Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 https://www.seyfarth.com:443/publications/eeocwje102318 Christopher DeGroff, Gerald Maatman, Matthew Gagnon, and Kyla Miller authored an article in Westlaw Journal Employment https://www.seyfarth.com:443/publications/eeocwje102318 Tue, 23 Oct 2018 00:00:00 -0400 <p> Christopher DeGroff, Gerald Maatman, Matthew Gagnon, and Kyla Miller authored an October 23 article in Westlaw Journal Employment, &quot;The EEOC puts the pedal to the metal: FY2018 results show increase in filings, with #MeToo lawsuits adding fuel to the agenda.&quot; You can read the <a href="https://www.seyfarth.com/dir_docs/publications/WLJ_EMP3307_DeGroff.pdf">full article here</a>.</p> https://www.seyfarth.com:443/publications/malawyer102218 Andrew Sherman and John Shire authored an article in The M&A Lawyer https://www.seyfarth.com:443/publications/malawyer102218 Mon, 22 Oct 2018 00:00:00 -0400 <p> Andrew Sherman and John Shire authored an October 22 article in The M&amp;A Lawyer, &quot;How Blockchain Will (Eventually) Transform And Disrupt M&amp;A And Related Transactions.&quot;</p> https://www.seyfarth.com:443/publications/CA102218 LIBOR’s Anticipated Discontinuation Leads to Focus on Replacement Language https://www.seyfarth.com:443/publications/CA102218 Mon, 22 Oct 2018 00:00:00 -0400 <div> The replacement of the London Inter-bank Offered Rate (&ldquo;LIBOR&rdquo;) in contracts evidencing loan, derivative and other transactions with maturities extending beyond 2021 is a massive undertaking involving legal and compliance teams within companies operating in virtually every industry throughout the world.&nbsp;</div> <div> &nbsp;</div> <div> A leader in that undertaking is the Alternative Reference Rates Committee (&ldquo;ARRC&rdquo;), which began its reference rate reform initiatives when it initially met on November 17, 2014. ARRC, sponsored by the Federal Reserve Board and the Federal Reserve Bank of New York, formally endorsed on June 22, 2017 the Secured Overnight Financing Rate (&ldquo;SOFR&rdquo;) as its preferred benchmark to replace U.S. dollar denominated (&ldquo;USD&rdquo;) LIBOR as a basis for calculations in certain transactions. SOFR, a benchmark based on overnight U.S. Treasury repo trade activity, was first published on April 3, 2018 by the Federal Reserve Bank of New York.&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Background</strong></span></div> <div> &nbsp;</div> <div> In the global economy, $370 trillion in instruments denominated in various currencies are based on LIBOR<sup>1</sup>, and USD LIBOR is a primary interest rate benchmark for loans and derivatives.<sup>2</sup>&nbsp;Whereas other monetary authorities and regulators in leading markets throughout the world are developing new benchmarks for market acceptance, the central goal of ARRC is to develop a strategy to move a significant portion of loan (and derivative) documentation from instruments referencing USD LIBOR to a more robust alternative rate.<sup>3</sup></div> <div> &nbsp;</div> <div> On September 24, 2018, ARRC published proposed benchmark replacement fallback language (the &ldquo;ARRC Fallback Language&rdquo;) for floating rate notes and syndicated business loans as part of a consultation in which ARRC also posed specific questions directed to market participants concerning the formulation of the ARRC Fallback Language. <u>ARRC has requested comments by November 8, 2018</u>.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The ARRC Fallback Language is intended to be a starting point in the finalization of language for certain loans, with the goal of assuring that contracts which reference USD LIBOR continue to be effective in the event that LIBOR is discontinued after 2021 or is no longer an accepted benchmark.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Parties may want to examine their existing, applicable loans to determine whether the ARRC Fallback Language (or language having a similar effect) will effectively replace USD LIBOR benchmark language in loan documentation. In the event that interest rate risk relating to those loans is hedged beyond 2021 by means of swaps, caps or other derivatives with USD LIBOR benchmark language, parties may also consider amending existing hedge documentation in tandem with related loan documentation</div> <div> &nbsp;</div> <div> Whereas ARRC has convened since 2014 for purposes of replacing USD LIBOR language with substitute language for loans, the international trade association for over-the-counter (&ldquo;OTC&rdquo;) derivatives (such as caps and swaps), the International Swaps and Derivatives Association, Inc. (&ldquo;ISDA&rdquo;), has similarly undertaken hedge documentation revision efforts for the past several years. ISDA is developing a protocol to enable parties to existing executed caps, swaps and other OTC derivatives (with maturities beyond 2021) that reference USD LIBOR to join (<em>i.e</em>., &ldquo;adhere&rdquo;) a future LIBOR protocol for purposes of automatically amending with USD LIBOR replacement language any such existing derivatives documentation between adhering parties. This replacement language for derivatives continues to be developed by an ISDA working group. While ISDA is primarily focusing on definitional amendments within derivative documentation and ARRC has proposed ARRC Fallback language for loan documentation, both ISDA and ARRC are concerned with the consistency of benchmark language in all documentation and mechanics for most efficiently amending existing documentation referencing USD LIBOR.</div> <div> &nbsp;</div> <div> In the process of considering whether loan and hedge modifications will be necessary, transaction participants should also consider whether the ARRC Fallback Language (and/or any similar language used in transaction documents) adequately anticipates the development of forward-looking term-based rates based upon on SOFR (along with market-approved calibrating adjustments to those rates to account for the differences in character between USD LIBOR and SOFR) that do not yet exist.</div> <div> &nbsp;</div> <div> The September 24, 2018 release of ARRC Fallback Language is part of ARRC&rsquo;s &ldquo;Paced Transition Plan.&rdquo; Following an internal survey in late 2017, ARRC convened to determine dates by which ARRC could feasibly implement steps towards the replacement of contract language referencing USD LIBOR, including the goal of developing forward-looking term rates based upon SOFR.&nbsp;</div> <div> &nbsp;</div> <div> Early milestones in the Paced Transition Plan included the execution of futures contracts referencing SOFR. ARRC initially intended for SOFR futures to be traded by the end of 2018. The largest derivatives exchange and clearinghouse in the world, CME Group, through its affiliate Chicago Mercantile Exchange Inc., operates a deep, liquid SOFR-based futures market and SOFR futures have successfully traded there since May 7, 2018. The ARRC benchmark replacement effort is today ahead of schedule.</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>November 8, 2018 Comment Deadline</strong></span></div> <div> &nbsp;</div> <div> As previously highlighted, ARRC is presently seeking comments and feedback with respect to proposed approaches and questions set forth in connection with the ARRC Fallback Language. Comments are to be transmitted electronically to the ARRC Secretariat for receipt on or before November 8, 2018.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> While the proposed ARRC Fallback Language is intended to be tailored to each specific product, the ARRC Fallback Language provides a baseline for (a) describing the &ldquo;trigger events&rdquo; which start the transition from USD LIBOR to a new reference rate; (b) instituting a &ldquo;waterfall&rdquo; mechanic for specifying the priority of unadjusted rates that would, subject to the calibration described in clause (c) below, replace USD LIBOR; and (c) instituting a similar waterfall mechanic for purposes of specifying the priority of adjustments in calibrating &ldquo;spread&rdquo; that would be applied to the replacement rate due to differences between USD LIBOR (which is an unsecured, term-based rate) and SOFR (which is an overnight, secured and nearly risk-free rate).</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>October 2018 Action Items</strong></span></div> <div> &nbsp;</div> <div> The release of the ARRC Fallback Language on September 24, 2018 marks the start of a public comment period during which ARRC will work closely with market participants to answer questions and provide insight into the expected post-USD LIBOR benchmark world. Lenders, borrowers, derivative counterparties and other market participants should inventory existing documentation referencing USD LIBOR for possible amendment (whether by an ISDA benchmark protocol or otherwise), and new documentation should take into consideration the anticipated discontinuation of USD LIBOR after 2021.&nbsp;</div> <div> &nbsp;</div> <div> On the legal, compliance and operational fronts, the inventory of documentation based on USD LIBOR should also include an evaluation of what changes, other than amending existing documentation and/or adjusting documentation for new transactions, should be undertaken, including the possible need to rework computer systems that may be hardwired to make calculations based on USD LIBOR.</div> <div> &nbsp;</div> <div> The focus today should be not only on benchmark language in credit facility documentation but also on the related interest rate management documentation (which may include ISDA Master Agreements and accompanying schedules and trade confirmations evidencing caps, swaps or other OTC derivatives), as the adjustment of benchmark language in loan documentation without the simultaneous adjustment to related derivative documentation -- if any -- may result in inconsistent contracts. Given this reality, ARRC working groups developed the ARRC Fallback Language for loans in such a way as to be consistent with the approach for USD LIBOR replacement language in hedges currently being developed by ISDA.</div> <div> <div> ________________________________________________________________________________________________________________________________________</div> <div> <div> <br /> <sup>1</sup> Alex Harris, &ldquo;LIBOR Refuses to Die, Setting Up $370 Trillion Benchmark Battle,&rdquo; Bloomberg (May 6, 2018), accessed on October 19, 2018 via <a href="https://www.bloomberg.com/news/articles/2018-05-06/libor-refuses-to-die-setting-up-battle-for-benchmark-supremacy" target="_blank">https://www.bloomberg.com/news/articles/2018-05-06/libor-refuses-to-die-setting-up-battle-for-benchmark-supremacy</a>.</div> <div> <sup>2</sup> It is estimated that USD LIBOR-based benchmarks are included in at least $200 trillion in contracts while the primary benchmarks for Euros, EURIBOR and EONIA, account for $30 trillion in contracts. &ldquo;The Price of Everything; A Scramble to Replace LIBOR is Underway,&rdquo; The Economist (29 Sept. 2018), accessed on October 18, 2018 via <a href="https://www.economist.com/finance-and-economics/2018/09/29/a-scramble-to-replace-libor-is-under-way" target="_blank">https://www.economist.com/finance-and-economics/2018/09/29/a-scramble-to-replace-libor-is-under-way</a>.&nbsp;</div> <div> <sup>3</sup> &ldquo;The ARRC Interim Report: Frequently Asked Questions,&rdquo; Alternative Reference Rates Committee, accessed on October 18, 2018 via <a href="https://www.newyorkfed.org/arrc/faq#15" target="_blank">https://www.newyorkfed.org/arrc/faq#15</a>. A primary objective of ARRC, given that its membership consists of representatives of 15 leading money center banks and the largest derivative exchanges and clearinghouses in the world, is to bring about consistency in documentation across both cash (<em>i.e</em>., USD LIBOR-based loans) and derivative (such as interest rate swaps and caps which similarly reference USD LIBOR) markets.&nbsp;</div> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/LR101918 The Battle Continues Over Purple Communications and the Use of Work Emails https://www.seyfarth.com:443/publications/LR101918 Fri, 19 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In another signal that the Board may overturn the Obama Board&rsquo;s decision in Purple Communications allowing employees to use their employer&rsquo;s email systems to communicate about wages, hours, working conditions and union issues, the Board recently published a letter reiterating its decision to reconsider Purple Communications and invited comment from the public on the standard the Board should apply in these cases.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/10/19/the-battle-continues-over-purple-communications-and-the-use-of-work-emails/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS101918 California State Court Rules that NCAA “Show Cause” Penalty Constitutes an “Unlawful Restraint” Under California Law https://www.seyfarth.com:443/publications/TS101918 Fri, 19 Oct 2018 00:00:00 -0400 <p> On October 9, Los Angeles County Superior Court Judge Frederick Shaller confirmed his tentative decision weeks earlier that the &ldquo;show cause&rdquo; penalty in the NCAA&rsquo;s bylaws violates California law.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/practice-procedure/california-state-court-rules-that-ncaa-show-cause-penalty-constitutes-an-unlawful-restraint-under-california-law/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/maatmanccr101918 Gerald Maatman quoted in the Cook County Record https://www.seyfarth.com:443/news/maatmanccr101918 Fri, 19 Oct 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in an October 19 story from the Cook County Record, &quot;EEOC increases filings for workplace harassment lawsuits, driven partially by #MeToo movement.&quot; Maatman said that employers must be mindful that the EEOC remains an aggressive litigant, and the prospect of an EEOC lawsuit is a significant event for a business. You can read the <a href="https://cookcountyrecord.com/stories/511604772-eeoc-increases-filings-for-workplace-harassment-lawsuits-driven-partially-by-metoo-movement">full article here</a>.</p> https://www.seyfarth.com:443/news/waddleslaw360101818 Nicholas Waddles quoted in Law360 https://www.seyfarth.com:443/news/waddleslaw360101818 Thu, 18 Oct 2018 00:00:00 -0400 <p> Nicholas Waddles was quoted in an October 18 story from Law360, &quot;EBSA Regulatory Agenda Tackles Fiduciary Rule, Birth Control.&quot; on how attorneys seriously doubt the agency will revive the original fiduciary rule. Waddles said that he&#39;d be shocked if anything else was done with that rule.</p> https://www.seyfarth.com:443/publications/IMM101818 What Disclaimer? – USCIS Ignores Labor Department Warning That the Occupational Outlook Handbook Never Be Used for Legal Purposes https://www.seyfarth.com:443/publications/IMM101818 Thu, 18 Oct 2018 00:00:00 -0400 <p> [Blogger&rsquo;s Note: Today&rsquo;s post originates from a discovery &ndash; a gem hidden in plain sight &ndash; first brought to my attention by Gabe Mozes, my immigration partner at Seyfarth Shaw, and co-author of this piece. Great immigration lawyer that he is, Gabe raised a particularly galling example of how U.S. Citizenship and Immigration Services (USCIS) pursues extralegal, pretextual grounds, far afield from its supposed expertise, to deny employment-based requests for immigration benefits. In the birthing process, this post generated a slew of exchanges by email between us, much of it involving a friendly dispute over the eventual title. Initially, I proposed, &ldquo;USCIS ~ The &lsquo;Expertly&rsquo; Inexpert Immigration Agency.&rdquo; He parried with, &ldquo;What Disclaimer? USCIS Ignores DOL Instructions Not To Use OOH for Legal Purposes.&rdquo; I responded with the suggestion to add before &ldquo;USCIS&rdquo; in the title, &ldquo;Sciolist&rdquo; (&ldquo;[one] who pretends to be knowledgeable and well informed&rdquo;), or &ldquo;Ultracrepidarian&rdquo; (&ldquo;one who is presumptuous and offers advice or opinions beyond one&rsquo;s sphere of knowledge&rdquo;). You get the point, we compromised. His genial if begrudging email acceptance expressed mild disappointment that the post below beats around the bush: &ldquo;[While] I like your angle, my original intent was to be more direct and hard-hitting. I may draft a separate one. The time for skirting around the edges is over.&rdquo; So stay tuned.]<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/10/what-disclaimer-uscis-ignores-labor-department-warning-that-the-occupational-outlook-handbook-never-be-used-for-legal-purposes/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT101818 The Week in Weed: October 19, 2018 https://www.seyfarth.com:443/publications/TBT101818 Thu, 18 Oct 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/10/the-week-in-weed-october-19-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL101818 Once Is Enough: Eleventh Circuit Allows Racial Harassment Claim Against Health Care Provider to Proceed—and Takeaways For Employers https://www.seyfarth.com:443/publications/EL101818 Thu, 18 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a recent decision, the Eleventh Circuit Court of Appeals held that the use of the N-Word in the workplace one time is sufficient to trigger a hostile work environment. Additionally, the Eleventh Circuit held that an employer may be held liable for workplace harassment when the plaintiff admitted that she did not complain of harassment until her final day of employment (and when the employer alleged that the plaintiff never complained of harassment). In light of this decision, and in light of the increased focus on workplace harassment over the past year, employers should use this case as an opportunity to review their No Harassment Policies and update their employment law training&mdash;to proactively ensure that harassing conduct does not occur in their workplaces.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/10/once-is-enough-eleventh-circuit-allows-racial-harassment-claim-against-health-care-provider-to-proceed-and-takeaways-for-employers/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise101818 The Internet of Things and The Difficulty In Regulating Emerging Technologies https://www.seyfarth.com:443/publications/FutureEnterprise101818 Thu, 18 Oct 2018 00:00:00 -0400 <p> While IoT devices can result in more efficient processes, smarter decision making, and more autonomy, both in business and in our personal lives, they also pose significant privacy and security risks. As the number of IoT devices increases, so too does the amount of personal and corporate information that exists and is shared online. And by connecting a greater diversity of devices to networks, the number of vulnerable portals through which criminals can access this information, or take control of a connected device also increases.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2018/10/17/the-internet-of-things">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT101718 Give and Toke: Utah Reaches Compromise Agreement on Proposed Medical Marijuana Policy https://www.seyfarth.com:443/publications/TBT101718 Wed, 17 Oct 2018 00:00:00 -0400 <p> With just under four weeks until Election Day, the push to legalize medical marijuana in Utah continues to progress. After years of failed efforts in the state legislature, the issue is being presented directly to voters by way of Utah Proposition 2, the Medical Marijuana Initiative. If the referendum passes, it will legalize medical cannabis for individuals with qualifying conditions. Eligible conditions include autoimmune diseases, Alzheimer&rsquo;s, cancer, and chronic pain where the patient is unable to use opiates, among several other ailments.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/10/give-and-toke-utah-reaches-compromise-agreement-on-proposed-medical-marijuana-policy/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM101718-LE If Pain, Yes Gain—Part 55: New Jersey Publishes Model Paid Sick Leave Notice; Effective Date is Near https://www.seyfarth.com:443/publications/OMM101718-LE Wed, 17 Oct 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> The New Jersey Earned Sick Leave Law goes into effect on October 29, 2018&nbsp;&ndash;&nbsp;less than two weeks from now. As employers prepare for the statewide mandate, the New Jersey Department of Labor and Workforce Development released the long-awaited &ldquo;Notice of Employee Rights.&rdquo;</em></p> <p> <u><strong>Background</strong></u></p> <p> The New Jersey Earned Sick Leave Law (the &ldquo;ESLL&rdquo;) goes into effect on October 29, 2018. When the ESLL becomes effective, New Jersey will be the tenth state in the country with an active statewide sick leave mandate.[1] In addition, and notably, the ESLL will preempt the state&rsquo;s 13 existing municipal paid sick leave ordinances.[2]</p> <p> As employers prepare for the ESLL, the New Jersey Department of Labor and Workforce Development (the &ldquo;Department&rdquo;) recently published the sick leave&nbsp;<a href="https://www.nj.gov/labor/forms_pdfs/mw565sickleaveposter.pdf">Notice of Employee Rights</a> (the &ldquo;Notice&rdquo;), which must be distributed to all New Jersey employees and posted in the workplace pursuant to the ESLL.</p> <p> The release of the Notice follows the Department&rsquo;s mid-September release of the <strong>proposed </strong>Earned Sick Leave Rules, discussed <a href="https://www.seyfarth.com/publications/MA092818-LE">here</a>. A public hearing on the Proposed Rules is scheduled for November 13, 2018 and the corresponding written comment period ends on December 14, 2018. Thus, it appears that New Jersey&rsquo;s final sick time rules will not be released until at least early 2019.[3]</p> <p> With the Notice&rsquo;s arrival, we highlight below employers&rsquo; notice and posting obligations under the ESLL and provide any new information on those obligations revealed by the Notice. For more information on the ESLL&rsquo;s substantive requirements, please see our previous alerts <a href="https://www.seyfarth.com/publications/MA032818-LE">here</a>, <a href="https://www.seyfarth.com/publications/MA041318-LE">here</a>, and <a href="https://www.seyfarth.com/publications/MA050718-LE">here</a>.</p> <p> <u><strong>Notice and Posting Obligations</strong></u></p> <p> The ESLL requires that employers provide the Notice to both existing and newly hired eligible employees and conspicuously post the Notice in a place accessible to all employees in each of the employer&rsquo;s workplaces. According to the ESLL, employers must provide each employee with a copy of the Notice (1) not later than 30 days after the state issues the model notice, (2) at the time of the employee&rsquo;s hiring, if the employee is hired after the model notice is issued, and (3) at any time when first requested by the employee. The Notice explains that the 30-day distribution deadline for existing employees is based on the ESLL&rsquo;s effective date. In other words, the deadline to provide existing employees with a copy of the Notice is November 29, 2018. Specifically, the Notice states:</p> <p> New employees [i.e., as of October 29, 2018] must receive this written notice from their employer when they begin employment, and existing employees must receive it by November 29, 2018. Employers must also post this notice in a conspicuous and accessible place at all work sites, and provide copies to employees upon request [i.e., as of October 29, 2018].</p> <p> The Notice contains a section for employers to insert the start and end of their respective paid sick leave benefit year. The ESLL defines &ldquo;benefit year&rdquo; as the period of 12 consecutive months established by an employer in which an employee shall accrue and use earned sick leave. As a reminder, the ESLL explicitly notes that once the starting date of the benefit year is established by the employer it cannot be changed unless the employer notifies the Commissioner of the Department of Labor and Workforce Development (the &ldquo;Commissioner&rdquo;) of the change in accordance with the forthcoming ESLL final rules.</p> <p> Employers should also be on the lookout for the Notice in Spanish and any other language that the Commissioner determines is the first language of a significant number of workers in the State. The ESLL states that employers must use the Notice in English, Spanish or any other language (a) for which the Commissioner has provided notifications and (b) which is the first language of a majority of the workforce. As of the date of this Alert, the Department is in the process of translating the Notice into 10 additional languages.</p> <p> <strong><u>Employer Takeaways</u></strong></p> <p> We will continue to monitor and provide updates on New Jersey paid sick leave developments as the ESLL effective date approaches and any changes that take place thereafter. Employers should take steps now to comply with the requirements of the ESLL before the New Jersey statewide sick leave symptoms begin on October 29, 2018.</p> <p> As the paid sick leave landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</p> <hr /> <p> [1] The nine statewide paid sick leave laws that are currently in effect include: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; and (9) Rhode Island. Notably,&nbsp;last month, the Michigan legislature approved a <a href="https://www.seyfarth.com/publications/MA091218-LE">sick time ballot initiative</a> that is expected to go into effect on or about April 1, 2019.</p> <p> [2] The New Jersey municipalities with current paid sick leave ordinances are: (1) Newark; (2) Passaic; (3) East Orange; (4) Paterson; (5) Irvington; (6) Montclair; (7) Trenton; (8) Bloomfield; (9) Jersey City; (10) Morristown; (11) Plainfield; (12) Elizabeth; and (13) New Brunswick.</p> <p> [3] The Department&rsquo;s <a href="https://www.nj.gov/labor/">website</a> states that final rules are &ldquo;expected around February 2019.&rdquo;</p> https://www.seyfarth.com:443/publications/CP101718 A California Pickle: Should Employers Defend Alleged Harassers? https://www.seyfarth.com:443/publications/CP101718 Wed, 17 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: When confronted with a lawsuit naming an individual employee as a defendant, should California employers run from the employee or provide a defense? The duty to indemnify employees often leaves employers in a pickle, particularly as to allegations of sexual harassment.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/10/17/a-california-pickle-should-employers-defend-alleged-harassers/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH101718 WHD Announces Regulatory Agenda https://www.seyfarth.com:443/publications/WH101718 Wed, 17 Oct 2018 00:00:00 -0400 <p> The Department of Labor issued its Fall 2018 regulatory agenda, and the Wage &amp; Hour Division is front and center. New to the agenda is a proposed rule on joint employment under the FLSA. Acknowledging that its regulations have not been updated in 60 years and no longer reflect the realities of the workplace, WHD is proposing changes &ldquo;intended to provide clarity to the regulated community and thereby enhance compliance. WHD also &ldquo;believes the proposed changes will help to provide more uniform standards nationwide.&rdquo; A proposed rule is expected in December.<br /> <br /> <a href="https://www.wagehourlitigation.com/dol-compliancerule-making/whd-announces-regulatory-agenda/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL101618 OSHA Clarifies Position on Lawful Post-Incident Drug Testing and Reverses Course on Safety Incentive Programs https://www.seyfarth.com:443/publications/EL101618 Tue, 16 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing; &ldquo;Clarification of OSHA&rsquo;s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. &sect;1904.35(b)(1)(iv).&rdquo;<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/10/osha-clarifies-position-on-lawful-post-incident-drug-testing-and-reverses-course-on-safety-incentive-programs/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS101618 No Protection Under The DTSA for Bid Documents Containing Trade Secrets https://www.seyfarth.com:443/publications/TS101618 Tue, 16 Oct 2018 00:00:00 -0400 <p> A government contractor learned the hard way that bid documents containing trade secrets are not protected from disclosure in Massachusetts. On September 21, 2018, a Massachusetts U.S. District Court judge ruled that the Defend Trade Secrets Act (DTSA) doesn&rsquo;t bar requests under the public records law for bid proposals containing a contractor&rsquo;s trade secrets.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/dtsa/no-protection-under-the-dtsa-for-bid-documents-containing-trade-secrets/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/GPW101618 California’s IoT Security Law – Everyone Needs Cybersecurity Now https://www.seyfarth.com:443/publications/GPW101618 Tue, 16 Oct 2018 00:00:00 -0400 <p> In September of this year, with SB 327, California stepped into the vanguard of information age law by passing a cybersecurity regulation on the Internet of Things. SB 327 has added new sections to Cal. Civil Code &sect;1798. Specifically, &sect;1798.91 et seq. While this seems to be a good thing, the larger question is what does it do, and how far does it reach?<br /> <br /> <a href="https://www.globalprivacywatch.com/2018/10/californias-iot-security-law-everyone-needs-cybersecurity-now/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/ediscoveryrelativity101618 Seyfarth's eDiscovery group profiled by Relativity https://www.seyfarth.com:443/news/ediscoveryrelativity101618 Tue, 16 Oct 2018 00:00:00 -0400 <p> Seyfarth&#39;s eDiscovery group was profiled in an October 16 blog post from Relativity, &quot;Doing Discovery Right: How Seyfarth Shaw Tackles e-Discovery.&quot; When Scott Carlson saw electronic discovery blooming on the horizon, he and his team buckled down and established the kind of strategy that would ultimately make waves for the firm. You can read the <a href="https://www.relativity.com/blog/doing-discovery-right-seyfarth-shaw-e-discovery/">full profile here</a>.</p> https://www.seyfarth.com:443/news/seyfarthability101518 Seyfarth Shaw profiled in Ability Magazine https://www.seyfarth.com:443/news/seyfarthability101518 Mon, 15 Oct 2018 00:00:00 -0400 <p> Seyfarth Shaw was profiled in an October 15 story in Ability Magazine, &quot;Diversity, Inclusion and Compliance at Seyfarth Shaw.&quot; Seyfarth lawyers Valerie Hoffman, Kevin Fritz and Loren Gesinsky were interviewed as part of the profile. The Seyfarth attorneys discussed the firm&rsquo;s progressive efforts in the area of disability and inclusion and how its work in the disability space has brought about a natural progression of change in the workplace. You can read the <a href="https://abilitymagazine.com/diversity-inclusion-and-compliance-at-seyfarth-shaw/">full article here</a>.</p> https://www.seyfarth.com:443/publications/BIO101518 USPTO Director Proposes New Patent Eligibility Guidance https://www.seyfarth.com:443/publications/BIO101518 Mon, 15 Oct 2018 00:00:00 -0400 <p> The test for patentable subject matter under Section 101 lies at the heart of patent system. However, very little guidance is provided in the actual statutory language. It comes as no surprise that the &ldquo;seemingly&rsquo; simple provision of patent eligible subject matter has caused a great deal of confusion among inventors, patent attorneys, district court judges, and even the Justices on the U.S. Supreme Court.<br /> <br /> <a href="https://www.bioloquitur.com/uspto-director-proposes-new-patent-eligibility-guidance/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/JMyers-101518 Jay Myers Publishes Paper for INTA https://www.seyfarth.com:443/publications/JMyers-101518 Mon, 15 Oct 2018 00:00:00 -0400 <div> On October 15, 2018, Jay Myers published the <a href="https://www.inta.org/INTABulletin/Pages/HarmonizationGuidelinesonInternationalClassification7318-.aspx">article </a><em>Harmonization of Trademark Law and Practice Committee Publishes Guideline on International Classification</em> for the 73rd edition of the INTABulletin.&nbsp; The article provides a <a href="https://www.inta.org/Advocacy/Documents/2018/INTA Harmonization Committee Identification and Classification Guideline.pdf">link </a>to an INTA &ldquo;Guideline&rdquo; entitled <em>Considerations Regarding Identifications of Goods and Services in an International Trademark Filing Program</em>, which was authored by Jay together with a subcommittee that he leads within INTA&rsquo;s Harmonization of Trademark Law and Practice Committee.</div> <div> &nbsp;</div> <div> &ldquo;Among other objectives, the International Classification (IC) Subcommittee of the Harmonization of Trademark Law and Practice Committee (HTLPC) has been tasked to review and monitor amendments of existing laws, regulations, and trademark practices concerning the classification of goods and services, the issue of subclasses, and harmonization initiatives by trademark offices, the Five Trademark Offices (TM5), and the World Intellectual Property Organization (WIPO) relating to international classification, including taxonomy structures, class scopes, classification of items, and classification tools.&rdquo;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/WC101518 Federal Court Rules That An EEOC Lawsuit Is Not Barred By Bankruptcy Code’s Automatic Stay https://www.seyfarth.com:443/publications/WC101518 Mon, 15 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The government&rsquo;s anti-discrimination watchdog can be extremely aggressive in pursuing discrimination claims, including pursuing those claims after an employer files for bankruptcy. Normally, after a bankruptcy petition is filed, the Bankruptcy Code&rsquo;s automatic stay enjoins other actions against the debtor. But in EEOC v. Tim Shepard M.D., PA d/b/a Shepherd Healthcare, 17-CV-02569 (N.D. Tex. Oct. 11, 2018), the U.S. District Court for the Northern District of Texas sided with the EEOC and concluded that the EEOC&rsquo;s Title VII lawsuit fell within an exception to the Bankruptcy Code&rsquo;s automatic stay. This case is a good reminder that the Bankruptcy Code&rsquo;s protections do not necessarily stave off an EEOC action. Importantly, the EEOC often will not back down from a fight simply because its target filed a bankruptcy petition, and depending on the nature of the EEOC action, it may fall within an exception to the automatic stay.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/10/federal-court-rules-that-an-eeoc-lawsuit-is-not-barred-by-bankruptcy-codes-automatic-stay/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA101218 Robles v. Dominos: Engaged Ninth Circuit Hears Web Access Appeal https://www.seyfarth.com:443/publications/ADA101218 Fri, 12 Oct 2018 00:00:00 -0400 <p> This morning, October 12, in sunny Pasadena, California, the Ninth Circuit Court of Appeals heard oral argument in the Robles v. Dominos case. The main issue on appeal was whether the district court erred in applying the doctrines of primary jurisdiction and due process as the basis for granting Domino&rsquo;s motion to dismiss Robles&rsquo;s claims that Dominos violated Title III of the Americans with Disabilities Act due to an inaccessible website. The parties and judges had a lively 30-minute discussion, after which the Court took the matter under submission.<br /> <br /> <a href="https://www.adatitleiii.com/2018/10/robles-v-dominos-engaged-ninth-circuit-hears-web-access-appeal/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE101218 OSHA Clarifies Position on Lawful Post-Incident Drug Testing and Reverses Course on Safety Incentive Programs https://www.seyfarth.com:443/publications/WSE101218 Fri, 12 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has just issued a Standard Interpretation clarifying the Obama-era guidance that prohibited incentive programs and circumscribed post-incident drug testing; &ldquo;Clarification of OSHA&rsquo;s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. &sect;1904.35(b)(1)(iv).&rdquo;<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/workplace-policies-and-processes/osha-clarifies-position-on-lawful-post-incident-drug-testing-and-reverses-course-on-safety-incentive-programs/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/vuwusa9101218 Minh Vu interviewed on WUSA9 https://www.seyfarth.com:443/news/vuwusa9101218 Fri, 12 Oct 2018 00:00:00 -0400 <p> Minh Vu was interviewed October 12th on WUSA9, &quot;Justice Department failing disabled people and businesses, advocates and attorneys say.&quot; Seyfarth estimates more than 2,000 lawsuits will land on court schedules this year, up from more than 800 in 2017. You can watch the interview <a href="https://www.wusa9.com/video/news/local/justice-department-failing-disabled-people-and-businesses-advocates-and-attorneys-say/65-8280648">here</a>.</p> https://www.seyfarth.com:443/news/adaqct101218 Seyfarth's ADA statistics referenced in the Quad-City Times https://www.seyfarth.com:443/news/adaqct101218 Fri, 12 Oct 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in an October 12 story from the Quad-City Times, &quot;Businesses can learn about making websites accessible for people with disabilities.&quot; Last year, website accessibility lawsuits grew at a record pace, with more than 800 suits filed, according to Seyfarth. You can read the <a href="https://qctimes.com/business/businesses-can-learn-about-making-websites-accessible-for-people-with/article_7301f139-02e5-5920-8ec2-2c64a3f26017.html">full article here</a>.</p> https://www.seyfarth.com:443/news/maatmannbcnews101118 Gerald Maatman quoted in NBC News https://www.seyfarth.com:443/news/maatmannbcnews101118 Thu, 11 Oct 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in an October 11 story from NBC News, &quot;New data on #MeToo&#39;s first year shows &#39;undeniable&#39; impact.&quot; Maatman said that he&rsquo;s advised businesses to step up their efforts to create harassment reporting systems and address complaints in-house because of the EEOC&rsquo;s increase in activity on the issue. You can read the <a href="https://www.nbcnews.com/news/us-news/new-data-metoo-s-first-year-shows-undeniable-impact-n918821">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS101118 California Federal Court Awards Fees From Trade Secret Plaintiff For Continuing To Litigate After Misappropriation Claim Was Rendered “Objectively Specious” https://www.seyfarth.com:443/publications/TS101118 Thu, 11 Oct 2018 00:00:00 -0400 <p> When negotiations for acquisition and licensing fell through between Swarmify and Cloudflare in 2017, Swarmify brought several claims against Cloudflare, including state and federal claims for misappropriation of trade secrets.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/trade-secrets/california-federal-court-awards-fees-from-trade-secret-plaintiff-for-continuing-to-litigate-after-misappropriation-claim-was-rendered-objectively-specious/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM101118-LIT The Campaign for “Clean” Cosmetics Through Regulation Reform Continues https://www.seyfarth.com:443/publications/OMM101118-LIT Thu, 11 Oct 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>Rep. Schakowsky (D-Ill.) proposes latest cosmetics reform bill to enhance the FDA&rsquo;s oversight of cosmetic products and ensure cosmetics are free of known toxins and contaminants.&nbsp;</em></div> <div> &nbsp;</div> <div> While the <a href="https://www.seyfarth.com/publications/OMM042718-LIT">Senate&rsquo;s Personal Care Product Safety Act</a> is pending review, in pushing cosmetic reform along, the House has proposed its own Safe Cosmetics and Personal Care Products Act of 2018 (<a href="https://www.congress.gov/bill/115th-congress/house-bill/6903/text">HR 6903</a>, the &ldquo;Bill&rdquo;).&nbsp; The Bill is led by Rep. Janice Schakowsky (D - Illinois), who noted on September 26, 2018 on <a href="https://twitter.com/janschakowsky/status/1045084436646297600">Twitter</a>, &ldquo;today I introduced a bill banning toxic ingredients from personal care products.&rdquo; Currently, the Bill is under review by the House Committee on Energy and Commerce.&nbsp; With a focus on safe ingredients and greater transparency, Rep. Schakowsky issued a <a href="https://schakowsky.house.gov/press-releases/schakowsky-introduces-bill-banning-toxic-ingredients-from-personal-care-products/">press release</a> further summarizing that the Bill &ldquo;calls for the full disclosure of all ingredients included in beauty and personal care products including fragrances. It also bans outright toxic ingredients, like carcinogens, in those products.&rdquo; Rep. Schakowsky hopes to tackle the realization that &ldquo;cosmetics are one of the least regulated consumer products on the market.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> The Bill tracks the momentum from consumers, and likely Rep. Schakowsky&rsquo;s constituents, for toxin-free products, which is reflected by retailers&#39; and manufacturers&#39; notable &ldquo;clean&rdquo; initiatives and commitments to excluding certain ingredients.&nbsp; The Bill proposes that all brand owners, defined as &ldquo;any entity responsible for bringing a cosmetic to market,&rdquo; shall pay a fee and register with the Food and Drug Administration (FDA) and inform the FDA of all of its cosmetic products, inclusive of all data and information regarding the safety of its products and product ingredients, warnings, and directions for use of products.&nbsp; Further to brand owners&rsquo; obligations, the Bill requires that each product contain a list of all ingredients and identify those deemed to be contaminants.&nbsp; Under the Bill, the term &ldquo;contaminant&rdquo; means &ldquo;unintended substances, such as those that can originate from sources outside the chemical pathway, chemical processes, storage of primary substances, instability of the packaging or harmful by products of the manufacturing process.&rdquo;&nbsp; Brand owners are also expected to report any adverse events arising from product use and are banned from engaging in animal testing.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> While the Bill contains new responsibilities for the cosmetics industry, it also creates a number of new initiatives for the FDA.&nbsp; The Bill calls on the FDA to establish a &ldquo;safety standard&rdquo; so that a cosmetic or ingredient provides a reasonable certainty of no harm and protects the public from any known or anticipated adverse health effects.&nbsp; Additionally, the Bill asks that the FDA compile a list of ingredients and categorize them as either &ldquo;prohibited and restricted,&rdquo; &ldquo;safe without limits&rdquo;, or &ldquo;priority assessment,&rdquo; as well as a list of contaminants linked to severe acute reactions.&nbsp; Furthermore, the Bill requires the FDA to devise testing protocols for detecting contaminants in an ingredient or cosmetic product.&nbsp;</div> <div> &nbsp;</div> <div> The most notable proposed change is expanding the FDA&rsquo;s enforcement authority.&nbsp; Currently, the FDA has no authority to order the recall of a cosmetic, but it can request that a manufacturer or seller recall a product. The Bill, however, provides that the FDA may request a voluntary recall, immediately order a cease of distribution with cause (i.e. serious adverse event, cosmetic misbranded, unregistered brand owner), or issue an emergency recall order if a product presents an imminent threat of serious adverse event.&nbsp; The Bill further sets forth a formal hearing and appeal process for purposes of an ordered recall.&nbsp;</div> <div> &nbsp;</div> <div> The lengthy bill strikes a balance between greater industry accountability and government involvement alike to oversee the marketing and sale of cosmetic products.&nbsp; While most cosmetic developers have heeded consumers&rsquo; concerns and are already sensitive to using safe ingredients and communicating the same to consumers, the Bill requires significant government overhaul, which will demand substantial resources dedicated to compliance and enforcement.&nbsp; Without support from Republicans, query whether this beauty Bill will be the one to gain traction in Congress. We will continue to monitor the progress of cosmetic reform and Congress&rsquo; efforts to keep all things clean, safe and beautiful!&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/OMM101118-EB IRS Issues Update to Qualified Plan Correction Guidance https://www.seyfarth.com:443/publications/OMM101118-EB Thu, 11 Oct 2018 00:00:00 -0400 <div> In September, the IRS issued Rev. Proc. 2018-52 updating the IRS correction program, i.e., Employee Plans Compliance Resolution System (&ldquo;EPCRS&rdquo;). EPCRS allows retirement plan sponsors to correct compliance failures that may adversely affect the tax-qualified status of a plan. The primary purpose of the new Revenue Procedure is to update how plan sponsors may submit Voluntary Correction Program (&ldquo;VCP&rdquo;) applications to the IRS.</div> <div> &nbsp;</div> <div> Effective April 1, 2019, the IRS will no longer accept paper VCP submissions or paper check user fee payments. Specifically, the updated procedures mandate plan sponsors (or their authorized representatives) to use the <a href="http://www.pay.gov">www.pay.gov</a> website to file VCP submissions and to pay applicable user fees. The guidance provides for a transition period from January 1, 2019, through March 31, 2019, during which plan sponsors may elect to submit VCP submissions either through the website or by paper.</div> <div> &nbsp;</div> <div> The updated procedures instruct applicants to complete Form 8950 using the <a href="http://www.pay.gov">www.pay.gov</a> website. All of the items related to the submission must be combined into a single PDF file and uploaded to the website. If the documents exceed a 15MB limit, whichever documents exceed such limit must be faxed to the IRS separately. Applicants are also instructed to pay the applicable user fee through the <a href="http://www.pay.gov">www.pay.gov</a> website. Payment confirmation, including a tracking identification number, will be generated by the www.pay.gov website and may be emailed to applicant in lieu of a written acknowledgement.</div> <div> &nbsp;</div> <div> Revenue Procedure 2018-52 also makes a few other minor substantive changes, including revising references to reflect changes to the IRS Pre-approved Plan program and clarifying that the IRS Letter Forwarding Program is no longer available to search for participants and beneficiaries to whom benefits may be due from a plan.</div> <div> &nbsp;</div> <div> The IRS requested comments on other issues for future updates of EPCRS, noting that it is considering changes relating to the recoupment of overpayments and an expansion of the Self-Correction Program.</div> https://www.seyfarth.com:443/publications/EL101118 Batter Up: The FCPA Takes a Swing at Major League Baseball https://www.seyfarth.com:443/publications/EL101118 Thu, 11 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Among the latest news reports in the cross-border public corruption space that has legally-minded sports fans talking is that a federal grand jury is investigating Major League Baseball&rsquo;s international player development system for potential Foreign Corrupt Practices Act (FCPA) violations. See for instance Report: A Federal Grand Jury is Investigating MLB&rsquo;s International Player Development System, Major League Baseball Signings Focus of Grand Jury Probe, Reports Say, and OT MLB under investigation by US Federal Grand Jury.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/10/batter-up-the-fcpa-takes-a-swing-at-major-league-baseball/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT101118 The Week in Weed: October 12, 2018 https://www.seyfarth.com:443/publications/TBT101118 Thu, 11 Oct 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/10/the-week-in-weed-october-12-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM101018-LE Certified Tire: Not Your Average Compensation System https://www.seyfarth.com:443/publications/OMM101018-LE Wed, 10 Oct 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em>&nbsp;The California Court of Appeal has upheld the validity of pay plans that guarantee a wage that meets or exceeds the minimum wage for all hours worked during a pay period, but that also enables the employees to earn higher pay based on certain production metrics.</em></p> <p> <strong>The Facts</strong></p> <p> In several coordinated wage and hour class actions, technicians working for Certified Tire and Services Centers, Inc. sued for unpaid minimum wages and rest periods. The technicians claimed that Certified Tire&rsquo;s Technician Compensation Program (&ldquo;TCP&rdquo;) was an unlawful &ldquo;activity-based compensation system&rdquo; because it failed to pay separately for time spent on repair tasks and for rest periods. The technicians claimed that, under the TCP, Certified Tire improperly sought to &ldquo;average&rdquo; the hourly rate to comply with minimum wage requirements.</p> <p> Under the TCP, technicians were paid an hourly rate for all work performed, but the rate varied from pay period to pay period. The TCP guaranteed a rate that exceeded the minimum wage for all hours worked. But technicians could earn more than the guaranteed rate based on a formula that rewarded them for repair work that was billed to customers as a separate labor charge.</p> <p> The trial court, after certifying several subclasses of technicians, conducted a bench trial and issued a statement of decision in favor of Certified Tire. The technicians appealed.</p> <p> <strong>The Appellate Court Decision </strong></p> <p> The technicians argued that Certified Tire was violating a rule established in <em>Armenta v. Osmose, Inc.</em>, a 2005 California Court of Appeal case. By that rule, an employer utilizing an activity-based pay plan must separately pay for time spent on non-productive tasks and for breaks. The technicians claimed that the TCP constituted an activity-based compensation system because they could not increase their base hourly rate when performing activities that did not generate billed repairs and, as a result, were not paid &ldquo;separate compensation&rdquo; for time spent on non-productive tasks. The Court of Appeal rejected the technicians&rsquo; argument, for two reasons.</p> <p> First, the TCP was not an &ldquo;activity-based compensation system,&rdquo; but rather an &ldquo;hourly rate system&rdquo; that paid technicians at a single hourly rate for all hours worked. The technicians earned wages for every work activity they performed, including waiting for customers and performing tasks that did not have billed repairs costs associated with them. Even though the hourly rate varied from pay period to pay period, technicians always got a wage for all hours worked that exceeded the minimum wage, regardless of their productivity or the type of activity in which they were engaged during those hours.</p> <p> Second, the Court of Appeal concluded that the technicians&rsquo; argument was based on the faulty premise that they were not paid for hours that did not generate billed repairs. The evidence demonstrated that they were paid for all hours worked regardless of what they were doing at the time. Technicians also received paid rest periods, even if no billed repairs were generated during rest periods.</p> <p> Because technicians were paid an hourly rate at or above the minimum wage for each hour on the clock, the Court of Appeal concluded that this case did not involve improper averaging of an employee&rsquo;s hourly rate to show compliance with minimum wage requirements.</p> <p> <strong>What <em>Certified Tire </em>Means For Employers</strong></p> <p> <em>Certified Tire</em> makes it clear that employers may utilize hourly rate systems that are designed to incentivize employees to be more productive and that allow them to significantly increase their hourly compensation based on their level of efficiency. To be valid though, these hourly rate systems must pay at least the minimum wage for rest periods and for all hours worked.</p> https://www.seyfarth.com:443/publications/CP101018 DFEH Reports Age Discrimination And Retaliation Claims On the Rise https://www.seyfarth.com:443/publications/CP101018 Wed, 10 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The California Department of Fair Employment and Housing issues a yearly report describing its complaint and litigation trends. Below is the Reader&rsquo;s Digest&trade; version.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/10/10/dfeh-reports-age-discrimination-and-retaliation-claims-on-the-rise/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ERISA101018 ERISA University Excessive Fee Cases Take Another Hit https://www.seyfarth.com:443/publications/ERISA101018 Wed, 10 Oct 2018 00:00:00 -0400 <p> Nearly 20 universities have been sued under the Employee Retirement Income Security Act (&ldquo;ERISA&rdquo;) over the fees paid in their Section 403(b) qualified employee benefit defined contribution plans.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/10/10/erisa-university-excessive-fee-cases-take-another-hit/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS100918 Unlimited annual leave gathers momentum https://www.seyfarth.com:443/publications/WLS100918 Tue, 09 Oct 2018 00:00:00 -0400 <p> Some companies even let employees decide how much leave to take. For example in 2014, Virgin Group unveiled an &lsquo;unlimited&rsquo; annual leave policy. Our 2014 blog observed that &ldquo;time would tell&rdquo; if the unlimited annual leave policy was an enlightened approach to workplace flexibility, or a step too far.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/10/unlimited-annual-leave-gathers-momentum/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL100918 Sixth Circuit Denies Review of Judgment Favoring Former Employee in Retaliation Claim Under the Mine Act https://www.seyfarth.com:443/publications/EL100918 Tue, 09 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Sixth Circuit recently upheld an administrative decision in favor of a miner&rsquo;s whistleblower complaint, further underscoring the need for mine operators to implement strong anti-retaliation policies and keep detailed supporting records of internal investigations and employment-related decisions.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/10/sixth-circuit-denies-review-of-judgment-favoring-former-employee-in-retaliation-claim-under-the-mine-act/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/launeytlnt100918 Kristina Launey authored an article in TLNT https://www.seyfarth.com:443/publications/launeytlnt100918 Tue, 09 Oct 2018 00:00:00 -0400 <p> Kristina Launey authored an October 9 article in TLNT, &quot;New California Employment Laws Expand Harassment Rules, Require Women On Boards.&quot; You can read the <a href="https://www.tlnt.com/new-california-employment-laws-expand-harassment-rules-require-women-on-boards/">full article here</a>.</p> https://www.seyfarth.com:443/news/danabl100918 Anne Dana quoted in Bloomberg Law https://www.seyfarth.com:443/news/danabl100918 Tue, 09 Oct 2018 00:00:00 -0400 <p> Anne Dana was quoted in an October 9 story from Bloomberg Law, &quot;New York Sexual Harassment Law Deadline Has Employers in a Hurry.&quot; Dana said that employers that design their own policies can incorporate them into their existing employee handbooks or tailor them to individual workplaces.</p> https://www.seyfarth.com:443/news/wexlernewsday100818 Howard Wexler quoted in Newsday https://www.seyfarth.com:443/news/wexlernewsday100818 Mon, 08 Oct 2018 00:00:00 -0400 <p> Howard Wexler was quoted in an October 8 story from Newsday, &quot;Can an employer allow employees to work through lunch to leave early?&quot; Wexler said that while allowing employees to work through lunch occasionally in exchange for leaving early is acceptable, it is not something that the state Labor Department will permit on a long-term basis in lieu of employees taking a bona fide meal break. You can read the <a href="https://www.newsday.com/business/workplace-questions-labor-laws-1.21672544">full article here</a>.</p> https://www.seyfarth.com:443/news/hrdive100818 Christopher DeGroff, Gerald Maatman, Matthew Gagnon and Kyla Miller's blog post referenced in HR Dive https://www.seyfarth.com:443/news/hrdive100818 Mon, 08 Oct 2018 00:00:00 -0400 <p> Christopher DeGroff, Gerald Maatman, Matthew Gagnon and Kyla Miller&#39;s blog post was referenced in an October 8 story from HR Dive, &quot;EEOC sexual harassment suits jump more than 50% in 2018.&quot; An analysis of EEOC filings by the Seyfarth attorneys showed that a ramp-up in EEOC court filings occurred in the summer months of June, July and August, which saw 63 cases filed. You can read the <a href="https://www.hrdive.com/news/eeoc-sexual-harassment-suits-jump-more-than-50-in-2018/539105/">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS100818 Robert Milligan to Present Webinar on Non-Competes and Non-Solicitation Agreements https://www.seyfarth.com:443/publications/TS100818 Mon, 08 Oct 2018 00:00:00 -0400 <p> On Wednesday, November 28, 2018, at 1:00 to 2:30 p.m. Eastern, Seyfarth Partner and Trade Secrets, Computer Fraud &amp; Non-Compete Practice Group Co-Chair Robert Milligan is presenting a Strafford live webinar. The &ldquo;Drafting Enforceable Non-compete and Non-Solicitation Agreements: Compliance with New State Statutes and Case Law&rdquo; webinar panel will discuss recent legislative and case law trends regarding non-compete and non-solicitation agreements, offer best practices for structuring permissible contracts, and explain how to determine whether existing agreements are lawful.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/noncompete-enforceability/robert-milligan-to-present-webinar-on-non-competes-and-non-solicitation-agreements/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS100818a D. Joshua Salinas Named 2018-2019 Vice Chair of Trade Secrets and Interferences Committee https://www.seyfarth.com:443/publications/TS100818a Mon, 08 Oct 2018 00:00:00 -0400 <p> D. Joshua Salinas was recently named 2018-2019 Vice Chair of the Trade Secrets and Interferences with Contracts Committee for the American Bar Association Section of Intellectual Property Law (ABA-IPL). The ABA-IPL was formed to advance the development of intellectual property laws, and their fair and just administration. The Section serves as the ABA voice&mdash;within the profession, before policymakers and with the public. Joshua will help lead this forum for rich perspectives and balanced insight on the full spectrum of intellectual property law.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/intellectual-property/d-joshua-salinas-named-2018-2019-vice-chair-of-trade-secrets-and-interferences-committee/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA100818 Florida Court Dismisses Website Accessibility Case, Clarifying “Nexus” Requirement For Stating A Claim Under The ADA https://www.seyfarth.com:443/publications/ADA100818 Mon, 08 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Florida court rules that plaintiff must allege more than being unable to learn about a brick-and-mortar business to state a claim that an allegedly inaccessible website violates the ADA.<br /> <br /> <a href="https://www.adatitleiii.com/2018/10/florida-court-dismisses-website-accessibility-case-clarifying-nexus-requirement-for-stating-a-claim-under-the-ada/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS100818aa IP Holding Companies: Trade Secrets & Trade Secret Asset Management https://www.seyfarth.com:443/publications/TS100818aa Mon, 08 Oct 2018 00:00:00 -0400 <p> As a special feature of our blog&mdash;guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Donal O&rsquo;Connell, Managing Director of Chawton Innovation Services Ltd.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/trade-secrets/ip-holding-companies-trade-secrets-trade-secret-asset-management/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/adapp100718 Seyfarth's ADA statistics referenced in the Pioneer Press https://www.seyfarth.com:443/news/adapp100718 Sun, 07 Oct 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in an October 7 story from the Pioneer Press, &quot;First lawsuits over disabled access to websites make their way to Minnesota.&quot; In the first half of this year, there were 1,053 such suits filed across the nation &mdash; a 30 percent uptick from last year, according to Seyfarth&#39;s statistics. You can read the <a href="https://www.twincities.com/2018/10/07/minnesota-websites-sued-lawsuit-disability-advocates/">full article here</a>.</p> https://www.seyfarth.com:443/news/shermancnbc100618 Andrew Sherman quoted in CNBC.com https://www.seyfarth.com:443/news/shermancnbc100618 Sat, 06 Oct 2018 00:00:00 -0400 <p> Andrew Sherman was quoted in an October 6 story from CNBC.com, &quot;Here are 8 ways to negotiate a six-figure salary like a pro.&quot; Sherman said that a record low unemployment rate of 3.7 percent is boosting the confidence of workers and causing more people to leave jobs to pursue jobs with six-figure salaries. You can read the <a href="https://www.cnbc.com/2018/10/06/8-ways-to-negotiate-a-six-figure-salary-like-a-pro.html">full article here</a>.</p> https://www.seyfarth.com:443/news/greensteinnyt100618 Dennis Greenstein quoted in the New York Times https://www.seyfarth.com:443/news/greensteinnyt100618 Sat, 06 Oct 2018 00:00:00 -0400 <p> Dennis Greenstein was quoted in an October 6 story from the New York Times, &quot;My Co-Op Building Is Going Smoke-Free, But I Don&rsquo;t Want to Quit.&quot; Greenstein said that since smokers are not a legally recognized protected class, smoking bans are not discriminatory and should be enforceable. You can read the <a href="https://www.nytimes.com/2018/10/06/realestate/my-co-op-building-is-going-smoke-free-but-i-dont-want-to-quit.html">full article here</a>.</p> https://www.seyfarth.com:443/news/greetistr100518 Adam Greetis quoted in Thomson Reuters Practical Law Employee Benefits & Executive Compensation https://www.seyfarth.com:443/news/greetistr100518 Fri, 05 Oct 2018 00:00:00 -0400 <p> Adam Greetis participated in an October 5 Q&amp;A in Thomson Reuters Practical Law Employee Benefits &amp; Executive Compensation, &quot;Expert Q&amp;A on Retirement Plans and Blockchain.&quot;</p> https://www.seyfarth.com:443/news/degroffwapo100518 Christopher DeGroff quoted in the Washington Post https://www.seyfarth.com:443/news/degroffwapo100518 Fri, 05 Oct 2018 00:00:00 -0400 <p> Christopher DeGroff was quoted in an October 5 story from the Washington Post, &quot;The #MeToo effect: Sexual harassment charges with the EEOC rose for the first time in years.&quot; DeGroff said that when the EEOC files a case, it&rsquo;s meant to send a message not just to the employer it sues, but also to employers generally. You can read the <a href="https://www.washingtonpost.com/business/2018/10/05/metoo-effect-sex-harassment-charges-with-eeoc-rose-first-time-years/?noredirect=on&amp;utm_term=.acd468b620a4">full article here</a>.</p> https://www.seyfarth.com:443/news/ehstoday100518 James Curtis, Erin Dougherty Foley, Adam Young and Megan Toth were quoted in EHS Today https://www.seyfarth.com:443/news/ehstoday100518 Fri, 05 Oct 2018 00:00:00 -0400 <p> James Curtis, Erin Dougherty Foley, Adam Young and Megan Toth were quoted in an October 5 story from EHS Today, &quot;Protecting Pregnant Women in the Workplace.&quot; The Seyfarth lawyers said that one issue to recognize is that while employers have a general duty to protect their employees from a condition known to cause harm, pregnant women may face unique risks and may be more susceptible to a range of serious workplace hazards. You can read the <a href="https://www.ehstoday.com/health/protecting-pregnant-women-workplace">full article here</a>.</p> https://www.seyfarth.com:443/publications/LR100518 NLRB Limits Protections for Striking Workers in Consolidated Communications https://www.seyfarth.com:443/publications/LR100518 Fri, 05 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Though the NLRA provides robust protections for striking employees, the Board&rsquo;s decision in Consolidated Communications demonstrates some of the limits of those protections. On October 2, 2018, the NLRB held that inherently dangerous acts calculated to intimidate do not fall within the broad scope of the NLRA&rsquo;s protections.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/10/05/nlrb-limits-protections-for-striking-workers-in-consolidated-communications/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS100518 Hold My Beer: Ninth Circuit Hears Oral Argument in Trade Secret/Anti-SLAPP Row for a Second Time https://www.seyfarth.com:443/publications/TS100518 Fri, 05 Oct 2018 00:00:00 -0400 <p> A Ninth Circuit panel consisting of Judges A. Wallace Tashima, Johnnie B. Rawlinson, and Paul J. Watford recently heard oral argument in Anheuser-Busch Companies v. Clark, 17-15591, concerning the denial of a former employer&rsquo;s anti-SLAPP motion in a trade secret misappropriation and breach of contract case. This is the second time the case has made its way up to the Ninth Circuit. We previously reported on this case in March 2017. The panel has not yet issued its decision but the Ninth Circuit&rsquo;s decision could have far reaching implications for trade secret and data theft cases involving purported whistleblowing activities.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/data-theft-2/hold-my-beer-ninth-circuit-hears-oral-argument-in-trade-secret-anti-slapp-row-for-a-second-time/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/degroffshrm100418 Christopher DeGroff quoted in SHRM https://www.seyfarth.com:443/news/degroffshrm100418 Thu, 04 Oct 2018 00:00:00 -0400 <p> Christopher DeGroff was quoted in an October 4 story from SHRM, &quot;One Year After #MeToo and &#39;Weinstein Effect&#39;: What&#39;s Changed?&quot; on how the number of sex discrimination claims and sexual harassment complaints filed with the Equal Employment Opportunity Commission (EEOC) has risen. DeGroff said that given the EEOC&#39;s limited resources and the broad range of legal claims and protected categories for which the agency is responsible, a jump of 25 percent in any one legal claim is, in most employers&#39; view, remarkable. You can read the <a href="https://www.shrm.org/ResourcesAndTools/hr-topics/employee-relations/Pages/Sexual-Harassment-Workplace-Weinstein-Effect.aspx">full article here</a>.</p> https://www.seyfarth.com:443/publications/EL100418 New York State Releases Final Anti-Sexual Harassment Materials https://www.seyfarth.com:443/publications/EL100418 Thu, 04 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In compliance with legislation passed earlier this year, New York State has released the final model sexual harassment policy and complaint form, the model training materials, and FAQs, which provide further guidance regarding the legislation. Two significant clarifications to the draft guidance issued several weeks ago are (1) the deadline for completion of employee anti-harassment training is October 2019, not January 2019, and (2) new employees must receive training &ldquo;as soon as possible,&rdquo; rather than within 30 days of hire.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/10/new-york-state-releases-final-anti-sexual-harassment-materials/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH100418 Governor Brown Vetoes Legislative Attempt to Criminalize Mandatory Arbitration https://www.seyfarth.com:443/publications/WH100418 Thu, 04 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In vetoing the California Legislature&rsquo;s attempt to criminalize arbitration agreements (AB 3080), Governor Brown displayed common sense and the legal learning provided by recent U.S. Supreme Court authority.<br /> <br /> <a href="https://www.wagehourlitigation.com/california-labor-code/governor-brown-vetoes-legislative-attempt-to-criminalize-mandatory-arbitration/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS100418 The post-employment restraint as a business asset https://www.seyfarth.com:443/publications/WLS100418 Thu, 04 Oct 2018 00:00:00 -0400 <p> This is the case now more than ever given that the Supreme Court of Victoria&rsquo;s decision in Just Group Limited v Peck [2016] VSC 614 (later affirmed on appeal) has arguably raised the bar for correctly drafting an effective restraint.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/10/the-post-employment-restraint-as-a-business-asset/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT100418 The Week in Weed: October 5, 2018 https://www.seyfarth.com:443/publications/TBT100418 Thu, 04 Oct 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/10/the-week-in-weed-october-5-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/maatmanxperthr100318 Gerald Maatman quoted in XpertHR https://www.seyfarth.com:443/news/maatmanxperthr100318 Wed, 03 Oct 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in an October 3 story from XpertHR, &quot;EEOC FY2018 Filings Report Reflects #MeToo Impact,&quot; on the preliminary findings of Seyfarth&#39;s annual EEOC filing report which indicate that the agency has increased its litigation efforts, despite being short two commissioners and with its General Counsel position still unfilled. Maatman said that the most striking trend of all is the substantial increase in sex-based discrimination filings, primarily the number of sexual harassment filings. You can read the <a href="https://www.xperthr.com/news/eeoc-fy2018-filings-report-reflects-metoo-impact/33688/?cmpid=SOC%7CUSAG%7CHUGMN-2017-0203-2017_twitter_generic_tracking">full article here</a>.</p> https://www.seyfarth.com:443/news/szeligalaw360100318 Jamaica Szeliga quoted in Law360 https://www.seyfarth.com:443/news/szeligalaw360100318 Wed, 03 Oct 2018 00:00:00 -0400 <p> Jamaica Szeliga was quoted in an October 3 story from Law360, &quot;FDA Petition-Shaming Plan Gives Ammo To Antitrust Suits,&quot; on how the U.S. Food and Drug Administration appears poised to shame branded-drug makers that make strategically timed objections to generic-drug approval standards, providing new ammunition for antitrust suits over delayed access to lower-cost medicines. Szeliga said that the FDA&#39;s imprimatur could be valuable for a case alleging anti-competitive actions.</p> https://www.seyfarth.com:443/news/moradybi100318 Ilana Morady quoted in Business Insurance https://www.seyfarth.com:443/news/moradybi100318 Wed, 03 Oct 2018 00:00:00 -0400 <p> Ilana Morady was quoted in an October 3 story from Business Insurance, &quot;California seeks to take up mantle on workplace safety reporting from OSHA,&quot; on how California is trying to take the enforcement reins on workplace safety reporting requirements pursued and adopted by the Obama administration before being revoked by the Trump administration and the Republican-led Congress. Morady said that California has made it pretty clear that this is in direct response to President Trump rolling back the Obama-era changes. You can read the <a href="https://www.businessinsurance.com/article/20181003/NEWS08/912324345/California-seeks-to-take-up-mantle-on-workplace-safety-reporting-from-federal-OS">full article here</a>.</p> https://www.seyfarth.com:443/publications/CP100318 Governor Brown Vetoes Legislative Attempt to Criminalize Mandatory Arbitration https://www.seyfarth.com:443/publications/CP100318 Wed, 03 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In vetoing the California Legislature&rsquo;s attempt to criminalize arbitration agreements (AB 3080), Governor Brown displayed common sense and the legal learning provided by recent U.S. Supreme Court authority.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/10/03/governor-brown-vetoes-legislative-attempt-to-criminalize-mandatory-arbitration/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL100218 Having Your Cake and Eating It Too: Sixth Circuit Rules that Employees Need Not Return Severance Pay Before Suing https://www.seyfarth.com:443/publications/EL100218 Tue, 02 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a recent decision, the U.S. Court of Appeals for the Sixth Circuit ruled that former employees need not return severance pay before filing a lawsuit against an employer, when the employee alleges the severance agreement should be rescinded and is bringing discrimination claims under Title VII or the Equal Pay Act. This decision means that notwithstanding the fact that the employee signed a severance agreement and accepted severance pay upon leaving the company, the employee may still be able to sue and keep the severance money&mdash;if the employee claims she was coerced into signing the agreement. Given this, it is important for employers to review their severance practices, in order to ensure the process is fair, help protect against claims of coercion, and safeguard the company during the process.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/10/having-your-cake-and-eating-it-too-sixth-circuit-rules-that-employees-need-not-return-severance-pay-before-suing/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA100218-LE New York State Releases Final Anti-Sexual Harassment Materials https://www.seyfarth.com:443/publications/MA100218-LE Tue, 02 Oct 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>:&nbsp; In compliance with legislation passed earlier this year, New York State has released the final model sexual harassment policy and complaint form, the model training materials, and FAQs, which provide further guidance regarding the legislation.&nbsp; Two significant clarifications to the draft guidance issued several weeks ago are (1) the deadline for completion of employee anti-harassment training is October 2019, not January 2019, and (2) new employees must receive training &ldquo;as soon as possible,&rdquo; rather than within 30 days of hire.</em></p> <p> Earlier this year, New York State enacted comprehensive legislation targeting workplace sexual harassment.&nbsp; Our previous Management Alerts outlining the various requirements under the law are linked <a href="https://www.seyfarth.com/publications/MA040518-LE">here </a>and <a href="https://www.seyfarth.com/publications/MA051418-LE">here</a>.&nbsp; On August 23, 2018, Governor Andrew Cuomo released a draft model policy and draft model internal complaint form, a draft training script, and draft FAQs. &nbsp;All of those draft documents were subject to public comment.&nbsp; On October 1, 2018, the State issued the final documents.&nbsp; This Alert highlights the key differences between the drafts and the final versions and consolidates the new requirements under the State law in one place.</p> <p> As background, the law requires the Department of Labor and Division of Human Rights to create a model sexual harassment prevention policy and a model sexual harassment prevention training program.&nbsp; Those agencies have now done so: the model policy and the model training program are available <a href="https://www.ny.gov/combating-sexual-harassment-workplace/employers">here</a>.&nbsp; Employers must <em>either</em> adopt the model policy and training program, <em>or</em> establish a policy and training program that equals or exceeds the minimum standards provided by the models.&nbsp; The sexual harassment policy must also include a complaint form for employees to report internally alleged incidents of sexual harassment (the model is available <a href="https://www.ny.gov/combating-sexual-harassment-workplace/employers">here</a>).&nbsp; Below are further details about these requirements.</p> <p> <strong><u>Policy and Complaint Form</u></strong></p> <p> Beginning on <strong>October 9, 2018</strong>, all employers must distribute to all New York State employees a sexual harassment prevention policy and a complaint form that employees can use to report inappropriate conduct.</p> <p> For employers that opt to create their own policies, the policy must: (1) prohibit sexual harassment consistent with guidance issued by New York State; (2) provide examples of conduct that constitutes sexual harassment; (3) clearly state that sexual harassment is considered a form of employee misconduct and that disciplinary action will be taken against individuals engaging in sexual harassment and against supervisors or managers who knowingly allow such behavior to continue; (4) clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful; (5) include an internal complaint form that employees can use to report conduct that they believe is sexual harassment; (6) explain that complaints of sexual harassment will be investigated promptly and that the investigations will be as confidential as possible and that the rights and interests of all parties will be protected; (7) include information concerning the federal and state laws that prohibit sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws; and (8) inform employees of their right to file a complaint with the New York State Division of Human Rights, the Equal Employment Opportunity Commission, federal or state court, or a local police department.</p> <p> The final FAQs (available <a href="https://www.ny.gov/combating-sexual-harassment-workplace/combating-sexual-harassment-frequently-asked-questions#for-employers">here</a>) offer additional guidance for employers.&nbsp; Specifically,</p> <ul> <li> <u>Distribution</u>: The policy must be provided to employees in writing or electronically. &nbsp;If the policy is made available on a work computer, employees must be able to print a copy.</li> <li> <u>Contractors &amp; Non-Employees</u>:&nbsp; The policy does not have to be distributed to contractors and other non-employees.&nbsp; However, because the State Human Rights Law has been extended to cover non-employees who bring sexual harassment claims, employers are &ldquo;encouraged&rdquo; to provide the policy to non-employees and anyone providing services in the workplace.</li> <li> <u>Complaint Form</u>:&nbsp; The complaint form does not need to be included in full in the policy, but the policy should be clear about where the form may be found (<em>e.g.</em>, on an internal website).</li> <li> <u>Investigation Procedure</u>:&nbsp; The policy must describe the employer&rsquo;s internal investigation procedure.&nbsp; The investigation procedure does not, however, have to be identical to the investigation procedure set forth in the State&rsquo;s model policy.</li> <li> <u>Acknowledgment of Receipt</u>:&nbsp; Employers are not required to obtain or keep a signed acknowledgment that an employee has read the policy, but are encouraged to do so.</li> <li> <u>Languages</u>:&nbsp; The policy must be provided to employees &ldquo;in the language spoken by their employees.&rdquo;&nbsp; The State will publish additional model policy and complaint forms in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole.&nbsp; When a model is not available in an employee&rsquo;s language, employers may provide that employee with an English version.</li> <li> <u>New Employees</u>:&nbsp; New employees should receive a copy of the policy prior to commencing work.</li> <li> <u>Optional Poster</u>:&nbsp; The State also issued an optional Sexual Harassment Prevention Policy Notice, which is a poster that employers may display in the workplace.&nbsp; The poster simply directs employees and non-employees to the employer&rsquo;s sexual harassment prevention policy.&nbsp; Posting the State&rsquo;s Notice is optional.&nbsp; A Microsoft Word version is available <u><a href="https://www.ny.gov/combating-sexual-harassment-workplace/employers">here</a></u>.</li> </ul> <p> <strong><u>Training</u></strong></p> <p> The New York State law also requires employers to provide all employees with annual, interactive sexual harassment prevention training.&nbsp; In a key difference between the draft and the final FAQs, <strong>the deadline for complying with the training requirement has been</strong> <strong>extended to October 9, 2019</strong> (previously, it was January 1, 2019).&nbsp; Moreover, employers are no longer required to train new employees within 30 days of hire, but rather are encouraged to provide training &ldquo;as soon as possible.&rdquo;&nbsp; The practical effect of these changes is that many employers will likely want to wait to conduct sexual harassment training until after the New York City law goes into effect on April 1, 2019.&nbsp; Our prior Alerts on the New York City law are available <a href="https://www.seyfarth.com/publications/MA041718-LE2">here</a> and <a href="https://www.seyfarth.com/publications/OMM080818-LE">here</a>.</p> <p> For employers that choose to create their own training rather than adopt the State&rsquo;s model, the training must be interactive and include all of the following: (1) an explanation of sexual harassment consistent with State guidance; (2) examples of conduct that is considered unlawful sexual harassment; (3) information about federal and state laws covering sexual harassment and available remedies; (4) information regarding the employer&rsquo;s procedure for the timely and confidential investigation of complaints, including the specific name(s) of appropriate personnel and location to submit complaints; (5) information addressing supervisor conduct and additional responsibilities of supervisors; (6) an explanation of how to raise sexual harassment complaints with government agencies and courts; and (7) prohibitions on retaliation with examples.</p> <p> Additional guidance as set forth in the final FAQs regarding sexual harassment training is as follows:</p> <ul> <li> <u>Annual</u>:&nbsp; Employees must receive training annually, which can be based either on the calendar year, anniversary date of each employee&rsquo;s start date, or any other date the employer chooses.</li> <li> <u>Who must be trained</u>:&nbsp; All workers, regardless of immigration status, including exempt and non-exempt employees, part-time workers, seasonal workers, and temporary workers, must be trained.&nbsp; Non-employees, such as third-party vendors, contractors, volunteers, or consultants do not need to be trained.&nbsp; Employers may deem the training requirement satisfied for new employees who received compliant training from a prior employer in the past year if the new employee can verify completion through a previous employer or a temporary help firm.</li> <li> <u>Interactive</u>:&nbsp; The FAQs offer the following examples of trainings that would meet the &ldquo;interactive&rdquo; requirement: (i) if the training is web-based, it has questions at the end of a section and the employee must select the right answer; (ii) if the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner; (iii) for in-person training, if the presenter asks the employees questions or gives them time throughout the presentation to ask questions; and (iv) &nbsp;the training provides a Feedback Survey for employees to turn in after they have completed the training. A training in which the individual only watches a video or reads a document, with no feedback mechanism or interaction, is not considered interactive.</li> <li> <u>Languages</u>: Employers must provide training to employees &ldquo;in the language spoken by their employees.&rdquo;&nbsp; The State will publish model training materials in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole.&nbsp; When a model is not available in an employee&rsquo;s language, employers may provide that employee with training in English.</li> <li> <u>Records</u>: Employers are not required to maintain copies of training records, but are encouraged to do so.</li> <li> <u>Duration</u>:&nbsp; There is no specific time requirement for the length of the training.</li> <li> <u>Time and Payment for Training</u>: &nbsp;Any training time must be counted as regular work hours.</li> </ul> <p> <strong><u>Non-Disclosure Agreements Involving Claims of Sexual Harassment</u></strong></p> <p> As of July 11, 2018, New York employers have been prohibited from including an NDA in any settlement of a claim involving sexual harassment that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment, unless the complainant requests confidentiality.</p> <p> The final FAQs clarify that the law will <em>not</em> operate like the analogous provisions of the Older Workers Benefit Protection Act.&nbsp; Specifically, waivers cannot be included in settlement agreements that can be presented and executed on the spot in a single document. &nbsp;Rather, if the complainant requests confidentiality, the terms must first be provided to all parties; the complainant must have 21 days to consider the provision; and, after 21 days, if confidentiality is still the complainant&rsquo;s preference, the provision must be memorialized in a <em>separate</em> agreement signed by all parties.&nbsp; The complainant then has 7 days to revoke the agreement, which shall not be effective or enforceable until the revocation period expires.&nbsp; The 21-day review period is <strong><em>not</em> waivable, so it cannot be shortened, even if the complainant so desires</strong>.&nbsp; The FAQs also clarify that there must be two agreements: (1) an agreement that memorializes the preference of the person who complained, and (2) the settlement agreement itself.&nbsp;</p> <p> As always, Seyfarth Shaw attorneys are available to assist with any questions or concerns you have regarding the New York State Sexual Harassment Laws.</p> https://www.seyfarth.com:443/publications/ADA100218 DOJ Says Failure to Comply With Web Accessibility Guidelines is Not Necessarily a Violation of the ADA https://www.seyfarth.com:443/publications/ADA100218 Tue, 02 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: DOJ&rsquo;s response to members of Congress about the explosion in website accessibility lawsuits contains some helpful guidance for public accommodations fighting these claims.<br /> <br /> <a href="https://www.adatitleiii.com/2018/10/doj-says-failure-to-comply-with-web-accessibility-guidelines-is-not-necessarily-a-violation-of-the-ada/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE100118 California Enacts New Record-Keeping Mandates in Response to Changing Federal Program https://www.seyfarth.com:443/publications/WSE100118 Mon, 01 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Last week, Governor Brown signed into law Assembly Bill No. 2334, Occupational Injuries and Illness, Employer Reporting Requirements, and Electronic Submission.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/california-enacts-new-record-keeping-mandates-in-response-to-changing-federal-program/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP100118 CA Legislative Update: Governor Brown’s Job is Done https://www.seyfarth.com:443/publications/CP100118 Mon, 01 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: California Legislators sent Governor Jerry Brown 1,217 bills to consider in his final bill-signing period as Governor&mdash;more than any California governor has seen since 2004. The final tally: 1016 signed, 201 vetoed. Below is our full, final roundup of new laws that employers must comply with, bills that fell to the Governor&rsquo;s veto pen, and bills that never made it to the Governor&rsquo;s desk. Even though the Governor&rsquo;s veto saved California employers from some truly awful legislation (such as AB 3080&rsquo;s attempted ban on employment arbitration agreements), 2019 may well bring a new Legislature just as hostile to business, and a new Governor not known for the practical caution that sometimes has characterized Governor Brown. We expect that the vetoed bills will re-emerge, and may receive a more favorable gubernatorial consideration.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/10/01/ca-legislative-update-governor-browns-job-is-done/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT100118 FDA: .1% CBD OK https://www.seyfarth.com:443/publications/TBT100118 Mon, 01 Oct 2018 00:00:00 -0400 <p> This is Washington, and we do like to speak in initials. A plain English translation of the title of this piece would read &ldquo;FDA &lsquo;places FDA-approved drugs that contain CBD derived from cannabis and no more than 0.1 percent tetrahydrocannabinols in Schedule V.&rsquo;&rdquo; DEA Final Order, Docket No. DEA-486 Schedule V drugs include cough medicine with codeine and many pain relievers that still require a prescription. So, really what this order does is allow doctors in the US legally to prescribe the recently approved epilepsy drug, Epidiolex, and allows pharmacies, rather than marijuana dispensaries, legally to sell the drug.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/10/fda-1-cbd-ok/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS100118aa Upcoming Webinar! Criminal Trade Secret Theft Update https://www.seyfarth.com:443/publications/TS100118aa Mon, 01 Oct 2018 00:00:00 -0400 <p> Please join us for a one-hour CLE webinar on Wednesday, November 14, 2018, at 1:00 p.m. Eastern / 12:00 p.m. Central / 10:00 a.m. Pacific.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/trade-secrets/upcoming-webinar-criminal-trade-secret-theft-update/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS100118aaa D. Joshua Salinas to Present on Blockchain and Trade Secrets https://www.seyfarth.com:443/publications/TS100118aaa Mon, 01 Oct 2018 00:00:00 -0400 <p> On Thursday, October 4, 2018, at 8:30-9:30 a.m. Pacific Time, Seyfarth Shaw attorney D. Joshua Salinas will be presenting on &ldquo;The Use of the Blockchain Model to Develop and Protect Trade Secrets.&rdquo; The presentation is part of the 2018 ABA IP West Conference, which runs from October 3-4, 2018, at the Renaissance Newport Beach Hotel in Newport Beach, California.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/trade-secrets/d-joshua-salinas-to-present-on-blockchain-and-trade-secrets/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA100118-LE As Effective Date for “Cooperative Dialogue” Approaches, New York City Issues Guidance https://www.seyfarth.com:443/publications/MA100118-LE Mon, 01 Oct 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On October 15, 2018, amendments to the New York City Human Rights Law which require employers to engage in a &ldquo;cooperative dialogue&rdquo; with individuals with disabilities and others regarding their accommodation needs will go into effect. The New York City Commission on Human Rights has provided employers with guidance as to how these new amendments will be enforced.</em></p> <p> In January 2018, the New York City Council <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/amendments/Int. No. 804-A.pdf">amended</a> the New York City Human Rights Law (NYCHRL) to expressly require housing providers, employers, and places of public accommodation to engage in a &ldquo;cooperative dialogue&rdquo; with individuals who may require accommodation due to religious needs, disability, pregnancy, childbirth or a related medical condition, or their status as a victim of domestic violence, sex offenses or stalking. (To learn more about the cooperative dialogue amendments, please see our previous article <a href="https://www.seyfarth.com/publications/MA022318-LE">here</a>.) This summer, the New York City Commission on Human Rights (Commission) issued <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/NYCCHR_LegalGuide-DisabilityFinal.pdf">guidance</a> regarding the amendments.</p> <p> As per the guidance, there are four far-reaching cooperative dialogue requirements for employers dealing with disabled employees who need an accommodation: (1) learn of the employee&rsquo;s need for an accommodation; (2) initiate a cooperative dialogue; (3) communicate in good faith with the employee; and (4) notify the employee, in writing, of the employer&rsquo;s determination regarding the accommodation.</p> <p> Although employers were already obligated to comply with many of these requirements under the previous iteration of the NYCHRL, the critical change under the amendments is that employers are now obligated to provide employees with a written final determination identifying any accommodation granted or denied. Failing to provide employees with the written final determination, by itself, violates the NYCHRL.</p> <p> <u>A Look Into the &ldquo;Cooperative Dialogue&rdquo;</u></p> <p> According to the guidance, employers must engage in a cooperative dialogue not only when a disabled employee requests an accommodation, &ldquo;but also when the covered entity &lsquo;should have . . . known&rsquo; about the individual&rsquo;s disability, regardless of whether the individual requested an accommodation.&rdquo; By way of example, the guidance states that an employer might be on notice of an employee&rsquo;s need for an accommodation &ldquo;if an employer has knowledge that an employee&rsquo;s performance at work is diminished or that their behavior at work could lead to an adverse employment action and has a reasonable basis to believe that the issue is related to a disability.&rdquo; It remains to be seen what the Commission will view as a &ldquo;reasonable basis&rdquo; to believe that an employee&rsquo;s performance relates to a disability.</p> <p> Where the employer is deemed to have a &ldquo;reasonable basis&rdquo; to believe that the employee&rsquo;s diminished performance may be disability-related, the employer &ldquo;should not ask the employee if the employee has a disability.&rdquo; Rather, the employer should &ldquo;ask if there is anything going on that the employer can help with, inform the employee that various types of support are available, including reasonable accommodations, to enable employees to satisfy the essential requisites of the job, and remind [the employee] of workplace policies and procedures for requesting a reasonable accommodation.&rdquo; If the employee declines to disclose his or her disability during that conversation, the employer has met its obligations to engage in the cooperative dialogue. However, employers engaging in the cooperative dialogue are reminded to proceed cautiously and keep in mind that taking adverse employment action against individuals on the basis of a perceived disability is still prohibited under the Americans with Disabilities Act (ADA).</p> <p> Further, employers must engage in the cooperative dialogue in good faith and &ldquo;in a transparent and expeditious manner.&rdquo; Whether the employer communicates with the employee in good faith throughout the cooperative dialogue will be assessed based on whether the employer: (1) has a policy informing employees how to request accommodations; (2) responds timely to the employee&rsquo;s request based on the &ldquo;urgency and reasonableness&rdquo; of the request; and (3) attempts to obstruct or delay the cooperative dialogue. It appears that the Commission will assess how quickly an employer responds to an accommodation request on a case-by-case basis without an objective standard.</p> <p> Finally, the employer must conclude the cooperative dialogue by either granting the employee a reasonable accommodation or &ldquo;reasonably&rdquo; concluding that (1) no accommodation can be made without undue hardship to the employer; (2) a sufficient accommodation was offered but rejected by the employee; or (3) no accommodation exists that will allow the employee to perform the essential requisites of the job. This determination must be provided to the employee in writing.</p> <p> The Commission has published the following sample forms for employers to utilize to comply with these new requirements:</p> <p> <a href="https://www.seyfarth.com/dir_docs/publications/Sample-Reasonable-Accommodation-Request-Form.pdf">Sample Reasonable Accommodation Request Form (Employment)</a></p> <p> <a href="https://www.seyfarth.com/dir_docs/publications/Sample-Grant-or-Denial-of-Reasonable-Accommodation-Request-Form.pdf">Sample Grant of Denial of Reasonable Accommodation Request</a></p> <p> <a href="https://www.seyfarth.com/dir_docs/publications/Sample-Letter-to-Employee-on-Leave.pdf">Sample Letter to Employee on Leave</a></p> <p> <u>Employer Takeaways</u></p> <p> The tone of the guidance suggests a broad reading of the NYCHRL and foreshadows aggressive enforcement by the Commission once the amendments go into effect. Right now is an opportune time for employers to contact counsel to discuss compliance and possible adjustments to existing policies and practices to ensure compliance with the new amendments.</p> https://www.seyfarth.com:443/publications/OMM100118-LE Uber Epic: Arbitration Agreement Topples Class Claims https://www.seyfarth.com:443/publications/OMM100118-LE Mon, 01 Oct 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The Ninth Circuit, following the Supreme Court&rsquo;s 2018 decision in Epic Systems Corp. v. Lewis, has upheld the validity of class-action waivers in Uber&rsquo;s arbitration agreement, and has held that a named plaintiff cannot opt out of the agreement on behalf of class members. The Ninth Circuit applied these holdings to reverse certification of a class of 160,000 Uber drivers. O&rsquo;Connor v. Uber Technologies, Inc.</em></p> <p> <strong>The Facts</strong></p> <p> In various class actions, all before U.S. District Court Judge Edward Chen, Uber drivers sued for unpaid expenses and tips, claiming that they were entitled to these items as employees, and that Uber had misclassified them as independent contractors. Judge Chen enjoined Uber from enforcing its arbitration agreement, and required Uber to revise the agreement to provide enhanced notice and an extended opt-out period of 30 days.</p> <p> After Judge Chen certified a class, Uber issued a new arbitration agreement to all drivers. Class counsel moved to enjoin Uber from enforcing the agreement and from further communicating with class members. Judge Chen granted the motion.</p> <p> During the pendency of the action, the Ninth Circuit in one of the Uber class actions&mdash;<em>Mohamed v. Uber Technologies, Inc</em>.&mdash;reversed Judge Chen&rsquo;s denial of Uber&rsquo;s motion to compel arbitration. In that 2016 decision, the Ninth Circuit held that the arbitration agreement was not unconscionable, and that the agreement&rsquo;s opt-out provision was not illusory. In response to <em>Mohamed</em>, Judge Chen permitted Uber to issue a new arbitration agreement, but refused to vacate his order retroactively.</p> <p> <strong>The Appellate Court Decision</strong></p> <p> On an appeal that consolidated various Uber class actions, the drivers argued that the arbitration agreements were unenforceable on two grounds not decided in <em>Mohamed</em>. The Ninth Circuit rejected the drivers&rsquo; arguments on both grounds. <em>First</em>, the drivers argued that named plaintiffs had opted out of the arbitration agreement on behalf of the entire class. The Ninth Circuit rejected this argument because nothing authorized the named plaintiffs to do so, and because the drivers relied exclusively on state law that did not consider the preemptive effect of the Federal Arbitration Act. <em>Second</em>, the drivers argued that the class-action waiver in the arbitration agreement was unenforceable because it violated the National Labor Relations Act. The Ninth Circuit held that this argument was expressly rejected by the Supreme Court&rsquo;s recent decision in <em>Epic Systems Corp. v. Lewis</em>.</p> <p> The Ninth Circuit thus reversed Judge Chen&rsquo;s orders denying the motion to compel arbitration. Because the certified class included drivers who had agreed to arbitrate, and because the arbitration agreement called for the arbitrator to decide the question of arbitrability, the Ninth Circuit reversed the class certification and remanded for Judge Chen to consider class certification on some other basis.</p> <p> <strong>What <em>O&rsquo;Connor</em> Means For Employers</strong></p> <p> <em>O&rsquo;Connor</em> reiterates the importance of the U.S. Supreme Court&rsquo;s <em>Epic </em>decision for employers and the courts&rsquo; willingness to enforce properly crafted arbitration agreements. After <em>Epic</em>, employers drafting arbitration agreements should consider anew the use of class-action waiver provisions. <em>O&rsquo;Connor</em> illustrates how the existence of enforceable arbitration agreements can dismantle class claims.</p> https://www.seyfarth.com:443/publications/MA100118-LE2 If Pain, Yes Gain—Part 54: NYC Amends Earned Safe and Sick Time Rules and FAQs https://www.seyfarth.com:443/publications/MA100118-LE2 Mon, 01 Oct 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Through a set of rules titled &ldquo;Procedures of the Office of Labor Policy and Standards,&rdquo; New York City amended portions of the rules pertaining to the Earned Safe and Sick Time Act. The amended Earned Safe and Sick Time Rules, along with corresponding amendments to the city&rsquo;s sick time FAQs, went into effect on September 20, 2018.</em></p> <p> Since New York City&rsquo;s <a href="https://www.seyfarth.com/publications/MA050718-LE">Earned Safe and Sick Time Act (&quot;ESSTA&quot;) amendments</a> went into effect on May 5, 2018,[1] covered employers have awaited corresponding amendments to the city&rsquo;s Earned Sick Time Rules (the &ldquo;Rules&rdquo;). With minimal publicity or notice, the city released these amended rules as part of its rules governing the &ldquo;<a href="http://rules.cityofnewyork.us/content/procedures-office-labor-policy-and-standards">Procedures of the Office of Labor Policy and Standards</a>.&rdquo; The amended Earned Safe and Sick Time Act Rules (the &ldquo;Amended Rules&rdquo;) went into effect on September 20, 2018.[2]</p> <p> This is <a href="https://www.seyfarth.com/publications/MA022316-LE">not the first time the Rules were amended</a> since the city&rsquo;s Earned Sick Time Act went into effect in April 2014. In early 2016, the city released and then finalized an &ldquo;Amendment of Earned Sick Time Rules&rdquo; that imposed additional compliance obligations on employers. As with the Rules&rsquo; initial amendment, the Amended Rules impose additional compliance obligations on employers, including, as discussed below, updated aspects of employers&rsquo; written sick time policy requirement.</p> <p> In addition to releasing Amended Rules, on September 20, 2018 the city also released amended paid sick time FAQs. The <a href="https://www1.nyc.gov/assets/dca/downloads/pdf/about/PaidSickLeave-FAQs.pdf">amended FAQs</a> account for developments from both ESSTA and the Amended Rules.