Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 https://www.seyfarth.com:443/publications/CDL052419 Proposed Amendment to Expand CCPA Private Action Stalls https://www.seyfarth.com:443/publications/CDL052419 Fri, 24 May 2019 00:00:00 -0400 <p> Senate Bill 561, which would have generated even greater compliance challenges and litigation risk for businesses, has been held in committee and placed on suspense. This development effectively prevents the bill from advancing for a vote and is a bit of CCPA good news for businesses. It also serves as a minor setback to consumer privacy interest groups and plaintiff-oriented trial lawyers, who were banking on even more lucrative individual consumer violation claims after January 1, 2020.<br /> <br /> <a href="https://www.carpedatumlaw.com/2019/05/proposed-amendment-to-expand-ccpa-private-action-stalls/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PE052319 Mile-High Expectations for Employers As Colorado Governor Signs Into Law One of Nation’s Toughest Pay Equity Law to Date https://www.seyfarth.com:443/publications/PE052319 Thu, 23 May 2019 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>:<em> Yesterday, May 22, 2019, Colorado Governor Polis signed the &ldquo;<a href="https://leg.colorado.gov/sites/default/files/documents/2019A/bills/2019a_085_enr.pdf">Equal Pay for Equal Work Act</a>&rdquo;&nbsp;which is the latest&mdash;and one of the most demanding&mdash;pay equity laws in the nation.&nbsp; As states race to enact their own pay equity laws, Colorado stands out with its requirement that employers provide all employees simultaneous notification of job opportunities, inclusion of pay scale on all job postings, the addition of a salary history ban, application based on gender identity, liquidated damages for successful claims, and a partial safe harbor provision for employers who conduct pay analyses.&nbsp; The law applies to all employers employing any employees in Colorado and it goes into effect January 1, 2021.&nbsp;</em></p> <p> <strong>Stronger Equal Pay Protections </strong></p> <p> Across the country, states, counties, and even cities have enacted stronger protections for employees in an attempt to ensure equal pay for equal work.&nbsp; (Click <a href="https://www.seyfarth.com/dir_docs/publications/Seyfarth-50StatePayEquityDesktopReference-2019.pdf">here</a> for Seyfarth&rsquo;s 50-State Pay Equity Desktop Reference.)&nbsp; With Governor Polis&rsquo;s signature, Colorado has just enacted one of the toughest pay equity laws to date.&nbsp; <em>See </em>Colo. Rev. Stat. &sect; 8-5-101<em> et seq.</em></p> <p> Colorado&rsquo;s Equal Pay for Equal Work Act borrows strong equal pay protection provisions from other jurisdictions across the country and adds a few new twists that will likely require all employers with employees in Colorado to revisit their recruiting and pay practices.&nbsp;</p> <p> The new law prohibits employers from paying an employee of one sex (or gender identity) a &ldquo;wage rate&rdquo; less than the rate paid to an employee of a different sex (or gender identity) for &ldquo;substantially similar work&rdquo;, when viewed as a composite of skill, effort, and responsibility and regardless of job title, except where the employer demonstrates <em>each</em> of the following:</p> <ul> <li> That the wage differential is based <em>solely</em> on a list of enumerated factors (a seniority system; a merit system; a production-based system; reasonably-related education, training or experience; geography, or travel);</li> <li> That the factors are applied &ldquo;reasonably&rdquo;; and</li> <li> That prior wage rate history was not relied upon to justify the pay disparity</li> </ul> <p> Like the pay equity laws in states like <a href="https://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog052416(1).pdf">Maryland</a>, and <a href="https://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEG_040218(1).pdf">New Jersey</a>, the Colorado Equal Pay for Equal Work Act applies to disparities in pay based on the employee&rsquo;s gender identity, applying a more expansive definition of sex.&nbsp; The statute, however, does not define what constitutes &ldquo;substantially similar work&rdquo; or how factors like skill, effort, and responsibility may be weighed in evaluating whether work is substantially similar.&nbsp;</p> <p> The compensation subject to the Colorado statute is not limited to the employee&rsquo;s hourly compensation or salary. &nbsp;The Colorado statute defines the &ldquo;wage rate&rdquo; broadly to encompass <em>all </em>compensation and benefits received by an employee.</p> <p> The statute&rsquo;s reach is broad too.&nbsp; <em>Any</em> employer who employs <em>a single</em> <em>person</em> in Colorado must comply.&nbsp; Being a small business or company with just a handful of employees in Colorado will not excuse compliance.&nbsp; Conversely, on its face, the statute does not limit &ldquo;employee&rdquo; to only those individuals living and/or working in Colorado.</p> <p> <strong>Pay Scale Must be Posted on All Jobs Listings</strong></p> <p> The biggest change with the Colorado law is that Colorado will become the fouth jurisdiction (following <a href="https://www.calpeculiarities.com/2018/07/19/california-attempts-to-clarify-salary-history-ban-legislation/">California</a>, <a href="https://www.seyfarth.com/publications/MA031919-LE">Cincinnati</a>, and <a href="https://www.seyfarth.com/dir_docs/publications/PEG_051019.pdf">Washington State</a>) to require employers to provide pay scale information during the recruiting process, but the very first state to require that pay scale be posted in <em>all</em> job listings.&nbsp; In other words, employers will now need to widely disseminate pay rates for jobs, which, in turn, will likely lead to public dissemination of pay information.&nbsp;</p> <p> Colorado will also require that promotion opportunities be provided to <em>all current employees </em>on the same calendar day.&nbsp;</p> <p> Per section 8-5-201 of the statute:</p> <ul> <li> An employer shall make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to <em>all</em> current employees on the <em>same calendar day</em> and prior to making a promotion decision</li> <li> An employer shall disclose in each posting for each job opening the hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant</li> </ul> <p> Language in the first section appears to apply specifically to current employees and opportunities for their promotion only, while the language in the second section, referring to the compensation and other benefits available to the &ldquo;hired applicant&rdquo; seems to imply application to external job openings (not just internal promotions).&nbsp; The statute gives rule-making authority to the Colorado Department of Labor and Employment (CDLE) to administer and enforce this rule.&nbsp; Further guidance on the application of the posting requirements will hopefully clarify some of the ambiguity in the statute before the requirements become effective in January 2021.&nbsp; However, in the age of online applicant tracking systems and electronic posting of jobs, this difference, if it exists, is largely practically irrelevant because if the compensation ranges are listed in electronic job listings, this information would be publically available to both internal and external job seekers (and competitors).</p> <p> The statute further requires that an employer keep records of the job descriptions and wage rate history for each employee for the duration of their employment plus two years after the end of employment.&nbsp;</p> <p> Employees may report violations of the posting requirements to the CDLE within one year of learning of the violation.&nbsp; Failure to comply with the posting requirements may result in civil fines of $500 to $10,000 <em>per violation</em>.&nbsp;</p> <p> <strong>Salary History Ban</strong></p> <p> Colorado will also become the tenth state and the eighteenth jurisdiction<a href="#_ftn1" name="_ftnref1" title="">[1]</a> with a salary history ban that applies to applicants for employment with private employers.</p> <p> The Colorado pay equity law specifically prohibits employers from justifying differences in pay by pointing to differences in prior salary and bans employers from collecting that information all together.&nbsp;</p> <p> An employer also may not restrict an employee from disclosing wage rate information.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp; In short, employers may not ask about salaries, but employees are free to discuss that information as they see fit.</p> <p> <strong>Retaliation Prohibition</strong></p> <p> The Colorado law also specifically prohibits retaliation against an employee for invoking the law on behalf of themselves or <em>any person</em>.&nbsp; An employer may not discharge, discipline, discriminate against, or &ldquo;interfere with&rdquo; any person for discussing an employee&rsquo;s wage rate.&nbsp; The statute also protects prospective employees from retaliation for failing to disclose wage history.&nbsp;</p> <p> <strong>Remedies</strong></p> <p> To the courthouse!&nbsp; The new Colorado law allows aggrieved employees to take their pay disparity claims straight to court&mdash;up to two years after a violation of the statute.&nbsp; For purposes of the statute of limitations, a violation of pay discrimination includes each date an employee received disparate pay.</p> <p> Plaintiffs may recover actual economic damages, which may include up to three years<a href="#_ftn3" name="_ftnref3" title="">[3]</a> of back pay, and any other compensation or benefits they would have received.&nbsp; Plus, plaintiffs can recover liquidated damages equal to the economic damages, as well as equitable relief and attorneys&rsquo; fees.&nbsp; By statute, the equitable relief sought may include employment, reinstatement, promotion, or pay increases, in addition to lost wages and liquidated damages.</p> <p> <strong>Limited Safe Harbor</strong></p> <p> Earlier versions of the bill provided for liquidated damages for any violation of the Act.&nbsp; However, subsequent amendments added an exception for &ldquo;good faith.&rdquo;&nbsp; As enacted, a court may not award liquidated damages if the employer &ldquo;demonstrates that the act or omission giving rise to the violation was in good faith&rdquo; and the employer had &ldquo;reasonable grounds&rdquo; for believing that the employer did not violate the Act.&nbsp; While this good faith defense may save an employer from paying liquidated damages, it will not justify pay disparities, nor will it prevent recovery of economic damages or attorneys&rsquo; fees.&nbsp;</p> <p> Colorado also joins <a href="https://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a> and, to a limited extent, <a href="https://www.seyfarth.com/publications/OMM060817-LE2">Oregon</a>, with a safe harbor for employers that have conducted a pay equity audit in the two years prior to the alleged violation: &ldquo;In determining whether the employer&rsquo;s violation was in good faith, the fact finder <em>may</em> consider evidence that within two years prior [to the complaint] . . . the employer completed a thorough and comprehensive pay audit of its workforce, with the specific goal of identifying and remedying unlawful pay disparities.&rdquo;</p> <p> This &ldquo;safe harbor&rdquo; however may not completely shelter employers from the storm: as with the Massachusetts self-evaluation defense, an audit used as a defense to a Colorado state law claim could be used against the employer under federal law, where there is no such defense.&nbsp; Employers must consider these risks carefully when determining whether and how to conduct such audits and disclose their results.&nbsp;</p> <p> <strong>What Should Employers Do?</strong></p> <p> Barring a referendum petition, the law will become effective on January 1, 2021. &nbsp;Employers should review their job applications and other policies and procedures, make any necessary changes, and consider training hiring managers and human resources employees about the amendments. &nbsp;Because of the complex risks associated with implementing changes to comply with the Act, we recommend working closely with legal counsel before making these changes.&nbsp; Employers should also consider whether the current methods for communicating job opportunities to employees permit notifications to all employees in the same calendar day as required by the new provisions of the statute, and adjust those procedures if necessary.&nbsp; In addition, employers should consider whether to conduct a comprehensive pay audit in line with the statute&rsquo;s safe harbor provision to ensure that it has identified, and remedied, any unintentional or unlawful pay disparities.&nbsp;</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Ten states (California, Connecticut, Delaware, Hawaii, Maine, Massachusetts, Oregon, Vermont, Washington and now Colorado), seven cities or counties (San Francisco, CA, New York City, NY, Albany County, NY, Suffolk County, NY, Westchester County, NY, Cincinnati, OH, and Philadelphia, PA) and one Territory (Puerto Rico) have passed salary history bans.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> &sect; 8-5-102.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> &sect; 8-5-103(3).</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL052319 Holy Smoke! Health Care Employers Must Abate Surgical Smoke Hazards in the Operating Room https://www.seyfarth.com:443/publications/EL052319 Thu, 23 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Smoke produced during surgical procedures is carcinogenic and can carry pathogens. Employers who fail to abate surgical smoke hazards may face liability from employee injuries and OSHA citations.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/05/holy-smoke-health-care-employers-must-abate-surgical-smoke-hazards-in-the-operating-room/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT052319 The Week in Weed: May 24, 2019 https://www.seyfarth.com:443/publications/TBT052319 Thu, 23 May 2019 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/2019/05/the-week-in-weed-may-24-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE052219 Holy Smoke! Health Care Employers Must Abate Surgical Smoke Hazards in the Operating Room https://www.seyfarth.com:443/publications/WSE052219 Wed, 22 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Smoke produced during surgical procedures is carcinogenic and can carry pathogens. Employers who fail to abate surgical smoke hazards may face liability from employee injuries and OSHA citations.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/healthcare/holy-smoke-health-care-employers-must-abate-surgical-smoke-hazards-in-the-operating-room/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/babsonbloomberglaw052219 Marshall Babson quoted in Bloomberg Law https://www.seyfarth.com:443/news/babsonbloomberglaw052219 Wed, 22 May 2019 00:00:00 -0400 <p> Marshall Babson was quoted in a May 22 story from Bloomberg Law, &quot;NLRB Moves Quietly to Reverse Pro-Worker Arbitration Rule.&quot; Babson said that the idea that the parties agree to arbitration but the board can come in after a decision is reached by an arbitrator and second-guess it as inconsistent with the statute is a total misunderstanding.</p> https://www.seyfarth.com:443/news/curtisbi052219 James Curtis quoted in Business Insurance https://www.seyfarth.com:443/news/curtisbi052219 Wed, 22 May 2019 00:00:00 -0400 <p> James Curtis was quoted in a May 22 story from Business Insurance, &quot;Employer hopes for OSHA alliance dashed as nominee withdraws.&quot; Curtis said that he doesn&rsquo;t think there will be a head of OSHA under the Trump administration unless he wins reelection and he gets another four-year term. You can read the <a href="https://www.businessinsurance.com/article/20190522/NEWS08/912328588/Employer-hopes-for-OSHA-alliance-dashed-as-nominee-withdraws">full article here</a>.</p> https://www.seyfarth.com:443/news/maatmanlaw360052119 Gerald Maatman quoted in Law360 https://www.seyfarth.com:443/news/maatmanlaw360052119 Tue, 21 May 2019 00:00:00 -0400 <p> Gerald Maatman was quoted in a May 21 story from Law360, &quot;An Epic Year? High Court&#39;s Class Waiver Ruling Turns 1.&quot; Maatman said that in the wake of Epic Systems, he thinks a lot of people thought it would be advantageous for companies to adopt workplace arbitration agreements on an immediate basis in the summer of 2018. Now, he said, it&#39;s slowed down.</p> https://www.seyfarth.com:443/news/maatmanbi052119 Gerald Maatman quoted in Business Insurance https://www.seyfarth.com:443/news/maatmanbi052119 Tue, 21 May 2019 00:00:00 -0400 <p> Gerald Maatman was quoted in a May 21 story from Business Insurance, &quot;Short window seen for EEOC policy changes.&quot; Maatman said that, with the quorum expected to last a relatively short period of time, he would expect that employers will see some significant dispatching of business in the next 30 to 60 days. You can read the <a href="https://www.businessinsurance.com/article/20190521/NEWS06/912328550/Short-window-seen-for-EEOC-policy-changes">full article here</a>.</p> https://www.seyfarth.com:443/news/rodriguezquartz052119 Leon Rodriguez quoted in Quartz https://www.seyfarth.com:443/news/rodriguezquartz052119 Tue, 21 May 2019 00:00:00 -0400 <p> Leon Rodriguez was quoted in a May 21 story from Quartz, &quot;What does Trump&rsquo;s &ldquo;merit-based&rdquo; immigration plan mean for Indians?&quot; Rodriguez said that it is entirely possible that the new system renders ineligible large numbers of people who are eligible under the current system. You can read the <a href="https://qz.com/india/1622593/beyond-h-1b-visa-will-trumps-new-immigration-plan-help-indians/">full article here</a>.</p> https://www.seyfarth.com:443/news/finkellaw360052119 Noah Finkel quoted in Law360 https://www.seyfarth.com:443/news/finkellaw360052119 Tue, 21 May 2019 00:00:00 -0400 <p> Noah Finkel was quoted in a May 21 story from Law360, &quot;Insiders Look Back At Epic Systems&#39; Rise To The High Court.&quot;</p> https://www.seyfarth.com:443/publications/OMM052119-LIT Licensees Can Use Trademarks Despite Licensor’s Rejection of License in Bankruptcy https://www.seyfarth.com:443/publications/OMM052119-LIT Tue, 21 May 2019 00:00:00 -0400 <div> The U.S. Supreme Court decided yesterday to uphold a licensee&rsquo;s right to continue using trademarks despite the bankrupt licensor&rsquo;s rejection of the underlying license agreement.&nbsp; As a result, bankrupt brand owners cannot use bankruptcy law to unilaterally revoke a trademark license.&nbsp; In <em>Mission Product Holdings, Inc. v. Tempnology, LLC, n/k/a Old Cold LLC</em>, the Supreme Court, settling a conflict among the circuits, reversed a decision of the First Circuit Court of Appeals and embraced the reasoning of the Seventh Circuit, which permits a licensee of trademarks to retain its use of the marks even if the licensor rejects the license in bankruptcy.</div> <div> &nbsp;</div> <div> The Court&rsquo;s ruling addresses a long-standing dispute over the trademark issue.&nbsp; Among the powers enjoyed by a debtor in bankruptcy is the ability to &ldquo;reject&rdquo; burdensome contracts.&nbsp; When a debtor rejects a burdensome contract, the debtor does not have to perform the contract.&nbsp; &ldquo;Rejection&rdquo; is deemed by statute as a &ldquo;breach&rdquo; of the contract immediately before the filing.&nbsp; This leaves the licensee with a bankruptcy claim that typically is unpaid, or hardly paid at all.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> But what about the licensee&rsquo;s right to continue to use the trademark?&nbsp; The Supreme Court ruled that the deemed breach of a license agreement caused by a rejection is not the equivalent of a rescission, which would take away the licensee&rsquo;s rights.&nbsp; Looking to the effect of a breach of a license agreement under state law, the Supreme Court held that a mere breach by the licensor does not deprive the licensee of use of the mark through the term of the license.&nbsp;</div> <div> &nbsp;</div> <div> The Supreme Court rejected decisions which deprive the licensee of continued use of the mark.&nbsp; Those decisions recognized that Congress created a statutory exception permitting licensees to continue to use &ldquo;intellectual property&rdquo; after a rejection, but refused to apply this carve-out to trademarks because trademarks were not included in the definition of &ldquo;intellectual property.&rdquo;&nbsp; It also rejected the policy argument that a debtor should be permitted to shed all of its obligations, including its obligation to monitor and defend the mark.&nbsp;</div> <div> &nbsp;</div> <div> Instead, the Supreme Court followed the statute, which treats rejection as a breach, permitting the licensee to continue using trademarks.</div> https://www.seyfarth.com:443/publications/TBT052119 Illinois Marijuana Legislation Update: Senate Bill Would Protect Employers’ Rights https://www.seyfarth.com:443/publications/TBT052119 Tue, 21 May 2019 00:00:00 -0400 <p> The Illinois General Assembly has been working on a marijuana legalization bill this session. The Senate Bill would protect employer rights to ban marijuana and discipline employees for use.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/05/illinois-marijuana-legislation-update-senate-bill-would-protect-employers-rights/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL052119 How Employers Can Use Regression Analyses In Their Favor In Pay Equity Cases https://www.seyfarth.com:443/publications/EL052119 Tue, 21 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Employers cannot ignore the recent amendments to state and local pay equity laws and increased attention on equal pay issues. Pay equity claims raise unique challenges, including the prevalence of statistical evidence and multi-jurisdictional compliance. This article addresses the advantages of conducting a pay audit and how the analysis, particularly a regression analysis, may be helpful to employers in litigation. It also discusses how an employer may use a plaintiff&rsquo;s expert analysis to undermine the plaintiff&rsquo;s own claim, as the Fourth Circuit addressed in a recent opinion.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/05/how-employers-can-use-regression-analyses-in-their-favor-in-pay-equity-cases/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ERISA052119 Out Of Network Provider’s Claim Against Health Insurer Avoids ERISA Preemption https://www.seyfarth.com:443/publications/ERISA052119 Tue, 21 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: A provider that is not seeking benefits based upon an assignment of a patient&rsquo;s claims under ERISA but instead is pursuing state law claims based solely on agreements and representations made directly by the insurer to the provider may survive attempts to remove the case on grounds of ERISA complete preemption.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2019/05/21/out-of-network-providers-claim-against-health-insurer-avoids-erisa-preemption/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TipsonAvoidingWageandHourLawsuitsinMassachusetts-Tip4 Tips on Avoiding Wage & Hour Lawsuits in Massachusetts https://www.seyfarth.com:443/publications/TipsonAvoidingWageandHourLawsuitsinMassachusetts-Tip4 Mon, 20 May 2019 00:00:00 -0400 <p> <strong><em>Tip #4: Review Independent Contractor Relationships</em></strong><br /> <br /> Among the most common types of wage and hour lawsuits in Massachusetts are independent contractor misclassification suits. These actions arise when an individual who provides a service claims that: (1) he or she was misclassified as an independent contractor, even though under the law he or she was required to be treated as an employee; and (2) as a result of the misclassification, he or she was deprived of some valuable aspect of employee status. These suits are popular with plaintiffs&rsquo; lawyers because...<a href="http://marketing.seyfarth.com/rs/emsdocuments/AMAPecs_Tip4.pdf" target="_top">Continue Reading Here</a></p> <p> <strong><em>Massachusetts Peculiarities, 4th Edition</em></strong></p> <p> <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=dnqetb1YFtQe0dDz-naQ4VgpmEB-rpCgb0lQzvgpg471rCOaTF3ORXtxB1WWkxLd&amp;RS_REFERRSID=dnqetb1YFtQe0dDz-naQ4QTVJWcvmMbWduQ45r6ZGUg&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=dnqetb1YFtQe0dDz-naQ4QTVJWcvmMbWduQ45r6ZGUg" target="_blank"><img alt="http://marketing.seyfarth.com/reaction/images/buttons/Reserve_Your_Copy-MAPecs.jpg" border="0" height="130" id="_x0000_i1025" src="http://marketing.seyfarth.com/reaction/images/buttons/Reserve_Your_Copy-MAPecs.jpg" style="height:1.354in;width:2.5in;" width="240" /></a></p> <p> For&nbsp;<strong><em>Tip #1: Consider An Arbitration Agreement&mdash;With A Class Action Waiver</em></strong><em>,</em>&nbsp;<a href="https://www.seyfarth.com/dir_docs/publications/MAPecs_Tip1_022119.pdf" target="_blank">click here</a><em>.</em><br /> <br /> For&nbsp;<strong><em>Tip #2: Consider Conducting a Pay Equity Audit</em></strong><em>,&nbsp;</em><a href="https://www.seyfarth.com/dir_docs/publications/MAPecs_Tip2_031219.pdf" target="_blank">click here</a><em>.</em><br /> <br /> For <strong><em>Tip #3: Conduct an Off-the-Clock Work Audit</em></strong><em>, </em><a href="http://marketing.seyfarth.com/rs/emsdocuments/AMAPecs_Tip3_041619.pdf" target="_blank">click here</a>.</p> <p> Learn more about our&nbsp;<a href="https://www.seyfarth.com/Wage-Hour-Litigation" target="_blank">Wage &amp; Hour Litigation Practice Group</a>&nbsp;and subscribe to our&nbsp;<a href="https://www.wagehourlitigation.com/" target="_blank">Wage &amp; Hour Litigation Blog</a>.</p> https://www.seyfarth.com:443/publications/ADA052019 New York Lawmakers Plan To Address Website Accessibility https://www.seyfarth.com:443/publications/ADA052019 Mon, 20 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: A Committee in the New York State Senate aims to develop a legal standard for the accessibility of business websites under New York law, in response to the exponential increase in website accessibility litigation in the state. Whether state legislation could stem this tide, or instead make matters worse for businesses, remains to be seen.<br /> <br /> <a href="https://www.adatitleiii.com/2019/05/new-york-lawmakers-plan-to-address-website-accessibility/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/weibustfinops052019 Erik Weibust quoted in FinOps Report https://www.seyfarth.com:443/news/weibustfinops052019 Mon, 20 May 2019 00:00:00 -0400 <p> Erik Weibust was quoted in a May 20 story from FinOps Report, &quot;SS&amp;C&rsquo;s Win of Trade Secrets Suit Highlights Hiring Risks.&quot; Weibust said that the prospective employee&rsquo;s offer letter and/or any employment or restrictive covenant agreement should state clearly that the hiring company does not want, does not need, and will not accept trade secrets from the prior firm, and that any use or disclosure thereof will be grounds for termination. You can read the <a href="https://finopsinfo.com/regulations/sscs-win-of-trade-secrets-suit-highlights-hiring-risks/">full article here</a>.</p> https://www.seyfarth.com:443/news/rodriguezshrm051719 Leon Rodriguez quoted in SHRM https://www.seyfarth.com:443/news/rodriguezshrm051719 Fri, 17 May 2019 00:00:00 -0400 <p> Leon Rodriguez was quoted in a May 17 story from SHRM, &quot;Trump Introduces New Immigration Plan.&quot; Rodriguez said that the absence of any discussion of DACA dooms the proposal&#39;s chances of enactment in the House of Representatives. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/immigration-reform-green-cards.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/meierrefi051719 Steven Meier quoted in Real Estate Fund Intelligence https://www.seyfarth.com:443/news/meierrefi051719 Fri, 17 May 2019 00:00:00 -0400 <p> Steven Meier was quoted in a May 17 story from Real Estate Fund Intelligence, &quot;Analysis: New OZ Guidelines Clarify Fund Structuring Capital Deployment.&quot; Meier said that the time pressure has been taken off these funds and he thinks overall that&rsquo;s been a favorable development.</p> https://www.seyfarth.com:443/news/btibrand051619 Seyfarth Named Among Best-Branded Law Firms by BTI Brand Elite https://www.seyfarth.com:443/news/btibrand051619 Thu, 16 May 2019 00:00:00 -0400 <p> CHICAGO (May 16, 2019) -- Seyfarth Shaw LLP ranks as the No. 15 best-branded law firm by corporate counsel, according to the <em>BTI Brand Elite</em> <em>2019</em> report released today. This places Seyfarth among the top 5% of all law firms serving large, corporate clients.</p> <p> <em>BTI Brand Elite 2019</em> ranks the law firms with the most effective brands among nearly 700 general counsel and legal decision makers, who offered unprompted feedback regarding the industry&rsquo;s top law firms.</p> <p> As part of the <em>BTI Brand Elite 2019</em>, Seyfarth ranks among the top-tier group of 28 law firms which enjoy the most powerful brands in the world. Highlighting Seyfarth&rsquo;s unique strengths in the market, <em>BTI</em> proclaimed:</p> <p style="margin-left: 40px;"> <em>&ldquo;Known as innovators, the firm earned Best of the Best distinction this year for using technology more effectively&mdash;and in new ways&mdash;to add value to the client experience. Additionally, corporate counsel see Seyfarth Shaw as Leaders in delivering new and valuable services in ways others do not&mdash;setting them apart as true Movers &amp; Shakers.&rdquo; </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/tymanshrm051619 Annette Tyman quoted in SHRM https://www.seyfarth.com:443/news/tymanshrm051619 Thu, 16 May 2019 00:00:00 -0400 <p> Annette Tyman was quoted in a May 16 story from SHRM, &quot;Employers: Don&rsquo;t Forget that Some EEO-1 Data Are Still Due May 31.&quot; Tyman said that in light of the upcoming Component 2 filing requirements, employers may want to consider using the last payroll period of 2018 for the Component 1 snapshot that is due May 31. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Some-EEO-1-Data-Still-Due-May-31.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/weisswgn051619 Philippe Weiss interviewed on WGN Radio https://www.seyfarth.com:443/news/weisswgn051619 Thu, 16 May 2019 00:00:00 -0400 <p> Philippe Weiss was interviewed May 16th on WGN Radio, &quot;Wintrust Business Lunch 5/16/19: Handshake Deals.&quot; Weiss reanalyzed the age-old ways of building business deals off a handshake. You can listen to the full interview at minute 12:36 <a href="https://wgnradio.com/2019/05/16/wintrust-business-lunch-5-16-19-the-breaking-point-with-facebook-handshake-deals-uber-in-the-post-office/">here</a>.</p> https://www.seyfarth.com:443/news/erisalaw360051619 Ian Morrison and Kathleen Cahill Slaught featured in Law360 https://www.seyfarth.com:443/news/erisalaw360051619 Thu, 16 May 2019 00:00:00 -0400 <p> Ian Morrison and Kathleen Cahill Slaught were featured in a May 16 story from Law360, &quot;Eye On ERISA: A Chat With Seyfarth&#39;s Practice Chairs.&quot;</p> https://www.seyfarth.com:443/publications/RS051619-LE Regulatory Spring: Rulemaking by the Wage & Hour Division - May 16, 2019 https://www.seyfarth.com:443/publications/RS051619-LE Thu, 16 May 2019 00:00:00 -0400 <p style="margin-bottom:12.0pt;line-height:120%"> <strong><span style="font-family:&quot;Arial&quot;,sans-serif;color:black">Part 2 of Our Request for Feedback on the DOL&rsquo;s Proposed Regular Rate Rule</span></strong><br /> <br /> <span style="font-family:&quot;Arial&quot;,sans-serif;color:black">In last week&rsquo;s installment of <em>Regulatory Spring</em>, we provided a first round of survey questions to seek your feedback on the DOL&rsquo;s proposed rule concerning the overtime rate of pay, more formally known as the &ldquo;regular rate.&rdquo; We build on that effort this week by providing a second and final round of survey questions regarding the regular rate. Your feedback will enhance our ability to provide the DOL with the most meaningful and insightful feedback possible regarding its proposed rule. To that end, we invite you to take a few minutes to complete the <a href="https://www.surveymonkey.com/r/W8J6MSN">second portion of our regular rate survey questions</a>.</span></p> https://www.seyfarth.com:443/publications/bartlettabajournal051619 Brett Bartlett authored an article in the ABA Journal https://www.seyfarth.com:443/publications/bartlettabajournal051619 Thu, 16 May 2019 00:00:00 -0400 <p> Brett Bartlett authored a May 16 article in the ABA Journal, &quot;How to shift from bad to good stress and protect innovation in law practice.&quot; You can read the <a href="http://www.abajournal.com/voice/article/shifting-from-bad-to-good-stress-how-to-protect-innovation-in-the-practice-of-law">full article here</a>.</p> https://www.seyfarth.com:443/publications/EL051619 Setting the Stage – Myths and Misunderstandings of Modern Slavery and Business https://www.seyfarth.com:443/publications/EL051619 Thu, 16 May 2019 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.laborandemploymentlawcounsel.com/2019/05/setting-the-stage-myths-and-misunderstandings-of-modern-slavery-and-business/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE051619 Illinois Marijuana Legislation Update: Senate Bill Would Protect Employers’ Rights https://www.seyfarth.com:443/publications/WSE051619 Thu, 16 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The Illinois General Assembly has been working on a marijuana legalization bill this session. The Senate Bill would protect employer rights to ban marijuana and discipline employees for use.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/illinois/illinois-marijuana-legislation-update-senate-bill-would-protect-employers-rights/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM051619 Immigration Haunting: Social Security Administration Resumes Issuing No-Match Notices https://www.seyfarth.com:443/publications/IMM051619 Thu, 16 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The Social Security Administration has once again resumed issuing No-Match notices to employers. The notices alert businesses that SSA has identified data discrepancies between the agency&rsquo;s records and employer-provided data submitted for payroll tax reporting to the IRS. Issuance of the notice triggers a duty upon employers to take action. While a No-Match notice may involve an innocent clerical mistake or an unreported name change, it could also offer a clue suggesting that workers named in the notice may lack the right to work in the United States. This blog outlines the risks and the measures prudent employers should take to comply with SSA requirements while avoiding the knowing employment of unauthorized workers and the risk of unlawful discrimination under the immigration laws.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2019/05/immigration-haunting-social-security-administration-resumes-issuing-no-match-notices/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT051619 The Week in Weed: May 17, 2019 https://www.seyfarth.com:443/publications/TBT051619 Thu, 16 May 2019 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/2019/05/the-week-in-weed-may-17-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM051619-LE Seyfarth Shaw Policy Matters Newsletter - May 16, 2019 https://www.seyfarth.com:443/publications/PM051619-LE Thu, 16 May 2019 00:00:00 -0400 <p> <span style="color:#696969;"><strong>Arbitration Under Attack in the House.</strong>&nbsp; Today, the House Judiciary Committee&rsquo;s Subcommittee on Antitrust, Commercial and Administrative Law held a </span><a href="https://judiciary.house.gov/legislation/hearings/justice-denied-forced-arbitration-and-erosion-our-legal-system"><span style="color:#0099ff;">hearing</span></a><span style="color:#696969;"> titled &ldquo;Justice Denied:&nbsp;Forced Arbitration and the Erosion of our Legal System.&rdquo;&nbsp; The hearing focused on whether predispute binding agreements were really voluntary, their effects on employees and consumers and the advantages and disadvantages of arbitration vs. the court system.&nbsp; With witness Gretchen Carlson (formerly of Fox News) laying the ground work, there was also much discussion on the effects of non-disclosure requirements.&nbsp; Representatives Nadler and Scott, chairs of the House Judiciary and Education and Labor Committees, respectively, also </span><a href="https://nadler.house.gov/news/documentsingle.aspx?DocumentID=393926"><span style="color:#0099ff;">reintroduced</span></a><span style="color:#696969;"> the &ldquo;Restoring Justice for Workers Act,&rdquo; which would prohibit the use of predispute arbitration clauses in employment contracts (not limited to sexual harassment) and prohibit employers from requiring employees to waive the right to engage in joint class or collective legal action. &nbsp;It would also impose certain requirements on post-dispute arbitration agreements. &nbsp;The Act would be enforced through civil action, with remedies similar to those under Title VII of the 1964 Civil Rights Act.&nbsp; Sen. Murray, Ranking Member of the Senate HELP Committee, introduced parallel legislation in the Senate.</span></p> <p> <span style="color:#696969;"><strong>Immigration Reform Back in the Limelight. </strong>&nbsp;Today, the President announced principles for immigration reform centered on the theme that the current system should be restructured to favor immigrants with higher skills over family-based immigration.&nbsp; The announcement did not include relief for DACA recipients or address the controversial question of how to handle the approximately 12 million undocumented immigrants already in the country.&nbsp; Under the announced plan, a point system would be assigned to evaluate immigrants and their skill levels, with extra points being given to those who have demonstrated some affinity to the country&rsquo;s values (for example, demonstrated English proficiency and civics knowledge).&nbsp; Family immigration apparently would be significantly cut, but the overall levels of immigration would remain approximately the same.&nbsp; The concept of points for skills is not a new one and was contained in the 2008 legislation which overwhelmingly passed the Senate; the President&#39;s initiative, however, takes a different approach on how this concept is interrelated with family-based immigration and other issues. &nbsp;At best, this proposal is a starting point for continued debate on this intractable issue.</span></p> <p> <span style="color:#696969;"><strong>DOL Staffing News. </strong>&nbsp;This week saw some big developments in the ongoing saga of high-level vacancies at the Department.&nbsp; First, Secretary Acosta&rsquo;s Chief of Staff, Nick Geale, announced that he will be moving on at the end of the month.&nbsp; Fresh on the heels of that announcement, the nominee for OSHA Assistant Secretary Scott Mugno (formerly of FedEx) withdrew his name from consideration for the position after his nomination had been pending in the Senate for nearly two years.</span></p> <p> <span style="color:#696969;"><strong>DOL Regulatory Comment Deadlines Extended.</strong>&nbsp; With three rulemakings in full swing, the Department has decided to grant some relief to those preparing comments.&nbsp; The proposals on </span><a href="https://www.dol.gov/whd/overtime/regularrate2019.htm"><span style="color:#0099ff;">regular rate</span></a><span style="color:#696969;"> and</span><span style="color:#0099ff;"> </span><a href="https://www.dol.gov/whd/flsa/jointemployment2019/index.htm"><span style="color:#0099ff;">joint employment </span></a><span style="color:#696969;">under the FLSA have had their comment periods extended to June 12 and June 25, respectively.&nbsp; Comments to the regulatory proposal addressing the </span><a href="https://www.dol.gov/whd/overtime2019/index.htm"><span style="color:#0099ff;">salary threshold</span></a><span style="color:#696969;"> for FLSA exempt status remain due on May 21.<br /> <br /> <strong>Non-Competes Dealt a Blow in the &ldquo;Other&rdquo; Washington.</strong>&nbsp; Washington state has joined the ranks of an ever-growing number of states that impose significant restrictions on employee non-compete agreements.&nbsp; The law will go into effect on January 1, 2020.&nbsp; For more, see Seyfarth&rsquo;s </span><a href="https://www.seyfarth.com/publications/OMM051519-LIT"><span style="color:#0099ff;">Client Alert</span></a><span style="color:#696969;">.<br /> &nbsp;<br /> <strong>. . . As Were Questions About Salary History.</strong>&nbsp; Last week, Washington Governor Inslee signed the &ldquo;Washington Equal Pay and Opportunities Act,&rdquo; which bans employers from asking about prior salary and will require employers to provide pay scale or wage information to both applicants and internal employees, if requested.&nbsp; The law applies to all employers with at least 15 employees and it goes into effect in July 2019.&nbsp; See Seyfarth&rsquo;s </span><a href="https://www.seyfarth.com/publications/MA051019-LE"><span style="color:#0099ff;">Client Alert</span></a><span style="color:#696969;"> for more.</span></p> <p> <span style="color: rgb(105, 105, 105);">To subscribe to the Policy Matters weekly newsletter, </span><a class="cms-content-links" href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy"><span style="color: rgb(0, 153, 255);">click here</span></a><span style="color: rgb(105, 105, 105);">.</span></p> https://www.seyfarth.com:443/publications/CP051519 Home Sweet Home Office: Considerations With Remote Employees https://www.seyfarth.com:443/publications/CP051519 Wed, 15 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Although the concept of working remotely may seem simple, employers must consider several issues before allowing employees to work from home.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/05/15/home-sweet-home-office-considerations-with-remote-employees/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS051519 No silver bullet for wages growth, but there are solutions https://www.seyfarth.com:443/publications/WLS051519 Wed, 15 May 2019 00:00:00 -0400 <p> The Labor Party has described this election as &ldquo;A referendum on wages&rdquo;. The Australian Council of Trade Unions, under its &ldquo;Change the Rules&rdquo; campaign, argues that the workplace relations system is biased in favour of employers&rsquo; who are choosing to keep wages low and taking this labour share in the form of corporate profits. The solution, we are told, is further regulation and to increase union rights and bargaining power so that unions can extract better wage deals.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2019/05/no-silver-bullet-for-wages-growth/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM051519-LE Ninth Circuit Weighs In on Calculating the FCRA’s Seven-Year Reporting Rule https://www.seyfarth.com:443/publications/OMM051519-LE Wed, 15 May 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>On May 14, 2019, the Ninth Circuit Court of Appeals added to the ongoing line of decisions in the Moran v. The Screening Pros saga, holding that under the Fair Credit Reporting Act&rsquo;s rule prohibiting consumer reporting agencies from reporting any &ldquo;record of arrest&rdquo; older than seven years, the measuring period for a criminal charge runs from the date of entry rather than the date of disposition.</em></div> <div> &nbsp;</div> <div> <strong>Background</strong></div> <div> &nbsp;</div> <div> The Fair Credit Reporting Act (&ldquo;FCRA&rdquo;) contains an entire section devoted to the time periods for which certain information may be included in a background check report. Specifically, consumer reporting agencies are prohibited from including, among other things, the following in a consumer report: &ldquo;Civil suits, civil judgments, and records of arrest that, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period.&rdquo; It also has a catch-all that prohibits consumer reporting agencies from reporting: &ldquo;Any other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.&rdquo; At issue in <em>Moran </em>was the appropriate measuring period for reporting certain criminal records that did not result in a conviction.</div> <div> &nbsp;</div> <div> <strong>Facts</strong></div> <div> &nbsp;</div> <div> The plaintiff sued the consumer reporting agency for issuing a tenant screening background check report on him that contained his criminal history in violation of the California Investigative Consumer Reporting Agencies Act (&ldquo;ICRAA&rdquo;). The February 2010 report disclosed four criminal matters in the plaintiff&rsquo;s background: a May 16, 2000, misdemeanor charge for being under the influence of a controlled substance (2000 Charge), dismissed on March 2, 2004; two June 2006 charges for burglary and forgery, dismissed that same month; and a June 2006 conviction for misdemeanor embezzlement from an elder dependent adult.</div> <div> &nbsp;</div> <div> The consumer reporting agency moved to dismiss, arguing that the ICRAA was unconstitutionally vague as to criminal history information, leaving persons of reasonable intelligence unable to tell whether that information is &ldquo;character&rdquo; information that the ICRAA governs or &ldquo;creditworthiness&rdquo; information that the California Consumer Reporting Agencies Act (&ldquo;CCRAA&rdquo;) governs. This distinction matters because the ICRAA imposes stricter duties and more severe penalties&mdash;such as the option to seek $10,000 in statutory damages in lieu of damages. The case was stayed pending resolution of <em>Connor v. First Student Inc.</em>, a case in California state courts that considered the overlap and constitutionality of the ICRAA and the CCRAA. Ultimately, in <em>Connor</em>, the California Supreme Court 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;</div> <div> &nbsp;</div> <div> In <em>Moran</em>, the Ninth Circuit was asked to consider the constitutionality of the ICRAA and the CCRAA, and concluded that the <em>Connor </em>decision had resolved the issue and, thus, reversed the district court&rsquo;s decision to dismiss the plaintiff&rsquo;s complaint on that basis. However, the Ninth Circuit was also asked to consider whether the consumer reporting agency violated the FCRA&rsquo;s seven-year rule with respect to the criminal history information included in the plaintiff&rsquo;s report.</div> <div> &nbsp;</div> <div> The district court had dismissed the plaintiff&rsquo;s claim that the consumer reporting agency violated the seven-year rule based on the court&rsquo;s determination that the reporting period for a criminal charge begins on the &ldquo;date of disposition&rdquo; instead of the date of entry. After an exhaustive review of the legislative history and the positions of federal agencies, such as the Federal Trade Commission, the Ninth Circuit disagreed and concluded that the reporting period for a criminal case begins on the date of entry, not the date of disposition. It went further and held that, &ldquo;the dismissal of a charge does not constitute an adverse item and may not be reported after the reporting window for the charge has ended.&rdquo; This meant that the consumer reporting agency in <em>Moran </em>arguably violated the FCRA by reporting the 2000 charge in the plaintiff&rsquo;s report because the date of entry for that record was ten years older than the date of the report. The Ninth Circuit remanded the case to the district court for further proceedings in line with its opinion.</div> <div> &nbsp;</div> <div> <strong>Implications</strong></div> <div> &nbsp;</div> <div> Given this new decision, consumer reporting agencies/background screening companies should evaluate their reporting procedures and processes especially as it relates to non-conviction records. While the Ninth&rsquo;s Circuit reasoning was supported in the earlier amicus briefs filed by the Federal Trade Commission and the Consumer Financial Protection Bureau, there is at least for the time being a definitive statement on what can be reported.&nbsp; Employers should also be aware that given this new opinion, they may not receive non-conviction information on consumer reports where a charge was entered more than seven years from the date of the report.</div> https://www.seyfarth.com:443/publications/OMM051519-LIT Washington State Governor Signs Law Severely Limiting Non-Competes https://www.seyfarth.com:443/publications/OMM051519-LIT Wed, 15 May 2019 00:00:00 -0400 <div> Washington state has joined the ranks of an ever-growing number of states that impose significant restrictions on employee non-compete agreements. On May 9, 2019, Governor Jay Inslee signed <a href="http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/House%20Passed%20Legislature/1450-S.PL.pdf#page=1" target="_blank">House Bill 1450</a>, titled &ldquo;An Act Relating to restraints, including noncompetition covenants, on persons engaging in lawful professions, trades, or businesses,&rdquo; into law. The Act will go into effect on January 1, 2020. We <a href="https://www.tradesecretslaw.com/2019/03/articles/noncompete-enforceability/washington-state-lawmakers-seek-to-partially-ban-non-competes/" target="_blank">reported</a> on the bill in detail in March.</div> <div> &nbsp;</div> <div> This change to Washington law is significant. Businesses with employees or independent contractors in the state should revisit their non-compete agreements and take the necessary steps to ensure compliance with the Act by the end of this year. Some key features:&nbsp;</div> <div> &nbsp;</div> <ul> <li> The Act defines &ldquo;noncompetition covenant&rdquo; as &ldquo;every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind&rdquo; and does not include, among others, non-competes arising out of the sale of a business, non-solicitation agreements, confidentiality agreements, and covenants prohibiting the use or disclosure of trade secrets. The express exclusion of non-solicitation agreements distinguishes the law from more restrictive states like California.</li> <li> Non-competes are unenforceable against employees earning $100,000 a year or less and independent contractors earning $250,000 a year or less from the company seeking enforcement. Moreover, this threshold is adjusted annually for inflation, resulting in a moving target for employers and employees alike. For example, an employee making $100,001 when the law goes into effect may be subject to a binding, enforceable non-compete&mdash;but if his or her compensation does not keep pace with the cost of inflation, it would be unenforceable. Then, if the employee got a raise that brought his or her compensation equal to or greater than the cost of inflation increase, the non-compete would again be enforceable.</li> <li> Adding to the confusion, the Act defines earnings as &ldquo;the compensation reflected on box one of the employee&rsquo;s . . . form W-2 that is paid to an employee over the prior year, or portion thereof for which the employee was employed, annualized and calculated as of the earlier of the date enforcement of the noncompetition covenant is sought or the date of separation from employment&rdquo; or, for independent contractors, payments reported on internal revenue service form 1099-MISC. The reference to box 1 of the employee&rsquo;s W-2 reveals that employers will need to determine an employee&rsquo;s wages after adjusting gross pay based on deductions for 401k, medical flexible spending accounts, and other relevant deductions. This could result in a bizarre scenario where an employee who maxes out his or her retirement account could be under the $100,000 threshold, resulting in unenforceability of the non-compete, whereas an employee with the same exact job and who makes the same exact base salary&mdash;but does not fully fund a retirement account&mdash;earns more than the threshold, and thus his or her agreement is enforceable.</li> <li> The Act contains a notice provision, whereby the employer must disclose the terms of the non-compete in writing to new employees &ldquo;no later than the time of the acceptance of the offer of employments.&rdquo; It further provides that &ldquo;if the agreement only becomes enforceable only at a later date due to changes in the employee&rsquo;s compensation,&rdquo; (say, if an employee was hired at a salary of $100,000 or less but later got a raise that increased his or her salary over the $100,000 benchmark), the employer must &ldquo;specifically disclose[] that the agreement may be enforceable against the employee in the future.&rdquo; This provision appears to allow employers to require their employees making $100,000 or less to sign non-competes, provided that the agreements specify that the non-compete provision will not be enforceable unless and until the employee&rsquo;s compensation meets the threshold earnings. Needless to say, this is likely to result in confusion, especially with employees who don&rsquo;t believe their agreements will be enforced but who ultimately meet the $100,000 threshold at a later date. The law does not appear to require any advance notice to existing employees asked to sign a non-compete, nor does it include a notice provision for independent contractors.</li> <li> For existing employees who are asked to sign a non-compete, the employer must provide consideration above and beyond continued employment.</li> <li> Non-competes are not be enforceable against laid off employees, unless enforcement includes compensation for the entirety of the non-compete period; this compensation must be equivalent to the employee&rsquo;s base salary at the time of termination, less any compensation that the employee earns through subsequent employment during the period when the non-compete is in effect.</li> <li> The Act creates a rebuttable presumption that non-compete clauses binding employees for more than 18 months post-termination are &ldquo;unreasonable and unenforceable.&rdquo; Employers seeking to rebut the presumption need to provide &ldquo;clear and convincing evidence&rdquo; that a restriction exceeding 18 months is necessary to protect its &ldquo;business or goodwill.&rdquo; This presumption does not appear to apply to independent contractors. (Oddly specific, but notable for those in the performing arts: the maximum permissible duration for a non-compete between &ldquo;a performer and a performance space, or a third party scheduling the performer for a performance space,&rdquo; is three calendar days.)</li> <li> Under the Act, Washington-based employees or independent contractors could not be required to litigate the non-compete provision outside of Washington, nor is it permissible for a clause to &ldquo;deprive[] the employee or independent contractor of the protections or benefits of&rdquo; the bill&mdash;including, presumably, if the agreement includes a choice of law that is less friendly to employees or independent contractors than the proposed Washington law. It is unclear whether an agreement that includes a choice of law provision designating a more employee-friendly law (such as California law) would be enforceable under this law. In any event, employers with a workforce in Washington would have to keep the limitations of the law in mind when rolling out non-competes to their Washington-based employees and contractors, even if there would otherwise be a good reason to use another state&rsquo;s law.</li> <li> The Act also provides that no franchisor may restrict, restrain, or prohibit a franchisee from soliciting or hiring any employee of a franchisee of the same franchisor, or any employee of the franchisor itself.</li> <li> Separate and apart from the provisions regarding non-competes, the Act prohibits employers from preventing employees who make less than twice minimum wage from having other employment unless the &ldquo;specific [additional] services to be offered by the employee raise issues of safety for the employee, coworkers, or the public, or interfere with the reasonable and normal scheduling expectations of the employer.&rdquo;</li> <li> The Act provides a private right of action (in addition to enforcement by the attorney general), and permits recovery of the greater of actual damages or a $5,000 penalty, plus reasonable attorneys&rsquo; fees and costs. Notably, these remedies are also available against a company attempting to enforce a non-compete where the court or arbitrator &ldquo;reforms, rewrites, modifies, or only partially enforces any noncompetition covenant.&rdquo; Accordingly, employers will need to prudently draft their non-compete agreements and carefully consider litigation strategy if they intend to enforce a non-compete that a court may deem overly broad, as they may wind up facing counterclaims subjecting them to damages, attorneys&rsquo; fees, and costs, even for good faith efforts to enforce agreements they believed to be reasonable and enforceable.</li> <li> The Act &ldquo;displaces conflicting tort, restitutionary, contract, and other laws of this state pertaining to liability for competition by employees or independent contractors with their employers or principals, as appropriate&rdquo; but does not displace or modify the Uniform Trade Secrets Act.</li> </ul> <div> &nbsp;</div> <div> Notably, the Act contains a very murky retroactivity clause that will undoubtedly be challenged during the infancy of the law:&nbsp; &ldquo;The act takes effect January 1, 2020, and applies to all proceedings commenced on or after the effective date, regardless of when the cause of action arose. Otherwise, the law applies prospectively.&rdquo; The Act also provides that an action may not be brought on a noncompetition covenant signed prior to January 1, 2020, unless the noncompetition covenant is being enforced. It is not clear what is meant by &ldquo;being enforced.&rdquo; This appears to mean that while the while the law goes into effect on January 1, 2020, it potentially impacts agreements that were signed before the effective date. It is very likely that both of these provisions will be challenged under provisions of the U.S. Constitution that bar states from passing laws that impair the obligations of contracts.</div> <div> &nbsp;</div> <div> We&rsquo;ll continue to monitor the Act as new law and provide updates as it becomes interpreted and applied.</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/TS051519 Washington State Governor Signs Law Severely Limiting Non-Competes https://www.seyfarth.com:443/publications/TS051519 Wed, 15 May 2019 00:00:00 -0400 <p> Washington state has joined the ranks of an ever-growing number of states that impose significant restrictions on employee non-compete agreements. On May 9, 2019, Governor Jay Inslee signed House Bill 1450, titled &ldquo;An Act Relating to restraints, including noncompetition covenants, on persons engaging in lawful professions, trades, or businesses,&rdquo; into law. The Act will go into effect on January 1, 2020. We reported on the bill in detail in March.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/05/articles/legislation-2/washington-state-governor-signs-law-severely-limiting-non-competes/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise051519 Setting the Stage – Myths and Misunderstandings of Modern Slavery and Business https://www.seyfarth.com:443/publications/FutureEnterprise051519 Wed, 15 May 2019 00:00:00 -0400 <p> Modern slavery (which includes human trafficking within its broader ambit) is a concept marching steadily into the mainstream consciousness of global society. However, there are still many misconceptions over what modern slavery is, how it can happen, the sheer scale of the issue and how it can present not only a social risk but a risk to reputation and profit of honorable businesses. In this blog we set the stage by clarifying some of the myths and misunderstandings of modern slavery in the business context.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2019/5/15/setting-the-stage-myths-and-misunderstandings-of-modern-slavery-and-business">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA051419-LE Massachusetts High Court Finds Employer Liable for Unpaid Overtime Despite Employer’s Reliance on DLS Opinion Letters https://www.seyfarth.com:443/publications/MA051419-LE Tue, 14 May 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The SJC issued two important decisions in April and early May. In early May, the SJC found that commission-only salespeople are entitled to additional compensation for overtime and Sunday work, even though DLS opinion letters supported the employer&rsquo;s understanding that commissions alone were sufficient for such hours if employees&rsquo; compensation exceeded one and one half times the minimum wage. This decision comes on the heels of another SJC decision in April holding that employees need not show injury among class members for purposes of meeting the numerosity requirement for class certification.</em></p> <p> On May 8, 2019, the Massachusetts Supreme Judicial Court (SJC) ruled in <em>Sullivan v. Sleepy&rsquo;s LLC</em> that retail sales employees compensated solely by commissions and draws against those commissions were entitled to additional compensation for overtime hours and for work on Sunday.&nbsp; The Department of Labor Standards (DLS), the state agency responsible for interpreting the state overtime law, had suggested in opinion letters that an employer can satisfy its overtime obligations as to commission-only sales employees so long as employees&rsquo; commissions exceed one and one half times the minimum wage.&nbsp; Acknowledging that the employer may have been &ldquo;misled&rdquo; by those opinion letters, the SJC nonetheless held that the employees were entitled to additional amounts for overtime and to satisfy the Sunday premium pay obligation. &nbsp;</p> <p> The plaintiffs were sales employees at the defendant&rsquo;s retail stores and were compensated on a one hundred percent commission basis.&nbsp; Their wages took the form of a recoverable draw of $125 per day, plus earned commissions in excess of the draw.&nbsp; On at least one occasion, the plaintiffs worked more than 40 hours in a workweek, and they worked at least one Sunday.&nbsp; There was no dispute that the plaintiffs&rsquo; commissions exceeded the minimum wage and exceeded one and one half times the minimum wage when they worked overtime or on Sunday.</p> <p> Nonetheless, the plaintiffs sued their employer on behalf of themselves and other similarly situated employees, claiming to be owed overtime pay and premium pay for work on Sunday.&nbsp; In addition to requiring overtime for hours worked in excess of 40 in a workweek, retail employees are entitled to premium pay for work on Sunday under Massachusetts law.&nbsp; Note, however, that the Sunday premium pay requirement is being phased out incrementally over the next four years.&nbsp;</p> <p> Before the SJC, the employer pointed to two DLS opinion letters that suggested that the employees had been paid correctly.&nbsp; The Court explained that the two opinion letters &ldquo;may have misled . . . employers&rdquo; regarding overtime compensation for commission-only sales employees, but held that the amount of compensation paid to the plaintiffs was impermissible. It concluded that separate and additional compensation owed to such employees for overtime or Sunday work at a rate of at least one and one-half times the minimum wage was above and beyond any commissions or draws.&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;</p> <p> The <em>Sleepy&rsquo;s</em> decision has significant implications for retailers who have been relying on the DLS opinion letters regarding how to compensate commission-only employees for overtime and Sunday premium pay.&nbsp; Commissions alone are not enough, and retailers will need to adjust their pay practices immediately.&nbsp; Further, unlike federal law, an employer&rsquo;s good faith belief that it is in compliance with the law is not a defense to the imposition of mandatory treble damages.&nbsp;&nbsp;&nbsp;</p> <p> The <em>Sleepy&rsquo;s</em> decision comes on the heels of another SJC decision, <em>Gammella v. P.F. Chang&rsquo;s China Bistro, Inc.</em>, regarding class actions involving wage claims.&nbsp; In <em>Gammella</em>, the plaintiff claimed that she was owed three hours&rsquo; of reporting pay, meaning that she reported to work as scheduled but was then sent home for lack of work.&nbsp; While she sought to bring her claims as a class action, there was no way from the employer&rsquo;s records to distinguish between employees who were paid correctly for the hours they actually worked versus those who might have been owed reporting pay.&nbsp; The trial court denied class certification on this basis, explaining that the plaintiff could not establish &ldquo;numerosity&rdquo; -- that the size of the class was sufficiently numerous.&nbsp; The trial court did not address other requirements for maintaining a class action.&nbsp; On appeal to the SJC, the Court found that the plaintiff&rsquo;s inability to identify other injured class members was not fatal to establishing numerosity.&nbsp; It held that it was sufficient for the plaintiff to show from the employer&rsquo;s records that there were other employees who were paid for fewer than three hours, even though they may not have suffered any injury.&nbsp; As the decision is only focused on numerosity, the SJC did not address whether the plaintiff would otherwise be able to satisfy the requirements of maintaining a class action.&nbsp; Nor did it address how the plaintiff could ever prove liability on a classwide basis.&nbsp; Nonetheless, the plaintiffs&rsquo; bar is likely to argue that <em>Gamella</em> somehow lowers the requirements for bringing a class action in Massachusetts state courts.&nbsp;</p> https://www.seyfarth.com:443/publications/EL051419 Massachusetts Attorney General Is Checking Whether Employment Applications Contain Prohibited Criminal History Questions https://www.seyfarth.com:443/publications/EL051419 Tue, 14 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Massachusetts Attorney General steps up enforcement of Massachusetts &ldquo;ban-the-box&rdquo; law citing 19 businesses for asking impermissible questions about an applicant&rsquo;s criminal history on an employment application.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/05/massachusetts-attorney-general-is-checking-whether-employment-applications-contain-prohibited-criminal-history-questions/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/AbeloffLandslide-051419 Amy Abeloff Authors Clearing Trademarks: Back to Basics with Practical Tips and Tricks https://www.seyfarth.com:443/publications/AbeloffLandslide-051419 Tue, 14 May 2019 00:00:00 -0400 <p> Amy Abeloff contributed to <em>Landslide</em> with her article, &ldquo;Clearing Trademarks: Back to Basics with Practical Tips and Tricks&rdquo;. In this article, Amy provides strategies for avoiding potential pitfalls surrounding the use and registration of a trademark. Her article provides a step-by-step approach on how to clear a trademark, covering specific techniques, an example of a trademark search, and she touches on ethical considerations regarding the topic. Please click <a href="https://www.seyfarth.com/dir_docs/publications/Landslide-Magazine-May-June 2019-Amy-Abeloff-Article-Clearing-Trademarks.pdf">here</a> to read the full article.</p> https://www.seyfarth.com:443/news/biometrics051419 Seyfarth Launches Biometrics Privacy Compliance & Litigation Group https://www.seyfarth.com:443/news/biometrics051419 Tue, 14 May 2019 00:00:00 -0400 <p> DC and CHICAGO (May 14, 2019) -- Seyfarth Shaw LLP today announced the launch of its Biometrics Privacy Compliance &amp; Litigation Group. A national leader in the biometric privacy space, Seyfarth was one of the first law firms to defend an employer in a lawsuit asserting violations under the Illinois Biometric Information Privacy Act (BIPA). Building from this experience, Seyfarth has maintained a robust docket of biometric privacy class action cases across the country, in addition to partnering with clients to proactively address issues raised by biometric privacy laws through counseling and compliance efforts.</p> <p> With more than 25 attorneys, Seyfarth&rsquo;s multidisciplinary Biometrics Privacy Compliance &amp; Litigation Group is one of the industry&rsquo;s largest and most experienced, led by Labor &amp; Employment attorneys Karla Grossenbacher and Thomas Ahlering.</p> <p> &ldquo;Today, more and more clients are turning to biometric technology in the workplace, while legislation across the country concerning biometric privacy continues to accelerate,&rdquo; said Grossenbacher. &ldquo;With this rapidly shifting landscape, advice from counsel that has significant experience with biometric privacy compliance issues is invaluable.&rdquo;</p> <p> &ldquo;Beyond compliance challenges, we are uniquely positioned in defending both class action and labor and employment related litigation&mdash;helping clients navigate the novel litigation theories being tested in the courts for the first time in this cutting-edge area of the law,&rdquo; explained Ahlering.</p> <p> Based on this deep knowledge of the issues involved in compliance with biometric privacy laws and its unique track record in biometrics litigation, Seyfarth&rsquo;s new Biometrics Privacy Compliance &amp; Litigation Group features a team of experienced counselors, litigators, and strategists who work alongside clients in three core areas:</p> <ul> <li> <strong>Counseling &amp; Compliance</strong>: Provide counsel on the unique considerations and requirements imposed by the patchwork of state biometric privacy laws. This includes proactive efforts to manage and minimize the risk the risk of potential biometric privacy violations, and assist in crafting workplace policies and procedures that comply with legislative requirements related to the collection and storage of biometric data.</li> <li> <strong>Class Action Litigation</strong>: Develop and litigate strategies designed to defeat and reduce potential exposure related to biometric class actions, based on the firm&rsquo;s successful playbook detailing the procedural nuances of these cases.</li> <li> <strong>Legislative Landscape</strong>: Actively monitor all proposed and existing biometric legislation, and represent organizations and employers to advance their interests in collaboration with the firm&rsquo;s Government Relations and Policy Group.</li> </ul> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of 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/adacnet051419 Seyfarth's ADA statistics referenced in CNET https://www.seyfarth.com:443/news/adacnet051419 Tue, 14 May 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in a May 14 story from CNET, &quot;Accessibility tech has a lot of unfinished business to get right.&quot; According to Seyfarth, last year, the number of website accessibility lawsuits nearly tripled compared to 2017. You can read the <a href="https://www.cnet.com/news/for-people-with-disabilities-accessibility-techs-still-not-all-it-could-be/">full article here</a>.</p> https://www.seyfarth.com:443/news/babsonnyt051419 Marshall Babson quoted in the New York Times https://www.seyfarth.com:443/news/babsonnyt051419 Tue, 14 May 2019 00:00:00 -0400 <p> Marshall Babson was quoted in a May 14 story from the New York Times, &quot;Uber Drivers Are Contractors, Not Employees, Labor Board Says.&quot; Babson said that the general counsel&rsquo;s conclusion had largely been dictated by the limitations of federal law. You can read the <a href="https://www.nytimes.com/2019/05/14/business/economy/nlrb-uber-drivers-contractors.html?smid=nytcore-ios-share">full article here</a>.</p> https://www.seyfarth.com:443/news/wcareplic051319 Seyfarth's Workplace Class Action Report featured in EPLIC Magazine https://www.seyfarth.com:443/news/wcareplic051319 Mon, 13 May 2019 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was featured in a May 13 article from EPLIC Magazine, &quot;Seyfarth Shaw Workplace Class Action Litigation Report For 2019.&quot; According to EPLIC, the Report is a must-have resource for legal research and in-depth analysis of employment-related class action litigation.</p> https://www.seyfarth.com:443/publications/TBT051319 New York City Bans Pre-Employment Marijuana Tests https://www.seyfarth.com:443/publications/TBT051319 Mon, 13 May 2019 00:00:00 -0400 <p> While it has been a challenge for employers to keep up with the explosion of medical and recreational marijuana laws spreading across the nation, employers have taken some comfort in that most of these states still grant employers the right to maintain a drug-free workplace and take action against those who test positive for marijuana, including rejecting job applicants testing positive for drugs. Yet, the tide seems to be shifting, with more courts granting pot smokers certain rights and finding that employers are required to comply with federal and state disability laws when confronted with medical marijuana users. Now it seems some jurisdictions are stepping in and granting certain employment protections to off-duty marijuana users.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/05/new-york-city-bans-pre-employment-marijuana-tests/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC051319 Acclaim For Seyfarth’s Annual Workplace Class Action Litigation Report https://www.seyfarth.com:443/publications/WC051319 Mon, 13 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: In its recent review of Seyfarth&rsquo;s 2019 Annual Workplace Class Action Litigation Report, EPLiC called it the &ldquo;bible&rdquo; for class action legal practitioners, corporate counsel, employment practices liability insurers, and anyone who works in related areas.<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/05/acclaim-for-seyfarths-annual-workplace-class-action-litigation-report/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/tranwjbll051319 Raymond Tran authored an article in Westlaw Journal Bank & Lender Liability https://www.seyfarth.com:443/publications/tranwjbll051319 Mon, 13 May 2019 00:00:00 -0400 <p> Raymond Tran authored a May 13 article in Westlaw Journal Bank &amp; Lender Liability, &quot;Virtual reality and real estate.&quot;</p> https://www.seyfarth.com:443/publications/TS051319 Webinar Recap! The Defend Trade Secrets Act: 3 Years Later https://www.seyfarth.com:443/publications/TS051319 Mon, 13 May 2019 00:00:00 -0400 <p> In Seyfarth&rsquo;s third installment in its 2019 Trade Secrets Webinar Series, Seyfarth attorneys Katherine Perrelli, Justin K. Beyer, and Amy Abeloff focused on the key provisions of the Defend Trade Secrets Act, how the DTSA has evolved since it was passed three years ago, and what to expect in the future.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/05/articles/dtsa/webinar-recap-the-defend-trade-secrets-act-3-years-later/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CDL051319 And Texas joins the Privacy Fray – Part 2 (or, Everything is Bigger in Texas…) https://www.seyfarth.com:443/publications/CDL051319 Mon, 13 May 2019 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.carpedatumlaw.com/2019/05/and-texas-joins-the-privacy-fray-part-2-or-everything-is-bigger-in-texas/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS051019 And Texas joins the Privacy Fray – Part 2 (or, Everything is Bigger in Texas…) https://www.seyfarth.com:443/publications/TS051019 Fri, 10 May 2019 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.tradesecretslaw.com/2019/05/articles/privacy-2/and-texas-joins-the-privacy-fray-part-2-or-everything-is-bigger-in-texas/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/RS051019-LE Regulatory Spring: Rulemaking by the Wage & Hour Division - May 10, 2019 https://www.seyfarth.com:443/publications/RS051019-LE Fri, 10 May 2019 00:00:00 -0400 <p> <strong>A Request for Feedback on the DOL&rsquo;s Proposed Regular Rate Rule</strong><br /> <br /> This is the fourth installment in our<em> Regulatory Spring</em> series and our first request for your feedback on the DOL&rsquo;s proposed rule concerning the overtime rate of pay, more formally known as the &ldquo;regular rate.&rdquo; We do so through a survey, linked below, that should take no more than 5 minutes to complete.<br /> &nbsp;<br /> In our first two installments (available <a href="https://www.seyfarth.com/publications/RS041819-LE">here</a> and <a href="https://www.seyfarth.com/publications/RS042519-LE">here</a>), we provided an overview and <a href="https://www.surveymonkey.com/r/HWY5WMK">asked for your feedback</a> on the DOL&rsquo;s proposed rule concerning the FLSA&rsquo;s overtime exemptions. Last week, in our <a href="https://www.seyfarth.com/publications/RS050219-LE">third installment</a>, we walked through the <a href="https://www.federalregister.gov/documents/2019/03/29/2019-05687/regular-rate-under-the-fair-labor-standards-act?this=RO">DOL&rsquo;s proposed rule concerning the regular rate</a>, through which the Department seeks to clarify the types of perks and benefits that may be excluded from regular rate of pay. At present, comments are due on the regular rate rule on May 28, 2019.<br /> <br /> As an advocate for employers across the country, Seyfarth takes seriously its opportunity to submit comments to the DOL on the regular rate rule. Of course, your feedback is crucial to our ability to provide the DOL with the most meaningful and insightful feedback possible. To that end, we invite you to take a few minutes to complete <a href="https://www.surveymonkey.com/r/PNYKC5M">this survey</a>.</p> https://www.seyfarth.com:443/publications/MA051019-LE Washington State Signs a Salary History Ban, with A Twist https://www.seyfarth.com:443/publications/MA051019-LE Fri, 10 May 2019 00:00:00 -0400 <div> <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Yesterday, May 9, 2019, Washington State Governor Inslee&nbsp;signed the&nbsp;<a href="https://app.leg.wa.gov/billsummary?BillNumber=1696&amp;Year=2019&amp;Initiative=false">&ldquo;Washington Equal Pay and Opportunities Act,&rdquo;</a>&nbsp;which bans employers from asking about prior salary and will require employers to provide pay scale or wage information to both applicants and internal employees, if requested. The law applies to all employers with at least 15 employees and it goes into effect in July 2019.</em></p> <p> <strong>Salary History Ban</strong></p> <p> Washington State will become the ninth state and the seventeenth jurisdiction<a href="#_ftn1" name="_ftnref1" title="">[1]</a> with a salary history ban that applies to applicants for employment.</p> <p> The Washington State pay equity law <a href="https://app.leg.wa.gov/billsummary?BillNumber=1506&amp;Year=2017">enacted last year</a>&nbsp;already prohibited employers from justifying differences in pay by pointing to differences in prior salary.&nbsp; But now employers are banned from collecting or considering that information altogether.</p> <p> Like many of the salary history bans the Washington State law will:</p> <ul> <li> Forbid employers from seeking the wage or salary history of an applicant for employment from the applicant or from the applicant&rsquo;s current or former employer;</li> <li> Require that an applicant&rsquo;s prior wage or salary history meet certain criteria.</li> </ul> <p> Employers, however, can confirm an applicant&rsquo;s wage or salary history if the applicant has voluntarily disclosed his or her wage or salary history; and may also confirm it after an offer (including compensation) has been negotiated with the applicant.</p> <p> <strong>The Pay Scale Twist</strong></p> <p> The bigger news is the pay scale requirement. Washington State will become the third jurisdiction (following <a href="https://www.calpeculiarities.com/2018/07/19/california-attempts-to-clarify-salary-history-ban-legislation/">California</a> and <a href="https://www.seyfarth.com/publications/MA031919-LE">Cincinnati</a>)&nbsp;to require employers to provide pay scale information. The twist is that this applies, also, to internal transfers, unlike the California law, which explicitly does not.</p> <p> The Washington State law provides that &ldquo;Upon request of an applicant for employment after the employer has initially offered the applicant the position, the employer must provide the minimum wage or salary for the position for which the applicant is applying&rdquo; and provides that &ldquo;Upon request of an employee offered an internal transfer to a new position or promotion, the employer must provide the wage scale or salary range for the employee&rsquo;s new position.&rdquo;</p> <p> The timing differs from the California law, which requires that the pay scale information be provided after the applicant has interviewed.</p> <p> The Washington State law provides some additional guidance on the definition of &ldquo;wage scale&rdquo; or &ldquo;salary range&rdquo;, noting that if there is no wage scale or salary range for the job, &ldquo;the employer must provide the minimum wage or salary expectation set by the employer prior to posting the position, making a position transfer, or making the promotion.&rdquo;</p> <p> <strong>Remedies</strong></p> <p> The new Washington State law allows for actual damages or statutory damages up to $5,000, interest, costs, and attorney&rsquo;s fees. The court may also order reinstatement and injunctive relief.</p> <p> <strong>What Should Employers Do?</strong></p> <p> The law will become effective on July 27, 2019, which is 90 days after the adjournment of the current Legislative session. Employers should review their job applications and other policies and procedures, make any necessary changes, and consider training hiring managers and human resources employees about the amendments.</p> </div> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a>&nbsp; &nbsp;Nine states (California, Connecticut, Delaware, Hawaii, Maine, Massachusetts, Oregon, and Vermont and now Washington), seven cities or counties (San Francisco, CA, New York City, NY, Albany County, NY, Suffolk County, NY, Westchester County, NY, Cincinnati, OH, and Philadelphia, PA) and one Territory (Puerto Rico) have passed salary history bans.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/OMM051019-LE2 Breaking News – Massachusetts DFML Confirms That Employers May Be Approved Now For Private Plans That Do Not Provide Paid Leave Benefits Until 2021 https://www.seyfarth.com:443/publications/OMM051019-LE2 Fri, 10 May 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis</strong>: </em><em>In important breaking news, the Massachusetts Department of Family and Medical Leave (DFML) has changed its position and has confirmed that employers may receive approval of a private paid family or medical leave plan even if the plan does not provide paid leave benefits until 2021.</em><br /> <br /> In a significant departure from the DFML&rsquo;s previous position, likely due to outside feedback, the DFML has confirmed that benefits under a private PFML plan that has been approved for an exemption do not have to begin until January 2021. Employers thus may receive approval of a private plan even though the plan does not provide paid leave benefits until January 2021, when the public program&rsquo;s leave benefits commence.</div> <div> &nbsp;</div> <div> Under the DFML&rsquo;s prior position, a private plan would had to have provided benefits in advance of approval and applying for the exemption now would have required an employer to provide the paid leave benefits now, 18 months earlier than the public program&rsquo;s benefits commence in January 2021.&nbsp; This news therefore may be a game-changer for certain companies in deciding whether to apply for a private plan exemption now or at any point between now and January 1, 2021.</div> <div> &nbsp;</div> <div> As previously reported, for Quarter 1 only (July &ndash; September 2019), the deadline to file for a private plan exemption in time to avoid first quarter contributions for PFML has been moved from June 30&nbsp;to September 20, 2019. This allows employers additional time to contemplate private plan options and insurance companies to develop corresponding insurance products. Going forward, the DFML will continue to accept applications on a rolling basis, but applications must be approved in the quarter prior to the quarter in which the exemption from the contributions will go into effect.</div> <div> &nbsp;</div> <div> With today&rsquo;s news, if an employer applies for the private plan exemption by September 20<sup>th</sup> and receives approval of a plan that will not provide paid leave benefits until 2021, the employer will be able to avoid the first quarter contributions to the DFML (otherwise due October 31<sup>st</sup>), as well as future contributions.&nbsp; An employer also can apply <em>after</em> September 20, 2019, but the employer will be responsible for the Quarter 1 contributions and any subsequent quarters until the quarter following approval.</div> <div> &nbsp;</div> <div> Today, the DFML also announced the dates and locations for its two public hearings. Written presentations may be submitted via the DFML contact form ahead of time as well. The hearings are scheduled as follows:</div> <div> &nbsp;</div> <div> Thursday, May 23, 2019&nbsp; (11 a.m. - 1 p.m.)<br /> Picknelly Adult and Family Education Center<br /> 206 Maple Street<br /> Holyoke, MA</div> <div> &nbsp;</div> <div> Friday, May 24, 2019&nbsp; (1 p.m. - 3 p.m.)<br /> Hurley Building - Minihan Hall</div> <div> 19 Staniford Street, 6th Floor</div> <div> Boston, MA</div> <div> &nbsp;</div> <div> For our prior reports on the PFML Law and the proposed regulations, you may refer <a href="https://www.seyfarth.com/publications/OMM050119-LE">here</a>, <a href="https://www.seyfarth.com/publications/MA043019-LE">here</a>, <a href="https://www.seyfarth.com/publications/OMM041819-LE2">here</a>, <a href="https://www.seyfarth.com/publications/MA040219-LE2">here</a>, <a href="https://www.seyfarth.com/publications/MA032719-LE">here</a>, and <a href="https://www.seyfarth.com/publications/MA062218-LE">here</a>.</div> https://www.seyfarth.com:443/publications/OMM051019-LE ABC Test Applies To Labor Code Claims Related to California Wage Orders https://www.seyfarth.com:443/publications/OMM051019-LE Fri, 10 May 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> On May 3, 2019, the California Department of Industrial Relations, Division of Labor Standards Enforcement (&ldquo;DLSE&rdquo;) issued an opinion letter regarding the applicability of the ABC test set forth in Dynamex to claims arising under the Industrial Welfare Commission (&ldquo;IWC&rdquo;) Wage Orders. The DLSE concluded that it will apply the ABC test to questions of employment status for all claims involving a failure to fulfill obligations imposed by the Wage Orders, including related claims arising under the California Labor Code.</em></div> <div> &nbsp;</div> <div> <strong>The Question Posed</strong></div> <div> &nbsp;</div> <div> In <em>Dynamex</em>&mdash;a case concerning claims based on the Wage Orders&mdash;the California Supreme Court adopted the ABC test for determining whether a worker is properly classified as an employee or an independent contractor. Decisions following <em>Dynamex</em> have reiterated that the ABC test applies &ldquo;for purposes of the wage orders.