 00:00:00 -0500 <p> Andrew Sherman was interviewed October 24th on the LeftFoot Podcast, &quot;Legal Services are Purchased Not Sold with Seyfarth Shaw&rsquo;s, Andrew Sherman.&quot; Sherman said that we can&rsquo;t offer ourselves as problem solvers if we don&rsquo;t understand the business aspects of the problem. You can listen to the <a href="http://www.leftfoot.com/83-andrew-sherman/">full interview here</a>.</p> http://www.seyfarth.com:80/news/weisscdlb102417 Philippe Weiss quoted in the Chicago Daily Law Bulletin http://www.seyfarth.com:80/news/weisscdlb102417 Tue, 24 Oct 2017 00:00:00 -0500 <p> Philippe Weiss was quoted in an October 24 story from the Chicago Daily Law Bulletin, &quot;Working in the lab late one night? Tips for law firm Halloween haunts.&quot; Weiss said that the liability risks companies and employees face on Halloween stem from the decision to hold a Halloween party at work, the ways in which companies decorate for that party and the costumes employees will wear.</p> http://www.seyfarth.com:80/news/morashrm102317 Jennifer Mora quoted in SHRM http://www.seyfarth.com:80/news/morashrm102317 Mon, 23 Oct 2017 00:00:00 -0500 <p> Jennifer Mora was quoted in an October 23 story from SHRM, &quot;California &lsquo;Bans the Box,&rsquo; Prohibits Salary History Queries,&quot; on how California employers will need to modify their job applications and update their training for those involved in the hiring process. Mora said that the individualized assessment must consider the nature and gravity of the criminal offense, the time that has passed since the offense and the completion of the sentence, and the nature of the job sought. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/california-bans-the-box-prohibits-salary-history-queries.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/paparelli102317 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparelli102317 Mon, 23 Oct 2017 00:00:00 -0500 <p> Angelo Paparelli was quoted in an October 23 story from Law360, &quot;Big Takeaways From The New L-1 Visa Petition Data.&quot; Paparelli said that it might be important to know if a user of the L-1 program, whether large or small, was able to create jobs for American workers, then we would know what&#39;s really happening.</p> http://www.seyfarth.com:80/publications/WSE102317 OSHA Review Commission Back in Business http://www.seyfarth.com:80/publications/WSE102317 Mon, 23 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Occupational Safety &amp; Health Review Commission (Review Commission) issued two orders this month &mdash; the first we have heard from the Review Commission since April 27, 2017. The orders followed, on August 28, 2017, James J. Sullivan, Jr., being sworn in as a new and needed third Commissioner. Also on August 16, 2017, Heather L. MacDougall was sworn in as the Chairman, after being appointed to the position by President Trump. These two orders represent the first of many expected now to come.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-enforcement/osha-review-commission-back-in-business/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/devatashrm102017 Pamela Devata quoted in SHRM http://www.seyfarth.com:80/news/devatashrm102017 Fri, 20 Oct 2017 00:00:00 -0500 <p> Pamela Devata was quoted in an October 20 story from SHRM, &quot;Employers Should Share All Background Check Reports Before Revoking Job Offers.&quot; on how a federal judge ruled an employer did not comply with requirements of the Fair Credit Reporting Act (FCRA) when it failed to send a rejected candidate a final background check report and required notices. Devata said that the court&#39;s ruling does not equate to a blanket requirement that an employer provide all copies of background reports to rejected job applicants or terminated employees. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/applicants-background-checks-fcra-adverse-action.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/hoffmanbloomberg102017 Valerie Hoffman quoted in Bloomberg http://www.seyfarth.com:80/news/hoffmanbloomberg102017 Fri, 20 Oct 2017 00:00:00 -0500 <p> Valerie Hoffman was quoted in an October 20 story from Bloomberg, &quot;Weinstein Saga Has Business Leaders Calling Their Lawyers,&quot; on how the Weinstein case is a prime example of how corporate culture can keep bad behavior, especially by big names, under the radar. Hoffman said that most boards take very seriously their role as stewards of the organization and the need for them to have an independent view of issues that arise in the course of the business. You can read the <a href="https://biglawbusiness.com/weinstein-saga-has-business-leaders-calling-their-lawyers/">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanlaw360102017 Jerry Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360102017 Fri, 20 Oct 2017 00:00:00 -0500 <p> Jerry Maatman was quoted in an October 20 story from Law360, &quot;EEOC&#39;s Year-End Surge Shows Focus On Disability Cases,&quot; on the firm&#39;s report which found that the discrimination watchdog filed more cases from July through September this year than it filed in all fiscal 2016. Maatman said that that&rsquo;s a manifestation about how things work with litigation decisions being made in the field.</p> http://www.seyfarth.com:80/news/weisswc102017 Philippe Weiss quoted in WorkersCompensation.com http://www.seyfarth.com:80/news/weisswc102017 Fri, 20 Oct 2017 00:00:00 -0500 <p> Philippe Weiss was quoted in an October 20 story from WorkersCompensation.com, &quot;Workers&#39; Comp and Halloween: It Might Be a Scary Time for Employers.&quot; Weiss cautions employers that even innocent pranks could result in scary workers&#39; compensation claims, if not employee and client backlash.</p> http://www.seyfarth.com:80/publications/TS102017 Webinar Recap! Protecting Trade Secrets in the Social Media Age http://www.seyfarth.com:80/publications/TS102017 Fri, 20 Oct 2017 00:00:00 -0500 <p> In Seyfarth&rsquo;s final webinar in its series of 2017 Trade Secrets Webinars, Seyfarth attorneys Justin Beyer, Dawn Mertineit, and Ryan Behndleman presented Protecting Trade Secrets in the Social Media Age. The panel focused on how to define and protect trade secrets on social media.<br /> <br /> <a href="https://www.tradesecretslaw.com/2017/10/articles/social-media-2/webinar-recap-protecting-trade-secrets-in-the-social-media-age/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH102017 Sixth Circuit Cries Foul on Post-Termination Repayment of Recoverable Draw http://www.seyfarth.com:80/publications/WH102017 Fri, 20 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: A common feature of many a commission plan is the recoverable draw that is offset against future commissions. The DOL has long held this is a permissible way to satisfy the minimum wage requirement. In a recent decision, the Sixth Circuit agreed, up to a point&mdash;the point of termination. It concluded that requiring employees to repay the draw post-termination ran afoul of the FLSA&rsquo;s requirement that the minimum wage be paid &ldquo;free and clear&rdquo; because the practice is akin to an unlawful kickback of paid wages. The Sixth Circuit punted the case back to the district court even though the employer had never actually enforced the repayment policy. The remanded case also includes Plaintiffs&rsquo; claims that they were pressured to work off the clock in order to lower the weekly draw payments.<br /> <br /> <a href="http://www.wagehourlitigation.com/defenses/sixth-circuit-on-post-termination-recoverable-draw/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/PEG102017 "Naming and Shaming” Bill is Dead: California Governor Rejects Gender Pay Posting Requirement http://www.seyfarth.com:80/publications/PEG102017 Fri, 20 Oct 2017 00:00:00 -0500 <p> <em style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"><strong>Seyfarth Synopsis:</strong></em><span style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">&nbsp;</span><em style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">California&rsquo;s governor recently vetoed the Gender Pay Gap Transparency Act (AB 1209), which would have required California employers to produce pay data, without consideration of legitimate reasons for differences in pay, to the Secretary of State, who then would have publicly published the data on the internet.<em>&nbsp;</em></em></p> <p> <em style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"><strong>To view the full post,&nbsp;<a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102017-LE.pdf" style="text-decoration-line: none; color: rgb(0, 164, 228); cursor: pointer;">click here.</a></strong></em></p> http://www.seyfarth.com:80/publications/MA102017-LE If Pain, Yes Gain—Part XXXVII: NYC Set to Expand Earned Sick Time Act http://www.seyfarth.com:80/publications/MA102017-LE Fri, 20 Oct 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> On October 17, 2017, the New York City Council passed an amendment to the city&rsquo;s Earned Sick Time Act that, if signed by Mayor Bill de Blasio as expected, would allow eligible employees to use paid sick time for &ldquo;Safe Time&rdquo; reasons related to family offense matters, sexual offenses, stalking, or human trafficking, as well as expand the Act&rsquo;s definition of covered &ldquo;family member.&rdquo;</em></p> <p> Earlier this week, the New York City Council passed an amendment (Int. No. 1313-A) to the city&rsquo;s Earned Sick Time Act (&ldquo;ESTA&rdquo;) that would align ESTA with many of the country&rsquo;s other existing state and local paid sick leave laws by allowing eligible employees to use paid sick time for &ldquo;safe time&rdquo; reasons.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; In particular, eligible employees would be entitled to use paid sick time for absences related to their own or a covered family member&rsquo;s status as a victim of a family offense matter, sexual offense, stalking, or human trafficking. New York City Mayor Bill de Blasio is expected to sign the amendment in the coming days.</p> <p> ESTA has been in effect since April 2014. Over the last three and half years, New York City employers have dealt with a number of substantive updates to the Act, whether through amended paid sick leave rules, FAQs or other administrative guidance.&nbsp; Despite these multiple and seemingly regular updates to employers&rsquo; ESTA obligations, the current ESTA amendment would impose an additional array of substantive burdens on employers.&nbsp; The amendment will become effective 180 days after it is signed into law.</p> <p> As a reminder, ESTA allows eligible employees to accrue one hour of paid sick leave for every 30 hours that they work, up to 40 hours of paid sick leave per year. Under an accrual system, up to 40 hours of accrued, unused paid sick leave carries over at year-end. However, regardless of carryover balances, employers are only required to allow employees to use a maximum of 40 hours of paid sick time in a given year. For more information on ESTA, please see our earlier posts <a href="http://www.seyfarth.com/publications/MA022316-LE">here</a>, <a href="http://www.seyfarth.com/publications/OMM011216-LE">here</a>, <a href="http://www.seyfarth.com/publications/OMM011215-LE">here </a>and <a href="http://www.seyfarth.com/publications/MA0303LE">here</a>.</p> <p> Here are the highlights of the impending ESTA amendment:</p> <p> <strong>&ldquo;Safe Time&rdquo;</strong></p> <p> As stated above, the most notable amendment to ESTA is the introduction of &ldquo;safe time.&rdquo; In fact, assuming the amendment goes into effect as expected, the title of New York City&rsquo;s paid sick leave ordinance will change to the &ldquo;Earned Safe and Sick Time Act&rdquo; or &ldquo;ESSTA.&rdquo;</p> <p> The amendment would allow ESTA paid time to be used for the following &ldquo;safe time&rdquo; reasons for employees or their covered family members (see below for updates on ESTA&rsquo;s definition of covered &ldquo;family member&rdquo;) who are victims of a family offense matter, sexual offense, stalking, or human trafficking:</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 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;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 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;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 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;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to file a complaint or domestic incident report with law enforcement;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to meet with a district attorney&rsquo;s office;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to enroll children in a new school; or</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 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.</p> <p> The amendment includes several new definitions related to &ldquo;safe time,&rdquo; including definitions of &ldquo;family offense matter,&rdquo; &ldquo;human trafficking,&rdquo; &ldquo;sexual offense,&rdquo; and &ldquo;stalking.&rdquo;&nbsp; The &ldquo;family offense matter&rdquo; definition is considerably broad and covers a wealth of acts or threats that may constitute any one of the following &ldquo;between spouses or former spouses, [ ] parent and child or [ ] members of the same family or household&rdquo;<a href="#_ftn2" name="_ftnref2" title="">[2]</a>:</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; disorderly conduct;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; harassment in the first or second degree, or aggravated harassment in the second degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; sexual misconduct, forcible touching, or sexual abuse in the second or third degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; stalking in the first, second, third or fourth degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; criminal mischief, or menacing in the second or third degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; reckless endangerment;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; strangulation in the first or second degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; criminal obstruction of breathing or blood circulation;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; assault in the second or third degree, or an attempted assault;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; identity theft in the first, second or third degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; grand larceny in the third or fourth degree; or</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; coercion in the second degree as set forth in subdivisions 1, 2 and 3 of section 135.60 of the penal law.</p> <p> As noted above in Footnote 1, a majority of other existing paid sick leave laws also contain some form of &ldquo;safe time&rdquo; protected absences. However, the scope of &ldquo;safe time&rdquo; under the ESTA amendment is more detailed and cumbersome than the &ldquo;safe time&rdquo; provisions under most other paid sick leave laws. Accordingly, New York City employers with standalone ESTA policies or paid sick leave policies that cover ESTA and additional sick leave laws and ordinances would be wise to review their policies in the coming months to ensure compliance with ESSTA&rsquo;s new &ldquo;safe time&rdquo; component.</p> <p> <strong>Covered Family Members</strong></p> <p> Another significant development that employers must be aware of is that the ESTA amendment would expand the definition of covered &ldquo;family member&rdquo; for both sick and safe time. &nbsp;In particular, the expanded definition of &ldquo;family member&rdquo; not only includes the current list of (a) child, (b) spouse, (c) domestic partner, (d) parent, (e) sibling, (f) grandchild, (g) grandparent, and (h) the child or parent of an employee&rsquo;s spouse or domestic partner, but it also includes <strong><em>(i) any other individual related by blood to the employee, and (j) any other individual whose close association with the employee is the equivalent of a family relationship</em></strong>. The term &ldquo;equivalent of a family relationship&rdquo; is not defined by the amendment.</p> <p> This amendment is noteworthy because it goes beyond just &ldquo;safe time&rdquo; and expands the coverage for the use of sick time as well. Specifically, when eligible employees use paid sick leave under ESSTA for non-safe time reasons (i.e., the original reasons for use under ESTA, such as to care for a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care), they will now be able to use the leave to care for any blood relative and anyone who the employee claims has a close enough relationship with the employee such that they are like family.<a href="#_ftn3" name="_ftnref3" title="">[3]</a></p> <p> <strong>Reasonable Documentation</strong></p> <p> As with uses of ESTA leave for &ldquo;sick time&rdquo; reasons, the ESTA amendment would allow employers to require reasonable documentation that the use of safe time was for a permitted purpose when an employee has been absent for more than three consecutive work days.&nbsp;</p> <p> Reasonable documentation for purposes of &ldquo;safe time&rdquo; would include: (a) documentation signed by an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional service provider from whom the employee or that employee&rsquo;s family member has sought assistance related to the absence; (b) a police or court record; or (c) a notarized letter from the employee explaining the need for such time.</p> <p> Additionally, the ESTA amendment expressly prohibits employers from requiring that any such documentation specify the details of the family offense matter, sexual offense, stalking, or human trafficking.</p> <p> <strong>Notice Requirement</strong></p> <p> The City will create an updated model notice addressing &ldquo;safe time&rdquo; for employers to use in satisfying their notice obligations under ESSTA.&nbsp; Employees hired on or after the effective date of ESSTA (again, 180 days after the amendment is signed into law) must be provided a notice that, among other things, informs them of their right to &ldquo;safe time&rdquo; under ESSTA.&nbsp; Furthermore, the amendment requires employers to give existing employees an updated ESSTA notice about their right to &ldquo;safe time&rdquo; within 30 days of the amendment going into effect.</p> <p> <strong>What Should Employers Do Now?</strong></p> <p> New York City employers should track whether the ESTA amendment is formally signed into law, as expected, and once confirmed take steps to ensure that they will be able to achieve full compliance by the amendment&rsquo;s effective date, likely in mid-Spring 2018.&nbsp; These are among the specific actions to consider:</p> <ul> <li style="margin-left: 0.5in;"> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the ESTA amendment.</li> <li style="margin-left: 0.5in;"> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the ESTA amendment.</li> <li style="margin-left: 0.5in;"> Monitor the New York City Department of Consumer Affairs website for information on the amendment, including proposed and final regulations.</li> <li style="margin-left: 0.5in;"> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> There currently are eight states with paid sick leave laws that are either in effect or scheduled to go into effect in the coming months&mdash;Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, Washington and Rhode Island. There also are paid sick leave requirements for certain federal contractors and subcontractors. In addition, there are more than 30 municipalities that have passed paid sick leave ordinances, including San Francisco, Washington DC, Seattle, Philadelphia, Los Angeles, Chicago, San Diego, and Minneapolis.&nbsp; Of the 44 existing paid sick leave laws and ordinances (some cities have multiple sick leave ordinances),&nbsp;30 of them either explicitly or through a more generous state law permit employees to use paid sick leave for some form of &ldquo;safe time.&rdquo;</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The ESTA amendment also includes a definition of &ldquo;member of the same family or household.&rdquo; Notably, this term is defined to cover an extensive list of individuals, such as (i) persons related by consanguinity or affinity, (ii) persons legally married to or in a domestic partnership with one another, (iii) persons formerly married to or in a domestic partnership with one another regardless of whether they still reside in the same household, (iv) persons who have a child in common, regardless of whether such persons have been married or domestic partners or have lived together at any time, and (v) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> Several recently passed paid sick leave laws and ordinances, including the laws in Arizona, Chicago and Los Angeles, contain similar &ldquo;blood or close association&rdquo; family member definitions.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL102017 Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know http://www.seyfarth.com:80/publications/EL102017 Fri, 20 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: A recent active shooter incident at an international airport illustrates both how quickly an incident may be over, yet how ancillary impacts take much longer to resolve. While the shooter was apprehended in less than two minutes, the international airport was shut down for most of a full day, impacting over 500 employees and 10,000 customers, and 20,000 personal items were lost. The after-action report offers some lessons learned.<br /> <br /> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/airport-active-shooter-incident-what-can-happen-in-just-15-seconds-and-what-business-needs-to-know/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT101917 The Week in Weed: October 20, 2017 http://www.seyfarth.com:80/publications/TBT101917 Thu, 19 Oct 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="http://www.blunttruthlaw.com/2017/10/the-week-in-weed-october-20-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS101917 Proposal to outlaw “unrepresentative” enterprise agreements – when will an enterprise agreement be undone? http://www.seyfarth.com:80/publications/WLS101917 Thu, 19 Oct 2017 00:00:00 -0500 <p> The target of the changes seems to be enterprise agreements that are voted on by one group of employees, but have the potential also to cover a much broader group, or to cover a similar group who will be employed in a different geographic location. The Shadow Minister referred to these situations as employers &ldquo;gaming the system&rdquo;.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2017/10/proposal-to-outlaw-unrepresentative-enterprise-agreements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/rodriguezmcgurnbna101917 Leon Rodriguez and Kristin McGurn authored an article in Bloomberg BNA Health Law Reporter http://www.seyfarth.com:80/publications/rodriguezmcgurnbna101917 Thu, 19 Oct 2017 00:00:00 -0500 <p> Leon Rodriguez and Kristin McGurn authored an October 19 article in Bloomberg BNA Health Law Reporter, &quot;Immigration Enforcement Activity at Hospitals and Other Health-Care Facilities: How Much Protection Does the DHS Sensitive Locations Policy Offer?&quot; The article encourages healthcare providers to prepare for possible enforcement activity, and outlines best practices. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Rodriguez_McGurn_BNA_101917.pdf">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonbloomberg101917 Marshall Babson quoted in Bloomberg http://www.seyfarth.com:80/news/babsonbloomberg101917 Thu, 19 Oct 2017 00:00:00 -0500 <p> Marshall Babson was quoted in an October 19 story from Bloomberg, &quot;Who&#39;s the Boss? Union Organizers Target Private Equity Owners.&quot; Babson said that it&rsquo;s a calculus on both sides for pensions and private equity firms. He said that the private equity funds are not going to thumb their noses at these pension funds. However, Babson said, the high returns private equity can generate make pensions hesitant to actually cut ties. You can read the <a href="https://www.bloomberg.com/news/articles/2017-10-19/who-s-the-boss-union-organizers-target-private-equity-owners">full article here</a>.</p> http://www.seyfarth.com:80/news/hendricksonap101917 Christine Hendrickson quoted in the Associated Press http://www.seyfarth.com:80/news/hendricksonap101917 Thu, 19 Oct 2017 00:00:00 -0500 <p> Christine Hendrickson was quoted in an October 19 story from the Associated Press, &quot;California makes it illegal for employers to ask about salary history,&quot; on Assembly Bill 168 which will go into effect January 1, 2018 banning employers in California from asking applicants for their previous salaries and benefits. Hendrickson said that she would not be surprised if we see other states and cities consider it. You can read the <a href="http://www.foxla.com/news/local-news/california-makes-it-illegal-for-employers-to-ask-about-salary-history">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM101817-LE Trump’s Third Travel Ban Suspended In Part http://www.seyfarth.com:80/publications/OMM101817-LE Wed, 18 Oct 2017 00:00:00 -0500 <p class="BodySingle"> <em><strong>Seyfarth Synopsis:</strong> Federal judges in Hawaii and Maryland have issued orders blocking major portions of President Trump&rsquo;s September 24, 2017 Presidential Proclamation.</em><o:p></o:p></p> <p class="BodySingle"> The Presidential Proclamation is the third in a series of executive actions ostensibly aimed at protecting the U.S. from terrorism and other national security threats through barring or limiting U.S. travel for nationals of eight countries.&nbsp; The first such action, published on January 27, 2017, was revoked in the wake of several successful legal challenges.&nbsp; It was replaced on March 6, 2017 with a more narrowly tailored version.&nbsp; Challenges to this second version prevailed in Hawaii Federal District Court and also before the Ninth Circuit, and they are now being considered at the Supreme Court.<o:p></o:p></p> <p class="BodySingle"> On October 17, 2017, just one day before the Presidential Proclamation was set to take effect, a federal judge in Hawaii called into question the Trump administration&rsquo;s claim that it will enhance national security.&nbsp; The judge accordingly ruled that the plaintiffs&rsquo; challenge to the Proclamation will likely prevail.&nbsp; He further found that, unless enjoined, the Proclamation will cause the plaintiffs to suffer irreparable harm in the form of familial separation, loss of access to potential foreign students who would attend schools in Hawaii, and diminished vibrancy at Muslim religious associations within the state.<o:p></o:p></p> <p class="BodySingle"> In the early morning hours of October 18, 2017, a federal judge in Maryland also ruled that the plaintiffs are likely to prevail, would suffer irreparable harm, and further opined that the Proclamation amounted to an unconstitutional Muslim ban.&nbsp; The judge pointed to several of President Trump&rsquo;s disparaging campaign speeches and tweets concerning Muslim immigrants to support his conclusion. <o:p></o:p></p> <p class="BodySingle"> As a result of the rulings in Hawaii and Maryland, &nbsp;all U.S. travel restrictions imposed against nationals of Iran, Libya, Yemen, Chad, Somalia, and Syria have been lifted.&nbsp; However, as the restrictions applicable to nationals of Venezuela and North Korea were not challenged in either Hawaii or Maryland, they remain intact.<o:p></o:p></p> <p class="BodySingle"> The Trump administration has signaled that it will challenge these decisions and further developments will likely emerge rapidly.&nbsp; Individuals from restricted countries who are considering travel to or from the U.S. should exercise caution and should anticipate increased screenings, potential delays, or even refusal of admission.<o:p></o:p></p> http://www.seyfarth.com:80/publications/CDL101817 Spoliation and Southern Rock http://www.seyfarth.com:80/publications/CDL101817 Wed, 18 Oct 2017 00:00:00 -0500 <p> A trial court opinion involving allegations of spoliation of text messages on a mobile phone in the Southern District of New York has gotten attention because of the application of legal preservation standards. Ronnie Van Zant, Inc. v. Pyle 2017 BL 3018, S.D.N.Y. 17 Civ. 3360 (RWS), 8/23/17) is an interesting read, not just because it involves odd characters, intrigue and drama surrounding one of the greatest Southern Rock bands of all time. It also includes some instructive information about the application of the &ldquo;practical ability&rdquo; test for preservation, and the uphill battle for witnesses who lose credibility in testimony about what they did and did not do in a preservation effort.<br /> <br /> <a href="http://www.carpedatumlaw.com/2017/10/spoliation-southern-rock/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM101817 Trump’s Third Travel Ban Suspended In Part http://www.seyfarth.com:80/publications/IMM101817 Wed, 18 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Federal judges in Hawaii and Maryland have issued orders blocking major portions of President Trump&rsquo;s September 24, 2017 Presidential Proclamation.<br /> <br /> <a href="http://www.bigimmigrationlawblog.com/2017/10/trumps-third-travel-ban-suspended-in-part/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CDL101817aa Richard Lutkus to Participate in Panel on “Cloud Data Collection, Processing, and Hosting” at RelativityFest http://www.seyfarth.com:80/publications/CDL101817aa Wed, 18 Oct 2017 00:00:00 -0500 <p> Seyfarth eDiscovery Partner Richard Lutkus, along with William Lederer from Relativity and Patrick Zeller of Gilead Sciences, Inc., will host a panel discussion titled &ldquo;Brave New Words: Cloud Data Collection, Processing, and Hosting&rdquo; at this year&rsquo;s RelativityFest on October 24, 2017.<br /> <br /> <a href="https://www.carpedatumlaw.com/2017/10/richard-lutkus-participate-panel-cloud-data-collection-processing-hosting-relativityfest/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CDL101817aaa Jason Priebe and Natalya Northrip to Present on “EU Data Protection and Cross-Border Discovery” at RelativityFest http://www.seyfarth.com:80/publications/CDL101817aaa Wed, 18 Oct 2017 00:00:00 -0500 <p> Seyfarth eDiscovery attorneys Jason Priebe and Natalya Northrip will present &ldquo;A Practical Roadmap for EU Data Protection and Cross-Border Discovery&rdquo; at this year&rsquo;s RelativityFest on October 24, 2017.<br /> <br /> <a href="https://www.carpedatumlaw.com/2017/10/jason-priebe-natalya-northrip-present-eu-data-protection-cross-border-discovery-relativityfest/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA101717 Telephone Access Might Be Valid Alternative to Accessible Website, But Court Needs More http://www.seyfarth.com:80/publications/ADA101717 Tue, 17 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In denying Dave &amp; Buster&rsquo;s motion to dismiss and for summary judgment, a federal judge said that telephonic access might be an alternative to having an accessible website, but cannot decide until the record is much more developed.<br /> <br /> <a href="https://www.adatitleiii.com/2017/10/telephone-access-might-be-valid-alternative-to-accessible-website-but-court-needs-more/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL101717 Sixth Circuit Court Agrees with Home Healthcare Employer’s Termination of Nurse http://www.seyfarth.com:80/publications/EL101717 Tue, 17 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In this case a home-care nurse complained about the quality of care her patient received from the patient&rsquo;s family members. Subsequent review and inspections by the company found some &ldquo;serious problems&rdquo; with the employee&rsquo;s care-giving &mdash; and ultimately led to her termination. The Sixth Circuit Court agreed with the employer&rsquo;s analysis. Blair v. Maxim Healthcare Services, Inc., No. 17-5025 (6th Cir. Oct. 6, 2017).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2017/10/sixth-circuit-court-agrees-with-home-healthcare-employers-termination-of-nurse/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA101717-LE Workers’ Compensation Ruling Given Preclusive Effect In Discrimination Lawsuit http://www.seyfarth.com:80/publications/MA101717-LE Tue, 17 Oct 2017 00:00:00 -0500 <p class="BodySingle"> <b><i>Seyfarth Synopsis</i></b>: <i>In</i> <i>Ly v. County of Fresno,</i> <i>the Court of Appeal held that correctional officers&rsquo; claims for race, ethnicity, and national origin discrimination were barred because the claims had been previously denied in workers&#39; compensation proceedings.</i></p> <p class="BodySingle"> <b>The Facts</b><o:p></o:p></p> <p class="BodySingle"> Three Laotian correctional officers&mdash;Va Ly, Travis Herr, and Pao Yang&mdash;alleged racial and national origin discrimination, harassment, and retaliation by their employer, the County of Fresno.&nbsp; <o:p></o:p></p> <p class="BodySingle"> The officers sued the County under the Fair Employment and Housing Act (FEHA) while also pursuing workers&rsquo; compensation remedies through the Workers&rsquo; Compensation Appeals Board (WCAB). In the WCAB proceedings, administrative law judges denied the officers&rsquo; claims upon finding that the County&rsquo;s actions were non-discriminatory, good faith, personnel decisions. Then, in the FEHA action, the County moved for summary judgment, arguing that the WCAB rulings were binding. <o:p></o:p></p> <p class="BodySingle"> The trial court granted summary judgment, ruling that the FEHA claims were barred. The officers 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"> A result in one case can be binding in another, under the doctrine of res judicata (claim preclusion). The doctrine applies if (1) a decision in a former proceeding is final and on the merits, (2) the present proceeding is based on the same cause of action as the former proceeding, and, (3) the parties in both the former and present proceeding are the same. To see if the same cause of action is involved in both cases, courts look to the primary right theory: violation of a right to be free from a particular injury gives rise to a single cause of action.<o:p></o:p></p> <p class="BodySingle"> Here, the Court of Appeal first considered whether both cases (the WCAB proceeding and the FEHA lawsuit) implicated the same primary right: The workers&rsquo; compensation cases sought redress for employment actions allegedly caused by unlawful discrimination, harassment, and retaliation, while the FEHA case alleged the same injuries&mdash;psychiatric injuries caused by discriminatory, harassing, and retaliatory workplace acts. Because the effect of the employment actions on the officers&rsquo; mental states was at the heart of both cases, the harm suffered was identical and, therefore, the same primary right was implicated.<o:p></o:p></p> <p class="BodySingle"> Next, the Court of Appeal considered whether the primary rights in the two proceedings differed on the ground that the primary right in the WCAB was compensation for work-related injuries regardless of fault, while the primary right in the FEHA action was to be free of employment discrimination. The Court of Appeal held that in both proceedings the officers sought to vindicate one primary right: the right to work in an environment free of discrimination, harassment, and retaliation. <o:p></o:p></p> <p class="BodySingle"> The Court of Appeal concluded by noting that the differing burdens of proof required in the WCAB and under FEHA are immaterial, because the County actually disproved unlawful discrimination in the WCAB proceedings. <o:p></o:p></p> <p class="BodySingle"> <b>What <i>Ly</i> Means for Employers<o:p></o:p></b></p> <p class="BodySingle"> Employers should know that when two tribunals have jurisdiction over the same claims, and neither party objects to jurisdiction, then the first final judgment from one tribunals can bind the parties in the second tribunal. This prospect should affect how employers choose to adjudicate the two matters.<o:p></o:p></p> http://www.seyfarth.com:80/news/dulik101717 Seyfarth Adds Construction Litigator Gregg Dulik in San Francisco http://www.seyfarth.com:80/news/dulik101717 Tue, 17 Oct 2017 00:00:00 -0500 <p> SAN FRANCISCO (October 17, 2017) -- Seyfarth Shaw LLP announced today that Gregg Dulik has joined the firm&rsquo;s Litigation department and Construction practice group as a partner in San Francisco. Dulik comes from Sedgwick LLP, where he served as a partner in its Construction practice group in San Francisco.</p> <p> For 30 years, Dulik&rsquo;s practice has focused on construction law. He has successfully litigated complex matters facing owners, contractors and designers in all aspects of the public and private construction process. He has unparalleled experience handling bid protests, addressing licensing issues, and drafting and negotiating construction and design contract documents.</p> <p> &ldquo;Gregg is a talented multi-faceted construction lawyer and very skilled litigator, having achieved tremendous results for his clients in numerous jury trials, arbitrations and mediations,&rdquo; said Kate Perrelli, chair of Seyfarth&rsquo;s Litigation department. &ldquo;We are thrilled to welcome Gregg as we continue to expand our Construction practice nationally.&rdquo;</p> <p> Dulik has handled litigation on a wide range of construction projects, including commercial buildings, multi-unit housing developments, power plants, hospitals, hotels, schools, parking structures, military installations, sports stadiums, jails, corporate campuses, bridges, highways, tunnels, high-end private residences, and manufacturing and processing facilities. Dulik began his career at preeminent construction law firm Thelen LLP, where he practiced for over 20 years.</p> <p> &ldquo;Gregg is an outstanding lawyer who is well-known to the construction industry on the West Coast,&rdquo; said Christian Rowley, managing partner of Seyfarth&rsquo;s San Francisco office. &ldquo;He adds great depth to our Construction practice in San Francisco, and we&rsquo;re excited to see his practice thrive on the firm&rsquo;s national platform.&rdquo;</p> <p> A frequent writer and speaker on construction topics, Dulik received his J.D. from Boston University Law School and earned a B.A., with honors, from the University of California, Berkeley. He is a member of the Legal Advisory Committee of the Associated General Contractors of California.</p> <p> With more than 30 attorneys, Seyfarth&rsquo;s Construction practice group is one of the largest and most experienced in the United States. The team represents clients&mdash;developers, contractors, owners, architects, engineers, subcontractors and lenders&mdash;in all phases of construction projects, from inception to completion, domestically and abroad. The collaborative group includes LEED certified professionals, licensed architects and engineers, as well as attorneys adept at BIM tools and public contracting.</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> <strong>Contacts: </strong></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/bartlettyoungdr101717 Brett Bartlett and Kevin Young quoted in the Daily Report http://www.seyfarth.com:80/news/bartlettyoungdr101717 Tue, 17 Oct 2017 00:00:00 -0500 <p> Brett Bartlett and Kevin Young were quoted in an October 17 story from the Daily Report, &quot;GSU Law Starts Big Data Lab as Industry Girds for Disruption,&quot; on how the lab is already attracting interest from Seyfarth. Bartlett sees mining the lab&rsquo;s database of federal employment cases for predictive patterns as a high-tech way to help clients mitigate risk. Young said the list of what the firm might dig into is endless, adding that the data could help the firm advise clients on litigation tactics.</p> http://www.seyfarth.com:80/publications/TS101617 Supreme Court Refuses to Hear Password-Sharing Case, Leaving Scope of Criminal Liability Under Computer Fraud and Abuse Act Unclear http://www.seyfarth.com:80/publications/TS101617 Mon, 16 Oct 2017 00:00:00 -0500 <p> On Tuesday, October 10, 2017, the United States Supreme Court denied certiorari in Nosal v. United States, 16-1344. Nosal asked the Court to determine whether a person violates the Computer Fraud and Abuse Act&rsquo;s prohibition of accessing a computer &ldquo;without authorization&rdquo; when using someone else&rsquo;s credentials (with that other user&rsquo;s permission) after the owner of the computer expressly revoked the first person&rsquo;s own access rights. In denying certiorari, the Court effectively killed the petitioner&rsquo;s legal challenge to his conviction in a long-running case that we have extensively covered here, here, here, here, here, here, and here (among other places). The denial of certiorari leaves further development of the scope of the CFAA in the hands of the lower courts.<br /> <br /> <a href="http://www.tradesecretslaw.com/2017/10/articles/computer-fraud-and-abuse-act/supreme-court-refuses-to-hear-password-sharing-case-leaving-scope-of-criminal-liability-under-computer-fraud-and-abuse-act-unclear/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM101617-LE Third Time’s The Charm For California Salary History Ban Legislation http://www.seyfarth.com:80/publications/OMM101617-LE Mon, 16 Oct 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em>&nbsp; After <a href="http://www.calpeculiarities.com/2017/04/18/2017-california-labor-and-employment-legislative-update-what-to-watch/" rel="noopener noreferrer" target="_blank">two previous failed attempts</a>, California joins seven other U.S. jurisdictions to prohibit inquiries into an applicant&rsquo;s salary history.&nbsp; Read on for a recap of the new law.</em></p> <p> With Governor Jerry Brown signing <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB168" rel="noopener noreferrer" target="_blank">AB 168</a> into law today, California joins <a href="http://www.seyfarth.com/publications/OMM062317-LE" rel="noopener noreferrer" target="_blank">Delaware</a>, Puerto Rico, <a href="http://www.seyfarth.com/publications/OMM060817-LE2" rel="noopener noreferrer" target="_blank">Oregon</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2" rel="noopener noreferrer" target="_blank">Massachusetts</a>, <a href="http://www.seyfarth.com/publications/OMM040617-LE2" rel="noopener noreferrer" target="_blank">New York City</a>, <a href="http://www.seyfarth.com/publications/OMM062317-LE" rel="noopener noreferrer" target="_blank">Philadelphia (currently pending legal challenge)</a>, and its own city of <a href="http://www.seyfarth.com/publications/OMM071317-LE" rel="noopener noreferrer" target="_blank">San Francisco</a> in prohibiting employers from asking job applicants for &ldquo;salary history information.&rdquo; This term includes both compensation and benefits.</p> <p> AB 168 will add section 432.3 to the California Labor Code. While 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, Section 432.3 will give employers a pass when an applicant, &ldquo;voluntarily and without prompting,&rdquo; discloses salary history information. In that case, Section 432.3 will not prohibit the employer from relying upon the volunteered information in setting the applicant&rsquo;s starting salary. But note that the California Fair Pay Act (Lab. Code &sect; 1197.5(a)(2)) forbids employers to rely on prior salary, by itself, to justify any disparity in pay.</p> <p> Section 432.3 will also make California the first jurisdiction in the country to require that employers provide applicants with the pay scale for a position, upon &ldquo;reasonable request.&rdquo;</p> <p> Section 432.3 will apply to &ldquo;all employers&rdquo;&mdash;both private and public&mdash;and will become effective January 1, 2018.</p> http://www.seyfarth.com:80/publications/CP101617 2017 Labor & Employment Legislative Update: It’s Finally Over! (For Now…) http://www.seyfarth.com:80/publications/CP101617 Mon, 16 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: New statutory obligations for California employers in 2018 will include prohibitions on inquiries into applicants&rsquo; salary and conviction histories, expanding CFRA to employees of smaller employers, expansion of mandatory harassment training to include content on gender identity, gender expression, and sexual orientation, and new immigration-related restrictions and obligations.<br /> <br /> <a href="http://www.calpeculiarities.com/2017/10/16/2017-labor-employment-legislative-update-its-finally-over-for-now/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP101617aa California Passes State-Wide Ban-the-Box Law http://www.seyfarth.com:80/publications/CP101617aa Mon, 16 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The California Legislature has just created yet another protected class of individuals entitled to sue employers under the Fair Employment and Housing Act. The new class of potential plaintiffs are applicants denied employment because of their conviction history, where the employer is unable to justify relying on that conviction history to deny employment.<br /> <br /> <a href="https://www.calpeculiarities.com/2017/10/16/california-passes-state-wide-ban-the-box-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/HCRMA-101317 Issue 113: Are Reports of ObamaCare's Death Greatly Exaggerated? http://www.seyfarth.com:80/publications/HCRMA-101317 Fri, 13 Oct 2017 00:00:00 -0500 <div> <div> <em>This is the one hundred and thirteenth issue in our series of alerts for employers on selected topics on health care reform. (<a href="http://www.seyfarth.com/publications/A-Summary-of-Health-Reform">Click here</a> to access our general Summary of Health Care Reform and other issues in this series.) This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> The Republicans made a last ditch effort to repeal the Affordable Care Act (ACA) the last week of September when they floated the latest iteration of proposed legislation under the Graham-Cassidy bill. Sens. Lindsey Graham (SC) and Bill Cassidy (LA) introduced a bill that would have altered federal funding by eliminating the ACA&rsquo;s subsidized insurance coverage and Medicaid expansion, and instead give states fewer funds in the form of block grants. However, the September 30th deadline to pass legislation with a simple majority came and went without the bill being called for a vote after too many Republican senators came out against it.&nbsp;</div> <div> &nbsp;</div> <div> That left many wondering if the health care reform efforts were dead with the attention of Congress turning to the long-promised tax reform. However, the Trump administration has been fairly active in doing what it can to cut back on the ACA, with rule changes and executive orders that change the ACA landscape.&nbsp;</div> <div> &nbsp;</div> <h2> Contraceptive Mandate</h2> <div> &nbsp;</div> <div> The ACA mandates that health plans cover contraceptive care at 100% as a preventive service. Religious employers, non-profits with religious affiliations and certain closely-held corporations with sincerely held religious beliefs can opt-out of the coverage mandate. Click here to see our Alert on this topic. However, up until now, most for profit employers had to comply.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> On October 6th, the Departments of Health and Human Services, Treasury, and Labor issued interim final rules that significantly broaden the scope of employers who can claim an exemption to the contraceptive mandate. Interestingly, the agencies skipped over the step of providing &ldquo;proposed&rdquo; rules, which would be subject to public comment, and went right to issuing interim final rules. (The government equivalent to the breach of etiquette created by skipping the triple dare and going right to the triple-dog dare.)&nbsp;</div> <div> &nbsp;</div> <div> The interim final rules now expand the types of employers who can claim an exemption from the contraceptive mandate to include other non-profits as well as for profit companies, including publicly-traded companies and institutions of higher learning who have either sincerely-held religious beliefs or a moral conviction (not based in any particular religious belief).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The agencies noted that other preventive services are not impacted by the new rules, and emphasized their belief that only 200 entities (who filed lawsuits challenging the contraceptive mandate) will be impacted. Therefore, they conclude that 99.9% of women will not lose their contraceptive coverage as a result of the new rules.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Almost immediately several lawsuits were filed challenging the new rules and alleging violations of the First Amendment by favoring certain religious views, discrimination against women, and issuance without following proper government procedures.&nbsp;</div> <div> &nbsp;</div> <h2> Health Insurance Rules&nbsp;</h2> <div> &nbsp;</div> <div> On October 12, 2017, President Trump signed an Executive Order directing regulatory agencies to rewrite rules in several areas of health care previously regulated by the ACA. The nature and scope of these intended changes will not be clear until the agencies issue such guidance (which is expected within 60&ndash;120 days), but they appear to direct the agencies to create greater flexibility primarily in the individual and small group insurance market. Specifically the Executive Order addresses three areas:</div> <div> &nbsp;</div> <h3> Association Health Plans&nbsp;&nbsp;</h3> <div> &nbsp;</div> <div> <em><strong>Background:</strong></em> Many of the ACA&rsquo;s reforms only impacted insured policies in the individual and small group markets (typically, the small group market includes employers with under 50 employees). These regulations, including community rating standards (requiring healthier populations to pay more to subsidize sicker populations), and the essential health benefits mandate (requiring all policies to cover certain core benefits) drove up the cost of insurance in what was previously an under-regulated market in many states. It also created a disconnect between small group policies, on one hand, and large group policies and self-funded plans, on the other, that were exempt from these standards and had more flexibility in plan design.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> <em><strong>Executive Order Response:</strong></em> The Executive Order directs the regulatory agencies to interpret ERISA more broadly to permit individuals and small employers to band together to form Association Health Plans (AHPs). While the executive order contained few details, we presume that regulatory guidance will address a few key elements:</div> <div> &nbsp;</div> <ul> <li> Current federal guidelines impose restrictions and reporting obligations on risk-pooling for unrelated employers and individuals (Multiple Employer Welfare Arrangements, or &ldquo;MEWAs&rdquo;). Notably, ERISA does not exempt MEWAs from state insurance regulations and many states prohibit MEWAs or more heavily regulate their activity. Presumably, regulatory guidance will create an opportunity for employers or individuals in a bona fide association to pool their risk in an insured (and potentially self-funded) arrangement while maintaining preemption from state insurance regulation.&nbsp; &nbsp;&nbsp;</li> <li> It also appears the order would exempt these AHPs from insurance mandates that otherwise apply in the small group market, including the community rating and essential health benefit mandates.&nbsp;&nbsp;</li> <li> Finally, the Executive Order suggests the agencies will permit employers to &ldquo;join together across State lines to offer coverage.&rdquo; It&rsquo;s unclear whether this directive is intended to simply permit unrelated employers in multiple different states to form a self-insured collective risk pool or to actually influence state insurance regulations that typically attach on a state-by-state basis.&nbsp; &nbsp;</li> </ul> <div> &nbsp;</div> <h3> Short-Term Limited Duration Health Insurance</h3> <div> &nbsp;</div> <div> <em><strong>Background:</strong></em> ACA regulations had significantly limited the exemption allowing short-term, limited-duration health plans to avoid many ACA mandates (e.g., prohibition on dollar limits and preventive services mandate). The exemption was intended to provide greater flexibility for these types of policies, which generally served to bridge gaps between health insurance enrollments, such as when transitioning from one job to another. But regulators had become concerned that these policies were being marketed and used as long-term health insurance solutions (only without the otherwise applicable ACA protections). See Issue 100 in our alert series for more information on ACA rules relating to these benefits.&nbsp;</div> <div> &nbsp;</div> <div> <em><strong>Executive Order Response:</strong></em> The Executive Order directs agencies to consider expanding coverage under these short-term insurance policies. It&rsquo;s unclear exactly how the agencies would interpret this directive, but one possibility is that the agencies could revert to pre-ACA guidelines (permitting enrollment in these policies for up to 12 months and renewal under certain circumstances).</div> <div> &nbsp;</div> <h3> Expanded Use of Health Reimbursement Accounts</h3> <div> &nbsp;</div> <div> <em><strong>Background:</strong></em> In 2013, the regulatory agencies issued guidance essentially prohibiting employers from reimbursing employees (on a pre-tax basis or otherwise) for individual insurance policies. As we described in Issue 73, the agencies viewed these stand-alone health reimbursement arrangements (HRAs) as health plans that contain prohibited annual dollar limits (i.e., the HRA balance). As we described in Issue 103, Congress later created a limited exemption permitting use of stand-alone HRAs, but only for small employers that met certain strict requirements.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <em><strong>Executive Order Response:</strong></em> The Executive Order directs the agencies to consider changes to HRAs so employers can make better use of them for their employees. Presumably, the Administration intends to direct agencies to broaden the already applicable small employer exemption to apply to larger employers and to ease existing limits on the amount that can be reimbursed through HRAs (currently, $4,950 for self-only coverage or $10,000 for family coverage). Depending on the scope of these new guidelines, this could potentially create an opportunity for employers to offer so-called &ldquo;defined contribution health plans&rdquo; in which the employer provides employees with a set amount of money to be used to buy an individual insurance policy (where the employer carries&nbsp;</div> <div> no risk).</div> <div> &nbsp;</div> <div> The breadth of this Executive Order leaves many unanswered questions including how far the agencies will attempt to go with these regulations and whether the Executive Order is within the scope of the Administration&rsquo;s executive authority. Further, this proposal has already created concern among insurance carriers and state insurance commissioners that it has the potential to dilute/sicken the insurance market risk pool and raise costs for the federal government (which subsidizes the state Marketplaces). Specifically, the AHP and short-term, limited duration guidelines could serve to lure healthier populations (with less upside risk) out of the insurance market. Further, the HRA guidelines could encourage employers with sick populations to shift those groups to the individual insurance market while limiting the employer&rsquo;s risk to a defined pot of money.</div> <div> &nbsp;</div> <h2> Cost-Sharing Subsidies</h2> <div> &nbsp;</div> <div> Taking further action to fulfill his promise to let ObamaCare fail, late on October 12th, President Trump finally acted on his long-standing threat to cease funding the cost-sharing subsidies on the public Marketplaces. While the ACA had directed these payments, it relied on Congress to appropriate the monies. When Democrats lost control of Congress during the Obama Administration, the Republican led Congress declined to allocate the funding, leaving the Obama Administration to do so through executive action. It was unclear whether the Obama Administration had the authority to do so, which was the stated basis for the Trump Administration cutting off these funds (i.e., it is the responsibility of Congress, not the President, to allocate these monies).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This action was taken in the face of both parties in Congress urging the administration to continue the payments to stabilize the markets in the near term. Insurance providers on the Marketplaces were already skittish about the continuation of the payments, which help cover the cost of those lower-income enrollees facing more costly health conditions. This was seen as a large reason for the rate hikes announced for 2018. The latest action could cause more insurers to pull out of the Marketplaces all together. Further, it&rsquo;s expected that some carriers will sue the Administration for the funding, which was promised (but not funded) by the ACA. More than half of the enrollees on the Marketplaces qualified for the cost-sharing payments this year, which are expected to cost about $7 billion. Further, earlier Congressional Budget Office scoring indicated it will actually cost the government significant amounts to cut the funding, because it will cause carriers to increase premiums significantly (which are subsidized by the government and for which funding has been allocated).&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> This latest Administration action could accelerate bipartisan discussions to allocate funding, although it comes during a busy time when Congress is attempting to move forward tax reform (with budget and debt ceilings fights looming in December).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> We will continue to monitor these developments and Congressional action (if any) and keep you apprised of any further movement.&nbsp;</div> <div> &nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WC101317 Ongoing Debate Over Scope Of Workplace Bias Law http://www.seyfarth.com:80/publications/WC101317 Fri, 13 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: On October 5, 2017, U.S. Attorney General Jeff Sessions issued an agency memorandum stating that the language contained in Title VII of the Civil Rights Act of 1964, &ldquo;does not prohibit discrimination based on gender identity per se, including transgender status.