</p> <p> Here are some of the highlights of the Amended Rules:</p> <ul> <li> <strong>Written Sick Time Policy Requirement (Section 7-211 of the Amended Rules; previously Section 7-12 of the Rules): </strong>A major component of the Rules when they were amended in March 2016 was the addition of an express written sick time policy requirement. The Amended Rules expand this obligation in the following ways:</li> <li> <strong>Communicating Policy:</strong> The Rules previously stated that employers must distribute or post their written sick time policies. However, under the Amended Rules simply posting a written sick time policy is no longer sufficient. Instead, employers now must distribute their written safe and sick time policies personally to employees in at least three situations: (a) upon commencement of employment; (b) within 14 days of the effective date of any changes to the policy; and (c) upon request by the employee.</li> <li> <strong>&ldquo;Single Writing&rdquo;: </strong>The Amended Rules state that &ldquo;every employer shall maintain written safe time and sick time policies <strong><em>in a single writing</em></strong>.&rdquo; (emphasis added). This language implies that employers with a main paid sick time or other paid time off policy and a corresponding NYC sick time addendum or supplement that exist in separate documents and are used for ESSTA compliance may need to combine these items&nbsp;into a single document that follows the above employee distribution requirements.</li> <li> <strong>Express Components - Confidentiality</strong>: The written sick time policy requirement lists several substantive topics that must explicitly be included in employers&rsquo; written sick time policies.[3] Some such topics include (a)&nbsp;the employer&#39;s method for calculating safe and sick time (i.e., accrual or frontloading) and related details, (b) the employer&rsquo;s policy on year-end carryover, (c) employee notice requirements, (d) documentation standards, and (e) minimum increments of use. The Amended Rules add a new substantive topic to this list. In particular, the Amended Rules state that &ldquo;an employer&rsquo;s written safe time and sick time policies must&hellip;state at a minimum&hellip;a description of the confidentiality requirements of Section 20-921&rdquo; of ESSTA.</li> <li> <strong>Express Components - Non-Sick Paid Leave Policies: </strong>The Amended Rules also add a written policy requirement for non-sick paid leave policies. The Amended Rules state that where an employer uses a term other than &ldquo;safe/sick time&rdquo; or &ldquo;safe and sick time&rdquo; to describe their paid leave program and comply with ESSTA, &ldquo;the policy must state that such leave may be used by an employee for any of the purposes&rdquo; under ESSTA &ldquo;without any condition prohibited by&rdquo; ESSTA.</li> <li> <strong>NYC Department of Consumer Affairs Materials Insufficient:</strong> The Rules explained that employers cannot satisfy the written sick time policy requirement by simply distributing the &ldquo;Notice of Employee Rights.&rdquo; The Amended Rules expand this exclusion by noting that, in addition to the <a href="http://www1.nyc.gov/assets/dca/downloads/pdf/about/PaidSickLeave-MandatoryNotice-English.pdf">Notice of Employee Rights</a>, employers cannot use &ldquo;any other department writing in lieu&rdquo; of distributing their own written sick time policy.</li> <li> <strong>Joint Employers (Section 7-105 of the Office of Labor Policy and Standards (&quot;OLPS&quot;); previously Section 7-03 of the Rules):</strong> The Amended Rules remove the definition of &ldquo;temporary help firm&rdquo; and section about joint employers. The topic of &ldquo;joint employers&rdquo; is now revised and included in the rules for the OLPS. Per the relevant section of the OLPS rules, joint employers will be held individually and jointly liable for violations of all applicable OLPS laws and rules, including ESSTA and the Amended Rules, and satisfaction of any associated penalties or restitution. The OLPS rules include a definition of &ldquo;joint employer.&rdquo;</li> <li> <strong>Payment of Safe and Sick Time (Section 7-208 of the Amended Rules; previously Section 7-09 of the Rules):</strong> The Amended Rules remove provisions about calculating sick time payment for employees paid on a piecework basis. In addition, the Amended Rules add language about calculating sick time payment when an employee is paid a flat rate.</li> <li> <strong>Retaliation and Enforcement Procedures (Sections 7-108 and 7-109 of the Office of Labor Policy and Standards; previously Sections 7-17 and 7-14 of the Rules): </strong>The Amended Rules remove the Rules&rsquo; language on enforcement procedures and retaliation, both of which have been updated and are now included in the OLPS rules.</li> </ul> <p> New York City employers should take steps now, including reviewing existing sick leave policies and either implementing new policies or revising existing policies, to comply with the Amended Rules.</p> <p> The paid sick leave landscape has not slowed down in terms of expanded laws and complexity of the laws. 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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</p> <hr /> <p> [1] In addition to the above link, for more information on ESSTA, see our earlier posts <a href="https://www.seyfarth.com/publications/MA102017-LE">here</a> and <a href="https://www.seyfarth.com/publications/OMM11917-LE">here</a>.</p> <p> [2] <em>See </em>Rules of the City of New York, Title 6, Ch. 7, &sect;&sect; 7-201 - 7-215, available at <a href="http://library.amlegal.com/nxt/gateway.dll/New York/admin/newyorkcityadministrativecode?f=templates$fn=default.htm$3.0$vid=amlegal:newyork_ny">http://library.amlegal.com/nxt/gateway.dll/New York/admin/newyorkcityadministrativecode?f=templates$fn=default.htm$3.0$vid=amlegal:newyork_ny</a> (stating that the City Record was amended on August 21, 2018, and that the amendments became effective on September 20, 2018).</p> <p> [3] The Amended Rules maintain the language stating that &ldquo;[a]n employer&rsquo;s written safe time and sick time policies must meet or exceed all of the requirements of [ESSTA].&rdquo;</p> https://www.seyfarth.com:443/publications/TS100118 Today’s the Day: Massachusetts’ New Non-Compete Law Goes into Effect https://www.seyfarth.com:443/publications/TS100118 Mon, 01 Oct 2018 00:00:00 -0400 <p> Readers of our blog will recall that this summer, the Massachusetts legislature passed a non-compete reform bill after nearly a decade of fruitless attempts. The new law goes into effect today, meaning that any agreements signed today or in the future will need to comply with the new law.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/restrictive-covenants/todays-the-day-massachusetts-new-non-compete-law-goes-into-effect/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS100118a Webinar Recap! Protecting Trade Secrets Abroad and Enforcing Rights Abroad and in the U.S. https://www.seyfarth.com:443/publications/TS100118a Mon, 01 Oct 2018 00:00:00 -0400 <p> In Seyfarth&rsquo;s sixth installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Daniel Hart, Marjorie Culver, Alex Meier, and Paul Yovanic Jr. focused on how to identify the greatest threats to trade secrets, tips and best practices for protecting trade secrets abroad, and enforcement mechanisms and remedies.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/10/articles/international-2/webinar-recap-protecting-trade-secrets-abroad-and-enforcing-rights-abroad-and-in-the-u-s/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH100118 Ninth Circuit Issues En Banc Decision Upholding DOL’s 20% Tip Credit Rule; Ball is Now in DOL’s Court https://www.seyfarth.com:443/publications/WH100118 Mon, 01 Oct 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In an en banc decision, the Ninth Circuit reverses its prior panel opinion rejecting the DOL&rsquo;s interpretation of FLSA regulations on use of the tip credit to pay regularly tipped employees, finding that the interpretation is consistent with the FLSA regulations.<br /> <br /> <a href="https://www.wagehourlitigation.com/dol-compliancerule-making/ninth-circuit-issues-en-banc-decision-upholding-dols-20-tip-credit-rule-ball-is-now-in-dols-court/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/mcraesh100118 Daniel McRae featured in the Statesboro Herald https://www.seyfarth.com:443/news/mcraesh100118 Mon, 01 Oct 2018 00:00:00 -0400 <p> Daniel McRae was featured in an October 1 story from the Statesboro Herald, &quot;TAD Advisory Board launched.&quot; McRae spoke to Statesboro and Bulloch County&#39;s TAD Advisory Board. He said that a tax allocation district is a type of development district, and those are hot these days. You can read the <a href="https://www.statesboroherald.com/local/tad-advisory-board-launched/">full article here</a>.</p> https://www.seyfarth.com:443/news/whitmancw100118 Robert Whitman quoted in Compliance Week https://www.seyfarth.com:443/news/whitmancw100118 Mon, 01 Oct 2018 00:00:00 -0400 <p> Robert Whitman was quoted in an October 1 story from Compliance Week, &quot;Sexual harrassment legislation gaining momentum at state level,&quot; on how New York employers must provide all of their employees with interactive sexual harassment prevention training by Jan. 1, 2019. Whitman said that sophisticated employers have been doing training of this nature for many years.</p> https://www.seyfarth.com:443/publications/schwartzahla100118 Richard Schwartz authored an article in the AHLA Journal of Health & Life Sciences Law https://www.seyfarth.com:443/publications/schwartzahla100118 Mon, 01 Oct 2018 00:00:00 -0400 <p> Richard Schwartz authored an October 1 article in the AHLA Journal of Health &amp; Life Sciences Law, &quot;Executive Compensation Under the Tax Cuts and Jobs Act of 2017.&quot;</p> https://www.seyfarth.com:443/publications/EEOC093018 The EEOC Puts The Pedal To The Metal: FY 2018 Results Show Increase In Filings, With #MeToo Lawsuits Adding Fuel To The Agenda https://www.seyfarth.com:443/publications/EEOC093018 Sun, 30 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The uncertainty of a new administration&rsquo;s impact on the EEOC that plagued FY 2017 is fading, but the results are not what some would expect. Not only has the EEOC brought a mountain of filings compared to the last four years, but also the agency has demonstrated a clear focus on sex-based discrimination and sexual harassment in the workplace in light of #MeToo, even surpassing FY 2017 numbers.<br /> <br /> <a href="https://www.eeoccountdown.com/2018/09/30/the-eeoc-puts-the-pedal-to-the-metal-fy-2018-results-show-increase-in-filings-with-metoo-lawsuits-adding-fuel-to-the-agenda/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/vunewsday093018 Minh Vu quoted in Newsday https://www.seyfarth.com:443/news/vunewsday093018 Sun, 30 Sep 2018 00:00:00 -0400 <p> Minh Vu was quoted in a September 30 story from Newsday, &quot;Making business websites accessible for the disabled.&quot; Vu said that, given where the courts are coming down on this issue, businesses need to focus on making their websites accessible as quickly as possible. You can read the <a href="https://www.newsday.com/business/website-access-disabled-herzlich-1.21298225">full article here</a>.</p> https://www.seyfarth.com:443/publications/WC093018 The EEOC Puts The Pedal To The Metal: FY 2018 Results Show Increase In Filings, With #MeToo Lawsuits Adding Fuel To The Agenda https://www.seyfarth.com:443/publications/WC093018 Sun, 30 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The uncertainty of a new administration&rsquo;s impact on the EEOC that plagued FY 2017 is fading, but the results are not what some would expect. Not only has the EEOC brought a mountain of filings compared to the last four years, but also the agency has demonstrated a clear focus on sex-based discrimination and sexual harassment in the workplace in light of #MeToo, even surpassing FY 2017 numbers.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/09/the-eeoc-puts-the-pedal-to-the-metal-fy-2018-results-show-increase-in-filings-with-metoo-lawsuits-adding-fuel-to-the-agenda/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CCD092818 BIPA: Exemptions May Be On The Horizon For The Decade-Old Statute https://www.seyfarth.com:443/publications/CCD092818 Fri, 28 Sep 2018 00:00:00 -0400 <p> In light of the recent uptick in litigation involving the decade-old Illinois Biometric Information Privacy Act (BIPA), the Illinois state legislature is now considering amending the Act to allow for business efficiency and to bring the Act back to what some believe to be its original intent.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/09/bipa-exemptions-may-be-on-the-horizon-for-the-decade-old-statute/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA092818-LE If Pain, Yes Gain—Part 53: New Jersey Releases Proposed Earned Sick Leave Rules https://www.seyfarth.com:443/publications/MA092818-LE Fri, 28 Sep 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>With the New Jersey Paid Sick Leave Act&rsquo;s October 29, 2018 effective date rapidly approaching, the state recently released proposed Earned Sick Leave Rules. However, it looks very likely that the rules will not be finalized until after the Act goes into effect</em>.</p> <p> The New Jersey Paid Sick Leave Act (&ldquo;the Act&rdquo;) goes into effect on October 29, 2018&nbsp;&ndash; approximately one month from now. As employers prepare for the statewide mandate, on September 13, 2018, the New Jersey Department of Labor and Workforce Development (the &ldquo;Department&rdquo;) released its long-awaited <u><strong>proposed</strong></u> Earned Sick Leave Rules (the &ldquo;Proposed Rules&rdquo;). Notably, a public hearing on the Proposed Rules is scheduled for November 13, 2018. The corresponding written comment period ends on December 14, 2018. Thus, it appears that New Jersey&rsquo;s final sick time rules will not be released until at least several weeks after the Act goes into effect.</p> <p> As discussed further below, there are certain areas of the Proposed Rules that appear to be inconsistent with certain standards set forth in the Act. Until the state&rsquo;s final sick leave rules are issued, employers should follow the requirements of the Act.</p> <p> When the Act becomes effective, New Jersey will be the tenth state in the country with an active statewide sick leave mandate.[1] In addition, and notably, the Act will preempt the state&rsquo;s 13 existing municipal paid sick leave (&ldquo;PSL&rdquo;) ordinances.[2]</p> <p> By way of background, the Act will require covered employers to allow eligible employees to accrue PSL at least as fast as one hour of PSL for every 30 hours worked, up to 40 hours per year. Employers will not be required to permit employees to use more than 40 hours of PSL in any benefit year or carry over more than 40 hours of unused sick leave to the following benefit year. Although employers may frontload 40 hours of sick leave on the first day of the benefit year instead of allowing employees to accrue the leave, the Act does not allow employers to adopt a &ldquo;use it or lose it&rdquo; approach. As explained below, frontloading PSL is among the various topics covered in the Proposed Rules.</p> <p> For more information on the Act&rsquo;s substantive requirements, please see our prior alerts <a href="https://www.seyfarth.com/publications/MA032818-LE">here</a>, <a href="https://www.seyfarth.com/publications/MA041318-LE">here</a>, and <a href="https://www.seyfarth.com/publications/MA050718-LE">here</a>.</p> <p> Here are some highlights of the Proposed Rules:</p> <ul> <li> <strong>Benefit Year</strong>: The Proposed Rules maintain the Act&rsquo;s definition of &ldquo;benefit year&rdquo; and corresponding requirement that the employer notify the Department&rsquo;s commissioner of any planned changes to the PSL benefit year. The Proposed Rules state that the employer must provide this notice to the commissioner at least 30 days prior to the proposed change in benefit year. In addition, the Proposed Rules expressly note that the employer must establish a single benefit year for all employees. <ul> <li> <strong>Notice to Department</strong>: The Proposed Rules require the employer&rsquo;s notice to the Department to (1) be in writing, (2) specify the existing and proposed new benefit year, (3) indicate the effective date of the new benefit year and reason for the change, and (4) include a list of current employees, including their contact information, and a history of PSL accrual, payment, payout and carryover during the prior two benefit years.</li> </ul> </li> </ul> <ul> <li> <strong>Frontloading</strong>: The Proposed Rules confirm that employers may provide employees with no less than 40 hours of earned sick leave on the first day of the benefit year for use throughout the benefit year, as opposed to allowing employees to accrue PSL. Importantly, the Proposed Rules reinforce language in the Act stating that frontloading PSL each year does not permit employers to follow a &ldquo;use it or lose it&rdquo; approach for unused time at year-end. Instead, employers must either (1) provide employees with a payout <u>for the full amount</u> of unused earned sick leave or (2) permit employees to carry-over up to a total of 40 hours of accrued, unused earned sick leave. The 40-hour carryover limit clarifies a gray area in the Act, which could be read as permitting all unused PSL to carryover under these circumstances.</li> </ul> <ul> <li> <strong>Family Member</strong>: The Act&rsquo;s definition of &ldquo;family member&rdquo; includes, among other relationships, any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship. The Proposed Rules explain that this relationship means &ldquo;any person with whom the employee has a significant personal bond that is, or is like, a family relationship, regardless of biological or legal relationship.&rdquo;</li> </ul> <ul> <li> <strong>Usage Waiting Period</strong>: The Proposed Rules appear to diverge from language provided under the Act regarding PSL usage waiting periods. At a high level, the Act and Proposed Rules both impose a 120 calendar day PSL usage waiting period for employees hired after on or October 29, 2018. However, how they handle the usage waiting period for existing employees, i.e., those hired by an employer before October 29, do not match. <ul> <li> <u>The Act</u>: The Act expressly states the following&nbsp;&ndash; &ldquo;earned sick leave shall begin to accrue on the effective date of this act for any employee who is hired and commences employment <em><strong>before </strong></em>the effective date of this act and <em><strong>the employee shall be eligible to use the earned sick leave beginning on the 120th calendar day after the employee commences employment</strong></em>.&rdquo; (emphasis added). This language strongly suggests that existing employees who have been employed for at least 120 calendar days at the time the Act goes into effect, i.e., any employee hired on or before June 30, 2018, will be entitled to use PSL under the Act as soon as it accrues. Similarly, it implies that employees hired between July 1 and October 28, 2018 get credit for their employment period prior to the effective date (i.e., An employee hired on September 1, 2018 would be entitled to begin using accrued PSL 62 calendar days after October 29 as she had been employed for 58 calendar days before the effective date).</li> <li> <u>The Proposed Rules</u>: Subject to an exception noted below, the Proposed Rules state the following&nbsp;&ndash;&nbsp;&ldquo;<strong><em>an employee shall not be eligible to use earned sick leave until February 26, 2019 (the 120th calendar day after October 29, 2018)</em></strong>, or the 120th calendar day after the employee commences employment, whichever is later.&rdquo;&nbsp;(emphasis added).&nbsp;Barring changes when the rules are finalized, this Proposed Rule language suggests that the 120 calendar day waiting period applies to all employees, not just employees hired after the effective date. It is unclear whether this apparent contradiction will be clarified by the state in forthcoming final rules or other administrative guidance.</li> <li> <u>Exceptions</u>: The above usage waiting period language in the Act comes with a possible, although vague, caveat which reads as follows &ndash; &ldquo;Unless the employee has accrued earned sick leave prior to the effective date of this act.&rdquo; The Proposed Rules presumably used this language to create the following exception to their version of the usage waiting period&nbsp;&ndash; &ldquo;Where the employee has accrued earned sick leave prior to October 29, 2018, he or she shall be eligible to use that earned sick leave prior to February 26, 2019 (the 120th calendar day after October 29, 2018).&rdquo; Thus, employers of employees who have accrued sick leave under any of the 13 existing New Jersey municipal PSL ordinances or other employer policy could potentially be required to permit employees to use this time prior to February 26, 2019.</li> </ul> </li> </ul> <ul> <li> <strong>Limitation of Prohibiting Foreseeable Leave on &ldquo;Certain Dates&rdquo;</strong>: Although the Act permits employers to prohibit the use of foreseeable PSL on certain dates (and permits employers to request verification if an employee uses unforeseeable leave on those dates), the Proposed Rules provide that the &ldquo;certain dates&rdquo; must be limited to verifiable high-volume periods or special events, during which permitting the use of foreseeable earned sick leave would unduly disrupt the operations of the employer. The Proposed Rules provide certain examples, such as holidays for airlines and the release of a new product for retailers. The Proposed Rules further require that the employer provide reasonable notice to its employees of the &ldquo;certain dates&rdquo; on which foreseeable PSL is not permitted.</li> </ul> <ul> <li> <strong>Notice and Posting Obligations</strong>: The Proposed Rules reiterate that employers must (A) conspicuously post a notice of employee rights in each of the employer&rsquo;s workplaces, and (B) provide each employee with a written copy of the notice at the following times: (1) no later than 30 days after the notice has been issued; (2) at the time of the employee&rsquo;s hiring (if hired after the issuance of the notice); and (3) upon the first request of an employee. The Proposed Rules provide that an employer may satisfy the posting requirement by posting the notice on an internet or intranet site that is available for the exclusive use of its employees and to which all employees have access. Further, the Proposed Rules allow an employer to satisfy the individual written notice requirement by providing the notice to employees via email. The Department has <strong><em>not </em></strong>yet published the model PSL notice.</li> </ul> <ul> <li> <strong>Reasonable Documentation</strong>: The Act states that employers may require employees to submit reasonable documentation if they use PSL for three or more consecutive days, or, as noted above, if the employee uses sick leave for an unforeseeable absence on &ldquo;certain dates&rdquo; identified by the employer. The Act provides examples of what is considered reasonable documentation if the employee&rsquo;s absence is for sick time, related to domestic or sexual violence, or due to a public health emergency. The Proposed Rules expand on these examples and note that if an employee is absent due to a covered school-related event, reasonable documentation includes &ldquo;tangible proof of the school-related conference, meeting, function, or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the education of the employee&rsquo;s child.&rdquo;</li> </ul> <ul> <li> <strong>Payment of Sick Leave</strong>: The Act states that an employer must pay an employee for earned sick leave at the same rate of pay with the same benefits as the employee normally earns. The Proposed Rules provide sick time payment standards for employees who (a) work two or more different jobs for the same employer or otherwise have fluctuating pay rates, (b) are paid by commission, or (c) are paid on a piecework basis.</li> </ul> <ul> <li> <strong>Recordkeeping</strong>: Under the Act, employers must maintain records for a period of five years, documenting hours worked and earned sick leave taken by employees. The Proposed Rules expand on this obligation by noting that employers also must maintain records of earned sick leave accrued or advanced, paid, and cashed out or carried over at year-end. <ul> <li> <strong>Exempt Employees</strong>: The Proposed Rules also clarify that the employer is <strong><em>not </em></strong>required to maintain records documenting an employee&rsquo;s hours worked if (1) she is exempt under the Fair Labor Standards Act or state wage and hour law <u>and </u>(2) the employer presumes that the employee works 40 hours per week for the purpose of calculating PSL accrual.</li> </ul> </li> </ul> <ul> <li> <strong>Independent Contractor Status</strong>: The Proposed Rules state that determining whether an individual is an independent contractor or employee for purposes of the Act will be based on the &ldquo;ABC test,&rdquo; as identified in the state&rsquo;s Unemployment Compensation Law.</li> </ul> <p> Although the Proposed Rules contain some potentially significant updates on the Act, New Jersey employers should keep in mind that these rules are only preliminary and are subject to change over the next several months based on public hearings and comments, and final rulemaking. We will continue to update you on forthcoming New Jersey PSL developments.</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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to sickleave@seyfarth.com.</p> <hr /> <p> [1] The nine statewide paid sick leave laws that are currently in effect include: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; and (9) Rhode Island. Notably, earlier this month, the Michigan legislature approved a sick time ballot initiative that is expected to go into effect on or about April 1, 2019.</p> <p> [2] The New Jersey municipalities with current paid sick leave ordinances are: (1) Newark; (2) Passaic; (3) East Orange; (4) Paterson; (5) Irvington; (6) Montclair; (7) Trenton; (8) Bloomfield; (9) Jersey City; (10) Morristown; (11) Plainfield; (12) Elizabeth; and (13) New Brunswick.</p> <p> [3] The Proposed Rules also include a second exception to their general PSL usage waiting period language. The second exception provides that employers may choose to permit employees to use earned sick leave prior to the 120 calendar day waiting period.</p> https://www.seyfarth.com:443/publications/TS092818 Ninth Circuit Confirms “No Re-Hire” Clauses Can Constitute Unlawful Restraints of Trade in California https://www.seyfarth.com:443/publications/TS092818 Fri, 28 Sep 2018 00:00:00 -0400 <p> Back in 2015, we covered the divided holding of the Ninth Circuit in Golden v. California Emergency Physicians Medical Group, that a &ldquo;no re-hire&rdquo; provision in a settlement agreement could constitute a restraint of trade in violation of California law. After a second round at the Ninth Circuit, the case has been reversed and remanded yet again, based on the panel majority&rsquo;s conclusion that the &ldquo;no re-hire&rdquo; provisions at issue were overbroad and unenforceable.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/09/articles/restrictive-covenants/ninth-circuit-confirms-no-re-hire-clauses-can-constitute-unlawful-restraints-of-trade-in-california/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/luriealiaskaribloomberglaw092818 Dawn Lurie and Mahsa Aliaskari quoted in Bloomberg Law https://www.seyfarth.com:443/news/luriealiaskaribloomberglaw092818 Fri, 28 Sep 2018 00:00:00 -0400 <p> Dawn Lurie and Mahsa Aliaskari were quoted in a September 28 story from Bloomberg Law, &quot;Visa Crackdown Boosts Job Market for Immigration Lawyers.&quot;</p> https://www.seyfarth.com:443/news/passantinoshrm092818 Alex Passantino quoted in SHRM https://www.seyfarth.com:443/news/passantinoshrm092818 Fri, 28 Sep 2018 00:00:00 -0400 <p> Alex Passantino was quoted in a September 28 story from SHRM, &quot;What Workplace Measures Will Be on the Ballot Nov. 6?&quot; Passantino said that it&#39;s actually a fairly quiet election for employment-related ballot initiatives. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/Pages/Workplace-Measures-on-the-Ballot.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/silverccr092718 Jason Silver quoted in the Cook County Record https://www.seyfarth.com:443/news/silverccr092718 Thu, 27 Sep 2018 00:00:00 -0400 <p> Jason Silver was quoted in a September 27 story from the Cook County Record, &quot;Attorney: New Jersey law giving strikers access to unemployment pay not likely to spread to Illinois.&quot; Silver said that it is worth noting current legislation in both New Jersey and New York is not surprising, given the high number, as compared to other states, of public and private-sector union employees. You can read the <a href="https://cookcountyrecord.com/stories/511572765-attorney-new-jersey-law-giving-strikers-access-to-unemployment-pay-not-likely-to-spread-to-illinois">full article here</a>.</p> https://www.seyfarth.com:443/publications/CA092718-RE Expansion of CFIUS Review to Real Estate: Foreign Investment Risk Review Modernization Act of 2018 https://www.seyfarth.com:443/publications/CA092718-RE Thu, 27 Sep 2018 00:00:00 -0400 <div> <strong>Seyfarth Synopsis</strong>: <em>On August 13, 2018, President Trump signed into law the Foreign Investment Risk Review Modernization Act of 2018 (the &ldquo;<u><strong>Act</strong></u>&rdquo;), (i) expanding the scope of transactions which the Committee of Foreign Investment in the United States (&ldquo;<u><strong>CFIUS</strong></u>&rdquo;) is tasked with reviewing and (ii) providing for mandatory notice to CFIUS of certain transactions by the participants.</em></div> <div> &nbsp;</div> <div> CFIUS has long reviewed acquisitions of United States industry for their impacts on national security,<sup>1</sup> advising the President of its conclusions regarding the same. The President then had authority to block proposed transactions or order divestiture of completed transactions, in each case if the transaction was determined to be harmful to national security.<sup>2</sup></div> <div> &nbsp;</div> <div> Traditionally, CFIUS&rsquo; focus has been on maintaining the United States&rsquo; industrial base and technologies critical to national security. In more recent years, CFIUS has ventured also into reviewing foreign transactions which threaten to compromise the safeguarding of information critical to national security. Within that framework, the historical focus has been investments in United States businesses involving infrastructure or technologies critical to national security.</div> <div> &nbsp;</div> <div> The Act expands the transactions open to CFIUS review. &ldquo;Covered&rdquo; transactions now include:&nbsp;</div> <br /> <div> <p style="margin-left: 40px"> 1. the purchase or lease by a foreign person of private or public real estate in the United States that is:</p> </div> <div> <p style="margin-left: 40px"> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;(i) located within, or will function as part of, an air or maritime port, or&nbsp;</p> </div> <div> <p style="margin-left: 40px"> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;(ii) is in close proximity to a military installation or other government facility that is sensitive for reasons of national security,</p> </div> <div> <p style="margin-left: 40px"> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;(iii) could reasonably provide foreign persons the ability to collect intelligence on activities being conducted at nearby facilities, or</p> </div> <div> <p style="margin-left: 40px"> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;(iv) could expose national security activities at nearby facilities; and</p> </div> <div> <p style="margin-left: 40px"> 2. any investment in a United States business maintaining or collecting sensitive personal data of United States citizens that might be used to threaten national security.<sup>3</sup></p> </div> <div> The Act expressly excludes from the list of covered transactions (i) real estate consisting of single family housing units, and (ii) real estate located in urbanized areas.<sup>4</sup></div> <div> &nbsp;</div> <div> In another significant move, the Act authorizes CFIUS to issue regulations identifying transactions of which the parties will be required to notify CFIUS.<sup>5</sup> Traditionally, CFIUS has relied on the parties to a transaction to advise CFIUS voluntarily of the transaction. While it has been common practice for the parties to an acquisition by foreign persons of United States companies implicating national security to notify CFIUS of the transaction, there was no requirement that they do so. The risk was that if the transaction was covered by CFIUS, the acquiring party could be required to divest and/or face fines and other sanctions.</div> <div> &nbsp;</div> <div> Tempering the required notice provisions, the Act also authorizes CFIUS to issue regulations providing for notice via &ldquo;declaration&rdquo; for select transactions.<sup>6</sup> The &ldquo;declaration&rdquo; requires the submission of certain information regarding the transaction. It is, however, significantly less information than CFIUS traditionally has required for notifications. CFIUS is to issue regulations identifying the transactions which will be subject to the abbreviated declaration process.<sup>7</sup></div> <div> &nbsp;</div> <div> The Act also makes a number of other changes - largely procedural - to CFIUS process for reviewing transactions.</div> <div> &nbsp;</div> <div> <strong>Key Takeaways:</strong></div> <br /> <div> <p style="margin-left: 40px"> 1. If you are selling or leasing property to (i) a non-U.S. entity, or (ii) an entity owned or controlled by a foreign entity or government, check to see if the property falls into one of the categories set out in Paragraph 1, above. If so, a filing with CFIUS may be required.</p> </div> <div> <p style="margin-left: 40px"> 2. If you are a landlord or property manager owned or controlled by a non-U.S. entity, does the rental application you receive contain sensitive personal information that might be used to threaten national security (for example, is the applicant is a government entity or a government contractor)? If so, a filing with CFIUS may be required.&nbsp;</p> </div> <div> <p style="margin-left: 40px"> 3. If a filing is required, you need to determine whether a full CFIUS filing or merely a declaration is required.</p> </div> <div> <p style="margin-left: 40px"> 4. If a CFIUS submission is required, this could delay the timing of your transaction by up to 90 days (in rare cases more).</p> </div> <div> <p style="margin-left: 40px"> 5. Regulations have yet to be promulgated, so stay tuned for further developments.</p> </div> <div> <p style="margin-left: 40px"> 6. Note that the exclusions of single family housing units and real estate located in urbanized areas may not exempt all foreign acquisitions of such properties. CFIUS retains jurisdiction over any acquisition which may impair national security. Also, laws other than those related to CFIUS (for example those controlling access to classified facilities) may subject acquisitions of these properties to review.</p> </div> <div> &nbsp;</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <div> <span style="font-size:10px;"><sup>1</sup> 50 U.S.C. &sect;&sect; 4565(a)(3) and (b).</span></div> <div> <span style="font-size:10px;"><sup>2</sup> 50 U.S.C. &sect; 4565(d)(1).&nbsp;&nbsp;</span></div> <div> <span style="font-size:10px;"><sup>3</sup> FIRRMA, &sect; 1703. Foreign Investment Risk Review Modernization Act of 2018, Pub. L. No. 115-232, Title XVII, &sect; 1703.</span></div> <div> <div> <span style="font-size:10px;"><sup>4</sup> <em>Id.</em></span></div> <div> <span style="font-size:10px;"><sup>5</sup> FIRRMA, &sect; 1706.&nbsp;</span></div> <div> <span style="font-size:10px;"><sup>6</sup> <em>Id.</em></span></div> <div> <span style="font-size:10px;"><sup>7</sup> <em>Id.&nbsp;</em></span></div> </div> </div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/EL092718 Fourth Circuit Sides With EEOC: Back Pay Damages Are Mandatory Under The ADEA https://www.seyfarth.com:443/publications/EL092718 Thu, 27 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Although back pay has been awarded in Age Discrimination in Employment Act (ADEA) cases for quite some time, few courts have specifically addressed whether these damages are discretionary or mandatory. In EEOC v. Baltimore County., No. 16-2216, 2018 WL 4472062, at *1 (4th Cir. Sept. 19, 2018), the Fourth Circuit answered this straightforward question and held that retroactive monetary awards, such as back pay, are mandatory legal remedies under the ADEA. Because the ADEA incorporates the provisions of the Fair Labor Standards Act (FLSA) that make back pay mandatory, the Fourth Circuit concluded that district courts lack discretion to deny back pay once ADEA liability is established. The key takeaway from this decision is that now more than ever, employers should take steps to minimize exposure to ADEA violations and, if ADEA liability is established, to explore available set offs to back pay awards.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/09/fourth-circuit-sides-with-eeoc-back-pay-damages-are-mandatory-under-the-adea/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT092718 The Week in Weed: September 28, 2018 https://www.seyfarth.com:443/publications/TBT092718 Thu, 27 Sep 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/09/the-week-in-weed-september-28-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise092618 The Impact of Disengagement on Innovation, Creativity, Productivity, and Profitability https://www.seyfarth.com:443/publications/FutureEnterprise092618 Wed, 26 Sep 2018 00:00:00 -0400 <p> It is hard to imagine that a disengaged workforce that spends the bulk of its time being distracted and dissatisfied will ever be a catalyst for the creativity and productivity in an enterprise. It is equally hard to imagine an employee who feels disconnected and unappreciated spending time thinking about ways to improve his or her workplace, products, or service. And it is harder still to imagine a disengaged manager spending the necessary time to figure out how to better engage employees.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2018/9/25/the-impact-of-disengagement-on-innovation-creativity-productivity-and-profitability">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP092618 How to Count to 67%: CAFA Jurisdiction in the Ninth Circuit https://www.seyfarth.com:443/publications/CP092618 Wed, 26 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Ninth Circuit, addressing how to prove exceptions under CAFA, reminds us that removal under CAFA might be an invitation for extensive preliminary discovery battles, and prolonged motion practice. The following post highlights some procedural realities of finding an appropriate venue for litigating class actions in California.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/09/26/how-to-count-to-67-cafa-jurisdiction-in-the-ninth-circuit/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS092618 Modern slavery update: take heed, or take heat https://www.seyfarth.com:443/publications/WLS092618 Wed, 26 Sep 2018 00:00:00 -0400 <p> The Modern Slavery Bill 2018 (Cth) passed the Lower House last week. The Opposition pushed for several amendments to the legislative framework including establishing an Independent Anti-Slavery Commissioner to oversee implementation and enforcement of the legislation, the introduction of penalties on companies for non-compliance with their reporting obligations, and an obligation on the Minister to report annually on compliance by reporting entities. While none of these passed, the Opposition nevertheless supported the passage of the legislation as it currently stands.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/09/modern-slavery-update-take-heed-or-take-heat/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE092518 Facing Addiction in the Workplace: The Surgeon General’s Spotlight https://www.seyfarth.com:443/publications/WSE092518 Tue, 25 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The U.S. Department of Health and Human Services (HHS), Office of the Surgeon General, has just released a Report on &ldquo;Facing Addiction in America: The Surgeon General&rsquo;s Spotlight on Opioids,&rdquo; (Washington, DC: HHS, September 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/healthcare/facing-addiction-in-the-workplace-the-surgeon-generals-spotlight/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL092518 Facing Addiction in the Workplace: The Surgeon General’s Spotlight https://www.seyfarth.com:443/publications/EL092518 Tue, 25 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The U.S. Department of Health and Human Services (HHS), Office of the Surgeon General, has just released a Report on &ldquo;Facing Addiction in America: The Surgeon General&rsquo;s Spotlight on Opioids,&rdquo; (Washington, DC: HHS, September 2018).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/09/facing-addiction-in-the-workplace-the-surgeon-generals-spotlight/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM092518-LE Facing Addiction in the Workplace: The Surgeon General’s Spotlight https://www.seyfarth.com:443/publications/OMM092518-LE Tue, 25 Sep 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The U.S. Department of Health and Human Services (HHS), Office of the Surgeon General, has just released a Report on <a href="https://addiction.surgeongeneral.gov/sites/default/files/Spotlight-on-Opioids_09192018.pdf">&quot;Facing Addiction in America: The Surgeon General&#39;s Spotlight on Opioids&quot;</a> (Washington, DC: HHS, September 2018).</em></p> <p> In the Report, Alex M. Azar, II, Secretary of the HHS, notes that &ldquo;the opioid misuse and overdose crisis touches everyone in the United States. In 2016, we lost more than 115 Americans to opioid overdose deaths each day, devastating families and communities across the country. Preliminary numbers in 2017 show that this number continues to increase with more than 131 opioid overdose deaths each day. The effects of the opioid crisis are cumulative and costly for our society&mdash;an estimated $504 billion a year in 2015&mdash;<strong>placing burdens on families, workplaces, the health care system, states, and communities</strong>.&rdquo;</p> <p> The &ldquo;evidence-based public health approach&rdquo; described in the Report offers a way forward. Its goal is to reduce the impact of the opioid crisis by addressing factors that contribute to opioid misuse and its consequences. The Report offers that by adopting this approach&mdash;which seeks to improve the health, safety, and well-being of the entire population&mdash;the nation will have an opportunity to take effective steps to prevent and treat opioid misuse and opioid use disorder and reduce opioid overdose. The evidence based public health approach to the opioid crisis complements the broader healthcare ecosystem&rsquo;s focus on social determinants of health and consumers&rsquo; behavioral conditions, which are widely viewed as critical to improving individual and national health outcomes over the long term.</p> <p> Specifically, the Report offers suggestions for various key stakeholders, including, the healthcare profession and other employers generally:</p> <p> <strong>Health Care Professionals and Professional Associations &ndash; As Employer and Provider:</strong></p> <p> &bull; Address substance use-related health issues with the same sensitivity and care as any other chronic health condition.</p> <p> &bull; Support high-quality care for substance use disorders. &bull;Follow the gold standard for opioid addiction treatment.</p> <p> &bull; Follow the CDC Guideline for Prescribing Opioids for Chronic Pain.</p> <p> &bull; When opioids are prescribed, assess for behavioral health risk factors to help inform treatment decisions, and collaborate with mental health providers.</p> <p> &bull; Check the PDMP before prescribing opioids.</p> <p> &bull; Refer patients to opioid treatment providers when necessary.</p> <p> &bull; Become qualified to prescribe buprenorphine for the treatment of opioid use disorder.</p> <p> <strong>Industry and Commerce:</strong></p> <p> &bull; Support youth substance use prevention.</p> <p> &bull; Continue to collaborate with the federal initiative to reduce prescription opioid-and heroin-related overdose, death, and dependence.</p> <p> &bull; Reduce work-related injury risks and other working conditions that may increase the risk for substance misuse.</p> <p> &bull; Offer education, support and treatment benefits for workers affected by the opioid crisis.</p> <p> As a resource for employers, the HHS also offers the Surgeon General Postcard &ldquo;<a href="https://addiction.surgeongeneral.gov/sites/default/files/SG-Postcard.jpg">&quot;What Can You Do To Prevent Opioid Misuse?&quot;</a>; The card encourages employers to open up to conversations about the impact of addiction, to learn how to read the signs of struggle within the workforce, to ensure safe workplaces designed to minimize the need for pain prescriptions, and to be prepared to deal with a crisis. Specifically, HHS counsels:</p> <p> <strong>TALK ABOUT IT</strong>: Opioids can be addictive and dangerous. We all should have a conversation about preventing drug misuse and overdose.</p> <p> <strong>BE SAFE</strong>: Only take opioid medications as prescribed. Always store in a secure place. Dispose of unused medication properly.</p> <p> <strong>UNDERSTAND PAIN</strong>: Treatments other than opioids are effective in managing pain and may have less risk for harm. Talk with your healthcare provider about an individualized plan that is right for your pain<strong>.</strong></p> <p> <strong>KNOW ADDICTION</strong>: Addiction is a chronic disease that changes the brain and alters decision-making. With the right treatment and supports, people do recover. There is hope.</p> <p> <strong>BE PREPARED</strong>: Many opioid overdose deaths occur at home. Having naloxone, an opioid overdose reversing drug, could mean saving a life. Know where to get it and how to use it.</p> <p> HHS also provides <a href="https://www.hhs.gov/opioids/">help resources and information</a> and a hotline (1-800-662-HELP (4357).</p> https://www.seyfarth.com:443/publications/FE092518 Transforming Workplace Cultures and The Future of Diversity and Inclusion Initiatives https://www.seyfarth.com:443/publications/FE092518 Tue, 25 Sep 2018 00:00:00 -0400 <p> This is the third article in a series in which we address what it means to transform workplace culture in light of the #MeToo, #BlackLivesMatter, and other movements, what initiatives work and don&rsquo;t work, and what employers who want to go above and beyond can and are thinking about. Our first post discussed how to create an effective training program, and our second post discussed reporting and investigating harassment. In this post, we focus on how leadership can transform workplace cultures and what practices companies at the forefront of change are implementing.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/9/25/transforming-workplace-cultures-and-the-future-of-diversity-and-inclusion-initiatives">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS092518 Robert Milligan on a Trade Secrets Panel at the California Lawyers Association Intellectual Property Institute https://www.seyfarth.com:443/publications/TS092518 Tue, 25 Sep 2018 00:00:00 -0400 <p> Seyfarth Partner and Trade Secrets, Computer Fraud &amp; Non-Compete Practice Group Co-Chair Robert Milligan is on the panel for the &ldquo;Hot Topics in Trade Secret Litigation: the DTSA, Remedies, Anti-SLAPP, and Constitutional issues&rdquo; session on November 8, at the California Lawyers Association Intellectual Property Institute in San Jose, California.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/09/articles/trade-secrets/robert-milligan-on-a-trade-secrets-panel-at-the-california-lawyers-association-intellectual-property-institute/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/babsonlaw360092518 Marshall Babson quoted in Law360 https://www.seyfarth.com:443/news/babsonlaw360092518 Tue, 25 Sep 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a September 25 story from Law360, &quot;A Cheat Sheet To Boeing&#39;s &#39;Micro-Unit&#39; Fight At NLRB.&quot; Babson said that there cannot be too much clarity to the board&rsquo;s test for whether a petitioned-for bargaining unit is appropriate.</p> https://www.seyfarth.com:443/news/larkin092418 Corporate Lawyer Daniel Larkin Joins Seyfarth in Chicago https://www.seyfarth.com:443/news/larkin092418 Mon, 24 Sep 2018 00:00:00 -0400 <p> CHICAGO, IL (September 24, 2018) -- Seyfarth Shaw LLP announced today the arrival of partner Daniel E. Larkin to the Corporate department in Chicago. Larkin joins from Bryan Cave Leighton Paisner LLP, where he was a partner in its Chicago and London offices.</p> <p> With nearly 40 years of cross-border transactional experience, Larkin&rsquo;s practice focuses on asset-backed transactions and financings, and he advises corporations on commercial contracts, private equity, joint ventures, mergers and acquisitions, structured financings, public-private partnerships, capital sourcing, privatizations, development projects, securitizations and restructurings. He represents clients in a multitude of industries including, hospitality, real estate, energy, transport, construction, consumer products and retail, and media and entertainment.</p> <p> &ldquo;Dan is an exceptional talent with unmatched mid-market and cross-border transactional skills,&rdquo; said Steven Meier, chair of Seyfarth&rsquo;s Corporate department. &ldquo;He has built a substantial practice, earning a stellar reputation for his particular work in hospitality transactions and related finance matters. Dan is an entrepreneur and we are excited to see him expand his unique capabilities on the firm&rsquo;s global platform.&rdquo;</p> <p> A current board member of the International Society of Hospitality Consultants, Larkin regularly publishes articles on business and other transactional issues connected to the hospitality industry. His robust hospitality practice encompasses real estate, finance, hotel management, consumer goods and related areas, and involves inbound and outbound cross-border investments and financings.</p> <p> &ldquo;Dan brings with him a proven track record and strong client relationships. He is a natural fit for the firm and an ideal addition to our growing corporate team in Chicago,&rdquo; said Amanda Sonneborn, co-managing partner of Seyfarth&rsquo;s Chicago office.</p> <p> &ldquo;Dan&rsquo;s transactional expertise is quite rare, allowing him to handle complex corporate matters both locally and on the international stage. He is a highly valuable resource to clients and colleagues alike, and we&rsquo;re lucky to have him,&rdquo; said Cory Hirsch, co-managing partner of Seyfarth&rsquo;s Chicago office.</p> <p> A frequent speaker at financial and educational industry conferences, Larkin earned his J.D. from the University of Chicago and received his A.B., <em>cum laude</em>, from Harvard University. Admitted to practice in Illinois, Larkin is also a Registered Foreign Lawyer in England and Wales. He is fluent in English, French and German.</p> <p> &ldquo;We are very much looking forward to integrating Dan&rsquo;s substantial cross-border transactional experience into our international corporate and commercial practice,&rdquo; said Darren Gardner, chair of Seyfarth&rsquo;s International practice.</p> <p> With over 100 lawyers, Seyfarth&rsquo;s Corporate department represents clients spanning many industries in a myriad of legal issues and provides guidance on key decisions that determine long-term success in today&rsquo;s highly competitive, high-speed business environment. The department focuses on areas such as mergers and acquisitions, securities, investment management, corporate counseling, commercial transactions, financing, international business and tax planning.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Communications, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Senior Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> https://www.seyfarth.com:443/news/ehstoday092418 Mark Lies, Patrick Joyce and Adam Young quoted in EHS Today https://www.seyfarth.com:443/news/ehstoday092418 Mon, 24 Sep 2018 00:00:00 -0400 <p> Mark Lies, Patrick Joyce and Adam Young were quoted in a September 24 story from EHS today, &quot;Learning to Live With the New Silica Rule,&quot; on how employers need to act quickly to make sure they are in compliance. The Seyfarth lawyers said that the agency expects the cost of compliance to be so high because the silica rule is among the broadest set of standards OSHA has ever issued, covering 2.3 million workers and 676,000 employers. You can read the <a href="https://www.ehstoday.com/industrial-hygiene/learning-live-new-silica-rule">full article here</a>.</p> https://www.seyfarth.com:443/news/rodriguezquartz092418 Leon Rodriguez quoted in Quartz https://www.seyfarth.com:443/news/rodriguezquartz092418 Mon, 24 Sep 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a September 24 story from Quartz, &quot;In three months, H-1B spouses may end up jobless&mdash;again,&quot; on how the fate of H-4 visa-holders could be sealed within the next three months. Rodriguez said that this could severely affect the H-1B families who often were awaiting the second income to see if it was financially feasible to remain in the US. You can read the <a href="https://qz.com/india/1400398/h-4-visa-trump-could-revoke-h-1b-spouses-right-to-work-in-us/">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS092418 Seyfarth Partners Publish Article on New Massachusetts Non-Compete Law https://www.seyfarth.com:443/publications/TS092418 Mon, 24 Sep 2018 00:00:00 -0400 <p> Seyfarth Shaw Partners Erik Weibust and Robert Fisher recently published a Law360 article about the new Massachusetts Non-Compete Law that goes into effect on October 1, 2018. Weibust and Fisher describe the new rules, the impact of the new provisions, and how businesses can comply. To learn more about this new non-compete law in Massachusetts, check out &ldquo;Navigating The New Mass. Noncompete Morass&rdquo; from Law360 here.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/09/articles/restrictive-covenants/seyfarth-partners-publish-article-on-new-massachusetts-non-compete-law/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/weibustfisherlaw360092418 Erik Weibust and Robert Fisher authored an article in Law360 https://www.seyfarth.com:443/publications/weibustfisherlaw360092418 Mon, 24 Sep 2018 00:00:00 -0400 <p> Erik Weibust and Robert Fisher authored a September 24 article in Law360, &quot;Navigating The New Mass. Noncompete Morass.&quot; The article addresses some of the more confusing provisions and how employers can comply with them without major disruption to how they are currently doing business.</p> https://www.seyfarth.com:443/publications/WSE092418 Webinar – California Proposition 65: From Concept to Implementation—New Warning Regulations Take Effect https://www.seyfarth.com:443/publications/WSE092418 Mon, 24 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Join us on Tuesday, September 25th, for this timely California Proposition 65 webinar that will provide an overview of the updated warning regulations. The webinar will also discuss the potential impact of the new regulations on enforcement trends. Lastly, the webinar will provide strategies for businesses seeking to become compliant, as well as those looking to evaluate existing compliance plans based on the latest Proposition 65 developments.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/webinar-california-proposition-65-from-concept-to-implementation-new-warning-regulations-take-effect/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH092418 As Second Circuit Buys into “Fair Interpretation” of the FLSA, “Narrow Construction” Stalls Out https://www.seyfarth.com:443/publications/WH092418 Mon, 24 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Second Circuit&rsquo;s recent rulings in Munoz-Gonzalez v. D.L.C. Limousine Service, Inc. and Flood v. Just Energy Marketing Corp. further demonstrate the impact of the Supreme Court&rsquo;s holding in Navarro, et al. v. Encino Motorcars, LLC as it pertains to FLSA exemptions by rejecting the traditional &ldquo;narrow construction&rdquo; approach in favor of a &ldquo;fair interpretation.&rdquo;<br /> <br /> <a href="https://www.wagehourlitigation.com/flsa/as-second-circuit-buys-into-fair-interpretation-of-the-flsa-narrow-construction-stalls-out/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC092118 Fourth Circuit Sides With EEOC: Back Pay Damages Are Mandatory Under The ADEA https://www.seyfarth.com:443/publications/WC092118 Fri, 21 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Although back pay has been awarded in Age Discrimination in Employment Act (ADEA) cases for quite some time, few courts have specifically addressed whether these damages are discretionary or mandatory. In EEOC v. Baltimore County., No. 16-2216, 2018 WL 4472062, at *1 (4th Cir. Sept. 19, 2018), the Fourth Circuit answered this straightforward question and held that retroactive monetary awards, such as back pay, are mandatory legal remedies under the ADEA. Because the ADEA incorporates the provisions of the Fair Labor Standards Act (FLSA) that make back pay mandatory, the Fourth Circuit concluded that district courts lack discretion to deny back pay once ADEA liability is established. The key takeaway from this decision is that now more than ever, employers should take steps to minimize exposure to ADEA violations and, if ADEA liability is established, to explore available set offs to back pay awards.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/09/fourth-circuit-sides-with-eeoc-back-pay-damages-are-mandatory-under-the-adea/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR092118 THINKING ABOUT E-VERIFY? VERIFY WITH THE UNION FIRST! https://www.seyfarth.com:443/publications/LR092118 Fri, 21 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The E-Verify program has become a controversial topic in the political arena and throughout workplaces nationwide. Last month, the NLRB held, amongst other things, that an employer violated the NLRA by unilaterally enrolling in the E-Verify program without first bargaining with the union.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/09/21/thinking-about-e-verify-verify-with-the-union-first/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/longccr092118 Colton Long quoted in the Cook County Record https://www.seyfarth.com:443/news/longccr092118 Fri, 21 Sep 2018 00:00:00 -0400 <p> Colton Long was quoted in a September 21 story from the Cook County Record, &quot;Amended Illinois law requires employers to grant new moms paid nursing breaks.&quot; Long said that the amendment clarified definitions&#39; requiring employers to provide reasonable break time. You can read the <a href="https://cookcountyrecord.com/stories/511570103-amended-illinois-law-requires-employers-to-grant-new-moms-paid-nursing-breaks">full article here</a>.</p> https://www.seyfarth.com:443/publications/launeydj092018 Kristina Launey authored an article in the Daily Journal https://www.seyfarth.com:443/publications/launeydj092018 Thu, 20 Sep 2018 00:00:00 -0400 <p> Kristina Launey authored a September 20 article in the Daily Journal, &quot;ADA website accessibility lawsuits are surging in 2018.&quot; Plaintiffs filed 4,965 federal ADA Title III lawsuits in just the first six months of 2018, compared to 7,663 for all of 2017.</p> https://www.seyfarth.com:443/publications/TS092018 There’s Something Fishy Going on Here: MA Federal Court Enjoins Seafood Supplier Executive https://www.seyfarth.com:443/publications/TS092018 Thu, 20 Sep 2018 00:00:00 -0400 <p> A Massachusetts Federal Court recently enjoined the former Director of Research and Development and Quality Assurance of National Fish &amp; Seafood, Inc. (&ldquo;National Fish&rdquo;) from working for a competing seafood supplier based in Florida after it determined that she had downloaded thousands of documents from National Fish&rsquo;s computer systems during her final days with the company. Kathleen Scanlon had worked for the Gloucester, Massachusetts-based seafood supplier for twenty-three years when she was approached by the CEO of Tampa Bay Fisheries, Inc. (&ldquo;Tampa Bay Fisheries&rdquo;) to see if she was interested in taking a position as director of food safety for the company.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/09/articles/trade-secrets/theres-something-fishy-going-on-here-ma-federal-court-enjoins-seafood-supplier-executive/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL092018 The Sixth Circuit Shows that Balancing ADA Obligations with Enforcement of Workplace Rules is Far From an Exercise in Futility https://www.seyfarth.com:443/publications/EL092018 Thu, 20 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers face a tough challenge in trying to balance their obligations under the ADA with efforts to enforce workplace rules. A recent decision out of the United States Court of Appeals for the Sixth Circuit, however, highlighted how employers can get that balance right.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/09/the-sixth-circuit-shows-that-balancing-ada-obligations-with-enforcement-of-workplace-rules-is-far-from-an-exercise-in-futility/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS092018 A glimpse into a future Labor government IR agenda? https://www.seyfarth.com:443/publications/WLS092018 Thu, 20 Sep 2018 00:00:00 -0400 <p> The employment and IR related recommendations from the Committee&rsquo;s majority (dominated by Labor, Greens and Independents) include the following that have general application to employers, particularly those with unionised workforces:<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/09/a-glimpse-into-a-future-labor-government-ir-agenda/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT092018 The Week in Weed: September 21, 2018 https://www.seyfarth.com:443/publications/TBT092018 Thu, 20 Sep 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/09/the-week-in-weed-september-21-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA091918 Defendants Fighting Website Accessibility Cases Face An Uphill Battle In 2018 https://www.seyfarth.com:443/publications/ADA091918 Wed, 19 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Plaintiffs secure a second judgment in a federal website accessibility lawsuit while most of the others successfully fended off motions to dismiss.<br /> <br /> <a href="https://www.adatitleiii.com/2018/09/defendants-fighting-website-accessibility-cases-face-an-uphill-battle-in-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT091918 Appropriations Rider Gives Sliver of Hope For California Dispensary Owner Caught Between Conflicting State and Federal Laws https://www.seyfarth.com:443/publications/TBT091918 Wed, 19 Sep 2018 00:00:00 -0400 <p> In a split decision last Thursday, the U.S. 9th Circuit Court of Appeals affirmed the conviction of Morro Bay marijuana dispensary owner Charles Lynch and remanded the case to the district court for a factual determination as to whether Lynch&rsquo;s activities were in strict compliance with California law. [Link to case here.]<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/09/appropriations-rider-gives-sliver-of-hope-for-california-dispensary-owner-caught-between-conflicting-state-and-federal-laws/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/babsonlaw360091918 Marshall Babson authored an article in Law360 https://www.seyfarth.com:443/publications/babsonlaw360091918 Wed, 19 Sep 2018 00:00:00 -0400 <p> Marshall Babson authored a September 19 article in Law360, &quot;Navigating NLRB: Nature Of Work Has Changed, NLRA Hasn&#39;t.&quot;</p> https://www.seyfarth.com:443/publications/jutkowitzkwonclr091918 Stanley Jutkowitz and Jun Kwon's blog post republished in the Cannabis Law Report https://www.seyfarth.com:443/publications/jutkowitzkwonclr091918 Wed, 19 Sep 2018 00:00:00 -0400 <p> Stanley Jutkowitz and Jun Kwon&#39;s blog post was republished September 19th in the Cannabis Law Report, &quot;Seyfarth Shaw: Appropriations Rider Gives Sliver of Hope For California Dispensary Owner Caught Between Conflicting State and Federal Laws.&quot; You can read the <a href="https://cannabislaw.report/seyfarth-shaw-appropriations-rider-gives-sliver-of-hope-for-california-dispensary-owner-caught-between-conflicting-state-and-federal-laws/?utm_source=dlvr.it&amp;utm_medium=twitter">full article here</a>.</p> https://www.seyfarth.com:443/publications/EL091818 Federal Judge Rules that Employer Violated Connecticut Law by Refusing to Hire Medical Marijuana User https://www.seyfarth.com:443/publications/EL091818 Tue, 18 Sep 2018 00:00:00 -0400 <p> Synopsis: On September 5, 2018, a federal district court in Connecticut granted summary judgment to a job applicant after an employer refused to hire her because she tested positive for marijuana in a pre-employment drug test. The decision, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing &amp; Rehab. Ctr., should serve as a reminder to employers operating in states with medical marijuana laws to evaluate their policies and practices concerning employee use of marijuana outside the workplace.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/09/federal-judge-rules-that-employer-violated-connecticut-law-by-refusing-to-hire-medical-marijuana-user/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS091818 Ninth Circuit Court of Appeals Reaffirms CA Attorney General’s Demand for Donor List https://www.seyfarth.com:443/publications/TS091818 Tue, 18 Sep 2018 00:00:00 -0400 <p> A three-judge panel of the Ninth Circuit Court of Appeals1 recently upheld the position of the California Attorney General (AG) that charities located or doing business in California must provide a copy of their unredacted Form 990 Schedule B, including the names, addresses and contribution amounts for all donors listed with the annual report filed with the AG.2 While the AG has indicated that the collected information will not be made publicly available, this is unwelcome news for charities that are concerned about protecting their donors&rsquo; identities.3<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/09/articles/privacy-2/ninth-circuit-court-of-appeals-reaffirms-ca-attorney-generals-demand-for-donor-list/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/shermanmm091818 Andrew Sherman quoted in Mergermarket https://www.seyfarth.com:443/news/shermanmm091818 Tue, 18 Sep 2018 00:00:00 -0400 <p> Andrew Sherman was quoted in Mergermarket, &quot;Technology, Media &amp; Telecom.&quot; Sherman said that here is a lot of talk right now about convergence and the impact of automation and robotics in the workplace.</p> https://www.seyfarth.com:443/news/mhlm091718 Annette Tyman, Lawrence Lorber and Michael Childers quoted in Material Handling & Logistics https://www.seyfarth.com:443/news/mhlm091718 Mon, 17 Sep 2018 00:00:00 -0400 <p> Annette Tyman, Lawrence Lorber and Michael Childers was quoted in a September 17 story from Material Handling &amp; Logistics, &quot;Federal Contractors Face Closer Scrutiny,&quot; on how the OFCCP pursues formal reviews and demands greater documentation of anti-discrimination measures. The Seyfarth lawyers said that the new directive may also impact complaint investigations against certain employers which allege discrimination on the basis of religion or sexual orientation and gender identity. You can read the <a href="https://www.mhlnews.com/labor-management/federal-contractors-face-closer-scrutiny">full article here</a>.</p> https://www.seyfarth.com:443/news/casciarishrm091718 Joan Casciari quoted in SHRM https://www.seyfarth.com:443/news/casciarishrm091718 Mon, 17 Sep 2018 00:00:00 -0400 <p> Joan Casciari was quoted in a September 17 story from SHRM, &quot;What to Do When No-Call/No-Show Employees Reappear.&quot; Casciari said that an employer confronted with a returning worker who was fired under a no-call/no-show policy should ask the worker to document why he or she couldn&#39;t call. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/no-call-no-show-reappear.aspx">full article here</a>.</p> https://www.seyfarth.com:443/publications/WC091718 Kudos For Seyfarth’s Annual Workplace Class Action Litigation Report https://www.seyfarth.com:443/publications/WC091718 Mon, 17 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In its recent article on leading content creators in the legal industry, Attorney at Work cited Seyfarth&rsquo;s Annual Workplace Class Action Litigation Report, calling it a &ldquo;best-in-show report that makes the firm synonymous with class action litigation.&rdquo;<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/09/kudos-for-seyfarths-annual-workplace-class-action-litigation-report-2/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CA091718-TEO Ninth Circuit Court of Appeals Reaffirms CA Attorney General’s Demand for Donor List https://www.seyfarth.com:443/publications/CA091718-TEO Mon, 17 Sep 2018 00:00:00 -0400 <div> <span style="font-size:14px;"><strong>Introduction</strong></span></div> <div> &nbsp;</div> <div> A three-judge panel of the Ninth Circuit Court of Appeals<sup>1</sup> recently upheld the position of the California Attorney General (AG) that charities located or doing business in California must provide a copy of their unredacted Form 990 Schedule B, including the names, addresses and contribution amounts for all donors listed with the annual report filed with the AG.<sup>2 </sup>While the AG has indicated that the collected information will not be made publicly available, this is unwelcome news for charities that are concerned about protecting their donors&rsquo; identities.<sup>3</sup></div> <div> &nbsp;</div> <div> Out-of-state charitable organizations that solicit contributions or do business in California should consider the effect of these disclosure requirements on donor relations. All affected charities, including out-of-state charities, should review their donor confidentiality policies and disclosures to ensure that their donors are aware of California&rsquo;s disclosure requirement.</div> <div> &nbsp;</div> <div> <strong><span style="font-size:14px;">Regulation of Charities Located or Doing Business in California</span></strong></div> <div> &nbsp;</div> <div> Most California charities and certain out-of-state charities doing business or holding property in California are required to register and file an annual report (Form RRF-1) with the AG&rsquo;s Registry of Charitable Trusts. Religious organizations, educational institutions, hospitals and health care service plans are exempt from this registration and reporting.</div> <div> &nbsp;</div> <div> A copy of the charity&rsquo;s annual IRS information return (Form 990 or Form 990-EZ) must be included with the annual report. The AG treats annual reports submitted without Schedule B or with a redacted Schedule B as incomplete. Failure to file a complete report generally results in penalties, fees and the loss of California income tax exemption.&nbsp;</div> <div> &nbsp;</div> <div> Several states, including New York, have a similar filing requirement. Both the California and New York AGs have stated that it is not their policy to disclose Schedule B to the public. In 2016, the California AG formalized its policy, adopting a regulation that makes Schedule B information confidential and exempts it from public inspection except in a judicial or administrative proceeding or in response to a search warrant.<sup>4</sup> Of course, there is no guarantee that their disclosure policies and related regulations will not change in the future.&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Schedule B - Donor Disclosure</strong></span></div> <div> &nbsp;</div> <div> Schedule B to the Form 990 is used to disclose to the IRS the reporting organization&rsquo;s significant donors (generally those who contribute over $5,000 in cash or property), including their names, addresses, and the type and amount of the contribution. Charities are generally required to make available, for public inspection and copying, their three most recent information returns, including all schedules, attachments and supporting documents. Most such returns are posted and publicly available at no cost on third-party websites, such as Guidestar.org.&nbsp;</div> <div> &nbsp;</div> <div> However, except for private foundations (Form 990-PF filers) and section 527 political organizations, public disclosure of the names and addresses of contributors on Schedule B generally is not required, and the Schedules B of those organizations typically do not appear when posted online.<sup>5&nbsp;</sup></div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Americans for Prosperity Foundation v. Becerra</strong></span></div> <div> &nbsp;</div> <div> In an earlier case, Americans for Prosperity Foundation and Thomas More Law Center challenged the California AG&rsquo;s collection of Form 990 Schedule B information.<sup>6</sup> They argued that confidential disclosure to the California AG itself chills protected conduct or would lead to persecution and harassment of their donors by the state or the public. They also argued that, notwithstanding the California AG&rsquo;s voluntary policy against disclosing Schedule B forms to the public, the California AG may change its policy or be compelled to release the forms under state law, such as public records laws, and that the resulting public disclosure would lead to harassment of their donors by the public, chilling protected conduct.&nbsp;</div> <div> &nbsp;</div> <div> The Federal District Court granted a motion for a permanent injunction enjoining the California AG from demanding the plaintiffs unredacted Schedule B information.<sup>7</sup> The Ninth Circuit later vacated the injunctions and rejected the arguments that were presented by both organizations.<sup>8</sup> Now a three-judge panel of the Ninth Circuit has entered a judgement in favor of the California AG with respect to the state&rsquo;s Schedule B disclosure requirement.<sup>9</sup></div> <div> &nbsp;</div> <div> The panel found that requiring charities to disclose their Schedule B information to the State was substantially related to an important State interest in policing charitable fraud. The panel further concluded this requirement does not create a burden on donors&rsquo; First Amendment rights because it is collected solely for nonpublic use, and the risk of inadvertent public disclosure is slight. This decision appears to close the book on any new confidentiality exceptions to California&rsquo;s filing requirement for charities.&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Conclusion</strong></span></div> <div> &nbsp;</div> <div> This latest decision is in line with what appears to be a growing trend by State Attorneys General to demand sensitive donor information from charities operating or soliciting in those states. Charities should continue to follow the Schedule B instructions and not include Schedule B filings with states that do not require it, as those states may inadvertently disclose the charity&rsquo;s donor information to the public.<sup>10</sup> Out-of-state charities not currently registered with the California AG&rsquo;s Registry of Charitable Trusts that would like to solicit contributions or otherwise do business or hold property in California should consider contacting local counsel for advice regarding their activities within the State to avoid or minimize potential penalties.<sup>11&nbsp;</sup></div> <div> &nbsp;</div> <div> <div> ________________________________________________________________________________________________________________________________________</div> <div> &nbsp;</div> <div> <div> <sup>1 </sup><em>Americans for Prosperity Foundation v. Becerra</em>, No. 16-55727 (9th Cir. Sept. 11, 2018).</div> <div> <sup>2</sup> For our prior articles on this subject matter, please visit <a href="http://www.seyfarth.com/publications/CA060115-TEO" target="_blank">http://www.seyfarth.com/publications/CA060115-TEO</a> and <a href="https://www.seyfarth.com/publications/ClientAlert011316-TEO" target="_blank">https://www.seyfarth.com/publications/ClientAlert011316-TEO</a>.&nbsp;</div> <div> <sup>3</sup> In Revenue Procedure 2018-38, the IRS announced that it will no longer require most tax-exempt organizations to report the names and addresses of substantial donors on their returns for tax years ending on or after 12/31/2018. This change, however, does not apply to organizations exempt under Internal Revenue Code section 501(c)(3).&nbsp;</div> <div> <sup>4</sup> California Code of Regulations, Title 11, &sect; 310.&nbsp;</div> <div> <div> <sup>5</sup> See footnote 3.&nbsp;</div> <div> <sup>6</sup> <em>Americans for Prosperity Foundation v. Harris</em>, No. 15-55446 (9th Cir. Dec. 29, 2015).</div> <div> <sup>7</sup> <em>Americans for Prosperity Foundation v. Harris</em>, No. CV 14-9448-R (Dist. Ct. April 21, 2016).</div> <div> <sup>8</sup> <em>Americans for Prosperity Foundation</em>, No. 15-55446.</div> <div> <sup>9</sup><em> Americans for Prosperity Foundation</em>, No. 16-55727.</div> <div> <sup>10</sup> Schedule B, Page 5 (General Instructions: Public Inspection), available at <a href="http://www.irs.gov/pub/irs-pdf/f990ezb.pdf" target="_blank">http://www.irs.gov/pub/irs-pdf/f990ezb.pdf</a>.&nbsp;</div> <div> <sup>11</sup>&nbsp;For a detailed discussion of California requirements that extend to out-of-state charities, see Mancino, &ldquo;California Regulation of Out-of-State Charities,&rdquo; 17 Taxation of Exempts 6 (May/June 2006).</div> </div> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/LR091418 Waiting For Godot, Or, In This Case, The NLRB https://www.seyfarth.com:443/publications/LR091418 Fri, 14 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The National Labor Relations Board recently commenced an examination of the continued validity of a number of Obama Board actions. These include joint employer status, employee use of company email systems, and the &ldquo;quickie election rules.&rdquo; This blog provides an overview of the Board&rsquo;s recent activities.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/09/14/waiting-for-godot-or-in-this-case-the-nlrb/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FE091418 Reporting and Investigating Harassment in the Age of Social Movements https://www.seyfarth.com:443/publications/FE091418 Fri, 14 Sep 2018 00:00:00 -0400 https://www.seyfarth.com:443/publications/CP091418 Legislative Update: Employment Bills Already Signed, Two Weeks Remain https://www.seyfarth.com:443/publications/CP091418 Fri, 14 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Governor Jerry Brown has already signed into law legislation covering meal period exceptions for truck drivers delivering commercial feed, adding communications to be considered as &ldquo;privileged&rdquo; for purposes of defamation suits, removing a reference to the seven-day waiting period for disability benefits under the paid family leave program, and clarifying salary history information.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/09/14/legislative-update-employment-bills-already-signed-two-weeks-remain/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CAWH-2018 Seyfarth Launches 18th Edition: Litigating California Wage & Hour and Labor Code Class Actions https://www.seyfarth.com:443/publications/CAWH-2018 Fri, 14 Sep 2018 00:00:00 -0400 <p> Seyfarth Shaw is thrilled to announce the release of the 18th Edition of the firm&#39;s&nbsp;<strong><em>Litigating California Wage &amp; Hour and Labor Code Class Actions</em></strong>, which has been updated to reflect the latest developments in the law. It will review the top legal developments and wage and hour trends in the Golden State, from an employer-side perspective.</p> <p> To request your eBook copy of the 18th Edition, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=9apmonkelz3gD9YdKwsLRhfQMMpth5A_aunzv-DRTwmKmpI4s68gSNXQsMgkbcfk">click here</a>.</p> https://www.seyfarth.com:443/news/intermountain091218 Seyfarth Advises Intermountain Healthcare in the Establishment of New Not-for-Profit Generic Drug Company https://www.seyfarth.com:443/news/intermountain091218 Fri, 14 Sep 2018 00:00:00 -0400 <p> LOS ANGELES - (September 14, 2018) - Seyfarth Shaw LLP advised Intermountain Healthcare in the establishment of Civica Rx, a new not-for-profit generic drug company that will help patients by addressing shortages and high prices of lifesaving medications.</p> <p> Intermountain Healthcare will serve as an initial governing member of Civica Rx that will also include six other major health systems representing about 500 U.S. hospitals. In addition, three prominent foundations, along with these health systems, will each provide leadership on the Civica Rx Board of Directors and will provide much of the initial capitalization for the company. The company is organized as a Delaware nonstock, not-for-profit corporation, and is headquartered in Utah.</p> <p> A seminal deal for the health care industry, more than 120 health organizations representing about a third of the nation&rsquo;s hospitals have expressed a commitment or interest in participating with Civica Rx.</p> <p> Intermountain Healthcare is a Utah-based not-for-profit system of 23 hospitals, 170 clinics, a Medical Group with about 2,300 employed physicians and advanced practice clinicians, a health plans group called SelectHealth, and other medical services. Intermountain is widely recognized as a leader in transforming healthcare through high quality and sustainable costs.</p> <p> The Seyfarth team was led by Corporate partner Douglas Mancino and included partners Morgan Jones, Dean Fanelli, and William Eck.</p> https://www.seyfarth.com:443/news/abapledge091418 Seyfarth Helps Launch American Bar Association’s Lawyer Well-Being Pledge https://www.seyfarth.com:443/news/abapledge091418 Fri, 14 Sep 2018 00:00:00 -0400 <p> Seyfarth Shaw is an original signatory to the American Bar Association&rsquo;s (ABA) new innovative pledge campaign to improve mental health and well-being of lawyers.</p> <p> The campaign, organized by the ABA Working Group to Advance Well-Being in the Legal Profession, is designed to address the profession&rsquo;s troubling rates of alcohol and other substance-use disorders, as well as mental health issues. You can read more <a href="https://www.americanbar.org/news/abanews/aba-news-archives/2018/09/aba_launches_pledge.html">here</a>.</p> <p> Seyfarth has been a leading voice in the effort to improve the emotional health and well-being of legal professionals through its launch of SeyfarthLife, one of the legal industry&rsquo;s first multi-platform well-being training programs designed to enhance productivity and drive resiliency to stress amongst law professionals. This groundbreaking initiative increases organizational resiliency by supporting self-assessment, work-life integration and innovation to enable the highest levels of performance and career satisfaction for all personnel.</p> <p> Partnering with Life Cross Training (LIFE XT), a leading provider of evidence-based human performance training solutions, the implementation of SeyfarthLife has translated into immediate results for the firm. Since launch, Seyfarth participants have reported double-digit improvements across the board, including a 23% increase in well-being and 17% increase in emotional health. You can read more <a href="https://www.businesswire.com/news/home/20180412005167/en/Life-Cross-Training-Announces-Expansion-Human-Performance">here</a>.</p> https://www.seyfarth.com:443/publications/LR091418a National Labor Relations Board Proposed New Joint-Employer Rule https://www.seyfarth.com:443/publications/LR091418a Fri, 14 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The National Labor Relations Board (NLRB or Board) announced that it will publish a Notice of Proposed Rulemaking on September 14, 2018 in the Federal Register regarding its standard for assessing whether a joint-employer relationship exists.</p> <p> <a href="https://www.employerlaborrelations.com/2018/09/14/national-labor-relations-board-proposed-new-joint-employer-rule/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/mhl091318 Mark Lies, Benjamin Briggs and Adam Young's blog post republished in Material Handling & Logistics Magazine https://www.seyfarth.com:443/publications/mhl091318 Thu, 13 Sep 2018 00:00:00 -0400 <p> Mark Lies, Benjamin Briggs and Adam Young&#39;s blog post was republished September 13th in Material Handling &amp; Logistics Magazine, &quot;Disaster Preparedness, Recovery and Employee Safety During Hurricane Season.&quot; You can read the <a href="https://www.mhlnews.com/facilities-management/disaster-preparedness-recovery-and-employee-safety-during-hurricane-season">full article here</a>.</p> https://www.seyfarth.com:443/publications/WSE091318 Workplace Hazards and Pregnancy – What’s an Employer to Do? https://www.seyfarth.com:443/publications/WSE091318 Thu, 13 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers must evaluate their safety protections for pregnant women and engage in the interactive process with employees to find reasonable accommodations.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/workplace-hazards-and-pregnancy-whats-an-employer-to-do/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL091318 Workplace Hazards and Pregnancy – What’s an Employer to Do? https://www.seyfarth.com:443/publications/EL091318 Thu, 13 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers must evaluate their safety protections for pregnant women and engage in the interactive process with employees to find reasonable accommodations.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/09/workplace-hazards-and-pregnancy-whats-an-employer-to-do/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT091318 The Week in Weed: September 14, 2018 https://www.seyfarth.com:443/publications/TBT091318 Thu, 13 Sep 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/09/the-week-in-weed-september-14-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA091318 Senators Send AG Sessions Letter Seeking Clarity on Website Accessibility Under ADA https://www.seyfarth.com:443/publications/ADA091318 Thu, 13 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Not long after a similar Congressional appeal, Senators sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits plaguing businesses.<br /> <br /> <a href="https://www.adatitleiii.com/2018/09/senators-send-ag-sessions-letter-seeking-clarity-on-website-accessibility-under-ada/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA091318-LE National Labor Relations Board Proposed New Joint-Employer Rule https://www.seyfarth.com:443/publications/MA091318-LE Thu, 13 Sep 2018 00:00:00 -0400 <div> <p> <em><strong>Seyfarth Synopsis</strong>: The National Labor Relations Board (NLRB or Board) announced today that it will publish a Notice of Proposed Rulemaking tomorrow in the Federal Register regarding its standard for assessing whether a joint-employer relationship exists</em>.&nbsp; &nbsp;&nbsp;</p> <p> Under the NLRB&rsquo;s joint-employer doctrine, the Board analyzes whether two separate business entities (<em>e.g.</em>, service provider and client, franchisor and franchisee) share sufficient control over key employment terms such that both enterprises may have joint collective bargaining obligations, or may be jointly liable for certain unfair labor practices.&nbsp;&nbsp; The reach of the NLRB&rsquo;s joint-employer doctrine determines whether a business relationship intended by the parties that only one of them is to be an employer (<em>i.e.</em>, an independent contractor relationship) will be recognized as such under the National Labor Relations Act.&nbsp;</p> <p> In August 2015, in a 3-2 decision, the NLRB overruled 30 years of its precedent to dramatically expand its joint-employer standard.&nbsp; (<em>Browning-Ferris Industries of California, Inc.</em>, 362 NLRB No. 186 (2015)) (&ldquo;<em>BFI</em>&rdquo;).&nbsp;&nbsp; In <em>BFI</em>, the Board majority held that it no longer would require proof that a putative joint employer has exercised any &ldquo;direct and immediate&rdquo; control over the essential working conditions of another company&rsquo;s workers.&nbsp;&nbsp; Under the Board&rsquo;s <em>BFI </em>standard, a company could be deemed a joint-employer even if its &ldquo;control&rdquo; over the essential working conditions of another business&rsquo;s employees was indirect, limited and routine, or contractually reserved but never exercised.</p> <p> The NLRB&rsquo;s <em>BFI</em> decision currently is on appeal to the United States Court of Appeals for the District of Columbia Circuit. Seyfarth Shaw represents the appellant, Browning-Ferris Industries of California, Inc., in that case.</p> <p> Under the NLRB&rsquo;s new proposed rule -- set forth below with accompanying examples -- an employer may be found to be a joint-employer of another employer&rsquo;s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority&nbsp; no longer would be sufficient to establish a joint-employer relationship.</p> <p> In announcing the new proposed joint-employer standard, NLRB Chairman John Ring was joined by Board Members Marvin Kaplan, and William Emanuel. Board Member Lauren McFerran dissented from the proposed rule.&nbsp; Employers and others who are interested in submitting comments to the Board regarding the proposed rule are being provided 60 days to do so.&nbsp; If you potentially would like to submit a comment or have one drafted and submitted on your behalf, please do not hesitate to contact your Seyfarth Shaw attorney.</p> <p> <u><strong><em>Proposed Rule and Examples</em></strong></u></p> <p> <strong>&sect; 103.40: Joint employers</strong></p> <p> An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer&rsquo;s employees only if the two employers share or codetermine the employees&rsquo; essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees&rsquo; essential terms and conditions of employment in a manner that is not limited and routine.</p> <p> EXAMPLE 1 <em>to &sect; 103.40</em>. Company A supplies labor to Company B. The business contract between Company A and Company B is a &ldquo;cost plus&rdquo; arrangement that establishes a maximum reimbursable labor expense while leaving Company A free to set the wages and benefits of its employees as it sees fit. Company B does not possess and has not exercised direct and immediate control over the employees&rsquo; wage rates and benefits.</p> <p> EXAMPLE <em>2 to &sect; 103.40</em>. Company A supplies labor to Company B. The business contract between Company A and Company B establishes the wage rate that Company A must pay to its employees, leaving A without discretion to depart from the contractual rate. Company B has possessed and exercised direct and immediate control over the employees&rsquo; wage rates.</p> <p> EXAMPLE <em>3 to &sect; 103.40</em>. Company A supplies line workers and first-line supervisors to Company B at B&rsquo;s manufacturing plant. On-site managers employed by Company B regularly complain to A&rsquo;s supervisors about defective products coming off the assembly line. In response to those complaints and to remedy the deficiencies, Company A&rsquo;s supervisors decide to reassign employees and switch the order in which several tasks are performed. Company B has not exercised direct and immediate control over Company A&rsquo;s lineworkers&rsquo; essential terms and conditions of employment.</p> <p> EXAMPLE <em>4 to &sect; 103.40</em>. Company A supplies line workers and first-line supervisors to Company B at B&rsquo;s manufacturing plant. Company B also employs supervisors on site who regularly require the Company A supervisors to relay detailed supervisory instructions regarding how employees are to perform their work. As required, Company A supervisors relay those instructions to the line workers. Company B possesses and exercises direct and immediate control over Company A&rsquo;s line workers. The fact that Company B conveys its supervisory commands through Company A&rsquo;s supervisors rather than directly to Company A&rsquo;s line workers fails to negate the direct and immediate supervisory control.</p> <p> EXAMPLE <em>5 to &sect; 103.40</em>. Under the terms of a franchise agreement, Franchisor requires Franchisee to operate Franchisee&rsquo;s store between the hours of 6:00 a.m. and 11:00 p.m. Franchisor does not participate in individual scheduling assignments or preclude Franchisee from selecting shift durations. Franchisor has not exercised direct and immediate control over essential terms and conditions of employment of Franchisee&rsquo;s employees.</p> <p> EXAMPLE <em>6 to &sect; 103.40</em>. Under the terms of a franchise agreement, Franchisor and Franchisee agree to the particular health insurance plan and 401(k) plan that the Franchisee must make available to its workers. Franchisor has exercised direct and immediate control over essential employment terms and conditions of Franchisee&rsquo;s employees.</p> <p> EXAMPLE <em>7 to &sect; 103.40</em>. Temporary Staffing Agency supplies 8 nurses to Hospital to cover during temporary shortfall in staffing. Over time, Hospital hires other nurses as its own permanent employees. Each time Hospital hires its own permanent employee, it correspondingly requests fewer Agency-supplied temporary nurses. Hospital has not exercised direct and immediate control over temporary nurses&rsquo; essential terms and conditions of employment.</p> <p> EXAMPLE <em>8 to &sect; 103.40</em>. Temporary Staffing Agency supplies 8 nurses to Hospital to cover for temporary shortfall in staffing. Hospital manager reviewed resumes submitted by 12 candidates identified by Agency, participated in interviews of those candidates, and together with Agency manager selected for hire the best 8 candidates based on their experience and skills. Hospital has exercised direct and immediate control over temporary nurses&rsquo; essential terms and conditions of employment.</p> </div> <div> <p> EXAMPLE <em>9 to &sect; 103.40</em>. Manufacturing Company contracts with Independent Trucking Company (&ldquo;ITC&rdquo;) to haul products from its assembly plants to distribution facilities. Manufacturing Company is the only customer of ITC. Unionized drivers&mdash;who are employees of ITC&mdash;seek increased wages during collective bargaining with ITC. In response, ITC asserts that it is unable to increase drivers&rsquo; wages based on its current contract with Manufacturing Company. Manufacturing Company refuses ITC&rsquo;s request to increase its contract payments. Manufacturing Company has not exercised direct and immediate control over the drivers&rsquo; terms and conditions of employment.</p> <p> EXAMPLE <em>10 to &sect; 103.40</em>. Business contract between Company and a Contractor reserves a right to Company to discipline the Contractor&rsquo;s employees for misconduct or poor performance. Company has never actually exercised its authority under this provision. Company has not exercised direct and immediate control over the Contractor&rsquo;s employees&rsquo; terms and conditions of employment.</p> <p> EXAMPLE <em>11 to &sect; 103.40</em>. Business contract between Company and Contractor reserves a right to Company to discipline the Contractor&rsquo;s employees for misconduct or poor performance. The business contract also permits either party to terminate the business contract at any time without cause. Company has never directly disciplined Contractor&rsquo;s employees. However, Company has with some frequency informed Contractor that particular employees have engaged in misconduct or performed poorly while suggesting that a prudent employer would certainly discipline those employees and remarking upon its rights under the business contract. The record indicates that, but for Company&rsquo;s input, Contractor would not have imposed discipline or would have imposed lesser discipline. Company has exercised direct and immediate control over Contractor&rsquo;s employees&rsquo; essential terms and conditions.</p> </div> <p> EXAMPLE <em>12 to &sect; 103.40</em>. Business contract between Company and Contractor reserves a right to Company to discipline Contractor&rsquo;s employees for misconduct or poor performance. User has not exercised this authority with the following exception. Contractor&rsquo;s employee engages in serious misconduct on Company&rsquo;s property, committing severe sexual harassment of a coworker. Company informs Contractor that offending employee will no longer be permitted on its premises. Company has not exercised direct and immediate control over offending employee&rsquo;s terms and conditions of employment in a manner that is not limited and routine.</p> https://www.seyfarth.com:443/publications/CDL091218 EU Continues Focus on Privacy and Cybersecurity Through New Proposed Regulation https://www.seyfarth.com:443/publications/CDL091218 Wed, 12 Sep 2018 00:00:00 -0400 <p> This morning, the European Commission released a Proposal for a Regulation addressing the EU&rsquo;s cybersecurity industry as part of its next step towards a Digital Single Market, which is the EU&rsquo;s strategy to ensure fair competition, consumer and data protection, and removal of copyright and geo-blocking issues for individuals participating in online activities and accessing online content. The Regulation would establish the European Cybersecurity Industrial, Technology and Research Competence Centre and the Network of National Coordination Centres in order to &ldquo;equip Europe with the right tools to deal with an ever-changing cyber threat.&rdquo; See their Fact Sheet here. The EU has various initiatives in place to address today&rsquo;s current cyber threats, as well as the deterrence of future attacks. Specifically, it is working with member states to improve cybersecurity initiatives, EU-level cooperation, and risk prevention, and plans to establish an EU-wide certification framework to ensure products and services are cyber-secure. Today&rsquo;s proposal carries these initiatives further by suggesting the creation of a Network of Competence Centres and a European Cybersecurity Industrial, Technology and Research Competence Centre &ldquo;to develop and roll out the tools and technology needed to keep up with an ever-changing threat.&rdquo; See Fact Sheet. The Commission is hoping that the creation of this Network will allow the many existing cybersecurity competence centres in the EU to pool and share information and expertise, help deploy EU cybersecurity products and solutions, and facilitate cooperation between industries and communities. The Network will unite existing member state centres and allow them to co-invest to drive research and innovation, and allow for additional investment and funding to improve the EU&rsquo;s digital economy, and the Centre will aid in facilitating the work of the Network.<br /> <br /> <a href="https://www.carpedatumlaw.com/2018/09/eu-continues-focus-privacy-cyber-security-new-proposed-regulation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT091218 Federal Judge Rules that Employer Violated Connecticut Law by Refusing to Hire Medical Marijuana User https://www.seyfarth.com:443/publications/TBT091218 Wed, 12 Sep 2018 00:00:00 -0400 <p> On September 5, 2018, a federal district court in Connecticut granted summary judgment to a job applicant after an employer refused to hire her because she tested positive for marijuana in a pre-employment drug test. The decision, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing &amp; Rehab. Ctr., should serve as a reminder to employers operating in states with medical marijuana laws to evaluate their policies and practices concerning employee use of marijuana outside the workplace.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/09/federal-judge-rules-that-employer-violated-connecticut-law-by-refusing-to-hire-medical-marijuana-user/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM091218-LE Stricter Regulations for Consumer Credit Reporting Agencies Compiling Information on New York Consumers https://www.seyfarth.com:443/publications/OMM091218-LE Wed, 12 Sep 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>: The New York State Department of Financial Services (&ldquo;DFS&rdquo;) has promulgated stricter regulations for consumer credit reporting agencies (&ldquo;CCRAs&rdquo;) compiling information on New York consumers, including, but not limited to, registering with the Superintendent of DFS by September 15, 2018.</p> <p> <u><strong>Registration Requirements for CCRAs</strong></u></p> <p> DFS has issued <a href="https://www.dfs.ny.gov/legal/regulations/adoptions/dfsrf201txt.pdf">regulations</a> requiring, among other things, that all &ldquo;consumer credit reporting agencies&rdquo; (or &ldquo;CCRAs&rdquo;) that reported on 1,000 or more New York consumers in any twelve month period between June 1, 2018 and September 1, 2018 to register with the DFS Superintendent <strong><em>on or before September 15, 2018</em></strong>. CCRAs are defined as &ldquo;a consumer reporting agency that regularly engages in the practice of assembling or evaluating and maintaining, for the purposes of furnishing consumer credit reports to third parties bearing on a consumer&rsquo;s credit worthiness, credit standing, or credit capacity, and credit account information from persons who furnish that information regularly and in the ordinary course of business.&rdquo; According to DFS, the underlying reasons for the new regulations include the failure of CCRAs to safeguard and maintain accurate consumer data and accurately investigate consumer disputes of alleged inaccuracies.