&rdquo; The question on which the DLSE&rsquo;s opinion was sought was whether the ABC test applies more broadly than the Wage Orders, including to related Labor Code claims.</div> <div> &nbsp;</div> <div> <strong>The Opinion Letter</strong></div> <div> &nbsp;</div> <div> The DLSE noted that the applicability of the ABC test turns on whether the IWC&rsquo;s employer definitions govern a particular claim. It pointed out that in Dynamex, the Supreme Court adopted the ABC test to determine whether an individual is an employee or independent contractor within the meaning of the term &ldquo;suffer or permit to work,&rdquo; a definitional standard in every Wage Order. Accordingly, the DLSE concluded that Dynamex necessitates the application of the ABC test to enforcement of all obligations imposed by the Wage Orders, such as overtime, minimum wages, reporting time pay, recordkeeping, business expense reimbursement for certain expenses, and meal and rest periods.</div> <div> &nbsp;</div> <div> As to claims arising under the California Labor Code, the DLSE noted that <em>Dynamex</em> and the decisions following it have applied the ABC test to claims that derive from Wage Order provisions. Because the Wage Orders themselves are not independently actionable, the DLSE concluded that it would be appropriate to apply the ABC test to determine employment status with respect to Labor Code claims that serve to enforce the wage orders.</div> <div> &nbsp;</div> <div> The DLSE observed that California courts are divided over whether the ABC test should be applied to determine employment status in cases involving claims for waiting time penalties under Labor Code section 203. As to these claims, the DLSE stated that the analysis turns on whether the claim is derivative of concurrent minimum wage and overtime claims: &ldquo;Thus, where section 203 serves to enforce the underlying minimum wage and overtime obligations of the wage orders, application of the ABC test to these claims would be appropriate.&rdquo; That is, the ABC test would apply to Section 203 except in the rare circumstance where a worker asserts a standalone Section 203 claim not premised on a Wage Order.</div> <div> &nbsp;</div> <div> <strong>What the DLSE Opinion Letter Means for Employers</strong></div> <div> &nbsp;</div> <div> DLSE opinion letters, while not binding on courts, are considered by them. However, the California Supreme Court has repeatedly held that the DLSE&rsquo;s interpretations are not entitled to deference ordinarily accorded to formal administrative regulations, and that courts must independently determine the meaning and scope of the provisions of the Wage Orders.</div> <div> &nbsp;</div> <div> The DLSE&rsquo;s opinion letter confirms that the agency intends to expand <em>Dynamex</em>&rsquo;s broad sweep through its enforcement proceedings, thereby increasing the already-heightened regulatory pressure on companies that use independent contractors. Such businesses should take the DLSE&rsquo;s enforcement posture into account when evaluating how to classify workers, and the potential exposure associated with such classification.&nbsp;</div> https://www.seyfarth.com:443/news/conleylaw360051019 Ben Conley quoted in Law360 https://www.seyfarth.com:443/news/conleylaw360051019 Fri, 10 May 2019 00:00:00 -0400 <p> Ben Conley was quoted in a May 10 story from Law360, &quot;Congress Seen As Best Hope For Association Health Plans,&quot; on the D.C. Circuit&#39;s decision to fast-track the Trump administration&#39;s attempt to revive a rule expanding association health plans. Conley said that the conclusion the Trump administration wanted the court to reach was fundamentally opposed to what was outlined under existing requirements in ERISA. He said that, absent broader action by Congress, most likely the appellate court will uphold.</p> https://www.seyfarth.com:443/news/kappelmanbbj050919 Lynn Kappelman quoted in the Boston Business Journal https://www.seyfarth.com:443/news/kappelmanbbj050919 Thu, 09 May 2019 00:00:00 -0400 <p> Lynn Kappelman was quoted in a May 9 story from the Boston Business Journal, &quot;Supportive work environments are key to promoting LGBT execs.&quot; Kappleman said that the top executives at Seyfarth have always been focused on inclusion and diversity.</p> https://www.seyfarth.com:443/news/reyescd050919 Juan Reyes quoted in Construction Dive https://www.seyfarth.com:443/news/reyescd050919 Thu, 09 May 2019 00:00:00 -0400 <p> Juan Reyes was quoted in a May 9 story from Construction Dive, &quot;What future high-speed rail developers can learn from the California bullet train.&quot; Reyes said that standard FRA agreements usually include a right to rescind. You can read the <a href="https://www.constructiondive.com/news/what-future-high-speed-rail-developers-can-learn-california-bullet-train/554183/">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS050919 And Texas Joins the Privacy Fray – Part 1 (or, the Elephant in the room just got a LOT bigger…) https://www.seyfarth.com:443/publications/TS050919 Thu, 09 May 2019 00:00:00 -0400 <p> Cross-Posted from The Global Privacy Watch Blog<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/05/articles/privacy-2/and-texas-joins-the-privacy-fray-part-1-or-the-elephant-in-the-room-just-got-a-lot-bigger/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CDL050919 And Texas Joins the Privacy Fray – Part 1 (or, the Elephant in the room just got a LOT bigger…) https://www.seyfarth.com:443/publications/CDL050919 Thu, 09 May 2019 00:00:00 -0400 <p> Cross-Posted from The Global Privacy Watch Blog<br /> <br /> <a href="https://www.carpedatumlaw.com/2019/05/and-texas-joins-the-privacy-fray-part-1-or-the-elephant-in-the-room-just-got-a-lot-bigger/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT050919 The Week in Weed: May 10, 2019 https://www.seyfarth.com:443/publications/TBT050919 Thu, 09 May 2019 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/2019/05/the-week-in-weed-may-10-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/GPW050919 2019: Is This The Year of Consumer Privacy (or, Elephants, Elephants Everywhere) https://www.seyfarth.com:443/publications/GPW050919 Thu, 09 May 2019 00:00:00 -0400 <p> In prior posts, we&rsquo;ve commented on the California Consumer Privacy Act (&ldquo;CCPA&rdquo;), likening it, and its Texas &lsquo;flavored&rsquo; variant(s), to &lsquo;elephants in the room&rsquo;. Here, we&rsquo;ve opted to expand our coverage and talk about what we&rsquo;re seeing other states do (or, let&rsquo;s expand the elephant metaphor to: elephants, elephants everywhere.)<br /> <br /> <a href="https://www.globalprivacywatch.com/2019/05/2019-is-this-the-year-of-consumer-privacy-or-elephants-elephants-everywhere/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise050919 Workplace Safety in the Gig Economy: New Hazards and Liabilities https://www.seyfarth.com:443/publications/FutureEnterprise050919 Thu, 09 May 2019 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.futureenterprise.com/blog/2019/5/9/workplace-safety-in-the-gig-economy">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA050919-EB IRS Expands Determination Letter Program on a Limited Basis For Certain Individually Designed Plans https://www.seyfarth.com:443/publications/MA050919-EB Thu, 09 May 2019 00:00:00 -0400 <div> On May 1, 2019, the Internal Revenue Service (IRS) issued guidance re-opening its storied determination letter program to hybrid plans and certain plans impacted by plan mergers.</div> <h3> Expansion of Determination Letter Program for Hybrid Plans</h3> <div> For twelve months beginning September 1, 2019 and ending August 31, 2020, the IRS will accept determination letter applications for statutory hybrid plans (<em>e.g.</em>, cash balance plans and pension equity plans).&nbsp; The IRS will review any hybrid plan submissions based on the 2017 required amendments list.&nbsp; Its review will also take into consideration all required amendments lists and cumulative lists issued prior to 2016.&nbsp; The normal determination letter application procedures for individually designed plans will apply.</div> <h3> Expansion of Determination Letter Program for Merged Plans</h3> <div> Beginning September 1, 2019, the IRS will accept determination letter applications on an ongoing basis for individually designed merged plans, provided that the following requirements are met:</div> <ul> <li> The merger must involve two or more individually designed plans maintained by previously unrelated entities, and must occur in connection with a corporate transaction (<em>i.e.</em>, a corporate merger, acquisition or other similar business transaction).<br /> &nbsp;</li> <li> The plan merger must be effective no later than the last day of the first plan year that begins after the plan year that includes the effective date of the corporate transaction.&nbsp; For example, in the case of a corporate acquisition that was effective February 1, 2018, the plan merger must occur by December 31, 2019, assuming a calendar year plan year.<br /> &nbsp;</li> <li> The determination letter application for the merged plan must be submitted to the IRS by the last day of the merged plan&rsquo;s first plan year that begins after the effective date of the plan merger.&nbsp; For example, if the plan merger is effective July 1, 2018, the determination letter application must be submitted by December 31, 2019, assuming a calendar year plan year.&nbsp;&nbsp;</li> </ul> <div> The IRS will review any determination letter submissions for merged plans based on the required amendments list that was issued during the second full calendar year preceding the date the application was submitted.&nbsp; The review will also include all earlier required amendments lists and cumulative lists.</div> <h3> Remedial Amendment Period</h3> <div> If an individually designed statutory hybrid plan or merged plan applies for a determination letter under the new IRS guidance, any remedial amendment period that is open as of the beginning of the relevant determination letter submission period will be extended to the end of the submission period.&nbsp; The additional extension of a remedial amendment period permitted by current Treasury regulations that applies upon the submission of a determination letter application (extending the remedial amendment period until the expiration of 91 days after the date a determination letter is issued) will also apply.</div> <h3> Special Sanction Structure</h3> <div> If a statutory hybrid plan takes advantage of the limited determination letter window described above and the IRS discovers a plan document failure during its review of the determination letter submission, the following special sanction structure will apply:</div> <ul> <li> If the failure relates to the final hybrid plan regulations, no sanction will apply.<br /> &nbsp;</li> <li> If the failure is unrelated to the final hybrid plan regulations, and resulted from a good faith effort to timely amend the hybrid plan or a good faith determination that no amendment was required, then the sanction will equal the applicable Employee Plans Voluntary Compliance Resolution System Voluntary Correction Program (VCP) user fee that would have applied had the plan sponsor identified the failure and submitted the plan for consideration under the VCP.</li> </ul> <div> If a merged plan takes advantage of the determination letter window described above and the IRS discovers a plan document failure during its review of the submission, the following special sanction structure will apply:</div> <ul> <li> If the failure is with respect to a plan provision included to effectuate the relevant plan merger, no sanction will apply.<br /> &nbsp;</li> <li> If the failure is not with respect to a plan provision included to effectuate the relevant plan merger, and resulted from a good faith effort to timely amend the merged plan or a good faith determination that no amendment was required, then the sanction will equal the applicable VCP user fee that would have applied had the plan sponsor identified the failure and submitted the plan for consideration under the VCP.</li> </ul> <div> For both statutory hybrid plans and merged plans that take advantage of the new determination letter windows, if the IRS identifies a plan document failure during its review of the determination letter submission which does not meet any of the applicable conditions described above, then the sanction will range from 150% to 250% (depending on the duration of the failure) of the user fee that would have applied under the VCP.</div> <h3> Effective Date</h3> <div> This guidance is generally effective September 1, 2019.</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/MA050919-LE Ninth Circuit Expands Reach of Dynamex, Holding ABC Test Retroactive https://www.seyfarth.com:443/publications/MA050919-LE Thu, 09 May 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: In 2018 the California Supreme Court issued its radical </em><a href="https://scholar.google.com/scholar_case?case=12156401043773771981&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr"><em>Dynamex</em></a><em> decision, discussed in our One Minute Memo </em><a href="https://www.seyfarth.com/uploads/siteFiles/publications/OMM050118LE.pdf"><em>here</em></a><em>. Now the Ninth Circuit has piled on, </em><em><a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/02/17-16096.pdf">holding in Vazquez v. Jan-Pro Franchising, International, Inc.</a> that</em><em> Dynamex applies retroactively, and that the ABC test of employee status applies in the franchisor-franchisee context.</em></p> <p> <strong>The Background Facts</strong></p> <p> Jan-Pro Franchising, International, Inc. operates a three-tier franchising structure that offers cleaning and janitorial services. Jan-Pro sold exclusive rights to use its trademark and name to entities known as regional master franchisees, which then became responsible for the Jan-Pro business in a defined geographic territory and possessed the exclusive right to sell Jan-Pro cleaning franchises in that territory. Regional master franchisees sold &ldquo;unit franchises,&rdquo; pursuant to which the franchise purchasers gained the exclusive right to service accounts provided to them by their regional master franchisees.</p> <p> Jan-Pro unit franchisees could purchase franchises in their individual capacities, operate under fictitious names, or form partnerships or corporations with employees to service the accounts assigned by the respective regional master franchisees. Regional master franchisees provided unit franchisees with business plans, some initial training, and then continued to provide business development, billing and collection, and revenue disbursement services. Unit franchisees, however, performed the actual cleaning and janitorial services under the Jan-Pro trademark.</p> <p> <strong>A Brief History of the <em>Vazquez</em> Litigation</strong></p> <p> The <em>Vazquez</em> litigation sprang from a 2008 Massachusetts case filed against Jan-Pro by an individual named Depianti. Joining Depianti in this suit were unit franchisees from nine states, including California. The plaintiffs in <em>Depianti</em>, and later in <em>Vazquez</em>, all alleged that Jan-Pro used its three-tier franchising model to avoid paying minimum wages and overtime pay by misclassifying unit franchisees as independent contractors. (Regional master franchisees were not named as defendants in either case, which the courts noted was likely because their agreements with the unit franchisees contained mandatory arbitration clauses.)</p> <p> Due to conflicting state laws at issue in <em>Depianti</em>, the <em>Vazquez</em> plaintiffs (all based in California) were severed from the case, and their action was sent to the Northern District of California. The <em>Vazquez </em>plaintiffs were all individuals who purchased unit franchises either in their individual capacities or as business partners, and they alleged that they should have been classified as employees of Jan-Pro rather than as independent contractors.</p> <p> Judge Alsup <a href="https://scholar.google.com/scholar_case?case=10617367691986786100&amp;q=vazquez+v.+jan-pro+summary+judgment&amp;hl=en&amp;as_sdt=4,323">granted</a> Jan-Pro&rsquo;s motion for summary judgment in <em>Vazquez </em>in May 2017, finding that the plaintiff unit franchisees were not employees of Jan-Pro under the standards set forth in <a href="https://scholar.google.com/scholar_case?case=10726492506162838892&amp;q=49+Cal.+4th+35+(2010)+&amp;hl=en&amp;as_sdt=2006"><em>Martinez v. Combs</em></a>, 49 Cal. 4th 35 (2010) and <a href="https://scholar.google.com/scholar_case?case=13829388964242983087&amp;q=60+Cal.+4th+474&amp;hl=en&amp;as_sdt=2006"><em>Patterson v. Domino&#39;s Pizza, LLC</em></a>, 60 Cal. 4th 474 (2014), because Jan-Pro did not itself control the Plaintiffs or suffer or permit them to work, as Jan-Pro did not have any contractual or other relationship with the Plaintiffs. Instead, Jan-Pro had a direct relationship only with the regional master franchisees that did not apply to the unit franchisees.</p> <p> <strong>Relevant Issues Before the Ninth Circuit</strong></p> <p> Plaintiffs appealed from summary judgment in favor of Jan-Pro. They argued that Judge Alsup erred in (1) finding no triable issues about whether Jan-Pro was the unit franchisees&rsquo; employer and (2) in analyzing the employee-employer relationship on the basis of Jan-Pro&rsquo;s status as a &ldquo;franchisor.&rdquo;</p> <p> Jan-Pro argued that the dismissal of <em>Depianti</em> (by both the <a href="https://scholar.google.com/scholar_case?case=1466005706559681896&amp;q=depianti+v+jan+pro+franchising+international+inc&amp;hl=en&amp;as_sdt=2003">Georgia Court of Appeals</a> and the <a href="https://scholar.google.com/scholar_case?case=18154007147720823481&amp;q=depianti+v+jan+pro+franchising+international+inc&amp;hl=en&amp;as_sdt=2003">First Circuit</a>) should govern <em>Vazquez</em> under res judicata or the law of the case, and that the California Supreme Court&rsquo;s decision in <a href="https://scholar.google.com/scholar_case?case=12156401043773771981&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr"><em>Dynamex Ops. W. Inc. v. Superior Court</em></a> (issued while the <em>Vazquez</em> appeal was pending) should not apply retroactively to the Plaintiffs&rsquo; claims. Jan-Pro also argued that Judge Alsup correctly applied California law in holding that the unit franchisees&rsquo; were not employees of Jan-Pro.</p> <p> <strong>The Ninth Circuit Decision</strong></p> <p> On May 2, 2019, the Ninth Circuit issued its decision in <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/02/17-16096.pdf"><em>Vazquez v. Jan-Pro Franchising, International, Inc.</em></a>, rejecting Jan-Pro&rsquo;s arguments that the earlier decisions in the <em>Depianti</em> litigation applied here. The Ninth Circuit reasoned that the First Circuit did not reach the merits of applying the ABC test to underlying claims, and the <em>Depianti</em> plaintiffs were not in privity with the <em>Vazquez</em> plaintiffs for purposes of applying res judicata.</p> <p> The Ninth Circuit also held that <em>Dynamex</em>&mdash;adopting an ABC test to determine employee versus independent contractor status&mdash;must be applied retroactively. The Ninth Circuit thus vacated the summary judgment order entered prior to <em>Dynamex</em>, and remanded for further proceedings. The Ninth Circuit emphasized that the California Supreme Court characterized its <em>Dynamex</em> ruling as a &ldquo;clarification&rdquo; of existing law, rather than a departure from existing law.&nbsp; Accordingly, the Ninth Circuit rejected the arguments of Jan-Pro and industry groups that applying <em>Dynamex </em>retroactively would violate the due-process rights of companies that, in establishing contractor relationships, have reasonably relied on the legal standard in place since the California Supreme Court decided in <a href="https://scholar.google.com/scholar_case?case=11040952055087564436&amp;q=sg+borello+%26+sons+v+department+of+industrial+rel&amp;hl=en&amp;as_sdt=6,323"><em>S.G. Borello &amp; Sons, Inc. v. Department of Industrial Relations</em></a> in 1989.</p> <p> The Ninth Circuit further concluded that the strict ABC employment classification test should apply in the franchisor-franchisee context for claims arising under the California wage orders, even where the putative employee and alleged hiring entity are not parties to the same contract and the putative employee only indirectly provides a service to the defendant&mdash;a ruling that is the first of its kind in California.</p> <p> Jan-Pro <a href="https://news.bloomberglaw.com/daily-labor-report/california-independent-contractor-test-applies-retroactively">has already confirmed</a> it will petition for re-hearing of the decision by a full panel of the Ninth Circuit. Jan-Pro has also, of course, raised substantial constitutional questions about retroactivity that may find their way to the United States Supreme Court.</p> <p> <strong>What <em>Vazquez</em> Means for Businesses</strong></p> <p> The Ninth Circuit&rsquo;s opinion may have major implications for companies that utilize independent contractors, including many companies operating in the gig economy space, and for companies involved in franchisor-franchisee relationships. Particularly significant for companies like Jan-Pro are the potential implications on the traditional divisions and protections created through use of the franchise model, which <em>Vazquez</em> erodes, at least in the context of claims arising from California&rsquo;s IWC Wage Orders.</p> <p> Companies thus must take a thorough look at how their contractual arrangements&mdash;including with entities or individuals they may have indirect or franchise relationships with&mdash;fit into the prongs of the ABC test, and evaluate whether (A) workers are free from the control and direction in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) workers perform work that is outside the usual course of the hiring entity&rsquo;s business, and (C) workers are customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.</p> <p> Companies should particularly take heed of how they describe their business, both to the public and their contractors. For instance, companies must weigh whether their business model centers on an app service that connects providers and end users, or licenses trademarks and provides business plans to workers, or whether they are actually &ldquo;in the business of&rdquo; providing the underlying services that the workers provide.</p> <p> Employers can take some solace that the ABC test adopted in <em>Dynamex,</em> and now applied in <em>Vazquez,</em> still explicitly applies only to claims arising under the California IWC Wage Orders, and not claims arising in tort, as the Ninth Circuit went to great pains to explain. Nonetheless, companies should take heed of this recent expansion of <em>Dynamex</em>, and the prospects of <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB5">pending legislation</a> that would codify the ABC test for determining employee status. Seyfarth will continue to keep its readers informed of all developments in this space.</p> https://www.seyfarth.com:443/publications/WH050919 No Buyer? No Problem. 11th Cir. Affirms Application Of Motor Carrier Act Exemption To Intrastate Drivers Even If Final Recipient Of Goods Is Undetermined At Shipment https://www.seyfarth.com:443/publications/WH050919 Thu, 09 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The Motor Carrier Act exemption to the FLSA (&ldquo;MCE&rdquo;) is a powerful defense against overtime claims brought by interstate truck drivers and others involved in the interstate shipment of goods. Importantly, the exemption is not limited to drivers who cross state lines. Instead, numerous courts have made clear that the exemption applies to intrastate drivers, so long as the drivers complete one leg of a larger interstate transport of goods and, thus, the goods they transport are part of the &ldquo;continuous stream of interstate travel.&rdquo; Plaintiffs&rsquo; attorneys, however, continue to test the limits of the application of the MCE, particularly as it relates to drivers who complete trips solely within a single state. One frequent angle of attack is to argue that the goods transported by intrastate drivers are not in the continuous stream of interstate travel, unless the shipper identified the final customer of the goods at the time of shipment. The Eleventh Circuit Court of Appeals recently rejected this argument in a favorable decision for employers.<br /> <br /> <a href="https://www.wagehourlitigation.com/uncategorized/no-buyer-no-problem-11th-cir-affirms-application-of-motor-carrier-act-exemption-to-intrastate-drivers-even-if-final-recipient-of-goods-is-undetermined-at-shipment/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE050919 Workplace Safety in the Gig Economy: New Hazards and Liabilities https://www.seyfarth.com:443/publications/WSE050919 Thu, 09 May 2019 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/workplace-safety-in-the-gig-economy-new-hazards-and-liabilities/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM050919-LE Seyfarth Shaw Policy Matters Newsletter - May 9, 2019 https://www.seyfarth.com:443/publications/PM050919-LE Thu, 09 May 2019 00:00:00 -0400 <p> <span style="color:#696969;"><strong>EEO-1 Update</strong>.&nbsp; The Department of Justice filed an appeal from the District Court&#39;s decision on May 3.&nbsp; DOJ, however, did not file a request for stay of the order and EEOC has made clear that the notice of appeal has no effect on the requirement that employers submit 2017 and 2018 EEO-1 Component 2 data by September 30, 2019.&nbsp; Of course, the appeal itself will not be resolved before the September 30 deadline.&nbsp; Employers, therefore, need to prepare to file the appropriate data by that date.&nbsp; As noted in prior newsletters, Seyfarth has long been involved in this issue, has conducted several webinars on compliance questions, and will continue to track developments.<br /> <br /> <strong>EEOC Chairman Confirmed.</strong>&nbsp; On May 8, Janet Dhillon was</span> <a href="https://www.congress.gov/nomination/116th-congress/173">confirmed</a> <span style="color:#696969;">by the Senate to the EEOC Commission where she will become chair, thus restoring a quorum to the Commission.&nbsp; Whether this means that the Commission will revisit the new EEO-1 form under the Paperwork Reduction Act remains to be seen, but it should be noted that the Court&rsquo;s deadline of September 30 is firm.&nbsp; For more on Dhillon&rsquo;s confirmation, see the</span> <a href="https://www.workplaceclassaction.com/2019/05/eeoc-leadership-shift-a-new-eeoc-chair-confirmed-by-senate/">Workplace Class Action blog</a>.</p> <p> <strong>H<span style="color:#696969;">earing Held on PRO Act</span></strong><span style="color:#696969;">.&nbsp; Yesterday the House Subcommittee on Health, Employment, Labor and Pensions held a</span> <a href="https://edlabor.house.gov/hearings/the-protecting-the-right-to-organize-act-deterring-unfair-labor-practices_">hearing</a> <span style="color:#696969;">on the &ldquo;Protecting the Right to Organize Act of 2019&rdquo;, a.k.a. the &ldquo;PRO Act.&rdquo;</span>&nbsp; (<a href="https://www.congress.gov/bill/116th-congress/house-bill/2474?q=%7B%22search%22%3A%5B%22protecting%20right%20to%20organize%22%5D%7D&amp;s=2&amp;r=1">H.R. 2474</a>).&nbsp; <span style="color:#696969;">The bill is incredibly broad (more so even than the Employee Free Choice Act-- a.k.a. &ldquo;card check&rdquo;--was in past Congresses).&nbsp; Among other things, the bill would codify the expansive joint employment standard established by the Obama NLRB in <em>Browning-Ferris</em>; eliminate the ability of employers to hire replacement workers during an economic strike (reversing the Supreme Court&#39;s 80-year-old <em>Mackay</em> doctrine); reverse the Supreme Court&rsquo;s recent <em>Epic</em> decision on class action arbitrations; create a new private cause of action allowing workers to sue when the Board does not take up the case; permit vastly expanded damages and civil penalties; effectively repeal state right-to-work laws by permitting &ldquo;fair share&rdquo; fees; expand the definitions of &ldquo;supervisor&rdquo; and &ldquo;employee&rdquo;; impose first contract interest arbitration; broadly repeal existing protections against secondary boycott actions, and allow card check recognition where a &ldquo;violation&rdquo; has occurred.&nbsp; This list is but the tip of the iceberg, as Education and Labor Committee Chair Bobby Scott&rsquo;s (D-VA)</span> <a href="https://edlabor.house.gov/imo/media/doc/2019-05-02%20PRO%20Act%20Section%20by%20Section.pdf">press release</a> <span style="color:#696969;">makes clear.&nbsp; Although the subcommittee&rsquo;s Ranking Member Tim Walberg (R-MI) expressed a</span> <a href="https://republicans-edlabor.house.gov/news/documentsingle.aspx?DocumentID=406373">willingness</a> <span style="color:#696969;">to work on pro-worker and pro-economy legislation, this particular bill is so extreme that its future is non-existent.&nbsp;<br /> <br /> <strong>House Appropriators Approve DOL Funding Bill</strong>.&nbsp; Earlier this week, the House Appropriations Committee </span><a href="https://appropriations.house.gov/news/press-releases/appropriations-committee-approves-fiscal-year-2020-labor-hhs-education-funding">approved</a> <span style="color:#696969;">the Labor-HHS</span> <a href="https://appropriations.house.gov/sites/democrats.appropriations.house.gov/files/Base_xml.pdf">spending bill for FY2020</a>.&nbsp; <span style="color:#696969;">The bill gives the Labor Department a $1.2 billion increase from this year&rsquo;s enacted level.&nbsp; During the committee&rsquo;s </span><a href="https://www.youtube.com/watch?v=kk_uQ0LkE2I">mark-up</a>, <span style="color:#696969;">it also approved an amendment from Rep. Harris (R-MD) that would direct the Secretary of Homeland Security to allocate H-2B visas quarterly (instead of twice per year). The bill heads next to the full House.<br /> <br /> <strong>Equality Act Expected on House Floor Soon</strong>.&nbsp; The House Rules Committee</span> <a href="https://rules.house.gov/news/announcement/amendment-process-announcement-hr-5-equality-act">announced</a> <span style="color:#696969;">that it was likely to meet next week to vote on the amendment process for the Equality Act (H.R. 5).&nbsp; As </span><a href="https://www.seyfarth.com/publications/PM050219-LE"><span style="color:#696969;">previously reported</span></a><span style="color:#696969;">, the bill has passed the House Judiciary Committee, and the Rules Committee action sets the bill up for consideration by the full House.</span></p> <p> <span style="color:#696969;">To subscribe to the Policy Matters weekly newsletter,</span> <a class="cms-content-links" href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy"><span style="color: rgb(0, 153, 255);">click here</span></a><span style="color: rgb(105, 105, 105);">.</span></p> https://www.seyfarth.com:443/publications/WC050819 EEOC Leadership Shift: A New EEOC Chair Confirmed By Senate https://www.seyfarth.com:443/publications/WC050819 Wed, 08 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Who sits as Chair of the EEOC unquestionably has a significant impact for all employers interacting with the Commission. At long last, the U.S. Senate has voted to confirm Janet Dhillon for the post, nearly two years after President Trump&rsquo;s administration nominated her. How the new leadership at the Commission will impact broader EEOC policy positions remains to be seen.<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/05/eeoc-leadership-shift-a-new-eeoc-chair-confirmed-by-senate/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP050819 “U Can’t Touch This”: When A Garnished Employee Goes Bankrupt https://www.seyfarth.com:443/publications/CP050819 Wed, 08 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Employers increasingly find themselves in the difficult position of deciding whether to continue garnishing an employee&rsquo;s wages pursuant to a garnishment order when the employee files for bankruptcy. On one hand, the employer risks penalties for failing to withhold wages; on the other hand, the employer risks sanctions for violating the automatic stay generated by a bankruptcy filing. Below we discuss this dilemma and employers&rsquo; options.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/05/08/u-cant-touch-this-when-a-garnished-employee-goes-bankrupt/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT050819 Will Banks be Able to Play it SAFE with Marijuana Related Businesses? https://www.seyfarth.com:443/publications/TBT050819 Wed, 08 May 2019 00:00:00 -0400 <p> Marijuana is estimated to be a $10 billion industry and rapidly growing. Almost all of it is conducted in cash. Although legal in thirty three states plus Washington, D.C., Puerto Rico and Guam, marijuana remains illegal at the federal level. Accordingly, financial institutions that handle proceeds from a transaction involving the distribution, manufacture or sale of marijuana would be handling illegal proceeds in violation of both federal money laundering statutes and banking regulations that prohibit such institutions from participating in any transaction or engaging in any relationship involving illegal proceeds.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/05/will-banks-be-able-to-play-it-safe-with-marijuana-related-businesses/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/JSmith-EArnold-050819 Jason Smith and Edward Arnold Authored a Q&A in The Legal 500 and The In-House Lawyer https://www.seyfarth.com:443/publications/JSmith-EArnold-050819 Wed, 08 May 2019 00:00:00 -0400 <p style="text-align: center;"> <img src="https://seyfarthadmin.icvmgroup.net/uploads/siteFiles/publications/Comparative_guides_rosette_exclusive_contributor_522x289.png" /></p> <p> Jason Smith and Edward Arnold authored a Q&amp;A in The Legal 500 and The In-House Lawyer, &quot;United States: Construction (2nd Edition)&quot; on May 8, 2019, on an overview to construction law in the United States. The Q&amp;A covers termination requirements and obligations, permits and license, procurement, financing and security, and disputes, as well as insight and opinion on challenges and opportunities.</p> <p> To read the full Q&amp;A, <a href="http://www.inhouselawyer.co.uk/practice-areas/data-protection-cyber-security/united-states-construction-2nd-edition/?pdf=18758">click here</a>.</p> https://www.seyfarth.com:443/news/perellislaw360050819 Andrew Perellis quoted in Law360 https://www.seyfarth.com:443/news/perellislaw360050819 Wed, 08 May 2019 00:00:00 -0400 <p> Andrew Perellis was quoted in a May 8 story from Law360, &quot;EPA Landfill Rule Decision Firms Up States&#39; Right To Sue.&quot; Perellis said that the EPA took a page from the playbook of industry or the environmentalists and simply used litigation as a tool to buy time and delay.</p> https://www.seyfarth.com:443/publications/ERISA050719 Do ERISA Fiduciaries Have The Burden Of Proof On Loss Causation? — The Solicitor General Will Now Advise Whether The Supreme Court Should Provide The Answer https://www.seyfarth.com:443/publications/ERISA050719 Tue, 07 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: There is a deep circuit split on who bears the burden of proving loss causation on ERISA breach of fiduciary duty claims. The Supreme Court has now invited the U.S. Solicitor General to submit the United States position on the issue in connection with a petition for a writ of certiorari from a First Circuit decision finding that the burden of proof shifts to the breaching fiduciary to disprove causation once a plaintiff proves loss.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2019/05/07/do-erisa-fiduciaries-have-the-burden-of-proof-on-loss-causation-the-solicitor-general-will-now-advise-whether-the-supreme-court-should-provide-the-answer/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM050719-LE Updated New Jersey Family Leave Insurance Notice to Employees Released https://www.seyfarth.com:443/publications/OMM050719-LE Tue, 07 May 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Recently, the New Jersey Department of Labor and Workforce Development released an updated poster concerning Family Leave Insurance in light of recent amendments to the law.&nbsp; In addition, the Department also released updated guidance, including clarifying the effective dates of various amendments.&nbsp;</em></p> <p> The New Jersey Department of Labor and Workforce Development (&ldquo;DLWD&rdquo;) released an <a href="https://www.nj.gov/labor/forms_pdfs/tdi/fli_poster.pdf">updated notice to employees</a> in response to recent amendments to the Family Leave Insurance (&ldquo;FLI&rdquo;) Law.&nbsp; The notice must be conspicuously posted in the employer&rsquo;s workplace in a place that is accessible to all employees.&nbsp; In addition, the employer is required to provide each employee a written copy of the notification no later than 30 days after it was issued by the DLWD (however, the DLWD website does not indicate the precise date the notice was issued), at the time of hire, whenever the employee notifies the employer of the need for FLI benefits, and upon an employee&rsquo;s first request for benefits.</p> <p> Governor Phil Murphy <a href="https://www.seyfarth.com/publications/MA022119-LE">signed the amendments into law</a> on February 19, 2019. The updated <a href="https://myleavebenefits.nj.gov/labor/myleavebenefits/help/faq/updatestolaw_2.shtml">guidance</a> clarifies that many of the amended provisions became effective immediately, which previously was unclear.&nbsp; Here are some of the highlights:</p> <ul> <li> The law&rsquo;s expanded definition of family member,<a href="#_ftn1" name="_ftnref1" title="">[1]</a> broadened reasons for use,<a href="#_ftn2" name="_ftnref2" title="">[2]</a> and elimination of the waiting period for FLI benefits became effective on February 19, 2019.&nbsp; &nbsp;&nbsp;</li> <li> Also as of February 19, the guidance indicates that employer paid time off does not run concurrently with an employee&rsquo;s FLI benefit allotment, and as a result, employees&rsquo; FLI benefits are not liquidated through the use of employer paid leave. &nbsp;However, an employee may not &ldquo;double dip&rdquo; and receive FLI benefits at the same time as receiving full pay from their employer.</li> <li> Employees could begin receiving FLI benefits for bonding purposes in one day increments, revised from the previous standard of one consecutive six-week period or separate week-long increments.</li> </ul> <p> In addition, and as <a href="https://www.seyfarth.com/publications/MA022119-LE">previously reported</a>, beginning July 1, 2020, employees will be entitled to 12 weeks of continuous or 56 days of intermittent FLI benefits in a 12-month period.&nbsp; The FLI reasons for use include bonding within 12 months of the child&rsquo;s birth or placement with adoptive or foster parents, to care for a family member with a serious health condition, or to care for a victim of domestic violence or a sexually violent offense.&nbsp;</p> <p> As a reminder, effective June 30, 2019, employers with 30 or more employees for each working day during each of 20 or more calendar workweeks in the current or immediately preceding calendar year are considered covered employers under the New Jersey Family Leave Act (&ldquo;NJFLA&rdquo;), which provides job protection for employees who take leave under the NJFLA.&nbsp; Further, beginning January 1, 2020, employee contributions under the FLI Law will increase,<a href="#_ftn3" name="_ftnref3" title="">[3]</a> and as of July 1, 2020, employees will see an increased maximum FLI benefit and weekly benefit rate, in addition to the increased amount of leave.&nbsp;</p> <p> As the FLI law&rsquo;s provisions become effective, Seyfarth is continually tracking the latest changes.&nbsp; Seyfarth is also closely following developments in <a href="https://www.seyfarth.com/publications/OMM050119-LE">Massachusetts</a> and elsewhere as paid family leave expands across the country.</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 definition of &ldquo;family member&rdquo; was further expanded to include a child <em>of any age</em>, foster child or child born via gestational carrier, parent or parent-in-law, sibling, grandparent, grandchild, spouse, domestic partner, or partner in a civil union, and any other person related by blood to the employee or with whom the employee has a close association that is equivalent to a family relationship.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The most notable new reasons for use include claiming FLI benefits to bond with a newly placed foster child, and time off from work to attend to matters related to an occurrence of domestic or sexual violence.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> As a reminder, FLI benefits are employee-paid and there is no required employer contribution.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/MA050719-LE If Pain, Yes Gain—Part 64: Dallas Passes Paid Sick Leave Ordinance Despite Potential Legislative and Judicial Antidotes https://www.seyfarth.com:443/publications/MA050719-LE Tue, 07 May 2019 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> &nbsp;On April 24, the Dallas City Council passed a paid sick leave ordinance making Dallas the latest Texas municipality to become infected by the nation&rsquo;s sick leave epidemic. Dallas joins Austin and San Antonio as the state&rsquo;s sick leave epicenters despite the continued development of potential legislative and judicial sick leave cures.</em></p> <p> On April 24, 2019, the Dallas City Council passed the Earned Paid Sick Time ordinance (the &ldquo;Dallas Ordinance&rdquo;).&nbsp; Dallas is the third municipality in Texas to pass a paid sick leave ordinance.&nbsp; The Dallas Ordinance, which closely resembles the <a href="https://www.seyfarth.com/publications/MA022318-LE2">Austin</a> and <a href="https://www.seyfarth.com/publications/MA082118-LE">San Antonio</a> paid sick leave ordinances,<a href="#_ftn1" name="_ftnref1" title="">[1]</a> is scheduled to go into effect on August 1, 2019 for employers with more than five employees at any time in the preceding 12 months and on August 1, 2021 for all other employers.</p> <p> Whether the Dallas, San Antonio, and Austin ordinances will ever go into effect is currently unclear as multiple pieces of legislation that would preempt all three ordinances make their way through the Texas state legislature. &nbsp;In addition to a potential legislative remedy, judicial cures to the local paid sick leave spread remain a possibility.&nbsp; Austin paid sick leave was scheduled to go into effect on October 1, 2018; however, nearly seven months later the city&rsquo;s ordinance is still not in effect and remains trapped in judicial limbo.</p> <p> Specifically, and as <a href="https://www.seyfarth.com/publications/OMM112118-LE">previously reported</a>, in November 2018 the Texas Court of Appeals for the Third District (the &ldquo;Third District&rdquo;) granted a request to enjoin the Austin paid sick leave ordinance&rsquo;s effective date. The Third District determined that the Austin Ordinance violated the Texas Constitution because it is preempted by the Texas Minimum Wage Act. &nbsp;A petition for review of the Third District&#39;s decision by the Texas Supreme Court was filed on March 29, 2019.</p> <p> In an attempt to rid the state of these local laws, on April 11, 2019, the Texas Senate passed <a href="https://legiscan.com/TX/bill/SB2485/2019">Senate Bill 2485</a> (&ldquo;SB 2485&rdquo;), which would prohibit Texas political subdivisions from adopting or enforcing any ordinance, order, rule, regulation, or policy mandating a private employer&rsquo;s terms of employment relating to employment benefits. Under SB 2485, the enacted paid sick leave ordinances in Austin, San Antonio and Dallas would be void and unenforceable. SB 2485 was referred to the Texas House of Representatives and is currently pending in the House State Affairs Committee, which held a public hearing on May 1, 2019 to discuss, among other topics, SB 2485.</p> <p> The House of Representatives&rsquo; own preemption bill, House Bill 222 (&ldquo;HB 222&rdquo;), is also pending with the House State Affairs Committee. However, it currently is unclear if and when further action will take place in connection with HB 222. Complicating matters further, the 2019 Texas legislative session is set to close on May 27, 2019.</p> <p> Despite the potential for statewide preemption of local paid sick leave mandates and the judicial ruling that has at least temporarily cured Austin paid sick leave, the Dallas City Council opted to proceed with its own paid sick leave ordinance.</p> <p> Here are some highlights of the Dallas Ordinance:</p> <ul> <li> <strong>Definition of Employee:</strong> The Dallas Ordinance defines employee as an individual who performs at least 80 hours of work for pay in Dallas in a year for an employer, including work performed through the services of a temporary employment agency. The Dallas Ordinance, however, excludes independent contractors, as defined by the Texas Administrative Code, and unpaid interns from the definition of employee.</li> <li> <strong>Definition of Employer:</strong> The Dallas Ordinance defines employer broadly, to include 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. The Dallas Ordinance only excludes from coverage the United States, State of Texas, and City of Dallas governments and any agency that cannot be regulated by city ordinance.</li> <li> <strong>Accrual Rate and Cap:</strong> Under the Dallas Ordinance, employees accrue one hour of earned paid sick time for every 30 hours worked for the employer in the City of Dallas, up to 64 hours of earned paid sick time per year for medium or large employees (defined as an employer with more than 15 employees at any time in the preceding 12 months, excluding the employer&rsquo;s family members) and 48 hours per year for all other employers.</li> <li> <strong>Carryover:</strong> Employers must permit employees to carry over all available earned paid sick time up to the applicable yearly cap.&nbsp; Employers who frontload 64 or 48 hours of earned paid sick time, whichever is applicable, to employees at the beginning of the year, however, are not required to permit year-end carryover of unused time.</li> <li> <strong>Usage Cap:</strong> The Dallas Ordinance allows employees to use up to eight days of earned paid sick time per year.</li> <li> <strong>Reasons for Use: </strong>An employee may use available earned paid sick time for the following reasons: <strong>(1)</strong> the employee&rsquo;s physical or mental illness, physical injury, preventive medical or health care, or health condition; <strong>(2)</strong> the employee&rsquo;s need to care for their family member&rsquo;s physical or mental illness, physical injury, preventative medical or health care, or health condition;<a href="#_ftn2" name="_ftnref2" title="">[2]</a> and <strong>(3) </strong>certain safe time reasons relating to the employee&rsquo;s or their family members&rsquo; status as a victim of domestic abuse, sexual assault, or stalking.</li> </ul> <p> While an antidote to local paid sick leave in Texas could arrive in the coming weeks, employers with operations in San Antonio and Dallas should consider taking the following actions:</p> <ul> <li> Monitor judicial and potential legislative developments involving the Austin, San Antonio, and Dallas paid sick leave ordinances.</li> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the San Antonio and Dallas ordinances.</li> <li> Review policies on attendance, call-in procedures, anti-retaliation, and discipline for compliance with the San Antonio and Dallas ordinances.</li> <li> Develop a new paid sick leave policy that complies with the San Antonio and Dallas ordinances for any employees who are not covered under existing paid sick leave or PTO policies.</li> </ul> <p> To stay up-to-date on Paid Sick Leave developments,&nbsp;<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>&nbsp;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&nbsp;<a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</p> <p> &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> Amid challenges to the Austin paid sick leave ordinance, in August 2018, <a href="https://www.seyfarth.com/publications/MA082118-LE">San Antonio City Council passed a paid sick leave ordinance </a>which is currently scheduled to go in effect in August 2019.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Under the Dallas Ordinance, &ldquo;family member&rdquo; is defined to include a (1) spouse, (2) child, (3) parent, and (4) any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL050719 Likely to be Dazed and Confused – An Update https://www.seyfarth.com:443/publications/EL050719 Tue, 07 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Regular readers will recall that in March we blogged about cannabis-related trademarks. We now have an update:<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/05/likely-to-be-dazed-and-confused-an-update/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT050619 Likely to be Dazed and Confused – An Update https://www.seyfarth.com:443/publications/TBT050619 Mon, 06 May 2019 00:00:00 -0400 <p> Regular readers will recall that in March we blogged about cannabis-related trademarks. We now have an update:<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/05/likely-to-be-dazed-and-confused-an-update/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS050619 Get Out Your Popcorn: Former Director of R&D Accused of Stealing Secret Popcorn Recipes https://www.seyfarth.com:443/publications/TS050619 Mon, 06 May 2019 00:00:00 -0400 <p> Caramel Crisp LLC, the owner of Garrett Popcorn Shops (&ldquo;Garrett&rdquo;), the renowned Chicago-based purveyor of deliciously flavored popcorn, recently filed suit in federal court in Chicago against its former director of research and development, Aisha Putnam, alleging that she misappropriated the company&rsquo;s trade secrets, including its recipes for Garret&rsquo;s famous popcorn, after she was fired. Putnam was hired in 2014 and was eventually promoted to the role of Director of Research and Development, where she had access to some of Garrett&rsquo;s most confidential information and trade secrets. In that role, she was required to sign a confidentiality and non-compete agreement, which, among other things, required her to return all of Garrett&rsquo;s confidential information upon the termination of her employment.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/05/articles/trade-secrets/get-out-your-popcorn-former-director-of-rd-accused-of-stealing-secret-popcorn-recipes/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM050619-CORP Will Banks be Able to Play it SAFE with Marijuana Related Businesses? https://www.seyfarth.com:443/publications/OMM050619-CORP Mon, 06 May 2019 00:00:00 -0400 <div> Marijuana is estimated to be a $10 billion industry and rapidly growing. Almost all of it is conducted in cash. Although legal in thirty three states plus Washington, D.C., Puerto Rico and Guam, marijuana remains illegal at the federal level. Accordingly, financial institutions that handle proceeds from a transaction involving the distribution, manufacture or sale of marijuana would be handling illegal proceeds in violation of both federal money laundering statutes and banking regulations that prohibit such institutions from participating in any transaction or engaging in any relationship involving illegal proceeds.&nbsp;</div> <div> &nbsp;</div> <div> Despite these federal laws, in 2014, Department of Treasury&rsquo;s FinCEN issued a series of non-binding guidelines for financial institutions interested in providing banking services to marijuana related businesses (MRBs). In issuing those guidelines, FinCEN did not opine on or condone such transactions as legal. FinCEN also required banks providing such services to file suspicious activity reports (SARs) for transactions, including deposit transactions, involving MRBs. Based on FinCEN statistics, in 2018 over 500 financial institutions filed SARs related to marijuana transactions. These financial institutions were mostly community banks and credit unions. National, regional, state and large more local banks have stayed away from MRBs and any transactions involving marijuana. These institutions are not willing to risk loss of deposit insurance, accusations of money laundering or even loss of banking licenses and it is clear that the situation will not change without a change in federal law.</div> <div> &nbsp;</div> <div> Six years ago, when only a handful of states had legalized marijuana, Congressman Ed Perlmutter (D-CO) first introduced legislation to provide a safe harbor for financial institutions wanting to service the industry. Until this session of Congress, such legislation was dead on arrival.</div> <div> &nbsp;</div> <div> This year, with a Democratic controlled House, the Secure and Fair Enforcement Banking Act of 2019, known as the &ldquo;SAFE Act,&rdquo; is very much alive. In late March of this year, the House Financial Services Committee voted overwhelmingly to move the SAFE Act to the full House for a vote, and the first hearings on the Act were held in April.&nbsp;</div> <div> &nbsp;</div> <div> The SAFE Act, if enacted into law, would not legalize marijuana. Rather, it would provide a safe harbor to enable depository institutions, FDIC-insured banks and credit unions, to serve state legal MRBs without violating money laundering and other federal laws. The SAFE Act also provides that proceeds from transactions involving MRBs are not be considered proceeds from illegal activities. This could facilitate a wide variety of financial services involving MRBs, such as stock trading, custodial and escrow accounts and both real estate and corporate financing.</div> <div> &nbsp;</div> <div> And then there is the Senate. While both the marijuana and financial services industries are optimistic that the House will pass the SAFE Act, there is little optimism that the Republican controlled Senate will pass the SAFE Act. In late April, the Chair of the Senate Finance Committee, Sen. Mike Crapo (R-ID) would not commit to take up the legislation because &ldquo;we want to see how we can resolve this difference between criminal law and our financial law.&rdquo; Isn&rsquo;t that what Congress is supposed to do?</div> <div> &nbsp;</div> <div> In summary, while the SAFE Act and other legislation before Congress such as the STATES Act, which would prevent enforcement of the Controlled Substances Act against state legal marijuana transactions, provide glimmers of hope, it appears that there will be no change in the laws governing financial institutions&rsquo; ability to serve the marijuana industry until there is a change in control of the Senate.&nbsp;</div> https://www.seyfarth.com:443/news/curtisbloomberglaw050619 James Curtis quoted in Bloomberg Law https://www.seyfarth.com:443/news/curtisbloomberglaw050619 Mon, 06 May 2019 00:00:00 -0400 <p> James Curtis was quoted in a May 6 story from Bloomberg Law, &quot;Deadly Superbug Fungus Could Pose Threat to Health-Care Workers.&quot; Curtis thinks most hospitals are staying on top of this.</p> https://www.seyfarth.com:443/news/ssflaw360050319 Sam Schwartz-Fenwick quoted in Law360 https://www.seyfarth.com:443/news/ssflaw360050319 Fri, 03 May 2019 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a May 3 article in Law360, &quot;Roberts Seen As Swing Vote In High Court LGBT Rights Case.&quot; Schwartz-Fenwick said that, on this court, Roberts definitely is the person who&#39;s standing between the liberal members of the court and the conservative members.</p> https://www.seyfarth.com:443/publications/WSE050319 Democratic House Proposes Large Increases for OSHA and MSHA Budgets https://www.seyfarth.com:443/publications/WSE050319 Fri, 03 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: A Democratic lead House subcommittee has proposed a large budget increase for both the Occupational Safety and Health Administration and the Mine Safety and Health Administration.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-enforcement/democratic-house-proposes-large-increases-for-osha-and-msha-budgets/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM050219-LIT Implementation Date For The USDA’s National Bioengineered Food Disclosure Standard https://www.seyfarth.com:443/publications/OMM050219-LIT Thu, 02 May 2019 00:00:00 -0400 <div> The implementation date for the disclosure obligations triggered by the USDA&rsquo;s final rule establishing a national standard for the disclosure of bioengineered ingredients in certain food products is January 1, 2020 for regulated entities other than small manufacturers (the implementation date for small manufacturers is January 1, 2021).&nbsp; The implementation date is a deadline by which regulated entities should begin implementing the standard by identifying the foods that will need to bear a disclosure, the records necessary to meet the recordkeeping requirements, and the type of disclosure that the entity will use on its products.&nbsp; The final rule, published on December 21, 2018, includes a list of the &ldquo;bioengineered&rdquo; ingredients that can trigger disclosure obligations, and provides additional direction to manufacturers and others as to how they must disclose bioengineered foods.&nbsp;&nbsp;</div> <h3> Background</h3> <div> The USDA&rsquo;s rule, which is referred to as the National Bioengineered Food Disclosure Standard (the &ldquo;Standard&rdquo;), was promulgated pursuant to the 2016 National Bioengineered Food Disclosure Standard Act (the &ldquo;Act&rdquo;) enacted in July 2016.&nbsp; The Act preempted the GMO labeling regimes of several states, including Vermont.&nbsp; You can read more about the background of the Act and the actions undertaken by the USDA prior to the release of its final rule <a href="https://www.foodnavigator-usa.com/Article/2017/07/14/GUEST-ARTICLE-GMO-labeling-what-happens-next">here </a>and <a href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=1&amp;ved=2ahUKEwi647XT1_XfAhXPoYMKHZznA9UQFjAAegQIARAC&amp;url=https%3A%2F%2Fwww.seyfarth.com%2Fuploads%2FsiteFiles%2Fpublications%2FOMM060518LIT.pdf&amp;usg=AOvVaw1L1GF8l3lqLjcTRSaauOGe">here</a>.</div> <h3> List of &ldquo;Bioengineered&rdquo; Foods</h3> <div> The USDA&rsquo;s Standard requires disclosure for certain food products that are &ldquo;bioengineered&rdquo; (or &ldquo;BE&rdquo;) or that contain BE ingredients.&nbsp; The final regulations define BE food to mean a &ldquo;food that contains genetic material that has been modified through <em>in vitro</em> recombinant deoxyribonucleic acid (rDNA) techniques and for which the modification could not otherwise be obtained through conventional breeding or found in nature.&rdquo;&nbsp; Food is separately defined in the regulations and includes certain exemptions.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Notably, the definition of BE food does not include food in which modified genetic material is not detectable.&nbsp; The regulations separately define when modified genetic material is not detectable.&nbsp; The definition of BE food also excludes incidental additives as described in 21 C.F.R. &sect; 101.100(a)(3).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> As part of the Standard, the USDA has established a list of commercially available bioengineered foods: alfalfa, apple (Artic&trade; varieties), canola, corn, cotton, eggplant (BARI Bt Begun varieties), papaya (ringspot virus-resistant varieties), pineapple (pink flesh varieties), potato, salmon (AquAdvantage&reg;), soybean, squash (summer), and sugarbeet.&nbsp; The list is intended to aid regulated entities considering whether they need to make a BE disclosure.&nbsp; However, it is not intended to be exhaustive.&nbsp; Indeed, the USDA notes that new bioengineered products continue to be developed.&nbsp; The USDA will review the list annually and make updates through the normal rulemaking process, as needed.</div> <div> &nbsp;</div> <div> Entities subject to the disclosure requirements, except for manufacturers with annual receipts of less than $2.5 million, must make appropriate disclosures for BE foods not on the USDA&rsquo;s list if the entity has actual knowledge that the food it is selling is bioengineered.&nbsp; &ldquo;Actual knowledge&rdquo; is not defined in the regulations.</div> <div> &nbsp;</div> <div> On its <a href="https://www.ams.usda.gov/rules-regulations/be/bioengineered-foods-list">website</a>, the USDA provides specific guidance about the bioengineered foods and whether use of that food as an ingredient will trigger any disclosure obligations, depending on the prevalence of that bioengineered food in U.S. and global crops.&nbsp; For example, bioengineered corn is so prevalent that, according to the USDA, &ldquo;corn grain moving in global commerce&rdquo; and corn that comes from certain countries, including the United States, &ldquo;should be presumed to be BE corn&rdquo; requiring a disclosure, absent an exemption.&nbsp; The USDA notes, however, that &ldquo;[t]here is no commercial production of BE popcorn.&nbsp; All popcorn can be presumed to be non-BE.&rdquo;</div> <h3> Disclosure Options&nbsp;</h3> <div> Except for certain exemptions (more on that below), if a food product is a bioengineered food or contains a bioengineered ingredient, regulated entities will be required to include a disclosure on the label of that food product.&nbsp; The Standard allows regulated entities to choose from four disclosure options for non-exempt foods: a text disclosure, a symbol disclosure, an electronic link disclosure, or a text message disclosure.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> If a regulated entity chooses to use a text disclosure on a food label, it must read &ldquo;bioengineered food&rdquo; or &ldquo;contains bioengineered ingredients,&rdquo; as appropriate.&nbsp; For a symbol disclosure, manufacturers must utilize a <a href="https://www.ams.usda.gov/sites/default/files/media/Bioengineered.png">symbol </a>stating that the product is &ldquo;bioengineered.&rdquo;&nbsp; Although food manufacturers are not required to disclose the fact that ingredients in a particular food were derived from bioengineered foods if the modified genetic material is no longer detectable in that product, the USDA also provides an additional <a href="https://www.ams.usda.gov/sites/default/files/media/DerivedFrom.png">symbol </a>for regulated entities who voluntarily choose to disclose the fact that their product was derived from bioengineering.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> For the electronic link disclosure option, regulated entities may 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 electronic disclosure link must be accompanied by a text statement that reads &ldquo;Scan here for food information&rdquo; and a telephone number that consumers can call for information.&nbsp; The USDA&rsquo;s Standard also requires that either the text disclosure or symbol disclosure described above be displayed on the first screen a consumer sees after scanning the electronic link.</div> <div> &nbsp;</div> <div> For the text message disclosure option, the food product label must include the statement &ldquo;Text [command word] to [number] for bioengineered food information.&rdquo;&nbsp; When a consumer texts the word chosen by the manufacturer to the number, the consumer must immediately receive a text message containing the appropriate bioengineered food disclosure.&nbsp;&nbsp;</div> <h3> Exemptions from the Labeling Requirements</h3> <div> The Standard exempts a number of foods and entities from the labeling requirements.&nbsp; Exempted foods include animal products (<em>e.g.</em>, meat or eggs) from animals that consumed feed containing GMO 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.</div> <div> &nbsp;</div> <div> The Standard also includes an exemption for products that have an inadvertent or &ldquo;technically unavoidable presence&rdquo; of a bioengineered food, as long as that presence amounts to five percent or less of the ingredients that make up that food product.&nbsp; The USDA defines &ldquo;technically unavoidable&rdquo; as a situation where bioengineered food unintentionally remains during the reasonable and customary practices used to separate bioengineered and non-bioengineered foods.&nbsp; For example, a small amount of bioengineered corn remaining in a harvesting combine despite a reasonable effort to remove all bioengineered corn from the combine before harvesting the non-bioengineered corn could qualify as &ldquo;technically unavoidable.&rdquo;&nbsp; The threshold is intended to allow for coexistence among BE and non-BE crops.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> The Standard further exempts small food manufacturers whose annual receipts total less than $2.5 million.&nbsp; However, these small food manufacturers and other exempt entities, such as restaurants, can voluntarily comply with the Standard if they so choose.&nbsp;</div> <h3> Compliance Deadline</h3> <div> The USDA requires that all regulated entities comply with the Standard beginning on January 1, 2022.&nbsp; Regulated entities can voluntarily comply with the Standard until December 31, 2021.&nbsp;&nbsp;</div> <h3> Enforcement</h3> <div> The Act authorizes the USDA to enforce compliance with the Standard only through records audits and examinations, hearings and public disclosure of the summary of the results of audits, examinations, and similar activities.&nbsp; However, the USDA advises in the Federal Register that states may adopt standards identical to the USDA Standard, and impose remedies for violations of the state standard, such as monetary damages and injunctive relief.&nbsp;</div> <h3> Final Thoughts</h3> <div> Like other new or substantially modified labeling schemes, regulated entities may be required to devote substantial time and resources to developing and implementing an effective compliance strategy and plan.&nbsp; Compliance strategies and plans will likely need to involve evaluation of products, consideration of alternative methods of compliance available under the regulations, and coordination with others in the company&rsquo;s chain of distribution, including review and potential update of commercial contracts.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Strategies and plans will also likely not be &ldquo;one-size-fits-all.&rdquo;&nbsp; For instance, some entities may transition conventional products to organic, to take advantage of the exemption in the Standard for food certified under the National Organic Program.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> Moreover, &ldquo;over-disclosing,&rdquo; <em>i.e.</em>, simply placing a disclosure on every product regardless of whether it is required, is likely not an option for regulated entities.&nbsp; The regulations state that, absent certain exceptions, a label shall not bear a disclosure that a food is a bioengineered food or contains a bioengineered food ingredient if the records maintained by the company demonstrate that the food is not a bioengineered food or does not contain a bioengineered food ingredient.&nbsp;</div> <div> &nbsp; &nbsp;&nbsp;</div> <div> Failure to develop and execute an appropriate compliance strategy and plan is not without risk.&nbsp; While the Standard&rsquo;s provisions for USDA enforcement are relatively limited, at least some states will likely seek to adopt their own identical standards but with additional remedies for violations.&nbsp; Moreover, consumer class action plaintiffs&rsquo; attorneys and competitors may also attempt to sue regulated entities based on violations under state laws, and may use the USDA&rsquo;s central publication of violations as a resource.&nbsp; &nbsp; &nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/MA050219-LE Breaking News: EEOC Notifies Employers Of Required Reporting Obligation for 2017 and 2018 Component 2 Data Reports by September 30, 2019 https://www.seyfarth.com:443/publications/MA050219-LE Thu, 02 May 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Today, the Federal Register included an unpublished version of the EEOC&rsquo;s announcement that it will collect 2017 and 2018 Component 2 data from employers as part of the Revised EEO-1 collection that will take place by September 30, 2019.&nbsp; This announcement will be formally published in the Federal Register tomorrow.&nbsp;</em></p> <p> <strong>Revised EEO-1 Pay Data Reporting</strong></p> <p> As we previously <a href="https://www.seyfarth.com/publications/MA042519-LE">reported</a>, on April 25, 2019, the U.S. District Court for the District of Columbia issued an order requiring the EEOC to collect two years of hours and pay data in connection with the Revised EEO-1 Report (&ldquo;Component 2&rdquo;) by September 30, 2019.&nbsp; The Court ordered the collection of 2018 data and ordered that the EEOC collect Component 2 data for 2017 by the September 30, 2019 (or, at its option, collect Component 2 data for 2019 as part of the Spring 2020 EEO-1 reporting cycle).&nbsp; The Court&rsquo;s order gave the EEOC until May 3 to notify the Court, the Plaintiffs, and the employer community.&nbsp; Pursuant to the advance Federal Register notice, the EEOC has submitted a notice to be filed on Friday, consistent with the Court&rsquo;s Order, that it will collect both 2017 and 2018 data by September 30, 2019.&nbsp; The <a href="https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-09225.pdf">unpublished notice</a> on the Federal Register website states:</p> <p style="margin-left:.5in;"> EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court&rsquo;s recent decision in <em>National Women&rsquo;s Law Center, et al., v. Office of Management and Budget, et al.</em>, Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.</p> <p> The notice will be published on the Federal Register tomorrow.&nbsp;</p> <p> <strong>Changes to 2018 Demographic Date Reporting Processes</strong></p> <p> In addition to the September 30 Component 2 collection periods, Component 1 data (the &ldquo;original&rdquo; EEO-1) remains due on May 31, 2019.&nbsp; In a less well publicized action, the EEOC recently revised its process for requesting extensions to the May 31, 2019 deadline. When the EEO-1 Survey site opened in March 2019, the EEOC expressly allowed for an automatic 30-day extension for employers that sent in an extension request before the May 31 deadline.&nbsp; The agency has since made an unannounced change limiting the automatic extension period from 30 days to two weeks.&nbsp; The revised instructions are as follows:</p> <p style="margin-left:.5in;"> The 2018 EEO-1 report is due on May 31, 2019. To request a two-week extension, please email the request to E1.EXTENSIONS@EEOC.GOV.&nbsp; Once the request is received, your company&#39;s 2018 EEO-1 report deadline will be extended to June 14, 2019.&nbsp; Your report must be submitted and certified by that date. If your company is requesting an extension beyond two-weeks, please summarize the issue your company is experiencing, and the Employer Data Team will provide assistance.&nbsp; The EEO-1 Employer Data Team can be reach at 1-877-392-4647 (toll-free) or 1-866-262-0032 (fax) from 9 am - 7 pm EST, Monday - Friday.</p> <p> <strong>What Does This Mean for Employers?</strong></p> <p> Collection of Component 2 data for 2017 in addition to 2018 means that employers will now need to collect and submit twice as much data during the compressed time frame created by the September 30 deadline.&nbsp; As a result, employers should immediately implement the steps needed to collect, aggregate and report on pay and hours data for both years. While litigation options remain, employers are best advised to move forward with implementation measures.&nbsp; Whether your organization prepares reports internally or sends data to a vendor for processing, this is the time move forward the data collection process and identify the critical resources to aggregate, compile, test, and submit the data by September 30, 2019.</p> <p> The EEOC will submit its first progress report to the District Court and Plaintiffs tomorrow outlining its progress and whether it is on track to meet the September 30 filing deadline set in the Court&rsquo;s order.&nbsp; We also await additional guidance from the EEOC regarding the specific filing specifications and requirements.&nbsp;</p> https://www.seyfarth.com:443/publications/EL050219 NLRB Publishes Advice Memo Finding that Company Maintained Unlawfully Overbroad Work Rules But Did Not Violate NLRA By Discharging Employee for Facebook Video or Filing Defamation Suit Against Two Former Employees https://www.seyfarth.com:443/publications/EL050219 Thu, 02 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The NLRB&rsquo;s Division of Advice recently released an Advice Memorandum finding that a security company&rsquo;s work rules were unlawfully overbroad, but that the company did not violate the National Labor Relations Act by discharging one of its employees for posting an insidious Facebook video or by filing a defamation lawsuit against two former employees.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/05/nlrb-publishes-advice-memo-finding-that-company-maintained-unlawfully-overbroad-work-rules-but-did-not-violate-nlra-by-discharging-employee-for-facebook-video-or-filing-defamation-suit-against-two-for/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT050219 The Week in Weed: May 3, 2019 https://www.seyfarth.com:443/publications/TBT050219 Thu, 02 May 2019 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/2019/05/the-week-in-weed-may-3-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM050219-LE Seyfarth Shaw Policy Matters Newsletter - May 2, 2019 https://www.seyfarth.com:443/publications/PM050219-LE Thu, 02 May 2019 00:00:00 -0400 <p> <span style="color:#696969;"><strong>Latest on the EEO-1.</strong>&nbsp; Today, in response to a federal court order that has been </span><a href="https://www.seyfarth.com/publications/PM042519-LE"><span style="color:#0099ff;">discussed here previously</span></a><span style="color:#696969;">, the EEOC announced that, in mid-July, it would begin collecting the 2017 and 2018 Component 2 data (completed by September 30).&nbsp; Separately, employers must submit Component 1 data by May 31, 2019; the EEOC is tightening that deadline, having exchanged an automatic (upon request) 30-day extension for a 14-day extension.&nbsp; For more on the issue, see Seyfarth&rsquo;s </span><a href="https://www.seyfarth.com/publications/MA050219-LE"><span style="color:#0099ff;">Client Alert</span></a><span style="color:#696969;">.&nbsp; We will continue to be deeply involved in evaluating these issues as further developments roll out; after several webinars on the practical aspects of implementing the Court&rsquo;s order, many compliance questions remain.&nbsp; Stay tuned for further information.</span></p> <p> <span style="color:#696969;"><strong>House Appropriators Propose $1.2 Billion Increase for DOL.</strong>&nbsp; Earlier this week, the House Appropriations Committee released its proposed Labor-HHS </span><a href="https://appropriations.house.gov/sites/democrats.appropriations.house.gov/files/FY2020%20LHHS%20Sub%20Markup%20Draft.pdf"><span style="color:#0099ff;">spending bill for FY2020</span></a><span style="color:#696969;">.&nbsp; On the very next day, the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies approved the bill, which would increase DOL&rsquo;s budget by 10% from current spending levels, and ignores the Trump Administration&rsquo;s proposal to <u>cut</u> the budget by an equivalent amount.&nbsp; The bill heads next to the full committee.<br /> <br /> <strong>Senate Labor-HHS Subcommittee Holds Hearing on DOL Budget.</strong>&nbsp; Meanwhile, the Senate counterpart held a </span><a href="https://www.appropriations.senate.gov/hearings/review-of-the-fy2020-budget-request-for-department-of-labor"><span style="color:#0099ff;">hearing</span></a><span style="color:#696969;"> on the Trump Administration&rsquo;s FY2020 budget request for the Department of Labor, where the sole </span><a href="https://www.appropriations.senate.gov/imo/media/doc/05.02.19--Acosta%20Testimony.pdf"><span style="color:#0099ff;">witness</span></a><span style="color:#696969;"> was Secretary of Labor Acosta.&nbsp; Whether House and Senate appropriators can reach an agreement on the Labor Department&rsquo;s&nbsp;&mdash; or any other Department&rsquo;s &mdash;budget remains to be seen.<br /> <br /> <strong>Acosta Testifies at House Education &amp; Labor Committee Hearing.&nbsp;</strong> Before venturing to the Senate side of the Hill, Secretary Acosta spent the better part of a day answering questions in a sometimes contentious hearing at the House Education &amp; Labor Committee.&nbsp; The five-plus hour (including recess) </span><a href="https://edlabor.house.gov/hearings/04/24/2019/examining-the-policies-and-priorities-of-the-us-department-of-labor"><span style="color:#0099ff;">hearing</span></a><span style="color:#696969;"> covered the waterfront of the Department&rsquo;s regulatory and enforcement initiatives and priorities, as well as provided an opportunity for Secretary Acosta to explain that the Administration does not currently support a change to the federal minimum wage.<br /> <br /> <strong>Equality Act Passes House Judiciary.</strong>&nbsp; As expected, the Equality Act (H.R. 5) passed the House Judiciary Committee, with the vote breaking along party lines.&nbsp; As a reminder, the Equality Act , would amend existing civil rights laws to extend antidiscrimination protections to LGBTQ Americans in a wide variety of contexts.&nbsp; Passage continues to be expected in the House; the bill&rsquo;s future in the Senate remains uncertain.</span></p> <p> <span style="color:#696969;"><strong>Equal Rights Amendment Back in House Judiciary.</strong>&nbsp; In a busy week &mdash; that was also expected to include a hearing on the Mueller Report with Attorney General Barr &mdash; a House Judiciary subcommittee held a </span><a href="https://judiciary.house.gov/legislation/hearings/equal-rights-amendment"><span style="color:#0099ff;">hearing</span></a><span style="color:#696969;"> on the Equal Rights Amendment.&nbsp; A joint resolution would remove the deadline from the preamble of the original constitutional amendment that passed Congress in 1972, leaving it one state shy of the 38 states needed for ratification (and, more significantly, with no deadline to obtain that ratification).<br /> <br /> <strong>Hartongensis Confirmed to Head PBGC.</strong>&nbsp; Gordon Hartogensis was </span><a href="https://www.congress.gov/nomination/116th-congress/150"><span style="color:#0099ff;">confirmed</span></a><span style="color:#696969;"> by the U.S. Senate by a 72-27 margin.&nbsp; Hartogensis will now head the Pension Benefits Guaranty Corporation.&nbsp; He is the second labor-related nominee to benefit from the eased Senate rules surrounding nominations, joining Cheryl Stanton, who this week officially took the </span><a href="https://www.dol.gov/whd/whdkeyp.htm"><span style="color:#0099ff;">helm</span></a><span style="color:#696969;"> at the Wage &amp; Hour Division.</span></p> <p> <span style="color:#696969;">To subscribe to the Policy Matters weekly newsletter, </span><a class="cms-content-links" href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy"><span style="color:#0099ff;">click here</span></a><span style="color:#696969;">.</span></p> https://www.seyfarth.com:443/publications/RS050219-LE Regulatory Spring: Rulemaking by the Wage & Hour Division - May 2, 2019 https://www.seyfarth.com:443/publications/RS050219-LE Thu, 02 May 2019 00:00:00 -0400 <p> This week&rsquo;s edition of <em>Regulatory Spring</em> marks our first of three installments on the Department of Labor&rsquo;s proposed &ldquo;regular rate&rdquo; rule. This is also our first audio installment of the series. This week, we provide an overview of the proposed regular rate rule. Then, in our next two installments, we will present questions to solicit your feedback on where the rule hits the mark and where, if at all, the DOL could do more to craft an clear and effective final rule.<br /> <br /> <strong>You can check out our audio blog by </strong><a href="https://www.seyfarth.com/dir_docs/publications/Reg_Spring-Reg_Rate_Intro_05022019.mp3"><strong>clicking here</strong></a>.<br /> <br /> <em>Note: If you prefer to read a transcript of the post, you can do so </em><em><a href="http://marketing.seyfarth.com/rs/emsdocuments/RegulatorySpring_050219.pdf">here</a>.</em></p> https://www.seyfarth.com:443/news/davis050219 Seyfarth Adds Commercial Litigator Tracee E. Davis in New York https://www.seyfarth.com:443/news/davis050219 Thu, 02 May 2019 00:00:00 -0400 <p> NEW YORK -- (May 2, 2019) -- Seyfarth Shaw LLP announced today the arrival of partner Tracee E. Davis to the Litigation department and Global Privacy &amp; Security team in New York. Davis joins from Zeichner Ellman &amp; Krause LLP (ZEK), where she was a partner in its Litigation and Electronic Discovery groups in New York. Prior to working at ZEK, Davis had a long-standing role as the Principal Court Attorney for Justice Charles E. Ramos of the New York Supreme Court, Commercial Division. In that capacity, she played a principal role in the disposition of more than 400 complex commercial lawsuits.</p> <p> Davis represents clients in a broad range of complex business and commercial disputes, including financial services and class action litigation, tax/real estate issues, contractual matters and business tort, and contract claims. In addition, she has litigated allegations of insurance adjuster mismanagement and arbitrated matters involving the separation and dissolution of businesses.</p> <p> &ldquo;Tracee is an exceptionally talented lawyer, practicing at the highest level in complex commercial and financial litigation,&rdquo; said James McGrath, chair of Seyfarth&rsquo;s Litigation department. &ldquo;She brings an outstanding skillset to our national platform, including knowledge in the vital area of cybersecurity and data privacy.&rdquo;</p> <p> Davis is CIPP/US certified by the International Association of Privacy Professionals, and plays an active role in the New York State Bar Association&rsquo;s Committee on Technology in the Law and its subcommittee on Artificial Intelligence. She also has an extensive background in risk assessment and loss mitigation.</p> <p> &ldquo;As we continue to enhance our commercial litigation expertise on the East Coast, Tracee is an ideal addition. In particular, we are excited about Tracee&rsquo;s ability to give clients an exceptionally informed perspective on New York State Court litigation,&rdquo; said Lorie Almon, co-managing partner of Seyfarth&rsquo;s New York office.</p> <p> In addition to her robust practice, Davis currently serves as a commissioner of the New York State Ethics Commission for the Unified Court System. A recipient of the New York State Bar Association&rsquo;s Distinguished Leadership Award and previous chair of the Bar&rsquo;s Commercial and Federal Litigation Section, Davis has also co-chaired the New York State Bar Association&rsquo; annual diversity program, <em>Smooth Moves: Career Strategies for Attorneys of Color</em>, for over a decade.</p> <p> &ldquo;Tracee is highly regarded within the New York State Bar and the state court judiciary. We are fortunate to have a lawyer and, more importantly, a leader of Tracee&rsquo;s caliber join our team,&rdquo; said John Napoli, co-managing partner of Seyfarth&rsquo;s New York office.</p> <p> Earlier in her career, Davis served as an Adjunct Professor of Law at New York Law School. She earned a J.D. from American University, Washington College of Law, and her B.A. from Montclair State 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/chambersdi050219 Seyfarth Shortlisted for 2019 Chambers Diversity & Inclusion Awards https://www.seyfarth.com:443/news/chambersdi050219 Thu, 02 May 2019 00:00:00 -0400 <p> Seyfarth has been shortlisted for the 2019 <em>Chambers USA</em> Diversity &amp; Inclusion Awards. The firm is nominated for:</p> <ul> <li> <em>Outstanding Diversity &amp; Inclusion Program</em>, in recognition of Seyfarth&rsquo;s &ldquo;Rooney Rule&rdquo; initiative which, inspired by the NFL, has helped improve the hiring of diverse candidates across the firm.</li> </ul> <p> <em>Chambers</em> Diversity &amp; Inclusion aims to promote the advancement of inclusion across the global legal profession through research, training, workshops, forums and awards.</p> <p> The winners will be announced at the <em>Chambers</em> Diversity &amp; Inclusion Awards: USA 2019 celebration on June 6 in San Francisco.</p> https://www.seyfarth.com:443/news/olsontymanshrm050219 Camille Olson and Annette Tyman quoted in SHRM https://www.seyfarth.com:443/news/olsontymanshrm050219 Thu, 02 May 2019 00:00:00 -0400 <p> Camille Olson and Annette Tyman were quoted in a May 2 story from SHRM, &quot;Employers Must Report 2017 and 2018 EE)-1 Pay Data.&quot; Tyman said that employers should reach out to their subject-matter and technical experts and pull together resources to ensure that the required data components can be captured, analyzed and reported by Sept. 30. Olson said that employers should conduct an initial assessment of their systems. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/EEO-1-Pay-Data-Report-2017-2018.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/wcarhrdive050219 Seyfarth's Workplace Class Action Report referenced in HR Dive https://www.seyfarth.com:443/news/wcarhrdive050219 Thu, 02 May 2019 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in a May 2 story from HR Dive, &quot;Labor, employment suits the most common type of class action, study says.&quot; Seyfarth&#39;s 14th annual Workplace Class Action Litigation Report showed 1,408 wage and hour class action settlements in 2017 &mdash; a record high. You can read the <a href="https://www.hrdive.com/news/labor-employment-suits-the-most-common-type-of-class-action-study-says/553964/">full article here</a>.</p> https://www.seyfarth.com:443/news/atkinsonab050119 Scott Atkinson quoted in American Banker https://www.seyfarth.com:443/news/atkinsonab050119 Wed, 01 May 2019 00:00:00 -0400 <p> Scott Atkinson was quoted in a May 1 story from American Banker, &quot;What ruling on noncompte clauses means for banks - and job hunters.&quot; Atkinson said that&#39;s good news for job hunters, though from the perspective of management, the weakening of noncompete agreements removes a tool from the toolkit for protecting client relationships.