&rdquo; It represented a head-snapping pivot of the position of the U.S. Department of Justice. In this video, Jerry Maatman of Seyfarth Shaw, LLP gives blog readers an overview of the recent history regarding legal interpretation of Title VII. Jerry discusses potentially conflicting statutes and court rulings, as well as the ways in which this Department of Justice memorandum could affect businesses and those who litigate under Title VII.<br /> <br /> <a href="http://www.workplaceclassaction.com/2017/10/ongoing-debate-over-scope-of-workplace-bias-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/schwartzfenwickworkforce101317 Sam Schwartz-Fenwick quoted in Workforce http://www.seyfarth.com:80/news/schwartzfenwickworkforce101317 Fri, 13 Oct 2017 00:00:00 -0500 <p> Sam Schwartz-Fenwick was quoted in an October 13 story from Workforce, &quot;Jeff Sessions Reverses Civil Rights Law&rsquo;s Transgender Protection,&quot; on the Attorney General declaring that the federal civil rights law does not protect transgender people from workplace discrimination. Schwartz-Fenwick said that whenever the federal government reverses a stance it makes it challenging for the employers and the employer community to know what the law requires. You can read the <a href="http://www.workforce.com/2017/10/13/jeff-sessions-reverses-civil-rights-laws-transgender-protection/">full article here</a>.</p> http://www.seyfarth.com:80/news/meierlaw360101317 Steve Meier quoted in Law360 http://www.seyfarth.com:80/news/meierlaw360101317 Fri, 13 Oct 2017 00:00:00 -0500 <p> Steve Meier was quoted in an October 13 story from Law360, &quot;IRS To Take Deeper Look At Tax-Free Distributions,&quot; on the Internal Revenue Service announcing it will increase its scrutiny of certain stock distributions, mergers and liquidations and has begun reconsidering related issues that the agency has ruled favorably on in the past. Meier said that the announcement seems consistent with the pilot program the agency launched in September under which taxpayers can request letter rulings that interpret and apply tax laws to their specific set of facts regarding Section 355 distributions.</p> http://www.seyfarth.com:80/news/hendricksonlaw360101317 Christine Hendrickson quoted in Law360 http://www.seyfarth.com:80/news/hendricksonlaw360101317 Fri, 13 Oct 2017 00:00:00 -0500 <p> Christine Hendrickson was quoted in an October 13 story from Law360, &quot;4 Things For Employers To Know As Pay Inquiry Bans Crop Up.&quot; Hendrickson said that employers may not notice that these questions are included in their phone screen scripts, or may turn up applicants&rsquo; pay histories during background checks.</p> http://www.seyfarth.com:80/news/egandj101317 Chantelle Egan quoted in the Daily Journal http://www.seyfarth.com:80/news/egandj101317 Fri, 13 Oct 2017 00:00:00 -0500 <p> Chantelle Egan was quoted in an October 13 story from the Daily Journal, &quot;Governor signs bill barring questions about job applicants&#39; past salary.&quot; Egan said that different versions of the law have been tried in states including Massachusetts, as well as in cities such as New York.</p> http://www.seyfarth.com:80/news/grossenbacherccr101217 Karla Grossenbacher quoted in the Cook County Record http://www.seyfarth.com:80/news/grossenbacherccr101217 Thu, 12 Oct 2017 00:00:00 -0500 <p> Karla Grossenbacher was quoted in an October 12 story from the Cook County Record, &quot;Spike in IL lawsuits vs employers over fingerprints, other biometric data may be just the beginning.&quot; Grossenbacher said that businesses should look for more and more of these lawsuits in coming days thanks to a unique facet of Illinois&#39; law. She said one reason that there has been a recent rise in the number of lawsuits regarding the collection of physiological data is because the practice has become more commonly used by businesses today. You can read the <a href="https://cookcountyrecord.com/stories/511242064-spike-in-il-lawsuits-vs-employers-over-fingerprints-other-biometric-data-may-be-just-the-beginning">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP101217 Third Time’s The Charm For California Salary History Ban Legislation http://www.seyfarth.com:80/publications/CP101217 Thu, 12 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: After two previous failed attempts, California joins seven other U.S. jurisdictions to prohibit inquiries into an applicant&rsquo;s salary history. Read on for a recap of the new law.<br /> <br /> <a href="http://www.calpeculiarities.com/2017/10/12/third-times-the-charm-for-california-salary-history-ban-legislation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL101217a UPDATE: New York City Commission on Human Rights Releases Additional Guidance and FAQs on the New York City Salary History Law http://www.seyfarth.com:80/publications/EL101217a Thu, 12 Oct 2017 00:00:00 -0500 <p> <strong>Seyfarth Synopsis</strong>: The New York City Commission on Human Rights (the &ldquo;Commission&rdquo;) recently issued additional guidance in the form of &ldquo;Frequently Asked Questions&rdquo; on the Salary History Law that goes into effect on October 31, 2017.&nbsp;&nbsp;</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/update-new-york-city-commission-on-human-rights-releases-additional-guidance-and-faqs-on-the-new-york-city-salary-history-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL101217 The Ongoing Battle Between LGBTQ+ Rights And Claims Of Religious Liberty http://www.seyfarth.com:80/publications/EL101217 Thu, 12 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Department of Justice has reversed the previous Administration&rsquo;s position on employment protections for transgender individuals, and issued a memorandum that will likely be relied on by private employers seeking who wish to use their religious faith to engage in otherwise prohibited discriminatory conduct.<br /> <br /> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/the-ongoing-battle-between-lgbtq-rights-and-claims-of-religious-liberty/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/eckbna101217 William Eck authored an article in Bloomberg BNA Health Care Fraud Report http://www.seyfarth.com:80/publications/eckbna101217 Thu, 12 Oct 2017 00:00:00 -0500 <p> William Eck authored an October 12 article in Bloomberg BNA Health Care Fraud Report, &quot;Escobar One Year Later: Implied Certification and Materiality Under the False Claims Act.&quot; The article reviews how Courts have elaborated and applied materiality inthe context of FCA implied certification since the Escobar decision. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Eck_BNA_101217.pdf">full aritcle here</a>.</p> http://www.seyfarth.com:80/publications/TBT101217 The Week in Weed: October 13, 2017 http://www.seyfarth.com:80/publications/TBT101217 Thu, 12 Oct 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="http://www.blunttruthlaw.com/2017/10/the-week-in-weed-october-13-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TheReaList-October2017 The ReaList - Volume 1, Edition 4 http://www.seyfarth.com:80/publications/TheReaList-October2017 Thu, 12 Oct 2017 00:00:00 -0500 <p style="margin: 0px 0px 18px; color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> <span style="font-size: 14px;">A publication of Seyfarth Shaw&#39;s New York Real Estate Practice.&nbsp;</span><span style="font-size: 14px; font-family: Arial, sans-serif;">The ReaList newsletter covers New York real estate news, events, and trends.</span></p> <div> <table border="0" cellpadding="0" cellspacing="0" style="width:600px;" width="0"> <tbody> <tr> <td style="width:458px;"> <p> <strong>Real Estate:</strong></p> <p> <strong>Construction Loan Guarantees</strong><br /> Commercial mortgage loans secured by existing income producing properties are often made on a non-recourse basis to the borrower (and its principals).&nbsp; These loans generally have the benefit of real property collateral producing sufficient cash flow to service the lender&rsquo;s debt and cover operating expenses for the property.&nbsp; Construction loans, however, present a different risk profile for the mortgage lender due to, among other things, no cash flow being generated from the property during the course of construction, the possibility of the project not being completed within budget (or at all) and the increased risk of liens for labor and materials being filed against the property.&nbsp; In addition, even after construction is completed there is often a period of time prior to stabilization when there is insufficient cash flow to pay debt service on the loan and operating expenses for the property.&nbsp;<br /> <br /> In order to minimize payment and performance risks associated with construction loans, lenders typically require guarantees from creditworthy parties.&nbsp; One such guarantee that is usually required is a completion guaranty, which guarantees the prompt and complete performance by borrower with respect to the design, construction and lien-free completion of the improvements.&nbsp; In addition, construction lenders may require other guarantees for the project, including carry guarantees covering interest and other payments to lender and the costs of operations of the property, and payment guarantees (partial or full).&nbsp; The lead <a href="http://marketing.seyfarth.com/rs/emsdocuments/Kaplan_072017%5b1%5d.pdf" target="_blank">article</a> in the July/August 2017 Edition of The Banking Law Journal which was written by Mitchell S. Kaplan discusses in greater detail the foregoing guarantees, as well as others that may be required by construction lenders.&nbsp;<br /> <br /> If you have any questions, please contact <a href="mailto:mkaplan@seyfarth.com">Mitchell S. Kaplan</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Litigation:</strong></p> <p> <strong>Owners of Development Rights May Be Able To Compel Their Sale</strong><br /> Sections 1602 and 1604 of the New York Real Property Actions and Proceedings Law (&ldquo;RPAPL&rdquo;) allow the owner of an interest -- including a future interest -- in real property that has multiple owners to force the sale of the &ldquo;real property, or a part thereof&rdquo; if such a sale would be &ldquo;expedient&rdquo; -- <em>e.g.</em>, the property does not generate enough income to cover taxes and upkeep. &nbsp;A recent decision by the New York Appellate Division, Second Department holds that &ldquo;real property, or a part thereof&rdquo; includes development rights for the property, and that an owner of development rights can therefore compel their sale over the objection of the other owners if he or she can demonstrate that the sale would be &ldquo;expedient.&rdquo;</p> <p> In <em>Hahn v. Hagar</em>, 2017 N.Y. Slip Op. 05710 (2d Dep&rsquo;t July 19, 2017), a dispute arose regarding a farm that had been in the litigants&rsquo; family for more than 240 years.&nbsp; Three family members, who had either a life estate or remainder interests in the farm property, sought to sell the development rights for the property in order to permanently restrict the use of the property to farming.&nbsp; A fourth family member, who held a remainder interest in the property, refused to agree to such a sale.&nbsp; The other three family members sued to force the sale of the property&rsquo;s development rights under the RPAPL.</p> <p> A unanimous panel of the Second Department held in <em>Hahn </em>that development rights constitute &ldquo;real property, or a part thereof&rdquo; for purposes of the RPAPL.&nbsp; The Second Department found that the definition of &ldquo;real property&rdquo; in New York&rsquo;s General Construction Law includes &ldquo;intangible rights&rdquo; in the property, and that development rights are part of the &ldquo;bundle of rights&rdquo; included in an ownership interest in real property.&nbsp; The Second Department concluded that development rights are at least &ldquo;a part&rdquo; of real property for purposes of the RPAPL, and are therefore subject to a forced sale if that sale would be &ldquo;expedient.&rdquo;&nbsp;</p> <p> In <em>Hahn</em>, however, the Second Department held that the plaintiffs were <em>not</em> entitled to compel a sale because they had not demonstrated that such a sale would be &ldquo;expedient&rdquo; within the meaning of the case law. &nbsp;The plaintiffs based their claimed right to force a sale of the property rights upon their desire to preserve the property for farming use; the Second Department held that a &ldquo;laudable and moral goal&rdquo; was not enough to demonstrate that the sale would be &ldquo;expedient.&rdquo; &nbsp;</p> <p> <em>Hahn </em>nevertheless confirms that an owner of development rights may be able to compel the sale of those rights over the objections of other owners if (s)he can effectively demonstrate that the sale would be &ldquo;expedient.&rdquo;</p> <p> If you have any questions, please contact <a href="mailto:jwolfert@seyfarth.com">Jonathan P. Wolfert</a> or <a href="mailto:owolfe@seyfarth.com">Owen R. Wolfe</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Labor and Employment:</strong></p> <p> <strong>Has Your Website Been The Subject Of An ADA Lawsuit Yet?</strong><br /> If not, it&rsquo;s probably just a matter of time.&nbsp; Since the beginning of 2015, at least 350 businesses have been sued under Title III of the Americans with Disabilities Act (ADA) in federal court for having allegedly inaccessible websites that cannot be used by blind individuals who use screen readers to access online content.&nbsp; This litigation surge continues, fueled by a recent ruling by a Florida federal judge who found Winn Dixie to be in violation of the ADA after a full trial about whether Winn Dixie&rsquo;s website could be used by the blind plaintiff.&nbsp;<br /> <br /> The ADA requires public accommodations to provide individuals with disabilities equal access to their goods and services.&nbsp; To the extent that there are goods, services, and other benefits that are offered on a business&rsquo;s website that are not available through an equivalent channel (e.g., the telephone), plaintiffs with disabilities can claim that they are being denied equal access to such goods, services and benefits.&nbsp; Most of these lawsuits settle quickly.&nbsp; However, in the few that have not, defendants have had mixed results.&nbsp; More often than not, the courts have allowed the cases to proceed to discovery, refusing to dismiss them at the beginning of the lawsuit.<br /> <br /> Businesses that open their doors to the public need to start working on making their websites accessible now if they have not already done so, as the lawsuits show no signs of abating.<br /> <br /> <br /> If you have any questions, please contact <a href="mailto:mvu@seyfarth.com">Minh N. Vu</a> or <a href="mailto:klauney@seyfarth.com">Kristina Launey</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Intellectual Property:</strong></p> <p> <strong>Movietime or Paytime?</strong><br /> Ever watch a movie at home on your Blu-ray or DVD player, and notice that ominous FBI warning on the opening screen:&nbsp;<br /> <br /> &ldquo;Federal law provides severe civil and criminal penalties for the unauthorized reproduction, distribution or exhibition of copyrighted motion pictures, video tapes, DVDs or video discs.&rdquo;&nbsp;<br /> <br /> Pretty scary stuff.&nbsp; Well, if you&rsquo;re a residential condominium or cooperative, or a senior home or community center, and if you have a &ldquo;common room&rdquo; or &ldquo;event space,&rdquo; or perhaps advertise in your promotional materials and website that you have such rooms, chances are that Hollywood will be knocking on your door.&nbsp; And when it does, it will be seeking compensation for past and future &ldquo;exhibition&rdquo; rights to show films in these non-private areas of your building or facility.&nbsp;<br /> <br /> Many intellectual property rights holders these days, and the movie industry is no exception, are going further and further down the chain to exact licensing fees and other payments for what have been, until now, unenforced copyright infringements by users who believed their conduct to have been innocent.&nbsp;<br /> <br /> When you buy a movie for home viewing, you are not buying the movie itself.&nbsp; Instead, you are buying a license to view the movie in the privacy of your home.&nbsp; Using that disc or tape to show a movie outside of your home is likely a public performance and therefore a likely copyright infringement.&nbsp; Without a prior license to show that movie in a public space, the movie studio owning the rights can seek to enforce a payment for such a showing through a demand and, if necessary, litigation.<br /> <br /> Because the amounts recovered for these public performances have usually been relatively low, most copyright owners have not previously sought to enforce their rights.&nbsp; In other words, the cost of enforcement usually outweighed the likely recovery.&nbsp; But copyright owners of all stripes are changing their tune, seeking to squeeze every last possible penny out of the works they own while they still have some value.<br /> <br /> As a result, licensing companies representing movie studios and production companies are actively demanding that condos, coops, senior homes, community centers and the like buy a license that allows the public showing of a vast library of films.&nbsp; These licenses do not cover every single film, but instead only those that the licensing company has rights to license out.&nbsp; It is possible that several licenses may be needed to cover the gamut of movies that may be of interest.&nbsp; The license price is usually based on the number of potential viewers as determined by the number of units in a building, the number of occupants of a facility, the number of members of a community center and other similar viewer approximations.&nbsp; The cost of the licenses are often added to the common charges of a building.&nbsp;<br /> <br /> So next time you want to have a movie night in your building&rsquo;s common space, ask whether you have the right to exhibit the movie.&nbsp; You will want to breathe easily when that FBI warning screen pops up.<br /> <br /> If you have any questions, please contact <a href="mailto:emaluf@seyfarth.com">Ed Maluf</a>.</p> </td> </tr> </tbody> </table> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/MA101217-LE UPDATE: New York City Commission on Human Rights Releases Additional Guidance and FAQs on the New York City Salary History Law http://www.seyfarth.com:80/publications/MA101217-LE Thu, 12 Oct 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>: The New York City Commission on Human Rights (the &ldquo;Commission&rdquo;) recently issued additional guidance in the form of &ldquo;Frequently Asked Questions&rdquo; on the Salary History Law that goes into effect on October 31, 2017.&nbsp;&nbsp;</em></p> <p> New York City&rsquo;s Salary History Law goes into effect on October 31, 2017.&nbsp; It will prohibit covered employers from inquiring about a candidate&rsquo;s salary history, or relying on the salary history of candidates when determining their salary, benefits, or other compensation. &nbsp;For more information regarding the law, see our prior alerts <a href="http://www.seyfarth.com/publications/OMM040617-LE2">here</a>, <a href="http://www.seyfarth.com/publications/OMM050617-LE">here</a>, and <a href="http://www.seyfarth.com/publications/MA091517-LE">here</a>.&nbsp;&nbsp;</p> <p> With the Halloween deadline fast approaching, many employers are revising their hiring practices to comply with the law. &nbsp;Recently, the Commission issued guidance, which can be found on its website in a section entitled: &ldquo;Frequently Asked Questions,&rdquo; and <a href="http://www1.nyc.gov/site/cchr/media/salary-history-frequently-asked-questions.page">here</a>. The FAQs respond to some key concerns employers have about the law.</p> <p> <strong>Key Takeaways</strong></p> <ul> <li> The FAQs provide guidance regarding deferred compensation and unvested equity. They clarify that, as part of a discussion about compensation <em>expectations</em>, employers can ask about the value and structure of deferred compensation or equity that would be forfeited.</li> <li> The Commission takes an expansive view regarding the geographic scope of the law&rsquo;s coverage, and will apply the law to job applicants that live in New York City and interview in New York City, even if they apply for a job outside of New York City.&nbsp;</li> <li> The FAQs state that employers and consumer reporting agencies must comply with the law&rsquo;s requirements even when running a background check, and suggest that it is a best practice to redact or exclude salary history from such reports.</li> <li> Employers should remove all requests for current or prior salary on their job applications, particularly where it might be sent to a candidate for a job in New York City.</li> <li> The Commission will conduct a case-by-case analysis regarding inquiries about the salary history of independent contractors and whether the employer may consider salary history when determining compensation for an offer of permanent employment in the same position or a comparable position. The Commission will primarily consider whether the temporary employee or subcontractor qualifies as an applicant for a new position or for internal transfer or promotion.&nbsp;</li> </ul> <p> <strong>General Scope of Coverage </strong></p> <p> There were no big surprises on the scope of coverage.</p> <ul> <li> The FAQs reaffirm that the law covers applicants for jobs in New York City.&nbsp; The Commission acknowledges that the law will not apply where an applicant simply resides in New York City, but is interviewed and will work outside of New York City.&nbsp; However, the FAQs indicate that the Commission is taking the position that if the employer asks a candidate about salary history during a job interview that occurs in New York City, even for a job based outside of the City, the law may apply.&nbsp; Here, the Commission relies on the theory that the impact of the discriminatory conduct occurred in New York City. &nbsp;Courts may take a narrower view when analyzing the locus of the impact of the challenged conduct and if the law applies in this situation.&nbsp; Nonetheless, even employers without operations in New York City should exercise caution, particularly when interviewing in or considering applicants from New York City.</li> <li> The law generally will not apply to former employers who disclose information about salary history to the hiring employer.&nbsp; However, the Commission noted that others can be held liable if they intentionally aid and abet a violation of the law.</li> <li> Applicants for internal transfer or promotion are not protected by the Salary History Law.</li> <li> The salary history protections will go into effect on October 31, 2017, but they will not be retroactive to cover inquiries made prior to that date. &nbsp;Nonetheless, employers should exercise caution if they are formulating or communicating offers after October 31st based on salary history obtained prior to that date.&nbsp; Even if the information was lawfully obtained before the law went into effect, the law independently prohibits reliance on salary history in determining a candidate&rsquo;s compensation, including the negotiation of a contract.</li> </ul> <p> <strong>What Employers Can and Cannot Do to Learn About Applicants&rsquo; Salary Expectations</strong></p> <ul> <li> The Commission confirmed that a job application can ask an applicant to state his or her compensation expectations, as long as it does not request salary history.</li> <li> Employers should review and revise their job applications, particularly where one might be sent to a candidate applying for a job in New York City, to remove all requests for current or prior salary. &nbsp;Retaining or including a question on a job application that asks for salary history may violate the law.&nbsp; Employers who use an application that requests salary history cannot avoid liability simply by adding a disclaimer stating that individuals in New York City or applying for jobs in New York City need not answer the application&rsquo;s question about current or prior salary.</li> <li> Inquiries made to a candidate&rsquo;s current or former employers, or searching public records, for the purpose of learning an applicant&rsquo;s salary history, are prohibited.&nbsp; However, in cases of accidental discovery if, for example, an employer stumbles upon a candidate&rsquo;s salary history while searching publicly available information for another purpose, the employer would not have violated the Salary History Law.&nbsp; In such a situation, however, the employer may not rely on that accidentally discovered salary history to formulate the compensation details of an offer.</li> <li> If an applicant volunteers information about his or her salary history without being prompted to do so, the employer may discuss and inquire about the applicant&rsquo;s salary history, verify the applicant&rsquo;s representations, and rely on the applicant&rsquo;s salary history in determining an offer.</li> <li> A voluntary disclosure of salary history is &ldquo;without prompting&rdquo; if the average job applicant would not think that the employer encouraged the disclosure based on the overall context and the employer&rsquo;s words or actions.&nbsp; While the Commission is articulating an objective &ldquo;reasonable person&rdquo; test, rather than a subjective standard, this &ldquo;voluntary and without prompting&rdquo; safe harbor remains vague.&nbsp; Employers should exercise caution and train hiring managers and recruiting professionals not to prompt disclosure of salary history.</li> </ul> <p> <strong>Background Checks and the Implications of the Credit Reporting Laws</strong></p> <ul> <li> In circumstances where an employer is legally permitted to perform a background check before a conditional offer has been made, or runs a background check after a conditional offer, the Commission recommends that employers specify to reporting agencies that information about salary history be excluded from the report.&nbsp; Inquiries into salary history would violate the law regardless of whether such inquiries are made before or after a conditional offer, unless the employer makes the inquiry to verify information the applicant disclosed voluntarily and without prompting.&nbsp;</li> <li> Consumer Reporting Agencies (&ldquo;CRA&rdquo;) should consider no longer verifying salary information for applicants in New York City or applicants for jobs in New York City.&nbsp; In addition, where CRAs collect W-2 or other tax reporting forms from candidates, they should redact salary history.</li> </ul> <p> <strong>Broad Definition of &ldquo;Compensation&rdquo;</strong></p> <ul> <li> The Commission has defined &ldquo;salary&rdquo; broadly.&nbsp; The same is true of &ldquo;benefits&rdquo; and &ldquo;other compensation,&rdquo; which extend to various forms of remuneration, including, but not limited to, a car allowance, retirement plan, or bonus. &nbsp;This also includes commissions an applicant earned.</li> <li> An employer is allowed to ask about objective indicators of performance such as a book of business, or the volume, production, value, or frequency of sales.&nbsp; However, an employer should not ask about an applicant&rsquo;s current or former profit percentages, or information from which it can determine the applicant&rsquo;s compensation earned on production or commissions (unless the applicant volunteered that information without prompting).</li> <li> Employers may ask about the value of a counter offer or competing offer that the candidate might also be considering, because it is not &ldquo;current or prior&rdquo; salary.</li> </ul> <p> <strong>Deferred Compensation</strong></p> <ul> <li> One of the most significant pieces of guidance contained in the FAQs concerns deferred compensation.&nbsp; In September, the Commission&rsquo;s policy counsel represented to us that it would take the position that employers should not affirmatively ask candidates whether they have deferred compensation or would forfeit deferred compensation.&nbsp; The Commission stated that if the candidate offers information about deferred compensation as part of a discussion about compensation <em>expectations</em>, the employer can verify the value of the deferred compensation that would be forfeited, either with the prior employer or with the candidate. &nbsp;However, when the Commission issued Fact Sheets in September, they were silent on deferred compensation.</li> <li> The FAQs now state clearly that, in the context of a discussion with candidates to learn about their compensation <em>expectations</em>, employers may ask whether an applicant will have to forfeit deferred compensation or unvested equity upon resignation from his or her current employer, and may ask about the value and structure of the deferred compensation or unvested equity that would be forfeited.&nbsp; Employers may request documentation to verify the applicant&rsquo;s representations, and consider such information in making an offer.</li> </ul> <p> <strong>Exemptions to the Law</strong></p> <ul> <li> There is no specific exemption in the law for actions taken by an employer pursuant to foreign or international law that specifically authorizes the disclosure or verification of salary history or requires knowledge of salary history.</li> <li> Private positions for which compensation is set pursuant to procedures established by collective bargaining are not exempt. The only exemption in this area applies to public employees where compensation is set pursuant to a collective bargaining agreement.</li> <li> Headhunters are not exempt.&nbsp; Headhunters who qualify as employers, employment agencies, or agents of an employer may be liable under a direct or aiding and abetting discrimination theory.&nbsp; The Commission recommends that headhunters obtain written confirmation from job candidates that they consent to disclosure of their salary history.&nbsp; Employers working with headhunters should also obtain a copy of the applicant&rsquo;s written consent before relying on a headhunter&rsquo;s representations about an applicant&rsquo;s salary history.</li> <li> The Commission did little to clarify the debate surrounding independent contractors.&nbsp; The law does apply to independent contractors.&nbsp; However, the Commission hedged on whether an employer may consider the salary history of a temporary employee or a subcontractor in determining compensation for an offer of permanent employment in the same position or a comparable position. &nbsp;The Commission stated that this must be assessed on a case-by-case basis. The Commission will consider whether the temporary employee or subcontractor qualifies as an applicant for a new position or for internal transfer or promotion. &nbsp;The Commission suggests that if the employer is willing to concede that it is a joint employer of the subcontractor or temporary employee, then the application may be one for internal transfer or promotion, which would not be covered by the law.</li> </ul> <p> <strong>Corporate Acquisitions</strong></p> <ul> <li> A company seeking to acquire another company may obtain salary information about the employees of the target company as part of the due diligence process because the employees of the target company are not &ldquo;job applicants&rdquo; under the law.</li> <li> However, despite this corporate acquisition exemption, the FAQs explain that if employees of the target company are being asked to interview for new positions in the acquiring company, the law may apply.&nbsp; Accordingly, in those circumstances, the Commission recommends that any salary information that may have been shared in the due diligence process not be shared with hiring managers making decisions about compensation.&nbsp; Employers considering a corporate acquisition should assess the law&rsquo;s potential applicability.</li> </ul> <p> <strong>Best Practices</strong></p> <p> The Commission recommends as a best practice:</p> <ul> <li> During the hiring process, focus questions on applicants&rsquo; salary demands, skills, and qualifications.</li> <li> Employers and hiring managers change the tenor of the conversation around salary discussions in interviews, to move away from what the applicant is currently making, and instead focus on his or her salary demand. The Commission believes this is an important change to prevent current salary from being based on prior salary, which may be artificially depressed.</li> <li> Ensure that job applications and other forms do not include questions about applicants&rsquo; salary history, even if such questions are framed as &ldquo;voluntary.&rdquo;</li> <li> Modify written policies and educate interviewers and hiring staff to prohibit inquiries about applicants&rsquo; salary history.</li> </ul> <p> Unintentional violations of the law may lead to imposition of civil penalties of up to $125,000, and the Commission may impose a penalty of up to $250,000 for a willful and malicious violation. Individual applicants may also file claims under the New York City Human Rights Law for violation of the Salary History Law, and seek compensatory damages and other relief including punitive damages and attorneys&rsquo; fees.</p> <p> As always, we are available to answer any questions employers may have regarding the Salary History Law.&nbsp; If they have not done so already, employers should evaluate and reassess their practices and procedures with respect to recruiting and hiring in light of this new law and guidance.</p> <p> Seyfarth Shaw is tracking this emerging area of law closely. We will keep you updated regarding any developments. &nbsp;For information on how this law might affect your company, contact any member of Seyfarth&rsquo;s Pay Equity Group, Cameron A. Smith at <a href="mailto:casmith@seyfarth.com">casmith@seyfarth.com</a>, Christine Hendrickson at <a href="mailto:chendrickson@seyfarth.com">chendrickson@seyfarth.com</a>, Courtney Stieber at <a href="mailto:cstieber@seyfarth.com">cstieber@seyfarth.com</a>, or Lisa Savadjian at <a href="mailto:lsavadjian@seyfarth.com">lsavadjian@seyfarth.com</a></p> http://www.seyfarth.com:80/news/adanyt101117 Seyfarth's ADA data referenced in the New York Times http://www.seyfarth.com:80/news/adanyt101117 Wed, 11 Oct 2017 00:00:00 -0500 <p> Seyfarth&#39;s ADA data was referenced in an October 11 story from the New York Times, &quot;College Websites Must Accomodate Disabled, Lawsuits Say.&quot; According to Seyfarth&#39;s ADA Title III Blog, at least 751 website accessibility lawsuits have been filed and the vast majority have focused on retailers and restaurants. You can read the <a href="https://www.nytimes.com/2017/10/11/nyregion/college-websites-disabled.html?_r=0">full article here</a>.</p> http://www.seyfarth.com:80/news/beyersdut101017 Justin Beyer quoted in the San Diego Union Tribune http://www.seyfarth.com:80/news/beyersdut101017 Tue, 10 Oct 2017 00:00:00 -0500 <p> Justin Beyer was quoted in an October 10 story from the San Diego Union Tribune, &quot;NuVasive sues its former vice chairman,&quot; on the case Ascension Ins. Holdings, LLC v. Underwood, where the Delaware Chancery Court declined to enforce a non-compete agreement a company had with a California resident and former employee. Beyer said that case should give pause to choice of law decisions of Delaware corporations with multi-jurisdictional work forces and operations in states other than Delaware. You can read the <a href="http://www.sandiegouniontribune.com/business/biotech/sd-me-nuvasive-miles-20171010-story.html">full article here</a>.</p> http://www.seyfarth.com:80/news/meierpoliticopro101017 Steven Meier quoted in PoliticoPro http://www.seyfarth.com:80/news/meierpoliticopro101017 Tue, 10 Oct 2017 00:00:00 -0500 <p> Steven Meier was quoted in an October 10 story from PoliticoPro, &quot;Changes In Estate Tax Could Have Effect On Lower-Income Filers.&quot; Meier said that both sides of the estate tax repeal fight are highly energized and the concept of the estate tax means a lot politically to both of them.</p> http://www.seyfarth.com:80/publications/EL101017 Court Holds that Receiving an Updated Background Report May Require a Second Pre-Adverse Action Notice http://www.seyfarth.com:80/publications/EL101017 Tue, 10 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: In the last three years, employers have seen a sharp increase in the number of employment class actions under the Fair Credit Reporting Act (FCRA). Most of the reported cases involve challenges to the employer&rsquo;s procedures before ordering a background report. More recently, however, we are seeing more cases against employers alleging a failure to follow the FCRA&rsquo;s adverse action requirements, which must be followed any time an employer intends to take &ldquo;adverse action&rdquo; (revoking a job offer or terminating employment) against a job applicant or a current employee based, in whole or in part, on information contained in their background report.<br /> <br /> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/court-holds-that-receiving-an-updated-background-report-may-require-a-second-pre-adverse-action-notice/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM101017 Targeted ICE Investigations – In It For The Long Haul With Record $95 Million Plea Deal For I-9 Violations http://www.seyfarth.com:80/publications/IMM101017 Tue, 10 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: With a record $95 million plea deal for I-9 immigration violations following a six year investigation, the outcome for a Pennsylvania company with operations nationwide serves as a reminder of the federal government&rsquo;s unwavering commitment to investigating and enforcing of immigration laws. A look at the facts behind the headlines helps us understand where, when and why company general counsel and the C-suite should take a proactive approach to immigration compliance. If nothing else a judgment of $95 million solidifies that the Form I-9 is not really &ldquo;just&rdquo; a simple form, and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).<br /> <br /> <a href="http://www.bigimmigrationlawblog.com/2017/10/targeted-ice-investigations-in-it-for-the-long-haul-with-record-95-million-plea-deal-for-i-9-violations/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM101017-LE Still Sleeping on the Job? NY DOL Says Home Healthcare Employees Not Entitled to 24 Hours Pay for Overnight Shifts http://www.seyfarth.com:80/publications/OMM101017-LE Tue, 10 Oct 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>: Effective October 6, 2017, the New York Department of Labor issued an emergency regulation amending the Miscellaneous Minimum Wage Order, which is designed to undermine two recent Appellate Division rulings that have held non-residential home healthcare workers must be paid for all 24 hours in a 24-hour shift.&nbsp; The Department of Labor&rsquo;s position on this issue has been, and plainly remains, that home healthcare employees need to be paid for 13 hours in a 24-hour shift, so long as specified uninterrupted meal and sleep periods are provided. &nbsp;The Department of Labor&rsquo;s interpretation on this issue is consistent with federal law.</em></p> <p> Effective October 6, 2017, the New York State Department of Labor (&ldquo;NYDOL&rdquo;) revised the Miscellaneous Minimum Wage Order (&ldquo;MWO&rdquo;) to reaffirm its position that non-residential home healthcare workers on overnight shifts need be paid for only 13 hours out of a 24-hour shift, as long as the proper meal and sleep periods are provided and are uninterrupted.&nbsp; This interpretation is consistent with federal Fair Labor Standards Act.&nbsp;</p> <p> The NYDOL has been following the rationale of its <a href="https://labor.ny.gov/legal/counsel/pdf/Other/RO-09-0169%20-%20Live-In%20Companions.pdf">2010 Opinion Letter</a>, which interpreted 12 NYCRR &sect; 142-2.1(b) as requiring live-in employees to be paid 13 hours per 24 hour period, provided they are afforded at least 8 hours for sleep, actually receive 5 hours of sleep, and are provided 3 hours for meals. &nbsp;As we&rsquo;ve previously reported, two recent Appellate Division decisions in the<a href="http://www.wagehourlitigation.com/state-claims/sleeping-home-healthcare-employees-entitled-to-pay-on-overnight-shifts/"> First</a> and <a href="http://www.seyfarth.com/publications/OMM091817-LE">Second </a>Departments held that this rationale was incorrect, and found that a &ldquo;non-residential&rdquo; home healthcare employee must be paid for all hours present at a client&rsquo;s home, including meal periods and time spent sleeping.&nbsp; Based on these decisions, employers in the industry faced an enormous financial burden and uncertainty, including the potential for retroactive application of the new line of case law.</p> <p> This week, the DOL took the unusual step to issue an emergency regulation revising the MWO.&nbsp;</p> <p> NYDOL regulations provide that minimum wage must be paid for each hour an employee is &ldquo;required to be available for work at a place prescribed by the employer&rdquo; except that a &ldquo;residential employee &mdash; one who lives on the premises of the employer&rdquo; need not be paid &ldquo;during his or her normal sleeping hours solely because he is required to be on call&rdquo; or &ldquo;at any other time when he or she is free to leave the place of employment.&rdquo;&nbsp;</p> <p> The NYDOL revised the <a href="https://www.labor.ny.gov/formsdocs/wp/CR142.pdf">MWO</a>, 12 NYCRR &sect; 142-2.1(b), to state:</p> <p style="margin-left:.5in;"> Notwithstanding the above, this subdivision shall not be construed to require that the minimum wage be paid for meal periods and sleep times that are excluded from hours worked under the Fair Labor Standards Act of 1938, as amended, in accordance with sections 785.19 and 785.22 of 29 C.F.R. for a home care aide who works a shift of 24 hours or more.</p> <p> The FLSA regulations cited in the MWO provide that an employee who is required to be duty on for 24 hours or more may agree to exclude <em>bona fide</em> meal periods and a <em>bona fide</em> regularly scheduled sleeping period of up to 8 hours, provided the employee is given adequate sleeping facilities and is actually provided with at least 5 hours of uninterrupted sleep and 3 hours of meal time.&nbsp; This provision requires an &ldquo;express or implied agreement&rdquo; or the 8 hours will be considered time worked.&nbsp;</p> <p> However, with the newly revised MWO, employers in the industry face even more uncertainty.&nbsp; The revision was issued in the form of an &ldquo;emergency&rdquo; regulation, which means it is enacted for a temporary basis of up to 90 days.&nbsp; Although it may be readopted at that point for an additional 60 days, it must ultimately go through the formal proposal process to be adopted as a permanent rule.&nbsp;&nbsp; The rule may be challenged on that basis. &nbsp;A potential challenge to the regulation may also mean that the rationale of the appellate courts will ultimately prevail, unless the Court of Appeals intercedes. &nbsp;The regulation is not retroactive, so it is unclear how courts will resolve complaints brought by workers about time worked prior to the effective date. We will continue tracking this issue closely.</p> http://www.seyfarth.com:80/publications/TS101017 Big Brown v. PowerPoint Pilferers in Trade Secret Spat http://www.seyfarth.com:80/publications/TS101017 Tue, 10 Oct 2017 00:00:00 -0500 <p> Earlier this week, the United Parcel Service, Inc. (&ldquo;UPS&rdquo;) filed a lawsuit in the Northern District of Georgia, Atlanta Division, against several unidentified UPS pilots, who are referred to in the complaint as &ldquo;John Does 1-5.&rdquo; The lawsuit alleges that &ldquo;[i]n August 2017, certain UPS employees developed strategic plans regarding the Company&rsquo;s aircraft. These plans were developed for, among other things, reporting to senior executives of the Company in late August 2017 so that they could make certain strategic business and financial decisions. Portions of these plans were included in a PowerPoint presentation created by this limited group of UPS employees (the &ldquo;PowerPoint&rdquo;). In preparation for the meeting, a very limited number of UPS employees had access to the PowerPoint for the purpose of its drafting and editing.&rdquo; (Complaint, &para; 7.) The lawsuit goes on to allege that the PowerPoint contained highly confidential and trade secret information. (Id. at &para;&para; 9-10.)<br /> <br /> <a href="http://www.tradesecretslaw.com/2017/10/articles/dtsa/big-brown-v-powerpoint-pilferers-in-trade-secret-spat/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA100917-LE Targeted ICE Investigations - In It For The Long Haul With Record $95 Million Plea Deal For I-9 Violations http://www.seyfarth.com:80/publications/MA100917-LE Mon, 09 Oct 2017 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:</strong></em> <em>With a record $95 million plea deal for I-9 immigration violations following a six year investigation, the outcome for a Pennsylvania company with operations nationwide serves as a reminder of the federal government&rsquo;s unwavering commitment to investigating and enforcing of immigration laws.&nbsp; A look at the facts behind the headlines helps us understand where, when and why company general counsel and the C-suite should take a proactive approach to immigration compliance.&nbsp; If nothing else a judgment of $95 million solidifies that the Form I-9 is not really &ldquo;just&rdquo; a simple form, and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).&nbsp;</em></div> <div> &nbsp;</div> <div> Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers.&nbsp; As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law.&nbsp; Prior to this, the often touted &ldquo;record settlement&rdquo; included IFCO Systems North America Inc.&rsquo;s (IFCO) $20.7 million dollars from 2006.</div> <div> &nbsp;</div> <div> While the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies.&nbsp; The story of Asplundh, similar to the stories of IFCO, Abercrombie and Fitch, Chipotle and many others, should serve as both an informative and cautionary tale. While each of these companies faced different challenges and immigration violations, the lessons in each should help general counsel and the C-suite at companies appreciate the importance of taking stock of their own practices and putting into motion an action plan designed to mitigate risks and liabilities where possible.&nbsp; If nothing else, a judgment of $95 million solidifies that the Form I-9 is not really &ldquo;just&rdquo; a simple a form and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).</div> <div> &nbsp;</div> <div> We also cannot bury our proverbial heads in the sand and ignore recent Executive Orders changing ICE&rsquo;s <a href="https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements">immigration priorities-</a>, and promoting &ldquo;<a href="https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american">Buy American, Hire American&rdquo; policies</a>. While we have not yet seen the worksite raids we experienced under the Bush Administration or widespread &ldquo;desk audits&rdquo; or &ldquo;silent raids&rdquo; of Forms I-9 under the Obama administration, ICE is here for the long haul and future worksite investigations, on-site visits and Form I-9 audits can be expected.&nbsp; This will be especially true as we see an increase in resources allocated to meet the current administration&rsquo;s priorities in this arena.&nbsp;</div> <div> &nbsp;</div> <div> <strong>The Story Behind Asplundh</strong></div> <div> &nbsp;</div> <div> Described as one of the largest privately-held companies in the United States, and headquartered in Willow Grove, Pennsylvania, Asplundh is now also known as the company that pled to the largest civil settlement agreement ever levied on an immigration case - how did they get here?</div> <div> &nbsp;</div> <div> ICE&rsquo;s six - year investigation found that Asplundh employed a scheme where employees were hired and re-hired even when lower level managers were aware of the fact that the employees were not authorized to work in the United States.&nbsp; But more importantly, the charges noted that &ldquo;<a href="https://www.ice.gov/news/releases/asplundh-tree-experts-co-pays-largest-civil-settlement-agreement-ever-levied-ice">the highest levels of Asplundh management remained willfully blind</a>.&rdquo; Even before the September 28th announcement of the settlement agreement following the guilty plea, the Department of Justice (DOJ) U.S. Attorney&rsquo;s Office <a href="https://www.justice.gov/usao-edpa/pr/asplundh-tree-expert-co-charged-recruiting-hiring-and-employing-unauthorized-aliens#_ftnref1">announced on September 19, 2017</a> that three employees, including supervisors and a Vice- President, had already entered guilty pleas to felony counts of conspiracy to commit fraud and misuse visas&nbsp; in connection with this case, with each defendant facing prison time and fines.</div> <div> &nbsp;</div> <div> ICE Acting Director Thomas Homan stated in its <a href="https://www.ice.gov/news/releases/asplundh-tree-experts-co-pays-largest-civil-settlement-agreement-ever-levied-ice#wcm-survey-target-id">September 28th announcement</a> that&nbsp; &ldquo;[t]oday&rsquo;s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to <strong>remove this magnet&rdquo;</strong> (emphasis added).</div> <div> &nbsp;</div> <div> The <a href="https://www.justice.gov/usao-edpa/pr/asplundh-tree-expert-co-charged-recruiting-hiring-and-employing-unauthorized-aliens#_ftnref1">charge</a> was for one count of unlawfully employing aliens. Statements from ICE and the (DOJ) U.S. Attorney&rsquo;s Office describe a company practice where a decentralized hiring practice reinforced and supported the acceptance of fraudulent documentation presented to company representatives by new hires and re-hires in regions across the United States.&nbsp; More specifically, as noted in<a href="https://www.ice.gov/news/releases/asplundh-tree-experts-co-pays-largest-civil-settlement-agreement-ever-levied-ice"> ICE&rsquo;s statement</a>, the six year investigation revealed that from 2010 to 2014, &ldquo;the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.&rdquo;&nbsp; The purported motivation for this national industry leader in tree trimming and brush clearance for power and gas lines - a motivated workforce willing and able to relocate at a national level as needed to respond to weather related events requiring Asplundh crews.</div> <div> &nbsp;</div> <div> While details of the Administrative Compliance Agreement have not yet been released, given the charges and facts disclosed it is likely the company will be required to take action on a number of fronts.&nbsp; As noted in the company&rsquo;s <a href="http://www.asplundh.com/wp-content/uploads/2017/09/Asplundh_091917.pdf">own statement</a>, Asplundh has already taken some corrective action, including:</div> <div> &nbsp;</div> <div> <ul> <li> Appointing a Compliance Specialist trained in fraudulent document identification in each Asplundh region nation-wide.</li> <li> Revising hiring procedures to verify each identification examination for every new hire.</li> <li> Investigating every complaint of potentially undocumented workers.</li> <li> Retaining a third party consultant to review actions and procedures.</li> <li> Presenting the company compliance program to ICE for review.</li> </ul> <div> &nbsp;</div> <div> These corrective actions are reminiscent of what we saw with IFCO and changes that <a href="https://www.ice.gov/news/releases/216-million-ifco-forfeiture-distributed-new-york-state-police">IFCO</a> made in 2006 as part of its agreement with ICE.&nbsp; Recent history has shown us ICE&rsquo;s unwavering commitment to its investigations and enforcement of immigration laws regardless of the name or party controlling the Oval Office.</div> <div> &nbsp;</div> <div> <strong>What Does This Mean for Your Operations?</strong></div> <div> &nbsp;</div> <div> <div> The key for all employers is to take all necessary and possible steps that will protect the company from a charge and a subsequent finding of knowingly or intentionally hiring undocumented workers. While all employers may not be able to guarantee full compliance, everyone can and should take steps that will provide an affirmative defense against charges and allegations of willfully employing undocumented workers or simply being careless to the point that a good faith defense cannot be made.&nbsp; &nbsp;From addressing proper form completion, document retention, remote hires, electronic I-9 vendors and detecting fraudulent documents, there are steps every company can and should take with minimal disruption to operations that can provide an affirmative defense in showing good-faith compliance with Form I-9 IRCA requirements.</div> <div> &nbsp;</div> <div> Compliance with Form I-9 requirements should be a priority - not an option - for any U.S. employer. All employers, regardless of industry or size, must make a concerted effort to understand the importance of compliance, and make strategic business decisions to limit liability.&nbsp; Investing the time and resources necessary to develop and implement proper immigration compliance policies and protocols should be on the agenda.&nbsp; Businesses can begin taking a proactive approach and action on the following fronts:&nbsp;</div> <div> &nbsp;</div> <div> <ul> <li> Preventative Audits - Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a &ldquo;desk audit&rdquo; or a full on investigation. Remember, if the company has been audited once, you are on the government&rsquo;s radar with secondary inspections and active investigations a possibility.</li> <li> Train, Train, Train - Human Resource teams and their delegates need to consistently and accurately complete Form I-9s.&nbsp; Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.</li> <li> Improve or develop policies and procedures - Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more &ldquo;decentralized&rdquo; approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities.&nbsp; When the process is identifiable, then accountability can be, too.</li> <li> Manage compliance - Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals.&nbsp; For the company it can also mean a PR nightmare.&nbsp; Dedicating top management level resources to oversee a company&rsquo;s immigration compliance program should be a top consideration.&nbsp;&nbsp;</li> <li> Prepare for possible workplace disruptions - Whether the current Administration steps up enforcement actions is not really the motivating factor.&nbsp; As depicted in the excerpt below from the Department of Homeland Security &ndash; U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties.&nbsp; The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.</li> </ul> </div> </div> </div> <div> &nbsp;</div> <div> <em><img alt="" src="http://www.seyfarth.com/dir_docs/publications/CA_Table.jpg " style="width: 500px; height: 191px;" /></em></div> <div> &nbsp;</div> <div> <div> For more than sixteen years, since the infamous worksite raids under the Bush administration, we have watched enforcement actions increase regardless&nbsp; of the party controlling the executive branch.&nbsp; Whether a paticular form of enforcement action becomes more prevalent or not, should your company be investigated, severe losses could occur and planning for potential impacts on workforce availability in advance can prove to be critical to limiting disruption to ongoing operations.</div> <div> &nbsp;</div> <div> As ICE investigations continue and potentially expand under Presidential Executive Orders or future Presidential Proclamations, it is more important than ever for employers to protect themselves by ensuring that proper immigration compliance policies are in place and in-house audits are conducted on a regular basis to detect potential issues and irregularities. As demonstrated in Asplundh, the stakes are high, employer responsibilities as well as liabilities under IRCA should be taken very seriously.&nbsp;&nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/weisswgn100917 Philippe Weiss interviewed on WGN-AM Radio http://www.seyfarth.com:80/news/weisswgn100917 Mon, 09 Oct 2017 00:00:00 -0500 <p> Philippe Weiss was interviewed October 9th on WGN-AM Radio, &quot;Wintrust Business Lunch 10/9/17: Halloween At The Office.&quot; Weiss discussed how influential Halloween can be in the office environment. You can listen to the <a href="http://wgnradio.com/2017/10/09/wintrust-business-lunch-10917-600m-for-rxbars-halloween-at-the-office-plandid-camera/">full interview at Min. 12:40 here</a>.</p> http://www.seyfarth.com:80/news/schwartzfenwicklaw360100617 Sam Schwartz-Fenwick quoted in Law360 http://www.seyfarth.com:80/news/schwartzfenwicklaw360100617 Fri, 06 Oct 2017 00:00:00 -0500 <p> Sam Schwartz-Fenwick was quoted in and October 6 story from Law360, &quot;5 Trump Policy Reversals That May Give Employers Whiplash,&quot; on how the U.S. Department of Justice yanked a 2014 memo that said gender-identity discrimination fell under Title VII&rsquo;s sex-discrimination umbrella. Schwartz-Fenwick said that the announcement is at odds with the majority of federal courts that have analyzed this question, and also at odds with the current position of the Equal Employment Opportunity Commission.</p> http://www.seyfarth.com:80/news/schwartzfenwickshrm100617 Sam Schwartz-Fenwick quoted in SHRM http://www.seyfarth.com:80/news/schwartzfenwickshrm100617 Fri, 06 Oct 2017 00:00:00 -0500 <p> Sam Schwartz-Fenwick was quoted in an October 6 story from SHRM, &quot;Transgender Workplace Discrimination Not Prohibited Under Law, Attorney General Says.&quot; Schwartz-Fenwick said that until the Supreme Court weighs in on this hotly disputed issue, employers should consult with counsel to evaluate their internal policies, practices, and procedures with an eye toward transgender claims. You can read the <a href="https://www.shrm.org/ResourcesAndTools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/Pages/Transgender-Workplace-Discrimination-Not-Prohibited-Under-Law-Attorney-General-Says.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/vickcdlb100617 Jordan Vick profiled in the Chicago Daily Law Bulletin http://www.seyfarth.com:80/news/vickcdlb100617 Fri, 06 Oct 2017 00:00:00 -0500 <p> Jordan Vick was profiled in an October 6 story from the Chicago Daily Law Bulletin, &quot;New bar head to lead during &lsquo;turbulent time&#39;.&quot; Vick was installed as president of the Federal Bar Association&rsquo;s Chicago chapter.