</p> <p> <u><strong>What is a CCRA?: Determining Whether Registration is Required</strong></u></p> <p> The new regulations only apply to CCRAs, which are defined as:</p> <p> <strong>a consumer reporting agency that regularly engages in the practice of assembling or evaluating and maintaining, for the purpose of furnishing consumer credit reports to third parties bearing on a consumer&#39;s credit worthiness, credit standing, or credit capacity, and credit account information from persons who furnish that information regularly and in the ordinary course of business.</strong></p> <p> The definition of CCRA incorporates the definition of &quot;consumer reporting agency,&rdquo; which is defined separately as:</p> <p> <strong>any person who, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or <em>other information</em> on consumers for the purpose of furnishing consumer reports to third parties.</strong></p> <p> Under these definitions, and because this definition is similar to the definition of a consumer reporting agency as defined by the Fair Credit Reporting Act, background screeners are likely to be deemed &ldquo;consumer reporting agencies.&rdquo;</p> <p> Whether a consumer reporting agency qualifies as a CCRA who is required to register under the regulations, however, will depend on a few factors:</p> <p> 1. Do the CRA&rsquo;s reports include information <em>&ldquo;bearing on a consumer&rsquo;s credit worthiness, credit standing, or credit capacity&rdquo;</em>? The registration requirement does not apply to providers of reports that only contain criminal or non-credit information.</p> <p> 2. If the CRA&rsquo;s reports contain information <em>&ldquo;bearing on a consumer&rsquo;s credit worthiness, credit standing, or credit capacity,&rdquo; </em>is that information assembled, evaluated <u>and</u> maintained? The regulations only apply to those consumer reporting agencies that regularly engage in the practice of assembling or evaluating, <em>and</em> &ldquo;maintaining&rdquo; credit information for the purposes of furnishing consumer reports.</p> <p> 3. If the CRA&rsquo;s reports contain information <em>&ldquo;bearing on a consumer&rsquo;s credit worthiness, credit standing, or credit capacity,&rdquo; </em>is that information <em>&ldquo;credit account information from persons who furnish that information regularly and in the ordinary course of business&rdquo;</em>? While the regulation is unclear, it suggests that it would require registration for CRAs who maintain credit account information from furnishers regularly in the ordinary course of business.</p> <p> <u><strong>Revocation and Suspension of a Registration</strong></u></p> <p> DFS may refuse to renew, revoke, or may suspend for a period, a CCRA&rsquo;s registration if the DFS Superintendent finds that the applicant or any member, principal, officer or director of the applicant, has, among other things:</p> <p> &bull; Violated any insurance, financial service, or banking laws or violated any regulation, subpoena or order of the DFS Superintendent or of another state&rsquo;s insurance or banking commissioner or of any other state or federal agency with authority to regulate CCRAs, or has violated any law in the course of his or her dealings in such capacity;</p> <p> &bull; Provided materially incorrect, materially misleading, materially incomplete or materially untrue information in the registration application;</p> <p> &bull; Failed to comply with the requirements of the regulation, including but not limited to, the cybersecurity regulation (discussed in more detail below);</p> <p> &bull; Used fraudulent, coercive or dishonest practices;</p> <p> &bull; Improperly withheld, misappropriated or converted any monies or properties received in this course of business in New York or elsewhere;</p> <p> &bull; Admitted or been found to have committed any unfair trade practice or fraud; or</p> <p> &bull; Had a CCRA registration, or its equivalent, denied, suspended or revoked in any other state, province, district or territory.</p> <p> Before refusing to renew the registration of any CCRA, the DFS Superintendent shall give notice to the CCRA and shall hold, or cause to be held, a hearing not less than 15 days after giving notice to the CCRA.</p> <p> CCRAs are subject to examinations by DFS as often as the DFS Superintendent determines is necessary, and prohibits agencies from the following, unless preempted by federal law:</p> <p> &bull; Directly or indirectly employing any scheme, device or artifice to defraud or mislead a consumer;</p> <p> &bull; Engaging in any unfair, deceptive or predatory act or practice toward any consumer;</p> <p> &bull; Misrepresenting or omitting any material information in connection with the assembly, evaluation, or maintenance of a credit report for a New York consumer;</p> <p> &bull; Engaging in any unfair, deceptive, or abusive act or practice in violation of the Dodd-Frank Wall Street Reform and Consumer Protection Act;</p> <p> &bull; Failing to comply with the provisions of federal law relating to the accuracy of the information in any consumer report relating to a New York consumer;</p> <p> &bull; Refusing to communicate with an authorized representative of a New York consumer who provides a written authorization signed by the consumer, provided that the CCRA may adopt procedures reasonably related to verifying that the representative is in fact authorized to act on behalf of the consumer, and provided further that the authorized representative is not a credit repair organization, or associated with a credit repair organization;</p> <p> &bull; Making any false statement or making any omission of a material fact in connection with any information or reports filed with a governmental agency or in connection with any investigation conducted by the DFS Superintendent or another governmental agency.</p> <p> <u><strong>Cybersecurity Regulation</strong></u></p> <p> Additionally, every CCRA must comply with DFS&rsquo;s <a href="https://www.dfs.ny.gov/legal/regulations/adoptions/dfsrf500txt.pdf">cybersecurity regulation</a>, beginning on November 1, 2018 (pursuant to the time table included in the final regulation, which runs through December 31, 2019) and require:</p> <p> &bull; banks, insurance companies, and other financial services institutions regulated by DFS to have a cybersecurity program designed to protect consumers&rsquo; private data;</p> <p> &bull; a written policy or policies that are approved by the board or a senior officer; and</p> <p> &bull; a Chief Information Security Officer to help protect data and systems; and controls and plans in place to help ensure the safety and soundness of New York&#39;s financial services industry.</p> <p> DFS&rsquo;s cybersecurity regulation also requires the protection of data from third-party vendors and the filing with DFS of an annual certification of compliance.</p> <p> <u><strong>CCRA Registration With DFS</strong></u></p> <p> DFS has developed an online registration form that is available via its <a href="https://myportal.dfs.ny.gov/">secure portal</a>, requiring CCRAs to establish a portal account and request access to the registration form via the &ldquo;Ask for Apps&rdquo; section of the portal. Once DFS has approved the request for access, CCRAs can return to the portal homepage to access and complete the registration form. The form will require CCRAs to provide information such as the companies&rsquo; name, address, executive officers, and certificate of incorporation or similar document, and require companies to disclose information concerning their past conduct. Additional instructions will be provided as part of the online registration process.</p> <p> Thereafter, on or before July first of each year (beginning in 2019), every registered CCRA shall report to the DFS Superintendent information as may be requested by the DFS Superintendent. The DFS Superintendent also may require the filing of quarterly or other statements, which shall be in such form and contain such matters as the DFS Superintendent shall prescribe. All such information shall be deemed confidential and not subject to disclosure, unless determined otherwise by the DFS Superintendent.</p> https://www.seyfarth.com:443/publications/MA091218-LE If Pain, Yes Gain—Part 52: Michigan Legislature Adopts Earned Sick Time Initiative https://www.seyfarth.com:443/publications/MA091218-LE Wed, 12 Sep 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>Last week, the Michigan Senate and House of Representatives voted to approve a paid sick leave ballot initiative requiring employers to provide employees with earned sick time for certain covered reasons. The legislature&rsquo;s action not only makes Michigan the first state in the Midwest to pass a statewide paid sick leave law, but it also prevents the sick time initiative from appearing on the November 2018 ballot.</em></p> <p> On September 5, 2018, the Michigan Senate and House of Representatives voted to approve the Time to Care ballot initiative requiring employers to provide employees with earned sick time for certain covered reasons. &nbsp;If the legislature had failed to adopt the initiative, which can be referred to as the Michigan Earned Sick Time Act (&ldquo;MI ESTA&rdquo; or the &ldquo;Act&rdquo;), it would have appeared on the state&rsquo;s ballot in the November 6, 2018 general election.<a href="#_ftn1" name="_ftnref1" title="">[1]</a> &nbsp;By avoiding the November ballot and the possibility of the initiative passing by public vote, the Michigan legislature reserved the right to amend the initiative with a simple majority vote as opposed to a three-fourths (i.e., 75%) supermajority vote of both houses.</p> <p> There is a decent, if not strong, chance that the Michigan legislature will use this procedural avenue to amend the Act before it goes into effect, which is expected to occur on or about April 1, 2019.&nbsp; If and when the adopted initiative goes into effect, Michigan would become the eleventh state in the country with a statewide paid sick leave mandate.<a href="#_ftn2" name="_ftnref2" title="">[2]</a> &nbsp;Whether the Act goes into effect as is or it undergoes a makeover in the coming months, Michigan employers should prepare for some form of sick time bug to begin in 2019.</p> <p> Here are the highlights of the current MI ESTA:</p> <p> The Act defines employer and employee very broadly, only excluding the United States government and its employees. Under the Act, employees are entitled to accrue earned sick time at the rate of one hour of sick time for every 30 hours worked.&nbsp; As currently worded, the Act does <u>not</u> contain any express cap on how much sick time employees can accrue. However, the Act does provide caps on the amount of earned sick time employees can use in a year. The specific annual usage cap varies depending on the size of the employer.&nbsp;</p> <p> Employees of &ldquo;small employers,&rdquo; defined as employers with fewer than 10 employees, may use up to 40 hours of <u>paid</u> earned sick time and, if the employee accrues more than 40 hours of earned sick time in the calendar year, up to an additional 32 hours of <u>unpaid</u> earned sick time per year.&nbsp; Such employers must permit their employees to use paid earned sick time before unpaid earned sick time.&nbsp; All other employers, which the Act states are those who maintain 10 or more employees on their payroll during at least 20 calendar workweeks in either the current or preceding calendar year, must permit employees to use up to 72 hours of <u>paid</u> earned sick time per year.&nbsp;</p> <p> Employees can carry over accrued, unused earned sick time from year to year. However, regardless of carryover balances, employers can enforce the above annual usage thresholds.</p> <p> Employees must be permitted to use available earned sick time for the following reasons:</p> <ul> <li> The employee&rsquo;s or the covered family member&rsquo;s mental or physical illness, injury, or health condition; medical diagnosis, care, or treatment of the employee&rsquo;s or covered family member&rsquo;s mental or physical illness, injury, or health condition; or preventative medical care for the employee or covered family member;</li> <li> Certain absences where the employee or covered family member is a victim of domestic violence or sexual assault;</li> <li> Meetings at the employee&rsquo;s child&rsquo;s school or place of care related to the child&rsquo;s health or disability, or the effects of domestic violence or sexual assault on the child; or</li> <li> Absences due to certain public health emergencies.</li> </ul> <p> In addition to a 72-hour annual usage cap and current apparent prohibitions on employers from setting any cap on earned sick time accrual and carryover, other substantive aspects of the MI ESTA that could come under scrutiny in the coming months include, but are not limited to, the following:</p> <ul> <li> <strong>Definition of &ldquo;Small Business&rdquo;:</strong> As noted above, when determining how much earned sick time an employer must allow employees to use in a benefit year, the Act defines &ldquo;small business&rdquo; as a business that has less than 10 individuals working for compensation in a given week. The Act expressly states that to determine an employer&rsquo;s size, all individuals performing work for compensation on a full-time, part-time, or temporary basis must be counted.</li> <li> <strong>Covered Family Members:</strong> The Act defines &ldquo;family member&rdquo; to include not only an employee&rsquo;s child, parent, spouse, domestic partner, grandparent, grandchild and sibling, but also &ldquo;any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.&rdquo;<a href="#_ftn3" name="_ftnref3" title="">[3]</a></li> <li> <strong>Employee Notice to the Employer:</strong> For foreseeable sick time absences, employers cannot require that employees provide more than seven days&rsquo; advance notice. For unforeseeable sick time absences, employers can only require that employees provide notice &ldquo;as soon as practicable.&rdquo;</li> <li> <strong>Increments of Use:</strong> Employers must allow employees to use available earned sick time in the smaller of hourly increments or the smallest increment that the employer&rsquo;s payroll system uses to account for absences or use of other time.<a href="#_ftn4" name="_ftnref4" title="">[4]</a></li> <li> <strong>Documentation:</strong> An employer must wait for an employee to be absent for more than three consecutive days before it can require the employee to provide reasonable documentation justifying that earned sick time was used for a proper reason. In addition and notably, if an employer chooses to require documentation for earned sick time, the employer is responsible for paying all out-of-pocket expenses the employee incurs in obtaining the documentation.</li> <li> <strong>Notice and Posting:</strong> Employers must both <strong>(1) </strong>provide notice of certain provisions under the Act to employees by the later of April 1, 2019 or their date of hire, and <strong>(2)</strong> display a poster regarding certain provisions under the Act in a conspicuous place in the workplace that is accessible to employees.</li> <li> <strong>Statute of Limitations and Private Right of Action:</strong> An employee who believes an employer has violated the Act may file a civil action against the employer at any time within three years after the violation or the date when the employee knew of the violation. Filing a claim with the Michigan Department of Licensing and Regulatory Affairs is neither a prerequisite nor a bar to bringing a civil action.</li> </ul> <p> Michigan employers should stay tuned for possible and perhaps even probable amendments to the MI ESTA in the coming months as they prepare for the Act&rsquo;s likely effective date on or around April 1, 2019.&nbsp;</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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Also on September 5, the Michigan legislature voted and approved a ballot initiative to increase the state&rsquo;s minimum wage over the next several years.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The existing statewide paid sick leave laws include: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; (9) Rhode Island; and (10) New Jersey. <a href="https://www.seyfarth.com/publications/MA041318-LE">The New Jersey paid sick leave law</a> goes into effect on October 29, 2018. All other statewide paid sick leave laws are currently in effect.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> Many recent paid sick leave laws and ordinances, including those in Arizona, New Jersey, Chicago, Los Angeles, Austin, and New York City (<a href="https://www.seyfarth.com/publications/MA050718-LE">as amended earlier this year</a>), include a similar category of covered family member.</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> Certain paid sick leave laws and ordinances, including those in Arizona, Washington, Philadelphia and Seattle, impose a similar minimum increment of use standard.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/OMM091218-LE2 Federal Judge Rules that Employer Violated Connecticut Law by Refusing to Hire Medical Marijuana User https://www.seyfarth.com:443/publications/OMM091218-LE2 Wed, 12 Sep 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong></em>: <em>On September 5, 2018, a federal district court in Connecticut granted summary judgment to a job applicant after an employer refused to hire her because she tested positive for marijuana in a pre-employment drug test. The decision, </em>Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing &amp; Rehab. Ctr.<em>, should serve as a reminder to employers operating in states with medical marijuana laws to evaluate their policies and practices concerning employee use of marijuana outside the workplace.</em></p> <p> <strong>Background</strong></p> <p> The plaintiff claimed that her doctors recommended she use medical marijuana (specifically, a synthetic form of marijuana, Marinol) for her post-traumatic stress disorder (PTSD).</p> <p> The employer, which was a government contractor, extended to the plaintiff a job offer contingent on her passing a pre-employment drug test. The plaintiff notified the employer that she was a registered medical marijuana user who took Marinol, but only at night before bed so she would not be impaired at work. The employer withdrew the job offer after the plaintiff&rsquo;s pre-employment drug test revealed a positive result for THC, a chemical component of marijuana.</p> <p> The plaintiff sued, alleging the employer violated the Palliative Use of Marijuana Act (PUMA)&rsquo;s anti-discrimination provision, which states:</p> <p> [U]nless required by federal law or required to obtain funding: &hellip; No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person&rsquo;s or employee&rsquo;s status as a qualifying patient.</p> <p> <strong>The District Court Rejects the Employer&rsquo;s Preemption Arguments</strong></p> <p> In its first attempt to end the litigation, the employer moved to dismiss, primarily asserting plaintiff&rsquo;s PUMA claim was preempted by three federal statutes: the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA), and the Food, Drug, and Cosmetic Act (FDCA).</p> <p> On August 8, 2017, the federal district court denied the employer&rsquo;s motion and held that these laws do not preempt PUMA. The court also held that PUMA has an implied right of action under its employment anti-discrimination provisions. This decision marked the third time in 2017 that a court ruled in favor of a medical marijuana user, with separate decisions in <a href="https://www.seyfarth.com/publications/RD072517-LE">Rhode Island</a> and <a href="https://www.seyfarth.com/publications/MA071817-LE">Massachusetts</a>. These decisions stand in contrast to rulings from other courts--including courts in California, Colorado, Montana, New Mexico, and Oregon--ruling in favor of employers in cases involving employee or applicant use of marijuana.</p> <p> The parties then conducted discovery and filed cross motions for summary judgment.</p> <p> <strong>The District Court Grants the Plaintiff&rsquo;s Summary Judgment Motion</strong></p> <p> One year later, the court denied the employer&rsquo;s second request to dismiss the case, and instead<strong> </strong><u><strong>granted</strong></u> the plaintiff&rsquo;s motion for summary judgment.</p> <p> The employer argued, among other things, that as a federal contractor, it was allowed to make the employment decision because it is exempt from PUMA&rsquo;s anti-discrimination provision. The employer relied on PUMA&rsquo;s provision allowing employers to refuse to hire or employ state-qualified medical marijuana users if &ldquo;required by federal law or required to obtain funding.&rdquo; According to the employer, as a government contractor, it was required to comply with the federal Drug-Free Workplace Act (DFWA) which, the employer argued, makes it unlawful for an employer to allow employees to use illegal drugs. Marijuana remains a Schedule I drug under the CSA and, thus, its use violates federal law. The court disagreed, holding that the DFWA neither requires drug testing nor regulates an employee&rsquo;s off-duty cannabis use, &ldquo;much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law.&rdquo;</p> <p> The court also rejected the employer&rsquo;s argument that it did not &ldquo;discriminate&rdquo; against the plaintiff because it relied solely on her failed drug test rather than on her status as a medical marijuana user. To accept the employer&rsquo;s argument, according to the court, &ldquo;would render the statute&rsquo;s protection against PUMA-based discrimination a nullity, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.&rdquo; The court also found it important that PUMA allows an employer to discipline employees for on-duty use of cannabis. The court said that this statutory provision, &ldquo;by negative implication . . . makes clear that PUMA protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours.&rdquo;</p> <p> Notably, despite the ruling in favor of the plaintiff, the court held that she will not be entitled to her attorney&rsquo;s fees or punitive damages on the basis that PUMA doesn&rsquo;t expressly allow for this type of relief. What the Decision Means for Employers The decision is from one federal district court analyzing the medical marijuana law in Connecticut.</p> <p> <strong>What the Decision Means for Employers</strong></p> <p> The decision is from one federal district court analyzing the medical marijuana law in Connecticut. Thus, it is not binding on other courts and the employer may appeal the decision. Regardless, this is a developing area of the law and, thus, employers should consider reviewing their drug-related policies. More states are enacting medical marijuana laws and courts have issued employee-friendly decisions addressing existing laws, which makes it particularly important for employers to stay ahead of this evolving area of the law.</p> https://www.seyfarth.com:443/news/rechtinrew091218 Michael Rechtin quoted in Real Estate Weekly https://www.seyfarth.com:443/news/rechtinrew091218 Wed, 12 Sep 2018 00:00:00 -0400 <p> Michael Rechtin was quoted in a September 12 story from Real Estate Weekly, &quot;Hurricane Florence set to lob first big test at nation&rsquo;s data center capital.&quot; Rechtin said that, in an emergency, many data centers are third in line for fuel after hospitals and essential government agencies. You can read the <a href="http://rew-online.com/hurricane-florence-set-to-lob-first-big-test-at-nations-data-center-capital/">full article here</a>.</p> https://www.seyfarth.com:443/news/carleupp091118 Jay Carle interviewed on the Uncivil Procedure Podcast https://www.seyfarth.com:443/news/carleupp091118 Tue, 11 Sep 2018 00:00:00 -0400 <p> Jay Carle was interviewed September 11th on the Uncivil Procedure podcast, &quot;Proportionality.&quot; Carle discussed proportionality and semi-related topics. You can listen to the <a href="https://uncivilprocedure.simplecast.fm/002-proportionality">full interview here</a>.</p> https://www.seyfarth.com:443/publications/EL091118 Washington State Releases Guide on Pregnancy Accommodations https://www.seyfarth.com:443/publications/EL091118 Tue, 11 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Washington State Office of the Attorney General has recently published a Guide outlining pregnant employees&rsquo; civil rights under the Washington &ldquo;Healthy Starts Act,&rdquo; a law which became effective July 23, 2017.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/09/washington-state-releases-guide-on-pregnancy-accommodations/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/wexlerbloomberglaw091118 Howard Wexler authored a checklist in Bloomberg Law https://www.seyfarth.com:443/publications/wexlerbloomberglaw091118 Tue, 11 Sep 2018 00:00:00 -0400 <p> Howard Wexler authored a September 11 checklist in Bloomberg Law, &quot;Drafting an Effective Anti-Discrimination/Harassment Policy.&quot;</p> https://www.seyfarth.com:443/publications/WSE091118 The Rain is Coming: Disaster Preparedness, Recovery, and Employee Safety During Hurricane Season https://www.seyfarth.com:443/publications/WSE091118 Tue, 11 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: With Hurricane Florence bearing down on the East Coast, employers are looking at potentially huge liabilities, including employee injuries and fatalities, not to mention facility damage and rebuilding. Employers should have an Emergency Action Plan, and if they have one, they should follow it.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/emergency-planning/the-rain-is-coming-disaster-preparedness-recovery-and-employee-safety-during-hurricane-season/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS091118 Seyfarth Shaw Trade Secrets Attorneys Participating in The Sedona Conference Working Group 12 Inaugural Meeting 2018 https://www.seyfarth.com:443/publications/TS091118 Tue, 11 Sep 2018 00:00:00 -0400 <p> Seyfarth Partner and Trade Secrets, Computer Fraud &amp; Non-Compete Practice Group Co-Chair Robert Milligan is moderating the panel for &ldquo;The Employee Life Cycle Relating to Trade Secrets&rdquo; session on November 5 at The Sedona Conference Working Group 12 Inaugural Meeting 2018 in Los Angeles, California. &ldquo;The Employee Life Cycle Relating to Trade Secrets&rdquo; session will develop guidelines for new employers to avoid unintentionally receiving or benefiting from the trade secrets of another company and for employees to avoid unintentionally placing their employer&rsquo;s trade secret information at risk of misappropriation.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/09/articles/trade-secrets/seyfarth-shaw-trade-secrets-attorneys-participating-in-the-sedona-conference-working-group-12-inaugural-meeting-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS091118a Seyfarth Attorneys to Participate in AIPLA’s 2018 Annual Meeting https://www.seyfarth.com:443/publications/TS091118a Tue, 11 Sep 2018 00:00:00 -0400 <p> On October 25-&shy;27, 2018, Seyfarth attorneys will be attending the American Intellectual Property Law Association&rsquo;s (AIPLA) Annual Meeting in Washington, D.C.&mdash;this is one of the preeminent events for trade secret practitioners across the country. Boston partner Erik Weibust will formally take on the role of Vice Chair of the AIPLA&rsquo;s Trade Secrets Law Committee at the Annual Meeting, and Seyfarth&rsquo;s National Litigation Department Chair Katherine Perrelli is presenting &ldquo;Strategies for Enforcing Compliance with Trade Secret Injunctions, Restraining Orders, and Other Remedial Orders&rdquo; program on Friday, October 26th. Seyfarth partners Erik Weibust and Dawn Mertineit and associate Andrew Stark will also be in attendance.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/09/articles/trade-secrets/seyfarth-attorneys-to-participate-in-aiplas-2018-annual-meeting/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM091018-LE Taking the Temperature of Sick Leave Laws Around the Country: Accrual Caps https://www.seyfarth.com:443/publications/OMM091018-LE Mon, 10 Sep 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: As the country&rsquo;s paid sick leave epidemic continues to spread, we are committed to providing you periodic updates on the states and municipalities nationwide that have enacted laws and ordinances. See below for paid sick leave law accrual cap information, including accrual amounts and types of caps. Each listed location contains a paid sick leave law or ordinance that either is currently in effect or scheduled to go into effect in the coming months<sup>1</sup>.</em></p> <p> <img alt="" src="http://www.seyfarth.com/dir_docs/publications/PaidSickLeave_Infographic2.jpg" /></p> https://www.seyfarth.com:443/news/lazarep091018 Bart Lazar quoted in Editor & Publisher https://www.seyfarth.com:443/news/lazarep091018 Mon, 10 Sep 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a September 10 story from Editor &amp; Publisher, &quot;How Newspapers are Dealing with the EU&rsquo;s General Data Protection Regulations.&quot; Lazar said that the utopian in him asks why we can&rsquo;t have a global privacy standard that could be locally enforced, but that isn&rsquo;t going to happen. You can read the <a href="http://www.editorandpublisher.com/feature/how-newspapers-are-dealing-with-the-eus-general-data-protection-regulations/">full article here</a>.</p> https://www.seyfarth.com:443/news/lutkuswsj090918 Richard Lutkus quoted in the Wall Street Journal https://www.seyfarth.com:443/news/lutkuswsj090918 Sun, 09 Sep 2018 00:00:00 -0400 <p> Richard Lutkus was quoted in a September 9 story from the Wall Street Journal, &quot;At Stake in Lawsuit: What Can Bosses Access on Your Personal Devices?&quot; Lutkus said that although employers are typically not allowed to penetrate an employee&rsquo;s personal email account on a work device, there are ways for employers to see that data without engaging in hacking. You can read the <a href="https://www.wsj.com/articles/at-stake-in-lawsuit-what-can-bosses-access-on-your-personal-devices-1536498000">full article here</a>.</p> https://www.seyfarth.com:443/news/boutroscbc090918 Andrew Boutros interviewed on CBC News Network https://www.seyfarth.com:443/news/boutroscbc090918 Sun, 09 Sep 2018 00:00:00 -0400 <p> Andrew Boutros was interviewed September 9th on CBC News Network, &quot;The Realities of Invoking the 25th Amendment.&quot; Boutros discussed the NY Times anonymous op-ed. You can watch the <a href="https://www.cbc.ca/player/play/1316198979716">full interview here</a>.</p> https://www.seyfarth.com:443/news/bitarwth090718 Karen Bitar quoted in the Waco Tribune-Herald https://www.seyfarth.com:443/news/bitarwth090718 Fri, 07 Sep 2018 00:00:00 -0400 <p> Karen Bitar was quoted in a September 7 story from the Waco Tribune-Herald, &quot;Baylor legal fees skyrocket amid investigations, lawsuits related to sexual assault.&quot; Bitar said that investigations like that at Baylor give institutions insight into liabilities and defenses in potential forthcoming litigation. You can read the <a href="https://www.wacotrib.com/news/courts_and_trials/baylor-legal-fees-skyrocket-amid-investigations-lawsuits-related-to-sexual/article_68e04459-f2e9-5e90-a974-62de4d142a3a.html">full article here</a>.</p> https://www.seyfarth.com:443/publications/401k090718 Kathleen Cahill Slaught and Michelle Scannell's blog post was published in 401K Specialist https://www.seyfarth.com:443/publications/401k090718 Fri, 07 Sep 2018 00:00:00 -0400 <p> Kathleen Cahill Slaught and Michelle Scannell&#39;s blog post was published in a September 7 story from 401K Specialist, &quot;No Quick Exit for 401k Class Actions Over Proprietary Funds.&quot; You can read the <a href="https://401kspecialistmag.com/no-quick-exit-for-401k-class-actions-over-proprietary-funds/">full article here</a>.</p> https://www.seyfarth.com:443/publications/EL090718 Breakfast Briefing: Back to School, Back to Work! Latest Trends and Hot Issues with Hiring and Onboarding Employees https://www.seyfarth.com:443/publications/EL090718 Fri, 07 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Join us on Thursday, September 13th for breakfast! As parents and children gear up for the inevitable fall return to school (&ldquo;it&rsquo;s the most wonderful time of the year&hellip;.&rdquo;) we thought it also would be a good time to start a new chapter, and get back to our &ldquo;ABC&rdquo;s of hiring and onboarding.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/09/breakfast-briefing-back-to-school-back-to-work-latest-trends-and-hot-issues-with-hiring-and-onboarding-employees/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS090718 Now Available! 50 State Desktop Reference, 2018-2019 Edition https://www.seyfarth.com:443/publications/TS090718 Fri, 07 Sep 2018 00:00:00 -0400 <p> Seyfarth&rsquo;s Trade Secrets, Computer Fraud, and Non-Competes Practice Group is pleased to provide the 2018-2019 edition of our one-stop 50 State Desktop Reference, which surveys the most-asked questions related to the use of restrictive covenants and intellectual capital protection in all 50 states, including the recent non-compete legislation passed in Massachusetts this August. For the company executive, in-house counsel, or HR professional, we hope this guide will provide a starting point to answer your questions about protecting your company&rsquo;s most valuable and confidential assets.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/09/articles/noncompete-enforceability/now-available-50-state-desktop-reference-2018-2019-edition/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS090618 The Sharing of Trade Secrets with Others https://www.seyfarth.com:443/publications/TS090618 Thu, 06 Sep 2018 00:00:00 -0400 <p> As a special feature of our blog&mdash;guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Donal O&rsquo;Connell, Managing Director of Chawton Innovation Services Ltd.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/09/articles/trade-secrets/the-sharing-of-trade-secrets-with-others/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT090618 Cannabis Issues on the Agenda for the Ohio State Bar Association https://www.seyfarth.com:443/publications/TBT090618 Thu, 06 Sep 2018 00:00:00 -0400 <p> If you&rsquo;ll be at the OSBA Annual Midwest Labor and Employment Law Seminar on October 11, 2018 in Columbus, be sure to look for Christian Rowley and Jinouth Vasquez, who will be speaking on cannabis issues affecting employers and workplaces.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/09/cannabis-issues-on-the-agenda-for-the-ohio-state-bar-association/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT090618a The Week in Weed: September 7, 2018 https://www.seyfarth.com:443/publications/TBT090618a Thu, 06 Sep 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/09/the-week-in-weed-september-7-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH090518 Federal Contractor Minimum Wage to Increase https://www.seyfarth.com:443/publications/WH090518 Wed, 05 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employees on certain government contracts must be paid in accordance with the requirements of a 2014 Executive Order on Minimum Wage. Effective January 1, 2019, the minimum wage for covered workers is $10.60 per hour, with a minimum direct wage of $7.40 per hour for tipped employees.<br /> <br /> <a href="https://www.wagehourlitigation.com/executive-orders/federal-contractor-minimum-wage-to-increase-2/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM090518-LE Federal Contractor Minimum Wage to Increase https://www.seyfarth.com:443/publications/OMM090518-LE Wed, 05 Sep 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Employees on certain government contracts must be paid in accordance with the requirements of a 2014 Executive Order on Minimum Wage. Effective January 1, 2019, the minimum wage for covered workers is $10.60 per hour, with a minimum direct wage of $7.40 per hour for tipped employees</em>.</p> <p> In 2014, President Obama issued an Executive Order establishing a minimum wage for certain federal contractor employees, and requiring that the minimum wage be adjusted on an annual basis. That Executive Order continues to be in effect, and, in the September 4, 2018 Federal Register, the Department of Labor&rsquo;s Wage &amp; Hour Division <a href="https://www.federalregister.gov/documents/2018/09/04/2018-19166/establishing-a-minimum-wage-for-contractors-notice-of-rate-change-in-effect-as-of-january-1-2019">announced</a> that the wage rate will increase to $10.60 per hour. The minimum cash wage for covered tipped employees will increase to $7.40 per hour.</p> <p> Workers performing on or in connection with covered contracts must be paid these new rates beginning January 1, 2019. We discussed many of the applicable definitions and coverage issues in our <a href="https://www.wagehourlitigation.com/dol-compliancerule-making/minimum-wage-for-certain-federal-contractor-employees-final-rule-to-be-issued-on-october-7-2014/">prior coverage</a>.</p> https://www.seyfarth.com:443/publications/EL090518 Future Enterprise – Workplace Safety Compliance Comes to the Forefront for Expanding Healthcare Industry https://www.seyfarth.com:443/publications/EL090518 Wed, 05 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employment in healthcare occupations continues to outgrow all other industries, as the American population continues to age and nursing home and hospital services expand. Health care workers face a range of safety issues, such as ergonomics, blood borne pathogens, and workplace violence. The federal Occupational Safety and Health Administration is refocusing its enforcement efforts to target healthcare employers.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/09/future-enterprise-workplace-safety-compliance-comes-to-the-forefront-for-expanding-healthcare-industry/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE090518 Future Enterprise – Workplace Safety Compliance Comes to the Forefront for Expanding Healthcare Industry https://www.seyfarth.com:443/publications/WSE090518 Wed, 05 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employment in healthcare occupations continues to outgrow all other industries, as the American population continues to age and nursing home and hospital services expand. Health care workers face a range of safety issues, such as ergonomics, blood borne pathogens, and workplace violence. The federal Occupational Safety and Health Administration is refocusing its enforcement efforts to target healthcare employers.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/healthcare/future-enterprise-workplace-safety-compliance-comes-to-the-forefront-for-expanding-healthcare-industry/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP090418 California Legislative Update: Sexual Harassment, Other Bills Await Governor’s Signature https://www.seyfarth.com:443/publications/CP090418 Tue, 04 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: August 31 was the California Legislature&rsquo;s last day to send bills to Governor Brown for his approval or veto by his September 30 deadline. Chief among them are bills addressing sexual harassment.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/09/04/california-legislative-update-sexual-harassment-other-bills-await-governors-signature/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ERISA090418 No Quick Exit On 401(k) Class Action Alleging Imprudent Proprietary Fund Offerings https://www.seyfarth.com:443/publications/ERISA090418 Tue, 04 Sep 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A district court recently denied a motion to dismiss a 401(k) proprietary fund class action, continuing an overwhelming trend of allowing these cases to survive pleading challenges. On the bright side, however, the Eighth Circuit recently affirmed a dismissal of such a case, and the first of these cases to be tried resulted in a defense victory, which is on appeal with the First Circuit.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/09/04/no-quick-exit-on-401k-class-action-alleging-imprudent-proprietary-fund-offerings/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/rodriguezquartz090418 Leon Rodriguez quoted in Quartz https://www.seyfarth.com:443/news/rodriguezquartz090418 Tue, 04 Sep 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a September 4 story from Quartz, &quot;An Indian CEO is held for duping US visa authorities to bring in 200 foreigners.&quot; Rodriguez said that enforcement actions (like these) should be taken as evidence that existing audit and investigation mechanisms are adequately designed to identify the rare instances of fraud. He said that, on the other hand, they should not be taken as an indictment of the entire H-1B visa programme, which brings considerable benefit to US companies and to the US economy. You can read the <a href="https://qz.com/india/1377844/h-1b-visa-fraud-indian-ceo-accused-of-duping-us-immigration/">full article here</a>.</p> https://www.seyfarth.com:443/news/hendersonbe090418 Joshua Henderson quoted in Bloomberg Environment https://www.seyfarth.com:443/news/hendersonbe090418 Tue, 04 Sep 2018 00:00:00 -0400 <p> Joshua Henderson was quoted in a September 4 story from Bloomberg Environment, &quot;Steamroller Death Lands Charges for California Company, Owner.&quot; Henderson said that the construction industry usually accounts for the most on-site inspections and accident-related inspections by the California Division of Occupational Safety and Health, or Cal/OSHA, although only a fraction of those are investigated by the agency&rsquo;s Bureau of Investigation for referral.</p> https://www.seyfarth.com:443/news/shermanfww090118 Andrew Sherman quoted in Financier Worldwide https://www.seyfarth.com:443/news/shermanfww090118 Sat, 01 Sep 2018 00:00:00 -0400 <p> Andrew Sherman was quoted in a September feature story from Financier Worldwide, &quot;Cross-border M&amp;A: opportunities and challenges.&quot; Sherman said that the current cross-border M&amp;A landscape is robust, but with a few hints of caution. You can read the <a href="https://www.financierworldwide.com/cross-border-ma-opportunities-and-challenges#.W310neSWyUk">full article here</a>.</p> https://www.seyfarth.com:443/news/curtisbonzaehs083118 James Curtis and Kay Bonza's blog referenced in EHS Today https://www.seyfarth.com:443/news/curtisbonzaehs083118 Fri, 31 Aug 2018 00:00:00 -0400 <p> James Curtis and Kay Bonza&#39;s blog was referenced in EHS Today, &quot;NRCS Accused of Multiple Unsafe Practices and Lying to OSHA and EPA,&quot; on how Nebraska Railcar Cleaning Services and its executives were criminally charged after workers&rsquo; deaths. The Seyfarth lawyers point out that this indictment presents a good example of what not to do when dealing with OSHA and environmental agency inspectors. You can read the <a href="https://www.ehstoday.com/osha/nrcs-accused-multiple-unsafe-practices-and-lying-osha-and-epa">full article here</a>.</p> https://www.seyfarth.com:443/publications/WSE083118 Angelica Decision (Finally) Enhances OSHA’s Burden to Establish a Repeat Citation https://www.seyfarth.com:443/publications/WSE083118 Fri, 31 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: New Review Commission decision refines the definition of what OSHA must prove to establish a &ldquo;Repeat&rdquo; violation.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-litigation/angelica-decision-finally-enhances-oshas-burden-to-establish-a-repeat-citation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP083118 Happy Labor Day To All! https://www.seyfarth.com:443/publications/CP083118 Fri, 31 Aug 2018 00:00:00 -0400 <p> We took a break this week, to wrap up loose ends and gear up for Labor Day. So we did not draft an original blog post. But we did retrieve, from the archives, a quick history of why we celebrate this holiday to honor the American worker. Here it is, as fodder for your contemplation over the weekend: https://www.dol.gov/general/laborday/history<br /> <br /> <a href="https://www.calpeculiarities.com/2018/08/31/happy-labor-day-to-all/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM083118-LE Workplace Safety Comes to the Forefront for Expanding Healthcare Industry https://www.seyfarth.com:443/publications/OMM083118-LE Fri, 31 Aug 2018 00:00:00 -0400 <p> <strong>Seyfarth Synopsis: </strong><em>Employment in healthcare occupations continues to outgrow all other industries, as the American population continues to age and nursing home and hospital services expand. Healthcare workers face a range of safety issues, such as ergonomics, blood borne pathogens, and workplace violence. The federal Occupational Safety and Health Administration is refocusing its enforcement efforts to target healthcare employers.</em></p> <p> According to the <a href="https://www.bls.gov/oes/current/oes290000.htm">Bureau of Labor Statistics</a> (BLS), the Healthcare Practitioners and Technical Occupations (Major Group) currently employs over 8.5 million workers. BLS further states &ldquo;employment of healthcare occupations is projected to grow 18 percent from 2016 to 2026, <em>much faster than the average for all occupations</em>, adding about 2.4 million new jobs. Healthcare occupations are projected to add more jobs than any of the other occupational groups. This projected growth is mainly due to <em>an aging population, leading to greater demand for healthcare services</em>.&rdquo;</p> <p> The top categories of this increased employment are: General Medical and Surgical Hospitals, Offices of Physicians, Nursing Care Facilities (Skilled Nursing Facilities), Health and Personal Care Stores, and Outpatient Care Centers. Also included are Healthcare Social Workers and Home Health Aides. Many nurses and hospitals are unionized, which can lead to an increased push for government enforcement and involvement.</p> <p> Regulators have begun to target workplace violence in healthcare settings. California OSHA has led the regulatory wave by issuing new, onerous regulations that require employers to create a Workplace Violence Prevention Plan, train employees, and maintain a Violent Incident Log. Federal OSHA has yet to promulgate a new workplace violence in healthcare standard (see <a href="https://www.environmentalsafetyupdate.com/osha-compliance/proposed-rule-for-prevention-of-workplace-violence-in-healthcare-and-social-assistance-industries/">Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries</a>), but the Agency has targeted healthcare employers with General Duty Clause citations.</p> <p> For example, in <a href="https://www.oshrc.gov/assets/1/6/Integra_Health_Management,_Inc.,_Docket_No._13-1124.htm"><em>Secretary of Labor v. Integra Health Management, Inc</em></a>., OSHRC No. 13-1124 (June 22, 2015), Judge Phillips issued an opinion affirming a General Duty Clause citation to a home healthcare services employer which alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior. After complaining that the client made her feel uncomfortable, the employee was fatally stabbed by the client at his home. Judge Phillips determined that the employer&rsquo;s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee&rsquo;s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions. The case is illustrative of the increasingly close eye the Agency is placing on workplace violence, and the unique and challenging environment employees face in health care.</p> <p> Moreover, healthcare systems worldwide share health policy and regulatory goals for ensuring quality care and patient safety, mitigating fraud, cyber threats, and the challenge of data protection. Cybersecurity and data risk management continue to be a major concern. Additionally, challenges in the healthcare industry, such as staffing shortages will remain an issue.</p> <p> <strong>Further reading:</strong></p> <ul> <li> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/nothing-to-sneeze-at-evaluating-employee-safety-protections-in-the-healthcare-industry/">Nothing to Sneeze At: Evaluating Employee Safety Protections in the Healthcare Industry</a></li> <li> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/niosh-offers-free-training-program-to-help-employers-address-safety-risks-faced-by-home-healthcare-workers/">NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers</a></li> <li> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/osha-issues-strategies-and-tools-to-help-prevent-workplace-violence-in-the-healthcare-setting/">OSHA Issues &ldquo;Strategies and Tools&rdquo; to &ldquo;Help Prevent&rdquo; Workplace Violence in the Healthcare Setting</a></li> <li> <a href="https://www.environmentalsafetyupdate.com/investigationsinspections/osha-citation-in-death-of-healthcare-worker-killed/">Judge Affirms OSHA Citation in Death of Healthcare Worker Killed by Mentally Ill Client</a></li> <li> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/osha-updates-workplace-violence-guidance-for-protecting-healthcare-and-social-service-workers/">OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers</a></li> <li> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/healthcare-factsheet-on-msds/">Healthcare Industry Receives New Fact Sheet on Musculoskeletal Disorders in Nursing and Residential Care Workers</a></li> </ul> https://www.seyfarth.com:443/publications/EL083018 Illinois Law Suddenly Requires Paid Nursing Breaks https://www.seyfarth.com:443/publications/EL083018 Thu, 30 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Since 2001, Illinois has required that employers provide unpaid nursing or lactation breaks for working mothers. Effective last week, at least some of those breaks must now be paid.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/illinois-law-suddenly-requires-paid-nursing-breaks/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise083018 Workplace Safety Comes to the Forefront for Expanding Healthcare Industry https://www.seyfarth.com:443/publications/FutureEnterprise083018 Thu, 30 Aug 2018 00:00:00 -0400 <p> According to the Bureau of Labor Statistics (BLS), the Healthcare Practitioners and Technical Occupations (Major Group) currently employs over 8.5 million workers. BLS further states &ldquo;employment of healthcare occupations is projected to grow 18 percent from 2016 to 2026, much faster than the average for all occupations, adding about 2.4 million new jobs. Healthcare occupations are projected to add more jobs than any of the other occupational groups. This projected growth is mainly due to an aging population, leading to greater demand for healthcare services.&rdquo;<br /> <br /> <a href="https://www.futureenterprise.com/blog/2018/8/30/workplace-safety-comes-to-the-forefront-for-expanding-healthcare-industry">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT083018 The Week in Weed: August 31, 2018 https://www.seyfarth.com:443/publications/TBT083018 Thu, 30 Aug 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/08/the-week-in-weed-august-31-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE083018 Proposition 65: Sign of the Times—For Employers, What’s New is Old https://www.seyfarth.com:443/publications/WSE083018 Thu, 30 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: As of August 30, 2018, California businesses must provide the public with more information about dangerous chemicals present at the business location. Many California employers will comply with the new requirements through the Cal/OSHA-required workplace hazardous communication program. For occupational exposures that do not meet the thresholds for HazMat communications, posting new signs will meet the requirements.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/chemical-safety/proposition-65-sign-of-the-times-for-employers-whats-new-is-old/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/traversshrm083018 Maura Travers quoted in SHRM https://www.seyfarth.com:443/news/traversshrm083018 Thu, 30 Aug 2018 00:00:00 -0400 <p> Maura Travers was quoted in an August 30 story from SHRM, &quot;H-1B Premium Processing Suspended Until February 2019,&quot; on how the premium processing fee will increase to $1,410 Sept. 30. Travers said that the timing of this premium processing suspension extension and expansion coincides precisely with the enactment of a new USCIS policy memo also effective Sept. 11, in which USCIS may deny petitions for immigration benefits without first issuing a request for evidence or notice of intent to deny if the petition does not contain all required initial evidence to establish eligibility. You can read the <a href="https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/USCIS-H1B-Premium-Processing-Suspended-February-2019.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/whitmanlaw360083018 Robert Whitman quoted in Law360 https://www.seyfarth.com:443/news/whitmanlaw360083018 Thu, 30 Aug 2018 00:00:00 -0400 <p> Robert Whitman was quoted in an August 30 story from Law360, &quot;NY Sex Harass Guidance May Put Employers In Time Crunch.&quot; Whitman said that one aspect of the state&#39;s proposed requirements that could use clarification, if not correction, is the timing of the training.</p> https://www.seyfarth.com:443/news/kramerbna082918 Ronald Kramer quoted in Bloomberg BNA https://www.seyfarth.com:443/news/kramerbna082918 Wed, 29 Aug 2018 00:00:00 -0400 <p> Ronald Kramer was quoted in an August 29 story from Bloomberg BNA, &quot;Pot Purveyor Leads Charge to Unionize His Employees,&quot; on how a cannabis retailer led efforts to have his employees join a union in an unusual labor organizing drive in Washington. Kramer said that unionizing employees in the cannabis industry while federal law prohibits sales could still raise alarms for employers and their employees.</p> https://www.seyfarth.com:443/news/boutrosreuters082918 Andrew Boutros quoted in Reuters https://www.seyfarth.com:443/news/boutrosreuters082918 Wed, 29 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 29 story from Reuters, &quot;In latest White House exit, Trump to lose counsel McGahn,&quot; on how there has been speculation the job would go to Emmett Flood, a veteran Washington lawyer who joined the White House in May to help with the Russia probe. Boutros said that Trump may want to keep Flood focused exclusively on the Russia probe rather than expanding his role. You can read the <a href="https://www.reuters.com/article/us-usa-trump-mcgahn/in-latest-white-house-exit-trump-to-lose-counsel-mcgahn-idUSKCN1LE1TT">full article here</a>.</p> https://www.seyfarth.com:443/publications/WC082918 Bracing For The Deluge Of EEOC Lawsuits https://www.seyfarth.com:443/publications/WC082918 Wed, 29 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: As we near the end of the U.S. Equal Employment Opportunity Commission&rsquo;s (&ldquo;EEOC&rdquo;) fiscal year in September 2018, employers and litigators have started to notice an uptick in the Commission&rsquo;s activity. Specifically, close observers have detected a rise in EEOC filings related to workplace harassment. In today&rsquo;s video, Partner Jerry Maatman of Seyfarth Shaw provides an overview of the EEOC&rsquo;s fiscal year to date, and forecasts what employers can expect to see from the Commission going forward.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/08/bracing-for-the-deluge-of-eeoc-lawsuits/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM082918-LE USCIS Extends and Expands H-1B Premium Processing Suspension https://www.seyfarth.com:443/publications/OMM082918-LE Wed, 29 Aug 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em>: </strong><em>Effective September 11, 2018, USCIS will suspend Premium Processing for all H-1B petitions filed at the Vermont and California Service Centers until February 19, 2019 (excluding filings by cap-exempt employers)</em></p> <p> USCIS&rsquo; Premium Processing service allows employers to request faster processing of certain employment-based petitions and applications by filing a Form I-907 and paying an extra USCIS filing fee of $1,225. &nbsp;If a petitioner elects to pay for Premium Processing, USCIS guarantees a response within 15 calendar days. &nbsp;Premium Processing is widely used by U.S. employers to accelerate processing of H-1B petitions.&nbsp; According to USCIS, current processing times for H-1B petitions under regular processing are 3-5 months.</p> <p> On March 20, 2018, (just before the April 2nd filing deadline), USCIS <a href="https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-fiscal-year-2019-h-1b-cap-petitions">announced</a> the suspension of Premium Processing for all H-1B petitions subject to the Fiscal Year (FY) 2019 cap. According to USCIS, the suspension was expected to last until September 10, 2018.</p> <p> On August 28, 2018, USCIS not only <a href="https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays">announced</a> the extension of its Premium Processing suspension for cap-subject H-1B petitions, the agency expanded the suspension to include the following H-1B petitions:</p> <ul> <li> Change of Employer petitions; and,</li> <li> Amendment petitions.</li> </ul> <p> The suspension will not apply to the following H-1B petitions:</p> <ul> <li> Petitions filed by cap-exempt employers or on behalf of beneficiaries who will be employed at a qualifying cap-exempt institution, entity, or organization; or,</li> <li> Extensions filed at the Nebraska Service Center for H-1B workers who continue to work for the same company and in the same position and location.</li> </ul> <p> The suspension does not apply to other nonimmigrant classifications otherwise eligible for Premium Processing. According to USCIS, the temporary suspension will help the agency reduce overall H-1B processing times by allowing the agency to process long-pending petitions and prioritize adjudication of time-sensitive cases.</p> <p> The timing of this Premium Processing suspension extension/expansion coincides precisely with the enactment of a new <a href="https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf">USCIS policy memo</a> also effective September 11, 2018, in which USCIS may deny petitions for immigration benefits without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if the petition does not contain &nbsp;all required initial evidence to establish eligibility. This policy revision marks a significant departure from USCIS&rsquo; standard practice but the agency has yet to provide specific guidance on the new filing standard.&nbsp;</p> <p> Employers and beneficiaries may wish to file Premium Processing requests for eligible petitions before September 11, 2018 to avoid delayed processing and a potential increased chance of denial. In particular, the Premium Processing suspension may adversely impact individuals currently benefitting from cap-gap employment as well as individuals nearing the 240-day mark beyond the expiration of an underlying extension petition. Seyfarth Shaw will continue to keep our clients informed on further developments.</p> https://www.seyfarth.com:443/publications/OMM082918-LE2 Illinois Law Suddenly Requires Paid Nursing Breaks https://www.seyfarth.com:443/publications/OMM082918-LE2 Wed, 29 Aug 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Since 2001, Illinois has required that employers provide unpaid nursing or lactation breaks for working mothers. Effective last week, at least some of those breaks must now be paid.</em></p> <p> On August 21, 2018, Governor Rauner signed a bill amending the Illinois Nursing Mothers in the Workplace Act. The amendment took effect immediately, and requires that Illinois employers provide <em>paid</em> breaks to mothers who breastfeed or express milk at work. The Act previously required that Illinois employers provide &ldquo;reasonable unpaid break time&rdquo; to nursing/expressing employees. It also said that breaks provided to nursing/expressing employees &ldquo;must, if possible, run concurrently with any break time already provided to the employee.&rdquo; &nbsp;As amended, nursing breaks &ldquo;may&rdquo; still run concurrently with other breaks. However, as to the &ldquo;reasonable&rdquo; number of additional breaks beyond those regularly provided to all employees, an employer &ldquo;may not reduce an employee&rsquo;s compensation for the time used for the purpose of expressing milk or nursing a baby.&rdquo; In short, nursing employees must now be paid for those extra breaks.</p> <p> To understand how this works, first determine what the law (or your lawful policy) already provides as regards breaks. The federal Fair Labor Standards Act doesn&rsquo;t require any rest or meal breaks, but mandates that employees be paid for short breaks ranging from between 5 and 20 minutes. It also says employers can provide an unpaid meal break of at least 30 minutes, so long as the employee is not required to perform any work during that time. Separately, Illinois law mandates that employees who work 7.5 continuous hours or more receive an unpaid meal break of at least 20 minutes.&nbsp; Thus, in order to comply with both federal and state law, many Illinois employers provide an unpaid meal break of at least 30 minutes. Under the Illinois Nursing Mothers Law as amended, &nbsp;nursing employees can still be required to use that <em>unpaid </em>meal break for nursing or expressing milk (along with any other breaks the employer chooses to provide employees generally). Also like before, nursing mothers are entitled to a &ldquo;reasonable&rdquo; number of additional nursing/expressing breaks. Unlike before, however, those extra breaks must now be paid.</p> <p> In addition, the amendment specifies that the reasonable &ndash; now paid &ndash; breaks requirement runs only for &ldquo;for one year after the child&rsquo;s birth.&rdquo; Previously, the Act did not limit the time during which working mothers were entitled to additional nursing breaks. Lastly, the original Act excused employers from providing additional break time for nursing/expressing employees &ldquo;if to do so would unduly disrupt the employer&rsquo;s operation.&rdquo;&nbsp; The amendment changed that affirmative defense language; now, in order to be to be excused from the additional paid breaks requirement, Illinois employers must establish &ldquo;undue hardship&rdquo;, a demanding standard borrowed from the Americans with Disabilities Act and the Illinois Human Rights Act. The amendment thus makes it harder for an employer to argue that business demands or other reasons should relieve it from compliance.</p> <p> Since the amendment is now in effect, Illinois employers must promptly review their current nursing/lactation policy and see if it complies with the recent amendment. If not, revise it as soon as possible. In the meantime, follow the new law. If a working new mother requests additional breaks for nursing, don&rsquo;t be afraid to discuss with her appropriate details regarding the number and frequency of those breaks. The Act, both before and as amended, envisions a joint, interactive determination of how many additional breaks are needed. And don&rsquo;t count on having an affirmative defense for not providing paid nursing breaks, especially if you are a large employer; that uphill climb got even steeper last week.</p> https://www.seyfarth.com:443/publications/vulauneynlj082918 Minh Vu and Kristina Launey authored an article in the National Law Journal https://www.seyfarth.com:443/publications/vulauneynlj082918 Wed, 29 Aug 2018 00:00:00 -0400 <p> Minh Vu and Kristina Launey authored an August 29 article in the National Law Journal, &quot;Disability Access Lawsuits Are Rising. How Do You Mitigate Risk?&quot; Website accessibility lawsuit filings are at an all-time high and, according to the projections, expected to keep climbing.</p> https://www.seyfarth.com:443/publications/EL082818 Company and its Executives/Owners Charged With Criminally Violating Worker Safety and Environmental Laws That Led to Workers’ Deaths https://www.seyfarth.com:443/publications/EL082818 Tue, 28 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A railcar cleaning company and its executive officers were recently charged in a 22-count indictment with conspiracy, violating worker safety standards resulting in worker deaths, violating the Resource Conservation and Recovery Act (RCRA), and for submitting false documents to a federal agency.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/company-and-its-executives-owners-charged-with-criminally-violating-worker-safety-and-environmental-laws-that-led-to-workers-deaths/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE082818 Company and its Executives/Owners Charged With Criminally Violating Worker Safety and Environmental Laws That Led to Workers’ Deaths https://www.seyfarth.com:443/publications/WSE082818 Tue, 28 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A railcar cleaning company and its executive officers were recently charged in a 22-count indictment with conspiracy, violating worker safety standards resulting in worker deaths, violating the Resource Conservation and Recovery Act (RCRA), and for submitting false documents to a federal agency.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/criminal-litigation/company-and-its-executives-owners-charged-with-criminally-violating-worker-safety-and-environmental-laws-that-led-to-workers-deaths/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/lorbernlj082818 Lawrence Lorber quoted in the National Law Journal https://www.seyfarth.com:443/news/lorbernlj082818 Tue, 28 Aug 2018 00:00:00 -0400 <p> Lawrence Lorber was quoted in an August 28 story from the National Law Journal, &quot;DOL&#39;s New Pay Guidance Is &#39;Optics Shift,&#39; but Maybe Not Much More,&quot; on the new guidance from the U.S. Labor Department on compensation practices. Lorber said that the main difference is that the previous guidance gave the OFCCP the authority to establish the pay analysis group, whereas the new directive said the agency will consider an employer&rsquo;s report on its compensation.</p> https://www.seyfarth.com:443/news/fowler082718 Seyfarth Welcomes New Chief Human Resources Officer https://www.seyfarth.com:443/news/fowler082718 Mon, 27 Aug 2018 00:00:00 -0400 <p> CHICAGO (August 27, 2018) -- Seyfarth Shaw LLP has recently welcomed Jennifer Fowler as the firm&rsquo;s new Chief Human Resources Officer. Based in Chicago, Fowler joins from Vedder Price where she served in the same role.</p> <p> With more than two decades of legal industry experience, Fowler was previously an HR leader at Morgan Lewis where she worked for 16 years.</p> <p> &ldquo;Jen is a proven leader who understands how to scale and align HR to meet the shifting demands of growing, global firms like ours,&rdquo; said Seyfarth chair and managing partner, Pete Miller. &ldquo;We&rsquo;re excited to have her join our leadership team.&rdquo;</p> <p> A veteran of law firm management, Fowler is also an member of the Society for Human Resources Management (SHRM). Before entering the legal industry, Jen received her bachelor&rsquo;s degree in business management from Rutgers University.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Communications, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></p> <p> Martin Grego, Senior Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> https://www.seyfarth.com:443/news/paparelliwsul082718 Angelo Paparelli profiled by Wayne State University Law https://www.seyfarth.com:443/news/paparelliwsul082718 Mon, 27 Aug 2018 00:00:00 -0400 <p> Angelo Paparelli was profiled in an August 27 story by Wayne State University Law, &quot;Gumption, resilience, courage.&quot; A 1976 alumnus of Wayne State University Law School, Paparelli is a partner with Seyfarth Shaw LLP and has a bicoastal practice in southern California and New York City. He is founder and past president of the Alliance of Business Immigration Lawyers, a worldwide coalition of leading immigration firms. You can read the <a href="https://law.wayne.edu/news/gumption-resilience-courage-immigration-attorney-angelo-paparelli-finds-inspiration-in-clients-31755">full profile here</a>.</p> https://www.seyfarth.com:443/news/weisswgn082718 Philippe Weiss interviewed on WGN Radio https://www.seyfarth.com:443/news/weisswgn082718 Mon, 27 Aug 2018 00:00:00 -0400 <p> Philippe Weiss was interviewed August 27th on WGN Radio, &quot;Wintrust Business Lunch 8/27/18: Privacy Laws in The Office.&quot; Philippe Weiss joined the program to explain how preventing certain privacy practices might actually be a negative business practice. You can listen to the full interview at minute 12:12 <a href="https://wgnradio.com/2018/08/27/wintrust-business-lunch-8-27-18-updating-the-insurance-industry-privacy-laws-in-the-office-social-media-paychecks/">here</a>.</p> https://www.seyfarth.com:443/publications/OMM082718-LE2 New York State Releases The Draft Model Anti-Sexual Harassment Policy, Training, and Complaint Form https://www.seyfarth.com:443/publications/OMM082718-LE2 Mon, 27 Aug 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong> In compliance with the New York State Anti-Sexual Harassment legislation passed earlier this year, the Office of Governor Andrew M. Cuomo has released drafts of the model sexual harassment policy, training and complaint form, as well as draft FAQs.&nbsp; The State is now seeking comments from the public on the proposed materials. &nbsp;Comments can be submitted via the website on or before September 12, 2018.</em></p> <p> Earlier this year, New York State enacted comprehensive legislation targeting workplace sexual harassment.&nbsp; Our previous Management Alerts outlining the various requirements under the law are linked&nbsp;<a href="https://www.seyfarth.com/publications/MA040518-LE">here</a> and <a href="https://www.seyfarth.com/publications/MA051418-LE">here</a>.</p> <p> Under the law, the Department of Labor, in consultation with the Division of Human Rights, must produce a model sexual harassment prevention policy and a model sexual harassment prevention training program.&nbsp; Employers must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models.&nbsp; The sexual harassment policy must also include a complaint form for employees to report alleged incidents of sexual harassment internally.&nbsp;</p> <p> On August 23, 2018, the Office of Governor Andrew M. Cuomo released the following draft documents, copies of which can be found <a href="https://www.ny.gov/combating-sexual-harassment-workplace/employers">here</a>:</p> <ul> <li> The Model Sexual Harassment Policy&nbsp;</li> <li> Minimum Standards for Sexual Harassment Prevention Policies</li> <li> Model Sexual Harassment Complaint Form</li> <li> Model Sexual Harassment Training</li> <li> Minimum Standards for Sexual Harassment Prevention Training</li> </ul> <p> Also included alongside the above publications are draft <a href="https://www.ny.gov/combating-sexual-harassment-workplace/combating-sexual-harassment-frequently-asked-questions#for-employers">FAQs</a>, which are also subject to public comment, and which address the proposed model sexual harassment policy and sexual harassment prevention training.&nbsp; The draft FAQs state that the sexual harassment policy must be in writing, but that employers may provide the policy to employees electronically <strong><em>if</em></strong> the employee can access the policy on a computer provided by the employer during work time and the employee can print a copy of the policy.&nbsp;</p> <p> The draft FAQs also state that all employees (whether full-time, part-time or transient&mdash;including employees who work for just one day for an employer or an employee who works for just one day in New York) must complete sexual harassment training that is compliant with the law <strong><em>before</em></strong> <strong><em>January 1, 2019</em></strong>. &nbsp;One ambiguity in the proposed materials is whether employers that have already conducted anti-harassment training this year will need to provide new training before the January 2019 deadline. &nbsp;The draft FAQs could be read to require new training during that period if the previous training was not in compliance with the strictures of the new law.&nbsp; We are hopeful that the State will clarify this uncertainty during the comment period.&nbsp; The draft FAQs further provide that after January 1, 2019, every employee must complete the training annually, which may be on the calendar year, anniversary of each employee&rsquo;s start date, or any other date the employer chooses.&nbsp;</p> <p> Moreover, the draft FAQs state that all new employees must complete sexual harassment prevention training within 30 calendar days of their start date.&nbsp; What still remains unclear under the draft FAQs is whether new employees who are hired after October 9, 2018 (the date the law goes into effect) will need to complete the training within 30 days&mdash;even if the 30 day window is prior to the January 1, 2019 deadline for existing employees.&nbsp; We are similarly hopeful that the State will clarify this uncertainty during the comment period.</p> <p> The draft FAQs also attempt to clarify what the &ldquo;interactive&rdquo; requirement under the law means: it requires some form of employee participation, which may include &ldquo;questions asked of employees,&rdquo; &ldquo;questions asked by employees,&rdquo; a live trainer, or &ldquo;require feedback.&rdquo; &nbsp;Finally, the draft FAQs state that employers may take appropriate administrative remedies if employees refuse to take the training.</p> <p> <strong><em>Comment Period and Next Steps </em></strong></p> <p> The State is now seeking comments from the public on the proposed materials and draft FAQs. &nbsp;Comments can be submitted via the <a href="https://www.ny.gov/programs/combating-sexual-harassment-workplace">website</a>&nbsp;on or before September 12, 2018.&nbsp; Employers should consider how these proposed models and FAQ guidance may impact their businesses and whether they want to submit comments.&nbsp; For any questions regarding the proposed models and guidance, attorneys at Seyfarth Shaw LLP are available.</p> <p> Employers should also start thinking about whether they want to adopt the model sexual harassment policy and model sexual harassment training, or whether they want to prepare customized policies and training programs (or update existing ones). &nbsp;Because the law goes into effect on October 9, 2018, employers will need to adopt the model sexual harassment policy or adopt a compliant policy on or before this date.&nbsp; In anticipation of these needs, Seyfarth Shaw attorneys are available to assist.</p> https://www.seyfarth.com:443/publications/OMM082718-LE California Supreme Court Upholds Constitutionality of State Consumer Reporting Statute https://www.seyfarth.com:443/publications/OMM082718-LE Mon, 27 Aug 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> After several years of litigation, in Connor v. First Student, Inc. the California Supreme Court decided that the California Investigative Consumer Reporting Agencies Act (&ldquo;ICRAA&rdquo;) was not unconstitutionally vague as applied to employment background checks. It reached this conclusion notwithstanding its finding that there is some overlap between the ICRAA and the California Consumer Credit Reporting Agencies Act (&ldquo;CCRAA&rdquo;). As such, employers and consumer reporting agencies must abide by both statutes where applicable.</em></p> <p> <strong>Background</strong></p> <p> The ICRAA regulates information-gathering on consumers that employers and others use in their decisions regarding employment and other things. The ICRAA governs consumer reporting agencies (and those to whom they provide information) with regard to <em>investigative consumer reports</em>&mdash;reports containing information on a consumer&#39;s character, general reputation, personal characteristics, or mode of living. The CCRAA is a similar statute that governs <em>consumer credit reports</em>&mdash;reports containing information on a consumer&rsquo;s creditworthiness, credit standing, or credit capacity. The two statutes both impose duties regarding disclosure to consumers and limit when and where reports can go, but have different obligations, limitations, and remedies for violations. The ICRAA generally is more onerous and allows greater remedies.</p> <p> <strong>The Facts</strong></p> <p> Eileen Connor drove a school bus. Her employer, concerned about the safe operation of school buses, performed an investigative background report on her. Connor sued her employer and the employer&rsquo;s background screening provider for failing to comply with the ICRAA. She filed her lawsuit on behalf of a class of current and former bus drivers.</p> <p> The employer, before conducting any background check, had sent Connor a &ldquo;Safety Packet&rdquo; booklet. The booklet included a notice, entitled &ldquo;Investigative Consumer Report Disclosure and Release,&rdquo; that authorized the background screening provider to prepare a consumer report or investigative consumer report. The notice advised Connor of her right to view the file maintained on her, to receive a summary of her file by telephone, and to obtain a copy of her file. The notice also stated that Connor could request an &ldquo;investigative consumer report&rdquo; that included &ldquo;names and dates of previous employers, reason for termination of employment, work experience, accidents, academic history, professional credentials, drugs/alcohol use, [and] information relating to [Connor&rsquo;s] character &hellip; which may reflect upon [her] potential for employment.&rdquo;</p> <p> The notice generally described ICRAA rights and informed Connor that, if she checked a box, she could request copy of the report and would release the employer from all claims related to the background investigation.</p> <p> <strong>The Trial Court&rsquo;s Decision</strong></p> <p> The employer moved for summary judgment, arguing that the ICRAA was &ldquo;unconstitutionally vague&rdquo; as applied to employment screening reports because the information included in those reports relate &ldquo;to both creditworthiness and character.&rdquo; The ICRAA and the CCRAA require that information in consumer reports be categorized as either information bearing on character (which is regulated by the ICRAA) or information bearing on creditworthiness (which is regulated by the CCRAA). According to the employer, because information in an employment background check can be categorized as both character information and creditworthiness information, the &ldquo;statutory scheme&rdquo; could not be constitutionally enforced without adequate notice of which statute regulates the information in the report.</p> <p> The trial court granted the employer&rsquo;s motion, but in 2015 the Court of Appeal reversed, holding that nothing in either the ICRAA or the CCRAA precludes both statutes from applying to information that relates to both character and creditworthiness.</p> <p> <strong>The Supreme Court&rsquo;s Decision</strong></p> <p> Three years later, the California Supreme Court agreed with the Court of Appeal and held that the ICRAA is not unconstitutionally vague as applied to employment background checks. The Supreme Court concluded that &ldquo;potential employers can comply with both statutes without undermining the purpose of either.&rdquo; The Supreme Court reasoned that if an employer seeks only credit records, then the employer must comply with the CCRAA. If an employer seeks other information (for example, criminal history) that is &ldquo;obtained by any means,&rdquo; then the employer must comply with the ICRAA. In a situation where an employer requests <em><strong>both</strong> </em>categories of information and, thus, the two laws overlap, the employer &ldquo;is expected to know and follow the requirements of both statutes, even if that requires greater formality in obtaining a consumer&rsquo;s credit records (e.g., seeking a subject&rsquo;s written authorization to conduct a credit check if it appears possible that the information ultimately received may be covered by ICRAA).&rdquo;</p> <p> The Supreme Court rejected the employer&rsquo;s argument that, because the ICRAA and the CCRAA cover the same subject matter, it is unclear which statute applies in the context of employment background checks. According to the Supreme Court, &ldquo;such a duality does not make legal compliance particularly difficult, much less impossible.&rdquo;</p> <p> In sum, although Connor&rsquo;s background check qualified as a &ldquo;consumer credit report&rdquo; under the CCRAA because it contained information bearing on her creditworthiness, the background check also qualified as an &ldquo;investigative consumer report&rdquo; under the ICRAA because it included information bearing on her &ldquo;character, general reputation, personal characteristics, or mode of living.&rdquo; The application of the CCRAA did not relieve employer from the duty obtain written authorization under the ICRAA before ordering the background check. Simply put, both laws would apply.</p> <p> <strong>What The Decision Means For Employers</strong></p> <p> Before <em>Connor</em>, courts split on whether the ICRAA was unconstitutionally vague in light of its overlap with the CCRAA. <em>Connor </em>eliminates one threshold defense for employers and consumer reporting agencies defending ICRAA claims. In light of <em>Connor</em>, both the ICRAA and the CCRAA may apply to companies who request or process background checks that include credit, criminal, and other background information on employees. Accordingly, employers should ensure they know each statute&rsquo;s requirements.</p> https://www.seyfarth.com:443/publications/TS082718 Upcoming Webinar! Protecting Trade Secrets Abroad and Enforcing Rights Abroad and in the U.S. https://www.seyfarth.com:443/publications/TS082718 Mon, 27 Aug 2018 00:00:00 -0400 <p> Please join us for a one-hour CLE webinar on Monday, September 24, 2018, at 1:00 p.m. Eastern / 12:00 p.m. Central / 10:00 a.m. Pacific.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/08/articles/international-2/upcoming-webinar-protecting-trade-secrets-abroad-and-enforcing-rights-abroad-and-in-the-u-s/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH082718 White-Collar Tour 2018: WHD Wants to Hear from You https://www.seyfarth.com:443/publications/WH082718 Mon, 27 Aug 2018 00:00:00 -0400 <p> Remember that time when the Wage &amp; Hour Division published a final rule increasing the minimum salary level for the white-collar exemptions to $47,476 per year? And then a court enjoined the rule from going forward? And then the whole thing got put on hold with the change in Administration?<br /> <br /> <a href="https://www.wagehourlitigation.com/uncategorized/white-collar-tour-2018-whd-wants-to-hear-from-you/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise082718 5 Ways to Create an Inclusive Workplace Culture https://www.seyfarth.com:443/publications/FutureEnterprise082718 Mon, 27 Aug 2018 00:00:00 -0400 <p> While companies are increasingly considering implementing changes in light of these demands, sometimes our best efforts to make meaningful, positive change backfire (think, for example, of the movement to ban plastic straws due to their impact on the environment and the attention some disability advocate groups have brought to the fact that straws, for some, are the only way they are able to drink). While gender discrimination and harassment claims by employees have dominated the recent headlines, consumers are also bringing discrimination claims against companies, whether it be for alleged racial profiling of their customers or their roles in providing services that permit others to discriminate. Companies can stay ahead of the curve by fostering a diverse and inclusive environment, implementing effective training, and by understanding where their policies may need to be reviewed and improved.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2018/8/27/5-ways-to-create-an-inclusive-workplace-culture">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM082418-LE Breaking News: OFCCP Issues New Directives Offering New Guidance on Compensation Evaluations, Establishing a Recognition Program for Contractors, and Laying the Groundwork for a Contractor Certification Program https://www.seyfarth.com:443/publications/OMM082418-LE Fri, 24 Aug 2018 00:00:00 -0400 <div> <p> <em><strong>Seyfarth Synopsis:</strong> On the heels of its recent slate of <a href="https://www.seyfarth.com/publications/MA081518-LE">directives</a>, the Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;) has issued a new group of directives which continue to signal changes for the contractor community.&nbsp; The first, <a href="https://www.dol.gov/ofccp/regs/compliance/directives/dir2018_05.html">Directive 2018-05</a>, provides much needed transparency around the agency&rsquo;s process for evaluating compensation during compliance reviews.&nbsp; The second, <a href="https://www.dol.gov/ofccp/regs/compliance/directives/dir2018_06.html">Directive 2018-06</a>, and third, <a href="https://www.dol.gov/ofccp/regs/compliance/directives/dir2018_07.html">Directive 2018-07</a>, outline the agency&rsquo;s plan to establish a Contractor Recognition Program and a Contractor Certification Program, respectively.</em></p> <p> <strong>Move Over Directive 307</strong></p> <p> On August 24th, the OFCCP issued Directive 2018-05: Analysis of Contractor Compensation Practices During a Compliance Evaluation (&ldquo;Compensation Directive&rdquo;) which rescinds the Directive 2013-03, known within the contractor community as Directive 307.&nbsp; The new directive is described as the OFCCP&rsquo;s effort to &ldquo;(1) further clarify and provide additional transparency to contractors about OFCCP&rsquo;s approach to conducting compensation evaluations; (2) support compliance and compensation self-analyses by contractors under applicable law, and OFCCP regulations and practices; and (3) generally improve compensation analysis consistency and efficiency during compliance evaluations.&rdquo;&nbsp; The OFCCP notes that this new directive is &ldquo;more transparent about the agency&rsquo;s practices&rdquo; with respect to how employees are grouped for the purposes of comparing their compensation and how it conducts compensation evaluations constructs its statistical models.</p> <p> While the contractor community is unlikely to see significant changes in the approach the OFCCP takes when analyzing compensation, the Compensation Directive provides much needed clarity around the methodology used by the agency during compliance reviews.&nbsp; It clear that the OFCCP will remain a statistics driven agency and that the compensation analysis will rest on statistical breakouts of pay.&nbsp; The Compensation Directive still requires OFCCP to analyze pay using Pay Analysis Groups (&ldquo;PAGs&rdquo;) and the focus on base pay, total compensation, and, if necessary, components of compensation such as bonus, commission and shift differentials remains.&nbsp;&nbsp;</p> <p> The Compensation Directive outlines its approach to statistical modeling and the use of control variables.&nbsp; For instance, the OFCCP clarifies that it uses a favored-group analysis for analyzing compensation by race/ethnicity.&nbsp; It also advises that it may rely on age as a proxy for experience only during the desk audit but will seek to obtain actual prior experience.&nbsp; It will also evaluate market studies on a case-by-case basis if the information is provided and will not automatically include &ldquo;squared-tenure&rdquo; terms in the preliminary desk audit analysis.&nbsp;</p> <p> The Compensation Directive comes with several clarifications that are important for contractors:</p> <ol> <li> Assuming the structure is reasonable, &ldquo;[i]f a contractor provides its compensation hierarchy and job structure in the submission to the Itemized Listing, OFCCP will attempt to design its analysis based on that structure.&rdquo;</li> <li> The OFCCP will notify the contractor of the general nature of the disparity under review by explaining that the agency is reviewing, for example: &ldquo;Compensation policies and practices with respect to women in production, sales and management.&rdquo;&nbsp;</li> <li> If it makes a preliminary finding of discrimination, the agency will disclose &ldquo;the individual-level data necessary for the contractor to replicate the PAGs and regression results&rdquo; in electronic format.</li> <li> The OFCCP will also include representatives from its Branch of Expert Services (e.g., labor economists or statisticians) in the conciliation process, if necessary, to provide clarity around the Agency&rsquo;s statistical methodology and findings.&nbsp;&nbsp;</li> </ol> <p> The Compensation Directive applies to any reviews scheduled after August 24th and to any open reviews to the extent that the analysis does not conflict with prior guidance.</p> <p> <strong>New Tools in the Toolkit for Encouraging and Enforcing Compliance</strong></p> <p> The two additional directives, which are likely to garner much less attention for now, are part of the OFCCP&rsquo;s ongoing efforts to &ldquo;expand the agency&#39;s reach, and protect more workers by supporting proactive and comprehensive compliance by contractors.&rdquo;</p> <p> <em>Contractor Recognition Program</em></p> <p> The Contractor Recognition Program is aimed at celebrating &ldquo;high-quality and high-performing compliance programs and initiatives&rdquo; in order to create greater awareness within the contractor community of what other members are doing.&nbsp; The agency notes that as part of its efforts to provide contractors with compliance assistance tools and resources, it hopes that this program will help establish &ldquo;implementable best or model contractor practices, a contractor mentoring program that uses contractors to help their peers improve compliance, and other initiatives that provide opportunities for contractors to collaborate or provide feedback to OFCCP on its compliance assistance efforts.&rdquo;</p> <p> <em>Contractor Certification Program</em></p> <p> The goal of the Contractor Certification Program is to ensure broader fulfillment of federal contractor obligations.&nbsp; The agency notes that &ldquo;[b]ased on the size of the contractor population and other factors, OFCCP schedules only a portion of these establishments annually for compliance evaluations. Therefore, OFCCP must seek more ways to expand its compliance reach.&rdquo;&nbsp; The directive does not contain firm details, but states that it may initially take the form of certifying compliance to OFCCP or the contracting agency itself and may eventually lead to annual submission of AAPs for review.&nbsp; The directive also notes that a contractor&rsquo;s participation in the program will be incorporated into the scheduling of compliance reviews.</p> <p> We will have to wait and see the exact form that the program takes, however, the directive seems to attempt to address some concerns from the contractor community about what they might be asked to certify by stating that its purpose is to ensure that contractors are meeting &ldquo;the most basic equal employment opportunity (EEO) regulatory requirement, namely, the preparation of a written affirmative action program (AAP) and annual updates to that program.&rdquo;&nbsp; However, until the certification is formally proposed, it is unclear what &ldquo;the most basic equal employment regulatory requirement&rdquo; means.&nbsp;</p> <p> <strong>What Does This Mean for Employers?</strong></p> <p> As far as the directives outlining the intent to establish the Contractor Recognition Program and the Contractor Certification Program, there are no real changes for employers for the time being.&nbsp; Both of these directives deal with the new programmatic requirements in broad strokes.&nbsp; Neither creates new obligations for contractors at the current time, but instead creates new tools for the agency to encourage and enforce compliance of current contractor obligations.</p> <p> In a similar sense, the Compensation Directive does not purport to create any new or adjust any existing obligations, but rather to clarify how the agency goes about enforcing contractor obligations.&nbsp; That being said, the Compensation Directive does give contractors key guidance on how the agency believes they should evaluate compensation in connection with their affirmative action plans.&nbsp;</p> <p> We anticipate further announcements from the OFCCP given its promise to provide contractor education and compliance assistance materials and its announcement regarding the Contractor Recognition and Certification Programs.&nbsp; We will continue to monitor these changes and will alert you as more develops.</p> <p> In the meantime, if you have questions about best practices for OFCCP compliance and audit defense, please contact a member of Seyfarth&rsquo;s Organizational Strategy &amp; Analytics Team or your Seyfarth relationship partner.&nbsp;</p> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/TBT082418 Budding Developments: North Dakota to Legalize Recreational Marijuana? https://www.seyfarth.com:443/publications/TBT082418 Fri, 24 Aug 2018 00:00:00 -0400 <p> Just two years ago, North Dakota voters passed medical marijuana legalization with 64 percent support. Now, North Dakota could join a number of sanctuary states legalizing recreational marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/08/budding-developments-north-dakota-to-legalize-recreational-marijuana/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL082318 Requiring Employees Seeking Reasonable Accommodations to “Feel the Burn” May Violate ADA https://www.seyfarth.com:443/publications/EL082318 Thu, 23 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The D.C. Circuit recently revived a single-leg amputee&rsquo;s claim that his former employer failed to accommodate his disability by refusing his request for a classroom aide. In reversing the lower court&rsquo;s decision in part, the two-member panel found triable issues of fact existed regarding whether forcing the plaintiff to work with pain, when that pain could have been alleviated by his requested accommodation, violated The Americans with Disabilities Act (ADA).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/requiring-employees-seeking-reasonable-accommodations-to-feel-the-burn-may-violate-ada/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise082318 Association Health Plans: Benefit of the Future or Blast from the Past? https://www.seyfarth.com:443/publications/FutureEnterprise082318 Thu, 23 Aug 2018 00:00:00 -0400 <p> An integral feature of a sustainable health plan is a large risk pool, which increases the likelihood the plan will contain a balance of healthy people paying premiums to offset sick people incurring claims. Large employers have a natural advantage in that they need to look no further than their employee (and dependent) population. Smaller employers (and independent contractors/freelance employees) have historically had a more difficult time finding affordable health insurance coverage.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2018/8/23/association-health-plans-benefit-of-the-future-or-blast-from-the-past">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP082318 The Summer of #MeToo Legislation in Sacramento https://www.seyfarth.com:443/publications/CP082318 Thu, 23 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Following a season of unprecedented outcry over persistent work-related sexual harassment, known best as the &ldquo;#MeToo&rdquo; movement, California lawmakers this session have considered a record number of bills that address the problem. One bill, AB 1867, recently passed by the Legislature and discussed below, will (if signed by the Governor) require large employers to keep records of all employee complaints alleging sexual harassment for at least five years. Other bills working their way through the process (as if to say &ldquo;me, too&rdquo;) also address this vital topic, as we briefly recap below.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/08/23/the-summer-of-metoo-legislation-in-sacramento/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT082318 The Week in Weed: August 24, 2018 https://www.seyfarth.com:443/publications/TBT082318 Thu, 23 Aug 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/08/the-week-in-weed-august-24-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS082218 Seyfarth Attorneys to Present “The Anatomy of a Trade Secret Audit” Webinar https://www.seyfarth.com:443/publications/TS082218 Wed, 22 Aug 2018 00:00:00 -0400 <p> On Wednesday, August 29, 2018, Seyfarth Shaw Partners Katherine Perrelli, Dawn Mertineit, and Justin Beyer are presenting a webinar focused on trade secret audits. The ITechLaw webinar, titled &ldquo;The Anatomy of a Trade Secret Audit,&rdquo; is from 9 a.m. to 10 a.m. Eastern Time and will cover the following topics:<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/08/articles/trade-secrets/seyfarth-attorneys-to-present-the-anatomy-of-a-trade-secret-audit-webinar/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM082218-LE FDIC Publishes Final Rule on Modifications to Statement of Policy For Section 19 of the Federal Deposit Insurance Act https://www.seyfarth.com:443/publications/OMM082218-LE Wed, 22 Aug 2018 00:00:00 -0400 <div> <p> <strong><em>Seyfarth Synopsis: </em></strong><em>On August 3, 2018, the FDIC published its final rule on modifications to the Statement of Policy for Section 19 in an attempt to reduce the number of low risk criminal offenses that result in preclusion of individuals who wish to work for or be engaged by an FDIC-insured financial institution (unless they obtain the written consent of the FDIC).&nbsp; &nbsp; &nbsp;</em></p> <p> <strong><u>Section 19</u></strong></p> <p> Section 19 of the Federal Deposit Insurance Act (<a href="https://www.gpo.gov/fdsys/pkg/USCODE-2016-title12/html/USCODE-2016-title12-chap16-sec1829.htm">12 U.S.C. Section 1829</a>) (&ldquo;Section 19&rdquo;) prohibits, without the prior written consent of the Federal Deposit Insurance Corporation (the &ldquo;FDIC), a person convicted of any criminal offense involving dishonesty or breach of trust or money laundering (covered offenses), or who has agreed to enter into a pretrial diversion or similar program (program entry) in connection with a prosecution for such offense, from becoming or continuing as an institution-affiliated party, owning or controlling, directly or indirectly an insured depository institution (insured institution), or otherwise participating, directly or indirectly, in the conduct of the affairs of the insured institution. &nbsp;In addition, the law forbids an insured institution from permitting such a person to engage in any conduct or to continue any relationship prohibited by Section 19.&nbsp;</p> <p> Section 19 applies, by operation of law, as a statutory bar to participation absent the written consent of the FDIC.&nbsp; Approval is automatically granted and an application will not be required where the covered offense is considered <em>de minimis</em>, because it meets all of the following criteria: (i) There is only one conviction or program entry of record for a covered offense; (ii) The offense was punishable by imprisonment for a term of one year or less and/or a fine of $2,500 or less, and the individual served three (3) days or less of jail time<a href="#_ftn1" name="_ftnref1" title="">[1]</a>; (iii) The conviction or program was entered at least five years prior to the date an application would otherwise be required; and; (iv) The offense did not involve an insured depository institution or insured credit union.</p> <p> <strong><u>Modifications to the Statement of Policy</u></strong></p> <p> The FDIC has published its <a href="https://www.federalregister.gov/documents/2018/08/03/2018-16634/modifications-to-the-statement-of-policy-pursuant-to-section-19-of-the-federal-deposit-insurance-act">Final Rule</a> on modifications to the Statement of Policy (&ldquo;SOP&rdquo;) for Section 19, which took effect on July 19, 2018.&nbsp; The Final Rule includes the following additional applications of the <em>de minimis</em> offenses exception to filing:&nbsp;</p> <ul> <li> <em>Age at time of covered offense</em>: If the actions that resulted in a covered conviction/program entry of record occurred when an individual was 21 years of age or younger, then the subsequent conviction/program entry meets <em>de minimis</em> criteria.&nbsp; NOTE:&nbsp; The conviction/program entry must have been entered into at least 30 months prior to the date an application would otherwise be required and all sentencing or program requirements must have been met.</li> <li> <em>Convictions/program entry for insufficient funds checks</em>: Convictions/program entries of record based on the writing of insufficient funds check(s) will be considered <em>de minimis </em>and will not be considered as having involved an insured depository institution as long as there is no other conviction/program entry subject to Section 19 and the aggregate total face value cited across all the conviction(s)/program entr(ies) is $1,000 or less AND no insured depository institution or insured credit union was a payee on any of the insufficient funds check that were the basis of the conviction(s)/program entr(ies).</li> <li> <em>Convictions/program entry for small-dollar, simple theft</em>:<a href="#_ftn2" name="_ftnref2" title="">[2]</a> A conviction/program entry based on a simple theft of goods, services and/or currency where the aggregate value taken was $500 or less will be considered <em>de minimis </em>where the individual has no other conviction/program entry subject to Section 19 AND it has been 5 years since the conviction/program entry AND there is no involvement of an insured financial institution or insured credit union.&nbsp;</li> <li> <em>Convictions/program entries for the use of a fake, false, or altered identification card</em>: A conviction/program entry for the use of a fake, false, or altered identification card used by an individual under the legal age for the purpose of obtaining/purchasing alcohol, or used for the purpose of entering a premise where alcohol is served but for which age appropriate identification is required, shall be considered <em>de minimis </em>as long as there is no other conviction/program entry subject to Section 19.</li> </ul> <p> The FDIC also expressly clarified that FDIC-insured institutions may extend conditional offers of employment contingent upon successful background checks and Section 19 screening.