</p> https://www.seyfarth.com:443/news/fritzmf050119 Kevin Fritz profiled in Moving Forward https://www.seyfarth.com:443/news/fritzmf050119 Wed, 01 May 2019 00:00:00 -0400 <p> Kevin Fritz was profiled in the May issue of Moving Froward, &quot;A Journey To Empowerment.&quot; Fritz described his journey to independence in accepting the 2018 Harold Scharper Award from the Division of Disability Resources and Educational Services of the University of Illinois College of Applied Sciences. You can read the <a href="https://www.ahs.illinois.edu/blog/journey-empowerment">full profile here</a>.</p> https://www.seyfarth.com:443/news/lucanomalawyer050119 Andrew Lucano quoted in the M&A Lawyer https://www.seyfarth.com:443/news/lucanomalawyer050119 Wed, 01 May 2019 00:00:00 -0400 <p> Andrew Lucano was quoted in the May issue of the M&amp;A Lawyer, &quot;Welcome to the R&amp;W Era?: The Middle-Market M&amp;A Picture for 2019.&quot; Lucano said that one thing that&#39;s embellished the market&#39;s seller-friendly nature is what&#39;s been going on with representations and warranties insurance: it&#39;s getting more and more popular every year.</p> https://www.seyfarth.com:443/publications/OMM050119-EB IRS Expands Self-Correction Program https://www.seyfarth.com:443/publications/OMM050119-EB Wed, 01 May 2019 00:00:00 -0400 <div> On April 19, 2019, the IRS issued Rev. Proc. 2019-19, updating its Employee Plans Compliance Resolution System (&ldquo;EPCRS&rdquo;) which permits retirement plan sponsors and administrators to correct compliance failures that may adversely affect the tax-qualified status of their plans.&nbsp; The new guidance expands the IRS&rsquo; Self Correction Program (&ldquo;SCP&rdquo;) under EPCRS to specifically cover the correction of certain failures, many of which historically could only be corrected by submitting a Voluntary Correction Program (&ldquo;VCP&rdquo;) application with the IRS and paying a fee, as described in more detail below.&nbsp;&nbsp;</div> <h3> Plan Loan Failures</h3> <div> The new guidance expands SCP to cover the self-correction of certain failures involving plan loans made to participants, making it much easier to correct these types of failures:</div> <ul> <li> <strong><em>Defaulted Loans</em></strong>.&nbsp; In prior iterations of EPCRS, self-correction for many loan failures (either by collecting the missed payments plus interest from the participant or reamortizing the outstanding balance of the loan plus interest) was generally not available.&nbsp; A VCP application had to be filed with the IRS in order to obtain relief from defaulting the loan and reporting it as a deemed (taxable) distribution on Form 1099-R, and the plan sponsor was required to pay a penalty.&nbsp;&nbsp;</li> </ul> <div style="margin-left: 40px;"> Under the new guidance, however, if the maximum permissible period for repayment under the Internal Revenue Code (&ldquo;Code&rdquo;) has not yet expired, an outstanding loan may be self-corrected by (1) collecting a single lump sum payment from the participant that includes all missed loan payments, including interest on the missed payments, or (2) reamortizing the outstanding balance of the loan, including all accrued interest, over the remaining period of the loan so that the loan is repaid by the end of its original term or by the end of the maximum period permitted under the Code (e.g., 5-years for a general purpose loan).&nbsp; A combination of (1) and (2) may also be used to correct.&nbsp; If the loan is corrected in this manner, a deemed distribution is avoided and there is no need to issue a Form 1099-R.&nbsp; &nbsp;</div> <div style="margin-left: 40px;"> &nbsp;</div> <div style="margin-left: 40px;"> If an outstanding loan is not corrected using the methods described above (to the extent applicable), then the loan must be reported as a deemed (taxable) distribution.&nbsp; Historically, a plan sponsor could request that the loan be treated as a deemed (taxable) distribution in the year of correction, instead of in the year of the failure under normal rules, by submitting a VCP application to the IRS specifically requesting this relief.&nbsp; Under the new guidance, the plan sponsor may report the loan as a deemed (taxable) distribution in the year of correction, instead of in the year of the failure, <em>without </em>the necessary of filing a VCP application specifically requesting such relief.</div> <div style="margin-left: 40px;"> &nbsp;</div> <div style="margin-left: 40px;"> Note, certain types of loan failures (e.g., where the terms of the loan do not comply with the Code&rsquo;s limit on participant loan amounts) may only be corrected under VCP or if the plan is under audit by the IRS (&ldquo;Audit Cap&rdquo;).&nbsp;</div> <div style="margin-left: 40px;"> &nbsp;</div> <div style="margin-left: 40px;"> It is also important to point out that if an outstanding loan is self-corrected under the new guidance, the Department of Labor does not view the loan as having been fully corrected for ERISA purposes.&nbsp; Therefore, depending on the magnitude of the error, a separate filing under the DOL&rsquo;s Voluntary Fiduciary Correction program may be appropriate to correct the ERISA fiduciary issues (i.e., to ensure that the loan does not represent a prohibited transaction and that excise taxes are not accruing).</div> <div> &nbsp;</div> <ul> <li> <strong><em>Failure to Obtain Spousal Consent.</em></strong>&nbsp; If a loan was issued to a married participant and the required spousal consent to the loan was not obtained, the new guidance provides that the plan sponsor notify the participant and the spouse of the spousal consent requirement so that the spouse can retroactively provide his or her consent to the loan.&nbsp; If, spousal consent is not obtained, the failure to obtain spousal consent must be corrected under either VCP or Audit Cap.&nbsp;&nbsp;<br /> &nbsp;</li> <li> <strong><em>Number of Loans Issued Exceeds Number Allowed Under Plan.</em></strong>&nbsp; If the number of loans issued to a participant exceeds the number of loans permitted under the terms of the plan, the new guidance provides that the plan may be retroactively amended to conform plan terms with operation.&nbsp; Self-correction is available to correct this type of error as long as the plan, as amended, satisfies the requirements applicable to plan loans under Code Section 72(p), the amendment complies with the requirements of Code Section 401(a), and plan loans in excess of the number permitted under the terms of the plan were available to all participants or solely to one or more non-highly compensated employees.&nbsp;&nbsp;</li> </ul> <h3> Plan Document Failures</h3> <div> The new guidance also expands the SCP for plan document failures (<em>i.e.</em>, failures involving a plan provision, or the absence of a plan provision, that, on its face, violates the requirements of the Code).&nbsp; This type of failure typically arises when a plan sponsor does not timely adopt an amendment following a change in the law.&nbsp; To rely on this guidance, the plan must otherwise qualify for self-correction, including the requirement to have a favorable determination letter.&nbsp; Because plan document failures are always considered significant, the failure must be corrected no later than the close of the second plan year following the plan year in which the amendment should have been adopted.&nbsp; (Note that this expanded guidance does not include correction of an initial failure to timely adopt a qualified plan or a written 403(b) plan document.)</div> <h3> Operational Failures</h3> <div> SCP is also now available to correct certain operational failures by a retroactive plan amendment, which conforms the plan document to the plan&rsquo;s prior operation.&nbsp; In general, SCP is available in this instance if the corrective amendment is provided to all eligible employees and results in an increase in participants&rsquo; benefits, rights or features.&nbsp; Note, a retroactive plan amendment to conform the plan document to operation must still be corrected under VCP if the operational failure does not provide a uniform increase in benefits, rights or features for all eligible employees.</div> <div> &nbsp;</div> <div> The changes described above, which became immediately effective on <strong>April 19, 2019</strong>, are welcomed guidance from the IRS to allow plans to more efficiently address compliance issues.</div> https://www.seyfarth.com:443/publications/OMM050119-LE Hot Off The Presses: Massachusetts DFML Just Announced Extension Of May 31st Notice Deadline And June 30th Exemption Application Deadline https://www.seyfarth.com:443/publications/OMM050119-LE Wed, 01 May 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: </em><em>In response to feedback from the public listening sessions held around the Commonwealth, as well as engagement efforts, the Massachusetts Department of Family and Medical Leave (DFML) announced several important changes this afternoon, including a one-month extension of the deadline for distributing the mandatory PFML notices to employees from May 31, 2019 to June 30, 2019.</em></p> <p> <strong>Deadline For Employer Notice To Employees Extended To June 30, 2019</strong></p> <p> The DFML extended the deadline for employer notice to employees from May 31 to June 30, 2019.&nbsp; Because the notice must include the proportion of the contributions being deducted from employees as of July 1, 2019 and whether the employer will apply for an approved private plan, this extension provides employers another month to evaluate and finalize those decisions.</p> <p> <strong>Exemption Application Deadline Extended For Quarter 1 To September 20, 2019</strong></p> <p> The DFML&rsquo;s current guidance requires that exemptions for private plans be approved in the quarter prior to the quarter in which they will go into effect. The DFML announced today that for Quarter 1 only (July &ndash; September 2019), however, the deadline to file for a private plan exemption in time to avoid first quarter contributions for PFML has been moved from June 30&nbsp;to September 20, 2019. This will allow employers additional time to contemplate private plan options.</p> <p> The September 20, 2019 extension of the exemption application deadline only impacts the contribution requirements if the exemption request is approved. If the exemption request is denied, the impacted business will be responsible for remitting the full contribution amount from July 1, 2019 forward.&nbsp;Therefore, the DFML is recommending that businesses in the Commonwealth consult with their tax advisors as to the implications associated with applying for a private plan exemption that may or may not be approved.</p> <p> Going forward, the DFML will continue to accept applications on a rolling basis, but applications must be approved in the quarter prior to the quarter in which they go into effect.</p> <p> <strong>Tax Treatment Addressed Preliminarily By DFML</strong></p> <p> In the same announcement, the DFML addressed, for the first time, the tax treatment of PFML contributions and benefits. The DFML announced that the Commonwealth has requested guidance from the Internal Revenue Service on this question and others related to the tax implications of PFML contributions and benefits. Until IRS guidance is issued, individuals and businesses are urged by the DFML to consult with their own tax advisors on these questions. Based on its own review of federal rules and following consultation with the Massachusetts Department of Revenue, the DFML states that it anticipates that the IRS will conclude that employee contributions should be withheld from <em>after-tax wages</em>. A definitive rule for proper tax treatment of contributions will be available once IRS guidance is issued.<br /> <br /> Finally, the DFML also announced that it is planning to host two additional listening sessions for comments on the proposed regulations in May, which will be announced shortly.</p> <p> Because employers now have until June 30<sup>th</sup> to distribute mandatory written PFML notices to employees, employers will have an additional month to finalize decisions regarding the proportion of the contributions being deducted from employees as of July 1, 2019 and whether the employer will apply for an approved private plan. For our prior reports on the PFML Law and the proposed regulations, you may refer <a href="https://www.seyfarth.com/publications/MA043019-LE">here</a>,&nbsp;<a href="https://www.seyfarth.com/publications/MA062218-LE">here</a>,&nbsp;<a href="https://www.seyfarth.com/publications/MA032719-LE">here</a>, <a href="https://www.seyfarth.com/publications/MA040219-LE2">here</a>, and <a href="https://www.seyfarth.com/publications/OMM041819-LE2">here</a>.</p> https://www.seyfarth.com:443/publications/CP050119 Employees Who Won’t Get On Board With Arbitration—Can Employers Rock The Boat? https://www.seyfarth.com:443/publications/CP050119 Wed, 01 May 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Everything was smooth sailing with your latest greatest arbitration agreement, but then an employee refused to get on board. What do you do now? Keep reading for a primer on navigating some murky waters.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/05/01/employees-who-wont-get-on-board-with-arbitration-can-employers-rock-the-boat/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA043019-LE Massachusetts DFML Releases Private Plan Exemption Application And Guidance; Applications Due By June 30, 2019 https://www.seyfarth.com:443/publications/MA043019-LE Tue, 30 Apr 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> As previously announced, yesterday, the Massachusetts Department of Family and Medical Leave (DFML) made available the online application for private plan exemptions under the Paid Family and Medical Leave (&ldquo;PFML&rdquo;) Law. The DFML also released new information on how to calculate the required surety bond for self-insured private plans, as well as further details regarding the application process. Employers may start submitting exemption applications now. In order to avoid commencing the payroll tax deductions on July 1, 2019 and remitting contributions for the July-September quarter, employers must submit the exemption application by June 30, 2019. The Commonwealth also published related FAQs and materials that address a number of open questions, including a private plan&rsquo;s coverage of separated employees, and the effect on contributions for employers applying for a private plan exemption in the future.</em></p> <p> <strong>Eligible Private Plans Must Already Provide The Paid Leave Benefits Prior To Application</strong></p> <p> Massachusetts employers that &ldquo;already provide&rdquo; <em>all</em> employees paid leave benefits that are greater than or equal to those provided under the PFML Law, at a cost to employees that is less than or equal to the amount required for employee contributions under the state plan, may be eligible for an exemption from collecting, remitting, and paying family and/or medical leave contributions to the Commonwealth&rsquo;s trust fund.</p> <p> As previously reported, however, the Department has limited applications to those employers that &ldquo;already provide&rdquo; sufficiently generous policies or plans. The Department has since clarified that this language reflects its intention to limit the exemption to those actually providing the required paid leave benefits prior to an application. In other words, while the public program will not provide covered workers the paid leave benefits until 2021, those seeking a private plan exemption prior to the July 1, 2019 contributions commencement must provide employees the actual paid leave benefits by July 1, 2019.</p> <p> <strong>Exemption Application Process </strong></p> <p> Employers seeking approval of private plans must submit an exemption application annually through <a href="https://mtc.dor.state.ma.us/mtc/_/">MassTaxConnect</a>. The DFML will accept applications on a rolling basis, beginning April 29, 2019, and if approved, the approval will be valid for one year. However, to avoid the contribution requirements for the July-September quarter, applications must be received by June 30, 2019.</p> <p> The DFML has posted a document containing all questions on the exemption application <a href="https://www.mass.gov/doc/review-the-questions-you-will-be-asked-during-your-application/download">here</a>. The questions on the application are aimed at determining whether the employer&rsquo;s plan satisfies all of the requirements of the PFML Law. Employers should be prepared to provide their workforce count and details of their plan.</p> <p> Of particular note, the document containing the application&rsquo;s questionnaire reveals the answer to a commonly asked question regarding a private plan&rsquo;s coverage of former employees who apply for leave benefits during the 26 weeks following separation from employment. According to this document, a private plan must cover unemployed former employees who apply for leave benefits for up to 26 weeks after separation, or until they obtain other employment, whichever is sooner.</p> <p> According to the DFML, once an employer submits an application, it will receive a determination within one to two business days. If the exemption is approved, employers will be required to upload a copy of the plan upon which the exemption is based. Employers with self-insured plans will also need to provide proof of bond coverage. If the exemption is denied, the employer may request a follow-up review.</p> <p> For more information, the Commonwealth released new FAQs regarding the registration and exemption application process, which can be viewed <a href="https://www.mass.gov/info-details/frequently-asked-questions-paid-family-and-medical-leave-exemption-requests#registration-process-faqs-">here</a>, including a <a href="https://youtu.be/x9QLkUVb_DM">video</a> on how to apply for a paid family and medical leave exemption.</p> <p> <strong>Bond Requirements For Self-Insured Plans</strong></p> <p> The DFML announced how it will calculate the required surety bond value for self-insured plans.&nbsp; For every 25 covered employees, the DFML will require a bond value of:</p> <ul> <li> $19,000 for qualifying family leave plans,</li> <li> $51,000 for qualifying medical leave plans, and</li> <li> $70,000 for qualifying plans for both family and medical leave.</li> </ul> <p> For example, an employer applying for an exemption from family leave with 12 employees will require a bond value of $19,000. An employer applying for an exemption from medical leave with 12 employees will need a bond value of $51,000. On the other hand, an employer applying for an exemption from medical leave with 85 employees will need a bond value of $153,000; and an employer applying for an exemption from both family and medical leave with 85 employees will require a bond value of $210,000.</p> <p> <strong>New FAQs On The Registration And Application Process</strong></p> <p> The new FAQs clarify that if a company adopts a private plan sometime in the future and that plan is approved for an exemption, the company can stop contributing to the public trust fund on the first day of the quarter following the quarter in which the exemption was approved.</p> <p> The FAQs also provide guidance on how employers can calculate their workforce count (as required in the application), which is based on the employer&rsquo;s average number of employees during each pay period for a twelve-month period. The FAQs further explain how to calculate whether 50% or more of a company&rsquo;s Massachusetts workforce is comprised of 1099-MISC independent contractors, in which case the total workforce count must include the 1099 contractors. Examples of workforce count calculations are included as well.</p> <p> The FAQs address other application-related questions, including how a start-up company can determine its workforce count.</p> <p> In the FAQs, the Commonwealth also clarifies that for PFML contribution purposes in 2019, the $132,900 income limit will be calculated using wages/payments made to employees/covered contract workers from July 1, 2019 through December 31, 2019, rather than year-to-date wages.&nbsp;&nbsp;&nbsp;</p> <p> <strong>Additional Exemption Requirements</strong></p> <p> As a reminder, to be eligible for the exemption, in addition to providing <em>all</em> employees paid leave benefits that are greater than or equal to those provided under the PFML Law, at a cost to employees that is less than or equal to the amount required for employee contributions under the state plan, a qualifying family and/or medical leave plan must provide: job protection during such leave; continued employer contributions to employment-related health insurance benefits, if any, at the level and under the conditions provided if working continuously; intermittent leave with the weekly benefit amount being prorated; and a statement in the plan that all presumptions shall be made in favor of the availability of leave and the payment of leave benefits.</p> <p> Because mandatory written PFML notices must be distributed to employees and contractors by May 31, 2019, and because the written notice must inform employees of the proportion of the contributions being deducted from employees as of July 1, 2019 and whether the employer has an approved private plan, employers need to decide these matters prior to May 31, 2019. For our prior reports on the notice obligation, the DFML&rsquo;s template notices, and other details of the PFML Law and the proposed regulations, you may refer&nbsp;<a href="https://www.seyfarth.com/publications/MA062218-LE">here</a>,&nbsp;<a href="https://www.seyfarth.com/publications/MA032719-LE">here</a>, <a href="https://www.seyfarth.com/publications/MA040219-LE2">here</a>, and <a href="https://www.seyfarth.com/publications/OMM041819-LE2">here</a>.</p> https://www.seyfarth.com:443/publications/MA043019-LE2 No Preemption Where Labor Code Doesn’t Require Consulting A CBA https://www.seyfarth.com:443/publications/MA043019-LE2 Tue, 30 Apr 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>The California Supreme Court held that the Labor Management Relations Act does not preempt claims under the Labor Code where a defense requires little more than referring to a collective bargaining agreement, as opposed to actually interpreting the agreement. Melendez v. San Francisco Baseball Associates LLC.</em></p> <p> <strong>The Facts</strong></p> <p> The plaintiffs, security guards at San Francisco&rsquo;s Oracle Park (the former AT&amp;T Park), sued their employer, San Francisco Baseball Associates LLC (&ldquo;the Giants&rdquo;), alleging a violation of California Labor Code section 201 for failure to pay all wages due at the time of termination.&nbsp;</p> <p> The security guards claimed that they were employees who were discharged intermittently&mdash;at the end of each Giants homestand, at the end of the baseball season, and at the end of other events at the park. Consequently, the security guards claimed that they were entitled to receive their unpaid wages immediately after each discharge, as required by Section 201. The Giants responded that the security guards were not &ldquo;intermittent employees&rdquo; but were year-round employees who were not discharged until their resignation or termination pursuant to the terms of a collective bargaining agreement (&ldquo;CBA&rdquo;) between the Giants and the union that represents the security guards.&nbsp;</p> <p> The Giants sought to compel arbitration under the CBA, arguing that the guards&rsquo; claims were preempted by the Labor Management Relations Act (&ldquo;LMRA&rdquo;) because the controversy required interpretation of the CBA.</p> <p> <strong>Trial Court Decision</strong></p> <p> The trial court denied the Giants&rsquo; motion to compel arbitration, holding that the Labor Code claims were not preempted by the LMRA. According to the trial court, resolution of the controversy regarding whether the security guards were discharged intermittently did not require interpretation of the CBA. Instead, the trial court thought that the timing of discharge was determined solely by Labor Code section 201. The Giants appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal, agreeing with the Giants that the LMRA preempted the Labor Code claims, reversed the order denying the Giants&rsquo; motion to compel arbitration. In reaching its decision, the Court of Appeal concluded that one must interpret the CBA to resolve the controversy. Specifically, the Court of Appeal determined that inferences drawn from various CBA provisions&mdash;such as the hours required to be classified as a &ldquo;regular&rdquo; employee, employee seniority, and pre-hire practices&mdash;were needed to decide whether the security guards were &ldquo;intermittent&rdquo; employees.</p> <p> <strong>The California Supreme Court&rsquo;s Decision</strong></p> <p> The Supreme Court reversed the Court of Appeal&rsquo;s decision to grant the Giants&rsquo; motion to compel arbitration. The Supreme Court concluded that while LMRA section 301 furthers the policy goals of ensuring uniformity in the interpretation of CBAs and preserving arbitration as the method to resolve CBA disputes, courts must also honor state interests in overseeing substantive labor rights. Federal preemption under Section 301 cannot not be &ldquo;lightly inferred,&rdquo; because labor standards are traditionally left to the states.</p> <p> The Supreme Court applied <em>Sciborski v. Pacific Bell Director</em>, its decision outlining a two-part test to determine whether a claim is preempted under Section 301: First, a court must determine whether a claim arises from the CBA or from independent state law. Second, if the claim arises under state law, a court must decide whether (a) the claim requires &ldquo;interpretation or construction of a labor agreement&rdquo; (i.e., must competing reads of the CBA be assessed?) or (b) the CBA will merely be referred to in resolving the claim. Where a claim arises under state law and the CBA will be merely referred to&mdash;rather than interpreted&mdash;there is no Section 301 preemption.</p> <p> The Supreme Court determined that the security guards&rsquo; claim, which clearly arose from independent state law (Labor Code section 201), did not require more merely referring to the CBA. In reaching this conclusion, the Supreme Court noted that the parties&rsquo; arguments all turned on the definition of &ldquo;discharge&rdquo; under Section 201, and not on any provision of the CBA. The Supreme Court further noted that &ldquo;nothing in the [CBA] addresses the <em>timing</em> of wage payments, which shows that plaintiffs&rsquo; complaint is aimed at an issue separate from the benefits bargained for in the agreement.&rdquo;</p> <p> The Supreme Court held that while the CBA may be relevant to the lawsuit, the dispute turned on the meaning of &ldquo;discharge&rdquo; under Section 201 rather than an interpretation of the CBA itself; therefore, the lawsuit was not preempted and arbitration was not required.</p> <p> <strong>What <em>Melendez</em> Means for Employers</strong></p> <p> Under <em>Melendez</em>, it will be more difficult for employers to invoke CBA arbitration provisions when the claims asserted do not expressly require interpretation of terms within the CBA. Before proceeding with a motion to compel arbitration, employers would be wise to consider the <em>Melendez</em> ruling to determine whether such a motion would be worthwhile.</p> https://www.seyfarth.com:443/publications/TBT043019 Georgia Legislature Goes to Pot https://www.seyfarth.com:443/publications/TBT043019 Tue, 30 Apr 2019 00:00:00 -0400 <p> Georgia Governor Brian Kemp signed a bill on April 17, entitled Georgia&rsquo;s Hope Act (HB 324), allowing in-state production and sale of marijuana oil for medical use. Before this bill, Georgia only allowed citizens with a narrow list of specific medical conditions to possess cannabis oil with less than five percent THC, but those patients had to cross state lines or purchase the oil by mail. Often the process of buying the oil was prohibitive and the patients could not obtain the oil, even if they had permission to use or possess it. The current count of patients on the registry allowed to own low-THC oil is less than 10,000. Some believe this is a low number compared to the number of eligible citizens, and that many people have not bothered to register because obtaining the drug is too difficult. The number of registrants is predicted to rise once the oil can be purchased in-state.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/04/georgia-legislature-goes-to-pot/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM043019-LE If Pain, Yes Gain—Part 63: Do Michigan’s Paid Sick Leave Law Lame Duck Amendments Have a Leg to Stand On? https://www.seyfarth.com:443/publications/OMM043019-LE Tue, 30 Apr 2019 00:00:00 -0400 <p> <strong>Seyfarth Synopsis:</strong> <em>Michigan&rsquo;s Paid Medical Leave Act &nbsp;went into effect on March 29, 2019, but will it remain valid law?&nbsp; The Michigan Supreme Court is considering whether the state legislature&rsquo;s action amending the law was constitutional.&nbsp; For now, employers should comply with the law as amended, but stay tuned for possible changes.</em></p> <p> Michigan&rsquo;s Paid Medical Leave Act (&ldquo;PMLA&rdquo;) went into effect on March 29, 2019.&nbsp; At least for now, Michigan employers need to comply with the PMLA as amended by the state legislature in December 2018.&nbsp; See our <a href="https://www.seyfarth.com/publications/MA121718-LE">PMLA alert</a> for information regarding compliance requirements.&nbsp; But the version of the law that went into effect in late-March might not be permanent.&nbsp;</p> <p> As we <a href="https://www.seyfarth.com/publications/MA031419-LE">previously reported</a>, the new state legislature has requested that the Michigan Supreme Court issue an advisory opinion regarding the constitutionality of the amendments. &nbsp;As noted in our <a href="https://www.seyfarth.com/publications/MA121718-LE">PMLA alert</a>, Michigan&rsquo;s paid sick leave law was originally a ballot initiative known as the Earned Sick Time Act (&ldquo;ESTA&rdquo;), which the outgoing GOP-controlled legislature approved last September in order to avoid the possibility of it passing by public vote.&nbsp; The lame duck legislature, through its power to amend, revamped ESTA and turned it into what is now the more employer-friendly PMLA.&nbsp; At issue is whether the legislature violated the Michigan Constitution by changing citizen-initiated laws during the same session in which they were enacted.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p> <p> The Michigan Supreme Court is now <a href="http://publicdocs.courts.mi.gov/sct/public/orders/159160_12_01.pdf">considering the constitutionality</a> of the PMLA. &nbsp;Oral arguments are scheduled for July 17, 2019.&nbsp; If the court ultimately decides to issue on advisory option and finds that the legislature&rsquo;s amended paid sick leave law and the way it was passed are unconstitutional, it could pave the way for the law to eventually revert back to its pre-amendment version, summarized in our <a href="https://www.seyfarth.com/publications/MA091218-LE">ESTA alert</a>.&nbsp; We will be sure to keep you posted on further updates.</p> <p> To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.&nbsp; 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> <p> If you would like further information, please contact <a href="https://www.seyfarth.com/TracyBillows">Tracy M. Billows</a> at <a href="mailto:tbillows@seyfarth.com">tbillows@seyfarth.com</a>, <a href="https://www.seyfarth.com/JoshuaSeidman">Joshua D. Seidman</a> at <a href="mailto:jseidman@seyfarth.com">jseidman@seyfarth.com</a>, or <a href="https://www.seyfarth.com/RenateWalker">Renate M. Walker</a> at <a href="mailto:rewalker@seyfarth.com">rewalker@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 legislature also amended a new citizen-initiated minimum wage law during the 2018 lame duck legislative session.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/LR043019 NLRB Publishes Advice Memo Finding that Company Maintained Unlawfully Overbroad Work Rules But Did Not Violate NLRA By Discharging Employee for Facebook Video or Filing Defamation Suit Against Two Former Employees https://www.seyfarth.com:443/publications/LR043019 Tue, 30 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The NLRB&rsquo;s Division of Advice recently released an Advice Memorandum finding that a security company&rsquo;s work rules were unlawfully overbroad, but that the company did not violate the National Labor Relations Act by discharging one of its employees for posting an insidious Facebook video or by filing a defamation lawsuit against two former employees.<br /> <br /> <a href="https://www.employerlaborrelations.com/2019/04/30/nlrb-publishes-advice-memo-finding-that-company-maintained-unlawfully-overbroad-work-rules-but-did-not-violate-nlra-by-discharging-employee-for-facebook-video-or-filing-defamation-suit-against-two-for/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL043019 Breakfast Briefing – ERISA in 2019: What Employers Need To Know https://www.seyfarth.com:443/publications/EL043019 Tue, 30 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Join us for our second Chicago Labor &amp; Employment Breakfast Briefing of the year, &ldquo;ERISA in 2019: What Employers Need To Know&rdquo;.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/breakfast-briefing-erisa-in-2019-what-employers-need-to-know/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/mhl043019 Gerald Maatman, Christopher DeGroff and Michael Jacobsen quoted in Material Handling & Logistics https://www.seyfarth.com:443/news/mhl043019 Tue, 30 Apr 2019 00:00:00 -0400 <p> Gerald Maatman, Christopher DeGroff and Michael Jacobsen were quoted in an April 30 story from Material Handling &amp; Logistics, &quot;EEOC Charges Hit 12-Year Low.&quot; The Seyfarth lawyers said that despite the dips in overall charges filed, the EEOC&rsquo;s enforcement efforts remain robust, and the EEOC continues to get results, as demonstrated by its recovery statistics. You can read the <a href="https://www.mhlnews.com/labor-management/eeoc-charges-hit-12-year-low">full article here</a>.</p> https://www.seyfarth.com:443/news/adanjlj043019 Seyfarth's ADA statistics referenced in the New Jersey Law Journal https://www.seyfarth.com:443/news/adanjlj043019 Tue, 30 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in an April 30 story from the New Jersey Law Journal, &quot;Crop of ADA Suits Say Corporate Websites Are Unfriendly to Blind Users.&quot; According to Seyfarth, suits claiming websites violate the ADA have been experiencing an uptick recently, with at least 2,258 filed in 2018, up from 814 in 2017.</p> https://www.seyfarth.com:443/news/shermanmetro042919 Andrew Sherman quoted in Metro https://www.seyfarth.com:443/news/shermanmetro042919 Mon, 29 Apr 2019 00:00:00 -0400 <p> Andrew Sherman was quoted in an April 29 story from Metro, &quot;Computer says no: What happens when we disagree with the robots we&rsquo;re working under?&quot; Sherman said that as robotic and automated &ldquo;workers&rdquo; begin to populate our workplaces and as their emotions evolve closer to humans, we will need to figure out on a global basis what fundamental rights and protections will they have. You can read the <a href="https://metro.co.uk/2019/04/29/computer-says-no-what-happens-when-we-disagree-with-the-robots-were-working-under-9286673/">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS042919 FINRA Issues Guidance on the Handling of Customers When a Broker Leaves a Firm https://www.seyfarth.com:443/publications/TS042919 Mon, 29 Apr 2019 00:00:00 -0400 <p> The Financial Industry Regulatory Authority (FINRA) recently issued some expectations/guidance to industry members on FINRA&rsquo;s expectations when a broker leaves for another firm. Specifically, on April 5, 2019, FINRA issued Regulatory Notice 19-10, which instructs/reminds FINRA member firms to: (1) promptly and clearly communicate to customers how their accounts will continue to be serviced when the broker servicing the customer leaves for another firm; and (2) if requested by the customer, provide customers with timely and complete answers, if known, to questions about a departing broker.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/trade-secrets/finra-issues-guidance-on-the-handling-of-customers-when-a-broker-leaves-a-firm/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/eckhme042919 William Eck authored an article in HME News https://www.seyfarth.com:443/publications/eckhme042919 Mon, 29 Apr 2019 00:00:00 -0400 <p> William Eck authored an April 29 article in HME News, &quot;Making the case for e-prescribing,&quot; on how Medicare approved e-prescribing for inexpensive or routinely purchased DME. You can read the <a href="http://www.hmenews.com/article/making-case-e-prescribing">full article here</a>.</p> https://www.seyfarth.com:443/publications/WSE042619 Updated Combustible Dust NFPA Industry Consensus Standard Gives OSHA New Tool to Cite Employers: Does Your Facility Comply? https://www.seyfarth.com:443/publications/WSE042619 Fri, 26 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Compliance with industry standard for combustible dust set for September 2020. Don&rsquo;t delay, because OSHA is already citing employers using the not yet effective NFPA 652, Standard on the Fundamentals of Combustible Dust.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/updated-combustible-dust-nfpa-industry-consensus-standard-gives-osha-new-tool-to-cite-employers-does-your-facility-comply/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/launeydj042619 Kristina Launey authored an article in the Daily Journal https://www.seyfarth.com:443/publications/launeydj042619 Fri, 26 Apr 2019 00:00:00 -0400 <p> Kristina Launey authored an April 26 article in the Daily Journal, &quot;Website accessibility suits show no sign of slowing after 9th Circuit ruling.&quot;</p> https://www.seyfarth.com:443/news/francosignor042619 Seyfarth Represents Franco Signor in Investment Deal with BV Investment Partners https://www.seyfarth.com:443/news/francosignor042619 Fri, 26 Apr 2019 00:00:00 -0400 <p> Seyfarth Shaw LLP represented Franco Signor, a provider of Medicare Secondary Payer (MSP) compliance solutions to the country&rsquo;s largest self-insured companies, insurers, and third party administrators, in an investment deal with BV Investment Partners (&ldquo;BV&rdquo;), a middle-market private equity firm focused on the business services, software and IT services sector. BV&rsquo;s investment in Franco Signor is its eighth investment in its ninth fund.</p> <p> Franco Signor, headquartered in Bradenton, FL, is a full-service outsourced provider of MSP compliance software and services. The Company&rsquo;s customers rely on Franco&rsquo;s deep domain expertise, robust integrated technology platform and flexible reporting capabilities to manage MSP matters on workers&rsquo; compensation, no-fault, and liability claims in compliance with long-established, complex and evolving MSP regulatory guidance.</p> <p> The Seyfarth team was led by Corporate M&amp;A partners Andrew Sherman (Washington, D.C.) and Andrew Lucano (New York). Seyfarth&rsquo;s Corporate team also included attorneys Anjali Vohra in Washington, D.C., and Michael Rosenthal, Leslie Kersey, Matthew Wiener, and Michael Lobie in New York.</p> https://www.seyfarth.com:443/news/alfredbloomberglaw042519 Richard Alfred quoted in Bloomberg Law https://www.seyfarth.com:443/news/alfredbloomberglaw042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Richard Alfred was quoted in an April 25 story from Bloomberg Law, &quot;Arbitration Pacts Get Supreme Boost Over State Contract Law,&quot; on how the Supreme Court&rsquo;s ruling in Lamps Plus v. Varela specifically calls out California&rsquo;s rule for ambiguous contracts. Alfred said that Judges will have to examine that doctrine more closely to make sure it doesn&rsquo;t have an adverse impact on arbitration.</p> https://www.seyfarth.com:443/news/alfredhre042519 Richard Alfred quoted in Human Resource Executive https://www.seyfarth.com:443/news/alfredhre042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Richard Alfred was quoted in an April 25 story from Human Resource Executive, &quot;SCOTUS Delivers Employer-Friendly Arbitration Decision.&quot; Alfred said that in such circumstances, there is no longer any question that only individual, not class or collective arbitration, may be allowed as a result of today&rsquo;s Lamps Plus decision. You can read the <a href="http://hrexecutive.com/scotus-delivers-employer-friendly-arbitration-decision/">full article here</a>.</p> https://www.seyfarth.com:443/news/masurveypew042519 Seyfarth's Middle-Market M&A SurveyBook featured in Private Equity Wire https://www.seyfarth.com:443/news/masurveypew042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s Middle-Market M&amp;A SurveyBook was featured in an April 25 story from Private Equity Wire, &quot;Use of representation and warranty insurance in middle-market M&amp;A deals rises 10 per cent year-on-year.&quot; Seyfarth&#39;s Andrew Lucano said that he is cautiously optimistic that 2019 will be another good year for middle-market M&amp;A activity.</p> https://www.seyfarth.com:443/news/weissbia042519 Philippe Weiss interviewed on Bootstrapping in America https://www.seyfarth.com:443/news/weissbia042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Philippe Weiss was interviewed April 25th on Bootstrapping in America. You can watch the <a href="https://www.tastytrade.com/tt/shows/bootstrapping-in-america/episodes/philippe-weiss-of-seyfarth-shaw-at-workworkright-solutions-04-25-2019">full interview here</a>.</p> https://www.seyfarth.com:443/news/kershawlaw360042519 Kyllan Kershaw quoted in Law360 https://www.seyfarth.com:443/news/kershawlaw360042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Kyllan Kershaw quoted in an April 25 story from Law360, &quot;How Is The #MeToo Movement Affecting Organized Labor?&quot; Kershaw said that she&rsquo;s heard of unions leaning on #MeToo in collective bargaining but hasn&rsquo;t seen it herself. However, she has seen the movement drive organizing.</p> https://www.seyfarth.com:443/news/lorbermw042519 Lawrence Lorber quoted in MarketWatch https://www.seyfarth.com:443/news/lorbermw042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Lawrence Lorber was quoted in an April 25 story from MarketWatch, &quot;Companies must hand over data on how they pay men vs. women by September, judge says.&quot; Lorber said that this was a harsh ruling and it didn&rsquo;t really reflect an understanding that it&rsquo;s employers who are left to collect the data. He said the burden is on the employer. You can read the <a href="https://www.marketwatch.com/story/companies-must-hand-over-data-on-how-they-pay-men-vs-women-by-september-judge-says-2019-04-26">full article here</a>.</p> https://www.seyfarth.com:443/news/sfamlaw042519 Sam Schwartz-Fenwick and John Ayers-Mann quoted in Law.com https://www.seyfarth.com:443/news/sfamlaw042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Sam Schwartz-Fenwick and John Ayers-Mann quoted in an April 25 story from Law.com, &quot;Labor of Law: LGBT at SCOTUS,&quot; on the Supreme Court granting cert in the Title VII sexual orientation and gender identity cases. Schwartz-Fenwick and Ayers-Mann said that in its first gay rights ruling in a generation without the voice of Justice Kennedy it is unclear how the court will rule.</p> https://www.seyfarth.com:443/news/ehstoday042519 Joy Sellstrom, Sam Schwartz-Fenwick and Thomas Horan quoted in EHS Today https://www.seyfarth.com:443/news/ehstoday042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Joy Sellstrom, Sam Schwartz-Fenwick and Thomas Horan were quoted in an April 25 story from EHS Today, &quot;Court Severely Limits Association Health Plans.&quot; The Seyfarth lawyers said that the decision is significant as it reflects that nearly a decade after the passage of the ACA, the battle over what&mdash;if any&mdash;provisions of the law are lawful continues unabated. You can read the <a href="https://www.ehstoday.com/health/court-severely-limits-association-health-plans">full article here</a>.</p> https://www.seyfarth.com:443/news/olsonshrm042519 Camille Olson quoted in SHRM https://www.seyfarth.com:443/news/olsonshrm042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Camille Olson was quoted in an April 25 story from SHRM, &quot;Employers Must Submit EEO-1 Pay Data by Sept. 30.&quot; Olson said that employers should start looking at their 2018 data now and conduct an initial assessment of their systems. You can read the <a href="http://ttps://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/eeo-1-report-hearing.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/wcarbna042519 Seyfarth's Workplace Class Action Report referenced in Bloomberg BNA https://www.seyfarth.com:443/news/wcarbna042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in an April 25 story from Bloomberg BNA, &quot;Phishing for W-2s Leads to High Court Ruling on Arbitration,&quot; on how the Epic Systems ruling was one of the most important workplace class action rulings in the last two decades and it was cited in the high court&rsquo;s April 24 decision in Lamps Plus. Seyfarth partner and the Report&#39;s author Gerald Maatman said that it is already having a profound impact on the prosecution and defense of workplace class action litigation, and in the long run, Epic Systems may well shift class action litigation dynamics in critical ways.</p> https://www.seyfarth.com:443/publications/GPW042519 And Texas joins the Privacy Fray – Part 2 (or, Everything is Bigger in Texas…) https://www.seyfarth.com:443/publications/GPW042519 Thu, 25 Apr 2019 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.globalprivacywatch.com/2019/04/and-texas-joins-the-privacy-fray-part-2-or-everything-is-bigger-in-texas/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM042519-LE Seyfarth Shaw Policy Matters Newsletter - April 25, 2019 https://www.seyfarth.com:443/publications/PM042519-LE Thu, 25 Apr 2019 00:00:00 -0400 <p style="margin-bottom:12.0pt;line-height:120%"> <span style="color:#696969;"><span style="font-family: Arial, sans-serif;">The House and Senate are adjourned this week for their State/District work periods.&nbsp;<br /> <br /> <strong>Acosta to Testify Before House Ed and Labor.</strong>&nbsp; The House Committee on Education and Labor has set a time for their questioning of Labor Secretary Alex Acosta.&nbsp; On May 1, 2019, the Secretary will be the sole witness at a </span></span><a href="https://edlabor.house.gov/hearings/04/24/2019/examining-the-policies-and-priorities-of-the-us-department-of-labor"><span style="color:#00ccff;"><span style="font-family:&quot;Arial&quot;,sans-serif">hearing</span></span></a><span style="color:#696969;"><span style="font-family: Arial, sans-serif;"> titled &ldquo;Examining the Policies and Priorities of the U.S. Department of Labor.&rdquo;&nbsp; This is the first opportunity the new leadership of the House committee of jurisdiction will have to question Secretary Acosta on issues ranging from enforcement priorities to apprenticeships to tipped employees and the rest of DOL&rsquo;s regulatory agenda.<br /> <br /> <strong>Supreme Court Agrees to Hear Title VII Protects Sexual Orientation and Gender Identity . . .</strong>&nbsp; Earlier this week, the Supreme Court granted review to a trio of Title VII cases raising the issue of whether Title VII prohibits discrimination on the basis of sexual orientation and gender identity.&nbsp; See Seyfarth&rsquo;s </span></span><a href="https://www.laborandemploymentlawcounsel.com/2019/04/high-court-to-determine-whether-title-vii-prohibits-discrimination-on-the-basis-of-sexual-orientation-and-gender-identity/?utm_source=Seyfarth%20Shaw%20-%20Employment%20Law%20Lookout&amp;utm_campaign=3fe5f40b4d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-3fe5f40b4d-73515041"><span style="color:#00ccff;"><span style="font-family:&quot;Arial&quot;,sans-serif">Employment Law Lookout blog</span></span></a><span style="color:#696969;"><span style="font-family: Arial, sans-serif;"> for more.&nbsp;<br /> <br /> <strong>. . . And Requires Express Agreement for Class Arbitration.</strong>&nbsp; The Supreme Court also ruled that class arbitration &ldquo;fundamentally&rdquo; changes the nature of the &ldquo;traditional individualized arbitration&rdquo; envisioned by the Federal Arbitration Act and, thus, requires an express agreement of the parties.&nbsp; For more on the decision, check out the </span></span><a href="https://www.wagehourlitigation.com/arbitration/a-bright-day-for-employers-the-supreme-court-decides-in-lamps-plus-that-courts-cannot-order-class-arbitration-without-an-express-agreement/"><span style="color:#00ccff;"><span style="font-family:&quot;Arial&quot;,sans-serif">Wage &amp; Hour Litigation blog</span></span></a><span style="color:#696969;"><span style="font-family: Arial, sans-serif;">.<br /> <br /> <strong>More #MeToo.</strong>&nbsp; The Illinois Senate unanimously passed the </span></span><a href="http://www.ilga.gov/legislation/billstatus.asp?DocNum=1829&amp;GAID=15&amp;GA=101&amp;DocTypeID=SB&amp;LegID=119442&amp;SessionID=108"><span style="color:#00ccff;"><span style="font-family:&quot;Arial&quot;,sans-serif">Workplace Transparency Act</span></span></a><span style="color:#696969;"><span style="font-family: Arial, sans-serif;">.&nbsp; This all-encompassing sexual harassment bill hits all of the big ticket workplace sexual harassment hot topics, including imposing sexual harassment training and extensive reporting requirements; banning non-disclosure agreements, arbitration clauses, and non-disparagement clauses; and establishing hefty penalties for non-compliance.&nbsp; Follow the </span></span><a href="https://www.laborandemploymentlawcounsel.com/2019/04/metoo-on-the-move-illinois-responds-as-senates-sweeping-sexual-harassment-bill-gains-traction/?utm_source=Seyfarth%20Shaw%20-%20Employment%20Law%20Lookout&amp;utm_campaign=94ad4318e0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-94ad4318e0-73515041"><span style="color:#00ccff;"><span style="font-family:&quot;Arial&quot;,sans-serif">Employment Law Lookout blog</span></span></a><span style="color:#696969;"><span style="font-family: Arial, sans-serif;"> for more.<br /> <br /> <strong>EEO-1 Form.</strong>&nbsp; In this ongoing saga, Judge Tanya Chutkan, with the U.S. District Court for D.C.,&nbsp;held a hearing this morning on implementation of the new EEO-1 Form, Component 2.&nbsp; Cutting to the chase, she stated that 1) EEOC must take all necessary steps to collect 2017 and 2018 Component 2 data by September 30, 2018 <strong>OR</strong> notify the Court and Plaintiffs by May 3, 2019, that instead of collecting 2017 data (the agency must still collect 2018 data by September 30), it intends to collect Component 2 data for 2019 in the 2020 reporting period;&nbsp;and that 2) the expiration date of the Component 2 collection authorization number under the Paperwork Reduction Act originally granted by OMB of September 30, 2018&nbsp;would be tolled, i.e. extended for the period of OMB&rsquo;s stay&nbsp; (553 days) until April 5, 2021.&nbsp; As previously reported, Seyfarth filed two amicus&nbsp;briefs in this case on behalf of the business community and will be holding a webinar on Monday, April 29, 2019 at 12:00 p.m. CT to provide an update as to status and detailed compliance guidance.&nbsp; Stay tuned for further information on that webinar, or </span></span><a href="mailto:clpeterson@seyfarth.com?subject=EEO-1%20Webinar&amp;body=Please%20register%20me%20for%20your%20upcoming%20EEO-1%20webinar%20on%20Monday,%20April%2029%20at%2012:00%20p.m.%20CT"><span style="color:#00ccff;"><span style="font-family:&quot;Arial&quot;,sans-serif">click here</span></span></a><span style="color:#696969;"><span style="font-family: Arial, sans-serif;"> to pre-register.</span></span></p> <p style="margin-bottom:12.0pt;line-height:120%"> <span style="color:#696969;">To subscribe to the Policy Matters weekly newsletter, </span><a class="cms-content-links" href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy"><span style="color:#00ccff;">click here</span></a><span style="color:#696969;">.</span></p> <p style="margin-bottom:12.0pt;line-height:120%"> <span style="font-family:&quot;Arial&quot;,sans-serif;color:black"><o:p></o:p></span></p> https://www.seyfarth.com:443/publications/ERISA042519 WITHDRAWAL LIABILITY ASSESSMENTS — HOW TO IDENTIFY POSSIBLE DEFAULT DEFENDANTS https://www.seyfarth.com:443/publications/ERISA042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Synopsis: A recent decision by the District Court from the Southern District of New York shows why it often makes sense to consider, on a privileged basis, the universe of potential defendants to a withdrawal liability assessment upon issuance of the assessment, even though many potential defendants did not receive notice of the assessment.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2019/04/25/withdrawal-liability-assessments-how-to-identify-possible-default-defendants/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT042519 The Week in Weed: April 26, 2019 https://www.seyfarth.com:443/publications/TBT042519 Thu, 25 Apr 2019 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/2019/04/the-week-in-weed-april-26-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/boutros042519 Andrew Boutros edited the book, "From Baksheesh To Bribery" https://www.seyfarth.com:443/publications/boutros042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Andrew Boutros edited the book, &quot;From Baksheesh To Bribery,&quot; published by Oxford University Press. The first part of the book contains &ldquo;Geographic Chapters&rdquo; concerning the bribery and corruption laws in approximately 20 countries including: Australia, Brazil, Canada, France, Germany, India, Mexico, Russia and the United Kingdom. The second part of the book contains &ldquo;Subject-Specific Chapters&rdquo; on topics ranging from an internal investigations, third-party due diligence, data privacy and security issues, corporate monitors and voluntary disclosures. You can <a href="http://fcpaprofessor.com/book-review-baksheesh-bribery/">read more here</a>.</p> https://www.seyfarth.com:443/publications/MA042519-LE BREAKING NEWS: District Court Orders Employers to File EEO-1 Component 2 Data by September 30, 2019 https://www.seyfarth.com:443/publications/MA042519-LE Thu, 25 Apr 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Today, the District Court for the District of Columbia issued its ruling regarding the timeframe for collecting pay and hours data in connection with the Revised EEO-1 Report.&nbsp; Ruling from the bench, the Court ordered that the EEOC begin collecting 2017 and 2018 Component 2 data by September 30, 2019</em>. &nbsp;<em>The Court gave the EEOC the option of collecting 2019 Component 2 data in the 2020 reporting period in lieu of &nbsp;collecting 2017 data by September 30, 2019, provided that it notifies the Court and the Plaintiffs of its intention to do so by May 3, 2019.</em></p> <p> As we previously <a href="https://www.seyfarth.com/publications/OMM030519-LE">reported</a>, on March 4, 2019, the U.S. District for the District of Columbia issued an opinion reinstating the EEOC&rsquo;s collection of pay data as part of the EEO-1 Report filing.&nbsp; The Revised EEO-1 form requires employers with 100 or more employees to report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within 12 EEOC created pay bands.</p> <p> The pay data collection requirement was originally slated to go into effect on March 31, 2018, but stalled after the Office of Management and Budget (&ldquo;OMB&rdquo;) stayed the implementation of the pay data collection portions of the revised EEO-1 Report.&nbsp; That decision prompted a lawsuit by the National Women&rsquo;s Law Center and the Labor Counsel for Latin American Advancement against the OMB and the EEOC.&nbsp;</p> <p> After its March 4, 2019 ruling, the Court requested briefing and held an evidentiary hearing regarding the timeline for collecting Component 2 data (<em>i.e.</em>, hours and pay data).&nbsp; After holding a hearing on April 16 to hear direct testimony from the EEOC regarding its capabilities and challenges with the collection of the Revised EEO-1 Report, the District Court ordered the EEOC to collect -- and to take all steps necessary to collect -- EEO-1 Component 2 data for 2017 and 2018 by September 30, 2019.&nbsp; In lieu of collecting Component 2 data for 2017, the Court held that the EEOC may collect Component 2 data for 2019 and submit in 2020. &nbsp;&nbsp;If the Agency opts to collect the 2019 data during the 2020 reporting period, it must notify the Court and Plaintiffs by May 3, 2019 and also provide prompt notice to employers.</p> <p> The EEOC was further ordered to issue a statement both on its website and in the Federal Register no later than April 29, 2019 notifying employers that &nbsp;employers must submit Component 2 data for 2018 by September 30, 2019.&nbsp; The ruling also required the EEOC to provide the Plaintiffs and the Court updates regarding the steps it has taken to comply with the decision and the steps that it anticipates taking in the future -- including whether it is on track to meet the September 30 deadline -- beginning on May 3 and continuing every 21 days thereafter.&nbsp; The Court stipulated that it will not consider the collection of Component 2 data to be complete until the number of reporters equals or exceeds the mean response rate of EEO-1 reporters for the last four reporting years for EEO-1 data.&nbsp; Finally, the Court ordered that, pursuant to the express language and purpose of the Paperwork Reduction Act, as well as the Court&rsquo;s position that the Government had conceded the issue of tolling because it had failed to rebut or argue against tolling previously, the three year authorization period be tolled for the period of the unlawful OMB stay (553 days), to April 5, 2021, which the Court stated allowed sufficient time to ensure that collection will occur.&nbsp; The Court also ruled that it would retain jurisdiction to enforce its March 4, 2019 order, as well as the orders issued today.</p> <p> Unfortunately, the Court&rsquo;s oral ruling did not appear to take into consideration the burdens that employers face in complying with this deadline.&nbsp; In setting its deadline, the Court appears to have disregarded the perspective provided by the US Chamber of Commerce and 11 other leading national industry, employer and human resources associations on behalf of the employer community through its <em>amicus</em> submissions on <a href="https://www.seyfarth.com/dir_docs/publications/Brief.pdf">April 3</a> and on <a href="https://www.seyfarth.com/dir_docs/publications/show_temp_042519.pdf">April 22</a>.&nbsp; In those submissions, employers noted that the testimony provided by EEOC&rsquo;s Chief Data Officer, Samuel C. Haffer, on April 16 raised new and heightened concerns regarding the timeline contemplated by the Court for employers to compile and submit Component 2 data (including the lack of available and necessary resources for employers to compile Component 2 data).&nbsp; Specifically, Dr. Haffer&rsquo;s testimony made clear that:&nbsp;</p> <ol> <li> the EEOC&rsquo;s proposed timeline fails to consider the impact on the employer community;</li> <li> the EEOC&rsquo;s collection of sensitive and confidential information will not follow industry standards;</li> <li> the employer community has not been provided with key information needed to come into compliance with the collection and production of highly sensitive and confidential component 2 data (instead the EEOC has testified it will do so in the future &ldquo;on the fly&rdquo;);</li> <li> there is no timetable by which employers will be provided with the resources and answers needed to comply with the collection and production of highly sensitive and confidential component 2 data; and</li> <li> the EEOC confirmed that the highly sensitive and confidential data that is being demanded form employers has no utility and that the EEOC is not prepared to collect or analyze the data.</li> </ol> <p> <strong>What Does This Mean For Employers?</strong></p> <p> There has been no indication as to whether the Department of Justice, which represents the EEOC&rsquo;s interests in this litigation, will appeal today&rsquo;s ruling.&nbsp; We note that the EEOC will be posting information on April 29 regarding employers&rsquo; obligation to submit Component 2 data for 2018 by September 30, 2019.&nbsp; The next date for employers to circle on their calendars is the May 3 deadline for the EEOC inform the Plaintiffs,the Court and employers whether it will collect the 2017 or the 2019 Component 2 data.&nbsp; Employers should begin making preparations to collect, aggregate and report on pay and hours data for 2018 now. Whether your organization prepares reports internally or sends data to a vendor for processing, this is the time to understand the different databases and their functionality with respect to the required data in Component 2 for each of your reporting locations.&nbsp; It is also important to identify critical resources to work on your existing datasets to aggregate, compile, test, and submit Component 2 for 2018 by September 30, 2019.</p> <p> Employers should also keep in mind that today&rsquo;s ruling does not impact the May 31 deadline for submitting the Component 1 demographic to the EEOC.&nbsp; Employers should already be taking steps to report that information.</p> <p> Seyfarth Shaw will be hosting a webinar on Monday April 29 from 12:00 - 1:00 PM Central to discuss how to prepare for the EEO-1 Component 2 requirements.</p> https://www.seyfarth.com:443/publications/TS042519 Nursing Assistant’s “Self-Help” Attempt to Bolster Her Discrimination and Wage Claims Backfires in Spectacular Fashion https://www.seyfarth.com:443/publications/TS042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> As readers of this blog know, most trade secret misappropriation claims are brought in civil complaints&mdash;but a recent case out of Pennsylvania reveals how quickly the tables can turn on a civil plaintiff asserting claims against her former employer, resulting not only in civil counterclaims for trade secret misappropriation, but also in criminal prosecution. This case reveals how defense counsel can&mdash;and should&mdash;take an aggressive approach to protection of clients&rsquo; confidential and trade secret information, not only to preserve clients&rsquo; claim that such information is confidential, but to obtain critical leverage in high-stakes litigation.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/trade-secrets/nursing-assistants-self-help-attempt-to-bolster-her-discrimination-and-wage-claims-backfires-in-spectacular-fashion/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL042519 Massachusetts High Court Finds Failure to Grant Lateral Transfer May Be Discrimination https://www.seyfarth.com:443/publications/EL042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On January 29, 2019, the Massachusetts Supreme Judicial Court held that the failure to grant a lateral transfer may be the basis of a discrimination claim under Massachusetts anti-discrimination law where an employee can show there are material differences between the two positions in the opportunity for compensation, or in the terms, conditions, or privileges of employment.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/massachusetts-high-court-finds-failure-to-grant-lateral-transfer-may-be-discrimination/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/Employment-Tip-Series-042519 Thorny Issues with Commissions Part 1: What Happens When a Salesperson Is Selling a Drug To Herself or Her Family Member? https://www.seyfarth.com:443/publications/Employment-Tip-Series-042519 Thu, 25 Apr 2019 00:00:00 -0400 <p> <strong>Employment Tips for the Pharmaceutical, Biotech, and Life Science Industries</strong></p> <hr /> <p> We hope you are finding useful our&nbsp;monthly employment tip series&nbsp;containing&nbsp;short legal tips and tricks for&nbsp;our clients in the pharmaceutical, biotech, and life science industries. If you have a topic that you would like to see covered, please send your suggestion to <a href="mailto:pharma@seyfarth.com">pharma@seyfarth.com</a>.</p> <p> <strong>Tip #2:<em>&nbsp;Thorny Issues with Commissions Part 1: What Happens When a Salesperson Is Selling a Drug To Herself or Her Family Member?</em></strong></p> <p align="center"> <a href="https://www.seyfarth.com/dir_docs/publications/Employment_Pharma_Tip_2.pdf"><img alt="Click Here" border="0" height="100" src="http://marketing.seyfarth.com/reaction/images/buttons/Pharma-Click_Here.jpg" style="height:1.041in;width:1.041in;" width="100" /></a></p> <p> To view <strong>Tip #1:<em> Why Pharmaceutical, Biotech, and Life Science Clients with a Massachusetts Presence Should Consider Rolling Out an Arbitration Agreement&mdash;With&nbsp;a Class Action Waiver, </em><a href="https://www.seyfarth.com/dir_docs/publications/Employment_Tip_Series_030719.pdf" target="_blank">click here</a>.</strong></p> <p> Learn more about our&nbsp;<a href="https://www.seyfarth.com/Pharmaceuticals-Life-Sciences">Pharmaceuticals and Life Sciences</a> practice.</p> https://www.seyfarth.com:443/publications/RS042519-LE Regulatory Spring: Rulemaking by the Wage & Hour Division - April 25, 2019 https://www.seyfarth.com:443/publications/RS042519-LE Thu, 25 Apr 2019 00:00:00 -0400 <p> <strong>Highly Compensated Employees, Forms of Pay, and Implementation Time</strong></p> <p> This week, we continue our discussion of WHD&rsquo;s proposed rule increasing the salary threshold for exempt status.&nbsp; In addition to the base salary threshold and the ability to use commissions (discussed last week), WHD proposes to raise the salary threshold required to use the streamlined exemption test for highly compensated employees.<br /> <br /> In 2004, WHD added a specific provision that paired a streamlined duties test with a much higher salary level.&nbsp; The highly compensated employee (HCE) provision exempts from the FLSA&rsquo;s minimum wage and overtime provisions an employee who customarily and regularly performs any one or more of the exempt duties of an executive, administrative, or professional employee AND who is paid $100,000 or more annually (including $455 per week on a salary basis).<br /> <br /> WHD proposes a significant increase to the HCE threshold, raising it from $100,000 to $147,414.&nbsp; To help inform WHD&rsquo;s rulemaking, we are seeking your input on some questions related to this proposal:</p> <ul> <li> What positions in your industry/location are likely to be impacted (i.e., would lose exempt status or be required to move to more than $147,414)?</li> <li> It is virtually certain that the HCE level will increase.&nbsp; If $147,414 is too high, is there a figure between $100,000 and $147,414 that would limit the operational impact of any change?</li> </ul> <p> Historically, WHD has excluded &ldquo;board, lodging, or other facilities&rdquo; from the salary level.&nbsp; In some industries, including these forms of pay would assist in meeting either the standard or the HCE threshold.&nbsp; To assist in formulating our comments, we seek input on the following issues:</p> <ul> <li> Would it be helpful if room and board could be counted towards the regular salary and/or the highly compensated level?&nbsp; If so, for what types of positions/industries?</li> <li> In addition, would it be helpful for WHD to affirmatively state that equity compensation can be used to satisfy the regular salary and/or the highly compensated level?&nbsp; If so, for what types of positions/industries?</li> </ul> <p> Finally, WHD will provide an as-of-yet unidentified period of time to implement the changes in the final rule.&nbsp; In 2004, WHD provided four months.&nbsp; In 2016, WHD provided slightly more than six months.</p> <ul> <li> Assuming the changes are finalized as they have been proposed, how long would you need to implement those changes?</li> </ul> <p> If you would like to provide your input on these issues, please complete our survey <a href="https://www.surveymonkey.com/r/TM2SDDP">here</a>&nbsp;or send an e-mail to <a href="mailto:regulatoryspring@seyfarth.com">regulatoryspring@seyfarth.com</a>.&nbsp; Please limit your response to the questions asked.&nbsp; Do not include specific information about current wage &amp; hour practices or policies.</p> https://www.seyfarth.com:443/publications/WH042419 A Bright Day for Employers: The Supreme Court Decides In Lamps Plus That Courts Cannot Order Class Arbitration Without An Express Agreement https://www.seyfarth.com:443/publications/WH042419 Wed, 24 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Today the Supreme Court issued a 5-4 decision in the Lamps Plus, Inc. v. Varela class action arbitration case. The holding and rationale are important to employers because the Court decisively ruled that class arbitration &ldquo;fundamentally&rdquo; changes the nature of the &ldquo;traditional individualized arbitration&rdquo; envisioned by the Federal Arbitration Act and, for that reason, requires an express agreement of the parties to be compelled. In so ruling, the Court rejected the basis of the Ninth Circuit&rsquo;s contrary ruling, which had found the arbitration agreement at issue to be ambiguous and, applying California state contract law that contractual ambiguities should be construed against the drafter, held that the agreement allowed for class arbitration. Relying on its prior class action arbitration decisions, the Court found that such an approach is &ldquo;flatly inconsistent with the &lsquo;foundational FAA principle that arbitration is a matter of consent.&rsquo;&rdquo; How this part of today&rsquo;s decision will impact Plaintiffs&rsquo; efforts to use state laws to invalidate arbitration agreements will undoubtedly be the subject of future litigation, but it is now clear that courts can no longer order class arbitration unless there is an arbitration agreement expressly authorizing it.<br /> <br /> <a href="https://www.wagehourlitigation.com/arbitration/a-bright-day-for-employers-the-supreme-court-decides-in-lamps-plus-that-courts-cannot-order-class-arbitration-without-an-express-agreement/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC042419 A Bright Day for Employers: The Supreme Court Decides In Lamps Plus That Courts Cannot Order Class Arbitration Without An Express Agreement https://www.seyfarth.com:443/publications/WC042419 Wed, 24 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Today the Supreme Court issued a 5-4 decision in the Lamps Plus, Inc. v. Varela class action arbitration case. The holding and rationale are important to employers because the Court decisively ruled that class arbitration &ldquo;fundamentally&rdquo; changes the nature of the &ldquo;traditional individualized arbitration&rdquo; envisioned by the Federal Arbitration Act and, for that reason, requires an express agreement of the parties to be compelled. In so ruling, the Court rejected the basis of the Ninth Circuit&rsquo;s contrary ruling, which had found the arbitration agreement at issue to be ambiguous and, applying California state contract law that contractual ambiguities should be construed against the drafter, held that the agreement allowed for class arbitration. Relying on its prior class action arbitration decisions, the Court found that such an approach is &ldquo;flatly inconsistent with the &lsquo;foundational FAA principle that arbitration is a matter of consent.&rsquo;&rdquo; How this part of today&rsquo;s decision will impact Plaintiffs&rsquo; efforts to use state laws to invalidate arbitration agreements will undoubtedly be the subject of future litigation, but it is now clear that courts can no longer order class arbitration unless there is an arbitration agreement expressly authorizing it.<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/04/a-bright-day-for-employers-the-supreme-court-decides-in-lamps-plus-that-courts-cannot-order-class-arbitration-without-an-express-agreement/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA042419-LE A Bright Day for Employers: The Supreme Court Decides In Lamps Plus That Courts Cannot Order Class Arbitration Without An Express Agreement https://www.seyfarth.com:443/publications/MA042419-LE Wed, 24 Apr 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>Today the Supreme Court issued a 5-4 decision in the Lamps Plus, Inc. v. Varela class action arbitration case.&nbsp; The holding and rationale are important to employers because the Court decisively ruled that class arbitration &ldquo;fundamentally&rdquo; changes the nature of the &ldquo;traditional individualized arbitration&rdquo; envisioned by the Federal Arbitration Act and, for that reason, requires an express agreement of the parties to be compelled.&nbsp; In so ruling, the Court rejected the basis of the Ninth Circuit&rsquo;s contrary ruling, which had found the arbitration agreement at issue to be ambiguous and, applying California state contract law that contractual ambiguities should be construed against the drafter, held that the agreement allowed for class arbitration.&nbsp; Relying on its prior class action arbitration decisions, the Court found that such an approach is &ldquo;flatly inconsistent with the &lsquo;foundational FAA principle that arbitration is a matter of consent.&rsquo;&rdquo;&nbsp; How this part of today&rsquo;s decision will impact Plaintiffs&rsquo; efforts to use state laws to invalidate arbitration agreements will undoubtedly be the subject of future litigation, but it is now clear that courts can no longer order class arbitration unless there is an arbitration agreement expressly authorizing it.&nbsp;</em></p> <p> <strong>What Did The Supreme Court Hold?</strong></p> <p> The Supreme Court held today that courts cannot order an arbitration to be conducted on a class-wide basis unless there is an arbitration agreement that <em>expressly</em> authorizes class arbitration.&nbsp; The Supreme Court previously held in its <em>Stolt-Nielsen</em> decision that a court may not compel class arbitration when an agreement is &ldquo;silent&rdquo; on the availability of such arbitration. &nbsp;Now the Supreme Court has gone a step further.&nbsp; Courts cannot compel arbitration when an arbitration agreement is ambiguous about the availability of class arbitration.&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;</p> <p> The parties -- Lamps Plus and Varela, an employee of Lamps Plus -- had an arbitration agreement that was ambiguous about the availability of class arbitration.&nbsp; Certain phrases, particularly the use of &ldquo;I&rdquo; and &ldquo;my&rdquo; throughout the agreement, seemed to contemplate purely individual arbitration.&nbsp; Other phrases, such as one stating that &ldquo;arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment,&rdquo; the employee argued, were broad enough to suggest class arbitration.&nbsp; The employee sued Lamps Plus on behalf of a class of employees whose personal information had allegedly been compromised.</p> <p> The Ninth Circuit affirmed the district court&rsquo;s order compelling not individual arbitration, as the company had sought, but class arbitration.&nbsp; In deciding whether to compel class arbitration, the Ninth Circuit relied on California state law principles in applying a doctrine know as <em>contra proferentem</em>, which means that ambiguous terms in a contract should be construed against the drafter.&nbsp; In applying this doctrine, the Ninth Circuit found that the ambiguous terms of the parties&rsquo; agreement should be interpreted against Lamps Plus -- the drafter of the agreement -- and in favor of the employee, who argued for class arbitration.</p> <p> The Supreme Court reversed the Ninth Circuit&rsquo;s decision with five justices joining in the opinion.&nbsp; Relying on its past decisions in <em>Stolt-Nielsen</em>, <em>Concepcion</em>, and <em>Epic Systems</em>, the Court made clear that class arbitration &ldquo;fundamentally changes&rdquo; the nature of &ldquo;traditional individualized arbitration&rdquo; envisioned by the Federal Arbitration Act in several ways, including making the process slower, more costly, and &ldquo;more likely to generate procedural morass than final judgment.&rdquo; &nbsp;Because arbitration under the Federal Arbitration Act is strictly a matter of the parties&rsquo; consent, the Court found that applying <em>contra proferentem</em> to allow class arbitration under an ambiguous agreement is &ldquo;flatly inconsistent with the &lsquo;foundational FAA principle that arbitration is a matter of consent.&rsquo;&rdquo;&nbsp; The Court, therefore, found that the Ninth Circuit decision ordering class arbitration was improper and reversed.&nbsp;</p> <p> <strong>No Decision On Who Should Decide Whether An Agreement Allows For Class Arbitration &nbsp;</strong></p> <p> In a footnote, the Court stated that it was not deciding whether the availability of class arbitration is a &ldquo;question of arbitrability&rdquo; that is presumptively for courts (rather than arbitrators) to decide.&nbsp; The Court pointed out that the parties had agreed that a court should decide the issue, and therefore concluded that the question was not at issue.&nbsp; Thus, while every circuit court that has addressed the issue has found that the availability of class arbitration is a &ldquo;question of arbitrability&rdquo; for courts to decide in the absence of an express agreement to the contrary, the Supreme Court still has not decided the issue.</p> <p> <strong>What Does The Lamps Plus Decision Mean For Employers?</strong></p> <p> The decision is an important victory for employers.&nbsp; Courts can no longer order class arbitration under the Federal Arbitration Act unless the employers&rsquo; arbitration agreement <em>unambiguously</em> authorizes class arbitration.&nbsp; Under the<em> Lamps Plus</em> decision, employers no longer face the risk that ambiguous phrases in their agreements will lead to class arbitration.&nbsp; Only express agreements can lead to class arbitration.&nbsp; While many employers have revised existing arbitration agreements or adopted new ones since <em>Epic Systems</em> that include express class arbitration waivers, those employers with older clauses using generic language to the effect that all employment disputes are subject to arbitration benefit from today&rsquo;s opinion.&nbsp;</p> <p> The decision did not, however, close the door on future litigation as far as the availability of class arbitration.&nbsp; Plaintiffs will likely continue attempts to use principles of state contract laws to invalidate arbitration agreements.&nbsp; <em>Lamps Plus</em>, however, should significantly narrow the successful use of such laws to the extent they &ldquo;target arbitration either by name or by more subtle methods&hellip;&rdquo;&nbsp; In this light, even general contract principles such as unconscionability cannot stand in the way of arbitration enforcement if they over-ride the &ldquo;foundational FAA principle that arbitration is a matter of consent.&rdquo;</p> <p> Additionally, Justice Ginsburg argued in her dissenting opinion that Congress should act to &ldquo;correct&rdquo; the elevation of the FAA over &ldquo;the rights of employees and consumers&rdquo; to bring class actions.&nbsp; Congress could, therefore, someday pass legislation that would make class arbitration more widely available.&nbsp; &nbsp;&nbsp;&nbsp;</p> <p> Thus, despite the fact that the <em>Lamps Plus</em> decision makes it less likely that employers will face class arbitration, we continue to urge employers to have their employment agreements reviewed by experienced counsel and revised consistently with this and prior Supreme Court opinions.</p> https://www.seyfarth.com:443/news/alfredlaw360042419 Richard Alfred quoted in Law360 https://www.seyfarth.com:443/news/alfredlaw360042419 Wed, 24 Apr 2019 00:00:00 -0400 <p> Richard Alfred was quoted in an April 24 story from Law360, &quot;Supreme Court Ruling Cuts Off Avenue To Class Proceedings.&quot; Alfred said that this ruling is a big victory for the large number of employers that maintain arbitration agreements with common clauses that simply invoke arbitration as the proper forum for resolving employment disputes without an express statement including class or collective arbitration in that mandate.</p> https://www.seyfarth.com:443/news/alfredeld042419 Richard Alfred quoted in Employment Law Daily https://www.seyfarth.com:443/news/alfredeld042419 Wed, 24 Apr 2019 00:00:00 -0400 <p> Richard Alfred was quoted in an April 24 story from Employment Law Daily, &quot;Citing importance of &lsquo;consent&rsquo;, 5-4 High Court holds ambiguous contract can&rsquo;t support class arbitration.&quot; Alfred said that the ruling is a big victory for the large number of employers that maintain arbitration agreements with common clauses that simply invoke arbitration as the proper forum for resolving employment disputes without an express statement including class or collective arbitration in that mandate. You can read the <a href="http://www.employmentlawdaily.com/index.php/news/citing-importance-of-consent-5-4-high-court-holds-ambiguous-contract-cant-support-class-arbitration/">full article here</a>.</p> https://www.seyfarth.com:443/news/adanylj042419 Seyfarth's ADA statistics referenced in the New York Law Journal https://www.seyfarth.com:443/news/adanylj042419 Wed, 24 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in an April 24 story from the New York Law Journal, &quot;NY Lawmakers Plan to Address Surge in ADA Website Accessibility Suits.&quot; According to Seyfarth&#39;s report, there were a staggering 1,564 of those lawsuits brought in federal courts in New York last year alleging that companies had not made their websites compliant with the ADA.</p> https://www.seyfarth.com:443/news/lutkuswsjpro042419 Richard Lutkus quoted in WSJ Pro Cybersecurity https://www.seyfarth.com:443/news/lutkuswsjpro042419 Wed, 24 Apr 2019 00:00:00 -0400 <p> Richard Lutkus was quoted in an April 24 story from WSJ Pro Cybersecurity, &quot;FBI Recovers More Funds from Cyber Crime.&quot; Lutkus said that there&rsquo;s very little outside the FBI&rsquo;s Recovery Asset Team that has any chance of helping companies recover losses. He said it&rsquo;s certainly not coming through litigation.</p> https://www.seyfarth.com:443/news/bitarap042419 Karen Bitar quoted in the Associated Press https://www.seyfarth.com:443/news/bitarap042419 Wed, 24 Apr 2019 00:00:00 -0400 <p> Karen Bitar was quoted in an April 24 story from the Associated Press, &quot;Boy Scouts could hit with more sex abuse claims.&quot; Bitar said that plaintiffs&#39; lawyers recognize that this is a very unique and lucrative opportunity. You can read the <a href="https://apnews.com/e1ccae7cfce749169db80adf83a267cb">full article here</a>.</p> https://www.seyfarth.com:443/news/maatmanbi042319 Gerald Maatman quoted in Business Insurance https://www.seyfarth.com:443/news/maatmanbi042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Gerald Maatman was quoted in an April 23 story from Business Insurance, &quot;Timing can be everything when defending retaliation suits.&quot; Maatman said that a firm&rsquo;s best defense is the integrity and quality of its internal HR investigation when a complaint is brought to its attention. You can read the <a href="https://www.businessinsurance.com/article/20190423/NEWS06/912327998/Timing-can-be-everything-when-defending-employers-against-retaliation-suits">full article here</a>.</p> https://www.seyfarth.com:443/news/ssfbloomberglaw042319 Sam Schwartz-Fenwick quoted in Bloomberg Law https://www.seyfarth.com:443/news/ssfbloomberglaw042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in an April 23 story from Bloomberg Law, &quot;High Court LGBT Decision: Much at Stake in Clarifying Gray Area.&quot; Schwartz-Fenwick said that the positive of the Supreme Court taking this up is that we&rsquo;ll have certainty.</p> https://www.seyfarth.com:443/news/shermansba1042319 Andrew Sherman interviewed on the Small Business Advocate https://www.seyfarth.com:443/news/shermansba1042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Andrew Sherman was interviewed April 23rd on the Small Business Advocate, &quot;How to determine the real condition of the global economy.&quot; Sherman discusses how to determine the real economic condition in your future from the negative tendencies of &ldquo;click-bait&rdquo; reporting you see from the media. You can listen to the <a href="https://www.smallbusinessadvocate.com/small-business-interviews/andrew-j--sherman-31469">full interview here</a>.</p> https://www.seyfarth.com:443/news/shermansba2042319 Andrew Sherman interviewed on the Small Business Advocate https://www.seyfarth.com:443/news/shermansba2042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Andrew Sherman was interviewed April 23rd on the Small Business Advocate, &quot;How long with economic expansion continue?&quot; Sherman discusses some of the energy and possible challenges to the continued economic expansion being experienced in the U.S., including from global influences, like possible trade deals. You can listen to the <a href="https://www.smallbusinessadvocate.com/small-business-interviews/andrew-j--sherman-31470">full interview here</a>.</p> https://www.seyfarth.com:443/news/shermansba3042319 Andrew Sherman interviewed on the Small Business Advocate https://www.seyfarth.com:443/news/shermansba3042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Andrew Sherman was interviewed April 23rd on the Small Business Advocate, &quot;Is disengagement in the workplace different from past generations?&quot; Sherman discusses how the different hierarchies of knowledge between the diverse generations in the workplace may be contributing to increasing employee disengagement. You can listen to the <a href="https://www.smallbusinessadvocate.com/small-business-interviews/andrew-j--sherman-31468">full interview here</a>.</p> https://www.seyfarth.com:443/news/liesbisnow042319 Mark Lies quoted in Bisnow https://www.seyfarth.com:443/news/liesbisnow042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Mark Lies was quoted in an April 23 story from Bisnow, &quot;In Active-Shooter Events, Building Managers And Owners Are The Predominant Legal Targets.&quot; Lies said that OSHA is now in the game regulating workplace violence &mdash; and an active shooter obviously is an issue with workplace violence. You can read the <a href="https://www.bisnow.com/national/news/commercial-real-estate/what-building-owners-and-property-managers-need-to-know-about-live-shooters-your-liability-is-not-limited-98605">full article here</a>.