</p> http://www.seyfarth.com:80/news/shermanwbj100617 Andrew Sherman quoted in the Washington Business Journal http://www.seyfarth.com:80/news/shermanwbj100617 Fri, 06 Oct 2017 00:00:00 -0500 <p> Andrew Sherman was quoted in an October 6 story from the Washington Business Journal, &quot;ComScore&#39;s shareholder settlement could give Starboard control of the company.&quot; Sherman said that, in general, a heavy-handed settlement like this is in excess of what is normal - and it would be reasonable to expect management changes at the company in the future.</p> http://www.seyfarth.com:80/news/bodanskyhflcd Robert Bodansky quoted in Hedge Fund Legal & Compliance Digest http://www.seyfarth.com:80/news/bodanskyhflcd Fri, 06 Oct 2017 00:00:00 -0500 <p> Robert Bodansky was quoted in an October 6 story from Hedge Fund Legal &amp; Compliance Digest, &quot;Best Practices for Private Equity Managers Entering into Joint Ventures with Investors (Part Two of Three).&quot; Bodansky said that when structuring joint ventures as limited partnerships, investors need to carefully negotiate approval rights. You can read the <a href="http://www.hedgefundlcd.com/best-practices-for-private-equity-managers-entering-into-joint-ventures-with-investors-part-two-of-three/">full article here</a>.</p> http://www.seyfarth.com:80/news/mandelkergeico100617 Lawrence Mandelker quoted in Geico More http://www.seyfarth.com:80/news/mandelkergeico100617 Fri, 06 Oct 2017 00:00:00 -0500 <p> Lawrence Mandelker was quoted in an October 6 story from Geico More, &quot;Why You&mdash;Yes, You&mdash;Should Have A Will.&quot; Mandelker said that you&rsquo;re creating a will because it&rsquo;s the responsible thing to do to get your affairs in order. You can read the <a href="https://www.geico.com/more/saving/money/tips-for-preserving-your-estate/">full article here</a>.</p> http://www.seyfarth.com:80/publications/WC100617 FY 2017 Litigation Scorecard For The EEOC – What Employer’s Should Know http://www.seyfarth.com:80/publications/WC100617 Fri, 06 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: With the EEOC&rsquo;s Fiscal Year ending on September 30, 2017, loyal blog readers know that our firm has been busy analyzing the major trends of FY 2017 on the EEOC litigation front. In this video, Jerry Maatman of Seyfarth Shaw, LLP provides an overview of the highlights from the EEOC&rsquo;s &ldquo;litigation scorecard&rdquo; for the 2017 Fiscal Year. Jerry touches on this year&rsquo;s overall filing trends, tracks the importance of Equal Pay claims filed, and lastly, gives our readers some ideas on possible implications for the future of the EEOC. Remember, if you are interested in the filing trends of the EEOC or in complex discrimination law in general, stay tuned for our full analysis of the 2017 EEOC Fiscal Year that comes out in late December.<br /> <br /> <a href="http://www.workplaceclassaction.com/2017/10/fy-2017-litigation-scorecard-for-the-eeoc-what-employers-should-know/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL100517 Class Waivers at the Divided Supreme Court: Employers Cautiously Optimistic http://www.seyfarth.com:80/publications/EL100517 Thu, 05 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Following oral argument, employers should be cautiously optimistic that the Supreme Court will allow mandatory arbitration programs containing waivers of the ability to bring collective and class actions.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/class-waivers-at-the-divided-supreme-court-employers-cautiously-optimistic/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=0696d088bc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-0696d088bc-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR100517 NLRB About-Face Highlights Lack of Reasoning on the Class Action “Right” It Seeks to Assert http://www.seyfarth.com:80/publications/LR100517 Thu, 05 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis:&nbsp; The NLRB has withdrawn the significant concession it offered at oral argument on the nature of the NLRA rights it seeks to assert in the face of employers&rsquo; mandatory arbitration programs.</p> <p> <a href="http://www.employerlaborrelations.com/2017/10/05/nlrb-about-face-highlights-lack-of-reasoning-on-the-class-action-right-it-seeks-to-assert/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=009c9a38fe-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-009c9a38fe-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT100517 The Week in Weed: October 6, 2017 http://www.seyfarth.com:80/publications/TBT100517 Thu, 05 Oct 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.</p> <ul> <li> <a href="http://openalerts.ozmosys.com/oadev/oat.php?zg=121&amp;zt=45001823&amp;zu=http://www.insurancejournal.com/news/east/2017/10/04/466358.htm">Delaware Panel Continues to Eye Details of Legalizing Pot</a><br /> (Insurance Journal: News, 4 October 2017)</li> </ul> <p> <a href="http://www.blunttruthlaw.com/2017/10/the-week-in-weed-october-6-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=d6cec8aa03-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-d6cec8aa03-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR100517a NLRB About-Face Highlights Lack of Reasoning on the Class Action “Right” It Seeks to Assert http://www.seyfarth.com:80/publications/LR100517a Thu, 05 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The NLRB has withdrawn the significant concession it offered at oral argument on the nature of the NLRA rights it seeks to assert in the face of employers&rsquo; mandatory arbitration programs.<br /> <br /> <a href="http://www.employerlaborrelations.com/2017/10/05/nlrb-about-face-highlights-lack-of-reasoning-on-the-class-action-right-it-seeks-to-assert/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE100517 Chipping Employees: The “Wave” of the Future? http://www.seyfarth.com:80/publications/FE100517 Thu, 05 Oct 2017 00:00:00 -0500 <p> <em>This blog post is published on our Future Employer page <a href="https://www.futureemployer.com/blog/2017/10/5/chipping-employees-the-waive-of-the-future">here</a>.</em></p> <p> A key cinematic meme over the past 25 years is an electronic device implanted under your skin that tracks your movements, provides you access to restricted areas, or connects you to a larger virtual community.&nbsp; Think Arnold Schwarzenegger in &quot;Total Recall&quot; (1990), Will Smith in &quot;Enemy of the State&quot; (1998), or Keanu Reeves in &quot;The Matrix&quot; (1999). And while film will teach you that such devices are most often used for sinister purposes, employers are looking to these devices for more helpful reasons, with mixed reactions.</p> <p> The most recent application by employers is by Three Square Market, a technology company in Wisconsin.&nbsp; According to the&nbsp;<a href="https://www.nytimes.com/2017/07/25/technology/microchips-wisconsin-company-employees.html">New York Times</a>, Three Square recently offered to implant a microchip under its employees&#39; skin that will give them access to the building and the ability to pay for food in the cafeteria, all with the wave of a hand.&nbsp; And despite some initial misgivings, more than 50 out of 80 employees at Three Square&rsquo;s headquarters have volunteered.</p> <p> The technology is called Radio Frequency Identification, or RFID, and it is nothing new.&nbsp; The technology has been around since World War II, and it has been used in everything from parking permits to tracking newborns in hospital nurseries.[1]&nbsp; Implants were approved for living creatures in the 1990s, [2]&nbsp;and now &ldquo;microchipping&rdquo; pets has become widely adopted.[3]</p> <p> The big breakthrough, however, came in 2004, when the Food and Drug Administration approved the use of subdermal RFID implants in humans.[4]&nbsp; Since then, in 2006, an Ohio surveillance company, CityWatcher.com, announced that it had implanted RFID chips in some of its employees (with permission), allowing them to pass a detector and enter their facility.[5]&nbsp; Then, in 2007, the American Medical Association endorsed responsible use of implantable RFID for patient identification, and thousands across the globe have since undergone the process for various reasons. [6]</p> <p> Needless to say, the applications of this technology are only limited by our imagination.&nbsp; But with the advent of such invasive technology comes concerns about privacy and health.&nbsp; Critics of implanted RFID chips note that they have the potential to monitor all of a person&rsquo;s daily activities, making any sense of privacy or anonymity a thing of the past. [7]&nbsp; Others argue that the invasive nature of technologies with expansive surveillance capabilities can adversely affect employee morale, leading to greater stress in the workforce and decreased worker productivity. [8]&nbsp; Finally, some studies have shown a link between malignant tumors in animals with microchips, raising questions whether implants are safe for humans. [9]</p> <p> And, as is often the case, the law lags behind the technology, and the ubiquity of its potential application outpaces our cultural appreciation of its impact.&nbsp; As of this writing, only five states (including Wisconsin, home to Three Square) have passed statutes banning the mandatory implant of RFID devices.</p> <ul> <li> Cal. Civ. Code &sect;52.7 (West 2008) (prohibiting any person from requiring, coercing, or compelling any other individual to undergo the subcutaneous implanting of an identification device);</li> <li> Mo. Rev. Stat. &sect;285.035 (2008) (prohibiting employers from requiring an employee to have a personal identification microchip technology implanted for any reason);</li> <li> N.D. Cent. Code &sect;12.1-15-06 (2008) (prohibiting a person from requiring that an individual have inserted into that individual&#39;s body a microchip containing a radio frequency identification device);</li> <li> Wis. Stat. &sect;146.25 (2008) (prohibiting a person from requiring an individual to undergo the implanting of a microchip);</li> <li> Okla. Stat. &sect; 63-1-1430 (2008) (&ldquo;No person, state, county, or local governmental entity or corporate entity may require an individual to undergo the implanting of a microchip or permanent mark of any kind or nature upon the individual.&rdquo;)&nbsp; [10]</li> </ul> <p> None of these statutes, however, prohibit&nbsp;<strong><em>voluntary&nbsp;</em></strong>chipping, and when the alternative is being required to carry a key card or other badge you might lose, many employees (such as those at Three Square) are signing up.</p> <p> Some researchers predict RFID will become the most pervasive computer technology in history. [11]&nbsp; But at the end of the day, with the exception of the devices being right under your skin, how different is this type of tracking from what is already occurring with your smart phone?&nbsp; And let&rsquo;s face it, for most of us, our smartphones might as well be surgically implanted.</p> <div data-block-type="47" id="block-yui_3_17_2_1_1507219172106_33446" style="clear:both;"> <div> <hr /> </div> </div> <div data-block-type="2" id="block-yui_3_17_2_1_1507219172106_33507" style="clear:none;"> <div> <p> &nbsp;</p> <p> [1]&nbsp;Lara M. Ulatowski, Recent Developments in RFID Technology:&nbsp; Weighing Utility Against Potential Privacy Concerns, 3 I/S:&nbsp; J.L. &amp; Poly. for Info. Soc&rsquo;y 623 (2008).</p> <p> [2]&nbsp;Isaac v. Rosenberg, Involuntary Endogenous RFID Compliance Monitoring as a Condition of Supervised Release- Chips Ahoy?, 10 Yale L. J. 331 (2008).</p> <p> [3]&nbsp;Ulatowski at 1.</p> <p> [4]&nbsp;Rosenberg at 331.</p> <p> [5]&nbsp;13A N.Y. Prac. Employment Law in New York &sect;&nbsp;6:39 (2d. ed) (citing Richard Waters, &ldquo;US Group Implants Tags in Workers,&rdquo; Finacnial Times, February 12, 2006)</p> <p> [6]&nbsp;Rosenberg, at 331.</p> <p> [7]&nbsp;Ulatowski at 1.&nbsp;</p> <p> [8]&nbsp;William A. Herbert, The Impact of Emerging Technologies in the Workplace:&nbsp; Who&rsquo;s Watching the Man (Who&rsquo;s Watching Me)?, 25 Hofstra Lab. &amp; Emp. LJ. 355, 356 (Spring 2008).</p> <p> [9]&nbsp;Ulatowski, at 8.</p> <p> [10]&nbsp;See also &nbsp;<a href="http://www.ncsl.org/research/telecommunications-and-information-technology/radio-frequency-identification-rfid-privacy-laws.aspx">http://www.ncsl.org/research/telecommunications-and-information-technology/radio-frequency-identification-rfid-privacy-laws.aspx</a></p> <p> [11]&nbsp;Rosenberg at 331.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/shrm100517 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/shrm100517 Thu, 05 Oct 2017 00:00:00 -0500 <p> Alex Passantino was quoted in an October 5 story from SHRM, &quot;Supreme Court to Reconsider Whether Car Service Advisors Are Exempt,&quot; on how guidance on how lower courts should interpret the FLSA is expected. Passantino said that, although the specific FLSA issue is narrow, the court may provide additional guidance on when courts should defer to statements of the Department of Labor (DOL), such as opinion letters, or the department&#39;s Field Operations Handbook. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/supreme-court-car-service-advisors.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/eeeocwapo100517 Christopher DeGroff, Gerald Maatman and Matthew Gagnon's blog post referenced in the Washington Post http://www.seyfarth.com:80/news/eeeocwapo100517 Thu, 05 Oct 2017 00:00:00 -0500 <p> Christopher DeGroff, Gerald Maatman and Matthew Gagnon&#39;s blog post was referenced in an October 5 story from the Washington Post, &quot;The Equal Employment Opportunity Commission has been busier than ever.&quot; According to their post, 2017 has seen a vigorous number of EEOC case filings, surpassing the last three fiscal years. You can read the <a href="https://www.washingtonpost.com/news/on-small-business/wp/2017/10/05/the-equal-employment-opportunity-commission-has-been-busier-than-ever/?utm_term=.cc13904f6ae5">full article here</a>.</p> http://www.seyfarth.com:80/news/launeysjm100417 Kristina Launey quoted in the San Jose Mercury News http://www.seyfarth.com:80/news/launeysjm100417 Wed, 04 Oct 2017 00:00:00 -0500 <p> Kristina Launey was quoted in an October 4 story from the San Jose Mercury News, &quot;Closing the gender pay gap: Bill would make salary questions off-limits to California employers,&quot; on AB 168 which is awaiting Gov. Jerry Brown&rsquo;s signature. Launey said that AB 168 could make it more difficult for companies to recruit talent. You can read the <a href="http://www.mercurynews.com/2017/10/04/closing-gender-pay-gap-bill-would-make-salary-questions-off-limits-ca-employers/">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM100417-LE Premium Processing Resumes for All H-1B Petitions http://www.seyfarth.com:80/publications/OMM100417-LE Wed, 04 Oct 2017 00:00:00 -0500 <p class="BodySingle"> <em><strong>Seyfarth Synopsis</strong></em>: <em>On October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for all H-1B petitions.</em><o:p></o:p></p> <p class="BodySingle"> USCIS temporarily suspended premium processing of all H-1B petitions on April 1, 2017 with the stated goal of addressing significant backlogs in case processing.&nbsp; Over the last few months, the agency incrementally reinstated the premium processing service for certain lower-volume H-1B filings. Yesterday, USCIS announced that premium processing is now available for all H-1B filings, including petitions requesting a change of employer and/or extension of stay.&nbsp; <o:p></o:p></p> <p class="BodySingle"> When a petition is filed under premium processing, the petitioner includes an additional filing fee of $1,225.&nbsp; This additional filing fee requires USCIS to adjudicate the petition within 15 calendar days of receiving the request.&nbsp; USCIS either approves the petition or issues a Request for Evidence (RFE) within that 15 calendar day time period.&nbsp; However, in the announcement, USCIS stated that if the agency did not meet the 15 calendar day processing deadline, it would refund the petitioner&rsquo;s premium processing service fee and continue with expedited processing of the petition.<o:p></o:p></p> <p class="BodySingle"> Premium processing requests can be filed with the initial filing of a petition, or at a later date by filing the premium processing request form (I-907) and the associated fee, referencing the petition&rsquo;s receipt number.&nbsp; Your contacts at Seyfarth Shaw LLP will work with you to determine which cases should be considered for premium processing upgrades.&nbsp; It may be advisable to upgrade a petition to premium processing if, for example, an employee has imminent travel plans or cannot renew his or her drivers&rsquo; license due to an expiration of H-1B status.<o:p></o:p></p> http://www.seyfarth.com:80/publications/ADA100417 Supreme Court Denies Review of Rules That Vending Machines Are Not Places of Public Accommodation http://www.seyfarth.com:80/publications/ADA100417 Wed, 04 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis:&nbsp; The Supreme Court declines to review a Fifth Circuit decision stating that a public accommodation covered by Title III of the ADA has to be a physical place and vending machines are not sales establishments covered by Title III of the ADA.</p> <p> <a href="http://www.adatitleiii.com/2017/10/supreme-court-denies-review-of-rules-that-vending-machines-are-not-places-of-public-accommodation/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=2ba79d920e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-2ba79d920e-73047125">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE100417 OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction http://www.seyfarth.com:80/publications/WSE100417 Wed, 04 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: OSHA announced a thirty day phase-in for enforcement of the Crystalline Silica Standard for Construction under 29 CFR 1926.1153. The new rule will be fully effective by Monday, October 23, 2017.<br /> <br /> <a href="http://www.environmentalsafetyupdate.com/osha-compliance/osha-adopts-30-day-phase-in-of-enforcement-of-crystalline-silica-standard-for-construction/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH100317 Class Waivers at the Divided Supreme Court: Employers Cautiously Optimistic http://www.seyfarth.com:80/publications/WH100317 Tue, 03 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: Following oral argument, employers should be cautiously optimistic that the Supreme Court will allow mandatory arbitration programs containing waivers of the ability to bring collective and class actions.<br /> <br /> <a href="http://www.wagehourlitigation.com/arbitration-agreements/class-waivers-at-the-divided-supreme-court-employers-cautiously-optimistic/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL100317 Hazards Ahead: Uptick in Biometric Privacy Laws Can Put Employers in Hot Seat http://www.seyfarth.com:80/publications/EL100317 Tue, 03 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis:&nbsp; A string of recent class action lawsuits regarding businesses&rsquo; use of employees&rsquo; biometric data should put employers on heightened alert regarding compliance with various state biometric privacy laws.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/hazards-ahead-uptick-in-biometric-privacy-laws-can-put-employers-in-hot-seat/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=8c9297c052-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-8c9297c052-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP100317 Future of Work III: Performance Management in Today’s Environment http://www.seyfarth.com:80/publications/CP100317 Tue, 03 Oct 2017 00:00:00 -0500 <p> Seyfarth Synopsis: This post continues our blog series on the Future of Work, and discusses how, in California as elsewhere, performance management strategies continue to develop in response to the changing workplace. Access our prior Future of Work posts (on independent contractors in California and the effects of job automation) here and here.</p> <p> <a href="http://www.calpeculiarities.com/2017/10/03/future-of-work-iii-performance-management-in-todays-environment/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=66c9e9502e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-66c9e9502e-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE100317 Hazards Ahead: Uptick in Biometric Privacy Laws Can Put Employers in Hot Seat http://www.seyfarth.com:80/publications/FE100317 Tue, 03 Oct 2017 00:00:00 -0500 <p> A string of recent class action lawsuits regarding businesses&rsquo; use of employees&rsquo; biometric data should put employers on heightened alert regarding compliance with various state biometric privacy laws.</p> <p> <a href="https://www.futureemployer.com/blog/2017/10/3/hazards-ahead-uptick-in-biometric-privacy-laws-can-put-employers-in-hot-seat">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/GPW092817 Cybersecurity Best Practices http://www.seyfarth.com:80/publications/GPW092817 Tue, 03 Oct 2017 00:00:00 -0500 <p> When you bring to mind someone &ldquo;hacking&rdquo; a computer one of the images that likely comes up is a screen of complex code designed to crack through your security technology.&nbsp; Whereas there is a technological element to every security incident, the issue usually starts with a simple mistake made by one person.&nbsp;&nbsp; Hackers understand that it is far easier to trick a person into providing a password, executing malicious software, or entering information into a fake website, than cracking an encrypted network &mdash; and hackers prey on the fact that you think &ldquo;nobody is targeting me.&rdquo;</p> <p> <a href="http://www.globalprivacywatch.com/2017/09/cybersecurity-best-practices/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_campaign=36db693cf4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_96fbafbd4b-36db693cf4-73179561">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA100317-LE Active Shooter Response - Developing an Effective Policy http://www.seyfarth.com:80/publications/MA100317-LE Tue, 03 Oct 2017 00:00:00 -0500 <div> <p align="left"> <em><strong>Seyfarth Synopsis:</strong> Unfortunately,&nbsp; workplace violence&nbsp; is becoming an ever increasing liability in the workplace. Despite the presence of workplace violence prevention programs intended to avoid this hazard entirely within the workplace,&nbsp; it is becoming all to frequent that&nbsp; there may be an active shooter incident at the workplace. This Management Alert will provide a discussion of the elements&nbsp; of an effective active shooter policy as well as an example that can be used to develop an&nbsp; actual policy.&nbsp;&nbsp;</em></p> <p align="left"> <strong>INTRODUCTION</strong></p> <p> As the pace and emotional pressures of everyday life impact both employees at home and in the workplace, as well as unknown individuals (including terrorists), a distressing and tragic trend is occurring &mdash; employees and unknown individuals are unable to control their emotions at work or have ulterior criminal motives and violence erupts toward co-employees, customers or third parties.&nbsp; The unfortunate statistics show that homicide is the number one cause of death for women in the workplace and the third overall cause for men and women.&nbsp; In many cases, these acts of violence occur as employees face the prospect of lay-offs and corporate reorganizations in many industries.</p> <p> No employer wants such incidents to occur.&nbsp; Ironically, however, as employers struggle to avoid these potential legal liabilities through creation and enforcement of employment policies, they are met with a host of federal and state laws which may protect certain employee conduct.&nbsp; More importantly, since an employer has no objective &ldquo;litmus test&rdquo; for predicting which employee may become violent under particular triggering circumstances, there is no fool-proof way to effectively eliminate the hazard. Likewise, an employer cannot predict whether unknown individuals may decide to commit random acts of violence because of mental and emotional conditions or for misguided political or religious motivations.</p> <p align="left"> <strong>OSHA</strong></p> <p> Under OSHA&rsquo;s General Duty Clause, an employer is required to protect its employees against &ldquo;recognized hazards likely to cause serious injuries or death.&rdquo; As such, an employer should consider developing a workplace violence prevention and response policy.</p> <p> In developing its policy, the employer should, at minimum, include these elements:</p> <ul> <li style="margin-left: 1in;"> A stated management commitment to protecting employees against the hazards of workplace violence, including both physical acts and verbal threats;</li> <li style="margin-left: 1in;"> A statement that the employer has a &ldquo;zero tolerance&rdquo; policy toward threats or acts of violence and will take appropriate disciplinary action against employees who engage in such conduct;</li> <li style="margin-left: 1in;"> Identify means and methods for employees to notify the employer of perceived threats of violent acts in a confidential manner;</li> <li style="margin-left: 1in;"> Establish a means to promptly investigate all such threats or violent acts;</li> <li style="margin-left: 1in;"> Develop consistent, firm discipline for violations of the policy;</li> <li style="margin-left: 1in;"> Provide training to managers and employees to identify signs and symptoms of employee behavior which may predict potential violence (erratic behavior; employee comments regarding homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; physical evidence of employee abuse of alcohol or drug use) which should be reported to the employer;</li> <li style="margin-left: 1in;"> A non-retaliation policy for employees who report verbal and physical conduct to the employer which they reasonably believe represents a threat of potential workplace violence;</li> <li style="margin-left: 1in;"> Establish a team of qualified individuals (e.g. human resources; risk managers; legal; medical; security) either within the company or readily available third parties, to respond to a potential or actual incident; and</li> <li style="margin-left: 1in;"> Consider establishing an Employee Assistance Plan (EAP) to provide assistance to employees who may be experiencing mental or emotional stress before an act of violence occurs.</li> </ul> <p align="left"> <strong>ACTIVE SHOOTER EMERGENCY RESPONSE POLICY</strong></p> <p> Unfortunately, despite the fact that many employers have developed workplace violence prevention and response policies, there have tragically been instances where an &ldquo;<strong>active shooter</strong>&rdquo;, an employee or an unknown individual, has come to the premises and utilized a firearm to attempt to kill employees and other persons who may be at the workplace. In anticipation of such a possibility, the employer should consider developing an active shooter emergency response policy to inform employees of the three courses of action to take in such instance,</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>evacuate</strong></p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>hide out, or</strong></p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>self defense</strong></p> <p> and how to react when law enforcement arrives.</p> <p> The below policy sets out recommendations gathered from the Department of Homeland Security, the Federal Bureau of Investigation, other law enforcement agencies and recognized industry sources. Employer&rsquo;s should consider developing such a policy, utilizing the enclosure, while customizing it to the employer&rsquo;s worksite. We welcome comments on the policy. If an employer has an interest in receiving assistance in developing a policy or in conducting training the author and/or attorneys in the Firm&rsquo;s Workplace Safety and Environmental Group are available to provide such assistance.</p> </div> <p> <strong>ACTIVE SHOOTER EMERGENCY RESPONSE POLICY</strong></p> <p> <strong>PURPOSE</strong>:</p> <p> This policy is intended to provide guidance in the event an individual is actively shooting persons at the workplace and to comply with applicable regulations of the Occupational Safety and Health Administration (OSHA).</p> <p> <strong>POLICY</strong></p> <p> It is the policy of the Company to provide an active shooter emergency response plan to alert employees that an active shooter appears to be actively engaged in killing or attempting to kill people at the workplace.</p> <h4> DEFINITIONS:</h4> <p> For purposes of this Policy:&nbsp; An <strong>active shooter</strong> is defined as a person or persons who appear to be actively engaged in killing or attempting to kill people at the Company&rsquo;s premises. In most cases active shooters use a firearm(s) and display no pattern or method for selection of their victims. In some cases active shooters use other weapons and/or improvised explosive devices to cause additional victims and act as an impediment to police and emergency responders. These improvised explosive devices may detonate immediately, have delayed detonation fuses, or detonate on contact.</p> <h4> PROCEDURES:</h4> <p style="margin-left:.25in;"> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The first employee to identify an active shooter situation:</p> <p style="margin-left:.5in;"> As soon as possible, should call the Company emergency number (_________________) and announce a prearranged code (e.g., &ldquo;Active Shooter&rdquo;) (with the location of the incident) and a physical description of the person(s) with the weapon, and type of weapon, if known.</p> <p style="margin-left:.25in;"> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;The emergency operator upon notification will:</p> <p style="margin-left:.5in;"> Provide a public announcement &ldquo;Code __________ (and the location)&rdquo; on the public address system.</p> <p style="margin-left:.25in;"> 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The emergency operator or any employee who is at a location distant from the active shooter, such as in a different area or floor, will contact 911.</p> <p style="margin-left:.25in;"> 4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The phone call to 911 (from the area where the caller is safely concealed) should provide the following information to the police:</p> <p style="margin-left:.75in;"> a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Description of suspect and possible location.</p> <p style="margin-left:.75in;"> b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Number and types of weapons.</p> <p style="margin-left:.75in;"> c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Suspect&rsquo;s direction of travel.</p> <p style="margin-left:.75in;"> d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Location and condition of any victims</p> <p> <strong>POTENTIAL RESPONSES</strong></p> <p style="margin-left:.25in;"> In response to an active shooter event, there will be three potential courses of action 1) evacuate, 2) hide out, 3) self-defense. The following guidelines identify these courses of action:</p> <p> <strong>EVACUATE</strong></p> <p style="margin-left:.25in;"> If there is an accessible escape path, attempt to evacuate the premises, following these recommendations:</p> <ul> <li style="margin-left: 0.75in;"> Have an escape route and plan in mind</li> <li style="margin-left: 0.75in;"> Evacuate regardless of whether others agree to follow</li> <li style="margin-left: 0.75in;"> Leave your belongings behind</li> <li style="margin-left: 0.75in;"> Help others escape, if possible</li> <li style="margin-left: 0.75in;"> Prevent individuals from entering an area where the active shooter may be</li> <li style="margin-left: 0.75in;"> Keep your hands visible</li> <li style="margin-left: 0.75in;"> Follow the instructions of any police officers</li> <li style="margin-left: 0.75in;"> Do not attempt to move wounded people</li> <li style="margin-left: 0.75in;"> Call 911 when you are safe</li> </ul> <p style="margin-left: 0.25in; text-align: center;"> <strong>HID</strong><strong>E OUT</strong></p> <p style="margin-left:.25in;"> If evacuation is not possible, find a place to hide where the active shooter is less likely to find you, with these recommendations:</p> <p style="margin-left:.5in;"> The hiding place should:</p> <ul> <li style="margin-left: 1in;"> Be inconspicuous</li> <li style="margin-left: 1in;"> Be out of the active shooter&rsquo;s view</li> <li style="margin-left: 1in;"> Provide physical protection if shots are fired in your direction (e.g., locating into a bathroom and locking the door, staying as low to the floor as possible and remaining quiet and motionless)</li> <li style="margin-left: 1in;"> Not trap you or restrict your options for movement</li> </ul> <p style="margin-left:.5in;"> To prevent an active shooter from entering the hiding place:</p> <ul> <li style="margin-left: 1in;"> Lock the door</li> <li style="margin-left: 1in;"> Blockade the door with heavy furniture</li> </ul> <p style="margin-left:.25in;"> If the active shooter is nearby:</p> <ul> <li style="margin-left: 1in;"> Lock the door</li> <li style="margin-left: 1in;"> Silence cell phones and/or pagers</li> <li style="margin-left: 1in;"> Turn off any source of noise (i.e., radios, televisions)</li> <li style="margin-left: 1in;"> Hide behind large items (i.e., cabinets, desks)</li> <li style="margin-left: 1in;"> Remain quiet and motionless</li> </ul> <p style="text-align: center;"> <strong>SELF-DEFENSE</strong></p> <p style="margin-left:.5in;"> If it is not possible to evacuate or hide, then consider self-defense, with these recommendations:</p> <ul> <li style="margin-left: 1in;"> Remain calm</li> <li style="margin-left: 1in;"> Dial 911, if possible, to alert police to the active shooter&rsquo;s location</li> <li style="margin-left: 1in;"> If you cannot speak, leave the line open and allow the 911 dispatcher to listen</li> </ul> <p style="margin-left:.5in;"> Take action against the active shooter and only when you believe your life is in imminent danger, attempt to disrupt and/or incapacitate the active shooter as follows:</p> <ul> <li style="margin-left: 1in;"> Acting as aggressively as possible against him/her</li> <li style="margin-left: 1in;"> Throwing items and improvising weapons</li> <li style="margin-left: 1in;"> Yelling</li> <li style="margin-left: 1in;"> Commit yourself to defensive physical actions</li> </ul> <p style="text-align: center;"> <strong>LAW ENFORCEMENT RESPONSE</strong></p> <p> The police will arrive to respond to the emergency, follow these recommendations:</p> <p style="margin-left:.5in;"> 1. &nbsp; Comply with the police instructions. The first responding officers will be focused on stopping the active shooter and creating a safe environment for medical assistance to be brought in to aid the injured.</p> <p style="margin-left:.5in;"> 2.&nbsp;&nbsp; When the police arrive at your location:</p> <p style="margin-left:.75in;"> a)&nbsp;&nbsp; Remain calm, and follow officers&rsquo; instructions</p> <p style="margin-left:.75in;"> b)&nbsp;&nbsp; Put down any items in your hands (i.e., bags, jackets)</p> <p style="margin-left:.75in;"> c)&nbsp;&nbsp; Immediately raise your hands and spread your fingers</p> <p style="margin-left:.75in;"> d)&nbsp;&nbsp; Keep your hands visible at all times</p> <p style="margin-left:.75in;"> e)&nbsp;&nbsp; Avoid making quick movements toward officers such as attempting to hold on to them for safety</p> <p style="margin-left:.75in;"> f)&nbsp;&nbsp; Avoid pointing, screaming and/or yelling</p> <p style="margin-left:.75in;"> g)&nbsp;&nbsp; Do not stop to ask officers for help or direction when evacuating, just proceed in the direction from which officers are entering the area or to an area to which they direct you</p> <p style="margin-left:.75in;"> h)&nbsp;&nbsp; notify Company representatives that you have evacuated the premises</p> <p style="margin-left:.5in;"> 3.&nbsp;&nbsp; When the police arrive the following information should be available:</p> <p style="margin-left:.75in;"> a)&nbsp;&nbsp; Number of shooters</p> <p style="margin-left:.75in;"> b)&nbsp;&nbsp; Number of individual victims and any hostages</p> <p style="margin-left:.75in;"> c)&nbsp;&nbsp; The type of problem causing the situation</p> <p style="margin-left:.75in;"> d)&nbsp;&nbsp; Type and number of weapons possibly in the possession of the shooter</p> <p style="margin-left:.75in;"> e)&nbsp;&nbsp; All necessary Company representatives still in the area as part of the Company&rsquo;s emergency management response</p> <p style="margin-left:.75in;"> f)&nbsp;&nbsp; Identity and description of participants, if possible</p> <p style="margin-left:.75in;"> g)&nbsp;&nbsp; Keys to all involved areas as well as floor plans</p> <p style="margin-left:.75in;"> h)&nbsp;&nbsp; Locations and phone numbers in the affected area</p> <p style="margin-left: 0.25in; text-align: center;"> <strong>POST-INCIDENT ACTION</strong></p> <p> When the police have determined that the active shooter emergency is under control, the emergency operator will provide a public announcement that the emergency is over by using a prearranged Code (e.g., &ldquo;All Clear&rdquo;)</p> <p style="text-align: center;"> <strong>POLICE INVESTIGATION</strong></p> <p> After the police have secured the premises, the Company will arrange to have designated Management representatives participate in the law enforcement investigation of the incident, including identifying witnesses and providing requested documents.</p> <p style="text-align: center;"> <strong>MEDICAL ASSISTANCE</strong></p> <p> The Company will designate Management representatives who will engage with emergency responders who provide medical assistance to injured employees, including ensuring that all required medical benefit and insurance documentation is provided.</p> <p style="text-align: center;"> <strong>NOTIFICATION OF RELATIVES</strong></p> <p> The Company will designate Management representatives to notify relatives of any injured employees in a timely fashion.</p> <p style="text-align: center;"> <strong>OSHA</strong></p> <p> In the event that there is a fatality or one employee is hospitalized for treatment, OSHA must be notified. If there is a fatality, OSHA must be notified within eight (8) hours. In the event of a hospitalization of one employee for treatment, OSHA must be notified within twenty-four (24) hours. In addition, if the fatality or injury is work-related, the Company may have to record the incident on its OSHA 300 Log within seven (7) calendar days.</p> <p style="text-align: center;"> <strong>MEDIA</strong></p> <p> The Company will designate Management representatives who will respond to any media requests for information. Such representatives will carefully consider the nature of any such requests in order to avoid disclosing information about any person that is confidential and protected by Federal and state privacy and medical information laws and regulations and interfering with any ongoing police or internal Company investigation.</p> <p> <strong>REFERENCES:</strong></p> <p> US Department of Homeland Security Active Shooter-How to Respond, October 2008</p> <p> US Federal Bureau of Investigation Active Shooter Planning and Response in a Healthcare Setting, April 2015</p> <p> <strong>COORDINATION:</strong></p> <p> 1. This policy has been coordinated with the __________Police Department</p> <p style="margin-left:1.5in;"> &nbsp;</p> http://www.seyfarth.com:80/news/launeyshrm100317 Kristina Launey quoted in SHRM http://www.seyfarth.com:80/news/launeyshrm100317 Tue, 03 Oct 2017 00:00:00 -0500 <p> Kristina Launey was quoted in an October 3 story from SHRM, &quot;Gender Pay Gap Transparency Act: A Push for Equality or a Waste of Time?,&quot; on pending legislation awaiting Gov. Jerry Brown&rsquo;s signature or veto. Launey said that the legislation gives plaintiffs&#39; attorneys a road map to sue and burdens businesses with the task of data collection. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-gender-pay-gap-transparency-act.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/reyesfra100317 Seyfarth Partner Juan Reyes Appointed Chief Counsel of Federal Railroad Administration http://www.seyfarth.com:80/news/reyesfra100317 Tue, 03 Oct 2017 00:00:00 -0500 <p> NEW YORK (October 3, 2017) - Seyfarth Shaw LLP announced today that Juan D. Reyes, partner from the firm&rsquo;s Real Estate department in New York, has been appointed as Chief Counsel of the Federal Railroad Administration (FRA), the agency within the U.S. Department of Transportation responsible for the development of the country&rsquo;s passenger and freight rail systems. As the principal legal advisor to the FRA, Reyes will manage a legal department of 50 attorneys and provide executive direction to its two other divisions, the general law division and the safety law division.</p> <p> The FRA is responsible for all safety regulations, legislation, research and development, as well grant and loan programs for both passenger and railroad infrastructure. As Chief Counsel, Reyes will assist the United States in upgrading its passenger and freight rail systems. This includes the $24 billion Northeast corridor improvement project, as well as high speed rail infrastructure projects in California and Texas. In addition, there are currently plans for the FRA to redevelop the railroad stations in six major U.S. markets, including Chicago, New York City, Philadelphia, Boston and Baltimore.</p> <p> Reyes will also play a critical role in reviewing and advising on Elon Musk&rsquo;s proposed &ldquo;Hyperloop,&rdquo; which envisions low-pressure passenger tubes that travel at speeds of up to 700 mph in markets like California and routes like New York to Washington, D.C., which would drastically reduce travel times.</p> <p> On Capitol Hill, Reyes will assist the Department of Transportation, Congress and the White House with a bipartisan infrastructure bill to modernize the United States and make it competitive with other developed countries. In this role, he will provide critical advice and counseling on public-private partnerships expected to range in the billions of dollars.</p> <p> At Seyfarth, Reyes concentrated his practice on land use, development, and permitting, with particular experience in zoning, planning, landmark and building code matters, and governmental approvals. He was also a leader in the firm&rsquo;s Public-Private Partnerships (P3) practice.</p> <p> &ldquo;Juan has been an outstanding partner and colleague, and he brings tremendous skill and experience to his new post in the nation&rsquo;s capital,&rdquo; said Paul Mattingly, chair of Seyfarth&rsquo;s Real Estate department. &ldquo;He possesses the energy, insight and leadership to carefully guide the FRA legal department in support of its important mission.&rdquo;</p> <p> &ldquo;We are proud that Juan has the opportunity to serve and shape the future of the country&rsquo;s storied rail system,&rdquo; said Lorie Almon, co-managing partner of Seyfarth&rsquo;s New York office. &ldquo;He&rsquo;s a dynamic and talented lawyer who will serve the country well.&rdquo;</p> <p> &ldquo;Juan is one of the most accomplished lawyers in the country for managing the complexities of large projects, and he will serve the FRA and USDOT well as chief counsel,&rdquo; said John Napoli, co-managing partner of Seyfarth&rsquo;s New York office.</p> <p> Prior to joining Seyfarth, Reyes held a variety of government roles during his career. He served as general counsel to the New York City Board of Standards and Appeals. He also served as counsel to the New York City Loft Board, Office of the Mayor, and served on the Association of the Bar of the City of New York&rsquo;s Zoning Committee and Housing and Urban Development Committee.</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> http://www.seyfarth.com:80/news/maechtlen100217 Seyfarth Appoints Laura Maechtlen as Chair of Labor & Employment Department http://www.seyfarth.com:80/news/maechtlen100217 Mon, 02 Oct 2017 00:00:00 -0500 <p> SAN FRANCISCO (October 2, 2017) -- Seyfarth Shaw LLP today announced that Laura Maechtlen has been named chair of the firm&rsquo;s Labor &amp; Employment department, after serving as vice-chair since January 2016.</p> <p> With more than 425 lawyers across the country, Seyfarth&rsquo;s Labor &amp; Employment department is the firm&rsquo;s largest, representing companies of all sizes in today&rsquo;s most complex and strategic workplace legal matters.</p> <p> A partner in the San Francisco office and seasoned employment litigator, Maechtlen focuses her practice on employment litigation, including the defense of class, collective and multi-plaintiff actions.</p> <p> &ldquo;It&rsquo;s a tremendous honor and privilege to serve the firm and my colleagues,&rdquo; said Maechtlen. &ldquo;I look forward to upholding our longstanding reputation as the top employment law firm in the country, while also evolving our services to meet the demands of clients operating at the forefront of the future of work. It&rsquo;s an exciting time to be leading such a talented group of lawyers.&rdquo;</p> <p> Earlier this year, Maechtlen led the development of the firm&rsquo;s <a href="https://www.futureemployer.com/">Future Employer</a> initiative, launching a new collaborative community for the firm&rsquo;s clients where they can share new and emerging legal issues related to the future of work. She was previously named as one of five employment attorneys to <em>Law360&#39;s</em> &ldquo;Rising Stars&rdquo; list, as well as a &ldquo;Top 75 Employment Litigators&rdquo; and &ldquo;Top Leading Labor and Employment Lawyers In California&rdquo; by the <em>Daily Journal</em>.</p> <p> &ldquo;Laura is both a highly respected lawyer and leader who has proven herself through a variety of leadership roles inside the firm and out,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;As a firm dedicated to diversity and inclusion, we are proud to welcome an &lsquo;out&rsquo; woman of color to our leadership ranks. Laura is perfectly positioned to take our Labor &amp; Employment department to new heights. I congratulate her and look forward to her continued leadership.&rdquo;</p> <p> A well-recognized advocate and champion of diversity in the legal industry, Maechtlen was recently identified in <em>The Huffington Post</em> as one of the &ldquo;business world&rsquo;s own New Supermodels &mdash; out women in business who identify as LGBT+ and are kicking it.&rdquo; At Seyfarth, she serves as co-chair of its Diversity &amp; Inclusion Action Team. Outside the firm, she has served as the president of the national LGBT Bar Association, co-chair of the California Minority Counsel Program, and in leadership roles with the National Hispanic Bar Association. Maechtlen was also an inaugural Fellow of the Leadership Council for Legal Diversity.</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/babsonlaw360100217 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360100217 Mon, 02 Oct 2017 00:00:00 -0500 <p> Marshall Babson was quoted in an October 2 story from Law360, &quot;Supreme Court Seems Split As It Mulls Class Waiver Ban,&quot; on the U.S. Supreme Court tackling whether employment agreements forcing workers to sign away their rights to pursue class action claims are legal.</p> http://www.seyfarth.com:80/news/babsonbna100217 Marshall Babson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/babsonbna100217 Mon, 02 Oct 2017 00:00:00 -0500 <p> Marshall Babson was quoted in an October 2 story from Bloomberg BNA, &quot;Class Action Waiver Disputes Get Their Day in High Court,&quot; on the U.S. Supreme Court hearing oral arguments on whether employers can enforce employment agreements that bar employees from pursuing employment-related claims in class or collective lawsuits or arbitrations. Babson said that, if employers are forced to allow employees to use a forum with class or collective action procedures, the cases will go into federal or state courts and there will be a flood of new cases pressing wage and hour claims and other issues.</p> http://www.seyfarth.com:80/publications/napolimeilmangli100217 John Napoli and Roy Meilman authored a chapter in Global Legal Insights http://www.seyfarth.com:80/publications/napolimeilmangli100217 Mon, 02 Oct 2017 00:00:00 -0500 <p> John Napoli and Roy Meilman authored a chapter in Global Legal Insights Commercial Real Estate 2018, &quot;U.S. tax aspects of foreign investment in U.S. real estate.&quot; You can read the <a href="https://www.globallegalinsights.com/practice-areas/real-estate-laws-and-regulations/usa/?socialmedia#chaptercontent1">full chapter here</a>.</p> http://www.seyfarth.com:80/publications/launeyhospitalitylaw100117 Kristina Launey authored an article in Hospitality Law http://www.seyfarth.com:80/publications/launeyhospitalitylaw100117 Sun, 01 Oct 2017 00:00:00 -0500 <p> Kristina Launey authored an October 1 article in Hospitality Law, &quot;New York judges refuse to dismiss website accessibility cases.&quot; The article discusses a recent suit against Five Guys restaurant that claims violations of the ADA.</p> http://www.seyfarth.com:80/publications/sotopeterspclr100117 Marjorie Clara Soto and Kristen Peters authored article in Privacy & Cybersecurity Law Report http://www.seyfarth.com:80/publications/sotopeterspclr100117 Sun, 01 Oct 2017 00:00:00 -0500 <p> Marjorie Clara Soto and Kristen Peters authored an October 1 article in Privacy &amp; Cybersecurity Law Report, &quot;Scary as Dinosaurs: California&rsquo;s Genetic Information Discrimination Code.&quot; The article discusses what employers can do to comply with the California Genetic Information Nondiscrimination Act. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Soto_Peters_Oct2017.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/wc093017 Tick, Tock….The EEOC Runs Out The Clock – Fiscal Year 2017 Marks A Last Minute Return To Frantic Filing http://www.seyfarth.com:80/publications/wc093017 Sat, 30 Sep 2017 00:00:00 -0500 <p> With uncertain times and profound changes anticipated for the EEOC, employers anxiously await what enforcement litigation the EEOC has in store. Although 2016 showed a marked decline in filings, fiscal year 2017 shows a return to vigorous enforcement filings, with a substantial number of filings in the waning days of the fiscal year.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/tick-tock-the-eeoc-runs-out-the-clock-fiscal-year-2017-marks-a-last-minute-return-to-frantic-filing/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=1b3e3c0b87-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-1b3e3c0b87-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA092917-LE2 If Pain, Yes Gain—Part XXXVI: Minnesota Court of Appeals Clarifies Minneapolis Paid Sick Leave Ordinance http://www.seyfarth.com:80/publications/MA092917-LE2 Fri, 29 Sep 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Last week, the Minnesota Court of Appeals upheld the Minneapolis Sick and Safe Time Ordinance, but ruled that it cannot be enforced against nonresident employers.&nbsp; Barring reversal on appeal to the Minnesota Supreme Court, this decision provides useful guidance for employers, at least until the case is heard on the merits.</em></p> <p> On September 18, 2017, the Minnesota Court of Appeals affirmed the Minnesota Hennepin County District Court&rsquo;s January 19, 2017 order, which granted in part and denied in part the Minnesota Chamber of Commerce&rsquo;s (the &ldquo;Chamber&rdquo;) motion for a temporary injunction against the enforcement of the Minneapolis Sick and Safe Time Ordinance (&ldquo;SSTO&rdquo;).&nbsp; By doing so, the Court of Appeals allowed the SSTO to remain in effect, finding that it is not preempted by existing state law, and maintained that the SSTO, at least temporarily, should not be enforced against nonresident employers, i.e., employers located outside of the Minneapolis geographic city boundaries.&nbsp; While the City of Minneapolis or the Chamber could appeal the decision to the Minnesota Supreme Court, the Court of Appeals&rsquo; decision serves as strong judicial guidance in interpreting the SSTO until any forthcoming hearing on the merits of the case. &nbsp;</p> <p> A key aspect of the Court of Appeals&rsquo; decision was affirming that the SSTO was not preempted by Minnesota&rsquo;s kin care law, Minn. Stat. &sect; 181.9413 (2016).&nbsp; The Minnesota kin care law requires employers with 21 or more employees to allow their employees to use the personal/sick leave benefits provided by the employer for safety leave and to care for certain relatives.&nbsp; In contrast, the SSTO requires that employers provide paid sick leave benefits to eligible employees if the employers have six or more employees.&nbsp;</p> <p> The Court of Appeals, in holding that the SSTO is not preempted by state law, rejected the Chamber&rsquo;s argument that the SSTO is irreconcilable with the state kin care law because it &ldquo;impliedly permits employers to decline to provide leave benefits to employees.&rdquo;&nbsp; The Court reasoned that the SSTO is not preempted because an employer would not violate the state kin care law by providing the leave benefits required by the SSTO.&nbsp; Accordingly, unless the court holds otherwise when deciding the case on the merits or the Court of Appeals decision is reversed on appeal, the SSTO is valid and enforceable. &nbsp;</p> <p> The Court of Appeals also upheld the District Court&rsquo;s holding that temporarily blocked enforcement of the SSTO against &ldquo;any employer resident outside&rdquo; the Minneapolis geographic boundaries.&nbsp; The Court viewed the SSTO&rsquo;s application to employers with at least one employee who works in Minneapolis for at least 80 hours in a year to be a provision with &ldquo;extraterritorial&rdquo; effects, at least at this stage of the litigation.&nbsp; The Court noted, citing supportive case law, that generally &ldquo;the power and jurisdiction of the city are confined to its own limits and to its own internal concerns.&rdquo;&nbsp; The District Court determined that if the SSTO were enforced against nonresident employers before a hearing on the merits of the case, employers would be harmed by &ldquo;expend[ing] substantial time and resources . . . in order to comply with [the Ordinance] mandates.&rdquo; Meanwhile, the city was unlikely to suffer &ldquo;substantial harm from a temporary injunction&rdquo; because the SSTO will not be rigorously enforced until July 1, 2018.&nbsp; Therefore, until a decision is reached on the merits of the case, and barring reversal of the Court of Appeals decision, the City of Minneapolis cannot enforce the SSTO against nonresident employers. &nbsp;</p> <p> The SSTO, which took effect on July 1, 2017, requires employers with six or more full-time, part-time, or temporary employees to provide employees with paid sick time.&nbsp; Eligible employees accrue paid sick time at the rate of one hour of leave for every 30 hours worked, up to a maximum of 48 hours per year.&nbsp; Employers following an accrual system must allow employees to carry-over their accrued, unused paid sick time to the following year.&nbsp; The SSTO, however, permits employers to limit the total amount of unused paid sick time in an employee&rsquo;s bank to 80 hours.&nbsp; Employees may use the paid sick time for their or their family members&rsquo; needs relating to physical or mental health, certain absences related to domestic abuse, sexual assault, and stalking, and certain school and workplace closings.&nbsp; For more information on the Minneapolis SSTO, see our earlier post <a href="http://www.seyfarth.com/publications/MA060716-LE">here</a>.&nbsp; &nbsp;</p> <p> To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.&nbsp; With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally.&nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/MA092917-LE Paltry Prerequisites for PAGA Penalty Paystub Plaintiffs http://www.seyfarth.com:80/publications/MA092917-LE Fri, 29 Sep 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>California employees who are denied adequate wage statements (&ldquo;paystubs&rdquo;) can sue for penalties. Paystub penalty plaintiffs generally must prove they suffered an &ldquo;injury&rdquo; caused by the employer&rsquo;s &ldquo;knowing and intentional failure&rdquo; to provide an adequate paystub. But now the Court of Appeal, Lopez v. Friant&nbsp; &amp; Associates, LLC, holds that penalty-seeking employees can circumvent these proof requirements by suing for paystub penalties under PAGA. It remains unclear if PAGA plaintiffs are entitled to the default penalties that PAGA provides or instead must be satisfied with certain pre-existing civil penalties. </em></p> <p> <strong>PAGA Background</strong></p> <p> The California Legislature, with its extremely dour view of employers, has promulgated hundreds of Labor Code provisions that closely regulate virtually every aspect of the employment relationship, all with the stated goal of protecting employees against abusive employers. And, convinced that too many employers get away with too much, the Legislature has assigned a large civil penalty for virtually every Labor Code violation. To induce employer compliance, the Legislature, in the Labor Code Private Attorneys General Act of 2004 (&ldquo;PAGA&rdquo;), assigned a default penalty for each Labor Code violation for which a civil penalty was not already provided.</p> <p> At the same time, convinced that the California Labor Commissioner lacked enough resources to prosecute Labor Code violations vigorously, the Legislature deputized &ldquo;aggrieved&rdquo; employees to sue in the Labor Commissioner&rsquo;s stead. A PAGA plaintiff can sue an employer for the civil penalty previously provided or can sue for the PAGA default civil penalty of $100 per aggrieved employee per pay period (or $200 per employee per pay period for repeat offenders).</p> <p> <strong>The <em>Lopez </em>Case</strong></p> <p> Labor Code section 226(a) specifies nine ways employers may violate their duty to provide itemized paystubs. Section 226(e)(1) provides that an employee &ldquo;suffering injury&rdquo; as a result of an employer&rsquo;s &ldquo;knowing and intentional failure&rdquo; to comply with Section 226(a) can recover the greater of actual damages or $50 for the first pay period in which the violation occurs and $100 for each further pay period, up to a maximum &ldquo;aggregate penalty&rdquo; of $4,000 per employee.</p> <p> Meanwhile, Labor Code section 226.3 provides for a &ldquo;civil penalty&rdquo; for violations of Section 226(a): $250 per employee per violation for an initial citation, and $1,000 per employee for each violation in a further citation.