</p> <p> <strong><u>Outlook for FDIC-Insured Institutions</u></strong></p> <p> FDIC-insured institutions should review their policies and practices to ensure consideration of new (as well as existing) <em>de minimis</em> exceptions when assessing candidates under Section 19.</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The FDIC considers jail time to include any significant restraint on an individual&rsquo;s freedom of movement which includes confinement to a specific facility/building on a continuous basis where the individual may leave temporarily only to perform specific functions or during specified time periods (or both).&nbsp; &ldquo;Jail time&rdquo; does not include those on probation or parole who may be restricted to a particular jurisdiction, or who must report to an individual or a specified location periodically.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Simple theft excludes burglary, forgery, robbery, identity theft, and fraud.</p> </div> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/news/seidmanbna082218 Joshua Seidman quoted in Bloomberg BNA https://www.seyfarth.com:443/news/seidmanbna082218 Wed, 22 Aug 2018 00:00:00 -0400 <p> Joshua Seidman was quoted in an August 22 story from Bloomberg BNA, &quot;Changes in NY Paid Leave Law, On-Call Rule Could Cost Employers,&quot; on how some New York employers could find themselves in a bind if an expanded paid leave law and a revised on-call scheduling rule are both enacted. Seidman said that if the rules become final, employers will take a harder look at their scheduling practices to try to minimize potential effects.</p> https://www.seyfarth.com:443/news/walldc082118 Seyfarth Expands Construction Practice with P3 Lawyer in Washington, D.C. https://www.seyfarth.com:443/news/walldc082118 Tue, 21 Aug 2018 00:00:00 -0400 <p> WASHINGTON, D.C. (August 21, 2018) -- Seyfarth Shaw LLP announced today the arrival of partner Charles E. &ldquo;Chuck&rdquo; Wall to the Public-Private Partnerships (P3) group and Construction practice in Washington, D.C. Wall joins from Troutman Sanders LLP, where he was a partner in Richmond, Virginia.</p> <p> Wall&rsquo;s P3 practice focuses on advising project stakeholders in the financing, design, construction, operation and maintenance of large-scale public infrastructure development projects. These projects, many of which involve long-term concessions with construction valued in the billions, include airports, highways, bridges, tunnels, transit, water/wastewater systems and other facilities.</p> <p> &ldquo;Chuck is a recognized leader in the P3 field and has successfully guided some of the largest and most complex infrastructure projects in the U.S.,&rdquo; said Bennett Greenberg, co-chair of Seyfarth&rsquo;s Construction practice. &ldquo;The number and size of P3 projects is increasing substantially each year, in both the transportation and social infrastructure sectors. Chuck significantly expands our team&rsquo;s reach and P3 capabilities.&rdquo;</p> <p> In addition to his P3 and infrastructure development practices, Wall advises clients on a broad range of construction and corporate matters, including design-build and other construction-related contracts, joint venture agreements and teaming arrangements. He assists clients in navigating all forms of alternative project delivery, along with the myriad of issues that arise through procurement, project execution, O&amp;M and beyond.</p> <p> &ldquo;Chuck is an exceptional talent and a tremendous addition to the D.C. office,&rdquo; said Robert Bodansky, managing partner of Seyfarth&rsquo;s Washington, D.C. office. &ldquo;He strengthens our already robust Construction practice and greatly enhances our P3 transactional capabilities.&rdquo;</p> <p> Wall is a frequent speaker on P3 topics and serves in leadership roles within numerous industry organizations. He received his J.D. from the University of Richmond, where he was a member of the <em>University of Richmond Law Review</em>, and earned his B.B.A. from the College of William and Mary.</p> <p> With over 35 lawyers, Seyfarth&rsquo;s Construction practice represents clients in all phases of construction projects, from inception to completion, domestically and abroad. Seyfarth&rsquo;s P3 group represents project sponsors, lenders, contractors, facility operators, and state and local government agencies in the unique finance, development, construction, operational and regulatory issues associated with P3 projects. A 2018 recipient of <em>Law360</em>&rsquo;s Transportation &ldquo;Practice Group of the Year&rdquo; award, the firm serves clients across the transportation sector in the courtroom, at the negotiation table and on the frontlines of regulatory advocacy.</p> <p> <em>Wall is admitted only in Virginia. His practice is supervised by members of the District of Columbia Bar.</em></p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Communications, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Senior Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> https://www.seyfarth.com:443/news/vubna082118 Minh Vu quoted in Bloomberg BNA https://www.seyfarth.com:443/news/vubna082118 Tue, 21 Aug 2018 00:00:00 -0400 <p> Minh Vu was quoted in an August 21 story from Bloomberg BNA, &quot;Blind Workers Test Limitations of Online Hiring Systems.&quot; Vu said that it isn&rsquo;t clear whether authority exists for holding a company accountable when not all job seekers are able to immediately access all aspects of its online jobs page.</p> https://www.seyfarth.com:443/news/boutroscbc082118 Andrew Boutros interviewed on CBC News Network https://www.seyfarth.com:443/news/boutroscbc082118 Tue, 21 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was interviewed August 21 on CBC News Network, &quot;Manafort Convicted, Cohen pleads guilty.&quot; Boutros discussed Paul Manafort&#39;s conviction on eight counts, including fraud, and Michael Cohen&#39;s guilty plea. You can watch the <a href="https://twitter.com/i/status/1032299348200017920">full interview here</a>.</p> https://www.seyfarth.com:443/publications/MA082118-LE If Pain, Yes Gain—Part 51: Texas Continues to be Hotbed for Paid Sick Leave Activity https://www.seyfarth.com:443/publications/MA082118-LE Tue, 21 Aug 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>Last week ended with a flurry of paid sick leave developments in multiple Texas municipalities. On Thursday, August 16, the San Antonio City Council passed a paid sick leave ordinance, making it just the second city in Texas to do so. The ordinance is set to become effective for most employers in August 2019, although expected judicial or legislative efforts may interrupt this schedule. The following day, Friday, August 17, the Texas Court of Appeals for the Third District granted a request to enjoin the Austin paid sick leave ordinance&#39;s effective date, originally set for October 1, 2018, pending the court&rsquo;s decision on an appeal of a lower court&rsquo;s order denying a temporary injunction application.</em></p> <p> After years of successfully avoiding the ongoing paid sick leave wave that has infected dozens of jurisdictions since the start of 2014, Texas has become a hotbed of paid sick leave activity in 2018. Last week marked the peak of this activity, as sick leave developments took place in both San Antonio and Austin.</p> <p> On August 16, the San Antonio City Council voted and passed the Earned Paid Sick Time Ordinance (the &ldquo;SA Ordinance&rdquo;). The SA Ordinance is scheduled to go into effect for most employers on August 1, 2019,<a href="#_ftn1" name="_ftnref1" title="">[1]</a> and is just the second such ordinance to be passed in the state. Earlier this year, Austin became the first Texas municipality to enact a paid sick leave ordinance.<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> Austin&rsquo;s paid sick leave ordinance made news last week as well. On August 17, the Texas Court of Appeals for the Third District (the &ldquo;Third District&rdquo;) granted a request to enjoin the Austin ordinance&rsquo;s October 1, 2018 effective date. The Third District&rsquo;s order notes that &ldquo;the ordinance is enjoined from taking effect while the appeal is pending&rdquo; and that &ldquo;the appeal is from an order denying an application for temporary injunction&rdquo; of the Austin ordinance. &nbsp;For more information on Austin&rsquo;s paid sick leave ordinance, see our <a href="http://www.seyfarth.com/publications/MA022318-LE2">prior alert</a>.&nbsp;</p> <p> The fate of the Austin ordinance likely will dictate whether the SA Ordinance goes into effect as scheduled. While the final prognosis is currently unknown, here are some of the highlights of the SA Ordinance:</p> <ul> <li> <strong>Covered Employers:</strong> &ldquo;Employer&rdquo; is defined to include &ldquo;any person, company, corporation, firm, partnership, labor organization non-profit organization or association that pays an employee to perform work for an employer and exercises control over the employee&rsquo;s wages hours and working conditions.&rdquo; This excludes federal, state and local government entities.</li> <li> <strong>Eligible Employees:</strong> Employees who perform at least 80 hours of work for pay in the city of San Antonio in a year will be entitled to earned paid sick time (&ldquo;EPST&rdquo;).</li> <li> <strong>Accrual of EPST:</strong> Employees will be entitled to begin accruing EPST at the later of the start of their employment or the SA Ordinance&rsquo;s effective date. Employers must allow EPST to accrue at a rate of at least one hour of EPST for every 30 hours worked in the city of San Antonio. The SA Ordinance states that employers must allow employees to accrue either 64 or 48 hours of EPST per year depending on the employer&rsquo;s size.<a href="#_ftn3" name="_ftnref3" title="">[3]</a></li> <li> <strong>Usage Waiting Period and Cap:</strong> As with the Austin paid sick leave ordinance, the SA Ordinance states that an employer can set a 60-day EPST waiting period for new hires if the employer establishes that the employee&rsquo;s employment term is at least one year. Also consistent with the Austin ordinance, the SA Ordinance does not require employers to allow employees to use more than eight days of EPST in a year.<a href="#_ftn4" name="_ftnref4" title="">[4]</a></li> <li> <strong>Carryover and Frontloading:</strong> The SA Ordinance states that employers will need to allow up to either 64 or 48 hours of earned, unused EPST to carryover at year-end (the amount depends on the employer&rsquo;s size). However, as with many paid sick leave laws, the SA Ordinance contains an exception to this requirement. Specifically, employers that frontload at least 64 or 48 hours of EPST (again, depending on the employer&rsquo;s size) to employees at the beginning of each year are not subject to year-end carryover.</li> <li> <strong>Reasons for Use:</strong> Under the SA Ordinance, employees can use EPST for the following covered absences: <ul> <li> The employee&rsquo;s physical or mental illness or injury, preventative medical or health care or health condition;</li> <li> The employee&rsquo;s need to care for a family member&rsquo;s physical or mental illness, preventative medical or health care, injury or health condition; or</li> <li> The employee&rsquo;s or their family member&rsquo;s need to seek medical attention, seek relocation, obtain services of a victim services organization or participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault, or stalking involving the employee or the employee&rsquo;s family member.</li> </ul> </li> <li> <strong>Covered Family Member:</strong> The SA Ordinance defines &ldquo;family member&rdquo; to mean an employee&rsquo;s spouse, child, parent or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.</li> <li> <strong>Non-Sick Paid Leave Policies:</strong> Employers are not required to provide additional EPST to employees who receive paid time off, such as PTO, &ldquo;under conditions that meet the purpose, accrual, yearly cap, and usage requirements&rdquo; of the SA Ordinance.</li> <li> <strong>Payment of Sick Time:</strong> Under the SA Ordinance, employers must pay an employee for used EPST in an amount equal to what the employee would have earned if the employee had worked the scheduled work time. This does not include overtime, tips, or commissions.</li> <li> <strong>Verification:</strong> Employers will be allowed to impose reasonable verification procedures on employees who are absent for covered EPST reasons for more than three consecutive workdays.</li> <li> <strong>Employee Notification: </strong>The SA Ordinance mandates that employers allow employees to use available EPST if the employee makes a timely request to use the leave before their scheduled work time. That being said, employers cannot prevent employees from using available EPST for unforeseeable qualifying absences.</li> <li> <strong>Reinstatement of Unused EPST Upon Rehire:</strong> If an employee is rehired within six months of separation of employment, employers must reinstate any earned, unused EPST to the employee upon rehire.</li> <li> <strong>Monthly Notice to Employees:</strong> On no less than a monthly basis, an employer must provide electronic or written notice to each employee showing the amount of the employee&rsquo;s available EPST.</li> <li> <strong>Posting and Handbook Notice:</strong> The SA Ordinance comes with two additional notice requirements. First, employers who provide an employee handbook to their workers must include a notice of employee rights and remedies under the SA Ordinance in the handbook. Second, if the Director of the San Antonio Metropolitan Health District (the &ldquo;Director&rdquo;) makes a model paid sick leave poster available on its website, the employer must display the poster in a conspicuous place where notices to employees are customarily posted. The poster must be displayed in English and other languages determined by the Director.</li> <li> <strong>Recordkeeping:</strong> Employers must retain records establishing the amount of EPST accrued and used by each employee for a period of time consistent with Title 29, Section 516(a) of the Code of Federal Regulations.</li> <li> <strong>No Retaliation:</strong> Employers are prohibited from retaliating against an employee who requests or uses EPST, or otherwise exerts any rights afforded under the SA Ordinance.</li> </ul> <p> San Antonio employers should begin preparations to comply with the SA Ordinance&rsquo;s August 1, 2019 effective date.&nbsp; These are among the actions to consider:</p> <ul> <li> Monitor judicial and potential legislative developments involving the Austin paid sick leave ordinance and SA Ordinance.</li> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the SA Ordinance.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the SA Ordinance.</li> <li> Develop a new paid sick leave policy that complies with the SA Ordinance for any employees who are not covered under existing paid sick leave or PTO policies.</li> <li> Monitor the San Antonio Metropolitan Health District website for further information on the SA Ordinance, including regulations, model notice, etc.</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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The SA Ordinance will have delayed implementation for employers with no more than five employees at any time in the prior 12 months. For any such employer, the SA Ordinance does not become effective until August 1, 2021.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> San Antonio joins a growing list of states and municipalities that impose paid sick leave obligations on employers. The existing statewide paid sick leave laws include: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; (9) Rhode Island; and (10) New Jersey. The New Jersey paid sick leave law goes into effect on October 29, 2018.&nbsp; The existing municipal paid sick leave ordinances include: (1) San Francisco, CA; (2) Washington, D.C.; (3) Seattle, WA; (4) Long Beach, CA; (5) SeaTac, WA; (6) New York City, NY; (7) Jersey City, NJ; (8) Newark, NJ; (9) Passaic, NJ; (10) East Orange, NJ; (11) Paterson, NJ; (12) Irvington, NJ; (13) Los Angeles, CA; (14) Oakland, CA; (15) Montclair, NJ; (16) Trenton, NJ; (17) Bloomfield, NJ; (18) Philadelphia, PA; (19) Tacoma, WA; (20) Emeryville, CA; (21) Montgomery County, MD; (22) Pittsburgh, PA; (23) Elizabeth, NJ; (24) New Brunswick, NJ; (25) Santa Monica, CA; (26) Plainfield, NJ; (27) Minneapolis, MN; (28) San Diego, CA; (29) Chicago, IL; (30) St. Paul, MN; (31) Cook County, IL; (32) Berkeley, CA; (33) Morristown, NJ; and (34) Austin, TX. &nbsp;The 13 municipal ordinances in the state of New Jersey will be preempted as of October 29, 2018 when the New Jersey statewide paid sick leave law goes into effect. Los Angeles, CA has two paid sick leave ordinances, one of which only applies to certain &ldquo;hotel employers.&rdquo;&nbsp; The Long Beach, CA and SeaTac, WA ordinances only apply to hospitality and/or transportation employers. The Pittsburgh, PA ordinance was enacted on August 3, 2015; however, it is not currently in effect due to an ongoing lawsuit challenging the validity of the ordinance under Pennsylvania law.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> Employers with more than 15 employees at any time in the prior 12 months must allow eligible employees to accrue up to at least 64 hours of EPST based on their hours worked. Smaller employers are subject to the 48-hour annual EPST accrual cap.</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> The SA Ordinance defines &ldquo;year&rdquo; as a regular and consecutive twelve (12) month period as determined by the employer.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/WSE082118 Sixth Circuit Holds Class Certification on Issues is Appropriate in Toxic Tort Action https://www.seyfarth.com:443/publications/WSE082118 Tue, 21 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a toxic tort class action stemming from automotive and dry cleaning facilities&rsquo; alleged contamination of groundwater near Dayton, Ohio, the Sixth Circuit affirmed an Ohio federal district court&rsquo;s grant to certify seven common issues for classwide treatment under Rule 23(c)(4). Shortly thereafter, the four Defendant companies filed a petition for a rehearing en banc, arguing that the Sixth Circuit misapplied Rules 23(b)(3) and 23(c)(4).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/toxic-tort-litigation/sixth-circuit-holds-class-certification-on-issues-is-appropriate-in-toxic-tort-action/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL082118 Sixth Circuit Holds Class Certification on Issues is Appropriate in Toxic Tort Action https://www.seyfarth.com:443/publications/EL082118 Tue, 21 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a toxic tort class action stemming from automotive and dry cleaning facilities&rsquo; alleged contamination of groundwater near Dayton, Ohio, the Sixth Circuit affirmed an Ohio federal district court&rsquo;s grant to certify seven common issues for classwide treatment under Rule 23(c)(4). Shortly thereafter, the four Defendant companies filed a petition for a rehearing en banc, arguing that the Sixth Circuit misapplied Rules 23(b)(3) and 23(c)(4).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/sixth-circuit-holds-class-certification-on-issues-is-appropriate-in-toxic-tort-action/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS082018 Webinar Recap! 2018 Massachusetts Non-Compete and Trade Secrets Reform https://www.seyfarth.com:443/publications/TS082018 Mon, 20 Aug 2018 00:00:00 -0400 <p> In Seyfarth&rsquo;s fifth installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Kate Perrelli, Erik Weibust, and Dawn Mertineit focused on Massachusetts non-compete and trade secrets reform. At long last, Massachusetts Governor Charlie Baker signed a Non-Compete Reform Bill into law on August 10. The presenters focused on what businesses should understand about the impacts of the changes, what to expect next, and how to safeguard assets and maintain an advantage over competitors.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/08/articles/legislation-2/webinar-recap-2018-massachusetts-non-compete-and-trade-secrets-reform/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM082018 Seyfarth Shaw Policy Matters Newsletter – August 16, 2018 https://www.seyfarth.com:443/publications/IMM082018 Mon, 20 Aug 2018 00:00:00 -0400 <p> Senate Returns to Work. On Wednesday, the Senate returned from its nearly two-week recess to resume its rare August work period. The chamber has two more federal appeals court judges teed up for confirmation and could also consider a third spending package this week. These come on top of a record-breaking string of confirmations, as there have been 24 appellate judges confirmed by the Senate since President Trump was sworn in, the highest number for a president&rsquo;s first two years in office. There are currently 13 remaining vacancies on the U.S. Court of Appeals.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/08/seyfarth-shaw-policy-matters-newsletter-august-16-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/meierrefi082018 Steve Meier quoted in Real Estate Finance & Investment https://www.seyfarth.com:443/news/meierrefi082018 Mon, 20 Aug 2018 00:00:00 -0400 <p> Steve Meier was quoted in an August 20 story from Real Estate Finance &amp; Investment, &quot;Fund managers race to tap into opportunity zone legislation,&quot; on how lawyers are working to ensure that funds are complying with certain provisions of the new law, including one that states that the fund must hold at least 90% of its assets in opportunity zone property, which is measured twice a year. Any funds that can&rsquo;t meet that standard during the check-in will be subject to a hefty fine, which Meier describes as a financial death penalty to those funds that determined to have failed to qualify.</p> https://www.seyfarth.com:443/news/mansfield082018 Seyfarth Earns Mansfield Certified ‘Plus’ Rating from Diversity Lab https://www.seyfarth.com:443/news/mansfield082018 Mon, 20 Aug 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP announced today that it has earned Mansfield Certification Plus from Diversity Lab after completing the inaugural one-year Mansfield Rule pilot. The Mansfield Rule Certification measures whether law firms have affirmatively considered at least 30 percent women and attorneys of color for leadership and governance roles, equity partner promotions, and senior lateral positions. &ldquo;Plus&rdquo; status indicates that, in addition to meeting or exceeding the pipeline consideration requirements for Certification, Seyfarth has also successfully reached at least 30 percent women and minority lawyer representation in a notable number of its current leadership roles and committees.</p> <p> Named after Arabella Mansfield, the first woman admitted to the practice of law in the United States, the Mansfield Rule is a variation of the NFL&rsquo;s &ldquo;Rooney Rule.&rdquo; The goal of the Mansfield Rule is to boost the representation of diverse lawyers in law firm leadership by broadening the pool of candidates considered for these opportunities.</p> <p> &ldquo;Building on our own early adoption of the Rooney Rule, it&rsquo;s been exciting to accelerate our efforts through the Mansfield Rule pilot as the industry works together to drive progress forward,&rdquo; said Pete Miller, chair and managing partner of Seyfarth Shaw. &ldquo;As momentum grows, we are excited to expand our work with Diversity Lab to advance the diversity of our organization and the broader legal profession.&rdquo;</p> <p> As part of Seyfarth&rsquo;s commitment to diversity and inclusion and its focus on continuous improvement in this area, the firm has agreed to participate in the 2.0 iteration of the Mansfield Rule, which runs from July 2018 to July 2019, with 65 law firms. New for this version, Mansfield 2.0 will include LGBTQ+ lawyers as well as women and attorneys of color as part of the diverse candidate pool. Also new, in addition to leadership role appointments and lateral hiring, Mansfield 2.0 will also measure consideration for roles in client pitch meetings and will ask participating law firms to make appointment and election processes transparent to all lawyers in their firms. Learn more about Mansfield Certification <a href="http://www.diversitylab.com/wp-content/uploads/2018/08/2018-Mansfield-Rule-Certification-Announcement-Press-Release-August-2018.pdf">here</a>.</p> https://www.seyfarth.com:443/news/boutroscbc081918 Andrew Boutros interviewed on CBC News Network https://www.seyfarth.com:443/news/boutroscbc081918 Sun, 19 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was interviewed August 19 on CBC News Network, &quot;White House lawyer speaks to Robert Mueller.&quot; Boutros discusses Don McGahn&#39;s role in the Russia probe. You can watch the <a href="http://www.cbc.ca/player/play/1302222403753">full interview here</a>.</p> https://www.seyfarth.com:443/publications/LR081718 D.C. Circuit Rules that Off-Duty Employees Had a Right to Picket On Hospital Property https://www.seyfarth.com:443/publications/LR081718 Fri, 17 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: U.S. Court of Appeals for the D.C. Circuit rules that the NLRB properly found that a hospital violated the NLRA by threatening employees with discipline and arrest for peacefully picketing on hospital property.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/08/17/d-c-circuit-rules-that-off-duty-employees-had-a-right-to-picket-on-hospital-property/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CDL081718 Seyfarth Shaw Partner Jordan Vick to Present at the 15th Annual Advanced eDiscovery Institute in Washington, DC https://www.seyfarth.com:443/publications/CDL081718 Fri, 17 Aug 2018 00:00:00 -0400 <p> Seyfarth Shaw Partner Jordan Vick is on the panel for the &ldquo;Playing by the Rules: Rule Changes Essential to Your Practice&rdquo; session on Friday, November 16, at Georgetown Law&rsquo;s 15th annual Advanced eDiscovery Institute in Washington, D.C.<br /> <br /> <a href="https://www.carpedatumlaw.com/2018/08/seyfarth-shaw-partner-jordan-vick-present-15th-annual-advanced-ediscovery-institute-washington-dc/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT081618 The Week in Weed: August 17, 2018 https://www.seyfarth.com:443/publications/TBT081618 Thu, 16 Aug 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/08/the-week-in-weed-august-17-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA081618-LE Unlikely Ally: Employer Makes a Meal Out of CBA Waiver https://www.seyfarth.com:443/publications/MA081618-LE Thu, 16 Aug 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp;A collective bargaining agreement, to permissibly waive a negotiable statutory right, must do so in a clear and unmistakable manner, by mentioning either the statutory protection being waived or the statute itself. The Court of Appeal has sensibly applied that standard in upholding a CBA&rsquo;s waiver of a first meal period for shifts not exceeding six hours.&nbsp;</em></div> <div> &nbsp;</div> <div> <strong>The Facts</strong></div> <div> &nbsp;</div> <div> The California Labor Code states that an employee working more than five hours in a shift is entitled to a meal period unless the employee and employer mutually waive the requirement to provide a first meal period for a shift that does not exceed six hours. Thus, while a meal-period is a statutory right, and while statutory rights generally are unwaivable, the statute itself makes a first meal period waivable within the circumstances just specified.&nbsp;</div> <div> &nbsp;</div> <div> Kristina Ehret and Elmer Gillett were cashiers at a WinCo Foods store. WinCo&rsquo;s hourly employees belonged to a collective bargaining unit represented by an employee association. Gillett, as chair of the association, negotiated a collective bargaining agreement with WinCo. The CBA stated that &ldquo;when a work period of not more than 6 hours will complete a day&rsquo;s work, a meal period is not required.&rdquo;</div> <div> &nbsp;</div> <div> After the employees sued WinCo for failing to provide meal periods, WinCo, represented by Seyfarth Shaw, moved for summary judgment, arguing that the CBA had waived the employees&rsquo; statutory right to a meal period. The trial court granted WinCo&rsquo;s motion, and the employees appealed.&nbsp;</div> <div> &nbsp;</div> <div> <strong>The Appellate Court Decision</strong></div> <div> &nbsp;</div> <div> On appeal, the employees argued that the CBA failed to qualify as a valid waiver of statutory rights because its language was not &ldquo;clear and unmistakable.&rdquo; The Court of Appeal rejected the argument and affirmed the trial court&rsquo;s decision. <em>Ehret v. Winco Foods, LLC.</em></div> <div> &nbsp;</div> <div> The Court of Appeal began its analysis by confirming that an employee&mdash;and a union on behalf of represented employees&mdash;may lawfully waive negotiable statutory rights. (The Court of Appeal expressed doubt, however, that employees could ever waive <em>nonnegotiable </em>statutory rights.) But any such waiver of a negotiable statutory right in a CBA must be &ldquo;clear and unmistakable,&rdquo; meaning that the CBA must do more than speak in general language: the language must specify either the statutory protection being waived or the statute itself.</div> <div> &nbsp;</div> <div> The employees argued that the CBA flunked this test for a valid waiver because the CBA did not use the word &ldquo;waive,&rdquo; and did not cite the statute addressing meal periods. The Court of Appeal rightly rejected these hypertechnical arguments. Even though the CBA did not cite any statute addressing meal periods, the CBA&mdash;by saying when &ldquo;a meal period is not required&rdquo;&mdash;did use language that was &ldquo;flatly irreconcilable&rdquo; with the statutory right, and in a context in which the statute, by its terms, made that right negotiable.</div> <div> &nbsp;</div> <div> <strong>What <em>Ehret </em>Means For Employers</strong></div> <div> &nbsp;</div> <div> Although <em>Ehret </em>addressed only the enforceability of a meal period waiver in the context of a CBA, its analysis is useful generally. California famously protects employees&rsquo; rights. One right so protected, however, is the employee&rsquo;s right to waive negotiable statutory protections. One such protection is a meal period&mdash;subject to negotiation under the limited circumstances existing here. That protection can be waived either individually or, as here, through collective bargaining. (Another negotiable right, subject to waiver only through collective bargaining, is the right to receive vested vacation pay upon termination of employment, under Labor Code section 227.3.)&nbsp;</div> <div> &nbsp;</div> <div> <em>Ehret </em>champions reason and common sense by making it clear that a waiver, to be valid, need not use magic words such as &ldquo;waive&rdquo; and need not legalistically cite the statutory provision at issue. Language suffices to accomplish a waiver if the language simply makes clear that the employee is giving up a negotiable right that the statute, absent a waiver, would protect.&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/EL081618 OFCCP Winds Down Summer By Issuing New Guidance on Religious Discrimination and Announcing New Focused Review Process https://www.seyfarth.com:443/publications/EL081618 Thu, 16 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;) is closing the summer by issuing two new enforcement directives. The first, Directive 2018-03, clarifies the OFCCP&rsquo;s enforcement of religious non-discrimination in light of recent court decisions and executive orders. The second, Directive 2018-04, creates focused reviews for Executive Order 11246 (&ldquo;EO 11246&rdquo;), Section 503 of the Rehabilitation Act (&ldquo;Section 503&rdquo;), and the Vietnam Era Veterans&rsquo; Readjustment Assistance Act (&ldquo;VEVRAA&rdquo;). These two directives come just a week after the OFCCP released its much anticipated publication outlining what federal contractors can expect from the agency.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/ofccp-winds-down-summer-by-issuing-new-guidance-on-religious-discrimination-and-announcing-new-focused-review-process/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC081518 Federal Court Leaves Opportunity For A “Compelling” Exhaustion Argument https://www.seyfarth.com:443/publications/WC081518 Wed, 15 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The U.S. District Court for the District of New Jersey recently issued a ruling with respect to Defendants&rsquo; &ldquo;compelling&rdquo; exhaustion argument that Plaintiffs failed to exhaust administrative remedies with respect to their disparate treatment and disparate impact theories of Title VII claims relied on to support their motion for class certification, as those claims were outside the scope of Plaintiffs&rsquo; underlying EEOC charges. In rejecting Defendants&rsquo; argument, the Court invited Defendants to raise their argument more appropriately on a motion for summary judgment. The decision is an important one for employers facing employment discrimination class actions.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/08/federal-court-leaves-opportunity-for-a-compelling-exhaustion-argument/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS081518 Seyfarth Attorneys to Participate in ITechLaw 2018 European Conference in Milan, Italy https://www.seyfarth.com:443/publications/TS081518 Wed, 15 Aug 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP is pleased to be a Global Sponsor at ITechLaw&rsquo;s 2018 European Conference in Milan, October 17&ndash;19.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/08/articles/trade-secrets/seyfarth-attorneys-to-participate-in-itechlaw-2018-european-conference-in-milan-italy/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA081518-LE OFCCP Winds Down Summer By Issuing New Guidance on Religious Discrimination and Announcing New Focused Review Process https://www.seyfarth.com:443/publications/MA081518-LE Wed, 15 Aug 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;<em>The Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;) began this month by issuing two new enforcement directives.&nbsp; The first, <a href="https://www.dol.gov/ofccp/regs/compliance/directives/Dir2018-03-ESQA508c.pdf">Directive 2018-03</a>, clarifies the OFCCP&rsquo;s enforcement of religious non-discrimination in light of recent court decisions and executive orders.&nbsp; The second, <a href="https://www.dol.gov/ofccp/regs/compliance/directives/Dir2018-04-ESQA508c.pdf">Directive 2018-04</a>, creates focused reviews for Executive Order 11246 (&ldquo;EO 11246&rdquo;), Section 503 of the Rehabilitation Act (&ldquo;Section 503&rdquo;), and the Vietnam Era Veterans&rsquo; Readjustment Assistance Act (&ldquo;VEVRAA&rdquo;).&nbsp; These two directives come just a week after the OFCCP released its much anticipated <a href="https://www.dol.gov/ofccp/regs/compliance/posters/FS_WhatFedContractorsCanExpect-v2ESQA508c.pdf">publication</a> outlining what federal contractors can expect from the agency.</em></p> <p> <strong>&ldquo;What Contractors Can Expect&rdquo;</strong></p> <p> On August 2nd, the OFCCP published the &ldquo;What Contractors Can Expect&rdquo; guidance which lays out the agency&rsquo;s enforcement plans and echoes the message of transparency that the OFCCP announced when the new leadership took over and that Acting OFCCP Director Craig Leen recently reiterated to the contractor community during his opening address at the 2018 National Industry Liaison Group.&nbsp; In it the OFCCP assures contractors that they can expect:</p> <ul> <li> Access to Accurate Compliance Assistance Material;</li> <li> Timely Responses to Compliance Assistance Questions;</li> <li> Opportunities to Provide Meaningful Feedback and Collaborate;</li> <li> Professional Conduct by OFCCP&rsquo;s Compliance Staff;</li> <li> Neutral Scheduling of Compliance Evaluations;</li> <li> Reasonable Opportunity to Discuss Compliance Evaluation Concerns;</li> <li> Timely and Efficient Progress of Compliance Evaluations; and</li> <li> Confidentiality</li> </ul> <p> These expectations are consistent with the message of collaboration that the OFCCP has promised under the current administration.&nbsp; References to the neutral scheduling of compliance reviews and the opportunity to discuss concerns contained in the guidance echo previous actions taken by the agency in 2018.</p> <p> The agency followed up on August 10th by issuing two new directives.</p> <p> <u><strong>Directive 2018-03: Executive Order 11246 &sect; 204(c), religious exemption</strong></u></p> <p> Directive 2018-03 clarifies the agency&rsquo;s position on religious non-discrimination under EO 11246 in light of recent cases involving the relationship between federal regulation and the Free Exercise Clause, including <em>Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm&rsquo;n, Trinity Lutheran Church of Columbia, Inc. v. Comer, </em>and<em> Burwell v. Hobby Lobby Stores, Inc.</em>&nbsp; In its <a href="https://www.dol.gov/newsroom/releases/ofccp/ofccp20180810">press release</a>, the OFCCP noted that this Directive also serves to align the agency&rsquo;s enforcement actions with recent executive orders issued by the White House protecting religious freedom and the ability of faith-based and community organizations to compete fairly for government contracts and grants.&nbsp; The Directive instructs OFCCP staff to take these policies into consideration when providing compliance assistance, processing complaints, and reviewing compliance with EO 11246.&nbsp;</p> <p> In practical terms, this Directive may not impact the vast majority of interactions that occur between the agency and the contractor community, as it is directed to OFCCP staff.&nbsp; However, it does signal a change in the way that the agency reviews religious accommodations during compliance evaluations.&nbsp; It may also impact complaint investigations against certain employers which allege discrimination on the basis of religion or sexual orientation and gender identity.&nbsp; The Directive specifically notes that &ldquo;[t]his Directive supersedes any previous guidance that does not reflect these legal developments, for example, the section in OFCCP&rsquo;s Frequently Asked Questions: Sexual Orientation and Gender Identity regarding &ldquo;Religious Employers and Religious Exemption.&rdquo; See <a href="https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html">https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html</a>.&rdquo;&nbsp;</p> <p> <strong>Directive 2018-04: Focused reviews of contractor compliance with Executive Order 11246 (E.O.), as amended; Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended; and Vietnam Era Veterans&rsquo; Readjustment Assistance Act of 1974 (VEVRAA), as amended</strong></p> <p> While the impact of Directive 2018-03 appears to be fairly limited, Directive 2018-04 represents a major change in the way that the OFCCP enforces affirmative action and non-discrimination requirements, particularly under Section 503 and VEVRAA.&nbsp; The Directive calls for the agency to direct a portion of future scheduling lists to &ldquo;focused reviews&rdquo; of EO 11246, Section 503 and VEVRAA.&nbsp; The Directive further notes that in these focused reviews, &ldquo;OFCCP would go onsite and conduct a comprehensive review of the particular authority at issue.&rdquo;&nbsp; The reviews would include &ldquo;interviews with managers&hellip;as well as employees affected&rdquo; by the particular regulation and also evaluations of &ldquo;hiring and compensation data.&rdquo;&nbsp; The Directive instructs the OFCCP staff to develop a standard protocol for conducting the focused reviews as well as staff training, contractor education and compliance assistance materials.&nbsp; This policy suggests that the agency will be increasing its focus on the enforcement of Section 503 and VEVRAA which have historically received less attention than EO 11246 during compliance reviews.</p> <p> <strong>What This Means for Employers?</strong></p> <p> Neither the &ldquo;What Contractors Can Expect&rdquo; policy, nor the directive clarifying the religious exemption signal any significant change for contractors.&nbsp; The creation of the focused reviews, however, puts contractors on notice that the OFCCP will be scrutinizing policies and practices that relate to disability and protected veteran status much more closely. In anticipation of the first round of focused reviews, contractors should ensure that their current policies and practices comply with the 2014 updates to the Section 503 and VEVRAA regulations.&nbsp; Contractors should specifically focus on the following:</p> <ul> <li> Implementing an audit and reporting system to measure the effectiveness of their affirmative action efforts and take any necessary remedial measures;</li> <li> Documenting requests for accommodations;</li> <li> Ensuring that an interactive process for requesting accommodations during the hiring process is in place;</li> <li> Soliciting protected veteran and disability status from applicants and new hires;</li> <li> Listing all job openings with state employment delivery services; and</li> <li> Reviewing job descriptions and qualifications to ensure that they do not screen out protected veterans or individuals with disabilities.</li> </ul> <p> Contractors should also remember that in connection with both current compliance reviews and the new focused reviews, they may be asked to provide their most recent VETS-4212 Report.&nbsp; The deadline for filing the 2018 VETS-4212 Report is fast approaching on September 30, 2018.&nbsp;</p> <p> It is unclear how the introduction of the focused reviews may impact desk audit submissions or whether these reviews will necessitate additional analyses for hiring or compensation.&nbsp; We anticipate further announcements from the OFCCP given its promise to provide contractor education and compliance assistance materials.&nbsp; We will continue to monitor these changes and will alert you as more develops.</p> <p> In the meantime, if you have questions about best practices for OFCCP compliance and audit defense, please contact a member of Seyfarth&rsquo;s Organizational Strategy &amp; Analytics Team or your Seyfarth relationship partner.</p> https://www.seyfarth.com:443/publications/OMM081518-LE Striking Workers Are Now Eligible For Unemployment Benefits In New Jersey https://www.seyfarth.com:443/publications/OMM081518-LE Wed, 15 Aug 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>On August 10, 2018, Governor Phil Murphy signed a law that would permit striking workers to collect unemployment benefits in New Jersey. The law covers any claim for a period of unemployment commencing on or after July 1, 2018.&nbsp;</em></div> <div> &nbsp;</div> <div> The bill amends New Jersey&rsquo;s unemployment insurance law and provides that an employee is eligible for unemployment benefits because of a labor dispute if the labor dispute is caused by the failure or refusal of the employer to comply with an agreement or contract between the employer and the employee, including a collective bargaining agreement.&nbsp; In addition, if unemployment is caused by a labor dispute, including a strike or other concerted employee activities, but not by a lockout or a labor dispute caused by the employer&#39;s non-compliance, the striking employee is entitled to unemployment benefits after a thirty (30) day waiting period.&nbsp; If the employer does not allow the striking employee to return to work or if the employer hires permanent replacement workers, the thirty (30) day waiting period shall not apply.&nbsp;</div> <div> &nbsp;</div> <div> Notably, a replacement worker shall be presumed permanent unless the employer certifies in writing that the striking employee will be permitted to return to his or her prior position upon conclusion of the strike.&nbsp; If the employer does not permit the employee to return, the striking employee shall be entitled to recover any benefits lost as a result of the thirty (30) day waiting period before receiving benefits. Additionally, the State may also impose a penalty upon the employer of up to $750 per employee per week of benefits lost. The penalty is payable to the unemployment insurance fund.&nbsp;</div> <div> &nbsp;</div> <div> State lawmakers introduced similar legislation two years ago, however, then Governor Chris Christie vetoed that bill, noting that &ldquo;striking workers, no matter what effect their actions have on the operations of their employer, by definition, cause their own unemployment by choosing not to work.&rdquo;&nbsp; In addition, Governor Christie believed that unemployment insurance law &ldquo;should not be used as a tool to give labor organizations additional leverage in labor negotiations.&rdquo;&nbsp; Under Governor Murphy this pro-union bill was given a second chance.&nbsp; The Assembly passed the bill by a vote of 48-25 in June followed by a 23-14 vote in the Senate shortly thereafter.&nbsp;</div> <div> &nbsp;</div> <div> New Jersey joins New York - which has a 49 day waiting period - and several other states in offering unemployment benefits to striking workers.&nbsp; Legislation such as this that has been enacted since Governor Murphy was sworn into office continues to signal to employers that increased employee protections will be of paramount importance to Governor Murphy&rsquo;s regime.&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/CP081518 Proposition 65: Sign of the Times—For Employers, What’s New is Old https://www.seyfarth.com:443/publications/CP081518 Wed, 15 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: As of August 30, 2018, California businesses must provide the public with more information about dangerous chemicals present at the business location. Many California employers will comply with the new requirements through the Cal/OSHA-required workplace hazardous communication program. For occupational exposures that do not meet the thresholds for HazMat communications, posting new signs will meet the requirements.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/08/15/proposition-65-sign-of-the-times-for-employers-whats-new-is-old/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM081518 Marijuana Still Legally Risky For Non-Citizens (And Those Who Sponsor Them) https://www.seyfarth.com:443/publications/IMM081518 Wed, 15 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: While marijuana possession and use continue to become legal in many U.S. states, either for strictly medicinal purposes or for any purpose at all, it can still be a basis for denial of immigration benefits, such as temporary visas, legal permanent residency, and/or naturalization, or for revocation of existing immigration benefits. This can even be true where the possession and/or use never resulted in either a criminal charge or conviction.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/08/marijuana-still-legally-risky-for-non-citizens-and-those-who-sponsor-them/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT081418 Marijuana Still Legally Risky For Non-Citizens (And Those Who Sponsor Them) https://www.seyfarth.com:443/publications/TBT081418 Tue, 14 Aug 2018 00:00:00 -0400 <p> While marijuana possession and use continue to become legal in many U.S. states, either for strictly medicinal purposes or for any purpose at all, it can still be a basis for denial of immigration benefits, such as temporary visas, legal permanent residency, and/or naturalization, or for revocation of existing immigration benefits. This can even be true where the possession and/or use never resulted in either a criminal charge or conviction.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/08/marijuana-still-legally-risky-for-non-citizens-and-those-who-sponsor-them/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA081418-LE New York City Commission on Human Rights Proposes New Rules Broadening the Definition of Gender and Prohibited Discriminatory Conduct https://www.seyfarth.com:443/publications/MA081418-LE Tue, 14 Aug 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>The New York City Commission on Human Rights (the &ldquo;Commission&rdquo;) is proposing to amend its rules to establish certain definitions and clarify the scope of protections with respect to gender under the New York City Human Rights Law.&nbsp; The proposed amendments include: (1) adding definitions for the terms &ldquo;cisgender,&rdquo; &ldquo;gender identity,&rdquo; &ldquo;gender expression,&rdquo; &ldquo;gender,&rdquo; &ldquo;gender non-conforming,&rdquo; &ldquo;intersex,&rdquo; &ldquo;sex,&rdquo; and &ldquo;transgender;&rdquo; and (2) expanding what is considered prohibited discriminatory conduct based on gender, such as failure to use an employee&rsquo;s preferred name, pronoun or title, access to single-sex facilities / single-sex programs, certain dress and grooming standards, employee benefits, and employee accommodations.&nbsp; The Commission has opened the comment period for the proposed rule change and will hold a public hearing on September 25, 2018.&nbsp;</em></div> <div> &nbsp;</div> <div> The Commission&rsquo;s recent proposal to amend Title 47 of the Rules of the City of New York (the &ldquo;Rules&rdquo;) to establish certain definitions and clarify the scope of protections provided under <a href="http://www.nyc.gov/html/dcas/downloads/pdf/misc/psb_100_13_8_107.pdf">Title 8, Chapter 1 of the Administrative Code of the City of New York, Human Rights Law</a> (&ldquo;NYCHRL&rdquo;) is part of a long history by which New York City has created one of the broadest set of protections from discrimination on the basis of gender.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> By way of background, in 2002 the New York City Council passed Local Law No. 3 of 2002 (also known as the Transgender Rights Bill) in an effort to ensure protection for people whose gender and self-image &ldquo;do not fully accord with the legal sex assigned to them at birth.&rdquo;&nbsp; Under this law, the term &ldquo;gender&rdquo; was broadened to include &ldquo;actual or perceived sex&rdquo; and it was codified that &ldquo;discrimination based on an individual&rsquo;s gender identity, self-image, appearance, behavior, or expression&rdquo; constituted a violation of the NYCHRL.&nbsp; Earlier this year, the New York City Council passed Local Law No. 8 of 2018, further broadening the definitions of &ldquo;sexual orientation&rdquo; and &ldquo;gender&rdquo; under the NYCHRL.</div> <div> &nbsp;</div> <div> In an effort to help people understand their rights and responsibilities under the NYCHRL, the Commission published its <a href="https://www1.nyc.gov/site/cchr/law/legal-guidances-gender-identity-expression.page">Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression</a>.&nbsp; While not law, the guidance provides insight into how the Commission enforces the NYCHRL&rsquo;s protections as they apply to discrimination based on gender, gender identity, and gender expression.&nbsp; Thus, while much of what is contained in the proposed amendment to the Rules already exists in the guidance, amending the Rules would codify the definitions and employers&rsquo; non-discrimination obligations under the NYCHRL.&nbsp;</div> <div> &nbsp;</div> <div> There are two key proposed changes to the Rules, which can be reviewed in full <a href="http://rules.cityofnewyork.us/sites/default/files/proposed_rules_pdf/cchr_gender_proposed_rule.pdf">here</a>.&nbsp;</div> <div> &nbsp;</div> <div> <strong>1.<span style="white-space:pre"> </span>Adding Definitions for Specific Terms.&nbsp;</strong></div> <div> &nbsp;</div> <div> First, the proposed amendments include adding definitions for each of the following terms: &ldquo;cisgender,&rdquo; &ldquo;gender identity,&rdquo; &ldquo;gender expression,&rdquo; &ldquo;gender,&rdquo; &ldquo;gender non-conforming,&rdquo; &ldquo;intersex,&rdquo; &ldquo;sex,&rdquo; and &ldquo;transgender.&rdquo;&nbsp; By defining these terms, the Commission will further clarify the protected characteristics under the NYCHRL.</div> <div> &nbsp;</div> <div> <strong>2.<span style="white-space:pre"> </span>Prohibited Unlawful Discriminatory Practices Based on Gender.</strong></div> <div> &nbsp;</div> <div> Second, the proposed amendments also include new language setting forth prohibited unlawful discriminatory practices based on gender.&nbsp; Specifically, the amendments include the following:</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(a)&nbsp; Deliberate Misuse of an Individual&rsquo;s Chosen Name, Pronoun or Title.&nbsp;&nbsp;</em></strong></div> <div> &nbsp;</div> <div> Under the proposed rules, employers who deliberately misuse or refuse to use an employee&rsquo;s chosen name, pronoun or gendered title would be in violation of the NYCHRL if the refusal to do so is motivated by the individual&rsquo;s gender, irrespective of the employee&rsquo;s sex assigned at birth, except in the limited circumstances where federal, state or local law requires otherwise (such as for purposes of employment eligibility verification with the federal government).&nbsp; It would not be a violation to ask someone in good faith if they have a chosen name or a preferred pronoun.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The proposed rule also provides examples of prohibited actions, which include: (i) conditioning an individual&rsquo;s use of their chosen name on obtaining a court-ordered name change, (ii) requiring proof of medical procedures to use their chosen name, pronoun, or title, and (iii) refusing to use an employee&rsquo;s chosen name in their email account.</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(b)&nbsp; Refusing to Allow Individuals to Use Single-Sex Facilities or Participate in Single-Sex Programs Consistent with their Gender Identity.</em></strong></div> <div> &nbsp;</div> <div> Under the proposed rules, employers would be required to allow employees to use single-sex facilities (such as bathrooms, locker rooms or hospital rooms) and participate in single-sex programs consistent with their gender identity, regardless of their sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification.&nbsp; It would not be a defense that other employees, customers, or program participants object to sharing a facility or participating in a program with a transgender or gender non-conforming person.&nbsp;</div> <div> &nbsp;</div> <div> Examples of prohibited conduct would include: (i) requiring a transgender or gender non-conforming person to use a single-occupancy restroom; or (ii) requiring him or her to provide proof of their gender to access the single-sex program or facility.</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(c)&nbsp; Imposing Different Dress or Grooming Standards Based on Gender.&nbsp;</em></strong></div> <div style="margin-left: 40px;"> &nbsp;</div> <div> Employers would also be prohibited from requiring dress codes or uniforms, or applying grooming or appearance standards, that impose different requirements for individuals based on their sex or gender.&nbsp; Under the proposed amendments, it is not a defense to a charge of discrimination that the employer has a violative dress code policy because it is catering to the preferences of its customers or clients.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Examples of prohibited policies would be: (i) requiring different uniforms for men and women (while different uniform options may be offered, it is unlawful to require an employee to wear one style as opposed to another); and (ii) requiring or permitting only female employees to wear makeup or jewelry.&nbsp; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(d)&nbsp; Employers Must Provide Equal Employee Benefits Regardless of Gender.&nbsp;</em></strong></div> <div> &nbsp;</div> <div> Employers offering benefit plans not subject to the Employee Retirement Income Security Act (&ldquo;ERISA&rdquo;) must, under the proposed rule, offer benefits equally to all employees regardless of gender and may not provide health benefit plans that deny, limit or exclude services based on gender.&nbsp; According to the proposed rule, to be non-discriminatory with respect to gender according, health benefit plans may not exclude coverage for transgender care.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Examples of benefit plans that would violate the rule include: (i) offering health benefits that exclude coverage for procedures based on gender (such as covering prostate cancer screening for cisgender men but not for transgender women); (ii) offering benefits that exclude from coverage or limit coverage for health care related to gender transition, including but not limited to hormone replacement therapy, psychological or psychiatric treatment, hormone suppressers, voice training, or surgery; and (iii) basing paid parental leave policies on a parent&rsquo;s gender&mdash;such as giving twelve weeks of paid parental leave to women versus to men&mdash;as opposed to basing it on physical recovery from childbirth, which remains acceptable.</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(e)&nbsp; Gender May Not Be The Basis for Refusing a Request for Accommodation.</em></strong></div> <div> &nbsp;</div> <div> Employers would be prohibited, per the proposed rule, from using gender as the basis to deny a request for accommodation for disability or other request for changes to the terms and conditions of an individual&rsquo;s employment, participation in a program, or use of a public accommodation&mdash;which may include medical or personal leave or schedule changes.&nbsp; Employers would need to treat leave requests to address medical or health care needs related to an individual&rsquo;s gender identity in the same manner as requests for all other medical conditions, as well as provide reasonable accommodations to individuals undergoing gender transition.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Comment Period and Next Steps</strong>:</div> <div> &nbsp;</div> <div> The Commission has opened the public comments period through September 25, 2018.&nbsp; Comments can be submitted by website, email, mail, or fax.&nbsp; Further details about how to submit comments can be found <a href="http://rules.cityofnewyork.us/content/gender">here</a>. The Commission will also hold a public hearing on the proposed rule.&nbsp; The public hearing will take place at 11:00 a.m. on September 25, 2018.&nbsp; The hearing will be in Spector Hall, located at 22 Reade Street, New York, New York 10007 on the first floor.</div> <div> &nbsp;</div> <div> Employers should consider how these proposed changes may impact their businesses and whether they want to submit comments on the proposed amendments.&nbsp; For any questions regarding the proposed changes, attorneys at Seyfarth Shaw LLP are available.&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/EL081418 Fourth Circuit Finds Former Employee Established Prima Facie Case of Retaliation https://www.seyfarth.com:443/publications/EL081418 Tue, 14 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Fourth Circuit revived the retaliation case of a former city employee who was terminated one day after expressing an intent to file a formal grievance against her supervisor for race-based harassment, finding the plaintiff&rsquo;s belief that she was being subjected to unlawful harassment to be reasonable &ndash; and noting that the city was on notice of objectionable behavior by the supervisor for some time.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/fourth-circuit-finds-former-employee-established-prima-facie-case-of-retaliation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/boutroswapo081418 Andrew Boutros quoted in the Washington Post https://www.seyfarth.com:443/news/boutroswapo081418 Tue, 14 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 14 story from the Washington Post, &quot;Can you record your boss at work without him or her knowing?&quot; Boutros said that if an employee goes and surreptitiously records their supervisor or boss in order to gain an advantage to get something that they otherwise would not get -- blackmailing them, say, for a promotion -- the recording can become illegal, and face steep punishment. You can read the <a href="https://www.washingtonpost.com/business/2018/08/15/can-you-record-your-boss-work-without-him-or-her-knowing/?noredirect=on&amp;utm_term=.ceaeacfb973a">full article here</a>.</p> https://www.seyfarth.com:443/news/launeyhre081418 Kristina Launey quoted in Human Resource Executive https://www.seyfarth.com:443/news/launeyhre081418 Tue, 14 Aug 2018 00:00:00 -0400 <p> Kristina Launey was quoted in an August 14 story from Human Resource Executive, &quot;Lawsuits Soar over Inaccessible Websites,&quot; on how the number of website-accessibility lawsuits this year may surpass those in 2017 by 30 percent, according to Seyfarth&#39;s ADA lawsuit analysis. Launey said that these lawsuits are pushing the concept that you&rsquo;re not providing equal employment opportunity if your website is not accessible. You can read the <a href="http://hrexecutive.com/lawsuits-soar-over-inaccessible-websites/">full article here</a>.</p> https://www.seyfarth.com:443/news/tonerbloombergbna081318 Jack Toner quoted in Bloomberg BNA https://www.seyfarth.com:443/news/tonerbloombergbna081318 Mon, 13 Aug 2018 00:00:00 -0400 <p> Jack Toner was quoted in an August 13 story from Bloomberg BNA, &quot;Punching In: Gig Employers Look to Labor Department,&quot; on the last two weeks left on National Labor Relations Board Member Mark Gaston Pearce&rsquo;s (D) term. Toner said that he is guessing there are some decisions Mark will want to be heard on, even if it&rsquo;s in dissent.</p> https://www.seyfarth.com:443/news/boutroslwc081318 Andrew Boutros quoted in Law Week Colorado https://www.seyfarth.com:443/news/boutroslwc081318 Mon, 13 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 13 story from Law Week Colorado, &quot;Anatomy of an Outside Investigation.&quot; Boutros said that the probes are entering into the C-suite in a way that has never happened before.</p> https://www.seyfarth.com:443/publications/MA081318-LE2 New Jersey’s Department of Labor and Workforce Development Teams Up With USDOL To Combat Employee Misclassification https://www.seyfarth.com:443/publications/MA081318-LE2 Mon, 13 Aug 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On August 10, 2018, New Jersey&rsquo;s Department of Labor and Workforce Development and the United States Department of Labor signed a cooperation agreement aimed at further increasing employee protections by allowing the two agencies to coordinate investigations and share resources to address the misclassification of employees as independent contractors in New Jersey.</em></p> <p> The cooperation agreement comes three months after Governor Phil Murphy signed an <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA050318LE.pdf">Executive Order</a> establishing the Task Force on Employee Misclassification in what the Governor described as an attempt to crack down on &ldquo;unscrupulous contractors who engage in 1099 fraud.&rdquo; According to Governor Murphy&rsquo;s office, auditors have identified more than $80 million in underreported employer contributions since 2010 in New Jersey alone. The Task Force includes representatives from New Jersey&rsquo;s Department of Labor and Workforce Development, the state treasury department, the&nbsp; Department of Law and Public Safety and several other agencies. The Task Force held their first meeting a few days before the cooperation agreement between New Jersey and the DOL was signed.</p> <p> The cooperation agreement is intended to send a strong message to businesses that misclassification laws &ldquo;are being strictly enforced.&rdquo;&nbsp; The Labor Workforce and Development&rsquo;s chief responsibility is to ensure workers are protected and that businesses are playing by the rules. The partnership with the DOL will help New Jersey ensure that the state&rsquo;s employees &ldquo;get the protections they deserve,&rdquo; according to the state&rsquo;s labor commissioner Robert Asaro-Angelo.</p> <p> Mark Watson, administrator for the&nbsp;Northeast regional office of the DOL&rsquo;s wage and hour division, said in a statement that &ldquo;[t]he U.S. Department of Labor looks forward to improving coordination and increasing joint outreach and compliance assistance efforts with all of our state partners.&rdquo;</p> <p> Both the Task Force and the cooperation agreement are likely to focus a large part of their resources in the construction, transportation and information technology industries, along with employees in the gig economy, as misclassification issues arise regularly in those sectors.&nbsp; &nbsp;</p> <p> Joint state-federal actions to increase employee protections continue to be enacted across the country. Companies in New Jersey who engage independent contractors should review their classification of workers to ensure compliance. Both the Executive Order and the cooperation agreement are designed to send a strong message to employers in New Jersey that legal compliance with employee classification should be taken seriously.&nbsp;&nbsp;</p> https://www.seyfarth.com:443/publications/TS081318 Upcoming Webinar! 2018 Massachusetts Non-Compete and Trade Secrets Reform https://www.seyfarth.com:443/publications/TS081318 Mon, 13 Aug 2018 00:00:00 -0400 <p> Please join us for a one-hour CLE webinar on Thursday, August 16, 2018, at 1:00 p.m. Eastern / 12:00 p.m. Central / 10:00 a.m. Pacific.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/08/articles/legislation-2/upcoming-webinar-2018-massachusetts-non-compete-and-trade-secrets-reform/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EEOC081018 Federal Court Delivers EEOC A Victory Over UPS In ADA Lawsuit Regarding Pay https://www.seyfarth.com:443/publications/EEOC081018 Fri, 10 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A federal district court in Kansas recently granted the EEOC&rsquo;s motion for judgment on the pleadings in an ADA lawsuit brought against UPS and an employee union, holding that a policy in Defendants&rsquo; collective bargaining agreement where drivers who are disqualified for medical reasons can only be compensated at 90% of their rates of pay for temporary non-driving jobs, while drivers disqualified for non-medical reasons such as DWI&rsquo;s are compensated at a 100% rate, was facially discriminatory.<br /> <br /> <a href="https://www.eeoccountdown.com/2018/08/10/federal-court-delivers-eeoc-a-victory-over-ups-in-ada-lawsuit-regarding-pay/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CA081018-TEO Understanding and Planning for the Excise Tax on Executive Compensation Paid by Tax-Exempt Employers https://www.seyfarth.com:443/publications/CA081018-TEO Fri, 10 Aug 2018 00:00:00 -0400 <div> <span style="font-size:14px;"><strong>Introduction</strong></span></div> <div> &nbsp;</div> <div> In the past decade or so, the competition for executive talent in the tax-exempt sector of the United States economy has increased. Executives seldom begin and end their careers with the same organization and there is increased competition for executive talent with the for profit sector of the economy. As a consequence, compensation levels paid to executives of tax-exempt organizations have steadily increased while, at the same time, an increasing percentage of that compensation has been made contingent on the operational performance of the organization, including bonuses for the attainment of both mission-related and financial goals.&nbsp;</div> <div> &nbsp;</div> <div> As levels of compensation have escalated in the tax-exempt sector, so has the level of Congressional scrutiny. In December 2017, Congress, as part of broader tax legislation, enacted a new excise tax on annual compensation paid by all tax-exempt organizations in excess of $1 million. Bear in mind that the $1 million threshold is not adjusted for inflation, so more and more tax-exempt organizations will become subject to the excise tax as wages increase over time.&nbsp;</div> <div> &nbsp;</div> <div> From a tax policy perspective, the excise tax appears intended to create a sort of parity between tax-exempt organizations and publicly held corporations. Under section 162(m),<sup>1</sup> publicly held corporations generally cannot deduct compensation in excess of $1 million per year with respect to certain employees. Effectively, this increases the tax owed by publicly held corporations by the product of those excess amounts and the corporate tax rate, currently 21%, the same rate as the excise tax now applied to tax-exempt organizations.&nbsp;</div> <div> &nbsp;</div> <div> The purpose of this article is to explain how the new excise tax is determined, and identify some planning options available to mitigate its effects on current and deferred compensation paid to highly-compensated employees. For example, and as further detailed below:</div> <div> &nbsp;</div> <ul> <li> Certain state universities, colleges, and hospitals may wish to explore whether to give up their 501(c)(3) exemptions and, instead, rely on their status as a &ldquo;political subdivision&rdquo; or as &ldquo;an integral part of a state or local government&rdquo; in order to remain exempt from both federal income tax and this new excise tax.</li> <li> Tax-exempt organizations may seek to utilize &ldquo;split dollar loan arrangements,&rdquo; an alternative to traditional unfunded deferred compensation arrangements, because the loans utilized to provide the employee with a deferred benefit do not constitute &ldquo;remuneration&rdquo; for purposes of the $1 million threshold.&nbsp;</li> <li> If portions of an employee&rsquo;s compensation could appropriately be paid by an affiliate which is not a related organization for this purpose, such as an unrelated management company, tax-exempt organizations may consider bifurcating that compensation between those entities in order to reduce or avoid the excise tax.</li> <li> For tax-exempt organizations that become subject to the excise tax, establishing the &ldquo;rebuttable presumption of reasonableness&rdquo; with respect to the payment of more than $1 million in annual &ldquo;remuneration&rdquo; will become even more important.</li> </ul> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>In General</strong></span></div> <div> &nbsp;</div> <div> Prior to the 2017 enactment of the new excise tax, tax-exempt organizations were not subject to taxation on any compensation or benefits paid to their executives, so as long as the amounts paid were considered reasonable in relation to the services provided to the organization. It was only in situations where some element or all of the compensation or benefits was unreasonable that the organization&rsquo;s tax-exempt status could be in jeopardy because the excessive amount could result in a violation of the prohibition against the private inurement of net earnings. In addition, in the case of section 501(c)(3) charitable organizations and section 501(c)(4) social welfare organizations, the recipient of the unreasonable compensation and those who knowingly approved it could be subject to the excise taxes imposed by section 4958, the so-called &ldquo;intermediate sanctions&rdquo; provision.</div> <div> &nbsp;</div> <div> Section 4960 now imposes an excise tax on tax-exempt organization executive compensation equal to 21 percent<sup>2</sup> of: (i) &ldquo;remuneration&rdquo; (other than any excess parachute payment) in excess of $1 million paid to a &ldquo;covered employee&rdquo; by an &ldquo;applicable tax-exempt organization&rdquo; for a tax year, plus (ii) any &ldquo;excess parachute payment&rdquo; paid by an applicable tax-exempt organization to a covered employee other than an employee who is not &ldquo;highly compensated.&rdquo;<sup>3</sup> The 21% excise tax is imposed on excess parachute payments even if the covered employee&rsquo;s total remuneration does not exceed the $1 million threshold. Remuneration paid by a &ldquo;related&rdquo; entity is added to the calculation of total remuneration.</div> <div> &nbsp;</div> <div> Tax-exempt organizations can expect to continue to have to pay market rates for recruiting and retention purposes, and still compete with for-profits for talent. The authors expect that the new provision may put added pressure on compensation determinations in any case where the excise tax will or could become payable (compensation in excess of $1 million or golden parachute severance arrangements). In those cases, it may be even more important to meet the requirements to establish the &ldquo;rebuttable presumption of reasonableness&rdquo; and procure opinions from compensation and tax counsel as to the reasonableness of the overall compensation package in each such case (with updates as appropriate).</div> <div> &nbsp;</div> <div> Particularly in the case of compensation owed under employment agreements already in effect, the obligation to make these excise tax payments when paying reasonable compensation (or a reasonable separation payment pursuant to a &ldquo;golden parachute&rdquo; arrangement) should not amount to an automatic excess benefit transaction, private inurement or a violation of the limitation on private benefit.</div> <div> &nbsp;</div> <div> Affected tax-exempt organizations should maintain and regularly update a roster of their covered employees and related entities, and track the total amount of remuneration being paid. If compensation could appropriately be paid by an affiliate which is not a related organization for this purpose, as further described below, tax-exempt organizations may wish to consider bifurcating a covered employee&rsquo;s compensation to reduce or avoid the excise tax.</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>&ldquo;Covered Employees&rdquo;</strong></span></div> <div> &nbsp;</div> <div> For purposes of this provision, a &ldquo;covered employee&rdquo; means an employee (including any former employee) of an applicable tax-exempt organization if the employee is one of the five highest compensated employees of the organization for the taxable year or was a covered employee of the organization (or any predecessor) for any preceding taxable year beginning after December 31, 2016. This determination is made each taxable year, so the five &ldquo;covered employees&rdquo; may change from year to year. Importantly, once an employee becomes a &ldquo;covered employee,&rdquo; he or she will remain a covered employee for purposes of this provision.&nbsp;</div> <div> &nbsp;</div> <div> Consequently, an applicable tax-exempt organization may over time have significantly more than five covered employees whose compensation is subject to the excise tax, as the number of covered employees grows year-over-year.</div> <div> &nbsp;</div> <div> Of critical importance is the fact that the determination of who is a covered entity is made on an organization-by-organization basis. This means that within a group of affiliated tax-exempt organizations, such as a health system comprised of a parent corporation and multiple operating subsidiaries, the affiliated group could have considerably more than five covered employees in any given tax year.&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>&ldquo;Applicable Tax-Exempt Organizations&rdquo; - Which Tax-Exempt Organizations Are Subject to the Tax?</strong></span></div> <div> &nbsp;</div> <div> Virtually all tax-exempt organizations are subject to the excise tax because the term &ldquo;applicable tax-exempt organization&rdquo; is broadly defined to include all organizations exempt from taxation under section 501(a), entities that have income excluded from gross income under section 115(1), and section 527 political organizations.</div> <div> &nbsp;</div> <div> <strong><em>Organizations Subject to the Tax</em></strong></div> <div> &nbsp;</div> <div> The excise tax applies to an &ldquo;applicable tax-exempt organization.&rdquo; That term is defined to mean any organization that for the year is exempt from taxation under section 501(a). Importantly, this definition encompasses all types of tax-exempt organizations, including hospitals, colleges, and universities exempt under section 501(c)(3), health maintenance organizations and other social welfare organizations exempt under section 501(c)(4), trade associations exempt under section 501(c)(6), and labor organizations and professional football, baseball and other types of sports leagues exempt under section 501(c)(5).</div> <div> &nbsp;</div> <div> The excise tax also applies to farmers&rsquo; cooperatives described in section 521(b)(1) and political organizations described in section 527(e)(1), but these are not discussed in this article.</div> <div> &nbsp;</div> <div> <em><strong>Public Hospitals, Colleges and Universities</strong></em></div> <div> &nbsp;</div> <div> Many public hospitals, colleges and universities are operated under State laws that authorize their formation and funding but do not grant them any governmental powers, such as the power of eminent domain, the power to tax or the police power. In the absence of any of these powers, these organizations can still be recognized as tax-exempt charitable organizations described in section 501(c)(3). Even if these types of organizations choose not to file an exemption application, these organizations can claim that their income is excluded from gross income under section 115(1) because they perform an essential governmental function (<em>e.g</em>., operate a hospital, college or university) and their income ultimately will accrue to the State or a political subdivision of the State upon their dissolution. In either case, these hospitals, colleges and universities will be subject to the excise tax on executive compensation in excess of $1 million.</div> <div> &nbsp;</div> <div> On the other hand, many State laws authorize the formation and funding of hospitals, colleges and universities <em>and</em> grant the governmental powers including the power to use eminent domain to acquire property for their use, the power to tax (<em>e.g.</em>, the ability to issue general obligation bonds that are funded by assessed real and personal property taxes), and limited police powers to establish their own police forces, such as a university&rsquo;s campus police force.&nbsp;</div> <div> &nbsp;</div> <div> In general, these types of hospitals, colleges and universities are not subject to the excise tax on executive compensation in excess of $1 million <em>unless</em> they also apply and receive tax-exempt status as charitable organizations described in section 501(c)(3). As a result, these quasi-state entities may wish to consider the disadvantages of voluntarily terminating their 501(c)(3) status,<sup>4</sup> accomplished by a letter to the IRS documenting that the organization is not otherwise subject to income tax, against the advantages of being exempt from this new excise tax (and, in the case of hospitals, perhaps as an added bonus, from section 501(r) and its extensive regulatory regime<sup>5</sup>).</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>&ldquo;Remuneration&rdquo; - What Types of Compensation Are Subject to the 21% Excise Tax, and What Types Are Not?</strong></span></div> <div> &nbsp;</div> <div> <em><strong>Wages in General</strong></em></div> <div> &nbsp;</div> <div> Remuneration subject to the excise tax means wages (as defined in section 3401(a)) and includes all cash and compensation in any medium other than cash, except for payments to a tax-qualified pension or profit-sharing plan or other amounts that are excludable from the employee&rsquo;s gross income.<sup>6</sup> It also includes amounts paid with respect to the employment of such employee by a person or governmental entity that is related to the applicable tax-exempt organization. Importantly, a health system with multiple tax-exempt subsidiaries will be exposed to the excise tax for both the parent corporation as well as each tax-exempt subsidiary, and the use of a common paymaster does not avoid the tax exposure.</div> <div> &nbsp;</div> <div> An important issue is the time period over which wages are measured for purposes of determining whether the $1 million threshold is measured. This issue arises because tax-exempt organizations are required to have an annual accounting period that is either the calendar year ending on December 31st or a fiscal year that ends on the last day of a month other than December. These annual accounting periods are referred to as a taxpayer&rsquo;s &ldquo;taxable years.&rdquo;<sup>7</sup> Individuals who are employees of a tax-exempt organization, on the other hand, are required to use the calendar year as their annual accounting period.</div> <div> &nbsp;</div> <div> The reporting of wages paid by a tax-exempt organization to its employees, including highly-compensated employees, is straight-forward if the organization uses the calendar year as its taxable year because Form W-2, <em>Wage and Tax Statements</em>, issued to employees are based on the employees&rsquo; calendar year as well and the organization files its annual Form 990, <em>Return of Organization Exempt From Income Tax</em>, based on the same calendar year.&nbsp;</div> <div> &nbsp;</div> <div> Confusion arises when the tax-exempt organization uses a fiscal year (such as a June 30 year-end), as do many colleges, universities and health care organizations. The organization is required to report compensation for current officers and key employees on its Form 990 in Part IX, <em>Statement of Functional Expenses</em>, Line 5, using the total compensation paid to such individuals for the organization&rsquo;s fiscal year.<sup>8</sup> However, for purposes of completing Part VII of the Form 990, Section A, and Schedule J, <em>Compensation Information</em>, Part II, the organization is required to use compensation that was paid during the calendar year that ends within the organization&rsquo;s fiscal year and that was reported on the employees&rsquo; Forms W-2.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Given that the statute specifically refers to remuneration paid &ldquo;for the taxable year,&rdquo; and it is the organization that is subject to the tax, rather than the employee, we believe that wages paid in the organization&rsquo;s taxable year, and not those reflected on an employee&rsquo;s Form W-2, should be used to determine whether a covered employee&rsquo;s &ldquo;remuneration&rdquo; exceeded $1 million, subjecting the organization to a 21% excise tax on the excess.</div> <div> &nbsp;</div> <div> Deferred amounts and earnings or losses in a nonqualified deferred compensation plan subject to section 457(f) are included in income at the time such amounts become vested or otherwise are no longer subject to a substantial risk of forfeiture and are treated as remuneration even if such amounts are not treated as wages. Consequently, the taxable year in which that happens should be the taxable year in which such amounts are added to other items treated as wages for purposes of determining whether the organization will be subject to the excise tax.</div> <div> &nbsp;</div> <div> <strong><em>Non-Taxable Fringe Benefits</em></strong></div> <div> &nbsp;</div> <div> Section 3401(a) uses an expansive definition of &ldquo;wages,&rdquo; which is defined as &ldquo;all remuneration for employment, including the cash value of all remuneration (including benefits) paid in any medium other than cash.&rdquo; However, there are many statutory exclusions from income that are not subject to the excise tax because they are also excluded from the definition of wages, such as certain employer-provided meals and lodging (section 119) and non-taxable fringe benefits (section 132).</div> <div> &nbsp;</div> <div> <strong><em>Expense Reimbursement and Allowance Arrangements</em></strong></div> <div> &nbsp;</div> <div> Another potential problem area arises in connection with expense reimbursement and allowance arrangements. If an expense reimbursement and allowance arrangement meets three requirements, namely, there is an appropriate business connection and proper substantiation, and the employee returns amounts in excess of expenses, the arrangement will qualify as an &ldquo;accountable plan.&rdquo; Amounts treated as paid under an accountable plan are excluded from an employee&rsquo;s gross income and are not reported as wages or other compensation on the employee&rsquo;s Form W-2.&nbsp;</div> <div> &nbsp;</div> <div> On the other hand, amounts treated as paid under a nonaccountable plan are <em>included</em> in the employee&rsquo;s gross income and are reported as wages on the employee&rsquo;s Form W-2. As a result, such amounts will also count toward remuneration subject to the excise tax if, when added to other compensation, the $1 million threshold is exceeded.&nbsp;</div> <div> &nbsp;</div> <div> <strong><em>The Surgeon Exception?</em></strong></div> <div> &nbsp;</div> <div> Remuneration does not include the portion of any remuneration paid to a licensed medical professional, including nurses and veterinarians, for the performance of their professional services.<sup>9</sup> This exception would not apply to the portion of remuneration for the performance of administrative services, such as those of a physician serving as an executive or medical director of a health care provider. So, this is not an all or nothing exception.</div> <div> &nbsp;</div> <div> The scope of this professional services exception remains uncertain. For example, many physicians today serve as CEOs or medical directors of health systems or health plans, and while functioning as a CEO may not require a medical degree per se, making medical necessity decisions does. Similarly, medical and veterinary professionals often provide services that depend on their professional expertise that do not involve direct patient or animal care, such as teaching and proctoring medical or veterinary students and residents, and conducting peer review and quality assurance activities as a member of a medical staff. It remains unclear whether compensation for these types of services will fall under the exception.</div> <div> &nbsp;</div> <div> <strong><em>Payments to Independent Contractors and Risks of Reclassification</em></strong></div> <div> &nbsp;</div> <div> Many organizations attempt to bypass the requirement to withhold income, employment and Medicare taxes by classifying a service provider, such as a physician acting as a part-time medical director of a hospital who also has a private practice, as an independent contractor rather than as an employee. In many cases this is a completely legitimate position. However, it also is a position that the IRS routinely challenges on audit. As a consequence, tax-exempt organizations such as hospitals should carefully review their independent contractor-employee classifications, especially if the individual classified as an independent contractor is highly compensated as such.</div> <div> &nbsp;</div> <div> Also, it should be noted that Congress has directed the IRS to prescribe regulations to prevent avoidance of the 21% excise tax through the performance of services other than as an employee or by providing compensation through a pass-through entity such as a partnership, limited liability company, or S corporation. It is likely that the IRS will take the position that the performance of services through a single-member limited liability company that is a disregarded entity for federal income tax purposes should be (i) treated as the performance of services by the sole member of the limited liability company directly to the tax-exempt organization and (ii) subject to the 21% excise tax if the compensation for such services exceeds $1 million.</div> <div> &nbsp;</div> <div> <strong><em>Split Dollar Loan Arrangements</em></strong></div> <div> &nbsp;</div> <div> Increasingly, tax-exempt organizations are using split dollar loan arrangements as replacements for traditional non-qualified deferred compensation arrangements subject to section 457(f) or in addition to those arrangements.&nbsp;</div> <div> &nbsp;</div> <div> Basically, under a split dollar loan arrangement, the employer agrees to make loans to the executive to pay the premiums for a universal life insurance policy that is owned by the employee and that has a very high death benefit. A private placement policy also may be issued instead of a traditional policy issued by a traditional life insurance company. The employee is the owner of the policy and the employee agrees to a collateral assignment of the death benefit to the employer in an amount sufficient to secure the repayment of the loan and any accrued interest.</div> <div> &nbsp;</div> <div> Upon the employee&rsquo;s retirement, the employee is permitted to borrow accumulated cash value from the insurance company that issued the policy within agreed upon limits, again to assure that the employer ultimately will be repaid the amounts it loaned to the employee along with accrued interest.</div> <div> &nbsp;</div> <div> Before the enactment of section 4960, these arrangements were attractive alternatives to section 457(f) plans for several reasons. From the employer&rsquo;s standpoint, the employer provided a benefit that it ultimately would recover upon the employee&rsquo;s death, unlike a section 457(f) plan where the amount is paid out fully to the employee upon vesting. From the employee&rsquo;s standpoint, unlike a section 457(f) plan where the full amount payable to the employee is taxable when there no longer is a substantial risk of forfeiture regardless of whether the benefit is payable in a lump sum or over time, the policy loan is not taxable currently to the employee and typically is non-recourse.</div> <div> &nbsp;</div> <div> With the enactment of the 21% excise tax in section 4960, split dollar arrangements are more attractive because policy loans are considered loans pursuant to section 7872<sup>10</sup> and, therefore, are not remuneration subject to the 21% excise tax.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Related Persons or Governmental Entities</strong></span></div> <div> &nbsp;</div> <div> In recent years, it has become increasingly common for highly-compensated executives to receive compensation from multiple sources that, perhaps only in the aggregate, exceeds $1 million. For example, the compensation of a health system CEO may be assessed to each individual hospital but paid by the parent company acting as a common paymaster. Similarly, the compensation of a university president or football coach may be paid in part by the university and in part by a separate fund-raising or booster organization. In order to address these and similar types of situations, a broad definition aggregates all compensation paid by related entities to determine whether the $1 million threshold for taxation is met each year.</div> <div> &nbsp;</div> <div> A person or governmental entity is treated as &ldquo;related&rdquo; to the applicable tax-exempt organization if such person or governmental entity: (i) controls, or is controlled by, the organization; (ii) is controlled by one or more persons that control the organization; (iii) is a supported organization (as defined in section 509(f)(3)) during the taxable year with respect to the organization; (iv) is a supporting organization described in section 509(a)(3) during the taxable year with respect to the organization; or (v) in the case of an organization that is a voluntary employees&rsquo; beneficiary association described in section 501(c)(9), establishes, maintains, or makes contributions to such voluntary employees&rsquo; beneficiary association.<sup>11</sup></div> <div> &nbsp;</div> <div> One or more persons (whether individuals or organizations) control a tax-exempt organization if they have the power to remove and replace (or to appoint, elect, or approve or veto the appointment or election of, if such power includes a continuing power to appoint, elect, or approve or veto the appointment or election of, periodically or in the event of vacancies) a majority of the tax-exempt organization&rsquo;s directors or trustees, or a majority of the members who have the power to elect a majority of the tax-exempt organization&rsquo;s directors or trustees.<sup>12</sup> Such power can be exercised directly by a (parent) organization through one or more of the (parent) organization&rsquo;s officers, directors, trustees, or agents, acting in their capacity as officers, directors, trustees, or agents of the (parent) organization.<sup>13</sup>&nbsp;Also, a (parent) organization controls a (subsidiary) tax-exempt organization if a majority of the subsidiary&rsquo;s directors or trustees are trustees, directors, officers, employees or agents of the parent.<sup>14</sup></div> <div> &nbsp;</div> <div> One or more persons (whether individuals or organizations) control a stock corporation if they own more than 50% of the stock (by voting power or value) of the corporation.<sup>15&nbsp;</sup></div> <div> &nbsp;</div> <div> One or more persons control a partnership if they own more than 50% of the profits interests or capital interests in the partnership (including a limited liability company treated as a partnership or disregarded entity for federal tax purposes).<sup>16</sup> A person also controls a partnership if the person is a managing partner or a managing member of a partnership or limited liability which has three or fewer managing partners or managing members (regardless of which partner or member has the most actual control), or if the person is a general partner in a limited partnership which has three or fewer general partners (regardless of which partner has the most actual control).<sup>17</sup> For this purpose, a &ldquo;managing partner&rdquo; is a partner designated as such under the partnership agreement, or regularly engaged in the management of the partnership.</div> <div> &nbsp;</div> <div> To the extent that any employee receives compensation from multiple tax-exempt organizations that are related, each organization is liable for its allocable portion of the excise tax imposed on the employee&rsquo;s compensation. Specifically, the amount required to be paid by each such employer is calculated by multiplying the total excise tax amount by a percentage which is determined by dividing the amount of remuneration paid by such employer to the employee over the total remuneration paid by all employers to such employee.</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Excess Parachute Payments</strong></span></div> <div> &nbsp;</div> <div> An excess parachute payment is an amount paid to a covered employee upon such employee&rsquo;s separation from employment in an amount with a present value that equals or exceeds three times the employee&rsquo;s base amount.<sup>18</sup>&nbsp; Excluded from the definition of an excess parachute payment are payments under qualified plans, or any payment under or to an annuity contract described in section 403(b) or an eligible plan described in section 457(b).<sup>19&nbsp;</sup></div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Coordination with the Excise Tax on Excess Benefit Transactions</strong></span></div> <div> &nbsp;</div> <div> There is no coordination between the excise tax on compensation in section 4960 with the excise tax on unreasonable compensation imposed by section 4958. That is, the payment of the 21% excise tax does not insulate an organization from &ldquo;intermediate sanctions&rdquo; - excise taxes on &ldquo;excess benefit transactions.&rdquo; Likewise, we do not believe that there should or will be a presumption that the payment of compensation constitutes an &ldquo;excess benefit transaction&rdquo; merely because it triggers the section 4960 &ldquo;tax on excess tax-exempt organization executive compensation.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> Nonetheless, the importance of the establishment of the &ldquo;rebuttable presumption of reasonableness&rdquo; does appear to be amplified when the employer must pay a penalty in order to achieve such reasonable compensation. This simply means that tax-exempt organizations must still take steps to establish the reasonableness of all compensation and benefits as they have been doing for many years, with perhaps added vigilance when section 4960 excise taxes may become due.&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Effective Date</strong></span></div> <div> &nbsp;</div> <div> The 21% &ldquo;tax on excess tax-exempt organization executive compensation&rdquo; is effective for a tax-exempt employer&rsquo;s tax years beginning after December 31, 2017. Thus, for tax-exempt organizations with fiscal year ends, the tax applies to compensation paid beginning with the first tax year beginning after December 31, 2017.</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> ________________________________________________________________________________________________________________________________________</div> <div> &nbsp;</div> <div> <div> <sup>1</sup> All &ldquo;section&rdquo; references are to the Internal Revenue Code of 1986, as amended.</div> <div> <sup>2</sup> 21% is the current rate for the corporate income tax. If that rate is increased in the future, the rate imposed by section 4960 would increase as well.</div> <div> <sup>3</sup> For 2018, a &ldquo;highly-compensated&rdquo; employee is one who earns in excess of $120,000.</div> <div> <sup>4</sup> For example, a public hospital that is no longer described in section 501(c)(3) cannot use section 403(b) annuities to fund employee retirement benefits.</div> <div> <sup>5</sup> See Mancino, <em>The Final Section 501(r) Regulations and Section 501(c)(3) Hospitals</em>, 28:2 Taxation of Exempts (Sept./Oct. 2016).</div> <div> <sup>6</sup> IRC &sect; 4960(c)(3)(A).</div> <div> <sup>7</sup> Section 441(b).</div> <div> <sup>8</sup> 2017 Instructions for Form 990 Return of Organization Exempt From Income Tax.</div> <div> <sup>9</sup> Section 4960(c)(3)(B).&nbsp;&nbsp;</div> <div> <sup>10</sup> Treas. Reg. &sect; 1.7872-15.</div> <div> <sup>11</sup> Section 4960(c)(4).&nbsp;</div> <div> <sup>12</sup> <em>See generally</em>, the 2017 Schedule R Instructions for Form 990.</div> <div> <sup>13</sup> <em>Id.</em></div> <div> <sup>14</sup> <em>Id.&nbsp;</em></div> <div> <sup>15</sup> <em>Id</em>.</div> <div> <sup>16</sup> <em>Id.</em></div> <div> <sup>17</sup> <em>Id.</em></div> <div> <sup>18</sup> Section 4960(c)(5)(A).</div> <div> <sup>19</sup> Section 4960(c)(5)(C).</div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/LR081018 The fallout from Janus continues – Pennsylvania introduces bill that would allow non-union public-sector employees to participate in strike votes https://www.seyfarth.com:443/publications/LR081018 Fri, 10 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A mere six weeks after the Supreme Court held that fair share or agency fees for public-sector unions are unconstitutional in Janus v. AFSCME, Pennsylvania introduces a bill that would require public-sector unions to obtain a majority vote of all employees, including non-union employees, to authorize a strike.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/08/10/the-fallout-from-janus-continues-pennsylvania-introduces-bill-that-would-allow-non-union-public-sector-employees-to-participate-in-strike-votes/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC081018 Federal Court Delivers EEOC A Victory Over UPS In ADA Lawsuit Regarding Pay https://www.seyfarth.com:443/publications/WC081018 Fri, 10 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A federal district court in Kansas recently granted the EEOC&rsquo;s motion for judgment on the pleadings in an ADA lawsuit brought against UPS and an employee union, holding that a policy in Defendants&rsquo; collective bargaining agreement where drivers who are disqualified for medical reasons can only be compensated at 90% of their rates of pay for temporary non-driving jobs, while drivers disqualified for non-medical reasons such as DWI&rsquo;s are compensated at a 100% rate, was facially discriminatory.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/08/federal-court-delivers-eeoc-a-victory-over-ups-in-ada-lawsuit-regarding-pay/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL080918 Service Animals Vs. Emotional Support Animals: Ferreting Out The Truth https://www.seyfarth.com:443/publications/EL080918 Thu, 09 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Is it a service animal or an emotional support animal? Do I have to allow both? How to tell one from the other, and the rules that apply.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/service-animals-vs-emotional-support-animals-ferreting-out-the-truth/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR080918 The State of Union Funding—California and the Ninth Circuit Show How States Might Try To Mitigate The Effect of Janus https://www.seyfarth.com:443/publications/LR080918 Thu, 09 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Labor friendly states will likely be looking for opportunities to lessen the financial blow of the Supreme Court&rsquo;s decision in Janus v. AFSCME. The Ninth Circuit&rsquo;s recent decision in Interpipe Contracting v. Becerra just helped give California a head start (although perhaps only a small one).<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/08/09/the-state-of-union-funding-california-and-the-ninth-circuit-show-how-states-might-try-to-mitigate-the-effect-of-janus/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA080918-LE Delay in Correcting Paycheck Clerical Error Leads to Large Fee Award https://www.seyfarth.com:443/publications/MA080918-LE Thu, 09 Aug 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>An employer did not incur waiting time penalties for inadvertently misstating the amount of pay on a final paycheck, but was liable for its delay in correcting the error. And, by taking an appeal from a Labor Commission award, the employer incurred liability for large attorney&rsquo;s fees even though the employee succeeded on only one small claim.