</p> https://www.seyfarth.com:443/publications/GPW042319 And Texas Joins the Privacy Fray – Part 1 (or, the Elephant in the room just got a LOT bigger…) https://www.seyfarth.com:443/publications/GPW042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Last month, Texas saw the introduction of not one, but TWO privacy bills in the Texas state legislature: The Texas Consumer Privacy Act (TXCPA) and the Texas Privacy Protection Act (TXPPA). With news of this likely meeting with a collective groan and shoulder shrug, we do have some good news for you.<br /> <br /> <a href="https://www.globalprivacywatch.com/2019/04/and-texas-joins-the-privacy-fray-part-1-or-the-elephant-in-the-room-just-got-a-lot-bigger/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS042319 Seyfarth Shaw Partner Contributes to International Chamber of Commerce report “Protecting Trade Secrets—Recent EU and US Reforms” https://www.seyfarth.com:443/publications/TS042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Seyfarth Partner and Co-Chair of the Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group Robert Milligan contributed to the International Chamber of Commerce (ICC) report &ldquo;Protecting Trade Secrets&mdash;Recent EU and US Reforms.&rdquo;<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/trade-secrets/seyfarth-shaw-partner-contributes-to-international-chamber-of-commerce-report-protecting-trade-secrets-recent-eu-and-us-reforms/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT042319 Possession of a Medical Marijuana Card Doesn’t Necessarily Prove Current Drug Use https://www.seyfarth.com:443/publications/TBT042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Last month, a Hawaii federal district court judge denied an employer&rsquo;s motion to dismiss an applicant&rsquo;s claim for disability discrimination under the Americans with Disabilities Act (ADA) where the employer merely assumed that an applicant who admitted to having a medical marijuana card was a current marijuana user and would fail a drug test. Specifically, in Kamakeeaina v. Armstrong Produce, Ltd., Case No. 18-cv-00480-DKW-RT (D. Haw. March 22, 2019), the plaintiff claimed that he suffered from post-traumatic stress disorder (PTSD) and depression. After the employer made a conditional offer of employment to the plaintiff, the employer advised him that he was required to, among other things, pass a drug test. During a subsequent interview with the employer&rsquo;s Human Resources Director, the plaintiff advised that he was registered under Hawaii&rsquo;s Medical Cannabis Program. After continued conversation between the two, the Human Resources Director told the plaintiff that the employer would withdraw the job offer if he tested positive for drugs. The plaintiff responded that he was &ldquo;prepared to have the offer taken off the table.&rdquo; After further conversation, but without actually administering a drug test, the Human Resources Director withdrew the plaintiff&rsquo;s employment offer.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/04/possession-of-a-medical-marijuana-card-doesnt-necessarily-prove-current-drug-use/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE042319 Health Care Employers Face Workplace Safety Challenges from Virulent New Multidrug-Resistant Fungus https://www.seyfarth.com:443/publications/WSE042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Health care providers are increasingly called upon to address drug resistant medical cases such as Candida auris (C. auris), an emerging multidrug-resistant fungus that presents a serious health threat to health care employees. Health care employers need to ensure that employees are being adequately protected from potential hazards, such as C. auris.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/healthcare/health-care-employers-face-workplace-safety-challenges-from-virulent-new-multidrug-resistant-fungus/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise042319 Hiring Influencers: Are You Playing With Fyre? https://www.seyfarth.com:443/publications/FutureEnterprise042319 Tue, 23 Apr 2019 00:00:00 -0400 <p> As anyone who has seen the recent Fyre Festival documentaries knows, using social media influencers is an increasingly popular way to market products. The benefits of this method are clear&mdash;social media posts by influencers can be a low-cost way of reaching an enormous audience of potential consumers. However, advertising via influencers also carries potential legal risks.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2019/4/23/hiring-influencers-are-you-playing-with-fyre">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC042219 Following Supervisor’s “Not Working Out” Comment, EEOC Defeats Employer’s Motion For Summary Judgment In ADA Lawsuit https://www.seyfarth.com:443/publications/WC042219 Mon, 22 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: A federal district court in Arkansas recently denied an employer&rsquo;s motion for summary judgment on two EEOC-initiated ADA claims &ndash; in EEOC v. Crain Automotive Holdings LLC, No. 4:17-CV-627, 2019 U.S. Dist. LEXIS 62513 (E.D. Ark. Apr. 11, 2019) &ndash; for failure to provide a reasonable accommodation and discharge based on disability, following a supervisor&rsquo;s comments to an employee that &ldquo;it was not working out&rdquo; and to take care of herself after the employee&rsquo;s hospitalization. Id. at *1. For employers and management personnel, this ruling illustrates how courts might find seemingly innocuous comments to be direct evidence of discrimination, thus raising the stakes in ADA litigation initiated by the EEOC.<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/04/following-supervisors-not-working-out-comment-eeoc-defeats-employers-motion-for-summary-judgment-in-ada-lawsuit/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL042219 High Court To Determine Whether Title VII Prohibits Discrimination on the Basis of Sexual Orientation and Gender Identity https://www.seyfarth.com:443/publications/EL042219 Mon, 22 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Today, the Supreme Court granted review to a trio of Title VII cases raising the issue of whether Title VII prohibits discrimination on the basis of sexual orientation and gender identity. The Court&rsquo;s decision in these cases could create a federal right of action for individuals discriminated against on the basis of sexual orientation and gender identity.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/high-court-to-determine-whether-title-vii-prohibits-discrimination-on-the-basis-of-sexual-orientation-and-gender-identity/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EEOC042219 Following Supervisor’s “Not Working Out” Comment, EEOC Defeats Employer’s Motion For Summary Judgment In ADA Lawsuit https://www.seyfarth.com:443/publications/EEOC042219 Mon, 22 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: A federal district court in Arkansas recently denied an employer&rsquo;s motion for summary judgment on two EEOC-initiated ADA claims &ndash; in EEOC v. Crain Automotive Holdings LLC, No. 4:17-CV-627, 2019 U.S. Dist. LEXIS 62513 (E.D. Ark. Apr. 11, 2019) &ndash; for failure to provide a reasonable accommodation and discharge based on disability, following a supervisor&rsquo;s comments to an employee that &ldquo;it was not working out&rdquo; and to take care of herself after the employee&rsquo;s hospitalization. Id. at *1. For employers and management personnel, this ruling illustrates how courts might find seemingly innocuous comments to be direct evidence of discrimination, thus raising the stakes in ADA litigation initiated by the EEOC.<br /> <br /> <a href="https://www.eeoccountdown.com/2019/04/22/following-supervisors-not-working-out-comment-eeoc-defeats-employers-motion-for-summary-judgment-in-ada-lawsuit/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS042219 Upcoming Webinar! The Defend Trade Secrets Act: 3 Years Later https://www.seyfarth.com:443/publications/TS042219 Mon, 22 Apr 2019 00:00:00 -0400 <p> On Thursday, May 2 at 12:00 p.m. Central Time, in Seyfarth&rsquo;s third installment of its 2019 Trade Secrets Webinar Series, Seyfarth attorneys will focus on the key provisions of the Defend Trade Secrets Act, and how the DTSA has evolved since it was passed three years ago.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/dtsa/upcoming-webinar-the-defend-trade-secrets-act-3-years-later/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/adasfnm042119 Seyfarth's ADA statistics referenced in the Santa Fe New Mexican https://www.seyfarth.com:443/news/adasfnm042119 Sun, 21 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in an April 21 story from the Santa Fe New Mexican, &quot;Website accessibility act not exactly a new idea.&quot; According to Seyfarth&#39;s analysis, the Justice Department&rsquo;s shelving of the ADA regulations on website accommodations already has fueled a surge of lawsuits and demand letters filed on behalf of individuals with disabilities alleging that the websites of thousands of public accommodations were not accessible. You can read the <a href="https://www.santafenewmexican.com/news/health_and_science/website-accessibility-act-not-exactly-a-new-idea/article_7c05b121-3762-5821-957f-cfe6037ac7cc.html">full article here</a>.</p> https://www.seyfarth.com:443/news/adanc042019 Seyfarth's ADA statistics referenced in News Chief https://www.seyfarth.com:443/news/adanc042019 Sat, 20 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in an April 20 story from News Chief, &quot;ADA Compliance: Polk records vanish amid wave of legal threats.&quot; According to Seyfarth&#39;s analysis, federal lawsuits alleging discrimination through inaccessible websites totaled 2,258 last year, reflecting a 177% increase from 2017. You can read the <a href="https://www.newschief.com/news/20190420/ada-compliance-polk-records-vanish-amid-wave-of-legal-threats">full article here</a>.</p> https://www.seyfarth.com:443/news/gagnonhre041919 Matthew Gagnon quoted in Human Resource Executive https://www.seyfarth.com:443/news/gagnonhre041919 Fri, 19 Apr 2019 00:00:00 -0400 <p> Matthew Gagnon was quoted in an April 19 story from Human Resource Executive, &quot;Harassment Up, Discrimination Down in New EEOC Report.&quot; Gagnon said that the big news of fiscal year 2018 continues to be the sharp increase in enforcement activity around sexual-harassment issues. You can read the <a href="http://hrexecutive.com/harassment-up-discrimination-down-in-new-eeoc-figures/">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS041919a Seyfarth Partner John Tomaszewski to Present at the AIPLA 2019 Spring Meeting https://www.seyfarth.com:443/publications/TS041919a Fri, 19 Apr 2019 00:00:00 -0400 <p> The American Intellectual Property Law Association (AIPLA) will host its annual Spring Meeting in Philadelphia on May 15-17, 2019.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/privacy-2/seyfarth-partner-john-tomaszewski-to-present-at-the-aipla-2019-spring-meeting/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL041919 #MeToo on the Move: Illinois Responds as Senate’s Sweeping Sexual Harassment Bill Gains Traction https://www.seyfarth.com:443/publications/EL041919 Fri, 19 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The Illinois Senate unanimously passed an all-encompassing sexual harassment bill, which hits all of the big ticket workplace sexual harassment hot topics, including imposing sexual harassment training and extensive reporting requirements, bans on non-disclosure agreements, arbitration clauses and non-disparagement clauses, and hefty penalties for non- compliance. Whether the House will now move forward with the bill is to be continued&hellip;<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/metoo-on-the-move-illinois-responds-as-senates-sweeping-sexual-harassment-bill-gains-traction/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS041919 Upcoming Webinar! Cybesecurity: Securities Laws and Governance Considerations for Public Companies https://www.seyfarth.com:443/publications/TS041919 Fri, 19 Apr 2019 00:00:00 -0400 <p> On May 7 at 12 p.m. Central, Seyfarth attorneys Blake Hornick, Scott Carlson, and Michael Dunn are presenting a cybersecurity CLE webinar.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/cybersecurity/upcoming-webinar-cybesecurity-securities-laws-and-governance-considerations-for-public-companies/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM041919-LE New Mexico’s “Criminal Offender Employment Act” To Prohibit Private Employers From Criminal History Inquiry On Initial Employment Applications https://www.seyfarth.com:443/publications/OMM041919-LE Fri, 19 Apr 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> New Mexico has enacted new legislation which will bring the growing &ldquo;Ban the Box&rdquo; to private employers within the state this summer.</em></div> <div> &nbsp;</div> <div> <strong>The Criminal Offender Employment Act</strong></div> <div> &nbsp;</div> <div> Effective July 1, 2019, a new section of <a href="https://www.nmlegis.gov/Sessions/19 Regular/final/SB0096.pdf">The Criminal Offender Employment Act</a> will prohibit private employers from inquiring about an applicant&rsquo;s arrest or conviction history on an initial employment application (written or electronic).&nbsp; The employer may take into consideration an applicant&rsquo;s conviction after review of the employment application and upon discussion of employment with the applicant.&nbsp; Nothing in the statute prohibits an employer from notifying the public or an applicant that the law or the employer&rsquo;s policy could disqualify an applicant who has a certain criminal history from employment in particular positions with that employer (e.g., within a job posting or during an interview).</div> <div> Aggrieved applicants may seek relief under the Human Rights Act.</div> <div> &nbsp;</div> <div> <strong>Employer Outlook</strong></div> <div> &nbsp;</div> <div> Employers in New Mexico should review their employment applications and relevant employment forms to ensure compliance with federal, state, and local law.&nbsp; Employers who operate in multiple jurisdictions should particularly review any standardized forms that may be in use to ensure compliance.&nbsp; Employers also should ensure that all hiring and recruiting personnel are aware of &ldquo;ban the box&rdquo; laws -- and whether they apply to them.&nbsp; Employers with questions regarding &ldquo;ban the box&rdquo; should consult with counsel.</div> https://www.seyfarth.com:443/publications/CONS041919 James Newland to Present at Federal Publications Seminar on April 25-26 https://www.seyfarth.com:443/publications/CONS041919 Fri, 19 Apr 2019 00:00:00 -0400 <p> On April 25 and 26, James Newland, partner in Seyfarth&rsquo;s Construction Practice Group, will be presenting the &ldquo;Changes and Claims in Government Construction Contracting&rdquo; course at the Federal Publications Seminar at the Executive Conference and Training Center in Sterling, Virginia. His presentation will focus on owner changes and contractor claims in the federal government contracting arena. James regularly presents for the Federal Publications Seminars, which provide periodic training covering a variety of government contracting issues.<br /> <br /> <a href="https://www.constructionseyt.com/2019/04/james-newland-to-present-at-federal-publications-seminar-on-april-25-26/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP041919 Gig Workers And The Duty Of Loyalty https://www.seyfarth.com:443/publications/CP041919 Fri, 19 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Thinking of converting your independent contractors to employees? Not so fast. There are many implications to consider. Below we touch on one of them.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/04/19/gig-workers-and-the-duty-of-loyalty/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/RS041819-LE Regulatory Spring: Rulemaking by the Wage & Hour Division - April 18, 2019 https://www.seyfarth.com:443/publications/RS041819-LE Thu, 18 Apr 2019 00:00:00 -0400 <p> <strong>About That Salary Level . . .</strong></p> <p> This week, we focus on WHD&rsquo;s proposed rule increasing the salary threshold for exempt status.&nbsp; As you probably recall, the previous regulation increasing the level was enjoined by a federal court in 2016.&nbsp; As a result, WHD continues to enforce the 2004 salary level&mdash;$455 per week ($23,660/year).</p> <p> Historically, the salary threshold has been a dividing line between nonexempt and potentially exempt employees, excluding from exemption many employees based on an assessment that employees compensated below the salary threshold are very unlikely to be employed &ldquo;in a bona fide executive, administrative, or professional capacity.&rdquo;&nbsp; Of course, employees who earn more than the salary threshold are not automatically exempt&mdash;they still must meet the duties test(s).&nbsp; Thus, the salary threshold should be set at a level that screens out clearly nonexempt employees, but does not improperly exclude individuals whose duties would meet the standard for exemption.</p> <p> WHD&rsquo;s current proposal is premised on its understanding that the &ldquo;vast majority&rdquo; of interested parties are in agreement that the salary threshold is in need of an increase from the 2004 level.&nbsp; To help inform WHD&rsquo;s rulemaking, we are seeking your input on some questions related to WHD&rsquo;s proposal to increase the salary level to $679 per week ($35,309/year).</p> <ul> <li> Given the salary threshold&rsquo;s purpose (as described above), is $35,308 an appropriate salary threshold?</li> <li> If not, is it too high?&nbsp; Too low?&nbsp; Why?</li> <li> If the proposal was adopted at $35,308, are there particular positions in your industry that are likely to be impacted (i.e., are there groups of currently exempt employees who will fall below the new figure)?&nbsp; Please identify the position/industry/geographic region.</li> </ul> <p> WHD also proposes to allow employers to satisfy up to 10% of the salary threshold in bonuses/commissions/incentive payments.&nbsp; Under the proposal, an employer would need to pay $611.10 or more per week on a salary basis.&nbsp; Throughout the course of the year, an employee would also earn commissions, bonuses, and/or other incentive payments.&nbsp; At the conclusion of the year, the employer would total these other payments, and, to the extent they fell short of $3,530.80 (i.e., the $35,308 threshold less the $31,777.20 required to be paid as a salary), the employer would need to make a &ldquo;catch-up&rdquo; payment at the end of the year.&nbsp; As proposed, employers would have one pay period to make any necessary catch-up payment.</p> <p> With respect to the 10% commission/bonus provision:</p> <ul> <li> Do you envision that your business might avail itself of this option with respect to any employees?</li> <li> If yes, please identify the positions, industries, and geographic regions.</li> <li> If not, would you use the provision if the commissions/bonuses could represent a higher percentage of compensation?</li> <li> If not, what percentage would make it attractive?</li> <li> Is one pay period a sufficient amount of time to reconcile the annual commission/bonus payments and make any necessary catch-up payments?</li> <li> If not, how long would be necessary?</li> </ul> <p> If you would like to provide your input on these issues, please complete our survey <a href="https://www.surveymonkey.com/r/HWY5WMK">here</a>&nbsp;or send an e-mail to <a href="mailto:regulatoryspring@seyfarth.com">regulatoryspring@seyfarth.com</a>.&nbsp; Please limit your response to the questions asked.&nbsp; Do not include specific information about current wage &amp; hour practices or policies.</p> https://www.seyfarth.com:443/publications/OMM041819-LE Brexit: EU Grants Extension to October 31, 2019 https://www.seyfarth.com:443/publications/OMM041819-LE Thu, 18 Apr 2019 00:00:00 -0400 <p> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world.&nbsp; If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.</em></p> <p> <em><strong>Seyfarth Synopsis:</strong> Following the EU summit last week, the UK&rsquo;s withdrawal from the EU has been delayed until October 31, 2019 at the latest. This date may change if the UK parliament ratifies the Withdrawal Agreement sooner. The UK will remain a full member of the EU during the ongoing negotiations. The immigration rights of EU citizens in the UK, and British nationals in Europe, will remain unchanged during this time until a new Brexit date is set.&nbsp;&nbsp;</em></p> <p> <strong>EU Council Grants Extension</strong></p> <p> Following the failure of the UK Parliament to achieve consensus on the Brexit process, the British Prime Minister Theresa May requested a further extension to the negotiating period. At the European Council emergency summit last week, the EU granted an extension until October 31, 2019.</p> <p> If the UK parliament ratifies the Withdrawal Agreement sooner, then the UK would exit the EU on the first day of the following month. As a condition of the extension, the UK must take part in European parliamentary elections in May. Failure to do so could result in a no-deal exit in June.</p> <p> The EU reiterated that they will not re-open negotiations on the Withdrawal Agreement. Therefore, the discussions are likely to focus on the &lsquo;political declaration&rsquo; portion of the Brexit deal, which sets out the future relations between the UK and the EU. Given the ongoing uncertainty, many options including revocation of Article 50, a second referendum or a no-deal situation, are still possible.</p> <p> <strong>UK immigration: What is the impact?</strong></p> <p> As the UK continues to remain a full member of the EU, the immigration rights of EU citizens in the UK, and British nationals in the EU, have not changed. Citizens will continue to hold freedom of movement rights until the UK fully exits the EU.&nbsp;&nbsp;</p> <p> The European Settlement Scheme, which has been running in a pilot phase for several months, became fully operational on March 30, 2019. The UK government confirmed that this scheme remains open, despite the extension of the Brexit negotiations. There is no fee for EU citizens making an application under this scheme.</p> <p> EU citizens in the UK are recommended to apply under this scheme now, as compulsory registration will take place if and when the UK does leave the EU.&nbsp; Employers and affected individuals should also bear in mind that although the Brexit extension has been moved to October 31, 2019, it could be brought forward if the UK government and the EU reach an agreement before then.</p> <p> We will continue to monitor and report on developments in relation to Brexit as events unfold.</p> https://www.seyfarth.com:443/publications/OMM041819-LE2 Massachusetts DFML Releases Template Paid Family And Medical Leave Notices And Sets May 31, 2019 Distribution Deadline https://www.seyfarth.com:443/publications/OMM041819-LE2 Thu, 18 Apr 2019 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em>:</strong> <em>On Wednesday afternoon, the Massachusetts Department of Family and Medical Leave (DFML) posted <a href="https://www.mass.gov/lists/paid-family-and-medical-leave-downloads-for-massachusetts-employers">template notices</a> for employers to provide to each Massachusetts employee and self-employed 1099-MISC contractor on or before May 31, 2019, as required by the Massachusetts Paid Family Medical Leave (PFML) Law. This is the first time the DFML has provided a deadline for these notices. Importantly, the notice must include both the employer&rsquo;s and worker&rsquo;s contribution rates. Employers may create their own written or electronic notice as long as it contains the minimum requirements of the PFML Law. Employers must collect written or electronic confirmation from each worker acknowledging or refusing to acknowledge receipt of the notice.</em></p> <p> <strong>Written Notice To Employees And Self-Employed Contractors By May 31, 2019</strong></p> <p> According to the DFML, employers must provide the written notice to workers of their rights and obligations under the PFML Law by <strong>May 31, 2019</strong>. The DFML has provided a template notice to employees in six languages (the notice must be provided in the employee&rsquo;s primary language). The English template to employees may be accessed <a href="https://www.mass.gov/doc/employer-notice-to-employee/download">here</a>. The DFML also has provided a template notice to self-employed contractors in six languages (the notice must be provided in the contractor&rsquo;s primary language). The English template to contractors may be accessed <a href="https://www.mass.gov/doc/employer-notice-to-self-employed-individual/download">here</a>.</p> <p> The notice must be provided electronically or in paper form by <strong>May 31, 2019</strong> for all employees or self-employed contractors who are employed or contracted with on or after June 1, 2019; or within 30 days of the first day of employment for new employees, or for self-employed contractors, when entering into a contract for services. &nbsp;</p> <p> <strong>Acknowledgment Of Receipt</strong></p> <p> The notice must include the opportunity for an employee or self-employed individual to acknowledge receipt or decline to acknowledge receipt of the information. Employers may collect these acknowledgements electronically or in paper form.</p> <p> If an employee or self-employed individual does not acknowledge receipt, an employer or covered business entity can show it fulfilled the notice obligation by establishing that it provided its entire workforce with the notice and the opportunity to acknowledge or decline to acknowledge receipt.</p> <p> <strong>Employer-Created Written Notices</strong></p> <p> Employers may create their own notice. The written notice to employees must include the following:</p> <ul> <li> An explanation of the availability of family and medical leave benefits;</li> <li> Both the employer&rsquo;s and employee&rsquo;s contribution amounts (by percentage) and obligations;</li> <li> The employer&rsquo;s name and mailing address;</li> <li> The employer&rsquo;s identification number assigned by the DFML;</li> <li> Instructions on how to file a claim for family and medical leave benefits;</li> <li> The mailing address, email address and telephone number of the DFML.</li> </ul> <p> The written notice to self-employed individuals (1099-MISC contractors) must include the majority of the same information as the notice to employees. For example, it must include an explanation of the availability of family and medical leave benefits&nbsp;and the procedures for self-employed individuals to become covered individuals entitled to such benefits (where the company is not a &ldquo;covered business entity&rdquo;). The notice must also include the self-employed individual&rsquo;s contribution amount (by percentage) and obligations if they were to&nbsp;become a covered individual or if the company is a covered business entity, as well as the company&rsquo;s contribution amount (by percentage) and obligations where it is a covered business entity.</p> <p> The DFML&rsquo;s website contains substantial information regarding the above items and more. We encourage you to review these resources.&nbsp;</p> <p> For our prior reports on the PFML Law and the draft regulations, you may refer&nbsp;<a href="https://www.seyfarth.com/publications/MA062218-LE">here</a>,&nbsp;<a href="https://www.seyfarth.com/publications/MA062218-LE">here</a>,&nbsp;<a href="https://www.seyfarth.com/publications/MA032719-LE">here</a>, and <a href="https://www.seyfarth.com/publications/MA040219-LE2">here</a>.</p> https://www.seyfarth.com:443/publications/PM041819-LE Seyfarth Shaw Policy Matters Newsletter - April 18, 2019 https://www.seyfarth.com:443/publications/PM041819-LE Thu, 18 Apr 2019 00:00:00 -0400 <p> The House and Senate are adjourned this week and next for their State/District work periods.<br /> <br /> <strong>EEOC Releases Enforcement and Litigation Stats.&nbsp; </strong>Last week, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2018.&nbsp; There was a dip in the number of total charges filed, but a substantial increase in the EEOC&rsquo;s monetary recoveries.&nbsp; Retaliation and sex discrimination charges were the most frequently alleged.&nbsp; See Seyfarth&rsquo;s Workplace Class Action <a href="https://www.workplaceclassaction.com/2019/04/and-the-train-kept-a-rolling-eeocs-2018-enforcement-and-litigation-statistics-show-charges-down-but-the-agency-still-on-the-move/">blog</a> for more details.<br /> <br /> <strong>The EEO-1 Saga Rolls On.</strong>&nbsp; On Tuesday, the U.S. District Court for D.C. held a status hearing in the ongoing litigation over the EEO-1.&nbsp; The most recent hearing focused on a key question:&nbsp; when can the EEOC realistically be up and running to collect and process the new EEO-1 form, Component Two.&nbsp; The Court closely questioned the EEOC&rsquo;s data collection expert on the EEOC&#39;s preparation for the collection of Component Two, as well as the roadblocks that might be in the way of moving the agency to where it could begin collecting that data.&nbsp; EEOC&rsquo;s expert conceded that a September 30 deadline was feasible, but meeting that date would mean the data collection process would not be up to industry standards.&nbsp; There was also discussion of what should happen when the OMB 3 year approval of Component Two expires on September 30, e.g. could that deadline be &ldquo;tolled&rdquo; under the Court&rsquo;s authority.&nbsp; The Court offered the parties an opportunity to file written summations with a proposed order targeted for April 22.&nbsp;&nbsp;As noted last week, Seyfarth filed an extensive amicus brief with the Court detailing the real practical and technological obstacles facing employers in complying with an unrealistic deadline, and will continue to closely follow developments. We expect the Court to issue a firm deadline very soon.<br /> <br /> <strong>New OMB Circular on Rulemaking.</strong> &nbsp;On April 11, the White House&rsquo;s Office of Management and Budget (OMB) issued a new guidance <a href="https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf">memorandum</a> relating to rulemaking.&nbsp; The memorandum, which is directed to the heads of Executive Branch Departments and Agencies, uses the Congressional Review Act (CRA) as a hook to reassert the power of the Office of Information and Regulatory Affairs (OIRA) within OMB to review &ldquo;rules&rdquo;&nbsp;&ndash;&nbsp;as broadly construed under the Administrative Procedure Act &ndash; issued by agencies.&nbsp; The CRA distinguishes between major and minor rules with regard to effective dates, and the memorandum emphasizes this fact to make clear that OMB has the ultimate authority to determine what is major and what is minor.&nbsp; OMB also reminds the agencies (and the public) that there are&nbsp;several criteria for determining whether a particular rule is major; there is more to the assessment than whether the rule will have an annual effect on the economy of $100 million or more.&nbsp; The clear signal being sent is that OMB will rigorously assert its oversight authority during rulemaking.&nbsp; Whether this is helpful will depend on the underlying rule in question and the underlying circumstances, but it is important to be aware of this latest wrinkle by the Administration in the rulemaking area.<br /> <br /> <strong>&ldquo;Medical Marijuana User&rdquo; Now a Protected Class in New Mexico.</strong>&nbsp; As state legislatures have legalized marijuana around the country, employers have struggled to determine the extent of their ability to take employment action against employees for using marijuana.&nbsp; New Mexico recently resolved some &ndash; but not all &ndash; of that struggle.&nbsp; New Mexico employers are prohibited from taking any &ldquo;adverse employment action against an applicant or an employee based on conduct allowed under&rdquo; the law, including declining to hire, terminating, or taking any other adverse action against an individual because he or she is using medical marijuana or received a recommendation for such use by a provider.&nbsp; See Seyfarth&rsquo;s The Blunt Truth <a href="https://www.blunttruthlaw.com/2019/04/new-mexico-just-became-employee-friendly-to-medical-marijuana-users/">blog</a> for more.</p> <p> To subscribe to the Policy Matters weekly newsletter, <a class="cms-content-links" href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy">click here</a>.</p> https://www.seyfarth.com:443/publications/EL041819 New Mexico Just Became Employee-Friendly to Medical Marijuana Users https://www.seyfarth.com:443/publications/EL041819 Thu, 18 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Given this recent New Mexico medical marijuana law change discussed here, employers in all jurisdictions should review their current policies and practices addressing &ldquo;weed at work&rdquo; and continue to monitor developments in this evolving area of law.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/new-mexico-just-became-employee-friendly-to-medical-marijuana-users/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT041819 The Week in Weed: April 19, 2019 https://www.seyfarth.com:443/publications/TBT041819 Thu, 18 Apr 2019 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/2019/04/the-week-in-weed-april-19-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TipsonAvoidingWageandHourLawsuitsinMassachusetts-Tip3 Tips on Avoiding Wage and Hour Lawsuits in Massachusetts https://www.seyfarth.com:443/publications/TipsonAvoidingWageandHourLawsuitsinMassachusetts-Tip3 Thu, 18 Apr 2019 00:00:00 -0400 <p> <em><strong>Tip #3: Conduct an Off-the-Clock Work&nbsp;Audit</strong></em><br /> <br /> Even fair-minded employers, with sound policies, face &ldquo;off-the-clock&rdquo; claims. That is, employers have to defend against lawsuits in which employees argue that they worked hours for which their employers failed to pay them. Plaintiffs&rsquo; lawyers often assert these claims as class or collective actions. Your company may be vulnerable, but you can take steps that may mitigate the risk... <a href="https://www.seyfarth.com/dir_docs/publications/AMAPecs_Tip3_041719.pdf" target="_top">Continue Reading Here</a>.</p> <p> <strong><em>Massachusetts Peculiarities, 4th Edition</em></strong></p> <p> <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=dnqetb1YFtQe0dDz-naQ4VgpmEB-rpCgb0lQzvgpg471rCOaTF3ORXtxB1WWkxLd&amp;RS_REFERRSID=dnqetb1YFtQe0dDz-naQ4QTVJWcvmMbWduQ45r6ZGUg&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=dnqetb1YFtQe0dDz-naQ4QTVJWcvmMbWduQ45r6ZGUg"><img align="middle" alt="Request Your Copy" border="0" height="130" src="http://marketing.seyfarth.com/reaction/images/buttons/Reserve_Your_Copy-MAPecs.jpg" width="240" /></a></p> <p> &nbsp;</p> <p> For <strong><em>Tip #1: Consider An Arbitration Agreement&mdash;With A Class Action Waiver</em></strong><em>,</em> <a href="https://www.seyfarth.com/dir_docs/publications/MAPecs_Tip1_022119.pdf" target="_blank">click here</a><em>.</em><br /> <br /> For&nbsp;<strong><em>Tip #2: Consider Conducting a Pay Equity Audit</em></strong><em>,&nbsp;</em><a href="https://www.seyfarth.com/dir_docs/publications/MAPecs_Tip2_031219.pdf" target="_blank">click here</a><em>.</em><br /> <br /> Stay tuned for<em> Tip #4: Evaluate Your Company&rsquo;s Independent Contractor Classifications</em>!</p> <p> Learn more about our <a href="https://www.seyfarth.com/Wage-Hour-Litigation" target="_blank">Wage &amp; Hour Litigation Practice Group</a> and subscribe to our <a href="https://www.wagehourlitigation.com/" target="_blank">Wage &amp; Hour Litigation Blog</a>.</p> https://www.seyfarth.com:443/publications/ecklpaj041819 William Eck authored an article in Lexis Practice Advisor Journal https://www.seyfarth.com:443/publications/ecklpaj041819 Thu, 18 Apr 2019 00:00:00 -0400 <p> William Eck authored an April 18 article in Lexis Practice Advisor Journal, &quot;Physician Practice Acquisitions: Avoiding Legal Pitfalls.&quot; The article focuses on the special merger and acquisition considerations applicable to physician practice acquisitions. You can read the <a href="https://www.lexisnexis.com/lexis-practice-advisor/the-journal/b/lpa/posts/physician-practice-acquisitions-avoiding-legal-pitfalls">full article here</a>.</p> https://www.seyfarth.com:443/news/wcarccr041819 Seyfarth's Workplace Class Action Report featured in the Cook County Record https://www.seyfarth.com:443/news/wcarccr041819 Thu, 18 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was featured in an April 18 story from the Cook County Record, &quot;Surveys: Class action lawsuits up again in 2018; Settlements down $1B, but businesses spent $24B to defend.&quot; According to Seyfarth&#39;s report, federal courts in Illinois were the destination for more than 1,600 class and collective actions against employers alone. You can read the <a href="https://cookcountyrecord.com/stories/512442480-surveys-class-action-lawsuits-up-again-in-2018-settlements-down-1b-but-businesses-spent-24b-to-defend">full article here</a>.</p> https://www.seyfarth.com:443/news/meiercpe041719 Steven Meier quoted in Commercial Property Executive https://www.seyfarth.com:443/news/meiercpe041719 Wed, 17 Apr 2019 00:00:00 -0400 <p> Steven Meier was quoted in an April 17 story from Commercial Property Executive, &quot;IRS Issues Updated Opportunity Zone Guidance.&quot; Meier said that it&rsquo;s a mix of user-friendly changes and some technical elaborations, but it is combined with some tightening up the framework. You can read the <a href="https://www.cpexecutive.com/post/finally-irs-speaks-again-on-opportunity-zones/">full article here</a>.</p> https://www.seyfarth.com:443/publications/TBT041719 New Mexico Just Became Employee-Friendly to Medical Marijuana Users https://www.seyfarth.com:443/publications/TBT041719 Wed, 17 Apr 2019 00:00:00 -0400 <p> Although New Mexico has had a medical marijuana law in place since 2007, it did not contain protections for job applicants and employees. However, all of that changed on April 4, 2019 when New Mexico Governor Grisham signed Senate Bill 406, which amends the Lynn and Erin Compassionate Use Act (the &ldquo;Act&rdquo;) to include changes that will impact New Mexico employers and their consideration and treatment of individuals using medical marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/04/new-mexico-just-became-employee-friendly-to-medical-marijuana-users/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE041719 USEPA Determines Pollutant Releases to Groundwater from Point Source Do Not Require NPDES Permit https://www.seyfarth.com:443/publications/WSE041719 Wed, 17 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: USEPA published an Interpretive Statement (dated April 12, 2019), which according to the Agency &ldquo;clarifies&rdquo; that releases of pollutants to groundwater from a point source are &ldquo;categorically excluded&rdquo; from Clean Water Act National Pollutant Discharge Elimination System (NPDES) permitting requirements.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/cwa/usepa-determines-pollutant-releases-to-groundwater-from-point-source-do-not-require-npdes-permit/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS041619 Seyfarth Trade Secrets Attorneys to Participate in ITechLaw 2019 World Technology Law Conference in Boston https://www.seyfarth.com:443/publications/TS041619 Tue, 16 Apr 2019 00:00:00 -0400 <p> Seyfarth is pleased to be a Global Sponsor at ITechLaw&rsquo;s 2019 World Technology Conference in Boston, May 15-17.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/trade-secrets/seyfarth-trade-secrets-attorneys-to-participate-in-itechlaw-2019-world-technology-law-conference-in-boston/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA041619-LE Recent Texas Prosecutions Reveal New Federal Enforcement Tools and Focus on Private Insurance https://www.seyfarth.com:443/publications/MA041619-LE Tue, 16 Apr 2019 00:00:00 -0400 <div> Three cases recently wrapped up in the Northern and Southern Districts of Texas reveal an increased focus on health care fraud committed against private commercial third-party payors, as well as the tools that the Department of Justice (DOJ) is using to prosecute these schemes.&nbsp; Historically, many of the prosecutions in the health care industry have focused on waste, fraud and abuse in federal health care programs, such as Medicare and Medicaid.&nbsp; However, these prosecutions show that US Attorneys and regulators have a renewed interest in prosecuting fraud even outside of those programs.&nbsp; This should give providers and others pause when they consider arrangements that exclude Medicare or Medicaid claims or patients, and which have traditionally been thought of as safe or low-risk.</div> <div> &nbsp;</div> <div> <em><strong>Forest Park Medical Center</strong></em></div> <div> &nbsp;</div> <div> Forest Park Medical Center (&ldquo;FPMC&rdquo;) was a physician-owned hospital in Dallas that opened in 2009.&nbsp; In 2016, 21 individuals associated with FPMC or its business partners were indicted in the Northern District of Texas for various health care offenses, including conspiracy to violate the federal Anti-Kickback Statute.&nbsp; However, the most novel part of the indictment was the charge of violation of the federal Travel Act (18 U.S.C. &sect;1952), which punishes the use of various means of interstate commerce for the purposes of carrying on unlawful activity under another statute, here the Texas commercial bribery statute (Texas Penal Code &sect;32.43).&nbsp; The DOJ alleged that individuals associated with FPMC bribed physicians (either directly or indirectly) with cash payments and other incentives (gifts, discounted leases, etc.) to send patients with commercial insurance or certain federal programs to FPMC, and used cash to steer patients with lower-reimbursing federal programs, including Medicare and Medicaid, to other facilities.&nbsp; FPMC was also engaged in routine waivers of patient responsibility amounts, such as copayments and deductibles.&nbsp; FPMC and the conspirators engaged in extensive tracking of referrals and referral sources, and rewarded physicians accordingly.&nbsp; On April 10, 2019, seven of the indicted defendants were found guilty by a federal jury.&nbsp; Ten other defendants already pled guilty to charges.&nbsp; Two other defendants were found not guilty or the jury deadlocked on charges against them.</div> <div> &nbsp;</div> <div> <em><strong>Palo Pinto General Hospital</strong></em></div> <div> &nbsp;</div> <div> Palo Pinto General Hospital (&ldquo;PPGH&rdquo;) is a hospital owned and operated by a county hospital district.&nbsp; In March 2019, the CEO of PPGH, Harris Brooks, agreed to plead guilty to several charges, chief among them conspiracy to commit healthcare fraud (18 USC &sect;1347).&nbsp; It was alleged that Mr. Brooks had conspired with others to defraud commercial third-party payors by submitting false claims for laboratory services.&nbsp; In particular, PPGH was engaged in a fraudulent pass-through billing scheme, where laboratory services were performed by other laboratories, and other entities who were in contractual relationships with PPGH would market these services to physicians, but all claims and services were billed through PPGH, which had no relationships with the laboratories or the patients whose claims were billed.</div> <div> &nbsp;</div> <div> <div> <strong><em>Red Oak Hospital</em></strong></div> <div> &nbsp;</div> <div> In February 2019, a federal jury found two individuals, Harcharan Narang, M.D. and Dayakar Moparty, guilty of conspiracy to commit health care fraud.&nbsp; A third indicted co-conspirator pled guilty before trial.&nbsp; Dr. Narang and Mr. Moparty, who owned and managed Red Oak Hospital in Houston, were engaged in a scheme to submit claims for medical unnecessary diagnostic tests.&nbsp; These tests were ordered routinely, without regard to medical necessity for that individual.&nbsp; In addition, some services were billed but never performed.&nbsp; In some cases, when one payor would not pay Red Oak for a test, the parties would submit the bill through other entities, none of which had treated or seen the patient.&nbsp; The conspirators enriched themselves by paying distributions of these fraudulently obtained proceeds.</div> <div> &nbsp;</div> <div> <u><strong>Key Takeaways</strong></u></div> <div> &nbsp;</div> <div> These three prosecutions reveal two particularly important facts for providers and others involved in the health care industry in Texas.&nbsp; First, an arrangement which does not take Medicare or Medicaid is not per se safe or without risk.&nbsp; Regulators are focusing on schemes and conspiracies that have the effect of driving up costs in the commercial healthcare industry.&nbsp; One interesting side note is that Texas has a statute, the Texas Patient Solicitation Act (Tex. Occ. Code &sect;102.001 et seq.), which is worded similarly to the federal Anti-Kickback Statute, but includes all payors.&nbsp; However, historically, it has never been enforced on a state or federal level.&nbsp; This statute did not come up in any of the above indictments, even though some of the accused had arguably violated it.&nbsp; It remains to be seen whether regulators or state officials will take notice of this potential enforcement tool.</div> <div> &nbsp;</div> <div> Second, the government is using new tools to prosecute health care fraud.&nbsp; This is most apparent in the Forest Park Medical Center case, which introduced the use of the federal Travel Act.&nbsp; Travel Act prosecutions depend on the use of interstate commerce to commit some other criminal act.&nbsp; Thus, it depends on some other predicate offense, such as the Texas Patient Solicitation Act.&nbsp; In the Forest Park case, it appears to have been use to federalize the prosecution of a Texas commercial bribery case, of which it would be the first of its kind.&nbsp; Because the most significant parts of the conspiracy did not involve Medicare or Medicaid claims, the more frequently utilized Stark Law and Anti-Kickback Statute were presumably not available.</div> <div> &nbsp;</div> <div> <strong><u>Recommendations</u></strong></div> <div> &nbsp;</div> <div> Providers and others involved in the healthcare industry in Texas should review their operations and arrangements and take precautions as necessary in light of these recent prosecutions.&nbsp; In particular:</div> <div> &nbsp;</div> <ul> <li> <strong>Watch out for sham arrangements&ndash;</strong> In the Forest Park case, there were written agreements governing payments made to referral sources.&nbsp; The agreements purported to pay physicians for marketing services.&nbsp; However, the government&rsquo;s investigation determined that these arrangements were a sham, and that no legitimate marketing services were involved.&nbsp; Rather, the payments were a quid pro quo for referrals.&nbsp; When entering into any arrangement for services with any person, and in particular a referral source, make sure that the services described are bona fide, commercially reasonable, and actually performed.&nbsp; The parties should be able to document the quantity and result of any services performed.&nbsp; Be diligent about reviewing the outcomes and performance of any party with which your organization has a contract.&nbsp; If the purpose of an arrangement is not to pay for referrals, you likely have no legitimate need to track referrals.</li> <li> <strong>Do not assume you are safe in a &ldquo;no federal program business&rdquo; arrangement&ndash;</strong> For many years, health care industry participants have assumed that their arrangements were sound if they did not involve federal program reimbursement (particularly Medicare and Medicaid).&nbsp; While it is true that the Stark Law and Anti-Kickback Statute would not apply in such circumstances, these recent cases reveal that the DOJ is taking an increased interest in fraud that only affects commercial third-party health plans.&nbsp; Examine any existing arrangements that do not cover Medicare or Medicaid and determine if there is any fraudulent activity, or if the arrangement appears to be a sham or fraudulent.</li> <li> <strong>Focus on medical necessity and patient consent&ndash;</strong> No service, under any type of health plan, should be performed without being medically necessary.&nbsp; Medical necessity is a conclusion, but it is built on the back of evidence and observation.&nbsp; Be sure that your medical records adequately document the physician&rsquo;s support and reason for medical necessity, not just the conclusion.&nbsp; In addition, any time a patient is referred to another provider or if bills or invoices will appear in the name of any other provider, patients should be notified in writing and in advance of this fact, and a signed acknowledgment of the patient&rsquo;s receipt of that notice should be obtained and kept in the patient&rsquo;s medical record.</li> </ul> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL041619 We Care About Machines, But Will They Care About Us? https://www.seyfarth.com:443/publications/EL041619 Tue, 16 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: This morning we feature a blog from our colleagues at Seyfarth Shaw Australia, which provides updates and insights on workplace issues, employment law and health and safety, from Seyfarth Shaw Australia&rsquo;s team of local and international experts.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/we-care-about-machines-but-will-they-care-about-us/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM041519-LE Fictitious Business Name Suffices for Compliant Wage Statement https://www.seyfarth.com:443/publications/OMM041519-LE Mon, 15 Apr 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> The Court of Appeal, in Savea v. YRC Inc., held that an employer complies with Labor Code section 226(a)(8) when the employing entity lists its fictitious business name on a wage statement rather than the entity&rsquo;s legal name registered with the California Secretary of State. And the wage statement need not list the complete legal mailing address to comply with the statute&rsquo;s address requirement.</em></div> <div> &nbsp;</div> <div> <strong>The Trial Court Decision</strong></div> <div> &nbsp;</div> <div> Vaiula Savea sued his employer, YRC Inc., on a claim that YRC failed to provide the correct employer name and address on its wage statements, as required by Labor Code section 226(a)(8). YRC&rsquo;s wage statements listed only YRC&rsquo;s fictitious business name, &ldquo;YRC Freight,&rdquo; and did not provide a mail stop code or YRC&rsquo;s ZIP+4 Code.</div> <div> &nbsp;</div> <div> YRC demurred to the complaint on the grounds that listing the fictitious business name was proper, and that an employer&rsquo;s address need not contain a mail stop code or a ZIP+4 Code. YRC introduced evidence that its fictitious business name was registered with at least one county when the complaint was filed.</div> <div> &nbsp;</div> <div> The trial court sustained YRC&rsquo;s demurrer without leave to amend, holding that even if YRC &ldquo;did not strictly comply [with Section 226(a)(8)] &hellip;, it substantially complied by identifying its correct name, and a correct address where it could be reached.&rdquo;</div> <div> &nbsp;</div> <div> <strong>The Appellate Decision</strong></div> <div> &nbsp;</div> <div> The Court of Appeal granted review and affirmed the trial court&rsquo;s decision. The Court of Appeal held that because the name listed on the wage statement was YRC&rsquo;s actual, recorded fictitious business name in California at the time that Savea sued, YRC had complied with the Labor Code. The Court of Appeal agreed with the analysis of three federal district court cases, all holding that employers listing the fictitious business name, instead of the name registered with the Secretary of State, did not violate Section 226(a)(8).</div> <div> &nbsp;</div> <div> The Court of Appeal further concluded that YRC complied with the requirement of providing the employer address on the wage statements, noting that Savea cited no authority for the proposition that the mail stop code or ZIP+4 Code is somehow required.</div> <div> &nbsp;</div> <div> Because the Court of Appeal affirmed the trial court decision that YRC strictly complied with the requirements of the Labor Code, it did not reach the question whether Section 226 requires &ldquo;strict&rdquo; or &ldquo;substantial&rdquo; compliance.</div> <div> &nbsp;</div> <div> <strong>What <em>Savea</em> Means For Employers</strong></div> <div> &nbsp;</div> <div> The Court of Appeal&rsquo;s decision, representing one some might consider a relatively rare instance of judicial common sense prevailing over a hyper-technical Labor Code argument, is a small win for employers. While the Court of Appeal did not conclude whether &ldquo;substantial&rdquo; compliance with Section 226 will suffice, employers who operate under fictitious business names can now sleep a little better at night.</div> https://www.seyfarth.com:443/publications/LR041519 The “Perfectly Clear” Successor Doctrine Just Got A Bit Narrower https://www.seyfarth.com:443/publications/LR041519 Mon, 15 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The Board narrowed the circumstances of when a successor employer will be a &ldquo;perfectly clear&rdquo; successor. An employer will no longer be forced to bargain prior to setting the initial terms of employment if the employer engaged in discriminatory hiring practices as to some, but not all, of the predecessor&rsquo;s former employees.<br /> <br /> <a href="https://www.employerlaborrelations.com/2019/04/15/the-perfectly-clear-successor-doctrine-just-got-a-bit-narrower/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS041519 We care about machines, but will they care about us? https://www.seyfarth.com:443/publications/WLS041519 Mon, 15 Apr 2019 00:00:00 -0400 <p> Our clients care about &ldquo;machines&rdquo; (including &ldquo;robots&rdquo;, artificial intelligence, biometrics and the harnessing of big data) being developed as a result of innovation and technology because of the unprecedented efficiencies and improvements in safety they unlock.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2019/04/we-care-about-machines-but-will-they-care-about-us/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/tomaszewskicnbc041519 John Tomaszewski quoted in CNBC.com https://www.seyfarth.com:443/news/tomaszewskicnbc041519 Mon, 15 Apr 2019 00:00:00 -0400 <p> John Tomaszewski was quoted in an April 15 story from CNBC.com, &quot;Employee privacy in the US is at stake as corporate surveillance technology monitors workers&#39; every move.&quot; Tomaszewski said that companies do have an obligation to provide a safe, non-harassing workplace. You can read the <a href="https://www.cnbc.com/2019/04/15/employee-privacy-is-at-stake-as-surveillance-tech-monitors-workers.html">full article here</a>.</p> https://www.seyfarth.com:443/news/rodriguezwsj041219 Leon Rodriguez quoted in the Wall Street Journal https://www.seyfarth.com:443/news/rodriguezwsj041219 Fri, 12 Apr 2019 00:00:00 -0400 <p> Leon Rodriguez was quoted in an April 12 story from the Wall Street Journal, &quot;Lawsuits in U.S. Target a Former Sri Lankan Official.&quot; Rodriguez said that U.S. consular officers have some discretion in deciding whether to allow a citizenship renunciation &mdash;but that he was unaware of a civil lawsuit ever complicating such an attempt. You can read the <a href="https://www.wsj.com/articles/lawsuits-in-u-s-target-a-former-sri-lankan-official-11555081460">full article here</a>.</p> https://www.seyfarth.com:443/news/weisswgn041219 Philippe Weiss interviewed on WGN Radio https://www.seyfarth.com:443/news/weisswgn041219 Fri, 12 Apr 2019 00:00:00 -0400 <p> Philippe Weiss was interviewed April 12th on WGN Radio, &quot;Wintrust Business Lunch: Lines of Comfortability.&quot; Weiss discussed where to draw the line on uncomfortability. You can listen to the full interview at Min. 18:08 <a href="https://wgnradio.com/2019/04/12/witnrust-business-lunch-4-12-19-macys-is-shifting-the-retail-tides-business-competition-lines-of-comfortability/">here</a>.</p> https://www.seyfarth.com:443/news/olsonshrm041219 Camille Olson quoted in SHRM https://www.seyfarth.com:443/news/olsonshrm041219 Fri, 12 Apr 2019 00:00:00 -0400 <p> Camille Olson was quoted in an April 12 story from SHRM, &quot;Hearing Ordered in Pay Data Reporting Case.&quot; Olson said that it appears the court is looking to obtain more information. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/hearing-ordered-in-pay-data-reporting-case.aspx">full article here</a>.</p> https://www.seyfarth.com:443/publications/OMM041219-LE USCIS Reaches the H-1B Advanced Degree Cap for FY2020, Conducts Lottery https://www.seyfarth.com:443/publications/OMM041219-LE Fri, 12 Apr 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp; USCIS confirms FY 2020 H-1B petition selection is complete.</em></div> <div> &nbsp;</div> <div> On April 10, 2019, United States Citizenship &amp; Immigration Services (USCIS) received sufficient H-1B petitions to meet the 20,000 H-1B visa quota for U.S. advanced degree holders (or &ldquo;master&rsquo;s cap&rdquo;) for Fiscal Year 2020, which begins on October 1, 2019. USCIS confirmed receipt of 201,011 H-1B petitions during the filing period (up from 190,098 in FY 2019), resulting in a 42% chance of selection overall, with slightly higher mathematical odds for U.S. advanced degree holders. Previously, on April 5, 2019, USCIS <a href="https://www.seyfarth.com/publications/MA040819-LE">announced</a> that it had received sufficient H-1B petitions to meet the regular H-1B cap. This completes USCIS&rsquo; H-1B petition selection process for FY 2020.</div> <div> &nbsp;</div> <div> USCIS has already started issuing receipts for selected petitions. However, adjudications are not anticipated until mid-May 2019 for change of status petitions filed via premium processing, and likely later for those filed without premium processing&nbsp; Seyfarth Shaw will continue to monitor correspondence for all petitions filed by the Firm and will notify clients accordingly.</div> https://www.seyfarth.com:443/publications/CCD041219 Statutory Text or Discovery Rule? SCOTUS to weigh in on Rotkiske v. Klemm https://www.seyfarth.com:443/publications/CCD041219 Fri, 12 Apr 2019 00:00:00 -0400 <p> Recently, the Supreme Court of the United States granted certiorari in the matter of Rotkiske v. Klemm. At issue is whether the discovery rule tolls the statute of limitations under the Fair Debt Collections Practices Act (FDCPA). The controversy is centered on the FDCPA statutory text, &ldquo;the date on which the violation occurs,&rdquo; 15 U.S.C. &sect; 1692k(d), and whether such language governs in a dispute or the discovery rule tolls the statute of limitations. The discovery rule holds that the statute of limitations begins when the plaintiff knew or should have known of the facts giving rise to his legal claim. In granting certiorari, the Supreme Court weighs in on a split between the Third Circuit and the Fourth and Ninth Circuits.<br /> <br /> <a href="https://www.consumerclassdefense.com/2019/04/statutory-text-or-discovery-rule-scotus-to-weigh-in-on-rotkiske-v-klemm/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL041119 And The Train Kept A-Rolling: EEOC’s 2018 Enforcement And Litigation Statistics Show Charges Down But The Agency Still On The Move https://www.seyfarth.com:443/publications/EL041119 Thu, 11 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On April 10, 2019, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2018. The release arrived a few months later than usual &ndash; likely due to the recent government shutdown &ndash; but still packed a punch in several respects, including to the back-drop on retaliation and sex discrimination charges in the midst of the #MeToo movement, the number of merits lawsuits filed, and significant monetary recoveries, as well as a reduced charge inventory. It is a must-read for all employers.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/and-the-train-kept-a-rolling-eeocs-2018-enforcement-and-litigation-statistics-show-charges-down-but-the-agency-still-on-the-move/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA041119-LE If Pain, Yes Gain—Part 62: Westchester County, NY Officially Infected With Sick Leave; Law in Effect and FAQs and Notice of Rights Released https://www.seyfarth.com:443/publications/MA041119-LE Thu, 11 Apr 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>The Westchester County Earned Sick Leave Law went into effect as of yesterday, April 10, 2019. In the hours leading up to the effective date, the County Human Rights Commission launched an Earned Sick Leave Law webpage featuring employer and employee FAQs as well as a Notice of Employee Rights.</em></p> <p> <strong>Background</strong></p> <p> Last year, Westchester County became the second New York State locality -- and first county -- to pass a mandatory paid sick leave ordinance. After some uncertainty about when the County sick leave mandate, known as the Earned Sick Leave Law (&ldquo;ESLL&rdquo;), would begin, the ESLL officially went into effect yesterday, April 10, 2019. As noted in our <a href="https://www.seyfarth.com/publications/MA110718-LE">prior alert</a>, although a lengthy mandate, questions about certain ESLL requirements remained based on the text of the law.</p> <p> To some extent, Westchester County employers&rsquo; long wait is over -- less than a day before the ESLL&rsquo;s April 10, 2019 effective date, the Westchester County Human Rights Commission&rsquo;s (&ldquo;Commission&rdquo;) ESLL <a href="https://humanrights.westchestergov.com/resources/earned-sick-leave-law">webpage</a> went live. Notably, the webpage contains sets of FAQs, a &ldquo;<a href="https://humanrights.westchestergov.com/images/stories/pdfs/2019slemployeenotice.pdf">Notice of Employee Rights</a>,&rdquo; and a copy of the ESLL. Despite offering employers clarity on select paid sick leave symptoms, certain questions remain.</p> <p> Here are some of the highlights from the Commission&rsquo;s ESLL materials.</p> <p> <strong>FAQs &amp; Notice of Rights</strong></p> <ul> <li> <strong>Start of Accrual: </strong>As previously reported, eligible employees begin to accrue sick leave under the ESLL at the commencement of their employment or 90 days&nbsp;<strong><em>after</em></strong>&nbsp;the ESLL&rsquo;s effective date, whichever is later. The FAQs confirm that as of <strong>July 10, 2019</strong>, employers must allow eligible existing employees who work in Westchester County to begin accruing sick leave.</li> <li> <strong><u>Note:</u></strong> While this language seemingly provides covered employers with a 90-day vaccine before they need to begin providing employees with compliant sick leave benefits, the FAQs <em>also </em>confirm that employers must begin complying with the ESLL starting April 10, 2019. In practice, this means that covered employers are now bound by certain ESLL requirements, for example, posting (discussed below) and anti-retaliation provisions not directly related to providing sick leave benefits.</li> <li> <strong>Year-End Carryover: </strong>The ESLL establishes a 40-hour annual sick leave usage cap. However, the ESLL is unclear if employers can cap the amount of earned, unused sick leave an employee can carry over from one year to the next. The new ESLL FAQs resolve the carryover ambiguity and note that &ldquo;an employee can carry over a maximum of 40 hours of unused sick leave.&rdquo;</li> <li> <strong>Frontloading and PTO Policies:</strong> Although unclear, it is likely that employers can frontload eligible employees at least 40 hours of sick leave at the start of each year in order to satisfy the ESLL&rsquo;s accrual obligations. Like the actual ESLL, the FAQs state that &ldquo;an employer can provide <u>for sick time and personal time</u> equal to 40 hours or more at the beginning of the employer&rsquo;s year&rdquo; and that such a practice, assuming there otherwise are no limits on employees&rsquo; ability to take the leave, will be considered compliant. The FAQs also do not resolve whether a frontloaded grant of leave gets rid of employers&rsquo; year-end carryover obligations.</li> <li> <strong>Notice to Employer: </strong>While the ESLL provides that employees must in good faith &ldquo;attempt&rdquo; to provide advanced notice to the employer when the need to use sick leave is foreseeable, the FAQs note that employers can require advance notice of an employee&rsquo;s intention to use sick leave when the need is foreseeable. In addition and significantly, while the ESLL is silent as to what notice standards apply in the event of an unforeseeable absence, the FAQs state that if the employee&rsquo;s need for sick leave is unforeseeable, employers can require employees to give notice as soon as practicable. The FAQs also remind employers that if they require employees to provide notice of a sick leave absence, the employer&rsquo;s notice procedures must be communicated to employees in writing.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></li> <li> <strong>Notice and Posting:&nbsp;</strong>Employers&rsquo; notice and posting obligations under the ESLL include:&nbsp;<strong>(1)&nbsp;</strong>providing employees both a copy of the ESLL&nbsp;<strong><em>and</em></strong>&nbsp;written notice of how the ESLL applies to the employee; and<strong>&nbsp;(2)&nbsp;</strong>displaying both a copy of the ESLL and a poster in English, Spanish, and any other language deemed appropriate by the County in a conspicuous location accessible to employees.<a href="#_ftn2" name="_ftnref2" title="">[2]</a> The FAQs clarify that employers must provide the necessary notice to <strong>(a)</strong> existing employees by July 10, 2019 and <strong>(b) </strong>employees hired after July 10, on their first date of employment. It is unclear if the Commission&rsquo;s recently published &ldquo;Notice of Employee Rights&rdquo; is intended to serve as the written notice employers must provide to employees, the poster, or both. We will continue to monitor the webpage for developments regarding the appropriate written notice and poster, and update employers accordingly.</li> </ul> <p> <strong>Employer Takeaways</strong></p> <p> As the County prepares to enforce the ESLL, employers should begin and/or continue taking steps to comply with the requirements of the new law. Here are some steps to consider:</p> <ul> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the ESLL;</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the ESLL;</li> <li> Monitor the Commission&rsquo;s website for information on the ESLL, including updates on the model poster/notice; and</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> &nbsp;</p> <p> As the PSL landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this Ordinance and sick leave requirements generally. To stay up-to-date on PSL developments,&nbsp;<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>&nbsp;to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Employers should keep in mind that the ESLL allows a request for sick leave to be made orally, in writing, electronically, or by any other means acceptable to the employer.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> At this time, only the English version of the &ldquo;Notice of Employee Rights&rdquo; has been published.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/TBT041119 The Week in Weed: April 12, 2019 https://www.seyfarth.com:443/publications/TBT041119 Thu, 11 Apr 2019 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/2019/04/the-week-in-weed-april-12-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC041119 And The Train Kept A-Rolling: EEOC’s 2018 Enforcement And Litigation Statistics Show Charges Down But The Agency Still On The Move https://www.seyfarth.com:443/publications/WC041119 Thu, 11 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On April 10, 2019, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2018. The release arrived a few months later than usual &ndash; likely due to the recent government shutdown &ndash; but still packed a punch in several respects, including to the back-drop on retaliation and sex discrimination charges in the midst of the #MeToo movement, the number of merits lawsuits filed, and significant monetary recoveries, as well as a reduced charge inventory. It is a must-read for all employers.<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/04/and-the-train-kept-a-rolling-eeocs-2018-enforcement-and-litigation-statistics-show-charges-down-but-the-agency-still-on-the-move/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EEOC041119 And The Train Kept A-Rolling: EEOC’s 2018 Enforcement And Litigation Statistics Show Charges Down But The Agency Still On The Move https://www.seyfarth.com:443/publications/EEOC041119 Thu, 11 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On April 10, 2019, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2018. The release arrived a few months later than usual &ndash; likely due to the recent government shutdown &ndash; but still packed a punch in several respects, including to the back-drop on retaliation and sex discrimination charges in the midst of the #MeToo movement, the number of merits lawsuits filed, and significant monetary recoveries, as well as a reduced charge inventory. It is a must-read for all employers.<br /> <br /> <a href="https://www.eeoccountdown.com/2019/04/11/and-the-train-kept-a-rolling-eeocs-2018-enforcement-and-litigation-statistics-show-charges-down-but-the-agency-still-on-the-move/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM041119-LE Seyfarth Shaw Policy Matters Newsletter - April 11, 2019 https://www.seyfarth.com:443/publications/PM041119-LE Thu, 11 Apr 2019 00:00:00 -0400 <p> <strong>Is That the Nomination Train Starting Up?</strong> As we reported previously, the U.S. Senate recently changed its rules to limit debate on most nominees. The practical effect of the change is to speed up the confirmation process. This week, we have seen the first labor agency beneficiary of the new rules: Cheryl Stanton, whose nomination had been languishing for the last year-and-a-half, was confirmed on Wednesday by a <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=116&amp;session=1&amp;vote=00070">53-45</a> margin. We still await action for the heads of OSHA and the Employment &amp; Training Administration, as well as an EEOC Commissioner and General Counsel (although the latter is still pending before the Senate HELP Committee).</p> <p> <strong>Hearing Held on Equality Act.</strong> On Tuesday, April 9, the House Education and Labor Committee&rsquo;s Subcommittee on Workforce Protections held a <a href="https://edlabor.house.gov/hearings/the-equality-act-hr-5-ensuring-the-right-to-learn-and-work-free-from-discrimination">hearing on the Equality Act</a> (<a href="https://www.congress.gov/bill/116th-congress/house-bill/5?q=%7B%22search%22%3A%5B%22HR%205%22%5D%7D&amp;s=4&amp;r=1">H.R. 5</a>). Several witnesses testified at the hearing, including Seyfarth&rsquo;s Senior Counsel Larry Lorber. The Equality Act, with 240 cosponsors, would broadly modify existing civil rights laws to extend antidiscrimination protections to LGBTQ Americans in access to employment, education, credit, jury service, federal funding, housing, and public accommodations. Mr. Lorber <a href="https://edlabor.house.gov/imo/media/doc/LorberTestimony040919.pdf">focused</a> on the employment provisions of the bill, which would directly amend Title VII. His testimony noted how certain issues in the bill (e.g., disparate impact, the collection of statistics, the building of additional faculties, preferential treatment, and dress and grooming standards) had been more clearly and directly addressed under the Employment Nondiscrimination Act (ENDA), which has been introduced in several previous sessions of Congress. Although the Education &amp; Labor Committee took the first bite at the Equality Act apple, due to the many non-employment issues in the bill, the House Judiciary Committee has primary jurisdiction over the Act and will likely take the lead going forward (including future hearing and any mark-ups). House passage is expected, but the future of the bill--if not amended--in the Senate Judiciary Committee appears dim.</p> <p> <strong>One Bill to Rule Them All.</strong> Throughout this session of Congress, we have seen a wide variety of bills addressing issues such as minimum wage, sexual harassment, and arbitration. Multiple alternatives have been introduced, with different ways of approaching the issues. This week, Senator Murray (D-WA), the Ranking Member of the Senate HELP Committee, introduced one alternative that addresses multiple issues. Although the text of the bill is not yet available, according to Sen. Murray&rsquo;s <a href="https://www.murray.senate.gov/public/index.cfm/newsreleases?ContentRecord_id=6C5EC3C3-5270-4A49-ACAD-DC9907F6AC21">press release</a>, the Be HEARD Act (<a href="https://www.congress.gov/bill/116th-congress/senate-bill/1082?q=%7B%22search%22%3A%5B%22s.%201082%22%5D%7D&amp;s=3&amp;r=1">S. 1082</a>) would (1) end mandatory arbitration and pre-employment non-disclosure agreements; (2) extend civil rights protections for discrimination based on sexual orientation and gender identity, as well as for independent contractors and interns; (3) lengthen statutes of limitations and increase available damages; and (4) eliminate the tip credit under the FLSA.</p> <p> <strong>NYC Close to Banning the (Bong) Box.</strong> On Tuesday, the New York City Council overwhelmingly (41-4) passed a bill that would make it unlawful to require a job applicant to submit to a marijuana test as a condition of employment. The bill would exempt a number of positions from its scope, including law enforcement, construction, commercial drivers, and positions requiring supervision or care of vulnerable populations. For more information, hit Seyfarth&rsquo;s blog for all things marijuana, <a href="https://www.blunttruthlaw.com/2019/04/nyc-one-step-away-from-banning-pre-employment-marijuana-tests/#more-2706">The Blunt Truth</a>.<br /> <br /> <strong>WHD Joint Employment Proposal Published.</strong> As expected, the Wage &amp; Hour Division this week published its <a href="https://www.federalregister.gov/documents/2019/04/09/2019-06500/joint-employer-status-under-the-fair-labor-standards-act">proposed rule</a> on joint employment under the FLSA. With a June 10 deadline for submitting comments, joint employment joins the <a href="https://www.federalregister.gov/documents/2019/03/22/2019-04514/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and">proposed white collar salary threshold increase</a> (May 21 deadline) and the <a href="https://www.federalregister.gov/documents/2019/03/29/2019-05687/regular-rate-under-the-fair-labor-standards-act?this=RO">proposed revisions to the regular rate calculations</a> (May 28 deadline) on a busy Spring agenda for WHD. Join Seyfarth&rsquo;s Wage &amp; Hour Litigation Practice Group at a <a href="https://www.seyfarth.com/events/Webinar041719-LE">webinar</a> next Wednesday, April 17, at 1:00 pm ET for a discussion of all three proposals.</p> <p> To subscribe to the Policy Matters weekly newsletter, <a class="cms-content-links" href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy">click here</a>.</p> https://www.seyfarth.com:443/publications/RS041119-LE Regulatory Spring: Rulemaking by the Wage & Hour Division - April 11, 2019 https://www.seyfarth.com:443/publications/RS041119-LE Thu, 11 Apr 2019 00:00:00 -0400 <p> Welcome to Seyfarth Shaw&rsquo;s newest publication, <em>Regulatory Spring</em>! In the weeks to come, we will take you on a deep dive into the Wage &amp; Hour Division&rsquo;s proposed rules concerning overtime exemption, the overtime rate of pay, and joint employment. Given the proliferation of litigation in these areas, the proposed rules warrant the attention of virtually every employer.<br /> <br /> We will also use this platform to invite feedback as we prepare comments to provide to WHD. The last time WHD undertook formal rulemaking on the salary level required for the white collar overtime exemption, we were cited in the preamble to the final rule more than any other law firm. We are proud of our ability to advocate for employers, and we take seriously our opportunity to do so with respect to WHD&#39;s three latest proposals.<br /> <br /> For background, we intend to submit comments in response to each of the notices that set forth the new rules that WHD proposes. We have designated specific team leaders for each rule. The team leaders will be soliciting feedback from clients and other interested stakeholders in a multitude of ways, including by asking and seeking answers to questions in future issues of <em>Regulatory Spring</em>.<br /> <br /> In this inaugural (and likely longest) issue, we will set the table for our future discussion by providing a high-level overview of what each of the proposals contains. Off we go!<br /> <br /> <strong>What&rsquo;s in the Proposed Rules?</strong><br /> <br /> <strong><u>White Collar Exemption Salary Level</u></strong><br /> <strong><em>Comments Due: May 21, 2019</em></strong><br /> <br /> In this Notice of Proposed Rulemaking (NPRM)&mdash;often referred to as the &ldquo;overtime rule&rdquo;&mdash;WHD requests comment on the following proposals:</p> <ul> <li> An increase in the salary threshold for most white collar exemptions from the currently-enforced level of $455/week ($23,660/year) to $679/week ($35,308/year).</li> <li> An increase in the annual compensation threshold for the highly compensated employee exemption from the currently-enforced level of $100,000 to $147,414.</li> <li> A provision in the regulations that would allow employers to pay no less than 90% of the weekly threshold amount as salary, with the remaining 10% paid as nondiscretionary bonuses, incentives, or commissions. If an employee did not earn sufficient incentive compensation to meet the 10% in a designated 52-week period, employers would be responsible for making up any shortfall.</li> <li> A commitment to revisit the salary threshold every four years through notice-and-comment rulemaking.</li> </ul> <p> <strong><u>Regular Rate of Pay</u></strong><br /> <em><strong>Comments Due: May 28, 2019</strong></em><br /> <br /> This NPRM addresses the proper calculation of the regular rate of pay (used for calculating overtime pay). Specifically, WHD requests comment on the proposals clarifying that the following payments should not be included in the regular rate:</p> <ul> <li> The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services.</li> <li> Payments for unused paid leave, including paid sick leave.</li> <li> Reimbursed expenses not incurred &ldquo;solely&rdquo; for the employer&rsquo;s benefit.</li> <li> Reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and meeting other regulatory requirements.</li> <li> Pay for time that would not otherwise qualify as &ldquo;hours worked,&rdquo; including bona fide meal periods, unless an agreement or established practice indicates that the parties have treated the time as hours worked.</li> <li> Overtime premiums described in sections 7(e)(5) and (6) of the FLSA (e.g., premium pay for hours in excess of 8 in a day or Sunday work), even without a prior formal contract or agreement with the employee(s).</li> </ul> <p> WHD also proposes to:</p> <ul> <li> Provide examples of discretionary bonuses that may be excluded and to clarify that the label given a bonus does not determine whether it is discretionary.</li> <li> Provide additional examples of benefit plans, including accident, unemployment, and legal services, that may be excluded.</li> <li> Clarify that tuition programs, such as reimbursement programs or repayment of educational debt, could be excluded under several different provisions of the FLSA.</li> <li> Eliminate the restriction that &ldquo;call-back&rdquo; pay and other payments similar to call-back pay must be &ldquo;infrequent and sporadic&rdquo; to be excludable from an employee&rsquo;s regular rate, while maintaining that such payments must not be so regular that they are essentially prearranged.</li> <li> Update its &ldquo;basic rate&rdquo; regulations to raise the limit from a $0.50 per week increase in overtime pay due to additional payments to a $2.90 per week increase.</li> </ul> <p> <strong><u>Joint Employment</u></strong><br /> <strong><em>Comments Due: June 10, 2019</em></strong><br /> <br /> The final NPRM, officially issued just this week, addresses joint employment under the FLSA. In its proposal, WHD seeks to establish a clearer standard for determining whether an entity is a joint employer under the FLSA. WHD requests comment on its proposals to:</p> <ul> <li> Implement a four factor balancing test assessing whether a putative joint employer: (1) hires or fires the employee; (2) supervises and controls the employee&rsquo;s work schedules or conditions of employment; (3) determines the employee&rsquo;s rate and method of payment; and (4) maintains the employee&rsquo;s employment records.</li> <li> Explain that additional factors may be used to determine joint employer status, but only if they are indicative of whether the putative joint employer is (a) exercising significant control over the terms and conditions of the employee&rsquo;s work; or (b) otherwise acting directly or indirectly in the interest of the employer in relation to the employee.</li> <li> Explain that an employee&rsquo;s &ldquo;economic dependence&rdquo; on the potential joint employer does not determine the potential joint employer&rsquo;s liability under the FLSA.</li> <li> Establish that ability, power, or reserved contractual right to act in relation to the employee is not relevant for determining joint employer status.</li> <li> Clarify that indirect action in relation to an employee may establish joint employer status.</li> <li> Clarify that one&rsquo;s business model&mdash;for example, operating as a franchisor&mdash;does not make joint employer status more or less likely.</li> <li> Identify several business practices (e.g., providing a sample employee handbook to a franchisee) and business agreements (e.g., requiring sexual harassment policies) that do not make joint employer status more or less likely.</li> <li> Eliminate the &ldquo;not completely disassociated&rdquo; standard for joint employment in situations where an employee works one set of hours for an employer that simultaneously benefit another person or entity.</li> </ul> <p> WHD also provides a few examples applying the rule in hypothetical scenarios.<br /> <br /> <strong>What&rsquo;s Next?</strong><br /> <br /> On each of the next several Thursdays, we will dive into these issues in more detail and actively seek your input on specific topics. In the meantime, if there are particular issues you would like us to focus on, or if you would like to share comments on or participate in one of our working groups for the proposed rules, please send us an e-mail at <a href="mailto:regulatoryspring@seyfarth.com">regulatoryspring@seyfarth.com</a></p> https://www.seyfarth.com:443/news/ietlondon041119 International Employment Team Joins Seyfarth in London https://www.seyfarth.com:443/news/ietlondon041119 Thu, 11 Apr 2019 00:00:00 -0400 <p> Seyfarth Shaw LLP announced today that Martin Hopkins and Ana Cid Velasco will join the firm&rsquo;s London office as part of its International Employment Law practice. Hopkins will join as Director of European Practice Development and Cid Velasco as a partner. Hopkins and Cid Velasco join from Eversheds Sutherland.</p> <p> Hopkins has a long history in international employment law having developed and led the international employment team at Eversheds. For more than 30 years, Hopkins has advised on high-profile international employment matters, including major cross-border strategic and transactional projects for many large multinational clients.</p> <p> Cid Velasco is a Spanish-qualified, international employment lawyer who assists multinational clients with their cross-border employment needs from day-to-day counselling to complex multi-jurisdictional projects&mdash;in particular across Europe and Latin America.</p> <p> &ldquo;I have worked with Martin for many years, and his demonstrated track record of success in completing projects across Europe is a perfect fit as part of our global employment practice,&rdquo; said Darren Gardner, chair of Seyfarth&rsquo;s International department.</p> <p> Gardner also said, &ldquo;Ana is an outstanding international employment lawyer who we have had the pleasure of working closely with and we know very well. Her experience across Europe and Latin America is invaluable and really complements our international employment law team.&rdquo;</p> <p> Seyfarth has one of the largest international employment law practices in the market and has managed strategic human resources law projects in up to 120 jurisdictions at a time.</p> <p> &ldquo;Martin and Ana will add fantastic capabilities and experience to our already strong European-based international employment law team. They are superb lawyers, wonderful people and have world class experience,&rdquo; said Pete Talibart, managing partner of Seyfarth&rsquo;s London office.</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/talibartiba041119 Peter Talibart quoted in the International Bar Association https://www.seyfarth.com:443/news/talibartiba041119 Thu, 11 Apr 2019 00:00:00 -0400 <p> Peter Talibart was quoted in an April 11 story from the International Bar Association, &quot;Employment rights: Time&rsquo;s up for mandatory arbitration.&quot; Talibart said that there&rsquo;s a focus now on any legal mechanism that&rsquo;s designed to reduce the ability of an employee to assert legal rights. You can read the <a href="https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=5D0F1755-72F2-4DFD-99A9-F8726A8C5299">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS041019 Law Firm’s ADA Database is Not a Trade Secret According to Pennsylvania Court https://www.seyfarth.com:443/publications/TS041019 Wed, 10 Apr 2019 00:00:00 -0400 <p> The Alleghany Court of Common Pleas in Pittsburgh, Pennsylvania, recently denied a law firm&rsquo;s request to enjoin its former partner from retaining a database that contained various information used to file legal actions under the American with Disabilities Act. According to the law firm, the database was a &ldquo;trade secret&rdquo; of the firm, and consequently, the former partner violated the Pennsylvania Trade Secrets Act when he retained a copy of the database after being voted out of the firm in January. The court, however, disagreed with the law firm. In doing so, the court noted that the former partner had an ownership interest in the database when he was part of the firm, and as a result, the former partner could retain a copy of the database when he left. The court then went on to note that, since the data base now resided at two different law firms, the database could not be considered a trade secret under the Pennsylvania Trade Secrets Act. This case, which is titled Carlson Lynch Sweet Kailpela &amp; Carpenter, LLP v. Sweet, GD-19-2790, is a reminder to all law firms, as well as companies in general, to be cognizant of what owners can and cannot take when they are dismissed from their firm. We will continue to monitor the case and will provide additional updates on this website.