</p> <p> Eduardo Lopez claimed that his employer, Friant &amp; Associates, LLC, violated Section 226 by failing to include his Social Security Number or his employee identification number on his itemized wage statements. Friant acknowledged that it had inadvertently issued wage statements without such a number, and promptly resolved the problem.</p> <p> That was not enough for Lopez. He sought penalties. He pursued a claim solely under PAGA, rather than seeking penalties under Section 226(e). The trial court granted Friant&rsquo;s motion for summary judgment because Lopez failed to show the &ldquo;knowing and intentional&rdquo; violation that Section 226(e)(1) requires.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> On appeal, Lopez argued that Section 226(e)&rsquo;s proof prerequisites do not apply in a PAGA action, and the Court of Appeal agreed. The Court of Appeal reasoned that Section 226(e) describes a claim for damages and &ldquo;statutory penalties,&rdquo; while Lopez was suing under PAGA for &ldquo;civil penalties.&rdquo; Because Lopez was making a &ldquo;civil penalty&rdquo; claim distinct from a Section 226(e) &ldquo;statutory penalty&rdquo; claim, he did not have to prove he &ldquo;suffer[ed] injury&rdquo; because of Friant&rsquo;s &ldquo;knowing and intentional failure&rdquo; to provide a compliant wage statement. To buttress its point, the Court of Appeal observed that the Labor Code, in discussing the procedural requirements for a PAGA suit, does not refer to Section 226(e) but does refer to Section 226(a). The Court of Appeal thus concluded that Lopez can sue for PAGA penalties without establishing the &ldquo;injury&rdquo; and &ldquo;knowing and intentional&rdquo; elements of a Section 226(e) claim.</p> <p> <strong>What <em>Lopez</em> Means For Employers </strong></p> <p> <em>Lopez </em>makes worse what was bad enough already. Employers already were subject to draconian penalties for trivial imperfections in paystubs that often are inadvertent and cause no real harm to anyone. Now &ldquo;aggrieved employees,&rdquo; under PAGA, can seek penalties even while admitting they have suffered no injury at all, and even while admitting that the employer&rsquo;s technical mistake was neither knowing nor intentional. <em>Lopez</em>, if not corrected by the Legislature or the California Supreme Court, will doubtless inspire even more paystub suits, achieving no real benefit while simply benefiting opportunistic plaintiffs&rsquo; attorneys.</p> <p> An issue that<em> Lopez </em>leaves open is whether successful PAGA paystub plaintiffs recover the default PAGA penalty ($100 or $200 per employee per pay period) or the pre-existing civil penalty that Section 226.3 provides for paystub violations. In either event, the employer would be deprived of the $4,000 per-employee cap of Section 226(e).</p> <p> Meanwhile, <em>Lopez </em>obviously reinforces the need to regularly review wage statements to ensure that they fully comply with Section 226(a).</p> http://www.seyfarth.com:80/news/boutrosapp092917 Andrew Boutros quoted in the Asbury Park Press http://www.seyfarth.com:80/news/boutrosapp092917 Fri, 29 Sep 2017 00:00:00 -0500 <p> Andrew Boutros was quoted in a September 29 story from the Asbury Park Press, &quot;Sex on campus: Schools want students to say &#39;Yes&#39;.&quot; As chairman of the American Bar Association&#39;s Criminal Justice Section Task Force on College Due Process Rights and Victim Protections, Boutros said the federal guidelines that told schools how to handle cases of alleged sexual misconduct was a process that was frankly broken, broken on both sides. You can read the <a href="http://www.app.com/story/news/education/education-trends/2017/09/29/saying-yes-sex-college-reports-sex-crimes-up-nj-schools/549688001/">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonbloomberg092917 Marshall Babson quoted in Bloomberg http://www.seyfarth.com:80/news/babsonbloomberg092917 Fri, 29 Sep 2017 00:00:00 -0500 <p> Marshall Babson was quoted in a September 29 story from Bloomberg, &quot;California Helps Workers Sue Their Bosses. New York Has Noticed, &quot; on how the U.S. Supreme Court will consider whether employees have the right to bring class actions against their bosses. Babson said that the court may decide to treat PAGA claims the same way as other suits filed by employees. You can read the <a href="https://www.bloomberg.com/news/articles/2017-09-29/california-helps-workers-sue-their-bosses-new-york-has-noticed">full article here</a>.</p> http://www.seyfarth.com:80/news/stevensshrm092817 Michael Stevens quoted in SHRM http://www.seyfarth.com:80/news/stevensshrm092817 Thu, 28 Sep 2017 00:00:00 -0500 <p> Michael Stevens was quoted in a September 28 story from SHRM, &quot;Calif. Harassment Training May Add Gender Identity and Sexual Orientation,&quot; on ho state lawmakers sent S.B. 396 to the governor for signature or veto. Stevens said that S.B. 396 would add a requirement for employers to provide practical training to supervisors to prevent harassment of lesbian, gay, bisexual and transgender (LGBT) employees&mdash;as well as those who are perceived as LGBT. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-sexual-harassment-training-lgbt.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellilaw360092817 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparellilaw360092817 Thu, 28 Sep 2017 00:00:00 -0500 <p> Angelo Paparelli was quoted in a September 28 story from Law360, &quot;What GCs Should Know About The Latest Travel Ban,&quot; on how the President&#39;s newest travel ban, which places restrictions on immigrants and visitors to the United States from eight countries, could limit hiring, promoting, business-related trips and other travel for companies that employ individuals around the world. Paparelli said that companies should ensure all required recording keeping is maintained in a way that it can be turned over to the government if requested.</p> http://www.seyfarth.com:80/news/passantinoshrm092817 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passantinoshrm092817 Thu, 28 Sep 2017 00:00:00 -0500 <p> Alex Passantino was quoted in a September 28 story from SHRM, &quot;SHRM: Exempt Overtime Threshold Should Be Nearly $32,000,&quot; on how SHRM says the 2004 overtime regulation methodology should be used again. Passantino authored the Partnership to Protect Workplace Opportunity&#39;s (PPWO) comments which seek to inform the department&#39;s efforts to set a new salary threshold in an economically responsible way. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/overtime-rule-rfi-shrm-comments.aspx?widget=mostpopular1">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezbna092817 Leon Rodriguez quoted in Bloomberg BNA http://www.seyfarth.com:80/news/rodriguezbna092817 Thu, 28 Sep 2017 00:00:00 -0500 <p> Leon Rodriguez was quoted in a September 28 story from Bloomberg BNA, &quot;Want a Green Card? New Interview Process Could Create Headaches,&quot; on how immigrants seeking employment-based green cards from within the U.S. will soon have to appear for an in-person interview. Rodriguez said that he was a little bit mystified as to why the employment-based green card is the first place they went for interviews and said this group of immigrants has never been a particularly high-risk segment of the immigration world.</p> http://www.seyfarth.com:80/publications/ERISA092817 Penn Succeeds in Dismissing Retirement Plan Proposed Class Action http://www.seyfarth.com:80/publications/ERISA092817 Thu, 28 Sep 2017 00:00:00 -0500 <p> On September 21, 2017, the Eastern District of Pennsylvania ruled in favor of the University of Pennsylvania on every count in a proposed class action, which challenged the school&rsquo;s retirement plan fees, investment lineup, and use of multiple plan record keepers. The proposed class action specifically alleged that both Penn and the administrator of its defined contribution retirement plan breached their fiduciary duty by &ldquo;locking in&rdquo; participants&rsquo; options to two investment companies, allowed the plan to pay too much in administrative fees, and charged excessive investment fees for access to an underperforming portfolio.</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/09/28/penn-succeeds-in-dismissing-retirement-plan-proposed-class-action/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=6b8f733086-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-6b8f733086-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wse092817 Time is Running Out to Plan for Your Company’s Compliance With New ISO 14001 EMS Standards http://www.seyfarth.com:80/publications/wse092817 Thu, 28 Sep 2017 00:00:00 -0500 <p> The new ISO standard brings significant change that will require considerable time and thought to implement. Due to the timing, the strategy should focus on implementing the EMS to address the greatest &ldquo;gaps&rdquo; and developing the &ldquo;hard proof&rdquo; of its effectiveness within your organization.</p> <p> <a href="http://www.environmentalsafetyupdate.com/environmental-compliance/time-is-running-out-to-plan-for-your-companys-compliance-with-new-iso-14001-ems-standards/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=b23219124f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-b23219124f-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR092817 NLRB Rounding Into Shape http://www.seyfarth.com:80/publications/LR092817 Thu, 28 Sep 2017 00:00:00 -0500 <p> The National Labor Relations Board took another big step away from the Obama-era Board composition earlier this week as William J. Emanuel gained Senate approval and was subsequently sworn in as the fifth and final (for now) Board member.&nbsp; Mr. Emanuel brings extensive management-side experience to the Board, and he will be the third Republican member on the Board, giving Republicans a 3-2 majority over Democrats for the first time in over a decade.</p> <p> <a href="http://www.employerlaborrelations.com/2017/09/28/nlrb-rounding-into-shape/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=77c8e18385-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-77c8e18385-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL082817 Sleeping On the Job… Again? Second New York Appellate Court Finds Home Healthcare Employees Entitled to Pay for all 24 Hours on an Overnight Shift http://www.seyfarth.com:80/publications/EL082817 Thu, 28 Sep 2017 00:00:00 -0500 <p> Seyfarth Synopsis: The Supreme Court of the State of New York, Appellate Division, Second Judicial Department (&ldquo;Second Department&rdquo;) joined the First Department in finding that home healthcare employees who work 24-hour shifts are entitled to pay for all hours present in a client&rsquo;s home, including sleeping and meal periods.&nbsp; With this holding, the Second Department became the second appellate court in New York to reject the previously accepted interpretation of New York law, consistent with federal law, that allowed employers to pay home health care employees for 13 hours out of a 24-hour shift, so long as specified meal and sleep periods were provided.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/09/sleeping-on-the-job-again-second-new-york-appellate-court-finds-home-healthcare-employees-entitled-to-pay-for-all-24-hours-on-an-overnight-shift/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=54d484b9df-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-54d484b9df-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT092917 The Week in Weed: September 29, 2017 http://www.seyfarth.com:80/publications/TBT092917 Thu, 28 Sep 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.</p> <ul> <li> <a href="http://openalerts.ozmosys.com/oadev/oat.php?zg=121&amp;zt=44764933&amp;zu=http://www.newsweek.com/marijuana-los-angeles-california-legalization-weed-671171">L.A. Approves Marijuana Rules for Recreational Dispensaries</a><br /> (Newsweek: All News, 26 September 2017)</li> </ul> <p> <a href="http://www.blunttruthlaw.com/2017/09/the-week-in-weed-september-29-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=cf194892ee-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-cf194892ee-73179537">Read the full blog post</a></p> http://www.seyfarth.com:80/publications/wse092717 Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know http://www.seyfarth.com:80/publications/wse092717 Wed, 27 Sep 2017 00:00:00 -0500 <p> A recent active shooter incident at an international airport illustrates both how quickly an incident may be over, yet how ancillary impacts take much longer to resolve. While the shooter was apprehended in less than two minutes, the international airport was shut down for most of a full day, impacting over 500 employees and 10,000 customers, and 20,000 personal items were lost. The after-action report offers some lessons learned.</p> <p> <a href="http://www.environmentalsafetyupdate.com/workplace-violence/airport-active-shooter-incident-what-can-happen-in-just-15-seconds-and-what-business-needs-to-know/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=b23219124f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-b23219124f-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC092717 EEOC Ordered To Pay $1.9 Million For Frivolous Claims Against Trucking Company http://www.seyfarth.com:80/publications/WC092717 Wed, 27 Sep 2017 00:00:00 -0500 <p> In the latest chapter of the ongoing legal battle between the EEOC and delivery company CRST Van Expedited regarding the agency&rsquo;s sexual harassment claims, a federal district court ordered the EEOC to pay $1.9 million in attorneys&rsquo; fees to the company for pursuing claims that it knew or should have known were frivolous.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/eeoc-ordered-to-pay-1-9-million-for-frivolous-claims-against-trucking-company/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM092717-EB "It all sounds very reasonable..." New SEC Guidance Emphasizes Reasonableness and Flexibility in CEO Pay Ratio Disclosure http://www.seyfarth.com:80/publications/OMM092717-EB Wed, 27 Sep 2017 00:00:00 -0500 <div> On September 21, 2017, the Securities and Exchange Commission (the &ldquo;SEC&rdquo;) published an <a href="https://www.sec.gov/news/press-release/2017-172">interpretative release and related compliance and disclosure interpretations (&ldquo;C&amp;DIs&rdquo;)</a> for registrants regarding the CEO pay ratio disclosure rule, one of the widely publicized (and much maligned) requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act (&ldquo;Dodd-Frank&rdquo;). The SEC&rsquo;s overarching message in this interpretive guidance and staff guidance is &ldquo;Be reasonable,&rdquo; accompanied by the acknowledgment of some &ldquo;degree of imprecision&rdquo; in ascertaining pay ratios.&nbsp;</div> <div> &nbsp;</div> <div> The pay ratio disclosure rule, which was added to Item 402(u) of Regulation S-K by Section 953(b) of Dodd-Frank, requires a registrant to disclose the ratio of its principal executive officer&rsquo;s compensation to its median employee&rsquo;s compensation. Expounding on its <a href="http://www.seyfarth.com/publications/MA082815-CORP">August 2015 instructions and release accompanying the final pay ratio disclosure rule</a>, the SEC&rsquo;s recently published interpretive release, C&amp;DIs, and staff guidance underscores registrants&rsquo; flexibility in identifying the median employee and calculating that employee&rsquo;s compensation for the year, so long as any assumptions are based on reasonable foundations consistent with the final rule and made in good faith.&nbsp;</div> <div> &nbsp;</div> <div> Specifically, registrants can use reasonable beliefs, estimates, assumptions, methodologies and statistical sampling in determining median employee compensation, including:</div> <div> &nbsp;</div> <ul> <li> Using existing internal records that are reasonably reflective of annual compensation, such as payroll or tax records, to determine median compensation (even if the records do not account for all aspects of compensation), as well as to determine if its non-US population is de minimis (5% or less of total employees) and thus excludable.&nbsp;</li> <li> Ascertaining whether an individual is an independent contractor according to another &ldquo;widely recognized test&rdquo; (e.g., the 20-factor test commonly used by the IRS)&mdash;despite the fact that Item 402(u) contains its own definition of &ldquo;employees&rdquo; who must be taken into account for purposes of determining the median employee.&nbsp;</li> </ul> <div> &nbsp;</div> <div> In its staff guidance released at the same time as the interpretive guidance, the SEC&rsquo;s Division of Corporation Finance offers questions and examples to illustrate how a registrant can use estimates, statistical sampling and other reasonable methodologies (alone or in combination) to identify its median employee and to calculate that employee&rsquo;s annual total compensation for purposes of determining the ratio to be disclosed. The SEC notes that the pay ratio disclosure rule does not mandate any particular technique to determine the population of employees from which a registrant must identify the median employee. For example, a registrant may consider statistical methods such as making distributional assumptions (e.g., assuming a lognormal distribution), as well as methods to impute or adjust for missing data and to account for outlying data points. The new guidance emphasizes that if a company does not use annual total compensation to identify its median employee, that any alternative measure must be consistently applied and reasonably reflect the annual compensation of employees.</div> <div> &nbsp;</div> <div> <em>Note that the CEO pay ratio disclosure is required in proxies for fiscal years beginning on or after January 1, 2017. Despite a commitment by the SEC to revisit prior guidance related to this disclosure requirement, as well as ongoing Congressional attempts to repeal the associated section of Dodd-Frank, registrants should now be strategizing on how to comply with the new requirement, including the options for navigating disclosure challenges.</em></div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/shermancnbc092717 Andrew Sherman quoted in CNBC.com http://www.seyfarth.com:80/news/shermancnbc092717 Wed, 27 Sep 2017 00:00:00 -0500 <p> Andrew Sherman was quoted in a September 27 story from CNBC.com, &quot;Before tax reform: 1 in 5 small-business owners don&#39;t even know their tax rate,&quot; on how small-business owners will be digging into details of the tax-reform plan that GOP leaders and the President will officially announce. Sherman said that knowing the tax code and tax credits, both at a federal or local level, is important for business owners who want to be rewarded for following IRS guidance. You can read the <a href="https://www.cnbc.com/2017/09/27/irs-audit-alert-1-in-5-business-owners-doesnt-know-tax-rate.html">full article here</a>.</p> http://www.seyfarth.com:80/news/livingstonbloomberg092617 Brad Livingston quoted in Bloomberg http://www.seyfarth.com:80/news/livingstonbloomberg092617 Tue, 26 Sep 2017 00:00:00 -0500 <p> Brad Livingston was quoted in a September 26 story from Bloomberg, &quot;Fire NFL Players for Protesting? Union Deals Make That Unlikely.&quot; Livingston said that if owners wanted to crack down on unionized athletes protesting during the national anthem, they would need to show some concrete way it was hurting them. You can read the <a href="https://www.bloomberg.com/news/articles/2017-09-26/fire-nfl-players-for-protesting-union-deals-make-that-unlikely">full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarthlaw360092617 Seyfarth's comments published in Law360 http://www.seyfarth.com:80/news/seyfarthlaw360092617 Tue, 26 Sep 2017 00:00:00 -0500 <p> Seyfarth&#39;s comments were published in a September 26 story from Law360, &quot;OT Rule Comments Show Sharp Divide On Salary Threshold.&quot; Seyfarth said that establishing different salary levels based on geographic area, employer size or industry would also require the DOL to set rules for assessing when an employer or employee is working in a particular geographic area or industry, or how employer size should be determined.</p> http://www.seyfarth.com:80/news/devata092617 Pam Devata quoted in Legal Newsline http://www.seyfarth.com:80/news/devata092617 Tue, 26 Sep 2017 00:00:00 -0500 <p> Pam Devata was quoted in a September 26 story from Legal Newsline, &quot;Spokeo case may return to U.S. Supreme Court after Ninth Circuit ruling about concrete harm, attorney says.&quot; Devata said that there is a high possibility that an FCRA case dealing with concrete harm will likely go to the Supreme Court. You can read the <a href="http://legalnewsline.com/stories/511228404-spokeo-case-may-return-to-u-s-supreme-court-after-ninth-circuit-ruling-about-concrete-harm-attorney-says">full article here</a>.</p> http://www.seyfarth.com:80/news/maechtlenhpc092617 Laura Maechtlen profiled in High Performance Counsel http://www.seyfarth.com:80/news/maechtlenhpc092617 Tue, 26 Sep 2017 00:00:00 -0500 <p> Laura Maechtlen was profiled in a September 26 story from High Performance Counsel, &quot;Laura Maechtlen &ndash; Partner at Seyfarth Shaw LLP &ndash; In Interview For The #BakersDozen.&quot; You can read the <a href="https://highperformancecounsel.com/laura-maechtlen-partner-seyfarth-shaw-llp-interview-bakersdozen/?utm_source=dlvr.it&amp;utm_medium=twitter">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezwsj092617 Leon Rodriguez quoted in the Wall Street Journal http://www.seyfarth.com:80/news/rodriguezwsj092617 Tue, 26 Sep 2017 00:00:00 -0500 <p> Leon Rodriguez was quoted in a September 26 story from the Wall Street Journal, &quot;White House Plans to Set Refugee Cap at 45,000 for Next Fiscal Year,&quot; on how the refugee cap would be the lowest since at least 1980. Rodriguez said that it was a false choice to pit asylum applicants against refugees and that there is enough money at DHS to do both. You can read the <a href="https://www.wsj.com/articles/white-house-plans-to-set-refugee-cap-at-45-000-for-next-fiscal-year-1506447484">full article here</a>.</p> http://www.seyfarth.com:80/publications/CEL092617 China and Spain Signed Bilateral Social Security Agreement http://www.seyfarth.com:80/publications/CEL092617 Tue, 26 Sep 2017 00:00:00 -0500 <div> <em><strong>Seyfarth Synopsis:</strong> Bilateral social security agreements between countries play an important role in facilitating the cross-border movement of employees, as they reduce exposure to the simultaneous application of the relevant countries&rsquo; social security programs to a cross-border employee.&nbsp; In what seems to be a continuing trend for the PRC government, it concluded a bilateral social security agreement with the Spanish government (the &ldquo;<strong>Sino-Spain Agreement</strong>&rdquo;) during the G20 Labor and Employment Ministers&rsquo; Meeting in Germany earlier this year.</em></div> <div> &nbsp;</div> <div> The PRC and Spanish governments signed the Sino-Spain Agreement on May 19, 2017.&nbsp; Negotiations on the Sino-Spain Agreement began in 2011, and it will come into force after each country completes their respective domestic legal procedures.&nbsp; Under the Sino-Spain Agreement, Chinese employees assigned to work in Spain, and their employers, will be exempt from certain compulsory social security insurance programs in Spain, such as pension and unemployment insurance. Reciprocally, Spanish employees working in China and their employers will be entitled to a similar exemption.&nbsp; Details about the reciprocal exemptions are expected before the Agreement&rsquo;s effective date and, as is the case with all bilateral social security agreements, a number of conditions are expected to be placed on the exemptions.</div> <div> &nbsp;</div> <div> As of today, the PRC government has signed bilateral social security agreements with eight other countries (Germany, Korea, Denmark, Finland, Canada, Switzerland, Holland and France) and is negotiating with more countries (e.g. Japan) on similar agreements.</div> <div> &nbsp;</div> <div> With the continued increase of foreign expatriates working in China and Chinese citizens working overseas, bilateral social security agreements will benefit both employers and their employees by avoiding double-payment obligations with respect to social security programs, thus lowering labor costs for foreign expatriates.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Bilateral social security agreements typically set out mandatory administrative and substantive requirements in order to claim exemptions under them.&nbsp; Before hiring foreign expatriates in China, or dispatching their Chinese employees to work overseas, multinational employers should check the availability of, and requirements for, such exemptions under any relevant bilateral agreements.&nbsp;</div> <div> &nbsp;</div> <div> If you would like further information with respect to any bilateral agreements that China has with any country, or how to apply for exemptions under them, please contact <a href="http://www.seyfarth.com/WanLi">Wan Li</a> at <a href="mailto:LWan@seyfarth.com">LWan@seyfarth.com</a>, <a href="http://www.seyfarth.com/DarrenGardner">Darren Gardner</a> at <a href="mailto:DGardner@seyfarth.com">DGardner@seyfarth.com</a> or any member of our <a href="http://www.seyfarth.com/International-Employment-Law">International Employment Law Team</a>.</div> http://www.seyfarth.com:80/publications/MA092517-LE Will the Supreme Court Finally Remove Doubt That an Employer Can Mandate That Employees Enter into Arbitration Agreements with Class Waivers? http://www.seyfarth.com:80/publications/MA092517-LE Mon, 25 Sep 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>: In the first argument of the first day of its new term, the U.S. Supreme Court will hear oral argument in three cases presenting the issue of whether an employer may require employees to enter into arbitration agreements containing a waiver of the ability to join a class or collective action. The Court&rsquo;s decision -- expected in early 2018 -- could significantly alter the landscape of multi-claimant employment litigation more than any other development in recent memory. Employers should start preparing now.</em></p> <p> Whether for claims of discrimination, ERISA violations, or, most frequently, wage-hour violations, employers have faced an increasing number of employment lawsuits brought as class or collective actions, and have spent more and more to defend and settle them. As a result, some employers have enacted mandatory arbitration programs for their employees, with a key feature of the arbitration program being a waiver of the ability to participate in a class or collective action.</p> <p> <strong>The Supreme Court&rsquo;s Embrace of the Federal Arbitration Act</strong></p> <p> Enforcing arbitration agreements with class waivers has been successful for the most part in recent years, at least with respect to arbitration programs that are carefully drafted to avoid state contract defenses such as claims of lack of consideration or procedural unconscionability. This is largely due to the U.S. Supreme Court steadily removing the most significant hurdles to enforcement of class waivers in arbitration agreements.</p> <p> At first, many argued that a class waiver violates public policy. But in 2011, the Supreme Court made clear in <em>AT&amp;T Mobility v. Concepcion</em> that California&rsquo;s <em>Discover</em> <em>Bank</em> rule that effectively barred enforcement of class action waivers in consumer arbitration contracts is preempted by the Federal Arbitration Act (&ldquo;FAA&rdquo;). Then, some tried to distinguish <em>Concepcion</em> by arguing that it merely elevated the federal FAA above state law, and that a class waiver of a federal claim cannot be enforced. But the Supreme Court rejected that argument in 2012 in <em>CompuCredit Corp. v. Greenwood</em> and held that arbitration agreements must be enforced according to their terms &ldquo;even when federal statutory claims are at issue.&rdquo; Next, some argued that class waivers should not be enforced because if small claims cannot be pooled together in a class or collective action, then there is no way effectively to vindicate rights, especially where the costs to pursue individual claims exceeds the potential recovery. The Supreme Court rejected that theory too, in 2013, in <em>American Express Co. v. Italian Colors Restaurant.</em></p> <p> The net effect of these favorable rulings could have caused most employers to adopt arbitration programs with class waivers. Many held back, however. One reason is that, in the employment context, a significant hurdle remained to the enforcement of class waivers in arbitration agreements: the National Labor Relations Board (&ldquo;NLRB&rdquo;) and its <em>D.R. Horton </em>decision in 2012.</p> <br clear="all" /> <p> &nbsp;</p> <h2> <strong>The NLRB -- and Some Circuit Courts -- Fight Back</strong></h2> <p> The NLRB&rsquo;s theory, first articulated in <em>D.R. Horton</em>, is that the pursuit of class or collective actions constitutes protected concerted activity under Section 7 of the National Labor Relations Act (&ldquo;NLRA&rdquo;). &nbsp;Just as Section 7 protects the right to form a union, picket, strike or engage in other concerted activities for mutual aid or protection, it also protects the right of employees to band together to participate in a class or collective action, or so has said the NLRB. The Fifth Circuit, however, refused to enforce the NRLB&rsquo;s decision, and shortly thereafter, the Second and Eighth Circuits rejected similar arguments premised on the NLRB&rsquo;s theory. Similarly, all but a handful of district courts rejected the <em>D.R. Horton</em> theory even while the NLRB continued to espouse it.</p> <p> That changed in May 2016 when the Seventh Circuit issued its decision in <em>Lewis v. Epic Systems Corp. </em>There, the Seventh Circuit endorsed the theory that bringing a class or collective action (Lewis brought both) is a form of protected concerted activity under the NLRA, and that because of that, an arbitration agreement that requires a class waiver is illegal. Accordingly, said the Seventh Circuit panel, the arbitration agreement cannot be enforced under the saving clause of the FAA (the &ldquo;saving clause&rdquo; provides that arbitration agreements &ldquo;shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract&rdquo;).<a href="#_ftn1" name="_ftnref1" title="">[1]</a> A few months later, in May 2016, the Ninth Circuit followed the Seventh in <em>Morris v. Ernst &amp; Young</em> (as did the Sixth Circuit a year later in May 2017 in <em>NLRB v. Alternative Entertainment, Inc.</em>).</p> <p> <strong>The Supreme Court Steps In to Tackle the Most Significant Employment Case in Years</strong></p> <p> Due to the circuit split, the Supreme Court granted <em>cert</em> to three case presenting the issue of whether an employer may require its employees to arbitrate all claims against it on an individual (<em>i.e., </em>non-class) basis, despite the provisions of the NLRA: <em>Epic Systems Corp. v. Lewis</em> from the Seventh Circuit, <em>Ernst &amp; Young v. Morris</em> from the Ninth Circuit, and <em>NLRB v. Murphy Oil Co.</em> out of the Fifth Circuit.</p> <p> Oral argument will take place on October 2, the first day of the Supreme Court&rsquo;s term. Indeed, the three cases constitute the first matter the Court will take up that day. The Court does not announce when opinions will be issued, but it is expected that the decisions in these cases likely will be issued in January or February 2018.</p> <p> A decision in favor of the plaintiffs and the NLRB likely would preclude enforcement of class waivers as to the vast majority of employment claims and would allow to continue, if not further amplify, the wave of collective and class actions that have plagued employers. Those groups of employees not covered by the NLRA, including supervisors and independent contractors, likely could be compelled to enter into class waivers, but all other employees would remain free to lead or participate in class or collective proceedings.</p> <p> A decision in favor of the companies, however, probably would clear the last foreseeable hurdle to the enforcement of arbitration agreements containing a waiver of the ability to participate in a collective or class action. It is even possible that the Court&rsquo;s reasoning could allow for class waivers outside of an arbitration agreement, as the Fifth Circuit held earlier this year in <em>&nbsp;Convergys Corp. v. NLRB.&nbsp; </em></p> <p> A green light for class waivers in arbitration agreements thus likely would cause many employers to adopt arbitration&nbsp; programs with class waivers. Those waivers likely would be enforced by courts under a favorable Supreme Court decision, provided the waivers and the arbitration agreements are carefully drafted to comport with state contract laws. &nbsp;&nbsp;</p> <p> There are some narrow exceptions for certain claims or employees that would not be covered. &nbsp;For example, claims under California&rsquo;s Private Attorneys General Act (&ldquo;PAGA&rdquo;) cannot be compelled to arbitration, and certain transportation workers are exempt from the FAA (though arbitration agreements potentially could be enforced as to them under state arbitration acts). &nbsp;Also, employees must remain free to file administrative charges, and lawsuits initiated by the EEOC or Department of Labor would be unaffected by arbitration agreements with class waivers. There also could be multi-claimant actions brought in different ways, such as the assertion of serial arbitration demands on behalf of dozens of employees at a time. But on the whole, a favorable Supreme Court decision could enable employers to largely avoid the employment class action epidemic.</p> <p> <strong>&ldquo;So Should Our Company Have One of These Arbitration Agreements?&rdquo;</strong></p> <p> Because of the potential significance of the Court&rsquo;s ruling, the October 2 oral argument is likely to receive a lot of media attention over the next few weeks. Company executives are likely to ask their in-house lawyers and&nbsp; human resource professionals some variant of the following question:&nbsp; &ldquo;I just read about this case about arbitration agreements and class waivers. &nbsp;Do we have that? Should we have that?&rdquo;</p> <p> The answer to that question, in the short term, probably is to wait and see how the Court rules, which should be within a few months. &nbsp;But if the Court rules in favor of employers, the answer still will vary from company to company, as an arbitration program may not be right for every employer even though it may free a company from the burdens of an expensive class or collection action.&nbsp;&nbsp; There are several other advantages to consider, but also several disadvantages.&nbsp;</p> <p> On the one hand, companies that implement such an agreement could avoid runaway jury verdicts, reach decisions on the merits more quickly than is typical in court, and likely count on greater confidentiality given the non-public nature of arbitration proceedings.&nbsp; On the other hand, an arbitration agreement means that, for covered claims, employment disputes are before an arbitrator rather than a judge. &nbsp;Arbitrators often are less predictable than judges, usually disfavor motions to dismiss or summary judgment motions, and issue binding decisions from which there is often limited opportunity for appeal.&nbsp; Arbitrations also can be more expensive:&nbsp; arbitrator fees can be high and generally must be borne by the employer.&nbsp; Also, arbitrations more typically result in an evidentiary hearing (rather than ending by a dispositive motion), meaning that attorneys&rsquo; fees for arbitrations may be higher as well.&nbsp; Finally, many companies are concerned that employees may perceive an arbitration program with a class waiver to be a takeaway, potentially leading to a drop in employee morale or even giving a boost to a union organizing effort.</p> <p> In addition to the above considerations, drafting and implementing an arbitration agreement requires great care. For example, employers need to ensure that they not give a court any basis on which to find that the provisions of an arbitration agreement could be unconscionable. Thought must be given to what claims are covered (<em>e.g.</em>, should the agreement cover wage-hour claims but not discrimination claims?). Questions often arise about whether a mutual exchange of promises to arbitrate constitutes sufficient consideration, or whether consideration beyond continued employment must be provided in some states.&nbsp; Above all, a thoughtful communications plan must be prepared to minimize employee relations risks.</p> <p> Although a ruling in these cases is not likely until early 2018, it is not too early to start thinking of next steps. Please join us for a webinar on October 4, 2017 at 1:00 p.m. Eastern, during which we will provide our analysis of the Court&rsquo;s oral argument, predict what employers may expect from the Court&rsquo;s ruling, and whether, when, and how employers should enact or modify their arbitration programs. &nbsp;<a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=uERUc0HllBDRj3ZgTU4_cY0-9yZsG4k2KIGepya_8Jlq2kCNJdgoOAKWoFl46qYO&amp;RS_REFERRSID=uERUc0HllBDRj3ZgTU4_cUkiL_opDsyuC6_wIHRMSsgJ-qU2Xbmf44ETrT1t3afJ&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=uERUc0HllBDRj3ZgTU4_cUkiL_opDsyuC6_wIHRMSsgJ-qU2Xbmf44ETrT1t3afJ">Click here</a> to register.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Seyfarth Shaw LLP is counsel for Epic in the <em>Lewis </em>case at the district court, was counsel for Epic in the appellate court, and is co-counsel for Epic at the Supreme Court.&nbsp; The views expressed in this article are Seyfarth Shaw&rsquo;s and not necessarily those of Epic.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM092517-LE Presidential Proclamation Sets New Restrictions on Travel to the United States http://www.seyfarth.com:80/publications/OMM092517-LE Mon, 25 Sep 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>: Country-specific travel restrictions will impact nationals of Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, and Venezuela.</em></p> <p> Immediately preceding the expiration of <a href="https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states">Executive Order 13780</a>, President Trump signed a <a href="https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry">presidential proclamation</a> maintaining, modifying, or easing country-specific travel restrictions for nationals of eight countries. According to the White House, following a worldwide review of information-sharing practices, the Secretary of Homeland Security, in consultation with interagency stakeholders, made her final recommendation to the President on foreign nationals who should be subject to travel restrictions due to deficiencies in identity management or information sharing, and/or risk factors in the designated countries.</p> <p> As of 3:30 PM EDT on September 24th, the proclamation applies to nationals of the designated countries applying for a U.S. visa who lack a bona fide connection to a person or entity in the U.S., consistent with the entry restrictions under Executive Order 13780. Travel restrictions for all other nationals designated under this proclamation will take effect on October 18, 2017.&nbsp;&nbsp;</p> <p> The country specific restrictions are as follows:</p> <table border="1" cellpadding="0" cellspacing="0"> <tbody> <tr> <td style="width:319px;"> <p> North Korea, Syria</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for all immigrants and nonimmigrants</p> </td> </tr> <tr> <td style="width:319px;"> <p> Iran</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for all immigrants and nonimmigrants, except for travelers with valid student (F or M) or exchange visitor (J) visas</p> </td> </tr> <tr> <td style="width:319px;"> <p> Somalia</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for immigrants; Nonimmigrants traveling to the U.S. subject to enhanced screening and vetting requirements</p> </td> </tr> <tr> <td style="width:319px;"> <p> Chad, Libya, Yemen</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for immigrants and nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.</p> </td> </tr> <tr> <td style="width:319px;"> <p> Venezuela</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for certain government officials and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas</p> </td> </tr> </tbody> </table> <p> <br /> The U.S. lifted restrictions on Sudan. While no formal entry restrictions and limitations have been placed on nationals ofIraq, Iraqi nationals who seek to enter the U.S. will be subject to &ldquo;additional scrutiny to determine if they pose risks to the national security or public safety of the U.S.&rdquo;</p> <p> Currently valid visas will not be revoked and suspension of entry does not apply to the following individuals:</p> <ol> <li> Any Lawful Permanent Resident (LPR), also known as a green card holder, of the U.S.;</li> <li> Any foreign national who is admitted to or paroled into the U.S. after the effective date of the proclamation;</li> <li> Any foreign national who possesses a valid travel document, other than a visa, that permits him or her to travel to the U.S. and seek entry or admission (for example, an advance parole document);</li> <li> Any dual national of a country designated under this proclamation who travels on a passport issued by a non-designated country;</li> <li> Any national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; and,</li> <li> Any national who has been granted asylum or refugee status in the U.S. or has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.</li> </ol> <p> Seyfarth Shaw will continue to monitor these developments closely, and will publish updated information accordingly.</p> http://www.seyfarth.com:80/publications/arnoldilo092517 Edward Arnold authored an article in International Law Office http://www.seyfarth.com:80/publications/arnoldilo092517 Mon, 25 Sep 2017 00:00:00 -0500 <p> Edward Arnold authored a September 25 article in International Law Office, &quot;Batten down the hatches: tips for owners and contractors affected by Hurricanes Harvey and Irma.&quot; The article discusses how owners and contractors of existing projects &ndash; whether in Houston, Florida or other parts of the country &ndash; as well as those involved in new projects to rebuild, must take steps to assess the affects and identify their contractual rights and obligations. You can read the <a href="http://www.internationallawoffice.com/Newsletters/Construction/USA/Seyfarth-Shaw-LLP/Batten-down-the-hatches-tips-for-owners-and-contractors-affected-by-Hurricanes-Harvey-and-Irma?utm_source=Twitter&amp;utm_medium=Tweet&amp;utm_content=Newsletter-36221&amp;utm_campaign=Twitter-2017">full article here</a>.</p> http://www.seyfarth.com:80/publications/EL092517 A Shocker from the Heartland: A Long Term Leave of Absence is NOT A Reasonable Accommodation Under the ADA http://www.seyfarth.com:80/publications/EL092517 Mon, 25 Sep 2017 00:00:00 -0500 <p> To the surprise of many observers, and undoubtedly the EEOC, the Seventh Circuit held last week in Severson v. Heartland Woodcraft, Inc., &mdash; F. 3d &mdash; Case No. 14-cv-1141 (7th Cir. Sept. 20, 2017) that &ldquo;a long-term leave of absence cannot be a reasonable accommodation&rdquo; under the ADA. Id. at 7. Judge Sykes, on behalf of a power panel that included Chief Judge Wood and Judge Easterbrook, analyzed the language of the ADA and concluded that it &ldquo;is an antidiscrimination statute, not a medical-leave entitlement.&rdquo; Id. at 2.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/09/a-shocker-from-the-heartland-a-long-term-leave-of-absence-is-not-a-reasonable-accommodation-under-the-ada/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=0afae7dee3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-0afae7dee3-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/lucanommg092417 Andrew Lucano authored an article in Middle Market Growth http://www.seyfarth.com:80/publications/lucanommg092417 Sun, 24 Sep 2017 00:00:00 -0500 <p> Andrew Lucano authored a September 24 article in Middle Market Growth, &quot;Let the Seller Beware.&quot; The article discusses why fraud carve-outs in M&amp;A deals can spell trouble. You can read the <a href="https://issuu.com/middlemarketgrowth/docs/1710_mmg_septoct/50">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc092317 Andrew Boutros interviewed by CBC News Network http://www.seyfarth.com:80/news/boutroscbc092317 Sat, 23 Sep 2017 00:00:00 -0500 <p> Andrew Boutros was interviewed September 23rd on CBC News Network, &quot;Special Prosecutor Robert Mueller requests more documents.&quot; Boutros spoke with the CBC&#39;s John Northcott as the Russia probe intensifies. You can watch the <a href="http://www.cbc.ca/player/play/1053767747517">full interview here</a>.</p> http://www.seyfarth.com:80/news/rodriguezbloomberg092217 Leon Rodriguez quoted in Bloomberg http://www.seyfarth.com:80/news/rodriguezbloomberg092217 Fri, 22 Sep 2017 00:00:00 -0500 <p> Leon Rodriguez was quoted in a September 22 story from Bloomberg, &quot;Trump&rsquo;s Travel Ban Decision Could Set Off New Wave of Turmoil.&quot; Rodriguez said that there could be many, many countries that end up on this list which absolutely will open up more lawsuits. You can read the <a href="https://www.bloomberg.com/news/articles/2017-09-22/trump-s-travel-ban-decision-could-set-off-new-wave-of-turmoil">full article here</a>.</p> http://www.seyfarth.com:80/news/bodanskyhflcd092217 Robert Bodansky quoted by Hedge Fund Legal & Compliance Digest http://www.seyfarth.com:80/news/bodanskyhflcd092217 Fri, 22 Sep 2017 00:00:00 -0500 <p> Robert Bodansky was quoted in a September 22 story from Hedge Fund Legal &amp; Compliance Digest, &quot;Best Practices for Private Equity Fund Managers Entering Into Joint Ventures With Investors (Part One of Three).&quot; Bodansky said that despite the increase in the number of joint ventures, there&rsquo;s a fairly limited pool of investors that have the sophistication, resources and board approval to participate. You can read the <a href="http://www.hedgefundlcd.com/best-practices-for-private-equity-fund-managers-entering-into-joint-ventures-with-investors-part-one-of-three/">full article here</a>.</p> http://www.seyfarth.com:80/news/boutrosbuzzfeed092217 Andrew Boutros quoted by BuzzFeed http://www.seyfarth.com:80/news/boutrosbuzzfeed092217 Fri, 22 Sep 2017 00:00:00 -0500 <p> Andrew Boutros was quoted in a September 22 story from BuzzFeed, &quot;Can They Get Along?,&quot; on how a group of lawyers, activists, and families from both sides of the explosive Title IX debate found middle ground last spring. Boutros, who chaired the American Bar Association task force on campus sexual assault, said that in order for the task force to really have any kind of appeal, they knew they couldn&#39;t emerge out of the process broken and divided. You can read the <a href="https://www.buzzfeed.com/tylerkingkade/title-ix-changes-are-coming-can-the-sides-find-common-ground?utm_term=.rpNyaVVg0#.vkZeP88yg">full article here</a>.</p> http://www.seyfarth.com:80/publications/WLS092217 LinkedIn – in whose professional interest? http://www.seyfarth.com:80/publications/WLS092217 Fri, 22 Sep 2017 00:00:00 -0500 <p> LinkedIn is the biggest online network of professionals in the world. Many employers encourage staff to use LinkedIn to promote their organisation.</p> <p> While employees may share content relating to their organisation, they tend to think of their profile as personal to them, like a resume, which is available to recruiters, colleagues and clients.</p> <p> <a href="http://www.workplacelawandstrategy.com.au/2017/09/linkedin-in-whose-professional-interest/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=cb007370b4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-cb007370b4-73179577">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR092217 Trump Nominates Peter Robb as the General Counsel for the NLRB http://www.seyfarth.com:80/publications/LR092217 Fri, 22 Sep 2017 00:00:00 -0500 <p> After being reportedly close to nominating retired Jones Day partner Roger King for the role, the White House announced last Friday that President Donald Trump will nominate Peter Robb, a management-side labor and employment attorney from Vermont, as the new NLRB General Counsel. If confirmed, he will replace former President Barack Obama&rsquo;s current appointee, Richard F. Griffin, Jr., whose term expires this November.</p> <p> <a href="http://www.employerlaborrelations.com/2017/09/22/trump-nominates-peter-robb-as-the-general-counsel-for-the-nlrb/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=ae1db73911-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-ae1db73911-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIG092217 Seyfarth Shaw Partner Leon Rodriguez Files Supreme Court Amicus Brief in Travel Ban Case http://www.seyfarth.com:80/publications/BIG092217 Fri, 22 Sep 2017 00:00:00 -0500 <p> On September 15, 2017, Seyfarth Shaw partner and former U.S. Citizenship and Immigration Services director Leon Rodriguez, joined other former Department of Homeland Security Officials in filing an amicus brief in support of the State of Hawaii and other plaintiffs challenging the travel ban.</p> <p> <a href="http://www.bigimmigrationlawblog.com/2017/09/seyfarth-shaw-partner-leon-rodriguez-files-supreme-court-amicus-brief-in-travel-ban-case/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=d276a3e894-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-d276a3e894-73179525">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT092117 The Week in Weed: September 22, 2017 http://www.seyfarth.com:80/publications/TBT092117 Thu, 21 Sep 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.</p> <p> Attorney General Sessions says marijuana still illegal</p> <p> (Reuters: Health, 21 September 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/09/the-week-in-weed-september-22-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=260f36f330-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-260f36f330-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/maatmanmarreselaw360092117 Gerald Maatman and John Marrese authored an article in Law360 http://www.seyfarth.com:80/publications/maatmanmarreselaw360092117 Thu, 21 Sep 2017 00:00:00 -0500 <p> Gerald Maatman and John Marrese authored a September 21 article in Law360, &quot;Why A Subway Sandwich Class Settlement Didn&#39;t Measure Up.&quot; The article discusses a case in which the U.S. Court of Appeals for the Seventh Circuit overturned a district court&rsquo;s approval of a class action settlement involving Subway sandwich purchasers who sued for alleged consumer fraud. The Seventh Circuit called the settlement &ldquo;worthless&rdquo; in terms of alleged relief to the class.</p> http://www.seyfarth.com:80/publications/CP092117 Another Case of Paid Sick Leave: BERKELEY Symptoms Begin Soon http://www.seyfarth.com:80/publications/CP092117 Thu, 21 Sep 2017 00:00:00 -0500 <p> A little over a year ago, on August 31, 2016, the City of Berkeley, California enacted the &ldquo;Paid Sick Leave Ordinance.&rdquo; Berkeley will be the eighth California city with such an ordinance.</p> <p> <a href="http://www.calpeculiarities.com/2017/09/21/another-case-of-paid-sick-leave-berkeley-symptoms-begin-soon/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA092117-LE If Pain, Yes Gain – Part XXXV: Rhode Island Legislature Approves Statewide Paid Sick Time Bill http://www.seyfarth.com:80/publications/MA092117-LE Thu, 21 Sep 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis: <span id="cke_bm_241S" style="display: none;">&nbsp;</span></em></strong><span style="display: none;">&nbsp;</span><em>After Rhode Island&rsquo;s legislative efforts to pass a statewide paid sick time bill stalled in the Spring, the bill was resuscitated by state lawmakers Tuesday evening. Rhode Island is now poised to become the 8<sup>th</sup> state in the country to pass a statewide mandatory paid sick leave law. <span id="cke_bm_241E" style="display: none;">&nbsp;</span></em><span style="display: none;">&nbsp;</span></p> <p> On September 19, 2017, the Rhode Island legislature passed the Healthy and Safe Families and Workplaces Act (the &ldquo;Act&rdquo;), which, if signed by state Governor Gina Raimondo, as expected, would make Rhode Island the eighth state in the country to impose paid sick leave obligations on employers.<a href="#_ftn1" name="_ftnref1" title=""><sup><sup>[1]</sup></sup></a>&nbsp; The legislature passed the Act after efforts earlier this year to pass a paid sick leave bill floundered in the final days of the spring legislative session.</p> <p> As discussed in greater detail below, some of the primary requirements imposed by the Act include:</p> <ul> <li> Employers with 18 or more employees <em>in Rhode Island</em> must provide employees with one hour of <em>paid</em> sick and safe leave (&ldquo;PSSL&rdquo;) for every 35 hours worked up to a maximum of 24 hours in 2018, 32 hours in 2019, and 40 hours per year thereafter.&nbsp; Smaller employers will be required to provide their employees with the same amounts of protected, <em>unpaid</em> sick and safe leave.</li> <li> Employers that provide the above amounts of PSSL (or other paid leave that can be used for the reasons set forth under the Act) at the beginning of each benefit year most likely do <em>not</em> need to track accrual, allow any year-end carryover of unused time, or payout any unused time at year-end (see below for more information).</li> <li> The Act allows employees to use PSSL to care for various covered family members, including members of the employee&rsquo;s household.</li> <li> Employers must comply with express written policy requirements regarding employee notice to the company and documentation.</li> </ul> <p> Assuming the Act is formally enacted, it will go into effect on July 1, 2018.&nbsp; Significantly, and unlike certain other statewide paid sick leave laws, the Act explicitly states that no municipality shall establish, mandate, or otherwise require an employer to provide paid sick leave benefits in excess of those required under the Act.</p> <p> <strong>Which Employers Are Covered Under the Act?</strong></p> <p> The Act defines &ldquo;employer&rdquo; as &ldquo;any individual or entity that includes any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer, in relation to an employee.&rdquo;</p> <p> Furthermore, the Act expressly states that employers who afford their employees the correct amount of paid leave in 2018, 2019 and thereafter, under either a paid time off or other paid leave policy, are exempt from the Act&rsquo;s accrual and carryover requirements.</p> <p> <strong>Which Employees Are Covered by the Act?</strong></p> <p> The Act defines &ldquo;employee&rdquo; broadly.&nbsp; Specifically, the Act would cover &ldquo;any person suffered or permitted to work by an employer,&rdquo; with several exceptions.&nbsp; The Act expressly excludes the following from coverage -- independent contractors, subcontractors, work study participants, apprenticeships, interns, employees of the state or a municipality, and certain individuals licensed to practice nursing.</p> <p> <strong>How Much Sick Time Can Employees Accrue, Use and Carryover?</strong></p> <p> Employees would begin accruing PSSL on July 1, 2018 or their commencement of employment, whichever is later.&nbsp; However, most employees would not be entitled to begin using accrued PSSL until they have worked for the employer for at least 90 days.</p> <p> The Act includes two exceptions to the above usage waiting period.&nbsp; First, the Act states that employers do not need to allow temporary employees<a href="#_ftn2" name="_ftnref2" title=""><sup><sup>[2]</sup></sup></a> to begin using accrued PSSL until the 180th calendar day following commencement of their employment.&nbsp; Second, the Act states that employers do not need to allow seasonal employees to use accrued PSSL until the 150th calendar day following commencement of their employment.</p> <p> As noted above, employers with 18 or more employees in Rhode Island must allow employees to accrue one hour of <em>paid</em> sick and safe leave for every 35 hours worked up to a maximum of 24 hours in 2018, 32 hours in 2019, and 40 hours per year thereafter.&nbsp; Smaller employers will be required to allow their employees to accrue the same amounts of protected, <em>unpaid</em> sick and safe leave.&nbsp; The Act expressly allows employers to assume that exempt employees work a maximum of 40 hours per week for purposes of sick leave accrual.</p> <p> The Act states that accrued, unused PSSL shall carry over at year-end. However, regardless of carryover balances, employers are only required to allow employees to use 24 hours of PSSL in 2018, 32 hours in 2019, and 40 hours each year thereafter. In addition, the Act notes that employers may set a four hour minimum increment of using PSSL, as long as such an increment is reasonable under the circumstances.</p> <p> The Act also appears to offer two alternatives to year-end carryover. First, the Act notes that employers can avoid year-end carryover if they (a) pay an employee for unused PSSL at the end of a benefit year <em>and</em> (b) frontload the employee a sufficient amount of PSSL, i.e., 24, 32 or 40 hours, at the start of the subsequent year and make that time immediately available for use.</p> <p> Second, and potentially in contradiction with the first alternative described in the preceding paragraph, the Act states that employers can avoid carryover, as well as accrual and year-end payout of unused sick time, if they provide their employees with at least 24 hours of PSSL during calendar year 2018, 32 hours during calendar year 2019, and 40 hours per calendar year thereafter that can be used for the purposes consistent with the Act at the beginning of each benefit year.</p> <p> <strong>Under What Circumstances May Employees Use Sick Leave?</strong></p> <p> An employee may use PSSL earned under the Act for any of the following reasons:</p> <ul> <li> The employee&rsquo;s or a covered family member&rsquo;s mental or physical illness, injury or health condition, need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or preventive medical care;</li> <li> Closure of the employee&#39;s place of business by order of a public official due to a public health emergency or an employee&#39;s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency;</li> <li> Care for oneself or a covered family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the employee&rsquo;s or family member&rsquo;s presence in the community may jeopardize the health of others because of their exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease; or</li> <li> Time off needed when the employee or a covered family member is a victim of domestic violence, sexual assault or stalking.