</em></p> <p> <strong>The Facts</strong></p> <p> Taryn Nishiki was an office manager and paralegal at a law firm. She resigned via email at 6:38 p.m. on Friday, November 14. On Tuesday, November 18, the firm mailed her final paycheck. The numerical information on the check was right, but the spelling of the number understated the amount by $80. Eight days later, on Wednesday, November 26, Nishiki reported she could not cash the check, because of this inconsistency. The firm responded that it could not confirm the error because no check had been refused or returned. The next Monday, December 1, the firm told Nishiki she could either return the check to the office for a replacement check, or she could keep the check and the firm would issue her a second check for $80. Nishiki mailed the check back, and the firm mailed her a corrected check on Friday, December 5&mdash;21 days after her notice of resignation.</p> <p> <strong>The Labor Commissioner&rsquo;s Decision</strong></p> <p> Nishiki filed a complaint with the Labor Commissioner for unpaid vacation wages, rest period premiums, and waiting time penalties in the amount of $7,500. The hearing officer denied the claim for unpaid vacation wages and rest premiums, but found the firm liable for $4,250 in waiting time penalties for the seventeen days that elapsed between its mailing of the first check and its mailing of the corrected check.</p> <p> <strong>The Trial Court Decision</strong></p> <p> The law firm appealed the Labor Commissioner&rsquo;s decision to the Superior Court. The trial court awarded Nishiki seventeen days of waiting time penalties. She then moved for attorney&rsquo;s fees under Labor Code section 98.2(c), which the court awarded in the amount of $86,160. The law firm appealed from the judgment. &nbsp;</p> <p> <strong>The Appellate Court Decision</strong></p> <p> On August 1, 2018, the Court of Appeal reduced the waiting time penalties to $2,250 for nine days, but affirmed the fee award in full. <em>Nishiki v. Danko Meredith, APC.</em></p> <p> The Court of Appeal determined that the 72 hours that Labor Code section 202 allows to pay wages upon notice of a resignation did not begin to run when Nishiki sent her resignation email after business hours on Friday. The Court of Appeal reasoned that holding the firm liable for failing to tender final pay within 72 hours would contravene the statute&rsquo;s clear intent to provide an employer with a reasonable time to pay an employee who quits with no prior notice, because a literal reading of the statute would only have given the firm one business day to pay Nishiki. The Court of Appeal had no need to decide exactly when the 72-hour period began, however, since the original check was timely whether the period started the day after receipt of the resignation email (Saturday) or the next business day (Monday).</p> <p> Further, the Court of Appeal concluded that the firm did not willfully withhold wages when it tendered the first check, because there was no evidence that the firm knew of the inconsistency on the check created by the clerical error. But, because the firm failed to immediately correct the error upon being notified, the Court of Appeal determined that wages were willfully withheld from the day the firm had notice of the error to the day it mailed a corrected check.</p> <p> As to attorney&rsquo;s fees, the Court of Appeal rejected the firm&rsquo;s argument that the award should be reduced to reflect only the claims on which Nishiki prevailed. The Court of Appeal reasoned that Labor Code section 98.2(c) is not a prevailing-party fee provision, but rather is a one-way fee-shifting provision, designed to discourage employer appeals from Labor Commissioner awards: the employee may recover fees if the court awards <em>any</em> amount greater than <em>zero</em>. Consequently, the Court of Appeal affirmed the full fee award of $86,160 for all the hours Nishiki&rsquo;s attorney had worked, and also upheld the trial court&rsquo;s application of a 1.5 multiplier. Nishiki was also entitled to recover her costs on appeal.</p> <p> <strong>What <em>Nishiki</em> Means for Employers</strong></p> <p> Although employers now know that they need not worry about being forced into &ldquo;untimely&rdquo; payment of final wages by strategically timed surprise resignations, they should make every effort to pay those wages within 72 hours, as it remains an open question exactly when the 72-hour clock begins to run.</p> <p> More significantly, employers should be aware that appealing a Labor Commissioner award is fraught with financial risk, and can create liability far greater than that created by the award itself. This grim reality should factor into any analysis of whether to appeal a matter that has been wrongly decided in favor of an employee.&nbsp;&nbsp;</p> https://www.seyfarth.com:443/publications/TBT080918 The Week in Weed: August 10, 2018 https://www.seyfarth.com:443/publications/TBT080918 Thu, 09 Aug 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/08/the-week-in-weed-august-10-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM080818-LE New York City Commission on Human Rights Publishes Sexual Harassment Poster and Information Sheet https://www.seyfarth.com:443/publications/OMM080818-LE Wed, 08 Aug 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The Commission has published the sexual harassment poster and information sheet mandated under the &ldquo;Stop Sexual Harassment in NYC Act.&rdquo; Employers must display the poster, and distribute the information sheet, as of September 6, 2018.&nbsp;&nbsp;</em></p> <div> The &ldquo;<a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354925&amp;GUID=D9986F4A-C3A9-4299-BAA8-5A1B1A1AD31E&amp;Options=&amp;Search">Stop Sexual Harassment in NYC Act</a>&rdquo; requires that &ldquo;every employer . . . conspicuously display an anti-sexual harassment rights and responsibilities poster . . . in employee breakrooms or other common areas.&rdquo;&nbsp; The New York City Commission on Human Rights has published the English version of the poster on its website, which can be accessed <a href="https://www1.nyc.gov/site/cchr/law/stop-sexual-harassment-act.page">here</a>.&nbsp; The Commission has not yet published the poster in Spanish.&nbsp; Under the Act, employers must have the poster displayed by September 6, 2018.</div> <div> &nbsp;</div> <div> The Act also requires employers to distribute an information sheet on sexual harassment (in English and Spanish) to individual employees at the time of hire or in their employee handbook.&nbsp; The Commission has now posted a sample English-language information sheet on its <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Factsheet.pdf">website</a>.&nbsp; Employers must begin distributing the sheet, or include the information in their employee handbook, by September 6, 2018.</div> <div> &nbsp;</div> <div> <strong>Other Upcoming Deadlines under the NYC Law:</strong></div> <div> &nbsp;</div> <div> Similar to the recent New York State legislation, which goes into effect on October 9, 2018 and requires all employers to provide anti-sexual harassment training, the Stop Sexual Harassment in NYC Act requires employers with 15 or more employees to conduct annual, interactive anti-sexual-harassment training for all employees employed in New York City.&nbsp; That requirement goes into effect on April 1, 2019.&nbsp; The Commission will develop and publish an online training module that employers may use to satisfy the training component.&nbsp; Our prior Alerts regarding the new City and State legislation may be found <a href="http://www.seyfarth.com/publications/MA040518-LE">here</a>, <a href="http://www.seyfarth.com/publications/MA041718-LE2">here</a>, and <a href="http://www.seyfarth.com/publications/MA051418-LE">here</a>.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> The attorneys at Seyfarth Shaw LLP are available to provide assistance with guidance on both the State and City requirements, including ensuring that employers have robust policies in place regarding anti-harassment in the workplace and procedures to effectively respond to complaints.&nbsp; We can also provide interactive anti-harassment training tailored to your company&rsquo;s specific business and needs.</div> https://www.seyfarth.com:443/publications/CP080818 Can California Revive Its Immigrant Worker Protection Act? https://www.seyfarth.com:443/publications/CP080818 Wed, 08 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: California enacted its Immigrant Worker Protection Act (IWPA) to make it more difficult for federal immigration enforcement agents to access nonpublic areas of employer worksites and private employee records. The U.S. Justice Department, however, recently persuaded a federal district court to issue a preliminary injunction against IWPA provisions that bar employers from voluntarily providing immigration enforcement agents with access to nonpublic worksites and employee records unless federal authorities present a judicial warrant (to access nonpublic worksites) or an administrative or judicial subpoena (to access employee records). In a sister post, our immigration expert Angelo A. Paparelli extensively analyzes this development and proposes a response that California might pursue.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/08/08/can-california-revive-its-immigrant-worker-protection-act/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/tightrope080818 Seyfarth Represents Tightrope Capital in its Investment in Fabulous Floors https://www.seyfarth.com:443/news/tightrope080818 Wed, 08 Aug 2018 00:00:00 -0400 <p> CHICAGO - (August 8, 2018) - Seyfarth Shaw LLP represented Tightrope Capital Partners, LLC (&ldquo;Tightrope&rdquo;), a Chicago-based private investment firm, in its recapitalization transaction with Fabulous Floors, LLC (&ldquo;Fabulous Floors&rdquo;). Founded in 1987 and headquartered in Carrollton, Texas, Fabulous Floors is a commercial flooring dealer and installation company.</p> <p> Tightrope will work with the Fabulous Floors management team to achieve continue sales growth and expand in contiguous regions and add new strategic services.</p> <p> The Seyfarth team was led by Corporate partner Ted Cornell and included attorneys Paul Drizner, Jeryl Olson, Tyler VanLonkhuyzen, Whitney Schmidt, Tobi Pinsky, Kay Hazelwood and Jessica Backus.</p> https://www.seyfarth.com:443/news/billowsbloomberglaw080718 Tracy Billows quoted in Bloomberg Law https://www.seyfarth.com:443/news/billowsbloomberglaw080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Tracy Billows was quoted in an August 7 story from Bloomberg Law, &quot;Employers Take New Approaches in #MeToo Era,&quot; on her panel appearance at the American Bar Association&#39;s 2018 annual conference. Billows said that workplace leaders are not focusing merely on compliance with federal and state laws, but also on what conduct is appropriate in a workplace, even conduct that isn&rsquo;t technically illegal.&nbsp;</p> https://www.seyfarth.com:443/news/maatmanxperthr080718 Gerald Maatman quoted in XpertHR https://www.seyfarth.com:443/news/maatmanxperthr080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in an August 7 story from XpertHR, &quot;Pro-Employer Supreme Court Term Featured Arbitration, Union Fees and Whistleblowers,&quot; on the Epic arbitration ruling. Maatman said that the ruling could lead plaintiffs&rsquo; attorneys to file individual arbitration claims early and more often, which he said could be death by 1,000 cuts. You can read the <a href="https://www.xperthr.com/blog/2018/08/07/pro-employer-supreme-court-term-featured-arbitration-union-fees-and-whistleblowers/?utm_medium=social&amp;utm_campaign=HRmAdvocacy&amp;utm_source=XpertHR+USA&amp;utm_content=R+Te_260">full article here</a>.</p> https://www.seyfarth.com:443/publications/EL080718 DOL Guidance on Registry Employer Status: Foreshadowing A More Tolerant Independent Contractor Approach https://www.seyfarth.com:443/publications/EL080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Department of Labor Acting Administrator Bryan Jarrett issued Field Assistance Bulletin No. 2018-4 (&ldquo;FAB&rdquo;) on July 13, to guide Wage &amp; Hour Division (&ldquo;WHD&rdquo;) field investigators on how to determine whether home care, nurse, or caregiver registries are employers under the Fair Labor Standards Act. A &ldquo;registry&rdquo; is &ldquo;an entity that typically matches people who need caregiving services with caregivers who provide the services, usually nurses, home health aides, personal care attendants, or home care workers with other titles (collectively, caregivers).&rdquo;<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/dol-guidance-on-registry-employer-status-foreshadowing-a-more-tolerant-independent-contractor-approach/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise080718 The Future of Anti-Harassment Training and Shifting Workplace Culture in the Era of #MeToo, #BlackLivesMatter, and Others https://www.seyfarth.com:443/publications/FutureEnterprise080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> In this post, particularly in light of recent legislative developments, we will focus on anti-harassment training. Some states like Connecticut, California, and Maine have, for some time now, required that certain employers provide anti-harassment training for supervisors. New York State recently upped the ante and passed legislation mandating all employers to provide annual anti-sexual harassment training to all employees. Shortly thereafter, New York City also passed legislation mandating annual anti-sexual harassment training for employers with 15 or more employees. Beyond basic legal compliance, however, how can employers design trainings that are effective tools for preventing harassment?<br /> <br /> <a href="https://www.futureenterprise.com/blog/2018/8/2/the-future-of-anti-harassment-training-and-shifting-workplace-culture-in-the-era-of-metoo-blacklivesmatter-and-others">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM080718 California Can Revive the Immigrant Worker Protection Act by Challenging the Authority of U.S. Citizenship and Immigration Services’ “FDNS” Enforcement Officers https://www.seyfarth.com:443/publications/IMM080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In passing AB 450, the Immigrant Worker Protection Act (IWPA), California lawmakers tried to make it more difficult for federal immigration enforcement agents from accessing nonpublic areas of employer worksites and private employee records. The U.S. Justice Department filed a federal lawsuit against California attacking the IWPA as an unconstitutional interference with federal power over immigration. DOJ persuaded the Court to issue a preliminary injunction last month against parts of the IWPA that bar employers from voluntarily providing immigration enforcement agents with access to nonpublic worksites and employee records unless federal authorities present a judicial warrant (to access nonpublic worksites) or an administrative or judicial subpoena (to access employee records). Only one federal immigration agency routinely dispenses with the warrant or subpoena process. The Fraud Detection and National Security Directorate (FDNS) &ndash; a unit of U.S. Citizenship and Immigration Services (USCIS) &ndash; regularly shows up unannounced at employer facilities in California and elsewhere. Its agents present only a business card and demand the type of access prohibited under the IWPA.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/08/california-can-revive-the-immigrant-worker-protection-act-by-challenging-the-authority-of-u-s-citizenship-and-immigration-services-fdns-enforcement-officers/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC080718 Seventh Circuit Allows Objector To Recover Fees From Class Counsel’s Fee Award https://www.seyfarth.com:443/publications/WC080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In an opinion laced with frustration over a third appeal in a class action involving attorneys&rsquo; fees, the Seventh Circuit ruled that an objector was entitled to recover attorneys&rsquo; fees from class counsel&rsquo;s fee award. &ldquo;Unless the parties expressly agree otherwise,&rdquo; the Seventh Circuit explained, &ldquo;settlement agreements should not be read to bar attorney fees for objectors who have added genuine value.&rdquo; The Seventh Circuit&rsquo;s recent ruling in In Re Southwest Airlines Voucher Litigation is a good reminder for companies negotiating class settlements to account for objector fees in settlement agreements up front, or run the risk that an objector will sandbag the settlement by requesting fees later.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/08/seventh-circuit-allows-objector-to-recover-fees-from-class-counsels-fee-award/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/weibustmertineitmlw080618 Erik Weibust and Dawn Mertineit authored an article in Massachusetts Lawyers Weekly https://www.seyfarth.com:443/publications/weibustmertineitmlw080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Erik Weibust and Dawn Mertineit authored an August 6 article in Massachusetts Lawyers Weekly, &quot;Non-compete reform bill will only create more confusion, uncertainty and litigation.&quot;</p> https://www.seyfarth.com:443/publications/LR080618 The NLRB Continues to Protect Vulgarity in the Workplace https://www.seyfarth.com:443/publications/LR080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> <em>Seyfarth Synopsis:&nbsp; </em>Just when employers thought they were <a href="https://www.employerlaborrelations.com/2018/06/08/the-boards-general-counsel-memorandum-is-a-comforting-return-to-a-common-sense-approach-to-workplace-policies/">safe</a> to restrict offensive speech and restore decorum in the workplace, a recent decision by the Board serves as a stark reminder that offensive workplace speech may still find protection under the National Labor Relations Act.</p> <p> <a href="https://www.employerlaborrelations.com/2018/08/06/the-nlrb-continues-to-protect-vulgarity-in-the-workplace/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM080618 Seyfarth Shaw Policy Matters Newsletter – August 2, 2018 https://www.seyfarth.com:443/publications/IMM080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Rubio Introduces Paid Family Leave Bill. Earlier today, Senator Marco Rubio (R-FL) unveiled new legislation aiming to provide paid family leave for new parents. The Economic Security for New Parents Act would allow parents to draw up to six months of early payments from their Social Security benefits. In return for receiving Social Security payments early, parents would defer their retirement benefits for three to six months, or the amount of time necessary to offset the cost of their parental benefits. The proposed legislation includes a 3-year sunset provision, meaning the program would expire if Congress didn&rsquo;t renew it. The bill has already come under fire from Democrats claiming that the legislation does not go far enough to help working families while also placing additional strain on the Social Security system.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/08/seyfarth-shaw-policy-matters-newsletter-august-2-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP080618 Is California’s Latest Assault on Arbitration Constitutional? https://www.seyfarth.com:443/publications/CP080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis. Pending California legislation would make a mandatory arbitration agreement an unlawful practice under the Fair Employment and Housing Act, and a crime. How could that be consistent with the Federal Arbitration Act?<br /> <br /> <a href="https://www.calpeculiarities.com/2018/08/06/is-californias-latest-assault-on-arbitration-constitutional/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA080618 Service Animals Vs. Emotional Support Animals: Ferreting Out The Truth https://www.seyfarth.com:443/publications/ADA080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Is it a service animal or an emotional support animal? Do I have to allow both? How to tell one from the other, and the rules that apply.<br /> <br /> <a href="https://www.adatitleiii.com/2018/08/service-animals-vs-emotional-support-animals-ferreting-out-the-truth/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/almonchiefexecutive080618 Lorie Almon quoted in Chief Executive https://www.seyfarth.com:443/news/almonchiefexecutive080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Lorie Almon was quoted in an August 6 story from Chief Executive, &quot;When Politics And Business Clash,&quot; on whether a business can refuse to serve a customer based on their political views. Almon said that on a federal level, any private business that serves the public has the right to refuse service for any reason. You can read the <a href="https://chiefexecutive.net/when-politics-and-business-clash/">full article here</a>.</p> https://www.seyfarth.com:443/publications/WC080518 Federal Court Scuttles Class Action Settlement Objectors’ Motion To Dismiss Lawsuit Brought By Plaintiff Class Action Firm https://www.seyfarth.com:443/publications/WC080518 Sun, 05 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a lawsuit brought by a plaintiff class action firm alleging that objectors to class action settlements violated both RICO and Illinois state law by filing frivolous objections in order to seek payouts, an Illinois federal court denied in part the Defendant objectors&rsquo; motion to dismiss, holding it had subject-matter jurisdiction to hear the dispute and that a claim seeking injunctive relief for the objectors&rsquo; unauthorized practice of law could proceed.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/08/federal-court-scuttles-class-action-settlement-objectors-motion-to-dismiss-lawsuit-brought-by-plaintiff-class-action-firm/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/boutrosagenda080318 Andrew Boutros quoted in Agenda https://www.seyfarth.com:443/news/boutrosagenda080318 Fri, 03 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 3 story from Agenda, &quot;Accused of Assault, Moonves Won&rsquo;t Step Aside During Investigation,&quot; on the decision to suspend a CEO during an investigation. Boutros said that when a matter is likely to involve witnesses who need to be able to come forward and speak candidly, boards would need to factor into the decision whether a CEO could influence the process if he or she remains in place.</p> https://www.seyfarth.com:443/news/boutrosreuters080318 Andrew Boutros quoted in Reuters https://www.seyfarth.com:443/news/boutrosreuters080318 Fri, 03 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 3 story from Reuters, &quot;Accountant of Ex-Trump Aide Manafort Testifies She Helped Falsify Documents.&quot; Boutros said that it&rsquo;s hard-hitting testimony that creates an uphill battle for the defense, but that&rsquo;s what cross examination is for. You can read the <a href="https://www.reuters.com/article/us-usa-trump-russia-manafort/accountant-of-ex-trump-aide-manafort-testifies-she-helped-falsify-documents-idUSKBN1KO19Y">full article here</a>.</p> https://www.seyfarth.com:443/news/johnsonbloomberglaw080218 Randel Johnson quoted in Bloomberg Law https://www.seyfarth.com:443/news/johnsonbloomberglaw080218 Thu, 02 Aug 2018 00:00:00 -0400 <p> Randel Johnson was quoted in an August 2 story from Bloomberg Law, &quot;Mandatory E-Verify for Employers Getting Closer to Reality.&quot; Johnson said that if E-Verify has been combined with a fix on the ag side of things, then there&rsquo;s a good chance of passage in the House. However, he said that it would still get hung up in the Senate.</p> https://www.seyfarth.com:443/news/weibustwapo080218 Erik Weibust quoted in the Washington Post https://www.seyfarth.com:443/news/weibustwapo080218 Thu, 02 Aug 2018 00:00:00 -0400 <p> Erik Weibust was quoted in an August 2 story from the Washington Post, &quot;Massachusetts bill would require employers to pay up when enforcing noncompetes -- but there&rsquo;s a loophole,&quot; on how the new legislation would require companies in the state to give employees some kind of compensation for up to a year after leaving if they decide to enforce a noncompete agreement. Weibust said that he could see an employer saying at a job offer, &quot;You&rsquo;re going to sign this and we&rsquo;re going to agree on $1.&quot; He said that if they&rsquo;ve never dealt with a noncompete before, they&rsquo;re likely to just sign it. You can read the <a href="https://www.washingtonpost.com/business/2018/08/02/massachusetts-bill-would-require-employers-pay-up-when-enforcing-noncompetes-theres-loophole/?utm_term=.c3f4517e01f5&amp;noredirect=on">full article here</a>.</p> https://www.seyfarth.com:443/publications/OMM080218-LIT Delaware Chancery Court Deals Another Blow to Appraisal Arbitrage https://www.seyfarth.com:443/publications/OMM080218-LIT Thu, 02 Aug 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp; The Delaware Chancery Court issued a <a href="https://courts.delaware.gov/Opinions/Download.aspx?id=276460">decision </a>Monday in a long-running appraisal dispute following Solera Holdings Inc.&rsquo;s $6.5 billion sale to Vista Equity Partners LP in 2015 that rejected investors&rsquo; bid to receive a higher price for their shares than agreed to in the merger.&nbsp; The opinion is the latest to endorse the deal price as a measure of fair value following a pair of Delaware Supreme Court rulings last year that &ldquo;heavily endorsed the application of market efficiency principles in appraisal actions.&rdquo;&nbsp; The Court determined the fair value of petitioners&rsquo; shares to be the adjusted deal price of $53.95 per share (after deducting synergies worth $1.90 from the bid of $55.85) because the company&rsquo;s &ldquo;sales process delivered for Solera stockholders the value obtainable in a bona fide arm&rsquo;s-length transaction and provides the most reliable evidence of fair value.&rdquo;&nbsp; In doing so, the Court rejected petitioners&rsquo; contention that the fair value of their shares is equal to their discounted cash flow analysis price of $84.65 per share and also rejected a much lower value advocated by Vista in post-trial briefing of the unaffected market price at $36.39 per share.</em></div> <h3> Background</h3> <div> Solera, a company that provides software to the automobile insurance industry, was founded in 2005.&nbsp; The founder began to engage in informal discussions with private equity firms regarding a potential transaction in late 2014.&nbsp; On July 20, 2015, the Board discussed an&nbsp; indication of interest received from Thoma Bravo and formed a Special Committee to review the Company&rsquo;s strategic alternatives.&nbsp; Between July 30 and August 4, 2015, the financial advisor to the Committee contacted 11 private equity firms and 6 potential strategic bidders.&nbsp; In August 2015, three financial sponsors provided indications of interest.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> On September 1, 2015, IHS Inc. submitted a bid of $55 to $58 per share and raised that bid two days later to $60 per share.&nbsp; That bid did not specify the mix of consideration and did not include any indication of financing commitments.&nbsp; Vista and Thoma Bravo, who had bid previously, submitted revised bids of $55 and $56, respectively.&nbsp; After substantial back and forth on bids with Vista and Thoma Bravo, the Special Committee set September 11, 2015 as the deadline for final bids from Vista and Thoma Bravo.&nbsp; Thoma Bravo offered $54 per share on September 11, 2015, which was rejected by the Special Committee, and, the next morning, Vista submitted an all-cash bid of $55.85 per share.&nbsp; The Special Committee accepted Vista&rsquo;s offer, and the merger closed on March 3, 2016.&nbsp; Shareholders filed petitions for appraisal that same month.&nbsp; A five-day trial took place in June 2017 followed by post-trial argument in December 2017.</div> <h3> Takeaways</h3> <div> 1. <u>Reaffirmation that the deal price will be deemed strong evidence of fair value where a robust sales process took place.</u>&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Chancery Court focused on three main factors supporting that the sale process had the requisite objective indicia of reliability emphasized in <em>DFC </em>and <em>Dell</em>: (1) the opportunity many potential buyers had to bid; (2) the Special Committee&rsquo;s role in actively negotiating an arm&rsquo;s-length transaction; and (3) the evidence that the market for Solera&rsquo;s stock was efficient and well-functioning.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Court found that the merger was the product of a two-month outreach to private equity firms, a six-week auction by a competent and effective Special Committee that solicited 11 private equity and seven strategic firms, and public announcements alerting potential buyers to the sale process.&nbsp; The Special Committee expressed a willingness to walk away from unsatisfactory bids and twice rejected such bids.&nbsp; No one ultimately was willing to pay more than the deal price of $55.85 through a three-month window-shop and a 28-day go-shop.&nbsp; Thus, Solera was not worth more than the deal price.&nbsp;</div> <div> &nbsp;</div> <div> 2. <u>Merger synergies should be taken into account in the private equity context.</u>&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> While Delaware courts have traditionally viewed synergies as mainly arising in the strategic-buyer context, the Court made a point of stating that &ldquo;[s]ynergies do not only arise in the strategic-buyer context.&nbsp; It is recognized that synergies may exist when a financial sponsor is an acquirer.&rdquo;&nbsp; Here, Vista&rsquo;s portfolio included 40 software businesses, and Vista said synergies in the Solera deal included revenue, private company cost savings, and tax benefits.&nbsp; The Court found Vista&rsquo;s &ldquo;evidence, which petitioners made no effort to rebut, convincing&rdquo; and deducted $1.90 from the deal price.&nbsp;</div> <div> &nbsp;</div> <div> 3. <u>Unaffected market price doesn&rsquo;t trump adjusted deal price in determining fair value where the price is not supported by the evidence.</u></div> <div> &nbsp;</div> <div> The Court rejected respondent&rsquo;s argument&mdash;raised for the first time in supplemental post-trial briefing&mdash;that the unaffected stock price rather than the deal price was the best evidence of Solera&rsquo;s value as of the date of the merger. The Court noted that the argument, which advocated for a fair value determination about 35% below the deal price, &ldquo;reflects a dramatic change of position&rdquo; that the Court found &ldquo;as facially incredible as petitioners&rsquo; DCF model.&rdquo;&nbsp; Because the parties never litigated what Solera&rsquo;s true unaffected market price was, the Court found it was in no position to reliably make such a determination.&nbsp; The decision also effectively called into question the role of non-synergy cost savings in appraisal actions.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> 4. <u>Petitioners cannot seek merger fees in addition to the deal price.</u>&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Court rejected petitioners&rsquo; request that the court add nearly $450 million to the deal price to account for transaction costs Vista incurred in connection with the merger.&nbsp; Petitioners offered no precedent or legal support for this request, which asked the Court to ignore precedent indicating that the &ldquo;purpose of appraisal . . . is to make sure that [petitioners] receive fair compensation for their shares in the sense that it reflects what they deserve to receive based on what would fairly be given to them in an arm&rsquo;s length transaction.&rdquo;&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Policy concerns also counseled against adding transaction fees to the deal price in determining fair value.&nbsp; The Court noted that if stockholders received payment for such fees, rational stockholders in even the most robust sale processes would seek appraisal to receive their share of the transaction costs plus interest that would be unavailable to them in any arm&rsquo;s length merger without an appraisal.&nbsp;</div> <div> &nbsp;</div> <div> For a copy of the opinion, click <a href="https://courts.delaware.gov/Opinions/Download.aspx?id=276460">here</a>.</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/MA080218-LIT At Long Last, Non-Compete Legislation: Massachusetts Finally Passes Non-Compete Bill After Nearly a Decade https://www.seyfarth.com:443/publications/MA080218-LIT Thu, 02 Aug 2018 00:00:00 -0400 <div> Late on July 31st, after close to a decade of &ldquo;will they or won&rsquo;t they&rdquo; nail biters, the Massachusetts legislature finally passed a non-compete bill, just minutes before the end of the 2018 legislative session. (For a recap of the many twists and turns over the years, <a href="https://www.tradesecretslaw.com/2013/07/articles/trade-secrets/massachusetts-non-compete-legislative-update/">here</a> <a href="https://www.tradesecretslaw.com/2014/04/articles/trade-secrets/update-massachusetts-governor-proposes-sweeping-legislation-banning-non-compete-agreements/">is</a> <a href="https://www.tradesecretslaw.com/2014/06/articles/trade-secrets/another-public-hearing-scheduled-for-massachusetts-non-compete-bill-whats-next/">just</a> <a href="https://www.tradesecretslaw.com/2014/07/articles/trade-secrets/no-massachusetts-non-compete-or-trade-secret-legislation-this-year/">a</a> <a href="https://www.tradesecretslaw.com/2016/05/articles/trade-secrets/umpteenth-times-the-charm-massachusetts-has-another-go-at-non-compete-reform/">smattering</a> <a href="https://www.tradesecretslaw.com/2016/06/articles/dtsa/update-massachusetts-house-of-representatives-edits-and-unanimously-approves-non-compete-bill-in-an-attempt-to-make-progress-before-end-of-legislative-session/">of</a> <a href="https://www.tradesecretslaw.com/2016/07/articles/noncompete-enforceability/8085/">blog</a> <a href="https://www.tradesecretslaw.com/2016/08/articles/noncompete-enforceability/in-like-a-lion-out-like-a-lamb-following-much-fanfare-massachusetts-noncompete-reform-again-fails/">posts</a> <a href="https://www.tradesecretslaw.com/2016/11/articles/noncompete-enforceability/a-holiday-miracle-massachusetts-legislature-discussing-late-session-non-compete-deal/">on</a> <a href="https://www.tradesecretslaw.com/2017/01/articles/noncompete-enforceability/will-the-massachusetts-legislature-finally-be-able-to-keep-its-new-years-resolution-to-pass-non-compete-reform/">the</a> <a href="https://www.tradesecretslaw.com/2017/10/articles/legislation-2/massachusetts-legislature-schedules-hearing-on-non-compete-reform/">topic</a>).</div> <div> &nbsp;</div> <div> The new bill, which will become effective on October 1, 2018, if signed by Governor Baker, codifies certain aspects of existing common law, but makes some significant changes to non-compete jurisprudence in the Bay State that employers will need to be mindful of.</div> <div> &nbsp;</div> <div> <em>Note: this bill applies to both employees <strong>and</strong> independent contractors, despite the many fundamental differences between employees and independent contractors under Massachusetts law. For clarity purposes we will simply refer to &ldquo;employees&rdquo; in this post.</em></div> <div> &nbsp;</div> <h2> Applicability to certain types of restrictive covenants</h2> <div> This bill applies to most non-compete agreements, including forfeiture-for-competition agreements (allowing an employee to compete, but requiring him or her to forfeit some benefit to which he or she would otherwise be entitled), but does not apply to other restrictive covenants agreements, such as customer or employee non-solicits, non-disclosure agreements, or anti-raiding agreements, nor does it apply to non-competes arising out of the sale of a business.</div> <div> &nbsp;</div> <h2> Duration</h2> <div> The bill limits the duration of a non-compete agreement to 12 months following the employee&rsquo;s departure, unless he or she has breached a fiduciary duty to the employer or engaged in misappropriation, in which case the duration can be up to 2 years following separation. This is a significant departure from existing law&mdash;common law decisions have regularly upheld non-competes of 2 years or even more in appropriate circumstances.</div> <div> &nbsp;</div> <div> Of course, even though the bill allows a non-compete restriction beyond a year where an employee breaches a fiduciary duty or engages in misappropriation, one wonders how often courts will be willing to grant injunctions beyond the one-year period. Many of these disputes are &ldquo;won&rdquo; or &ldquo;lost&rdquo; at the motion for temporary restraining order and/or preliminary injunction stage, before extensive evidence has been heard by the court. Thus, a court may be reluctant to extend the restriction without the benefit of a full-blown evidentiary hearing on the alleged breach of fiduciary duty or misappropriation.</div> <div> &nbsp;</div> <h2> Requirements for agreements entered into at the commencement of employment</h2> <div> Agreements entered into at the commencement of employment must be signed by both the employer and employee, and expressly state that the employee has a right to consult counsel before signing the agreement. Additionally, the agreement must be provided with the formal offer letter, or at least 10 business days prior to the employee&rsquo;s first day, whichever is earlier.</div> <div> &nbsp;</div> <h2> Requirements for agreements entered into <em>after</em> the commencement of employment</h2> <div> In a significant change to current Massachusetts common law, continued employment will no longer be sufficient consideration for agreements entered into after an employee starts work. Instead, &ldquo;fair and reasonable&rdquo; consideration, independent of continued employment, must be provided by the employer. What will constitute &ldquo;fair and reasonable&rdquo; consideration will no doubt be influenced by case law from other jurisdictions where continued employment is not sufficient consideration, as well as those cases at the Superior Court level which have addressed this issue in the context of determining whether enforcement is equitable under the circumstances. Like agreements entered into prior to commencement of employment, employees must receive at least 10 business days&rsquo; notice before the non-compete is effective, and the agreement must be in writing, signed by employer and employee, and expressly set forth the employee&rsquo;s right to consult with counsel.</div> <div> &nbsp;</div> <h2> Garden leave (or not)</h2> <div> Those readers who have been following the tortured path of non-compete reform will <a href="https://www.tradesecretslaw.com/2016/05/articles/trade-secrets/umpteenth-times-the-charm-massachusetts-has-another-go-at-non-compete-reform/">recall</a> that the concept of garden leave was a major topic of discussion in past efforts to pass a non-compete bill, and was the major reason why legislation was not passed last year. This bill offers a somewhat watered down version of this concept by requiring the employer to pay 50% of the employee&rsquo;s annualized base salary during the restricted period, or some other &ldquo;mutually agreed upon consideration,&rdquo; which must be specified in the agreement. Where employers opt to give garden leave, such payments may not be unilaterally discontinued by the employer, except where the employee has breached the agreement. However, this could raise difficult questions regarding when an employee is deemed to have breached, and we foresee many potential lawsuits or counterclaims for breach of contract by employees claiming that the termination of such payments was inappropriate.</div> <div> &nbsp;</div> <h2> Non-competes unenforceable against certain employees, including those laid off or terminated without cause and low-wage workers</h2> <div> In a nod to the furor over non-competes governing low-wage workers and certain other groups, this bill prohibits the use of such agreements for: (1) nonexempt employees under the Fair Labor Standards Act (see our analysis <a href="https://www.tradesecretslaw.com/2016/05/articles/trade-secrets/umpteenth-times-the-charm-massachusetts-has-another-go-at-non-compete-reform/">here</a> of how this provision could be difficult to interpret, given that the FLSA&rsquo;s overtime exemptions are not always a model of clarity and can be a <a href="https://www.wagehourlitigation.com/dol-compliancerule-making/white-collar-exemption-revisions-announced/">moving target</a>); (2) undergrads and grad students working part-time; (3) employees 18 and younger; and (4) employees terminated without cause or laid off.</div> <div> &nbsp;</div> <h2> &ldquo;Springing&rdquo; non-competes</h2> <div> Notably, this bill allows a court to impose a non-compete as a penalty for an employee&rsquo;s breach of other enforceable restrictive covenants (such as non-solicit agreements) or statutory or common law duties. We view this as a fairly extraordinary remedy, and suspect that only very egregious conduct from employees will cause a court to consider it.</div> <div> &nbsp;</div> <h2> Choice of law</h2> <div> The bill prohibits employers from applying another state&rsquo;s law to an employee&rsquo;s non-compete agreement, provided the employee lived in Massachusetts for the last 30 days before cessation of his or her employment. This could be complicated for multi-jurisdictional employers who enter into non-compete agreements with non-Massachusetts residents if those employees subsequently move to Massachusetts following execution. It would seem that such employers would need to ensure that within 30 days of such a move, the employee&rsquo;s agreement is reviewed and/or renewed to ensure compliance with Massachusetts law.</div> <div> &nbsp;</div> <h2> Venue</h2> <div> All actions to enforce non-compete agreements must be initiated in the employee&rsquo;s home county or in Suffolk County (and if in Suffolk County, only in the Superior Court&rsquo;s Business Litigation Session). Notably absent from the bill is any mention of actions brought in federal court with pendant state law claims, or the ability to remove cases to federal court located in the employee&rsquo;s county.</div> <div> &nbsp;</div> <h2> Other requirements consistent with common law</h2> <div> As already contemplated in common law decisions, regardless of when the agreement was entered into, the bill requires that the agreement must be no broader than necessary to protect the employer&rsquo;s legitimate business interests (trade secrets, confidential information, or goodwill), and must be consonant with public policy.</div> <div> &nbsp;</div> <div> Likewise, the agreement must be reasonable in temporal and geographic scope and the scope of activities prohibited. The bill provides that a geographic scope that is limited to the locations in which the employee provided services or had a material presence or influence in the last two years of his or her employment will be deemed presumptively valid, as will a provision limiting the scope of prohibited activities to those services provided by the employee during the last two years of employment.</div> <div> &nbsp;</div> <h2> Reformation</h2> <div> Similarly, consistent with existing law, the bill provides that courts may reform &ldquo;or otherwise revise&rdquo; overbroad or otherwise unenforceable non-compete agreements. Note that while some commenters have reported that the bill would allow courts to&nbsp; &ldquo;blue pencil&rdquo; an overbroad agreement, the passed bill does not reference &ldquo;blue penciling,&rdquo; a doctrine that allows the court to revise an agreement only by excising grammatically severable language (i.e., under the &ldquo;blue pencil&rdquo; doctrine, courts could not add language to limit an agreement). While certainly a court can, by reforming the agreement, excise certain words and decline to add new language, references to the &ldquo;blue pencil&rdquo; doctrine are nonetheless somewhat misleading, because they imply that the court cannot add language to render an overbroad agreement enforceable.</div> <div> &nbsp;</div> <h2> UTSA adoption</h2> <div> Finally, with this bill, Massachusetts will become the 49th state in the Union (with only New York lagging) to adopt a version of the Uniform Trade Secret Act (&ldquo;UTSA&rdquo;).</div> <div> &nbsp;</div> <h2> What now?</h2> <div> Businesses with employees in Massachusetts (or who move to Massachusetts) will need to carefully review their agreements with such employees to ensure compliance with this new bill (assuming of course that it is signed by Governor Baker). While the bill is not retroactive, any agreements entered into on or after October 1, 2018, must comply with the new requirements. Even though agreements entered into before October 1, 2018, will not be subject to this bill, the prudent practice would be to review existing agreements for compliance with this law, and consider making changes to bring them into compliance.</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/EL080218 The New Transparency: Using Collaboration and Technology to Help Address Modern Slavery https://www.seyfarth.com:443/publications/EL080218 Thu, 02 Aug 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:&nbsp;</em></strong><em>Over 40 million people around the world are trapped in conditions of modern slavery, according to research from the Walk Free Foundation and the International Labour Organization. Modern slavery&mdash;a term that encompasses various forms of servitude, forced labor, trafficking in persons, forced marriage, child trafficking, debt bondage, child labor and exploitation, and other slavery-like practices&mdash;exists both at home and abroad, across a range of local industries and in global supply chains.</em></p> <p> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/the-new-transparency-using-collaboration-and-technology-to-help-address-modern-slavery/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT080218 The Week in Weed: August 3, 2018 https://www.seyfarth.com:443/publications/TBT080218 Thu, 02 Aug 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/08/the-week-in-weed-august-3-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/glitax080118 John Napoli, Michael Rosenthal and Michael Lobie authored a chapter in Global Legal Insights https://www.seyfarth.com:443/publications/glitax080118 Wed, 01 Aug 2018 00:00:00 -0400 <p> John Napoli, Michael Rosenthal and Michael Lobie authored a chapter in Global Legal Insights, &quot;Corporate Tax 2018 USA.&quot; You can read the <a href="https://www.globallegalinsights.com/practice-areas/corporate-tax-laws-and-regulations/usa">full chapter here</a>.</p> https://www.seyfarth.com:443/publications/TS080118 At Long Last, Non-Compete Legislation: Massachusetts Finally Passes Non-Compete Bill After Nearly a Decade https://www.seyfarth.com:443/publications/TS080118 Wed, 01 Aug 2018 00:00:00 -0400 <p> Late last night, after close to a decade of &ldquo;will they or won&rsquo;t they&rdquo; nail biters, the Massachusetts legislature finally passed a non-compete bill, just minutes before the end of the 2018 legislative session. (For a recap of the many twists and turns over the years, here is just a smattering of blog posts on the topic).<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/08/articles/legislation-2/at-long-last-non-compete-legislation-massachusetts-finally-passes-non-compete-bill-after-nearly-a-decade/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/markelmurraypl080118 Gregory Markel and Heather Murray authored an article in Thomson Reuters Practical Law https://www.seyfarth.com:443/publications/markelmurraypl080118 Wed, 01 Aug 2018 00:00:00 -0400 <p> Gregory Markel and Heather Murray authored an August 1 article in Thomson Reuters Practical Law, &quot;Litigating Appraisal Actions: Key Issues and Considerations.&quot; You can read the <a href="https://www.seyfarth.com/dir_docs/publications/LIT_AugSep18_Feature2_UpdatedFinal.pdf">full article here</a>.</p> https://www.seyfarth.com:443/news/johnsonbloomberglaw080118 Randel Johnson quoted in Bloomberg Law https://www.seyfarth.com:443/news/johnsonbloomberglaw080118 Wed, 01 Aug 2018 00:00:00 -0400 <p> Randel Johnson was quoted in an August 1 story from Bloomberg Law, &quot;Trump Aide&rsquo;s Clash With Labor Secretary Slows Policy Actions,&quot; on White House labor adviser James Sherk.</p> https://www.seyfarth.com:443/news/workingmother073118 Seyfarth Named a “Best Law Firm for Women” for 8th Year by Working Mother https://www.seyfarth.com:443/news/workingmother073118 Tue, 31 Jul 2018 00:00:00 -0400 <p> CHICAGO (July 31, 2018) -- Seyfarth Shaw LLP announced today that it has been named to <em>Working Mother </em>magazine&rsquo;s annual &ldquo;Best Law Firms for Women&rdquo; list for the eighth straight year. In partnership with the <em>ABA Journal</em>, this list recognizes 60 firms for their best practices in retaining and promoting women lawyers.</p> <p> &ldquo;This is a tremendous honor which recognizes our continued best practices around flexibility and support for women&rsquo;s advancement,&rdquo; said Ellen McLaughlin, chair of Seyfarth Women&rsquo;s Network.</p> <p> The full list, available <a href="https://www.workingmother.com/best-law-firms-for-women-2018">here</a>, highlights law firms where on average almost half of associates and more than a third of partners are women, while one-fifth of equity partners are women. According to <em>Working Mother</em>, these firms also increasingly offer extended parental-leave benefits and encourage more lawyers to work remotely and use flexible hours.</p> <p> &quot;The law firms that make <em>Working Mother</em>&#39;s list are remarkable for their long-term commitment to retaining and promoting women lawyers,&quot; said Meredith Bodgas, editor-in-chief of <em>Working Mother</em>. &quot;One hundred percent of these firms provide flexible work arrangements and 57 percent of them offer sponsorship programs for high-potential women lawyers. That&#39;s resulted in a jump in the number of women equity partners to 21 percent.&quot;</p> <p> This reflects the latest such major honor for Seyfarth this year. Last month, the firm earned the prestigious Gold Standard Certification from the Women In Law Empowerment Forum. Please visit <a href="http://www.seyfarth.com/Accolades/wilef062718">here</a> for more details.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> https://www.seyfarth.com:443/news/boutroscbc073118 Andrew Boutros interviewed on CBC News Network https://www.seyfarth.com:443/news/boutroscbc073118 Tue, 31 Jul 2018 00:00:00 -0400 <p> Andrew Boutros was interviewed July 31 on CBC News Network, &quot;Manafort Goes on Trial.&quot;</p> https://www.seyfarth.com:443/publications/colemanwadsworthitechlaw073118 Jesse Coleman and Brian Wadsworth authored an article in ITechLaw https://www.seyfarth.com:443/publications/colemanwadsworthitechlaw073118 Tue, 31 Jul 2018 00:00:00 -0400 <p> Jesse Coleman and Brian Wadsworth authored a July 31 article in ITechLaw, &quot;The Texas Court of Appeals for the Third District Holds that the Texas Anti-SLAPP Statute Applies to a Conspiracy to Misappropriate Trade Secrets Claim.&quot; You can read the <a href="https://www.itechlaw.org/news/texas-court-appeals-third-district-holds-texas-anti-slapp-statute-applies-conspiracy">full article here</a>.</p> https://www.seyfarth.com:443/publications/EL073118 California Attempts to Clarify Salary History Ban Legislation https://www.seyfarth.com:443/publications/EL073118 Tue, 31 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: California Governor Brown signed into law last week Assembly Bill No. 2282 to clarify previously passed legislation that prohibits inquiries into an applicant&rsquo;s salary history. Read on for a recap of Assembly Bill No. 2282.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/california-attempts-to-clarify-salary-history-ban-legislation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/peerypinskyprea073018 Gordon Peery and Tobi Pinsky authored an article in PREA Quarterly https://www.seyfarth.com:443/publications/peerypinskyprea073018 Mon, 30 Jul 2018 00:00:00 -0400 <p> Gordon Peery and Toby Pinsky authored an article in the Summer issue of PREA Quarterly, &quot;The Economic Growth, Regulatory Relief, and Consumer Protection Act Provides Relief and Clarity for the Commercial Real Estate Market.&quot;</p> https://www.seyfarth.com:443/publications/OMM073018-HL DOL Guidance on Employer Status of Caregiver Registries: Foreshadowing A More Tolerant Independent Contractor Approach https://www.seyfarth.com:443/publications/OMM073018-HL Mon, 30 Jul 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Department of Labor Acting Administrator Bryan Jarrett issued Field Assistance Bulletin No. 2018-4 (&ldquo;FAB&rdquo;) on July 13, to guide Wage &amp; Hour Division (&ldquo;WHD&rdquo;) field investigators on how to determine whether home care, nurse, or caregiver registries are employers under the Fair Labor Standards Act.<a href="#_ftn1" name="_ftnref1" style="background-color: rgb(255, 255, 255);" title="">[1]</a>&nbsp; The notable FAB makes no negative reference to independent contractor status, shedding first light on the administration&rsquo;s independent contractor classification approach following withdrawal of the DOL&rsquo;s 2015 Administrator&rsquo;s Interpretation last year. The guidance is welcome news for the growing number of companies that seek to match workers with individuals who seek in-home care, as well as to entities outside the healthcare sector that engage non-employed workers.</em></p> <p> The DOL begins its guidance by recognizing that &ldquo;a registry that simply facilitates matches between clients and caregivers&mdash;even if the registry also provides certain other services, such as payroll &mdash;is not an employer under the DOL.&rdquo;&nbsp; The FAB provides, however, &ldquo;specific examples of common registry business practices which may, when the totality of factors is analyzed, establish the existence of an employment relationship under the FLSA.&rdquo;&nbsp; The FAB reveals a return to DOL&rsquo;s historical approach of reviewing employer status on a &ldquo;case-by-case&rdquo; basis, by assessing a totality of circumstances without allowing any single factor to dictate the outcome.</p> <p> The FAB highlights factors that the WHD will analyze during investigations, illustrating that registries should avoid becoming embroiled in the caregiver relationship or unduly controlling caregivers&rsquo; work. Registries should be aware in particular of the following:</p> <ul> <li> Performance of basic caregiver background checks does not indicate employer status.&nbsp; If the registry actually interviews prospective caregivers or references, or pre-selects candidates for clients, however, it may be acting as an employer.</li> <li> Providing clients or caregivers with information about typical market-based pay rates&nbsp; &ldquo;to serve as a benchmark for negotiations&rdquo; does not indicate employer status.&nbsp; If the registry &ldquo;designates a set wage range,&rdquo; or &ldquo;offers tailored direction concerning what a caregiver should charge for specific services,&rdquo; it appears more like an employer.&nbsp;</li> <li> Performing certain administrative payroll-related functions, such as preparing tax documents or compiling time records, will not create an employment relationship.&nbsp; A registry&rsquo;s direct payment of its own funds, or independent verification or adjustment of caregiver time records, however, may indicate employer status.&nbsp;</li> <li> Charging a one-time fee for services to match a caregiver with a client, or ongoing fees for performing administrative functions like payroll, do not indicate that the registry is the caregiver&rsquo;s employer.&nbsp; However, charging ongoing fees to the client based on the number of hours a caregiver works, or based on the ongoing caregiver relationship, may indicate employer status, because &ldquo;[t]he caregiver&rsquo;s pay . . . depends, in part, on the amount the registry charges.&rdquo;</li> </ul> <p> Other factors that the WHD will analyze include the registry&rsquo;s level of involvement in: hiring and firing; scheduling and assigning work (where the caregiver may &ldquo;economically depend on the registry&rsquo;s preferences and decisions&rdquo;); controlling the caregiver&rsquo;s work through trainings, setting policies, or monitoring and evaluating the caregiver&rsquo;s performance; and purchasing equipment and supplies, including the caregiver&rsquo;s licenses, insurance, or medical supplies.&nbsp; According to DOL, requiring a caregiver to obtain an EIN, insurance, or bond in accordance with the law is &ldquo;not relevant&rdquo; to the analysis, nor is calling a caregiver an &lsquo;independent contractor&rsquo; or issuing him or her a Form 1099.</p> <p> The FAB&rsquo;s focus exclusively on registries may indicate that the DOL intends to increase its scrutiny of employment relationships in the home health care industry, about which there has been little recent guidance outside the companionship arena.&nbsp; More broadly, however, the factors that the DOL highlights in this FAB translate across a wide variety of industries, and reveal insight into how the current administration views the employer/independent contractor analysis under the Fair Labor Standards Act.&nbsp; After withdrawing its formal guidance on independent contractor misclassification in June 2017, &nbsp;thereby abandoning the relatively strict &ldquo;economic realities&rdquo; test that was widely viewed to favor employer status, the DOL has been relatively silent on the topic -- until now.&nbsp; The FAB&rsquo;s return to a &ldquo;totality of circumstances&rdquo; analysis portends a more tolerant approach to independent contractor classification, indicating that certain entities, like traditional match-making registries, can liaise between independent workers and their clients without creating an employer relationship. &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> A &ldquo;registry&rdquo; is &ldquo;an entity that typically matches people who need caregiving services with caregivers who provide the services, usually nurses, home health aides, personal care attendants, or home care workers with other titled (collective, caregivers).&rdquo;</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/WSE073018 Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting Requirements https://www.seyfarth.com:443/publications/WSE073018 Mon, 30 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA today published a proposed rule to amend the injury and illness recordkeeping rules by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. OSHA is amending provisions of the &ldquo;Improve Tracking of Workplace Injuries and Illnesses&rdquo; (WII Rule) final rule to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA). 83 Fed. Reg. 36494 (July 30, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/roller-coaster-rulemaking-osha-publishes-proposed-rule-to-reduce-injury-and-illness-electronic-reporting-requirements/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS073018 New transparency: using collaboration and technology to address modern slavery https://www.seyfarth.com:443/publications/WLS073018 Mon, 30 Jul 2018 00:00:00 -0400 <p> In increasingly globalised markets, there is growing regulatory and consumer pressure on businesses to eliminate the exploitative practices of modern slavery in their operations and global supply chains.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/07/new-transparency-using-collaboration-and-technology-to-address-modern-slavery/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/babsonbloomberg073018 Marshall Babson quoted in Bloomberg https://www.seyfarth.com:443/news/babsonbloomberg073018 Mon, 30 Jul 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a July 30 story from Bloomberg, &quot;Kavanaugh Sided With Trump Casino in 2012 to Thwart Union Drive.&quot; Babson said that Kavanaugh&rsquo;s skepticism about quasi-legislative moves by agencies could benefit both liberals and conservatives. You can read the <a href="https://www.bloomberg.com/news/articles/2018-07-30/kavanaugh-sided-with-trump-casino-in-2012-to-thwart-union-drive">full article here</a>.</p> https://www.seyfarth.com:443/news/morneaushepell072718 Seyfarth Represents Morneau Shepell in $426 Million Acquisition of LifeWorks https://www.seyfarth.com:443/news/morneaushepell072718 Fri, 27 Jul 2018 00:00:00 -0400 <p> CHICAGO - (July 27, 2018) - Seyfarth Shaw LLP represented Morneau Shepell Inc., a leader in human resources services and technology, in its $426 million CDN acquisition of LifeWorks Corporation Ltd., the leading global Employee Assistance Program (EAP) and wellness provider.</p> <p> As a result of the deal, Morneau Shepell acquires all of the outstanding shares of LifeWorks, payable in cash and Morneau Shepell shares. The acquisition presents a significant addition to Morneau Shepell&#39;s leading EAP offering and will allow Morneau Shepell to better address multiple well-being challenges faced by its clients and their employees.</p> <p> Morneau Shepell is the only human resources consulting and technology company that takes an integrated approach to employee assistance, health, benefits and retirement needs. Morneau Shepell is the leading provider of employee and family assistance programs, the largest administrator of retirement and benefits plans and the largest provider of integrated absence management solutions in Canada.</p> <p> Established in 1966, Morneau Shepell serves approximately 20,000 clients, ranging from small businesses to some of the largest corporations and associations. With more than 4,000 employees in offices across North America, Morneau Shepell provides services to organizations across Canada, in the United States and around the globe.</p> <p> LifeWorks is an employee well-being business which combines employee assistance, wellness, recognition and incentive programs in the United States, Canada, Australia and the United Kingdom.</p> <p> The Seyfarth team was led by Corporate partner Suzanne Saxman and included the Corporate team of Robert Hanley, Veronica DiCamillo, Aaron Gillett and Stephen Gallagher; Regulatory - Brandon Bigelow; Labor &amp; Employment team of Paul Whinder, Honore Hishamunda, Katherine Smallwood, Megan Toth, Christina Meddin and Coby Turner; Employee Benefits - Christian Hallett; IP team of Julia Sutherland, Stephen Lott and Teddie Hsu; and Data Security and Privacy team of Richard Lutkus, John Tomaszewski, Jennifer Mora and Cassie Myatt.</p> https://www.seyfarth.com:443/publications/MA072718-LE Baby It's Cold Outside: ICE I-9 Audits Increase Over 100 Percent https://www.seyfarth.com:443/publications/MA072718-LE Fri, 27 Jul 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>:<em> Immigration and Customs Enforcement (ICE) increases the number of Form I-9 inspections over 100 percent.&nbsp; Employers should recognize this heightened enforcement and prioritize immigration compliance today to minimize monetary fines, branding exposure and other forms of liability.</em></p> <p> On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20.&nbsp; HSI served 2,738 I-9 Notices of Inspection (NOIs<a href="#_ftn1" name="_ftnref1" title="">[1]</a>) to US businesses around the country after serving 2450 during its first phase earlier this year. &nbsp;In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017.&nbsp; Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. &nbsp;These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance.&nbsp; Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. &nbsp;Paperwork violations range from $224 to $2236.&nbsp; Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.&nbsp;</p> <p> In<a href="https://www.ice.gov/news/releases/ice-delivers-more-5200-i-9-audit-notices-businesses-across-us-2-phase-nationwide">&nbsp;ICE&rsquo;s press release</a>, HSI reminded employers about its &ldquo;three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.&rdquo;</p> <p> These events have been expected and actually follow prior comments by HSI officials that <a href="https://www.bigimmigrationlawblog.com/2018/01/following-a-long-thaw-ice-returns-with-increased-worksite-enforcement/">we previously reported</a>, confirming that 2018 will be a year of increased immigration enforcement.</p> <p> <strong>What Happens When We Receive an NOI? ?</strong></p> <ul> <li> An ICE audit begins when an auditor and/or an ICE agent arrives at your doorstep to serve the company with a Notice of Inspection.</li> <li> Service can also be accomplished via certified U.S. mail, return receipt requested. Ensure you have a protocol to have a NOI reach the right party in a timely fashion.</li> <li> If in person, the agent will generally deliver the notice and will request to see a manager or the person charged with Form I-9 duties.&nbsp; The person receiving service of the NOI will need to sign a document acknowledging receipt.</li> <li> The company will be provided three (3) days to respond to the NOI, but extensions may be granted with good reason.</li> <li> NOIs should be taken very seriously. &nbsp;In 2017, the largest judgment in U.S. history for illegally employing undocumented immigrants was levied against Asplundh Tree Expert Co.&mdash;t<a href="http://www.seyfarth.com/publications/IMM101017">he company had to pay a total of $95 million in forfeitures and civil claims</a>.</li> </ul> <p> Recent experience indicates that ICE is routinely requesting the Forms I-9 only of current employees. However, the agency may ask for both the current and terminated employees Forms I-9 (within the retention period), and the agent or auditor may expand the scope as necessary at any point during the review.</p> <p> Frequently, the NOI includes an administrative subpoena with an additional document request in addition to the Forms I-9.&nbsp; Generally, ICE requests the following:</p> <ul> <li> Current employee list, indicating the date of hire, termination and rehire where applicable;</li> <li> E-Verify information (case number on the I-9 or case details attached);</li> <li> Copies of quarterly wage and hour reports for a defined period for the specific location;</li> <li> Payroll records for the site;</li> <li> Business entity information (e.g. EIN, business charter, articles of incorporation, and business licenses);</li> <li> List of subcontractors and staffing companies that serve the site;</li> <li> &ldquo;No Match&rdquo; or &ldquo;Mis-Match&rdquo; letters from the Social Security Administration; and,</li> <li> Business entity questionnaire&mdash;provided by HSI.</li> </ul> <p> &nbsp;</p> <p> Remember, all document copies will need to be submitted with the I-9s if your business retains copies of documents.&nbsp; Generally, as a best practice, we recommend keeping document copies.</p> <p> <strong>Are there any special considerations when using an Electronic I-9 System?</strong></p> <p> Yes, using an electronic I-9 system adds additional responsibilities.&nbsp; In order to respond to the NOI, a company may be asked to:</p> <ul> <li> Answer questions about the electronic Form I-9 system;</li> <li> Retrieve and reproduce electronically stored Forms I-9, along with any other requested documents;</li> <li> Provide the agent with the necessary hardware and software to inspect electronic documents; and,</li> <li> Provide the agent with any existing electronic summary of the information recorded on each Form I-9, information relating to the required indexing system, and all audit trails associated with each I-9.</li> </ul> <p> <strong>Why did my company receive a NOI?</strong></p> <ul> <li> ICE prioritizes investigations involving critical infrastructure and key resources.</li> <li> ICE may have received a tip or lead about the business.</li> <li> It could simply be random.</li> <li> If you were blessed with a NOI in the past, this could be a re-inspection.</li> <li> Your company may sit in traditionally targeted industries, such as the service industry, restaurants and hospitality, construction, brick and mortar retailers (e.g. food, clothing, drugstores, and home improvement), food production, landscaping, cleaning, maintenance, or packaging and manufacturing.</li> </ul> <p> <strong>What to consider after receiving a NOI?</strong></p> <ol> <li> <strong>Take this seriously. </strong>&nbsp;Receipt of a NOI should be taken very seriously without regard to the size of your company.&nbsp; If you receive an audit notice, it is critical that you act immediately and secure an experienced compliance expert to guide you through the ICE inspection process&mdash;immediately retaining experienced immigration compliance counsel protects your business.&nbsp; Inquire as to the specific background the attorney has in defending companies in ICE investigations rather than just conducting internal audits.</li> <li> <strong>Do NOT waive your three-day right to produce the I-9s</strong>. &nbsp;You will not receive any &ldquo;credit&rdquo; for handing the box of I-9s over while the agent is waiting in the lobby.</li> <li> <strong>Notify your management and executive teams. </strong>&nbsp;Inform management immediately of the government&rsquo;s request.</li> <li> <strong>Collect information. &nbsp;</strong>ICE and your attorney will need a fair amount of information, such as whether or not you are a federal contractor, you use an electronic I-9 system, how many locations you have and what the footprint is, the last time you had an I-9 training, etc.&nbsp;</li> <li> C<strong>ommunicate carefully. </strong>&nbsp;Cooperate with the agent, but remember he/she is not your friend but rather a representative of the U.S. government charged with investigating your business. The person receiving the NOI is not obligated to speak with the agent, but should certainly be cordial.</li> <li> <strong>Be cognizant of timing.</strong>&nbsp; Every minute counts&mdash;the law provides just three (3) business days to collect the Forms I-9 (and photocopies of supporting documents, if copies were made at time of completion) and produce them to ICE, so ensure that you have taken the time to prepare beforehand by mandating good I-9 hygiene, including auditing for missing and incomplete I-9s.</li> <li> <strong>Consider requesting an extension</strong>.&nbsp; Consider whether you require an extension of time.&nbsp; While discretionary, generally, if reasonable ICE will accommodate such a request. &nbsp;At a minimum, ICE will likely provide an extension for the documents outside of the I-9s.</li> <li> <strong>Do not discriminate. &nbsp;</strong>Treat employees fairly and consistently. &nbsp;Ensure that existing employees are not arbitrarily required to provide new or updated Form I-9 information or document copies. &nbsp;The Department of Justice&rsquo;s Immigrant and Employee Rights Section (IER), enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. &sect; 1324b. Visit their <a href="https://www.justice.gov/crt/immigrant-and-employee-rights-section">website</a> for information on how to better understand the anti-discrimination provision of the INA.</li> <li> <strong>Post-NOI checklist.&nbsp; </strong>Make proactive plans for training and further cleanup.&nbsp; Work with your counsel to assess potential liability and identify trends on Forms I-9 submitted to ICE.&nbsp; Understand what comes next during the lifecycle of an inspection and what type of violations you may be facing.</li> </ol> <p> ICE has increased the number of worksite investigations in 2018 by over 100 percent compared to previous years.&nbsp; As this author stated earlier this year, given stepped-up enforcement, the Administration&rsquo;s focus on immigration, and a newfound emphasis on interagency cooperation, 2018 continues to be a year for US companies to prioritize compliance in an effort to stay out of the crosshairs of a government investigation.&nbsp; Employers should be taking steps to prepare for increased I-9 compliance which were outlined in a prior <a href="https://www.bigimmigrationlawblog.com/2018/07/ice-i-9-audits-on-the-rise-act-today-to-prevent-issues-tomorrow/#more-2672">Alert</a>. &nbsp;Please feel free to contact the author, Dawn Lurie, at dlurie@seyfarth.com with any questions. This<a href="https://www.bigimmigrationlawblog.com/2018/07/baby-its-cold-outside-ice-i-9-audits-increase-over-100-percent/"> article</a> first appeared on the <a href="https://www.bigimmigrationlawblog.com/">BIG Immigration Blog</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> NOIs notify companies that the government is going to audit their records to determine if they are complying with relevant immigration compliance laws.&nbsp; Under federal law, employers are required to verify the identity and employment eligibility of each of its newly hired employees, and must also reverify certain employees&nbsp; with expiring work authorization.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/WSE072718 Upcoming Atlanta Event: OSHA Trends and Developments: One Year Into the Trump Administration (Register to Reserve Your Spot) https://www.seyfarth.com:443/publications/WSE072718 Fri, 27 Jul 2018 00:00:00 -0400 <p> On August 23, 2018, our Atlanta office is hosting a hot-topic event in which our panelists will lead an interactive discussion on the trends we are seeing in OSHA regulation a year into the Trump administration. There is no cost to attend this program, but registration is required.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-enforcement/upcoming-atlanta-event-osha-trends-and-developments-one-year-into-the-trump-administration-register-to-reserve-your-spot/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS072718 California Federal Court Denies Preliminary Injunction In “Blockchain” Dispute https://www.seyfarth.com:443/publications/TS072718 Fri, 27 Jul 2018 00:00:00 -0400 <p> How different is a celebrity-focused &ldquo;cryptocollectible&rdquo; from a celebrity-focused &ldquo;cryptocurrency,&rdquo; and how similar does it have to be to constitute a trade secret? That was the question facing the Southern California federal district court in deciding a motion for a preliminary injunction in Founder Starcoin v. Launch Labs, Inc., No. 18-CV-972 JLS (MDD) (S.D. Cal. July 9, 2018). Defendant Launch Labs, d/b/a Axiom Zen, is the developer of &ldquo;CryptoKitties,&rdquo; a game that uses the Ethereum blockchain technology to &ldquo;allow[] users to securely buy, sell, trade, and breed genetically unique virtual cats.&rdquo; Plaintiff Starcoin has a business plan to create a &ldquo;regulated exchange&rdquo; for secure &ldquo;tokens&rdquo; representing celebrities that can be bought and sold, not just by typical investors, but by a celebrity&rsquo;s fans as well.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/trade-secrets/collectibles-vs-currency-when-the-court-does-not-understand-the-technology-at-issue/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP072718 Fasten Your Seat Belts: California Revisiting Oracle in Airline Cases https://www.seyfarth.com:443/publications/CP072718 Fri, 27 Jul 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.calpeculiarities.com/2018/07/27/fasten-your-seat-belts-california-revisiting-oracle-in-airline-cases/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM072718 Seyfarth Shaw Policy Matters Newsletter – July 26, 2018 https://www.seyfarth.com:443/publications/IMM072718 Fri, 27 Jul 2018 00:00:00 -0400 <p> OFCCP Director to Step Down. Earlier today, reports surfaced that the Director of the Office of Federal Contract Compliance Programs (OFCCP), Ondray Harris, would be stepping down from the role at the end of this week. Harris lasted less than 8 months on the job after being appointed to the position last December. Craig Leen, the deputy director at OFCCP, will serve as director on an acting basis. Leen is expected to continue the agency&rsquo;s recent &ldquo;business-friendly&rdquo; approach when analyzing the pay practices of federal contractors as well as the office&rsquo;s increased focus on apprenticeships.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/seyfarth-shaw-policy-matters-newsletter-july-26-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM072618 Baby It’s Cold Outside: ICE I-9 Audits Increase Over 100 Percent https://www.seyfarth.com:443/publications/IMM072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20. HSI served 2,738 I-9 Notices of Inspection (NOIs[1]) to US businesses around the country after serving 2450 during its first phase earlier this year. In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017. Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance. Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. Paperwork violations range from $224 to $2236. Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/baby-its-cold-outside-ice-i-9-audits-increase-over-100-percent/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT072618 The Week in Weed: July 27, 2018 https://www.seyfarth.com:443/publications/TBT072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/07/the-week-in-weed-july-27-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ERISA072618 The Ninth Circuit Addresses Whether To Enforce An Agreement To Arbitrate ERISA Claims https://www.seyfarth.com:443/publications/ERISA072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Ninth Circuit declined to enforce an agreement to arbitrate ERISA Section 502(a)(2) claims, but did not rule out enforcement in other ERISA claim contexts.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/07/26/the-ninth-circuit-addresses-whether-to-enforce-an-agreement-to-arbitrate-erisa-claims/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL072618 Arbitration And The Increasingly Political Judiciary—Should Employers (And Employees) See Arbitration As The More Neutral Forum? https://www.seyfarth.com:443/publications/EL072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The trend-lines describe employment-related litigation in the past 25 years: (1) the emergence of arbitration as a flexible and increasingly legally viable to resolve employment claims; and (2) the dangerous politicization of the judicial selection process in federal and state government. These trends should make arbitration in any state, whether red or blue, an even more attractive dispute-resolution device for employers and employees alike.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/arbitration-and-the-increasingly-political-judiciary-should-employers-and-employees-see-arbitration-as-the-more-neutral-forum/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR072618 Lessons from the Emerald City: Does Seattle’s New Domestic Worker Standards Board Indicate a Move Towards European Industry-Wide Collective Bargaining? https://www.seyfarth.com:443/publications/LR072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Seattle has long been at the forefront of progressive labor policies. Take, for example, its 2014 Minimum Wage Ordinance, which made it the first major city in the nation to increase wages to $15 an hour. Since then, dozens of other cities have followed suit. The same story is true of Seattle&rsquo;s Paid Sick and Safe Time Ordinance, which when passed in 2012, made Seattle only the third city in the nation to implement protected sick leave. Paid sick leave has spread since that time to more than nine states and countless local municipalities.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/07/26/lessons-from-the-emerald-city/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/febloglaw072618 Kathleen Cahill Slaught, Peter Varney and Michael Stevens' blog post referenced in Law.com https://www.seyfarth.com:443/news/febloglaw072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Kathleen Cahill Slaught, Peter Varney and Michael Stevens&#39; blog post was referenced in a July 26 story from Law.com, &quot;Labor of Law: &#39;Dynamex&#39; Fallout,&quot; on how courts and companies are confronting the big California worker-classification decision. In the blog post, the authors write that more employers across the country are looking at expanding their benefits packages and policies to meet the demands of the gig economy.</p> https://www.seyfarth.com:443/news/fritznewsy072618 Kevin Fritz interviewed by Newsy https://www.seyfarth.com:443/news/fritznewsy072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Kevin Fritz was interviewed July 26th by Newsy, &quot;Why Plastic Straw Bans Aren&#39;t Inclusive,&quot; on why plastic straws matter to people who have disabilities. Fritz said that the Americans with Disabilities Act has provisions that do require businesses to make reasonable modifications to their certain, normal practices when necessary, so that people with disabilities have access to those things. He said that no court has specifically addressed whether a business has to provide plastic straws. You can watch the <a href="https://www.newsy.com/stories/plastic-straws-are-vital-for-some-people-with-disabilities/">full interview here</a>.</p> https://www.seyfarth.com:443/news/hornickcostar072518 Blake Hornick quoted in CoStar https://www.seyfarth.com:443/news/hornickcostar072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> Blake Hornick was quoted in a July 25 story from CoStar. While nearly all IPOs have been affected by stock market volatility in recent quarters, new offerings by real estate investment trusts have been hurt by the perception that long-term interest rates will rise as demand declines for office and retail space, said Hornick. You can read the <a href="http://www.costar.com/News/Article/Cushman-IPO-Pits-Debt-Against-Market-Stability/203096">full article here</a>.</p> https://www.seyfarth.com:443/news/casciarilaw360072518 Mark Casciari quoted in Law360 https://www.seyfarth.com:443/news/casciarilaw360072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> Mark Casciari was quoted in a July 25 story from Law360, &quot;9th Circ. Likely Won&#39;t Have Last Word On ERISA Arbitration,&quot; on how the U.S. Supreme Court could eventually take up the issue of whether ERISA 502(a)(2) claims can be forced into arbitration. Casciari said that this issue is not going to go away. It&#39;s going to be addressed by other circuits. And the other circuits could go the other way on it.</p> https://www.seyfarth.com:443/publications/FE072518 Different Strokes for Different Folks: The Feasibility of Implementing Different Benefits Plans for Different Categories of Employees (Part I) https://www.seyfarth.com:443/publications/FE072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> In light of the growth of the gig economy, many employers are increasing the number of categories of their employees and associates. As the categories increase, so too has employers&rsquo; interest in being able to offer different benefits packages to different categories of employees.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/7/25/different-strokes-for-different-folks-the-feasibility-of-implementing-different-benefits-plans-for-different-categories-of-employees-part-i">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/BIO072518 Tribal Immunity Cannot Be Asserted to Escape IPR Proceedings https://www.seyfarth.com:443/publications/BIO072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> Indian tribes ability to shield patents from review at the United States Patent and Trademark Office&rsquo;s (&ldquo;USPTO&rdquo;) Patent Trial and Appeal Board (&ldquo;PTAB&rdquo;) took another blow at the Federal Circuit. The Federal Circuit in a precedential decision, affirming the decision of the PTAB, held that tribal sovereign immunity cannot be asserted in inter partes review (&ldquo;IPR&rdquo;) proceedings before the PTAB.[1]<br /> <br /> <a href="https://www.bioloquitur.com/tribal-immunity-cannot-asserted-escape-ipr-proceedings/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC072518 Court Rejects Individual Pattern and Practice Claim and Enforces Arbitration Agreement in Discrimination Case https://www.seyfarth.com:443/publications/WC072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In the midst of a legal landscape that is seemingly pro-arbitration, employers should recognize that employees still have a few strategies to oppose arbitration or invalidate an arbitration agreement. The recent ruling of the U.S. District Court for the Northern District of California in Buchanan, et. al. v. Tata Consultancy Services, Ltd., 15-CV-01696 (N.D. Cal. Jul. 23, 2018), is a good reminder for employers that arbitration agreements are still susceptible to challenges like waiver and unconscionability. Employers faced with class actions involving a mix of class members who signed and did not sign arbitration agreements should be careful to preserve their right to enforce the agreements.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/07/court-rejects-individual-pattern-and-practice-claim-and-enforces-arbitration-agreement-in-discrimination-case/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS072518 Webinar Recap! Protecting Trade Secrets from Cyber and Other Threats https://www.seyfarth.com:443/publications/TS072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> In Seyfarth&rsquo;s fourth installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Robert Milligan and Scott Atkinson, along with Center for Responsible Enterprise and Trade CEO Pamela Passman, focused on identifying the greatest threats to trade secrets, implementing an effective trade secret protection program, and enacting effective risk reduction processes across an organization.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/cybersecurity/webinar-recap-protecting-trade-secrets-from-cyber-and-other-threats/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise072418 The Sky’s the Limit: Possibilities and Pitfalls of Drone Use in Real Estate https://www.seyfarth.com:443/publications/FutureEnterprise072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Though drones have become more and more ubiquitous in hobbyist circles over the past decade, interest in the small, unmanned aircraft has only recently begun to spread into the commercial realm. Recent news reports speculating as to the future use of drones by leading retailers, such as Amazon and Walmart, have served to increase public curiosity regarding the future of these machines in the commercial sector. Although recent media interest revolves largely around the potential for drone delivery by large retailers, drone use could be integrated into many other aspects of real estate as well, with possible applications in marketing, surveying, property management and construction, among other areas. Despite the increasing affordability and availability of drones, however, property owners, business owners and other real estate professionals should be aware of the potential complications and limitations that may arise in incorporating drone use into any business model.</p> <p> <a href="https://www.futureenterprise.com/blog/2018/7/24/the-skys-the-limit-possibilities-and-pitfalls-of-drone-use-in-real-estate">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC072418 California Court Dismisses Deficient Disability Claims In EEOC-Initiated Systemic Action https://www.seyfarth.com:443/publications/WC072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In an EEOC-initiated systemic lawsuit alleging that a senior living and nursing facility operator violated the Americans With Disabilities Act (&ldquo;ADA&rdquo;) by failing to offer employees light duty as a reasonable accommodation and ignoring its obligation to engage in an interactive process, a federal district court in California recently granted in part the employer&rsquo;s motion to dismiss the claims of eight specifically identified claimants, holding that the EEOC failed to sufficiently allege that these individuals had a disability or could perform essential job functions.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/07/california-court-dismisses-deficient-disability-claims-in-eeoc-initiated-systemic-action/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM072418 ICE I-9 Audits on the Rise: Act Today to Prevent Issues Tomorrow https://www.seyfarth.com:443/publications/IMM072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> This blog was first published as a Seyfarth Shaw Management Alert on July 17, 2018<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/ice-i-9-audits-on-the-rise-act-today-to-prevent-issues-tomorrow/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL072418 The Fourth Circuit Reiterates that Employers’ Exposure to Vicarious Liability is Not Boundless https://www.seyfarth.com:443/publications/EL072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Fourth Circuit has issued a reminder of the boundaries of employer liability for defamation where there is no nexus between the employee&rsquo;s offensive speech and the individual&rsquo;s workplace responsibilities.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/the-fourth-circuit-reiterates-that-employers-exposure-to-vicarious-liability-is-not-boundless/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM072418-LE Shifty Business VII: NYC Releases Temporary Schedule Change Law Model Notice and FAQs https://www.seyfarth.com:443/publications/OMM072418-LE Tue, 24 Jul 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> The New York City Department of Consumer Affairs has released a model Notice of Employee Right and Frequently Asked Questions regarding its new Temporary Schedule Change Law that went into effect last week. Employers should take steps immediately to post the Notice in a conspicuous place in their New York City workplaces.&nbsp; &nbsp;</em></p> <p> On July 18, 2018, New York City&rsquo;s Temporary Schedule Change Law (&ldquo;TSCL&rdquo;) went into effect. As a reminder, the TSCL requires New York City employers to grant eligible employees two temporary schedule changes per year, of up to one business day each, for certain personal events. The TSCL applies to most employers with New York City employees.</p> <p> The New York City Department of Consumer Affairs (&ldquo;DCA&rdquo;) recently published a <a href="https://www1.nyc.gov/assets/dca/downloads/pdf/workers/TemporaryScheduleChange-Notice-English.pdf">model Notice of Employee Right</a> (the &ldquo;Notice&rdquo;), titled &ldquo;You Have a Right to Temporary Changes to Your Work Schedule.&rdquo; Employers must conspicuously post the Notice at their New York City workplaces. The Notice must be posted in English and any language that is the primary language of at least five percent of employees at that workplace, assuming the DCA has made the Notice available in that language. At the time of this publication, only the English version of the Notice has been released.</p> <p> In addition to the Notice, the DCA also recently published <a href="https://www1.nyc.gov/assets/dca/downloads/pdf/workers/FAQs-TemporaryScheduleChangeLaw.pdf">FAQs</a> regarding the TSCL. Among other points, the FAQs note that employers must post the Notice &ldquo;where employees can easily see it at each NYC workplace&rdquo; and that the Notice &ldquo;should be printed on and scaled to fill an 11 x 17 paper.&rdquo;</p> <p> By way of background, qualifying personal events that entitle employees to leave under the TSCL include:</p> <ul> <li> providing care for a minor child or other individual under the employee&rsquo;s care;</li> <li> attending legal proceedings for subsistence benefits to which the employee, the employee&rsquo;s family member, or the employee&rsquo;s care recipient is a party; and</li> <li> any circumstance that would qualify for use of safe or sick time under the recently-amended Earned Safe and Sick Time Act (&ldquo;ESSTA&rdquo;).&nbsp; (For more information on the recent changes to ESSTA, see our <a href="http://www.seyfarth.com/publications/MA050718-LE">prior alert</a>.)</li> </ul> <p> The TSCL provides nonexclusive examples of temporary schedule changes, which include:</p> <ul> <li> using paid time off;</li> <li> working remotely;</li> <li> changing work hours;</li> <li> swapping shifts; or</li> <li> using short-term unpaid leave.</li> </ul> <p> For more information on the TSCL, including the process by which employees request a schedule change and employers respond, employee eligibility standards, and the interplay between the TSCL and ESSTA, see our prior alerts <a href="http://www.seyfarth.com/publications/MA070518-LE">here</a> and <a href="http://www.seyfarth.com/publications/MA011918-LE">here</a>.</p> https://www.seyfarth.com:443/publications/wortmanimshrm072418 Jeffrey Wortman & Christopher Im authored an article in SHRM https://www.seyfarth.com:443/publications/wortmanimshrm072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Jeffrey Wortman &amp; Christopher Im authored a July 24 article in SHRM, &quot;California Attempts to Clarify Salary History Ban.&quot; On July 18, California Gov. Jerry Brown signed new legislation (A.B. 2282) to clarify the state&#39;s law that prohibits inquiries into an applicant&#39;s salary history. You can read the <a href="https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/California-Attempts-Clarify-Salary-History-Ban.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/vufoxbusiness072418 Minh Vu interviewed on Fox Business https://www.seyfarth.com:443/news/vufoxbusiness072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Minh Vu was interviewed July 24th on Fox Business&#39; Varney &amp; Co., &quot;Growing number of lawsuits over ADA website accessibility.&quot; Vu discussed the rising number of lawsuits over websites that are not compliant with the Americans with Disabilities Act. You can watch the <a href="http://video.foxbusiness.com/v/5813160210001/?#sp=show-clips">full interview here</a>.</p> https://www.seyfarth.com:443/news/vunylj072418 Minh Vu quoted in the New York Law Journal https://www.seyfarth.com:443/news/vunylj072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Minh Vu was quoted in a July 24 story from the New York Law Journal, &quot;NY&#39;s Advances in ADA Claims Helps Propel National Trend in Website Access Suits,&quot; on a recent ADA Title III analysis from Seyfarth. Vu said that ADA Title III regulations impose many obligations on businesses to open their doors to the public, and a lot of those obligations aren&rsquo;t always crystal clear. She said the ambiguity creates litigation.</p> https://www.seyfarth.com:443/news/yslasla072318 Labor & Employment Litigator John Yslas Joins Seyfarth in Los Angeles https://www.seyfarth.com:443/news/yslasla072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> LOS ANGELES (July 23, 2018) -- Seyfarth Shaw LLP announced today the arrival of partner John Yslas to the Labor &amp; Employment department in Los Angeles. Yslas joins from Norton Rose Fulbright, where he was a partner in Los Angeles.</p> <p> Yslas concentrates his practice on wage and hour and consumer class actions in both state and federal court. In addition, he regularly represents companies in single plaintiff employment matters. Yslas also defends and advises corporations in the areas of wage and hour compliance, breach of contract, commercial contracts disputes, discrimination, breach of fiduciary duty, harassment, misappropriation of trade secrets, retaliation, wrongful termination, and unfair business practices.</p> <p> &ldquo;John is an outstanding lawyer with a tremendous track record of success in wage and hour litigation,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;Equipped with the firm&rsquo;s national platform, we are excited to see John take his dynamic practice to the next level.&rdquo;</p> <p> In addition to his renown labor and employment background, Yslas also has a robust litigation practice which comprises extensive pre-trial, jury trial, arbitration, and appellate experience. As a trial attorney, he has successfully defended multi-million dollar commercial and unfair business claims and beaten class certification on multiple occasions involving a broad range of employment claims.</p> <p> &ldquo;A well-known presence in California, John is a great asset to our wage and hour team and the many industries we serve on the West Coast,&rdquo; said Aaron Lubeley, co-managing partner of Seyfarth&rsquo;s Los Angeles office. &ldquo;He is an excellent lawyer and a great fit for the office, the practice and the firm.&rdquo;</p> <p> &ldquo;John is an ideal addition to our Los Angeles office,&rdquo; said Richard Mendelson, co-managing partner of Seyfarth&rsquo;s Los Angeles office. &ldquo;Besides being a great lawyer, he is also committed to several organizations, and maintains a visible role in the legal community, as well as the Los Angeles business community.&rdquo;</p> <p> Yslas currently serves on the board of directors of the Mexican American Bar Foundation and the California Minority Counsel Program.</p> <p> &ldquo;John has dedicated his time and talent to help promote diversity in the legal profession. We look forward to his continued leadership with inclusion focused organizations,&rdquo; said Maechtlen.</p> <p> Yslas received his J.D. from the University of California, Los Angeles and earned his B.A., <em>with high honors</em>, from the University of California, Santa Barbara.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Communications, (312) 460-6401, <a href="http://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> https://www.seyfarth.com:443/news/vuwsj072318 Minh Vu quoted in the Wall Street Journal https://www.seyfarth.com:443/news/vuwsj072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Minh Vu was quoted in a July 23 story from the Wall Street Journal, &quot;The Morning Risk Report: Record Pace for Website Accessibility Lawsuits.&quot; Lawsuits accusing companies of failing to make their websites accessible to people with disabilities are being filed at a record pace this year, according to an analysis from Seyfarth. Vu said that more plaintiffs&rsquo; attorneys are getting in on the action, knowing they are likely to get quick settlements because defending these cases can be expensive and uncertain. You can read the <a href="http://createsend.com/t/d-5967908D0BFA14152540EF23F30FEDED">full article here</a>.</p> https://www.seyfarth.com:443/news/babsonlaw360072318 Marshall Babson quoted in Law360 https://www.seyfarth.com:443/news/babsonlaw360072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a July 23 story from Law360, &quot;3 Things To Watch As NLRB Member Pearce&rsquo;s Term Wraps Up.&quot; Babson noted that the wave of cases before a member leaves is known in NLRB parlance as a &ldquo;rush.&rdquo; He said that a board set to lose its majority tends to send out more cases during in a rush.</p> https://www.seyfarth.com:443/news/livingstonmhl072318 Brad Livingston quoted in Material Handling & Logistics https://www.seyfarth.com:443/news/livingstonmhl072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Brad Livingston was quoted in a July 23 story from Material Handling &amp; Logistics, &quot;DOL Withdraws Its &lsquo;Persuader&rsquo; Rule.&quot; Livingston said that employers and consultants believed the reporting requirement would have a chilling effect on employers&rsquo; willingness to seek legal advice during union organizing campaigns, a time when obtaining such advice is critical. You can read the <a href="http://www.mhlnews.com/labor-management/dol-withdraws-its-persuader-rule">full article here</a>.</p> https://www.seyfarth.com:443/news/oslickignites072318 Jacob Oslick quoted in Ignites https://www.seyfarth.com:443/news/oslickignites072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Jacob Oslick was quoted in a July 23 story from Ignites, &quot;&quot;Getting Political: Shops Keep an Eye on Staffers&rsquo; Campaign Activities,&quot; on how off-hours politicking has landed several fund professionals in the hot seat in recent weeks. Oslick recommends that employers not take action against employees for their political beliefs and activities outside of the office.</p> https://www.seyfarth.com:443/publications/colemanwadsworthlaw360072318 Jesse Coleman and Brian Wadsworth authored an article in Law360 https://www.seyfarth.com:443/publications/colemanwadsworthlaw360072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Jesse Coleman and Brian Wadsworth authored a July 23 article in Law360, &quot;How Texas&#39; Anti-SLAPP Law Applies To Medical Peer Review.&quot; The article discusses the potential impact the TCPA may have on medical peer review cases in the future. You can read the <a href="https://www.seyfarth.com/dir_docs/publications/Law360-How_Texas_Anti-SLAPP_Law_Applies_To_Medical_Peer_Review.pdf">full article here</a>.&nbsp;</p> https://www.seyfarth.com:443/publications/TS072318 Seyfarth Shaw Attorneys to Present Financial Services and Trade Secret Audit Webinars https://www.seyfarth.com:443/publications/TS072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> On Wednesday, July 25, Seyfarth Shaw partners J. Scott Humphrey and Justin K. Beyer are presenting webinars for myLawCLE.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/trade-secrets/seyfarth-shaw-attorneys-to-present-financial-services-and-trade-secret-audit-webinars/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM072318 Seyfarth Shaw Policy Matters Newsletter – July 19, 2018 https://www.seyfarth.com:443/publications/IMM072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> President Trump Signs Executive Order on Workforce Training. Earlier today, President Trump signed an executive order which aims to bolster vocational training, creates a national council for American workers, and establishes a workforce policy advisory board in a push to increase the number of skilled workers in the U.S. Alongside business executives, the President introduced the &ldquo;Pledge to America&rsquo;s Workers,&rdquo; which commits employers to expanding on-the-job training and apprenticeships. The administration expects the pledge to lead to at least 500,000 new career opportunities for students and workers. Earlier this week, Ivanka Trump penned an op-ed in support of the new initiative, declaring that the administration hopes to &ldquo;create a workforce culture that fosters and prioritizes life-long learning.&rdquo;<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/seyfarth-shaw-policy-matters-newsletter-july-19-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FE072318 The New Transparency: Using Collaboration and Technology to Help Address Modern Slavery https://www.seyfarth.com:443/publications/FE072318 Mon, 23 Jul 2018 00:00:00 -0400 <div> In increasingly globalised markets, there is growing regulatory and consumer pressure on businesses to eliminate the exploitative practices of modern slavery in their operations and global supply chains.