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/trade-secrets/law-firms-ada-database-is-not-a-trade-secret-according-to-pennsylvania-court/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT041019 NYC One Step Away From Banning Pre-Employment Marijuana Tests https://www.seyfarth.com:443/publications/TBT041019 Wed, 10 Apr 2019 00:00:00 -0400 <p> While it has been a challenge for employers to keep up with the explosion of medical and recreational marijuana laws spreading across the nation, employers have taken some comfort in that most of these states still grant employers the right to maintain a drug-free workplace and take action against those who test positive for marijuana. Yet, the tide seems to be shifting, with more courts granting pot smokers certain rights and finding that employers are required to comply with federal and state disability laws when confronted with medical marijuana users. Now it seems states and localities are stepping in and granting certain employment protections to recreational marijuana users. As we previously reported here, effective February 1, 2018, Maine became the first state in the country to protect employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana. In fact, because Maine only allows employers to prohibit the use and possession of marijuana &ldquo;in the workplace&rdquo; and to &ldquo;discipline employees who are under the influence of marijuana in the workplace,&rdquo; non-regulated employers may no longer test job applicants for marijuana and cannot take action against an incumbent employee based solely on a positive test result for marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/04/nyc-one-step-away-from-banning-pre-employment-marijuana-tests/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA041019-LE Maine Passes Salary History Ban and Wage Transparency Law on Equal Pay Day, Expected to Be Signed By Governor https://www.seyfarth.com:443/publications/MA041019-LE Wed, 10 Apr 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>On April 2, 2019, the Maine legislature passed a salary history ban ordinance.&nbsp; The law also has enhanced wage transparency provisions.</em></div> <div> &nbsp;</div> <div> The Maine legislature marked Equal Pay Day 2019 with an amendment to the Maine Human Rights Act and Equal Pay Law, <a href="https://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280071033">LD 278</a> which adds a salary history ban and broadens a wage transparency provision in current law.&nbsp; The Maine Legislature passed a similar amendment in 2017, but former Governor Paul LePage vetoed the bill and the Legislature failed to override the veto.&nbsp; The current Governor, Janet Mills, has stated that she will sign the bill.&nbsp; Once signed, Maine will become the sixteen jurisdiction -- and the eight state -- to enact a salary history ban.<sup>1</sup>&nbsp; &nbsp;</div> <h3> New Compensation History Ban</h3> <div> The new Maine law would prohibit employers from asking about a prospective employee&rsquo;s compensation history until after a job offer (including compensation) has been negotiated and made to the prospective employee.&nbsp; The bill creates an exemption for inquiries pursuant to any federal or state law that &ldquo;specifically requires the disclosure or verification of compensation history for employment purposes.&rdquo;&nbsp; Compensation history is not defined but likely includes all components of compensation, not just salary.</div> <div> &nbsp;</div> <div> The bill also provides that an employer&rsquo;s inquiry, either directly or indirectly, about the compensation history of a prospective employee prior to a job offer (including compensation) is evidence of unlawful discrimination.</div> <div> &nbsp;</div> <div> Employers may seek to confirm an employee&rsquo;s or prospective employee&rsquo;s compensation history prior to an offer if that compensation history was voluntarily disclosed &ldquo;without prompting by the employer or employment agency.&rdquo;</div> <h3> Broader Pay Transparency Provision</h3> <div> The law will also broaden the state&rsquo;s existing pay transparency law by prohibiting employers from stopping employees from discussing or disclosing their own <em>or another employee&rsquo;s</em> wages.&nbsp; The bill makes such policies a violation of the Maine Human Rights Act.&nbsp;</div> <h3> Risk To Employers</h3> <div> The potential fine per violation is $100 to $500.&nbsp; However, the real risk of exposure under the bill is that the mere act of asking about an prospective employee&rsquo;s compensation history can be cited as evidence of &ldquo;unlawful employment discrimination&rdquo; in complaints filed with the Maine Human Rights Commission.</div> <h3> What Should Employers Do?</h3> <div> If signed, the amendments will take effect on September 17, 2019, which is 90 days after the adjournment of the current session.&nbsp; Employers should review their job applications and other policies and procedures, make any necessary changes, and consider training hiring managers and human resources employees about the amendments.</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> <hr /> <p> 1. Currently seven states (California, Connecticut, Delaware, Hawaii, Massachusetts, Oregon, and Vermont), six other cities or counties (San Francisco, CA, New York City, NY, Albany County, NY, Suffolk County, NY, eff. 6/30/2019, Westchester County, NY and Philadelphia, PA) and one Territory (Puerto Rico) have passed salary history bans.&nbsp; Maine would become the eighth state.</p> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL041019 Four-Year Court Battle Between Deaf Advocates and Harvard Over Closed Captioning of Videos Proceeds to Discovery With Some Limitations https://www.seyfarth.com:443/publications/EL041019 Wed, 10 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Four years and two motions to dismiss based on the pleadings later, the National Association of the Deaf&rsquo;s (NAD) online video captioning lawsuit against Harvard University is moving forward to fact discovery. On March 28, Federal Magistrate Judge Robertson in the District of Massachusetts denied the university&rsquo;s motion for judgment on the pleadings with some notable discussion about whether websites are places of public accommodation under the ADA and limitations of liability for third party content.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/four-year-court-battle-between-deaf-advocates-and-harvard-over-closed-captioning-of-videos-proceeds-to-discovery-with-some-limitations/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CDL041019 The Broad Scope of 28 U.S.C. Section 1782 https://www.seyfarth.com:443/publications/CDL041019 Wed, 10 Apr 2019 00:00:00 -0400 <p> Picture your client telling you they were considering starting a litigation, but that they did not yet have all the facts needed for you to prepare a pleading. Now add the wrinkle that the action would need to be forumed in a foreign country, one with discovery rules narrower than those in the United States, and then the kicker, that some of the relevant documents are held by third parties outside of the planned litigation forum. Although your initial reaction might be that your client is out of luck, 28 U.S.C. &sect; 1782, which allows foreign litigants (or soon-to-be litigants) to obtain discovery in the United States, under U.S. discovery rules, for use in a pending or contemplated foreign proceeding, might offer some help.<br /> <br /> <a href="https://www.carpedatumlaw.com/2019/04/the-broad-scope-of-28-u-s-c-section-1782/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/RS040919-LE Introducing Seyfarth's Wage & Hour Newsletter, "Regulatory Spring" https://www.seyfarth.com:443/publications/RS040919-LE Tue, 09 Apr 2019 00:00:00 -0400 <div> Over the past several weeks, the U.S. Department of Labor&rsquo;s Wage &amp; Hour Division (WHD) has announced three separate rulemakings addressing a variety of issues under the Fair Labor Standards Act.&nbsp; As a result, in the next two months, employers will have an unprecedented opportunity to provide input to WHD on key issues such as the salary threshold for the white-collar exemptions, the standard in determining who is (or is not) a joint employer (with attention on the franchise relationship), and the types of compensation that should be excluded from the overtime rate of pay.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> As it has in past regulatory proceedings, Seyfarth Shaw&rsquo;s Wage &amp; Hour Litigation Practice Group (WHLPG) intends to actively participate in the comment process, ensuring that the employer viewpoint is properly represented when WHD considers its final regulations.&nbsp; The quality of the comments WHD receives has the potential to make a significant impact on employer&rsquo;s compliance obligations under the FLSA.&nbsp; And the quality of the comments we submit will increase with input from our clients.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> To facilitate your feedback on the regulatory proposals&mdash;as well as to highlight the key provisions in each of the proposals&mdash;the WHLPG is launching a new series, &ldquo;Regulatory Spring.&rdquo;&nbsp; Each Thursday between now and the close of the comment period for the final rulemaking, we will send an audio update, video, or article highlighting a select provision and offering you the opportunity to provide feedback that we may use (on an anonymous basis) in written comments to WHD.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> We&rsquo;ll also hold a brief webinar on April 17, providing a high-level overview of WHD&rsquo;s three proposals and further explaining the comment process.&nbsp; You will receive an invitation to that webinar soon.</div> <div> &nbsp;</div> <div> To subscribe to our multimedia Thursday newsletter, please click below.</div> <h3> <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=BD5bUdJg5hL7G5-RAq3kkcDhUx3uqXYzbVxmqdsbd2XfdEPH5oufdnM21s3N_Ab-&amp;RS_REFERRSID=BD5bUdJg5hL7G5-RAq3kkcDhUx3uqXYzbVxmqdsbd2UcjalKcfQl6tkvJR-BV_NSJRgPJL_lYmAotXUI95HBNg&amp;RS_ORIGRSID=BD5bUdJg5hL7G5-RAq3kkcDhUx3uqXYzbVxmqdsbd2UcjalKcfQl6tkvJR-BV_NSJRgPJL_lYmAotXUI95HBNg">SUBSCRIBE</a></h3> https://www.seyfarth.com:443/publications/goldmanrefj040919 Arren Goldman authored an article in Real Estate Finance Journal https://www.seyfarth.com:443/publications/goldmanrefj040919 Tue, 09 Apr 2019 00:00:00 -0400 <p> Arren Goldman authored an April 9 article in Real Estate Finance Journal, &quot;Commercial Mortgage Loan Modifications: Looking Beyond the Basic Terms.&quot; The article addresses some issues which may be considered by a lender and sponsor when modifying a commercial mortgage loan. You can read the <a href="https://www.seyfarth.com/dir_docs/publications/Goldman-TR-RE-FinanceJournal-Spring2019.pdf">full article here</a>.</p> https://www.seyfarth.com:443/publications/shermanclw040919 Andrew Sherman authored an article in Corporate LiveWire https://www.seyfarth.com:443/publications/shermanclw040919 Tue, 09 Apr 2019 00:00:00 -0400 <p> Andrew Sherman authored an April 9 article in Corporate LiveWire, &quot;The Evolving Role of Outside Corporate Counsel in M&amp;A.&quot; You can read the <a href="https://www.seyfarth.com/dir_docs/publications/CorporateLiveWire-M-A-2019-Sherman.pdf">full article here</a>.</p> https://www.seyfarth.com:443/publications/IMM040919 FY 2020 Cap Reached https://www.seyfarth.com:443/publications/IMM040919 Tue, 09 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: USCIS Announces the FY 2020 H-1B Cap Reached.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2019/04/fy-2020-cap-reached/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM040919a One Year “Wind-Down” Auto Extension Granted for Liberian Nationals with DED Status https://www.seyfarth.com:443/publications/IMM040919a Tue, 09 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The Deferred Enforced Departure (DED) work authorization for eligible Liberian nationals has been extended automatically until March 30, 2020. While the previous wind-down period for DED was set for March 31, 2019, President Trump, on March 28, 2019, issued a presidential memorandum directing Secretary Nielson to provide continued work authorization for an additional 12-months.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2019/04/one-year-wind-down-auto-extension-granted-for-liberian-nationals-with-ded-status/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/cartytds040819 Rob Carty authored an article in Towards Data Science https://www.seyfarth.com:443/publications/cartytds040819 Mon, 08 Apr 2019 00:00:00 -0400 <p> Rob Carty authored an April 8 article in Towards Data Science, &quot;The Thing Speaks for Itself: Why computer-written legal briefs are closer than you think.&quot; You can read the <a href="https://towardsdatascience.com/the-thing-speaks-for-itself-e075f026773?gi=2a70a5d93a44">full article here</a>.</p> https://www.seyfarth.com:443/publications/MA040819-LE FY 2020 Cap Reached https://www.seyfarth.com:443/publications/MA040819-LE Mon, 08 Apr 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>USCIS Announces the FY 2020 H-1B Cap Reached.</em></div> <div> &nbsp;</div> <div> On April 5, 2019, United States Citizenship &amp; Immigration Services (USCIS) announced that it received sufficient H-1B petitions to meet the regular H-1B quota (or &quot;cap&quot;) for Fiscal Year 2020, which begins on October 1, 2019. This means that USCIS received more than 65,000 H-1B petitions in the first week of filing (April 1 &ndash; April 5).&nbsp; USCIS will next determine if it received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the Master&rsquo;s cap.</div> <div> &nbsp;</div> https://www.seyfarth.com:443/news/vunewsday040719 Minh Vu quoted in Newsday https://www.seyfarth.com:443/news/vunewsday040719 Sun, 07 Apr 2019 00:00:00 -0400 <p> Minh Vu was quoted in an April 7 story from Newsday, &quot;Trial by fire led web design CEO into lucrative niche,&quot; on how web accessibility lawsuits nearly tripled in number from 2017 to 2018, from 814 to 2,258, according to Seyfarth. Vu said that there were a number of pro-plaintiff court rulings in accessibility cases in 2018 and 2019, which have further fueled the lawsuit craze. You can read the <a href="https://www.newsday.com/business/web-design-ceo-lucrative-niche-1.29416444?fbclid=IwAR2Q2lgzQaN-GgRSMmrMPjv-4T3amk9VgBoFx9i5RErGkimHzMXH_gzNZxc">full article here</a>.</p> https://www.seyfarth.com:443/news/babsonlaw360040519 Marshall Babson quoted in Law360 https://www.seyfarth.com:443/news/babsonlaw360040519 Fri, 05 Apr 2019 00:00:00 -0400 <p> Marshall Babson was quoted in an April 5 story from Law360, &quot;4 Tips For Avoiding And Surviving Strikes.&quot; Babson said that strikes tied to roadbocks at the bargaining table likewise tend to stem from miscommunication.</p> https://www.seyfarth.com:443/publications/MA040519-LE EEOC Proposes EEO-1 Pay Collection Timeline to Court: If Approved, Employers to Submit Pay Data by September 30, 2019 https://www.seyfarth.com:443/publications/MA040519-LE Fri, 05 Apr 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> Pursuant to ongoing litigation, the EEOC was required to submit a proposed timeline for the collection of pay and hours data in connection with the Revised EEO-1. On April 3, the EEOC submitted its proposed timeline that, while raising numerous concerns, confirmed to the District Court that it could implement and collect pay and hours information by September 30, 2019. The Plaintiffs in the case will respond to the EEOC&rsquo;s proposed timeline and the amicus filings by April 8, with a ruling from the District Court expected to follow shortly thereafter. Amicus filings from the employer community provided information supportive of allowing employers at least 18 months of lead time before submitting pay and hours data under the Revised EEO-1.</em></div> <h3> What Is The EEOC&rsquo;s Proposed Timeline For Collecting Pay Data?</h3> <div> As we previously <a href="https://www.seyfarth.com/publications/MA031919-LE2">reported</a>, after lifting the 2017 stay on the collection of pay and hours data, the U.S. District Court for the District of Columbia set a schedule to allow the EEOC and the Plaintiffs to submit proposed timelines for complying with the Court&rsquo;s ruling.</div> <div> &nbsp;</div> <div> The EEOC&rsquo;s proposed timeline outlined the difficulties the agency has experienced with the regular EEO-1 reporting requirement noting that in the past the agency had not &ldquo;sufficiently tested its data collection system in a rush to open data collection on time.&rdquo; The EEOC further stated that in order to make the &ldquo;necessary updates, enhancements, security testing, load and performance testing, data validations and verifications, and application testing to securely collect and store&rdquo; the &ldquo;highly sensitive Component 2 data&rdquo; it would need nine months to conduct the work internally.</div> <div> &nbsp;</div> <div> The agency provided that, if required, it could complete the data collection by September 30, 2019 by engaging with a third-party at a cost of $3 million dollars. However, it warned that data collected within the &ldquo;expedited timeline&rdquo; may not have &ldquo;sufficient integrity to support data comparisons or other analyses because of the limited quality control and quality assurance measures.&rdquo; Under the proposed timeline, it appears the EEOC is suggesting that the data collection period for employers could begin as early as July 15 and could close as early as September 30, 2019.</div> <div> &nbsp;</div> <div> Seyfarth filed a <a href="https://www.seyfarth.com/dir_docs/publications/Brief.pdf">Motion</a>&nbsp;to provide the Court with critical information regarding the obstacles and burdens applicable to employers who would bear the ultimate weight of the Court&rsquo;s Opinion. The Motion was filed on behalf twelve business, human resource, and industry associations, including: the Chamber of Commerce of the United States, HR Policy Association, Associated Builders and Contractors, Associated General Contractors of America, Center for Workplace Compliance, Institute for Workplace Equality, National Association of Manufacturers, National Federation of Independent Business, National Retail Federation, Restaurant Law Center, Retail Litigation Center, Inc. and the Society for Human Resource Management.</div> <div> &nbsp;</div> <div> Amici expressed their significant concerns over any retroactive data collection requirements given the substantial difficulties in making the system related changes that would be required under the <a href="https://www.seyfarth.com/dir_docs/publications/Proposed_EEO-1_Form.pdf">Revised EEO-1</a>. Amici urged the Court to consider at least an 18 month timeframe for implementation of the pay data collection requirements and further urged the Court to suspend Component 2 reporting until the EEOC is able to adequately preserve the confidentiality of the information being submitted.</div> <h3> What Does This Mean for Employers?</h3> <div> Plaintiffs will respond to the EEOC&rsquo;s proposed timeline for the collection of pay and hours data by April 8. We expect the District Court to rule on the final timeline shortly thereafter.</div> <div> &nbsp;</div> <div> In terms of next steps, employers should begin making preparations as to how they would collect, aggregate and report on pay data. While the timing of such reporting obligations are not yet clear, it is important to begin the discussions regarding how the information would be captured and reported. Whether your organization prepares reports internally or sends data to a vendor for processing, this is the time to begin connecting with the necessary resources to understand how best to extract the demographic, hours worked, and payroll information that would be necessary to submit a Revised EEO-1 Report.</div> <div> &nbsp;</div> <div> Also, keep in mind that the May 31 deadline for submitting Component 1 demographic information to the EEOC remains in effect at this time.</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/WSE040519 OSHA Failed to Follow Own Procedures in Issuing Suspect Guidance Documents, Inspector General Finds https://www.seyfarth.com:443/publications/WSE040519 Fri, 05 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The DOL Inspector General recently issued an audit report that &ldquo;OSHA Procedures for Issuing Guidance Were Not Adequate and Mostly Not Followed,&rdquo; Report No. 02-19-001-10-105 (March 28, 2019).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/osha-failed-to-follow-own-procedures-in-issuing-suspect-guidance-documents-inspector-general-finds/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA040519 Four-Year Court Battle Between Deaf Advocates and Harvard Over Closed Captioning of Videos Proceeds to Discovery With Some Limitations https://www.seyfarth.com:443/publications/ADA040519 Fri, 05 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Four years and two motions to dismiss based on the pleadings later, the National Association of the Deaf&rsquo;s (NAD) online video captioning lawsuit against Harvard is moving forward to fact discovery. On March 28, Federal Magistrate Judge Robertson in the District of Massachusetts denied the university&rsquo;s motion for judgment on the pleadings with some notable discussion about whether websites are places of public accommodation under the ADA and limitations of liability for third party content.<br /> <br /> <a href="https://www.adatitleiii.com/2019/04/four-year-court-battle-between-deaf-advocates-and-harvard-over-closed-captioning-of-videos-proceeds-to-discovery-with-some-limitations/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise040419 The Risk of Using Fingerprints: Illinois Supreme Court Issues Landmark Ruling Interpreting the Illinois Biometric Information Privacy Act https://www.seyfarth.com:443/publications/FutureEnterprise040419 Thu, 04 Apr 2019 00:00:00 -0400 <p> For businesses in Illinois (and potentially in states with similar statues), the ruling in Rosenbach v. Six Flags Entertainment Corp., No. 123186, 2019 Ill. Lexis 7 (Ill. Jan. 25, 2019) serves as a loud warning shot that they must immediately take steps to strictly comply with BIPA&rsquo;s requirements, or risk facing costly class action litigation. There have been approximately 200 class action cases filed to date, and filings have increased exponentially since the Illinois Supreme Court&rsquo;s ruling. Since the decision in Rosenbach, approximately 75 additional class action cases have been filed at a rate of approximately 5 additional cases per day.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2019/4/4/the-risk-of-using-fingerprints-illinois-supreme-court-issues-landmark-ruling-interpreting-the-illinois-biometric-information-privacy-act">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL040419 Safeguards, in the Fourth Industrial Revolution https://www.seyfarth.com:443/publications/EL040419 Thu, 04 Apr 2019 00:00:00 -0400 <p> It is widely proclaimed that we are in the midst of the &ldquo;Fourth Industrial Revolution&rdquo; (4IR). The leaps and bounds that are being made daily in information technology and biotechnology signal the end of homo sapiens or provide liberating freedom for the working masses, depending on which commentator&rsquo;s view you believe.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/safeguards-in-the-fourth-industrial-revolution/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT040419 The Week in Weed: April 5, 2019 https://www.seyfarth.com:443/publications/TBT040419 Thu, 04 Apr 2019 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/2019/04/the-week-in-weed-april-5-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM040419-LE Seyfarth Shaw Policy Matters Newsletter - April 4, 2019 https://www.seyfarth.com:443/publications/PM040419-LE Thu, 04 Apr 2019 00:00:00 -0400 <div> <strong>WHD Jumps Into the Joint Employer Arena.&nbsp;</strong> Earlier this week, the Department of Labor&rsquo;s Wage &amp; Hour Division announced a <a href="https://www.dol.gov/whd/flsa/jointemployment2019/joint-employment_NPRM.pdf">proposed rulemaking</a> on the issue of joint employment under the FLSA.&nbsp; If adopted as proposed, the rule would establish a four-factor balancing test and would set out a number of examples applying the new test&rsquo;s factors.&nbsp; Comments--which are sure to be many--will be due 60 days after the proposal is published in the Federal Register.&nbsp; As of now, the proposal has not yet been published.&nbsp; For more on the joint employer rulemaking, see Seyfarth&rsquo;s Wage &amp; Hour Litigation <a href="https://www.wagehourlitigation.com/joint-employment/april-rules/">blog</a>.&nbsp; And stay tuned for more updates on WHD&rsquo;s three regulatory projects--joint employer, regular rate, and salary threshold for white-collar exemptions.&nbsp;</div> <div> &nbsp;</div> <div> <strong>EEO-1 Form.&nbsp;</strong> Yesterday, the business community filed an amicus brief prepared by Seyfarth with the U.S. District Court for the District of Columbia describing in detail the impossibility of employers coming into quick compliance with the new EEO-1 form, also known as &ldquo;Component Two,&rdquo; and requesting at least an 18 month delay.&nbsp; The arguments were essentially that EEOC was not prepared for the filing of Component Two, the business community had relied in good faith on representations by the EEOC that the operative document was the prior EEO-1 form, and that very real practical and operational obstacles made compliance with the new form in the near future virtually impossible.&nbsp; The court had not yet heard from the business community as to the difficulties in compiling the information necessary to meet this new, exponentially increased, data reporting requirement, and hence this amicus brief was particularly important.&nbsp; While the EEOC has now indicated that it could be ready to implement the new form by September 30, 2019, its submission was characterized by many caveats, and we argued that the agency itself admitted it could meet that deadline only through retaining an outside contractor in excess of 3 million dollars, could not guarantee the confidentiality of&nbsp; the data, and other qualifiers.&nbsp; Seyfarth has long been involved in this ongoing battle and has played a critical role in supporting the business community&#39;s opposition to the new EEO-1 form and, now, in educating the court as to the immense technological and economic burdens employers would face should the court impose an unrealistic compliance deadline.</div> <div> &nbsp;</div> <div> <strong>Senate Votes to Limit Debate on Most Nominees.&nbsp;</strong> Parliamentary procedure and the rules of the U.S. Senate are not typically newsworthy events.&nbsp; In the past day, however, Majority Leader McConnell&rsquo;s decision to invoke the &ldquo;nuclear option&rdquo; has garnered a significant amount of attention.&nbsp; Through some parliamentary maneuvering, the Senate rules have been changed--most nominees will now be subject to a maximum of two hours of debate, rather than the previous 30-hour standard.&nbsp; It is expected that the reduction in debate time will allow the Senate to consider nominees in a more expeditious manner, and finally may result in votes for the current nominees to head OSHA, WHD, the Employment &amp; Training Administration, and the EEOC.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Senate Judiciary Considers Arbitration in America.</strong>&nbsp; This week, the Senate Judiciary Committee held a <a href="https://www.judiciary.senate.gov/meetings/arbitration-in-america">hearing</a> on &ldquo;Arbitration in America.&rdquo;&nbsp; More than 20 bills addressing arbitration in some form or fashion have been introduced in the current session of Congress, most of which lack, as of now,&nbsp; the support needed to clear both the House and Senate.&nbsp; Senator Lindsey Graham (R-SC), the Chair of the Committee, stated that he &ldquo;want[s] to look long and hard on how the system works; are there any changes we can make?&rdquo;&nbsp; Thirteen Senators attended the hearing, including two presidential contenders.&nbsp; Few supported the status quo.&nbsp; Expect more activity on this critical issue.</div> <div> &nbsp;</div> <div> <strong>States Continue Addressing Minimum Wage and Paid Leave Issues.&nbsp;</strong> In the absence of federal activity (notwithstanding the introduction of numerous bills without broad bipartisan support) on minimum wage and paid leave, the states have been pursuing their own solutions.&nbsp; The Maryland legislature--overriding the Governor&rsquo;s veto--voted to increase the state&rsquo;s minimum wage from $10.10 per hour to $15.00 (more than double that of neighboring Virginia).&nbsp; The increase will be phased in, with the $15 level arriving in 2025.&nbsp; The state&rsquo;s minimum wage will rise to $11.00 per hour next year.&nbsp; Meanwhile, Massachusetts published a revised version of its highly anticipated proposed Paid Family and Medical Leave regulations.&nbsp; For more on the proposal, see Seyfarth&rsquo;s <a href="https://www.seyfarth.com/publications/MA040219-LE2">Client Alert</a> on the topic.</div> <div> &nbsp;</div> <div> To subscribe to the Policy Matters weekly newsletter, <a class="cms-content-links" href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy">click here</a>.</div> https://www.seyfarth.com:443/news/adahrdive040419 Seyfarth's ADA statistics referenced in HR Dive https://www.seyfarth.com:443/news/adahrdive040419 Thu, 04 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in an April 4 story from HR Dive, &quot;Blue Cross pays $75K to settle challenge to audio job application.&quot; According to Seyfarth, plaintiffs filed at least 814 lawsuits under Title III of the ADA in 2017. You can read the <a href="https://www.hrdive.com/news/blue-cross-pays-75k-to-settle-challenge-to-audio-job-application/551821/">full article here</a>.</p> https://www.seyfarth.com:443/news/weisslaw360040419 Philippe Weiss quoted in Law360 https://www.seyfarth.com:443/news/weisslaw360040419 Thu, 04 Apr 2019 00:00:00 -0400 <p> Philippe Weiss was quoted in an April 4 story from Law360, &quot;Internal Workplace Harassment Claims Surge Amid #MeToo.&quot; Weiss said that he expects the upward reporting trend and broader implications of #MeToo to continue for at least another year, if not longer. He said the trend has already outlasted what many of his biggest clients expected.</p> https://www.seyfarth.com:443/news/masurveydl040419 Seyfarth's Middle Market M&A SurveyBook featured in Deal Lawyers https://www.seyfarth.com:443/news/masurveydl040419 Thu, 04 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s Middle Market M&amp;A SurveyBook was featured in an April 4 story in Deal Lawyers, &quot;Survey: Middle Market Deal Terms.&quot; Seyfarth recently published the 2019 edition of its &ldquo;Middle Market M&amp;A SurveyBook&rdquo;, which analyzes key contractual terms for more than 160 middle-market private target deals signed in 2018. You can read the <a href="https://www.deallawyers.com/blog/2019/04/survey-middle-market-deal-terms-2.html">full article here</a>.</p> https://www.seyfarth.com:443/news/hendricksonmarketwatch040319 Christine Hendrickson quoted in MarketWatch https://www.seyfarth.com:443/news/hendricksonmarketwatch040319 Wed, 03 Apr 2019 00:00:00 -0400 <p> Christine Hendrickson was quoted in an April 3 story from MarketWatch, &quot;&lsquo;Mansplaining&rsquo; away the persistent gap between men and women&rsquo;s salaries,&quot; on the Bureau of Labor Statistics data, which said women earn 81 cents on the dollar. Hendrickson said that the 81-cent figure didn&rsquo;t factor in specifics about the job, or all the variables like training, experience, job duties, career paths, cost of living and job performance. You can read the <a href="https://www.marketwatch.com/story/mansplaining-away-the-persistent-gap-between-men-and-womens-salaries-2019-04-02">full article here</a>.</p> https://www.seyfarth.com:443/news/mackcali040319 Seyfarth Represents Mack-Cali Realty in $487.5 Million Sale of Office/Flex Portfolio https://www.seyfarth.com:443/news/mackcali040319 Wed, 03 Apr 2019 00:00:00 -0400 <p> NEW YORK - (April 3, 2019) - Seyfarth Shaw LLP represented Mack-Cali Realty Corporation, a waterfront centric office and residential property owner, in the $487.5 million sale of its 56-building, 3.1 million square foot office/flex portfolio.</p> <p> A portion of the proceeds from the sale was used to repay $210 million of unsecured debt at the end of the first quarter. As part of the sales consideration, the purchaser redeemed 301,638 of its common Operating Partnership units, which were valued at $6.6 million. Inclusive of proceeds from the sale of the Elmsford Distribution Center portfolio on December 31, 2018, the Company has retired $280 million of unsecured debt from sales of flex portfolios.</p> <p> One of the country&#39;s leading Real Estate Investment Trusts (REITs), Mack-Cali Realty Corporation is an owner, manager and developer of premier office and multifamily properties in select waterfront and transit-oriented markets throughout the Northeast. A fully-integrated and self-managed company, Mack-Cali has provided world-class management, leasing, and development services throughout New Jersey and the surrounding region for two decades. For more information on Mack-Cali Realty Corporation and its properties, visit <a href="http://www.mack-cali.com">www.mack-cali.com</a>.</p> <p> The Seyfarth team was led by Real Estate partner Miles Borden and Corporate partner John Napoli in New York. The team also included Real Estate counsel Brooks Marro (Atlanta), Corporate/Tax counsel Steven Crainer (New York) and Michael Rosenthal (New York), and Real Estate associate Evan Gordon (New York).</p> https://www.seyfarth.com:443/news/maatmanccr040319 Gerald Maatman quoted in the Cook County Record https://www.seyfarth.com:443/news/maatmanccr040319 Wed, 03 Apr 2019 00:00:00 -0400 <p> Gerald Maatman was quoted in an April 3 story from the Cook County Record, &quot;Proposed change to IL biometrics law could offer relief to employers from lawsuit &#39;abuse&#39; of privacy protections.&quot; Maatman said that the sense is, for some lawmakers, that the statute is being abused, and it&rsquo;s more about plaintiffs&rsquo; class action lawyers than about privacy rights of individuals. You can read the <a href="https://cookcountyrecord.com/stories/512402784-proposed-change-to-il-biometrics-law-could-offer-relief-to-employers-from-lawsuit-abuse-of-privacy-protections">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS040319 That’s a Wrap: California Federal Court Grants TRO Against Former Employee for Trade Secret Misappropriation https://www.seyfarth.com:443/publications/TS040319 Wed, 03 Apr 2019 00:00:00 -0400 <p> A California federal district court recently granted a temporary restraining order (&ldquo;TRO&rdquo;) against a former employee for misappropriating proprietary and confidential information in violation of the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;), the California Uniform Trade Secrets Act (&ldquo;CUTSA&rdquo;), and company confidentiality and non-disclosure agreements. Bemis Co., Inc. v. Summers, No. 219CV00344TLNKJN, 2019 WL 1004853, at *1 (E.D. Cal. Feb. 28, 2019).<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/restrictive-covenants/thats-a-wrap-california-federal-court-grants-tro-against-former-employee-for-trade-secret-misappropriation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP040319 Hiring Influencers: Are You Playing With Fyre? https://www.seyfarth.com:443/publications/CP040319 Wed, 03 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Companies marketing through social media are likely familiar with social media influencers like the Kardashian/Jenners in cosmetics, DanTDM in gaming, and Kayla Itsines in fitness. California companies using the services of such influencers must be mindful, as always, of California peculiarities when it comes to classifying these individuals as contractors or employees.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/04/03/hiring-influencers-are-you-playing-with-fyre/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT040319 NJ Medical Pot User’s Case Not Up In Smoke: Accommodations Might Be Required Despite Weed Statutes Saying Otherwise https://www.seyfarth.com:443/publications/TBT040319 Wed, 03 Apr 2019 00:00:00 -0400 <p> The New Jersey Court of Appeals revived a funeral director&rsquo;s medical marijuana discrimination suit in Wild v. Carriage Funeral Holdings, Inc., Case No. A-3072-17T3. There, the funeral director was involved in a workplace accident. The director told the hospital that he was authorized to use medical marijuana. The employer fired the funeral director. The funeral director&rsquo;s supervisor told him it was because of his medical marijuana use but the employer stated that the director was fired because he failed to comply with the Company&rsquo;s policy which required employees to inform their supervisor if they are taking medications that could alter their ability to perform their duties. The director argued that his termination was unlawful under the State&rsquo;s discrimination law even though the medical marijuana act did not afford him protection.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/04/nj-medical-pot-users-case-not-up-in-smoke-accommodations-might-be-required-despite-weed-statutes-saying-otherwise/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH040219 April Rules: DOL Continues Rulemaking Sprint With New Proposed Joint Employment Standard https://www.seyfarth.com:443/publications/WH040219 Tue, 02 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On April 1, 2019, the U.S. DOL announced a proposed rule to clarify joint employment under the FLSA. The rule would establish a four-factor balancing test for joint employer status. It also rejects various factors that have fueled recent litigation, e.g., a worker&rsquo;s economic dependence on a potential joint employer, the potential employer&rsquo;s business model, and its unexercised power over the worker.<br /> <br /> <a href="https://www.wagehourlitigation.com/joint-employment/april-rules/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CONS040219 The Christian Doctrine: The Double-Secret Contract Clause https://www.seyfarth.com:443/publications/CONS040219 Tue, 02 Apr 2019 00:00:00 -0400 <p> The typical government contract contains a laundry list of standard Federal Acquisition Regulation (FAR) or Defense Federal Regulation Acquisition Supplement (DFARS) clauses that outline the requirements for the construction or services to be provided. These clauses are either expressly stated, i.e. written out in full length in the contract, or incorporated by reference to a particular provision which the contractor must research for the specific language. But contractors beware: not all contracts are what they seem. Since 1963, courts have held that certain clauses are so integral to public procurements that they are deemed incorporated by operation of law, even if they are omitted from the contract.<br /> <br /> <a href="https://www.constructionseyt.com/2019/04/the-christian-doctrine-the-double-secret-contract-clause/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/goodinhrblr040219 Matthew Goodin authored an article in HR.BLR.com https://www.seyfarth.com:443/publications/goodinhrblr040219 Tue, 02 Apr 2019 00:00:00 -0400 <p> Matthew Goodin authored an April 2 article in HR.BLR.com, &quot;Paying by Piece Rate: It&#39;s Not a Piece of Cake in California.&quot; California law allows employers to compensate their employees on a piece-rate basis, meaning workers are paid a specific amount for a specific task. The following case involves whether truck drivers who were paid by the load were properly compensated for all the hours they worked as required by California law.</p> https://www.seyfarth.com:443/publications/EL040219 Equal Pay Day 2019: Introducing Seyfarth’s Developments in Pay Equity Litigation Report and the 3rd Annual 50-State Pay Equity Desktop Reference https://www.seyfarth.com:443/publications/EL040219 Tue, 02 Apr 2019 00:00:00 -0400 <p> Synopsis: Seyfarth&rsquo;s Pay Equity Group is pleased to release two reference guides: the 2019 Developments in Pay Equity Litigation Report and the 3rd Annual 50-State Pay Equity Desktop Reference.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/04/equal-pay-day-2019-introducing-seyfarths-developments-in-pay-equity-litigation-report-and-the-3rd-annual-50-state-pay-equity-desktop-reference/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC040219 Illinois Court Dismantles Equal Pay Act Collective Action Of Group Of Female Doctors https://www.seyfarth.com:443/publications/WC040219 Tue, 02 Apr 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On March 29, 2019, in Ahad v. Board of Trustees of Southern Illinois University, et al., Case No. 15-CV-3308 (C.D. Ill. Mar. 29, 2019), Judge Sue E. Myerscough of the U.S. District Court for the Central District of Illinois decertified a collective action under the Equal Pay Act involving a group of female physicians. Although Plaintiff alleged that she and a class of female physicians employed by Defendants were paid less than male counterparts for similar work under Defendants&rsquo; centralized Compensation Plan, the Court found that the individual physicians who opted-in to the collective action had specialized practices, job duties, and compensation that required too many individualized inquiries, and as a result, they could not maintain a collective action. The decision is an important read for all corporate counsel focused on equal pay compliance and litigation.<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/04/illinois-court-dismantles-equal-pay-act-collective-action-of-group-of-female-doctors/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA040219-LE2 Massachusetts Releases Updated Proposed Paid Family And Medical Leave Regulations—What You Need To Know https://www.seyfarth.com:443/publications/MA040219-LE2 Tue, 02 Apr 2019 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>On Friday evening, the Massachusetts Department of Paid Family and Medical Leave (DFML) published its revised version of the highly anticipated proposed Paid Family and Medical Leave (PFML) regulations that were due for release by March 31, 2019 for public comment and hearing. The proposed regulations clarify a number of key issues and provisions of the PFML Law that have been the source of prior confusion and questions, including the private plan exemption, the July 1st payroll deductions, benefits accrual during PFML leave, the interaction of PFML leave and paid time off policies, and the applicability to contract workers paid on an IRS Form 1099-MISC. <a href="https://www.seyfarth.com/publications/MA032719-LE">As we reported</a> last Wednesday, in advance of the proposed regulations&rsquo; release, the DFML posted new toolkits and other clarifying information for employers and workers online <a href="https://www.mass.gov/orgs/department-of-family-and-medical-leave">here</a>.&nbsp; Much of the new information contained in the proposed regulations overlaps with the information the DFML released online last week.</em></p> <p> Because much of the noteworthy information in the proposed regulations overlaps with the information posted in advance by the DFML and because many of our readers probably have not had the opportunity to review last week&rsquo;s Alert, below is a consolidated summary of the noteworthy information from both sources in one place.&nbsp; Following that summary, we identify several key areas on which the updated proposed regulations provide new information.</p> <p> <strong><u>What We Now Know From The Proposed Regulations And The DFML Toolkits</u></strong></p> <ul> <li> <strong>Online Applications For Private Plan Exemption Available April 29th. </strong>According to the DFML&rsquo;s website and announcement, beginning April 29th, employers &ldquo;already providing&rdquo; paid leave benefits to their workforce may apply online through MassTaxConnect for an exemption from collecting, remitting, and paying contributions to the public Trust Fund. To be approved, the benefits offered must be greater than or equal to the benefits provided by the PFML Law and must not cost employees more than they would be required to contribute to the State plan. Applications will be accepted and reviewed on a rolling basis. <ul> <li> At this time, it is unclear if the DFML intentionally limited the current application to employers &ldquo;already providing&rdquo; such paid leave benefits or if applications for approval of new private plans will also be accepted as of April 29th, as the PFML Law and the proposed regulations permit applications for approval of any private plan providing equal or greater benefits. Stay tuned for further clarification.</li> <li> If a private plan provides for insurance, the insurance policy must be issued by a Massachusetts licensed insurance company.&nbsp; If a private plan is self-insured, the employer or covered business entity must furnish to the DFML a bond running to the Commonwealth in such form as may be approved by the DFML and in such amount as may be required by the DFML.</li> <li> For further details regarding the application process and the minimum features a private plan must contain, please refer to <a href="https://www.seyfarth.com/publications/MA032719-LE">our prior Alert</a>.</li> </ul> </li> <li> <strong>July 1, 2019 Commencement Of Payroll Deductions. </strong>Beginning July 1, 2019, unless receiving an approved exemption for a private plan, all Massachusetts employers will be required to commence payroll deductions to cover worker contributions from employees&rsquo; wages and from payments for services to covered 1099-MISC contractors (where 1099-MISC contractors make up 50% or more of the Massachusetts workforce). <ul> <li> Contributions to the public Trust Fund will be remitted at an initial contribution rate of 0.63% on the first $132,900&nbsp;of an individual&rsquo;s annual earnings (this figure may be adjusted annually). The 0.63% contribution rate currently is split between a 0.52% medical leave contribution and a 0.11% family leave contribution.</li> <li> Employers with 25 or more covered workers within Massachusetts must remit the entire 0.63% contribution to the Trust Fund. Such employers may deduct 100% of the 0.11% family leave contribution from employees and covered contractors and up to 40% of the 0.52% medical leave contribution (<em>i.e.</em> 0.21%) from employees and covered contractors. Such employers must pay an employer share of at least 60% of the 0.52% medical leave contribution (<em>i.e.</em> 0.31%).</li> <li> Employers with fewer than 25 covered workers within Massachusetts do not have to pay the employer share of the medical leave contribution, nor do they have to remit that share to the Trust Fund. Such employers need only remit to the Trust Fund the remaining 40% employee share of the medical leave contribution and 100% of the employee&rsquo;s family leave contribution, all of which may be deducted from the wages of employees and the earnings of covered contractors.</li> <li> In the worker toolkit, the DFML provides a helpful breakdown for employees and covered contract workers regarding their maximum contributions, explaining that for every $100 a worker earns (up to the maximum $132,900 annually), $0.32 will be deducted from the worker for the covered&nbsp;contribution share. This will consist of $0.11 to cover the family leave contribution, and $0.21 to cover the worker&rsquo;s share of the medical leave contribution (employers with 25 or more covered workers will contribute $0.31 for every $100 to cover the employer&rsquo;s share of the medical leave contribution).</li> </ul> </li> <li> <strong>Quarterly Reports Beginning In October 2019. </strong>All employers will&nbsp;be required to file quarterly reports (including wages paid or other payments for services) through&nbsp;MassTaxConnect beginning in October 2019. Reporting and documentation guidelines will be announced prior to July 1, 2019.</li> <li> <strong>Employer Contributions To Trust Fund To Start October 31, 2019. </strong>While payroll deductions from workers will commence July 1st, employers will not remit the quarterly contributions to the Trust Fund for the July-September quarter until October 31st. Quarterly contributions will be submitted&nbsp;through the Massachusetts Department of Revenue&rsquo;s MassTaxConnect system.</li> <li> <strong>July 1, 2019 Mandatory Workplace Poster Requirements. </strong>The DFML has clarified that the mandatory workplace posting requirement will take effect July 1, 2019, and the DFML released online its new mandatory poster: <strong><a href="https://www.mass.gov/doc/paid-family-and-medical-leave-mandatory-workplace-poster/download">Paid Family and Medical Leave mandatory workplace poster</a></strong>. This poster or an otherwise approved poster must be posted at the workplace in a location where it can be easily read. The poster&nbsp;must be available in English and each language which is the primary language of 5 or more individuals in the workforce (if such translations are made available from the DFML).</li> <li> <strong>July 1, 2019 Written Notice To Workers. </strong>According to the DFML, beginning July 1st, employers also will be required to notify their workforce about the State&rsquo;s PFML program. Employers must provide all Massachusetts W2 employees written notice of contributions, benefits, and workforce protections; and issue this notice to each new employee within 30 days of their first day of employment. The notice must be written in the employee&rsquo;s primary language. Employers must obtain from each employee a written statement acknowledging receipt of the notice or a statement indicating the employee&rsquo;s refusal to acknowledge the notice. This notice must contain: <ul> <li> An explanation of the availability of family and medical leave benefits;</li> <li> The employee&rsquo;s contribution amount and obligations;</li> <li> The employer&rsquo;s contribution amount and obligations;</li> <li> The employer&rsquo;s name and mailing address;</li> <li> The employer identification number assigned by the DFML;</li> <li> Instructions on how to file a claim for family and medical leave benefits; and</li> <li> The mailing address, email address, and telephone number of the DFML.</li> </ul> </li> </ul> <p style="margin-left:.25in;"> A similar written notice must be issued to each Massachusetts 1099-MISC contractor who provides services to the company, when entering into a contract for services. The notice must be written in the contractor&rsquo;s primary language and contain similar information, including an explanation of the availability of family and medical leave benefits and the procedures for self-employed individuals to become covered individuals.</p> <ul> <li> <strong>Covered Individuals&rsquo; Earnings Eligibility Requirements. </strong>The DFML clarified the earnings eligibility requirement (adopted from the unemployment benefits law) for any individual who wants to take paid leave under the Law. To be eligible for PFML benefits, over the 12 months preceding the claim for benefits, an individual must have received total wages from a Massachusetts employer or covered business entity that in the aggregate: <ul> <li> Equal or exceed 30 times the individual&rsquo;s weekly benefit amount (or generally about 15 weeks of employment/earnings); and</li> <li> Equal or exceed $4,700.</li> </ul> </li> <li> <strong>Contributions Calculator And Other Resources. </strong>In its employer toolkit, the DFML provides links to a number of helpful resources, including a contributions calculator for employers to calculate their estimated PFML contributions. The DFML also provides an interactive tool for determining if an employer is responsible for the employer share of the medical leave contributions by determining whether the employer has 25 or more covered individuals (including employees and 1099-MISC contractors when more than 50% of the Massachusetts workforce consists of 1099-MISC contractors). The site also includes a link for employers to register with MassTaxConnect.</li> <li> <strong>2021 Commencement Of Paid Leave Benefits. </strong>As previously reported, the starting dates for paid leave benefits claims (up to $850 per week) are as follows: <ul> <li> On January 1, 2021, covered employees and covered contractors can begin claiming benefits for bonding with a child or newborn; service-member related events; and dealing with the employee&rsquo;s own serious health condition; and</li> <li> On July 1, 2021, covered employees and covered contractors can begin claiming benefits to care for a family member with a serious health condition.</li> </ul> </li> </ul> <p> <strong><u>New Provisions Within The Proposed Regulations</u></strong></p> <ul> <li> <strong>Employee Option To Use Employer-Provided Paid Leave.</strong> The proposed regulations now include a provision clarifying that covered employees may choose to use accrued paid leave provided by their employer (e.g. PTO) rather than apply for PFML benefits for a particular leave. However, use of the employer-provided leave will run concurrently with the PFML leave period even though the worker cannot be compensated with PFML paid benefits for such period (presumably because the worker is still receiving PFML-provided job protection rights).</li> <li> <strong>No Accrual Of Additional Benefits While On PFML Leave. </strong>In a clear response to comments submitted in response to the PFML Law and the early draft of the regulations, the proposed regulations now clarify that, consistent with the federal FMLA, employees on PFML leave will <u>not</u> accrue additional benefits (e.g. PTO, vacation, sick leave, etc.) while out on PFML leave.</li> <li> <strong>Short-Term Disability Leave Offset.</strong> Although not addressed in the earlier draft of the regulations, the latest draft includes language tracking the PFML Law with respect to short-term disability benefits. Pursuant to this language, unlike long-term disability benefits, the PFML weekly benefit ($850/week maximum) will not be reduced by wage replacement received through short-term disability benefits unless the aggregate amount received would exceed the covered worker&rsquo;s average weekly wage.</li> <li> <strong>New Section Permitting Fitness For Duty Certifications.</strong> The proposed regulations include a new section permitting employers to require covered workers returning from medical leave to submit a certification from their health care provider that they are able to resume work, provided the employer has a uniformly-applied policy or practice requiring all similarly-situated workers to provide the same for such leave.</li> <li> <strong>Expanded Definitions And Alignment With Federal FMLA.</strong> The revised version of the proposed regulations includes a substantially expanded list of definitions. The proposed regulations now clarify that &ldquo;substantial health condition&rdquo; is defined identically to the federal FMLA, and &ldquo;health care provider&rdquo; is essentially identical to the federal FMLA&rsquo;s definition. The newly expanded definitions also modify the definition of a &ldquo;covered individual,&rdquo; providing clarity and a definition of the &ldquo;financial eligibility test&rdquo; (discussed above). The new definitions also provide more of a distinction between &ldquo;self-employed individuals&rdquo; electing coverage, and &ldquo;covered contract workers&rdquo; who provides services to an employer or covered business entity for which 1099-MISC contractors make up more than 50% of its Massachusetts workforce. Consistent with the language of the PFML Law, the definition of &ldquo;family member&rdquo; has not changed and thus provides broader family leave coverage than the federal FMLA by including a covered individual&rsquo;s parent in-laws, grandchildren, grandparents, and siblings.</li> <li> <strong>New Section Regarding Covered Business Entities And Covered Contract Workers. </strong>The proposed regulations now provide a method for a business to determine annually whether it is a covered business entity &ndash; <em>i.e.</em> whether greater than 50% of its Massachusetts workforce were self-employed 1099-MISC contractors based on each pay period of the previous calendar year.</li> </ul> <p> During the public comment and hearing period, the DFML will hold at least two public hearings, beginning in May. There will also be a period for written comments. The DFML expects to promulgate the final regulations ahead of the Law&rsquo;s July 1st deadline. The DFML&rsquo;s website contains substantial information regarding the above items and more. We encourage you to review these resources. You may also join us for an interactive webinar on these developments tomorrow, Wednesday, April 3<sup>rd</sup>, at 1:00 p.m. EST by registering <a href="https://www.seyfarth.com/events/Webinar-040319LE">here</a>.</p> <p> For our prior reports on this Law and the draft regulations, you may refer <a href="https://www.seyfarth.com/publications/MA062218-LE">here</a>, <a href="https://www.seyfarth.com/publications/MA062218-LE">here</a>, and <a href="https://www.seyfarth.com/publications/MA032719-LE">here</a>.</p> https://www.seyfarth.com:443/publications/MA040219-LE The NYC Commission on Human Rights’ Online Anti-Sexual Harassment Training Video Is Now Available https://www.seyfarth.com:443/publications/MA040219-LE Tue, 02 Apr 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong> The Stop Sexual Harassment in NYC Act requires employers with 15 or more employees to conduct annual, interactive anti-sexual harassment training.&nbsp; The law went into effect April 1, 2019.&nbsp; Under the law, the New York City Commission on Human Rights is required to publish a compliant online training video.&nbsp; The Commission&rsquo;s model training video was made available on the Commission&rsquo;s website yesterday. &nbsp;The Commission also updated the Frequently Asked Questions (&ldquo;FAQs&rdquo;).</em></p> <p> The &ldquo;<a href="https://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; (the &ldquo;Act&rdquo;), which was passed on May 9, 2018, requires, among other things, that employers with 15 or more employees in the previous calendar year<a href="#_ftn1" name="_ftnref1" title="">[1]</a> conduct annual, interactive anti-sexual harassment training for all employees employed in New York City.&nbsp; This training requirement is effective as of April 1, 2019.&nbsp; Previous alerts providing a full overview of the law can be found <a href="https://www.seyfarth.com/publications/MA051418-LE">here</a> and <a href="https://www.seyfarth.com/publications/MA041718-LE2">here</a>.&nbsp;</p> <p> <strong>Online Video </strong></p> <p> The Act directs the New York City Commission on Human Rights (the &ldquo;Commission&rdquo;) to create and post on its website an online, interactive training module that is free to the public and complies with the substantive training requirements under the law.&nbsp; Yesterday, the Commission published its online module, which is available <a href="https://www1.nyc.gov/assets/cchr/training/english/index.html">here</a>.&nbsp; The Commission also updated the FAQs on its <a href="https://www1.nyc.gov/site/cchr/law/sexual-harassment-training-faqs.page">website</a> and published a four-minute video titled &ldquo;<a href="https://www1.nyc.gov/site/cchr/media/videos.page#gender">What is Gender</a>,&rdquo; which employers may use as part of their anti-sexual harassment training.</p> <p> Since the Act&rsquo;s passage, one of key question has been whether the City&rsquo;s online training module would be compliant with New York State&rsquo;s law requiring employers of all sizes to provide annual, interactive, anti-sexual harassment training (New York State&rsquo;s law is discussed in more detail <a href="https://www.seyfarth.com/publications/MA040518-LE">here</a>).&nbsp; The City&rsquo;s updated FAQs explicitly provide that the Commission&rsquo;s training module meets the State&rsquo;s training requirements.&nbsp; &nbsp;</p> <p> The Act also requires that employers maintain a record of all trainings, including a signed employee acknowledgment, for three years.&nbsp; The City&rsquo;s updated FAQs clarify that the Commission&rsquo;s training module will generate a certificate of completion at the end of the training which is individualized to the <strong><em>employee&rsquo;s name</em></strong>.&nbsp; Thus, the employee will have to initially print or save the certificate, as employers will not have direct access to the certification.&nbsp; Moreover, while the FAQs provide that employers may train multiple staff at the same time and on one device, the training module will only produce one certificate and it is the employer&rsquo;s responsibility to keep an independent record of which employees took the training and when.&nbsp; <strong><em>The Commission will not retain any records</em></strong>.&nbsp; Thus, if a certificate is lost, the Commission cannot retrieve it.</p> <p> The FAQs also provide guidance as to the devices and technology required to support the training.</p> <p> <strong>Deadlines</strong></p> <p> Under the Act, employers are required to train every employee each calendar year.&nbsp; Therefore, to be in compliance with the City law, employers must train all of their employees by December 31, 2019.&nbsp; Under the State law, however, all employees are required to be trained by October 9, 2019.&nbsp; Thus, for 2019, City employers should conduct all anti-sexual harassment training by October 9, 2019 to ensure compliance with both City and State training requirements. &nbsp;</p> <p> The Commission&rsquo;s FAQs also make clear that employees who received compliant training in 2019, but prior to the Act&rsquo;s effective date of April 1, do not need additional training in 2019.</p> <p> <strong>Who Needs To Be Trained</strong></p> <div> The Act requires employers to train all employees, including short-term employees and part-time employees if they worked: (i) more than 80 hours in a calendar year; and (ii) for at least 90 days. Seyfarth&rsquo;s previous alert issued on April 2, 2019 stated that the City Commission&rsquo;s FAQs required independent contractors be trained as well. The FAQs have since been revised and no longer require that employers train independent contractors, but rather strongly advise &ldquo;that if independent contractors are working on-site at an employer&rsquo;s workplace, are interacting with the employer&rsquo;s staff, and are anticipated to work more than 80 hours in a calendar year AND for at least 90 days, they should be trained.&rdquo;</div> <div> &nbsp;</div> <div> The FAQs have been updated to provide further clarification for New York City employers who have employees working outside the City.&nbsp; The FAQs state that &ldquo;[i]f the employee is connected to New York City in any way, [the employee] must be trained.&rdquo;&nbsp; The FAQs also provide three examples of when employees must be trained: (1) employees who work or will work in New York city; (2) an employee working a portion of the time in New York City; and (3) employees based elsewhere who interact &ldquo;with other employees in New York City, even if the employee is not physically present in the City.&rdquo;</div> <p> <strong>Employer Takeaway</strong></p> <p> Employers should consider whether they want to utilize the Commission&rsquo;s online training module or opt for alternative training programs.&nbsp; Employers should also start planning on when to start conducting training now that both the City and State laws are effective.&nbsp; Seyfarth Shaw attorneys are available to assist employers with further guidance on these issues.</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a>&nbsp;Small employers should be aware that independent contractors - regardless of the number of days or hours they work - count as employees for the purposes of calculating the 15-employee minimum.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/news/hendricksonpolitico040219 Christine Hendrickson quoted in Politico https://www.seyfarth.com:443/news/hendricksonpolitico040219 Tue, 02 Apr 2019 00:00:00 -0400 <p> Christine Hendrickson was quoted in a April 2 story from Politico, &quot;Morning Shift,&quot; on a new survey which estimates that U.S. women working full-time, year-round earn 80.7 percent of what their male colleagues make. Hendrickson said that figure fails to take into account differences in education, training, and geography, among other factors. You can read the <a href="https://www.politico.com/newsletters/morning-shift/2019/04/02/bidens-metoo-moment-420108">full article here</a>.</p> https://www.seyfarth.com:443/news/whsbm040219 Seyfarth's Wage and Hour Litigation statistics referenced in Seattle Business Magazine https://www.seyfarth.com:443/news/whsbm040219 Tue, 02 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s Wage and Hour Litigation statistics were referenced in an April 2 story from Seattle Business Magazine, &quot;Companies Must Pay Women the Same as Men,&quot; on how companies face legal risks if they rely on salary history rather than equal pay. According to Seyfarth, between 2000 and 2015 the incidence of wage and hour federal court filings skyrocketed by more than 450 percent. You can read the <a href="https://www.seattlebusinessmag.com/commentary/companies-must-pay-women-same-men">full article here</a>.</p> https://www.seyfarth.com:443/news/shermanfw040119 Andrew Sherman quoted in Financier Worldwide https://www.seyfarth.com:443/news/shermanfw040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> Andrew Sherman was quoted in the April issue of Financier Worldwide magazine, &quot;Cross-border M&amp;A integration.&quot; Sherman said that the attitudes of corporate development leaders at companies of all sizes and in all industries across the globe toward cross-border M&amp;A remain generally bullish as a result of our increasingly global economy. You can read the <a href="https://www.financierworldwide.com/cross-border-ma-integration#.XJJSHXlYaUk">full article here</a>.</p> https://www.seyfarth.com:443/news/hendricksoncc040119 Christine Hendrickson quoted in Corporate Counsel https://www.seyfarth.com:443/news/hendricksoncc040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> Christine Hendrickson was quoted in an April 1 story from Corporate Counsel, &quot;Report: Half of World&rsquo;s Largest Companies Fail Pay Equality Test,&quot; on a report which ranks 46 of the world&rsquo;s largest companies on their efforts to close persistent gender and racial pay gaps. Hendrickson cautioned that the report has significant limitations, in part because it dinged employers who choose not to publish their pay statistics and draws conclusions from a mishmash of variables.</p> https://www.seyfarth.com:443/news/adatr040119 Seyfarth's ADA statistics referenced in Total Retail https://www.seyfarth.com:443/news/adatr040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in an April 1 story from Total Retail, &quot;Tackling the Website Accessibility Challenge.&quot; According to Seyfarth, since 2017, federal website accessibility lawsuits are up 30 percent. You can read the <a href="https://www.mytotalretail.com/article/tackling-the-website-accessibility-challenge/">full article here</a>.</p> https://www.seyfarth.com:443/news/adatfs040119 Seyfarth's ADA statistics referenced in The Federalist Society https://www.seyfarth.com:443/news/adatfs040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in an April 1 story from The Federalist Society, &quot;Website Inaccessibility: The New Wave of ADA Title III Litigation.&quot; According to Seyfarth, plaintiffs filed at least 2,258 website accessibility lawsuits in 2018, a 177% increase from 814 such lawsuits in 2017. You can read the <a href="https://fedsoc.org/commentary/publications/website-inaccessibility-the-new-wave-of-ada-title-iii-litigation">full article here</a>.</p> https://www.seyfarth.com:443/news/nelsoncw040119 Scott Nelson quoted in Compliance Week https://www.seyfarth.com:443/news/nelsoncw040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> Scott Nelson was quoted in an April 1 story from Compliance Week, &quot;Best practices for managing employee reports.&quot; Nelson said that, to get a complete picture of your risks, it&#39;s important to track all reports in a centralized incident-management system.</p> https://www.seyfarth.com:443/publications/TS040119 Former Employee Accused of Spilling Secret Beer Recipe in Furtherance of Class Action Cannot Strike Claims Under Anti-SLAPP Statute https://www.seyfarth.com:443/publications/TS040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> Last week, the Ninth Circuit finally ruled that a former Anheuser-Busch employee cannot avoid claims filed by the brewer alleging misappropriation of trade secrets and breach of a nondisclosure agreement, the latest in a long running saga that started when Anheuser-Busch filed suit 6 years ago. Former Anheuser-Busch employee James Clark (&ldquo;Clark&rdquo;) had filed a motion to strike the company&rsquo;s trade secrets claims accusing him of stealing proprietary information under the California Anti-SLAPP statute (&ldquo;strategic lawsuits against public participation&rdquo;).<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/04/articles/trade-secrets/former-employee-accused-of-spilling-secret-beer-recipe-in-furtherance-of-class-action-cannot-strike-claims-under-anti-slapp-statute/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/rmajournal040119 John Shire, Stanley Jutkowitz and James Billings-Kang authored an article in The RMA Journal https://www.seyfarth.com:443/publications/rmajournal040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> John Shire, Stanley Jutkowitz and James Billings-Kang authored an April 1 article in The RMA Journal, &quot;When Your Financial Institution Holds Cryptocurrency In Trust.&quot; You can read the <a href="https://www.seyfarth.com/dir_docs/publications/When_Your_Financial_Institution_Holds_Cryptocurrency_in_Trust.pdf">full article here</a>.</p> https://www.seyfarth.com:443/publications/fiersteinpalkaclls040119 Ira Fierstein and Michelle Palka authored an article in Commercial Leasing Law & Strategy https://www.seyfarth.com:443/publications/fiersteinpalkaclls040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> Ira Fierstein and Michelle Palka authored an April 1 article in Commercial Leasing Law &amp; Strategy, &quot;Inheriting Tenants in Default?&quot; An Illinois Appellate Court recently ruled in favor of a commercial tenant after a new owner acquired a commercial building and attempted to collect accrued unpaid rent owed to the previous landlord. You can read the <a href="http://www.lawjournalnewsletters.com/2019/04/01/inheriting-tenants-in-default/">full article here</a>.</p> https://www.seyfarth.com:443/publications/FutureEnterprise040119 Virtual Reality and Real Estate https://www.seyfarth.com:443/publications/FutureEnterprise040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> With VR technology, users are able to immerse themselves in a realistic replication of a physical space. AR technology supplements can take such replication a step forward by projecting computer generated images on top of the actual world. Both technologies enable a potential buyer, tenant, or lender--wherever they are in the world--to transport themselves into an actual property as it currently exists or even how it might exist after redevelopment.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2019/4/1/virtual-reality-real-estate">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/trandj040119 Tiffany Tran authored an article for the Daily Journal https://www.seyfarth.com:443/publications/trandj040119 Mon, 01 Apr 2019 00:00:00 -0400 <p> Tiffany Tran authored an April 1 article in the Daily Journal, &quot;NLRB &#39;win&#39; for gig economy might not help California employers.&quot;</p> https://www.seyfarth.com:443/publications/CFIUS-Are-Chinese-Investments-Still-Welcome-March-2019 CFIUS: Are Chinese Investments Still Welcome? https://www.seyfarth.com:443/publications/CFIUS-Are-Chinese-Investments-Still-Welcome-March-2019 Sun, 31 Mar 2019 00:00:00 -0400 <p> <span style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">Jeffrey Sims and Raymond Wong authored a March 2019 article in the Hong Kong Lawyer Magazine titled, &quot;</span>CFIUS: Are Chinese Investments Still Welcome?<span style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">.&quot; You can read the&nbsp;</span><a class="cms-content-links" href="http://www.hk-lawyer.org/content/cfius-are-chinese-investments-still-welcome" style="text-decoration-line: none; color: rgb(0, 168, 225); cursor: pointer; font-family: Arial, Helvetica, sans-serif; font-size: 13px;">full article here</a><span style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">.</span></p> https://www.seyfarth.com:443/news/tymannewsday033119 Annette Tyman quoted in Newsday https://www.seyfarth.com:443/news/tymannewsday033119 Sun, 31 Mar 2019 00:00:00 -0400 <p> Annette Tyman was quoted in a March 31 story from Newsday, &quot;What employers need to know about new pay data requirement.&quot; Tyman said that the pay data requirement, intended to combat discrimination, was stalled by the White House&#39;s Office of Management and Budget before it was to take effect March 31, 2018. You can read the <a href="https://www.newsday.com/business/employers-ee0-1-pay-data-requirement-1.29251184">full article here</a>.</p> https://www.seyfarth.com:443/news/masurveypew032919 Seyfarth's Middle-Market M&A SurveyBook featured in Private Equity Wire https://www.seyfarth.com:443/news/masurveypew032919 Fri, 29 Mar 2019 00:00:00 -0400 <p> Seyfarth&#39;s Middle-Market M&amp;A SurveyBook was featured in a March 29 story from Private Equity Wire, &quot;2019 to be another active year for M&amp;A deals, says Seyfarth Shaw survey.&quot; General market sentiment indicates that 2019 will be another very active year for M&amp;A deals, according to the 6th edition of Seyfarth&rsquo;s Middle-Market M&amp;A SurveyBook of Key M&amp;A Deal Terms. You can read the <a href="https://www.privateequitywire.co.uk/2019/03/29/274473/2019-be-another-active-year-ma-deals-says-seyfarth-shaw-survey">full article here</a>.</p> https://www.seyfarth.com:443/news/lazarcbs032919 Bart Lazar quoted in CBS News https://www.seyfarth.com:443/news/lazarcbs032919 Fri, 29 Mar 2019 00:00:00 -0400 <p> Bart Lazar was quoted in a March 29 story from CBS News, &quot;Why did the U.S. order a Chinese company to sell Grindr?&quot; Lazar said that you have to treat this as a U.S. reaction to Chinese businesses having access to personal communications more than anything else. You can read the <a href="https://www.cbsnews.com/news/national-security-officials-ordered-chinese-company-to-sell-grindr/">full article here</a>.</p> https://www.seyfarth.com:443/publications/HCRMA-032919 Issue 119: Court Vacates New Rules on Association Health Plans https://www.seyfarth.com:443/publications/HCRMA-032919 Fri, 29 Mar 2019 00:00:00 -0400 <div> <em>This is the one hundred and nineteenth issue in our series of alerts for employers on selected topics on health care reform. (Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here</a> to access our general summary of health care reform and other issues in our series.) This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> In a blow to the Trump administration&rsquo;s efforts to weaken the Affordable Care Act, on March 28, 2019, in response to a challenge filed by eleven Democratic state attorneys general, a judge in the United States District Court for the District of Columbia found that the Department of Labor had unreasonably expanded ERISA&rsquo;s definition of &ldquo;employers&rdquo; to &ldquo;end run the requirements of the ACA&quot;. As a result, in <em>State of New York et al. v. U.S. Department of Labor et al.</em>, No. 1:18-cv-01747 (D.D.C Mar. 28, 2019) the Court struck down portions of the DOL&rsquo;s association health plan rule&mdash;finalized in June of 2018&mdash;that had expanded the ability of small businesses and owners to buy health insurance on the large group market that was not subject to the ACA requirements that apply in the small group market (such as requirements related to coverage for essential health benefits and limitations on premium rates).&nbsp;</div> <p> &nbsp;</p> <h2> History</h2> <div> ERISA has long provided that some health plans offered by &ldquo;bona fide associations&rdquo; can qualify as single-employer ERISA plans if the association members have close enough ties to qualify as an &ldquo;employer.&rdquo; Participating in a plan offered by a bona fide association allows small employers to avoid&nbsp; many of the ACA requirements imposed on individual and small group health plans, because the association members&rsquo; employees are counted in the aggregate, as if the association was their &ldquo;employer.&rdquo; To determine whether an association was a &ldquo;bona fide association,&rdquo; the DOL traditionally considered three factors: (1) whether the association had a business or organizational purpose unrelated to the provision of benefits; (2) whether the association members had some common interest beyond the provision of benefits; and (3) whether the participating employers exercised some degree of control over the benefit program. These requirements were narrowly construed, such that the majority of association health plans did not qualify as &ldquo;bona fide associations&rdquo; that satisfied ERISA&rsquo;s definition of employer. For ACA purposes, this meant that small employers purchasing health insurance through an association would still need to meet ACA requirements for small employers, even if the association members, in the aggregate, employed large numbers of employees.&nbsp;&nbsp;</div> <div> &nbsp;</div> <h2> Final Rules</h2> <div> In October of 2017, President Trump issued an Executive Order directing the DOL to expand access to association health plans (AHPs), suggesting that they do so by loosening the criteria used to determine whether an association is a &ldquo;bona fide association.&rdquo; Because the ACA adopted ERISA&rsquo;s definition of &ldquo;employer,&rdquo; the DOL followed this directive by issuing a Final Rule that allowed associations to satisfy the traditional &ldquo;commonality of interest&rdquo; test discussed above if their members were either in the same trade or business or in the same geographic area, and the DOL allowed the formation of associations even if their primary purpose was &ldquo;to offer and provide health coverage to [their] employer members and their employees&rdquo; so long as there was &ldquo;at least one substantial business purpose&rdquo; unrelated to the provision of health care. 29 C.F.R. &sect; 2510.3-5(b)(1). The Final Rule also allowed sole proprietors to count as both employers and employees, such that they could satisfy ERISA&rsquo;s requirement that AHPs only offer health plans to employees.</div> <div> &nbsp;</div> <h2> Court&rsquo;s Decision</h2> <div> In striking down this rule, the Court ruled that the DOL had unreasonably interpreted ERISA and taken it beyond its focus on employer benefit plans to instead cover commercial insurance transactions between unrelated parties. The Court concluded that the 2018 Final Rule provided no meaningful limit on what associations needed to demonstrate to qualify as &ldquo;employers&rdquo; under ERISA, failed to show why geographic proximity was connected to common employer interest essential for coverage under ERISA, did not require members of associations to be sufficiently aligned, and allowed owners without any employees to &ldquo;absurdly&rdquo; count themselves as both employers and employees in order to suggest an employment relationship justifying coverage under ERISA. The Court found these interpretations were contrary to ERISA&rsquo;s text and purpose and, as a result, found the Final Rule was not a reasonable, or lawful, interpretation of ERISA.</div> <div> &nbsp;</div> <div> Citing to a severability provision in the Final Rule, the Court remanded the rule to the DOL to determine whether it could be saved without the invalidated provisions. To the extent the decision is not reversed on appeal, this decision will replace the restrictions on establishing AHPs under ERISA. It will, however, only impact a narrow subset of employers, as there was relatively little growth in AHPs following the DOL&rsquo;s Final Rule (perhaps due to many of them being subject to state MEWA regulations and thus burdensome to administer). Nonetheless this decision is significant as it reflects that nearly a decade after the passage of the ACA, the battle over what (if any provisions) of the law are lawful continues unabated.&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/CCD032919 Newly Proposed Legislation to Restrict Biometric Privacy Class Actions in Illinois https://www.seyfarth.com:443/publications/CCD032919 Fri, 29 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Although the Illinois Supreme Court&rsquo;s recent decision in Rosenbach v. Six Flags may have upped the ante for employers facing litigation under the Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;), a recent bill introduced in the Illinois Senate, SB2134, would remove plaintiffs&rsquo; right to bring private causes of action under Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;) and instead allow them to file a complaint with the Illinois Department of Labor (&ldquo;IDOL&rdquo;), and to be enforced by the DOL and the Illinois Attorney General.<br /> <br /> <a href="https://www.consumerclassdefense.com/2019/03/newly-proposed-legislation-to-restrict-biometric-privacy-class-actions-in-illinois/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE032919 Cintas Becomes First Employer to Reach 100 Certified OSHA VPP-Star Worksites https://www.seyfarth.com:443/publications/WSE032919 Fri, 29 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Cintas Corporation has recently become the first company to reach 100 sites with OSHA&rsquo;s Voluntary Protection Program (VPP) (Program) Star certification.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/cintas-becomes-first-employer-to-reach-100-certified-osha-vpp-star-worksites/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE032919a Commission Guides Employers In How To Avoid Multi-Employer Worksite And “Controlling Employer” Liability https://www.seyfarth.com:443/publications/WSE032919a Fri, 29 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Since it codified the Multi-Employer Worksite Doctrine twenty years ago, OSHA has routinely cited multiple employers at the same worksite for the same violations. The Multi-Employer Worksite Doctrine has allowed OSHA to extend liability to general contractors, host employers, staffing agencies, and anyone else who can be conceivably related to an employee accident or alleged safety hazard.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/commission-guides-employers-in-how-to-avoid-multi-employer-worksite-and-controlling-employer-liability/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC032919 Newly Proposed Legislation To Restrict Biometric Privacy Class Actions In Illinois https://www.seyfarth.com:443/publications/WC032919 Fri, 29 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Although the Illinois Supreme Court&rsquo;s recent decision in Rosenbach v. Six Flags may have upped the ante for employers facing litigation under the Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;), a recent bill introduced in the Illinois Senate, SB2134, would remove plaintiffs&rsquo; right to bring private causes of action under Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;) and instead allow them to file a complaint with the Illinois Department of Labor (&ldquo;IDOL&rdquo;), and to be enforced by the DOL and the Illinois Attorney General.<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/03/newly-proposed-legislation-to-restrict-biometric-privacy-class-actions-in-illinois/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM032919-LE Brexit: Parliament Rejects Withdrawal Agreement for the Third Time https://www.seyfarth.com:443/publications/OMM032919-LE Fri, 29 Mar 2019 00:00:00 -0400 <p> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site. </em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world. If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you. </em></p> <p> <em><strong>Seyfarth Synopsis:</strong> On March 29th, the day the UK was scheduled to exit the EU, Parliament rejected the Withdrawal Agreement for the third time. Following prior negotiations with the EU, the departure date is now set for April 12, 2019. This date may be delayed further if an alternative arrangement or extension is agreed upon. However, given the short timeframe, employers should prepare for a no-deal exit. </em></p> <p> <strong>What does the vote mean? </strong></p> <p> Earlier this week, Parliament debated eight alternatives to the current Withdrawal Agreement. The results of the indicative votes showed no consensus in Parliament for an alternative way forward.</p> <p> In a move to increase support for the Withdrawal Agreement, Theresa May announced that she would step down as Prime Minister if the deal were approved by March 29th. Although the margin of 58 votes was lower than the two previous defeats, her promise was not enough to sway a sufficient number of Members of Parliament (MPs) to back the Withdrawal Agreement.</p> <p> The UK government now has until April 12th to agree an alternative plan and may request a further extension to implement any such agreement. Otherwise, the withdrawal process moves ahead and the UK will exit the EU on April 12th in a no-deal scenario.</p> <p> <strong>UK Immigration: What is the impact? </strong></p> <p> The UK government had <a href="https://www.seyfarth.com/publications/MA013019-LE">previously stated</a> that the proposed EU Settlement Scheme will continue to be implemented in a no-deal scenario. If the UK government&rsquo;s position does not change, EU nationals who are resident in the UK by April 12th will qualify under those provisions. The EU Settlement scheme, previously available in a pilot test phase, should be fully operational on March 30th.</p> <p> The UK will continue to be a full member of the EU until April 12th. The immigration rights of EU nationals in the UK, and British nationals in the EU, will not change during until that time.