</li> </ul> <p> The Act defines &ldquo;family member&rdquo; to include child, parent, spouse, mother-in-law, father-in-law, grandparents, grandchildren, domestic partner, sibling, care recipient, or member of the employee&rsquo;s household.</p> <p> <strong>What Notice Must Employees Provide When Using Sick Leave?</strong></p> <p> The Act expressly states that employers must provide PSSL to an employee upon his or her request, and that such request can be made orally, in writing, by electronic means or by any other means acceptable to the employer. Employers can require employees&rsquo; requests to include, if possible, the expected duration of the absence.</p> <p> When an employee&rsquo;s need for PSSL is foreseeable, employers can require that the employee provide notice of the need for such time in advance of the absence and that the employee make a reasonable effort to schedule the use of PSSL in a manner that does not unduly disrupt the operations of the employer.</p> <p> If an employer also will require employees to provide notice of their intent to use PSSL for unforeseeable absences, the employer must provide a written policy that contains procedures for the employees to follow in providing the notice. Failure to maintain and distribute a written policy with this information will prohibit an employer from denying PSSL to an employee based on non-compliance with such a policy.</p> <p> <strong>Can Employers Require Employees to Provide a Medical or Other Documentation?</strong></p> <p> When an employee&rsquo;s PSSL absence spans more than three consecutive work days, an employer may require the employee to provide reasonable documentation that the absence was for a covered purpose.&nbsp; However, employers can only take advantage of this provision if they have notified their employees in writing of the requirement in advance of the employee&#39;s use of PSSL.</p> <p> Notably, the Act states that the above more than three consecutive work days requirement for documentation does not apply when the employee&rsquo;s use of PSSL occurs within two weeks prior to an employee&rsquo;s final scheduled day of work before termination of employment</p> <p> <strong>What Notice Must Employers Provide?</strong></p> <p> The Act is silent on any notice or posting requirements that employers must follow. We expect this information to be included in forthcoming regulations released by the state in advance of the July 1, 2018 effective date.</p> <p> <strong>What Records Must Employers Maintain?</strong></p> <p> The Act is silent on any recordkeeping requirements that employers must follow. We expect this information to be included in forthcoming regulations released by the state in advance of the July 1, 2018 effective date.</p> <p> <strong>What Can Employers Do if They Suspect Employee Abuse of Their Sick Leave Rights?</strong></p> <p> If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for PSSL, an employer may discipline the employee, up to and including termination of employment for misuse of sick leave.&nbsp; In addition, if an employee is exhibiting a clear pattern of taking PSSL on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of PSSL, unless the employee provides reasonable documentation that the leave has been used for a proper purpose. The Act relatedly states that PSSL cannot be used as an excuse to be late for work without an authorized purpose.</p> <p> <strong>Must Unused Sick Time Be Paid Upon Employment Separation?</strong></p> <p> No, employers are not required to pay employees for earned, unused sick and safe leave upon termination or other separation of employment. However, when there is a separation from employment and the employee is rehired within 135 days of separation by the same employer, previously accrued, unused PSSL must be reinstated.</p> <p> <strong>What Should Employers Do Now?</strong></p> <p> Rhode Island employers should take steps now to ensure that they will be able to achieve full compliance with the Act by its near certain July 1, 2018 effective date.&nbsp; These are among the actions to consider:</p> <ul> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the Act.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the Act.</li> <li> Monitor the Rhode Island Department of Labor and Training website for information on the Act, including proposed and final regulations.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The seven other states with mandatory paid sick leave laws are <a href="http://www.calpeculiarities.com/2015/06/10/what-the-doctor-ordered-ab-304s-cure-for-sick-pay-law/">California</a>, <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>, <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>, <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>, <a href="http://www.seyfarth.com/publications/MA062917-LE2">Arizona</a>, <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont </a>and <a href="http://www.laborandemploymentlawcounsel.com/2016/11/2016-election-infected-with-paid-sick-leave-part-ii/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=1742b5ae3e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-1742b5ae3e-71256185">Washington</a>. The Washington paid sick leave law goes into effect on January 1, 2018. The other six laws are currently in effect. Links to our prior alerts on each of these laws are included in the preceding sentences.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The Act defines &ldquo;temporary employee&rdquo; as any person working for, or obtaining employment pursuant to an agreement with any employment agency, placement service, or training school or center.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/rodriguezwf092117 Leon Rodriguez quoted in Workforce http://www.seyfarth.com:80/news/rodriguezwf092117 Thu, 21 Sep 2017 00:00:00 -0500 <p> Leon Rodriguez was quoted in a September 21 story from Workforce, &quot;Hiring and the H-1B Visa,&quot; on how uncertainty about the visa program could push employers toward the gig economy to hire independent contractors. Rodriguez said that other recent attempts to pass H-1B reform laws have gone nowhere, and it&rsquo;s a toss-up whether a Congress that&rsquo;s been preoccupied with repealing and replacing the Affordable Care Act and other issues will get to it this term. You can read the <a href="http://www.workforce.com/2017/09/21/hiring-h-1b-visa/">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinohre092117 Alex Passantino interviewed in Human Resource Executive http://www.seyfarth.com:80/news/passantinohre092117 Thu, 21 Sep 2017 00:00:00 -0500 <p> Alex Passantino was interviewed in a September 21 Q&amp;A with Human Resource Executive, &quot;The OT Rule: Now What?.&quot; Passantino discussed how HR leaders should proceed after a federal court judge struck down the Obama-era overtime rule. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534363054&amp;">full Q&amp;A here</a>.</p> http://www.seyfarth.com:80/news/woodwardcc092117 Theodore Woodward quoted in Corporate Counsel http://www.seyfarth.com:80/news/woodwardcc092117 Thu, 21 Sep 2017 00:00:00 -0500 <p> Theodore Woodward was quoted in a September 21 story from Corporate Counsel, &quot;Here&#39;s What&#39;s Next for Toys R Us Counsel After Filing Chapter 11,&quot; on real estate lease negotiations during bankruptcy. Woodward said that, typically, the negotiations between the landlord and tenant center around lowering rent but could include talks of reducing a tenant&#39;s square footage.</p> http://www.seyfarth.com:80/news/casciarishrm092117 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm092117 Thu, 21 Sep 2017 00:00:00 -0500 <p> Joan Casciari was quoted in a September 21 story from SHRM, &quot;How to Create a Robust Reasonable Accommodation Process,&quot; on 7 steps to help manage ADA accommodation requests, mitigate risk and support an inclusive workplace. Casciari said that accommodating employees in the workplace should actually save employers money because the alternative, in many cases, is putting the employee on leave, and many employers have short-term disability policies. You can read the <a href="https://www.shrm.org/hr-today/news/hr-magazine/1017/pages/how-to-create-a-robust-reasonable-accommodation-process.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/shermangfm092017 Andrew Sherman authored an article in Global Franchise Magazine http://www.seyfarth.com:80/publications/shermangfm092017 Wed, 20 Sep 2017 00:00:00 -0500 <p> Andrew Sherman authored a September 20 article in Global Franchise Magazine, &quot;Could Your Brand Fail in America?&quot; Sherman offers strategies for penetrating the US market as an overseas franchisor. You can read the <a href="http://www.globalfranchisemagazine.com/advice/could-your-brand-fail-in-america">full article here</a>.</p> http://www.seyfarth.com:80/publications/WC091917 Interference On The Defense? Tenth Circuit Reinstates EEOC’s Formerly Dismissed Claim http://www.seyfarth.com:80/publications/WC091917 Tue, 19 Sep 2017 00:00:00 -0500 <p> After a federal district court dismissed the EEOC&rsquo;s unlawful-interference claim against a private college that had sued a former employee for allegedly breaching a settlement agreement by filing an EEOC charge, the Tenth Circuit reversed the dismissal of the EEOC&rsquo;s unlawful-interference claim, citing the employer&rsquo;s introduction of a new case theory relative to the EEOC&rsquo;s still-pending retaliation claim.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/interference-on-the-defense-tenth-circuit-reinstates-eeocs-formerly-dismissed-claim/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wc091917a Interference On The Defense? Tenth Circuit Reinstates EEOC’s Formerly Dismissed Claim http://www.seyfarth.com:80/publications/wc091917a Tue, 19 Sep 2017 00:00:00 -0500 <p> After CollegeAmerica resolved a dispute with a former employee by entering into a settlement agreement, upon belief that the employee breached the settlement agreement, CollegeAmerica sued the employee in state court.&nbsp; <em>Id. </em>at *1-2.&nbsp; Thereafter, the EEOC sued CollegeAmerica in federal court alleging that CollegeAmerica&rsquo;s interpretation and enforcement of the settlement agreement was unlawfully interfering with statutory rights of the former employee and the EEOC.&nbsp; Following the U.S. District Court for the District of Colorado&rsquo;s dismissal of the EEOC&rsquo;s claim for unlawful-interference with statutory rights, on appeal in <em>EEOC v. CollegeAmerica Denver Inc.</em>, No. 16-1340, 2017 U.S. App. LEXIS 17094 (10th Cir. Sept. 5, 2017), the Tenth Circuit <a href="http://www.workplaceclassaction.com/wp-content/uploads/sites/214/2017/09/EEOC-v.-CollegeAmerica-Denver-Inc.-Case-No.-16-1340-10th-Cir.-Decis....pdf">reversed</a>&nbsp;the dismissal, holding that the EEOC&rsquo;s unlawful-interference claim should not have been dismissed as moot in light of a new theory asserted by CollegeAmerica prior to its trial regarding the EEOC&rsquo;s pending retaliation claim.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/interference-on-the-defense-tenth-circuit-reinstates-eeocs-formerly-dismissed-claim/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=1b44e12206-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-1b44e12206-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL091917 Words Matter: The Third Circuit Clarifies That a Single Racial Slur in the Workplace May Be Enough to State a Hostile Work Environment Claim. http://www.seyfarth.com:80/publications/EL091917 Tue, 19 Sep 2017 00:00:00 -0500 <p> The Third Circuit recently held that a single word or incident, if severe enough, may create an actionable hostile work environment claim. The Court clarified that in hostile work environment cases, the proper legal standard is not whether the objectionable conduct in question is &ldquo;pervasive and regular,&rdquo; but rather whether it is &ldquo;severe or pervasive.&rdquo;</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/09/words-matter-the-third-circuit-clarifies-that-a-single-racial-slur-in-the-workplace-may-be-enough-to-state-a-hostile-work-environment-claim/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=756eef0b5c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-756eef0b5c-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIG091917 Premium Processing Resumes for Fiscal Year 2018 H-1B Cap Petitions http://www.seyfarth.com:80/publications/BIG091917 Tue, 19 Sep 2017 00:00:00 -0500 <p> On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for H-1B petitions filed subject to the Fiscal Year (FY) 2018 cap.</p> <p> <a href="http://www.bigimmigrationlawblog.com/2017/09/premium-processing-resumes-for-fiscal-year-2018-h-1b-cap-petitions/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=ed930231f9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-ed930231f9-73179525">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP091917 2017 Labor & Employment Legislative Update: The End is Near! http://www.seyfarth.com:80/publications/CP091917 Tue, 19 Sep 2017 00:00:00 -0500 <p> Governor Jerry Brown has till October 15 to approve bills the Legislature sent to his desk by its Friday, September 15, deadline, including bills that would require employers to &rdquo;show us the money&rdquo; for certain employees and to make &ldquo;mum be the word&rdquo; for an applicant&rsquo;s past conviction history.</p> <p> <a href="http://www.calpeculiarities.com/2017/09/19/2017-labor-employment-legislative-update-the-end-is-near/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=b60c6b2f58-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-b60c6b2f58-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR091817 Board Blows the Whistle on Independent Contractor Status for NBA Video Production Crew http://www.seyfarth.com:80/publications/LR091817 Mon, 18 Sep 2017 00:00:00 -0500 <p> With the NBA season opener just over a month away, at least one team could be getting an unexpected influx of free agents. In Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124 (2017), the Board recently held that the production crew responsible for operating the Timberwolves&rsquo; center court video display were employees under the National Labor Relations Act and could form a bargaining unit to negotiate the terms and conditions of their employment.</p> <p> <a href="http://www.employerlaborrelations.com/2017/09/18/board-blows-the-whistle-on-independent-contractor-status-for-nba-video-production-crew/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=0095ebff9a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-0095ebff9a-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM091817-LE Sleeping On the Job… Again? Second New York Appellate Court Finds Home Healthcare Employees Entitled to Pay for all 24 Hours on an Overnight Shift http://www.seyfarth.com:80/publications/OMM091817-LE Mon, 18 Sep 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>:&nbsp; The Supreme Court of the State of New York, Appellate Division, Second Judicial Department (&ldquo;Second Department&rdquo;) joined the First Department in finding that home healthcare employees who work 24-hour shifts are entitled to pay for all hours present in a client&rsquo;s home, including sleeping and meal periods.&nbsp; With this holding, the Second Department became the second appellate court in New York to reject the previously accepted interpretation of New York law, consistent with federal law, that allowed employers to pay home health care employees for 13 hours out of a 24-hour shift, so long as specified meal and sleep periods were provided.&nbsp; </em></p> <p> We previously wrote about the New York appeals court decision in <a href="http://www.wagehourlitigation.com/state-claims/sleeping-home-healthcare-employees-entitled-to-pay-on-overnight-shifts/"><em>Tokhtaman v. Human Care, LLC</em></a>, in which the New York State Supreme Court, Appellate Division, First Judicial Department (Manhattan and the Bronx), held that a &ldquo;non-residential&rdquo; home healthcare employee must be paid for all hours present at a client&rsquo;s home, including meal periods and time spent sleeping.&nbsp; The First Department opined that &ldquo;non-residential&rdquo; employees are those employees who, like the plaintiff in <em>Tokhtaman</em>, &ldquo;maintain[] [thei]r own residence, and d[o] not live in the homes of [] client&rsquo;s.&rdquo;</p> <p> On September 13, 2017, the Second Judicial Department (Dutchess, Kings, Nassau, Orange, Putnam, Richmond, Rockland, Suffolk, and Westchester) issued two decisions in line with <em>Tokhtaman</em>, holding that non-residential home healthcare employees must be paid for all 24 hours in a 24-hour shift, regardless of meal and sleep periods. &nbsp;The Second Department did not provide any further clarity as to what constitutes a &ldquo;residential&rdquo; home healthcare employee.&nbsp;</p> <p> These decisions reflect a departure from the rationale set forth in a <a href="https://labor.ny.gov/legal/counsel/pdf/Other/RO-09-0169%20-%20Live-In%20Companions.pdf">2010 New York Department of Labor (&ldquo;DOL&rdquo;) Opinion Letter</a>, which interpreted the DOL Regulation 12 NYCRR &sect; 142-2.1(b) to allow &ldquo;live-in employees&rdquo; -- whether or not they are residential employees -- to be paid for 13 hours for a 24-hour shift so long as the employee was afforded at least 8 hours for sleep (and actually received 5 hours of uninterrupted sleep), and 3 hours for meals.&nbsp;</p> <p> With both the First and Second Departments in agreement on the issue, however, employers in New York should be aware of these changing and increasingly onerous pay obligations for employees working 24-hour shifts.</p> http://www.seyfarth.com:80/publications/OMM091817-LE2 Premium Processing Resumes for Fiscal Year 2018 H-1B Cap Petitions http://www.seyfarth.com:80/publications/OMM091817-LE2 Mon, 18 Sep 2017 00:00:00 -0500 <p> <strong>To stay up-to-date on Immigration developments, <a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong> On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for H-1B petitions filed subject to the Fiscal Year (FY) 2018 cap.</em></p> <p> USCIS temporarily suspended premium processing of all H-1B petitions on April 1, 2017 with the stated goal of addressing significant backlogs in case processing.&nbsp; Over the last few months, the agency incrementally reinstated premium processing service for lower-volume filings including certain H-1B petitions that are not subject to the H-1B cap as well as H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program.&nbsp; On September 18, 2017, the agency reinstated and will immediately accept premium processing requests for pending H-1B petitions that were filed under the Fiscal Year 2018 cap.&nbsp; This includes H-1B petitions filed under the annual quota of 20,000 U.S. Master&rsquo;s degree petitions as well as those filed under the general H-1B cap of 65,000 petitions.&nbsp; Unfortunately, premium processing service remains suspended for H-1B petitions that are filed to extend an employee&rsquo;s status or change employers.</p> <p> When a petition is filed under premium processing, the petitioner includes an additional filing fee of $1,225.&nbsp; This additional filing fee requires USCIS to adjudicate the petition within 15 days of receiving the request.&nbsp; Petitions are either approved or a Request for Evidence (RFE) is issued by USCIS within that 15-day time period.&nbsp; Premium processing requests can be filed with the initial filing of a petition, or at a later date by referencing the petition&rsquo;s receipt number.&nbsp; Since the quota of H-1B cap petitions has already been reached, this service is only available to currently pending H-1B cap cases for FY 2018.&nbsp;</p> <p> With the reinstatement of this service, Employers should carefully review their pending H-1B cap lists and strongly consider submitting a premium processing request for any pending FY 2018 cap cases in which the beneficiary has an expired F-1 Optional Practical Training (OPT) employment authorization card and is relying on &ldquo;Cap Gap&rdquo; for work authorization through September 30, 2017.&nbsp; Any beneficiary relying on &ldquo;Cap Gap&rdquo; whose H-1B petition is still pending on October 1, 2017 will lose employment authorization until his or her H-1B petition is approved.&nbsp; Employers should also consider prioritizing premium processing requests for employees in a different status who are facing imminent expirations of work authorization as well as those with upcoming international travel plans that require an H-1B visa stamp for reentry.</p> <p> <strong>Summary</strong></p> <p> Premium processing of FY 2018 cap H-1B petitions has resumed.&nbsp; Your contacts at Seyfarth Shaw LLP will work with you to determine which cases should be considered for immediate premium processing upgrades.&nbsp; In addition, we will continue to monitor USCIS announcements with regard to reinstatement of premium processing for other types of H-1B petitions.</p> http://www.seyfarth.com:80/news/steinerthre091817 Eric Steinert quoted in Human Resource Executive http://www.seyfarth.com:80/news/steinerthre091817 Mon, 18 Sep 2017 00:00:00 -0500 <p> Eric Steinert was quoted in a September 18 story from Human Resource Executive, &quot;Bringing Predictability to Scheduling,&quot; on how Oregon became the first state to pass &quot;fair workweek&quot; legislation, seeking to protect workers from unpredictable scheduling practices. Steinert said that you will definitely see the industry push back on this, because they are not going to be able to meet these unpredictable changes in customer demand and they are going to lose business as a result. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362977">full article here</a>.</p> http://www.seyfarth.com:80/publications/CDL091717 Seyfarth’s GDPR Webinar Series http://www.seyfarth.com:80/publications/CDL091717 Sun, 17 Sep 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?</p> <p> <a href="http://www.carpedatumlaw.com/2017/09/seyfarths-gdpr-webinar-series/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=029e565931-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-029e565931-73179541">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC091517 New Class Action Litigation Risks – What Businesses Need To Know http://www.seyfarth.com:80/publications/WC091517 Fri, 15 Sep 2017 00:00:00 -0500 <p> The plaintiffs&rsquo; bar has recently brought a flurry of class action lawsuits against businesses under the Illinois Biometric Information Privacy Act, commonly known as &ldquo;BIPA.&rdquo; &nbsp;In this Vlog, Seyfarth Shaw Associate Alex Karasik sits down with esteemed class action litigator, Partner Jerry Maatman, to discuss this emerging legal trend, and to provide employers guidance on how to prevent and defend against BIPA class actions.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/new-class-action-litigation-risks-what-businesses-need-to-know/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA091517-LE UPDATE: New York City Commission on Human Rights Issues Fact Sheets Regarding the NYC Salary History Ban http://www.seyfarth.com:80/publications/MA091517-LE Fri, 15 Sep 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:</strong> On September 12, 2017, the New York City Commission on Human Rights released two eagerly-awaited Fact Sheets to aid in the interpretation of the NYC salary history ban, which goes into effect on October 31, 2017.&nbsp; Seyfarth also obtained additional guidance from the Commission on its interpretation of this law.</em></p> <p> On May 4, 2017, New York City Mayor Bill De Blasio <a href="http://www.seyfarth.com/publications/OMM050617-LE">signed into law the legislation</a> that bans New York City employers from inquiring about or seeking the salary history of job candidates. &nbsp;Just as many employers are revising their hiring processes and forms, the Commission issued the additional guidance.</p> <p> The Commission issued two Fact Sheets, <a href="http://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SalaryHistory_KYO.pdf">one for Employers</a> and one for <a href="http://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SalaryHistory_KYR.pdf">Job Applicants</a>. The Commission has advised us that it does not plan to issue any other formal Enforcement Guidance.&nbsp;&nbsp;</p> <p> <strong>What Do the Fact Sheets Say?</strong></p> <p> Although there were no big surprises, the Fact Sheets confirm the Commission&rsquo;s interpretation of several components of the salary history law as noted below.</p> <p> <em>The Coverage is Broad but a Key Question Remains Unanswered</em></p> <p> The Fact Sheets suggest that the Commission intends the law to cover &ldquo;most applicants&rdquo; for jobs that are based in NYC, regardless of whether the position is full-time, part-time, or an internship. The law applies to any employer with at least one employee in NYC.</p> <p> The Fact Sheets do not clarify whether the law will extend to NYC residents who apply to jobs outside of NYC.&nbsp; New York Courts generally apply the &ldquo;impact test&rdquo; when considering the geographic reach of the NYC Human Rights law, which focuses on where the impact of the discriminatory conduct occurs.&nbsp; While a candidates&rsquo; NYC residency alone is unlikely to be sufficient to trigger application of the law, the Commission or the Courts may take the position that the law extends to employers outside of NYC who, for example, interview NYC residents in NYC, even if the role they are filling is outside NYC.&nbsp;</p> <p> The Fact Sheets clarify that the law will extend to independent contractors.&nbsp; Candidates for internal transfer or promotion with their current employer and candidates with public employers for which compensation is set pursuant to a collective bargaining agreement are, however, excluded from the law.</p> <p> <em>No Surprises on Prohibited Conduct </em></p> <p> In the Fact Sheets, the Commission provides a variety of examples of prohibited conduct:</p> <ul> <li> It is unlawful to ask applicants questions about or make statements intended to solicit information about the candidates&rsquo; current or prior earnings or benefits.</li> <li> It is unlawful to ask candidates&rsquo; current or former employers about candidates&rsquo; current or prior earnings or benefits.</li> <li> It is unlawful to search public records to learn about candidates&rsquo; current or prior earnings or benefits.</li> </ul> <p> <em>The Fact Sheets Discuss Permissible Conduct Without Clarifying Deferred Compensation</em></p> <p> The Fact Sheets state that employers can:</p> <ul> <li> Make statements about the anticipated salary, salary range, bonus, and benefits for a position;</li> <li> Ask about objective indicators of work productivity in the candidate&rsquo;s current or prior job, such as revenue or profits generated, sales, production reports, or books of business;</li> <li> Make inquiries to a candidate&rsquo;s current or former employers or search online to verify non-salary information, such as work history, responsibilities, or achievements.&nbsp; The Fact Sheets, like the law, note that if current or prior earnings or benefits are accidentally discovered during such a review, the employer cannot rely on this information in making salary or benefits decisions;</li> <li> Make inquiries about a candidate&rsquo;s current or prior earnings or benefits that are authorized or required by federal, state, or local law;</li> <li> Verify and consider current or prior earnings or benefits if this information is offered voluntarily and without prompting by the candidate during interview process.</li> </ul> <p> Unlike the text of the law itself, the Fact Sheets do not discuss deferred compensation.&nbsp; The law provides that &ldquo;without inquiring about salary history,&rdquo; an employer can &ldquo;engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation, <em>including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant&rsquo;s resignation from their current employer</em>.&rdquo; &nbsp;(Emphasis added.) &nbsp;As the salary expectations carve-out is in a separate section of the law&#39;s text than the carve-out that allows an employer to consider compensation history when a candidate provides the information voluntarily and without prompting, this suggests that employers may engage in a discussion about unvested equity or deferred compensation in connection with the discussion about the candidate&rsquo;s salary expectations and, if the candidate provides information about deferred compensation that may be cancelled or forfeited upon resignation, the employer can verify those amounts.&nbsp; The Fact Sheets provide only that employers can &ldquo;inquire about applicants&rsquo; expectations or requirements for salary, benefits, bonus, or commission.&rdquo; The Commission has clarified to us that the list of permissible conduct noted above is not exhaustive. The law is, however,&nbsp; not a model of clarity and employers should be careful in how these questions are asked to candidates. However, the Commission has provided further information about this point as noted below.</p> <p> <strong>Seyfarth&rsquo;s Discussions with the Commission</strong></p> <p> Despite this welcome guidance from the Commission, some aspects of the law remain ambiguous. Seyfarth Shaw spoke with Policy Counsel at the Commission to obtain clarification regarding other aspects of the law.</p> <p> <em>Deferred Compensation</em></p> <p> Though not addressed by the Fact Sheets, the Commission&rsquo;s working interpretation of how employers should deal with verifying deferred compensation that is cancelled or forfeited when a candidate resigns his or her current employment is that employers cannot affirmatively ask candidates whether they have deferred compensation or would forfeit deferred compensation. However, if the candidate offers information about deferred compensation as part of a discussion about <em><u>compensation expectations</u></em>, the employer <em>can</em> verify the value of the deferred compensation that would be forfeited, either with the prior employer or with the candidate. The Commission will take the same position regarding other aspects of prior compensation such as benefits, perks, and salary.&nbsp;</p> <p> The Commission also confirmed that asking for a candidate&rsquo;s salary expectations is permissible, and that as a &ldquo;best practice,&rdquo; an employer can quote the law itself. &nbsp;For example, in an application or interview seeking such information, an employer could quote the law as follows: &ldquo;without inquiring into your salary history, please inform us of your expectations with respect to salary, benefits and other compensation, including but not limited to unvested equity or deferred compensation that you would forfeit or have cancelled by virtue of your resignation from your current employer.&rdquo;</p> <p> The Commission also suggested notifying candidates that such information may be subject to verification with language such as &ldquo;Please note that replacement awards, if applicable, for cancelled or forfeited deferred compensation will be subject to verification.&rdquo;</p> <p> <em>Counter Offers</em></p> <p> The Commission has taken the position that the law does not extend to competing counter offers by other potential employers the candidate is also considering. &nbsp;The Commission does not view a counter offer as &ldquo;current or prior wages&rdquo; as defined in the law.</p> <p> <em>Bid Backs </em></p> <p> Though the Commission advised that it had not yet fully considered bid backs, it compared them to counter offers and stated the Commission&rsquo;s preliminary view that the law does not apply to bid backs.&nbsp; For example, if an employee currently works at Company A, interviews with Company B and receives an offer, and Company A then makes an offer to retain the employee, the law would not prohibit Company A from asking how much Company B offered the employee.&nbsp; Like counter offers, bid backs do not implicate &ldquo;current or prior&rdquo; salary, but rather, are offers to increase the employee&rsquo;s compensation at Company A if the employee rejects Company B&rsquo;s competing offer.</p> <p> <em>Definition of &ldquo;Without Prompting&rdquo;</em></p> <p> The law currently allows an employer to verify and consider a candidate&rsquo;s salary history if it is disclosed &ldquo;voluntarily and without prompting.&rdquo; &nbsp;This undefined and broad phrase provides little comfort to employers looking for clarity on the scope of such a safe harbor. The Commission said that it intends to adopt an &ldquo;objective test&rdquo; to determine whether a violation has occurred, and stated its view that &ldquo;if the average candidate would not think that the employer encouraged the disclosure,&rdquo; the disclosure of salary history is &ldquo;without prompting.&rdquo;</p> <p> <em>No Recordkeeping Requirement</em></p> <p> The Commission does not plan to advise companies on a best practice for documenting when a candidate volunteers salary information. There will be no record keeping requirement or number of years employers must maintain any record of a voluntary disclosure, as there is with the Fair Chance Act.</p> http://www.seyfarth.com:80/publications/MA091517-LE2 Unpaid Volunteers Are Not Covered By New Jersey’s Whistleblower Law http://www.seyfarth.com:80/publications/MA091517-LE2 Fri, 15 Sep 2017 00:00:00 -0500 <p class="BodySingle" style="text-align:justify"> <i><strong>Seyfarth Synopsis:</strong> New Jersey&rsquo;s Appellate Division upheld summary judgment dismissing a claim of whistleblower retaliation under the Conscientious Employee Protection Act (&ldquo;CEPA&rdquo;), finding that plaintiff, an unpaid volunteer firefighter, was not a protected &ldquo;employee&rdquo; as defined by the statute.&nbsp;</i></p> <p class="BodySingle" style="text-align:justify"> In <a href="http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/published/a0354-15.pdf"><em>Sauter v. Colts Neck Volunteer Fire Company No. 2</em></a>, a published opinion issued on September 13, 2017, a three-judge panel of the Appellate Division of New Jersey held that a plaintiff&rsquo;s CEPA retaliation claim was properly dismissed in light of the fact that plaintiff was an unpaid volunteer firefighter, and not a covered &ldquo;employee&rdquo; as defined by CEPA.</p> <p> The plaintiff was a full-time employee of the Monmouth County Sheriff&rsquo;s Office, and also served as a volunteer member of Colts Neck Volunteer Fire Company No. 2.&nbsp; For his volunteer services, the plaintiff did not receive any pay, but was eligible to participate in the fire company&rsquo;s Emergency Services Volunteer Length of Service Award Program (&ldquo;LOSAP&rdquo;).&nbsp; Under LOSAP, the plaintiff was entitled to receive deferred compensation benefits, and had accumulated $5,871.71 in his LOSAP account over his twenty-plus year career, which he would be eligible to receive as of age fifty-five.&nbsp;</p> <p> Plaintiff had been a volunteer with the fire company for over twenty years when his membership was terminated after several of his fellow volunteer firefighters, including his own brother, lodged a formal complaint against him.&nbsp; The complaint stemmed from a series of actions the plaintiff took after finding out that he would not receive compensation for attorneys&rsquo; fees in a prior lawsuit he brought against the fire company.&nbsp; Indeed, the fire company considered reimbursing him, but learned that doing so could jeopardize their 501(c)(3) status and declined to take the risk.&nbsp; Soon after learning he would not be reimbursed, he wrote to the fire company&rsquo;s insurance carrier challenging a recent claim as fraudulent.&nbsp; He also reported to the fire company that a number of volunteers used a fire company dumpster for their own personal trash, and demanded the fire company obtain a formal legal opinion whether using the dumpster would also risk the fire company&rsquo;s 501(c)(3) status.&nbsp; The plaintiff&rsquo;s fellow volunteers accused him of going &ldquo;out on his own to sabotage the company&rsquo;s insurance claim&hellip;falsely claiming that the company intentionally attempted to defraud the insurance company&hellip;[and making] a frivolous charge&rdquo; regarding the use of the dumpsters.&nbsp; As a result of the complaint, and after an investigation, the plaintiff was terminated and the general membership of the fire company declined to reinstate him.</p> <p> So, the plaintiff sued the fire company, alleging violations of the New Jersey Law Against Discrimination (&ldquo;LAD&rdquo;), CEPA, and defamation.&nbsp; &nbsp;During argument, the plaintiff withdrew his LAD claim and the trial judge dismissed the defamation and CEPA claims, finding that he was not an employee under the law.&nbsp; The plaintiff appealed.</p> <p> The question before the Appellate Division was whether the trial judge correctly concluded that unpaid volunteers are not employees for purposes of CEPA.&nbsp;</p> <p> The Appellate Division checked the statutory text, and found that CEPA explicitly defines a protected &ldquo;employee&rdquo; as &ldquo;any individual who performs services for and under the control and direction of an employer for wages or other remuneration.&rdquo;</p> <p> According to the Court, there was no question that the plaintiff performed services for and under the control of the fire company.&nbsp; But, had he done so &ldquo;for wages or other remuneration?&rdquo;&nbsp;</p> <p> The plaintiff argued that his participation in LOSAP sufficed as &ldquo;remuneration,&rdquo; but the Court disagreed.&nbsp; It described the benefits as an &ldquo;award,&rdquo; and found that the LOSAP benefits were &ldquo;not [] sufficient compensation to change the voluntary nature of the services themselves.&rdquo;&nbsp;</p> <p> Being thorough, the Court even reviewed the legislative intent and purpose underlying the passage of CEPA.&nbsp; The Court highlighted that CEPA was designed to &ldquo;protect those &lsquo;employees&rsquo; who risk their livelihoods in reporting illegal activities in the workplace.&rdquo;&nbsp; Despite the broad definition of employee under CEPA, which courts have found to include independent contractors, &ldquo;the Court has never suggested that an employer-employee relationship, the <em>sine qua non</em> to establishing liability under the statute&hellip;could be found in the absence of compensation for services.&rdquo;&nbsp; Further, &ldquo;None of plaintiff&rsquo;s alleged &lsquo;whistleblowing&rsquo; activities posed the least threat to his livelihood for the simple reason that he was not &lsquo;employed&rsquo; as a volunteer firefighter.&rdquo;</p> <p> <em>Sauter</em> demonstrates that courts looking to determine the scope of statutory protections are well-guided by the statutory text, and are willing to decline invitations of parties looking to expand protections in the name of broad remedial legislation.&nbsp; The text still matters.&nbsp; Thus, certain individuals simply might not be entitled to protections under state laws designed to regulate employer-employee relationships.&nbsp; In New Jersey, for purposes of CEPA, the line is drawn to include those individuals who receive wages or other remuneration, and unpaid volunteerism does not suffice simply because some type of work is performed. &nbsp;</p> <p class="BodySingle" style="text-align:justify"> <i><o:p></o:p></i></p> http://www.seyfarth.com:80/news/maechtlenhuffpo091517 Laura Maechtlen featured in the Huffington Post http://www.seyfarth.com:80/news/maechtlenhuffpo091517 Fri, 15 Sep 2017 00:00:00 -0500 <p> Laura Maechtlen featured in a September 15 story from the Huffington Post, &quot;The New Supermodels 2.0,&quot; on high-achieving business leaders who are breakout role models, providing one particularly silo&rsquo;d, often sidelined, and half-closeted cohort &mdash; LGBT+ women in business &mdash; examples of what success looks like. Maechtlen was described as an advocate for LGBT+ rights, who also co-chairs Seyfarth&#39;s Diversity &amp; Inclusion Action Team and is an active member of Lambda Legal. You can read the <a href="http://www.huffingtonpost.com/entry/the-new-supermodels-20_us_59b7efede4b0678066213e87">full article here</a>.</p> http://www.seyfarth.com:80/news/greensteincoop091417 Dennis Greenstein quoted in The Cooperator http://www.seyfarth.com:80/news/greensteincoop091417 Thu, 14 Sep 2017 00:00:00 -0500 <p> Dennis Greenstein was quoted in a September 14 story from The Cooperator, &quot;Getting the Young to Serve on the Board,&quot; on whether boards are age averse when it comes to recruiting younger owners. Greenstein said that most boards welcome young candidates who have backgrounds that will add a helpful point of view and expertise. You can view the<a href="https://cooperator.com/article/getting-the-young-to-serve-on-the-board/full"> full article here</a>.</p> http://www.seyfarth.com:80/publications/bestlawyers091417 Lynn Kappelman and Dawn Solowey authored an article in Best Lawyers http://www.seyfarth.com:80/publications/bestlawyers091417 Thu, 14 Sep 2017 00:00:00 -0500 <p> Lynn Kappelman and Dawn Solowey authored a September 14 article in Best Lawyers, &quot;Combating Punitive Damages Awards on Appeal.&quot; The article discusses the importance of picking a top-notch appellate team and moving quickly on a strategic action plan for post-trial motions and appeal when confronting a large punitive damages verdict in an employment case. You can read the <a href="https://www.bestlawyers.com/article/combating-punitive-damages-awards-on-appeal/1594">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT091417 The Week in Weed: September 15, 2017 http://www.seyfarth.com:80/publications/TBT091417 Thu, 14 Sep 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.</p> <p> &lsquo;Impossible&rsquo;: Senior police officials tell MPs they won&rsquo;t be ready for legal cannabis</p> <p> (CBC: Top Stories, 12 September 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/09/the-week-in-weed-september-15-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=69f329ebda-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-69f329ebda-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP091317 With EEO-1 Pay Report Gone, California Moves to Fill the Gap http://www.seyfarth.com:80/publications/CP091317 Wed, 13 Sep 2017 00:00:00 -0500 <p> In face of last month&rsquo;s suspended implementation of &ldquo;Component 2&rdquo; of the Revised EEO-1 Report, which would have required employers with over 100 employees to submit W-2 pay and FLSA hours worked information, California moves forward with its own pay data transparency initiative.</p> <p> <a href="http://www.calpeculiarities.com/2017/09/13/with-eeo-1-pay-report-gone-california-moves-to-fill-the-gap/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=21a7d101ba-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-21a7d101ba-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts091317 Upcoming Webinar! Protecting Trade Secrets in the Social Media Age http://www.seyfarth.com:80/publications/ts091317 Wed, 13 Sep 2017 00:00:00 -0500 <p> Social media and related issues in the workplace can be a headache for employers. There is no denying that social media has transformed the way that 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.</p> <p> <a href="http://www.tradesecretslaw.com/2017/09/articles/social-media-2/upcoming-webinar-protecting-trade-secrets-in-the-social-media-age/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=8591a43966-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-8591a43966-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/babsonlaw360091317 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360091317 Wed, 13 Sep 2017 00:00:00 -0500 <p> Marshall Babson was quoted in a September 13 story from Law360, &quot;Weingarten Memo Highlights NLRB&rsquo;s Willingness To Flip-Flop,&quot; on a recent advice memorandum that called for the board to return to a position it previously held, that workers in nonunion workplaces have the right to a co-worker representative during investigatory interviews. Babson said that the memo underscores a larger, age-old problem with the NLRB&rsquo;s decision-making process: the board&rsquo;s constant reversal of positions on important issues.</p> http://www.seyfarth.com:80/news/boutrosduke091317 Andrew Boutros quoted in the Duke Chronicle http://www.seyfarth.com:80/news/boutrosduke091317 Wed, 13 Sep 2017 00:00:00 -0500 <p> Andrew Boutros was quoted in a September 13 story from the Duke Chronicle, &quot;Duke&#39;s top lawyer on task force that formed recent Title IX policy recommendations,&quot; on the American Bar Association task force Boutros chaired that studied misconduct policies and produced a document outlining guidelines to ensure due process rights in sexual misconduct cases. Boutros said that it&rsquo;s important to point out that their recommendations were unanimous and bipartisan and reflect the sign-off of victim advocate groups and defense advocate groups. You can read the <a href="http://www.dukechronicle.com/article/2017/09/dukes-top-lawyer-on-task-force-that-formed-recent-title-ix-policy-recommendations">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellilaw360091117 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparellilaw360091117 Mon, 11 Sep 2017 00:00:00 -0500 <p> Angelo Paparelli was quoted in a September 11 story from Law360, &quot;Attys Sound The Alarm Over Advance Parole Denials,&quot; on how the government is allegedly denying requests for &ldquo;advance parole,&rdquo; a key document that allows foreign nationals to enter the U.S. if they leave the country. Paparelli said that green card applicants who have valid advance parole papers, but then apply for renewals of their advance parole and leave the U.S., will get a notice from USCIS that the request has been denied due to abandonment.</p> http://www.seyfarth.com:80/publications/OMM091117-LE One Stop Guide for Employer Response to Hurricanes Harvey and Irma: Advice on Legal Compliance and Options to Help Affected Employees http://www.seyfarth.com:80/publications/OMM091117-LE Mon, 11 Sep 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis: </strong>This past weekend Hurricane Irma made land fall, displacing millions throughout Florida and the Caribbean, and causing devastating damage to life and property. Our thoughts go out to our colleagues, clients, and friends affected by this natural disaster.&nbsp; We are thinking of you during this difficult and trying time.</em></p> <p> We have compiled below alerts and blogs to assist employers as they begin to pick up the pieces following Hurricane Irma, and as recovery efforts continue in Texas following Hurricane Harvey. These materials cover numerous relevant topics, including wage-hour and leave issues during office closures and emergency evacuations, emergency response plans and employee safety issues as business resumes, practical options like streamlined 401(k) loans and PTO donations to assist affected employees, and much more. While these materials were prepared prior to Hurricane Irma, much of the advice will also apply to employers in Florida and surrounding states.&nbsp; Click on each link below to learn more.</p> <p> <a href="http://www.seyfarth.com/publications/MA090617-EB"><strong>IRS Allows Employees to Donate the Value of PTO for Hurricane Harvey Victims</strong></a><br /> By: <a href="http://www.seyfarth.com/DurwardGehring">Jim Gehring</a></p> <p> <a href="http://www.seyfarth.com/publications/MA090117-EB"><strong>IRS and DOL Provide Relief for Plan Sponsors and Participants Affected by Hurricane Harvey</strong></a><br /> By: <a href="http://www.seyfarth.com/JakeDowning">Jake Downing</a>, <a href="http://www.seyfarth.com/RandellMontellaro">Randell Montellaro</a> and <a href="http://www.seyfarth.com/KellyPointer">Kelly Pointer</a><strong> </strong></p> <p> <a href="http://www.seyfarth.com/publications/MA083171-LE"><strong>After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey</strong></a><br /> By: <a href="http://www.seyfarth.com/MarkLiesII">Mark A. Lies II</a>, <a href="http://www.seyfarth.com/AdamYoung">Adam R. Young</a>, <a href="http://www.seyfarth.com/JamesCurtis">James L. Curtis</a>, and <a href="http://www.seyfarth.com/BenjaminBriggs">Benjamin D. Briggs</a></p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/08/practical-advice-for-weathering-pay-and-leave-issues-following-hurricane-harvey/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=4b512d3a0a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-4b512d3a0a-70404145"><strong>Practical Advice for Weathering Pay and Leave Issues Following Hurricane Harvey</strong></a><br /> By: <u><a href="http://laborandemploymentlawcounsel.us6.list-manage1.com/track/click?u=1684e2d964bfa9b5d101ab1dc&amp;id=49c259ce81&amp;e=e19c6fdd8a">Steve Shardonofsky</a></u>&nbsp;and <u><a href="http://laborandemploymentlawcounsel.us6.list-manage.com/track/click?u=1684e2d964bfa9b5d101ab1dc&amp;id=a1f0ffa615&amp;e=e19c6fdd8a">Kevin A. Fritz</a></u></p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WH091117 Ninth Circuit Cooks Up Rejection of Servers’ Claims and Sends DOL’s 20% Tip Credit Rule Back to the Kitchen, Creating Circuit Split http://www.seyfarth.com:80/publications/WH091117 Mon, 11 Sep 2017 00:00:00 -0500 <p> The Ninth Circuit Court of Appeals issued an important and restaurant-friendly decision rejecting the Department of Labor&rsquo;s interpretation of FLSA regulations on the use of the tip credit when paying regularly tipped employees.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/ninth-circuit-rejection-of-dols-20-tip-credit-rule/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=8f26b6e045-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-8f26b6e045-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/paparellisfc091017 Angelo Paparelli quoted in the San Francisco Chronicle http://www.seyfarth.com:80/news/paparellisfc091017 Sun, 10 Sep 2017 00:00:00 -0500 <p> Angelo Paparelli was quoted in a September 10 story from the San Francisco Chronicle, &quot;&lsquo;Dreamers&rsquo; could lose more than their jobs if immigration program dies.&quot; Paparelli said that If their work authorization is temporary, employers cannot ask them to reverify it before it expires, although they can remind them that the expiration date is coming up. You can read the <a href="http://www.sfchronicle.com/business/networth/article/Dreamers-could-lose-more-than-their-jobs-if-12184622.php">full article here</a>.</p> http://www.seyfarth.com:80/news/fcra090817 At Forefront of FCRA, Seyfarth Sees Triple-Digit Growth http://www.seyfarth.com:80/news/fcra090817 Fri, 08 Sep 2017 00:00:00 -0500 <p> Seyfarth&rsquo;s Background Screening Compliance &amp; Litigation team has experienced triple-digit revenue growth during the past year as one of the country&rsquo;s leading authorities on compliance issues under the Fair Credit Reporting Act (FCRA). The team comprises more than 35 lawyers across the country who regularly defend employers and background screening vendors in class action and single plaintiff cases governed by the FCRA and other statutes related to obtaining accurate information about prospective and current employees.</p> <p> &ldquo;As &lsquo;ban the box&rsquo; laws continue to modify at a rapid pace, our team is experiencing an amplified demand for FCRA services,&rdquo; said Pamela Devata, leader of Seyfarth&rsquo;s Background Screening Compliance &amp; Litigation Defense team. &ldquo;To meet this growing client need, the team has strategically assembled premier legal talent in the field.&rdquo;</p> <p> Seyfarth recently added top FCRA lawyer Jennifer L. Mora to its Labor &amp; Employment department in Los Angeles. Previously a shareholder at Littler Mendelson P.C., Mora&rsquo;s practice is focused on background check laws where she routinely counsels employers on both state and federal background check laws, including the FCRA and Title VII of the Civil Rights Act. A prolific writer and speaker on background screening issues, Mora is a member of the National Association of Professional Background Screeners. She earned her J.D., cum laude, from Seattle University and received a B.A. from California State University, Stanislaus.</p> <p> &ldquo;Jen is a highly respected FCRA legal mind and will be a valuable resource to employers tackling this complex area of employment law on the West Coast and nationally,&rdquo; said Devata.</p> <p> Seyfarth&rsquo;s Background Screening Compliance &amp; Litigation Defense team is comprised of lawyers across the country whose sole or primary focus is on FCRA compliance and litigation. They are considered national subject matter experts throughout the background screening community. The team is intimately familiar with the statutes, interpretive case law and FTC guidance on compliance issues and have counseled thousands of employers and represented hundreds of background screening providers. Notably, Seyfarth team members have testified before the Equal Employment Opportunity Commission (EEOC) about the use of credit checks as a screening tool for job applicants. Furthermore, the team has worked with the U.S. Chamber of Commerce and SHRM to reform and revise provisions of the FCRA that unintentionally restricted workplace investigations. These efforts were rewarded by amendments to the FCRA to change those provisions.</p> <p> To learn more about Seyfarth&rsquo;s Background Screening Compliance &amp; Litigation Team visit <a href="http://www.seyfarth.com/background-screening-compliance-litigation">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</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/news/lorbereld090817 Larry Lorber quoted in Employment Law Daily http://www.seyfarth.com:80/news/lorbereld090817 Fri, 08 Sep 2017 00:00:00 -0500 <p> Larry Lorber was quoted in a September 8 story from Employment Law Daily, &quot;While many specifics of proposed OFCCP merger into EEOC remain unclear, experts discuss range of issues presented.&quot; Lorber said that the significant differences in authority, procedures and enforcement processes, call into question what efficiencies and savings the merger would achieve if the current functions of both agencies are to remain. You can read the <a href="http://www.employmentlawdaily.com/index.php/2017/09/08/while-many-specifics-of-proposed-ofccp-merger-into-eeoc-remain-unclear-experts-discuss-range-of-issues-presented/">full article here</a>.</p> http://www.seyfarth.com:80/news/launeyccr090817 Kristina Launey quoted in the Cook County Record http://www.seyfarth.com:80/news/launeyccr090817 Fri, 08 Sep 2017 00:00:00 -0500 <p> Kristina Launey was quoted in a September 8 story from the Cook County Record, &quot;Lawsuits over website accessibility for the blind, disabled on the rise nationwide.&quot; Launey said that these lawsuits are not limited to any one area of country. In light of the spike in these cases, Launey recommends that companies review their websites and hire outside counsel and consultants. You can read the <a href="http://cookcountyrecord.com/stories/511210237-lawsuits-over-website-accessibility-for-the-blind-disabled-on-the-rise-nationwide">full article here</a>.</p> http://www.seyfarth.com:80/news/milliganalm090817 Robert Milligan quoted in ALM Legaltech News http://www.seyfarth.com:80/news/milliganalm090817 Fri, 08 Sep 2017 00:00:00 -0500 <p> Robert Milligan was quoted in a September 8 story from ALM Legaltech News, &quot;Trade Secrets Confidentiality During E-discovery an Increasing Focus for Attorneys,&quot; on how the Defend Trade Secrets Act and the 2015 FRCP amendments have attorneys reevaluating how they look at and defend trade secrets. Milligan said that there is an inherent tension between protecting genuine trade secrets and the interest in having public access to the courts and court records.</p> http://www.seyfarth.com:80/publications/EL090817 EEOC Sues Estée Lauder Over Paid Parental Leave Policy http://www.seyfarth.com:80/publications/EL090817 Fri, 08 Sep 2017 00:00:00 -0500 <p> Seyfarth Synopsis: If your company provides parental leave benefits beyond what is required by law, it is important that the company&rsquo;s policies and practices ensure male and female employees are being treated consistent with the prohibition of discrimination based on sex.<br /> <br /> To Read More Click <a href="http://www.laborandemploymentlawcounsel.com/2017/09/eeoc-sues-estee-lauder-over-paid-parental-leave-policy/">Here</a></p> http://www.seyfarth.com:80/publications/erisa090817 Ninth Circuit Holds that ERISA Preempts State Insurance Law Bans on Discretionary Clauses for Self-Funded ERISA Plans http://www.seyfarth.com:80/publications/erisa090817 Fri, 08 Sep 2017 00:00:00 -0500 <p> The Ninth Circuit has weighed into the national debate over discretionary clauses in ERISA plans, holding that ERISA preempts a state-law ban on discretionary clauses for self-funded disability plans, but not for fully-insured plans. <em>Williby v. Aetna Life Ins. Co.</em>, No. 15-56394, Aug. 15, 2019 (9th Cir.).</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/09/08/ninth-circuit-holds-that-erisa-preempts-state-insurance-law-bans-on-discretionary-clauses-for-self-funded-erisa-plans/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=d9346c6e0c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-d9346c6e0c-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM090817-INTL UK Corporate Governance Reform - More Regulation, But Not as Bad as Feared! http://www.seyfarth.com:80/publications/OMM090817-INTL Fri, 08 Sep 2017 00:00:00 -0500 <p> Last week the UK Government published its formal response paper on UK corporate governance reform, describing the proposals as &quot;world-leading.&quot;&nbsp;The proposals follow an earlier green paper published by the Government in November 2016&nbsp;that aimed to identify changes to the UK corporate governance regime to create &quot;an economy that works for everyone.&quot; The unions and sections of the media have expressed disappointment and suggested the reforms do not go far enough. Unions were seeking a cap on CEO pay, employee representatives on boards and binding shareholder votes on pay (amongst other measures), but these have been ruled out, much to the relief of the business community. The proposals suggested by the Government include the following:</p> <ul> <li> <strong>Pay ratios</strong> - Quoted companies will be required to report annually on the ratio of&nbsp;their CEOs&#39;&nbsp;pay to the average UK workforce pay, together with an explanation of any change in that ratio from year to year and how the ratio relates to pay and conditions across the wider workforce.