</div> <div> &nbsp;</div> <div> <a href="https://www.futureenterprise.com/blog/2018/7/23/the-new-transparency-using-collaboration-and-technology-to-help-address-modern-slavery">Read the full blog post.</a></div> <div> &nbsp;</div> https://www.seyfarth.com:443/news/vusfss072218 Minh Vu quoted in the South Florida Sun-Sentinel https://www.seyfarth.com:443/news/vusfss072218 Sun, 22 Jul 2018 00:00:00 -0400 <p> Minh Vu quoted in a July 22 story from the South Florida Sun-Sentinel, &quot;Most business websites are sitting ducks for ADA suits, experts say.&quot; While physical locations are still tested and sued, a recent increase in federal litigation based on ADA violation claims in Florida and elsewhere has been fueled by website-based challenges, according to Seyfarth&rsquo;s ADA Title III blog. Discussing the landmark Winn-Dixie ruling, Vu said that the trial led to the first evidence-based ruling that a &ldquo;public accommodation&rdquo; violated the ADA by having an inaccessible website. You can read the <a href="http://www.sun-sentinel.com/business/fl-bz-website-accessibility-status-report-20180719-story.html">full article here</a>.</p> https://www.seyfarth.com:443/news/vulaw360072018 Minh Vu quoted in Law360 https://www.seyfarth.com:443/news/vulaw360072018 Fri, 20 Jul 2018 00:00:00 -0400 <p> Minh Vu was quoted in a July 20 story from Law360, &quot;How A Fla. Ruling Ignited A Surge In Online ADA Suits,&quot; on how the Winn-Dixie ruling has had a significant influence on the landscape of cases claiming ADA violations online. Vu said that ADA lawsuits have always presented defendants with the challenge that fighting them tends to cost more than quickly resolving the alleged violation.</p> https://www.seyfarth.com:443/news/boutroslaw360072018 Andrew Boutros quoted in Law360 https://www.seyfarth.com:443/news/boutroslaw360072018 Fri, 20 Jul 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in a July 20 story from Law360, &quot;The Many Defenses Of Paul Manafort,&quot; on finding ambiguity in the documents. Boutros said follow the documents, follow the money. Boutros expected prosecutors to largely let the documents speak for themselves even as Mueller&rsquo;s team puts witnesses on the stand.</p> https://www.seyfarth.com:443/news/maatmanlaw360072018 Gerald Maatman quoted in Law360 https://www.seyfarth.com:443/news/maatmanlaw360072018 Fri, 20 Jul 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 20 story from Law360, &quot;Zero-Tolerance In #MeToo Era May Be Perilous For Employers.&quot; Maatman said that the decision for businesses to inch toward zero-tolerance policies is a nuanced one that depends on multiple factors and that may make sense for some businesses but not others.</p> https://www.seyfarth.com:443/publications/WSE072018 History Comes Back to Bite Employer — Criminal Conviction and $500,000 Fine Upheld in Eighth Circuit for Violating Fall Protection Regulations https://www.seyfarth.com:443/publications/WSE072018 Fri, 20 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A contractor&rsquo;s employee fell 36 feet while working at a warehouse construction site and not using fall-protection equipment. Following a bench trial before the District Court, the Defendant contractor DNRB, Inc. was convicted of a Class B misdemeanor for willfully violating two safety regulations (29 C.F.R. &sect; 1926.760(a)(l) and (b)(l)), and causing the employee&rsquo;s death. The Eighth Circuit upheld the conviction.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/criminal-litigation/history-comes-back-to-bite-employer-criminal-conviction-and-500000-fine-upheld-in-eighth-circuit-for-violating-fall-protection-regulations/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP071918 California Attempts to Clarify Salary History Ban Legislation https://www.seyfarth.com:443/publications/CP071918 Thu, 19 Jul 2018 00:00:00 -0400 <p> We are pleased to cross-post with our sister blog, Pay Equity Microblog, the following important and timely blog post regarding the latest in California pay equity legislation.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/07/19/california-attempts-to-clarify-salary-history-ban-legislation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FE071918 The Swinging Pendulum of the Ideal Office Space https://www.seyfarth.com:443/publications/FE071918 Thu, 19 Jul 2018 00:00:00 -0400 <p> There have been many shifts in workspace environments, all touting new-found achievement in employee productivity and happiness. Previously, the metric used to measure the top offices was the location and the view; but now, employers pressed to find new ways to retain the best talent are placing increased importance on alternative workspaces.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/7/19/the-swinging-pendulum-of-the-ideal-office-space">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT071918 The Week in Weed: July 20, 2018 https://www.seyfarth.com:443/publications/TBT071918 Thu, 19 Jul 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/07/the-week-in-weed-july-20-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT071918a Employer Drug-Testing in Smoklahoma https://www.seyfarth.com:443/publications/TBT071918a Thu, 19 Jul 2018 00:00:00 -0400 <p> As previously reported, Oklahoma&rsquo;s medical marijuana laws dictate that an employer cannot discriminate against a person in hiring or termination, or otherwise penalize a person due to the person&rsquo;s status as a medical marijuana holder or as a result of a positive drug test. So now that Oklahoma has gone green and created such limitations on employers, how will that impact employer drug testing policies?<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/07/employer-drug-testing-in-smoklahoma/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL071918 Recent Decision Clarifies the Legal Framework for EEOC’s Pattern-Or-Practice Lawsuits under Section 706 https://www.seyfarth.com:443/publications/EL071918 Thu, 19 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In recent years, a body of law has developed surrounding pattern or practice lawsuits brought by the EEOC. This has helped to clarify, for example, when the 300-day filing cutoff applies, or whether the claimant is eligible for damages as opposed to just equitable relief. In a recent decision out of the Western District of Oklahoma, yet another court has expanded the breadth of knowledge surrounding EEOC pattern or practice lawsuits, explaining that the continuing violation exception can toll Section 706&rsquo;s timely filing requirement.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/recent-decision-clarifies-the-legal-framework-for-eeocs-pattern-or-practice-lawsuits-under-section-706/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH071918 Fasten Your Seat Belts: California Revisiting Oracle in Airline Cases https://www.seyfarth.com:443/publications/WH071918 Thu, 19 Jul 2018 00:00:00 -0400 <p> Seyfarth Summary: On July 12, 2018, the California Supreme Court agreed to address questions posed by the Ninth Circuit about whether California Labor Code provisions apply to an out-of-state employer whose employees work part of their time in California. Nationwide employers with employees jetting in to work temporarily in California need to return their seats to an upright position and follow this developing story.<br /> <br /> <a href="https://www.wagehourlitigation.com/california-labor-code/fasten-your-seat-belts/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR071818 DOL Rescinds Its Persuader Rule https://www.seyfarth.com:443/publications/LR071818 Wed, 18 Jul 2018 00:00:00 -0400 <p> On July 17, 2018, the DOL rescinded its 2016 &ldquo;persuader rule&rdquo; &mdash; a controversial reinterpretation of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) that would have required employers and their consultants (including lawyers) to report their relationships and the fees paid related to persuading employees &ldquo;to exercise or not to exercise&hellip; the right to organize and bargain collectively&hellip; .&rdquo;<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/07/18/dol-rescinds-its-persuader-rule/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA071718-LE ICE I-9 Audits on the Rise: Act Today to Prevent Issues Tomorrow https://www.seyfarth.com:443/publications/MA071718-LE Tue, 17 Jul 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>Immigration and Customs Enforcement (ICE) increases worksite enforcement by more than 50%. &nbsp;What should employers understand to prevent fines and minimize reputational risk?</em></p> <p> Since the start of fiscal year 2018, ICE has increased worksite enforcement actions by over 50%.&nbsp; Compared with fiscal year 2017, administrative arrests have increased nearly 400% while worksite investigations have risen from 1,716 to 3,510&mdash;with the last quarter of the fiscal year remaining for these numbers to increase.<a href="#_ftn1" name="_ftnref1" title=""><strong>[1]</strong></a>&nbsp; ICE appears to be making good on the remarks made by leadership to increase worksite enforcement &ldquo;four to five times.&rdquo;</p> <p> <strong>By the Numbers</strong></p> <p> ICE Homeland Security Investigations&rsquo; (HSI) numbers speak for themselves: 3,510 worksite investigations, 2,282 I-9 audits, and 594 criminal and 610 administrative worksite-related arrests.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp; For comparison, in fiscal year 2017, HSI opened less than half the number of worksite investigations, almost 1000 less I-9 audits, and far fewer criminal and administrative arrests.<a href="#_ftn3" name="_ftnref3" title="">[3]</a>&nbsp; Even with lower numbers in fiscal year 2017, the cost to companies was still high: $97.6 million in forfeitures, fines, and restitution with a further $7.8 million in civil fines.&nbsp; While the fiscal year 2018 number of enforcement actions may not rise exactly by &ldquo;four to five times,&rdquo; companies should not ignore the possibility of being a target.</p> <p> <strong>Why the Rise?</strong></p> <p> ICE says increased worksite enforcement protects jobs for U.S. citizens and other lawfully employed workers.&nbsp; With the Administration&rsquo;s &ldquo;Buy American, Hire American&rdquo; (BAHA) Executive Order and the White House&rsquo;s focus on immigration, ICE views its actions as fulfilling its obligations under BAHA.&nbsp; Although ICE has not experienced the increased funding some expected (at least, not yet), the Agency has moved resources from other areas to cover the rising expense for worksite investigations.&nbsp; While this ramped up enforcement may appear unsustainable, ICE clearly views it with renewed vigor and as a central pillar of its mission.&nbsp; California, in particular, appears to be bearing the brunt of the initial wave of ICE/HSI&rsquo;s actions with 122 Notices of Inspection (NOIs) issued in the Los Angeles area alone over a five day-period and a further 77 NOIs served throughout Northern California, including San Francisco, San Jose, and Sacramento.</p> <p> <strong>What&rsquo;s an NOI? </strong></p> <p> An NOI initiates a government administrative inspection of a company&rsquo;s Forms I-9. &nbsp;NOIs are considered administrative tools used to assist in criminal investigations.&nbsp; Much like the prior administration, current HSI leadership considers civil administrative audits to be just one of many tools ICE can use to reduce the demand for unauthorized unemployment and protect opportunities for U.S. workers. &nbsp;The current enforcement strategy also includes the expanded use of civil penalties, employer audits, and debarment.</p> <p> <strong>More to Come</strong></p> <p> California isn&rsquo;t alone in experiencing this spike in NOIs.&nbsp; ICE has made its way East and has served NOIs throughout the Midwest and East Coast.&nbsp; NOIs come in all shapes and sizes with targets including companies that conduct business in areas designated as critical infrastructure, including ports of entry and construction projects, as well as food manufacturing, logistics, media, manufacturing, and healthcare.&nbsp; No one is immune.</p> <p> Not only this, but ICE has publicly stated that it plans a summer swell of NOIs with the number of audits exceeding 5,000 by the end of September 2018.&nbsp; In comparison, ICE I-9 audits previously peaked at around 3,100 in 2013.&nbsp; Additionally, the Agency has dusted off a plan from its past, seeking to further develop an initiative to centralize employer audits in one location&mdash;the Employer Compliance Inspection Center, located near ICE&rsquo;s Washington, DC headquarters.&nbsp; Coupled with outside technology being developed to electronically scan documents and review I-9s utilizing artificial intelligence, the Agency hopes to place hundreds of auditors and a team of attorneys at the Center, allowing ICE to routinely audit 10,000 to 15,000 companies annually.</p> <p> The Acting Executive Associate Director for HSI, Derek N. Benner, has said that he views HSI and the audits it undertakes as akin to the work of the IRS: Companies should expect NOIs to become more routine and, in a sense, as another cost of doing business.&nbsp; It comes as no surprise, then, that we are seeing a shift back to companies reprioritizing immigration compliance and considering outside and possibly internal audits (conducted by trained subject-matter experts).</p> <p> Companies should not only prepare for a NOI but also work to prevent noncompliance. &nbsp;Left unsaid by ICE, in this time of heightened immigration scrutiny, the optics of a worksite enforcement action, or being named and shamed by HSI, could cost more than any potential fine.</p> <p> <strong>What Can Employers Do?</strong></p> <p> <strong>1. Internal Assessment, I-9 Audits and Remediation</strong>. &nbsp;The Form I-9 is said to be the most complicated 3-page form in America. &nbsp;Companies should consider an internal I-9 audit under the direction of experienced counsel. &nbsp;Before deciding to take a full audit, however, companies should consider an internal assessment of policies, processes, and a sampling of I-9s.&nbsp; Such an assessment may be more appropriate and cost effective.&nbsp; Then, decide if a full I-9 review or broader cross section is necessary.&nbsp; Perhaps even more important than the audit itself is the remediation of the Forms I-9 after identifying paperwork violations, missing I-9s, expired work authorizations, fraudulent documents, and other issues. &nbsp;Acting on the results is key, and the more serious issues should be addressed as quickly as possible. &nbsp;Being proactive will reduce fines and penalties and also establish a good faith defense in the event of an ICE audit.</p> <p> <strong>2. Review/Establish Policies and Procedures</strong>. &nbsp;Management cannot turn a blind eye to what is happening in the field, and should insist upon compliant practices. &nbsp;Don&rsquo;t Ask, Don&rsquo;t Tell-based immigration policies are something ICE appears to be interested in targeting. &nbsp;Companies should look at pre-hire applications, I-9 retention schedules, photocopying policies, Social Security number-related &ldquo;mismatch&rdquo; issues, reverification, and other processes to ensure compliance with the law and, from an anti-discrimination perspective, consistency.&nbsp;&nbsp;</p> <p> <strong>3. Be Proactive</strong>. &nbsp;Do not ignore government notifications including Affordable Care Act health insurance notices and other unconventional Social Security no-match notifications (such as unemployment claims of employees not working at your company) or potential identity theft issues.&nbsp; Do not ignore existing liability on the books, including individuals whose I-9s indicate that they are unauthorized to work.&nbsp; Consider the use of E-Verify and other government recommended best practices. &nbsp;Review IMAGE best practices(https://www.ice.gov/image) and consider attending an HSI IMAGE training.&nbsp;</p> <p> <strong>4. Train, Train, Train. &nbsp;</strong>While tight policies and procedures can reduce errors, the churn of HR personnel, combined with the new Form I-9 and updated USCIS guidance, make ongoing reinforced training, job aids, and in-house subject matter expertise critical. &nbsp;Aside from imparting technical knowledge, trainings should highlight the importance of the Form I-9 and the need to take the process seriously.&nbsp; Review free government related online resources and organize an accessible library for your I-9 Administrators and keep that space up to date.&nbsp;</p> <p> <strong>5. Prepare for a Government Visit</strong><strong>. &nbsp;</strong>We have written in depth about how a company may prepare for an eventual knock at the door by the government. &nbsp;Regardless of industry or company size, this is an event for which every company should have a plan. &nbsp;Based on recent trends, companies that have had ICE over in the past 5 years should be ready for another visit as follow-up actions for companies dinged in the past are expected.</p> <p> This is the time to pay attention and invest resources&mdash;it is crucial that companies prioritize compliance today to prevent problems tomorrow.&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> <em>See</em> <a href="https://www.ice.gov/news/releases/ice-worksite-enforcement-investigations-already-double-over-last-year">https://www.ice.gov/news/releases/ice-worksite-enforcement-investigations-already-double-over-last-year</a></p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> <em>Id.</em></p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> <em>Id.</em></p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL071718 The Eleventh Circuit Affirmed It Was Not A “Crime” To Not Compensate For Dressing and Drive Time https://www.seyfarth.com:443/publications/EL071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Eleventh Circuit recently affirmed the district court&rsquo;s grant of summary judgment to two Florida counties in an action brought against former sheriff deputies under the Fair Labor Standards Act (FLSA) and Florida Minimum Wage Act (FMWA). The court held that the deputies were not entitled to compensation for the time that they spent donning and doffing police gear at home or the time that they spent driving to and from work in marked patrol vehicles.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/the-eleventh-circuit-affirmed-it-was-not-a-crime-to-not-compensate-for-dressing-and-drive-time/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC071718 Seventh Circuit Allows Review Of Potential Payments Made To Class Members Objecting To Class Settlement https://www.seyfarth.com:443/publications/WC071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In Pearson v. Target Corp., No. 17-2275, 2018 U.S. App. LEXIS 17337 (7th Cir. June 26, 2018), the U.S. Court of Appeals for the Seventh Circuit took aim at self-serving class settlement objectors and ordered the district court to review whether certain objectors received compensation in exchange for withdrawing objections. While not an employment case, the decision has significant implications for employers involved in class action litigation because it should discourage objectors from delaying class settlement approval by bringing meritless objections solely to receive payment in exchange for withdrawing objections.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/07/seventh-circuit-allows-review-of-potential-payments-made-to-class-members-objecting-to-class-settlement/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS071718 Can Attorneys Be Liable For Directing Clients to Breach Non-Competes? One Federal Court Says Maybe https://www.seyfarth.com:443/publications/TS071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> In a classic example of bad facts creating bad law, a federal judge in Kentucky recently denied a motion to dismiss claims brought against attorneys who allegedly counseled employees to breach a non-compete agreement and assisted in setting up a competing business. In Pinnacle Surety Services, Inc. v. Manion Stigger, LLP, the plaintiff sued its former attorneys and their respective law firms, alleging among other things that the attorneys tortiously inferred with a contractual relationship and aided and abetted Pinnacle&rsquo;s former employees&rsquo; breaches of fiduciary duty, by encouraging them to violate their non-compete agreements and helping them set up a competing surety bond company.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/restrictive-covenants/can-attorneys-be-liable-for-directing-clients-to-breach-non-competes-one-federal-court-says-maybe/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA071718 Website Access and Other ADA Title III Lawsuits Hit Record Numbers https://www.seyfarth.com:443/publications/ADA071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: If ADA Title III federal lawsuit numbers continue to be filed at the current pace, 2018&rsquo;s total will exceed 2017 by 30%, fueled largely by website accessibility lawsuit continued growth.<br /> <br /> <a href="https://www.adatitleiii.com/2018/07/website-access-and-other-ada-title-iii-lawsuits-hit-record-numbers/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/varneygabar071718 Seyfarth's Peter Varney Appointed Chair of the State Bar of Georgia's Employee Benefits Law Section https://www.seyfarth.com:443/news/varneygabar071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Peter M. Varney, counsel in the firm&rsquo;s Employee Benefits &amp; Executive Compensation department in Atlanta, was appointed chair of the Employee Benefits Law Section of the State Bar of Georgia for the 2018-2019 association year.</p> <p> The State Bar of Georgia&rsquo;s Employee Benefits Law Section seeks to promote knowledge and understanding of laws regulating employer sponsored benefit plans through continuing legal education opportunities in the field of executive compensation, pensions, health and welfare and ERISA litigation; establish a liaison with the Department of Labor, Internal Revenue Service and employee benefit practitioners; and develop collegiality among practitioners within the employee benefits area of practice. To learn more, <a href="https://www.gabar.org/index.cfm">click here</a>.</p> <p> Varney advises plan sponsors on the design and operation of employee benefit plans, including 401(k) plans, flexible benefit plans, nonqualified deferred compensation plans, and severance plans. He creates and drafts retirement, savings, and welfare plan documents, summary plan descriptions, plan participant communications, and plan administrative forms to ensure compliance with the Internal Revenue Code and ERISA. Varney&rsquo;s practice regularly involves counseling clients on the Patient Protection and Affordable Care Act (Health Care Reform), HIPAA privacy and security rules, wellness programs, self-funded medical plans, and COBRA administration.</p> https://www.seyfarth.com:443/news/paparellibloomberglaw071718 Angelo Paparelli quoted in Bloomberg Law https://www.seyfarth.com:443/news/paparellibloomberglaw071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Angelo Paparelli was quoted in a July 17 story from Bloomberg Law, &quot;Judge Gives Calif. Employers &lsquo;Breathing Room&rsquo; on Immigration,&quot; on how a recent court ruling blocks California law imposing fines on companies for certain compliance with federal immigration enforcement. Paparelli said that California&rsquo;s Immigrant Worker Protection Act (A.B. 450) created a lot of confusion for employers trying to comply with both state and federal authorities.</p> https://www.seyfarth.com:443/news/maatmanbi071718 Gerald Maatman quoted in Business Insurance https://www.seyfarth.com:443/news/maatmanbi071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 17 story from Business Insurance, &quot;High court nominee seen as mostly employer-friendly vote.&quot; Maatman said that when it comes to workplace issues, class action issues, the expansive interpretation of workplace rights, Kavanaugh will be a judge who falls more on the Scalia side of the line than on the Judge Kennedy side of the line and is probably a more reliable vote for business interests than Justice Kennedy might have been in the past. You can read the <a href="https://www.businessinsurance.com/article/20180717/NEWS06/912322692/High-court-nominee-Brett-Kavanaugh-seen-as-mostly-employer-friendly-vote">full article here</a>.</p> https://www.seyfarth.com:443/news/fritzlpt071618 Kevin Fritz quoted in Law Practice Today https://www.seyfarth.com:443/news/fritzlpt071618 Mon, 16 Jul 2018 00:00:00 -0400 <p> Kevin Fritz was quoted in a July 16 panel discussion in Law Practice Today, &quot;In Conversation with Attorneys with Disabilities.&quot; Fritz discussed what it is like to be an attorney with a disability, what hurdles he faces, and the accommodations and strategies he employs to be successful. You can read the <a href="http://www.lawpracticetoday.org/article/attorneys-disabilities/">full conversation here</a>.</p> https://www.seyfarth.com:443/news/paparellilaw360071618 Angelo Paparelli quoted in Law360 https://www.seyfarth.com:443/news/paparellilaw360071618 Mon, 16 Jul 2018 00:00:00 -0400 <p> Angelo Paparelli was quoted in a July 16 story from Law360, &quot;USCIS Memos Signal Sea Change For Business Immigration,&quot; on how two recent U.S. Citizenship and Immigration Services memos may doom foreign professionals seeking to work in the U.S. by allowing immigration officials to deny outright visa petitions they deem frivolous and then immediately place rejected applicants in deportation proceedings. Paparelli said that he anticipates legal challenges to the memos that accuse USCIS of shirking the Administrative Procedure Act&rsquo;s requirements that the agency provide notice and the opportunity for the public to comment on the policy changes.</p> https://www.seyfarth.com:443/publications/WSE071618 OSHA Issues New Publications For Safety Professionals https://www.seyfarth.com:443/publications/WSE071618 Mon, 16 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA recently released new publications directed towards safety professionals and managers. The publications offer guidance on what to look for during worksite safety check walk-arounds. In addition, OSHA suggests that the employer&rsquo;s completed 300 logs may be used by the employer as a guide to improving worksite safety.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/osha-issues-new-publications-for-safety-professionals/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM071318 Seyfarth Shaw Policy Matters Newsletter – July 12, 2018 https://www.seyfarth.com:443/publications/IMM071318 Fri, 13 Jul 2018 00:00:00 -0400 <p> Trump Taps Brett Kavanaugh for Supreme Court Vacancy. On Monday evening, President Trump nominated D.C. Circuit Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court. Judge Kavanaugh is considered a reliable member of the Republican legal establishment with a solid record on issues from free speech, to religious liberty, to the Second Amendment. His credentials include clerking with Justice Anthony Kennedy, working for Kenneth Starr&rsquo;s Whitewater investigation, and spending six years in the George W. Bush White House as a lawyer and eventually staff secretary to the president.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/seyfarth-shaw-policy-matters-newsletter-july-12-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP071318 From the Jails to the Streets, Courthouses and Worksites: California Takes on the Federal Immigration Police https://www.seyfarth.com:443/publications/CP071318 Fri, 13 Jul 2018 00:00:00 -0400 <p> Our readers may be interested in the latest developments concerning California&rsquo;s sanctuary state laws, and their impact on California employers. Read on for a recent posting on our sister blog: BIG Immigration Law Blog.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/07/13/from-the-jails-to-the-streets-courthouses-and-worksites-california-takes-on-the-federal-immigration-police/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS071318 Seven Fast Food Franchisors Agree To Stop Using “No Poach” Agreements Just Days After Announcement of State Attorney General Investigations https://www.seyfarth.com:443/publications/TS071318 Fri, 13 Jul 2018 00:00:00 -0400 <p> We reported yesterday that the attorneys generals of ten states are investigating several fast food franchisors for their use of so-called &ldquo;no poach&rdquo; provisions in their franchise agreements. Well, less than twenty-four hours later, the New York Times has reported that seven fast food franchisors (mostly different ones than those who received the information demands discussed yesterday) entered into agreements with the Washington State Attorney General&rsquo;s Office to remove such clauses from their franchise agreements. According to the New York Times:<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/restrictive-covenants/seven-fast-food-franchisors-agree-to-stop-using-no-poach-agreements-just-days-after-announcement-of-state-attorney-general-investigations/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/gardnersmh071318 Chris Gardner quoted in the Sydney Morning Herald https://www.seyfarth.com:443/news/gardnersmh071318 Fri, 13 Jul 2018 00:00:00 -0400 <p> Chris Gardner was quoted in a July 13 story from the Sydney Morning Herald, &quot;Aldi&#39;s pay plan given the BOOT,&quot; on how a workplace tribunal has doubled down on a ruling that has scared off employers from trying to get workers to trade away their penalty rates and other conditions in exchange for higher hourly pay. The Fair Work Commission&#39;s full bench decision outlined 11 principles of how the BOOT applies to &quot;loaded rates&quot; agreements. Gardner said this was an attempt by the FWC to articulate they key principles in an area of law that was highly fraught. You can read the <a href="https://www.smh.com.au/business/companies/workplace-tribunal-firms-on-penalties-for-rate-trades-20180713-p4zrav.html">full article here</a>.</p> https://www.seyfarth.com:443/news/rodriguezquartz071218 Leon Rodriguez quoted in Quartz https://www.seyfarth.com:443/news/rodriguezquartz071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 12 story from Quartz, &quot;America&rsquo;s broken immigration system is tearing Indian families apart.&quot; Rodriguez said that that the administration is seeking to rescind the H4 EAD rule suggests there is very little spirit of accommodation for the interests of immigrant professional families right now.</p> https://www.seyfarth.com:443/news/rodriguezlaw360071218 Leon Rodriguez quoted in Law360 https://www.seyfarth.com:443/news/rodriguezlaw360071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 12 story from Law360, &quot;4 New Business Immigration Regulations You Should Know.&quot; Rodriguez discussed the rescission of the International Entrepreneur Rule and H-1Bs at third-party work sites.</p> https://www.seyfarth.com:443/publications/TS071218 Mayor of the “People’s Republic of Cambridge” Steps Into The Massachusetts Noncompete Reform Fray https://www.seyfarth.com:443/publications/TS071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Marc McGovern, the mayor of Cambridge, Massachusetts (home to many of the Commonwealth&rsquo;s established and emerging pharmaceutical, biotech, and other life sciences companies), published an op-ed in today&rsquo;s Boston Globe regarding the noncompete reform movement in Massachusetts (about which we have previously reported). Unsurprisingly, given that Cambridge has been referred to as the &ldquo;People&rsquo;s Republic of Cambridge,&rdquo; Mayor McGovern comes out strongly in favor of severe restrictions on the use of employee noncompete agreements, stating, among other things, that &ldquo;noncompetes are unfair to employees.&rdquo; Among other things, Mayor McGovern proposes that noncompete agreements be banned outright, or at least severely limited; and if the latter, that employers be required to pay 100% of the employee&rsquo;s salary during the restricted period (known as &ldquo;garden leave&rdquo; pay). In his words:<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/restrictive-covenants/mayor-of-the-peoples-republic-of-cambridge-steps-into-the-massachusetts-noncompete-reform-fray/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH071218 The Eleventh Circuit Affirmed It Was Not A “Crime” To Not Compensate For Dressing and Drive Time https://www.seyfarth.com:443/publications/WH071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Eleventh Circuit recently affirmed the district court&rsquo;s grant of summary judgment to two Florida counties in an action brought against former sheriff deputies under the Fair Labor Standards Act (FLSA) and Florida Minimum Wage Act (FMWA). The court held that the deputies were not entitled to compensation for the time that they spent donning and doffing police gear at home or the time that they spent driving to and from work in marked patrol vehicles.<br /> <br /> <a href="https://www.wagehourlitigation.com/flsa/eleventh-circuit-affirmed-not-a-crime/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM071218 From the Jails to the Streets, Courthouses and Worksites: California Takes on the Federal Immigration Police https://www.seyfarth.com:443/publications/IMM071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> The familiar lines were drawn. Combatants clashed in a war of words, competing governance philosophies, conflicting laws, and judicial challenges &ndash; all in an age-old constitutional battle of federal power versus states&rsquo; rights.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/from-the-jails-to-the-streets-courthouses-and-worksites-california-takes-on-the-federal-immigration-police-2/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS071218 Outsourcing: why the game has changed https://www.seyfarth.com:443/publications/WLS071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Changes to the Fair Work Act 2009 in 2017 introduced new vulnerable workers laws under which certain corporate group holding companies and franchisor businesses can be held directly liable for breaches by other companies within their broader commercial operations.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/07/outsourcing-why-the-game-has-changed/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT071218 The Week in Weed: July 13, 2018 https://www.seyfarth.com:443/publications/TBT071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/07/the-week-in-weed-july-13-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS071218a State Attorneys General Investigate Fast Food Franchisor “No Poach” Agreements https://www.seyfarth.com:443/publications/TS071218a Thu, 12 Jul 2018 00:00:00 -0400 <p> The Attorneys General of ten states are investigating fast food franchisors for their alleged use of &ldquo;no poach&rdquo; provisions in their franchise agreements, according to a press release by the New Jersey Attorney General&rsquo;s Office, and as reported by NPR. In a July 9, 2018 letter, the Attorneys General for New Jersey, Massachusetts, California, Washington, D.C., Illinois, Maryland, Minnesota, New York, Oregon, Pennsylvania, and Rhode Island requested information from eight fast food companies about their alleged use of such provisions. The letter states that the Attorneys General &ldquo;have learned that certain franchise agreements used in our States and the District of Columbia . . . may contain provisions that impact some employees&rsquo; ability to obtain higher paying or more attractive positions with a different franchisee.&rdquo; In other words, the agreements purportedly prohibit one franchisee of a particular brand from hiring employees of another franchisee of the same brand.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/restrictive-covenants/state-attorneys-general-investigate-fast-food-franchisor-no-poach-agreements/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP071118 California is Hot: Avoiding Workplace Heat Illness https://www.seyfarth.com:443/publications/CP071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: As recent triple-digit temps have shown, California is still one of the hottest places to be&mdash;literally. Today&rsquo;s post reminds all employers, especially with employees who work outdoors or in open-air environments, that OSHA, Cal-OSHA, and the California Labor Code all prescribe protections from the heat.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/07/11/california-is-hot-avoiding-workplace-heat-illness/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE071118 OSHA Releases Two New Temporary Worker Guidance Documents https://www.seyfarth.com:443/publications/WSE071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for a temporary employee&rsquo;s safety and health in two new guidance documents relating to respiratory protection, noise exposure, and hearing conservation. Temporary agencies and host employers that use their services should review this guidance in carrying out their shared responsibility for temporary worker safety.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/investigationsinspections/osha-releases-two-new-temporary-worker-guidance-documents/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ERISA071118 More Trouble For Plan Administrators In Drunk Driving Cases https://www.seyfarth.com:443/publications/ERISA071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> By, James Goodfellow and Amanda Sonneborn<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/07/11/more-trouble-for-plan-administrators-in-drunk-driving-cases/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS071118 The Texas Court of Appeals for the Third District Holds that the Texas Anti-SLAPP Statute Applies to a Conspiracy to Misappropriate Trade Secrets Claim https://www.seyfarth.com:443/publications/TS071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> The Texas Court of Appeals, Third District, issued an opinion in Tejas Vending, LP, et al. v. Tejas Promotions, LLC further delineating the applicability of Texas&rsquo;s anti-SLAPP statute, the Texas Citizens Participation Act (&ldquo;TCPA&rdquo;). The Court emphasized that the TCPA was applicable to a conspiracy to misappropriate trade secrets claim, but found that it did not apply to requests for declaratory relief. This holding serves as a reminder that anti-SLAPP statutes can be a powerful shield in misappropriation of trade secret cases, particularly when such cases involve claims for an alleged conspiracy.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/trade-secrets/the-texas-court-of-appeals-for-the-third-district-holds-that-the-texas-anti-slapp-statute-applies-to-a-conspiracy-to-misappropriate-trade-secrets-claim/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/adacrainsny071118 Seyfarth's ADA Title III data referenced in Crain’s New York Business https://www.seyfarth.com:443/news/adacrainsny071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA Title III data was referenced in a July 11 story from Crain&rsquo;s New York Business, &quot;Letter from Congress could affect local industry around ADA lawsuits,&quot; on how there&#39;s big business at New York&#39;s federal courts in suing companies whose websites are unusable by the blind. According to Seyfarth&#39;s data, 335 ADA website lawsuits, or more than 40% of all cases, were filed last year in New York&#39;s federal courts. You can read the <a href="http://www.crainsnewyork.com/article/20180711/POLITICS/180719980/congress-seeks-to-crack-down-on-ada-lawsuits-popular-in-new-york">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS071018 Robert Milligan Interviewed in Corporate Counsel Business Journal https://www.seyfarth.com:443/publications/TS071018 Tue, 10 Jul 2018 00:00:00 -0400 <p> Seyfarth Shaw Partner and Co-Chair of the Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group Robert Milligan, along with iDiscovery Solutions&rsquo; Jim Vaughn, spoke with Corporate Counsel Business Journal about discovery and digital forensics in the age of the cloud. To learn more about the type of evidence from the cloud and mobile devices can be important during litigation, why cloud computing is so important in discovery and digital forensics, and more, check out &ldquo;How the Cloud and Mobile Devices Have Changed Discovery&rdquo; in the July/August issue of Corporate Counsel Business Journal here.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/trade-secrets/robert-milligan-interviewed-in-corporate-counsel-business-journal/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM071018 The Anatomy of the Travel Ban https://www.seyfarth.com:443/publications/IMM071018 Tue, 10 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis. The Supreme Court affirmed President Trump&rsquo;s authority to ban certain foreign nationals from entering the country, finding that such travel restrictions are justified based on national security concerns.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/the-anatomy-of-the-travel-ban/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA071018-LE The Anatomy of the Travel Ban https://www.seyfarth.com:443/publications/MA071018-LE Tue, 10 Jul 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em>.</strong> <em>The Supreme Court affirmed President Trump&rsquo;s authority to ban certain foreign nationals from entering the country, finding that such travel restrictions are justified based on national security concerns.</em></p> <p> On June 26, a deeply divided Supreme Court issued a 5-4 ruling upholding the latest iteration of the &ldquo;Travel Ban&rdquo; or &ldquo;Travel Ban 3.0.&rdquo; &nbsp;The Court held that the September 2017 order, which created the Ban and targeted individuals from mainly Muslim countries, was a lawful exercise of presidential authority (<em>Trump vs. Hawaii</em>).&nbsp; Employers with employees from Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen will now need to review travel-related risks in order to ensure continuity of business operations. &nbsp;Individuals will also need to be familiar with the specific visa and entry permissions for each country while universities will need to consider foreign student-related issues. &nbsp;</p> <p> <strong>Background</strong></p> <p> We have written previously about <a href="https://www.bigimmigrationlawblog.com/2017/02/immigration-related-faqs-in-response-to-president-trumps-recent-executive-orders-as-of-february-2-2017/">the January 27, 2017 Executive Order</a>, <a href="https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states">(EO 13769)</a>, <a href="https://www.bigimmigrationlawblog.com/2017/03/revised-travel-ban-president-trump-signs-new-executive-order/">the second, March 6, 2017 Executive Order, </a>(<a href="https://www.federalregister.gov/documents/2017/03/09/2017-04837/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states">EO 13780</a>) as well as the third September 24, 2017 Presidential<a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/"> Proclamation</a> 9645, or Travel Ban 3.0, entitled <em>Enhancing Vetting Capabilities and Processes For Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threat</em>s. &nbsp;We followed along as federal judges in Hawaii and Maryland issued orders, blocking major portions of President Trump&rsquo;s September 24, 2017 Presidential Proclamation. &nbsp;We also blogged about the Supreme Court&rsquo;s previous ruling, which had partially enforced the Travel Ban by staying the preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland that had partially blocked Travel Ban 3.0 for those individuals who could demonstrate they had a bona fide relationship with a person or entity in the United States. &nbsp;We then chronicled the Administration as it amended the <a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-maintaining-enhanced-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/">Presidential Proclamation on April 10, 2018,</a> removing restrictions imposed on nationals of Chad, citing the country&rsquo;s improvements to security.</p> <p> For some critics of the President&#39;s policies, the most problematic aspect of the Travel Ban was the anti-Muslim bias that led to allegations of religious-based discrimination. &nbsp;The later iterations of the Travel Ban were &ldquo;watered down,&rdquo; according to the President, and nationals of non&ndash;Muslim majority countries were added to the list of affected nations. &nbsp;The concern that the Travel Ban is actually a Muslim ban is still very much alive. &nbsp;The final 3.0 version had been reviewed and blessed by the Justice Department, Department of Homeland Security and Department of State.&nbsp; Critics argued that the Travel Ban violated the Constitution and federal immigration law, but at the end of the day, the Court found that the travel restrictions were justified by the government&rsquo;s national security concerns.&nbsp;&nbsp;&nbsp;</p> <p> <strong>The Opinion</strong></p> <p> Writing for the majority, Chief Justice John Roberts stated that &ldquo;because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.&rdquo; &nbsp;The opinion also stated &quot;under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review.&quot;&nbsp; The opinion confirmed that the President retains the authority under the Immigration and Nationality Act (INA) to &ldquo;suspend entry of the aliens into the United States.&rdquo; &nbsp;The&nbsp; INA, Justice Roberts wrote, &ldquo;exudes deference&rdquo; to the President providing him &ldquo;broad discretion to suspend&rdquo; the entry of noncitizens into the United States.&nbsp; Justices Anthony Kennedy, Clarence Thomas, Samuel A. Alito Jr. and the Court&rsquo;s newest member, Justice Neil Gorsuch, joined the majority opinion. &nbsp;Justice Kennedy filed a concurring opinion in which he warned the Administration that &ldquo;they must not disregard the Constitution.&rdquo;&nbsp; &ldquo;An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts,&rdquo; cautioned Kennedy.</p> <p> With the plaintiffs suggesting President Trump&rsquo;s anti-Muslim statements illustrated religious animus&mdash;thereby invalidating the Travel Ban under the Establishment Clause of the Constitution&mdash;the Court addressed the relevance of President Trump&rsquo;s anti-Muslim statements.&nbsp; Justice Roberts noted that the Court needed to balance the president&rsquo;s comments with his national security responsibilities, as he was protecting the country and improving vetting procedures.&nbsp; &ldquo;The issue before us is not whether to denounce the statements,&rdquo; Chief Justice Roberts wrote. &nbsp;&ldquo;It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.&rdquo; &nbsp;&ldquo;In doing so,&rdquo; he continued, &ldquo;we must consider not only the statements of a particular president, but also the authority of the presidency itself.&rdquo;&nbsp; While many argued that President Trump&rsquo;s statements crossed a constitutional line, the majority of the Court rejected the argument that the President had overstepped his constitutional authority, finding there had been no religious discrimination.</p> <p> Justice Sonia Sotomayor, in her dissent, argued that the Court had &ldquo;blindly&rdquo; sanctioned &ldquo;a discriminatory policy motivated by animosity toward&rdquo; Muslims.</p> <p> <strong>Who Is and Who Is Not Affected by the Ban?</strong></p> <p> <u>Which countries are affected?</u></p> <p> Due to the Administration&rsquo;s concerns that certain countries remain deficient with &ldquo;respect to their identity-management and information-sharing capabilities, protocols, and practices,&rdquo;<a href="#_ftn1" name="_ftnref1" title="">[1]</a> the Travel Ban affects nationals of seven countries (Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen).&nbsp; The Ban places varying degrees of restrictions on the entry of certain citizens of those countries. &nbsp;The Supreme Court&rsquo;s ruling allowed the Travel Ban to fully go into effect, and be enforced, consistent with its previous order of December 4, 2017.</p> <p> <u>What is the scope of the current Travel Ban?</u></p> <p> The Ban only applies to specifics individuals from the above-mentioned countries who:</p> <ol> <li> Are outside of the U.S.;</li> <li> Do not have a visa that was valid as of the applicable effective date (either September 24, 2017 or October 18, 2017 as elaborated in the Proclamation); <strong>and </strong></li> <li> Do not have a waiver or other travel document.</li> </ol> <p> The Ban impacts individuals who are seeking both temporary nonimmigrant visas and immigrant visas&nbsp; for permanent resident (or green card) status.</p> <p> <strong>It is critical to note that existing visa holders, including H-1Bs, may continue to enter on visas that were previously issued, but these visa holders should expect &ldquo;extreme vetting&rdquo; by Customs and Border Protection (CBP) at entry. &nbsp;</strong>The State Department has stated that no visas will be revoked pursuant to the Travel Ban and noted that consular officers will determine whether an otherwise qualified visa applicant may be eligible for a waiver under the Travel Ban (see discussion below).</p> <p> <strong>The Cheat Sheet</strong></p> <table align="center" border="1" cellpadding="0" cellspacing="0" style="width:100.0%;" width="100%"> <tbody> <tr> <td style="width:12.0%;"> <p style="text-align: center;"> <strong>Country</strong></p> </td> <td style="width:64.0%;"> <p style="text-align: center;"> <strong>Nonimmigrant Visas</strong></p> </td> <td style="width:23.0%;"> <p style="text-align: center;"> <strong>Immigrant and Diversity Visas</strong></p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Iran</p> </td> <td style="width:64.0%;"> <p> No nonimmigrant visas except F, M, and J visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Libya</p> </td> <td style="width:64.0%;"> <p> No B-1, B-2, and B-1/B-2 visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> North Korea</p> </td> <td style="width:64.0%;"> <p> No nonimmigrant visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Somalia</p> </td> <td style="width:64.0%;"> <p> &nbsp;</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Syria</p> </td> <td style="width:64.0%;"> <p> No nonimmigrant visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Venezuela</p> </td> <td style="width:64.0%;"> <p> No B-1, B-2 or B-1/B-2 visas of any kind for officials (and their immediate family members) of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People&rsquo;s Power Ministry of Foreign Affairs.</p> </td> <td> <p> &nbsp;</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Yemen</p> </td> <td style="width:64.0%;"> <p> No B-1, B-2, and B-1/B-2 visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> </tbody> </table> <div style="clear:both;"> &nbsp;</div> <p> <em>* Courtesy of the </em><a href="file://dcbvpxdfil04/L-O$/AMadrak/iManage/NRPortbl/SEY1/AMADRAK/See%20https:/travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html"><em>Department of State</em></a><em>.</em></p> <p> <u>Are there exceptions?</u></p> <p> In addition to exceptions for any national who was in the U.S. and any national who had a visa on the effective date of the Proclamation, (regardless of immigration status), the following are <strong>exempt</strong> from the Travel Ban: permanent residents (or green card holders); dual nationals traveling on a passport from a country that is not affected by the Travel Ban; diplomats; individuals who were paroled into the U.S. on or after the applicable effective date; and, foreign nationals traveling with documents other than visas. &nbsp;Refugees who are already in the U.S., asylees granted asylum by the U.S., and individuals granted withholding, advance parole or protection based on the Convention Against Torture are also not affected by the Court&rsquo;s decision.</p> <p> <u>Are there any waivers?</u></p> <p> The Travel Ban theoretically provides for <strong>waivers</strong>.&nbsp; A waiver is permission to obtain a U.S. visa, even though the Travel Ban renders an individual ineligible to obtain the visa.&nbsp; There are certain exceptions available for people who can:</p> <ol> <li> Demonstrate that they will suffer &ldquo;undue hardship&rdquo; if denied entry;</li> <li> Demonstrate that their entry would not pose a threat to the national security or public safety of the United States; <strong>and</strong>,</li> <li> Demonstrate that their entry would be in the national interest.</li> </ol> <p> Unlike the past decisions, this decision does NOT allow for an exception for &ldquo;Bona Fide&rdquo; relationships, including close family ties, unless the ties are for a refugee-related claim. &nbsp;The Travel Ban states &ldquo;The Secretary of State and the Secretary of Homeland Security shall coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.&rdquo;&nbsp; Unfortunately, there is currently a lack of information and guidance on the logistics of how State Department consular officers or CBP officers have been, or will be making, such waiver determinations. &nbsp;There is also no formal application in which to apply for such waiver.</p> <p> These waivers are clearly discretionary and are granted on a case-by-case basis according to information provided by the State Department.&nbsp; As of June 30, 2018, 898 applicants were cleared for a waiver after a consular office determined that all criteria had been satisfied and all processing had been completed. &nbsp;Immigration advocacy groups have filed a lawsuit to obtain more information about the waiver process. &nbsp;In Justice Stephen Breyer&rsquo;s dissenting opinion, which was joined by Justice Elena Kagan, he described the waiver process as &ldquo;window dressing,&rdquo; noting there was no judicial review contemplated.&nbsp; Only time will tell how transparent, fair and effective the waiver process will be.</p> <p> <strong>What about students?</strong></p> <p> While the Supreme Court decision granted exceptions for student visas issued to nationals of Iran, the road ahead will likely be difficult for these students. &nbsp;This is important due to the high number of Iranian students in the U.S. &nbsp;According to a Washington Post article, &ldquo;17,000 students from the list of banned countries studying in American colleges and universities. More than 12,000 them were Iranian.&rdquo;<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp; Some experts are expecting lengthy visa application wait times and, even after a visa is issued, extreme vetting by CBP at the U.S. border.&nbsp; Others in the education field are hopeful that returning students will be allowed an unfettered return in August. &nbsp;Most agree, however, that it is not unreasonable to expect a decline in enrollment, as students may look elsewhere for school in order to ensure continuity and peace of mind.</p> <p> <strong>What Should Employers and Universities Do Now?</strong></p> <p> The Travel Ban saga is complicated. &nbsp;There is plenty of confusion regarding the government&rsquo;s restrictions on travel to the U.S.&nbsp; It is critical that competent counsel be retained for complex situations such as urgent business needs.&nbsp; In the interim, all parties should educate themselves on the effects of the Travel Ban, including risks of travel, especially for those who are eligible to enter the U.S. as nationals of one of the affected countries. &nbsp;The State Department recently issued an overview discussing the <a href="https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html"><em>June 26 Supreme Court Decision on Presidential Proclamation 9645</em></a><em>.</em>&nbsp; The State Department link includes a FAQ section that attempts to distill down the Ban and answer anticipated questions.</p> <p> At this juncture, the most conservative approach for those with affected nationalities already in the U.S. suggests foregoing travel plans, whether for work or pleasure.&nbsp; For example, applying an abundance of caution, H-1B holders may opt not to leave the U.S. &nbsp;While legally unaffected by the Ban, some permanent residents are also choosing to remain lodged in the U.S.&nbsp; For those who must travel, especially for individuals who will need to renew or apply for a visa, a careful review of the visa history, baseline visa eligibility, as well as something as innocuous as social media account review should be considered.</p> <p> Given the potential of the Travel Ban to affect more than 135 million people worldwide, employers and universities should prepare for the impact by offering access to correct advice&mdash;ensuring everyone is educated about travel-related matters is critical.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> See the Proclamation at <a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/">https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/</a></p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> See the article at <a href="https://www.washingtonpost.com/news/global-opinions/wp/2018/06/26/call-trumps-travel-ban-what-it-is-an-iran-ban/?utm_term=.31329d5dfe4f">https://www.washingtonpost.com/news/global-opinions/wp/2018/06/26/call-trumps-travel-ban-what-it-is-an-iran-ban/?utm_term=.31329d5dfe4f</a></p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL071018 Tenth Circuit Reaffirms That Title VII Does Not Require Employers to Offer an Employee Their “Preferred” Religious Accommodation https://www.seyfarth.com:443/publications/EL071018 Tue, 10 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Title VII requires employers to make &ldquo;reasonable accommodations&rdquo; for an employee&rsquo;s religious practices. But what is &ldquo;reasonable&rdquo; has been the subject of much debate and litigation. The Tenth Circuit&rsquo;s decision in Christmon v. B&amp;B Airparts, Inc., No. 17-3209, 2018 WL 2344628, at *1 (10th Cir. May 24, 2018) is a good reminder that an accommodation may be reasonable &mdash; even if it is not the employee&rsquo;s preference. What matters is that the employee is allowed to engage in his or her religious practice.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/tenth-circuit-reaffirms-that-title-vii-does-not-require-employers-to-offer-an-employee-their-preferred-religious-accommodation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CCD070918 CFPB Commotion Continues: Leandra English Resigns from CFPB Deputy Director Post https://www.seyfarth.com:443/publications/CCD070918 Mon, 09 Jul 2018 00:00:00 -0400 <p> On July 6, 2018, Leandra English, through her attorney via Twitter, announced she would be resigning from the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;). In so doing, Ms. English is also dropping her lawsuit against the CFPB in which she challenged Mick Mulvaney&rsquo;s status as the acting director and claimed that she was the true acting director. Ms. English attributed her resignation decision to President Trump&rsquo;s nomination of Kathy Kraninger, a White House aide, to be the CFPB&rsquo;s director.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/07/cfpb-commotion-continues-leandra-english-resigns-from-cfpb-deputy-director-post/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE070918 USEPA Administrator Pruitt Issues Memo to Update Agency Use of Clean Water Act Section 404(c) Veto Power https://www.seyfarth.com:443/publications/WSE070918 Mon, 09 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Last week before his departure USEPA Administrator Pruitt notified the regulated community that he had directed the Agency to update regulations governing the Agency&rsquo;s use of Section 404(c) veto power in permitting discharges of dredged or fill materials under Section 404 of the Clean Water Act.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/cwa/usepa-administrator-pruitt-issues-memo-to-update-agency-use-of-clean-water-act-section-404c-veto-power/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM070918-LIT CFPB Commotion Continues: Leandra English Resigns from CFPB Deputy Director Post https://www.seyfarth.com:443/publications/OMM070918-LIT Mon, 09 Jul 2018 00:00:00 -0400 <div> On July 6, 2018, Leandra English, through her attorney via <a href="https://twitter.com/deepakguptalaw/status/1015313242942509059">Twitter</a>, announced she would be resigning from the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;). In so doing, Ms. English is also dropping her lawsuit against the CFPB in which she challenged Mick Mulvaney&rsquo;s status as the acting director and claimed that she was the true acting director. Ms. English attributed her resignation decision to President Trump&rsquo;s nomination of Kathy Kraninger, a White House aide, to be the CFPB&rsquo;s director.&nbsp;</div> <div> &nbsp;</div> <div> Ms. English was previously promoted by then-Director Richard Cordray before his departure the day after last November&rsquo;s Thanksgiving holiday. Later, during that holiday weekend, Ms. English filed suit to block President Trump&rsquo;s appointment of Mr. Mulvaney as the CFPB&rsquo;s acting director. In her suit, Ms. English argued that she was the rightful successor to Director Cordray and challenged the President&rsquo;s authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1998 (&ldquo;FVRA&rdquo;). Ms. English pursued the lawsuit even though the U.S. Department of Justice&rsquo;s&nbsp; Office of Legal Counsel had issued a <a href="http://www.seyfarth.com/dir_docs/publications/olcmemocfpb11252017.pdf">memorandum</a> that concluded the president had the authority to appoint a temporary replacement since the statute provided him with the &ldquo;exclusive means&rdquo; to do so unless there was a supervening statute that specified otherwise.&nbsp;</div> <div> &nbsp;</div> <div> The U.S. District Court for the District of Columbia denied relief to Ms. English over Mr. Mulvaney&rsquo;s appointment. She appealed that decision to the D.C. Circuit, which appears poised to reject her claim due, in part, to her lack of standing. If the Senate confirms Ms. Kraninger&rsquo;s nomination, the confirmation will moot Ms. English&rsquo;s lawsuit. Although Ms. English&rsquo;s decision may end that lawsuit, the CFPB faces other challenges, and several courts have found the agency&rsquo;s statutory structure unconstitutional.&nbsp; For additional information, see our prior alerts on this issue <a href="https://www.consumerclassdefense.com/?s=CFPB">here</a>.</div> https://www.seyfarth.com:443/publications/ADA070918 Second Equipment Compliance Deadline for Movie Captioning and Audio Description Rule has Arrived https://www.seyfarth.com:443/publications/ADA070918 Mon, 09 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: June 2, 2018 marked the second compliance deadline for movie theatres with auditoriums showing digital movies to comply with the ADA Title III Movie Captioning and Audio Description Rule.<br /> <br /> <a href="https://www.adatitleiii.com/2018/07/second-equipment-compliance-deadline-for-movie-captioning-and-audio-description-rule-has-arrived/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/GPW070618 California’s Consumer Privacy Act of 2018 – Get Ready for New GDPR Style Requirements in the US https://www.seyfarth.com:443/publications/GPW070618 Fri, 06 Jul 2018 00:00:00 -0400 <p> At the end of June, the California legislature passed its Bill 375, the California Consumer Privacy Act of 2018. The Act contains a number of concepts that would be familiar to those who are working to bring their companies and organizations into compliance with GDPR. The new law defines a category of &ldquo;Personal Information&rdquo; that radically departs from a traditional definition of Personal Data commonly found in various State Data Privacy Laws, which usually ties an individual name to other identifiers like social security number, account number, or other factors. Instead, the California Act defines &ldquo;Personal Information&rdquo; as information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. It does not, mercifully, include publicly available information, but it still comes closer to a GDPR-like definition of &ldquo;personal data&rdquo; than any other US law.<br /> <br /> <a href="https://www.globalprivacywatch.com/2018/07/californias-consumer-privacy-act-of-2018-get-ready-for-new-gdpr-style-requirements-in-the-us/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/seidmanbloomberglaw070618 Joshua Seidman quoted in Bloomberg Law https://www.seyfarth.com:443/news/seidmanbloomberglaw070618 Fri, 06 Jul 2018 00:00:00 -0400 <p> Joshua Seidman was quoted in a July 6 story from Bloomberg Law, &quot;Reconciling State, Local Sick Leave Laws Increasingly Complex.&quot; Seidman said that the differing local laws in a state with a sick leave law can create its own mini-patchwork.</p> https://www.seyfarth.com:443/news/weisswgn070518 Philippe Weiss interviewed on WGN Radio https://www.seyfarth.com:443/news/weisswgn070518 Thu, 05 Jul 2018 00:00:00 -0400 <p> Philippe Weiss was interviewed July 5th on WGN Radio, &quot;The Wintrust Business Lunch 7/5/18: Worst Companies to Work For.&quot; Weiss discussed the Glassdoor list of worst companies to work for and provided some suggestions to help combat the negative work environments. You can listen to the <a href="https://wgnradio.com/2018/07/05/the-wintrust-business-lunch-7-5-18-worst-companies-to-work-for-homes-without-a-c-amazon-prime-day/">full interview here</a>.</p> https://www.seyfarth.com:443/news/moradybi070518 Ilana Morady quoted in Business Insurance https://www.seyfarth.com:443/news/moradybi070518 Thu, 05 Jul 2018 00:00:00 -0400 <p> Ilana Morady was quoted in a July 5 story from Business Insurance, &quot;Renewable energy sector presents unique work site hazards.&quot; Morady said that, even though these are emerging industries, the hazards are hazards that have already existed, so the OSHA standards have been in place. You can read the <a href="https://www.businessinsurance.com/article/20180705/NEWS08/912322458/Renewable-energy-sector-presents-unique-work-site-hazards">full article here</a>.</p> https://www.seyfarth.com:443/publications/OMM070518-LIT FDA Approves First Marijuana-Based Drug to Treat Epilepsy https://www.seyfarth.com:443/publications/OMM070518-LIT Thu, 05 Jul 2018 00:00:00 -0400 <div> On June 25, 2018, the Food and Drug Administration (&ldquo;FDA&rdquo;) approved Epidiolex (cannabidiol), the first marijuana derived drug for use in the United States, to treat two rare forms of epilepsy. This decision for the FDA could have sweeping effects for the marijuana industry. While the FDA has previously approved drugs comprising synthetic (manufactured) cannabinoids, this is the first FDA approved drug comprised of an active ingredient derived from marijuana. Even with FDA approval, further action is required before Epidiolex can enter the market in the United States.</div> <div> &nbsp;</div> <div> Epidiolex will be the first pharmaceutical form of the cannabinoid cannabidiol, or &ldquo;CBD.&rdquo; CBD is a chemical component of the Cannabis sativa plant commonly known as marijuana. Unlike tetrahydrocannabinol or &ldquo;THC&rdquo; (a different and highly discussed cannabinoid found in marijuana), CBD is not known to have psychoactive effects. However, because CBD derived from marijuana is considered part of the marijuana plant, it is currently listed as a Schedule I controlled substance and illegal for all uses in the United States.</div> <div> &nbsp;</div> <div> The Drug Enforcement Administration (&ldquo;DEA&rdquo;) must reclassify CBD in order for Epidiolex to be cleared to enter the market in the United States. This process will likely take months and is currently the topic of much speculation. There are five schedules for controlled substances and each controlled substance is scheduled based on whether there is a current acceptable medical use in the United States, their relative abuse potential, and the likelihood of causing dependence when abused. Schedule I drugs have no accepted medical use. Thus, CBD&rsquo;s classification as such is clearly contrary to the FDA&rsquo;s recent decision. It is unclear how the DEA will reschedule CBD or if it will expand reclassification to include the entire marijuana plant (this latter option is highly unlikely).</div> <div> &nbsp;</div> <div> Once Epidiolex enters the market, it may be prescribed beyond the few FDA approved uses. Epidiolex has been approved for the treatment of two rare and severe forms of epilepsy, Lennox-Gastaut syndrome and Dravet syndrome. Doctors, however, generally have the ability to prescribe drugs for unapproved, or &ldquo;off-label&rdquo; use. The FDA has generally accepted such procedures for various reasons.</div> <div> &nbsp;</div> <div> While Epidiolex&rsquo;s approval is significant, FDA Commissioner Scott Gottlieb made clear in a press release that it is not an approval of marijuana or all of its components. That said, the federal government, through the FDA, has now officially recognized that there are some medical benefits to the marijuana plant, suggesting that there is a path forward leading to the legalization of marijuana at the federal level for healthy, medical-based use of marijuana. Of course, such use has been backed by thorough research, which is essential to any future approvals of similar or new marijuana derived products. In sum, as a result of the FDA&rsquo;s decision, we are likely to see the DEA reclassify CBD, which may pave the way for more developments and subsequent approval of products with CBD.</div> https://www.seyfarth.com:443/publications/MA070518-LE Shifty Business VI: NYC Temporary Schedule Change Law Effective July 18 https://www.seyfarth.com:443/publications/MA070518-LE Thu, 05 Jul 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>Effective July 18, 2018, New York City employers must grant two temporary schedule changes per year to eligible employees for certain qualifying &ldquo;personal events.&rdquo;&nbsp; Unlike other bills which were a part of the NYC Fair Workweek legislation, this law is not limited to retail or fast food employers.&nbsp;</em></p> <p> As previously reported <a href="http://www.seyfarth.com/publications/MA011918-LE">here,</a> a <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2900941&amp;GUID=68DC01AE-C577-4B86-B3E5-B9D98836C1E2&amp;Options=&amp;Search">new law</a> requires NYC employers to grant employees two temporary schedule changes per year, of up to one business day each, for certain personal events.&nbsp; The law takes effect on July 18, 2018, and applies to most employers with NYC employees.</p> <p> Qualifying personal events that entitle employees to leave include:</p> <ul> <li> providing care for a minor child or other individual under the employee&rsquo;s care;</li> <li> attending legal proceedings for subsistence benefits to which the employee, the employee&rsquo;s family member, or the employee&rsquo;s care recipient is a party; and</li> <li> any circumstance that would qualify for use of safe or sick time under the recently-amended Earned Safe and Sick Time Act (&ldquo;ESSTA&rdquo;).&nbsp; (For more information on the recent changes to ESSTA, see our <a href="http://www.seyfarth.com/publications/OMM11917-LE">prior alert</a>.)</li> </ul> <p> The law provides examples of temporary schedule changes to which the employee will be entitled, which include:</p> <ul> <li> using paid time off;</li> <li> working remotely;</li> <li> changing work hours;</li> <li> swapping shifts; or</li> <li> using short-term unpaid leave.</li> </ul> <p> The inclusion of these examples does not necessarily mean that employers are required to grant employees&rsquo; specific requests.&nbsp; Likewise, the law does not limit potential schedule changes to only these enumerated examples.&nbsp; For instance, remote work may not be conducive to certain positions that require the employee to be physically present at the employer&rsquo;s location.&nbsp; In such cases, the employer may offer an alternative approach to the employee&rsquo;s request that is better suited to the employee&rsquo;s position.</p> <p> The law mandates the process by which employees request a schedule change and employers respond:</p> <ol> <li> Employees must provide notice of the need for a change as soon as they are aware of it and propose a specific schedule adjustment, unless they seek unpaid leave.&nbsp; The initial notice need not be written, but the employee must submit a written request within two days after returning to work.&nbsp; The written notice must state (a) the date for which the change was requested; and (b) that it was due to a covered personal event.&nbsp; The request may be submitted electronically if the employer typically uses electronic means to manage leave requests.</li> <li> The employer must immediately respond to a temporary schedule change request.&nbsp; &ldquo;Immediately&rdquo; is not defined under the law.&nbsp; This initial response need not be written, but a written response is required within 14 days of the employee&rsquo;s written request.&nbsp; The written response must state (a) whether the employer agrees to the employee&rsquo;s requested temporary change or will provide leave without pay; (b) if the request is denied, an explanation for the denial; and (c) how many requests and how many business days the employee has left in the calendar year, after taking into account the decision on the employee&rsquo;s current request.&nbsp; If the employee does not submit a written request, the employer does not need to respond in writing.</li> <li> Employers can deny a temporary schedule change request relating to a covered personal event<em> only </em>if the employee has exhausted the two allotted requests in the calendar year or if one of the exclusions listed below applies.</li> <li> Even after employees have exhausted their rights under this law, the employer must still follow the steps set forth above, to the extent applicable.&nbsp; If an employee&rsquo;s requests under the law are exhausted, however, an employer has the option to either grant or deny an employee&rsquo;s request.</li> </ol> <p> Specifically excluded from the law are:</p> <ul> <li> employees covered by a valid collective bargaining agreement, but only if the CBA waives the provisions of the law and addresses temporary changes to work schedules;</li> <li> employees who have been employed fewer than 120 days;</li> <li> employees working fewer than 80 hours in NYC in a calendar year; or</li> <li> individuals performing certain types of work in the theater, film, or TV industry.</li> </ul> <p> &nbsp;&ldquo;Calendar year&rdquo; under the law means a regular and consecutive twelve-month period, as determined by an employer, which is the same definition used under ESSTA.&nbsp; If the employer grants an employee a single request spanning two business days, then it need not grant a second request within that calendar year.&nbsp;</p> <p> The law&rsquo;s requirements are in addition to, and not in lieu of, an employer&rsquo;s obligations under ESSTA.&nbsp; Employees do <em>not</em> need to use or exhaust their available leave under ESSTA before requesting a schedule change, and unpaid leave granted under the law does <em>not</em> count towards the employee&rsquo;s entitlement to leave under ESSTA.&nbsp; In turn, leave granted under ESSTA does not constitute a schedule change under this law.</p> <p> The law includes a non-retaliation provision, which includes protections for employees who request schedule changes <em>other than</em> those that employers must grant under this law.&nbsp; Those requests must still follow the process required by this law.</p> <p> The penalty for violation of the law is a $500 fine and an order directing compliance.&nbsp; However, an employer that fails to provide an employee with the written response required under the law may cure the violation without a penalty by presenting proof that it provided the employee with the required written response within seven days of receiving notice of the opportunity to cure.</p> <p> The NYC Office of Labor Policy &amp; Standards has not yet released guidance to clarify employers&rsquo; obligations under the law.&nbsp; In the meantime, employers should consider implementing a specific policy in light of this law&rsquo;s interplay with ESSTA, which warrants explanation to employees.</p> https://www.seyfarth.com:443/publications/CCD070518 First Circuit Invalidates Arbitration Clause in Mobil App User Agreement https://www.seyfarth.com:443/publications/CCD070518 Thu, 05 Jul 2018 00:00:00 -0400 <p> Executive Summary and Takeaway. User agreements for websites and apps have become increasingly prevalent in recent years, and courts have had to adapt traditional rules of contract interpretation to the new digital frontier. On June 25, 2018, the First Circuit reversed a district court decision enforcing an arbitration clause contained in the terms of service for the defendant&rsquo;s smartphone app, finding that those terms were not sufficiently &ldquo;conspicuous&rdquo; for a user to know that he or she had agreed to be bound by them. The First Circuit&rsquo;s decision continues a trend of judicial hostility to arbitration clauses, and is notable for its scrutiny of the record below: the court studied in minute detail the design and content of the registration screen containing a hyperlink to the terms of service&mdash;including the size, shape, color, font, and location of the hyperlink&mdash;and concluded that the link to the terms of service failed &ldquo;to grab the user&rsquo;s attention.&rdquo; Businesses with similar user agreements governed by Massachusetts law or that could potentially apply to Massachusetts consumers should review their websites and/or apps to ensure that their platforms disclose any terms of use in a clear and conspicuous manner in relation to the rest of the content on the screen.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/07/first-circuit-invalidates-arbitration-clause-in-mobil-app-user-agreement/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/BIO070518 FDA Approves First Marijuana-Based Drug to Treat Epilepsy https://www.seyfarth.com:443/publications/BIO070518 Thu, 05 Jul 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.bioloquitur.com/fda-approves-first-marijuana-based-drug-treat-epilepsy/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT070518 The Week in Weed: July 6, 2018 https://www.seyfarth.com:443/publications/TBT070518 Thu, 05 Jul 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/07/the-week-in-weed-july-6-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT070518a FDA Approves First Marijuana-Based Drug to Treat Epilepsy https://www.seyfarth.com:443/publications/TBT070518a Thu, 05 Jul 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.blunttruthlaw.com/2018/07/fda-approves-first-marijuana-based-drug-to-treat-epilepsy/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CDL070518 California’s Consumer Privacy Act of 2018 – Get Ready for New GDPR Style Requirements in the US https://www.seyfarth.com:443/publications/CDL070518 Thu, 05 Jul 2018 00:00:00 -0400 <p> At the end of June, the California legislature passed its Bill 375, the California Consumer Privacy Act of 2018. The Act contains a number of concepts that would be familiar to those who are working to bring their companies and organizations into compliance with GDPR. The new law defines a category of &ldquo;Personal Information&rdquo; that radically departs from a traditional definition of Personal Data commonly found in various State Data Privacy Laws, which usually ties an individual name to other identifiers like social security number, account number, or other factors. Instead, the California Act defines &ldquo;Personal Information&rdquo; as information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. It does not, mercifully, include publicly available information, but it still comes closer to a GDPR-like definition of &ldquo;personal data&rdquo; than any other US law.<br /> <br /> <a href="https://www.carpedatumlaw.com/2018/07/californias-consumer-privacy-act-2018-get-ready-new-gdpr-style-requirements-us/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL070418 Happy Fourth of July! https://www.seyfarth.com:443/publications/EL070418 Wed, 04 Jul 2018 00:00:00 -0400 <p> The Employment Law Lookout is taking a holiday break this week, but will resume delivering insightful discourse and updates on the day&rsquo;s most pressing workplace issues next week.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/happy-fourth-of-july/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS070318 A 5 step risk management approach – addressing workplace sexual harassment https://www.seyfarth.com:443/publications/WLS070318 Tue, 03 Jul 2018 00:00:00 -0400 <p> Sexual harassment complaints, and the laws that attempt to curb the behaviours, are not new. Despite regulation, sexual harassment is still occurring in workplaces. Why?<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/07/a-5-step-risk-management-approach-addressing-workplace-sexual-harassment/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH070218 Don’t Judge a Conditional Certification Motion By Its Cover https://www.seyfarth.com:443/publications/WH070218 Mon, 02 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A New York federal court once again denied a motion for conditional certification of a nationwide collective action against Barnes &amp; Noble. The ruling highlights that, even though the burden for &ldquo;first stage&rdquo; certification is modest, courts are willing to apply a &ldquo;modest plus&rdquo; approach after discovery relevant to conditional certification has taken place. It also shows the potential positive impact the Supreme Court&rsquo;s recent Encino Motorcars decision may have for employers opposing conditional certification.<br /> <br /> <a href="https://www.wagehourlitigation.com/conditional-certification-defenses/dont-judge-a-conditional-certification-motion-by-its-cover-2/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/maatmanlaw360070218 Gerald Maatman quoted in Law360 https://www.seyfarth.com:443/news/maatmanlaw360070218 Mon, 02 Jul 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 2 story from Law360, &quot;The FLSA Turns 80: How Management Wants The Law Updated,&quot; on making FLSA collectives harder to certify. Maatman said that workers don&rsquo;t need much evidence of common work conditions to win conditional certification, and often this analysis is little more than a rubber stamp.</p> https://www.seyfarth.com:443/publications/milliganccbj070118 Robert Milligan authored an article in the Corporate Counsel Business Journal https://www.seyfarth.com:443/publications/milliganccbj070118 Sun, 01 Jul 2018 00:00:00 -0400 <p> Robert Milligan authored a July 1 article in the Corporate Counsel Business Journal, &quot;How The Cloud And Mobile Devices Have Changed Discovery.&quot; You can read the <a href="http://pubs.royle.com/publication/?i=504681#{&quot;issue_id&quot;:504681,&quot;page&quot;:66}">full article here</a>.</p> https://www.seyfarth.com:443/publications/FE062918 Is Arbitration the Future for ERISA Claims? https://www.seyfarth.com:443/publications/FE062918 Fri, 29 Jun 2018 00:00:00 -0400 <p> In the weeks since the Supreme Court issued its decision in Epic Systems Corp. v Lewis, employers have been considering whether to implement arbitration programs with class waivers makes sense for their workplace. Among the issues employers are weighing is what workplace laws and issues should be subject to mandatory individual arbitration.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/28/is-arbitration-the-future-for-erisa-claims">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE062918 Reminder – Specific Employers are Required to Electronically Submit 2017 Injury and Illness Data by July 1 https://www.seyfarth.com:443/publications/WSE062918 Fri, 29 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA reminded specific employers on Monday that the deadline for electronically submitting their 2017 Form 300A data to OSHA is July 1, 2018.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/reminder-specific-employers-are-required-to-electronically-submit-2017-injury-and-illness-data-by-july-1/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/BIO062918 An Illustrated Guide to the USPTO’s New Memo on Method of Treatment Claims https://www.seyfarth.com:443/publications/BIO062918 Fri, 29 Jun 2018 00:00:00 -0400 <p> The U.S. Patent and Trademark Office (&ldquo;USPTO&rdquo;) has renewed the hopes of applicants looking to patent method of treatment claims. A recent memo from the USPTO (the &ldquo;Memo&rdquo;) provides guidance on method of treatment claims, suggesting that when correctly drafted, such claims should generally be considered patent eligible subject matter.<br /> <br /> <a href="https://www.bioloquitur.com/illustrated-guide-usptos-new-memo-method-treatment-claims/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/062918-LIT First Circuit Invalidates Arbitration Clause in Uber’s User Agreement https://www.seyfarth.com:443/publications/062918-LIT Fri, 29 Jun 2018 00:00:00 -0400 <div> <em><strong>Executive Summary and Takeaway.&nbsp;&nbsp;</strong></em>User agreements for websites and apps have become increasingly prevalent in recent years, and courts have had to adapt traditional rules of contract interpretation to the new digital frontier.&nbsp; On Monday, June 25, 2018, the First Circuit in&nbsp;<em>Cullinane v. Uber Technologies, Inc.</em>&nbsp;reversed a district court decision enforcing an arbitration clause contained in the terms of service for Uber&rsquo;s smartphone app, finding that those terms were not sufficiently &ldquo;conspicuous&rdquo; for a user to know that he or she had agreed to be bound by them.&nbsp; The First Circuit&rsquo;s decision continues a trend of judicial hostility to arbitration clauses, and is notable for its scrutiny of the record below:&nbsp; the court studied in minute detail the design and content of the registration screen containing a hyperlink to the terms of service&mdash;including the size, shape, color, font, and location of the hyperlink&mdash;and concluded that the link to the terms of service failed &ldquo;to grab the user&rsquo;s attention.&rdquo;&nbsp; Companies with similar user agreements governed by Massachusetts law or that could potentially apply to Massachusetts consumers should review their websites and/or apps to ensure that their platforms disclose any terms of use in a clear and conspicuous manner in relation to the rest of the content on the screen.</div> <div> &nbsp;</div> <div> <div> <strong><em>Additional Background.</em></strong>&nbsp; To request a ride via the Uber app, a customer must first register with Uber by creating an account.&nbsp; As part of the registration process, users are shown a screen that requests their payment information and notifies them that by creating an account they are agreeing to Uber&rsquo;s Terms of Service and its Privacy Policy:</div> <div> &nbsp;</div> <div> <img alt="Uber's Terms of Service and Privacy Policy" src="http://www.seyfarth.com/dir_docs/publications/uber.JPG" style="width: 617px; height: 442px;" /></div> <div> &nbsp;</div> <div> The words &ldquo;Terms of Service &amp; Privacy Policy&rdquo; are in a clickable box that includes a hyperlink.&nbsp; Upon clicking on that hyperlink, the user is directed to a screen with two other links:&nbsp; one to Uber&rsquo;s Terms of Service, and the other to its Privacy Policy.&nbsp; The user can view either document by clicking on the appropriate link.</div> <div> &nbsp;</div> <div> At the end of the registration process, the user clicks on the button in the top-right-hand corner of the screen that says &ldquo;DONE.&rdquo;&nbsp; (As shown above, the button is grayed out and unclickable until the user enters her payment information.)&nbsp; Users cannot complete the process without completing each of the registration steps and clicking the &ldquo;DONE&rdquo; button on the final screen.&nbsp; They can, however, complete the process without clicking on the &ldquo;Terms of Service &amp; Privacy Policy&rdquo; box and without having accessed or read the Terms of Service or the Privacy Policy.</div> <div> &nbsp;</div> <div> Uber&rsquo;s Terms of Service state that it &ldquo;constitute[s] a legal agreement between [user] and Uber. . . . In order to use the Service [] and the associated Application [], you must agree to the terms and conditions that are set out below.&rdquo;&nbsp; It also states that, by using any of Uber&rsquo;s services, the user &ldquo;expressly acknowledge[s] and agree[s] to be bound by the terms and conditions of the Agreement.&rdquo;&nbsp; Those terms and conditions include an arbitration provision containing a class action waiver:&nbsp; &ldquo;You acknowledge and agree that you and [Uber] are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding.&rdquo;</div> <div> &nbsp;</div> <div> In 2014, plaintiffs filed a putative class action against Uber in Massachusetts state court on behalf of themselves and other users of Uber&rsquo;s ride-hailing service in the Boston area.&nbsp; Plaintiffs accused Uber of overcharging them for travel to and from Boston Logan Airport and East Boston by imposing fictitious fees hidden in charges for legitimate local tolls.&nbsp; Their Second Amended (and operative) Complaint asserted a claim for unfair and deceptive acts in violation of the Massachusetts consumer protection statute (Mass. Gen. Laws c. 93A), and a common law unjust enrichment claim.&nbsp; Uber removed the case to the U.S. District Court for the District of Massachusetts pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. &sect; 1332(d), and filed a motion to compel arbitration and to stay or dismiss the case, relying on the arbitration clause in the Terms of Service.</div> <div> &nbsp;</div> <div> <strong><em>The District Court Compels Arbitration.</em></strong>&nbsp; On July 8, 2016, the district court granted Uber&rsquo;s motion to compel arbitration and dismissed the action.&nbsp; As the district court summarized, &ldquo;[i]n online adhesion contracts, the analysis under Massachusetts law . . . . as to enforceability boils down to basic contract theory of notice and informed assent with respect to the terms in question.&rdquo;&nbsp; The district court explained that the analysis does not differ depending on the type of online adhesion contract at issue -- whether it is a &ldquo;<em>browsewrap</em>&rdquo; agreement (where &ldquo;the user does not see the contract at all but in which the license terms provide that using a [web]site constitutes agreement to a contract whether the user knows it or not&rdquo;);&nbsp; &ldquo;<em>clickwrap</em>&rdquo; agreement (&ldquo;in which website users are required to click on an &lsquo;I agree&rsquo; box after being presented with a list of terms and conditions of use&rdquo;);&nbsp; &ldquo;<em>scrollwrap</em>&rdquo; agreement (requiring &ldquo;users to physically scroll through an internet agreement and click on a separate &lsquo;I agree&rsquo; button in order to assent to the terms and conditions of the host website&rdquo;); or &ldquo;<em>sign-in-wrap</em>&rdquo; agreement (that presents the user &ldquo;with a button or link to view terms of use,&rdquo; and that &ldquo;usually contain language to the effect that, by registering for an account, or signing into an account, the user agrees to the terms of service to which she could navigate from the sign-in screen&rdquo;).</div> <div> &nbsp;</div> <div> The district court held the Terms of Service, including its arbitration provision, to be enforceable because &ldquo;[t]he process through which the plaintiffs established their accounts put them on reasonable notice that their affirmative act of signing up also bound them to Uber&rsquo;s Agreement.&rdquo;&nbsp; In particular, the district court concluded that the notice on Uber&rsquo;s registration screen that creation of an account bound the user to Uber&rsquo;s Terms of Service was &ldquo;prominent enough to put a reasonable user on notice of the terms of the Agreement.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> The district court also concluded that plaintiffs had manifested their agreement to the Terms of Service because &ldquo;[t]he language surrounding the button leading to the Agreement is unambiguous in alerting the user that creating an account will bind her to the Agreement,&rdquo; and &ldquo;the word &lsquo;Done,&rsquo; although perhaps slightly less precise than &lsquo;I accept,&rsquo; or &lsquo;I agree,&rsquo; makes clear that by clicking the button the user has consummated account registration, the very process that the notification warns users will bind them to the Agreement.&rdquo;</div> <div> &nbsp;</div> <div> <em><strong>The First Circuit Reverses.&nbsp;</strong></em> On appeal, plaintiffs challenged the district court&rsquo;s conclusions that the Terms of Service was reasonably communicated to and accepted by plaintiffs.&nbsp; The court of appeals determined that users were not reasonably notified of the Terms of Service because of how the hyperlink to the terms was displayed on the registration screen.&nbsp; Emphasizing that the conspicuousness of the link &ldquo;may not be read in a vacuum,&rdquo; but &ldquo;must be contextualized,&rdquo; the court scrutinized the appearance and placement of the link in relation to the other buttons and visual elements on the screen:</div> <div> &nbsp;</div> <ul> <li> &ldquo;Uber&rsquo;s &lsquo;Terms of Service &amp; Privacy Policy&rsquo; hyperlink did not have the common appearance of a hyperlink.&nbsp; While not all hyperlinks need to have the same characteristics, they are &lsquo;commonly blue and underlined.&rsquo; . . . Here, the &lsquo;Terms of Service &amp; Privacy Policy&rsquo; hyperlink was presented in a gray rectangular box in white bold text.&nbsp; Though not dispositive, the characteristics of the hyperlink raise concerns as to whether a reasonable user would have been aware that the gray rectangular box was actually a hyperlink.&rdquo;<br /> &nbsp;</li> <li> &ldquo;[T]he overall content of the [registration screen] show[s] that the &lsquo;Terms of Service &amp; Privacy Policy&rsquo; hyperlink was not a conspicuous term . . . .&nbsp; The screen[] contained other terms displayed with similar features.&nbsp; For example, the terms &lsquo;scan your card&rsquo; and &lsquo;enter promo code&rsquo; were also written in bold and with a similarly sized font as the hyperlink. . . . [The screen] also included the words &lsquo;CANCEL&rsquo; and &lsquo;DONE,&rdquo; -- the latter being barely visible until the user had entered the required payment information -- in all capital letters and dark colored font. . . . The inclusion of the additional payment option and the placement of a large blue PayPal button in the middle of the screen were more attention-grabbing and displaced the hyperlink to the bottom of the screen.&rdquo;</li> </ul> <div> <br /> In short, it was the &ldquo;design and content&rdquo; of the screen that led the court of appeals to conclude that the Terms of Service hyperlink &ldquo;was not conspicuous.&rdquo;&nbsp; The court noted that &ldquo;[e]ven though the hyperlink did possess some of the characteristics that make a term conspicuous, the presence of other terms on the same screen with a similar or larger size, typeface, and with more noticeable attributes diminished the hyperlink&rsquo;s capability to grab the user&rsquo;s attention.&nbsp; If everything on the screen is written with conspicuous features, then nothing is conspicuous.&rdquo;</div> <div> &nbsp;</div> <div> Even less conspicuous to the court of appeals was the phrase &ldquo;By creating an Uber account, you agree to the.&rdquo;&nbsp; The court noted that &ldquo;[t]his notice was displayed in a dark gray small-sized non-bolded font against a black background,&rdquo; and as a result, &ldquo;[t]he notice simply did not have any distinguishable feature that would set it apart from all the other terms surrounding it.&rdquo;</div> <div> &nbsp;</div> <div> Because plaintiffs were not reasonably notified of the Terms of Service, it followed that they also did not provide their unambiguous assent to those terms.&nbsp; The court of appeals reversed the district court&rsquo;s order compelling arbitration and dismissing the action, and remanded the case for further proceedings consistent with its opinion.</div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/WLS062818 Modern Slavery Bill 2018: An Action Plan https://www.seyfarth.com:443/publications/WLS062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> At the centre of the Bill is the Modern Slavery Reporting Requirement: a mandatory requirement that entities based, or operating, in Australia, which have an annual consolidated revenue of more than AUD $100 million, report annually on the risks of modern slavery in their local and global operations and supply chains, and take actions to address those risks.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/06/modern-slavery-bill-2018-an-action-plan/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT062818 The Week in Weed: June 29, 2018 https://www.seyfarth.com:443/publications/TBT062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/the-week-in-weed-june-29-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT062818a Oklahoma Creates a Buzz by Legalizing Medical Marijuana https://www.seyfarth.com:443/publications/TBT062818a Thu, 28 Jun 2018 00:00:00 -0400 <p> Going in to this election, the possession and use of medical marijuana was illegal in Oklahoma. However, arguments against cannabis legalization have now gone up in smoke. The Oklahoma voters have spoken by enacting State Question (SQ) 788, which now makes it legal to grow, sell, and use marijuana for medicinal purposes. Under the law, adults with a medical marijuana license would be authorized to, among other things, possess up to three ounces of marijuana on their person, six flowering plants, seventy two ounces of edibles, and one ounce of concentrated marijuana derived from the plant. SQ 788 will go into effect 30 days from June 26, 2018.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/oklahoma-creates-a-buzz-by-legalizing-medical-marijuana/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FE062818 Is AI Above the Curve in Evaluating Employee Performance? https://www.seyfarth.com:443/publications/FE062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Can software and tech tools that use artificial intelligence (AI) improve the performance management process? The research to date suggests that AI may automate some aspects of the performance review cycle, but its ability to provide useful feedback is still limited.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/27/is-ai-above-the-curve-in-evaluating-employee-performance">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE062818 MSHA Issues RFI for Safety Improvement Technologies and Belt Conveyors https://www.seyfarth.com:443/publications/WSE062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: MSHA just announced a Request for Information (RFI) on safety improvement technologies for mobile equipment and for belt conveyors, both at surface mines. 83 Fed. Reg. 29716 (June 26, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/msha-compliance/msha-issues-rfi-for-safety-improvement-technologies-and-belt-conveyors/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL062818 As Predicted…. On July 1, Oregon Will Become The First State With A Predictable Scheduling Law https://www.seyfarth.com:443/publications/EL062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Oregon&rsquo;s new employee scheduling law &ndash; impacting hourly employees at large retail, food service, and hospitality employers &ndash; goes into effect after the end of this week, on July 1. Affected employers must now be aware of the potential consequences in changing employees&rsquo; schedules.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/as-predicted-on-july-1-oregon-will-become-the-first-state-with-a-predictable-scheduling-law/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR062818 Supreme Court Strikes Down Compulsory Public Sector Union Membership – What Will The Impact Be? https://www.seyfarth.com:443/publications/LR062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Public-sector labor unions were dealt a heavy, but not unexpected, blow as the Supreme Court of the United States issued a landmark decision in Janus v. AFSCME. By a vote of 5 to 4, the Court held that fair share fees for public-sector unions are unconstitutional. Whether the actual fallout from the decision will match the level of the pre-decision rhetoric remains to be seen.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/06/28/supreme-court-strikes-down-compulsory-public-sector-union-membership-what-will-the-impact-be/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM062818-LE Governor Signs Massachusetts Paid Family And Medical Leave Law https://www.seyfarth.com:443/publications/OMM062818-LE Thu, 28 Jun 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>:<em> Earlier today, Governor Baker signed into law &ldquo;An Act Relative To Minimum Wage, Paid Family Medical Leave And The Sales Tax Holiday.&rdquo;&nbsp; We <a href="http://www.seyfarth.com/publications/MA062218-LE">previously reported</a> on the details of this bill after the Legislature passed it last week, <a href="http://www.seyfarth.com/publications/MA062218-LE">linked here</a>.</em></p> <p> The so-called &ldquo;grand bargain&rdquo; law will provide Massachusetts employees paid family and medical leave.&nbsp; Massachusetts will have one of the most generous paid family leave programs in the country.&nbsp; Currently, California, New Jersey, New York, and Rhode Island mandate paid family leave.</p> <p> The law also will gradually raise the state minimum wage from the current $11 per hour to $15 per hour by 2023.&nbsp; It would also phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays.</p> <p> As previously reported, the statutory language raises a number of questions that will need to be addressed through the regulatory process.&nbsp; The Governor signed the legislation as is, although it is our understanding that at some point in the future, the Governor will file a corrections bill.&nbsp; Both technical and substantive corrections will likely take place through this corrections bill and the regulatory process.