</p> <p> The UK parliament will be debateing alternative arrangements next week to avoid a no-deal exit. If agreement can be reached, the UK government may negotiate a further extension. However, given the lack of consensus this week, employers are advised to prepare for a no-deal Brexit on April 12th.</p> <p> We will continue to monitor and report on developments in relation to Brexit as events unfold.</p> https://www.seyfarth.com:443/publications/CDL032919 Authenticating Digital Signatures at Trial https://www.seyfarth.com:443/publications/CDL032919 Fri, 29 Mar 2019 00:00:00 -0400 <p> One benefit of living in the digital age is that we no longer need to travel to our attorney&rsquo;s office to place a wet signature on an important contract or mortgage document. Parties now regularly execute multi-million dollar real estate transactions, non-competition agreements, and stock purchases, among other agreements, using digital signature applications. The most often used application, DocuSign, boasts that its solution enables you to electronically sign while meeting the requirements of the ESIGN Act and the Uniform Electronic Transactions Act in the United States, in addition to complying with most other laws in countries where electronic signatures are recognized.<br /> <br /> <a href="https://www.carpedatumlaw.com/2019/03/authenticating-digital-signatures-at-trial/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA032819-LE #MeToo Inspires Legislative Changes Across the United States https://www.seyfarth.com:443/publications/MA032819-LE Thu, 28 Mar 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> In response to the #MeToo movement, several states have passed legislation aimed at combatting workplace sexual harassment.&nbsp; These legislative measures range from banning non-disclosure provisions and mandatory, pre-dispute arbitration agreements, to requiring employers to provide anti-harassment training and distribute anti-harassment policies and information.&nbsp; Multi-jurisdictional private employers, especially those with employees in California, Connecticut, Delaware, Maine, Maryland, New Jersey, New York, Tennessee, Vermont, and Washington State should be aware of these laws, as they have significant implications for the workplace.</em></p> <p> It has been well over a year since #MeToo went viral.&nbsp; In response, several states ushered in sweeping legislative changes in 2018.&nbsp; Generally, these anti-harassment laws appear to be motived by two overarching goals: (1) increasing awareness about inappropriate workplace conduct and (2) ending what many have criticized to be a culture of silence surrounding workplace harassment.&nbsp; In furtherance of these goals, states have taken various approaches to these laws.&nbsp; For instance, some legislators have enacted laws that ban and/or void, under certain circumstances, non-disclosure agreements, mandatory pre-dispute arbitration agreements, and no re-hire provisions insofar as these provisions relate to harassment claims.&nbsp; Other legislators have enacted laws requiring employers to provide anti-harassment training, display posters, and distribute policies and information sheets, while at least one other state has imposed reporting obligations on employers with respect to harassment settlements.&nbsp; As such, while the below provides a brief overview of the new laws, this is not intended to give detailed guidance and private sector employers impacted by these laws should take further steps to ensure they are in compliance.&nbsp;</p> <p> <strong><em>Non-Disclosure Agreements</em></strong></p> <p> State legislatures in California, New Jersey, New York, Tennessee, Vermont, and Washington State have adopted various approaches for curtailing the use of non-disclosure agreements.&nbsp; A high level overview of the laws in these states is set out below.</p> <p> <em><u>California - Effective January 1, 2019</u></em><a href="#_ftn1" name="_ftnref1" title="">[1]</a> &nbsp;California passed three laws that, depending on the type of contract at issue, affect the use of non-disclosure provisions.</p> <p> <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB820">SB 820</a> affects agreements settling lawsuits or administrative complaints, and voids contractual provisions that would prevent a party from disclosing &ldquo;factual information&rdquo; related to a claim filed in that proceeding if the information is &ldquo;regarding&rdquo; sexual assault, sexual harassment, workplace harassment or discrimination based on sex, failure to prevent discrimination or harassment based on sex in the workplace, or retaliation for reporting discrimination or harassment based on sex in the workplace.&nbsp; However, if the claimant requests confidentiality, the parties may agree to prevent the disclosure of &ldquo;all facts&rdquo; that would lead to the discovery of the claimant&rsquo;s identity.&nbsp; Irrespective of preference, the &ldquo;amount paid&rdquo; to resolve any complaint may still be kept confidential.&nbsp;</p> <p> <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB3109">AB 3109</a> affects all contracts and voids provisions that prevent a party from testifying about alleged criminal conduct or sexual harassment when the party has been compelled or requested to do so by lawful process.</p> <p> <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1300">SB 1300</a> affects agreements for raises, bonuses, or new or continued employment, making it an unlawful employment practice to require an employee &ldquo;to sign a nondisparagement agreement or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.&rdquo;&nbsp;</p> <p> For a more detailed analysis of these new California laws, see Seyfarth&rsquo;s blog post <a href="https://www.calpeculiarities.com/2018/12/19/california-responds-to-metoo-three-new-laws-limit-contractual-confidentiality/">here</a>.</p> <p> <em><u>New Jersey - Effective March 18, 2019</u> &nbsp;</em>New Jersey&rsquo;s <a href="https://www.njleg.state.nj.us/2018/Bills/S0500/121_S2.PDF">S.B. 121</a>, provides that a &ldquo;provision in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment&rdquo; is against public policy and will be unenforceable against a current or former employee who is a party to the settlement or contract.&nbsp; The law permits an employee to enforce a non-disclosure provision in a settlement agreement against the employer, unless the employee &ldquo;publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.&rdquo;&nbsp; For a more thorough discussion of this New Jersey law, see Seyfarth&rsquo;s prior alerts <a href="https://www.seyfarth.com/publications/MA020519-LE">here </a>and <a href="https://www.seyfarth.com/publications/OMM031819-LE2">here</a>.&nbsp; Notably, New Jersey&rsquo;s law is significantly broader than other states&rsquo; laws as it affects all claims of discrimination, retaliation or harassment &mdash; not just sexual harassment.</p> <p> <em><u>New York - Effective July 11, 2018</u></em>&nbsp; In <a href="https://www.nysenate.gov/legislation/laws/CVP/5003-B">New York</a>, employers may not include non-disclosure provisions in settlement agreements resolving claims of sexual harassment, <strong><em>unless</em></strong> confidentiality is requested by the complainant.&nbsp; It is still permissible, however, to include a non-disclosure provision that prohibits disclosure of the settlement amount.&nbsp; If the complainant requests confidentiality, the terms of the confidentiality provision must first be provided to all parties in one, standalone agreement.&nbsp; The complainant then has 21 days to consider the terms (this consideration period cannot be waived or shortened), after which the confidentiality provision must be memorialized in the settlement agreement.&nbsp; The complainant then has 7 days to revoke the settlement agreement.&nbsp;</p> <p> <em><u>Tennessee - Effective May 15, 2018</u> &nbsp;</em><a href="https://advance.lexis.com/documentpage/?pdmfid=1000516&amp;crid=dc8c88ef-0e24-4d8b-9ba2-8aa08fcc4d29&amp;nodeid=ABYAABAABAAI&amp;nodepath=%2FROOT%2FABY%2FABYAAB%2FABYAABAAB%2FABYAABAABAAI&amp;level=4&amp;haschildren=&amp;populated=false&amp;title=50-1-108.+Non-disclosure+agreement+with+respect+to+sexual+harassment+in+workplace+as+condition+of+employment+prohibited.&amp;config=025054JABlOTJjNmIyNi0wYjI0LTRjZGEtYWE5ZC0zNGFhOWNhMjFlNDgKAFBvZENhdGFsb2cDFQ14bX2GfyBTaI9WcPX5&amp;pddocfullpath=%2Fshared%2Fdocument%2Fstatutes-legislation%2Furn%3AcontentItem%3A5SJC-2SR0-R03M-R2TG-00008-00&amp;ecomp=k357kkk&amp;prid=eb80743b-2aa9-431d-bafd-bd4efc1f9dd1">Tennessee&rsquo;s </a>law provides that an employer shall not require an employee or prospective employee to execute or renew a non-disclosure agreement with respect to sexual harassment in the workplace as a condition of employment.&nbsp; This law does not affect settlement agreements.</p> <p> <em><u>Vermont - Effective July 1, 2018</u> </em>&nbsp;Vermont enacted <a href="https://legislature.vermont.gov/Documents/2018/Docs/ACTS/ACT183/ACT183%20As%20Enacted.pdf">H. 707</a>, prohibiting employers from requiring any employee or prospective employee, as a condition of employment, to sign an agreement or waiver that prohibits, prevents, or restricts the employee or prospective employee from opposing, disclosing, reporting, or participating in an investigation of sexual harassment.&nbsp; Additionally, the law requires that certain language be included in agreements to settle a sexual harassment claim.&nbsp;</p> <p> <em><u>Washington State - Effective June 7, 2018</u></em> &nbsp;<a href="http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Session%20Laws/Senate/5996-S.SL.pdf">Washington State</a> passed S.B. 5996, which prohibits employers from requiring employees to &ldquo;sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring in the workplace&rdquo; as a condition of employment.&nbsp; Any such restriction is void and unenforceable.&nbsp; The law does not prohibit confidentiality provisions in settlement agreements.&nbsp; &nbsp;</p> <p> <strong><em>Mandatory, Pre-Dispute Arbitration Provisions &amp; Waivers of Other Substantive and Procedural Rights</em></strong></p> <p> Maryland, New Jersey, New York, Vermont, and Washington State have passed legislation that prohibits employers from requiring employees to waive certain substantive and procedural rights and remedies as a condition of employment.&nbsp; These prohibited waivers generally include mandatory, pre-dispute arbitration agreements, class action waivers, and jury trial waivers. &nbsp;While these laws are likely preempted by the Federal Arbitration Act, as discussed in more detail <a href="https://www.seyfarth.com/publications/MA102518-LE">here</a>, employers should be aware of them.</p> <p> Maryland&rsquo;s <a href="http://mgaleg.maryland.gov/2018RS/chapters_noln/Ch_738_hb1596E.pdf">Disclosing Sexual Harassment in the Workplace Act</a>, effective October 1, 2018 (and set to expire absent legislative action on June 30, 2023) provides that &ldquo;any provision in an employment contract, policy, or agreement&rdquo; that waives any &ldquo;substantive or procedural right or remedy to a claim that accrues in the future of sexual harassment or retaliation for reporting or asserting a right or remedy based on sexual harassment&rdquo; is null and void.&nbsp; Additionally, employers who attempt to enforce such a provision will be liable for the employee&rsquo;s reasonable attorneys&rsquo; fees and costs.&nbsp;</p> <p> New Jersey&rsquo;s <a href="https://www.njleg.state.nj.us/2018/Bills/S0500/121_S2.PDF">S.B. 121</a> makes provisions in employment contracts unenforceable that &ldquo;waive[] any substantive or procedural right or remedy&rdquo; relating to a claim of discrimination, retaliation, or harassment.&nbsp; The legislation also creates a private right of action for employees who claim to be aggrieved by such a provision, and entitles a successful plaintiff to attorneys&rsquo; fees and costs.</p> <p> <a href="https://www.nysenate.gov/legislation/laws/CVP/7515">New York</a>&rsquo;s legislation prohibits employers from including in contracts with employees provisions that mandate pre-dispute arbitration of claims of sexual harassment.&nbsp; The law also declares null and void clauses in existing contracts that mandate arbitration of sexual harassment claims.&nbsp;</p> <p> <a href="https://legislature.vermont.gov/Documents/2018/Docs/ACTS/ACT183/ACT183%20As%20Enacted.pdf">Vermont</a>&rsquo;s legislation prohibits employers from requiring any employee or prospective employee, as a condition of employment, to sign an agreement or waiver that &ldquo;purports to waive a substantive or procedural right or remedy available to the employee with respect to a claim of sexual harassment.&rdquo; &nbsp;Any such provision will be void and unenforceable.&nbsp;</p> <p> <a href="http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Session%20Laws/Senate/6313-S.SL.pdf">Washington State</a>&rsquo;s law, SS B 6313, provides that a provision of an employment agreement is void and unenforceable &ldquo;if it requires an employee to waive the employee&rsquo;s right to publicly pursue a cause of action arising under [Washington State Human Rights laws] or federal antidiscrimination laws or to publicly file a complaint with the appropriate state or federal agencies, or if it requires an employee to resolve claims of discrimination in a dispute resolution process that is confidential.&rdquo;&nbsp; Notably, and similar to New Jersey, this law applies to all claims of discrimination, not just sexual harassment.&nbsp; &nbsp;&nbsp;</p> <p> <strong><em>No-Rehire Provisions</em></strong></p> <p> So far, Vermont is the only state that has enacted legislation prohibiting employers from inserting no re-hire provisions in settlement agreements resolving claims of sexual harassment.&nbsp;</p> <p> <strong><em>Training</em> </strong></p> <p> California, Connecticut,<a href="#_ftn2" name="_ftnref2" title="">[2]</a> and Maine have required training for some time, but both California and Maine updated their training laws in 2018.&nbsp; New York State, New York City, and Delaware passed new legislation in 2018.&nbsp;</p> <p> <em><u>California</u></em>&nbsp; While California has required certain employers to conduct interactive anti-sexual harassment training since 2005, in 2018, California passed <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1343">S.B. 1343</a>, and significantly amended its training requirements.&nbsp; Now, employers with 5 or more employees are required to provide at least 2 hours of interactive sexual harassment prevention training to all supervisory employees and at least 1 hour of such training to all non-supervisory employees, by January 1, 2020.&nbsp; Training must be provided once every 2 years thereafter.</p> <p> <em><u>Delaware</u></em> In August 2018, <a href="https://www.seyfarth.com/dir_docs/publications/HB-360-HS-1-Engrossment.pdf">H.B. 360</a> was passed, and it went into effect on January 1, 2019.&nbsp; Pursuant to the law, Delaware employers with 50 or more employees must provide interactive sexual harassment training to all employees.&nbsp; New employees must receive training within one year of hire, and current employees must receive training by January 1, 2020.&nbsp; Training must be repeated every two years.&nbsp;</p> <p> <em><u>Maine</u></em>&nbsp; Since 1991, <a href="http://legislature.maine.gov/statutes/26/title26sec807.html">Maine </a>has required that employers with 15 or more employees provide anti-sexual harassment training to new employees within 1 year of hire.&nbsp; In 2018, Maine updated its law to require employers use a <a href="https://www1.maine.gov/labor/labor_laws/publications/2017/SexualHarrassmentEducationandTraining.pdf">checklist </a>prepared by the Maine Department of Labor to develop their sexual harassment training programs.&nbsp; The checklist is a 1-page narrative defining sexual harassment and summarizing the substantive topics that each training must cover.</p> <p> <em><u>New York State and New York City</u></em> Pursuant to <a href="https://www.nysenate.gov/legislation/laws/LAB/201-G">Labor Law Section 201-g</a>, all employers in New York State must provide annual, interactive sexual harassment prevention training to all employees.&nbsp; Employers have until October 8, 2019 to complete the first year of training.&nbsp; The State has prescribed certain <a href="https://www.ny.gov/sites/ny.gov/files/atoms/files/MinimumStandardsforSexualHarassmentPreventionTraining.pdf">minimum substantive requirements</a> that each training must meet.&nbsp;&nbsp;&nbsp;</p> <p> In May 2018, New York City amended its <a href="https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354925&amp;GUID=D9986F4A-C3A9-4299-BAA8-5A1B1A1AD31E&amp;Options=&amp;Search=">Administrative Code</a> to require all employers with 15 or more employees provide annual, interactive, anti-sexual harassment training to all employees.&nbsp; New York City also requires training for independent contractors who have performed work in furtherance of the business for more than 90 days and more than 80 hours in a calendar year.&nbsp; New York City&rsquo;s law takes effect on April 1, 2019.&nbsp; For more detail about the New York State and City legislation, please refer to our prior alerts <a href="https://www.seyfarth.com/publications/MA051418-LE">here</a> and <a href="https://www.seyfarth.com/publications/MA100218-LE">here</a>.</p> <p> <strong><em>Written Notice and Policy Requirements</em></strong></p> <p> In addition to imposing training requirements, lawmakers in Delaware, New York State, and New York City have also passed legislation requiring that employers distribute to employees a sexual harassment information sheet or policy, or display a sexual harassment poster in the workplace.</p> <p> As of January 1, 2019, Delaware employers must distribute a <a href="https://dia.delawareworks.com/discrimination/documents/Delaware%20Sexual%20Harassment%20Notice.pdf?20181114">sexual harassment notice</a> to new employees at the commencement of employment and to current employees by July 1, 2019.</p> <p> Effective October 9, 2018, pursuant to <a href="https://www.nysenate.gov/legislation/laws/LAB/201-G">Labor Law Section 201-G</a>, all New York State employers must provide employees with a sexual harassment prevention policy and a complaint form.&nbsp; The State has prescribed <a href="https://www.ny.gov/sites/ny.gov/files/atoms/files/MinimumStandardsforSexualHarassmentPreventionPolicies.pdf">minimum standards</a> for the policy, and published a <a href="https://www.ny.gov/combating-sexual-harassment-workplace/employers">model policy and complaint form</a> on its website.</p> <p> As of September 6, 2018, all <a href="https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354924&amp;GUID=CF950C5F-988C-417F-A720-53451ADA064B&amp;Options=&amp;Search=">New York City</a> employers must conspicuously post a sexual harassment prevention poster (in <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Notice-8.5x11.pdf">English </a>and <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Notice8.5x14_spa-US_FINALVERSION.pdf">Spanish</a>) in employee common areas and distribute to new employees a sexual harassment prevention information sheet (in <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Factsheet.pdf">English </a>or <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Factsheet-Sp.pdf">Spanish</a>, depending on the employees preference).</p> <p> Other states, including California, Maine, Massachusetts, and Vermont, already had some sort of written notice requirement in place.&nbsp; <a href="https://govt.westlaw.com/calregs/Document/I97E9342CCF884FEBB68AE8EF2A888600?viewType=FullText&amp;originationContext=documenttoc&amp;transitionType=CategoryPageItem&amp;contextData=(sc.Default)">California </a>employers have been required to provide employees with a discrimination, harassment, and retaliation policy.&nbsp; This is in addition to the distribution of the Department of Fair Employment and Housing&rsquo;s <a href="https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/DFEH_SexualHarassmentPamphlet.pdf">brochure on sexual harassment</a>.&nbsp; <a href="http://legislature.maine.gov/statutes/26/title26sec807.html">Maine </a>requires all employers to post a sexual harassment <a href="https://www1.maine.gov/labor/labor_laws/publications/2017/SexualHarrassmentEducationandTraining.pdf">poster </a>and provide annual, written notice to employees.&nbsp; Massachusetts requires employers with 6 or more employees to adopt a written policy against sexual harassment (the State&rsquo;s model policy is available <a href="https://www.mass.gov/files/documents/2017/09/06/2112%20Model%20Sexual%20Harassment%20Policy.pdf?_ga=2.18071231.725331246.1549583869-1295346144.1548697505">here</a>).&nbsp; <a href="https://legislature.vermont.gov/statutes/section/21/005/00495h">Vermont </a>requires all employers to display a <a href="http://labor.vermont.gov/wordpress/wp-content/uploads/Sexual-Harassment-is-Illegal-Poster.pdf">poster</a> and distribute a policy against sexual harassment (Vermont has published a <a href="http://labor.vermont.gov/wordpress/wp-content/uploads/SEXUALHARASSMENTMODELPOLICY.pdf">model policy</a>).&nbsp;</p> <p> <strong><em>Reporting Obligations &amp; Expanded Government Oversight</em></strong></p> <p> Maryland&rsquo;s recently-enacted <a href="http://mgaleg.maryland.gov/2018RS/chapters_noln/Ch_738_hb1596E.pdf">Disclosing Sexual Harassment in the Workplace Act</a> requires employers with 50 or more employees to submit a survey to the Maryland Commission on Human Rights on or before July 1, 2020 and again on or before July 1, 2022.&nbsp; The survey must report: &nbsp;(1) the number of settlements made after an allegation of sexual harassment; (2) the number of times the employer paid settlements in reference to sexual harassment claims made against the same employee over the last 10 years; and (3) the number of sexual harassment settlements that contained non-disclosure provisions.&nbsp; The Commission will publish the aggregate results of the surveys on its website and submit an executive summary to the Governor.</p> <p> <a href="https://legislature.vermont.gov/Documents/2018/Docs/ACTS/ACT183/ACT183%20As%20Enacted.pdf">Vermont</a>&rsquo;s new law authorizes the Vermont Attorney General to enter and inspect any place of business or employment, question any person who is authorized by the employer to receive or investigate complaints of sexual harassment, and examine an employer&rsquo;s records, policies, procedures, and training materials related to the prevention of sexual harassment.&nbsp; The Attorney General, as a result of his investigation, may require the employer to provide annual training to all employees and/or to conduct an annual, anonymous working-climate survey.</p> <p> <strong>Employer Takeaway</strong></p> <p> Employers with employees in any of these jurisdictions should be aware of these new laws and ensure that they are in full compliance.&nbsp; Seyfarth attorneys are available to advise employers on any aspect of these laws.&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> Unless otherwise noted, effective dates are applicable to each state&rsquo;s laws throughout the alert.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Since 1993, Connecticut has required that employers with 50 or more employees provide supervisors with a 2-hour training at the commencement of employment and thereafter recommends that such training be updated every 3 years.&nbsp;</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/TS032819 Labor Unions, Advocacy Groups, and Academics Ask Federal Trade Commission to Issue Rules Banning Non-Competes https://www.seyfarth.com:443/publications/TS032819 Thu, 28 Mar 2019 00:00:00 -0400 <p> Academics and advocacy groups&mdash;including nonprofit organizations and several major labor unions&mdash;have filed a petition with the Federal Trade Commission asking the agency to initiate the rulemaking process and ban non-compete agreements. The petitioners advocate regulations &ldquo;to prohibit employers from presenting a non-compete clause to a worker (regardless of whether the worker is classified as an &lsquo;employee&rsquo; or an &lsquo;independent contractor&rsquo;), conditioning employment or the purchase of a worker&rsquo;s labor on the worker&rsquo;s acceptance of a non-compete clause, or enforcing, or threatening to enforce, a non-compete clause against a worker.&rdquo;<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/03/articles/restrictive-covenants/labor-unions-advocacy-groups-and-academics-ask-federal-trade-commission-to-issue-rules-banning-non-competes/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL032819 Domino’s To Ask Supreme Court To Consider Whether ADA Website/Mobile App Accessibility Lawsuits Violate Due Process https://www.seyfarth.com:443/publications/EL032819 Thu, 28 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Domino&rsquo;s Likely to File Petition for Certiorari from Ninth Circuit&rsquo;s Ruling in Robles v. Domino&rsquo;s.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/03/dominos-to-ask-supreme-court-to-consider-whether-ada-website-mobile-app-accessibility-lawsuits-violate-due-process/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT032819 The Week in Weed: March 29, 2019 https://www.seyfarth.com:443/publications/TBT032819 Thu, 28 Mar 2019 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/2019/03/the-week-in-weed-march-29-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CCD032819 Unanimous Supreme Court Ruling On the Fair Debt Collection Practices Act https://www.seyfarth.com:443/publications/CCD032819 Thu, 28 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: In a 9-0 Supreme Court ruling last week, the Court spoke to issues concerning the Fair Debt Collection Practices Act (FDCPA) and non-judicial foreclosures.<br /> <br /> <a href="https://www.consumerclassdefense.com/2019/03/unanimous-supreme-court-ruling-on-the-fair-debt-collection-practices-act/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM032819-LE Seyfarth Shaw Policy Matters Newsletter - March 28, 2019 https://www.seyfarth.com:443/publications/PM032819-LE Thu, 28 Mar 2019 00:00:00 -0400 <p> <strong>Paycheck Fairness Act Passes House.</strong> As predicted in last week&#39;s newsletter, the Paycheck Fairness Act (<a href="https://www.congress.gov/bill/116th-congress/house-bill/7?q=%7B%22search%22%3A%5B%22hr%207%22%5D%7D&amp;s=1&amp;r=1">H.R. 7</a>) passed the House on Wednesday.&nbsp; The vote was 242-187, with 7 Republicans voting&nbsp;in support.&nbsp; A variety of amendments were debated, with all Democrat amendments adopted and all Republican amendments defeated.&nbsp; One amendment marginally improved the bill by making clear that the expanded compensation reporting requirements would apply only to employers of 100 or more employees.&nbsp; A Motion to Recommit that would have capped attorney fees at 49 % of the underlying award was defeated, 191-236.&nbsp; Representative Stefanik (R-NY), along with 48 cosponsors, introduced an alternative bill, the Wage Equity Act (<a href="https://www.congress.gov/bill/116th-congress/house-bill/1935?q=%7B%22search%22%3A%5B%22hr%201935%22%5D%7D&amp;s=2&amp;r=1">H.R. 1935</a>), which would make narrow changes to the Equal Pay Act--including some limitations on the use of past wage history--but would allow a type of safe harbor from liquidated damages for employers who undertake a voluntary self-audit on pay--setting a useful precedent.&nbsp; As we&rsquo;ve noted previously, Seyfarth has been very involved in this legislative process and will remain so as the bill moves to the Senate.</p> <p> <strong>WHD Proposes Rule Amending Regular Rate Requirements.</strong> A week after officially publishing its proposal on the <a href="https://www.federalregister.gov/documents/2019/03/22/2019-04514/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and">minimum salary threshold</a> for the white-collar exemptions, the Wage &amp; Hour Division is back in the Federal Register.&nbsp; This week, WHD is <a href="https://www.federalregister.gov/documents/2019/03/29/2019-05687/regular-rate-under-the-fair-labor-standards-act">proposing to clarify</a> the requirements surrounding the calculation of the &ldquo;regular rate of pay,&rdquo; which is the rate on which overtime payments are based.&nbsp; WHD has not significantly revised these provisions in over 50 years, and plans to address the treatment of a number of benefits, perks, and similar payments.&nbsp; Comments to the proposed rule will be due on May 28, 2019.</p> <p> <strong>Dream Act Reintroduced.</strong> Senators Graham (R-SC) and Durbin (D-IL) reintroduced the Dream Act, <a href="https://www.congress.gov/bill/116th-congress/senate-bill/874?q=%7B%22search%22%3A%5B%22congressId%3A116%20AND%20billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&amp;r=55&amp;s=8">S. 874</a>.&nbsp; The text of the bill is not yet available, but Sen. Graham has described a prior version of the bill as &ldquo;allow[ing] immigrant students who grew up in the United States to earn lawful permanent residence and eventually American citizenship.&rdquo;&nbsp; Among other requirements, to qualify under the prior Dream Act, the individual must have entered the country prior to his or her 18th birthday and have maintained a continuous presence in the U.S. for the four years prior to enactment.</p> <p> <strong>Bicameral Introduction of Paid Parental Leave Alternative. </strong>Senators Rubio (R-FL) and Romney (R-UT) were joined by Representatives Wagner (R-MO) and Crenshaw (R-TX) in introducing the New Parents Act (<a href="https://www.congress.gov/bill/116th-congress/house-bill/1940">H.R. 1940</a>), which would permit parents of newborn or recently adopted children to draw on their Social Security benefits for up to three months.&nbsp; The benefits would be repaid by either delaying retirement or taking a proportional reduction of retirement benefits.&nbsp; As we discussed in prior editions, paid leave continues to be a hot topic on the Hill, with a wide variety of players seeking bipartisan support for their proposals.<br /> <br /> <strong>#MeToo Inspires Legislative Changes Across the Country.</strong> The #MeToo movement has brought a flurry of legislative activity at both the federal and state level.&nbsp; State legislatures, in particular, have been passing--and continue to pass--legislation targeted at workplace sexual harassment.&nbsp; Seyfarth has prepared an <a href="https://www.seyfarth.com/publications/MA032819-LE">overview</a> of the state level legislative developments, a number of which have been introduced (or are expected to be introduced) at the federal level.</p> <p> To subscribe to the Policy Matters weekly newsletter, <a class="cms-content-links" href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy">click here</a>.</p> https://www.seyfarth.com:443/news/masurvey032819 Seyfarth Releases 2019 Middle-Market M&A Survey https://www.seyfarth.com:443/news/masurvey032819 Thu, 28 Mar 2019 00:00:00 -0400 <p> <span style="font-size:14px;"><em>Annual SurveyBook Forecasts Another Active Seller-Friendly Year in 2019 </em></span></p> <p> Leading law firm Seyfarth Shaw LLP has published the 6th edition of its <em>Middle-Market M&amp;A SurveyBook of Key M&amp;A Deal Terms </em>(the<em> &ldquo;Survey&rdquo;</em>). The <em>Survey</em> analyzes over 160 middle-market (&lt;$1 billion) publicly available private target acquisition agreements signed in 2018. The <em>Survey</em> focuses on key deal terms comprising the &ldquo;indemnity package&rdquo; included in almost all private target acquisition agreements to address a seller&rsquo;s potential post-closing liability to a buyer and to set the parameters of a buyer&rsquo;s ability to claw back purchase price from a seller.</p> <p> Overall, general market sentiment indicates that 2019 will be another very active year for M&amp;A deals, and the data analyzed for this year&rsquo;s <em>Survey</em> suggests that the private target middle-market M&amp;A environment will likely continue its seller-friendly trend. The <em>Survey</em> authors expect &ldquo;add-on&rdquo; acquisition activity to comprise a high percentage of middle-market deal value in 2019 as private equity-backed platforms continue to grow their businesses and improve fund performance through add-on investments. A desire to expand geographically, diversify products and services, enhance technological capabilities and acquire talent (&ldquo;acqui-hiring&rdquo;) are anticipated to be key strategic drivers of M&amp;A activity in 2019.</p> <p> Given the substantial and continued growth in the use of representation and warranty (&ldquo;R&amp;W&rdquo;) insurance in private middle-market M&amp;A transactions, this year&rsquo;s <em>Survey</em> tracks data from deals that included R&amp;W insurance separately from deals where no R&amp;W insurance was utilized. More than 40% of the transactions reviewed for the <em>Survey</em> included R&amp;W insurance, representing an increase of greater than 10% from 2017. Buyers increasingly use R&amp;W insurance in acquisition proposals to make their bids more competitive and attractive to sellers. In 2018, the <em>Survey</em> also notes a growing number of &ldquo;no survival&rdquo; private target acquisitions, in which the buyer&rsquo;s only recourse for breaches of representations and warranties was to the R&amp;W insurance policy, or to an escrow related to the amount of the policy deductible, and then to the R&amp;W insurance policy.</p> <p> This year&rsquo;s <em>Survey</em> also considers the number of private target acquisition agreements that included &ldquo;fraud&rdquo; exceptions to certain limitations on buyers&rsquo; indemnification rights and remedies, such as caps and baskets, and whether and how &ldquo;fraud&rdquo; was defined across those transactions. Furthermore, the <em>Survey</em> reviews the governing law chosen by the parties to the 2018 private target acquisition agreements surveyed. As an additional reference tool for deal makers, the <em>Survey</em> includes a summary of important distinctions between Delaware and New York law on several key issues commonly addressed in private target acquisition agreements. New to this year&rsquo;s <em>Survey</em> is an M&amp;A forecast and spotlight on the Cannabis industry, an emerging area of investment in the United States. To view Seyfarth&rsquo;s 2019 <em>Middle-Market M&amp;A SurveyBook</em>, please visit <a href="http://seyfarth-ebooks.com/2019-MA-SurveyBook/" target="_blank">here</a>.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></p> <p> Martin Grego, Public Relations Manager (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> https://www.seyfarth.com:443/news/adaitmd032719 Seyfarth's ADA statistics referenced in IT Manager Daily https://www.seyfarth.com:443/news/adaitmd032719 Wed, 27 Mar 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in a March 27 story from IT Manager Daily, &quot;Is your website ADA-compliant? How IT can improve accessibility.&quot; According to Seyfarth, website accessibility lawsuits almost tripled last year: 2,258 were filed in federal court in 14 different states. You can read the <a href="http://www.itmanagerdaily.com/ada-compliant-accessibility/">full artcile here</a>.</p> https://www.seyfarth.com:443/publications/CP032719 Fraud In Your Healthcare Plan? It’s Probably There https://www.seyfarth.com:443/publications/CP032719 Wed, 27 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Employer subsidized healthcare is one of the largest cost centers for small and large businesses. This post provides a primer on what to do if you suspect that your healthcare costs are rising because your healthcare plan is under siege by fraudsters.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/03/27/fraud-in-your-healthcare-plan-its-probably-there/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS032719 Seyfarth Partners Erik Weibust and Jeremy Cohen Speak at AIPLA Trade Secret Summit in New York https://www.seyfarth.com:443/publications/TS032719 Wed, 27 Mar 2019 00:00:00 -0400 <p> Seyfarth Partners Erik Weibust and Jeremy Cohen participated in the American Intellectual Property Law Association&rsquo;s 2019 Trade Secret Law Summit on March 21 and 22 at American Express&rsquo;s corporate headquarters in New York. Erik serves as Vice Chair of the AIPLA&rsquo;s Trade Secret Committee and a member of the planning committee for the Summit, which addressed a range of topics related to trade secret protection across a wide array of industries. Erik spoke on a panel on Protection of Trade Secrets in the Social Media Era, alongside in-house counsel from Lockheed Martin and Hanzo. Jeremy spoke on a panel on Trade Secrets and Restrictive Covenants in the Financial Services Industry, which Erik moderated, along with counsel from Morgan Stanley Wealth Management and Brown Brothers Harriman. Approximately 80 attendees from across the country, comprised of in-house counsel, outside counsel, and government and judicial officials, took part in the Summit, including Seyfarth attorneys Kate Perrelli, Dawn Mertineit, and James Yu.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/03/articles/intellectual-property/seyfarth-partners-erik-weibust-and-jeremy-cohen-speak-at-aipla-trade-secret-summit-in-new-york/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT032719 Take it to the Limit https://www.seyfarth.com:443/publications/TBT032719 Wed, 27 Mar 2019 00:00:00 -0400 <p> As more states legalize medicinal and recreational marijuana use, the conversation about how to manage Driving Under the Influence (DUI) laws has become increasingly prevalent&ndash; in legal, law enforcement, prosecution, and government circles, amongst others.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/03/take-it-to-the-limit/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA032719-LE Massachusetts DFML Releases New Guidelines Providing Clarifying Information And Other Helpful Resources On Paid Family And Medical Leave In Advance Of Friday’s Issuance Of The Proposed Regulations https://www.seyfarth.com:443/publications/MA032719-LE Wed, 27 Mar 2019 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>While we await Friday&rsquo;s release of the revised, proposed Paid Family and Medical Leave (PFML) regulations, the Department of Family and Medical Leave yesterday posted on its website new toolkits for employers and workers, providing useful information including the mandatory workplace poster, contribution rate calculators, and other interactive tools and information to assist with planning for the July 1, 2019 implementation of the PFML Law.</em></p> <p> As we <a href="https://www.seyfarth.com/publications/MA062218-LE">previously reported</a> and <a href="https://www.seyfarth.com/publications/MA012419-LE">updated</a>, the new Department of Family and Medical Leave (DFML) will be publishing an updated version of the required proposed regulations for public comment this Friday, March 29, 2019. In advance of that release, the DFML yesterday posted on its <a href="https://www.mass.gov/orgs/department-of-family-and-medical-leave">website</a>&nbsp;new toolkits for employers and workers, providing useful information including the mandatory workplace poster, contribution rate calculators, and other interactive tools and clarifying information to assist with planning for the July 1, 2019 implementation of the PFML Law.</p> <p> We highlight a number of clarifying and other noteworthy pieces of information provided by the DFML below:</p> <ul> <li> <strong>Online Applications For Private Plan Exemption Available April 29th. </strong>The DFML announced that, beginning April 29th, employers &ldquo;already providing&rdquo; paid leave benefits to their workforce may apply online through MassTaxConnect for an exemption from collecting, remitting, and paying contributions to the public Trust Fund. To be approved, the benefits offered must be greater than or equal to the benefits provided by the PFML Law and must not cost employees more than they would be required to contribute to the State plan. <ul> <li> At this time, it is unclear if the DFML intentionally limited the current application to employers &ldquo;already providing&rdquo; such paid leave benefits or if applications for approval of new private plans will also be accepted as of April 29th, as the PFML Law and draft regulations permit applications for approval of any private plan providing equal or greater benefits. Stay tuned for further clarification.</li> <li> Employers applying for an exemption will receive an immediate approval or denial of exemption. If the exemption is approved, an employer will be asked to upload a copy of the plan. If the exemption is denied, the employer will be notified why it was denied, and if it disagrees&nbsp;with the basis for denial, the employer may request a follow-up review.</li> <li> The DFML provides further details of the minimum features a private plan must contain to be approved. To qualify for an exemption, a private plan must provide the following to all employees for either family leave or medical leave, or both: <ul> <li> All employees (full-time, part-time, permanent, and seasonal/temporary) must be eligible for the given leave benefits;</li> <li> A weekly paid benefit amount that is greater than or equal to the benefit provided by the public PFML program, for a number of weeks greater than or equal to the number of weeks required by the PFML Law;</li> <li> Job protection while the employee is on qualified leave;</li> <li> Continued employer contributions to employment-related 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 qualified leave;</li> <li> Leave may be taken intermittently or on a reduced leave schedule, with the weekly benefit amount being prorated; and</li> <li> The plan must specifically state that all presumptions shall be made in favor of the availability of leave and the payment of leave benefits.</li> </ul> </li> </ul> </li> <li> <strong>July 1, 2019 Commencement Of Payroll Deductions. </strong>Beginning July 1, 2019, unless receiving an approved exemption for a private plan, all Massachusetts employers will be required to commence payroll deductions to cover worker contributions from employees&rsquo; wages and from payments for services to covered 1099-MISC contractors (where 1099-MISC contractors make up 50% or more of the workforce). <ul> <li> Contributions to the public Trust Fund will be remitted at an initial contribution rate of 0.63% on the first $132,900&nbsp;of an individual&rsquo;s annual earnings (this figure may be adjusted annually). The 0.63% contribution rate is split between a 0.52% medical leave contribution and a 0.11% family leave contribution.</li> <li> Employers with 25 or more covered workers within Massachusetts must remit the entire 0.63% contribution to the Trust Fund. Such employers may deduct 100% of the 0.11% family leave contribution from employees and covered contractors and up to 40% of the 0.52% medical leave contribution (<em>i.e.</em> 0.21%) from employees and covered contractors. Such employers must pay an employer share of at least 60% of the 0.52% medical leave contribution (<em>i.e.</em> 0.31%).</li> <li> Employers with fewer than 25 covered workers within Massachusetts do not have to pay the employer share of the medical leave contribution, nor do they have to remit that share to the Trust Fund. Such employers need only remit to the Trust Fund the remaining 40% employee share of the medical leave contribution and 100% of the employee&rsquo;s family leave contribution, all of which may be deducted from the wages of employees and the earnings of covered contractors.</li> <li> In the worker toolkit, the DFML provides a helpful breakdown for workers regarding their maximum contributions, explaining that for every $100 a worker earns (up to the maximum $132,900 annually), $0.32 will be deducted from the worker for the covered&nbsp;contribution share. This will consist of $0.11 to cover the family leave contribution, and $0.21 to cover the worker&rsquo;s share of the medical leave contribution (employers with 25 or more covered workers will contribute $0.31 for every $100 to cover the employer&rsquo;s share of the medical leave contribution).</li> </ul> </li> <li> <strong>Quarterly Reports Beginning In October 2019. </strong>All employers will&nbsp;be required to file quarterly reports (including wages paid or other payments for services) through&nbsp;MassTaxConnect beginning in October 2019. Reporting and documentation guidelines will be announced prior to July 1, 2019.</li> <li> <strong>Employer Contributions To Trust Fund To Start October 31, 2019. </strong>While payroll deductions from workers will commence July 1st, employers will not remit the quarterly contributions to the Trust Fund for the July-September quarter until October 31st. Quarterly contributions will be submitted&nbsp;through the Massachusetts Department of Revenue&rsquo;s MassTaxConnect system.</li> <li> <strong>July 1, 2019 Mandatory Workplace Poster Requirements. </strong>The DFML has clarified that the mandatory workplace posting requirement will take effect July 1, 2019, and the DFML released online its new mandatory poster: <strong><a href="https://www.mass.gov/doc/paid-family-and-medical-leave-mandatory-workplace-poster/download">Paid Family and Medical Leave mandatory workplace poster</a></strong>. This poster or an otherwise approved poster must be posted at the workplace in a location where it can be easily read. The poster&nbsp;must be available in English and each language which is the primary language of 5 or more individuals in the workforce (if such translations are made available from the DFML).</li> <li> <strong>July 1, 2019 Written Notice To Workers. </strong>According to the DFML, beginning July 1st, employers also will be required to notify their workforce about the State&rsquo;s PFML program. Employers must provide W2 employees written notice of contributions, benefits, and workforce protections; and issue this notice to each new employee within 30 days of their first day of employment. The notice must be written in the employee&rsquo;s primary language. Employers must obtain from each employee a written statement acknowledging receipt of the notice or a statement indicating the employee&rsquo;s refusal to acknowledge the notice. This notice must contain:</li> <li> An explanation of the availability of family and medical leave benefits;</li> <li> The employee&rsquo;s contribution amount and obligations;</li> <li> The employer&rsquo;s contribution amount and obligations;</li> <li> The employer&rsquo;s name and mailing address;</li> <li> The employer identification number assigned by the DFML;</li> <li> Instructions on how to file a claim for family and medical leave benefits; and</li> <li> The mailing address, email address, and telephone number of the DFML.</li> </ul> <p style="margin-left:.25in;"> A similar written notice must be issued to each Massachusetts 1099-MISC contractor who provides services to the company, when entering into a contract for services. The notice must be written in the contractor&rsquo;s primary language and contain similar information, including an explanation of the availability of family and medical leave benefits and the procedures for self-employed individuals to become covered individuals.</p> <ul> <li> <strong>Covered Individuals&rsquo; Earnings Eligibility Requirements. </strong>The DFML clarified the earnings eligibility requirement (adopted from the unemployment benefits law) for any individual who wants to take paid leave under the law. Before applying for benefits, an individual must have: <ul> <li> Approximately 15 weeks or more of earnings within the Commonwealth; and</li> <li> Earned at least $4,700 in the previous 12 months within the Commonwealth.</li> </ul> </li> <li> <strong>Contributions Calculator And Other Resources. </strong>In its employer toolkit, the DFML provides links to a number of helpful resources, including a contributions calculator for employers to calculate their estimated PFML contributions. The DFML also provides an interactive tool for determining if an employer is responsible for the employer share of the medical leave contributions by determining whether the employer has 25 or more covered individuals (including employees and 1099-MISC contractors when more than 50% of the workforce consists of 1099-MISC contractors). The site also includes a link for employers to register with MassTaxConnect.</li> <li> <strong>2021 Commencement Of Paid Leave Benefits. </strong>As previously reported, the starting dates for paid leave benefits claims (up to $850 per week) are as follows: <ul> <li> On January 1, 2021, covered employees and covered contractors can begin claiming benefits for bonding with a child or newborn; service-member related events; and dealing with the employee&rsquo;s own serious health condition; and</li> <li> On July 1, 2021, covered employees and covered contractors can begin claiming benefits to care for a family member with a serious health condition.</li> </ul> </li> </ul> <p> The DFML&rsquo;s newly posted information contains substantial information regarding the above items and more. We encourage you to review these resources. The DFML will be issuing the updated, proposed regulations for public comment this Friday, March 29th. The final regulations will take effect July 1, 2019. We will report on the updated, proposed regulations promptly. You may also join us for an interactive webinar on these developments next Wednesday, April 3rd at 1:00 p.m. EST by registering <a href="https://www.seyfarth.com/events/Webinar-040319LE">here</a>.</p> https://www.seyfarth.com:443/publications/Employment-Tip-Series-032719 Why Pharmaceutical, Biotech, and Life Science Clients with a Massachusetts Presence Should Consider Rolling Out an Arbitration Agreement—With a Class Action Waiver https://www.seyfarth.com:443/publications/Employment-Tip-Series-032719 Wed, 27 Mar 2019 00:00:00 -0400 <p> <strong>Employment Tips for the Pharmaceutical, Biotech, and Life Science Industries</strong></p> <hr /> <p> Seyfarth is commencing a series which will contain short legal tips and tricks for our pharmaceutical, biotech, and life science clients. If you have a topic that you would like to see covered, please send your suggestion to <a href="mailto:pharma@seyfarth.com">pharma@seyfarth.com</a>.</p> <p> <strong>Tip #1:<em>&nbsp;Why Pharmaceutical, Biotech, and Life Science Clients with a Massachusetts Presence Should Consider Rolling Out an Arbitration Agreement&mdash;With&nbsp;a Class Action Waiver</em></strong></p> <p align="center"> <a href="https://www.seyfarth.com/dir_docs/publications/Employment_Tip_Series_030719.pdf"><img alt="Click Here" border="0" height="100" src="http://marketing.seyfarth.com/reaction/images/buttons/Pharma-Click_Here.jpg" width="100" /></a></p> <p> Learn more about our&nbsp;<a href="https://www.seyfarth.com/Pharmaceuticals-Life-Sciences">Pharmaceuticals and Life Sciences</a> practice.</p> https://www.seyfarth.com:443/publications/EL032619 It’s Not A Choice – The DOL Emphasizes That Employers Must Designate FMLA Leave When It Applies https://www.seyfarth.com:443/publications/EL032619 Tue, 26 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The Department of Labor issues an opinion letter clarifying that employers must promptly designate FMLA leave, regardless of the availability of paid leave.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/03/its-not-a-choice-the-dol-emphasizes-that-employers-must-designate-fmla-leave-when-it-applies/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE032619 Commission Decisions Confirm that Employers Must Take Action to Protect Employees from Workplace Violence https://www.seyfarth.com:443/publications/WSE032619 Tue, 26 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: In recent decisions&mdash;including Secretary of Labor v. Integra Health Management, Inc., No. 13-1124 (OSHRC Mar. 4, 2019)&mdash;the Occupational Safety and Health Review Commission (OSHRC) has upheld violations of the General Duty Clause where employers failed to adequately address workplace violence hazards.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/workplace-violence/commission-decisions-confirm-that-employers-must-take-action-to-protect-employees-from-workplace-violence/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/hendersonbloombergenvironment032619 Joshua Henderson quoted in Bloomberg Environment https://www.seyfarth.com:443/news/hendersonbloombergenvironment032619 Tue, 26 Mar 2019 00:00:00 -0400 <p> Joshua Henderson was quoted in a March 26 story from Bloomberg Environment, &quot;Wildfire Season Planning Includes Guarding Against Toxic Smoke.&quot; Henderson said that companies do appear concerned about how best to respond to wildfire smoke.</p> https://www.seyfarth.com:443/news/grossenbacherbloomberglaw032619 Karla Grossenbacher quoted in Bloomberg Law https://www.seyfarth.com:443/news/grossenbacherbloomberglaw032619 Tue, 26 Mar 2019 00:00:00 -0400 <p> Karla Grossenbacher was quoted in a March 26 story from Bloomberg Law, &quot;States Wanted to Snoop on Contractors, but Plans Are Stalling.&quot; Grossenbacher said that if the software is being used as a time-keeping mechanism, that&rsquo;s a problem if you&rsquo;re not considered as working unless it&rsquo;s being done on your computer.</p> https://www.seyfarth.com:443/news/jutkowitzce032519 Stanley Jutkowitz quoted in Chief Executive https://www.seyfarth.com:443/news/jutkowitzce032519 Mon, 25 Mar 2019 00:00:00 -0400 <p> Stanley Jutkowitz was quoted in a March 25 story from Chief Executive, &quot;Best Practices For CEOs Navigating Marijuana Law.&quot; Jutkowitz said that people are going to have to go through a few years of court battles and uncertainty before we get any definitive standards. You can read the <a href="https://chiefexecutive.net/best-practices-for-ceos-navigating-marijuana-law/">full article here</a>.</p> https://www.seyfarth.com:443/publications/WSE032519 NIOSH Releases Behind the Wheel at Work Newsletter on Motor Vehicle Safety https://www.seyfarth.com:443/publications/WSE032519 Mon, 25 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its Behind the Wheel at Work Newsletter with the &ldquo;latest news from the NIOSH Center for Motor Vehicle Safety.&rdquo;<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/niosh-releases-behind-the-wheel-at-work-newsletter-on-motor-vehicle-safety/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS032519 Webinar Recap! Protecting Confidential Information and Client Relationships in the Financial Services Industry https://www.seyfarth.com:443/publications/TS032519 Mon, 25 Mar 2019 00:00:00 -0400 <p> In Seyfarth&rsquo;s second installment in its 2019 Trade Secrets Webinar Series, Seyfarth attorneys J. Scott Humphrey and Marcus Mintz focused on trade secret and client relationship considerations in the banking and financial services industry.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/03/articles/trade-secrets/webinar-recap-protecting-confidential-information-and-client-relationships-in-the-financial-services-industry-6/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/maatmanbna032219 Gerald Maatman quoted in Bloomberg BNA https://www.seyfarth.com:443/news/maatmanbna032219 Fri, 22 Mar 2019 00:00:00 -0400 <p> Gerald Maatman was quoted in a March 22 story from Bloomberg BNA, &quot;Franchisers Ask EEOC for Anti-Harassment Guidance Post #MeToo,&quot; on employer best practices. Maatman said that franchisers can also toe the line by educating and suggesting policies, versus dictating and enforcing mandates.</p> https://www.seyfarth.com:443/news/tymanshrm032219 Annette Tyman quoted in SHRM https://www.seyfarth.com:443/news/tymanshrm032219 Fri, 22 Mar 2019 00:00:00 -0400 <p> Annette Tyman was quoted in a March 22 story from SHRM, &quot;Employers: Start Planning How to Pull Pay Data for EEO-1 Reports.&quot; Tyman said that employers should start thinking about how they would comply. She said that, for some employers, this is going to be a monumental task. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/start-planning-how-to-pull-pay-data-for-eeo-1-reports.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/ssawght032119 Seyfarth Shaw at Work's Survey referenced in the Grand Haven Tribune https://www.seyfarth.com:443/news/ssawght032119 Thu, 21 Mar 2019 00:00:00 -0400 <p> Seyfarth Shaw at Work&#39;s survey was referenced in a March 21 story from the Grand Haven Tribune, &quot;March Madness at work.&quot; A survey by Seyfarth Shaw at Work found that March Madness ranked third among tech-related office distractions, behind texting and Facebook. You can read the <a href="https://www.grandhaventribune.com/Business/2019/03/21/Marching-with-March-Madness">full article here</a>.</p> https://www.seyfarth.com:443/news/adab2c032119 Seyfarth's ADA statistics referenced in Bussiness2Community https://www.seyfarth.com:443/news/adab2c032119 Thu, 21 Mar 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in a March 21 story from Bussiness2Community, &quot;ADA Compliance &amp; Website Accessibility: Dangers of Non-Compliance.&quot; According to a report in Seyfarth&#39;s ADA Title III News and Insights Blog, between January 2015 and August 2017, there have been at least 751 ADA website compliance lawsuits filed &ndash; with 432 of them coming in 2017. You can read the <a href="https://www.business2community.com/web-design/ada-compliance-website-accessibility-dangers-of-non-compliance-02180535">full article here</a>.</p> https://www.seyfarth.com:443/publications/WC032119 SCOTUS Opines on Article III Standing — More than a Statutory Violation is Needed https://www.seyfarth.com:443/publications/WC032119 Thu, 21 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On March 20, 2019, in Frank, et al. v. Gaos, No. 17-961, 2019 WL 1264582 (U.S. Mar. 20, 2019), the U.S. Supreme Court held that the Article III standing preconditions to federal court litigation, as described in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), will not be undermined. The ruling is important for any corporate counsel involved in defending class actions and in negotiating the resolution of such litigation.<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/03/scotus-opines-on-article-iii-standing-more-than-a-statutory-violation-is-needed/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA032119 Domino’s To Ask Supreme Court To Consider Whether ADA Website/Mobile App Accessibility Lawsuits Violate Due Process https://www.seyfarth.com:443/publications/ADA032119 Thu, 21 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Domino&rsquo;s Likely to File Petition for Certiorari from Ninth Circuit&rsquo;s Ruling in Robles v. Domino&rsquo;s.<br /> <br /> <a href="https://www.adatitleiii.com/2019/03/dominos-to-ask-supreme-court-to-consider-whether-ada-website-mobile-app-accessibility-lawsuits-violate-due-process/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CCD032119 SCOTUS Opines on Article III Standing — More than a Statutory Violation is Needed https://www.seyfarth.com:443/publications/CCD032119 Thu, 21 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On March 20, 2019, in Frank, et al. v. Gaos, No. 17-961, 2019 WL 1264582 (U.S. Mar. 20, 2019), the U.S. Supreme Court held that the Article III standing preconditions to federal court litigation, as described in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), will not be undermined. The ruling is important for any corporate counsel involved in defending class actions and in negotiating the resolution of such litigation.<br /> <br /> <a href="https://www.consumerclassdefense.com/2019/03/scotus-opines-on-article-iii-standing-more-than-a-statutory-violation-is-needed/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP032119 You’ve Got An Internal Sexual Harassment Complaint: Now What? https://www.seyfarth.com:443/publications/CP032119 Thu, 21 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: It is important for companies to investigate internal sexual harassment complaints and take prompt, appropriate corrective action. This post provides a six-step roadmap of best practices for handling sexual harassment complaints.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/03/21/youve-got-an-internal-sexual-harassment-complaint-now-what/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CONS032119 The Supreme Court Holds Argument in Cochise Consultancy https://www.seyfarth.com:443/publications/CONS032119 Thu, 21 Mar 2019 00:00:00 -0400 <p> On March 19, 2019, Seyfarth&rsquo;s Anthony LaPlaca and Teddie Arnold witnessed oral argument at the U.S. Supreme Court in a government contracts case that has major implications for future enforcement of the federal False Claims Act (FCA).[1] In Cochise Consultancy, the Court is asked to interpret the FCA&rsquo;s statutes of limitations, which govern the time frame in which the government may initiate a civil false claim suit against a contractor.[2] While the Court will likely consider the case for several months before it issues any decision, the questions posed at oral argument seem to hint at how it will ultimately decide the issue.<br /> <br /> <a href="https://www.constructionseyt.com/2019/03/the-supreme-court-holds-argument-in-cochise-consultancy/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT032119 The Week in Weed: March 22, 2019 https://www.seyfarth.com:443/publications/TBT032119 Thu, 21 Mar 2019 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/03/the-week-in-weed-march-22-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM032119-LE Seyfarth Shaw Policy Matters Newsletter - March 21, 2019 https://www.seyfarth.com:443/publications/PM032119-LE Thu, 21 Mar 2019 00:00:00 -0400 <p> <strong>More Labor &amp; Employment House Hearings Scheduled.</strong> The House Education &amp; Labor Committee is keeping its foot on the hearing pedal. Next week, it has three hearings scheduled, two of which address labor issues. The <a href="https://edlabor.house.gov/hearings/protecting-workers-right-to-organize-the-need-for-labor-law-reform">first</a>, on Tuesday, March 26, is on &ldquo;Protecting Workers&rsquo; Right to Organize: The Need for Labor Law Reform.&rdquo; The <a href="https://edlabor.house.gov/hearings/innovations-in-expanding-registered-apprenticeship-programs_">second</a>, on March 27, is on &ldquo;Innovations in Expanding Registered Apprenticeship Programs.&rdquo; We&rsquo;ll report on the hearings in next week&rsquo;s edition.</p> <p> <strong>President&rsquo;s Proposed Budget Cuts NLRB and EEOC.</strong> Earlier this week, the White House released an <a href="https://www.whitehouse.gov/wp-content/uploads/2019/03/oia-fy2020.pdf">appendix</a> containing (among other things) the proposed budgets for the National Labor Relations Board and the Equal Employment Opportunity Commission. Under the proposal, the NLRB&rsquo;s funding would be cut by 12 percent, and the <a href="https://www1.eeoc.gov/eeoc/plan/2020budget.cfm?renderforprint=1">EEOC</a> would be cut by six percent. Congress, of course, will ultimately pass (or not pass) the FY2020 budget for the entire federal government.</p> <p> <strong>WHD Issues New Opinion Letters.</strong> Last week, the Department of Labor&rsquo;s Wage &amp; Hour Division issued three new opinion letters. WHD addressed the obligation to <a href="https://www.dol.gov/whd/opinion/FMLA/2019/2019_03_14_1A_FMLA.pdf">designate FMLA-qualifying leave</a> and a prohibition on expanding FMLA leave, wage and recordkeeping requirements for <a href="https://www.dol.gov/whd/opinion/FLSA/2019/2019_03_14_01_FLSA.pdf">residential janitors</a>, and the <a href="https://www.dol.gov/whd/opinion/FLSA/2019/2019_03_14_02_FLSA.pdf">compensability of time</a> spent participating in employer-sponsored community service events. WHD is committed to answering opinion letters, which continue to be an excellent vehicle for employers to obtain clarity on a variety of questionable practices under the FLSA and FMLA.</p> <p> <strong>Cities and States Keep Getting in on the Action.</strong> With relative federal inactivity on the labor and employment legislative front, states&mdash;and even cities&mdash;have been identifying opportunities to jump in. The Maryland legislature recently passed&mdash;with veto-proof majorities&mdash;a bill that would increase the state&#39;s hourly minimum wage to $15 (up from the current $10.10). The City of Cincinnati passed a <a href="https://www.seyfarth.com/publications/MA031919-LE">salary history ban</a> ordinance, which would also require that employers provide some job applicants the &ldquo;pay scale&rdquo; associated with the job for which they are applying. And the Washington (state) Senate passed a bill that would partially ban non-compete agreements. For a comprehensive look at the Washington bill, part of an increasing trend of non-compete bans, <a href="https://www.tradesecretslaw.com/2019/03/articles/noncompete-enforceability/washington-state-lawmakers-seek-to-partially-ban-non-competes/">see Seyfarth&#39;s Trading Secrets blog</a>.</p> <p> <strong>New EEO-1 Form Back?</strong> Although thought dead by most, the U.S. District Court for D.C., issued a ruling March 4 reinstating the revised EEO-1 Report which had been stayed by the Office of Management and Budget. Nevertheless, on Feb. 1, the EEOC opened its portal tentatively indicating that submissions under the old EEO-1 form would be acceptable, subject to further review. In response, the National Women&rsquo;s Law Center filed a request with the Court to discuss whether EEOC was incompliance with the Court&rsquo;s order. EEOC has until April 3 to respond. Seyfarth held a <a href="https://www.seyfarth.com/events/Webinar-031819LE">webinar</a> on Monday, March 18, to bring employers up to speed on compliance with the new EEO-1 form and <a href="https://www.seyfarth.com/publications/MA031919-LE2">issued an alert</a> summarizing the situation. It should be emphasized that given the tenor of the proceedings and the Court&rsquo;s opinion, we believe that employers <strong>should begin preparations to comply with the new form</strong>.</p> <p> <strong>Paycheck Fairness Act.</strong> The House is now expected to take up the Paycheck Fairness Act this following Wednesday. The Act would radically restructure the Equal Pay Act to make it virtually impossible for employers to defend legitimate pay differentials and adds unlimited punitive and compensatory damages to the existing remedies under the Act--even without a showing of intent. Multiple amendments have been filed with the House Rules Committee, but as of today, we do not know which will be made in order. As previously noted, Seyfarth <a href="https://www.seyfarth.com/publications/MA021419-LE">testified</a> on the legislation and will continue to be closely involved as this misguided legislation progresses.</p> <p> To subscribe to the Policy Matters weekly newsletter, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy">click here</a>.</p> https://www.seyfarth.com:443/publications/MA032019-LE Keep On Truckin’: Strategies for Managing Wage and Hour Risks with Transportation Contractors After New Prime, Inc. v. Oliveira https://www.seyfarth.com:443/publications/MA032019-LE Wed, 20 Mar 2019 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong> <em>In January, the Supreme Court unanimously ruled in New Prime Inc. v. Oliveira that the Federal Arbitration Act&rsquo;s (&ldquo;FAA&rdquo; or the &ldquo;Act&rdquo;) exclusion for transportation workers engaged in interstate commerce applied not just to employees, but also to independent contractors. This ruling got the attention of those within the transportation and logistics industry, many of whom have longstanding mandatory arbitration programs with their independent contractors. While the FAA no longer provides a mechanism for enforcing mandatory arbitration agreements with transportation contractors, there are a number of strategies that can be implemented to ensure the enforceability of arbitration programs and minimize the risk of nationwide class or collective actions.</em></p> <p> <strong>The <em>New Prime</em> Decision</strong></p> <p> The Supreme Court has repeatedly held that the FAA reflects a liberal federal policy favoring arbitration agreements. Section 1 of the FAA, however, provides a narrow exception for &ldquo;contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.&rdquo; In recent years, much debate has turned on whether the phrase &ldquo;contracts of employment&rdquo; extends to independent contractor agreements or if the Section 1 exclusion only applies to transportation employees engaged in interstate commerce. In January 2019, the Supreme Court decisively resolved the debate with an 8-0 decision (Justice Kavanaugh recused) in <em>New Prime Inc. v. Oliveira</em>.</p> <p> Before examining the meaning of the word &ldquo;employment,&rdquo; the Supreme Court first considered whether the applicability of the Section 1 exclusion was a question for the court or arbitrator. The Supreme Court concluded that the question of whether the contract triggers FAA&rsquo;s coverage was an &ldquo;antecedent determination&rdquo; for the Court to make and was not delegable to an arbitrator.</p> <p> The Court then turned to whether &ldquo;contracts of employment&rdquo; applies to independent contractors as well as traditional employees. After much discussion about the meaning and usage of the term &ldquo;employment&rdquo; in 1925 when the FAA was enacted, the Supreme Court concluded that employment was essentially a synonym for work at that time. Although the Court acknowledged the evolution of the terminology over time, it ultimately concluded that Congress&rsquo;s use of the term &ldquo;workers&rdquo; as opposed to &ldquo;employees&rdquo; or &ldquo;servants&rdquo; meant a broader interpretation was intended and Section 1 extended to independent contractors.</p> <p> <strong>What Should Transportation and Logistics Companies Do Now</strong></p> <p> The <em>New Prime</em> decision presents a bump in the road for transportation and logistics companies who want to include arbitration and class action waivers in their services contracts. But with proper navigation, <em>New Prime</em> should not serve as an absolute bar to enforcing mandatory arbitration agreements with transportation workers. Below we offer strategies for logistics and transportation industry companies to preserve their arbitration agreements and otherwise protect against crippling nationwide class and collective actions.</p> <p> <strong>Rely on State Arbitration Laws&mdash;But Choose the Right Ones</strong></p> <p> To be sure, <em>New Prime</em> prevents a court from relying on the FAA as a mechanism for enforcing an arbitration agreement involving transportation workers. Critically, however, neither <em>New Prime</em> nor the FAA actually prohibits private arbitration of disputes involving transportation workers. Courts should still enforce agreements to arbitrate under state arbitration laws. It is good news then that all 50 states have arbitration laws empowering courts to stay a judicial proceeding and enforce an agreement to arbitrate. The majority of states have adopted some version of the Uniform Arbitration Act or the Revised Uniform Arbitration Act, neither of which includes an exemption for transportation workers. These state arbitration laws therefore provide a basis for enforcing arbitration agreements that is independent of the FAA.</p> <p> The plaintiffs&rsquo; bar may try to thwart reliance on state arbitration laws by arguing they are preempted by the FAA. The FAA, however, only preempts state arbitration laws that put arbitration agreements on unequal footing with other contracts and impose special restrictions on them or that apply a general doctrine (such as duress and unconscionability) in a way that disfavors arbitration. State arbitration laws that are broader than the FAA are permissible in the same way that state overtime laws that are more protective are not preempted by the FLSA.</p> <p> When selecting the applicable state arbitration law for an arbitration agreement involving transportation workers, beware of potential choice-of-law principles that could impact a court&rsquo;s decision. Moreover, as we have seen in the wake of <em>Epic Systems v. Lewis</em>, expect challenges to enforcement on public policy and unconscionability grounds. It is also worth noting that many state laws (for example, Kansas, Kentucky, Louisiana, and New Hampshire) explicitly exempt contracts between employers and employees. While such exclusions would normally be preempted by the FAA, the FAA&rsquo;s exclusion of transportation workers will limit the FAA&rsquo;s preemptive effect, at least as to employees. However, because these state arbitration laws do not have similar exclusions for independent contractors, the <em>New Prime</em> decision should not prevent companies from entering into arbitration agreements with contractors for transportation services pursuant to state law in those jurisdictions.</p> <p> <strong>Rethink The Forum Selection Clause</strong></p> <p> Most dispute resolution agreements contain a forum selection provision establishing the locale in which the parties agree to adjudicate their disputes. Traditionally, companies select a forum that is tied to their corporate headquarters or state of incorporation. This means that no matter where the workers are located across the country, they must come to the company&rsquo;s backyard to arbitrate (or litigate). While there are obvious advantages to this approach, <em>New Prime</em> highlights a significant downside: choosing the company&rsquo;s locale provides a single forum in which all workers across the country can come together and sue the company on a collective basis.&nbsp; Companies should therefore give serious consideration to reversing course and requiring transportation workers to adjudicate their disputes in the worker&rsquo;s own home state. Doing so would preclude workers from opting in to a collective outside of their chosen forum and therefore provides a significant defense to nationwide collective actions in the event their disputes are litigated in court. This is an arrow that can even be in the quiver of companies with transportation workers in California. The California Labor Code prohibits forum selection provisions that require employees who primarily reside and work in California to litigate or arbitrate outside of California. <em>See </em>Labor Code 925. Requiring they arbitrate or litigate in their home state of California is entirely consistent with the Code.</p> <p> <strong>Include a Standalone Class and Collective Action Waiver </strong></p> <p> Historically, class and collective action waivers have been included in arbitration agreements. Indeed, getting a case into bilateral arbitration in order to avoid the possibility of a nationwide class or collective is a driving force behind implementation of arbitration programs. A less common and admittedly less universally accepted approach is a standalone class and collective action waiver not contingent on arbitration. Few courts have addressed the issue and those that have are in conflict. The Sixth Circuit, for example, ruled in <em>Killion v. KeHE Distributors LLC</em>, 761 F.3d 574 (6th Cir. 2014)<em>, </em>that &ldquo;a plaintiff&rsquo;s right to participate in a collective action cannot normally be waived&rdquo; unless an &ldquo;arbitration clause is involved,&rdquo; whereas the Fifth Circuit came out the other way and found a class action waiver outside of an arbitration agreement to be enforceable in <em>Convergys Corporation v. NLRB</em>, 866 F.3d 635 (5th Cir. 2017). &nbsp;For workers outside of the Sixth Circuit (and most likely outside of&nbsp; California), standalone class and collective action waivers may provide another layer of protection in the event their arbitration agreements are not enforceable under <em>New Prime</em>.</p> <p> <strong>Ensure Arbitration Agreements Contain a</strong> <strong>Severability Clause</strong></p> <p> In addition to shoring up arbitration agreements with language that it is subject to a particular state arbitration statute, choosing the appropriate forum, and requiring a class and collective action waiver, transportation companies should be sure to include a severability clause. A severability clause allows a court to carve out invalid, illegal, or unenforceable contract terms while preserving the other provisions. To the extent that any of the above safeguards are rejected by a court, a broad severability clause should allow for enforcement of other key provisions.</p> <p> <strong>Segregate Intrastate and Interstate Work</strong></p> <p> Plaintiffs&rsquo; attorneys are likely to read the <em>New Prime </em>decision as opening up the door to lawsuits by gig economy workers who perform some transportation-related duties pursuant to independent contractor agreements, even if they are not directly involved in the interstate transportation of goods. Indeed, federal courts have held that even occasional interstate transportation can trigger the FAA Section 1 exemption, so long as the worker is actually engaged in moving goods in interstate commerce. Additionally, courts have found the FAA Section 1 exemption applies to supervisors and managers who do not by themselves transport goods, but are critical to the operations of the company that provides transportation services. But if the work performed is related to nothing more than local deliveries, they are not within the category of workers &ldquo;engaged in interstate commerce&rdquo; that are exempt from the FAA.</p> <p> If a transportation and logistics company provides both intrastate and interstate services, segregating the workers who perform only intrastate services from those performing interstate services will at least shield the intrastate workers who only make local deliveries from being swept into the FAA Section 1 exemption.</p> <p> <strong>Conclusion </strong></p> <p> Although <em>New Prime </em>took a little air out of the tires of companies who have elected arbitration as the preferred method of alternative dispute resolution with transportation contractors, all is not lost. &nbsp;As detailed above, state arbitration statutes provide an alternative avenue for implementing an enforceable arbitration program. In addition, forum selection, severability, and class/collective waivers are important provisions that can be inserted into contractor agreements to minimize the threat of a class or collective action in the event that claims must be litigated in court. &nbsp;&nbsp;As companies invoke state arbitration laws to enforce arbitration agreements, we may see legal challenges from a creative plaintiff&rsquo;s bar, making the inclusion of severability clauses, reverse forum selection clauses, and standalone class and collective action waivers all the more important.&nbsp;</p> https://www.seyfarth.com:443/news/tymanpolitico032019 Annette Tyman quoted in Politico https://www.seyfarth.com:443/news/tymanpolitico032019 Wed, 20 Mar 2019 00:00:00 -0400 <p> Annette Tyman was quoted in a March 20 story from Politico, &quot;Morning Shift,&quot; on how a district court judge slammed attorneys representing OMB and the EEOC for not doing more to notify businesses of court-reinstated requirements for certain employers to submit pay data broken down by race, ethnicity and gender. Tyman said that employers really need to get their resources aligned, and they need to do so quickly. You can read the <a href="https://www.politico.com/newsletters/morning-shift/2019/03/20/trump-notches-a-scotus-immigration-win-412661">full article here</a>.</p> https://www.seyfarth.com:443/news/weisslaw360032019 Philippe Weiss quoted in Law360 https://www.seyfarth.com:443/news/weisslaw360032019 Wed, 20 Mar 2019 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 20 story from Law360, &quot;When March Madness Goes Wrong: 5 Cautionary Tales.&quot; Weiss said that March Madness can be a really positive thing in terms of getting people to connect to each other, and even get them excited in general &mdash; that whole notion of passion is a good thing. He said it&rsquo;s about achieving a balance.</p> https://www.seyfarth.com:443/news/asheshn032019 Brian Ashe quoted in Senior Housing News https://www.seyfarth.com:443/news/asheshn032019 Wed, 20 Mar 2019 00:00:00 -0400 <p> Brian Ashe was quoted in a March 20 story from Senior Housing News, &quot;What Facebook&rsquo;s New Advertising Policies Mean for Senior Housing.&quot; Ashe said that another reason senior living will be largely unaffected by the changes is because the senior is typically not the target of an operator&rsquo;s advertising. You can read the <a href="https://seniorhousingnews.com/2019/03/20/what-facebooks-new-advertising-policies-mean-for-senior-housing/">full article here</a>.</p> https://www.seyfarth.com:443/news/adadfp031919 Seyfarth's ADA statistics were referenced in the Detroit Free Press https://www.seyfarth.com:443/news/adadfp031919 Tue, 19 Mar 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA statistics were referenced in a March 19 story from the Detroit Free Press, &quot;Lawsuits: Domino&#39;s, Playboy websites aren&#39;t accessible to blind users.&quot; Last year, plaintiffs filed 2,258 lawsuits nationally, claiming that websites were inaccessible, up from 814 in 2017, according to Seyfarth. In fact, there were so many cases and rulings that could lead to more litigation, Seyfarth concluded that 2018 had been a bad year for most businesses that have chosen to fight website accessibility cases. You can read the <a href="https://www.freep.com/story/news/local/michigan/2019/03/19/dominos-playboy-disability-ada-blind/2903564002/">full article here</a>.</p> https://www.seyfarth.com:443/news/vuupi031919 Minh Vu quoted in United Press International https://www.seyfarth.com:443/news/vuupi031919 Tue, 19 Mar 2019 00:00:00 -0400 <p> Minh Vu was quoted in a March 19 story from United Press International, &quot;Advocates, businesses say ADA causes trouble for disabled in digital world.&quot; Vu said that, from the beginning, this has been a very important issue for people with disabilities, especially blind people since so much commerce happens on the web now. You can read the <a href="https://www.upi.com/Advocates-businesses-say-ADA-causes-trouble-for-disabled-in-digital-world/1531551612839/">full article here</a>.</p> https://www.seyfarth.com:443/news/reyesobj031919 Juan Reyes quoted in the Orlando Business Journal https://www.seyfarth.com:443/news/reyesobj031919 Tue, 19 Mar 2019 00:00:00 -0400 <p> Juan Reyes was quoted in a March 19 story from the Orlando Business Journal, &quot;Expert: Here&#39;s how Brightline train may fund its Orlando-to-Miami route.&quot; Reyes said there are several funding options available to the train line as it looks to expand throughout the state.</p> https://www.seyfarth.com:443/publications/TBT031919 Proposition 65: Yet Another Challenge for California Cannabis Businesses to Bend Their Minds Around https://www.seyfarth.com:443/publications/TBT031919 Tue, 19 Mar 2019 00:00:00 -0400 <p> As cannabis growers and retailers struggle with the complex and onerous regulatory scheme governing California&rsquo;s emerging legal marijuana marketplace, they may be excused for overlooking the requirements of California Safe Drinking Water and Toxic Enforcement Act of 1986&mdash;more commonly known as Proposition 65. Neither the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), nor its implementing regulations, reference or suggest that cannabis growers or retailers are subject to Proposition 65. Yet, Proposition 65 plainly applies to cannabis and cannabis products, and ignorance of its requirements can prove costly to fledgling and established cannabis businesses alike.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/03/proposition-65-yet-another-challenge-for-california-cannabis-businesses-to-bend-their-minds-around/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM031919-LE New York City Commission on Human Rights Releases Lactation Policy Materials https://www.seyfarth.com:443/publications/OMM031919-LE Tue, 19 Mar 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> In compliance with legislation passed last year, the New York City Commission on Human Rights has released model lactation accommodation policies and a model lactation accommodation request form, which offer guidance regarding employer obligations to provide lactation rooms and implement a policy and process for handling lactation-related accommodation requests.&nbsp; The law went into effect on March 18, 2019.&nbsp; &nbsp;</em></p> <p> Last year, the New York City Council passed a series of bills that amended the New York City Administrative Code to address the needs of nursing mothers in the workplace.&nbsp; Our previous <a href="https://www.seyfarth.com/publications/MA102618-LE">Management Alert</a> and <a href="https://www.seyfarth.com/publications/OMM011119-LE">One Minute Memo</a> outlined the requirements under the laws.&nbsp; As we wrote, the laws expanded <a href="https://www.nysenate.gov/legislation/laws/LAB/206-C">New York State&rsquo;s labor law</a> requirements for lactation rooms and also mandated that employers put in place a <a href="https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3498511&amp;GUID=DF40CA42-25CB-44D2-AF7F-880164C68CD2&amp;Options=&amp;Search=">policy and process</a> for addressing lactation-based accommodation requests.&nbsp;</p> <p> With regard to the policy requirement, the law directed the Commission on Human Rights, in collaboration with the Department of Health and Mental Hygiene, to develop a model policy and request form and to make both available on the Commission&rsquo;s website.&nbsp; Yesterday, the Commission published three model lactation <a href="https://www1.nyc.gov/site/cchr/law/lactation.page">policies </a>(one for employers with <a href="https://www.seyfarth.com/dir_docs/publications/Dedicated_Space.pdf">dedicated lactation rooms</a>, one for employers with a <a href="https://www.seyfarth.com/dir_docs/publications/Multi_Purpose_Space.pdf">multi-purpose space</a>, and employers with <a href="https://www.seyfarth.com/dir_docs/publications/No_Dedicated_Space.pdf">no available space</a>) and a <a href="https://www.seyfarth.com/dir_docs/publications/lactationroomrequestform.pdf">model request form</a>.&nbsp;</p> <p> Notably, it appears that the laws apply to employers with <strong><em>four or more employees</em></strong>, although we are hopeful that the City will soon issue FAQs that clarify the laws&rsquo; coverage. (The City Council&rsquo;s summary of the laws that was previously published indicated the law applied to employers with fifteen or more employees.)&nbsp; This expands coverage to most employers within New York City.&nbsp; While employers may look to the released materials as a guide, employers are also encouraged to contact their local employment counsel and to create policies and processes that are tailored to the their unique business, workplace, and employees.&nbsp;&nbsp;</p> https://www.seyfarth.com:443/publications/MA031919-LE Salary History Bans Hit the Midwest: Cincinnati Passes Salary History Ban and Requires Disclosure of a Pay Scale https://www.seyfarth.com:443/publications/MA031919-LE Tue, 19 Mar 2019 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>:&nbsp; On March 13, 2019, the City of Cincinnati passed a salary history ban ordinance.