</li> <li> <strong>Shareholder opposition to executive pay</strong> -&nbsp;The Government has requested that the UK Investment Association establish a register of listed companies which encounter significant (20% or more) shareholder opposition to executive pay proposals and for the register to record what those companies do in response to such opposition, such as issuing a public response or subjecting the executive pay proposals to a shareholder vote. The Investment Association is expected to establish its register before the end of 2017.</li> <li> <strong>Enhanced stakeholder engagement </strong>- Section 172 of the UK <em>Companies Act</em> <em>2006 </em>obliges company directors to have regard to the interests of employees, customers, suppliers and other stakeholders. The Government now proposes that public and private companies of &quot;significant size&quot; must explain how their directors have complied with section 172. It is not yet clear what &quot;significant size&quot; means, but commentators believe it means those companies with greater than 1,000 employees.</li> <li> <strong>Employee board representation</strong> - The Government has asked the Financial Reporting Council (FRC) to revise the UK Corporate Governance Code to require companies to choose one of three models (suggested in the 2016 green paper) for involving employees in board decisions.&nbsp;The three models are: to designate a non-executive director to represent employees; to&nbsp;create a formal employee advisory council that the board would be required to consult; and, to&nbsp;appoint a director from the workforce.&nbsp;The Government has not proposed employee representation on remuneration committees.</li> <li> <strong>Governance of large private companies</strong> -&nbsp;The Government has asked the FRC to work with various industry bodies (including the Institute of Directors, the Confederation of British Industry and the British Venture Capital Association) to develop a voluntary set of corporate governance principles for private companies with more than 2,000 employees.&nbsp;Separately, all such companies will also be required to disclose their corporate governance arrangements in their directors&rsquo; reports and on their website and to indicate whether they follow a formal code.</li> </ul> <p> <br /> The Government intends to take forward its proposals by June 2018 and for the new requirements to apply to company reporting years commencing on or after that date. The changes are intended to be delivered not through primary legislation, but by changes to the UK Corporate Governance Code and other regulator-led reforms.&nbsp;The FRC has indicated that changes to the Code will be the subject of a consultation later in 2017.&nbsp;</p> <p> The real impact of the proposed changes to the corporate governance regime is yet to be seen, but it seems unlikely that the &quot;world-leading&quot; reforms will deliver fully on the Government&rsquo;s promise to create &quot;an economy that works for everyone.&quot;</p> http://www.seyfarth.com:80/publications/OMM090817-LIT Practical Tips for Owners and Contractors Impacted By Hurricanes Harvey and Irma http://www.seyfarth.com:80/publications/OMM090817-LIT Fri, 08 Sep 2017 00:00:00 -0500 <div> Anyone watching what has happened in Houston, and what is predicted to happen in Florida, immediately thinks about the safety and well-being of those affected by Hurricanes Harvey and Irma. Once the rain stops, the water recedes, and the aftermath of destruction is assessed, both areas and their residents will be looking at a long road to recovery, much in the same way as New Orleans in 2005 (Hurricane Katrina) and New York/New Jersey in 2012 (SuperStorm Sandy). Among the many challenges that lie ahead, owners and contractors of existing projects, whether in Houston, Florida, or in other parts of the country, as well as those involved in new projects to rebuild, must take steps to assess the impacts and identify their contractual rights and obligations. For those in Houston and Florida, this will no doubt mean working closely with their insurance carriers to recover project related losses. For those in other parts of the country, contracting parties need to assess the impact, if any, on the projects and ascertain their available remedies.&nbsp;</div> <div> &nbsp;</div> <h2> Potential Hurricane-Related Impacts</h2> <div> Hurricanes can cause supply side and demand side issues with raw materials, supplies, and equipment, especially at critical junctures such as ports and warehouses due to their location on or near the coast. Natural disasters often affect the construction industry in the form of price increases and material scarcity. For example, oil shortages during a hurricane can greatly affect commercial contractors who rely upon diesel-powered machinery. Similarly, natural gas shortages cause prices to spike, which increases the cost of producing asphalt, paints, and tires for heavy machinery.&nbsp;</div> <div> &nbsp;</div> <div> Hurricanes can also impact the timely flow of materials, supplies, and equipment. In 2005, Hurricane Katrina created shortages of resins produced from oil that manufacturers needed to create polyvinylchloride (PVC) and other vinyl products. Damage caused by Katrina in the Gulf of Mexico disrupted supplies of ethylene and natural gas during the second half of 2005. In the aftermath of Katrina, repair efforts along the Gulf Coast quickly consumed many building materials, creating short term shortages and further price hikes. If equipment, materials, and supplies, are coming from the impacted areas, projects run the risk of delay. Moreover, supplies, equipment, materials and labor may be diverted to Houston and Florida, which could further impact your project.&nbsp;</div> <div> &nbsp;</div> <h2> Remedies Contractors May Seek From Hurricane Impacts</h2> <div> The general rule under most construction contracts is that the contractor is required to perform and see the work through to completion, or else run the risk of default, termination, and/or damages. However, external events beyond anyone&rsquo;s control or anticipation often disrupt this contractual equilibrium. With that in mind, it is critical for owners and contractors to understand the impacts that flow from such events, as the fallout from these unforeseeable acts can greatly impact a contractor&rsquo;s ability to perform under its contract.</div> <div> &nbsp;</div> <div> To accommodate for the unknown, most contracts provide a force majeure clause to limit and allocate risk. Force majeure (which is French for &ldquo;greater force&rdquo;) refers to events that are beyond the control of the contractor and generally wreak havoc on jobsites in the form of physical damage, in addition to cost and time impacts. Force majeure events typically include most natural disasters&mdash;fire, flood, earthquake, hurricane, drought, and other &ldquo;Acts of God&rdquo;&mdash;each of which are characterized by their complete unforseeability at the time of contract drafting. Notably, many construction contracts do not even use the term &ldquo;force majeure,&rdquo; but rather employ broad language addressing a variety of causes beyond the control of the party seeking to invoke the provision. See, e.g., AIA A201-2007, &sect; 8.3.1 (&ldquo;If the contractor is delayed ... by ... other causes beyond contractor&rsquo;s control.&rdquo;).&nbsp;</div> <div> &nbsp;</div> <div> In most standard contracts, both the owner and contractor will generally share the risk of loss for force majeure events, where contractors are entitled to a time extension, but not compensation. Thus, a contractor can rely on the force majeure clause to seek a time extension and avoid an assessment of liquidated damages by the owner. While a contractor will likely be entitled to additional time, contractors (unless the contract expressly provides otherwise) will not be allowed to recover delay damages as a result of the unforeseen event. Thus, contractors need to assess whether their projects will be impacted by Harvey and Irma, and determine what remedies their contracts provide.&nbsp;</div> <div> &nbsp;</div> <div> As far as recovery for price escalation, most contracts place the risk of price escalation on the contractor. The AIA documents, for example, do not include an escalation clause. If a contract does contain such escalation clause, the clause will typically provide a time period after which the escalation applies.</div> <div> &nbsp;</div> <h2> Disaster Relief</h2> <div> Finally, the House of Representatives recently passed a $7.9 billion aid package for Hurricane Harvey victims, and the Senate has approved an overall package valued that adds $7.4 billion, for a total of $15.3 billion. Undoubtedly, money will be made available in Florida as well. Both House and Senate bills have $7.4 billion going to the Federal Emergency Management Agency&rsquo;s (&ldquo;FEMA&rdquo;) disaster relief fund. Because federal money is involved, those contractors coming to the aid of a disaster relief area need to be aware of issues arising out of federal contracts issued through FEMA. Contractors working primarily in the commercial world may not be aware of the multitude of regulations they are subject to under the Federal Acquisition Regulations (&ldquo;FAR&rdquo;) and should take steps to familiarize themselves with the rules. While most of the contracts would likely be firm-fixed price, contractors working under a cost reimbursement contract may not be familiar with the regulations surrounding time-keeping and accounting practices. Mistakes in this area could open up contractors to issues involving false claims. Contractors working with federal money would also be subject to Davis-Bacon Act requirements, which establish the requirement for paying the local prevailing wages on public works projects for laborers and mechanics. Prudent contractors should familiarize themselves with any red tape issues prior to pursuing or accepting contracts involving federal funds.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM090817-LE Office Marital Dispute Did Not Trigger Employer’s Duty to Investigate http://www.seyfarth.com:80/publications/OMM090817-LE Fri, 08 Sep 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>In Nakai v. Friendship House Association of American Indians, Inc., the California Court of Appeal considered whether marital disputes that spill into the workplace trigger FEHA&rsquo;s marital status protections and an employer&rsquo;s duty to investigate. First, the case reiterates that alleged misconduct arising from marital discord does not always implicate FEHA&mdash;particularly if one is married to the CEO&rsquo;s daughter. More importantly, the case confirms that not every complaint of alleged misconduct requires an investigation before disciplining an at-will employee.</em></p> <p> <strong>The Facts</strong></p> <p> For over twenty years, Orlando Nakai worked as a counselor at Friendship House, a drug and alcohol rehabilitation center in San Francisco. He married a co-worker whose mother happened to be Friendship House&rsquo;s CEO. Nakai, his wife, and his mother-in-law worked together for fourteen years.</p> <p> By 2016, though, the marriage was deteriorating. Nakai&rsquo;s wife called her mother (the CEO) to report that Nakai had a gun, was angry at their co-workers, and was dangerous. The next morning, Nakai&rsquo;s mother-in-law placed him on administrative leave and then, without investigating her daughter&rsquo;s allegations, terminated Nakai&rsquo;s employment.</p> <p> Nakai sued Friendship House for marital-status discrimination and for failing to investigate his wife&rsquo;s complaints, both in asserted violation of FEHA. The trial court granted summary judgment to Friendship House. Nakai&nbsp; appealed.&nbsp;</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> FEHA prohibits marital status discrimination. By way of example, employers cannot refuse to hire single people because they are single. But the Court of Appeal agreed with the trial judge that Friendship House did not fire Nakai because of his marital status. Rather, Friendship House ended Nakai&rsquo;s employment because of a trait unique to his spouse&mdash;her relationship with the CEO, which does not amount to marital status discrimination. Even if Friendship House had terminated Nakai&rsquo;s employment because he was married to the CEO&rsquo;s daughter, such an action would not be because of Nakai&rsquo;s marital status, and so the action would not support a claim of marital-status discrimination.</p> <p> Next, the Court of Appeal considered Friendship House&rsquo;s failure to investigate the claims made by Nakai&rsquo;s wife. The Court of Appeal explained that FEHA does not create contractual due process rights in connection with an alleged perpetrator&rsquo;s employment. Absent a contractual or statutory provision to the contrary, employers considering the plight of an employee accused of misconduct &ldquo;may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment.&rdquo;&nbsp;</p> <p> While contracts requiring &ldquo;good cause&rdquo; for termination may, under some circumstances, create a reasonable investigation requirement, Nakai produced no such contract or even evidence of an implied agreement. His employment was at-will. Consequently, the Court of Appeal rejected his argument that he had a contractual right to have his employer investigate his wife&rsquo;s complaints.</p> <p> Nor was Nakai otherwise entitled to an investigation. The Court of Appeal held that any duty to investigate would apply only to complaints of conduct&mdash;such as unlawful discrimination or harassment&mdash;that FEHA prohibits. The complaints alleged against Nakai did not implicate prohibited conduct or protected status. &nbsp;</p> <p> The Court of Appeal concluded by considering whether, under FEHA, employers owe alleged perpetrators any duty to investigate the validity of complaints made against them. The Court of Appeal strongly suggested that, at least as to &ldquo;alleged threats of workplace violence,&rdquo; FEHA imposes no such duty. &nbsp;</p> <p> <strong>What <em>Friendship House</em> Means for Employers</strong></p> <p> <em>Friendship House</em> provides guidance to employers faced with workplace marital disputes. But its real value lies in the perspective it provides regarding employers&rsquo; duty to investigate misconduct complaints: unless there is a claim of prohibited conduct relating to protected status, there is no obligation to investigate. Nevertheless, employers should always consider investigating complaints before disciplining employees, as this may be a way to forestall future lawsuits or further acrimony among employees.&nbsp;</p> http://www.seyfarth.com:80/publications/MA090817-LIT A New and Important Development in Insider Trading Law http://www.seyfarth.com:80/publications/MA090817-LIT Fri, 08 Sep 2017 00:00:00 -0500 <div> In a case likely to have ongoing ramifications, the Second Circuit recently upheld the conviction of Matthew Martoma,<sup>1</sup> &nbsp;a former portfolio manager for Stephen Cohen&rsquo;s SAC Capital. In so doing, the court clarified, at least for now, the Second Circuit&rsquo;s view on an important open issue as to the law of insider trading. &nbsp;A divided court reversed its own 2015 opinion in <em>United States v. Newman</em>.<sup>2</sup> &nbsp;Newman held that a &ldquo;meaningfully close personal relationship&rdquo; between a tipper and a tippee, and an exchange of something &ldquo;pecuniary or similarly valuable in nature&rdquo; to the tipper was required to prove an insider trading violation.<sup>3</sup> &nbsp;<em>Newman</em> had a substantial impact on insider trading prosecutions in the Second Circuit because it extended the personal benefit test laid out in the seminal case of <em>Dirks v. SEC</em>.<sup>4</sup> &nbsp;In <em>Martoma</em>, the Second Circuit reversed course on the need for a close personal relationship requirement, noting that the recent Supreme Court decision in <em>Salman v. U.S.</em><sup>5</sup> &ldquo;abrogated&rdquo; the requirement and &ldquo;was no longer good law&rdquo;.<sup>6</sup> &nbsp;This Management Alert will provide the relevant history surrounding the issue, and offer some possible scenarios as to what may follow.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Background</strong></div> <div> &nbsp;</div> <div> <u>A. &nbsp;<em>Dirks</em></u></div> <div> &nbsp;</div> <div> Until <em>Dirks</em> the law relating to liability for insider trading by tippees was unclear. &nbsp;In <em>Dirks</em>, the Supreme Court addressed the applicability of insider trading law with respect to those who traded on confidential nonpublic information received from an insider. &nbsp;<em>Dirks</em> concluded that the appropriate test for determining whether or not there was a breach of the antifraud provisions of federal securities laws turned on whether an insider benefited by tipping the material nonpublic information to another non-insider. &nbsp;Thus, the test after <em>Dirks</em> was whether an insider breached a duty by tipping the information for his or her personal benefit, noting that &ldquo;absent some personal gain [to the insider] there has been no breach of duty to stockholders. &nbsp;And absent a breach by the insider there is no derivative breach [by the tippee].<sup>7</sup></div> <div> &nbsp;</div> <div> <u>B. &nbsp;<em>Newman</em></u></div> <div> &nbsp;</div> <div> Interpreting <em>Dirks</em>, <em>Newman&rsquo;s</em> requirement of a &ldquo;meaningfully close personal relationship&hellip; that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable in nature&rdquo; set a high standard for the government to meet.<sup>8</sup> &nbsp;<em>Newman</em> also required the tippee to know not only of the insider&rsquo;s breach, but that the insider acted in order to receive a personal benefit.<sup>9</sup> &nbsp;As such, it significantly curtailed cases involving remote tippees, like the defendants in <em>Newman</em>, who knew neither the tipper nor the original tippee.</div> <div> &nbsp;</div> <div> With <em>certiorari</em> denied, <em>Newman</em> never made it to the United States Supreme Court -- but soon thereafter the Ninth Circuit case <em>Salman v. U.S.</em> did.<em>10</em></div> <div> &nbsp;</div> <div> <u>C. &nbsp;<em>Salman</em></u></div> <div> &nbsp;</div> <div> In <em>Salman</em>, the Supreme Court reaffirmed the personal benefit requirement set forth in <em>Dirks</em>, but clarified the standard by concluding that the tipper&rsquo;s personal benefit need not be pecuniary; the benefit may be inferred when an insider gifts information to a relative. &nbsp;Critically, the Court stated that, to the extent the Second Circuit, in <em>Newman</em> held that an insider must receive something &ldquo;pecuniary or similarly valuable in nature&rdquo; in exchange for the information, that requirement is inconsistent with the Supreme Court&rsquo;s holding in <em>Dirks</em>.<sup>11</sup> &nbsp;Thus, <em>Salman</em> put to rest that a tipper must receive a pecuniary or other tangible benefit, holding that gifting information to a trading relative or friend was a sufficient personal benefit in and of itself. &nbsp;Purposefully left open in <em>Salman</em>, however, remained the issue of how close a relationship must there be between a tipper and tippee outside the context of relatives or friends sufficient to satisfy the personal benefit requirement set forth in <em>Dirks</em>.<sup>12</sup></div> <div> &nbsp;</div> <div> However, although the Court declined to address more broadly the nature of what constituted a personal benefit, it rejected the Government&rsquo;s argument that disclosure of confidential information to anyone, as opposed to a relative, friend or one otherwise acquainted with the tipper, would constitute a personal benefit sufficient to satisfy <em>Dirks</em>. &nbsp;</div> <div> &nbsp;</div> <div> <u>D. &nbsp;<em>Martoma</em></u></div> <div> &nbsp;</div> <div> Turning now to <em>Martoma</em>. &nbsp;<em>Martoma</em> was convicted in February 2014 and sentenced to nine years in prison because he received and traded on inside information relating to poor results in a clinical trial for an Alzheimer drug, enabling SAC to generate profits and avoid losses totaling $275 million after the results became public. &nbsp;A doctor who had confidential information relating to the clinical trials provided the information to <em>Martoma</em>. &nbsp;<em>Martoma</em> argued on appeal that the evidence against him was insufficient under <em>Newman</em>, which opinion was issued while his appeal was pending. &nbsp;<em>Martoma</em> argued that under <em>Newman</em>, his conviction should be thrown out because the relevant physician was only a casual acquaintance, and, although routinely paid as a consultant to SAC, he was not paid for the two consulting meetings during which he delivered the tips and thus there was insufficient evidence the doctor received a personal benefit.&nbsp;</div> <div> &nbsp;</div> <div> The Second Circuit held that <em>Newman&rsquo;s</em> holding was overturned by <em>Salman</em>, which held that proving a pecuniary benefit is unnecessary if a tipper gifts information to a relative or friend because in such circumstances a benefit can be inferred. &nbsp;The Second Circuit also noted that, in any event, the doctor in question had received numerous consulting fees as a result of his relationship with <em>Martoma</em>, so he did receive a pecuniary gain from which a rational trier of fact could have found a quid pro quo in their consulting relationship.&nbsp;</div> <div> &nbsp;</div> <div> Importantly, as <em>Salman</em> involved trading between close family members, it did not address, let alone explicitly overrule, <em>Newman&rsquo;s</em> meaningful close personal relationship requirement. &nbsp;Indeed it did not foreclose the argument that giving a gift to a trading tippee with whom the tipper has only a casual relationship might still meet <em>Dirks</em> personal benefit requirement. &nbsp;The majority in <em>Martoma</em> addressed the issue head on, noting that &ldquo;it would ordinarily be neither appropriate nor possible for [a panel] to reverse an existing Circuit precedent, <em>Shipping Corp. of India v. Jaldhi Overseas Pte. Ltd.</em><sup>13</sup> &nbsp;but also noted that &ldquo;a three-judge panel may [do so]... where an intervening Supreme Court decision casts doubt on the prior ruling&rdquo;. &nbsp;<em>Doscher v. Sea Port Grp. Sec. LLC.</em><sup>14</sup>&nbsp;Thus, it concluded that it was proper for it to act because &ldquo;<em>Salman</em> fundamentally altered the analysis underlying <em>Newman&rsquo;s</em> meaningfully close personal relationship requirement rendering it &ldquo;no longer good law&rdquo;.<sup>15</sup></div> <div> &nbsp;</div> <div> <strong>The Dissent</strong></div> <div> &nbsp;</div> <div> In a strongly worded dissent, more lengthy than the majority opinion, Judge Rosemary Pooler argued that the majority had gone too far in limiting the personal benefit requirement set forth in <em>Dirks</em>, &ldquo;[t]he majority holds that an insider receives a personal benefit when the insider gives information as a &ldquo;gift&rdquo; to <em>any</em> person. &nbsp;In holding that someone who gives a gift <em>always</em> receives a personal benefit from doing so, the majority strips the long-standing personal benefit rule of its limiting power. &nbsp;What counts as a &ldquo;gift&rdquo; is vague and subjective. &nbsp;Juries, and, more dangerously prosecutors, can now seize on this vagueness and subjectivity. &nbsp;The result will be liability in many cases where it could not previously lie.&rdquo;<sup>16</sup> &nbsp;Further, and more importantly, Judge Pooler argued that while <em>Salman</em> overturned <em>Newman&rsquo;s</em> holding that a tipper receive something &ldquo;of a pecuniary or similarly valuable nature&rdquo; it also referenced <em>Newman&rsquo;s</em> holding that the inference of a personal benefit from a gift &ldquo;is impermissible in the absence of proof of a meaningfully close personal relationship.&rdquo;<sup>17</sup> &nbsp;Indeed Judge Pooler noted that the Supreme Court &ldquo;explicitly stated that it overruled Newman <em>&lsquo;only to the extent&rsquo; </em>that it required an insider to &ldquo;receive something of a pecuniary or similarly valuable nature as a result of giving a gift to a friend&rdquo;.<sup>18</sup> &nbsp;She concluded &nbsp;that &ldquo;the Supreme Court&rsquo;s statement showed no disapproval of the &lsquo;meaningfully close personal relationship&rsquo; language in <em>Newman</em>,&rdquo;<sup>19</sup> &nbsp; and &ldquo;had the Supreme Court discussed the &ldquo;meaningfully close personal relationship&rdquo; requirement of Newman -- which it did not -- that discussion would have been dicta.&rdquo;<sup>20</sup> &nbsp;Finally, Judge Pooler complained that the majority overruled the holding of Newman without convening the Court <em>en banc </em>and dissented on that independent basis. &nbsp;Her criticism invites the obvious question -- what is next?</div> <div> &nbsp;</div> <div> <strong>What Is Next?&nbsp;</strong></div> <div> &nbsp;</div> <div> In light of the significance of the opinion and the length and strenuous objection set forth in the dissent, it would be surprising if <em>Martoma</em> did not ask for <em>en banc</em> review. &nbsp;A vote of the majority of the Second Circuit&rsquo;s eleven active judges is needed for that review to occur. &nbsp;Here, <em>Salman</em> did not overrule <em>Newman&rsquo;s</em> personal relationship requirement yet the majority expressly did so. &nbsp;Other Second Circuit Judges may view this as an abuse of that panel&rsquo;s authority on an important issue, and one which should not have been decided by less than the full Second &nbsp;Circuit. &nbsp;In addition to Judge Pooler, those judges who were part of the majority in <em>Newman</em>, for example, may have strong views on this issue, concurring in the need for an <em>en banc </em>review. &nbsp;In addition, should the Second Circuit decline to hear the case.<sup>21</sup> &nbsp;<em>Martoma</em> can also seek certiorari before the Supreme Court which, if it so chooses, can resolve the &ldquo;close personal relationship&rdquo; issue once and for all. &nbsp;One thing, however, is abundantly clear. &nbsp;The majority and dissenting opinions set forth in <em>Martoma</em> have carefully articulated their respective positions, and there is little doubt that those arguments will be advanced by prosecutors and defense counsel as insider-trading cases come before the Courts. &nbsp;Indeed, picking up on the Second Circuit sea-change between <em>Newman</em> and <em>Martoma</em> could mean that other Circuit Courts address the &ldquo;close personal relationship&rdquo; requirement as well. &nbsp;Should a split occur between the Circuits this would make Supreme Court review more likely, and perhaps inevitable.</div> <div> &nbsp;</div> <hr /> <div> 1 &nbsp;<em>U.S. v. Martoma</em>, No. 12 Cr. 973, 2014 WL 4384143 (S.D.N.Y. Sept. 4, 2014), <em>aff&rsquo;d</em>, No. 14-3599, 2017 WL 3611518 (2d Cir. Aug. 23, 2017).</div> <div> 2 &nbsp;<em>U.S. v. Newman</em>, 773 F.3d 438 (2d Cir. 2014), <em>reh&rsquo;g denied</em>, Nos. 13-1387, 13-1917, 2015 WL 1954058 (2d Cir. Apr. 3, 2015), <em>cert. denied</em>, 136 S.Ct. 242, 193 L.Ed.2d 133 (2015)</div> <div> 3 &nbsp;<em>Id</em>, at 452.</div> <div> 4 &nbsp;<em>Dirks v. SEC</em>, 463 U.S. 646 (1983).</div> <div> 5 &nbsp;<em>Salman v. U.S.</em>, 137 S.Ct. 420, 196 L.Ed.2d 351 (2016).</div> <div> 6 &nbsp;<em>Martoma</em>, 2017 WL 3611518, at *7, 19.</div> <div> 7 &nbsp;<em>Dirks</em>, 463 U.S. at 662.</div> <div> 8 &nbsp;<em>Newman</em>, 773 F.3d at 452.</div> <div> 9 &nbsp;<em>Id.</em> at 446.</div> <div> 10 &nbsp;<em>U.S. v. Salman</em>, 618 F. App&rsquo;x 886 (9th Cir. 2015).</div> <div> 11 &nbsp;<em>Newman</em>, 773 F.3d at 452.</div> <div> 12 &nbsp;Indeed, in writing for a unanimous Court, Justice Alito made clear that, based on the speci c facts before the Court, which involved &ldquo;precisely the gift of con dential information to a trading relative that Dirks envisioned&rdquo;, adherence to Dirks &ldquo;easily resolves the narrow issue presented here&rdquo;, but that&rdquo; [d]etermining whether an insider personally bene ts from a particular disclosure, a question of fact, will not always be easy for courts.&rdquo; <em>Salman v. U.S.</em>, 137 S.Ct at 425, 427, 429.</div> <div> 13 &nbsp;<em>Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte. Ltd.</em>, 585 F3d. 58, 67 (2d Cir. 2009), <em>cert. denied</em>, 559 U.S. 1030 (2010).</div> <div> 14 &nbsp;<em>Doscher v. Sea Port Grp. Sec. LLC</em>, 832 F.3d 372, 378( 2d Cir. 2016).</div> <div> 15 &nbsp;<em>Martoma</em>, 2017 WL 3611518, at *7</div> <div> 16 &nbsp;<em>Id.</em> at *11</div> <div> 17 &nbsp;<em>Salman v. U.S. </em>137 S.Ct. at 422, 425 (internal citations omitted).</div> <div> 18 &nbsp;<em>Martoma</em>, 2017 WL 3611518, at *16. (emphasis added).</div> <div> 19 &nbsp;<em>Id.</em> at *17.</div> <div> 20 &nbsp;<em>Id.</em> at *17.</div> <div> 21 &nbsp;&rdquo;The Government sought en banc review in Newman, an extremely controversial decision when rendered, which request was denied by the Second Circuit. This prompts some court watchers to believe that an en banc review will not be granted since it is used so sparingly in the Second Circuit. Other observers, however, note that the propriety of a two judge majority panel overruling Second Circuit precedent will necessitate such a review</div> http://www.seyfarth.com:80/publications/TBT090717 The Week in Weed: September 8, 2017 http://www.seyfarth.com:80/publications/TBT090717 Thu, 07 Sep 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.</p> <p> Mass. marijuana czar hopeful for on-time rollout of pot sales</p> <p> (Boston Globe: 6 September 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/09/the-week-in-weed-september-8-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=a48b9589bb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-a48b9589bb-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA090617-EB IRS Allows Employees to Donate the Value of PTO for Hurricane Harvey Victims http://www.seyfarth.com:80/publications/MA090617-EB Wed, 06 Sep 2017 00:00:00 -0500 <div> The IRS has announced a program that allows employees to donate the value of their vacation, sick time, or other paid time off (&ldquo;PTO&rdquo;) for the relief of victims of Hurricane or Tropical Storm Harvey. &nbsp;Under IRS Notice 2017-48, issued on September 5, employers may contribute the value of the PTO contributed by their employees as Harvey relief to a non-profit organization and will be entitled to a deduction that may be treated as a business expense, rather than a charitable contribution, as long as the donations are specifically for the relief of Harvey victims and are made by January 1, 2019. &nbsp;</div> <div> &nbsp;</div> <div> The employees who make the donations will not be entitled to take charitable deductions, but will not be subject to income or social security taxes on the amounts donated.</div> <div> &nbsp;</div> <div> This differs from a traditional leave donation program, under which employees can donate a portion of their PTO to be used in kind by employees who were affected by a natural disaster such as Harvey. &nbsp;The temporary relief announced by the IRS allows the value of the donated PTO to be converted into cash charitable contributions, making it more widely useful, particularly in the case of employers who do not have employees located in the area affected by Harvey.</div> <div> &nbsp;</div> <div> This relief is in addition to the IRS announcement last week that it was relaxing the rules governing the documentation of hardship withdrawals and loans from 401(k) plans for employees located in the areas affected by Harvey. &nbsp;For more information on that relief, see our <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA090117EB.pdf">management alert</a>.</div> <div> &nbsp;</div> <div> Finally, some clients have expressed an interest is using their affiliated private foundations (as opposed to public charities such as the Red Cross) to make charitable contributions for the relief of Harvey victims, so that the relief can be targeted to their employees located in the affected areas. &nbsp;After opposing this practice in the past, the IRS has changed its position and will now allow a private foundation to give priority to employees of the sponsoring employer in making individual hardship relief grants, as long as certain safeguards are met.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM090617-LE2 New Texas Law Provides Equal Protection to Foster Parents Under Family Leave Policies http://www.seyfarth.com:80/publications/OMM090617-LE2 Wed, 06 Sep 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis: </strong>At the state level, Texas law does not require employers to provide family leave to employees.&nbsp; However, a newly enacted law provides that if a Texas employer chooses to offer time off to employees to help them care for a biological or adoptive child, it must also offer the same leave to foster parents (i.e., to care for a foster child).</em></p> <p> Texas House Bill 88, which Governor Greg Abbott signed into law on May 26, 2017, provides for the addition of Section 21.0595 to the Texas Labor Code.&nbsp; Section 21.0595 states that an employer commits an unlawful employment practice if: (1) the employer administers a leave policy under which an employee is entitled to personal leave to care for or otherwise assist the employee&rsquo;s sick child; and (2) that policy &ldquo;does not treat in the same manner as an employee&rsquo;s biological or adopted minor child any foster child of the employee&rdquo; who both resides in the same household as the employee and is under the conservatorship of the Texas Department of Family and Protective Services.&nbsp; The new law went into effect on September 1, 2017, and applies prospectively to conduct occurring after that date.</p> <p> Thus, under this new law, where a company leave policy provides employees time off to care for their &ldquo;children&rdquo; or a &ldquo;son or daughter&rdquo;, those terms must be interpreted to include foster children as well&mdash;similar to requirements under the federal Family and Medical Leave Act (FMLA).&nbsp; Under the FMLA (which applies to private employers with 50 or more employees), eligible employees may take up to 12 workweeks of job-protected leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.&nbsp; The FMLA defines a &ldquo;son or daughter&rdquo; as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.&nbsp; According to the U.S. Department of Labor, the government agency charged with enforcing the FMLA, the broad definition of &ldquo;son or daughter&rdquo; is intended to reflect the reality that many children in the United States live with a parent other than their biological father and mother. &nbsp;The same rationale is reflected in Texas House Bill 88.</p> <p> While enforcement of the new law will likely focus on <em>implementation</em> of leave policies, employers (particularly those not subject to the FMLA) should take this opportunity to review and update the language of any existing family leave policies to make clear that where an employee is permitted to take personal leave to care for a biological or adoptive child, the same opportunity extends to an employee seeking leave to care for a foster child. &nbsp;Importantly, this new Texas law does not require employers to provide such leave, and does not mandate that employers provide family leave in excess of what is already required under the FMLA or other existing policies.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM090617-LE Breaking News: Update to Seyfarth Alerts Regarding the Stay of “Component 2” of the Revised EEO-1 Report http://www.seyfarth.com:80/publications/OMM090617-LE Wed, 06 Sep 2017 00:00:00 -0500 <p class="BodySingle"> <i><strong>Seyfarth Synopsis:</strong> In update to our alerts issued last week, Seyfarth has learned that the 2017 EEO-1 Report, due on March 31, 2018, will be based on employment data from a payroll period between October 1, 2017 and December 31, 2017.</i></p> <p class="BodySingle"> <u>Recent Updates Regarding the Revised EEO-1 Report</u></p> <p> As we initially reported last <a href="http://www.seyfarth.com/publications/OMM082917-LE2">Tuesday (August 29)</a>, the Office of Information and Regulatory Affairs (&ldquo;OIRA&rdquo;) has suspended implementation of &ldquo;Component 2&rdquo; of the Revised EEO-1 Report which would have required employers with over 100 employees to submit W-2 pay and FLSA hours worked information.&nbsp; We updated this report the <a href="http://www.seyfarth.com/publications/OMM083017-LE2">following day (August 30)</a> to include a statement issued by Victoria Lipnic, Acting Chair of the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;), which advised employers that they would be required to file the EEO-1 Report used in previous years (also known as &ldquo;Component 1&rdquo; of the Revised EEO-1 Report) by the March 31, 2018 deadline.&nbsp;</p> <p> <u>New Information to Report</u></p> <p> In addition to the information that we have previously reported, the EEOC has issued additional information to clarify that the snapshot period for the 2017 EEO-1 Report will be a payroll period of the employer&rsquo;s choice in October, November or December of 2017. The EEOC&rsquo;s communication contains the following information:</p> <ul> <li> Private employers with 100 or more employees and federal contractors with 50 or more employees and $50,000 in contracts are required to file EEO-1 Reports</li> <li> Filers are required to report on race, ethnicity, and gender data within the ten EEO-1 job categories</li> <li> No filers will be required to report on either W-2 wage or FLSA hours worked information</li> <li> Filers are required to report based on employment data from a payroll period in October, November or December of 2017</li> <li> All EEO-1 Reports are due on March 31, 2018</li> </ul> <p> <u>What Does This Mean for the VETS-4212?</u></p> <p> As we <a href="http://www.seyfarth.com/publications/OMM073117-LE">previously reported (July 31)</a>, federal contractors subject to reporting requirements under the Vietnam Era Veterans&rsquo; Readjustment Act (&ldquo;VEVRAA&rdquo;) have been granted permission to file their 2018 VETS 4212 Reports (due September 30, 2018) using employment data as of December 31, 2017.&nbsp; It is not yet clear whether the Department of Labor (&ldquo;DOL&rdquo;) will permit federal contractors to use employment data collected on a date other than December 31, 2017 for their 2018 VETS 4212 Reports. Thus, federal contractors who wish to avoid gathering data separately to comply with the similar compliance requirements of both the EEO-1 and VETS 4212, should &nbsp;consider using the December 31 snapshot date for their EEO-1 employment data.&nbsp; In this way, the same December 31 snapshot data can be used to prepare both the 2017 EEO-1 Report (due on 3/31/2018) and the 2018 VETS 4212 Report (due on 9/30/2018).</p> <p> Federal contractors are further reminded that their <strong>2017</strong> Vets-4212 Reports remain due on 9/30/2017 based on snapshot data from a pay period in July, August or September of 2017.&nbsp;</p> <p> Despite the stay on gathering and reporting wage information on the EEO-1 Report, equal pay continues to be of significant interest to the EEOC and OFCCP. Accordingly, employers should continue to take proactive measures to ensure that their pay practices are applied without regard to gender and race/ethnicity.</p> <p> We will continue to monitor these developments and will provide additional information as it becomes available. &nbsp;</p> <p class="BodySingle"> <i><o:p></o:p></i></p> http://www.seyfarth.com:80/publications/IMM090617 Dream Over? Trump Administration Announces Plans to Phase Out DACA http://www.seyfarth.com:80/publications/IMM090617 Wed, 06 Sep 2017 00:00:00 -0500 <p> The Department of Homeland Security (DHS) to terminate the Deferred Action for Childhood Arrivals (DACA) program.</p> <p> &ldquo;Congress, get ready to do your job &ndash; DACA,&rdquo; tweets President Trump on Tuesday morning.</p> <p> <a href="http://www.bigimmigrationlawblog.com/2017/09/dream-over-trump-administration-announces-plans-to-phase-out-daca/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=50de27e4e1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-50de27e4e1-73179525">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP090617 Federal Enclaves: Islands Amidst a Sea of Cal-Peculiarities http://www.seyfarth.com:80/publications/CP090617 Wed, 06 Sep 2017 00:00:00 -0500 <p> Labor Day sales may be over, but some savvy California employers might still find a great deal. That&rsquo;s because not all land inside California&rsquo;s borders is actually within the legal jurisdiction of California. Rather, some areas are federal enclaves&mdash;territory California has ceded to the federal government and in which federal law largely applies. California employers operating within these enclaves are free of many peculiar California employment laws, and need only follow federal employment law. For this reason, employers who prefer federal employment law but love operating inside California&rsquo;s borders&mdash;and who doesn&rsquo;t?&mdash;may want to consider whether they can operate within a federal enclave.</p> <p> <a href="http://www.calpeculiarities.com/2017/09/06/federal-enclaves-islands-amidst-a-sea-of-cal-peculiarities/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=4794231e0f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-4794231e0f-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/lorberbna090617 Larry Lorber quoted in Bloomberg BNA http://www.seyfarth.com:80/news/lorberbna090617 Wed, 06 Sep 2017 00:00:00 -0500 <p> Larry Lorber was quoted in a September 6 story from Bloomberg BNA, &quot;Employers Won the Pay-Data Battle but May Lose the War,&quot; on how the Office of Management and Budget halted proposed changes to the EEO-1 form that would have required certain businesses to report pay data to the federal government. Lorber hasn&#39;t ruled out the possibility of the EEOC readdressing the issue of federal pay reporting, but he said it&#39;s unlikely.</p> http://www.seyfarth.com:80/news/casciarishrm090517 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm090517 Tue, 05 Sep 2017 00:00:00 -0500 <p> Joan Casciari was quoted in a September 5 story from SHRM, &quot;Supervisors Overrode HR-Approved Accommodations for Obese Worker,&quot; on how obesity is covered by the ADA if it results from an underlying medical condition. Casciari said that the Equal Employment Opportunity Commission (EEOC) has taken the position that obesity by itself&mdash;whether caused by an underlying medical condition or not&mdash;can be an ADA-covered disability. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/court-report-managers-ignoring-hr-obesity.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/wh090517 White House to Nominate S.C. Labor Official to Serve as WHD Administrator http://www.seyfarth.com:80/publications/wh090517 Tue, 05 Sep 2017 00:00:00 -0500 <p> The White House announced its intent to nominate Cheryl Stanton to serve as the Administrator of the U.S. Department of Labor&rsquo;s Wage &amp; Hour Division. Stanton currently serves as the Executive Director for the South Carolina Department of Employment and Workforce. Prior to that, she worked in private practice as a management-side labor and employment attorney. She also previously served as Associate White House Counsel for President George W. Bush, where she was the administration&rsquo;s principal liaison to the U.S. Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/white-house-to-nominate-whd-administrator/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=a192e86827-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-a192e86827-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts090517 File Share Platforms and Business Risk http://www.seyfarth.com:80/publications/ts090517 Tue, 05 Sep 2017 00:00:00 -0500 <p> The use of open file sharing platforms in business continues to increase in 2017; Dropbox alone has over 200,000 active business accounts. Unfortunately, the convenience of these platforms and the increase in use by businesses attracts the attention of hackers as well. File sharing platforms and accounts have a high &ldquo;hack value&rdquo;&mdash;the overall value of the accounts on the dark web&mdash;due to the relative ease with which account can be obtained and the sensitivity of the information stored on these platforms.</p> <p> <a href="http://www.tradesecretslaw.com/2017/09/articles/cybersecurity/file-share-platforms-and-business-risk/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=21415208a9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-21415208a9-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA090517-LE Dream Over? Trump Administration Announces Plans to Phase Out DACA http://www.seyfarth.com:80/publications/MA090517-LE Tue, 05 Sep 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis: </strong>The Department of Homeland Security (DHS) to terminate the Deferred Action for Childhood Arrivals (DACA) program.</em></p> <p> <em>&quot;Congress, get ready to do your job - DACA,&quot; tweets President Trump on Tuesday morning.&nbsp;&nbsp;&nbsp;</em></p> <p> <strong>End to DACA</strong></p> <p> The President&rsquo;s tweet confirmed Sunday&rsquo;s reports that the Trump administration will move forward with plans to wind down the Deferred Action for Childhood Arrivals (DACA) program following challenges to its legality by the attorneys general of several states.</p> <p> Attorney General Sessions made a formal announcement this morning outlining an end to the Executive Action taken by President Obama in 2012, after Congress failed to pass the Dream Act in 2010.&nbsp; The Administration confirmed that no action -- meaning no loss of work authorization and/or removal of DACA recipients -- will take place prior to March 2018.&nbsp; This six-month period appears intended to provide Congress with a window within which to take the legislative action alluded to on the President&rsquo;s Twitter account.&nbsp;</p> <p> It is estimated that DACA provided work authorization to almost 800,000 &ldquo;Dreamers&rdquo; who were brought to the United States as children, many of whom know no other country. &nbsp;Acting Department of Homeland Security (DHS) Secretary Elaine Duke released the <a href="https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca">Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), </a>and the Department of Homeland Security&rsquo;s U.S. Citizenship and Immigration Services (USCIS) simultaneously issued an <a href="https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca">FAQ</a> outlining the particulars of the DACA rescission. &nbsp;The <a href="https://www.dhs.gov/news/2017/09/05/fact-sheet-rescission-deferred-action-childhood-arrivals-daca">DHS Fact Sheet</a> confirms that, &ldquo;effective immediately,&rdquo; DHS:</p> <ul> <li> Will adjudicate&mdash;on an individual, case-by-case basis&mdash;properly filed pending DACA initial requests and associated applications for Employment Authorization Documents (EADs) that have been accepted as of September 5, 2017.</li> <li> Will reject all DACA initial requests and associated applications for EADs filed after September 5, 2017.</li> <li> Will adjudicate&mdash;on an individual, case-by-case basis&mdash;properly filed pending DACA renewal requests and associated applications for EADs from current beneficiaries that have been accepted as of September 5, 2017..&nbsp; The government will also accept extension applications from current beneficiaries whose employment authorization benefits will expire between September 5, 2017 and March 5, 2018 -- as long as the application for extension benefits is filed on or before October 5, 2017.</li> <li> Will reject all DACA renewal requests and associated applications for EADs filed outside of the parameters specified above.</li> <li> Will not terminate the grants of previously issued deferred action or revoke EADs solely based on the directives in the memorandum for the remaining duration of their validity periods.</li> <li> Will not approve any new applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, U.S. Customs and Border Protection (CBP) will, of course, retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will retain the authority to revoke or terminate an advance parole document at any time.</li> <li> Will administratively close all pending applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.</li> <li> Will continue to exercise its discretionary authority to terminate or deny deferred action for any reason, at any time, with or without notice.</li> </ul> <p dir="rtl" style="margin-right: 4.5pt; text-align: left;"> USCIS acknowledged that DACA recipients will retain deferred action and their EADs &ldquo;until they expire, unless terminated or revoked.&rdquo;&nbsp; Notably, the FAQ &nbsp;states that &ldquo;DACA benefits are generally valid for two years from the date of issuance.&rdquo;&nbsp; Accordingly, as indicated above, it appears that USCIS will continue to issue EADs for current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017 for a two-year time period. &nbsp;However, DHS has not yet directly clarified the period of validity for EAD renewals</p> <p> <strong>Bi-Partisan Legislation in Support of DACA</strong></p> <p> Congress will likely refocus the debate related to the &ldquo;dreamers,&rdquo; and there are currently two main bipartisan bills in play that could grant status and a &ldquo;pathway to citizenship&rdquo; to the DACA population.</p> <ol> <li> Introduced by Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Jeff Flake (R-AZ), and Chuck Schumer (D-NY), the <a href="https://www.durbin.senate.gov/imo/media/doc/Dream%20Act%20of%202017%20section%20by%20section.pdf">Dream Act of 2017</a> provides a path to U.S. citizenship for young undocumented immigrants with DACA or temporary protected status (TPS) who meet certain educational requirements, enter the workforce, or enlist in the military. &nbsp;All must successfully pass a background check and remain eligible.</li> <li> <a href="https://www.congress.gov/bill/115th-congress/house-bill/1468/text">The Recognizing America&#39;s Children (RAC) Ac</a><u>t</u> would allow &ldquo;dreamers&rdquo; who arrived in the U.S. as minors prior to 2010 the ability to adjust their status -- meaning to apply for U.S. permanent residence or a green card -- if they meet certain educational or military requirements, successfully pass a background check, and remain in good legal standing.</li> </ol> <p> <strong>The Business Community&rsquo;s Support of DACA</strong></p> <p> Last Thursday, <a href="https://dreamers.fwd.us/">FWD.us</a> published a letter from <a href="https://dreamers.fwd.us/business-leaders"><em>Leaders of American Industry on DACA</em></a><em>,</em> including CEOs/Founders/Executives from Facebook, Apple, Amazon, General Motors, Google, Hyatt, Levi Strauss, Netflix, and PayPal reminding the President and Congress that &ldquo;Dreamers are vital to the future of our companies and our economy. With them, we grow and create jobs. They are part of why we will continue to have a global competitive advantage.&rdquo;</p> <p> <strong><u>Possible Workforce Impact from DACA and TPS Elimination</u></strong></p> <p> In light of the termination of DACA, as well as possible suspension of several <a href="https://www.uscis.gov/humanitarian/temporary-protected-status">TPS programs</a>, U.S. companies may wish to conduct an assessment of the number of potentially affected individuals currently in their employ.&nbsp; Seyfarth partner, and former USCIS Director, Leon Rodriguez, estimated &ldquo;that the combination of the threats to TPS and to DACA mean that as many as 1 million workers could lose U.S. work authorization over approximately a two and one half year period,&rdquo; in a Seyfarth <a href="http://www.seyfarth.com/publications/MA072417-LE">client alert</a>.</p> <p> Recent Form I-9 guidance and auto-extension rules now force employers to review employment eligibility basis codes. &nbsp;Reviewing these category codes which are listed on EADs, may provide a starting place to assess the impact of the loss of DACA and TPS recipients. &nbsp;However, this type of undertaking should be carefully considered with the assistance of competent counsel to ensure that there are no anti-discrimination based missteps.&nbsp;</p> http://www.seyfarth.com:80/news/passantinoforbes090417 Alex Passantino quoted in Forbes http://www.seyfarth.com:80/news/passantinoforbes090417 Mon, 04 Sep 2017 00:00:00 -0500 <p> Alex Passantino was quoted in a September 4 story from Forbes, &quot;9 Signs Of Bad News For Workers On Labor Day 2017,&quot; on how the higher cut-off for overtime exempt employees was sunk. Passantino said that there&#39;s no question that the 2016 final rule was trying to increase the number of people entitled to overtime. You can read the <a href="https://www.forbes.com/sites/eriksherman/2017/09/04/9-signs-of-bad-news-for-workers-on-labor-day-2017/#69d89b8a30cc">full article here</a>.</p> http://www.seyfarth.com:80/news/devatamora090417 Pamela Devata and Jennifer Mora quoted in Business Insurance http://www.seyfarth.com:80/news/devatamora090417 Mon, 04 Sep 2017 00:00:00 -0500 <p> Pamela Devata and Jennifer Mora were quoted in a September 4 story from Business Insurance, &quot;Conviction inquiry laws stymie firms,&quot; on how &ldquo;Ban the box&rdquo; laws requiring employers to delay asking about applicants&rsquo; conviction history until far along in the job application process have gained momentum at the state and local levels and are leaving employers to face a variety of potential liability issues. Devata said that Indiana has approved legislation that bans its political subdivisions from enacting &ldquo;ban the box&rdquo; restrictions for private employers. Mora said that these ordinances all differ in their remedies, so depending on where the employer is located, they could be faced with a simple slap on the wrist or they could receive monetary penalties ranging from $100 to several thousand dollars. You can read the <a href="http://www.businessinsurance.com/article/20170904/NEWS06/912315559/Conviction-inquiry-laws-stymie-firms-employment-practice-risks">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinousa090117 Alex Passantino quoted in USA Today http://www.seyfarth.com:80/news/passantinousa090117 Fri, 01 Sep 2017 00:00:00 -0500 <p> Alex Passantino was quoted in a September 1 story in USA Today, &quot;Judge strikes down overtime pay hike for 4.2 million workers.&quot; Passantino predicted the Trump administration would not appeal the ruling because it preserves its ability to raise the salary threshold above $23,660 but below the $47,476 set by the Obama administration. You can read the <a href="https://www.usatoday.com/story/money/2017/08/31/judge-strikes-down-overtime-pay-hike-4-2-million-workers/622689001/">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinolaw360090117 Alex Passantino quoted in Law360 http://www.seyfarth.com:80/news/passantinolaw360090117 Fri, 01 Sep 2017 00:00:00 -0500 <p> Alex Passantino was quoted in a September 1 story from Law360, &quot;4 Things To Watch After Obama&#39;s OT Rule Nixed,&quot; on whether the DOL will issue a new rule. Passantino said that the ruling clears the path for the DOL to continue with the rulemaking process it has started with its request for information and, presumably, ultimately increase the existing level to something more reasonable than the Obama DOL did.</p> http://www.seyfarth.com:80/news/greensteinqacoop090117 Dennis Greenstein participated in a Q&A in The Cooperator http://www.seyfarth.com:80/news/greensteinqacoop090117 Fri, 01 Sep 2017 00:00:00 -0500 <p> Dennis Greenstein participated in a September 1 Q&amp;A in The Cooperator, &quot;Co-op Board Hasn&#39;t Had a Meeting in a While.&quot; Greenstein said that the failure to hold any meetings in a long time raises issues about the lack of governance of the building. You can read the <a href="https://cooperator.com/article/qa-co-op-board-hasnt-had-a-meeting-in-a-while/full">full Q&amp;A here</a>.</p> http://www.seyfarth.com:80/publications/MA090117-EB IRS and DOL Provide Relief for Plan Sponsors and Participants Affected by Hurricane Harvey http://www.seyfarth.com:80/publications/MA090117-EB Fri, 01 Sep 2017 00:00:00 -0500 <div> <em>The Internal Revenue Service (IRS) and Department of Labor (DOL) issued temporary relief on deadlines and procedural requirements applicable to employee benefit plans for employers impacted by Hurricane Harvey.&nbsp;</em><br /> &nbsp;</div> <div> On Wednesday, August 30, 2017, the IRS issued <a href="https://urldefense.proofpoint.com/v2/url?u=http-3A__links.govdelivery.com-3A80_track-3Ftype-3Dclick-26enid-3DZWFzPTEmbWFpbGluZ2lkPTIwMTcwODMwLjc3NTI1MzExJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE3MDgzMC43NzUyNTMxMSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MTUzNTQxJmVtYWlsaWQ9cmxvZWJsQHNleWZhcnRoLmNvbSZ1c2VyaWQ9cmxvZWJsQHNleWZhcnRoLmNvbSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm-26-26-26117-26-26-26https-3A__www.irs.gov_pub_irs-2Ddrop_a-2D17-2D11.pdf&amp;d=DwMFAA&amp;c=fMwtGtbwbi-K_84JbrNh2g&amp;r=nd-uWVrBXsjLBAZqOkGJ_EdVMjdNNgAec0Dxc1Pl_AM&amp;m=i1IT-EbDbLamO3B1Soo_t-NGptRZJbWD8uOtEVDWdZk&amp;s=ErCgKLdQTAfyFoXLM7PT_dCuTI4dbnvPQ8H_Cyb2COQ&amp;e=">Announcement 2017-11</a>, which provides easier access to 401(k), 403(b) and 457(b) funds for individuals affected by Hurricane Harvey. For a list of locations, click&nbsp;<a href="https://www.fema.gov/disaster/4332">here</a>. On the same day, the Department of Labor (DOL) issued a <a href="https://www.dol.gov/newsroom/releases/ebsa/ebsa20170830">news release</a> giving relief to the timing rules for depositing participant contributions and loan repayments, and the requirement to issue blackout notices in the event investment trading in retirement plans was or is interrupted by Hurricane Harvey.