</p> <p> Please join us for a live webinar on Wednesday, July 11 at 1:00 p.m. ET to discuss the Family Medical Leave Law and its impact on Massachusetts employers. <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=uERUc0HllBDRj3ZgTU4_cSMSZYG516jsIXeEWuZqchuWdHJc3njfIMG-YQCVEI1g&amp;RS_REFERRSID=uERUc0HllBDRj3ZgTU4_cXbE1Oz1vP44L1yIBBvBBJ6h4HIhHAgwt50MydfvJItg&amp;RS_ORIGRSID=uERUc0HllBDRj3ZgTU4_cZyLqXy3v823Nmz1CXZHl4OuLK47M2mm2lLs5D2BiPHb">Click here to register</a>.</p> <p> &nbsp;</p> https://www.seyfarth.com:443/news/schwartzfenwick062818 Sam Schwartz-Fenwick quoted in Law.com https://www.seyfarth.com:443/news/schwartzfenwick062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a June 28 story from Law.com, &quot;Labor of Law: With Kennedy&rsquo;s Retirement, LGBT Workplace Protections Face Uncertain Future.&quot; Schwartz-Fenwick said there will be more uncertainty surrounding questions of LGBT protections, but even if Kennedy were still on the court, it wasn&rsquo;t so clear how the justices might interpret Title VII&rsquo;s anti-discrimination protections.</p> https://www.seyfarth.com:443/news/schwartzfenwicknlj062818 Sam Schwartz-Fenwick quoted in the National Law Journal https://www.seyfarth.com:443/news/schwartzfenwicknlj062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a June 28 story from the National Law Journal, &quot;LGBT Workplace Cases Arrive at SCOTUS as Kennedy Punches Out.&quot; Schwartz-Fenwick said it&rsquo;s not a right versus left, conservative versus liberal issue. He continued that it will be about the specific question that is presented.</p> https://www.seyfarth.com:443/publications/OMM062718-LIT An SDNY Dilemma: CFPB Held Unconstitutional Over Director Removal Provision https://www.seyfarth.com:443/publications/OMM062718-LIT Wed, 27 Jun 2018 00:00:00 -0400 <div> On June 21, 2018, in deciding a motion to dismiss a complaint brought the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;)and the State of New York, Judge Loretta Preska of the U.S. District Court for the Southern District of New York held that the CFPB&rsquo;s structure is unconstitutional.&nbsp;</div> <div> &nbsp;</div> <div> Previously the D.C. Circuit, sitting <em>en banc</em> in <em>PHH Corp. v. CFPB</em>, 881 F.3d 75 (D.C. Cir. 2018), had held that Title X of the Dodd-Frank Act, which &ldquo;established the CFPB as an &lsquo;independent bureau&rsquo; within the Federal Reserve System,&rdquo; was validly enacted. Judge Preska disagreed with the panel and adopted the minority view proposed by the dissent in that case. First, she accepted Judge Brett Kavanaugh&rsquo;s conclusion that the CFPB was unconstitutionally structured because it is an &ldquo;independent agency that exercises substantial executive power and is headed by a single Director.&rdquo; Namely, Judge Kavanaugh took issue with the CFPB&rsquo;s unchecked authority vested in a single director, where history, liberty, and presidential authority dictate otherwise.&nbsp;</div> <div> &nbsp;</div> <div> Second, Judge Preska declined to adopt Judge Kavanaugh&rsquo;s proposed remedy to strike the offending &ldquo;for-cause removal provision&rdquo; of the statute and to require the CFPB director be held accountable under the president. She instead subscribed to Judge Karen LeCraft Henderson&rsquo;s suggested remedy to strike Title X entirely because the offending provision was at the &ldquo;heart&rdquo; of Title X and because a &ldquo;severability clause &lsquo;does not give the court power to amend&rsquo; a statute.&rdquo;</div> <div> &nbsp;</div> <div> Third, Judge Preska held that the CFPB&rsquo;s unconstitutional structure could not be cured by agency action. The CFPB had argued that Director Mick Mulvaney&rsquo;s ratification of the enforcement proceeding resolved the constitutional issues because the President may remove Mr. Mulvaney at will. But Judge Preska explained that whether Mr. Mulvaney ratified the CFPB&rsquo;s actions has no bearing on whether the CFPB&rsquo;s structure is constitutional. The Court acknowledged that while Mr. Mulvaney was subject to removal at will, his successor will still be subject to the same problematic &ldquo;for-cause&rdquo; removal provision.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Judge Preska found the CFPB lacked authority to sue the defendants because the agency&rsquo;s &ldquo;composition violates the Constitution&rsquo;s separation of powers.&rdquo; But, although she terminated the CFPB as a party, she held that the claims brought by the State of New York could proceed.&nbsp;</div> <div> &nbsp;</div> <div> Seyfarth Shaw continues to monitor the developments involving the CFPB and will keep its readers apprised of updates.&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/MA062718-LE If Pain, Yes Gain—Part L: Seattle Starts Summer with Amended Sick Time Rules https://www.seyfarth.com:443/publications/MA062718-LE Wed, 27 Jun 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Earlier this month, the Seattle Office of Labor Standards released its final amended paid sick and safe time rules. The amended rules, which go into effect on July 1, 2018, expand on the city&rsquo;s amended Paid Sick and Safe Time Ordinance. The amended rules also largely serve to further align the Seattle paid sick and safe time standards with those under the Washington state Paid Sick Leave Law.</em></p> <p> The 2018 calendar year has seen a wave of paid sick leave activity in the state of Washington. On January 1, the <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington statewide paid sick leave law</a> went into effect, making it the then-seventh state in the country to impose mandatory sick leave obligations on employers.<a href="#_ftn1" name="_ftnref1" title="">[1]</a> That same day also saw Tacoma&rsquo;s amended paid sick leave ordinance become effective, and was the first day after&nbsp;<a href="https://my.spokanecity.org/business/doing-business/earned-sick-and-safe-leave/">Spokane&rsquo;s paid sick leave ordinance sunset</a> (i.e., it is no longer in effect). Then, on January 14, Seattle amended its Paid Sick and Safe Time Ordinance (&ldquo;PSSTO&rdquo;). The amendments in Tacoma and Seattle were largely meant to align the ordinances with the new Washington statewide law, although both ordinances remain more generous than the statewide law in certain respects.</p> <p> The latest example of Washington paid sick leave activity occurred earlier this month in Seattle&mdash;home of one of the nation&rsquo;s first mandatory paid sick leave laws.&nbsp; Specifically, the Seattle Office of Labor Standards has released its final amended paid sick and safe time rules (the &ldquo;Amended Rules&rdquo;), which go into effect on July 1, 2018. The Amended Rules continue Seattle&rsquo;s efforts to better align its sick leave requirements with those of the statewide law. However, as is the case with the PSSTO, the Amended Rules contain at least some differences from the Washington sick leave law.</p> <p> Here are the highlights:</p> <ul> <li> <strong>Eligibility of Occasional Employees:</strong> The amended PSSTO left open the question of what standard employers should use to determine if employees who occasionally work in the city of Seattle are entitled to paid sick and safe time (&ldquo;PSST&rdquo;) benefits. The Amended Rules resolve this uncertainty and confirm that an employee who is &ldquo;typically based outside of the City and performs work in the City on an occasional basis&rdquo; will be covered by the PSSTO after performing more than 240 hours of work in Seattle within a year. The PSSTO states that the 240-hours worked standard only needs to be satisfied once during an individual&rsquo;s employment. Further, once an employee who works in Seattle on an occasional basis is covered under the PSSTO, all previous hours worked in Seattle during that benefit year count toward PSST accrual. <ul> <li> <u>Typically Based Outside of the City</u>: The Amended Rules explain that an employee is considered to be typically based outside of the city if she works outside of the Seattle geographic boundaries for more than 50% of her work hours in a year. For new hires, the same 50% standard applies, except it is measured over the course of the employee&rsquo;s employment.</li> <li> <u>Occasional Basis</u>: The Amended Rules also note that performing work in Seattle on an occasional basis means that an employee does not have a regular work schedule of hours within the geographic boundaries of Seattle.</li> </ul> </li> <li> <strong>Accrual and Use of PSST:</strong> The Amended Rules confirm that Tier 1 and Tier 2 employers under the PSSTO must allow employees to accrue PSST at least as fast as one hour of PSST for every 40 hours worked.<a href="#_ftn2" name="_ftnref2" title="">[2]</a> Similarly, the Amended Rules confirm that Tier 3 employers must allow employees to accrue PSST at least as fast as one hour of PSST for every 30 hours worked.<a href="#_ftn3" name="_ftnref3" title="">[3]</a> As with the Washington state paid sick leave law, neither the PSSTO nor the Amended Rules include language that would cap how much PSST employees can ultimately accrue and use in a single year.<a href="#_ftn4" name="_ftnref4" title="">[4]</a> <ul> <li> <u>No PSST Accrual For Non-Work Hours</u>: The Amended Rules make clear that employers are not required to allow overtime eligible employees to accrue PSST for hours compensated when not working. For example, employers are not required to allow overtime eligible employees to accrue PSST during vacation, paid time off, or while using paid sick and safe time.</li> </ul> </li> <li> <strong>Frontloading:</strong> As with the Washington state sick leave law, the Amended Rules explain that frontloading PSST to employees will be viewed as an advance on accrual. Accordingly, an employer who follows a frontloading approach <em>must</em> meet or exceed the PSSTO requirements on accrual, use and carryover of PSST. If an employer frontloads PSST, the employer must use a reasonable calculation to determine the amount of PSST the employee would have otherwise accrued absent frontloading. If the employer&rsquo;s calculation turns out to be less than what the employee would have accrued, the employer must provide the additional PSST to the employee as soon as practicable and no later than 30 days after identifying the discrepancy.</li> <li> <strong>Increments of Use: </strong>The PSSTO (at least for overtime eligible employees) and Washington sick leave law state that employers must allow employees to use sick leave in increments consistent with the employer&rsquo;s payroll system and practices, not to exceed one hour. Under the Washington state law, employers can receive a variance from the required increments of use if the employer makes a successful showing of &ldquo;good cause,&rdquo; namely that the general increment is infeasible and would cause harm to the involved employees. The Amended Rules explicitly state that no such variance option exists under the PSSTO and that the city will <em>not</em> recognize a variance issued by the state.</li> <li> <strong>Sick Time Payment:</strong> Pursuant to the Amended Rules, an employer must calculate an employee&rsquo;s normal hourly compensation using a reasonable calculation based on the hourly rate that the employee would have earned for the time during which the employee used PSST. The Amended Rules provide examples of reasonable calculations of &ldquo;normal hourly compensation&rdquo; for overtime eligible employees (including those who are paid a salary), overtime exempt employees, and employees whose hourly rate of pay fluctuates. <ul> <li> <u>Written Policy Requirement</u>: Notably, the Amended Rules expand an employer&rsquo;s written sick time policy obligations (see below) by adding sick time payment as a mandatory written policy topic. By <u>September 1, 2018</u>, Seattle employers&rsquo; sick time policies must state that an employee has a right to be paid their normal hourly compensation for using PSST.</li> </ul> </li> <li> <strong>Employee Notice to the Employer:</strong> As with the Washington state paid sick leave law, the Amended Rules confirm that where an employee has an unforeseeable need to use PSST and is unable to provide notice to the employer, a person on the employee&rsquo;s behalf may provide the required notice. Also, like the Washington state law, the Amended Rules note that for PSST absences related to domestic violence, sexual assault, or stalking, employees should follow the notice standards set forth in the state&rsquo;s Domestic Violence Leave Act. Among the many components of the PSSTO&rsquo;s written policy requirement,<a href="#_ftn5" name="_ftnref5" title="">[5]</a> the Amended Rules expressly note that employers must have a written policy outlining any requirements of an employee to provide notice for the use of PSST.</li> <li> <strong>Documentation:</strong> Under the PSSTO, an employer can require an employee to provide reasonable verification that the employee&rsquo;s use of PSST was for an authorized purpose when the employee has been absent for more than three consecutive days. Consistent with the Washington state paid sick leave law, the Amended Rules note that employers cannot require that the employee provide this verification until at least 10 calendar days after the first day the employee uses PSST. Further, as noted above, the Amended Rules confirm that any such verification requirements must be expressly stated in a written policy.</li> <li> <strong>Available Balance Notification:</strong> Both the Washington state sick leave law and the PSSTO mandate that employers provide each employee with written notification stating an updated amount of PSST available to each employee for use as either paid sick time or paid safe time. The updated amount must include (a) accrued PSST since the last notification, (b) reduced PSST since the last notification, and (c) any unused PSST available for use. The Amended Rules further echo the Washington state law by mandating that employers also provide employees with notice of their PSST balance upon rehire (see below) and in situations where an employer frontloads PSST to employees in advance of accrual.</li> <li> <strong>Suspected Abuse of PSST:</strong> Consistent with the Washington state paid sick leave law, under the Amended Rules, if an employer can demonstrate that an employee&rsquo;s use of PSST was for an unauthorized purpose, the employer may withhold payment of PSST for such hours. However, in this situation, the employer may not subsequently deduct those hours from the employee&rsquo;s legitimately accrued, unused PSST hours. If an employer withholds payment when PSST is used for unauthorized purposes, the employer must inform the employee of the withholding.</li> <li> <strong>Separation of Employment, Payout, and Reinstatement of Unused PSST:</strong> The PSSTO expressly states that employers are not required to payout an employee&rsquo;s accrued, unused PSST balance at termination or other separation of employment. In addition, the PSSTO states that when a separated employee is rehired by the employer within 12 months of separation, previously accrued, unused PSST must be immediately reinstated to the employee. The Amended Rules add a caveat to this general reinstatement standard. Specifically, the Amended Rules state that, an employer and employee can mutually agree, in writing, that the employer will reimburse the employee for any portion of their accrued, unused PSST at the time of separation. Assuming this occurs and the unused PSST was paid at the appropriate rate, an employer need not reinstate unused PSST hours if the employee is rehired within one year of separation.</li> </ul> <p> Seattle employers should take steps now to comply with the Amended Rules by their rapidly approaching 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 Amended Rules.</li> <li> Ensure tracking systems can meet the PSSTO and Amended Rules&rsquo; available balance notification standards.</li> <li> Monitor the <a href="http://www.seattle.gov/laborstandards/ordinances/paid-sick-and-safe-time">Seattle PSSTO website</a> for further information on the Amended Rules, including potential updated FAQs.</li> </ul> <p> The paid sick leave landscape has not slowed down in terms of expanded laws and complexity of the laws. &nbsp;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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The existing statewide paid sick leave laws include: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; (9) Rhode Island; and (10) New Jersey. The Maryland paid sick leave law went into effect on February 11, 2018. The Rhode Island paid sick leave law goes into effect on July 1, 2018 and the New Jersey paid sick leave law goes into effect on October 29, 2018.&nbsp;</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> &ldquo;Tier 1 employer&rdquo; means an employer that employs at least one employee and fewer than 50 full-time equivalents, regardless of where those employees are employed, on average per calendar week. &ldquo;Tier 2 employer&rdquo; means an employer that employs at least 50 and fewer than 250 full-time equivalents, regardless of where those employees are employed, on average per calendar week.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> &ldquo;Tier 3 employer&rdquo; means an employer that employs 250 or more full-time equivalents, regardless of where those employees are employed, on average per calendar week</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> FAQ No. E.2 in the PSSTO&rsquo;s <a href="http://www.seattle.gov/Documents/Departments/LaborStandards/PSST%20QA%20%2012_21_17%20final.pdf">December 2017 FAQs</a> states that &ldquo;Employers may not cap the use of PSST. As long as employees have accrued and unused PSST, they may use it without limit.&rdquo;</p> </div> <div id="ftn5"> <p> <a href="#_ftnref5" name="_ftn5" title="">[5]</a> The amended PSSTO states that an employer must provide each employee with a written PSST policy and that the policy must include: (a) the employee&rsquo;s right to PSST; (b) the employer&rsquo;s benefit year; (c) the employer&rsquo;s tier size; (d) the employer&rsquo;s rate of PSST accrual and carry over; (e) authorized purposes under which PSST may be used; (f) the manner of providing employees with notification of available PSST each time wages are paid; (g) the reasonable notice requirements for requesting use of PSST; (h) prohibitions against retaliation for use of PSST; (i) any standards regarding verification for use of PSST for more than three consecutive days, use of frontloaded PSST, a universal paid leave policy, or a shared PSST program where employees can donate time to a co-worker; and (j) other information that is material and necessary to complying with the PSSTO.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/MA062718-LE2 Supreme Court Strikes Down Compulsory Public-Sector Union Membership - What Will The Impact Be? https://www.seyfarth.com:443/publications/MA062718-LE2 Wed, 27 Jun 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp; Public-sector labor unions were dealt a heavy, but not unexpected, blow today as the Supreme Court of the United States issued a landmark decision in Janus v. AFSCME.&nbsp; By a vote of 5 to 4, the Court held that fair share fees for public-sector unions are unconstitutional.&nbsp; &nbsp;Whether the actual fallout from the decision will match the level of the pre-decision rhetoric remains to be seen.&nbsp;&nbsp;</em></div> <div> &nbsp;</div> <div> <em>Janus v. AFSCME</em> was brought by Mark Janus, a child support worker in Illinois who opted not to join the union, the American Federation of State, County and Municipal Employees (&ldquo;AFSCME&rdquo;), that represents Illinois state government employees. The primary issue in the case was the propriety of the $45 &ldquo;agency&rdquo; or &ldquo;fair share&rdquo; fee that was automatically deducted from Janus&rsquo; paycheck on a monthly basis. AFSCME assessed this monthly fee to Janus (and other Illinois government employees who opted out of membership in AFSCME), allegedly for services that nonunion members, like Janus, benefit from, such as negotiating and administering a collective bargaining agreement, and handling grievance procedures.</div> <div> &nbsp;</div> <div> Today&rsquo;s decision overrules the prior position of the Court that a public-sector union may collect agency or fair share fees, which has been the law since the Supreme Court&rsquo;s 1977 <em>Abood v. Detroit Board of Education</em> decision. The <em>Janus v. AFSCME</em> case revisited <em>Abood</em> and examined whether public-sector unions can continue to compel nonunion members to pay agency or fair share fees, or whether they constitute compelled speech and therefore violate First Amendment rights given that the money may also be utilized to support the union&rsquo;s political speech and legislative agenda.</div> <div> <p> <em>Janus v. AFSCME</em> has garnered significant national interest and attention, including the filing of over fifty (50) <em>amici </em>briefs, including many from industry groups and labor unions. The primary legal arguments on the issue were as follows:</p> <p> <strong>Janus</strong>&nbsp;<br /> <br /> Janus argued that the fair share fee constitutes a violation of his First Amendment rights for two primary reasons. First, Janus argued that collectively bargaining with a government employer is akin to lobbying the government. Second, Janus argued that fair share fees are a form of compelled speech and association that deserve strict constitutional scrutiny. Janus further argued that the use of fair share fees for purposes of labor stability and to discourage &ldquo;free riders&rdquo; should be found unconstitutional.&nbsp;</p> <p> <strong>AFSCME</strong>&nbsp;<br /> <br /> AFSCME argued that Janus misconstrues the intent behind the First Amendment, how the Supreme Court has previously applied the First Amendment and the nature and idiosyncrasies of collective bargaining.&nbsp; AFSCME further argued that the Supreme Court has articulated a narrower view of First Amendment rights for public employees, limiting those rights speaking as both a citizen and on matters of public concern. AFSCME highlighted that the Supreme Court has always balanced a public-sector employee&rsquo;s rights in speech with the government&rsquo;s interests, as outlined in <em>Abood</em>. AFSCME also argued that collective bargaining primarily concerns terms and conditions of employment, are non-political in nature and have nothing to do with lobbying. AFSCME contended that if the Supreme Court accepts Janus&rsquo; arguments, it has the potential to deprive the government from making basic personnel decisions, a managerial cornerstone of collective bargaining.</p> <p> The Court held that Illinois&rsquo; extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. The Court concluded that forcing free and independent individuals to endorse ideas they may find objectionable raises serious First Amendment issues, which includes compelling a person to subsidize the speech of other private speakers.&nbsp;&nbsp;</p> <p> In rejecting and overturning <em>Abood</em>, the Court reasoned that exclusive representation of all the employees in a bargaining unit and the extraction of fair share fees is not inextricably linked. The Court reasoned that the risk of free riders (nonmembers that benefit from the union&rsquo;s efforts) is not a compelling state interest sufficient to overcome First Amendment rights. &nbsp;Importantly, the Court held that &ldquo;States and public-sector unions may no longer extract agency fees from nonconsenting employees.&rdquo; Specifically, the Frist Amendment is violated when money is taken from nonconsenting employees for a public-sector union. This means that &ldquo;employees must affirmatively consent before fees can be withheld from their paychecks - the system must be opt-in, not opt-out.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&rdquo;</p> <p> The Court also rejected AFSCME&rsquo;s argument that public employees have no free speech rights as a position that would have required &ldquo;overturning decades of landmark precedent.&rdquo;&nbsp; In determining that <em>Abood</em> must be overruled, the Court primarily considered five factors:&nbsp; &ldquo;the quality of <em>Abood&rsquo;s</em> reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.&rdquo;&nbsp; Each factor favored establishing new precedent.&nbsp;</p> <p> The decision in <em>Janus</em> serves to further explain the current Court&rsquo;s view on the treatment of compelled state speech. In <em>NIFLA</em> v. <em>Beceera</em>, decided the day before <em>Janus,</em> the Court found that the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (&ldquo;FACT ACT&rdquo;) was unconstitutional. The FACT ACT required clinics that serve pregnant women to provide certain notices related to free or low-cost medical services, including abortions. The Court found the FACT ACT to be an unconstitutional content based law that that was not narrowly tailored to serve compelling state interests. In other words, the Court found that the FACT ACT impermissibly mandated speech on a political agenda (i.e. pro-choice), much like the holding in <em>Janus</em> finds that fair share fees used by a union for lobbying impermissibly compels a certain political agenda not narrowly tailored to serve compelling state interests.</p> <p> Practically, the outcome today will necessarily have <u>some</u> impact on the financial statements of unions that are heavily engaged in public sector representation.&nbsp; Surely, there will be employees who do not work in a right-to-work state (an employee in a right-to-work state does not have to pay fair share fees if not a member of the union), and who will resign their membership based solely on the financial implications.&nbsp; This assumes that reclaiming $540 a year in fees that are no longer required will be meaningful to some state workers.&nbsp; The magnitude of the defection could potentially determine the fate of some unions, but whether the predicted landslide of members will occur remains anyone&rsquo;s guess. As noted by the Court, one also must consider the &ldquo;billions of dollars&rdquo; received from non-members in the past 41 years. &nbsp; According to the Bureau of Labor Statistics, 10.7% of U.S. workers were union members in 2017 - down from 20.1%&nbsp; in 1983. &nbsp;Nearly a third of U.S. government employees are members of a public-sector union.</p> <p> Organized labor will most certainly bemoan the potential impacts of this decision, particularly following another recent blow to organized labor: the Supreme Court&rsquo;s decision in <a href="http://www.seyfarth.com/publications/MA052118-LE">Epic Systems</a> holding that the maintenance of individual arbitration agreements containing class-action waivers does not violate the National Labor Relations Act.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> It is essential to highlight that the Court&rsquo;s holding is limited to public-sector unions. It is not unlawful for private-sector unions and employers to negotiate and agree upon agency and fair share fees in collective bargaining agreements, subject to the existence of any right to work laws governing their jurisdiction.</p> </div> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/CP062718 New FEHC Regulations: The Galactic Expanse of National Origin Law in California https://www.seyfarth.com:443/publications/CP062718 Wed, 27 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers, take note&mdash;the long-awaited, new FEHA regulations related to national origin are about to take effect! Come July 1, 2018, new regulations on national origin under California&rsquo;s Fair Employment and Housing Act reflect a broad definition of national origin, codify existing case law, and intensify already strict regulations prohibiting harassment, discrimination, and retaliation based on national origin. The regulations will apply to applicants and employees, irrespective of documentation status. (The prior FEHC regulations on national origin addressed only English-only policies and incorporated defenses generally applicable to other protected bases.)<br /> <br /> <a href="https://www.calpeculiarities.com/2018/06/27/galactic-expansion-of-national-origin-discrimination-regulations/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/BIO062618 Choose Your Weapon: Senate Amendment Pits ANDA/BPCIA Pathway Against Post-Grant Proceedings https://www.seyfarth.com:443/publications/BIO062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> Per Senator Orrin Hatch, the America Invents Act has disrupted the &ldquo;careful balance&rdquo; he struck with Senator Waxman in the development of the decades-old Hatch-Waxman Act governing the adjudication of generic drug litigation. On June 13, 2018, Senator Hatch filed an amendment in the Senate Judiciary Committee to remedy the perceived conflict between the &ldquo;carefully calibrated requirements&rdquo; of Abbreviated New Drug Application (&ldquo;ANDA&rdquo;) litigation under the Hatch-Waxman Act and the &ldquo;much blunter instrument&rdquo; of post-grant proceedings before the United States Patent Trial and Appeal (&ldquo;PTAB&rdquo;). According to Senator Hatch, the amendment &ldquo;will ensure that Hatch-Waxman continues to operate as originally intended by protecting the ability of generic drug companies to develop low-cost drugs while at the same time ensuring brand-name companies have sufficient protections in place to recoup their investments.&rdquo; A press release of Senator Hatch&rsquo;s remarks is available here.<br /> <br /> <a href="https://www.bioloquitur.com/choose-weapon-senate-amendment-pits-anda-bpcia-pathway-post-grant-proceedings/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT062618 Will President Trump Support a Bipartisan Congressional Effort to Protect State Marijuana Laws? https://www.seyfarth.com:443/publications/TBT062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> Amidst a public disagreement between President Trump and Attorney General Jeff Sessions regarding the conflict between federal and state marijuana laws, Sen. Elizabeth Warren (D-MA) and Sen. Cory Gardner (R-CO), announced introduction of a bipartisan bill to protect states with pot-friendly laws against federal prosecution. The bill, introduced on June 7, 2018 and called the &ldquo;Strengthening the Tenth Amendment Through Entrusting States Act&rdquo; or the &ldquo;STATES Act&rdquo; proposes to protect state cannabis industries from the ire of federal drug enforcement authorities. A companion bill also has been introduced in the House. The full text of the Senate bill, S. 3032, is available here, and the corresponding House bill, H.R. 6043, is available here.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/will-president-trump-support-a-bipartisan-congressional-effort-to-protect-state-marijuana-laws/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CCD062618 An SDNY Dilemma: CFPB Held Unconstitutional Over Director Removal Provision https://www.seyfarth.com:443/publications/CCD062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> On June 21, 2018, in deciding a motion to dismiss a complaint brought the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;)and the State of New York, Judge Loretta Preska of the U.S. District Court for the Southern District of New York held that the CFPB&rsquo;s structure is unconstitutional.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/06/an-sdny-dilemma-cfpb-held-unconstitutional-over-director-removal-provision/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL062618 The Board’s General Counsel Memorandum is a Comforting Return to a Common Sense Approach to Workplace Policies https://www.seyfarth.com:443/publications/EL062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On June 6, 2018, Peter. B. Robb, General Counsel for the National Labor Relations Board (&ldquo;Board&rdquo;), provided employers with the first substantive guidance regarding workplace policies since the Board&rsquo;s Boeing decision. General Counsel Memorandum 18-04 is a victory for employers as the Board seems to be returning to a common sense approach when evaluating workplace policies concerning on the job conduct, confidentiality, defamation, intellectual property, among other things.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/the-boards-general-counsel-memorandum-is-a-comforting-return-to-a-common-sense-approach-to-workplace-policies/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA062618-LE If Pain, Yes Gain—Part XLIX: Duluth Diagnosed With Paid Sick Leave; Symptoms Begin 2020 https://www.seyfarth.com:443/publications/MA062618-LE Tue, 26 Jun 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On May 31, 2018, Duluth, MN enacted a mandatory paid sick leave ordinance known as the Earned Sick and Safe Time Ordinance. Duluth joins Minneapolis and St. Paul as the only municipalities in Minnesota to pass such an ordinance. The ESSTO is scheduled to go into effect on January 1, 2020.</em></p> <p> After months of debate and multiple iterations of a potential sick leave mandate, Duluth, MN has officially joined the paid sick leave landscape. On May 31, 2018, Duluth enacted the Earned Sick and Safe Time Ordinance (&ldquo;ESSTO&rdquo;), which will impose paid sick leave obligations on employers beginning on January 1, 2020. Duluth now joins Minneapolis and St. Paul as the third city in Minnesota to enact a paid sick leave ordinance.<a href="#_ftn2" name="_ftnref2" title="">[2]</a> The <a href="http://www.seyfarth.com/publications/MA060716-LE">Minneapolis</a> and <a href="http://www.seyfarth.com/publications/MA091416-LE">St. Paul</a> ordinances both went into effect on July 1, 2017.<a href="#_ftn3" name="_ftnref3" title="">[3]</a></p> <p> Some highlights of the Duluth ESSTO include:</p> <ul> <li> Employers with five or more employees, which is measured by averaging the number of employees per week during the previous calendar year <em>regardless</em> of whether they work in Duluth, must provide paid sick and safe time (&ldquo;PSST&rdquo;) to their Duluth employees.</li> <li> Employees must accrue PSST at least as fast as one hour of earned PSST for every 50 hours worked, up to 64 hours per year. Employers can limit employees&rsquo; use of PSST to 40 hours per year.</li> <li> The ESSTO definition of &ldquo;family member&rdquo; includes individuals whose close association with the employee is the equivalent of a family relationship.</li> <li> While an employer must notify its employees about certain PSST topics, such as their right to PSST, the amount of PSST provided under the ESSTO, how PSST can be used, that retaliation against those who request or use PSST is prohibited, and employees&rsquo; right to file a complaint about alleged ESSTO violations, the ordinance <em>does not </em>clearly identify how or when such notice must be given.</li> </ul> <p> <strong>Which Employers are Covered Under the ESSTO?</strong></p> <p> The ESSTO defines &ldquo;employer&rdquo; as any individual, corporation, partnership, association, nonprofit organization, or group of persons who has five or more employees. An employer&rsquo;s size will be determined by averaging its number of employees per week during the previous calendar year. Importantly, under the ESSTO, these employees do not have to work in Duluth, MN to be counted.&nbsp;</p> <p> &rdquo;Employer&rdquo; does not include the United States government, the state of Minnesota, or any county or local government, except the city of Duluth.</p> <p> <strong>Which Employees are Covered by the ESSTO?</strong></p> <p> The ESSTO defines &ldquo;employee&rdquo; using a primary place of work standard. In particular, an individual will be eligible for PSST if, over a 12-month period, more than 50% of her working time is spent within the geographic boundaries of the city. Alternatively, an individual will be eligible for PSST if her work is based in the city of Duluth, she spends a substantial part of her time working in the city, and she does not spend more than 50% of her time working in any other particular place.</p> <p> &ldquo;Employee&rdquo; contains several exclusions, including independent contractors, student interns, seasonal employees, and any person who is entitled to benefits under or otherwise covered by the federal Railroad Unemployment Insurance Act. The ESSTO&rsquo;s failure to cover seasonal employees is a deviation from general paid sick leave law treatment of these individuals, although certain laws do also carve out seasonal employees.<a href="#_ftn4" name="_ftnref4" title="">[4]</a></p> <p> <strong>How Much Sick Time Can Employees Accrue, Use and Carryover?</strong></p> <p> Eligible employees begin accruing PSST at the start of their employment or on January 1, 2020, whichever is later. Employees must be permitted to accrue PSST at least as fast as one hour of PSST for every 50 hours worked.&nbsp; This accrual rate is significantly slower than the one hour for every 30 hours worked accrual rate under the Minneapolis and St. Paul sick leave ordinances. In fact, the ESSTO&rsquo;s accrual rate is one of the slowest (i.e., most employer-friendly) accrual rates of any sick leave law or ordinance in the country.<a href="#_ftn5" name="_ftnref5" title="">[5]</a></p> <p> Covered employers must allow eligible employees to accrue up to 64 hours of PSST per year. However, in practice, it is unlikely that many employees will reach this accrual threshold if employers enforce the ESSTO&rsquo;s one hour for every 50 hours worked accrual rate. Additionally, while the ESSTO&rsquo;s 64-hour annual PSST accrual cap is greater than the Minneapolis and St. Paul ordinances&rsquo; respective 48-hour annual accrual caps, unlike the Minneapolis and St. Paul ordinances, the ESSTO does not also impose a &ldquo;point-in-time&rdquo; accrual cap on employers.<a href="#_ftn6" name="_ftnref6" title="">[6]</a></p> <p> Under the ESSTO, employers must allow an employee to carry over up to 40 hours of earned but unused PSST from one benefit year to the next. The ESSTO explicitly states that an employer can satisfy certain requirements under the ordinance by frontloading at least 40 hours of PSST to an employee after her first 90 days of employment and at the start of each subsequent year. Unfortunately, it is unclear whether employers that adopt such a frontloading system will be shielded from the ESSTO&rsquo;s year-end carryover requirements.</p> <p> The ESSTO states that employers must allow employees to start using PSST after 90 calendar days of employment.&nbsp; To minimize the cost and impact of PSST, employers can limit employees to using a maximum of 40 PSST hours in a benefit year. This is true regardless of accrual and carryover balances. Employees can use available PSST in increments consistent with company policy or practice, or industry standards, as long as the increments do not exceed four hours.</p> <p> <strong>Under What Circumstances May Employees Use Sick Leave?</strong></p> <p> According to the ESSTO, employees can use their accrued PSST for the following reasons: (a) an employee&rsquo;s own mental or physical illness, injury, or health condition, need for medical diagnosis, care, or treatment, or need for preventive medical care; (b) to care for a covered family member who needs care, diagnosis, or treatment of a mental or physical injury, illness, or health condition, or who needs preventive medical care; or (c) for absences due to sexual assault, domestic abuse, or stalking of the employee or employee&rsquo;s family member.</p> <p> The ESSTO defines family member as an employee&rsquo;s (a) child, adopted child, adult child, foster child, legal ward, or child for whom the employee is a legal guardian, (b) spouse or domestic partner, (c) sibling, stepsibling, or foster sibling, (d) parent, stepparent, or parent-in-law, (e) grandchild, including foster grandchild, (f) grandparent, including step-grandparent, and (g) any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.</p> <p> <strong>Can Employers Use PTO Policies for Compliance with the ESSTO?</strong></p> <p> The ESSTO generally allows employers to use non-sick paid leave policies for compliance with the ordinance. Specifically, if an employer has a non-sick paid leave policy, such as a PTO or vacation policy, that provides employees with an amount of paid leave that may be used for the same purposes and under the same conditions as PSST, the employer <em>does not</em> have to provide additional earned sick and safe time.</p> <p> <strong>Can Employers Require Employees to Provide Medical or Other Documentation?</strong></p> <p> Yes, an employer can require an employee to provide reasonable documentation that PSST was used for a covered reason under the ESSTO. However, employers can <em>only</em> do so when the employee has been absent for more than three consecutive days.</p> <p> <strong>What is the Rate of Pay for Sick Leave?</strong></p> <p> An employer must compensate an employee for used PSST. Compensation must be at the employee&rsquo;s standard hourly rate for hourly employees, or at &ldquo;an equivalent rate&rdquo; for salaried employees.<a href="#_ftn7" name="_ftnref7" title="">[7]</a> Employers do not need to include lost tips or commissions when paying employees for PSST.</p> <p> <strong>What Notice Requirements Must Employees Provide When Using Sick Leave?</strong></p> <p> The ESSTO states that employers must allow employees to use available PSST upon employee request. The request should include the expected duration of the absence, whenever possible. An employer can require an employee to comply with its typical notice and procedural requirements for absences or requesting leave, as long as they do not interfere with the employee&rsquo;s right to use PSST.</p> <p> Although the ESSTO lacks specific notice standards for foreseeable and unforeseeable PSST absences, nothing in the ESSTO prevents an employer from taking reasonable action when an employee uses PSST in bad faith, such as a clear instance of abuse.</p> <p> <strong>Does the ESSTO Impose Notice Requirements on Employers?</strong></p> <p> Yes. However, the ESSTO <em>does not</em> clearly identify how or when notice of certain paid sick leave topics must be given to employees, only what topics must be included in the notice. These topics include employees&rsquo; right to earned PSST, the amount of PSST provided under the ESSTO, how PSST can be used, that there is a prohibition on retaliating against those who request or use their PSST, and employees&rsquo; right to file a complaint about alleged ESSTO violations. Forthcoming administrative guidance hopefully will provide further instruction on this obligation.</p> <p> <strong>What Records Must Employers Maintain?</strong></p> <p> The ESSTO requires employers to retain accurate records of the hours worked by employees, the number of accrued PSST hours, and the amount of PSST taken by employees for a period of at least three years.</p> <p> <strong>Are Employers Required to Payout Unused PSST Upon Termination?</strong></p> <p> No, an employer is not, regardless of the circumstances under which the employee left the employer. &nbsp;Notably, if an employee separates from her employer, but is rehired by that employer within 90 days of separation, any previously unused PSST must be reinstated to the employee.</p> <p> <strong>How Will the ESSTO be Enforced and What Potential Penalties Exist?</strong></p> <p> An employee, or any other person, may report <em>any </em>suspected violation of the ESSTO to the city clerk&rsquo;s office. The ESSTO sets a one-year statute of limitations for filing claims of alleged violations.</p> <p> The city clerk may order appropriate relief for ESSTO violations, including but not limited to: (a) reinstatement and back pay; (b) crediting an employee with the sick time they accrued but were not credited with; (c) payment of any accrued sick time that was unlawfully withheld; and (d) administrative penalties.</p> <p> An employee may bring a civil action to recover any and all damages recoverable by law and may receive injunctive and other equitable relief as determined by the court <em>only</em> after exhausting administrative remedies identified in the ESSTO.</p> <p> <strong>What Should Employers Do Now?</strong></p> <p> Duluth employers should take steps now to ensure that they will be able to achieve full compliance with the ESSTO and any forthcoming regulations by the January 1, 2020 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 ESSTO.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the ESSTO.</li> <li> Develop a new paid sick leave policy that complies with the ESSTO for any employees who are not covered under existing paid sick leave or PTO policies.</li> <li> Monitor the Duluth city website for further information on the ESSTO, including regulations, how to comply with the ESSTO&rsquo;s notice requirement, etc.</li> <li> Review accrual calculation procedures and systems based on the ESSTO&rsquo;s one hour for every 50 hours worked accrual rate.</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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> With special thanks to Amanda Williams for her assistance writing this alert.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Duluth joins a growing list of states and municipalities that impose paid sick leave obligations on employers. The existing statewide paid sick leave laws include: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; (9) Rhode Island; and (10) New Jersey. The Rhode Island paid sick leave law goes into effect on July 1, 2018 and the New Jersey paid sick leave law goes into effect on October 29, 2018.&nbsp; The existing municipal paid sick leave ordinances include: (1) San Francisco, CA; (2) Washington, D.C.; (3) Seattle, WA; (4) Long Beach, CA; (5) SeaTac, WA; (6) New York City, NY; (7) Jersey City, NJ; (8) Newark, NJ; (9) Passaic, NJ; (10) East Orange, NJ; (11) Paterson, NJ; (12) Irvington, NJ; (13) Los Angeles, CA; (14) Oakland, CA; (15) Montclair, NJ; (16) Trenton, NJ; (17) Bloomfield, NJ; (18) Philadelphia, PA; (19) Tacoma, WA; (20) Emeryville, CA; (21) Montgomery County, MD; (22) Pittsburgh, PA; (23) Elizabeth, NJ; (24) New Brunswick, NJ; (25) Santa Monica, CA; (26) Plainfield, NJ; (27) Minneapolis, MN; (28) San Diego, CA; (29) Chicago, IL; (30) St. Paul, MN; (31) Cook County, IL; (32) Berkeley, CA; (33) Morristown, NJ; and (34) Austin, TX. The Austin, TX ordinance becomes effective on October 1, 2018. The 13 municipal ordinances in the state of New Jersey will be preempted as of October 29, 2018 when the New Jersey statewide paid sick leave law goes into effect. Los Angeles, CA has two paid sick leave ordinances, one of which only applies to certain &ldquo;hotel employers.&rdquo;&nbsp; The Long Beach, CA and SeaTac, WA ordinances only apply to hospitality and/or transportation employers. The Pittsburgh, PA ordinance was enacted on August 3, 2015; however, it is not currently in effect due to an ongoing lawsuit challenging the validity of the ordinance under Pennsylvania law.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> For employers with 23 or fewer employees, the St. Paul paid sick leave ordinance went into effect January 1, 2018.</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> For example, the Philadelphia paid sick leave ordinance does not apply to employees who are hired for a term of less than six months. Similarly, the Vermont statewide paid sick leave law does not apply to individuals who are employed by an employer for 20 weeks or fewer in a 12-month period and in a job scheduled to last 20 weeks or fewer.</p> </div> <div id="ftn5"> <p> <a href="#_ftnref5" name="_ftn5" title="">[5]</a> Some examples of paid sick leave laws with even slower minimum accrual rate standards are (a) Vermont - one hour of paid sick leave for every 52 hours worked, and (b) Washington, D.C. - one hour of paid sick leave for every 87 hours worked where the employer has less than 25 employees who work in the city.</p> </div> <div id="ftn6"> <p> <a href="#_ftnref6" name="_ftn6" title="">[6]</a> In addition to setting a 48-hour annual paid sick leave accrual cap, both the Minneapolis and St. Paul paid sick leave ordinances impose an 80-hour &ldquo;point-in-time&rdquo; accrual cap.</p> </div> <div id="ftn7"> <p> <a href="#_ftnref7" name="_ftn7" title="">[7]</a> With respect to salaried employees, the ESSTO does not specify whether &ldquo;an equivalent rate&rdquo; means an equivalent hourly rate or equivalent salary. We are hopeful forthcoming administrative guidance will provide clarification.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/news/skeneafr062618 Henry Skene quoted in the Australian Financial Review https://www.seyfarth.com:443/news/skeneafr062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> Henry Skene was quoted in a June 26 story from the Australian Financial Review, &quot;CFMEU officials could circumvent new deterrent, experts say,&quot; on how The Federal Court ushered in the personal-payment orders in a landmark decision against a unionist after recognising the militant union was paying its officials&#39; penalties for unlawful conduct as the &quot;cost of its approach to industrial relations&quot;. Skene warned such orders could see the CFMEU get &quot;more sophisticated&quot; in paying its officials&#39; fines. You can read the <a href="https://www.afr.com/news/policy/industrial-relations/cfmeu-officials-could-circumvent-new-deterrent-experts-say-20180625-h11uss?&amp;utm_source=twitter&amp;utm_medium=social&amp;utm_campaign=nc&amp;eid=socialn:twi-14omn0055-optim-nnn:nonpaid-27/06/2014-social_traffic-all-organicpost-nnn-afr-o&amp;campaign_code=nocode&amp;promote_channel=social_twitter">full article here</a>.</p> https://www.seyfarth.com:443/publications/wexlerkaplannysba062518 Howard Wexler and AJ Kaplan authored an article in NYSBA Labor and Employment Law Journal https://www.seyfarth.com:443/publications/wexlerkaplannysba062518 Mon, 25 Jun 2018 00:00:00 -0400 <p> Howard Wexler and AJ Kaplan authored an article in the spring issue of NYSBA Labor and Employment Law Journal, &quot;New York Court of Appeals Establishes Lower Threshold for Punitive Damages Under NYCHRL.&quot;</p> https://www.seyfarth.com:443/publications/TS062518 UK Adopts New Trade Secrets Legislation https://www.seyfarth.com:443/publications/TS062518 Mon, 25 Jun 2018 00:00:00 -0400 <p> As a special feature of our blog&mdash;guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Jeremy Morton, Partner at Harbottle &amp; Lewis LLP, London, UK.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/06/articles/international-2/uk-adopts-new-trade-secrets-litigation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM062518 TPS Terminations and the Form I-9 https://www.seyfarth.com:443/publications/IMM062518 Mon, 25 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The US Citizenship and Immigration Services (USCIS) rules concerning auto extensions of employment authorization and Temporary Protected Status (TPS) can be confusing, and it is important employers know how to update Forms I-9 for TPS beneficiaries. We have previously reported on USCIS terminating TPS for El Salvador, Nicaragua, and Haiti while initially deferring a decision for Honduras. Since then, the government terminated TPS for Nepal on 05/22/2018 and for Honduras on 06/05/2018. The decision affects approximately 9,000 Nepalese foreign nationals and approximately 57,000 Honduran foreign nationals.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/06/tps-terminations-and-the-form-i-9/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FE062518 Employer Onsite Clinics: A Trending Solution to Rising Costs and Competition for Talent https://www.seyfarth.com:443/publications/FE062518 Mon, 25 Jun 2018 00:00:00 -0400 <p> While these clinics can provide preventative medicine and help to improve the health of some employees, employers should be aware of the legal risk they take on in providing their employees direct access to medical services.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/25/employer-onsite-clinics-a-trending-solution-to-rising-costs-and-competition-for-talent-1">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/mancinomh062318 Douglas Mancino quoted in Modern Healthcare https://www.seyfarth.com:443/news/mancinomh062318 Sat, 23 Jun 2018 00:00:00 -0400 <p> Douglas Mancino was quoted in a June 23 story from Modern Healthcare, &quot;Not-for-profit health systems working to get around tax on high exec pay.&quot; Mancino said that there&#39;s a lot of techniques that are in use today that will probably be scrutinized if it appears they are being used in an abusive fashion. You can read the <a href="http://www.modernhealthcare.com/article/20180623/NEWS/180629960">full article here</a>.</p> https://www.seyfarth.com:443/publications/WC062218 Gerald Maatman Featured As Guest Commentator On XpertHR’s Podcast Series https://www.seyfarth.com:443/publications/WC062218 Fri, 22 Jun 2018 00:00:00 -0400 <p> On June 21, 2018, XpertHR featured Gerald (Jerry) L. Maatman, Jr. of Seyfarth Shaw LLP as a special guest commentator on its popular podcast series for human resources professionals. In this episode, Jerry provides a comprehensive overview of the Supreme Court&rsquo;s landmark ruling in Lewis v. Epic Systems Corp., and the decision&rsquo;s implications for employers.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/06/gerald-maatman-featured-as-guest-commentator-on-xperthrs-podcast-series/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM062218-RE Does Your Lease Read like a Deed? Supreme Court of Virginia Weighs in on Execution Requirements for Most Leases in The Game Place, L.L.C. v. Fredericksburg 35, LLC https://www.seyfarth.com:443/publications/OMM062218-RE Fri, 22 Jun 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis</strong></em>: <em>The Supreme Court of Virginia issued a unanimous opinion recently holding a 15-year commercial lease unenforceable since it was not executed with the formalities of a deed as required under Virginia law.&nbsp; In overturning the lower court&rsquo;s ruling in <u>The Game Place, L.L.C., et al. v. Fredericksburg 35, LLC</u>, 813 S.E.2d 312 (Va. 2018), the Court held that, due to the fact that the lease was for more than five (5) years and did not contain a seal nor did it comply with any statutory seal substitutes, the lease was unenforceable with respect to the claims that the landlord brought.&nbsp; The Court held that the lease violated the Statute of Conveyances that requires that any lease for a term of more than five (5) years must be accomplished by will or deed and satisfy certain technical requirements.</em><br /> <br /> <strong>Facts of the Case</strong><br /> <br /> The case stemmed from a dispute in which Fredericksburg 35, LLC (&ldquo;<strong>Fredericksburg</strong>&rdquo;), a commercial landlord, sued its tenant, The Game Place, L.LC. (&ldquo;<strong>Game Place</strong>&rdquo;) and its guarantor, after Game Place vacated the premises it was leasing from Fredericksburg prior to the expiration of the 15-year term and terminated what Game Place referred to as its &ldquo;month-to-month periodic tenancy.&rdquo;&nbsp; At the time Game Place terminated, it was current on its rent.&nbsp; Fredericksburg sued Game Place for unpaid rent that accrued after Game Place vacated the premises.&nbsp; Game Place argued that its lease was unenforceable under the Statute of Conveyances (Section 55-2 of the Code of Virginia) because it was not in the form of a deed, containing the common law requirements of a seal or a seal substitute available under Section 11-3 of the Code of Virginia.&nbsp;&nbsp;</div> <p> <br /> <strong>Applicable Law</strong><br /> <br /> Section 55-2 of the Code of Virginia, also known as the Statute of Conveyances, provides in pertinent part &ldquo;[n]o estate of inheritance or freehold or for a term of more than five years in lands shall be conveyed unless by deed or will&hellip;&rdquo;&nbsp;</p> <p> Pursuant to Section 11-3 of the Code of Virginia, there are several seal substitutes that are alternatives to a seal that will make a written instrument a &ldquo;deed&rdquo;: (1) a &ldquo;scroll by way of a seal&rdquo;; (2) an imprint or stamp of a &ldquo;corporate or an official seal&rdquo;; (3) the use in the body of the document of the words &ldquo;this deed&rdquo; or &ldquo;this indenture,&rdquo; or other words importing a sealed instrument or recognizing a seal; and (4) a proper acknowledgement &ldquo;by an officer authorized to take acknowledgments of deeds.&rdquo;&nbsp; &nbsp;<br /> <br /> <strong>Court Ruling</strong><br /> <br /> The lease at hand did not contain a formal seal or seal substitute described by Section 11-3, and, as such was not a &ldquo;deed.&rdquo; Consequently, the Court ruled the lease was unenforceable. The Court further found that while the parties could repudiate the lease at any time, the lease was converted to a periodic tenancy tied to the rental payments, in this case, monthly rental payments.&nbsp; Here, since the tenant had paid all of its monthly rental payments prior to its termination of the lease, the Court held that the tenant did not have any further rental obligations to its landlord after the last month of occupancy of the premises.<br /> <br /> <strong>Background and Analysis</strong><br /> <br /> The lower court had ruled in Fredericksburg&rsquo;s (landlord&rsquo;s) favor stating that the lease had met the requirements of a deed because it was &ldquo;lengthy&rdquo; (the lease was 17 pages long) and could just as easily have been called a &ldquo;deed&rdquo; or &ldquo;indenture&rdquo; reasoning that &ldquo;the law looks at substance not form.&rdquo;&nbsp;&nbsp;</p> <p> The Supreme Court of Virginia wholly disagreed with the lower court&rsquo;s analysis stating, inter alia, &ldquo;[u]nder the common law, a sealed contract means just that, a contract with a seal&rdquo; regardless of the length of the document.&nbsp; Further, even if the lease were titled &ldquo;Deed of Lease&rdquo; or &ldquo;Lease Indenture,&rdquo; this would not work to cure the deficiency as the words &ldquo;this deed&rdquo; or &ldquo;this indenture&rdquo; must appear in the body of the instrument and not merely in the title.&nbsp; The Court noted that the Virginia General Assembly, from time to time, had modified or abolished the seal requirement as it pertained to certain documents and the fact that it had failed to abolish it altogether for deeds governed by the Statute of Conveyances was indicative of its desire that such statute continue to be enforced as written.&nbsp;</p> <p> Fredericksburg argued, as a last ditch effort, that Section 55-51 of the Code of Virginia overruled the common law seal requirement for deeds covered by the Statute of Conveyances.&nbsp; Section 55-51 provides that any deed that &ldquo;shall fail to take effect by virtue of this chapter shall, nevertheless, be as valid and effectual and as binding upon the parties thereto, so far as the rules of law and equity will permit, as if this chapter had not been enacted.&rdquo;&nbsp; However, by its own terms the foregoing statute only applies to deeds that fail &ldquo;by virtue of this chapter.&rdquo;&nbsp; Nowhere in Chapter 4 of Title 55 of the Code of Virginia, where the foregoing section is found, is there a statutory requirement that a deed be under seal.&nbsp; Such requirement is found in the definition of deed in the Statute of Conveyances in Chapter 1 of Title 55 of the Code of Virginia.</p> <p> Despite the ruling that the lease was unenforceable and, as such, could not be enforced in an action for damages, the Court acknowledged that precedent in Virginia (<em>Granva Corp. v. Heyder</em>, 139 S.E.2d 77 (1964)) and in New York, required that once a tenant took possession of premises under a lease (even one that is unenforceable), a lessor-lessee relationship was created and the type of tenancy was dependent upon the manner in which the rent is paid.&nbsp; The Court held that in this case, rent was paid on a monthly basis and therefor the tenant occupied the premises on a month-to-month tenancy.&nbsp; &nbsp;<br /> <br /> <strong>Looking Ahead</strong><br /> <br /> The Court ruling has created concerns amongst landlords leasing space in Virginia, and we expect a concerted effort by the real estate community to seek appropriate relief from the legislature.</p> https://www.seyfarth.com:443/publications/MA062218-LE Massachusetts Legislature Passes Bill Providing $15 Minimum Wage And Paid Family And Medical Leave: What Employers Need To Know https://www.seyfarth.com:443/publications/MA062218-LE Fri, 22 Jun 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong></em> <em>On June 20, 2018, the Massachusetts Legislature overwhelmingly passed a bill providing a number of important provisions impacting employers in the Commonwealth.&nbsp; The so-called &ldquo;grand bargain&rdquo; bill resulted from a compromise among legislators, the business community, labor unions and community groups designed to eliminate three potential November ballot questions on proposals concerning paid leave, the minimum wage, and a reduction in the state sales tax.&nbsp; The bill will now advance to Governor Baker&rsquo;s desk for his consideration by June 30.</em></div> <div> &nbsp;</div> <div> The &ldquo;grand bargain&rdquo; bill would gradually raise the state minimum wage from the current $11 per hour to $15 per hour by 2023.&nbsp; It would also phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays.</div> <div> &nbsp;</div> <div> The bill also provides for paid family and medical leave.&nbsp; While the statutory language raises a number of questions that will need to be addressed through the regulatory process, the principal terms are mostly clear.&nbsp; Over a 3-year phase-in period, the Family And Medical Leave Law would provide Massachusetts workers up to 12 weeks of paid family leave, and up to 20 weeks of paid medical leave for the employee&rsquo;s own serious health condition.&nbsp; After a 7-day waiting period, workers on paid leave would earn 80% of their wages up to 50% of the state average weekly wage, and then 50% of their wages above that amount, up to an $850/week cap (which may be adjusted annually).&nbsp; The benefit will be paid by a state trust fund which will be funded by a payroll tax on employers at an initial contribution rate of 0.63% of the employee&rsquo;s wages.&nbsp; The cost may be shared between employer and employee at varying percentages, based on the type of leave and the size of the company.&nbsp; Unlike the federal FMLA, the state law will apply to all employers of one or more employees working in Massachusetts.&nbsp; Job-protected, paid leave will seemingly be available to eligible new employees without any hours worked or service time requirements.&nbsp; That law also will apply to certain former employees after separation and self-employed workers.&nbsp; The key provisions are unpacked below, subject to regulatory clarification.</div> <h3> Minimum Wage And Premium Pay</h3> <div> If signed, the bill will gradually raise the state minimum wage over 5 years from the current $11 per hour to $15 per hour by 2023, including annual increases to $12, $12.75, $13.50, $14.25, and $15.&nbsp; The bill also will gradually increase the alternative minimum &ldquo;service rate&rdquo; for eligible customarily tipped employees from $3.75 per hour to $6.75 per hour by 2023.</div> <div> The bill will phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays, decreasing annually from 1.5 times to 1.4 to 1.3 to 1.2 to 1.1 and ultimately to straight time.&nbsp; However, retail work on Sundays and certain holidays will still need to be voluntary, and refusal to work shall not be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.</div> <h3> Family And Medical Leave</h3> <div> The Family And Medical Leave Law, Massachusetts General Laws Chapter 175M, would establish a Department of Family and Medical Leave within the Executive Office of Labor and Workforce Development.&nbsp; This new department will be responsible for administering the paid leave program.&nbsp; The law would phase in mandated paid family and medical leave over three years with the following key provisions:</div> <div> &nbsp;</div> <ul> <li> Effective July 1, 2019, employers will be required to post a notice of benefits available under this law in a conspicuous place on each of their premises.&nbsp; The notice must be prepared or approved by the Department.&nbsp; The notice must be in English and any other language which is the primary language of 5 or more employees or self-employed individuals of that workplace (if such notice is available from the Department).<br /> &nbsp;</li> <li> Also effective July 1, 2019, employers must issue to each employee within 30 days after the employee&rsquo;s start date, written information provided or approved by the Department in the employee&rsquo;s primary language explaining the available benefits, the employee&rsquo;s contribution amount and obligations, the employer&rsquo;s contribution amount and obligations, instructions on how to file a claim for family and medical leave benefits, and related information.<br /> &nbsp;</li> <li> Failure to comply with the above notice requirements will result in a civil penalty for a first violation of $50 per employee, and $300 per employee for each subsequent violation.<br /> &nbsp;</li> <li> Beginning July 1, 2019, all Massachusetts employers will contribute to the Family and Employment Security Trust Fund at an initial contribution rate of 0.63% of each employee&rsquo;s wages.&nbsp; For employers with 25 or more employees in Massachusetts, while the employer must remit the full contribution to the Trust Fund, for medical leave, the employer may deduct up to 40% of the contribution from the employee&rsquo;s wages; and for family leave, the employer may deduct up to 100% of the contribution from the employee&rsquo;s wages.&nbsp; (The regulations will need to address how this varied deduction will work.)&nbsp; Smaller employers with less than 25 employees in Massachusetts are not required to pay any portion of the contribution for family and medical leave.&nbsp; The Director of the Department may adjust the contribution rate annually by October 1 for the coming calendar year.<br /> &nbsp;</li> <li> Beginning July 1, 2021 (although the statutory language concerning this date is currently inconsistent and needs to be clarified), workers will be able to take family or medical leave and file claims with the Department for medical or family leave benefits.&nbsp; After an initial 7-calendar day waiting period, employees will be entitled to up to 12 weeks of paid family leave per benefit year, and up to 20 weeks of paid medical leave per benefit year for the employee&rsquo;s own serious health condition.&nbsp; The law sets a maximum aggregate of 26 weeks of paid leave per benefit year.<br /> &nbsp;</li> <li> After the 7-day waiting period (during which employees may use accrued paid sick leave), workers on paid leave may receive wage replacement from the state Trust Fund equal to 80% of their wages up to 50% of the state average weekly wage, and then 50% of their wages above that amount, up to an $850/week cap.&nbsp; The Director may adjust this maximum weekly benefit amount annually by October 1, to be 64% of the state average weekly wage, which shall take effect on January 1 of the year following.<br /> &nbsp;</li> <li> Paid &ldquo;medical leave&rdquo; will be available to any covered individual with a serious health condition.<br /> &nbsp;</li> <li> Paid &ldquo;family leave&rdquo; will be available for the following reasons: (i) to care for a family member with a serious health condition; (ii) to bond with the worker&rsquo;s child during the first 12 months after birth or the first 12 months after the placement of the child for adoption or foster care with the worker; (iii) because of any qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces; or (iv) in order to care for a family member who is a covered servicemember with a serious injury or illness incurred or aggravated in the line of duty (for this particular reason, up to 26 weeks of leave may be taken in a benefit year).<br /> &nbsp;</li> <li> The taking of family or medical leave shall not affect an employee&rsquo;s right to accrue vacation time, sick leave, bonuses, advancement, seniority, length of service credit, or other employment benefits, plans or programs.<br /> &nbsp;</li> <li> During the duration of leave, the employer shall continue to provide for and contribute to the employee&rsquo;s employer-provided health insurance benefits, if any, at the level and under the conditions coverage would have been provided if the employee had continued working continuously for the duration of such leave.<br /> &nbsp;</li> <li> Intermittent leave or reduced schedule leave, paid on a prorated basis, may be taken &ldquo;when medically necessary&rdquo; for a medical leave for the worker&rsquo;s own serious health condition, for a family leave to care for a family member with a serious health condition, or for injured servicemember family leave.&nbsp; Qualifying exigency family leave may also be taken intermittently or on a reduced schedule.&nbsp; However, bonding leave for a new baby may not be taken intermittently or on a reduced schedule unless the employee and the employer agree otherwise.<br /> &nbsp;</li> <li> An employer must restore an employee who has taken family or medical leave to the employee&rsquo;s previous position or to &ldquo;an equivalent position&rdquo; with the same status, pay, employment benefits, length of service credit, and seniority as of the date of leave (except in the event that other employees of equal length of service credit and status in the same or equivalent positions have been laid off due to economic conditions or other changes in operating conditions).<br /> &nbsp;</li> <li> The weekly benefit amount shall be reduced by the amount of wages or wage replacement a worker receives for that period under: any government program or law, including workers&rsquo; compensation (other than for permanent partial disability incurred prior to the leave claim); other state or federal temporary or permanent disability benefits law; or an employer&rsquo;s permanent disability policy or program.&nbsp; The weekly benefit amount shall not be reduced by the amount of wage replacement received while on leave under an employer&rsquo;s temporary disability policy or program, or an employer&rsquo;s paid family or medical leave policy, unless the aggregate amount an employee would receive would exceed the employee&rsquo;s average weekly wage.<br /> &nbsp;</li> <li> The state law adopts many of the same definitions as the federal FMLA, but provides broader coverage in various respects: <ul> <li> According to the current language of the bill, unlike the federal FMLA, all employees will be eligible for paid family or medical leave under the state law, regardless of length of service with the employer or hours worked.</li> <li> Under the Massachusetts law, in addition to the family members included under the federal FMLA, &ldquo;family member&rdquo; also includes a worker&rsquo;s domestic partner, grandchildren, grandparents, and siblings, as well as the parents of a spouse or domestic partner.</li> <li> &ldquo;Serious health condition&rdquo; is defined more broadly under Massachusetts law as an illness, injury, impairment, or physical or mental condition that involves (i) inpatient care in a hospital, hospice, or residential medical facility; or (ii) continuing treatment by a health care provider.<br /> &nbsp;</li> </ul> </li> <li> The law will not obviate an employer&rsquo;s obligation to comply with any company policy, law, or collective bargaining agreement that provides for greater or additional leave rights.<br /> &nbsp;</li> <li> Leave under this law will run concurrently with leave taken under the Massachusetts Parental Leave Law or the federal Family and Medical Leave Act.<br /> &nbsp;</li> <li> Employees must provide employers at least 30 days&rsquo; notice of the anticipated starting date of the leave, the anticipated length of the leave and the expected date of return, or shall provide notice as soon as practicable if the delay is for reasons beyond the employee&rsquo;s control.<br /> &nbsp;</li> <li> Workers must submit a benefits claim to the Department within 90 calendar days after the start of leave, or benefits may be reduced.&nbsp; The Department shall notify applicants of their eligibility or ineligibility for benefits within 14 days of receiving a claim and shall pay benefits not less than 14 days after the eligibility determination.&nbsp; The Department shall notify the employer within 5 business days after a claim has been filed.<br /> &nbsp;</li> <li> All claims must include a certification supporting the leave request, which differs based on the reason for leave.&nbsp; Of note, the certification to care for a family member with a serious health condition must include a statement by the health care provider that the covered worker is needed to care for the family member and an estimate of the amount of time that the covered worker is needed to care for the family member.<br /> &nbsp;</li> <li> Employers may apply to the Department for approval to opt out of the state program if they have a program that offers benefits greater than or equal to what an employee would receive in the state program.<br /> &nbsp;</li> <li> The law prohibits retaliation against employees for exercising their rights under this law, and any negative change in status or adverse employment action during a leave or within six months of the leave will create a rebuttable presumption of retaliation, which the employer can rebut with clear and convincing evidence that such action was not retaliation and was based on an independent justification.<br /> &nbsp;</li> <li> The law provides employees a private right of action with a 3-year statute of limitations for violation of the job restoration, benefits accrual and continuation, and anti-retaliation provisions.&nbsp; A court may award a prevailing employee job reinstatement, benefits reinstatement, injunctive relief, compensation for 3 times any lost wages, benefits and other remuneration and the interest thereon, and reasonable costs and attorneys&rsquo; fees.<br /> &nbsp;</li> <li> Former employees, if they otherwise meet the financial eligibility requirements, could receive paid leave benefits for family or medical leave that starts within 26 weeks after their separation from employment.<br /> &nbsp;</li> <li> Self-employed individuals may elect coverage under certain conditions.<br /> &nbsp;</li> <li> By March 31, 2019, the Department will publish for public comment and hearing proposed regulations and procedures, and such regulations will be promulgated by July 1, 2019.</li> </ul> <div> Questions surrounding many of the Family and Medical Leave Law&rsquo;s terms and implementation issues will likely be the subject of much discussion and debate between now and the March 2019 issuance of proposed regulations.&nbsp; If the bill is signed by the Governor, Massachusetts would have one of the most generous paid family leave programs in the country.&nbsp; Currently, California, New Jersey, New York, and Rhode Island mandate paid family leave.&nbsp; California is the only other state currently with plans for a minimum wage as high as $15, which is to be implemented by 2022.</div> <div> &nbsp;</div> <div> We will keep you informed of upcoming clarifications and developments, including Governor Baker&rsquo;s consideration and the future regulations.</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/OMM062218-EB DOL Fiduciary Rule Officially Dead https://www.seyfarth.com:443/publications/OMM062218-EB Fri, 22 Jun 2018 00:00:00 -0400 <div> For several years now we&rsquo;ve been keeping you updated on the long and winding road of the Department of Labor&rsquo;s (&ldquo;DOL&rdquo;) Fiduciary Rule. See our alert <a href="http://www.seyfarth.com/publications/MA041816-EB">here</a>. The DOL finally issued their long-awaited and controversial Fiduciary Rule in the waning days of the prior administration As the Fiduciary Rule was set to go in effect on April 10, 2017, the new administration delayed it until June 9, 2017, and the companion exemptions (i.e., the Best Interest Contract Exemption and the Principal Contract Exemption) were delayed throughout the remainder of that year. See our alerts <a href="http://www.seyfarth.com/publications/OMM040617-EB">here</a> and <a href="http://www.seyfarth.com/publications/OMM052317-EB">here</a>.&nbsp;</div> <div> &nbsp;</div> <div> <table border="2" cellpadding="10" cellspacing="1" style="width:100%;"> <tbody> <tr> <td> The Fiduciary Rule defined who is a fiduciary under the Employee Retirement Income Security Act of 1974, as amended (&ldquo;ERISA&rdquo;) by reason of providing investment advice for a fee to ERISA plans. Notably, the proposed new fiduciary definition could have resulted in IRA providers and brokers being fiduciaries.&nbsp;</td> </tr> </tbody> </table> <p> &nbsp;</p> <p> While those impacted were actively planning for compliance, the Fiduciary Rule faced numerous court challenges. The critics of the rule eventually found a sympathetic court in the Fifth Circuit, where a divided panel issued a decision vacating the rule this past March. See our alert <a href="http://www.seyfarth.com/publications/OMM032318-EB">here</a>. After the existing administration indicated that it would not challenge the court&rsquo;s decision, several interested parties, including the AARP and various state attorneys general, unsuccessfully tried to intervene to save the Fiduciary Rule. The DOL then announced that it would not enforce the Fiduciary Rule in anticipation of the Fifth Circuit&rsquo;s final determination. See our alert <a href="http://www.seyfarth.com/publications/OMM050818-EB">here</a>.</p> </div> <div> &nbsp;</div> <div> That final death knell came on Thursday, June 21, 2018, when the Fifth Circuit issued a mandate officially vacating the rule three months after its original invalidation. Although the Fiduciary Rule is no longer applicable, the Securities and Exchange Commission (&ldquo;SEC&rdquo;) has proposed new rules for investment advisors and brokers, as we mentioned in our <a href="http://www.seyfarth.com/publications/OMM050818-EB">May 8th alert</a>.&nbsp;&nbsp;</div> https://www.seyfarth.com:443/publications/RD062218-LE Massachusetts Legislature Passes Bill Providing $15 Minimum Wage And Paid Family And Medical Leave: What Employers Need To Know https://www.seyfarth.com:443/publications/RD062218-LE Fri, 22 Jun 2018 00:00:00 -0400 <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;<em>On June 20, 2018, the Massachusetts Legislature overwhelmingly passed a bill providing a number of important provisions impacting employers in the Commonwealth.&nbsp; The so-called &ldquo;grand bargain&rdquo; bill resulted from a compromise among legislators, the business community, labor unions and community groups designed to eliminate three potential November ballot questions on proposals concerning paid leave, the minimum wage, and a reduction in the state sales tax.&nbsp; The bill will now advance to Governor Baker&rsquo;s desk for his consideration by June 30.</em></div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The &ldquo;grand bargain&rdquo; bill would gradually raise the state minimum wage from the current $11 per hour to $15 per hour by 2023.&nbsp; It would also phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The bill also provides for paid family and medical leave.&nbsp; While the statutory language raises a number of questions that will need to be addressed through the regulatory process, the principal terms are mostly clear.&nbsp; Over a 3-year phase-in period, the Family And Medical Leave Law would provide Massachusetts workers up to 12 weeks of paid family leave, and up to 20 weeks of paid medical leave for the employee&rsquo;s own serious health condition.&nbsp; After a 7-day waiting period, workers on paid leave would earn 80% of their wages up to 50% of the state average weekly wage, and then 50% of their wages above that amount, up to an $850/week cap (which may be adjusted annually).&nbsp; The benefit will be paid by a state trust fund which will be funded by a payroll tax on employers at an initial contribution rate of 0.63% of the employee&rsquo;s wages.&nbsp; The cost may be shared between employer and employee at varying percentages, based on the type of leave and the size of the company.&nbsp; Unlike the federal FMLA, the state law will apply to all employers of one or more employees working in Massachusetts.&nbsp; Job-protected, paid leave will seemingly be available to eligible new employees without any hours worked or service time requirements.&nbsp; That law also will apply to certain former employees after separation and self-employed workers.&nbsp; The key provisions are unpacked below, subject to regulatory clarification.</div> <h3 style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif;"> Minimum Wage And Premium Pay</h3> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> If signed, the bill will gradually raise the state minimum wage over 5 years from the current $11 per hour to $15 per hour by 2023, including annual increases to $12, $12.75, $13.50, $14.25, and $15.&nbsp; The bill also will gradually increase the alternative minimum &ldquo;service rate&rdquo; for eligible customarily tipped employees from $3.75 per hour to $6.75 per hour by 2023.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The bill will phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays, decreasing annually from 1.5 times to 1.4 to 1.3 to 1.2 to 1.1 and ultimately to straight time.&nbsp; However, retail work on Sundays and certain holidays will still need to be voluntary, and refusal to work shall not be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.</div> <h3 style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif;"> Family And Medical Leave</h3> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The Family And Medical Leave Law, Massachusetts General Laws Chapter 175M, would establish a Department of Family and Medical Leave within the Executive Office of Labor and Workforce Development.&nbsp; This new department will be responsible for administering the paid leave program.&nbsp; The law would phase in mandated paid family and medical leave over three years with the following key provisions:</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <ul style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> <li> Effective July 1, 2019, employers will be required to post a notice of benefits available under this law in a conspicuous place on each of their premises.&nbsp; The notice must be prepared or approved by the Department.&nbsp; The notice must be in English and any other language which is the primary language of 5 or more employees or self-employed individuals of that workplace (if such notice is available from the Department).<br /> &nbsp;</li> <li> Also effective July 1, 2019, employers must issue to each employee within 30 days after the employee&rsquo;s start date, written information provided or approved by the Department in the employee&rsquo;s primary language explaining the available benefits, the employee&rsquo;s contribution amount and obligations, the employer&rsquo;s contribution amount and obligations, instructions on how to file a claim for family and medical leave benefits, and related information.<br /> &nbsp;</li> <li> Failure to comply with the above notice requirements will result in a civil penalty for a first violation of $50 per employee, and $300 per employee for each subsequent violation.<br /> &nbsp;</li> <li> Beginning July 1, 2019, all Massachusetts employers will contribute to the Family and Employment Security Trust Fund at an initial contribution rate of 0.63% of each employee&rsquo;s wages.&nbsp; For employers with 25 or more employees in Massachusetts, while the employer must remit the full contribution to the Trust Fund, for medical leave, the employer may deduct up to 40% of the contribution from the employee&rsquo;s wages; and for family leave, the employer may deduct up to 100% of the contribution from the employee&rsquo;s wages.&nbsp; (The regulations will need to address how this varied deduction will work.)&nbsp; Smaller employers with less than 25 employees in Massachusetts are not required to pay any portion of the contribution for family and medical leave.&nbsp; The Director of the Department may adjust the contribution rate annually by October 1 for the coming calendar year.<br /> &nbsp;</li> <li> Beginning July 1, 2021 (although the statutory language concerning this date is currently inconsistent and needs to be clarified), workers will be able to take family or medical leave and file claims with the Department for medical or family leave benefits.&nbsp; After an initial 7-calendar day waiting period, employees will be entitled to up to 12 weeks of paid family leave per benefit year, and up to 20 weeks of paid medical leave per benefit year for the employee&rsquo;s own serious health condition.&nbsp; The law sets a maximum aggregate of 26 weeks of paid leave per benefit year.<br /> &nbsp;</li> <li> After the 7-day waiting period (during which employees may use accrued paid sick leave), workers on paid leave may receive wage replacement from the state Trust Fund equal to 80% of their wages up to 50% of the state average weekly wage, and then 50% of their wages above that amount, up to an $850/week cap.&nbsp; The Director may adjust this maximum weekly benefit amount annually by October 1, to be 64% of the state average weekly wage, which shall take effect on January 1 of the year following.<br /> &nbsp;</li> <li> Paid &ldquo;medical leave&rdquo; will be available to any covered individual with a serious health condition.<br /> &nbsp;</li> <li> Paid &ldquo;family leave&rdquo; will be available for the following reasons: (i) to care for a family member with a serious health condition; (ii) to bond with the worker&rsquo;s child during the first 12 months after birth or the first 12 months after the placement of the child for adoption or foster care with the worker; (iii) because of any qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces; or (iv) in order to care for a family member who is a covered servicemember with a serious injury or illness incurred or aggravated in the line of duty (for this particular reason, up to 26 weeks of leave may be taken in a benefit year).<br /> &nbsp;</li> <li> The taking of family or medical leave shall not affect an employee&rsquo;s right to accrue vacation time, sick leave, bonuses, advancement, seniority, length of service credit, or other employment benefits, plans or programs.<br /> &nbsp;</li> <li> During the duration of leave, the employer shall continue to provide for and contribute to the employee&rsquo;s employer-provided health insurance benefits, if any, at the level and under the conditions coverage would have been provided if the employee had continued working continuously for the duration of such leave.<br /> &nbsp;</li> <li> Intermittent leave or reduced schedule leave, paid on a prorated basis, may be taken &ldquo;when medically necessary&rdquo; for a medical leave for the worker&rsquo;s own serious health condition, for a family leave to care for a family member with a serious health condition, or for injured servicemember family leave.&nbsp; Qualifying exigency family leave may also be taken intermittently or on a reduced schedule.&nbsp; However, bonding leave for a new baby may not be taken intermittently or on a reduced schedule unless the employee and the employer agree otherwise.<br /> &nbsp;</li> <li> An employer must restore an employee who has taken family or medical leave to the employee&rsquo;s previous position or to &ldquo;an equivalent position&rdquo; with the same status, pay, employment benefits, length of service credit, and seniority as of the date of leave (except in the event that other employees of equal length of service credit and status in the same or equivalent positions have been laid off due to economic conditions or other changes in operating conditions).<br /> &nbsp;</li> <li> The weekly benefit amount shall be reduced by the amount of wages or wage replacement a worker receives for that period under: any government program or law, including workers&rsquo; compensation (other than for permanent partial disability incurred prior to the leave claim); other state or federal temporary or permanent disability benefits law; or an employer&rsquo;s permanent disability policy or program.&nbsp; The weekly benefit amount shall not be reduced by the amount of wage replacement received while on leave under an employer&rsquo;s temporary disability policy or program, or an employer&rsquo;s paid family or medical leave policy, unless the aggregate amount an employee would receive would exceed the employee&rsquo;s average weekly wage.<br /> &nbsp;</li> <li> The state law adopts many of the same definitions as the federal FMLA, but provides broader coverage in various respects: <ul> <li> According to the current language of the bill, unlike the federal FMLA, all employees will be eligible for paid family or medical leave under the state law, regardless of length of service with the employer or hours worked.</li> <li> Under the Massachusetts law, in addition to the family members included under the federal FMLA, &ldquo;family member&rdquo; also includes a worker&rsquo;s domestic partner, grandchildren, grandparents, and siblings, as well as the parents of a spouse or domestic partner.</li> <li> &ldquo;Serious health condition&rdquo; is defined more broadly under Massachusetts law as an illness, injury, impairment, or physical or mental condition that involves (i) inpatient care in a hospital, hospice, or residential medical facility; or (ii) continuing treatment by a health care provider.<br /> &nbsp;</li> </ul> </li> <li> The law will not obviate an employer&rsquo;s obligation to comply with any company policy, law, or collective bargaining agreement that provides for greater or additional leave rights.<br /> &nbsp;</li> <li> Leave under this law will run concurrently with leave taken under the Massachusetts Parental Leave Law or the federal Family and Medical Leave Act.<br /> &nbsp;</li> <li> Employees must provide employers at least 30 days&rsquo; notice of the anticipated starting date of the leave, the anticipated length of the leave and the expected date of return, or shall provide notice as soon as practicable if the delay is for reasons beyond the employee&rsquo;s control.<br /> &nbsp;</li> <li> Workers must submit a benefits claim to the Department within 90 calendar days after the start of leave, or benefits may be reduced.&nbsp; The Department shall notify applicants of their eligibility or ineligibility for benefits within 14 days of receiving a claim and shall pay benefits not less than 14 days after the eligibility determination.&nbsp; The Department shall notify the employer within 5 business days after a claim has been filed.<br /> &nbsp;</li> <li> All claims must include a certification supporting the leave request, which differs based on the reason for leave.&nbsp; Of note, the certification to care for a family member with a serious health condition must include a statement by the health care provider that the covered worker is needed to care for the family member and an estimate of the amount of time that the covered worker is needed to care for the family member.<br /> &nbsp;</li> <li> Employers may apply to the Department for approval to opt out of the state program if they have a program that offers benefits greater than or equal to what an employee would receive in the state program.<br /> &nbsp;</li> <li> The law prohibits retaliation against employees for exercising their rights under this law, and any negative change in status or adverse employment action during a leave or within six months of the leave will create a rebuttable presumption of retaliation, which the employer can rebut with clear and convincing evidence that such action was not retaliation and was based on an independent justification.<br /> &nbsp;</li> <li> The law provides employees a private right of action with a 3-year statute of limitations for violation of the job restoration, benefits accrual and continuation, and anti-retaliation provisions.&nbsp; A court may award a prevailing employee job reinstatement, benefits reinstatement, injunctive relief, compensation for 3 times any lost wages, benefits and other remuneration and the interest thereon, and reasonable costs and attorneys&rsquo; fees.<br /> &nbsp;</li> <li> Former employees, if they otherwise meet the financial eligibility requirements, could receive paid leave benefits for family or medical leave that starts within 26 weeks after their separation from employment.<br /> &nbsp;</li> <li> Self-employed individuals may elect coverage under certain conditions.<br /> &nbsp;</li> <li> By March 31, 2019, the Department will publish for public comment and hearing proposed regulations and procedures, and such regulations will be promulgated by July 1, 2019.</li> </ul> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> Questions surrounding many of the Family and Medical Leave Law&rsquo;s terms and implementation issues will likely be the subject of much discussion and debate between now and the March 2019 issuance of proposed regulations.&nbsp; If the bill is signed by the Governor, Massachusetts would have one of the most generous paid family leave programs in the country.&nbsp; Currently, California, New Jersey, New York, and Rhode Island mandate paid family leave.&nbsp; California is the only other state currently with plans for a minimum wage as high as $15, which is to be implemented by 2022.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> We will keep you informed of upcoming clarifications and developments, including Governor Baker&rsquo;s consideration and the future regulations.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> https://www.seyfarth.com:443/publications/LR062218 Increase the Injunctions: NLRB Urges The Frequency Of Requesting Temporary Injunctions https://www.seyfarth.com:443/publications/LR062218 Fri, 22 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On June 20, 2018, Peter B. Robb, General Counsel for the NLRB, directed regional offices to continue aggressively pursue temporary injunctions to stop categories of potentially unfair labor practices<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/06/22/increase-the-injunctions-nlrb-urges-the-frequency-of-requesting-temporary-injunctions/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS062218 NSW passes Modern Slavery legislation – key obligations for businesses https://www.seyfarth.com:443/publications/WLS062218 Fri, 22 Jun 2018 00:00:00 -0400 <p> Supporting regulations will follow that deal with the finer details even without these, businesses should now urgently consider whether they will be caught by this legislation and consider how they are going to meet their compliance obligations. There will be significant maximum penalties applying to breaches of obligations.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/06/nsw-passes-modern-slavery-legislation-key-obligations-for-businesses/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FE062118 The Internet of Things + Medical Devices = Liability (Part 2) https://www.seyfarth.com:443/publications/FE062118 Thu, 21 Jun 2018 00:00:00 -0400 <p> Section 5 of the Federal Trade Commission Act bars &ldquo;unfair or deceptive acts or practices in or affecting commerce&rdquo; if the practice &ldquo;causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.&rdquo; 15 U.S.C. &sect; 45 (a), (n). The FTC is empowered to bring administrative actions against companies for such unfair practices, and its cease-and-desist orders are binding and enforceable.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/21/the-internet-of-things-medical-devices-liability-part-2">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA062118 Members of Congress Urge DOJ to Declare That Private Website Accessibility Lawsuits Violate Due Process https://www.seyfarth.com:443/publications/ADA062118 Thu, 21 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Responding to the surge of website accessibility lawsuits filed under Title III of the ADA, 103 members of Congress from both parties sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits.<br /> <br /> <a href="https://www.adatitleiii.com/2018/06/member-of-congress-urge-doj-to-declare-that-private-website-accessibility-lawsuits-violate-due-process/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT062118 The Week in Weed: June 22, 2018 https://www.seyfarth.com:443/publications/TBT062118 Thu, 21 Jun 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/the-week-in-weed-june-22-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL062118 EEOC Scrutinizes Employer Policies Regarding Prescription Drug Use https://www.seyfarth.com:443/publications/EL062118 Thu, 21 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Equal Employment Opportunity Commission recently settled lawsuits with two employers it claims violated the Americans with Disabilities Act after rejecting a job applicant and terminating an employee based on their prescription drug use.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/eeoc-scrutinizes-employer-policies-regarding-prescription-drug-use/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/maatmanxperthr062118 Gerald Maatman interviewed on XpertHR Podcast https://www.seyfarth.com:443/news/maatmanxperthr062118 Thu, 21 Jun 2018 00:00:00 -0400 <p> Gerald Maatman was interviewed June 21st on an XpertHR Podcast,&quot;Supreme Court Aids Employers in Arbitration Cases.&quot; The podcast examines the closely watched case of Epic Systems vs. Lewis and what it means for employers. You can listen to the&nbsp;<a href="https://www.xperthr.com/hr-podcasts-and-webinars/podcast-supreme-court-aids-employers-in-arbitration-cases/33353/?cmpid=SOC%7CUSAG%7CHUGMN-2017-0203-2017_twitter_generic_tracking">full podcast here</a>.&nbsp;</p> https://www.seyfarth.com:443/publications/bna062018 Andrew Boutros and John Schleppenbach authored an article in Bloomberg BNA https://www.seyfarth.com:443/publications/bna062018 Wed, 20 Jun 2018 00:00:00 -0400 <p> Andrew Boutros and John Schleppenbach authored a June 20 article in Bloomberg BNA, &quot;INSIGHT: Attorneys Traveling with Privileged Materials Take Note: 11th Circuit OKs Border Searches of Devices Without Reasonable Suspicion.&quot; The article discusses a recent Eleventh Circuit decision upholding forensic border searches of electronic devices without reasonable suspicion, and how the court&rsquo;s decision could potentially impact attorneys&rsquo; ethical obligations to safeguard client confidences when traveling abroad for work.</p> https://www.seyfarth.com:443/publications/OMM062018-LIT Limiting Class Action Tolling: Supreme Court Rules That Filing A Class Action Does Not Toll The Limitations Period for Successive Class Actions https://www.seyfarth.com:443/publications/OMM062018-LIT Wed, 20 Jun 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> In </em><a href="https://www.supremecourt.gov/opinions/17pdf/17-432_08m1.pdf">China Agritech, Inc. v. Resh</a><em>, the Supreme Court earlier this month held that pending class actions do not toll the limitations period for successive class actions. The ruling limits plaintiffs&rsquo; ability to bring successive class actions and will increase certainty for defendants sued in class actions.</em></div> <div> &nbsp;</div> <h2> Background</h2> <div> The Supreme Court had previously held that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed in the class complaint. Thus, where class certification is denied, members of the failed class could timely intervene as individual plaintiffs or promptly bring individual actions, even if the limitations period had expired.<em> See Am. Pipe &amp; Constr. Co. v. Utah</em>, 414 U.S. 538 (1974); <em>Crown, Cork &amp; Seal Co. v. Parker</em>, 462 U.S. 345 (1983).</div> <div> &nbsp;</div> <div> In <em>China Agritech</em>, the Court clarified that such tolling applies only to individual actions, not successive class actions. Therefore, upon denial of class certification, a putative class member cannot commence a new class action if the limitations period has expired.</div> <div> &nbsp;</div> <h2> The <em>China Agritech</em> Litigation</h2> <div> In <em>China Agritech</em>, a China Agritech shareholder timely brought a class action alleging that China Agritech violated the federal securities laws. The district court denied the plaintiff&rsquo;s motion for class certification, and the action settled. Subsequently, another China Agritech shareholder brought a class action alleging securities law violations. The district court again denied a motion for class certification, and the action settled.</div> <div> &nbsp;</div> <div> After the second settlement, shareholder Michael Resh brought a class action against China Agritech for violation of the federal securities laws. Resh filed his lawsuit outside the applicable limitations period, but he argued that the limitations period was tolled under the Supreme Court&rsquo;s decision in <em>American Pipe</em>.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Justice Ginsburg, writing for the Court, explained that the &ldquo;efficiency and economy of litigation&rdquo; referenced in <em>American Pipe</em> supports tolling individual claims but not successive class actions. The Court explained that efficiency favors early assertion of competing class representative claims. If class treatment is appropriate, and all would-be representatives have come forward, the district court can select the best-named plaintiff with knowledge of the full array of potential class representatives and class counsel. On the other hand, if the class mechanism is not a viable option, class certification can be litigated at the outset of the case, and that determination made once for all would-be class representatives.</div> <div> &nbsp;</div> <div> The Court noted that a contrary ruling would allow the statute of limitations to be extended time and again: each time class certification was denied, a new-named plaintiff could try to resuscitate the litigation by filing a successive class action.