&nbsp; The law will also require that employers provide some job applicants the &ldquo;pay scale&rdquo; associated with the job for which they are applying.</em></p> <p> After a short lull in the passage of salary history ban laws, Cincinnati became the fifteenth jurisdiction, and the first in the Midwest, to pass a salary history ban.&nbsp; Like the salary history bans past in several other jurisdictions, the new law prohibits employers from seeking prior pay information from applicants for employment;<a href="#_ftn1" name="_ftnref1" title="">[1]</a> however, Cincinnati took its law a step further and became only the second jurisdiction to require that employers provide the &ldquo;pay scale&rdquo; for the job for some applicants.&nbsp; &nbsp;&nbsp;</p> <p> <u><strong>What Does Cincinnati&rsquo;s Salary History Ban Prohibit?</strong></u></p> <p> The new <a href="http://city-egov.cincinnati-oh.gov/Webtop/ws/council/public/child/Blob/52731.pdf?rpp=-10&amp;m=1&amp;w=doc_no%3D%27201900399%27">Chapter 804</a> of the Cincinnati Municipal Code forbids:</p> <ul> <li> Inquiring about the salary history of an applicant for employment;</li> <li> Screening job applicants based on their salary history;</li> <li> Requiring that salary history meets minimum or maximum criteria;</li> <li> Relying on the salary history of an applicant in deciding whether to offer employment to an applicant;</li> <li> Determining the compensation at <em>any</em> stage of the hiring process (up to and including contract negotiations), unless the salary history is disclosed voluntarily and unprompted; and</li> <li> Refusing to hire or otherwise disfavoring an applicant for not disclosing his or her salary history to an employer.</li> </ul> <p> These prohibitions only apply to job seekers in the City of Cincinnati and do not apply to applicants for internal transfer or promotion with their current employer.&nbsp; They also do not apply to any actions taken in accordance with federal, state, or local law that specifically authorizes the reliance on salary history to determine an employee&#39;s compensation.</p> <p> <u><strong>Three Cincinnati Twists &amp; Pay Scale Disclosure Requirement</strong></u></p> <p> There are a few twists found in the Cincinnati Ordinance, making it one of the most unique salary history ban laws in the country.&nbsp;</p> <p> <strong><em>Twist #1: Deferred Compensation and Unvested Equity </em></strong></p> <p> First, while the Cincinnati Ordinance, like other salary history bans, permits employers to freely discuss salary expectations, Cincinnati is only the third jurisdiction (following <a href="https://www.seyfarth.com/publications/MA101217-LE">New York City</a> and <a href="https://www.seyfarth.com/publications/OMM071317-LE">San Francisco</a><a href="#_ftn2" name="_ftnref2" title="">[2]</a>) to permit employers to ask an applicant whether he or she will have to forfeit deferred compensation or unvested equity upon resignation from his or her current employer as part of the discussion around compensation expectations.&nbsp;</p> <p> <strong><em>Twist #2: Carve-Out for Re-Hires</em></strong></p> <p> Second, Cincinnati&rsquo;s Ordinance, like several other salary history bans, does not apply to current employees applying for internal transfer or promotion.&nbsp; The Cincinnati Ordinance is the first to extend this carve-out for current employees to allow an employer to consider the applicant&rsquo;s prior salary if the employer re-hires the applicant within five years of his or her most recent date of termination and the employer already has past salary history data regarding the applicant from their previous employment.&nbsp;</p> <p> <strong><em>Twist #3: Safe Harbor</em></strong></p> <p> Another first!&nbsp; Cincinnati created a first-of-its-kind &ldquo;safe harbor&rdquo; for employers who, within the previous three years, and before a lawsuit is filed against the employer, have received an external certification, which is then made publicly available, that their practices do not include salary history in the hiring process.&nbsp; Details of what this certification process will entail are not outlined in the Ordinance but we expect more information on this front from the Salary History Implementation Working Group established by the Ordinance.</p> <p> <strong><em>Bonus Twist: Pay Scale Disclosure Requirements</em></strong></p> <p> Cincinnati will become only the second jurisdiction, <a href="https://www.seyfarth.com/uploads/siteFiles/inlinefiles/PE072318-LE.pdf">after California</a>, to require employers to provide applicants with the pay scale for the position upon &ldquo;reasonable request.&rdquo;&nbsp; However, unlike the California law, which requires that the pay scale be made available after the first interview, the Cincinnati law, more sensibly, requires that the pay scale be provided, if requested, when the applicant has been provided a conditional offer of employment.</p> <p> <u><strong>Remedies for Non-Compliance</strong></u></p> <p> The Ordinance creates a private cause of action and provides for compensatory damages, reasonable attorney&#39;s fees, the costs of the action, and legal and equitable relief with a two-year statute of limitations on such damages and relief.</p> <p> <u><strong>What Does this Mean for Employers</strong></u></p> <p> The Cincinnati law will go into effect in March, 2020 so employers with operations in Cincinnati should be prepared.&nbsp; Pay equity laws are still coming and employers should remain vigilant as more and more salary history bans are passed.&nbsp;</p> <p> We hope you will join Seyfarth&rsquo;s Pay Equity Group on Equal Pay Day, April 2, 2019, for a joint presentation of Seyfarth&rsquo;s Pay Equity and Complex Discrimination Litigation Groups, as we share our updated Annual 50-State Survey and Trends and Developments in Pay Equity Litigation reports and more information on this law.&nbsp; You can <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=RJr_gIm7kE4Zk1dZkFH8BtsJsfbT-4pU2ry0AsWOWi7mUb0LYVl5u-tcE1I9HUDD&amp;RS_REFERRSID=RJr_gIm7kE4Zk1dZkFH8BtsJsfbT-4pU2ry0AsWOWi7SEs8YsqAkMcMOI92QXmc0&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=RJr_gIm7kE4Zk1dZkFH8BtsJsfbT-4pU2ry0AsWOWi7SEs8YsqAkMcMOI92QXmc0">register here</a> for this Webinar.&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> Currently seven states (California, Connecticut, Delaware, Hawaii, Massachusetts, Oregon, and Vermont, six other cities or counties (San Francisco, CA, New York City, NY, Albany County, NY, Suffolk County, NY, eff. 6/30/2019, Westchester County, NY and Philadelphia, PA) and one Territory (Puerto Rico) have passed salary history bans.&nbsp;</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a>&nbsp;There is no such carve-out, however, under California law, blunting the impact of this San Francisco carve-out.</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/MA031919-LE2 Breaking News: EEOC to Submit Timeline for Pay Data Collection On April 3 https://www.seyfarth.com:443/publications/MA031919-LE2 Tue, 19 Mar 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>On March 19, the Court set a schedule to allow the EEOC to submit a timeline for employers to comply with the District Court&rsquo;s prior ruling which reinstated the collection of pay data in connection with the Revised EEO-1 Report.</em></p> <p> <strong>How Did We Get Here?</strong></p> <p> As we previously <a href="https://www.seyfarth.com/publications/OMM030519-LE">reported</a>, the U.S. District Court for the District of Columbia issued a ruling on March 4 reinstating the Revised EEO-1 Report which had been stayed by the Office of Management and Budget (&ldquo;OMB&rdquo;) since the Fall of 2017.&nbsp; Yesterday, the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;) opened the EEO-1 Survey Portal and issued the following statement:</p> <p style="margin-left:.5in;"> As it announced on February 1, the EEOC is opening its EEO-1 online portal to receive 2018 EEO-1 Component 1 data starting March 18, 2019, and ending May 31, 2019. Instructions for filing are available <a href="https://www.eeoc.gov/employers/eeo1survey/index.cfm">here</a>.</p> <p style="margin-left:.5in;"> The EEOC is working diligently on next steps in the wake of the court&#39;s order in National Women&#39;s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (TSC), which vacated the OMB stay on collection of Component 2 EEO-1 pay data. The EEOC will provide further information as soon as possible.</p> <p> In response to this statement, the National Women&rsquo;s Law Center (&ldquo;NWLC&rdquo;) filed a <a href="https://www.seyfarth.com/dir_docs/publications/47-main.pdf">request</a> for a status conference with the Court which was held today to &ldquo;discuss Defendants&rsquo; compliance with the Court&rsquo;s Memorandum Opinion and Order.&rdquo;&nbsp; The result of the status conference was to allow the EEOC to provide a timeline to the Court on or before April 3, by which employers would provide pay data described on the Revised EEO-1 Report.&nbsp; Plaintiffs then have an opportunity to respond to the EEOC&rsquo;s timeline by April 8.&nbsp;</p> <p> <strong>What Does this Mean for Employers?</strong></p> <p> As we emphasized on yesterday&rsquo;s <a href="https://www.seyfarth.com/events/Webinar-031819LE">webinar</a>, the situation with the collection of pay data under the Revised EEO-1 Report is evolving very quickly.&nbsp; From the Court&rsquo;s rulings it appears that the Court wants to move rapidly to institute the vastly expanded recordkeeping requirements contained in the Revised EEO-1.&nbsp; It is unclear whether those obligations would apply to this filing cycle or the next filing cycle, given that the <a href="https://www.govinfo.gov/content/pkg/FR-2016-07-14/pdf/2016-16692.pdf">final notice</a> to employers filed in the Federal Register recognized the need for an 18 month period during which time employers would prepare for the collection of the new data described in Component 2.</p> <p> Seyfarth has had a long involvement in developments relating to the Revised EEO-1 to collect pay information. We will monitor this case on an ongoing basis and provide key updates as they arise.&nbsp; In the meantime, if you have questions, please contact a member of Seyfarth&rsquo;s Organizational Strategy &amp; Analytics Team or your Seyfarth relationship partner.</p> <p> We also invite you to join Seyfarth&rsquo;s Pay Equity Group on Equal Pay Day, April 2, 2019, for a joint presentation of Seyfarth&rsquo;s Pay Equity and Complex Discrimination Litigation Groups, as we share our updated Annual 50-State Survey and Trends and Developments in Pay Equity Litigation reports.&nbsp; You can <u><a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=RJr_gIm7kE4Zk1dZkFH8BtsJsfbT-4pU2ry0AsWOWi7mUb0LYVl5u-tcE1I9HUDD&amp;RS_REFERRSID=RJr_gIm7kE4Zk1dZkFH8BtsJsfbT-4pU2ry0AsWOWi7SEs8YsqAkMcMOI92QXmc0&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=RJr_gIm7kE4Zk1dZkFH8BtsJsfbT-4pU2ry0AsWOWi7SEs8YsqAkMcMOI92QXmc0">register here</a></u> for this Webinar.&nbsp;</p> https://www.seyfarth.com:443/publications/TipsOnAvoidingWageHourLawsuitsinMassachusetts Tips on Avoiding Wage & Hour Lawsuits in Massachusetts https://www.seyfarth.com:443/publications/TipsOnAvoidingWageHourLawsuitsinMassachusetts Tue, 19 Mar 2019 00:00:00 -0400 <p> <strong><em>Tip #2: Consider Conducting a Pay Equity Audit</em></strong><br /> <br /> Effective July 1, 2018, the Massachusetts Equal Pay Act (the &ldquo;Act&rdquo;) requires employers to pay employees of different genders equal wages for comparable work unless the difference in pay is explained by the Act&rsquo;s enumerated factors. Employers that cannot explain any impermissible wage differentials must... <a href="https://www.seyfarth.com/dir_docs/publications/MAPecs_Tip2_031219.pdf">Continue Reading Here</a>.</p> <p> <strong><em>Massachusetts Peculiarities, 4th Edition</em></strong></p> <p> <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=dnqetb1YFtQe0dDz-naQ4VgpmEB-rpCgb0lQzvgpg471rCOaTF3ORXtxB1WWkxLd&amp;RS_REFERRSID=dnqetb1YFtQe0dDz-naQ4QTVJWcvmMbWduQ45r6ZGUg&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=dnqetb1YFtQe0dDz-naQ4QTVJWcvmMbWduQ45r6ZGUg"><img align="middle" alt="Request Your Copy" border="0" height="130" src="http://marketing.seyfarth.com/reaction/images/buttons/Reserve_Your_Copy-MAPecs.jpg" width="240" /></a></p> https://www.seyfarth.com:443/publications/EL031919 Proposition 65: Yet Another Challenge for California Cannabis Businesses to Bend Their Minds Around https://www.seyfarth.com:443/publications/EL031919 Tue, 19 Mar 2019 00:00:00 -0400 <p> As cannabis growers and retailers struggle with the complex and onerous regulatory scheme governing California&rsquo;s emerging legal marijuana marketplace, they may be excused for overlooking the requirements of California Safe Drinking Water and Toxic Enforcement Act of 1986&mdash;more commonly known as Proposition 65. Neither the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), nor its implementing regulations, reference or suggest that cannabis growers or retailers are subject to Proposition 65. Yet, Proposition 65 plainly applies to cannabis and cannabis products, and ignorance of its requirements can prove costly to fledgling and established cannabis businesses alike.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/03/proposition-65-yet-another-challenge-for-california-cannabis-businesses-to-bend-their-minds-around/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM031819-LE “Sexual and Reproductive Health Choices”: A New Protected Category Under NYC Human Rights Law https://www.seyfarth.com:443/publications/OMM031819-LE Mon, 18 Mar 2019 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>:&nbsp; <em>New York City has amended the City Human Rights Law to prohibit employment discrimination and harassment based on an individual&rsquo;s sexual and reproductive health choices.&nbsp; The amendment will go into effect on May 20, 2019.</em></p> <p> <a href="https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3486193&amp;GUID=11DC0C25-02CE-4AEF-9846-D6ABAF0D2965">Int. No. 863-A </a>(the &ldquo;Law&rdquo;) amends the New York City Human Rights Law and adds &ldquo;sexual and reproductive health decisions&rdquo; to the list of protected categories under the law.&nbsp; The Law was enacted on January 20, 2019, after Mayor de Blasio neither signed nor vetoed the proposed legislation within 30 days of receiving it, and will go into effect on May 20, 2019.&nbsp;</p> <p> The Law prohibits employment discrimination and harassment based on &ldquo;sexual and reproductive health choices,&rdquo; defined as &ldquo;any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.&rdquo;&nbsp; Examples of sexual and reproductive health decisions identified in the Law are:&nbsp;</p> <ul> <li> Fertility-related medical procedures;</li> <li> Sexually transmitted disease prevention, testing and treatment;</li> <li> Family planning services and counseling;</li> <li> Use of birth control drugs and supplies;</li> <li> Emergency contraception;</li> <li> Sterilization procedures;</li> <li> Pregnancy testing; and</li> <li> Abortion</li> </ul> <p> The Law will apply to New York City employers with four or more employees.&nbsp; Covered employers should update their handbooks and anti-discrimination and equal employment opportunity policies to include &ldquo;sexual and reproductive health choices&rdquo; among the list of protected categories.</p> https://www.seyfarth.com:443/publications/OMM031819-LE2 New Jersey Says No to Pre-Dispute Arbitration Agreements and Non-Disclosure Provisions https://www.seyfarth.com:443/publications/OMM031819-LE2 Mon, 18 Mar 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Governor Murphy signed Senate Bill 121 into law today, Monday, March 18, 2019.&nbsp; The law affects claims of discrimination, harassment, and retaliation and renders prospective waivers of rights against public policy and unenforceable, including mandatory pre-dispute arbitration agreements and waivers of rights and remedies under the New Jersey Law Against Discrimination.&nbsp; Additionally, the law renders non-disclosure agreements unenforceable against employees.&nbsp; The law as it applies to arbitration provisions is likely to face Federal Arbitration Act preemption challenges.</em></p> <p> Earlier this year, the New Jersey Legislature passed <a href="https://www.njleg.state.nj.us/2018/Bills/S0500/121_R2.PDF">Senate Bill 121</a>, which will prohibit employers from enforcing, among other things, mandatory pre-dispute arbitration provisions and non-disclosure agreements entered into in connection with all claims of discrimination, retaliation, and harassment.&nbsp; Governor Murphy <a href="https://nj.gov/governor/news/news/562019/approved/20190318b.shtml">signed</a> the bill into law today.&nbsp;</p> <p> Our previous <a href="https://www.seyfarth.com/publications/MA020519-LE">Management Alert</a> outlined the key components of the law and explained that the law may face a <a href="https://www.seyfarth.com/publications/MA102518-LE">preemption challenge</a> insofar as it prohibits mandatory pre-dispute arbitration agreements, as the Federal Arbitration Act generally favors enforcement of arbitration agreements.</p> <p> Notably, this law will apply to all contracts and agreements entered into, renewed, modified, or amended <strong><em>on or after the effective date</em></strong>.&nbsp; As such, existing arbitration agreements concerning discrimination, harassment or retaliation claims remain lawful, and settlement agreements with non-disclosure provisions which were signed prior to the effective date may still be enforced.</p> <p> The New Jersey law is unlike any other law in the country.&nbsp; Thus, employers are encouraged to contact local employment counsel and consider revising standard employment and settlement agreements.&nbsp;</p> https://www.seyfarth.com:443/publications/LR031819 D.C. Circuit Denies Enforcement of NLRB’s Decision Applying Pacific Lutheran Standard https://www.seyfarth.com:443/publications/LR031819 Mon, 18 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: An important issue for colleges and universities is whether faculty are &ldquo;managerial&rdquo; employees under the National Labor Relations Act, and thus precluded from union organizing. Almost 40 years ago, the Supreme Court held in NLRB v. Yeshiva University that faculty are managerial if they exercise &ldquo;collegial&rdquo; authority collectively in academic matters. Five years ago, the Obama Board in Pacific Lutheran University announced a new two part standard for determining the managerial status of faculty members: (1) whether faculty have decision-making authority in academic programs, enrollment policies, finances, academic policies, and personnel policies; and (2) whether the faculty exercise &ldquo;actual control or effective recommendation&rdquo; over each of those areas.<br /> <br /> <a href="https://www.employerlaborrelations.com/2019/03/18/d-c-circuit-denies-enforcement-of-nlrbs-decision-applying-pacific-lutheran-standard/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/lorberbloomberglaw031819 Lawrence Lorber quoted in Bloomberg Law https://www.seyfarth.com:443/news/lorberbloomberglaw031819 Mon, 18 Mar 2019 00:00:00 -0400 <p> Lawrence Lorber was quoted in a March 18 story from Bloomberg Law, &quot;Employers Doubt Pay Equity Goals Outweigh Data Security Risks,&quot; on the security v. litigation concerns. But with the new pay information requirement, employers can no longer shun demands for pay data under the guise of burden, Lorber said, even in litigation proceedings related to equal pay.</p> https://www.seyfarth.com:443/news/johnsonbloombergbna031819 Randel Johnson quoted in Bloomberg BNA https://www.seyfarth.com:443/news/johnsonbloombergbna031819 Mon, 18 Mar 2019 00:00:00 -0400 <p> Randel Johnson was quoted in a March 18 story from Bloomberg BNA, &quot;Punching In: March Means Regulatory Madness at Labor Board, EEOC.&quot; The Equal Employment Opportunity Commission is slated to open its annual pay data survey, but there&rsquo;s still no sign of precisely what information businesses have to provide to the feds. Johnson said that the EEOC is not ready administratively to accept this wave of new data, much less are companies ready to provide it.</p> https://www.seyfarth.com:443/news/weissshrm031819 Philippe Weiss quoted in SHRM https://www.seyfarth.com:443/news/weissshrm031819 Mon, 18 Mar 2019 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 18 story from SHRM, &quot;Managing March Madness Hoopla at Work.&quot; Weiss suggested that workplaces should use office-logo swag as the prize for the winning bracket. You can read the <a href="https://www.shrm.org/hr-today/news/hr-news/Pages/Managing-March-Madness-Hoopla-at-Work.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/weisstrr031619 Philippe Weiss quoted in The Realtime Report https://www.seyfarth.com:443/news/weisstrr031619 Sat, 16 Mar 2019 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 16 story from The Realtime Report, &quot;March Madness And Sports Gambling In The Workplace.&quot; According to Weiss, several potentially worrisome trends are already emerging. You can read the <a href="https://therealtimereport.com/2019/03/16/march-madness-and-sports-gambling-in-the-workplace/">full article here</a>.</p> https://www.seyfarth.com:443/publications/OMM031519-LE Brexit: UK Parliament Votes to Delay Departure https://www.seyfarth.com:443/publications/OMM031519-LE Fri, 15 Mar 2019 00:00:00 -0400 <p> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world.&nbsp; If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.</em></p> <p> <em><strong>Seyfarth Synopsis: </strong>On March 14th, the UK Parliament voted in favor of an extension to Article 50, which is the legal mechanism to enable the UK&rsquo;s exit from the EU. The non-binding vote seeks to delay the departure date by three months, from March 29th to June 30th, 2019. However, any extension must be agreed upon by the other 27 EU countries.</em></p> <p> <strong>What happens next?</strong></p> <p> After a number of high-profile votes in the UK Parliament this week, the possibility of a delay to Brexit is increasingly likely.&nbsp;Following rejection of the revised Withdrawal Agreement and a no-deal Brexit scenario, Parliament voted on March 14th to seek an extension of the negotiating period to June 30, 2019. The motion was approved by 413 to 202 votes.</p> <p> The British Prime Minister, Theresa May, intends to hold another vote on the Withdrawal Agreement by March 20th. If it is approved, having been overwhelmingly rejected twice, a short-term extension will allow Parliament time to pass the necessary legislation before a final departure date.&nbsp;If the Agreement is rejected again, the Prime Minister may approach the EU to request a longer extension.</p> <p> <strong>UK Immigration: What is the impact?</strong></p> <p> Regardless of the UK Parliament&rsquo;s standpoint, any extension of the Brexit negotiating period must be ratified by all 27 remaining EU countries. A summit of EU leaders will take place on March 21st.</p> <p> If an extension is agreed upon, then the UK will remain a full member of the EU during that extended period, until a new departure date is confirmed. EU nationals in the UK, and British nationals in the EU, will retain full rights of free movement during that time.</p> <p> If the Withdrawal Agreement is approved by the UK Parliament at the third attempt next week, and the UK exits the EU on March 29th as planned, a transitional period will also allow free movement to continue until December 31st 2020.</p> <p> In the event that the EU rejects an extension request, and no agreement has been reached in the meantime, the withdrawal process moves ahead in a no-deal scenario with the UK exiting the EU on March 29th. In this situation, only EU citizens who are resident in the UK by March 29th will be guaranteed the right to remain in the UK permanently.</p> <p> We will continue to monitor and report on developments in relation to Brexit as events unfold.&nbsp;&nbsp;</p> https://www.seyfarth.com:443/publications/TS031519 Washington State Lawmakers Seek to Partially Ban Non-Competes https://www.seyfarth.com:443/publications/TS031519 Fri, 15 Mar 2019 00:00:00 -0400 <p> As readers of this blog well know, there is a growing trend of state legislatures seeking to limit or outright ban non-competes. (See here, here, and here as just a few examples of state efforts to curb non-competes&mdash;not to mention the proposed federal legislation and international efforts&mdash;in the last six months.) Last week, the Washington Senate jumped on the bandwagon by passing a bill with a 30&ndash;18 vote that would severely limit the enforceability non-competes. (Similar efforts failed last year, as we reported here.) Some of the key features of this year&rsquo;s bill are as follows:<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/03/articles/noncompete-enforceability/washington-state-lawmakers-seek-to-partially-ban-non-competes/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM031519 Brexit: UK Parliament Votes to Delay Departure https://www.seyfarth.com:443/publications/IMM031519 Fri, 15 Mar 2019 00:00:00 -0400 <p> The following is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2019/03/brexit-uk-parliament-votes-to-delay-departure/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CONS031519 Chuck Wall to Present on P3 (Public-Private Partnership) Panel https://www.seyfarth.com:443/publications/CONS031519 Fri, 15 Mar 2019 00:00:00 -0400 <p> Seyfarth Shaw partner Chuck Wall will serve on a panel entitled &ldquo;The Contractor&rsquo;s Role on the P3 Project Team&rdquo; on Friday, March 22. The panel will be featured at a P3 Seminar sponsored by the Maryland Transportation Builders &amp; Materials Association (MTBMA). Chuck will be joined by senior executives from the P3 development and contracting community, and the program will focus on informing contractors and other interested members about the basics of and potential opportunities involved with P3s.<br /> <br /> <a href="https://www.constructionseyt.com/2019/03/chuck-wall-to-present-on-p3-public-private-partnership-panel/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise031519 Safeguards, in the Fourth Industrial Revolution https://www.seyfarth.com:443/publications/FutureEnterprise031519 Fri, 15 Mar 2019 00:00:00 -0400 <p> For us, the daily lived experience of the 4IR in working and home life is not yet as cataclysmic nor as emancipating as the commentators proclaim. However, the ever growing use of technological, timesaving solutions, the &lsquo;gigification&rsquo; of the workforce, the blurring of the lines between work and home and the rising issue of workplace psychological health all signal shifting global trends.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2019/3/15/safeguards-in-the-fourth-industrial-revolution">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/rechtinlaw360031519 Michael Rechtin authored an article in Law360 https://www.seyfarth.com:443/publications/rechtinlaw360031519 Fri, 15 Mar 2019 00:00:00 -0400 <p> Michael Rechtin authored a March 15 article in Law360, &quot;Why A Data Center Sale And Partial Leaseback Is A Win-Win.&quot; A new and burgeoning area of the data center real estate industry is the sale and partial leaseback of older data centers that were originally built by companies 10-20 years ago for their own use. You can read the <a href="https://www.seyfarth.com/dir_docs/publications/WhyADataCenterSaleAndPartialLeasebackIsAWinWin-Law360.pdf">full article here</a>.</p> https://www.seyfarth.com:443/publications/weissindustryweek031519 Philippe Weiss authored an article in IndustryWeek https://www.seyfarth.com:443/publications/weissindustryweek031519 Fri, 15 Mar 2019 00:00:00 -0400 <p> Philippe Weiss authored a March 15 article in IndustryWeek, &quot;March Madness: When a Friendly Bracket Becomes an HR Problem.&quot; Several worrisome workplace trends are emerging, as states relax sports gambling laws. You can read the <a href="https://www.industryweek.com/talent/march-madness-when-friendly-bracket-becomes-hr-problem">full article here</a>.</p> https://www.seyfarth.com:443/publications/TBT031419 The Week in Weed: March 15, 2019 https://www.seyfarth.com:443/publications/TBT031419 Thu, 14 Mar 2019 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/2019/03/the-week-in-weed-march-15-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM031419-LE Seyfarth Shaw Policy Matters Newsletter - March 14, 2019 https://www.seyfarth.com:443/publications/PM031419-LE Thu, 14 Mar 2019 00:00:00 -0400 <p> <strong>President&rsquo;s Budget Cuts DOL By 10%.</strong> Every year, the President of the United States submits a budget to the U.S. Congress. And just about every year, Members of Congress use the President&rsquo;s budget as a doorstop or kindling. Particularly with this divided Congress, there is virtually no chance that the President&rsquo;s FY2020 budget will become &ldquo;the&rdquo; budget. Nevertheless, at DOL, the President&rsquo;s <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE4B95E8B638EC673">budget</a> makes significant cuts to some &ldquo;ineffective&rdquo; job training programs, while effectively maintaining or even increasing enforcement resources at the Wage &amp; Hour Division, OFCCP, OLMS, and OSHA. Significant increases in premiums under the multi-employer pension program were proposed. The budget also includes a $160 million investment in apprenticeships, one of the President&rsquo;s key issues.</p> <p> <strong>Equality Act Introduced.</strong> On March 13, a record 240 Members of Congress <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE408EF8A332FC6ED14757422">introduced</a> the Equality Act, which would expand Title VII and other civil rights laws by adding sexual orientation and gender identity as protected classes. The bill would apply to employment, places of public accommodation, public facilities, housing, and public education. The bill has <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE4B92E3B039E45">broad support in the business community</a>. With regard to employment, the Equality Act supplants the Employee Non-Discrimination Act (ENDA) which has been under consideration by the Congress since at least 1994, passing the Senate in 2013. Four currently serving Republican Senators--Collins, Murkowski, Portman, and Toomey--voted in favor of the bill. Passage in the House is a certainty, but the bill&rsquo;s fate in the Senate, where we expect the Senate Judiciary Committee will take the lead, is uncertain.</p> <p> <strong>Part 541 Proposal Announced. </strong>Shortly after last week&rsquo;s Policy Matters, the Department of Labor <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE488EE2BE28F678D7464F9">announced</a> its <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE5992E3A132EB7ED65E5">proposed rule</a> regarding the salary threshold required for the white collar exemptions. DOL has proposed a new minimum threshold of $35,308 ($679/week). Up to 10% of the salary may be made up of nondiscretionary bonuses, with an annual &ldquo;true-up&rdquo; to ensure the $35,308 level is met. The standard for the highly compensated employee exemption would rise to $147,414. No regional difference or automatic updates have been proposed. For more information, see our <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE6A8CE5B433EC677">Client Alert</a>.</p> <p> <strong>BLS Commissioner Beach Confirmed. </strong>The first Labor-related nominee of the new Congress has been confirmed by the U.S. Senate. William Beach was confirmed 55-44 to serve as Commissioner of Labor Statistics for a term of four years. There is no indication as to when the remaining nominees to DOL and the EEOC will be brought up for a vote. As we have reported previously, however, there has been a Republican effort to reduce the limit on the debate on sub-Cabinet and district court nominees from the current 30 hours to two hours, which would expedite the confirmation process. It is now being <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE5B85FCBE2FEC7ED65E3">reported</a> that Majority Leader McConnell may be prepared to bring that option up for a vote.</p> <p> <strong>Senators Request GAO Review of Non-Compete Agreements.</strong> A bipartisan group of U.S. Senators requested the Government Accountability Office (GAO) to investigate the use of non-compete agreements, citing concerns about their negative impact on both workers and the national economy. For more information, see Seyfarth&rsquo;s <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE7D92EDB538E40">Trade Secrets blog</a>.</p> <p> <strong>States File Suit on Electronic Reporting Rule.</strong> It seems like we&rsquo;ve gotten to the point where a lawsuit filed to enjoin implementation of a final rule has become part of the regulatory process. The latest suit in that trend was filed by six states against the Occupational Safety and Health Administration, claiming that the agency did not provide sufficient justification to roll back the electronic reporting rule for large employers. For more information, see Seyfarth&rsquo;s <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE7E8FFEBA2DF47AD1474F9">Workplace Safety and Environmental Law Alert blog</a>.</p> <p> <strong>E-Verify.</strong> With introduction by Senator Grassley of his mandatory e-verify bill, S. 556, the possibility of employers being required to use the system is again on the horizon. Indeed, in the past, the employer community has supported mandatory e-verify, provided certain conditions were met. In the meantime, developments at USCIS remain fluid. Learn about recent developments in the e-verify area by joining us for a <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD0EB0AEDC1D181AFD22E991DD5BE5D89E1B431E1674">timely webinar</a> on the topic.</p> <p> To subscribe to the Policy Matters weekly newsletter, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy">click here</a>.</p> https://www.seyfarth.com:443/publications/MA031419-LE If Pain, Yes Gain — Part 61: Michigan Releases Paid Sick Leave Poster and FAQs; Effective Date is Near https://www.seyfarth.com:443/publications/MA031419-LE Thu, 14 Mar 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>:</em> <em>In advance of the upcoming March 29, 2019 effective date of the Michigan statewide paid sick leave mandate, the state Department of Licensing and Regulatory Affairs launched a website for the law featuring a paid sick leave model poster and FAQs. These developments come as the state Legislature seeks constitutional clarity on the procedure that led to the amended paid sick leave law and calls into question whether the law, as amended, will in fact be the one to take effect.</em></p> <p> When the outgoing Michigan Legislature and Governor enacted the Paid Medical Leave Act (&ldquo;PMLA&rdquo;) in December 2018, they revamped the state&rsquo;s earlier paid sick leave mandate -- the Earned Sick Time Act (&ldquo;ESTA&rdquo;) -- in a number of significant ways. As discussed in more detail in our <a href="https://www.seyfarth.com/publications/MA121718-LE">PMLA alert</a>, while many of the amendments lessened employers&rsquo; compliance obligations, Michigan employers nevertheless still face a looming sick leave mandate. That mandate -- the PMLA -- goes into effect on March 29, 2019, less than three weeks from now.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p> <p> The ESTA was enacted in September 2018 to avoid a voter referendum on the same legislation and afford the state Legislature an easier path to amending the ESTA than would be required as part of the state&rsquo;s general legislative process. In the months following the passage of the PMLA, the Department of Licensing and Regulatory Affairs (&ldquo;LARA&rdquo;) has confirmed the PMLA&rsquo;s March 29 effective date and issued a <a href="https://www.michigan.gov/lara/0,4601,7-154-59886_91049---,00.html">website</a> with <a href="https://www.michigan.gov/documents/lara/Paid_Medical_Leave_Act_FAQ_003_644567_7.pdf">frequently asked questions</a> (&ldquo;FAQs&rdquo;) and a <a href="https://www.michigan.gov/documents/lara/Paid_Medical_Leave_Act_Poster_644565_7.pdf">model poster</a>. As discussed below, employers can use the latter to satisfy the PMLA posting requirement. With LARA preparing for the PMLA to go into effect, here is a summary of the PMLA posting obligation and highlights from the FAQs.</p> <p> <strong>Poster</strong></p> <p> Unlike some paid sick leave laws, the PMLA does&nbsp;<u>not</u>&nbsp;specifically require an employer to provide individual written notice to current and newly hired employees of certain sick leave rights. However, under the PMLA, employers must still display a poster in a conspicuous place regarding the PMLA. As contemplated by the PMLA, LARA has released the English language version of the poster that employers may use to satisfy this requirement. Although the PMLA contains no specific provision stating that the poster must be displayed in specific languages, LARA has noted that Spanish and Arabic versions of the poster are forthcoming.</p> <p> <strong>FAQs</strong></p> <p> For the most part, the PMLA FAQs reiterate the provisions of the law either verbatim or in short form. However, the FAQs do provide further detail on the rate of pay for tipped employees&rsquo; paid sick time absences. Specifically, the PMLA states that employees will be paid &ldquo;at a pay rate equal to the greater of either the normal hourly wage or base wage for that eligible employee or the [state] minimum wage rate.&rdquo;<a href="#_ftn2" name="_ftnref2" title="">[2]</a> The FAQs add that the regular rate is the applicable minimum wage rate for tipped employees. Beyond this clarification, the FAQs provide some insight into how LARA will investigate and potentially attempt to mediate any employee complaints.</p> <p> <strong>Questions Surrounding the PMLA</strong></p> <p> Despite the PMLA&rsquo;s current March 29 effective date, questions surrounding its longevity are gaining steam. The outgoing Michigan Attorney General <a href="http://www.ag.state.mi.us/opinion/datafiles/2010s/op10385.htm">previously opined</a> that no provision in Michigan&rsquo;s Constitution prevented the state Legislature from amending a proposed ballot initiative during the same session that the Legislature had enacted that same initiative.</p> <p> This opinion stands opposite to the 1964 opinion of Michigan Attorney General Frank Kelley, which has been highlighted by state Senators that have <a href="https://www.constangy.com/assets/htmldocuments/MI%20Paid%20Medical%20Leave%20Act.Chang%20Letter.pdf">recently called</a> on the new Attorney General to reevaluate last year&rsquo;s opinion and determine whether the PMLA was passed in violation of the Michigan Constitution. The current Attorney General pledged to evaluate the request and solicited comments from the public through March 6. These opinions, while noteworthy, do not carry binding legal force. By issuing formal opinions, the Attorney General provides &ldquo;legal advice to the Legislature, and to departments and agencies of state government,&rdquo; all of which are not bound by the advice.<a href="#_ftn3" name="_ftnref3" title="">[3]</a> Moreover, the Attorney General opinions tend to fall along party lines.</p> <p> At the same time, as permitted by Michigan law, both houses of the state Legislature have requested an advisory opinion from the Michigan Supreme Court as to the constitutionality of the PMLA.<a href="#_ftn4" name="_ftnref4" title="">[4]</a> Whether the Supreme Court issues such an opinion lies entirely with the Court&rsquo;s discretion. Further, &ldquo;an advisory opinion does not constitute a decision of the Court and is not . . . binding in the same sense as a decision of the Court after a hearing on the merits.&rdquo;<a href="#_ftn5" name="_ftnref5" title="">[5]</a> However, such an opinion against the PMLA&rsquo;s constitutionality may halt the PMLA either by decision of officials thereafter, or via subsequent actual litigation with the same conclusion.</p> <p> <strong>Employer Takeaways:</strong></p> <p> We will continue to monitor Michigan paid sick leave developments, and await additional guidance from the state. Despite questions surrounding the PMLA&rsquo;s constitutionality and potential opinions thereon, Michigan employers should take steps now to comply with the PMLA ahead of its March 29 effective date. 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 PMLA.</li> <li> Develop a new paid sick leave policy that complies with the PMLA for any employees who are not covered under existing paid sick leave or PTO policies.</li> <li> Monitor LARA&rsquo;s website for further information on the PMLA, including regulations, translated versions of the model poster, etc.</li> </ul> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> As of March 29, Michigan will become the eleventh state in the country to have a statewide paid sick leave mandate in effect. The existing statewide paid sick leave laws include: (1)&nbsp;<a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>; (2)&nbsp;<a href="http://www.calpeculiarities.com/2015/07/14/at-last-amendments-to-cas-paid-sick-leave-law-signed-by-governor/">California</a>; (3)&nbsp;<a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>; (4)&nbsp;<a href="https://www.seyfarth.com/publications/MA020416-LE">Oregon</a>; (5)&nbsp;<a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont</a>; (6)&nbsp;<a href="https://www.seyfarth.com/publications/MA120817-LE">Arizona</a>; (7)&nbsp;<a href="http://www.seyfarth.com/publications/MA102717-LE">Washington</a>; (8)&nbsp;<a href="https://www.seyfarth.com/publications/MA020918-LE">Maryland</a>; (9)&nbsp;<a href="http://www.seyfarth.com/publications/MA061218-LE">Rhode Island</a>; and (10)&nbsp;<a href="https://www.seyfarth.com/publications/MA102618-LE2">New Jersey</a>.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Like the ESTA and PMLA, a state minimum wage ballot initiative was also adopted in September, subsequently amended, and approved by the outgoing governor in December. Also scheduled to go into effect on March 29, LARA released an updated <a href="https://www.michigan.gov/lara/0,4601,7-154-59886-486303--,00.html">webpage</a> for the minimum wage law as well.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> <em>See</em> <em>East Grand Rapids School Dist. v. Kent County Tax Allocation Bd.</em>, 415 Mich 381, 394 (1982).</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> The Michigan House and Senate resolutions are available <a href="https://www.legislature.mi.gov/documents/2019-2020/resolutionadopted/House/pdf/2019-HAR-0025.pdf">here</a> and <a href="https://www.legislature.mi.gov/documents/2019-2020/resolutionadopted/Senate/pdf/2019-SAR-0016.pdf">here</a>.</p> </div> <div id="ftn5"> <p> <a href="#_ftnref5" name="_ftn5" title="">[5]</a> <em>See</em> <em>In re Request for Advisory Opinion Enrolled Senate Bill</em>, 400 Mich. 311, 322 (1977).</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/publications/EL031419 “Office” Violence Is No Laughing Matter https://www.seyfarth.com:443/publications/EL031419 Thu, 14 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Workplace violence is no laughing matter. Although California law arms employers with strict laws to prevent workplace violence, no one wants to find themselves petitioning a court for emergency injunctive relief. Instead, employers should foster healthy workplaces and monitor early warning signs in order to address threats of violence before it is too late.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/03/office-violence-is-no-laughing-matter/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/babsonbloomberglaw031419 Marshall Babson quoted in Bloomberg Law https://www.seyfarth.com:443/news/babsonbloomberglaw031419 Thu, 14 Mar 2019 00:00:00 -0400 <p> Marshall Babson was quoted in a March 14 story from Bloomberg Law, &quot;EEOC&rsquo;s Feldblum One of Few Labor Officials to Cross Party Lines.&quot; Babson went to a management-side law firm after serving as an NLRB member in the 1980s.</p> https://www.seyfarth.com:443/news/independent031419 Peter Talibart, Laurence Harvey Wood, Tessa Cranfield and William Hampshire's article referenced in The Independent https://www.seyfarth.com:443/news/independent031419 Thu, 14 Mar 2019 00:00:00 -0400 <p> Peter Talibart, Laurence Harvey Wood, Tessa Cranfield and William Hampshire&#39;s article, &ldquo;Europe&rsquo;s Gender Pay Gap Rules Gather Momentum&rdquo; was referenced in a March 14 story from The Independent, &quot;WOMEN IN BERLIN TO RECEIVE PUBLIC TRANSPORT DISCOUNT TO HIGHLIGHT GENDER PAY GAP.&quot; According to Seyfarth&#39;s article, the gender pay gap in the European Union currently averages at around 16 per cent, despite Europe&#39;s long-standing legislation that requires men and women to receive equal pay for the same work. You can read the <a href="https://www.independent.co.uk/life-style/women/berlin-women-transport-discount-gender-pay-gap-germany-a8824086.html">full article here</a>.</p> https://www.seyfarth.com:443/news/hendersonbloomberglaw031419 Joshua Henderson quoted in Bloomberg Law https://www.seyfarth.com:443/news/hendersonbloomberglaw031419 Thu, 14 Mar 2019 00:00:00 -0400 <p> Joshua Henderson was quoted in a March 14 story from Bloomberg Law, &quot;Labor Department Fights to Keep Company Injury Data Private.&quot; Henderson said that companies have an interest in protecting employees&#39; privacy.</p> https://www.seyfarth.com:443/news/passantinoshrm031319 Alexander Passantino quoted in SHRM https://www.seyfarth.com:443/news/passantinoshrm031319 Wed, 13 Mar 2019 00:00:00 -0400 <p> Alexander Passantino was quoted in SHRM, &quot;DOL Aims to Raise Salary Level for Highly Compensated Exemption.&quot; The DOL estimates that about 200,000 workers would become overtime-eligible because of the increased salary threshold for highly compensated employees. Passantino said that employers with jobs that are solely reliant on this exemption will have a tough decision to make. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Salary-Level-for-Highly-Compensated-Exemption.aspx">full article here</a>.</p> https://www.seyfarth.com:443/publications/cc031319 Lynn Kappelman and Ryan Tilot authored an article in Corporate Counsel https://www.seyfarth.com:443/publications/cc031319 Wed, 13 Mar 2019 00:00:00 -0400 <p> Lynn Kappelman and Ryan Tilot authored a March 13 article in Corporate Counsel, &quot;Authenticating Digital Signatures at Trial.&quot; As courts and jurors become more comfortable with digital signatures, the process of admitting digitally signed documents will get easier. In the meantime, beyond meeting the technical requirements for admission, take the time to explain the digital signature process to jurors (and judges) in lay terms.</p> https://www.seyfarth.com:443/publications/CP031319 On Demand: It’s Not Just About Movies—It’s About Pay! https://www.seyfarth.com:443/publications/CP031319 Wed, 13 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Employers are starting to consider &ldquo;on demand&rdquo; pay for employees. Before considering whether to implement an &ldquo;on demand&rdquo; pay program, employers should consider laws on wage deduction and wage assignment as well as the administrative support needed for such a program.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/03/13/on-demand-its-not-just-about-movies-its-about-pay/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM031319 Upcoming Webinar: Compliance Chatter Series Part 1: Inside E-Verify https://www.seyfarth.com:443/publications/IMM031319 Wed, 13 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On Friday, March 22, 2019, Seyfarth Shaw&rsquo;s Immigration Compliance and Enforcement Group invites you to join the first webinar in our new Compliance Chatter Series: Inside E-Verify<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2019/03/upcoming-webinar-compliance-chatter-series-part-1-inside-e-verify/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM031319-LE BREXIT: Parliament Rejects Withdrawal Agreement https://www.seyfarth.com:443/publications/OMM031319-LE Wed, 13 Mar 2019 00:00:00 -0400 <p> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK worksite.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world.&nbsp; If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.</em></p> <p> <em><strong>Seyfarth Synopsis:</strong> On March 12th, the UK Parliament rejected the revised Withdrawal Agreement. The UK is scheduled to leave the EU on March 29, 2019. A no-deal exit is the default position, unless an extension is agreed upon or an amended agreement can be reached. Parliament will vote on two critical questions this week, which should clarify the terms and timing of the UK&rsquo;s withdrawal from the EU.</em></p> <p> <strong>Withdrawal Agreement Defeated</strong></p> <p> The British Prime Minister, Theresa May, presented the revised Withdrawal Agreement to Parliament on Tuesday, March 12th. The amended agreement contained further assurances in relation to the back-stop arrangement regarding the border and Northern Ireland. Nevertheless, the changes were insufficient to satisfy Parliament, which rejected the Withdrawal Agreement by 391 to 242 votes.</p> <p> <strong>Parliament Votes: No-Deal or Extension</strong></p> <p> Following defeat of the Withdrawal Agreement, Parliament will today vote to decide whether the UK should proceed with exiting the EU with no-deal in place. <a href="https://www.seyfarth.com/publications/MA013019-LE">As previously advised</a>, the government confirmed that the proposed EU Settlement Scheme will continue to be implemented in a no-deal scenario. However, the cut-off date for EU nationals to enter the UK in order to qualify under those provisions will be March 29, 2019.&nbsp;</p> <p> If the motion to exit with no-deal is rejected today, which is widely expected, then Parliament will vote again on Thursday March 14th to decide whether to delay Brexit day beyond March 29th. The other 27 EU countries will need to agree to that extension when they meet on March 21st. In the unlikely event that the EU rejects an extension request, the withdrawal process moves ahead in a no-deal scenario with the UK exiting the EU on March 29th.</p> <p> If an extension is agreed, then the UK will remain a full member of the EU during that extended period of time, which is expected to last approximately three months until June 2019. EU nationals in the UK, and British nationals in the EU, will retain full rights of free movement during that time.</p> <p> We will continue to monitor and report on developments in relation to Brexit as events unfold.&nbsp;</p> https://www.seyfarth.com:443/publications/TS031319 Fed Seeks to Bar Two Bankers for Life for Stealing Confidential Information https://www.seyfarth.com:443/publications/TS031319 Wed, 13 Mar 2019 00:00:00 -0400 <p> After being slapped with a post-trial judgment last April totaling $2.2 million for misappropriation of confidential and proprietary information, two Wyoming bank executives were named in an unprecedented &ldquo;Notice of Intent to Prohibit&rdquo; filed in December by the Federal Reserve Board. If these executives thought that more than two million dollars in civil liability was harsh, they were mistaken, as they now face a much harsher consequence: a ban from the banking business altogether.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/03/articles/breach-of-fiduciary-duty/fed-seeks-to-bar-two-bankers-for-life-for-stealing-confidential-information/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS031319a Update! Salesman Goes on Trial in Chicago for Stealing Company Trade Secrets for a Chinese Competitor https://www.seyfarth.com:443/publications/TS031319a Wed, 13 Mar 2019 00:00:00 -0400 <p> As noted in our February 20th blog post, Robert O&rsquo;Rourke, a 30 year salesman for cast iron products manufacturer Dura Bar, went on trial in Chicago (Northern District of Illinois) for allegedly stealing Dura trade secrets before leaving to work for a Chinese competitor. According to the government, O&rsquo;Rourke downloaded 1,900 files (in 20 minutes) that contained Dura trade secrets and then attempted to board a flight to China with the trade secrets in hand. The FBI stopped O&rsquo;Rourke at the gate and subsequently charged O&rsquo;Rourke with 13 counts of trade secret theft.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/03/articles/international-2/update-salesman-goes-on-trial-in-chicago-for-stealing-company-trade-secrets-for-a-chinese-competitors/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT031219 Arizona Federal Judge Enters Judgment for Terminated Employee: High Levels In Positive Drug Test Insufficient to Show Impairment From Marijuana https://www.seyfarth.com:443/publications/TBT031219 Tue, 12 Mar 2019 00:00:00 -0400 <p> An Arizona federal district court judge entered judgment against Walmart Inc. for terminating the employment of a woman who had been prescribed medical marijuana because it had not established through expert evidence that the employee was impaired by marijuana at work despite high levels of marijuana in the results of her drug test. Therefore, the court held plaintiff&rsquo;s termination was contrary to the Arizona Medical Marijuana Act, A.R.S. &sect; 36-2813(B) (&ldquo;AMMA&rdquo;).<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/03/arizona-federal-judge-enters-judgment-for-terminated-employee-high-levels-in-positive-drug-test-insufficient-to-show-impairment-from-marijuana/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE031219 Six States Sue – Alleging that Trump Administration Electronic Reporting Rule is Unlawful https://www.seyfarth.com:443/publications/WSE031219 Tue, 12 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: According to several states that have sued the Occupational Safety and Health Administration in Federal Court, the Agency did not provide sufficient justification to rollback the electronic reporting rule for large employers. Complaint, State of New Jersey, et al., v. Acosta, No. 19-cv-621 (D. DC March 6, 2019).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-litigation/six-states-sue-alleging-that-trump-administration-electronic-reporting-rule-is-unlawful/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/resurveyglobest031219 Seyfarth's Real Estate Survey featured in GlobeSt.com https://www.seyfarth.com:443/news/resurveyglobest031219 Tue, 12 Mar 2019 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Survey was featured in a March 12 story from GlobeSt.com, &quot;CRE Survey Takes On Tough Issues.&quot; A divided Congress, co-working spaces, cannabis and Opportunity Zones are topics examined by Seyfarth Shaw&rsquo;s 2019 Survey. You can read the <a href="https://www.globest.com/2019/03/12/cre-survey-takes-on-tough-issues/?slreturn=20190212095354">full article here</a>.</p> https://www.seyfarth.com:443/news/johnsonbloomberglaw031219 Randel Johnson quoted in Bloomberg Law https://www.seyfarth.com:443/news/johnsonbloomberglaw031219 Tue, 12 Mar 2019 00:00:00 -0400 <p> Randel Johnson was quoted in a March 12 story from Bloomberg Law, &quot;LGBT Bill Headed to House as Supreme Court Mulls Legal Question,&quot; on The Equality Act. Johnson said that it&#39;s got widespread support in the business community.</p> https://www.seyfarth.com:443/news/rodriguezlaw360031119 Leon Rodriguez quoted in Law360 https://www.seyfarth.com:443/news/rodriguezlaw360031119 Mon, 11 Mar 2019 00:00:00 -0400 <p> Leon Rodriguez was quoted in a March 11 story from Law360, &quot;Uptick In Visa Scrutiny Pushing Employers To Move Abroad.&quot; Rodriguez said that U.S. companies are being competitively disadvantaged by USCIS&rsquo;s one-dimensional view of immigration and its restrictive adjudications. He said that companies are actually changing their recruiting and talent plans, with the result of U.S. companies locating more operations and increasing headcount outside the U.S.</p> https://www.seyfarth.com:443/publications/OMM031119-EB With IRS Retraction, Lump Sum Buyout Opportunities for Retirees Are Permitted Once Again https://www.seyfarth.com:443/publications/OMM031119-EB Mon, 11 Mar 2019 00:00:00 -0400 <div> On March 6, 2019, the IRS announced its intention to abandon further efforts, at least temporarily, to prohibit defined benefit plans from offering voluntary lump sum cashouts to retirees who are already in pay status.&nbsp; In Notice 2019-18, the IRS has revisited its July 9, 2015 announcement and retracted its previously stated intention to amend the required minimum distribution (RMD) rules under Section 401(a)(9) of the Internal Revenue Code to ban such offerings.&nbsp;</div> <div> &nbsp;</div> <div> For historical background, defined benefit plan sponsors have been for years devising ways to offset longevity and investment risks and ever-rising Pension Benefit Guaranty Corporation premiums.&nbsp; This includes prevalent strategies such as offering lump sum cashout opportunities to deferred vested participants and transferring retiree benefit obligations to third party insurance companies.&nbsp; By 2015, an increasingly common &ldquo;de-risking&rdquo; strategy was to offer in-pay participants and beneficiaries an optional lump sum buyout of their benefits to end the plan&rsquo;s ongoing financial and administrative obligations to them.&nbsp; Indeed, the rising popularity of lump sum windows was due in no small part to the IRS issuing several private letter rulings, disposing of lingering legal uncertainties associated with the RMD rules.&nbsp; However, the IRS abruptly reversed course with Notice 2015-49.&nbsp; Expressing concern for the risk shifting from plan sponsors to retirees (echoed by the Department of Labor and PBGC), the IRS stated its intention to expressly prohibit lump sum windows of this kind through clarifying guidance under Code Section 401(a)(9).</div> <div> &nbsp;</div> <div> Fast-forwarding to the present, Notice 2019-18 states that, although the IRS will not issue further private letter rulings regarding retiree lump sum windows, it will also no longer assert that these offerings are violations of RMD rules or caveat favorable determination letters as to the tax consequences.</div> <div> &nbsp;</div> <div> While it is not entirely evident why the reasons articulated in Notice 2015-49 are no longer of concern the IRS, it is clear that a plan amendment initiating a lump sum window for in-pay retirees will no longer carry a risk of plan disqualification.&nbsp; Thus, for defined benefit plan sponsors, one effective de-risking option has been revived, at least for now.&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/MA031119-LIT The Significant Ramifications of New York’s Child Victim Act https://www.seyfarth.com:443/publications/MA031119-LIT Mon, 11 Mar 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> The Child Victim Act is now law and will have a significant impact on New York&rsquo;s educational and religious institutions and other civic organizations that care for children. It extends the Statute of Limitations an additional 22 years so that victims of childhood sexual abuse can now initiate suit until age 55. It also allows a one year period for people older than 55 to file claims regardless of age, and it even allows claims that had previously been dismissed as untimely to be re-filed and re-litigated. Every school in New York is now vulnerable to decades-old lawsuits they never knew existed. However, those lawsuits can only be commenced six months after the effective date of the legislation.</em></div> <h3> What is the Child Victim Act?&nbsp;</h3> <div> The Child Victim Act (&ldquo;CVA&rdquo;) is New York based legislation designed to protect childhood victims of sexual abuse. Its passage will drastically change New York&rsquo;s strict statute of limitations for sex abuse cases and rectify the fact that many victims of sexual abuse had forfeited their right to redress by not reporting their abuse until after the statutory limitations period had expired. Its passage was celebrated loudly in the halls of the New York State Capitol, as for many years its passage was doubtful.</div> <div> &nbsp;</div> <div> The previous law, one of the strictest in the nation, required alleged victims of sexual abuse to initiate any civil lawsuit before their twenty-third birthday. The CVA was passed with every Senator voting for the Bill, and it passed in the Assembly with a 130-3 majority. It allows alleged victims to bring civil lawsuits until their fifty-fifth birthday and further, provides an open one-year window to revive old cases where the statute of limitations has passed regardless of the age of the victim.</div> <div> &nbsp;</div> <div> The New York Legislature first introduced the CVA Bill thirteen years ago but faced tough opposition from a Republican controlled State Senate. Since the measure was first introduced, support for the CVA and its public awareness has steadily increased. A February 2018 Quinnipiac Poll showed that 90% of New York voters supported the Act. Finally, in the November 2018 midterm elections, and for just the third time in fifty years, the Democrats took control of both legislative houses. Passage of the CVA was atop their list of proposed legislation. They made good on their promise, with Republicans overwhelmingly joining in the initiative. Governor Andrew Cuomo had promised to sign the Bill into law, and he did so on February 14, 2019.</div> <div> &nbsp;</div> <div> This initiative has garnered considerable attention for well over a decade. The reason is clear:&nbsp; there are likely to be significant ramifications for many institutions that care for children in New York.&nbsp;</div> <h3> What Does This Mean for Your Institution?</h3> <div> Any educational, religious or civic organization that cares for children, such as a school camp or day care facility, will be subject to the CVA. This means that a significant number of people may now come forward, recognizing that they have broad-based legislative and public support, and that they will not be faced with the immediate dismissal of their claims on statute of limitations grounds. While many wrongdoers have gone to their graves without reproach, left to answer for their wrongdoing are their employers, who will be accused of turning a blind eye to these victims when in their care, and for negligently supervising or retaining the wrongdoer.</div> <div> &nbsp;</div> <div> As an institution providing services to children, even if you are currently unaware of any pending issues as to children previously in the institution&rsquo;s care, any individual under fifty-five years old would be entitled to initiate a public lawsuit against your organization. The defense of such cases is often extremely difficult as memories have faded and witnesses have disappeared. Evidence such as student records, medical records, witnesses to the abuse, individuals who might have received the victim&rsquo;s outcry, and even the wrongdoers themselves, may be long gone. In many respects the lack of any evidence, other than the statement of the victim, can make an institution essentially defenseless when such claims are asserted.</div> <div> The new legislation does not alter the burden of proof: liability can still be established by a mere preponderance of the evidence, nor does it provide a cap on damages.&nbsp;</div> <div> &nbsp;</div> <div> The creation of a one year window to assert claims that previously were, or would have been, dismissed under the old statute will likely open the floodgates as to the initiation of child sex abuse cases for conduct that occurred decades ago. It will be extremely difficult to predict how many people chose to initiate a lawsuit during the look back period. This may have bankruptcy implications for those institutions unable to assess what might be an overwhelming horizon of&nbsp; liability.</div> <div> &nbsp;</div> <div> Simply stated, the ramifications of the CVA can be enormous.&nbsp;</div> <h3> What Are the Next Steps?</h3> <div> <u>It is important to understand that your institution will have six months from the effective date of the legislation (August 14, 2019) to best prepare for its impact.</u> While an alleged victim will now have a year in which to revive his or her claim, they cannot actually commence their lawsuit until six months after the Bill becomes law. The one year look back will also first begin to run after the six months has passed. Your institution&rsquo;s consideration of the ramifications of the CVA is a necessary and critical first step in addressing this potential problem. Take this 6 month window to prepare.&nbsp;</div> <div> &nbsp;</div> <div> <strong>(1) Determine Your Potential Risk:</strong></div> <ul> <li> If you are aware of possible victims, or rumors of possible victims that may come forward what steps have to you taken to investigate those claims? Who might potential Plaintiffs be? What is their risk tolerance for litigation?&nbsp; Now is the time to investigate those claims, and perhaps avoid a headline and a lawsuit.<br /> &nbsp;</li> <li> Are there lawsuits against your organization that were dismissed on statute of limitations grounds that will likely be resurrected?&nbsp;&nbsp;<br /> &nbsp;</li> <li> Have you ever received a complaint or other information suggesting sexual abuse may have occurred? Have you dealt with such information in a reasonable and prudent manner? Who might potential Plaintiffs be? What is their risk tolerance for litigation?&nbsp;<br /> &nbsp;</li> <li> Do you have insurance policies that may be used to fund the defense or settlement of such claims?&nbsp; Are your carriers on notice of the potential ramifications to your organization?&nbsp;<br /> &nbsp;</li> <li> If lawsuits are commenced, do you still have access to witnesses or documents? Is the alleged abuser still alive? Are they still involved with your institution? What evidence is there that your institution knew, in real time, about the allegations and how did it respond? In short, is this a lawsuit you can defend?&nbsp;<br /> &nbsp;</li> <li> Consider what could be done now to address any concerns and avoid potential litigation. An outreach to victims, offering truth and reconciliation efforts, perhaps including funds earmarked for counseling, may be a good starting point. Or consider the creation of a victims fund that can administer compensation to those victims that seek monetary relief but would rather not file a public lawsuit.&nbsp;</li> </ul> <div> &nbsp;</div> <div> <strong>(2) What Other Options Should My Institution Consider?</strong></div> <div> &nbsp;</div> <div> <u>Supporting Organization:</u></div> <div> &nbsp;</div> <div> If you are a charitable organization, consider establishing a separate legal entity called a &ldquo;supporting organization&rdquo; for purposes of autonomy or limitation of liability. Supporting organizations have been used to provide support to a variety of public charities including potential funding of a separate endowment for the public charity. However, the &ldquo;supporting organization&rdquo; regulations are intricate and detailed, and require careful planning in coordination with its public charity.</div> <div> &nbsp;</div> <div> <u>Bankruptcy Court Protection:</u></div> <div> &nbsp;</div> <div> A last resort may include bankruptcy protection should a flood of lawsuits make survival of the entity doubtful. The Boy Scouts and USA Gymnastics Association believe they have potential liability far in excess of their assets. The USA Gymnastics Association recently filed for Chapter 11 bankruptcy protection and the Boy Scouts is considering it. The goal is to re-organize and preserve assets to carry out their charitable missions while attempting to settle lawsuits.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Filing for bankruptcy is a costly and time consuming step, and there are many caveats as to its use. Consideration should be given as to the reputational harm, as well as certain legal challenges after bankruptcy is declared.</div> <h3> Conclusion</h3> <div> The sexual abuse of children has impacted countless victims in many different ways. There is no dispute that such conduct is reprehensible and must be stopped. The enactment of the CVA is sweeping legislation that addresses this issue. While your institution has a responsibility to the children it serves, it must also take reasonable and prudent steps to prepare itself to respond to any complaints or lawsuits that may now be brought. It needs to now consider allocation of resources and the extent to which funds can be used for today&rsquo;s objectives while at the same time being able to pay for the mistakes of the past. These are not easy decisions to make and they require careful consideration. One thing is for certain however. The CVA is now the law, these cases will be filed, and an institutional response will be required.&nbsp;&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/bloomberglaw031119 Andrew Boutros, Bridget Maricich and Eric Walz authored an article in Bloomberg Law https://www.seyfarth.com:443/publications/bloomberglaw031119 Mon, 11 Mar 2019 00:00:00 -0400 <p> Andrew Boutros, Bridget Maricich and Eric Walz authored a March 11 article in Bloomberg Law, &quot;INSIGHT: ABA Task Force Addresses Sexual Misconduct on College Campuses.&quot; Three Seyfarth Shaw attorneys analyze the impact of work by the ABA College Due Process Task Force on how colleges, universities, and even the Department of Education approach cases of campus sexual misconduct. This article walks through how various stakeholders have turned to the Task Force&rsquo;s work for guidance in formulating an adjudicative system that is fair to both the accused and the accuser. This serves as a primer on the subject; it links to a more detailed piece that comprehensively discusses the topic.</p> https://www.seyfarth.com:443/publications/OMM031119-LE Here We Go Again: DOL Proposes White-Collar Salary Threshold of $35,308 https://www.seyfarth.com:443/publications/OMM031119-LE Mon, 11 Mar 2019 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:&nbsp;</em></strong> <em>In the latest chapter in the ongoing saga of the U.S. Department of Labor&rsquo;s efforts to increase the salary threshold required for most white-collar exemptions, on March 7, 2019, the Department announced a new <u>proposed</u> level of $679 per week ($35,308 per year).&nbsp; No changes to the duties tests are proposed.&nbsp;</em></p> <p> The proposal will be published in the <em>Federal Register</em> shortly, at which time the public will be given 60 days to comment on the proposal.&nbsp; Those comments will be considered by the Department in formulating the final rule.&nbsp; As you may recall, the Department&rsquo;s proposal in 2015 was expected to result in a salary threshold of $50,440; after the comments were reviewed, the threshold was $47,476. &nbsp;Recognizing the influence comments have on the final outcome, as we have in each of the previous chapters of this saga, Seyfarth intends to submit comments in response to the proposal.</p> <p> In addition to the general salary threshold, the Department proposes to increase the total annual compensation requirement for the highly compensated employee exemption from $100,000 to $147,414.&nbsp; The Department also proposes to keep a provision from the 2016 rulemaking related to bonuses:&nbsp; nondiscretionary bonuses and incentive payments (including commissions) may be used to satisfy up to 10% of the $35,308, and any shortfall must be made up on an annual basis.</p> <p> Finally, the Department has eliminated the language from the 2016 rulemaking related to automatic updates of the salary threshold.&nbsp; Instead of an automatic increase, the Department noted that it was &ldquo;affirming its intention to propose increasing the earnings thresholds every four years.&rdquo;&nbsp; The Department notes, however, that notice-and-comment rulemaking will be required for such an increase to take place.&nbsp;</p> <p> Below is a comparison of the current standards, the 2016 enjoined final rule, and the 2019 proposal:</p> <table border="1" cellpadding="0" cellspacing="0"> <tbody> <tr> <td style="width:156px;"> <p> &nbsp;</p> </td> <td style="width:156px;"> <p> Current (2004)</p> </td> <td style="width:156px;"> <p> Enjoined Final Rule (2016)</p> </td> <td style="width:156px;"> <p> Proposed Rule (2019)</p> </td> </tr> <tr> <td style="width:156px;"> <p> Salary Threshold</p> </td> <td style="width:156px;"> <p> $455/week ($23,660)</p> </td> <td style="width:156px;"> <p> $913/week ($47,476)</p> </td> <td style="width:156px;"> <p> $679/week ($35,308)</p> </td> </tr> <tr> <td style="width:156px;"> <p> HCE Threshold</p> </td> <td style="width:156px;"> <p> $100,000</p> </td> <td style="width:156px;"> <p> $134,004</p> </td> <td style="width:156px;"> <p> $147,414</p> </td> </tr> <tr> <td style="width:156px;"> <p> Bonuses/Commissions Count Towards Salary Threshold</p> </td> <td style="width:156px;"> <p> No.</p> </td> <td style="width:156px;"> <p> Yes, up to 10% (reconciled quarterly)</p> </td> <td style="width:156px;"> <p> Yes, up to 10% (reconciled annually)</p> </td> </tr> <tr> <td style="width:156px;"> <p> Automatic Salary Adjustments</p> </td> <td style="width:156px;"> <p> No.</p> </td> <td style="width:156px;"> <p> Yes.&nbsp; Every three years.</p> </td> <td style="width:156px;"> <p> No.&nbsp; Expression of intent to increase every four years.</p> </td> </tr> </tbody> </table> <p> &nbsp;</p> <p> Ultimately, after a full rulemaking process in 2015-16, litigation enjoining the final regulation, a change in Presidential Administration, a request for information resulting in over 200,000 comments, and six in-person listening sessions conducted around the country, we are in many ways exactly where we were are the start of the process--a proposed rule upon which to comment, and an uncertain timeline for a final rule to become effective.&nbsp; Indeed, employer and employee groups alike have threatened litigation over the new rulemaking.</p> <p> This all begs the question: What should employers do now?&nbsp; Because the final rule could contain a different set of salary levels than the proposal contains, it is premature to begin planning in earnest to make changes based on what the final rule will ultimately be.&nbsp; For now, employers should consider carefully, however, the anticipated effects of the rule were it to become effective as it has been proposed.&nbsp; If that consideration gives rise to concerns or observations that should influence the Department&rsquo;s final rulemaking, you can let us know.&nbsp; We will integrate it into the public comments that we submit within the next 60 days.</p> <p> We will be sure to update you as the process continues.&nbsp;</p> https://www.seyfarth.com:443/publications/TS031119 U.S. Senators Request Review of Non-Compete Agreements by the Government Accountability Office https://www.seyfarth.com:443/publications/TS031119 Mon, 11 Mar 2019 00:00:00 -0400 <p> On March 7, 2019, a group of six United States senators from both sides of the aisle submitted a letter to the Government Accountability Office (GAO) requesting a federal investigation into the use of non-compete agreements on the basis that their widening use in recent years raises concerns about their negative impact on both workers and the national economy. Specifically, the letter asks the GAO to assess the following three questions:<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/03/articles/restrictive-covenants/u-s-senators-request-review-of-non-compete-agreements-by-the-government-accountability-office/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP031119 “Office” Violence Is No Laughing Matter https://www.seyfarth.com:443/publications/CP031119 Mon, 11 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Workplace violence is no laughing matter. Although California law arms employers with strict laws to prevent workplace violence, no one wants to find themselves petitioning a court for emergency injunctive relief. Instead, employers should foster healthy workplaces and monitor early warning signs in order to address threats of violence before it is too late.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/03/11/office-violence-is-no-laughing-matter/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/gcn030919 Brent Clark, Ben Briggs and Matthew Sloan's blog post published in General Counsel News https://www.seyfarth.com:443/publications/gcn030919 Sat, 09 Mar 2019 00:00:00 -0400 <p> Brent Clark, Ben Briggs and Matthew Sloan&#39;s blog post was published in a March 9 story from General Counsel News, &quot;What Not to Do: Construction Contractor Charged With Lying to OSHA.&quot; A post in the Seyfarth Shaw Workplace Safety and Environmental Law Alert Blog discusses the case of a construction contractor facing a perjury charge after he allegedly testified that he did not twice order employees to work on a roof. They fell through the roof both times. You can read the <a href="http://generalcounselnews.com/fpa-seyfarth-what-not-to-do-construction-contractor-charged-with-lying-to-osha/?utm_source=dlvr.it&amp;utm_medium=facebook">full article here</a>.</p> https://www.seyfarth.com:443/publications/WSE030819 Final Update from the 2019 ABA Occupational Safety and Health Law Committee Midwinter Meeting https://www.seyfarth.com:443/publications/WSE030819 Fri, 08 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Seyfarth Shaw&rsquo;s OSHA/MSHA group is at the ABA&rsquo;s Occupational Safety and Health Law Committee Midwinter Meeting this week. On our last day, we heard remarks from a panel of ALJs who discussed the discovery process and trial best practices, a panel on safety programs in the 21st Century, and, a panel on updates on the construction industry.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/final-update-from-the-2019-aba-occupational-safety-and-health-law-committee-midwinter-meeting/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH030819 Proposed New White Collar Salary Threshold: $35,308 https://www.seyfarth.com:443/publications/WH030819 Fri, 08 Mar 2019 00:00:00 -0400 <p> Since 2015, we have been following the saga of the salary threshold for the FLSA&rsquo;s white-collar exemptions (most of them, at least). In June 2015, the Department of Labor proposed a level of $50,440. When the final rule was published in May 2016, that level turned out to be $47,476. In the Fall of 2016, the regulation was enjoined, keeping the required salary level at $23,660. Then we&rsquo;ve had an Administration change, a lengthy request for information, and many, many listening sessions.<br /> <br /> <a href="https://www.wagehourlitigation.com/flsa/proposed-new-white-collar-salary-threshold-35308/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CDL030819 Recently Proposed Amendment to CCPA Could Change the Compliance and Risk Landscape in a Big Way https://www.seyfarth.com:443/publications/CDL030819 Fri, 08 Mar 2019 00:00:00 -0400 <p> Just when we thought we had an remote understanding on how the California Consumer Privacy Act (&ldquo;CCPA&rdquo;) would work from an enforcement and penalty perspective, Senate Bill 561 was introduced on February 22. The bill has the full support of Attorney General Xavier Becerra and appears to be heading for a vote; the odds are favoring passage.<br /> <br /> <a href="https://www.carpedatumlaw.com/2019/03/recently-proposed-amendment-to-ccpa-could-change-the-compliance-and-risk-landscape-in-a-big-way/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/hornicknrei030819 Blake Hornick quoted in National Real Estate Investor https://www.seyfarth.com:443/news/hornicknrei030819 Fri, 08 Mar 2019 00:00:00 -0400 <p> Blake Hornick was quoted in a March 8 story from National Real Estate Investor, &quot;Will We See an Uptick in REIT IPOs in 2019?&quot; Hornick said that for REITs, there needs to be a play on the business that is exciting, with real upside, like data storage centers. You can read the <a href="https://www.nreionline.com/reits/will-we-see-uptick-reit-ipos-2019">full article here</a>.</p> https://www.seyfarth.com:443/news/passantinolaw360030819 Alex Passantino quoted in Law360 https://www.seyfarth.com:443/news/passantinolaw360030819 Fri, 08 Mar 2019 00:00:00 -0400 <p> Alex Passantino was quoted in a March 8 story from Law360, &quot;5 Things To Know About The DOL&#39;s New Overtime Rule.&quot; Passantino said that it struck him as funny that it&rsquo;s within $5 per week of the exact midpoint between the $23,660 and the $47,476. He said that it is as close to the middle as you can get without making it totally in the middle.</p> https://www.seyfarth.com:443/news/passantinobi030819 Alex Passantino quoted in Business Insurance https://www.seyfarth.com:443/news/passantinobi030819 Fri, 08 Mar 2019 00:00:00 -0400 <p> Alex Passantino was quoted in a March 8 story from Business Insurance, &quot;Department of Labor issues long-awaited overtime proposal.&quot; Passantino said that the Trump Administration proposal was expected in terms of the proposed threshold. He said it is ridiculously close to the exact middle between the current $23,660 threshold and the $47,476 threshold. You can read the <a href="https://www.businessinsurance.com/article/20190308/NEWS06/912327187/Department-of-Labor-issues-long-awaited-overtime-proposal">full article here</a>.</p> https://www.seyfarth.com:443/publications/CONS030819 Cyberattacks a Growing Concern for Commercial Real Estate Executives https://www.seyfarth.com:443/publications/CONS030819 Fri, 08 Mar 2019 00:00:00 -0400 <p> Seyfarth has released the results of its fourth annual Real Estate Market Sentiment Survey, which polled commercial real estate executives around the country from all sectors. Of interest to our readers, this year&rsquo;s survey revealed that 69% of respondents are concerned about a cyberattack hitting their business in 2019, a significant increase compared to last year (46%).<br /> <br /> <a href="https://www.constructionseyt.com/2019/03/cyberattacks-a-growing-concern-for-commercial-real-estate-executives/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/tymancc030719 Annette Tyman quoted in Corporate Counsel https://www.seyfarth.com:443/news/tymancc030719 Thu, 07 Mar 2019 00:00:00 -0400 <p> Annette Tyman was quoted in a March 7 story from Corporate Counsel, &quot;Boardroom Battles Ahead Over Resolutions Seeking Median Pay Equity for Women.&quot; Tyman said most employers are already thinking about how to achieve pay equity. It&rsquo;s a much broader issue than just equal pay for equal work, she said.</p> https://www.seyfarth.com:443/news/tymanlaw360030719 Annette Tyman quoted in Law360 https://www.seyfarth.com:443/news/tymanlaw360030719 Thu, 07 Mar 2019 00:00:00 -0400 <p> Annette Tyman was quoted in a March 7 story from Law360, &quot;5 Key Questions With EEOC&#39;s Pay Data Rule Now Official,&quot; on whether the EEOC will push back the May 31 deadline for businesses to submit this year&rsquo;s EEO-1 data. Tyman said that it is highly unlikely that employers would be required to provide the required pay data during the May 31 reporting cycle.</p> https://www.seyfarth.com:443/news/talibartiba030719 Peter Talibart quoted in the International Bar Association https://www.seyfarth.com:443/news/talibartiba030719 Thu, 07 Mar 2019 00:00:00 -0400 <p> Peter Talibart was quoted in a March 7 story from the International Bar Association, &quot;Lawyers need to tread carefully on employee implants.&quot; Talibart does not believe employees stand to gain very much from being microchipped. You can read the <a href="https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=f5bee0db-09d4-4c9e-a7de-24f0637329a3">full article here</a>.</p> https://www.seyfarth.com:443/publications/EL030719 Breaking News: D.C. Court Reinstates Collection of Pay Data on EEO-1 Report https://www.seyfarth.com:443/publications/EL030719 Thu, 07 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The U.S. District Court for the District of Columbia vacates the Office of Management and Budget&rsquo;s (OMB) prior order staying the implementation of the revised EEO-1 Report which required employers to report W-2 wage information and total hours worked.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/03/breaking-news-d-c-court-reinstates-collection-of-pay-data-on-eeo-1-report/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE030719 Another Update from the 2019 ABA Occupational Safety and Health Law Committee Midwinter Meeting https://www.seyfarth.com:443/publications/WSE030719 Thu, 07 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Seyfarth Shaw&rsquo;s OSHA/MSHA group is at the ABA&rsquo;s Occupational Safety and Health Law Committee Midwinter Meeting this week. Today we heard remarks from a panel who discussed the general duty clause at length, a panel on safety concerns during emergency response, a panel that discussed the interplay between workers&rsquo; compensation, reportability, and recordability, and a panel on issues arising from OSHA inspections.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/another-update-from-the-2019-aba-occupational-safety-and-health-law-committee-midwinter-meeting/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT030719 The Week in Weed: March 8, 2019 https://www.seyfarth.com:443/publications/TBT030719 Thu, 07 Mar 2019 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/2019/03/the-week-in-weed-march-8-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE030619a Update from the 2019 ABA Occupational Safety and Health Law Committee Midwinter Meeting https://www.seyfarth.com:443/publications/WSE030619a Wed, 06 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Seyfarth Shaw&rsquo;s OSHA/MSHA group is at the ABA&rsquo;s Occupational Safety and Health Law Committee Midwinter Meeting this week. Today we heard remarks from the Solicitor of Labor, OSHA&rsquo;s Acting Director of the Directorate of Enforcement, and the Occupational Safety and Health Review Commission. Each panel reiterated the theme of increased OSHA enforcement in the upcoming year, including aggressive enforcement of the general duty clause.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/update-from-the-2019-aba-occupational-safety-and-health-law-committee-midwinter-meeting/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise030619 Generation All: Managing Workplace and Candidate Pool Trends and Avoiding Age Stereotyping https://www.seyfarth.com:443/publications/FutureEnterprise030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> If you ask someone over age 65 his or her plans for the week, odds are increasing that the answer will be &ldquo;going to work.&rdquo; According to Reuters, the &ldquo;aging workforce&rdquo;&mdash;those 55 and older&mdash;will account for 25% of the workforce by 2024. That&rsquo;s more than double the 12% this group accounted for in 1994. And while the labor force as a whole is projected to grow by an average of just 0.6% per year between 2016 and 2026, the number of workers ages 65 to 74 is projected to grow by 4.2% annually, and the number of workers ages 75 and above is projected to grow by 6.7% annually, according to the U.S. Senate&rsquo;s Special Committee on Aging&rsquo;s 2017 Report on the Opportunities and Challenges before America&rsquo;s Aging Workforce.