</div> <div> <div> &nbsp;</div> <div> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <tbody> <tr> <td> <div> The IRS also issued a <a href="https://www.irs.gov/newsroom/tax-relief-for-victims-of-hurricane-harvey-in-texas">news release</a> giving extensions for various tax filing deadlines. &nbsp;Included among the relief is an extension until January 31, 2018 to file Forms 5500 that are due between August 23, 2017 and January 31, 2018. &nbsp;</div> </td> </tr> </tbody> </table> </div> <div> <br /> <strong>Loan and Hardship Withdrawal Relief</strong><br /> <br /> Under IRS rules, employees have access to their funds in employer retirement plans only upon the occurrence of certain events, such as termination of employment, disability or hardship. &nbsp;The distributions and withdrawals pursuant to these events are further governed by IRS rules and limitations. &nbsp;Wednesday&rsquo;s announcement eases some of these limitations for participants affected by Hurricane Harvey. &nbsp;Following is a summary of the normal rules, the relief afforded by the Announcement and the required follow-up steps.<br /> <br /> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <thead> <tr> <th scope="col"> Normal Rule</th> <th scope="col"> Immediate Relief<span style="white-space: pre;"> </span></th> <th scope="col"> Follow-Up Steps</th> </tr> </thead> <tbody> <tr> <td> The plan must contain language allowing loans and hardship withdrawals before they can be made.&nbsp;</td> <td> Plans that do not contain such language may nonetheless grant loans and/or hardship withdrawals between August 23, 2017 and January 31, 2018.<span style="white-space: pre;"> </span></td> <td> Plan language allowing the loans and/or hardship withdrawals must be added by the end of the first plan year beginning after December 31, 2017. The deadline for calendar year plans is December 31, 2018.</td> </tr> <tr> <td> Plans generally require documentation of the hardship before allowing a hardship withdrawal. &nbsp;<br /> <br /> Plans also might have other processes and procedures; for example, a plan requiring spousal consent to a loan or distribution may require a death certificate if the participant claims his/her spouse is deceased.<span style="white-space: pre;"> </span></td> <td> The plan administrator can grant the loan or hardship withdrawal before the normal documentation and procedural requirements are satisfied. &nbsp;However, normal spousal consent rules continue to apply (unless the participant claims that his or her spouse is deceased, it is reasonable to belief that is the case, and the plan administrator makes reasonable efforts to obtain the death certificate as soon as practicable).<span style="white-space: pre;"> </span></td> <td> <p> The plan administrator must make a good faith effort to comply with the plan&rsquo;s requirements and collect supporting documentation from the participant as soon as practicable.</p> <p> Withdrawals made pursuant to the Announcement are still taxable (except to the extent they consist of after-tax contributions) and subject to the 10% penalty if made before age 59 1/2. &nbsp;</p> </td> </tr> <tr> <td> Employees generally cannot contribute to the plan for six (6) months after receipt of the hardship withdrawal.<span style="white-space: pre;"> </span></td> <td> The 6-month suspension is not required.</td> <td> None</td> </tr> </tbody> </table> <p> <br /> The relief described in the Announcement can be extended to a participant even if he/she is a former employee. &nbsp;Withdrawals can be made not only for the participant&rsquo;s hardship, but for that of his/her lineal ascendant or descendant, or spouse or other dependent with a principal residence or place of employment in one of the covered disaster areas. &nbsp;</p> </div> <div> <strong>Contribution/Loan Repayment Timing and Blackout Relief</strong><br /> &nbsp;</div> <div> The DOL also issued relief with respect to deadlines for remitting retirement plan contributions to the plan and issuing blackout notices.<br /> <br /> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <thead> <tr> <th scope="col"> Normal Rule</th> <th scope="col"> Immediate Relief<span style="white-space: pre;"> </span></th> <th scope="col"> Follow-Up Steps</th> </tr> </thead> <tbody> <tr> <td> When an employee contributes to a defined contribution plan (or makes a loan payment) out of his/her paycheck, the employer must remit the contribution (or loan payment) to the plan as soon as the funds can reasonably be segregated from the employer&rsquo;s general assets, but in no event later than the 15th business day of the month after the month in which they were withheld by the employer.&nbsp;</td> <td> The DOL will not allege a violation if the remittance is delayed solely due to Hurricane Harvey, provided the employer and its service providers act prudently to remit the contributions as soon as practicable under the circumstances.</td> <td> Employers should remit participants&rsquo; contributions and loan repayments to the plan as soon as practicable under the circumstances.</td> </tr> <tr> <td> The plan administrator must notify participants 30 days in advance if participants will be temporarily unable to obtain a loan or distribution or trade in their retirement accounts for more than three (3) business days (referred to as a blackout period),<span style="white-space: pre;"> </span></td> <td> The DOL will not allege a violation for failure to give notice of blackout periods related to Hurricane Harvey.</td> <td> Consider issuing a notice if the blackout period is going to continue for a period after the date it is practicable for the employer to give notice.</td> </tr> </tbody> </table> <p> <br /> <strong>Guidance for Group Health Plans</strong></p> </div> <div> The DOL acknowledged that deadlines under group health plans might be missed due to Hurricane Harvey, such as the deadline to issue a COBRA notice or make a COBRA election, or the deadline to file a benefit claim. &nbsp;The DOL&rsquo;s guidance encourages employers to make reasonable accommodations for employees to prevent the loss of benefits, and notes that it will give grace periods where appropriate when compliance with the plan&rsquo;s pre-established time frames under the plan&rsquo;s normal claim and appeal procedures is not possible due to Hurricane Harvey.</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/MA090117-LE Obama Overtime Rule Invalidated by Federal Court in Texas http://www.seyfarth.com:80/publications/MA090117-LE Fri, 01 Sep 2017 00:00:00 -0500 <p> For nearly a year, employers have been watching and waiting as litigation challenging the Obama administration&rsquo;s revision to the Fair Labor Standards Act&rsquo;s executive, administrative, and professional (&ldquo;EAP&rdquo;) exemptions&mdash;a revision intended to make millions of more Americans eligible for overtime pay&mdash;wound its way through litigation in the Eastern District of Texas and the Fifth Circuit of Appeals. As of Thursday afternoon, the waiting is over: District Judge Amos Mazzant issued an order invalidating the revised rule.</p> <p> The Obama DOL&rsquo;s revised rule, which was finalized in the summer of 2016 and slated to take effect on December 1, 2016, would have increased the salary level required for EAP employees from $455 per week (i.e., $23,660 per year) to $913 per week (i.e., $47,476 per year). The rule also called for automatic, inflation-indexed updates to the salary level every three years. Ultimately, the revised rule did not become effective on December 1, however, because Judge Mazzant issued an order days prior that preliminarily enjoined it from going into effect.</p> <p> District Judge Mazzant issued his order in two consolidated lawsuits challenging the DOL for acting beyond its rulemaking authority. The order was the result of a motion filed by a group of state attorneys general who argued that the DOL&rsquo;s rulemaking was invalid, in part because it exceeded the authority Congress gave DOL to define who is a &ldquo;bona fide&rdquo; EAP employee who should not be entitled to overtime pay. At about the same time that the &ldquo;state plaintiffs&rdquo; filed their motion for preliminary injunction, which the district court granted, another set of plaintiffs&mdash;a group of business associations (&ldquo;business plaintiffs&rdquo;)&mdash;filed an expedited motion for summary judgment, advancing similar arguments that the DOL&rsquo;s rulemaking was unlawful.</p> <p> After Judge Mazzant granted the state plaintiffs&rsquo; preliminary injunction motion, the Obama DOL filed an interlocutory appeal in the Fifth Circuit attacking the injunction order. Importantly, however, this was just before the Trump Administration took office. Ultimately, briefing in the appeal was delayed as a new president settled into office and his new Labor Secretary, Alexander Acosta, took the helm at DOL. In doing so, Secretary Acosta and his Acting Solicitor were required to assess how to maneuver a proceeding involving an injunction order that on the one hand blocked the implementation of an overtime rule championed by the prior administration, but on the other hand suggested that the DOL might not have authority to set <em>any</em> salary level for the EAP exemptions, despite having done so for nearly eighty years.</p> <p> In the meantime, the business plaintiffs&rsquo; motion for summary judgment lingered before the district court.</p> <p> Thursday&rsquo;s ruling was preceded by a recent flurry of activity. On Wednesday, for example, Judge Mazzant issued an order confirming no further argument was necessary on the summary judgment motion. The court also collapsed the state plaintiffs&rsquo; and business plaintiffs&rsquo; cases together and joined the state plaintiffs to the business plaintiffs&rsquo; pending summary judgment motion.&nbsp;Nevertheless, it seemed unlikely that Judge Mazzant would rule on the summary judgment motion before hearing from the Fifth Circuit regarding his earlier preliminary injunction order. After all, an appellate ruling on whether it was proper to preliminarily enjoin the new rule certainly could have impacted or at least informed Judge Mazzant&rsquo;s reasoning on whether the rule should be declared invalid, as the summary judgment motion argued it should.</p> <p> Meanwhile, at the Fifth Circuit, oral argument was slated for October 3, and the parties were jockeying for an opportunity to be heard. The business plaintiffs, who were not parties to the appeal, requested permission to appear as amici at the oral argument. Soon thereafter, all parties filed a motion to stay proceedings while they attempted to negotiate a deal that would eliminate the need for further proceedings. Indeed, even on Thursday as the district court was issuing its final judgment, the parties on appeal were filing various submissions with the Fifth Circuit.</p> <p> So perhaps all were surprised when District Judge Mazzant issued orders finding that the DOL&rsquo;s 2016 rulemaking was invalid, and that the AFL-CIO would not be joined to the case. The district court&rsquo;s ruling on both of these issues is fairly straightforward. On the motion for summary judgment, which collapsed all parties and remaining issues into its walls, the court ruled as follows:</p> <ul> <li> As associations and similar groups, the business plaintiffs had standing to challenge the DOL&rsquo;s rulemaking.</li> <li> The FLSA does in fact apply to state governments, contrary to the state plaintiffs&rsquo; arguments.</li> <li> Applying <em>Chevron</em> deference analysis, the DOL exceeded its authority by setting a salary level test that in effect eliminated the need to consider whether employees performed duties that demonstrate their roles working in a bona fide EAP capacity, based on definitions that Congress would have understood at the time it enacted the FLSA.</li> <li> The automatic updating provided by the DOL&rsquo;s final 2016 rule was unlawful for similar reasons.</li> <li> Clarifying an area of concern for the DOL and other stakeholders, the court did not rule on the question of whether the DOL has authority to set <em>any</em> salary level for the EAP exemptions. The court&rsquo;s ruling concerned only the 2016 rulemaking, finding the heightened salary level under the revised rule goes too far.</li> </ul> <p> In denying the AFL-CIO&rsquo;s motion to intervene as a necessary or permissive party, the court reasoned:</p> <ul> <li> The union&rsquo;s motion was untimely, as it had been aware of the litigation and the issues on which it bore. Yet it waited to file its motion to intervene until material events had occurred in the litigation.</li> <li> The union had failed to show that the DOL and related defendants were not adequately representing the interests that it purported to protect.</li> <li> The union had argued among its primary points that Secretary of Labor nominee Andrew Puzder would not protect those interests; but Alexander Acosta was confirmed as Secretary of Labor, meaning that Mr. Puzder&rsquo;s potential actions never became a reality.</li> <li> And the court would nevertheless not exercise its discretion to allow the union to join the case.</li> </ul> <p> The question on everyone&rsquo;s mind is: <strong><em>where does this leave us? </em></strong></p> <p> One easy answer is that with respect to the EAP exemption itself, the 2004 rule remains in place. Employees making $455 per week (i.e., $23,660 per year) and whose primary duty satisfies one of the EAP duties tests may be classified as exempt.</p> <p> Beyond that, there are no easy answers. The parties are no doubt considering whether the district court&rsquo;s summary judgment order, which purports to withdraw all prior rulings, renders the pending appeal moot or requires its dismissal. After all, the summary judgment motion decided by the district court presents largely the same issues currently before the Fifth Circuit&mdash;namely, the validity of the new overtime rule. Some commentators have already exclaimed that the district court&rsquo;s order mooted the interlocutory appeal entirely. Our view is that the question could be more complicated. Suffice it to say, there&rsquo;s a lot to digest.</p> <p> Either way, it also remains unclear whether either side will appeal Thursday&rsquo;s rulings. While one would assume that DOL will not, we can&rsquo;t slam the door on the possibility. As we saw with the appeal of the preliminary injunction, even the new Administration&rsquo;s policy differences may not override DOL&rsquo;s desire to defend itself against court orders limiting its authority, as the preliminary injunction did and as the court&rsquo;s summary judgment order appears to do. If DOL determines that there is an institutional need to preserve its rulemaking authority, then it is possible we might see a DOL-initiated appeal, which would further complicate the question of how the union might agitate the proceedings.</p> <p> As for the AFL-CIO, next steps are even foggier at this moment. Given that the DOL has already signaled the commencement of new rulemaking on the EAP exemptions, the AFL-CIO may take the view that even a complete victory on appeal&mdash;i.e., one that would permit its inclusion in the case and the reversal of the district court&rsquo;s summary judgment decision&mdash;would ring hollow, as it could be undone by the DOL&rsquo;s efforts to formulate a new rule that would take the place of the Obama rule.</p> <p> Without question, the Eastern District of Texas&rsquo;s order invalidating the 2016 overtime rule brings a large measure of closure for employers waiting to learn whether the rule would ever go into effect. The completeness and finality of that closure will depend largely on whether the AFL-CIO seeks appeal, as well as the DOL&rsquo;s anticipated efforts to implement a new rule altogether. We will, of course, continue to monitor and update you on these important events.</p> http://www.seyfarth.com:80/publications/wls090117 Seyfarth continues growth in Hong Kong, adds partner Raymond Wong http://www.seyfarth.com:80/publications/wls090117 Fri, 01 Sep 2017 00:00:00 -0500 <p> Seyfarth Shaw has announced the addition of corporate partner <a href="http://www.seyfarth.com/RaymondWong" rel="noopener noreferrer" target="_blank">Raymond Wong</a> in Hong Kong as the firm continues to scale its International Corporate and Commercial practice in the Asia-Pacific region.</p> <p> <a href="http://www.workplacelawandstrategy.com.au/2017/09/seyfarth-continues-growth-in-hong-kong-adds-partner-raymond-wong/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=c9ff2610d4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-c9ff2610d4-73179577">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH090117 Obama Overtime Rule Invalidated by Federal Court in Texas http://www.seyfarth.com:80/publications/WH090117 Fri, 01 Sep 2017 00:00:00 -0500 <p> For nearly a year, employers have been watching and waiting as litigation challenging the Obama administration&rsquo;s revision to the&nbsp;FLSA&rsquo;s&nbsp;executive, administrative, and professional (&ldquo;EAP&rdquo;) exemptions&mdash;a revision intended to make millions of more Americans eligible for overtime pay&mdash;wound its way through litigation in the Eastern District of Texas and the Fifth Circuit of Appeals. As of Thursday afternoon, the waiting is over: District Judge Amos Mazzant issued an order invalidating the revised rule.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/ot-rule-invalidated/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=9e79b6bb25-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-9e79b6bb25-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wc090117 Seventh Circuit Rejects And Lambasts “Worthless” Settlement For Class Of Subway Sandwich Purchasers http://www.seyfarth.com:80/publications/wc090117 Fri, 01 Sep 2017 00:00:00 -0500 <p> In<em><a href="http://www.workplaceclassaction.com/wp-content/uploads/sites/214/2017/09/Subway.pdf"> In Re Subway Footlong Sandwich Mktg. &amp; Sales Practices Litig.</a>,</em> No. 16-1652, 2017 U.S. App. LEXIS 16260 (7th Cir. Aug. 25, 2017), the U.S. Court of Appeals for the Seventh Circuit addressed the propriety of an injunctive relief settlement for a class of Subway &ldquo;Footlong&rdquo; sandwich purchasers.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/seventh-circuit-rejects-and-lambasts-worthless-settlement-for-class-of-subway-sandwich-purchasers/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=598e526b40-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-598e526b40-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/refj090117 Arren Goldman and Mitchell Kaplan authored an article in the Real Estate Finance Journal http://www.seyfarth.com:80/publications/refj090117 Fri, 01 Sep 2017 00:00:00 -0500 <p> Arren Goldman and Mitchell Kaplan authored a September 1 article in the Real Estate Finance Journal, &quot;Navigating the Choppy Waters of the CMBS Loan Assumption Process: 10 Ways to Bring Calm to the Storm.&quot; The article addresses 10 ways to make the process more manageable for all parties involved. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/REFJ_090117.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/vicktfl090117 Jordan Vick authored an article in The Federal Lawyer http://www.seyfarth.com:80/publications/vicktfl090117 Fri, 01 Sep 2017 00:00:00 -0500 <p> Jordan Vick authored a September 1 article for The Federal Lawyer, &quot;Hon. Joan Humphrey Lefkow.&quot; The article discusses the Senior Judge for the U.S. District Court for the Northern District of Illinois.</p> http://www.seyfarth.com:80/publications/wse083117 After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey http://www.seyfarth.com:80/publications/wse083117 Thu, 31 Aug 2017 00:00:00 -0500 <p> It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will provide orderly procedures and prevent panic, thereby minimizing employee injuries and damage to property.</p> <p> <a href="http://www.environmentalsafetyupdate.com/catastrophe-response/after-the-rain-disaster-recovery-and-employee-safety-following-hurricane-harvey/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=55ea9179c2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-55ea9179c2-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL083117 Fair Game? Predictable Scheduling Laws — The Sensation Sweeping The Nation http://www.seyfarth.com:80/publications/EL083117 Thu, 31 Aug 2017 00:00:00 -0500 <p> Fair scheduling laws &ndash; sometimes referred to as &ldquo;predictive&rdquo; or &ldquo;predictable&rdquo; scheduling &ndash; are popping up in city councils and state legislatures across the nation. Typically affecting larger retail employers or fast-food establishments, the laws often require employers to post work schedules with advance notice and mandate a specified amount of &ldquo;predictability pay&rdquo; &ndash; such as one hour of pay for every four hours of scheduled work &ndash; if changes are made to an employee&rsquo;s schedule on short notice.&nbsp;</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/08/fair-game-predictable-scheduling-laws-the-sensation-sweeping-the-nation/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=1f3737b2a6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-1f3737b2a6-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT083117 The Week in Weed: September 1, 2017 http://www.seyfarth.com:80/publications/TBT083117 Thu, 31 Aug 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.</p> <p> FDA Is Asking for Public Comments about CBD</p> <p> (High TImes: News, 30 August 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-september-1-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=db8b1d6e29-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-db8b1d6e29-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/RD083117-LE Fair Game? Predictable Scheduling Laws -- The Sensation Sweeping The Nation http://www.seyfarth.com:80/publications/RD083117-LE Thu, 31 Aug 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis</em></strong><em>:&nbsp; Last minute scheduling change?&nbsp; Want to make sure you have enough employees on stand-by to cover shifts?&nbsp; In a growing number of areas around the country, that will cost you.&nbsp; </em></p> <p> Fair scheduling laws &ndash; sometimes referred to as &ldquo;predictive&rdquo; or &ldquo;predictable&rdquo; scheduling &ndash; are popping up in city councils and state legislatures across the nation.&nbsp; Typically affecting larger retail employers or fast-food establishments, the laws often require employers to post work schedules with advance notice and mandate a specified amount of &ldquo;predictability pay&rdquo; &ndash; such as one hour of pay for every four hours of scheduled work &ndash; if changes are made to an employee&rsquo;s schedule on short notice.&nbsp; These laws also tend to require predictability pay if employees are &ldquo;on call&rdquo; but not called in to work, and some restrict the ability to schedule employees for closing and opening shifts (&ldquo;clopenings&rdquo;).</p> <p> San Francisco was the first to pass a law of this kind, which went into effect in July 2015.&nbsp; But in the past year, more states and cities have passed &ndash; or are considering &ndash; similar legislation.&nbsp; In June, Oregon became the first state to pass a fair scheduling law (effective July 2018).&nbsp; Emeryville, CA and Seattle enacted scheduling laws that went into effect July 1, 2017, and New York City&rsquo;s recently passed ordinance will be enforceable as of November 26, 2017.&nbsp;</p> <p> Other states and municipalities (including Congress) have introduced predictable scheduling legislation, including Arizona, California, Chicago, Connecticut, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, and Washington, D.C.&nbsp; (Georgia, on the other hand, has taken the opposite approach, and passed a law that <em>prohibits</em> municipalities from passing a law that would require predictability pay.)</p> <p> The theory behind these laws is that uncertainty in scheduling and last-minute scheduling changes wreak havoc on employees&rsquo; ability to plan for caregiving needs, hold second jobs or attend school, and plan their income.&nbsp; Several national retailers have already been forgoing &ldquo;on-call&rdquo; scheduling practices, irrespective of any legal mandate.</p> <p> Retailers should be mindful of these new scheduling laws, particularly for those who have operations in affected jurisdictions.&nbsp; Bear in mind that each law varies.&nbsp; In Seattle, for example, schedules must be posted 14 days in advance and employees are entitled to receive half-time pay for any shift they are &ldquo;on-call&rdquo; but not called to work.&nbsp; New York City&rsquo;s law, on the other hand, only requires schedules to be posted with 72 hours&rsquo; notice, but bans on-call scheduling altogether.&nbsp;</p> <p> Many of the proposed and enacted laws also create an &ldquo;interactive process&rdquo; obligation &ndash; similar to the Americans with Disabilities Act &ndash; whereby employers are required to have a dialogue with employees about scheduling preferences and scheduling accommodation requests, and in some instances must grant such requests absent a bona fide business reason.&nbsp; They also generally prohibit retaliation against employees who request changes to their schedules.&nbsp;&nbsp;&nbsp;</p> <p> Each statute also contains its own unique exceptions.&nbsp; Most do not require predictability pay if operational needs change due to natural disasters or other unforeseen changes, or if an employee requests a scheduling change, volunteers for a change, or swaps shifts.&nbsp; Oregon&rsquo;s law calls for the creation of a &ldquo;voluntary standby list&rdquo; of employees who may be called upon to work unexpected hours without receiving additional compensation.&nbsp;&nbsp;&nbsp;&nbsp;</p> <p> Given the differentiation in these laws, employers with national retail operations should review their scheduling policies to ensure compliance with local laws and train management about the penalties associated with last-minute scheduling changes.&nbsp; For some, adopting a broad policy curbing on-call scheduling, providing advance notice of schedules, and creating voluntary &ldquo;standby&rdquo; lists may be helpful to comply with these varying laws with minimal interruption to business operations.</p> <p> For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the&nbsp;<a href="http://www.seyfarth.com/Absence-Management-and-Accommodations">Absence Management &amp; Accommodations Team</a>&nbsp;or the&nbsp;<a href="http://www.seyfarth.com/Workplace-Policies-and-Handbooks">Workplace Policies and Handbooks Team</a>.</p> http://www.seyfarth.com:80/publications/MA083171-LE After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey http://www.seyfarth.com:80/publications/MA083171-LE Thu, 31 Aug 2017 00:00:00 -0500 <div> <p> <strong><em>Seyfarth Synopsis</em></strong><em>: It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will provide orderly procedures and prevent panic, thereby minimizing employee injuries and damage to property.</em></p> </div> <div> <strong>I. Introduction</strong></div> <div> &nbsp;</div> <div> The ongoing devastation from Hurricane Harvey, flooding in Houston, and ongoing rain in Texas and Louisiana are indicative how merciless and unpredictable Mother Nature can be. Climate scientists have warned higher sea levels and water temperatures in coming years, which are predicted to lead to more hurricanes and coastal flooding in the future. For employers, who are obligated to keep their employees safe during working hours, disaster preparedness is critical.</div> <div> &nbsp;</div> <div> This article outlines employers&rsquo; obligations to protect employees before, during, and after an emergency and offers recommendations to employers in the following areas: 1) preparing for an emergency; 2) taking action during an emergency; and 3) cleaning up and resuming business after an emergency.</div> <div> &nbsp;</div> <div> <div> <strong>II. Preparing for an Emergency</strong></div> <div> &nbsp;</div> <div> 29 C.F.R. 1910.38 requires all workplaces with more than 10 employees to develop a written Emergency Action Plan (EAP), when required by an OSHA standard, to identify and coordinate necessary employer and employee actions during an emergency. At a minimum, the EAP must include the following elements:</div> <div> &nbsp;</div> <div> &bull; Means of reporting emergencies (fires, floods, etc.);</div> <div> &nbsp;</div> <div> &bull; Evacuation procedures and assigned exit routes;</div> <div> &nbsp;</div> <div> &bull; Procedures to account for all employees following an evacuation;</div> <div> &nbsp;</div> <div> &bull; Procedures to be followed by employees who must remain behind to attend to critical plant operations before evacuating;</div> <div> &nbsp;</div> <div> &bull; Rescue and/or medical duties for employees who are assigned and trained to perform them; and</div> <div> &nbsp;</div> <div> &bull; Names or job titles of people who can be contacted for more information about the plan.</div> <div> &nbsp;</div> <div> 29 C.F.R. &sect; 1910.38. In addition to these required elements, it is recommended that employers also consider including the following in the EAP:</div> <div> &nbsp;</div> <div> &bull; The location of the nearest hospital or emergency medical center;</div> <div> &nbsp;</div> <div> &bull; The type of alarm system used to notify employees of an emergency;</div> <div> &nbsp;</div> </div> <div> &bull; Procedures for protecting information including procedures for storing or maintaining critical documents and records;</div> <div> &nbsp;</div> <div> &bull; The location and permissible uses of protective equipment such as portable defibrillators, first aid kits, dust masks, fire extinguishers, etc.</div> <div> &nbsp;</div> <div> &bull; The location of televisions or radios for further information during a disaster.&nbsp;</div> <div> &nbsp;</div> <div> Ensuring the development of an effective EAP also requires the employer to train employees to understand their roles and responsibilities under the plan. When conducting this training, the employer must address literacy, language, and cultural barriers to ensure that the training is effective. Employers also must document the training.</div> <div> &nbsp;</div> <div> OSHA has posted links and recommendations on its website to help employers prepare for hurricanes: <a href="https://www.osha.gov/dts/weather/hurricane/preparedness.html">https://www.osha.gov/dts/weather/hurricane/preparedness.html</a>. The website includes tips regarding how to create evacuation plans and assemble emergency supply kits. The Environmental Protection Agency also has provided tips related to hurricane preparedness on its website: <a href="https://www.epa.gov/natural-disasters/hurricanes#recover.">https://www.epa.gov/natural-disasters/hurricanes#recover.</a></div> <div> &nbsp;</div> <div> <div> <strong>III. Responding to an Emergency</strong></div> <div> &nbsp;</div> <div> Communication during an emergency is critical to maintain organization and prevent panic and injuries. For example, not all emergencies require an evacuation of the workplace. In some cases, such as flooding, storms, or the release of biological or chemical agents, staying indoors is safer for employees. The first questions most people ask during an emergency is &ldquo;should I stay or should I go?&rdquo; Employers can guide employees as to the appropriate course of action by having an alarm system that emits a different signal for &ldquo;evacuate&rdquo; emergencies than for &ldquo;stay put&rdquo; emergencies. Alternatively, the alarm system could be programmed to give specific verbal instructions following the initial alert. Employers must consider the needs of disabled employees (e.g. those who are hearing or visually impaired) in selecting any alarm system.</div> <div> &nbsp;</div> <div> Employers should have an effective means of communicating with employees about the following during an emergency:</div> <div> &nbsp;</div> <div> &bull; Whether to evacuate or stay put;</div> <div> &nbsp;</div> <div> &bull; How and where to get information about the emergency itself;</div> <div> &nbsp;</div> <div> &bull; What areas of the building to avoid;</div> <div> &nbsp;</div> <div> &bull; How and when it is safe to return to the work area; and</div> <div> &nbsp;</div> <div> &bull; How and when it is acceptable to contact family members and loved one.</div> <div> &nbsp;</div> <div> <strong>IV. Picking Up the Pieces</strong></div> <div> &nbsp;</div> <div> Once the proverbial dust settles after an emergency, hazards to employees can still remain. For example, downed power lines in a flooded parking lot can injure or kill employees leaving the building after the storm passes. Hazards are even greater for employees who are tasked with cleaning up after an emergency. Employees who are actually performing clean-up work after a flood, storm, earthquake, or other disaster may be exposed to one or more of the following hazards:</div> <div> &nbsp;</div> <div> &bull; Exposure to hazardous materials such as asbestos, mold, lead, or chemicals;</div> <div> &nbsp;</div> <div> &bull; Downed power lines and trees;</div> <div> &nbsp;</div> <div> &bull; Heat illness;</div> <div> &nbsp;</div> <div> &bull; Confined spaces;</div> <div> &nbsp;</div> </div> <div> &bull; Blood borne diseases or other contagions;</div> <div> &nbsp;</div> <div> &bull; Mosquito borne diseases such as Zika virus; and</div> <div> &nbsp;</div> <div> &bull; Structural destabilization<sup>1</sup>.</div> <div> &nbsp;</div> <div> OSHA has developed specific standards to address many of these hazards. For example, OSHA&rsquo;s Hazardous Waste Operations and Emergency Response standard, 29 C.F.R. &sect; 1910.120, applies to employees who are performing clean-ups of hazardous waste or other hazardous materials. OSHA&rsquo;s asbestos and lead standards require employers to evaluate the level or exposure to employees, provide appropriate protective equipment, and, in same cases, conduct regular monitoring of air quality in the work area.</div> <div> &nbsp;</div> <div> In addition to these specific standards, other more general requirements will also come into play. For example, OSHA&rsquo;s welding and cutting Lockout/Tagout, confined space entry, and fall protection programs may come into play, even if no OSHA standard specifically addresses the type of clean-up activity taking place. Finally, as always, OSHA&rsquo;s General Duty Clause requires employers to provide a workplace free from recognized hazards. Accordingly, even if no OSHA standard applies to a particular activity or hazard, employers may still face citation liability if the hazard is reasonably likely to cause serious injury or death and there is a feasible means of abatement to correct the hazard. Before allowing employees to commerce any kind of clean-up work then, the employer must conduct a job hazard analysis (JHA) to identify and address potential hazards.</div> <div> &nbsp;</div> <div> <div> <strong>V. Multi-Employer Worksite Doctrine</strong></div> <div> &nbsp;</div> <div> It is important to note that even employers who hire outside contractors to clean up after a disaster must recognize their obligations for worker safety. OSHA&rsquo;s &ldquo;multi-employer worksite&rdquo; doctrine allows the agency to issue citations not only to the</div> <div> employer whose employees are actually performing the clean-up work, but also to other employers who either control the means and methods of work of the employees. Accordingly, employers may be liable for the safety precautions provided to employees who are brought onto their worksites following a natural disaster.</div> <div> &nbsp;</div> <div> <strong>VI. Conclusion and Recommendations</strong></div> <div> &nbsp;</div> <div> It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will help prevent panic, thereby minimizing employee injuries and damage to property. We recommend that employers consider the following:</div> <div> &nbsp;</div> <div> &bull; Develop an EAP that covers a wide variety of potential emergencies and gives employees clear guidance on what to do in each scenario;</div> <div> &nbsp;</div> <div> &bull; Be cognizant of hazards employees may face even after the immediate danger has passed;</div> <div> &nbsp;</div> <div> &bull; Train employees in evacuation plans and other emergency response procedures;</div> <div> &nbsp;</div> <div> &bull; Conduct a job hazard analysis and review applicable OSHA standards before assigning any employees to perform clean-up work;</div> <div> &nbsp;</div> <div> &bull; Evaluate the safety record of any independent contractor hired to perform clean-up work, including investigating the contractor&rsquo;s worker&rsquo;s compensation history, its OSHA logs, and its history of citations from OSHA.</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/lionlat083117 Ofer Lion quoted in Los Angeles Times http://www.seyfarth.com:80/news/lionlat083117 Thu, 31 Aug 2017 00:00:00 -0500 <p> Ofer Lion was quoted in an August 31 story from the Los Angeles Times, &quot;Investigators seek photos and videos of former USC medical school dean with drugs.&quot; Lion said that the university needs to understand the full scope of the former dean&#39;s activities to assess its potential legal exposure and may be required to share those findings with insurers. You can read the <a href="http://www.latimes.com/local/lanow/la-me-usc-dean-photos-drugs-20170831-story.html">full article here</a>.</p> http://www.seyfarth.com:80/news/jansonhre083117 Eric Janson quoted in Human Resource Executive http://www.seyfarth.com:80/news/jansonhre083117 Thu, 31 Aug 2017 00:00:00 -0500 <p> Eric Janson was quoted in an August 31 story from Human Resource Executive, &quot;Zeroing In on Zero Tolerance,&quot; on a recent court ruling on Connecticut&#39;s medical marijuana law that may affect employers around the country, including those operating in the growing number of states that also provide affirmative employment protections for users. Janson said that Until this decision is overturned, employers in Connecticut should consider taking a case-by-case approach for individuals who self-identify or test positive for lawfully prescribed medical marijuana. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362954&amp;ss=Seyfarth">full article here</a>.</p> http://www.seyfarth.com:80/news/childersbna083017 Michael Childers quoted in Bloomberg BNA http://www.seyfarth.com:80/news/childersbna083017 Wed, 30 Aug 2017 00:00:00 -0500 <p> Michael Childers was quoted in an August 30 story from Bloomberg BNA, &quot;EEO-1 REPORTS WITHOUT PAY DATA SHOULDN&rsquo;T QUASH CONTRACTORS&rsquo; FOIA CONCERNS.&quot; Childers said that, subject to certain exceptions, the EEO-1 reports are protected from disclosure by EEOC employees under Title VII of the Civil Rights Act of 1964.</p> http://www.seyfarth.com:80/news/buch083017 Robert Buch quoted in Business Insurance http://www.seyfarth.com:80/news/buch083017 Wed, 30 Aug 2017 00:00:00 -0500 <p> Robert Buch was quoted in an August 30 story from Business Insurance, &quot;Limited comp coverage available for suicide risks.&quot; Buch said that whether an employer is liable for suicide or attempted suicide depends upon a causal connection between the emotional state that resulted in those activities and the employer. You can read the <a href="http://www.businessinsurance.com/article/20170830/NEWS08/912315494/Limited-comp-coverage-available-for-suicide-risks">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM083017-LE2 Breaking News: Update to Seyfarth Alert Regarding the Stay of “Component 2” of the Revised EEO-1 Report http://www.seyfarth.com:80/publications/OMM083017-LE2 Wed, 30 Aug 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: In update to our alert yesterday, Acting Chair Victoria&nbsp;Lipnic&nbsp;released a statement&nbsp;regarding the Office of Information and Regulatory Affairs&rsquo;&nbsp;(&ldquo;OIRA&rdquo;), &nbsp;decision to&nbsp;stay the&nbsp;implementation&nbsp;of the pay data collection portions of the&nbsp;Revised EEO-1 Report. &nbsp;The statement&nbsp;advised&nbsp;that employers should plan to complete and file the&nbsp;EEO-1 Report&nbsp;used in previous years&nbsp;(also known as Component 1) by March 31, 2018.</em></p> <p> <u>What Is the Status of the Revised EEO-1 Report?</u></p> <p> As reported&nbsp;<a href="http://www.seyfarth.com/publications/OMM082917-LE2">yesterday</a>,&nbsp;the&nbsp;pay collection components of the Revised EEO-1 Report have been stayed effective immediately.&nbsp;Since our alert,&nbsp;Acting Chair of the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;), Victoria&nbsp;Lipnic, issued a&nbsp;<a href="https://www.eeoc.gov/eeoc/newsroom/wysk/eeo1-pay-data.cfm">statement</a>&nbsp;advising&nbsp;employers&nbsp;that the&nbsp;EEO-1 Report&nbsp;used in&nbsp;<a href="https://www.eeoc.gov/employers/eeo1survey/upload/eeo1-2-2.pdf">previous years</a>&nbsp;(also known as Component 1&nbsp;of the Revised EEO-1 Report)&nbsp;should be submitted&nbsp;by the March 31, 2018 deadline. We are seeking clarification regarding the snapshot dates that may be used for purposes of the March 31, 2018 filing.</p> <p> In her statement, Acting Chair&nbsp;Lipnic&nbsp;advised&nbsp;that the EEOC will review&nbsp;the&nbsp;order from OIRA (<a href="http://www.seyfarth.com/dir_docs/publications/Lipnic_Memo_08302017.pdf">available here</a>) and&nbsp;consider options for moving forward. She encouraged&nbsp;a&nbsp;prompt&nbsp;discussion of more effective solutions&nbsp;to ensure equal pay.</p> <p> We will continue to monitor this situation and provide additional information as it becomes available.&nbsp;&nbsp;Despite the stay on gathering and reporting wage information on the EEO-1 Report,&nbsp;equal pay&nbsp;continues to be of significant interest to the EEOC and OFCCP. Accordingly, employers should continue to take proactive measures to ensure that their pay practices are applied without regard to gender and race/ethnicity.</p> http://www.seyfarth.com:80/publications/OMM083017-LE USCIS Will Deny Pending Advance Parole Applications When Green Card Applicants Travel Internationally http://www.seyfarth.com:80/publications/OMM083017-LE Wed, 30 Aug 2017 00:00:00 -0500 <p class="BodySingle"> <em><strong>Seyfarth Synopsis:</strong> The United States Citizenship &amp; Immigration Services (USCIS) has reversed its longstanding practice and will begin to deny Advance Parole (AP) applications if a green card applicant travels internationally while their AP application is pending with USCIS. &nbsp;</em><o:p></o:p></p> <p class="BodySingle"> U.S. permanent resident (green card) applicants often rely on a grant of Advance Parole (AP) to travel internationally while their green card applications are pending with United States Citizenship &amp; Immigration Services (USCIS).&nbsp; Without Advance Parole, green card applicants are not permitted to travel internationally unless the applicant holds a valid H, K, L, or V visa.&nbsp; For years, USCIS has permitted green card applicants holding these visas to travel internationally without consequence while their AP applications are pending.&nbsp; USCIS has also permitted green card applicants holding a valid AP document to travel internationally while their AP renewal application is pending.<o:p></o:p></p> <p class="BodySingle"> Regrettably, USCIS recently decided to reverse their longstanding practice and deny AP applications if the applicant departs the U.S. while the application is pending.&nbsp; USCIS&rsquo; recent practice shift will now consider the pending AP application as abandoned if the applicant travels abroad prior to AP issuance. The new practice was confirmed by USCIS Service Center Operations Directorate (SCOPS) and affects applicants filing initial AP applications as well as renewal applications.&nbsp; Importantly, in the case of a renewal applicant, an AP renewal application will now be denied even if the applicant is traveling internationally using a previously approved AP Document.&nbsp; <o:p></o:p></p> <p class="BodySingle"> Applicants should be cautioned to avoid international travel during the pendency of the AP application with USCIS. Applicants should also assess any impact to their ability to travel internationally if an AP denial is issued or if a denial is expected.&nbsp; In this regard, if the AP application is denied, applicants may consider filing a new AP application once the applicant returns to the U.S. <o:p></o:p></p> <p class="BodySingle"> We will continue to monitor any developments as they occur and provide any necessary updates.<o:p></o:p></p> http://www.seyfarth.com:80/publications/CP083017 Put It In Writing: Policy Controls When Vacation Accrual Begins http://www.seyfarth.com:80/publications/CP083017 Wed, 30 Aug 2017 00:00:00 -0500 <p> As we anticipate Labor Day weekend, note this mid-summer treat from the California Court of Appeal: its decision in Minnick v. Automotive Creations that when an employer&rsquo;s vacation policy explicitly provides that employees don&rsquo;t earn vacation until after their first year of employment, the policy is interpreted just like it was written, so that an employee who separated during his first year is not owed any vacation pay upon termination.</p> <p> <a href="http://www.calpeculiarities.com/2017/08/30/put-it-in-writing-policy-controls-when-vacation-accrual-begins/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=a331e2c435-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-a331e2c435-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM082917-LE2 Breaking News: Revised EEO-1 “Component 2” Stayed Effective Immediately; Component 1 Still in Effect http://www.seyfarth.com:80/publications/OMM082917-LE2 Tue, 29 Aug 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis</strong>: Today, the Office of Information and Regulatory Affairs (&ldquo;OIRA&rdquo;), a division of the Office of Management and Budget (&ldquo;OMB&rdquo;), announced that it has suspended &ldquo;Component 2&rdquo; of the revised EEO-1 Report.&nbsp; &ldquo;Component 2&rdquo; was the portion of the revised EEO-1 Report which would have required employers with over 100 employees to submit W-2 pay and FLSA hours worked information. </em></p> <p> <u>What Does OIRA&rsquo;s Announcement Mean for the Revised EEO-1 Report?</u></p> <p> Early last year, the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;) began advancing a <a href="http://www.seyfarth.com/publications/MA012916-LE">proposal</a> to require employers to submit pay data in connection with their annual EEO-1 filings.&nbsp; Since that announcement, Seyfarth Shaw has offered <a href="http://www.seyfarth.com/publications/MA031616-LE">testimony</a> and submitted <a href="http://www.seyfarth.com/publications/MA040516-LE">comments</a> on the revised EEO-1 Report outlining the employer community&rsquo;s significant concerns, with the burden, benefit, and confidentiality of the proposed changes.&nbsp; Last Fall, OMB <a href="http://www.seyfarth.com/publications/MA092916-LE">approved</a> the EEOC&rsquo;s proposal to revise the EEO-1 Report.&nbsp;</p> <p> In early 2017, the U.S. Chamber of Commerce submitted a request for a review of the initial burden estimate and today&rsquo;s announcement from OIRA suspending the implementation of &ldquo;Component 2&rdquo; suggests that the call for further review did not fall upon deaf ears.</p> <p> OIRA&rsquo;s action does not completely rescind the revised EEO-1 Report, but it does relieve employers of their obligation to file &ldquo;Component 2&rdquo; by the March 31, 2018 deadline.&nbsp; At this time, much remains unknown about how this action affects the filing deadlines and obligations of employers.&nbsp; We will provide more information as soon as it becomes available.&nbsp;</p> <p> Until further information is known regarding the ultimate fate of &ldquo;Component 2&rdquo;, we recommend that employers stop costly efforts to comply with the new pay and hours worked requirements.&nbsp; However, because pay information continues to be of significant interest to the EEOC and OFCCP, employers should continue to take proactive measures to ensure that their pay practices are applied without regard to gender or any protected status.</p> http://www.seyfarth.com:80/publications/OMM082917-LE New York State Paid Family Leave - Tax Guidance Issued http://www.seyfarth.com:80/publications/OMM082917-LE Tue, 29 Aug 2017 00:00:00 -0500 <div> <strong>Seyfarth Synopsis:</strong> <em>The New York State Department of Taxation and Finance recently issued guidance on the tax treatment of New York State Paid Family Leave employee contributions and the PFL benefit. &nbsp;The guidance directs that payroll deductions should be taken on a post-tax basis and the benefits are non-wage income reportable on an IRS Form 1099.&nbsp;</em></div> <div> &nbsp;</div> <div> New York State&rsquo;s Paid Family Leave (&ldquo;PFL&rdquo;) law is effective January 1, 2018. &nbsp;For more specifics as to the law and its requirements see our prior alerts <a href="http://www.seyfarth.com/publications/MA041916-LE">here</a>, <a href="http://www.seyfarth.com/publications/MA031017-LE">here</a>, <a href="http://www.seyfarth.com/publications/MA060117-LE">here</a>, <a href="http://www.seyfarth.com/publications/OMM060217-LE2">here</a>, and <a href="http://www.seyfarth.com/publications/MA072117-LE">here</a>.&nbsp;</div> <div> &nbsp;</div> <div> Recently, the New York State Department of Taxation and Finance&nbsp;<a href="http://www.tax.ny.gov/pdf/notices/n17_12.pdf">issued guidance</a> on the tax treatment of employee contributions towards the cost of PFL premiums as funded through payroll deductions, as well as on the tax treatment of the PFL benefit itself. &nbsp;The following is a summary of the State&rsquo;s guidance.</div> <div> &nbsp;</div> <div> <div> <strong>Tax Treatment Of Employee Contributions&nbsp;</strong></div> <div> &nbsp;</div> <div> Employee contributions are appropriately deducted from employees&rsquo; after-tax wages. &nbsp;</div> <div> &nbsp;</div> <div> Employers should report employee contributions on an IRS Form W-2 using Box 14, which may be used to report information such as state disability insurance taxes withheld. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Tax Treatment of PFL Benefit</strong></div> <div> &nbsp;</div> <div> Benefits paid to employees (either by the third-party insurance carrier or by the self-insured employer) will be taxable non-wage income that must be included in federal gross income. &nbsp;The guidance advises that while taxes will not automatically be withheld from benefits, employees can request voluntary tax withholding.&nbsp;</div> <div> &nbsp;</div> <div> Further, benefits should be reported by the State Insurance Fund on Form 1099-G and by all other payers (such as third party insurance companies or the self-insured employer) on Form 1099-MISC.</div> </div> <p> In light of the upcoming January 1 effective date, employers should be taking steps to comply with the law&rsquo;s various requirements, as discussed in our prior alerts and recent webinar. &nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/wc082817 Summary Judgment Denied For Employer Who Circulated Letter About Employee’s Disability Discrimination Charge http://www.seyfarth.com:80/publications/wc082817 Tue, 29 Aug 2017 00:00:00 -0500 <p> After an employer circulated a letter to 146 employees discussing an employee&rsquo;s EEOC Charge that alleged discrimination on the basis of his disability in violation of the ADA, a federal district court in Connecticut denied both parties&rsquo; motions for summary judgment.</p> <p> This ruling provides valuable lessons for employers on the risks of widespread internal communication regarding pending EEOC charges.</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/summary-judgment-denied-for-employer-who-circulated-letter-about-employees-disability-discrimination-charge/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=303074312e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-303074312e-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA082917-EB-LE Court Directs EEOC to Reconsider Wellness Rules, Leaves Current Rules in Effect http://www.seyfarth.com:80/publications/MA082917-EB-LE Tue, 29 Aug 2017 00:00:00 -0500 <div> On Tuesday, August 22, the US District Court for the District of Columbia ordered the EEOC to revisit its controversial rules placing certain limits on employer-sponsored wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). &nbsp;This seemingly consequential ruling could prove to be less significant than it sounds. &nbsp;As described in greater detail below, the Court&rsquo;s ruling permits the existing EEOC rules to stay in effect pending the review. &nbsp;The Court ordered the EEOC to file its timeline for the review and possible additional administrative action by September 21. &nbsp;We expect the redrafted rules will remain substantially the same, but we would note that there will most likely be two new Republican Commissioners to handle the review process, ensuring a different profile than the Commission that approved the original EEOC regulations. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Background</strong></div> <div> &nbsp;</div> <div> The ADA generally prohibits employers from making disability-related inquiries or requiring medical exams as part of a wellness program, unless the inquiry is &ldquo;voluntary.&rdquo; &nbsp;As we <a href="http://www.seyfarth.com/publications/MA051816-EB">previously reported</a>, the EEOC issued final rules in 2016 that broadly interpreted the term &ldquo;voluntary,&rdquo; imposing a number of standards on employer wellness programs. &nbsp;One notable standard was that wellness programs cannot provide incentives in excess of 30% of the cost of self-only coverage for an employee who participates in the program. &nbsp;</div> <div> &nbsp;</div> <div> GINA generally limits employers from requesting or incentivizing employees to provide genetic information, for instance, in connection with a health risk assessment. &nbsp;Even so, the final rules under GINA permit limited incentives in connection with provision of genetic information, as long as they do not exceed 30% of the cost of self-only coverage. &nbsp;</div> <div> &nbsp;</div> <div> The Court accepted the EEOC&rsquo;s determination that incentives to participate in employer-sponsored wellness programs do not violate the voluntariness standard, but the Court questioned the EEOC&rsquo;s selection of a 30% limitation on incentives.</div> <div> &nbsp;</div> <div> It appeared the EEOC intended to mirror the existing wellness regulations under the Health Insurance Portability and Accountability Act (HIPAA), as codified by the Affordable Care Act and as promulgated in rules issued by the IRS, DOL and HHS. &nbsp;Even so, the EEOC guidelines were, in many respects, more restrictive than the HIPAA regulations. &nbsp;For instance, the HIPAA regulations generally permitted incentives for wellness programs that did not exceed 30% of the cost of coverage elected by the employee (including family coverage), while the EEOC rules only permit a 30% differential from the cost of self-only coverage, regardless of tier elected. &nbsp;Further, the HIPAA regulations imposed maximum incentives for health-contingent wellness programs (e.g., one where a specific outcome must be achieved), but not for participation-only programs. &nbsp;</div> <div> &nbsp;</div> <div> <strong>AARP v. EEOC</strong></div> <div> &nbsp;</div> <div> Last year, the AARP filed suit seeking to enjoin the EEOC rules, which the AARP viewed as permitting employers to impose too harsh of sanctions or penalties against employees who decline to participate in a wellness program. &nbsp;The court denied the preliminary injunction request. &nbsp;</div> <div> &nbsp;</div> <div> Last week, however, the court granted the AARP&rsquo;s motion for summary judgment and remanded the rule to the EEOC to provide a more reasoned explanation for its definition of a voluntary wellness program.</div> <div> &nbsp;</div> <div> The court primarily took issue with the EEOC&rsquo;s 30% threshold. &nbsp;Notably, the court found that while the EEOC argued it was simply attempting to mirror the HIPAA regulations, it failed to adequately do so because (a) the HIPAA limits only apply to health-contingent wellness programs rather than participatory wellness programs, and (b) the HIPAA limits are measured against the overall cost of coverage elected, not just the cost of self-only coverage (regardless of the level elected by the employee). &nbsp;The court also found that the EEOC was unable to demonstrate that it had done a sufficient review to determine whether incentives at or above the 30% level would be coercive or voluntary.</div> <div> &nbsp;</div> <div> As such, the court remanded the rules to the EEOC for review, with a directive that the next iteration should contain a more reasoned explanation for its definition of &ldquo;voluntary.&rdquo; &nbsp;The court declined to vacate the existing rules pending the EEOC review, noting that it would cause too much confusion to do so and could actually harm employees who have already received wellness incentives. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Next Steps for Employers</strong></div> <div> &nbsp;</div> <div> Given the current uncertainty, there are a few key items to keep in mind:</div> <div> &nbsp;</div> <ul> <li> The Court did not vacate the EEOC&rsquo;s existing wellness rules, meaning employers are still subject to those rules, their limitations on incentives, and their notice and authorization requirements. &nbsp;<br /> &nbsp;</li> <li> Moreover, HIPAA regulations remain in effect (although those rules primarily impact health-contingent wellness programs). &nbsp;<br /> &nbsp;</li> <li> While the court granted the AARP&rsquo;s motion for summary judgment, this decision may lay the groundwork for new regulations that are less favorable to participants in wellness programs. &nbsp;The Court specifically held that incentives as such did not violate the ADA and GINA voluntariness requirements. &nbsp;And the court cited the rationale of many employers and employer groups in finding the 30% threshold to be arbitrary and capricious. &nbsp;Upon review, the newly composed EEOC could potentially adopt the employer comments and, for example, determine that participatory wellness programs are always voluntary, regardless of the level of incentive. &nbsp;<br /> &nbsp;</li> <li> As noted, the Court ordered the EEOC to submit its plan for reviewing the regulations and undertaking any additional administrative proceedings by September 21. &nbsp;We will monitor these developments and keep you apprised of future EEOC rulemaking.</li> </ul> <div> &nbsp;</div> http://www.seyfarth.com:80/news/wong082917 Seyfarth Continues Growth in Hong Kong, Adds Partner Raymond Wong http://www.seyfarth.com:80/news/wong082917 Tue, 29 Aug 2017 00:00:00 -0500 <p> <strong>Hong Kong</strong> -- <strong>August 29, 2017</strong> -- Seyfarth Shaw LLP today announced the addition of corporate partner Raymond Wong in Hong Kong as the firm continues to scale its International Corporate and Commercial practice in the Asia-Pacific region.