</div> <div> &nbsp;</div> <div> Thus, the Court instructed that &ldquo;any additional <em>class</em> filings should be made early on, soon after the commencement of the first action seeking class certification&rdquo; (emphasis in original).</div> <div> &nbsp;</div> <div> It might appear that this directive will result in more claims being filed by competing plaintiffs early in the case, each seeking to become the named plaintiff. However, the Supreme Court suggested in <em>China Agritech</em> that there was little evidence that such an increase occurred in those circuits that had already declined to apply <em>American Pipe</em> to successive class actions.</div> <div> &nbsp;</div> <div> All but Justice Sotomayor joined the opinion. She concurred in the judgment but would have limited the ruling to class action claims under the Private Securities Litigation Reform Act.</div> <div> &nbsp;</div> <h2> Takeaway</h2> <div> Plaintiffs can no longer file successive class actions after the expiration of the limitations period. A defendant who defeats class certification no longer has to worry about new class actions being filed after the expiration of the limitations period.</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/ERISA062018 Fourth Circuit Finds Insurer Not Liable For Employer’s Mistake. https://www.seyfarth.com:443/publications/ERISA062018 Wed, 20 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Fourth Circuit found in favor of an insurer on a claim for life insurance benefits, finding the insured&rsquo;s failure to submit the required evidence of insurability was not excused by his employer having wrongly deducted premiums for that coverage from his pay.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/06/20/fourth-circuit-finds-insurer-not-liable-for-employers-mistake/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP062018 Addressing Alcoholism in the California Workplace https://www.seyfarth.com:443/publications/CP062018 Wed, 20 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: It has long been clear that the Americans with Disabilities Act (ADA) and California law protect employees who suffer from alcoholism if it qualifies as a &ldquo;disability.&rdquo; Although courts have recognized the right of an employer to have legitimate work rules that prohibit alcohol use in the workplace, the line between having a protected disability and engaging in unprotected conduct is not always clear. The distinction is critical because protected alcoholics may be entitled to reasonable accommodations and leaves of absence under federal and state laws.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/06/20/addressing-alcoholism-in-the-california-workplace/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS062018 Preparing Australian employers for increases in employment class action lawsuits https://www.seyfarth.com:443/publications/WLS062018 Wed, 20 Jun 2018 00:00:00 -0400 <p> Whilst uncommon in Australia, there are high-profile examples of employment class action lawsuits.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/06/preparing-australian-employers-for-increases-in-employment-class-action-lawsuits/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL061918 Mayday Mayday!: Illinois General Assembly Considers (And Passes) Series Of Changes To Illinois Human Rights Act https://www.seyfarth.com:443/publications/EL061918 Tue, 19 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In May 2018, the Illinois General Assembly considered and also passed a series of measures aimed at changing existing employment discrimination law. On May 16, 2018, the Assembly passed House Bill 4572 which amends the Illinois Human Rights Act (IHRA) to allow employers of any size to be liable under the IHRA. On May 18, 2018, an extensive amendment was added to Senate Bill 577, seeking to expand employer liability as well as reporting and notice requirements for claims of sexual harassment. On May 30, 2018, both chambers of the Assembly unanimously passed Senate Bill 20. SB 20 amends the IHRA to provide new powers to complainants, allow complainants to wait longer to file their claims, and to make the Illinois Human Rights Commission more efficiently address the existing backlog of charges.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/mayday-mayday-illinois-general-assembly-considers-and-passes-series-of-changes-to-illinois-human-rights-act/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT061918 Vermont Attorney General Releases “Marijuana in the Workplace” Guidance https://www.seyfarth.com:443/publications/TBT061918 Tue, 19 Jun 2018 00:00:00 -0400 <p> On June 14, 2018, the Vermont Attorney General released its &ldquo;Guide to Vermont&rsquo;s Laws on Marijuana in the Workplace,&rdquo; which can be found here. The Guide is aimed at assisting Vermont employers in navigating the state&rsquo;s new recreational marijuana law, although it also addresses the state&rsquo;s medical marijuana law, disability discrimination law, and drug testing law.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/vermont-attorney-general-releases-marijuana-in-the-workplace-guidance/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/passantinobna061918 Alex Passantino quoted in Bloomberg BNA https://www.seyfarth.com:443/news/passantinobna061918 Tue, 19 Jun 2018 00:00:00 -0400 <p> Alex Passantino was quoted in a June 19 story from Bloomberg BNA, &quot;Best Buy Lawsuit May Color Labor Dept. Rule on Overtime Pay,&quot; on the announcement that the DOL&rsquo;s Wage and Hour Division would propose to clarify, update, and define regular rate requirements &mdash; or the typical hourly rate of pay that is multiplied by 1.5 to calculate the overtime premium for hours beyond 40 in a week. Passantino said that it would be nice to have more guidance on what you&rsquo;re talking about there so that we could give clients more advice on that with more certainty.</p> https://www.seyfarth.com:443/news/damonhre061918 Lisa Damon quoted in Human Resource Executive https://www.seyfarth.com:443/news/damonhre061918 Tue, 19 Jun 2018 00:00:00 -0400 <p> Lisa Damon was quoted in a June 19 story from Human Resource Executive, &quot;HR&rsquo;s #MeToo Moment,&quot; on what the #MeToo movement can teach HR professionals. According to Damon, even employers that haven&rsquo;t dealt directly with #MeToo situations are being impacted. You can read the <a href="http://hrexecutive.com/hrs-metoo-moment/">full article here</a>.</p> https://www.seyfarth.com:443/news/maatmanbna061818 Gerald Maatman quoted in Bloomberg BNA https://www.seyfarth.com:443/news/maatmanbna061818 Mon, 18 Jun 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a June 18 story from Bloomberg BNA, &quot;The Unexpected Impact of a Securities Case on Employment Law,&quot; on how a recent U.S. Supreme Court ruling about when securities fraud class actions can be filed could ripple into employment law. Maatman said that right now the wage-and-hour multiple-plaintiff case is the number one case being brought against employers.</p> https://www.seyfarth.com:443/publications/WSE061818 Failure To Follow Company’s Own Internal Procedures Can Be Used Against It In OSHA 11(c) Retaliation Case https://www.seyfarth.com:443/publications/WSE061818 Mon, 18 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A recent Eastern District of Wisconsin case held that an OSHA 11(c) retaliation claim will survive summary judgment where the employer failed to comply with its own investigation procedures.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-litigation/failure-to-follow-company-own-internal-procedures-can-be-used-against-it-in-osha-11c-retaliation-case/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE061818a OSHA Enforcement Memo for Crystalline Silica Standard in General Industry and Maritime https://www.seyfarth.com:443/publications/WSE061818a Mon, 18 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has just released a Memorandum on the Enforcement Launch for the Respirable Crystalline Silica Standard in General Industry and Maritime rules.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/chemical-safety/osha-enforcement-memo-for-crystalline-silica-standard-in-general-industry-and-maritime/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FE061818 The Internet of Things + Medical Devices = Liability (Part 1) https://www.seyfarth.com:443/publications/FE061818 Mon, 18 Jun 2018 00:00:00 -0400 <p> That video was comical because the driver was in on the experiment. But as the &ldquo;Internet of Things&rdquo; (IoT) expands, and more and more devices are connected in some way to the outside world, all sorts of possibilities for security failures arise. Manufacturers are therefore potentially exposed to both tort and regulatory liability&mdash;not just for acts and omissions during the manufacturing process, but for the failure to update existing devices as time goes by and vulnerabilities become known.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/15/the-internet-of-things-medical-devices-liability-part-1">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP061818 Biometrics & Blockchain in the Workplace: A Primer https://www.seyfarth.com:443/publications/CP061818 Mon, 18 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Information is everywhere, especially in the workplace. But traditional means of securing and sharing data&mdash;which typically involve accessing password protected information from various sources&mdash;is inefficient, cumbersome, and risky. As old authentication methods are replaced with biometric and blockchain applications, companies will enjoy increased efficiency, security, and cost-savings. But they would be wise to prepare by first understanding the potential legal pitfalls involved.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/06/18/biometrics-blockchain-in-the-workplace-a-primer/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR061518 Suffering From Withdrawal Following An Acquisition: Private Equity Company Liable For Successor Withdrawal Liability https://www.seyfarth.com:443/publications/LR061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Given the Ninth Circuit&rsquo;s recent holding that successor withdrawal liability is governed by a constructive notice standard, private equity companies and other businesses seeking to acquire other enterprises should be hyper-diligent in determining whether the transaction will expose their organizations to withdrawal liability triggered by the seller.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/06/15/suffering-from-withdrawal-following-an-acquisition-private-equity-company-liable-for-successor-withdrawal-liability/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL061518 Mass. AG on the Lookout for Prohibited Criminal History Inquiries https://www.seyfarth.com:443/publications/EL061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> Synopsis: Massachusetts Attorney General investigates 70 employers (both large and small &ndash; across all industries), citing 21 of them for violating the state&rsquo;s &ldquo;ban the box&rdquo; law, which prohibits most businesses from asking about job candidates&rsquo; criminal backgrounds on initial employment applications.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/mass-ag-on-the-lookout-for-prohibited-criminal-history-inquiries/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/houstonreuters061518 Tamaron Houston authored a chapter in Thomson Reuters Successful Partnering Between Inside and Outside Counsel https://www.seyfarth.com:443/publications/houstonreuters061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> Tamaron Houston authored a chapter in Thomson Reuters Successful Partnering Between Inside and Outside Counsel, &quot;Real Estate Law.&quot; The chapter was written to help in-house corporate counsel and outside counsel identify and successfully address, as partners, the real estate issues faced by the corporate counsel&#39;s company.</p> https://www.seyfarth.com:443/publications/IMM061518 Seyfarth Shaw Policy Matters Newsletter – June 14, 2018 https://www.seyfarth.com:443/publications/IMM061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> Seyfarth Shaw&rsquo;s new, leading Government Relations and Policy Group, which has already won the attention of national media outlets, is excited to offer regular updates to clients regarding the actions of Congress, administrative agencies, and other lawmakers at the federal, state, and local levels. Comprised of Seyfarth attorneys with government relations and policy experience, the team will develop solutions for clients and provide ongoing education and advocacy on policy issues. Below is our round-up from what happened this week in Washington.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/06/seyfarth-shaw-policy-matters-newsletter-june-14-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/ecklaw360061518 William Eck quoted in Law360 https://www.seyfarth.com:443/news/ecklaw360061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> William Eck was quoted in a June 15 story from Law360, &quot;Attys Reflect On Escobar&#39;s FCA Impact 2 Years Later.&quot; Eck said that, although not without exception, Escobar has been a positive development for FCA defendants.</p> https://www.seyfarth.com:443/news/olsonrda061418 Camille Olson quoted in Recruiting Daily Advisor https://www.seyfarth.com:443/news/olsonrda061418 Thu, 14 Jun 2018 00:00:00 -0400 <p> Camille Olson was quoted in a June 14 story from Recruiting Daily Advisor, &quot;Is Contingent Work on the Decline? New BLS Data Show Slight Dip Over Past 12 Years,&quot; on the new data released by the Bureau of Labor Statistics (BLS). Olson said that the report offers new, hard data on workers in contingent and alternative employment arrangements which will help guide the broader debate on the pros and cons of the so-called &lsquo;gig economy.&rsquo; You can read the <a href="https://recruitingdailyadvisor.blr.com/2018/06/contingent-work-decline-new-bls-data-show-slight-dip-past-12-years/">full article here</a>.</p> https://www.seyfarth.com:443/publications/RD061418-LE Becoming Predictable: Oregon’s Final Rules Help Clarify Its New Predictable Scheduling Law https://www.seyfarth.com:443/publications/RD061418-LE Thu, 14 Jun 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Oregon&rsquo;s new employee scheduling law </em><em>&ndash; impacting hourly employees at large retail, food service, and hospitality employers </em><em>&ndash; will go into effect on July 1, 2018.&nbsp; Recently, Oregon published the final administrative rules interpreting this &ldquo;predictable scheduling&rdquo; law.</em></p> <p> Last week, Oregon&rsquo;s Bureau of Labor and Industries (BOLI) published the long-awaited Permanent Administrative Order interpreting the state&rsquo;s impending predictable scheduling law (&ldquo;Final Rules&rdquo;), which will take effect on July 1, 2018.&nbsp; The Final Rules largely mirror the proposed administrative rules, issued in April 2018, and do not contain any significant surprises.</p> <p> When this scheduling law takes effect on July 1, Oregon will officially become the first state with a law of this kind &ndash; imposing conditions on employers&rsquo; ability to alter employee schedules.&nbsp; The full text of the law is available <a href="https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/SB828/Enrolled">here</a>.&nbsp; It will join the ranks of San Francisco, Seattle, New York City, and Emeryville, California &ndash; all of which have enacted legislation over the past several years to curb practices like on-call scheduling, or unpredictable scheduling practices.</p> <p> Oregon&rsquo;s law applies to retail, hospitality, and food service employers with 500 or more employees worldwide, and governs the schedules of non-exempt employees.&nbsp; As of July 1, it will require that covered employers: give employees a good faith estimate of their work schedule upon hire, post work schedules at least seven calendar days in advance (until July 1, 2020 &ndash; when it becomes fourteen calendar days), <em><u>compensate</u></em> employees for any changes to their schedules after that time period (subject to certain exceptions), provide certain rights to rest between shifts, and prohibit retaliation against employees who request changes to their work schedule or otherwise exercise rights under the law.</p> <p> Although the Final Rules do not address every aspect of Oregon&rsquo;s new scheduling law, they contain many helpful insights for employers seeking guidance on how to abide by this sweeping legislation. &nbsp;Some of the more notable details include:</p> <ul> <li> <strong>Good Faith Estimate of Work Schedules</strong></li> </ul> <p> Covered employers must provide new employees with a written good faith estimate of the employee&rsquo;s work schedule upon hire.&nbsp; The Final Rules clarify how a &ldquo;good faith estimate&rdquo; is created.</p> <p> For example, the estimate must contain several components: (1) the median number of hours an employee can expect to work in an average one-month period (the Rules explain how to calculate the median, which must be a single number, not a range of numbers); (2) an explanation of the employer&rsquo;s voluntary standby list (if any); and (3) a statement indicating whether employees who are not on a voluntary standby list may expect to work on-call shifts and an &ldquo;objective standard&rdquo; for when they will be expected to be available for on-call shifts.</p> <ul> <li> <strong>Advance Notice of Work Schedules</strong>.</li> </ul> <p> One of the biggest pieces of this law is its advance notice requirement, and the consequences that flow from changing employees&rsquo; schedules after the mandated advance notice window.&nbsp; Employers must post written work schedules in a conspicuous and accessible location, at least <u>seven (7) calendar days in advance</u> before the <em>first day of the work schedule</em>.&nbsp; In other words, if the schedule is for July 1 to July 14, the schedule must be posted June 24.</p> <p> A &ldquo;conspicuous and accessible location&rdquo; can be an electronic scheduling system, so long as all employees are given access to the electronic system at the workplace, and can view the work schedules of all employees at the same location.</p> <p> If employers change the work schedule with more than seven days before the first day of the schedule, then it is not considered a schedule &ldquo;change&rdquo; under the statute, and will not require any additional compensation.&nbsp; Otherwise, for changes made within that seven-day window, employees cannot be forced to work any shifts not included in their original written work schedule, and any employer-initiated modifications to the work schedule are subject to the statute&rsquo;s myriad predictability pay provisions.</p> <ul> <li> <strong>Predictability Pay, or Additional Compensation for Scheduling Changes</strong></li> </ul> <p> The Final Rules do not provide any additional explanation about the amount of compensation required for changes to employees&rsquo; schedules (often referred to as &ldquo;predictability pay&rdquo;).&nbsp; Employers should familiarize themselves with the text of the law, which includes additional compensation, at varying rates, where employers: add more than 30 minutes to a shift, change a start or end time of a shift with no loss of hours, subtract hours after an employee reports to work, cancel a shift, or do not call an employee in for an on-call shift (among others).&nbsp;</p> <p> There are many exceptions to when predictability pay is required.&nbsp; For example, there is no obligation to issue predictability pay where employees request changes to their own schedule (in writing), agree to swap shifts, or have shifts taken away for disciplinary reasons.&nbsp; Most important, employers may call on employees who have consented to include be on a &ldquo;voluntary standby list&rdquo; when additional coverage is needed.&nbsp; Employees who agree to work when called from the voluntary standby list will not be entitled to predictability pay.</p> <ul> <li> <strong>Right to Rest Between Work Shifts</strong></li> </ul> <p> Employees cannot be scheduled to work within 10 hours after the end of a prior <em>calendar day&rsquo;s </em>work shift or on-call shift, or within 10 hours of a shift that spanned two calendar days, absent the employee&rsquo;s consent or request to do so.&nbsp; Regardless of whether employees request or consent to work such shifts, they must be paid time and a half for any shifts separated by less than ten hours.&nbsp; However, the rule does not apply to &ldquo;split shifts&rdquo; on the same calendar day (<em>e.g., </em>employee takes a break between morning and evening shift).</p> <ul> <li> <strong>Record Retention Requirements</strong></li> </ul> <p> Employers must retain records relating to this scheduling law for <u>three years</u>.&nbsp; Such records include: (1) the written work schedules given to employees and posted; (2) employees&rsquo; written requests to change their work schedule after the schedule has been posted; (3) the good faith estimate of employees&rsquo; work schedules, given to employees; (4) the voluntary standby list maintained by the employer, if any; (5) the employer&rsquo;s notice to employees about any voluntary standby list and their rights to be included; and (6) documents showing just cause to subtract employees&rsquo; work hours for any disciplinary purposes.</p> <p> <em>Changes from the Proposed Rules</em></p> <p> The Final Rules contain few changes from the Proposed Rules issued in April.&nbsp; Notable modifications include:</p> <ul> <li> When the statute says that employers can avoid paying additional compensation for coverage needed to address unanticipated customer needs or unexpected absences, and references contacting &ldquo;<em>all of the employees listed on the voluntary standby list</em>&rdquo; &ndash; it only means those employees on the voluntary standby list &ldquo;who are qualified and trained to perform the work for which the additional shift is offered.&rdquo;&nbsp; This is a new definition from the Proposed Rules. &nbsp;It makes clear what should be common sense: employers do not need to call unqualified or untrained workers to fill-in for a shift to avoid paying additional compensation.</li> <li> The Final Rules eliminate a proposed rule regarding joint employers &ndash; which would have relied on the joint employment standards in Title 29, CFR Part 791, Section 2 and Part 825, Section 106 (the Fair Labor Standards Act and the Family and Medical Leave Act).</li> </ul> <p> <em>Civil Penalties</em></p> <p> Oregon also published its Final Rules regarding the civil penalties to be imposed for violations of the employee scheduling law.&nbsp; Civil penalties will not be imposed until after <strong><u>January 1, 2019</u></strong>.&nbsp; Generally, the penalty for a scheduling violation cannot exceed $1,000, with the penalty for failing to display the required notice to employees not exceeding $500.&nbsp; The penalty for coercing employees to be added to the voluntary standby list, however, is steeper &ndash; with a maximum of $2,000.</p> <p> Employers impacted by Oregon&rsquo;s new employee scheduling law should review the Final Rules and enacted legislation, and compare the provisions with their current scheduling practices to ensure compliance in advance of the July 1 effective date.&nbsp; Employers should also ensure they have sufficient recordkeeping practices in place to record employee schedule modifications, and prepare any voluntary employee standby list (an advisable practice).</p> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL061418 EEOC Argues that Sexual Orientation Discrimination by a Heterosexual Person can Constitute a Protected Activity https://www.seyfarth.com:443/publications/EL061418 Thu, 14 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In her appeal to the Fifth Circuit, Plaintiff Bonnie O&rsquo;Daniel argues that the trial court wrongly concluded that it was unreasonable for O&rsquo;Daniel to believe that a complaint about discrimination based on sexual orientation constituted a protected activity. The EEOC recently joined the fray by filing an amicus curiae brief, which argues that it was reasonable for O&rsquo;Daniel to believe that opposition to sexual orientation discrimination constituted protected activity.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/eeoc-argues-that-sexual-orientation-discrimination-by-a-heterosexual-person-can-constitute-a-protected-activity/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CCD061418 Supreme Court Rules that Class Actions Do Not Toll the Limitations Period for Successive Class Actions https://www.seyfarth.com:443/publications/CCD061418 Thu, 14 Jun 2018 00:00:00 -0400 <p> In China Agritech, Inc. v. Resh, the Supreme Court recently held that pending class actions do not toll the limitations period for successive class actions. The ruling limits plaintiffs&rsquo; ability to bring successive class actions and will increase certainty for defendants sued in class actions.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/06/supreme-court-rules-that-class-actions-do-not-toll-the-limitations-period-for-successive-class-actions/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT061418 The Week in Weed: June 15, 2018 https://www.seyfarth.com:443/publications/TBT061418 Thu, 14 Jun 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/the-week-in-weed-june-15-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT061418a Origo Acquisition Corporation Secures Additional Time for High Times Merger https://www.seyfarth.com:443/publications/TBT061418a Thu, 14 Jun 2018 00:00:00 -0400 <p> In our June 12 blog post, we reported on a potential acquisition in the cannabis industry:<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/origo-acquisition-corporation-secures-additional-time-for-high-times-merger/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC061318 U.S. Supreme Court Holds Limitations Period On Class Claims Runs https://www.seyfarth.com:443/publications/WC061318 Wed, 13 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: At the start of this week, the U.S. Supreme Court issued its long-awaited decision in China Agritech, Inc. v. Resh, No. 17-432 (U.S. June 11, 2018), which has important implications for employers because it will limit their exposure to successive class actions. Specifically, the Supreme Court held that, while the individual claims of putative class members are tolled during pending class actions, their class claims are not.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/06/u-s-supreme-court-holds-limitations-period-on-class-claims-runs/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/alfredpetersenlaw360061218 Richard Alfred and Kyle Petersen authored an article in Law360 https://www.seyfarth.com:443/publications/alfredpetersenlaw360061218 Tue, 12 Jun 2018 00:00:00 -0400 <p> Richard Alfred and Kyle Petersen authored a June 12 article in Law360, &quot;FLSA Turns 80: Causes Of Growth In Wage And Hour Cases, &quot; on how a confluence of four key factors resulted in the explosion of wage and hour litigation.</p> https://www.seyfarth.com:443/publications/MA061218-LE If Pain, Yes Gain—Part XLVIII: Rhode Island Releases Final Sick Leave Regulations; Effective Date is Near https://www.seyfarth.com:443/publications/MA061218-LE Tue, 12 Jun 2018 00:00:00 -0400 <p> <strong>Seyfarth Synopsis: </strong><em>Last month, the Rhode Island Department of Labor and Training released the state&rsquo;s final paid sick and safe leave regulations.&nbsp; As the state paid sick leave law&rsquo;s July 1, 2018 effective date approaches, the regulations impose additional obligations on various topics</em>&mdash;<em>employer coverage, written policy requirements, sick leave accrual, calculating payment for used sick leave, etc.</em>&mdash;<em>that employers must satisfy for full compliance.</em></p> <p> Last month, the Rhode Island Department of Labor and Training published the state&rsquo;s long-awaited regulations for the Healthy and Safe Families and Workplaces Act (&ldquo;Act&rdquo;).&nbsp; When the Act, which Governor Gina Raimondo signed on September 28, 2017, goes into effect on July 1, 2018, Rhode Island will become the ninth state in the country with a statewide paid sick leave mandate.<a href="#_ftn1" name="_ftnref1" title="">[1]</a> Our <a href="http://www.seyfarth.com/publications/MA092117-LE">previous alert</a> on the Act outlined the Act&rsquo;s key provisions. Now, after months of anticipation, the final regulations bring a potpourri of selective clarity, unresolved gray areas, and additional compliance burdens in advance of the Act&rsquo;s looming effective date.</p> <p> Here are the highlights of the Rhode Island Final Paid Sick and Safe Leave (&ldquo;PSSL&rdquo;) Regulations:</p> <p> <strong>Covered Employers and Determining Employer Size</strong></p> <p> The Act requires employers with 18 or more employees <em>in Rhode Island</em> to provide paid sick and safe leave to eligible employees. &nbsp;The Act generally applies to any person suffered or permitted to work by an employer.&nbsp; Despite some uncertainty in the Act and no further clarification in the regulations, it appears that smaller employers (i.e., those with less than 18 Rhode Island employees) are not obligated to provide either paid or unpaid leave to their Rhode Island employees. However, it does appear that smaller employers will be required to protect unpaid time off used for covered reasons under the Act up to 24, 32, or 40 hours depending on the year in question. &nbsp;</p> <p> The regulations establish the calculations needed for determining employer size under the Act.&nbsp; Annually, employers must determine whether they meet the 18-employee threshold by taking an average of their total Rhode Island employees during the previous payroll year&rsquo;s highest two employment quarters.&nbsp; This determination remains in effect, regardless of potential changes in employer size, for the following 12 months.&nbsp;</p> <p> The regulations explain that an employee is considered to be employed in Rhode Island if their primary place of employment over the last year was in Rhode Island, regardless of the employer&rsquo;s location.<a href="#_ftn2" name="_ftnref2" title=""><sup><sup>[2]</sup></sup></a>&nbsp; However, an employee does not need to spend at least 50 percent of their time working in Rhode Island for it to be considered their primary place of employment. Instead, the employee only needs to spend more time working in Rhode Island than in any other state in order to be included in the 18-employee calculation.</p> <p> <strong>Employers with a Paid Time Off Policy</strong></p> <p> The Act expressly states that employers who afford their employees the correct amount of paid leave in 2018, 2019 and thereafter, under a non-sick paid leave policy, such as PTO, are exempt from the Act&rsquo;s accrual and carryover requirements.&nbsp; However, the Act does not clarify whether an employer must frontload the PTO, or if employers with an accrual based PTO setup can take advantage of these exemptions.&nbsp;</p> <p> The regulations do not resolve these issues. While the regulations acknowledge that a PTO policy that frontloads paid leave to employees at the start of each year will exempt an employer from tracking leave accrual, allowing year-end carryover, and paying employees for unused time, the regulations also contain language suggesting that the same exemptions may apply when PTO is accrued. This outcome would be very different than treatment of accrual-based policies under other existing paid sick leave laws and ordinances and thus further clarification may be coming from the state.</p> <p> Whichever paid leave delivery method the employer chooses, it must provide full-time employees working an entire year with the minimum amount of paid leave as required by the Act.&nbsp; The regulations further state that employers can prorate paid leave for non-full time employees based on their start date and number of hours worked.&nbsp;&nbsp;&nbsp;</p> <p> <strong>Accrual of PSSL</strong></p> <p> The regulations clarify that a Rhode Island employee will accrue PSSL for all hours worked, regardless of the location of the work.&nbsp; Additionally and significantly, employees also will accrue PSSL<em> <strong>for all hours paid by their employer</strong></em>. As a result, employers will need to include paid holidays (when the employee is not working), paid sick, vacation and personal time, and other forms of paid time off when calculating accrual under the Act&rsquo;s one hour for every 35 hours worked accrual rate.</p> <p> This requirement represents a departure from accrual rate calculations under most, if not all, existing paid sick leave laws. Employers with operations in non-Rhode Island paid sick leave locations should immediately assess their current sick leave accrual tracking system to determine if updates are needed based on this new obligation.</p> <p> <strong>Use of PSSL</strong></p> <p> <u>Covered Family Members</u>: The Act allows covered employees to use PSSL for, among other reasons, their family member&rsquo;s health needs. 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.&nbsp; The regulations include a definition of &ldquo;member of employee&rsquo;s household,&rdquo; which was absent from the Act. This term is defined as a person that resides at the same physical address as the employee or a person that is claimed as a dependent by the employee for federal income tax purposes.</p> <p> <u>Waiting Period for New Hires</u>: The Act imposes 90, 150 or 180-day usage waiting periods for new hires depending on whether the individual is a regular, seasonal, or temporary employee, respectively. The regulations explain that where an employer imposes an appropriate 90-day usage waiting period, it must notify new hires of this requirement in writing.</p> <p> The regulations define &ldquo;in writing&rdquo; (or &ldquo;written notice&rdquo;) as any printed or printable communication that is provided in a physical or electronic format, including communications that are transmitted through electronic mail, a computer system or is otherwise sent and stored electronically. While electronic notice is permissible, employers must provide the notice in hard copy if requested by the employee.</p> <p> <strong>Notice</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. For purposes of providing notice when a PSSL absence is &ldquo;foreseeable,&rdquo; the regulations define &ldquo;foreseeable&rdquo; as something that is planned at least 24 hours in advance of when it is required.</p> <p> <strong>Documentation</strong></p> <p> The Act allows employers to seek reasonable documentation when an employee has been absent for more than three consecutive work days. The regulations state that employers must accept such documentation within a reasonable timeframe, although they do not define what is considered a &ldquo;reasonable timeframe.&rdquo;</p> <p> The Act also states that an employer&rsquo;s verification may not result in an unreasonable burden or expense to the employee. The regulations determine &ldquo;unreasonable&rdquo; to be when the employee&rsquo;s total cost to obtain the verification is more than two times their hourly rate of pay.&nbsp; Administrative, governmental or medical fees, and transportation costs must be included in making this determination.&nbsp; If the total cost to an employee is considered unreasonable, employers may require the employee to submit a signed statement indicating their use of PSSL was for covered purposes.</p> <p> <strong>Leave Pay Rate Calculation</strong></p> <p> The regulations clarify what it means to be compensated at the same hourly rate for use of PSSL for the following types of employees:</p> <ul> <li> <u>Hourly Employees</u>: The employee&rsquo;s regular hourly rate.</li> <li> <u>Employees who receive different rates for hourly work from the same employer</u>: Employer must annually choose the &ldquo;same hourly rate&rdquo; to be either the rate the employee would have been paid for the hours they would have worked or a weighted average of all regular pay rates for the previous pay period, month, quarter or other established period of time an employer customarily uses to calculate the weighted average for similar purposes. &nbsp;</li> <li> <u>Salaried Employees</u>: Total earnings in the previous pay period divided by the employee&rsquo;s total hours worked during that pay period.&nbsp;</li> <li> <u>Piece Work Employees</u>: Employers may use a reasonable calculation of the wages or fees the employee would ha</li> <li> ve received for the piece work, service or part thereof, if the employee had worked.</li> <li> <u>Commissioned Employees</u>: Must be paid the greater of the base wage or the effective minimum wage.</li> <li> <u>Tipped Employees</u>: Must be paid at least the minimum wage.</li> </ul> <p> The regulations explain that commissions, drawing accounts, bonuses, incentive pay based on sales or production, sums excluded under 29 U.S.C. &sect; 207(e), overtime pay, holiday pay, and other premium rates<a href="#_ftn3" name="_ftnref3" title="">[3]</a> do not need to be included in the calculating payment for used PSSL.</p> <p> <strong>Loaned PSSL and Wage Deductions</strong></p> <p> The Act allows employers to loan or advance PSSL to employees before it is accrued, but is silent on whether employers can recoup any monies owed by an employee upon employment separation.&nbsp; The regulations state that an employer can deduct the PSSL owed from the employee&rsquo;s final wages provided that it has obtained the employee&rsquo;s written permission to do so.&nbsp; The regulations further clarify that an employer should clearly state in its employment policies that prior to advancing or loaning PSSL time it will require employees to agree, in writing, to allow it to recover any outstanding amounts owed from advanced or loaned PSSL time via payroll deductions in the employee&rsquo;s final wages.</p> <p> <strong>Food Employees</strong></p> <p> While the Act was silent on food employees, the regulations make a point to discuss how the notice and documentation requirements differ for food employees.&nbsp; The regulations use the Rhode Island Food Code to define &ldquo;food employees&rdquo; as any individual working with unpackaged food, food equipment or utensils, or food-contact surfaces.</p> <p> If a food employee (or someone who manages food employees) notifies their employer of their intent to use PSSL time, the employer may ask if the employee&rsquo;s reason would trigger the employer&rsquo;s obligations under the Rhode Island Food Code.&nbsp; If the employee answers in the negative, the employer cannot ask any further questions about the nature of the illness.&nbsp; However, if the answer is in the affirmative, the employer may ask about the symptoms on a limited basis to determine what steps it must take to comply with its obligations under the Food Code. &nbsp;Finally, if the employee states that they are suffering from any of the symptoms described in the Food Code, the employer must follow the Food Code&rsquo;s procedures.</p> <p> When it comes to the Act&rsquo;s documentation requirements, if there is a conflict with the Food Code, the Act&rsquo;s requirements will not apply to Food Employees. &nbsp;</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 and its regulations by the rapidly approaching 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.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> <li> Review accrual calculation procedures and systems based on the standard that employees accrue PSSL based on hours worked and hours paid by the employer.</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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The other nine states that have passed a statewide mandatory paid sick leave law are: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; (9) New Jersey.&nbsp; The Washington statewide paid sick leave law went into effect on January 1, 2018.&nbsp; The Maryland statewide paid sick leave law went into effect on February 11, 2018.&nbsp; The New Jersey governor signed the state&rsquo;s paid sick leave law on May 2, 2018, and it is scheduled to go into effect on October 29, 2018.&nbsp; The other six statewide laws are in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> In effect, the employer will still be liable for paid or unpaid leave regardless of whether the employer has a physical location in Rhode Island.&nbsp; In addition, barring subsequent clarification from the state, the &ldquo;primary place of employment&rdquo; standard appears to be tied to determining employer size and not employee eligibility.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> When an employee&rsquo;s regular hourly rate is a &ldquo;differential rate,&rdquo; meaning a different wage paid for the same work performed under differing conditions (hours, etc.), the &ldquo;differential rate&rdquo; is not a premium and shall be considered as regular wages for the purpose of determining the same hourly rate.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL061218 Using Credit Histories in Employment Decisions: An Overview of Divergent State & Local Requirements https://www.seyfarth.com:443/publications/EL061218 Tue, 12 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Over the past few years, restrictions regarding the use of credit checks by employers on applicants and employees have been passed at various state and municipal levels, and the federal government has indicated its own concerns of potential discriminatory impact of the use of credit checks. The nuanced differences in obligations and requirements that may govern in any particular jurisdiction have created a legal mine-field for employers who utilize credit checks.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/using-credit-histories-in-employment-decisions-an-overview-of-divergent-state-local-requirements/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT061218 SPACs as an Exit Strategy for Cannabis Businesses https://www.seyfarth.com:443/publications/TBT061218 Tue, 12 Jun 2018 00:00:00 -0400 <p> A developing market for owners of cannabis businesses looking for a potential buyer are SPACs, special purpose acquisition companies. SPACs raise money in public offerings with the purpose of acquiring companies, usually in a specified range of industries or located in a particular geographic area. The SPACs cannot have a particular target in mind at the time of the public offering. Among some of the more recent SPACs with a cannabis industry focus, MTech Acquisition Corp. closed a public offering for $57.5 million in February 2018, and Cannabis Strategies Acquisition Corp. closed a CDN $134.75 million (approximately US $103.78 million) public offering in Canada in December 2017. This post looks at some of the issues involved that are unique to being acquired by a SPAC.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/spacs-as-an-exit-strategy-for-cannabis-businesses/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/wexlernewsday061218 Howard Wexler quoted in Newsday https://www.seyfarth.com:443/news/wexlernewsday061218 Tue, 12 Jun 2018 00:00:00 -0400 <p> Howard Wexler was quoted in a June 12 story from Newsday, &quot;Help Wanted: Holidays don&#39;t mean that payday also takes a holiday,&quot; on whether an employer can legally postpone a Tuesday payday when a holiday falls on a Monday. Wexler said that the holiday does not change when wages are due. You can read the <a href="https://www.newsday.com/business/new-york-labor-law-payday-1.19132462">full article here</a>.</p> https://www.seyfarth.com:443/news/babsonlaw360060818 Marshall Babson quoted in Law360 https://www.seyfarth.com:443/news/babsonlaw360060818 Fri, 08 Jun 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a June 8 story from Law360, &quot;NLRB Taking A Look At Recusal Process Amid Ethics Dispute.&quot; Babson said that he thinks the board is reviewing its ethics rules out of caution.</p> https://www.seyfarth.com:443/publications/TS060818 Security Breach Responses — As Important and Difficult As Ever https://www.seyfarth.com:443/publications/TS060818 Fri, 08 Jun 2018 00:00:00 -0400 <p> This post originally appeared in the June edition of Cyber Law &amp; Strategy.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/06/articles/cybersecurity/security-breach-responses-as-important-and-difficult-as-ever/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR060818 The Board’s General Counsel Memorandum is a Comforting Return to a Common Sense Approach to Workplace Policies https://www.seyfarth.com:443/publications/LR060818 Fri, 08 Jun 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.employerlaborrelations.com/2018/06/08/the-boards-general-counsel-memorandum-is-a-comforting-return-to-a-common-sense-approach-to-workplace-policies/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ssfbcbloomberglaw060818 Sam Schwartz-Fenwick and Ben Conley authored an article in Bloomberg Law https://www.seyfarth.com:443/publications/ssfbcbloomberglaw060818 Fri, 08 Jun 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick and Ben Conley authored a June 8 article in Bloomberg Law, &quot;Transgender Issues in the Workplace.&quot; The article highlights proactive policies addressing transgender issues that employers can incorporate in their workplaces to help increase diversity and inclusion while avoiding violations of relevant nondiscrimination laws that provide protections for transgender employees and applicants.</p> https://www.seyfarth.com:443/news/seidmanbloomberglaw060718 Joshua Seidman quoted in Bloomberg Law https://www.seyfarth.com:443/news/seidmanbloomberglaw060718 Thu, 07 Jun 2018 00:00:00 -0400 <p> Joshua Seidman was quoted in a June 7 story from Bloomberg Law, &quot;Austin Businesses Consider Costs as Battle Over Sick Leave Ramps Up,&quot; on how a trial court will decide whether to approve an injunction to the paid sick leave law. Seidman said that the lawsuit&rsquo;s outcome could reverberate across the state and that local paid sick leave ordinances can be quite burdensome and costly to employers of all sizes.</p> https://www.seyfarth.com:443/news/olsoncns060718 Camille Olson quoted in Courthouse News Service https://www.seyfarth.com:443/news/olsoncns060718 Thu, 07 Jun 2018 00:00:00 -0400 <p> Camille Olson was quoted in a June 7 story from Courthouse News Service, &quot;Strict Definition of &lsquo;Gigging&rsquo; Hampers Federal Study,&quot; on a BLS report that says just 5.9 million people, about 3.8 percent of all workers, make up what is known as the contingent-job sector in May 2017. Olson said that the report clearly reveals continuing concerns over compensation and benefits which deserve further examination by our nation&rsquo;s policymakers. You can read the <a href="https://www.courthousenews.com/strict-definition-of-gigging-hampers-federal-study/">full article here</a>.</p> https://www.seyfarth.com:443/publications/EL060718 The Supreme Court’s Decision in Masterpiece Cakeshop Provides Little Guidance on Intersection of Religious and LGBT Rights https://www.seyfarth.com:443/publications/EL060718 Thu, 07 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a largely symbolic ruling, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court ruled 7-2 in favor of a cake shop owner who refused to make a wedding cake for a gay couple based on his religious beliefs. By limiting its holding to the facts of the case, however, the Court sidestepped an opportunity to delineate the intersection between free expression of religion and LGBT rights. As a result, the decision provides little in the way of guidance to employers regarding the role of free expression of religion in the workplace.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/the-supreme-courts-decision-in-masterpiece-cakeshop-provides-little-guidance-on-intersection-of-religious-and-lgbt-rights/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP060718 2018 California Legislative Update: What Survived the House of Origin Deadline? https://www.seyfarth.com:443/publications/CP060718 Thu, 07 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Several bills of concern to California employers failed to receive the house of origin blessing and passage by the June 1 deadline, including this year&rsquo;s attempts at PAGA reform, criminal history inquiries, and medical marijuana accommodations, while a boatload of others, most notably sexual harassment-related bills, sail on. The measures being passed to their opposite house for consideration are described below.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/06/07/2018-california-legislative-update-what-survived-the-house-of-origin-deadline/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT060718 The Week in Weed: June 8, 2018 https://www.seyfarth.com:443/publications/TBT060718 Thu, 07 Jun 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/the-week-in-weed-june-8-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA060618 W3C Publishes Expanded Web Content Accessibility Guidelines https://www.seyfarth.com:443/publications/ADA060618 Wed, 06 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The World Wide Web Consortium just published an expanded version of the WCAG to add 17 more requirements to address new technologies and other digital barriers for individuals with disabilities.<br /> <br /> <a href="https://www.adatitleiii.com/2018/06/world-wide-web-publishes-expanded-web-accessibility-guidelines/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS060618 Webinar Recap! The Anatomy of a Trade Secret Audit https://www.seyfarth.com:443/publications/TS060618 Wed, 06 Jun 2018 00:00:00 -0400 <p> In Seyfarth&rsquo;s third installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Kate Perrelli, Dawn Mertineit, Justin Beyer, and Andrew Stark focused on trade secret audits, with an emphasis on the importance of a proactive, systematic approach to assessing and protecting trade secret portfolios.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/06/articles/trade-secrets/webinar-recap-the-anatomy-of-a-trade-secret-audit/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH060618 The Tension Between Present and Future in Wage and Hour Lawmaking https://www.seyfarth.com:443/publications/WH060618 Wed, 06 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Most wage and hour laws set out to benefit and protect workers in some way. The recent wave of state and local predictive scheduling laws and minimum wage hikes is no different. Yet it is critical to assess, and attempt to account for, the possibility that these laws could hasten the demise of the very jobs held by the workers they intend to protect the most.<br /> <br /> <a href="https://www.wagehourlitigation.com/uncategorized/futureinwhlawmaking/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/moragrd060618 Jennifer Mora quoted in Green Rush Daily https://www.seyfarth.com:443/news/moragrd060618 Wed, 06 Jun 2018 00:00:00 -0400 <p> Jennifer Mora was quoted in a June 6 story from Green Rush Daily, &quot;Employers in Maine Can Now Restrict Marijuana Use.&quot; Mora said that one of the key changes from the new law is that it got rid of the original protection for employees who smoke weed away from work during their off hours. You can read the <a href="https://greenrushdaily.com/employers-in-maine-can-now-restrict-marijuana-use/">full article here</a>.</p> https://www.seyfarth.com:443/publications/OMM060518-LIT The USDA’s Proposed National Bioengineered Food Disclosure Standard https://www.seyfarth.com:443/publications/OMM060518-LIT Tue, 05 Jun 2018 00:00:00 -0400 <div> On May 3, 2018, the U.S. Department of Agriculture (&ldquo;USDA&rdquo;) released its much-anticipated proposed rule to establish a national standard for the disclosure of bioengineered ingredients in certain food products.&nbsp; The public comment period on the proposal has begun and runs through July 3, 2018.&nbsp; The proposed rule sheds light on certain aspects of the disclosures that food manufacturers and others will be required eventually to provide.&nbsp; But the USDA&rsquo;s proposal leaves significant questions unanswered, providing an opportunity for the public to shape the final rule in critical ways.</div> <h3> Background</h3> <div> The USDA&rsquo;s rule is promulgated under the 2016 National Bioengineered Food Disclosure Standard Act.&nbsp; It preempts the GMO labeling regimes of several states, including Vermont, and requires the USDA to issue a final rule on the disclosure of bioengineered ingredients in food products by July 29, 2018.&nbsp; You can read more about the background of the Act and the actions undertaken by the USDA prior to the release of its proposed rule <a href="https://www.foodnavigator-usa.com/Article/2017/07/14/GUEST-ARTICLE-GMO-labeling-what-happens-next#">here</a>.</div> <h3> Definition of &ldquo;Bioengineered&rdquo; Ingredients</h3> <div> The proposed rule requires disclosure of &ldquo;bioengineered&rdquo; ingredients.&nbsp; Under the Act, &ldquo;bioengineered&rdquo; (or &ldquo;BE&rdquo;) means food &ldquo;(A) that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature.&rdquo;&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The proposed rule is silent as to whether ingredients that are genetically modified through other techniques, such as gene editing, are covered.&nbsp; But the USDA does provide some clarifying guidance on what constitutes a &ldquo;bioengineered&rdquo; food or ingredient.&nbsp; Its proposed rule offers a list of &ldquo;Commercially Available BE Foods&rdquo; that have been &ldquo;highly adopted&rdquo; in the food industry, and a list of &ldquo;Commercially Available BE Foods&rdquo; that are &ldquo;not highly adopted.&rdquo;&nbsp; Only food products containing ingredients on these lists will be subject to the anticipated disclosure rules.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Foods are &ldquo;highly adopted&rdquo; where 85% or more of the crop produced in the U.S. is &ldquo;bioengineered&rdquo;&mdash;including canola, field corn, and soybeans.&nbsp; Foods are &ldquo;not highly adopted&rdquo; where less than 85% of the U.S. crop is bioengineered&mdash;including apples with non-browning cultivars, sweet corn, papaya, potato, and summer varieties of squash.&nbsp; The proposed rule provides a process by which the lists can be updated depending on changes in technology and food cultivation.&nbsp;&nbsp;</div> <h3> Disclosure Options&nbsp;</h3> <div> Except for certain exemptions (more on that below), if a food product appears on, or contains an ingredient on, either the &ldquo;highly adopted&rdquo; or &ldquo;not highly adopted&rdquo; list, regulated entities will be required to make a disclosure on the label of that food product or not make a disclosure if they have documented verification that the food is not a bioengineered food or that it does not contain a bioengineered food ingredient.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The proposed rule allows regulated entities to choose from at least three disclosure options for non-exempt foods: a text disclosure on a food label, a symbol disclosure, or an electronic link disclosure.&nbsp; The USDA is considering a text message disclosure option as well.&nbsp; Under this proposed option, the company would be required to include a statement on the food label directing the consumer to a number to text for more information about the food.&nbsp; The number must provide an immediate response with only the required text disclosure.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> If a regulated entity uses a text disclosure on a food label, the disclosure requirement would vary depending on which list the food or food ingredient appear.&nbsp; For food products made from ingredients on the &ldquo;highly adopted&rdquo; list, the regulated entity would disclose that the food product &ldquo;Contains a bioengineered food ingredient.&rdquo;&nbsp; For food products made with ingredients on the &ldquo;not highly adopted list,&rdquo; USDA proposes to give regulated entities the discretion to use the disclosure &ldquo;May contain a bioengineered food ingredient&rdquo; instead.</div> <div> &nbsp;</div> <div> For the symbol disclosure option, the USDA proposes <a href="https://www.ams.usda.gov/sites/default/files/media/ProposedBioengineeredLabels.pdf">three symbols</a> for public comment (along with black-and-white versions of each).</div> <div> &nbsp;</div> <div> For the electronic link disclosure option, the USDA proposes to allow regulated entities to include a link on food packaging that can be scanned by a smartphone, at which point the user&rsquo;s smartphone will open a website containing the required disclosures.&nbsp; The USDA seeks comments on text statements that would accompany the digital link&mdash;for example, &ldquo;Scan icon for food information.&rdquo;&nbsp; Regulated entities that use digital link disclosures would also be required to include a telephone number on the food label that would allow consumers to call at any time of day and receive the required disclosure.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The possible text message disclosure option would allow regulated entities to provide a number on food packaging and an instruction to send a text message to that number &ldquo;for more food information.&rdquo;&nbsp; After sending a text message to that number, the consumer would receive a text message in response containing the required disclosure for that food product.</div> <div> &nbsp;</div> <div> Entities responsible for disclosure would be required to maintain records necessary to substantiate compliance with the standards for individual disclosure options, including the type and wording of the disclosure used, and to substantiate the claim included in the disclosure or implied by the absence of a disclosure statement.</div> <h3> Exemptions from the Labeling Requirements</h3> <div> The proposed rule exempts a number of foods and food manufacturers from the labeling requirements.&nbsp; Exempted foods include animal products (e.g., meat or eggs) from animals that consume feed containing bioengineered ingredients; food certified as organic under the USDA&rsquo;s national organic program; and food served in restaurants or similar retail food establishments, including cafeterias, food stands, and bars.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The USDA is weighing different options for two categories of additional exemptions: an exemption based on the relatively low level of bioengineered ingredients in a food product, and an exemption for small food manufacturers based on the manufacturers&rsquo; annual receipts.&nbsp; The USDA seeks public comment on the appropriate thresholds for these exemptions, and proposes several different options for consideration.</div> <h3> Proposed Compliance Dates</h3> <div> The USDA proposes a compliance deadline of January 1, 2020, with a delayed compliance date of January 1, 2021 for small food manufacturers.&nbsp; The USDA&rsquo;s proposed deadlines for bioengineered food disclosures are intended to align with the Food &amp; Drug Administration&rsquo;s extension of the deadlines to comply with updated Nutrition Facts, Supplement Facts and Serving Size labeling requirements to the same dates.&nbsp;&nbsp;</div> <h3> Final Thoughts</h3> <div> The USDA&rsquo;s statutory deadline to issue a final rule, July 29, 2018, is fast approaching.&nbsp; But it likely will not meet it because the proposed rule contains a number of unanswered questions, many relating to critical issues such as how the presence of &ldquo;bioengineered&rdquo; ingredients will be disclosed and which foods and food manufacturers will be exempted from the labeling requirements.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> These unanswered questions also mean that the final rule is likely to be influenced significantly by public comments.&nbsp; Food manufacturers, retailers, consumers, industry groups, and other interested parties have an important opportunity to shape the final contours of the USDA&rsquo;s bioengineered food labeling rules.&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/CCD060518 FDA Menu Labeling Rules Unfreeze https://www.seyfarth.com:443/publications/CCD060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> Certain restaurants, grocers, and other food establishments will soon be required to comply with the Food and Drug Administration&rsquo;s (&ldquo;FDA&rdquo;) menu labeling rules. The FDA previously finalized menu labeling rules in connection with the Affordable Care Act to make calorie and nutritional information more available to consumers dining out. Last year, the FDA extended the compliance deadline to May 7, 2018.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/06/fda-menu-labeling-rules-unfreeze/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT060518 Proposed Amendment to California’s Medical Marijuana Law On Hold – For Now https://www.seyfarth.com:443/publications/TBT060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> California&rsquo;s AB 2069, a bill to require employers to accommodate medical cannabis users, recently failed to advance past committee.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/proposed-amendment-to-californias-medical-marijuana-law-on-hold-for-now/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FE060518 The Tension Between Present and Future in Wage and Hour Lawmaking https://www.seyfarth.com:443/publications/FE060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> While opinions differ as to how much or how soon workers will have to adapt to the automation tsunami, this trend seems certain to impact the workplace in myriad ways. For example, a recent study focused on the Indianapolis workforce suggests not only the potential for job loss, but unfortunately, a pronounced impact on occupations disproportionately held by women.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/5/the-tension-between-present-and-future-in-wage-and-hour-lawmaking">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/BIO060518 The USDA’s Proposed National Bioengineered Food Disclosure Standard https://www.seyfarth.com:443/publications/BIO060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> On May 3, 2018, the U.S. Department of Agriculture (&ldquo;USDA&rdquo;) released its much-anticipated proposed rule to establish a national standard for the disclosure of bioengineered ingredients in certain food products. The public comment period on the proposal has begun and runs through July 3, 2018. The proposed rule sheds light on certain aspects of the disclosures that food manufacturers and others will be required eventually to provide. But the USDA&rsquo;s proposal leaves significant questions unanswered, providing an opportunity for the public to shape the final rule in critical ways.<br /> <br /> <a href="https://www.bioloquitur.com/usdas-proposed-national-bioengineered-food-disclosure-standard/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS060518 Top 7 for directors and the workplace https://www.seyfarth.com:443/publications/WLS060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> Download the overview of our top 7 for directors and the workplace:<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/06/top-7-for-directors-and-the-workplace/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS060418 Upcoming Webinar! Protecting Trade Secrets from Cyber and Other Threats https://www.seyfarth.com:443/publications/TS060418 Mon, 04 Jun 2018 00:00:00 -0400 <p> Please join us for a one-hour CLE webinar on Tuesday, July 24, 2018, at 1:00 p.m. Eastern / 12:00 p.m. Central / 10:00 a.m. Pacific.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/06/articles/trade-secrets/upcoming-webinar-protecting-trade-secrets-from-cyber-and-other-threats/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/boutrosagendaweek060418 Andrew Boutros quoted in Agenda Week https://www.seyfarth.com:443/news/boutrosagendaweek060418 Mon, 04 Jun 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in a June 4 story from Agenda Week, &quot;Boards Risk Criticism Over Internal Investigations.&quot; Boutros said that that when a probe involves top executives, boards should consider retaining an outside firm.</p> https://www.seyfarth.com:443/news/adanlr060418 Seyfarth's ADA Title III blog referenced in the National Law Review https://www.seyfarth.com:443/news/adanlr060418 Mon, 04 Jun 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA Title III blog was referenced in a June 4 story from the National Law Review, &quot;Why Law Firms Should Make Web Accessibility a Priority in 2018.&quot; According to Seyfarth&#39;s ADA Title III blog, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites in 2017. You can read the <a href="https://www.natlawreview.com/article/why-law-firms-should-make-web-accessibility-priority-2018">full article here</a>.</p> https://www.seyfarth.com:443/news/weisslaw360060418 Philippe Weiss quoted in Law360 https://www.seyfarth.com:443/news/weisslaw360060418 Mon, 04 Jun 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a June 4 story from Law360, &quot;5 Workplace Scenarios That Could Spell Legal Trouble.&quot; Weiss said that, in some cases, where male managers get into the habit of restating ideas spoken by female employees or even talking over them, it can cross over into gender discrimination.</p> https://www.seyfarth.com:443/news/resurveybisnow060318 Seyfarth's Real Estate Market Sentiment Survey referenced in Bisnow https://www.seyfarth.com:443/news/resurveybisnow060318 Sun, 03 Jun 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was referenced in a June 3 story from Bisnow, &quot;98% Of Surveyed Real Commercial Estate Professionals Expect The Fed To Boost Rates In June.&quot; According to Seyfarth&#39;s Real Estate Market Sentiment Survey published earlier this year, executives cited rising interest rates once again as their lead concern for the industry this year. You can read the <a href="https://www.bisnow.com/national/news/capital-markets/interest-rate-hike-dead-ahead-with-more-to-come-and-that-worries-cre-89094">full article here</a>.</p> https://www.seyfarth.com:443/news/babsonbloomberglaw060118 Marshall Babson quoted in Bloomberg Law https://www.seyfarth.com:443/news/babsonbloomberglaw060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a June 1 story from Bloomberg Law, &quot;Labor Board Republicans May Decide Fate of Boeing Union,&quot; on an ethics official decision that cleared Member William Emanuel to participate in Boeing&rsquo;s case challenging the workers&rsquo; vote for representation by the International Association of Machinists and Aerospace Workers. Babson said that he wasn&rsquo;t surprised that Emanuel was cleared for the case.</p> https://www.seyfarth.com:443/news/finkelshrm060118 Noah Finkel quoted in SHRM https://www.seyfarth.com:443/news/finkelshrm060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Noah Finkel was quoted in a June 1 story from SHRM, &quot;Should Harassment Claims Be Subject to Arbitration?,&quot; on the reasons for exempting harassment claims from arbitration. Finkel said that employers don&#39;t face juries except in a small percentage of sexual harassment claims but have full-blown factual hearings before arbitrators. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/harassment-claims-arbitration.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/paulingabajournal060118 Gerald Pauling quoted in the ABA Journal https://www.seyfarth.com:443/news/paulingabajournal060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Gerald Pauling was quoted in a June 1 story from the ABA Journal, &quot;Time&#39;s up: Legal, judicial systems slow to adapt to sexual harassment and assault issues.&quot; Pauling said that sexual harassers are not necessarily people who are the best revenue generators or those with the impressive industry connections. You can read the <a href="http://www.abajournal.com/magazine/article/timesup_legal_judicial_harassment_assault">full article here</a>.</p> https://www.seyfarth.com:443/publications/ADA060118 CA Court Rules Unruh Act Requires Website to Conform to WCAG 2.0 AA, But Denies Damages for Multiple Visits to Website https://www.seyfarth.com:443/publications/ADA060118 Fri, 01 Jun 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.adatitleiii.com/2018/06/ca-court-rules-unruh-act-requires-website-to-conform-to-wcag-2-0-aa-but-denies-damages-for-multiple-visits-to-website/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/lazaralm060118 Bart Lazar authored an article in ALM's Cybersecurity Law & Strategy https://www.seyfarth.com:443/publications/lazaralm060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Bart Lazar authored a June 1 article in ALM&#39;s Cybersecurity Law &amp; Strategy, &quot;Security Breach Responses &mdash; As Important and Difficult As Ever.&quot; You can read the <a href="http://www.lawjournalnewsletters.com/2018/06/01/security-breach-responses-as-important-and-difficult-as-ever/?slreturn=20180506102536">full article here</a>.</p> https://www.seyfarth.com:443/publications/FE060118 5 Steps to Foster, Inspire & Sustain Engagement https://www.seyfarth.com:443/publications/FE060118 Fri, 01 Jun 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.futureemployer.com/blog/2018/6/1/5-steps-to-foster-inspire-sustain-engagement">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM060118 Seyfarth’s Immigration Group Earns Top Tier Ranking from The Legal 500 for the Fourth Consecutive Year https://www.seyfarth.com:443/publications/IMM060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> The 2018 edition of The Legal 500 United States recommends Seyfarth Shaw&rsquo;s Immigration group as one of the best in the country. Nationally, for the fourth consecutive year, our Immigration practice earned Top Tier.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/06/legal500/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/law360060118 Robert Milligan and Joshua Salinas authored an article in Law360 https://www.seyfarth.com:443/publications/law360060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas authored a June 1 article in Law360, &quot;What Businesses Must Know About FDA Menu Labeling Rules.&quot;</p> https://www.seyfarth.com:443/publications/abi060118 William Hanlon and Timothy McKeon authored an article in the ABI Journal https://www.seyfarth.com:443/publications/abi060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> William Hanlon and Timothy McKeon authored a June 1 article in the ABI Journal, &quot;Restricted vs. Continuing Guaranties and the 727 Discharge.&quot;</p> https://www.seyfarth.com:443/publications/EL060118 Seyfarth’s Workplace Counseling & Solutions Group Earns Top Tier Ranking from The Legal 500 for the Tenth Consecutive Year https://www.seyfarth.com:443/publications/EL060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> The 2018 edition of The Legal 500 United States recommends Seyfarth Shaw&rsquo;s Workplace Counseling &amp; Solutions group as one of the best in the country. Nationally, for the tenth consecutive year, our Counseling practice earned Top Tier.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/seyfarths-workplace-counseling-solutions-group-earns-top-tier-ranking-from-the-legal-500-for-the-tenth-consecutive-year/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS053118 Seyfarth’s Trade Secrets Group Earns Top Tier Ranking from Legal 500 for Third Consecutive Year https://www.seyfarth.com:443/publications/TS053118 Thu, 31 May 2018 00:00:00 -0400 <p> The 2018 edition of The Legal 500 United States recommends Seyfarth Shaw&rsquo;s Trade Secrets group as one of the best in the country. Nationally, for the third consecutive year, our Trade Secrets practice earned Top Tier.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/05/articles/trade-secrets/seyfarths-trade-secrets-group-earns-top-tier-ranking-from-legal-500-for-third-consecutive-year/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR053118 Employee’s Vulgar Comment To Manager During Staff Meeting Was Not Protected Under The NLRA https://www.seyfarth.com:443/publications/LR053118 Thu, 31 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The ALJ found that the employer did not violate the Act where it terminated an employee for using vulgar language during a staff meeting in efforts to undermine the general manager&rsquo;s managerial authority.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/05/31/employees-vulgar-comment-to-manager-during-staff-meeting-was-not-protected-under-the-nlra/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL053118 First Circuit Decision Underlines the Importance of Law Over Sympathetic Facts in Disability Discrimination Cases https://www.seyfarth.com:443/publications/EL053118 Thu, 31 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Plaintiffs in disability discrimination cases often have sympathetic facts on their side. A recent decision out of the United States Court of Appeals for the First Circuit, however, highlighted that courts are tasked with applying the law in such cases even if doing so leads to a loss for a sympathetic plaintiff.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/05/first-circuit-decision-underlines-the-importance-of-law-over-sympathetic-facts-in-disability-discrimination-cases/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT053118 The Week in Weed: June 1, 2018 https://www.seyfarth.com:443/publications/TBT053118 Thu, 31 May 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/05/the-week-in-weed-june-1-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/shermanoptimatum053118 Andrew Sherman quoted in Optimatum https://www.seyfarth.com:443/news/shermanoptimatum053118 Thu, 31 May 2018 00:00:00 -0400 <p> Andrew Sherman quoted in a May 31 story from Optimatum, &quot;Employee engagement &ndash; The Insidious Deal Killer.&quot; Sherman said that levels of engagement in the target and culture are now at the top of all smart buyer&rsquo;s due diligence lists. You can read the <a href="https://www.optimatumsolutions.com/insights/employee-engagement-the-insidious-deal-killer/">full article here</a>.</p> https://www.seyfarth.com:443/news/finkelnlr053018 Noah Finkel quoted in the National Law Review https://www.seyfarth.com:443/news/finkelnlr053018 Wed, 30 May 2018 00:00:00 -0400 <p> Noah Finkel was quoted in a May 30 story from the National Law Review, &quot;Supreme Court Says Class or Collective Actions Not Guaranteed Under NLRA Section 7: Co-Counsel for Epic, Noah Finkel of Seyfarth Shaw, on the Supreme Court&rsquo;s Decision .&quot; You can read the <a href="https://www.natlawreview.com/article/supreme-court-says-class-or-collective-actions-not-guaranteed-under-nlra-section-7">full article here</a>.</p> https://www.seyfarth.com:443/publications/MA053018-LE Termination Pay Penalties: Easy to Incur, Impossible to Reduce? https://www.seyfarth.com:443/publications/MA053018-LE Wed, 30 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Employers must pay &ldquo;waiting time&rdquo; penalties for willfully failing to timely pay wages due upon termination. Last week the California Court of Appeal dealt employers a double whammy: (i) mere negligence can count as &ldquo;willfulness,&rdquo; and (ii) courts lack statutory discretion to reduce the penalties, which can add up to 30 days of wages.</em></p> <p> <strong>The Facts</strong></p> <p> In April 2014, three restaurant workers sued Grill Concepts Services, Inc. on behalf of terminated restaurant employees. They said that Grill Concepts failed to pay living wages under a Los Angeles ordinance and thus failed to pay wages due upon termination. They sought waiting-time penalties under Labor Code section 203&mdash;penalties that can amount up to 30 working days of wages. Grill Concepts had paid the living wage required by the original ordinance, but had overlooked a 2010 amendment. The Grill Concepts HR director suspected the restaurant was underpaying employees when she saw an article citing a living wage higher than what Grill Concepts was paying. After hearing from the City that the amendment to the ordinance was still &ldquo;in process,&rdquo; Grill Concepts continued searching the City&rsquo;s website to see if the ordinance had been amended, however, Grill Concepts did not follow up with the City or ask other affected employers about what living wage they were paying.</p> <p> The trial court certified a class and granted summary judgment against Grill Concepts for Section 203 penalties because its failure to pay was &ldquo;willful&rdquo; within the meaning of the statute. At trial, the trial court found that it lacked equitable discretion to waive the penalties for equitable reasons. Grill Concepts appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> Grill Concepts told the Court of Appeal that its failure to timely pay termination wages was in good faith, in that it could not find the amended ordinance. The Court of Appeal rejected this argument, stating that employers have a &ldquo;duty of inquiry&rdquo; to determine whether their conduct is unlawful. The Court of Appeal reasoned that the employer&rsquo;s ignorance coupled with its negligence in failing to determine the proper living wage amounted to a &ldquo;willful&rdquo; failure to pay. The Court of Appeal similarly rejected Grill Concepts&rsquo;s second argument that failing to understand the ordinance constituted a good faith dispute. The Court of Appeal held that the ordinance was not impermissibly vague, because a reasonable and practical construction was possible, and a person of ordinary intelligence would understand the annual adjustments to the living wage in accordance with the 2010 amendment.</p> <p> The Court of Appeal further held that Section 203 does not empower courts to reduce or waive penalties for equitable reasons. The Court of Appeal based its analysis on the statutory language, which states that wages &ldquo;shall&rdquo; continue as a penalty if the employer fails to timely pay final wages. The Court of Appeal noted that the Legislature could have included discretionary language, but chose not to do so. The Court of Appeal reasoned that it would be impermissibly creating an exception to the statute if it recognized judicial discretion to reduce or waive penalties. From a policy standpoint, the Court of Appeal asserted that the penalties were &ldquo;essential to the public welfare&rdquo; because employees depend on wages for life necessities and that allowing discretion to reduce or waive penalties would undermine the statute&rsquo;s purpose of prompt payment.</p> <p> <strong>What <em>Diaz</em> Means For Employers</strong></p> <p> <em>Diaz</em> is another stark reminder of how California courts deal harshly with employers, even when they have made an effort to comply with the law. Employers must stay vigilant about their wage obligations or risk a finding of willfulness if a failure to exercise care results in the underpayment of wages. <em>Diaz</em> confirms that the mandatory &ldquo;shall&rdquo; language in Section 203 is just that&mdash;mandatory&mdash;and requires the imposition of penalties if there is a finding of willfulness related to underpayment of wages.</p> <p> It is also true, though, that <em>Diaz</em> does not address constitutional issues attending harsh and oppressive applications of Section 203. In some cases the amount of the penalty&mdash;30 working days of wages&mdash;will dwarf the magnitude of any violation. In those cases the disproportionate penalty could amount to a constitutionally excessive fine. <em>Diaz</em>, meanwhile, addresses only whether courts have &ldquo;equitable&rdquo; power under the statute to reduce penalties. We do not believe that applying the statute&rsquo;s &ldquo;shall&rdquo; language would survive a constitutional challenge in an extreme case.</p> https://www.seyfarth.com:443/publications/CP053018 San Francisco-Peculiarities: Fog Lifts on City’s New Paid Sick Leave Rules https://www.seyfarth.com:443/publications/CP053018 Wed, 30 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: June 7, 2018, when the city&rsquo;s new Paid Sick Leave rules take effect, marks the latest chapter in the City by the Bay&rsquo;s long history of imposing local employment standards that exceed state requirements. Here&rsquo;s what you need to know before this latest San Francisco peculiarity begins.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/05/30/san-francisco-peculiarities-fog-lifts-on-citys-new-paid-sick-leave-rules/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA052918-LE Healthcare Employers Beware: DOJ Announces Criminal Investigation of Healthcare Human Resources Practices in the Midst of the Ongoing Nursing Shortage https://www.seyfarth.com:443/publications/MA052918-LE Tue, 29 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: At the recent American Bar Association&rsquo;s Antitrust in Healthcare conference, the Department of Justice (&ldquo;DOJ&rdquo;) reportedly advised that it has open criminal investigations into agreements among healthcare providers not to hire each other&rsquo;s employees.&nbsp; This announcement comes at a time when the healthcare industry is experiencing an acute nursing shortage.&nbsp; It was a similar nursing shortage that some claim created economic conditions that led to an alleged unlawful exchange of nurse wage information in the early and mid-2000s.&nbsp; In 2006, nurses filed class actions in five different cities alleging that hospitals agreed to suppress nurse wages and exchange nurse wage information in violation of federal antitrust laws.&nbsp; Two of those cases resulted in settlements of tens of millions of dollars, and one is still being litigated.&nbsp; Thus, it is imperative that healthcare employers examine their recruiting and compensation practices and ensure that these practices do not raise concerns under federal antitrust laws.</em></p> <p> <strong>Background</strong></p> <p> In October 2016, the Federal Trade Commission (&ldquo;FTC&rdquo;) and DOJ jointly issued their Antitrust Guidance for Human Resource Professionals (the &ldquo;Joint Guidance&rdquo;).&nbsp; (Available at https://www.justice.gov/atr/file/903511/download).&nbsp; The Joint Guidance principally addresses three potential human resources practices that could lead to antitrust violations: (1) agreements by employers not to compete for each other&rsquo;s employees (&ldquo;no-poach&rdquo; agreements); (2) agreements by employers to fix or suppress wages paid to their employees; and (3) agreements by employers to exchange information regarding the wages and benefits they pay to their employees.&nbsp; The Joint Guidance also stated that DOJ may treat wage fixing and so-called &ldquo;naked&rdquo; no-poach agreements as criminal violations of the antitrust laws.</p> <p> Naked no-poach agreements are those that are not part of, or are not reasonably necessary to further the legitimate interests of, a larger business transaction.&nbsp; No-poach agreements that are part of a larger, legitimate transaction (<em>e.g.</em>, in connection with the sale of a business) are referred to as ancillary, and they are typically found to be lawful if they are reasonable in scope and duration.</p> <p> <strong>No-Poach Agreements</strong></p> <p> In January of this year, the new Assistant Attorney General for the Antitrust Division, Makan Delrahim, remarked that he was &ldquo;shocked&rdquo; at the number of ongoing investigations at DOJ of alleged no-poach agreements.&nbsp; Delrahim also remarked that if naked no-poach agreements were undertaken or continued after the issuance of the Joint Guidance, then DOJ may exercise its prosecutorial discretion to treat them as criminal.&nbsp; When DOJ engages in a criminal enforcement action, it typically insists on jail time.</p> <p> Naked no-poach agreements can also have devastating civil class action consequences.&nbsp; DOJ&rsquo;s investigation and subsequent civil enforcement actions brought against seven Silicon Valley tech companies in 2009 led to a highly publicized consolidated class action against the defendants entitled <em>In Re High-Tech Employee Antitrust Litigation</em>, No. 11-CV-02509 (&ldquo;<em>High-Tech</em>&rdquo;).&nbsp; After years of litigation, a class of over 62,000 employees was eventually certified.&nbsp; The plaintiffs&rsquo; expert in that case argued that damages to the class amounted to $3 billion, which would automatically be tripled under the antitrust laws to $9 billion.&nbsp; The case eventually settled for $435 million.</p> <p> On April 3, 2018, DOJ announced the first of what appears to be a wave of no-poach enforcement actions against employers -- in this instance, against two employers in the railway equipment industry and a number of their subsidiaries.&nbsp; Since that announcement, nine separate class actions have been brought against the defendants seeking treble damages for alleged antitrust violations.</p> <p> <strong>Wage Information Exchange Agreements</strong></p> <p> In 2006, in the midst of a&nbsp; nursing shortage, nearly identical class actions were filed by nurses against hospital defendants in Chicago, Detroit, Albany, Memphis and San Antonio.&nbsp; Among the claims asserted in each of those cases was an agreement to unlawfully exchange nurse wage information in violation of federal antitrust laws.&nbsp; Class certification was denied in the Chicago and Memphis cases but was granted in Detroit and Albany.&nbsp; The Detroit and Albany cases settled for approximately $90 million and $14 million respectively.&nbsp; The San Antonio case is ongoing, and no class certification decision has yet been reached in that case.</p> <p> <strong>Implications for Healthcare Employers</strong></p> <p> Naked no-poach, wage-fixing and improper wage information sharing agreements can have devastating consequences for healthcare employers.&nbsp; Not only is there the risk of jail time and millions or billions of dollars in potential class action damages, but the litigation itself is time-consuming, burdensome and costly.&nbsp; As noted above, the San Antonio case has been going on for more than 12 years.</p> <p> Based on our experience in defending these types of cases, many healthcare employers, including top executives and HR personnel, are simply unaware that these types of agreements can impose antitrust risk.&nbsp; Moreover, the current nursing shortage creates huge pressure for healthcare employers to recruit, retain and properly compensate nurse employees.&nbsp; Thus, if they have not already done so, healthcare employers should immediately consider:</p> <ol> <li> Conducting an internal investigation to determine whether the company is engaging in the informal gathering of wage, salary or benefit information, through direct contact with other employers; or whether it has entered into any no-poach agreements.&nbsp; The investigation should be conducted or closely supervised by counsel with steps taken to preserve the attorney-client privilege.&nbsp; Also, if it is discovered that the company has engaged in any &ldquo;naked&rdquo; wage-fixing or no-poaching agreements on or after October&nbsp;25, 2016, then criminal counsel should be consulted as DOJ may treat such conduct as criminal.</li> <li> Implementing an antitrust compliance program that ensures that all management and human resources personnel are aware that they cannot: (1) engage in a naked wage, salary or benefits-fixing agreement with any other unrelated employer; (2) engage in the gathering or exchange of wage, salary or benefits information without full compliance with the Joint Guidance; or (3) enter into any no-poach agreement without prior approval of counsel.&nbsp; Such individuals should, on an annual basis, be required to acknowledge in writing that they are aware of these prohibitions.&nbsp; Also, anyone hired or transferred into any of these positions should be made aware of these prohibitions at the time they are hired or transferred.&nbsp; These employees should also be advised that the DOJ is likely to treat naked wage/salary/benefit-fixing and no-poaching agreements as criminal and employees could be sentenced to prison for engaging in such conduct.</li> </ol> https://www.seyfarth.com:443/publications/OMM052918-LE USCIS Policy Memo Significantly Changes Unlawful Presence Issues for F, J, and M Nonimmigrants https://www.seyfarth.com:443/publications/OMM052918-LE Tue, 29 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>Nonimmigrants in F, J, and M visa status should ensure that they take no actions to violate their status, as they could inadvertently trigger unlawful presence and jeopardize future status in the United States.<strong> </strong></em></p> <p> On May 10, 2018, USCIS issued a <a href="https://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/AccrualofUnlawfulPresenceFJMNonimmigrantsMEMO_v2.pdf">policy memorandum</a> that reverses prior guidance on the interpretation of unlawful presence for F, J, and M nonimmigrants.&nbsp; This policy takes effect on August 9, 2018.&nbsp; The result is that F, J, and M nonimmigrants who violate their status can trigger the start of &ldquo;unlawful presence&rdquo; in the United States, and over a period of time can become subject to a three-year or ten-year bar to reentering the United States.&nbsp;</p> <p> <strong>Background</strong></p> <p> A <a href="https://www.congress.gov/bill/104th-congress/senate-bill/735">1996 law</a> introduced the concept of unlawful presence.&nbsp; If a nonimmigrant remains unlawfully present in the United States for more than 180 days, s/he is subject to a three-year bar from returning to the United States; a nonimmigrant who remains unlawfully present for more than one year is subject to a ten-year bar.&nbsp; In addition, most nonimmigrants who remain unlawfully present are ineligible for an extension of their current visa status, or a change of status to another visa classification, from within the United States.</p> <p> Unlawful presence begins either when a person remains in the United States beyond his/her period of admission OR when found by USCIS to have violated his/her nonimmigrant status.&nbsp;&nbsp; A 2009 USCIS memorandum clarified when unlawful presence is triggered for F, J, and M nonimmigrants.&nbsp; Because individuals in these visa classifications are admitted for &ldquo;Duration of Status&rdquo; (D/S), and not until a date certain, in most cases unlawful presence is only triggered following a formal finding of a status violation by USCIS for F, J, and M nonimmigrants.</p> <p> <strong>Impact of May 10, 2018 Policy Memorandum</strong></p> <p> The policy memorandum significantly changes USCIS&rsquo; position on when F, J, and M nonimmigrants trigger unlawful presence.&nbsp; Under the new policy, F, J, and M nonimmigrants still become unlawfully present following a formal finding of a status violation by the Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR).&nbsp; In addition, an F, J, or M nonimmigrant can also trigger unlawful presence in any of the following scenarios:</p> <ul> <li> Failure to continue the course of study or authorized activity which was the basis for their F, J, or M nonimmigrant status;</li> <li> Engaging in an unauthorized activity that is not permitted by their status (such as unauthorized employment that is not approved pursuant to their status); and</li> <li> Completion of the course of study or authorized activity which was the basis for their F, J, or M nonimmigrant status.&nbsp; In this case, unlawful presence begins the day following the completion of the course of study or authorized activity, or following any authorized grace period that is provided by law or regulation (whichever is later).</li> </ul> <p> <strong>Effective Date of Policy Change</strong></p> <p> This new policy takes effect on August 9, 2018.&nbsp; Any F, J, or M nonimmigrant who does not currently maintain status based on this new policy will begin to accrue unlawful presence starting on August 9.&nbsp; After August 9, any activity by an F, J, or M nonimmigrant that results in a status violation will trigger the start of unlawful presence.</p> <p> <strong>Recommendations </strong></p> <p> Any nonimmigrant in F, J, or M nonimmigrant status should communicate with his/her program sponsor to ensure that s/he maintains valid nonimmigrant status and to confirm when s/he would no longer hold valid status following the completion of his/her course of study or authorized activity pursuant to this new policy.</p> <p> If you should have any questions about how the policy change might impact your workforce, please reach out to your contact person at Seyfarth Shaw LLP. We will be happy to address your questions.&nbsp;&nbsp; &nbsp;</p> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL052918 Iowa Lowers Standard for Positive Alcohol Tests https://www.seyfarth.com:443/publications/EL052918 Tue, 29 May 2018 00:00:00 -0400 <p> Synopsis: Effective July 1, 2018, Iowa employers may lower their standard for alcohol tests and consider taking action against an employee with a blood alcohol concentration as low as .02. Prior to this time, state law prohibited an employer from taking any action against an employee with an alcohol test result below .04.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/05/iowa-lowers-standard-for-positive-alcohol-tests/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/epicgbfr052418 Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins authored an article in Global Banking & Finance Review https://www.seyfarth.com:443/publications/epicgbfr052418 Thu, 24 May 2018 00:00:00 -0400 <p> Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins authored a May 24 article in Global Banking &amp; Finance Review, &quot;A Class Waiver Can Be A Condition of Employment.&quot; You can read the <a href="https://www.globalbankingandfinance.com/a-class-waiver-can-be-a-condition-of-employment/">full article here</a>.</p> https://www.seyfarth.com:443/publications/WC052418 Dismissal Denied In EEOC Race Discrimination Action Against Security Company https://www.seyfarth.com:443/publications/WC052418 Thu, 24 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A federal district court in Maryland recently denied in part an employer&rsquo;s motion to dismiss a race discrimination action brought on behalf of African-born security guards by the EEOC, and instead granted the EEOC&rsquo;s motion to stay so that the Commission could amend its deficient pre-suit letters of determination that were the subject of the employer&rsquo;s motion to dismiss.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/05/dismissal-denied-in-eeoc-race-discrimination-action-against-security-company/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP052418 Leave It To California – Post FMLA/CFRA/PDL Leave and FEHA https://www.seyfarth.com:443/publications/CP052418 Thu, 24 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: When must an employer provide leave time in addition to FMLA/CFRA-type leave as a reasonable accommodation? The answer to that question, as with many other leave-related questions, may depend on your location on the map.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/05/24/leave-it-to-california-post-fmla-cfra-pdl-leave-and-feha/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT052418 The Week in Weed: May 25, 2018 https://www.seyfarth.com:443/publications/TBT052418 Thu, 24 May 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/05/the-week-in-weed-may-25-2018/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/wcarmm052418 Seyfarth's Workplace Class Action Report referenced in Magnify-Money https://www.seyfarth.com:443/news/wcarmm052418 Thu, 24 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in a May 24 story from Magnify-Money, &quot;The Supreme Court has made it much harder to sue your employer as a group.&quot; This ruling comes a year after the 10 largest settlements in employment-related categories reached a record high $2.72 billion, according to the 14th annual edition of Seyfarth&#39;s Workplace Class Action Litigation Report. You can read the <a href="https://www.wkyc.com/article/money/magnify-money/the-supreme-court-has-made-it-much-harder-to-sue-your-employer-as-a-group/95-557622511">full article here</a>.</p> https://www.seyfarth.com:443/news/lazarwapo052418 Bart Lazar quoted in the Washington Post https://www.seyfarth.com:443/news/lazarwapo052418 Thu, 24 May 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a May 24 story from the Washington Post, &quot;New privacy rules could spell the end of legalese &mdash; or create a lot more fine print,&quot; on Europe&#39;s General Data Protection Regulation (GDPR), which requires companies to use plain language to communicate how they process people&rsquo;s data. Lazar said that the requirement of companies to disclose more about their data practices than ever before could result in more-lengthy explanations. You can read the <a href="https://www.washingtonpost.com/news/the-switch/wp/2018/05/24/new-privacy-rules-could-spell-the-end-of-legalese-or-create-a-lot-more-fine-print/?noredirect=on&amp;utm_term=.318bcae50ded">full article here</a>.</p> https://www.seyfarth.com:443/news/nelson052318 Seyfarth Adds Labor & Employment Partner Scott Nelson in Houston https://www.seyfarth.com:443/news/nelson052318 Wed, 23 May 2018 00:00:00 -0400 <p> <em><span style="font-size:14px;">Firm Continues Growth of Houston Office </span></em></p> <p> <strong>HOUSTON (May 23, 2018)</strong> -- Seyfarth Shaw LLP announced today the arrival of partner Scott Nelson to the Labor &amp; Employment department in Houston. Nelson joins from Baker McKenzie LLP, where he was a partner in Houston and also served until recently as leader of the firm&rsquo;s domestic U.S. Employment Counseling and Litigation practice.</p> <p> Nelson brings significant experience with domestic and international labor and employment matters, as well as complex commercial litigation, to Seyfarth&rsquo;s growing Houston office. Earlier this month, former AccessHealth general counsel Janice Suchyta joined Seyfarth in Houston, further bolstering the region&rsquo;s second largest health care practice as ranked by the <em><a href="https://www.bizjournals.com/houston/subscriber-only/2017/12/01/largest-houston-area-health-care-law.html">Houston Business Journal</a>.</em></p> <p> &ldquo;We are excited to welcome Scott to our growing platform in Houston,&rdquo; said Mark Coffin, managing partner of Seyfarth&rsquo;s Houston office. &ldquo;He is a trusted counselor and dynamic leader in employment law with experience handling matters around the globe.&rdquo;</p> <p> &ldquo;As both a veteran litigator and advisor, Scott has grown into one of the region&rsquo;s top authorities on employment and compliance-related issues facing clients in jurisdictions around the world,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;He&rsquo;s a natural fit as we expand our Labor &amp; Employment team in Houston, where we&rsquo;ve long had a strong presence and look forward to serving more clients in the future.&rdquo;</p> <p> Among Nelson&#39;s more notable cases, he successfully defended multinational chemical companies in one of the largest employee trade secrets cases to ever go to a jury trial, a case in which plaintiffs sought $800 million through economic espionage-type trade secrets claims. He also achieved a total bench trial victory in a large ERISA &sect; 204(h) notice class action in which plaintiffs sought a recovery in excess of $200 million.</p> <p> <em>Texas Monthly</em> magazine has recognized Nelson as a Texas Super Lawyer and the Texas Board of Legal Specialization has board certified him in labor and employment law.</p> <p> An accomplished litigator, Nelson has prevailed in a wide variety of cases before trial courts, appellate courts, arbitrators, and government agencies. He has litigated all major types of employment law claims, wage and hour claims, ERISA claims, whistleblower claims, non-compete and trade secrets cases, class actions, collective actions, traditional labor law (union-related) matters, and complex commercial litigation matters.</p> <p> Nelson also serves as a trusted, regular advisor on compliance and strategy issues, and frequently manages large international legal matters. In addition, he supervises internal company investigations and often trains groups of executives.</p> <p> Nelson received his J.D., <em>cum laude</em>, from the Creighton University School of Law and earned his B.S.B.A., <em>magna cum laude</em>, from Creighton University.</p> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Communications, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> https://www.seyfarth.com:443/news/finkelcc052318 Noah Finkel quoted in Corporate Counsel https://www.seyfarth.com:443/news/finkelcc052318 Wed, 23 May 2018 00:00:00 -0400 <p> Noah Finkel was quoted in a May 23 story from Corporate Counsel, &quot;High Court Approval of Class Action Waivers in Landmark Case Seen as Victory for Companies,&quot; on how the U.S. Supreme Court held that companies have the right to compel employees to sign waivers that prevent them from bringing class action lawsuits against their employers. Finkel said that it&rsquo;s a significant victory for employers in that those that have arbitration agreements that contain class and collective action waivers are now able to enforce them without any question.</p> https://www.seyfarth.com:443/news/epiclaw052318 Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins' blog post referenced in Law.com https://www.seyfarth.com:443/news/epiclaw052318 Wed, 23 May 2018 00:00:00 -0400 <p> Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins&#39; blog post was referenced in a May 23 story from Law.com, &quot;Critical Mass: How SCOTUS Roiled Class Action Bar.&quot; The blog post said the ruling removed the last potential legal barrier to the enforcement of class waivers in the employment sphere.</p> https://www.seyfarth.com:443/publications/epichr052318 Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins authored an article in HR.com https://www.seyfarth.com:443/publications/epichr052318 Wed, 23 May 2018 00:00:00 -0400 <p> Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins authored a May 23 article in HR.com, &quot;A Class Waiver Can Be A