</p> <p> Seyfarth announced its launch in Hong Kong on February 27 through partner Julia Gorham, former head of DLA Piper&rsquo;s Asia Employment Law practice and now part of Seyfarth&rsquo;s market-leading International Employment practice.</p> <p> &ldquo;Working with many of the world&rsquo;s leading companies, we are committed to addressing their growing cross-border transactional needs in the Asia-Pacific region,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner.</p> <p> A highly respected corporate and commercial lawyer in the Asia Pacific, Wong joins Seyfarth from King &amp; Wood Mallesons. His practice focuses on mergers &amp; acquisitions, general corporate &amp; commercial, corporate strategies, IPOs, regulatory compliance, and public takeovers in Hong Kong, China and the UK.</p> <p> Wong has advised many Chinese and international clients on a variety of landmark global offerings and listings on the London, New York, Luxembourg, Hong Kong, Shanghai, and Tokyo Stock Exchanges, as well as cross-border transactions in the real estate and energy / natural resources sectors. Wong will be Seyfarth&rsquo;s Hong Kong office managing partner.</p> <p> &ldquo;Raymond brings very strong transactional experience in several key financial centers around the world that are central to our International Corporate and Commercial practice,&rdquo; said Darren Gardner, chair of Seyfarth&rsquo;s International practice. &quot;We are very excited to have him join Julia and the rest of our team in Hong Kong.&rdquo;</p> <p> Seyfarth Shaw was recently approved by The Law Society of Hong Kong as a registered foreign law firm in Hong Kong. In addition, The Law Society has approved Seyfarth Shaw&rsquo;s association with Wong, Wan &amp; Partners, the Hong Kong solicitors&rsquo; firm formed by Seyfarth Shaw LLP partners Raymond Wong and Wan Li.</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> <div> <strong>Contacts:</strong></div> <div> &nbsp;</div> <div> Brian Kiefer, Director of Public Relations</div> <div> (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></div> <div> &nbsp;</div> <div> Martin Grego, Public Relations Manager</div> <div> (312) 460-6659, <a href="mailto:mgrego@seyfarth.com ">mgrego@seyfarth.com&nbsp;</a></div> http://www.seyfarth.com:80/news/houston082917 Houston Office Update: Hurricane Harvey http://www.seyfarth.com:80/news/houston082917 Tue, 29 Aug 2017 00:00:00 -0500 <p> All Seyfarth Shaw personnel in Houston are safe and all of our systems are fully operational. The firm&rsquo;s office in the north tower of Pennzoil Place will reopen on Wednesday, August 30.</p> <p> We have been working closely with all of our local team members to monitor and address client needs, while also supporting relief efforts for the community at large.</p> <p> We appreciate all who have reached out to offer support and assistance during these unprecedented events.</p> http://www.seyfarth.com:80/news/maechtlen082917 Laura Maechtlen quoted in Law360 http://www.seyfarth.com:80/news/maechtlen082917 Tue, 29 Aug 2017 00:00:00 -0500 <p> Laura Maechtlen was quoted in an August 29 story from Law360, &quot;3 Law Firms With Their Own Riff On The Mansfield Rule,&quot; on the firm&#39;s Rooney Presumption which first piloted in 2015 in its labor and employment practice group. Maechtlen said that one of the biggest ways implementing the rule allowed the firm to increase the number of diverse associates hired is that it pushed the firm to look harder and be more creative about finding diverse candidates, rather than using the same recruiting avenues BigLaw firms traditionally use.</p> http://www.seyfarth.com:80/news/hilbernlaw360082917 Dyann DelVecchio Hilbern quoted in Law360 http://www.seyfarth.com:80/news/hilbernlaw360082917 Tue, 29 Aug 2017 00:00:00 -0500 <p> Dyann Delvecchio Hilbern was quoted in an August 29 story from Law360, &quot;H-1B Petitioners Hit With Surprise Scrutiny Increase,&quot; on how the Trump administration&#39;s scrutiny of the H-1B visa program for skilled foreign workers is causing an increase in government requests for evidence on H-1B petitions, with extra attention paid to those that offer entry-level wages. Hilbern said that she&rsquo;s seeing an epidemic of RFEs on H-1B visa petitions that have a Level 1 wage.</p> http://www.seyfarth.com:80/news/weisswgn082817 Philippe Weiss interviewed on WGN Radio http://www.seyfarth.com:80/news/weisswgn082817 Mon, 28 Aug 2017 00:00:00 -0500 <p> Philippe Weiss was interviewed August 28 on WGN Radio, &quot;Wintrust Business Lunch 8/28/17: Workplace Free Speech.&quot; Weiss posed an important question in the wake of the freedom of speech/self-expression protests. You can listen to the full interview at minute 12:38 <a href="http://wgnradio.com/2017/08/28/wintrust-business-lunch-82817-chicago-health-tech-workplace-free-speech-facebook-algorithms/">here</a>.</p> http://www.seyfarth.com:80/news/kaufman082817 Seyfarth Represents Kaufman Jacobs in Financing of New Senior Housing Facility http://www.seyfarth.com:80/news/kaufman082817 Mon, 28 Aug 2017 00:00:00 -0500 <p> CHICAGO - (August 28, 2017) - Seyfarth Shaw LLP represented Kaufman Jacobs LLC, a Chicago-based real estate investment company, in financing the development and construction of a new 110-bed senior housing facility in Park Ridge, IL.</p> <p> The Seyfarth team handled all aspects of the capital stack. As part of the transaction, the team negotiated and closed a construction loan with Wintrust Bank as administrative agent and lender. In addition, Seyfarth spearheaded the operating agreements for the numerous entities involved in the structure, including for the feeder entity and also the joint venture agreement with Senior Lifestyle Communities (SLC), who will assist in the development and management of the facility.</p> <p> Kaufman Jacobs owns and manages millions of square feet of commercial real estate, with a specialty in the ownership and management of Federally tenanted real estate and transactions of a complex nature.</p> <p> The Seyfarth Real Estate team was led by partner Jay Gitles and included Melissa Vandewater, Kelly Bufton, Cynthia Mitchell, Paul Drizner and Tori Campbell.</p> http://www.seyfarth.com:80/news/rodriguez082817 Leon Rodriguez quoted in CNN.com http://www.seyfarth.com:80/news/rodriguez082817 Mon, 28 Aug 2017 00:00:00 -0500 <p> Leon Rodriguez was quoted in an August 28 story from CNN.com, &quot;Trump administration adding extra hurdle for green cards,&quot; on the decision to institute interviews for all employment-based applicants. Rodriguez said that it&#39;s hard to know yet how much the new policies could slow down the green card process, but said it will absolutely have an impact. You can read the <a href="http://www.cnn.com/2017/08/28/politics/trump-administration-green-cards-interviews/index.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/swe082817 EPA and the Corps Schedule Ten “Public Meetings” to Solicit Comments on WOTUS Rule http://www.seyfarth.com:80/publications/swe082817 Mon, 28 Aug 2017 00:00:00 -0500 <p> Pursuant to President Trump&rsquo;s Executive Order (EO) on &ldquo;<a href="https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic">Restoring the Rule of Law&hellip; by Reviewing the &ldquo;Waters of the United States&rdquo; Rule</a>, the Agencies have scheduled ten teleconferences to collect stakeholder recommendations on the revision of the Waters of the United States (WOTUS) rule.</p> <p> <a href="http://www.environmentalsafetyupdate.com/cwa/epa-and-the-corps-schedule-ten-public-meetings-to-solicit-comments-on-wotus-rule/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=93b17cca8e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-93b17cca8e-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM082817-HL CMS Proposes to Cancel Medicare Episode Payment and Cardiac Rehab Incentive Payment Models, and to Cut Back Joint Replacement Model http://www.seyfarth.com:80/publications/OMM082817-HL Mon, 28 Aug 2017 00:00:00 -0500 <div> On August 17, 2017, the Centers for Medicare and Medicaid Services (CMS) under the Trump administration published a proposed 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 proposed to revise certain aspects of the Comprehensive Care for Joint Replacement (CJR) model. &nbsp;The CJR changes would reduce the number of mandatory hospital participants in CJR by approximately 1/2, and create a one-time voluntary option to participate in CJR for hospitals whose participation was mandatory but will become voluntary under the proposed rule. &nbsp;The opt in will also apply to rural hospitals and low volume hospitals in the MSAs to which CJR applies.</div> <div> &nbsp;</div> <div> <strong>EMPs and CR</strong></div> <div> &nbsp;</div> <div> CMS had previously established 3 bundled payment models for acute myocardial infarction, coronary artery bypass graft, and surgical hip/femur fracture treatment. &nbsp;As noted, CMS proposes to cancel 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 model, and to start the model as previously scheduled would not be in the interest of providers or beneficiaries.</div> <div> &nbsp;</div> <div> In 2018, CMS expects to develop new, voluntary bundled payment models in which providers may elect to participate. &nbsp;Those models would be designed to meet the criteria to be Advanced Alternative Payment Models. &nbsp;Hospitals should monitor the CMS Center for Innovation regarding the proposal of these new models.</div> <div> &nbsp;</div> <div> <strong>CJR</strong></div> <div> &nbsp;</div> <div> CMS is proposing that the CJR model would continue on a mandatory basis in approximately 1/2 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 August 17, 2017 Federal Register at pages 39315-39316. &nbsp;Low volume and rural hospitals, and hospitals located in a voluntary MSA, may opt in to CJR on a one-time bases from January 1, 2018 through January 31, 2018. &nbsp;Hospitals for which CJR participation is no longer mandatory (as well as rural and low volume hospital) should assess, between now and January, 2018, whether it is advantageous to opt in to CJR.</div> <div> &nbsp;</div> <div> Comments to the proposed rule are due by October 16, 2017.</div> http://www.seyfarth.com:80/publications/GPW082517 Is your organization ready for the new EU General Data Protection Regulation? http://www.seyfarth.com:80/publications/GPW082517 Fri, 25 Aug 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?</p> <p> <a href="http://www.globalprivacywatch.com/2017/08/is-your-organization-ready-for-the-new-eu-general-data-protection-regulation/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_campaign=72d3d8a4c1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_96fbafbd4b-72d3d8a4c1-73179561">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/RD082517-LE Website Accessibility Lawsuit Filings Still Going Strong http://www.seyfarth.com:80/publications/RD082517-LE Fri, 25 Aug 2017 00:00:00 -0500 <p> <em><strong>Seyfarth Synopsis:</strong></em><em>&nbsp; The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them.&nbsp; Businesses remain well-advised to seek&nbsp;advice from counsel experienced in website accessibility to manage risk.</em></p> <p> Different <a href="http://www.adatitleiii.com/2016/10/federal-website-lawsuits-spike-community-banks-get-demand-letters/" rel="noopener noreferrer" target="_blank">year</a>, same news: Website accessibility lawsuits show no signs of slowing down. In fact, with the <a href="http://www.adatitleiii.com/2017/07/doj-places-website-rulemaking-on-the-inactive-list/" rel="noopener noreferrer" target="_blank">DOJ&rsquo;s recent placement</a> of website regulations on the &ldquo;inactive list&rdquo;, litigation will likely only continue. As we have written about extensively, most recently <a href="http://www.adatitleiii.com/2017/08/two-new-york-federal-judges-refuse-to-dismiss-website-accessibility-cases/" rel="noopener noreferrer" target="_blank">here</a>, court orders are issuing more and more from courts across the country, slowly creating a body of jurisprudence around this issue; though the rulings differ vastly by court and even judge.</p> <p> The number of website accessibility lawsuits filed in federal court since the beginning of 2015 has surged to at least 751 as of August 15, 2017, with at least 432 of those filed in just the first eight and a half months of 2017&mdash;well over the 262 lawsuits that were filed in all of 2015 and 2016.&nbsp;We say &ldquo;at least&rdquo; because there is no easy way to capture every website accessibility lawsuit filed in federal court. Thus, the actual numbers are likely higher than we can report with certainty. Our numbers also do not include the many cases filed in state courts nor demand letters that resolve without ever turning into lawsuits.</p> <figure class="wp-caption aligncenter" id="attachment_2886" style="width: 757px;"> <p> <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1.png"><img alt="" class="wp-image-2886 size-full" sizes="(max-width: 757px) 100vw, 757px" src="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1.png" srcset="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1.png 757w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-120x84.png 120w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-320x223.png 320w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-593x414.png 593w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-40x28.png 40w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-80x56.png 80w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-160x112.png 160w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-550x384.png 550w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-367x256.png 367w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-734x512.png 734w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-275x192.png 275w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-220x153.png 220w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-440x307.png 440w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-660x460.png 660w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-184x128.png 184w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-138x96.png 138w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-413x288.png 413w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-688x480.png 688w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-123x86.png 123w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-110x77.png 110w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-330x230.png 330w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-300x209.png 300w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-600x418.png 600w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-344x240.png 344w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-55x38.png 55w" style="width: 550px; height: 474px;" /></a></p> <figcaption class="wp-caption-text">Number of federal website accessibility lawsuits by year from January 2015 to August 15, 2017: 2015 (57), 2016 (262), 2017 (432). There are at least this many lawsuits.</figcaption></figure> <p> Retailers remain the most popular targets, followed by restaurant and hospitality companies.</p> <figure class="wp-caption aligncenter" id="attachment_2887" style="width: 621px;"> <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1.jpg"><img alt="" class="wp-image-2887 size-full" sizes="(max-width: 621px) 100vw, 621px" src="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1.jpg" srcset="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1.jpg 621w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-120x89.jpg 120w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-320x237.jpg 320w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-593x438.jpg 593w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-40x30.jpg 40w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-80x59.jpg 80w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-160x118.jpg 160w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-550x407.jpg 550w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-367x271.jpg 367w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-275x203.jpg 275w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-220x163.jpg 220w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-440x325.jpg 440w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-184x136.jpg 184w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-138x102.jpg 138w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-413x305.jpg 413w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-123x91.jpg 123w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-110x81.jpg 110w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-330x244.jpg 330w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-300x222.jpg 300w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-600x443.jpg 600w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-344x254.jpg 344w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-55x41.jpg 55w" style="width: 550px; height: 407px;" /></a><figcaption class="wp-caption-text">Number of federal website lawsuits by industry from January 2015 to August 15, 2017: Academic (7), Entertainment (27), Financial (17), Hospitality (57), Medical (42), Personal Services (18), Restaurant (186), Retail (353), Vehicle Manufacturer (13), Other (22). There are at least this many lawsuits.</figcaption></figure> <p> Although California continues to have the highest number of federal ADA title III lawsuits generally, Florida (385), New York (170) and Pennsylvania (85) have overtaken California with respect to the number of federal website accessibility lawsuits.</p> <figure class="wp-caption aligncenter" id="attachment_2884" style="width: 784px;"> <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar.png"><img alt="" class="size-full wp-image-2884" sizes="(max-width: 784px) 100vw, 784px" src="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar.png" srcset="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar.png 784w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-120x85.png 120w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-320x227.png 320w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-768x545.png 768w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-593x421.png 593w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-40x28.png 40w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-80x57.png 80w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-160x113.png 160w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-550x390.png 550w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-367x260.png 367w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-734x521.png 734w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-275x195.png 275w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-220x156.png 220w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-440x312.png 440w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-660x468.png 660w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-184x130.png 184w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-138x98.png 138w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-413x293.png 413w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-688x488.png 688w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-123x87.png 123w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-110x78.png 110w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-330x234.png 330w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-300x213.png 300w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-600x426.png 600w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-344x244.png 344w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-55x39.png 55w" style="width: 550px; height: 390px;" /></a><figcaption class="wp-caption-text">Number of states with the most website lawsuits in federal court as of August 15, 2017: Arizona (7), California (65), Florida (385), Illinois (5), Massachusetts (17), New York (170), Ohio (4), Pennsylvania (85), Texas (4), Washington (5). There are at least this many lawsuits.</figcaption></figure> <p> These lawsuits are a significant portion of the increase in total ADA Title III lawsuits filed in federal courts this year, which, <a href="http://www.adatitleiii.com/2017/05/2017-federal-ada-title-iii-lawsuit-numbers-18-higher-than-2016/" rel="noopener noreferrer" target="_blank">as of April 2017</a>, was already over 2600 filings in 2017&mdash;an 18% increase over the number of federal cases filed in the same time period in 2016.</p> http://www.seyfarth.com:80/publications/EL082517 Not Just Sticks and Stones: When Should Employers Step In? http://www.seyfarth.com:80/publications/EL082517 Fri, 25 Aug 2017 00:00:00 -0500 <p> &ldquo;How&rsquo;s work?&rdquo; A common question, whether at a party, catching up with an old friend, or just as small talk. It is also a common topic of online conversation. It would be nice if work-related remarks were always positive, agreeable and civil, but, of course, they are not. The reality is that employees sometimes say offensive things about work, their employer, their co-workers, or a co-worker&rsquo;s cherished political hero or ideals.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/08/not-just-sticks-and-stones-when-should-employers-step-in/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=8ac9891496-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-8ac9891496-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT082417 The Week in Weed: August 25, 2017 http://www.seyfarth.com:80/publications/TBT082417 Thu, 24 Aug 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.</p> <p> Denver Soon to Open Legal Marijuana Clubs</p> <p> (Insurance Journal: News, 23 August 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-august-25-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=7d05c00eea-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-7d05c00eea-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wg082417 It’s a Strange New World in California for the Administrative Exemption http://www.seyfarth.com:80/publications/wg082417 Thu, 24 Aug 2017 00:00:00 -0500 <p> Readers of the blog know that the Ninth Circuit recently exalted the status of the administrative/production dichotomy as an analytical tool for assessing whether employees satisfy the FLSA&rsquo;s administrative exemption test. In doing so, the Ninth Circuit has created a peculiar situation in which California employees may satisfy the state&rsquo;s administrative exemption&mdash;which the California Division of Labor Standards Enforcement says &ldquo;shall be construed in the same manner as &hellip; under the Fair Labor Standards Act&rdquo;&mdash;but be found nonexempt under the FLSA. Strange days indeed.</p> <p> <a href="http://www.wagehourlitigation.com/misclassification/strange-new-world-for-administrative-exemption/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=47019bea0f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-47019bea0f-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts082417 Key Employee Departures and Trade Secret Risk Assessment http://www.seyfarth.com:80/publications/ts082417 Thu, 24 Aug 2017 00:00:00 -0500 <p> It&rsquo;s Friday afternoon and the conversation goes a little like this, &ldquo;Wait, what? They&rsquo;re leaving? Where are they going? Is there any opportunity to help them reconsider?&rdquo;</p> <p> <a href="http://www.tradesecretslaw.com/2017/08/articles/data-theft-2/key-employee-departures-and-trade-secret-risk-assessment/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=64d4fd1360-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-64d4fd1360-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM082417-LE “Coercive” And “Disturbing” Arbitration Agreement Upheld Over Labor Commissioner’s Protest http://www.seyfarth.com:80/publications/OMM082417-LE Thu, 24 Aug 2017 00:00:00 -0500 <p> <strong><em>Seyfarth Synopsis</em></strong>:<em> In </em>OTO, LLC v. Kho,<em> the California Labor Commissioner challenged a car dealership&rsquo;s mandatory arbitration agreement. The agreement required employment disputes to be arbitrated under normal civil litigation rules, before a retired superior court judge, and waived the right to submit wage claims to the Labor Commissioner. The Court of Appeal upheld the agreement even though the agreement bypassed the Labor Commissioner hearing process, and even though the Court was &ldquo;disturbed&rdquo; by the way that the employer had drafted and presented the agreement.</em></p> <p> <strong>The Facts</strong></p> <p> Ken Kho worked as an auto mechanic for a car dealership. Three years into his employment, he was handed a one and one-quarter page agreement entitled, &ldquo;Employment At-Will and Arbitration.&rdquo; The terms of the agreement, appearing in tiny seven-point font within a one-block paragraph, required Kho and the dealership to arbitrate their disputes before a retired superior court judge. The arbitration would run like an ordinary civil case, with the usual pleading, discovery, and evidence rules. The agreement was silent on who paid for arbitration costs, and it did not specify how to start the process. Kho received the agreement at his desk from an HR employee, who did not explain the agreement&rsquo;s meaning to him. Kho signed the agreement within four minutes.</p> <p> A year later, Kho filed a wage claim with the Division of Labor Standards Enforcement, which is headed by the Labor Commissioner. The dealership filed a petition in court to compel Kho to arbitrate his wage claim. The Labor Commissioner intervened to oppose the petition and to uphold Kho&rsquo;s right to pursue his wage claim before the DLSE.</p> <p> The trial court denied the dealership&rsquo;s petition because the arbitration agreement was &ldquo;highly&rdquo; unfair and deprived Kho of the special advantages an employee has in an informal hearing before the DLSE. That hearing, called a &ldquo;Berman Hearing&rdquo; (after the lawmaker who sponsored the law), allows employees to avoid court proceedings by trying to resolve wage claims in a quick, free process before a DLSE officer. The dealership appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> Written agreements to arbitrate employment disputes are generally valid unless there is something particularly unfair about the agreement&rsquo;s terms and the way they were presented. These two types of unfairness are called substantive unconscionability and procedural unconscionability. If both forms are present to some degree, then a court may call the arbitration agreement unenforceable.</p> <p> The Court of Appeal aggressively agreed with the trial court that the arbitration agreement was procedurally unconscionable. Kho got the agreement on a take-it-or-leave-it basis; he could not negotiate the terms; and he was presented with it years after he had started working for the dealership. He fairly assumed he had no choice but to sign it or resign. The agreement had legalist terms that appeared in tiny font within a block format. All this made the degree of procedural unconscionability &ldquo;extraordinarily high.&rdquo;</p> <p> But the agreement nonetheless passed muster, because it was not substantively unconscionable. In 2013, the California Supreme Court held that an arbitration agreement waiving a Berman hearing is enforceable so long as it provides an &ldquo;accessible and affordable arbitral forum.&rdquo; The terms of the dealership&rsquo;s agreement passed this test because they were not one-sided and did not overly favor the dealership. All claims between the parties were subject to arbitration, and the proceeding would resemble ordinary litigation. And although the agreement did not expressly say the dealership would have to pay for the arbitration, that is the result under the prevailing law.</p> <p> Kho likely would have to hire a lawyer to navigate the rules of procedure and evidence in arbitration before a retired judge. The Labor Commissioner argued that this reality made the process unaffordable for Kho. The Court of Appeal disagreed. If Kho prevailed in a Berman hearing, then the dealership could have the case heard over again in superior court. The same litigation rules would then apply as they would in the arbitration, and Kho would have to decide then whether to hire a lawyer. Consequently, the Court of Appeal found the arbitration would be no more complex than a retrial of Kho&rsquo;s wage claim in superior court, and thus the arbitration forum would be just as accessible and affordable as a Berman hearing followed by a court trial.</p> <p> Thus, although the Court of Appeal was &ldquo;disturbed&rdquo; by the way the dealership wrote the arbitration agreement and presented it to Kho for signing, the agreement did allow him to pursue his wage claim in an accessible and affordable forum that mirrored normal civil litigation. Those features made the agreement substantively conscionable, and therefore enforceable.</p> <p> <strong>What <em>Oto, LLC v. Kho </em>Means for Employers</strong></p> <p> We now have an example of an enforceable arbitration agreement that takes wage claims out of the Berman hearing process. And the Court of Appeal noted some areas in which an employer can plan to avoid contentions of procedural unfairness. Employers who desire to arbitrate wage claims should take the lessons of this case to heart.</p> http://www.seyfarth.com:80/news/briggsbna082417 Ben Briggs quoted in Bloomberg BNA http://www.seyfarth.com:80/news/briggsbna082417 Thu, 24 Aug 2017 00:00:00 -0500 <p> Ben Briggs was quoted in an August 24 story from Bloomberg BNA, &quot;Industries Don&#39;t Limit Lawyers&rsquo; Workplace Safety Practices.&quot; Briggs said that firms do look for lawyer specialization based upon industries and hazards.</p> http://www.seyfarth.com:80/news/lorberbna082317 Larry Lorber quoted in Bloomberg BNA http://www.seyfarth.com:80/news/lorberbna082317 Wed, 23 Aug 2017 00:00:00 -0500 <p> Larry Lorber was quoted in an August 23 story from Bloomberg BNA, &quot;DOL&#39;s Contractor Auditor Offers Buyouts in Face of Budget Cut,&quot; on how a Labor Department subagency that audits government contractors for affirmative action and nondiscrimination compliance offered &ldquo;buyouts&rdquo; and &ldquo;early outs&rdquo; to eligible employees ahead of a likely budget cut. Lorber said that buyouts are the best way to right size staff depending upon budgets.</p> http://www.seyfarth.com:80/publications/wse082317 Beware: Marijuana Businesses Targeted With Product Labeling Violation Letters http://www.seyfarth.com:80/publications/wse082317 Wed, 23 Aug 2017 00:00:00 -0500 <p> Entrepreneurial Plaintiff&rsquo;s attorneys have now set their sites on marijuana businesses.&nbsp; Since January 1, 2017, Plaintiff&rsquo;s firms have issued approximately 800 violation notice letters to marijuana businesses alleging that producers of cannabis infused edibles and vape cartridge manufacturers failed to warn consumers about specific fungicides and pesticides associated with their products.</p> <p> <a href="http://www.environmentalsafetyupdate.com/states/california/beware-marijuana-businesses-targeted-with-product-labeling-violation-letters/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=595c176b06-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-595c176b06-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts082317 Robert Milligan to Present “Understanding and Exploring the DTSA” CLE Webinar http://www.seyfarth.com:80/publications/ts082317 Wed, 23 Aug 2017 00:00:00 -0500 <p> On September 7, at 3:00 p.m. &ndash; 4:00 p.m. Eastern, Robert Milligan will present &ldquo;Understanding and Exploring the DTSA&rdquo; CLE webinar.</p> <p> <a href="http://www.tradesecretslaw.com/2017/08/articles/dtsa/robert-milligan-to-present-understanding-and-exploring-the-dtsa-cle-webinar/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=def8568de2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-def8568de2-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM082317 U.S. Department of State Temporarily Suspends Nonimmigrant Visa Applications in Russia http://www.seyfarth.com:80/publications/IMM082317 Wed, 23 Aug 2017 00:00:00 -0500 <p> In response to the Russian government&rsquo;s decision to reduce the number of U.S. Department of State (DOS) staff working in Russia, DOS has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia as of August 23, 2017. &nbsp;The suspension will last for a period of eight (8) days and, during this time, previously-scheduled visa appointments for temporary work, business, and visitor visas will be canceled. &nbsp;According to DOS, NIV interviews will resume on September 1, 2017, but only at the U.S. Embassy in Moscow. &nbsp;DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok.</p> <p> <a href="http://www.bigimmigrationlawblog.com/2017/08/u-s-department-of-state-temporarily-suspends-nonimmigrant-visa-applications-in-russia/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=5b547f1c8c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-5b547f1c8c-73179525">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP082317 Not Just Sticks and Stones: When Should Employers Step In? http://www.seyfarth.com:80/publications/CP082317 Wed, 23 Aug 2017 00:00:00 -0500 <p> &ldquo;How&rsquo;s work?&rdquo; A common question, whether at a party, catching up with an old friend, or just as small talk. It is also a common topic of online conversation. It would be nice if work-related remarks were always positive, agreeable and civil, but, of course, they are not. The reality is that employees sometimes say offensive things about work, their employer, their co-workers, or a co-worker&rsquo;s cherished political hero or ideals.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/08/23/not-just-sticks-and-stones-when-should-employers-step-in/">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM082317-LE U.S. Department of State Temporarily Suspends Nonimmigrant Visa Applications in Russia http://www.seyfarth.com:80/publications/OMM082317-LE Wed, 23 Aug 2017 00:00:00 -0500 <p> <strong>To stay up-to-date on Immigration developments, <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp; As of August 23, 2017, the U.S. Department of State (DOS) has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia.&nbsp; NIV interviews will resume only at the U.S. Embassy in Moscow beginning September 1, 2017.&nbsp; DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok. &nbsp;</em></p> <p> In response to the Russian government&rsquo;s decision to reduce the number of U.S. Department of State (DOS) staff working in Russia, DOS has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia as of August 23, 2017.&nbsp; The suspension will last for a period of eight (8) days and, during this time, previously-scheduled visa appointments for temporary work, business, and visitor visas will be canceled.&nbsp; According to DOS, NIV interviews will resume on September 1, 2017, but only at the U.S. Embassy in Moscow.&nbsp; DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok.</p> <p> DOS will contact any affected applicants by e-mail for rescheduling.&nbsp; Rescheduled applicants and new applications submitted at the U.S. Embassy in Moscow should expect considerable delays.&nbsp; Priority consideration will be given to officials of the United Nations, international organizations with offices in the United States, and those requiring travel for medical or family emergencies.<br /> <br /> In addition, the U.S. Embassy in Moscow and the U.S. Consulate in St. Petersburg will no longer accept new visa applications for residents of Belarus.&nbsp; DOS encourages Belarussian applicants to schedule NIV appointments at the U.S. Embassies in Warsaw, Kyiv, or Vilnius.&nbsp; The decision to temporarily suspend NIV operations in Russia does not affect NIV applications outside of Russia, but U.S. Embassies and Consulates close to Russia may experience additional NIV processing delays.</p> http://www.seyfarth.com:80/publications/EL082217 Management Alert – The Current Federal Retrenchment on LGBT Rights http://www.seyfarth.com:80/publications/EL082217 Tue, 22 Aug 2017 00:00:00 -0500 <p> Recently, in a dramatic shift, the Department of Justice broke ranks with the Equal Employment Opportunity Commission, and filed an amicus brief in the Second Circuit in Zarda v. Altitude Express, Inc., No 15-3775, Dkt. #417 (S.D.N.Y. July 26, 2017). &nbsp;In that brief, the Department argued that, contrary to its prior position (and that of the E.E.O.C.), discrimination on the basis of sexual orientation was not prohibited under Title VII as harassment on the basis of gender.&nbsp;</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/management-alert-the-current-federal-retrenchment-on-lgbt-rights/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=fa081a76d6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-fa081a76d6-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/ADA082217 Website Accessibility Lawsuit Filings Still Going Strong http://www.seyfarth.com:80/publications/ADA082217 Tue, 22 Aug 2017 00:00:00 -0500 <p> Different year, same news: Website accessibility lawsuits show no signs of slowing down. In fact, with the DOJ&rsquo;s recent placement of website regulations on the &ldquo;inactive list&rdquo;, litigation will likely only continue. As we have written about extensively, most recently here, court orders are issuing more and more from courts across the country, slowly creating a body of jurisprudence around this issue; though the rulings differ vastly by court and even judge.</p> <p> <a href="http://www.adatitleiii.com/2017/08/website-accessibility-lawsuit-filings-still-going-strong/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=d56fe1d270-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-d56fe1d270-73047125">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT082217 Beware: Marijuana Businesses Targeted With Product Labeling Violation Letters http://www.seyfarth.com:80/publications/TBT082217 Tue, 22 Aug 2017 00:00:00 -0500 <p> Entrepreneurial Plaintiff&rsquo;s attorneys have now set their sites on marijuana businesses. &nbsp;Since January 1, 2017, Plaintiff&rsquo;s firms have issued approximately 800 violation notice letters to marijuana businesses alleging that producers of cannabis infused edibles and vape cartridge manufacturers failed to warn consumers about specific fungicides and pesticides associated with their products.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/08/beware-marijuana-businesses-targeted-with-product-labeling-violation-letters-2/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=207781892e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-207781892e-73179537">click here</a>.</p> http://www.seyfarth.com:80/news/devatabi082217 Pamela Devata quoted in Business Insurance http://www.seyfarth.com:80/news/devatabi082217 Tue, 22 Aug 2017 00:00:00 -0500 <p> Pamela Devata was quoted in an August 22 story from Business Insurance, &quot;No clear resolution in Fair Credit Reporting Act case,&quot; on how the issue of when plaintiffs have the right to sue under the Fair Credit Reporting Act for injury may still not be settled despite a U.S. Supreme Court ruling and a subsequent rehearing by a federal appeals court on remand. Devata said that there&rsquo;s been a split in federal courts, especially in FCRA cases, as to what constitutes standing following the Supreme Court ruling and that the 9th Circuit ruling shows that oftentimes the rulings will be factually specific. You can read the <a href="http://www.businessinsurance.com/article/20170822/NEWS06/912315311/No-clear-resolution-in-Fair-Credit-Reporting-Act-case-US-Supreme-Court-Spokeo-Fa">full article here</a>.</p> http://www.seyfarth.com:80/news/Hixforbes082217 Timothy Hix quoted in Forbes http://www.seyfarth.com:80/news/Hixforbes082217 Tue, 22 Aug 2017 00:00:00 -0500 <p> Timothy Hiz was quoted in an August 22 story from Forbes, &quot;Opposition: California&#39;s &#39;Opportunity To Work Act&#39; Would Create Opportunities To Sue, Confusion.&quot; Hix said that should the bill pass this legislative session or in a future one, it will create more lawsuits that will focus on the ambiguity or lack of clarity on how to comply with it, as well as allegations of discrimination in the assignment of hours. He said that the bill in its current version will create far more problems than it hopes to solve and, right now, business owners will be left to guess as to how to comply with AB5 should it pass. You can read the <a href="https://www.forbes.com/sites/legalnewsline/2017/08/22/opposition-californias-opportunity-to-work-act-would-create-opportunities-to-sue-confusion/#6d6fcaf69aa6">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonshrm082117 Camille Olson quoted in SHRM http://www.seyfarth.com:80/news/olsonshrm082117 Mon, 21 Aug 2017 00:00:00 -0500 <p> Camille Olson was quoted in an August 21 story from SHRM, &quot;Despite Gains, Average Intern Wage Still Below Pre-Recession Level,&quot; on how unpaid intern programs face compliance hurdles. Olson said that the goal is to ensure that companies are not getting around minimum-wage and other employee protection laws by calling workers &#39;interns,&#39; when the work and conditions under which the work is being performed are no different than that of actual employees. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/intern-wages.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/rooneyhre082117 Laura Maechtlen and Marjorie Soto quoted in Human Resource Executive http://www.seyfarth.com:80/news/rooneyhre082117 Mon, 21 Aug 2017 00:00:00 -0500 <p> Laura Maechtlen and Marjorie Soto were quoted in an August 21 story from Human Resource Executive, &quot;Applying the Rooney Rule,&quot; on how Seyfarth increased the diversity in its labor and employment associate-attorney ranks from 34 percent to an impressive 58 percent in just one year. Maechtlen said that Seyfarth&#39;s sourcing really has improved significantly, which means that the firm is getting more diverse applicants in the hiring process in the beginning. Soto said that Seyfarth&#39;s advantage is that diversity is not just a buzzword -- it is deeply embedded in the fabric of the firm. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362890">full article here</a>.</p> http://www.seyfarth.com:80/publications/winnerfinkel082117 Robert Winner and Noah Finkel authored an article in Mergers & Acquisitions http://www.seyfarth.com:80/publications/winnerfinkel082117 Mon, 21 Aug 2017 00:00:00 -0500 <p> Robert Winner and Noah Finkel authored an August 21 article in Mergers &amp; Acquisitions, &quot;How to manage wage-hour risks in an acquisition.&quot; Winner and Finkel wrote that , in order to understand how to avoid these risks, the acquirer needs to know where to look first, and then protect itself in the definitive documentation. You can read the <a href="https://www.themiddlemarket.com/opinion/how-to-manage-wage-hour-risks-in-an-acquisition?brief=0000015a-289d-d09d-a7fe-ee9f58b00000">full article here</a>.</p> http://www.seyfarth.com:80/publications/shermanmmg082117 Andrew Sherman authored an article in Middle Market Growth http://www.seyfarth.com:80/publications/shermanmmg082117 Mon, 21 Aug 2017 00:00:00 -0500 <p> Andrew Sherman authored an August 21 article in Middle Market Growth, &quot;Don&rsquo;t Let Bored Employees Derail Your Deal.&quot; The article discusses how to address workforce disengagement during M&amp;A due diligence. You can read the <a href="http://middlemarketgrowth.org/bored-employees-derail-deal/">full article here</a>.</p> http://www.seyfarth.com:80/publications/wse082117 5th Circuit Asked to Review ALJ Decision to Vacate “Controlling Employer” Doctrine Citation http://www.seyfarth.com:80/publications/wse082117 Mon, 21 Aug 2017 00:00:00 -0500 <p> This case involves an unprotected excavation at a construction site that both parties agreed was in in violation of OSHA&rsquo;s trenching standards.&nbsp; The Respondent was the general contractor on the construction project with overall control and responsibility for the worksite.&nbsp;</p> <p> <a href="http://www.environmentalsafetyupdate.com/osha-litigation/5th-circuit-asked-to-review-alj-decision-to-vacate-controlling-employer-doctrine-citation/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=12b8a9d3d2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-12b8a9d3d2-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH081817 Seventh Circuit Sends Police Officers’ Off-Duty BlackBerry Claims to Spam Folder http://www.seyfarth.com:80/publications/WH081817 Fri, 18 Aug 2017 00:00:00 -0500 <p> Employers often grapple with what to do when their policies prohibit off-duty work, like working on mobile devices after hours, that employees don&rsquo;t follow. Even if it has a policy prohibiting off-duty work, if the employer knows (or should know) an employees is working, the employer must compensate the employee for the off-duty work. The same can be said if an employer has a policy requiring employees to report all off-duty time worked but knows (or should know) that employees are not reporting it. As the regulations put it, employers cannot &ldquo;sit back and accept&rdquo; work without compensating it, even though the employer has rules against it. 29 C.F.R. &sect; 785.13.</p> <p> <a href="http://www.wagehourlitigation.com/off-the-clock-issues/blackberry-claims-to-the-spam-folder/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=86cd6bc529-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-86cd6bc529-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL081817 Got Privilege? When It Comes to Internal Investigations, Think Again … http://www.seyfarth.com:80/publications/EL081817 Fri, 18 Aug 2017 00:00:00 -0500 <p> When conducting an internal investigation, every in-house counsel pays particular attention to maintaining privilege throughout the investigation. But maintaining privilege can be very difficult. &nbsp;A recent decision from the U.S. District Court for the District of Columbia tackles this issue, and it provides useful lessons for helping to ensure that confidential and privileged internal investigation notes and reports remain confidential and privileged.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/got-privilege-when-it-comes-to-internal-investigations-think-again/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=c0f0bb7762-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-c0f0bb7762-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/TBT081717 The Week in Weed: August 18, 2017 http://www.seyfarth.com:80/publications/TBT081717 Thu, 17 Aug 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.</p> <p> Officials In Legal-Weed States Push Back Against Sessions&rsquo; Marijuana Criticisms<br /> (Huffington Post: Latest News, 17 August 2017)</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-august-18-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=8810023bc2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-8810023bc2-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/CP081717 No Signature? No Problem! Enforcing Arbitration Even Without Everyone Signing http://www.seyfarth.com:80/publications/CP081717 Thu, 17 Aug 2017 00:00:00 -0500 <p> Despite the strong federal policy favoring arbitration, it is no secret that enforcing arbitration agreements in California can be tough. The task is tougher yet for the defendant that finds itself being sued by someone with whom the defendant has never had a contractual relationship, although she has signed an employment arbitration agreement with a co-defendant. This is because, under the general rule, one must be a party to an arbitration agreement in order to invoke it.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/08/17/no-signature-no-problem-enforcing-arbitration-even-without-everyone-signing/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=a44b614c9a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-a44b614c9a-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/wc081717 Eleventh Circuit Rules That Stipulated Dismissal Of Named Plaintiffs And Defendant Triggers Putative Class Members’ Deadline To Appeal http://www.seyfarth.com:80/publications/wc081717 Thu, 17 Aug 2017 00:00:00 -0500 <p> In <em><a href="http://www.workplaceclassaction.com/wp-content/uploads/sites/214/2017/08/Wal-Mat-Blog.pdf">Love v. Wal-Mart</a></em>, No. 15-15260, 2017 U.S. App. LEXIS 14261 (11th Cir. Aug. 3, 2017), the Eleventh Circuit addressed the timeliness of putative class members&rsquo; appeal of the dismissal of class claims filed more than 30 days after the named class representatives and defendant filed a stipulation of dismissal.&nbsp; <em>Id. </em>at *5.</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/eleventh-circuit-rules-that-stipulated-dismissal-of-named-plaintiffs-and-defendant-triggers-putative-class-members-deadline-to-appeal/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=351209b8f9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-351209b8f9-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/bna081717 Annette Tyman, Michael Childers and Matthew Martin quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bna081717 Thu, 17 Aug 2017 00:00:00 -0500 <p> Annette Tyman, Michael Childers and Matthew Martin were quoted in an August 17 story from Bloomberg BNA, &quot;REVISED EEO-1 REPORT: DESPITE UNCERTAINTY, EMPLOYERS SHOULD START TO PREPARE&lt;&#39; on their webinar, &quot;Understanding the New EEO-1 Report: Pay Data and &lsquo;Hours Worked&rsquo; Requirements.&quot; Tyman warned that this statistical data is not going to show a whole lot, if anything at all, about pay discrimination.</p> http://www.seyfarth.com:80/news/ilta081617 Seyfarth Wins 2017 Innovative Law Firm of the Year Award http://www.seyfarth.com:80/news/ilta081617 Wed, 16 Aug 2017 00:00:00 -0500 <p align="center"> <img alt="" src="../../../../../../uploads/siteFiles/inlineimages/IDPA17-winner.png" style="width: 500px; height: 357px;" /></p> <p> &nbsp;</p> <p> CHICAGO (August 16, 2017) -- Seyfarth Shaw LLP has been honored with the 2017 Innovative Law Firm of the Year Award, presented Tuesday evening by the International Legal Technology Association at its annual awards gala.</p> <p> Among the industry&rsquo;s top honors, the award recognizes the law firm that delivered the greatest business value and transformational impact through innovations within their organization. This is the second time in five years that Seyfarth has been named ILTA&rsquo;s Innovative Law Firm of the Year, previously earning the award in 2013.</p> <p> &ldquo;We are proud to be at the forefront of technology that enhances what our lawyers do best: counsel and serve our clients,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner.</p> <p> Seyfarth won for two groundbreaking advances in the use of robotics software with SeyfarthLean Consulting:</p> <ol> <li> Deployment of robotic process automation (RPA) software in the legal industry for the first time, while creating a Robotics Center of Excellence to drive best practices around a growing pipeline of RPA projects in the firm;<br /> &nbsp;</li> <li> Development of the &ldquo;Ask Lee&rdquo; chatbot for the firm&rsquo;s SeyfarthLink client collaboration platform, which can answer support questions around the clock, and do so faster and more efficiently.<br /> &nbsp;</li> </ol> <p> To learn more about Seyfarth&rsquo;s Robotics Center of Excellence, visit the&nbsp;<a href="https://www.youtube.com/watch?v=mqa3DlmhYx0&amp;feature=youtu.be">animated video here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/publications/wc081617 Spokeo: On Remand From The U.S. Supreme Court, The Ninth Circuit Finds Plaintiff Has Standing, Again http://www.seyfarth.com:80/publications/wc081617 Wed, 16 Aug 2017 00:00:00 -0500 <p> On August 15, 2017, the U.S. Court of Appeals for the Ninth Circuit issued the latest <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/15/11-56843.pdf">opinion</a> in the <em>Robins v. Spokeo, Inc.</em> litigation that gave us last year&rsquo;s U.S. Supreme Court opinion on Article III standing (which we discussed <a href="http://www.seyfarth.com/publications/MA051616-LE">here</a>).&nbsp; After the Supreme Court found that the Ninth Circuit, in its prior February 2014 opinion (found <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/04/11-56843.pdf">here</a>), had analyzed only whether the alleged injury was particular to Plaintiff, it remanded the case back for the second part of the analysis to determine whether Plaintiff alleged a concrete injury-in-fact, as required by Article III.</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/spokeo-on-remand-from-the-u-s-supreme-court-the-ninth-circuit-finds-plaintiff-has-standing-again/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=351209b8f9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-351209b8f9-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR081617 Hello & Goodbye: More Changes at the NLRB http://www.seyfarth.com:80/publications/LR081617 Wed, 16 Aug 2017 00:00:00 -0500 <p> As we previously reported (http://www.employerlaborrelations.com/2017/06/29/management-side-attorney-nominated-for-final-seat-on-nlrb/), President Trump nominated two candidates for vacancies on the five-member National Labor Relations Board &ndash; William Emanuel and Marvin Kaplan. &nbsp;The Senate approved Mr. Kaplan to fill one of the vacancies on August 2, 2017 by a 50-48 vote, but has yet to schedule a date to vote on Mr. Emanuel&rsquo;s appointment.</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/08/16/hello-goodbye-more-changes-at-the-nlrb/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=8133d22682-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-8133d22682-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/EL081517 To Connect Or Not To Connect, That Is The Non-Solicitation Agreement Question http://www.seyfarth.com:80/publications/EL081517 Tue, 15 Aug 2017 00:00:00 -0500 <p> Employers often wonder how far a non-solicitation agreement can go. It can frustrate employers, who may pay extra money for an employee to sign a non-solicitation agreement, to later learn that their former employees have violated such agreements. &nbsp;And with the rise of social media, and its convergence into the business realm, potential violations through communications between current, prospective, and even previous employees have become more complicated than ever.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/to-connect-or-not-to-connect-that-is-the-non-solicitation-agreement-question/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=3219e756ec-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-3219e756ec-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/CEL-081517 Employer Be Careful - Noncompliance Events Will Be Published http://www.seyfarth.com:80/publications/CEL-081517 Tue, 15 Aug 2017 00:00:00 -0500 <div> The Chinese Ministry of Human Resources and Social Security (&ldquo;<strong>MHRSS</strong>&rdquo;) implemented the <em>Measures on Publication of Significant Violations of Labor and Social Security Laws </em>(&ldquo;<strong>Measures</strong>&rdquo;) effective January 1, 2017. &nbsp;The Measures require local counterparts of MHRSS (&ldquo;<strong>Bureaus</strong>&rdquo;) to record and publicize certain employer violations of labor and social security laws through official websites, local newspapers, television and other media platforms.</div> <div> &nbsp;</div> <div> <strong>What Violations Will Trigger Publication?</strong></div> <div> &nbsp;</div> <div> &ldquo;Significant violations&rdquo; include serious noncompliance with overtime rules, annual leave rules, social security rules, child labor laws and the delay, reduction of or failure to pay required salary, among other rules.&nbsp;</div> <div> &nbsp;</div> <div> However, the Measures do not provide clear parameters regarding which violations fall specifically within the ambit of the legislation. &nbsp;Instead, Bureaus determine the specific application at their discretion.&nbsp;</div> <div> &nbsp;</div> <div> As such, the standards for publication vary widely among cities depending on the local economy and what Bureaus&rsquo; officials happen to deem important. &nbsp;For example, in Beijing an employer&rsquo;s &ldquo;resistance&rdquo; to an inspection is a category covered by the Measures. &nbsp;In Hubei Province, an employer&rsquo;s refusal to pay labor remuneration will be published along with the penalties assessed.</div> <div> &nbsp;</div> <div> <strong>What Information Will Be Published?</strong></div> <div> <ul> <li> Employer&rsquo;s full name, address</li> <li> Employer&rsquo;s unified social credit code (or registration number)</li> <li> Name of employer&rsquo;s legal representative or person in charge</li> <li> Details of violation(s)</li> <li> Fines or other sanctions imposed by authorities (if any)</li> <li> Other relevant information</li> </ul> <div> &nbsp;</div> </div> <div> At the prefecture and county level, Bureaus will announce violators on a quarterly basis. &nbsp;At the national and provincial level, announcements will be biannual.&nbsp;</div> <div> &nbsp;</div> <div> <strong>What Are The Implications For Employers?</strong></div> <div> &nbsp;</div> <div> Publication of violations may cause a series of consequences to the employer, including decreases of the employer&rsquo;s credit, certain penalties, and random inspections by Bureaus.</div> <div> &nbsp;</div> <div> The Measures along with the recent grading statute (<a href="http://www.seyfarth.com/publications/030117-CEL" target="_blank">click here for details</a>) can be considered a strong sign that the Chinese government is establishing a more stringent regime to deter and penalize labor law violations.</div> http://www.seyfarth.com:80/news/szybalaw360081517 Robert Szyba quoted in Law360 http://www.seyfarth.com:80/news/szybalaw360081517 Tue, 15 Aug 2017 00:00:00 -0500 <p> Robert Szyba was quoted in an August 15 story from Law360, &quot;Spokeo Ruling Deals Blow To Cos. But May Have Silver Lining,&quot; on the Ninth Circuit&#39;s decision that the harm stemming from an allegedly inaccurate consumer report published by Spokeo Inc. was concrete enough to establish standing. Szyba said that the decision affirms the concept that plaintiffs cannot simply get by in these cases by pointing to statutory violations and indicates that courts will likely be a little bit more analytical in terms of the facts alleged in each particular case and place greater emphasis on each plaintiff&#39;s specific allegations of harm or wrongdoing.&