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2019/3/5/generation-all-managing-workplace-and-candidate-pool-trends-and-avoiding-age-stereotyping">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT030619 Likely to be Dazed and Confused: the Hazy Future of Cannabis-related Trademarks https://www.seyfarth.com:443/publications/TBT030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> It is well known that the U.S. Patent and Trademark Office (USPTO) does not allow federal registration for cannabis-related trademarks (discussed by this blog here and here). Some commenters have speculated that, because courts have been chipping away at the bans on immoral, scandalous, and disparaging trademarks, the ban on federal trademark registrations related to illegal activity may be next.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/03/likely-to-be-dazed-and-confused-the-hazy-future-of-cannabis-related-trademarks/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS030619 Cyberattacks a Growing Concern for Commercial Real Estate Executives https://www.seyfarth.com:443/publications/TS030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> Seyfarth has released the results of its fourth annual Real Estate Market Sentiment Survey, which polled commercial real estate executives around the country from all sectors. Of interest to our readers, this year&rsquo;s survey revealed that 69% of respondents are concerned about a cyberattack hitting their business in 2019, a significant increase compared to last year (46%).<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/03/articles/cybersecurity/cyberattacks-a-growing-concern-for-commercial-real-estate-executives/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CCD030619 The Supreme Court Taketh Away (Equitable Tolling) . . . and Perhaps Giveth (A Second Chance on Reconsideration)? https://www.seyfarth.com:443/publications/CCD030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> The Federal Rules of Appellate Procedure are generally liberal and allow the appellate courts a great deal of discretion: for example, FRAP 2 allows a Court of Appeals to &ldquo;suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).&rdquo; As the Supreme Court emphasized on Tuesday in Nutraceutical Corp. v. Lambert, that final caveat is important.<br /> <br /> <a href="https://www.consumerclassdefense.com/2019/03/the-supreme-court-taketh-away-equitable-tolling-and-perhaps-giveth-a-second-chance-on-reconsideration/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE030619 Trump Administration Superfund Related Activities https://www.seyfarth.com:443/publications/WSE030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Under the Trump Administration, the U.S. Environmental Protection Agency (EPA) has fully or partially deleted 22 sites from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL). This is the largest number of deletions in one year since 2005.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/cercla/trump-administration-superfund-related-activities/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR030619 The NLRB Delivers A Win For Gig Economy Employers By Making It Easier To Classify Workers As Independent Contractors Under The NLRA. https://www.seyfarth.com:443/publications/LR030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: In another employer friendly decision, the NLRB explicitly overruled an Obama administration precedent in emphasizing the importance of entrepreneurial activity and returned to the traditional common law test to evaluate independent contractors under the NLRA.<br /> <br /> <a href="https://www.employerlaborrelations.com/2019/03/06/the-nrlb-delivers-a-win-for-gig-economy-employers-by-making-it-easier-to-classify-workers-as-independent-contractors-under-the-nlra/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/BIO030619 Biosimilar IPRs: Timing is Everything . . . But When is The Right Time? https://www.seyfarth.com:443/publications/BIO030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> Timing the filing of an inter partes review for companies in the early stage of developing a biosimilar product should be carefully considered based on the recent Federal Circuit case, Momenta Pharmaceuticals, Inc. v Bristol-Myers Squibb Co., Appeal No. 2017-1694 (February 7, 2019). Momenta filed an IPR before the PTAB to challenge the validity of a BMS patent covering Orencia&reg; (abatacept) while in its Phase I trials for its own biosimilar product. The PTAB instituted review, conducted trial, and sustained the validity of the BMS patent claims. During this period, however, Momenta&rsquo;s own product failed its Phase I trials and subsequently decided to terminate its pursuit of the biosimilar to the abatacept product at that time. As an Article III court, the Federal Circuit held that Momenta&rsquo;s decision to no longer pursue its biosimilar product rendered its standing to appeal the PTAB&rsquo;s decision moot as there was no judiciable injury. Nevertheless, the question of when to file an IPR remains largely unanswered for a biosimilar manufacturer. Given the expense, duration, and uncertainty of getting approval, biosimilar companies will want to retain its right to appeal an adverse IPR decision. In contrast, an adverse IPR decision for the brand company is retained regardless of the status of the biosimilar. While the Court did not specifically address whether Momenta could have met its standing requirement if it remained actively pursuing its biosimilar, it is clear that the position of brand vs. biosimilar companies vastly contrast as the amici clearly established in this case. According to BIO and PhRMA, the earliest time for a biosimilar company to have standing is upon the filing of its Biologics Licensing Application under the Biologics Price Competition and Innovation Act. Irrespective of the holding of Momenta, timing the filing of an IPR by a biosimilar company is a decision that may be best addressed by future cases that are directly on point.<br /> <br /> <a href="https://www.bioloquitur.com/biosimilar-iprs-timing-is-everything-but-when-is-the-right-time/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/wexlerhaymondtlnt030619 Howard Wexler and Minal Haymond authored an article in TLNT https://www.seyfarth.com:443/publications/wexlerhaymondtlnt030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> Howard Wexler and Minal Haymond authored a March 6 article in TLNT, &quot;Snap and It&rsquo;s Gone: What to Do About Disappearing Evidence.&quot; The article examines how employers can navigate employee issues in an era of &ldquo;disappearing&rdquo; social media. You can read the <a href="https://www.tlnt.com/snap-and-its-gone-what-to-do-about-disappearing-evidence/">full article here</a>.</p> https://www.seyfarth.com:443/news/mcgrathlit030619 Seyfarth Names James McGrath Chair of Litigation Department https://www.seyfarth.com:443/news/mcgrathlit030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> BOSTON -- (March 6, 2019) -- Seyfarth Shaw LLP today announced that James C. McGrath has been appointed chair of the firm&rsquo;s Litigation department.</p> <p> Comprised of more than 160 attorneys, Seyfarth&rsquo;s Litigation department helps clients with every aspect of their dispute resolution needs, nationally and internationally. The talented group of litigators have significant depth and breadth of resources, a commitment to deliver high quality, cost-effective services and a detailed knowledge of clients&rsquo; industries and business concerns. The practice covers the full spectrum of litigation services, including trials and appeals in federal and state courts.</p> <p> A partner in the firm&rsquo;s Boston office and co-chair of the firm&rsquo;s Franchise &amp; Distribution Counseling and Litigation practice group, McGrath&rsquo;s practice focuses on litigation and counseling related to franchise and distribution matters, antitrust and trade regulation issues, and complex commercial litigation. For over 20 years, he has represented clients in a variety of industries, including motor vehicle, transportation, manufacturing, financial services, retail and energy. McGrath has been named a <em>U.S. News/Best Lawyer </em>in the area of Franchise Law since 2010 and was selected as the &ldquo;Lawyer of the Year&rdquo; for Franchise Law in 2015.</p> <p> &ldquo;James is a terrific lawyer and possesses all the qualities necessary for this important leadership position,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;James will be at the helm of the department during a period of substantial growth for the firm. Our litigation team is well-positioned for continued success under his direction.&rdquo;</p> <p> &ldquo;I am privileged to lead such a gifted group of lawyers and proudly step into this exciting new role,&rdquo; said McGrath. &ldquo;Our dedicated team of litigators have earned the respect of clients and colleagues across the globe handling their most important cases and I look forward to guiding the practice as it continues to bolster its roster of dynamic attorneys.&rdquo;</p> <p> McGrath is an experienced trial lawyer, having tried cases, argued appeals and appeared before a variety of federal and state courts and administrative agencies throughout the United States. He has handled matters involving a variety of issues, with a particular emphasis in the motor vehicle industry. McGrath has also obtained significant victories on issues of first impression before several federal Courts of Appeals. He regularly counsels clients on a variety of emerging regulatory and legislative issues affecting the transportation industry.</p> <p> McGrath succeeds Katherine Perrelli, who served as Litigation chair for almost 10 years. During Perrelli&rsquo;s tenure, the department grew strategically across key practices and industries and received numerous honors for superb legal work and innovation, including <em>Law360</em>&rsquo;s &ldquo;Transportation Group of the Year&rdquo;; top rankings in <em>Chambers USA</em>, <em>The Legal 500</em>, and <em>U.S. News/Best Lawyers</em> and <em>Best Law Firms</em>; and recognition on the <em>BTI Litigation Outlook</em> &ldquo;Honor Roll.&rdquo; Perrelli is a leading authority on the law of trade secrets and restrictive covenants and a 2018 <em>U.S. News/Best Lawyer</em> in Commercial Litigation. She is also a member of Seyfarth&rsquo;s National Trial Team, and the Commercial Litigation and Trade Secrets, Computer Fraud and Non-Compete practice groups.</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/johnsonbloomberglaw030619 Randel Johnson quoted in Bloomberg Law https://www.seyfarth.com:443/news/johnsonbloomberglaw030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> Randel Johnson was quoted in a March 6 story from Bloomberg Law, &quot;House to Vote on Paycheck Fairness Act.&quot; Critics say the measure is a hand out to trial lawyers&mdash;it would increase the money damages available in pay bias cases&mdash;and would make it difficult for employers to explain pay differences. Johnson said that it creates a situation where the employer&rsquo;s defense obligations are impossible to meet.</p> https://www.seyfarth.com:443/news/tymanpolitico030619 Annette Tyman quoted in Politico https://www.seyfarth.com:443/news/tymanpolitico030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> Annette Tyman was quoted in a March 6 story from Politico, &quot;Race, gender pay data reporting requirements reinstated.&quot; Of the May 31 deadline to submit the form, Tyman said she thought it was unlikely the EEOC will hold employers to such a short turnaround. You can read the <a href="https://www.politico.com/newsletters/morning-shift/2019/03/06/race-gender-pay-data-reporting-requirements-reinstated-404712">full article here</a>.</p> https://www.seyfarth.com:443/news/millerccr030619 Kyla Miller quoted in the Cook County Record https://www.seyfarth.com:443/news/millerccr030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> Kyla Miller was quoted in a March 6 story from the Cook County Record, &quot;Appeals court: Rumors about woman sleeping to top could leave employer on hook for discrimination suit.&quot; Miller said that, while this case poses a rather extreme example of inconsistent treatment of employees on the basis of sex, it serves as a great example of why it is critical that employers handle these types of rumors confidentially, to the extent possible, and why management must be careful to treat similarly situated employees consistently. You can read the <a href="https://cookcountyrecord.com/stories/512139274-appeals-court-rumors-about-woman-sleeping-to-top-could-leave-employer-on-hook-for-discrimination-suit">full article here</a>.</p> https://www.seyfarth.com:443/news/resurveyrefi030619 Seyfarth's Real Estate Sentiment Survey featured in Real Estate Finance and Investment https://www.seyfarth.com:443/news/resurveyrefi030619 Wed, 06 Mar 2019 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Sentiment Survey was featured in a March 6 story from Real Estate Finance and Investment, &quot;Seyfarth: Pension funds expected to remain major CRE allocators.&quot; Pension funds and other institutional investors are expected to be a primary source of commercial real estate equity in this year, according to Seyfarth&#39;s 2019 Real Estate Market Sentiment Survey.</p> https://www.seyfarth.com:443/news/resurveycw030519 Seyfarth's Real Estate Survey referenced in CannabisWire https://www.seyfarth.com:443/news/resurveycw030519 Tue, 05 Mar 2019 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Survey was referenced in a March 5 newsletter from CannabisWire. 85% of real estate executives surveyed said they do not plan on investing in the cannabis industry. You can read the <a href="https://mailchi.mp/cannabiswire/s-koreas-law-takes-effect-in-days-will-colo-allow-out-of-state-more?e=13e2914c22">full newsletter here</a>.</p> https://www.seyfarth.com:443/publications/EL030519 Survey Says… https://www.seyfarth.com:443/publications/EL030519 Tue, 05 Mar 2019 00:00:00 -0400 <p> Seyfarth Shaw LLP has released the results of its fourth annual Real Estate Market Sentiment Survey, which polled commercial real estate executives around the country from all sectors. Of interest to our readers, this year&rsquo;s survey revealed that, despite the dramatic increase in the number of states legalizing marijuana, 85% of respondents are putting the brakes on investing in cannabis use real estate or leasing space to the cannabis industry. This is not surprising, given the current state of federal law, lack of credit availability from financial institutions, and lack of title insurance.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/03/survey-says/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM030519-LE Breaking News: D.C. Court Reinstates Collection of Pay Data on EEO-1 Report https://www.seyfarth.com:443/publications/OMM030519-LE Tue, 05 Mar 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> The U.S. District Court for the District of Columbia vacates the Office of Management and Budget&rsquo;s (&ldquo;OMB&rdquo;) prior order staying the implementation of the revised&nbsp; EEO-1 Report which required employers to report W-2 wage information and total hours worked.</em></p> <p> On March 4, 2019, the U.S. District for the District of Columbia issued an <a href="https://www.seyfarth.com/dir_docs/publications/Civil_Action_No_17-cv-2458.pdf">opinion</a> reinstating the EEOC&rsquo;s collection of pay data as part of the EEO-1 Report filing.&nbsp; The revised EEO-1 form was an Obama-era change that would have required employers with 100 or more employees to report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands.</p> <p> The pay data collection requirement was originally slated to go into effect on March 31, 2018, but stalled after the Office of Management and Budget (&ldquo;OMB&rdquo;) stayed the implementation of the pay data collection portions of the revised EEO-1 Report.&nbsp; That decision prompted a lawsuit by the National Women&rsquo;s Law Center and the Labor Counsel for Latin American Advancement against the OMB and the EEOC.&nbsp;</p> <p> In its decision, the Court concluded that OMB&rsquo;s action staying the EEOC&rsquo;s pay data collection tool was an &ldquo;illegal&rdquo; arbitrary and capricious decision that lacked a &ldquo;reasoned explanation.&rdquo;&nbsp; As a result, the Court vacated the stay and ordered that the previously approved revised EEO-1 Report that required the collection of pay data form shall be in effect.&nbsp; We anticipate that the Court&rsquo;s decision will be appealed.&nbsp;</p> <p> Seyfarth Shaw offered <a href="https://www.seyfarth.com/dir_docs/publications/us-chamber-of-commerce-testimony-eeo-1-form.pdf">testimony</a> on behalf of the U.S. Chamber of Commerce and submitted comments on the revised EEO-1 Report outlining the employer community&rsquo;s significant concerns with the burden, benefit, and confidentiality of the proposed changes.&nbsp; In early 2017, the U.S. Chamber of Commerce submitted a request for a review of the initial burden estimate along with a supporting declaration and testimony regarding the burden estimates which helped prompt OMB&rsquo;s decision to suspend the implementation of the pay data collection requirement.&nbsp;&nbsp;</p> <p> <strong>Impact to Employers</strong></p> <p> The Court&rsquo;s decision has significant implications for employers.&nbsp; As we have <a href="https://www.seyfarth.com/publications/OMM020119-LE">previously reported</a>, the current EEO-1 Report filing deadline is on May 31st.&nbsp; That filing did not envision the collection of pay data.&nbsp; &nbsp;</p> <p> We anticipate that the EEOC will issue a statement to employers regarding the stay with further direction regarding the implementation date of the pay data collection component of the EEO-1 Report in the very near future.&nbsp; It is highly unlikely that employers would be required to provide the required pay data during the May 31st reporting cycle.&nbsp;</p> <p> We will continue to monitor the situation and will provide updates as they become available.</p> https://www.seyfarth.com:443/publications/OMM030519-LE2 NYS Puts Brakes on Expansive Call-in Pay Reform https://www.seyfarth.com:443/publications/OMM030519-LE2 Tue, 05 Mar 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> The NYSDOL recently announced that it will no longer pursue regulations that, if adopted, would have required most NYS employers to provide call-in pay to employees for hours they do not work under a variety of circumstances.</em></p> <p> <strong>Background</strong></p> <p> The announcement comes as a surprise to many.&nbsp; Ensuring that employers across practically all industries provide their employees with predictable work schedules had been part of the New York State Department of Labor&rsquo;s (&ldquo;NYSDOL&rdquo; or &ldquo;Department&rdquo;) agenda since&nbsp;<a href="https://www.governor.ny.gov/news/governor-cuomo-directs-commissioner-labor-hold-public-hearings-employee-scheduling/">September 2017</a>. &nbsp;After holding four public hearings on the matter, in November 2017, the Department issued its first set of proposed rules, which would have significantly expanded entitlement to call-in pay for all employees subject to the Minimum Wage Order for Miscellaneous Industries and Occupations.&nbsp; After about a year of inaction following the initial set of proposed regulations and a comment period pursuant to the rulemaking process, the Department announced <a href="https://www.seyfarth.com/publications/MA010719-LE2">a revised set of proposed regulations</a> in December 2018.&nbsp;</p> <p> Both proposals contained wide-ranging scheduling circumstances under which a protected employee would be entitled to call-in pay.&nbsp; Considering the State&rsquo;s long-standing effort, all signs pointed to a near certainty that some form of call-in pay regulations would be finalized by the NYSDOL in the earlier half of this year.</p> <p> <strong>The Announcement</strong></p> <p> Last week, <a href="https://www.labor.ny.gov/workerprotection/laborstandards/scheduling-regulations.shtm">on its website</a>, the NYSDOL announced that &ldquo;[b]ased on extensive feedback in the subsequent comment period, it was clear the Department&rsquo;s initial intent to support workers while being fair to businesses was viewed as a one-size-fits-all approach that was not appropriate for every industry.&rdquo;&nbsp; According to the Department, &ldquo;significant issues remained, and the revisions did not achieve the balance of certainty and flexibility for either workers or businesses.&rdquo;</p> <p> <strong>Employer Takeaways</strong></p> <p> Although employers across most industries statewide can take a breath, it is important to remember that the Department&rsquo;s latest <u>does not</u> obliterate all call-in pay obligations of employers subject to the Miscellaneous Industries and Occupations Minimum Wage Order: covered employers must still pay non-exempt employees at least four hours&rsquo; pay, or the numbers of hours&rsquo; pay for their regularly scheduled shift, if less, at the State minimum wage, on any day employees report to work and are thereafter sent home.&nbsp; In addition, employers subject to the Hospitality Industry Wage Order, and New York City retail and fast food employers subject to the stringent scheduling requirements of the City Fair Workweek Law, remain bound by their respective obligations pursuant to those authorities.</p> <p> Also noteworthy is that the Department did not close the door on statewide call-in pay reform in its entirety -- only via the administrative rulemaking process.&nbsp; In letting its current effort expire, the Department hinted that it would &ldquo;re-evaluate in the future, likely in concert with the [State] Legislature.&rdquo;&nbsp; We will continue to monitor call-in pay reform efforts in all governmental arenas, and advise affected employers of any updates.</p> https://www.seyfarth.com:443/publications/ERISA030519 Sixth Circuit Follows Ordinary Principles Of Contract Law To Find Whirlpool Is Not Obligated To Provide Lifetime Retiree Healthcare Benefits https://www.seyfarth.com:443/publications/ERISA030519 Tue, 05 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Over the last several years, the law governing disputes on lifetime retiree health benefits in the Sixth Circuit has had many twists and turns. A recent decision may put an end to this uncertainty, confirming that a CBA&rsquo;s general durational clause applies to healthcare benefits unless the CBA contains clear, affirmative language indicating the contrary.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2019/03/05/sixth-circuit-follows-ordinary-principles-of-contract-law-to-find-whirlpool-is-not-obligated-to-provide-lifetime-retiree-healthcare-benefits/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ADA030419a Justice Department: Businesses Can Provide Less Than 36? Of Clear Sales/Service Counter Space If Counter Is At An Accessible Height https://www.seyfarth.com:443/publications/ADA030419a Mon, 04 Mar 2019 00:00:00 -0400 <p> Seyfarth Synopsis: DOJ provides guidance on sales/service counter rules in the 2010 Standards that provides some relief to businesses.<br /> <br /> <a href="https://www.adatitleiii.com/2019/03/justice-department-businesses-can-provide-less-than-36-of-clear-sales-service-counter-space-if-counter-is-at-an-accessible-height/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/GPW030419 Cyberattacks a Growing Concern for Commercial Real Estate Executives https://www.seyfarth.com:443/publications/GPW030419 Mon, 04 Mar 2019 00:00:00 -0400 <p> Seyfarth has released the results of its fourth annual Real Estate Market Sentiment Survey, which polled commercial real estate executives around the country from all sectors. Of interest to our readers, this year&rsquo;s survey revealed that 69% of respondents are concerned about a cyberattack hitting their business in 2019, a significant increase compared to last year (46%).<br /> <br /> <a href="https://www.globalprivacywatch.com/2019/03/cyberattacks-a-growing-concern-for-commercial-real-estate-executives/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/IMM030419 TPS Update: Last Minute Automatic Extensions For El Salvador and Three Other Countries https://www.seyfarth.com:443/publications/IMM030419 Mon, 04 Mar 2019 00:00:00 -0400 <p> On March 1, 2019, the Department of Homeland Security (&ldquo;DHS&rdquo;) announced that it would continue to preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. As we have previously written, to comply with the federal court order in Ramos et al. v. Nielsen et al, DHS&rsquo;s Federal Register Notice (&ldquo;Notice&rdquo;) yet again protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua, Sudan, Haiti, and El Salvador are now automatically extended through January 2, 2020.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2019/03/tps-update-last-minute-automatic-extensions-for-el-salvador-and-three-other-countries/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH030119 WHD’s Joint Employer Reg Heads to White House https://www.seyfarth.com:443/publications/WH030119 Fri, 01 Mar 2019 00:00:00 -0400 <p> On February 28, the Wage &amp; Hour Division sent to the White House Office of Information and Regulatory Affairs its long-awaited regulatory proposal on joint employment. Not much is known about the proposal, which was described in the Regulatory Agenda as addressing the changes in the workplace in the 60 years since most of 29 CFR 791 was issued. WHD stated that it was proposing changes &ldquo;intended to provide clarity to the regulated community and thereby enhance compliance . . . and help to provide more uniform standards nationwide.&rdquo; The joint employer regulation joins WHD&rsquo;s proposed rules increasing the minimum salary level for exemption and revising the basic and regular rate regulations in the White House review process. We expect the exemption and regular rate proposals to be made public in the next couple of weeks, with the joint employer proposal following shortly thereafter.<br /> <br /> <a href="https://www.wagehourlitigation.com/joint-employment/whds-joint-employer-reg-heads-to-white-house/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM030119-RE Virginia General Assembly Approves Emergency Bill to Reverse the Supreme Court of Virginia’s Holding in The Game Place, L.L.C. v. Fredericksburg 35, LLC https://www.seyfarth.com:443/publications/OMM030119-RE Fri, 01 Mar 2019 00:00:00 -0400 <p> As anticipated, in response to the widely unpopular holding in <em>The Game Place, L.L.C. v. Fredericksburg 35, LLC, 813 S.E.2d 312 (Va. 2018)</em>, the governor of Virginia signed a bill on February 13, 2019 removing the previous statutory requirement that a lease of more than five (5) years contain a seal or other statutory seal substitute in order to be enforceable. The Virginia General Assembly approved House Bill 2287, which contained an emergency clause allowing the bill to take effect immediately upon execution rather than on July 1, 2019 when most bills traditionally take effect, which amended the Statute of Conveyances to remove all references to &ldquo;deed of lease&rdquo; and replace the same with &ldquo;lease&rdquo; and to delete references to seals. Additionally, the bill specifically validates any lease or document conveying a non-freehold estate in land that is in effect as of the effective date of the bill by stating that the same &ldquo;shall not be invalid, unenforceable, or subject to repudiation by the parties to such agreement on account of, or otherwise affected by, the fact that the conveyance of the estate was not in the form of a deed.&rdquo; The bill was introduced in response to the Supreme Court of Virginia unanimously holding a 15-year commercial lease unenforceable due to the fact that it was not executed with the formalities of a deed as previously required under Virginia law. As a result, the bill will allow many landlords (and tenants) to breathe a sigh of relief that the leases that they have operated under for so many years are in fact valid and enforceable.</p> https://www.seyfarth.com:443/publications/foleylaingahleringhr030119 Erin Dougherty Foley, Latoya Laing and Thomas Ahlering authored an article in HR.com https://www.seyfarth.com:443/publications/foleylaingahleringhr030119 Fri, 01 Mar 2019 00:00:00 -0400 <p> Erin Dougherty Foley, Latoya Laing and Thomas Ahlering authored a March 1 article in HR.com, &quot;Biometric Privacy: Is Facebook At Wrong?&quot; Following an opinion by the Illinois Supreme Court, the 9th Circuit will discuss the Illinois Biometric Privacy Act issue &mdash; whether the Act requires class plaintiffs to show that they suffered actual harm in order to seek statutory damages and injunctive relief.</p> https://www.seyfarth.com:443/news/grossenbacherfw030119 Karla Grossenbacher quoted in Financier Worldwide https://www.seyfarth.com:443/news/grossenbacherfw030119 Fri, 01 Mar 2019 00:00:00 -0400 <p> Karla Grossenbacher was quoted in a March story from Financier Worldwide, &quot;Balancing BYOD: risks and rewards.&quot; Grossenbacher said that the risks inherent in BYOD centre around data security and the ability to manage the workforce and enforce policies. You can read the <a href="https://www.financierworldwide.com/balancing-byod-risks-and-rewards#.XG2ceuSWw2w">full article here</a>.</p> https://www.seyfarth.com:443/news/perrellibsm030119 Katherine Perrelli quoted in Boston Spirit Magazine https://www.seyfarth.com:443/news/perrellibsm030119 Fri, 01 Mar 2019 00:00:00 -0400 <p> Katherine Perrelli was quoted in a March 1 story from Boston Spirit Magazine, &quot;The Changing Nature of Corporate Diversity.&quot; Perrelli discussed Seyfarth&#39;s version of the NFL&#39;s &quot;Rooney Rule&quot; where at least one diverse candidate is interviewed for each associate opening. You can read the <a href="https://www.seyfarth.com/dir_docs/publications/Boston_Spirit_magazine_pp_Diversity.pdf">full article here</a>.</p> https://www.seyfarth.com:443/news/resurveycpe030119 Seyfarth's Real Estate Sentiment Survey featured in Commercial Property Executive https://www.seyfarth.com:443/news/resurveycpe030119 Fri, 01 Mar 2019 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Sentiment Survey was featured in a March 1 story from Commercial Property Executive, &quot;Interest Rate Hikes Still a Top Concern for CRE Industry Execs.&quot; Seyfarth&rsquo;s fourth annual Real Estate Market Sentiment Survey found executives fear we may be looking at the end of the growth cycle and a recession. You can read the <a href="https://www.cpexecutive.com/post/interest-rate-hikes-still-a-top-concern-for-cre-industry-execs/">full article here</a>.</p> https://www.seyfarth.com:443/news/maatmanlaw360030119 Gerald Maatman quoted in Law360 https://www.seyfarth.com:443/news/maatmanlaw360030119 Fri, 01 Mar 2019 00:00:00 -0400 <p> Gerald Maatman was quoted in a March 1 story from Law360, &quot;Backlash Has Some Employers Rethinking Forced Arbitration.&quot; Maatman said that the initial stampede, so to speak, that he saw of helping get an arbitration agreement in place right away has slowed down dramatically.</p> https://www.seyfarth.com:443/news/resurveycn420030119 Seyfarth's Real Estate Survey profiled in CannabisNews420 https://www.seyfarth.com:443/news/resurveycn420030119 Fri, 01 Mar 2019 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Survey was profiled in a March 1 story from CannabisNews420, &quot;Survey Says&hellip;&quot; 85% of respondents are putting the brakes on investing in cannabis use real estate or leasing space to the cannabis industry. You can read the <a href="https://cannabisnews420.com/?p=1244">full article here</a>.</p> https://www.seyfarth.com:443/news/maatmannlj022819 Gerald Maatman quoted in the National Law Journal https://www.seyfarth.com:443/news/maatmannlj022819 Thu, 28 Feb 2019 00:00:00 -0400 <p> Gerald Maatman was quoted in a February 28 story from the National Law Journal, &quot;&#39;Epic&#39; Impact: How a Major SCOTUS Decision in Favor of Arbitration Is Shaping the Landscape for Workplace Lawsuits.&quot; Epic changes the dynamics in a profound way, said Maatman. He said it&rsquo;s one of the most important decisions from the Supreme Court that impacts workplace issues.</p> https://www.seyfarth.com:443/news/resurveybisnow022819 Seyfarth's Real Estate Sentiment Survey featured in Bisnow https://www.seyfarth.com:443/news/resurveybisnow022819 Thu, 28 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Sentiment Survey was featured in a February 28 story from Bisnow, &quot;These Things Make CRE Execs Antsy, Seyfarth Shaw Says.&quot; U.S. commercial real estate executives have a sneaking suspicion that 2019 is going to be the last strong year for the economy for a while, according to Seyfarth&rsquo;s fourth annual Real Estate Market Sentiment Survey. You can read the <a href="https://www.bisnow.com/national/news/economy/these-7-things-make-cre-execs-nervous-says-seyfarth-97756">full article here</a>.</p> https://www.seyfarth.com:443/publications/TBT022819 The Week in Weed: March 1, 2019 https://www.seyfarth.com:443/publications/TBT022819 Thu, 28 Feb 2019 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/2019/02/the-week-in-weed-march-1-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE022819 Safeguards, in the Fourth Industrial Revolution https://www.seyfarth.com:443/publications/WSE022819 Thu, 28 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: It is widely proclaimed that we are in the midst of the &ldquo;Fourth Industrial Revolution&rdquo; (4IR). The leaps and bounds that are being made daily in information technology and biotechnology signal the end of homo sapiens or provide liberating freedom for the working masses, depending on which commentator&rsquo;s view you believe.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/international/cross-border-advice-and-transactions/safeguards-in-the-fourth-industrial-revolution/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL022819 #MeToo Confronts Health Care https://www.seyfarth.com:443/publications/EL022819 Thu, 28 Feb 2019 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.laborandemploymentlawcounsel.com/2019/02/metoo-confronts-health-care/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WLS022819 Safeguards, in the Fourth Industrial Revolution https://www.seyfarth.com:443/publications/WLS022819 Thu, 28 Feb 2019 00:00:00 -0400 <p> For us, the daily lived experience of the 4IR in working and home life is not yet as cataclysmic nor as emancipating as the commentators proclaim. However, the ever growing use of technological, timesaving solutions, the &lsquo;gigification&rsquo; of the workforce, the blurring of the lines between work and home and the rising issue of workplace psychological health all signal shifting global trends.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2019/02/safeguards-in-the-fourth-industrial-revolution/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise022819 Snap! And You Miss It: The Legal Risks of Snapchat and Disappearing Evidence in the Workplace https://www.seyfarth.com:443/publications/FutureEnterprise022819 Thu, 28 Feb 2019 00:00:00 -0400 <p> It is almost hard to imagine that barely two decades ago, we used cameras with physical reels to record our memories. Today, photo reels, and to some extent, even standalone cameras are remnants of a bygone era. In their place are a multitude of online photo-sharing platforms, like Snapchat, Instagram and Facebook. Printed photos have turned into &ldquo;live feeds.&rdquo; Scrapbooking has given way to Facebook timelines. And photo albums have morphed into 24-hour Snapchat &ldquo;stories.&rdquo;<br /> <br /> <a href="https://www.futureenterprise.com/blog/2019/2/28/snap-and-you-miss-it">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/PM022819-LE Seyfarth Shaw Policy Matters Newsletter - February 28, 2019 https://www.seyfarth.com:443/publications/PM022819-LE Thu, 28 Feb 2019 00:00:00 -0400 <p> <strong>Paycheck Fairness Act Clears Committee. </strong>On February 26, the House Committee on Education and Labor reported out H.R. 7, the Paycheck Fairness Act, which would radically revise the Equal Pay Act. House leadership is promising swift floor action, with the bill possibly being brought up within the next two to three weeks, with passage all but-assured. Importantly, however, there were no defections at the Committee level on the Republican side, a fact that was <strong>not </strong>a given going into this debate considering the sensitivities of the issues. You may recall that Seyfarth partner Camille Olson was the sole witness invited to <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD2E10AEDC1D181AFD22E991DD5BE488EEDBD24EB72C15E7">testify</a> on problems with the legislation; the other six witnesses were wholly supportive. Her testimony helped lay the groundwork for a number of amendments, including one striking new provisions that would quite literally make it impossible for an employer to demonstrate that a factor other than sex explained the pay differential at issue. Unfortunately, the Committee rejected the amendments, and cleared the way for the plaintiffs&rsquo; bar to rack up easy wins, with unlimited punitive and compensatory damages and expanded class actions.</p> <p> Previously, House-passed versions of this overreaching legislation have died in the Senate but, given the heightened focus on these sensitive issues and the fact three Republican women are up for reelection next year, we are taking nothing for granted and will remain engaged as the debate moves to the Senate.</p> <p> <strong>Senate Committee Moves Labor Nominees (Again).</strong> In a party line vote, on February 27, the Senate HELP Committee once again approved the nominations of a number of key labor nominees, including the heads of OSHA, ETA, and the Wage &amp; Hour Division, and the chair of the EEOC. Their nominations now proceed to the full Senate, where the if and when of their confirmations remain unclear.</p> <p> <strong>Legislators Introduce Bill Aimed at Ending Mandatory Arbitration.</strong> Sen. Blumenthal (D-CT), and Reps. Johnson (D-GA) and Nadler (D-NY) today <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD2E10AEDC1D181AFD22E991DD5BE488EE2BE28F678D7464F2">announced</a> their introduction of the Forced Arbitration Injustice Repeal (FAIR) Act. Not to be confused with the Federal Adjustment of Income Rates (FAIR) Act of 2019, also introduced in this Congress, the arbitration-focused bill would reportedly invalidate predispute agreements to arbitrate employment, consumer, antitrust, and civil rights matters. Text of the bill is not yet available.</p> <p> <strong>Bipartisan Bill to Ease Standards for ADEA Claims.</strong> Reps. Bobby Scott (D-VA) and Jim Sensenbrenner (R-WI) and Sens. Bob Casey (D-PA) and Chuck Grassley (R-IA) introduced H.R. 1230/S. 485, the &ldquo;Protecting Older Workers Against Discrimination Act.&rdquo; Another oldie which has been introduced in past Congresses, the bill would overrule the Supreme Court&rsquo;s 2009 decision in <em>Gross v. FBL Financial Services, Inc.</em>, which requires plaintiffs in age discrimination cases to prove &ldquo;but for&rdquo; causation. According to the sponsors, the bill would ease the standard of proof for ADEA cases and bring it in line with Title VII requirements. Text of the bill is not yet available, however. Notwithstanding its bipartisan introduction, the bill faces an uncertain future. We have been involved in past negotiations over prior versions of this legislation and anticipate will be again.</p> <p> <strong>New Hampshire Senate Passes Non-Compete Ban.</strong> The state legislatures remain active on a wide variety of labor and employment issues, but there has been a recent uptick in efforts to ban (in some form or fashion) the use of non-compete agreements. New Hampshire is the latest state to enter the fray, with the state Senate passing--by voice vote and without debate--a bill prohibiting employers from using non-compete agreements for low-wage workers. The bill is expected to move on to the state House this spring. See Seyfarth&rsquo;s Trading Secrets <a href="http://marketing.seyfarth.com/rs/ct.aspx?ct=24F7661FD2E10AEDC1D181AFD22E991DD5BE4B8CE3B6219">blog</a> for more.</p> <p> To subscribe to the Policy Matters weekly newsletter, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=p8vZlv-7oyuuGgR9-BArL8b1rAz6Krx1yasM0rlqEVSeOrQRaULcZ6NnIDZvpZyy">click here</a>.</p> https://www.seyfarth.com:443/publications/jutkowitzabapp022819 Stanley Jutkowitz authored an article in the ABA Practice Points https://www.seyfarth.com:443/publications/jutkowitzabapp022819 Thu, 28 Feb 2019 00:00:00 -0400 <p> Stanley Jutkowitz authored a February 28 article in the ABA Practice Points, &quot;A Quick Guide to Leasing to a Marijuana-Related Business.&quot; It is important for both parties to be represented by counsel well versed in local, state and federal laws for the parties to have a successful long-term relationship. You can read the <a href="https://www.americanbar.org/groups/litigation/committees/real-estate-condemnation-trust/practice/2019/quick-guide-leasing-marijuana-related-business/">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS022719 For the First Time, a Massachusetts Court Weighs in on the New Noncompetition Agreement Act – Well, Sort Of https://www.seyfarth.com:443/publications/TS022719 Wed, 27 Feb 2019 00:00:00 -0400 <p> As we&rsquo;ve previously written about on this blog, last summer the Massachusetts legislature passed a non-compete reform bill which went into effect on October 1, 2018. Readers of this blog will recall our concerns that the new law is in many ways confusing and may lead to unpredictable results. Now, nearly five months after its effective date, Magistrate Judge Dein of the United States District Court for the District of Massachusetts has issued the first published decision citing the new Massachusetts Noncompetition Agreement Act, Mass. Gen. Laws ch. 149, &sect; 24L&mdash;unfortunately, this decision does not analyze an agreement that is subject to the Act, but it does confirm our suspicions that creative practitioners will try to use the new law to attack the enforceability of agreements entered into before the effective date.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/02/articles/noncompete-enforceability/for-the-first-time-a-massachusetts-court-weighs-in-on-the-new-noncompetition-agreement-act-well-sort-of/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ERISA022719 California Appellate Court Affirms Broad Scope of ERISA Preemption in State Law Privacy Case https://www.seyfarth.com:443/publications/ERISA022719 Wed, 27 Feb 2019 00:00:00 -0400 <p> In an unpublished decision, the Fifth District of the California Court of Appeal held that ERISA Section 514 preempts state law causes of action for invasion of privacy and violations of unfair competition law arising from an underlying claim for ERISA plan benefits. See Weaver v. Healthcomp, Inc., No F075072, 2019 WL 151564.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2019/02/27/california-appellate-court-affirms-broad-scope-of-erisa-preemption-in-state-law-privacy-case/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM022719-LE The Use of Salary History Still Up in the Air in the Ninth Circuit https://www.seyfarth.com:443/publications/OMM022719-LE Wed, 27 Feb 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On technical grounds, the Supreme Court vacated the Ninth Circuit&rsquo;s decision on the use of prior salary to explain pay differences under federal law.</em></p> <p> On February 25, 2019, the Supreme Court issued an unsigned per curiam <a href="https://www.seyfarth.com/dir_docs/publications/SC-18%E2%80%93272.pdf">opinion</a> vacating the Ninth Circuit <em>en banc </em>decision holding that prior salary cannot be relied upon to explain a pay differential between a man and woman under the federal Equal Pay Act.&nbsp;</p> <p> In April 2018, the Ninth Circuit joined the Tenth and Eleventh circuits in holding that the Equal Pay Act precludes employers from relying solely on prior salary to justify pay differences.&nbsp; This was in contrast to decisions in the Seventh and Eighth Circuits, which held that such reliance does not by itself violate the Equal Pay Act.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp;This means that there is no end to the circuit split on this complicated and nuanced area of law.&nbsp;&nbsp;</p> <p> So what did the Supreme Court hold?&nbsp; Noting that judges are &ldquo;appointed for life, not for eternity,&rdquo; the Supreme Court vacated the Ninth Circuit opinion because the majority opinion was authored by the late Judge Stephen Reinhardt and not filed until 11 days after his death, and without Judge Reinhardt&rsquo;s vote, the rationale underlying opinion no longer had the majority vote.</p> <p> Today&rsquo;s Supreme Court ruling, however, is unlikely to resolve this issue for long.&nbsp; Back when the Ninth Circuit decided <em>Rizo</em>, the 10 living judges at the time of the opinion&rsquo;s filing all concurred with the ultimate decision that prior salary history could not justify a pay disparity.&nbsp; Upon remand, we are likely to see the same outcome, although perhaps with a different rationale.</p> <p> So what does this mean for employers in the Ninth Circuit?&nbsp; In some states, not much.&nbsp; There are state laws prohibiting employers from using prior salary as a guidepost in justifying pay differences in California, Hawaii, Oregon, and Washington State.&nbsp; This remains an area that should be approached with caution.</p> <p> Seyfarth&rsquo;s Pay Equity Group continues to track these developments closely.&nbsp; Watch for further updates soon.<br /> &nbsp;</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Cf. Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir. 2015), quoting Angove v. Williams-Sonoma, Inc., 70 F. App&rsquo;x 500, 508 (10th Cir.2003) (unpublished) (holding that the Equal Pay Act &ldquo;precludes an employer from relying solely upon a prior salary to justify pay disparity.&rdquo;) and Irby v. Bittick, 44 F.3d 949 (11th Cir. 1995), quoting Glenn v. General Motors Corp., 841 F.2d 1567, 1571 &amp; n. 9; (&ldquo;We have consistently held that &lsquo;prior salary alone cannot justify pay disparity&rsquo; under the EPA.&rdquo;) with Wernsing v. Department of Human Servs, 427 F.3d 466, 471 (7th Cir. 2005) (holding that relying on differences in prior salary, absent any evidence of discrimination, is permitted) and Taylor v. White , 321 F.3d 710, 720 (8th Cir. 2003) (&ldquo;we believe a case-by case analysis of reliance on prior salary or salary retention policies with careful attention to alleged gender-based practices preserves the business freedoms Congress intended to protect when it adopted the catch-all &ldquo;factor other than sex&rdquo; affirmative defense.&rdquo;)</p> </div> </div> <p> &nbsp;</p> https://www.seyfarth.com:443/news/resurvey022719 Seyfarth Real Estate Market Sentiment Survey Reveals Top Concerns for 2019 https://www.seyfarth.com:443/news/resurvey022719 Wed, 27 Feb 2019 00:00:00 -0400 <p> As the country prepares to endure more political and financial volatility, commercial real estate executives cite rising interest rates and the end of the current growth cycle as their lead concerns for the industry this year, according to Seyfarth Shaw&rsquo;s 4th annual <em>Real Estate Market Sentiment Survey</em>. This focus on real estate fundamentals is best understood in the context of legislative gridlock and serious business threats, on the one hand, and new investment opportunities in opportunity zones, the cannabis business, and coworking spaces, on the other.</p> <p> From a divided congress to cannabis investment to new coworking spaces, Seyfarth Shaw&rsquo;s 2019 <em>Survey</em> examines the industry&rsquo;s current market sentiment:</p> <p> <strong>Fed Chief Takes Charge</strong>: To little surprise, given Fed Chairman Jerome Powell&rsquo;s announcement to raise interest rates in December 2018, only 6 percent of respondents surveyed in January 2019 expect three rate increases in 2019, down from 37 percent last year. President Trump&rsquo;s public distaste for interest rate hikes may also play a part in respondents&rsquo; sentiment. However, as in every previous year of the survey, respondents are tremendously hawkish &mdash; as 91 percent expect at least one increase this year.</p> <p> <strong>Cannabis Caution</strong>: The great majority of respondents (85 percent) do not plan on investing in the cannabis industry in 2019. Of substantial legal concern to companies pondering investment, marijuana is still considered a Schedule I drug by the Federal Government. With a patchwork of existing state cannabis laws and no legislative movement federally, banks continue to place limits on credit, thus complicating investment opportunities.</p> <p> <strong>Coworking Confusion</strong>: 70 percent of commercial real estate executives report no increased investment in coworking spaces in 2019, notwithstanding the explosive growth of this product over the last few years. This survey response raises more questions than answers about the future of coworking: Is the industry facing a saturated market or are most businesses already in the coworking game?</p> <p> <strong>Cyberattack Awareness</strong>: Concern for cyberattacks grew by over 20 percent in the last year. As news outlets continue to publish stories about large cyberattacks on notable brand companies, the real estate industry has taken notice of its vulnerability.</p> <p> <strong>House Divided</strong>: The political landscape dramatically changed as of 2019, and President Trump faces a new power dynamic in Washington for the remainder of his first term. However, this shift doesn&rsquo;t seem to bother half the industry who report it will have no impact on the market. Only 37 percent believe the blue wave in the House will have a negative impact. In 2017, over two-thirds of respondents believed that the Trump Administration would have a positive impact on the market and one-third named Donald Trump the best presidential candidate for the industry in the firm&rsquo;s inaugural survey back in 2016.</p> <p> <strong>End in Sight</strong>: Survey respondents are clearly indicating the industry&rsquo;s general sentiment that all good things must come to an end. The end of the current growth cycle, a new concern for a potential recession, and a continued fear of rising interest rates round out the top three concerns of 2019. The commercial real estate industry appears insusceptible to the turbulent political and financial news of the day as political risk, increased investigations and possible impeachment, and stock market volatility finish near the bottom of this year&rsquo;s list of concerns.</p> <p> <strong>Tax Opportunities</strong>: Nearly one-third of survey respondents (32 percent) indicate that they will be taking advantage of the federal opportunity zone program as either an investor or sponsor in 2019. Of that group, almost one-third of real estate executives (32 percent) are investing in opportunity zones as a new source of investment capital, while another 25 percent plan to utilize the program as a way to defer current taxable gains.</p> <p> Seyfarth, which helped clients close more than $50 billion in real estate transactions since 2017, surveyed commercial real estate executives in January. For a full copy of the 2019 Seyfarth <em>Real Estate Market Sentiment Survey</em>, visit <a href="http://seyfarth-ebooks.com/2019-Real-Estate-Sentiment-Survey/">here</a>.</p> <p> <strong>About Seyfarth Shaw </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/publications/MA022619-LE No Splitting Hairs About It: New York City Issues Guidance Banning Hair Discrimination https://www.seyfarth.com:443/publications/MA022619-LE Tue, 26 Feb 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> New York City recently released guidance that ensures that all New Yorkers, with an emphasis on black people, have a right to wear their &ldquo;natural hair, treated or untreated hairstyles such as locs, cornrows, braids, Bantu knots, fades, Afros and/or the right to keep their hair in an uncut or untrimmed state&rdquo; without fear of reprisal. A copy of the guidance can be found <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf">here</a>.</em></p> <p> <strong>Overview of What the Guidance Does and Does Not Represent</strong></p> <p> The guidance is noteworthy as a road map for how the New York City Commission on Human Rights (the &ldquo;City Commission&rdquo;) will, as part of its investigatory and adjudicatory authority, interpret whether an issue involving the hair of an employee or applicant is discriminatory under the New York City Human Rights Law (&ldquo;NYCHRL&rdquo;). The guidance is also noteworthy because no other agency, state or federal, or court has seemingly asserted such broad principles of protection for discrimination on the basis of hair.</p> <p> On the other hand, the guidance is just that:&nbsp; guidance. It is not a statute. Nor is it a regulation developed in accordance with rule-making requirements. Thus, while the City Commission will certainly follow the guidance, a court is free to defer or not to the guidance in whole or in part.</p> <p> <strong>Guidance Specifics</strong></p> <p> The guidance explains how hair texture and hairstyles are connected deeply to black identity and therefore warrant protection as racial characteristics under the NYCHRL. Although the guidance focuses primarily on race-based discrimination for people who wear particular hairstyles because of their racial/ethnic identity, it notes that protections for hair-based discrimination extend to other areas such as discrimination based on religion, gender, age, and disability.</p> <p> In connection with &ldquo;grooming or appearance policies,&rdquo; the guidance forbids employers in New York City from banning natural hair or other hairstyles commonly associated with black people.&nbsp; The guidance does not purport to invalidate facially neutral grooming or appearance policies that are very common among employers, but the guidance emphasizes how such policies may be discriminatory as applied. And while legitimate health and safety concerns remain legitimate justifications for an employer&rsquo;s application of grooming or appearance standards, the guidance states that the employer must address any concern before imposing a ban or restriction, such as by requiring the use of&nbsp; hair ties, hair nets, head coverings or safety equipment that can accommodate various hairstyles and textures.</p> <p> The following are examples the guidance describes as discriminatory:</p> <ul> <li> A grooming policy prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with black people</li> <li> A grooming policy requiring employees to alter their hair to conform to the company&rsquo;s appearance standards, including having to straighten or chemically relax hair</li> <li> A grooming policy that bans hair that extends a certain number of inches from the scalp, thereby effectively prohibiting Afros</li> <li> Applying facially neutral policies in a discriminatory manner, for example, banning the use of color/dyes, extensions, and/or patterned or shaved hairstyles against black employees only</li> <li> Harassing and imposing unfair conditions on employees based on their appearance, such as forcing black people to obtain permission before changing their hairstyles; requiring only black people to alter or cut their hair or risk losing their job; telling a black person that he/she cannot be in a customer-facing role because of his/her hair; refusing to hire a black applicant because his/her hair does not fit a certain &ldquo;image;&rdquo; and mandating that black employees hide their hair under a hat or visor; and</li> <li> Banning or limiting or otherwise restricting natural hair or hairstyles because they do not fit a certain corporate image because of customer preference or under the guise of a speculative health or safety concern.</li> </ul> <p> <strong>Mutability of Hairstyles Irrelevant Under City Guidance, But Not Federal Law</strong></p> <p> While the guidance asserts that hair-based discrimination claims are gaining momentum across the country, there is no federal law that protects hairstyles and textures. In 2018, the United State Supreme Court declined to review a case brought on behalf of Chastity Jones, a black woman who had a job offer rescinded when she refused to change her locs. The Eleventh Circuit Court of Appeals held that racial discrimination has to be based on immutable characteristics, such as skin color, and that hairstyles do not qualify as immutable because they can be changed. This interpretation differs from the City&rsquo;s guidance, which directly links black hairstyles to racial/ethnic identity regardless of their mutable nature.</p> <p> <strong>Employer Takeaways</strong></p> <p> Employers should not only ensure that their &ldquo;grooming or appearance&rdquo; policies are facially neutral, but also consider whether the application of these policies or other actions related to the hair of an applicant or employee might be deemed discriminatory in a specific instance. A court might be persuaded that the guidance is unworthy of deference on grounds such as that the NYCHRL does not protect against discrimination based on a mutable characteristic. But this is far from a certainty. Meanwhile the City Commission will certainly follow the guidance and has sweeping powers to investigate and adjudicate possibly through administrative hearings, as well as to impose civil penalties up to $250,000 for violations of the NYCHRL (with no cap on statutory damages) and require employers to amend their policies into compliance. Accordingly, most employers in New York City will want to strive for compliance with the guidance.</p> https://www.seyfarth.com:443/publications/EL022619 What’s Happening?? Recent changes to the Illinois Human Rights Act https://www.seyfarth.com:443/publications/EL022619 Tue, 26 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: A number of changes have been made (and proposed amendments are being considered) to the Illinois Human Rights Act since the beginning of the year. Read on for further information.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/02/whats-happening-recent-changes-to-the-illinois-human-rights-act/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/goodinhrblr022619 Matthew Goodin authored an article in HR.BLR.com https://www.seyfarth.com:443/publications/goodinhrblr022619 Tue, 26 Feb 2019 00:00:00 -0400 <p> Matthew Goodin authored a February 26 article in HR.BLR.com, &quot;Meal Period Case Demonstrates That Even Minimal Violations Can Lead to Substantial Exposure.&quot;</p> https://www.seyfarth.com:443/publications/WC022619 The U.S. Supreme Court Rules That The Deadline To Appeal A Class Certification Order Is Not Subject To Equitable Tolling https://www.seyfarth.com:443/publications/WC022619 Tue, 26 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: To take an immediate appeal from a federal district court&rsquo;s order granting or denying class certification, a party must first seek permission from the applicable court of appeals &ldquo;within 14 days after the order is entered.&rdquo; Fed. Rule Civ. Pro. 23(f). In Nutraceutical Corp. v. Lambert, No. 17-1094, 2019 WL 920828, at *4 (U.S. Feb. 26, 2019), the U.S. Supreme Court addressed the question of whether a court of appeals may equitably toll that deadline when an opposing party objects that the appeal is untimely. Because Rule 23(f)s&rsquo; deadline was meant to be rigorously enforced, the Supreme Court concluded that Rule 23(f) is not subject to equitable tolling &ndash; even where good cause for equitable tolling might otherwise exist. The Supreme Court&rsquo;s ruling in Lambert is therefore a &ldquo;must read&rdquo; for all corporate counsel involved in workplace class action litigation.<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/02/the-u-s-supreme-court-rules-that-the-deadline-to-appeal-a-class-certification-order-is-not-subject-to-equitable-tolling/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/neih022519 Lynn Kappelman and Dawn Solowey authored an article in New England In-House https://www.seyfarth.com:443/publications/neih022519 Mon, 25 Feb 2019 00:00:00 -0400 <p> Lynn Kappelman and Dawn Solowey authored a February 25 article in New England In-House, &quot;Jury selection for harassment cases in the #MeToo era.&quot; You can read the <a href="https://newenglandinhouse.com/2019/02/25/jury-selection-for-harassment-cases-in-the-metoo-era/">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS022519 New Hampshire Senate Seeks to Ban Non-Competes for Low-Wage Workers https://www.seyfarth.com:443/publications/TS022519 Mon, 25 Feb 2019 00:00:00 -0400 <p> On February 21, 2019, the New Hampshire Senate, in a bipartisan voice vote and without debate, passed Senate Bill 197, which would prohibit employers from requiring low-wage workers to enter into non-compete agreements, and makes such agreements void and unenforceable.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/02/articles/legislation-2/new-hampshire-senate-seeks-to-ban-non-competes-for-low-wage-workers/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WH022519 Fifth Circuit Says Plaintiffs May Not Send Notice of FLSA Suit to Employees with Arbitration Agreements https://www.seyfarth.com:443/publications/WH022519 Mon, 25 Feb 2019 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.wagehourlitigation.com/flsa/fifth-circuit-says-plaintiffs-may-not-send-notice-of-flsa-suit-to-employees-with-arbitration-agreements/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/weisswgnradio022519 Philippe Weiss interviewed on WGN Radio https://www.seyfarth.com:443/news/weisswgnradio022519 Mon, 25 Feb 2019 00:00:00 -0400 <p> Philippe Weiss was interviewed February 25th on WGN Radio, &quot;Wintrust Business Lunch.&quot; Weiss is explaining why employers are lowering their employment standards for their workers. You can listen to the full interview at minute 16:58 <a href="https://wgnradio.com/2019/02/25/wintrust-business-lunch-2-25-19-chicago-sports-betting-lowering-employment-standards-family-loans/">here</a>.</p> https://www.seyfarth.com:443/news/shermansbr022519 Andrew Sherman interviewed on Small Business Radio https://www.seyfarth.com:443/news/shermansbr022519 Mon, 25 Feb 2019 00:00:00 -0400 <p> Andrew Sherman was interviewed February 25th on Small Business Radio, &quot;A look at the 2019 economic condition.&quot; Sherman discussed some of the economic factors that are pushing and pulling the US economy in an overall positive direction, and should continue that vector for the foreseeable future. You can listen to the <a href="https://www.smallbusinessadvocate.com/small-business-interviews/andrew-j--sherman-31057">full interview here</a>.</p> https://www.seyfarth.com:443/news/shermansbr22519 Andrew Sherman interviewed on Small Business Radio https://www.seyfarth.com:443/news/shermansbr22519 Mon, 25 Feb 2019 00:00:00 -0400 <p> Andrew Sherman was interviewed February 25th on Small Business Radio, &quot;Will the US-China trade negotiations cure other ills?&quot; Sherman discusses global economic challenges and whether they will be overcome and minimized by a potentially historic trade deal with China. You can listen to the <a href="https://www.smallbusinessadvocate.com/small-business-interviews/andrew-j--sherman-31058">full interview here</a>.</p> https://www.seyfarth.com:443/news/shermanmergermarket022519 Andrew Sherman quoted in Mergermarket https://www.seyfarth.com:443/news/shermanmergermarket022519 Mon, 25 Feb 2019 00:00:00 -0400 <p> Andrew Sherman was quoted in a February 25 story from Mergermarket, &quot;Technology, Media &amp; Telecom.&quot; Sherman said that between AI, robotics, quantum and cloud computing, VR, gaming, 5G, and cybersecurity there are a lot of players and places to make investments.</p> https://www.seyfarth.com:443/news/shermansmallbusinessradio022519 Andrew Sherman interviewed on Small Business Radio https://www.seyfarth.com:443/news/shermansmallbusinessradio022519 Mon, 25 Feb 2019 00:00:00 -0400 <p> Andrew Sherman was interviewed February 25th on Small Business Radio, &quot;What&rsquo;s next for the economy? AI, drones, blockchain, etc.&quot; Sherman discussed the impact that new technologies, like artificial intelligence, drone, and blockchain are going to have on the future of business. You can listen to the <a href="https://www.smallbusinessadvocate.com/small-business-interviews/andrew-j--sherman-31059">full interview here</a>.</p> https://www.seyfarth.com:443/publications/CONS022519 Alison Ashford to Moderate a Public-Private Partnership (P3) Risk Allocation Program https://www.seyfarth.com:443/publications/CONS022519 Mon, 25 Feb 2019 00:00:00 -0400 <p> Alison Ashford, Seyfarth partner and co-chair of the Seyfarth Construction Group, is moderating the &ldquo;Risk/Reward?: Challenging Issues with Design/Construction Risk Allocation&rdquo; panel at The Public-Private Partnership Conference &amp; Expo, March 4-6 in Dallas, Texas.<br /> <br /> <a href="https://www.constructionseyt.com/2019/02/alison-ashford-to-moderate-a-public-private-partnership-p3-risk-allocation-program/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/olsonwhoradio022419 Camille Olson interviewed on WHO Radio https://www.seyfarth.com:443/news/olsonwhoradio022419 Sun, 24 Feb 2019 00:00:00 -0400 <p> Camille Olson was interviewed February 24th on WHO Radio&#39;s The Justin Brady Show, &quot;The Paycheck Fairness Act Isn&#39;t Remotely Fair.&quot; Olson testified to Congress on the Paycheck Fairness Act (H.R. 7) because it&#39;s not even remotely fair. She explains how companies would literally have to present proof for every pay raise or bonus ever rewarded or face unlimited damages. You can listen to the <a href="https://whoradio.iheart.com/featured/the-justin-brady-show/content/paycheck-fairness-act-camille-olson/">full interview here</a>.</p> https://www.seyfarth.com:443/news/adairishtimes022419 Seyfarth's ADA Analysis referenced in The Irish Times https://www.seyfarth.com:443/news/adairishtimes022419 Sun, 24 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA analysis was referenced in a February 24 story from The Irish Times, &quot;Primark settles US legal action over web access for the blind.&quot; Recent research by Seyfarth, reported by Forbes, suggested that at least 800 such cases were filed in 2017, with last year&rsquo;s total expected to be higher. You can read the <a href="https://www.irishtimes.com/business/retail-and-services/primark-settles-us-legal-action-over-web-access-for-the-blind-1.3803736">full article here</a>.</p> https://www.seyfarth.com:443/publications/EL022219 What Not to Do: Construction Contractor Charged With Lying to OSHA https://www.seyfarth.com:443/publications/EL022219 Fri, 22 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: A construction contractor twice orders, via text message, his employees to work on a roof, and both times the employees fall through. The contractor later testifies in a deposition that he did not ask them to work on the roof. Lesson No. 1: don&rsquo;t lie when you&rsquo;re providing sworn testimony, especially when there exists discoverable evidence to the contrary. Lesson No. 2: be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/02/what-not-to-do-construction-contractor-charged-with-lying-to-osha/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/FutureEnterprise022219 #MeToo Confronts Health Care https://www.seyfarth.com:443/publications/FutureEnterprise022219 Fri, 22 Feb 2019 00:00:00 -0400 <p> A 2018 report issued by the National Academies of Sciences, Engineering, and Medicine (NASEM) documents the problem of sexual harassment in the medical field in significant detail.[2] Among other things, the NASEM report demonstrates that the academic environments in medicine exhibit characteristics that create high risk levels for the occurrence of sexual harassment. The report finds that, by far, the greatest predictor of sexual harassment is the organizational climate across an institution (also referred to as the perceptions of organizational tolerance). In short, women are more likely to be directly harassed and to witness the harassment of others in environments that are perceived as more tolerant or permissive of sexual harassment.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2019/2/22/metoo-confronts-health-care">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CONS022219 A Trap for the Unwary Owner, Lender, and General Contractor: Avoiding Criminal Liability and Civil Penalties in Connection with Tennessee Construction Projects https://www.seyfarth.com:443/publications/CONS022219 Fri, 22 Feb 2019 00:00:00 -0400 <p> For any &ldquo;prime&rdquo; or general construction contract that is $500,000 or greater and all subcontracts thereunder (regardless of amount), Tennessee law requires that the owner (and by implication, any construction lender funding construction draws and any general contractor responsible for payment to subcontractors) deposit the amount of any retainage in a third-party, interest-bearing escrow account with a financial institution at the time the retainage is withheld. (TN Code &sect; 66-34-104.)<br /> <br /> <a href="https://www.constructionseyt.com/2019/02/trap-unwary-owner-lender-general-contractor-avoiding-criminal-liability-civil-penalties-connection-tennessee-construction-projects/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA022119-LE New Jersey Puts Family First with Paid Family Leave Expansion https://www.seyfarth.com:443/publications/MA022119-LE Thu, 21 Feb 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: New Jersey Governor Phil Murphy signed an expansive paid family leave bill which provides for increased leave time and pay while on leave beginning in 2020, a broader definition of covered employers and family members, and a right to reinstatement for more employees.&nbsp; The benefits remain employee-funded under the law.&nbsp;</em></p> <p> On February 19, 2019,&nbsp;<a href="https://nj.gov/governor/news/news/562019/approved/20190219a.shtml">Governor Murphy signed into law</a> legislation that expands New Jersey&rsquo;s paid family law.&nbsp; Under the amendments, New Jersey employees are entitled to more paid family leave (&ldquo;PFL&rdquo;) and temporary disability (&ldquo;TDI&rdquo;) benefits than ever before.&nbsp; While New Jersey had PFL in place since 2009, beginning in 2020, employees will now be granted 12 weeks of leave, instead of six, greater pay while on leave, and effective immediately, may take leave to care for additional family members, among other changes.&nbsp;</p> <p> The new legislation expands the definition of employer beginning June 30, 2019, to employers with 30 or more employees.&nbsp; To be covered, an employer must have the requisite number of employees on each working day during each of 20 or more calendar workweeks in the current or immediately preceding calendar year.&nbsp; Employers with 30 or more employees are now subject to the non-discrimination and non-retaliation provisions of the law, and must reinstate employees upon returning from leave.</p> <p> Beginning in 2020, employees may take 12 weeks of leave in a 12-month period.&nbsp; The intermittent leave allotment increases with the new legislation from 42 days to 56 days in a 12-month period, starting in July 2020.</p> <p> In addition, employees are entitled to 85% of their weekly wage, with the maximum possible benefit of 70% of the statewide average weekly wage.&nbsp; In 2020, the maximum benefit will likely increase from $650 to $860 per week.&nbsp; In turn, the employee contribution will also increase.</p> <p> New Jersey&rsquo;s PFL law provides that leave may be taken continuously or intermittently.&nbsp; Previously, employees could only take intermittent leave for a family member&rsquo;s health condition if medically warranted, or for bonding if the employer allowed it.&nbsp; However, now, intermittent leave may be taken for any reason.&nbsp; In addition, bonding leave may also be taken in connection with foster placement.&nbsp; Employers may not require an employee to exhaust unused, accrued, paid time off prior to using PFL. &nbsp;However, if an employer provides paid leave for any reason covered by PFL, or if the employee is eligible for TDI or FMLA leave, it is deemed to run concurrently with PFL.</p> <p> The definition of &ldquo;family member&rdquo; now includes the additional individuals in <strong>bold</strong>:</p> <ul> <li> Child <strong>(including a foster child)</strong></li> <li> Parent</li> <li> <strong>Parent-in-law</strong></li> <li> <strong>Sibling</strong></li> <li> <strong>Grandparent</strong></li> <li> <strong>Grandchild</strong></li> <li> Spouse</li> <li> <strong>Domestic Partner</strong> or partner in a civil union</li> <li> <strong>Any other individual related by blood to the employee, or</strong></li> <li> <strong>Any other individual &ldquo;that the employee shows to have a close association with the employee which is the equivalent of a family relationship.&rdquo; </strong></li> </ul> <p> The law further expands the reasons for leave, allowing employees to use TDI if the employee or a family member (as defined above) is the victim of domestic violence or a sexual offense and requires legal, medical, or other assistance, or to participate in a civil or legal proceeding, pursuant to the &nbsp;New Jersey Security and Financial Empowerment Act.</p> <p> New Jersey is following many other states that are providing generous PFL benefits, including <a href="https://www.seyfarth.com/publications/OMM013019-LE">New York</a> and <a href="https://www.seyfarth.com/publications/MA012419-LE">Massachusetts</a>.&nbsp; Seyfarth will continue to track this law as additional guidance becomes available.</p> https://www.seyfarth.com:443/publications/WSE022119 What Not to Do: Construction Contractor Charged With Lying to OSHA https://www.seyfarth.com:443/publications/WSE022119 Thu, 21 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: A construction contractor twice orders, via text message, his employees to work on a roof, and both times the employees fall through. The contractor later testifies in a deposition that he did not ask them to work on the roof. Lesson No. 1: don&rsquo;t lie when you&rsquo;re providing sworn testimony, especially when there exists discoverable evidence to the contrary. Lesson No. 2: be properly prepared and familiar with all relevant facts before providing testimony or statements during an investigation.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/criminal-litigation/what-not-to-do-construction-contractor-charged-with-lying-to-osha/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CDL022119 Top Five Most Common Cybersecurity Attacks and How to Prevent Them – Part 1: Email Spoofing and Wire Fraud https://www.seyfarth.com:443/publications/CDL022119 Thu, 21 Feb 2019 00:00:00 -0400 <p> Every day all over the world, companies fall victim to cybersecurity attacks. It&rsquo;s nearly a constant these days. Many of these attacks are preventable with the right amount of attention to detail in system setup and hardening. The three common themes in postmortem examination of all of these attacks boil down to 1) human error; 2) configuration error; 3) failing to proactively defend. In this series of six posts, we will dive into each attack&rsquo;s anatomy, the attack vector, and the ways companies can attempt to avoid being victim to them. In the last post, guest bloggers from G2 Insurance will walk through how insurance companies react to claims, what to watch out for in your policies, and appropriate coverage levels for cyber insurance based on their experience handling claims.<br /> <br /> <a href="https://www.carpedatumlaw.com/2019/02/top-five-common-cybersecurity-attacks-prevent-part-1-email-spoofing-wire-fraud/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT022119 The Week in Weed: February 22, 2019 https://www.seyfarth.com:443/publications/TBT022119 Thu, 21 Feb 2019 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/2019/02/the-week-in-weed-february-22-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/Tips-on-Avoiding-Wage-and-Hour-Lawsuits-in-Massachusetts Tips on Avoiding Wage and Hour Lawsuits in Massachusetts https://www.seyfarth.com:443/publications/Tips-on-Avoiding-Wage-and-Hour-Lawsuits-in-Massachusetts Thu, 21 Feb 2019 00:00:00 -0400 <p> <strong><em>Tip #1: Consider An Arbitration Agreement&mdash;With A Class Action Waiver </em></strong><br /> <br /> Until recently, there has been much debate about the enforceability of arbitration agreements containing class action waivers. Courts disagreed as to whether employers could enforce these agreements against workers seeking to sue on a class action basis. The debate is over... <a href="https://www.seyfarth.com/dir_docs/publications/MAPecs_Tip1_022119.pdf">Continue Reading Here</a>.</p> <p> <strong><em>Massachusetts Peculiarities, 4th Edition</em></strong></p> <p> <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=dnqetb1YFtQe0dDz-naQ4VgpmEB-rpCgb0lQzvgpg471rCOaTF3ORXtxB1WWkxLd&amp;RS_REFERRSID=dnqetb1YFtQe0dDz-naQ4QTVJWcvmMbWduQ45r6ZGUg&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=dnqetb1YFtQe0dDz-naQ4QTVJWcvmMbWduQ45r6ZGUg"><img align="middle" alt="Request Your Copy" border="0" height="130" src="http://marketing.seyfarth.com/reaction/images/buttons/Reserve_Your_Copy-MAPecs.jpg" width="240" /></a></p> https://www.seyfarth.com:443/news/morrisonbenefitspro022119 Ian Morrison quoted in BenefitsPro https://www.seyfarth.com:443/news/morrisonbenefitspro022119 Thu, 21 Feb 2019 00:00:00 -0400 <p> Ian Morrison was quoted in a February 21 story from BenefitsPro, &quot;SCOTUS will not review USC 403(b) case.&quot; The case had the potential to dramatically impact the growing body of claims against sponsors of retirement plans brought under the Employee Retirement Income Security Act. Morrison said that benefits lawyers have been struggling with this question for some time. You can read the <a href="https://www.benefitspro.com/2019/02/21/scotus-will-not-review-usc-403b-case/?slreturn=20190121164745">full article here</a>.</p> https://www.seyfarth.com:443/news/adashrm022119 Seyfarth's ADA Analysis featured in SHRM https://www.seyfarth.com:443/news/adashrm022119 Thu, 21 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA analysis was featured in a February 21 story from SHRM, &quot;Website Accessibility Lawsuits Are on the Rise.&quot; Website accessibility lawsuits filed in federal court nearly tripled in 2018, from 814 the year before to 2,258, according to Seyfarth&#39;s report. You can read the <a href="https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/Website-Accessibility-Lawsuits-Are-on-the-Rise.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/launeyhre022019 Kristina Launey quoted in Human Resource Executive https://www.seyfarth.com:443/news/launeyhre022019 Wed, 20 Feb 2019 00:00:00 -0400 <p> Kristina Launey was quoted in a February 20 story from Human Resource Executive, &quot;Can You Avoid an ADA Website-Accessibility Lawsuit?&quot; Lawsuits alleging that plaintiffs with a disability could not use company websites because they were not coded to work with assistive technologies, such as screen readers, spiked during the past year, according to Seyfarth&#39;s analysis. Launey said that that, sadly, there seems to be no way to avoid an ADA website-accessibility lawsuit, but adds there are some strong risk-mitigation measures organizations and their employees can take. You can read the <a href="http://hrexecutive.com/can-you-avoid-an-ada-website-accessibility-lawsuit/">full article here</a>.</p> https://www.seyfarth.com:443/news/adalaw360022019 Seyfarth's ADA analysis referenced in Law360 https://www.seyfarth.com:443/news/adalaw360022019 Wed, 20 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA analysis was referenced in a February 20 story from Law360, &quot;ADA Web Accessibility Suits Threaten Credit Unions, Barr Told.&quot; Seyfarth partners Minh Vu and Kristina Launey have found that ADA website accessibility lawsuits rose from around 800 filed in 2017 to around 2,250 filed in 2018, the firm said in early February.</p> https://www.seyfarth.com:443/publications/TS022019a Upcoming Webinar! Protecting Confidential Information and Client Relationships in the Financial Services Industry https://www.seyfarth.com:443/publications/TS022019a Wed, 20 Feb 2019 00:00:00 -0400 <p> Please join us for a one-hour CLE webinar on Wednesday, March 20, 2019, at 1:00 p.m. Eastern / 12:00 p.m. Central / 10:00 a.m. Pacific.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/02/articles/trade-secrets/upcoming-webinar-protecting-confidential-information-and-client-relationships-in-the-financial-services-industry-7/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CCD022019 Eighth Circuit Alert: District Courts Must Determine Article III Standing Before Approving Class Settlements https://www.seyfarth.com:443/publications/CCD022019 Wed, 20 Feb 2019 00:00:00 -0400 <p> On January 8, 2019, Judge Grasz, writing for an Eighth Circuit panel, reiterated the need for district courts to determine Article III standing before approving class settlements. The appeal stemmed from a putative class action wherein U.S. District Court Judge Nanette Laughrey decided to enforce the parties&rsquo; tentative settlement agreement without first deciding the standing issue.<br /> <br /> <a href="https://www.consumerclassdefense.com/2019/02/eighth-circuit-alert-district-courts-must-determine-article-iii-standing-before-approving-class-settlements/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/LR022019 NLRB Reigns In the Definition of Concerted Activity https://www.seyfarth.com:443/publications/LR022019 Wed, 20 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: The NLRB has overturned a previous decision defining any employee&rsquo;s protest in a group setting as protected concerted activity. In Alstate Maintenance, the Board has sought to adhere to the principles defining protected concerted activity set forth in the Meyers decisions.<br /> <br /> <a href="https://www.employerlaborrelations.com/2019/02/20/nlrb-reigns-in-the-definition-of-concerted-activity/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS022019 Salesman Goes on Trial in Chicago for Stealing Company Trade Secrets for a Chinese Competitor https://www.seyfarth.com:443/publications/TS022019 Wed, 20 Feb 2019 00:00:00 -0400 <p> In a case highly watched by trade secret lawyers and others, Robert O&rsquo;Rourke, a 30-year salesman for cast iron products manufacturer Dura Bar, went on trial last week in Chicago (Northern District of Illinois) for allegedly stealing Dura trade secrets before leaving to work for a Chinese competitor. According to the government, O&rsquo;Rourke was a highly respected salesman at Dura until he became disgruntled with Dura management and decided to leave Dura for a Chinese competitor. Over a two year period, O&rsquo;Rourke met with the Chinese competitor (the identity of the Chinese company has not been disclosed) and eventually accepted employment with the competitor. Before resigning from Dura, O&rsquo;Rourke downloaded 1,900 files that contained Dura trade secrets and subsequently attempted to board a flight to China with the trade secrets in hand. O&rsquo;Rourke was stopped at the gate by the FBI and subsequently charged with 13 counts of trade secret theft.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/02/articles/international-2/salesman-goes-on-trial-in-chicago-for-stealing-company-trade-secrets-for-a-chinese-competitor/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP022019 Employee Furloughs – What To Do? https://www.seyfarth.com:443/publications/CP022019 Wed, 20 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: With the recent partial shutdown of the federal government, many federal contractors have faced tough decisions balancing their reduced revenue with their desire to keep their workforce intact. One potential solution is to impose mandatory employee furloughs to reduce costs. This cost-saving measure has some risks peculiar to California that are worth a look.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/02/20/employee-furloughs-what-to-do/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ClientAlert-021919 A Trap for the Unwary Owner, Lender, and General Contractor: Avoiding Criminal Liability and Civil Penalties in Connection with Tennessee Construction Projects https://www.seyfarth.com:443/publications/ClientAlert-021919 Tue, 19 Feb 2019 00:00:00 -0400 <div> For any &ldquo;prime&rdquo; or general construction contract that is $500,000 or greater and all subcontracts thereunder (regardless of amount), Tennessee law requires that the owner (and by implication, any construction lender funding construction draws and any general contractor responsible for payment to subcontractors) deposit the amount of any retainage in a third-party, interest-bearing escrow account with a financial institution at the time the retainage is withheld. (<a href="https://codes.findlaw.com/tn/title-66-property/tn-code-sect-66-34-104.html" target="_blank">TN Code &sect; 66-34-104</a>.)</div> <div> &nbsp;</div> <div> The party responsible for depositing the fund must provide written notice to any prime contractor of its compliance with such statute, including identifying the name of the escrow holder, the account number, and the amount of funds retained in such account, and upon the satisfactory completion of the contract, the party owing the retainage must provide an executed release.</div> <div> &nbsp;</div> <div> Compliance with these statutory requirements cannot be waived by contract or course of dealing. Failure to comply will result in a $300 per day penalty for each day that the retained funds are not deposited into the required escrow account and will constitute a Class A misdemeanor.&nbsp;</div> https://www.seyfarth.com:443/publications/EL021919 Rumor Has It–Workplace Gossip About Female “Sleeping Her Way To The Top” Could Be Sex Discrimination https://www.seyfarth.com:443/publications/EL021919 Tue, 19 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: According to the 4th Circuit, a female employee who was subjected to false rumors that her promotion was a result of sleeping with the boss can levy her claim for sex-based discrimination against her employer. The Court held that the Company served as a catalyst for the gossip stemming from one jealous co-worker, and held that these types of rumors are inherently based on sex stereotypes regarding women&rsquo;s advancement and role in the workplace.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/02/rumor-has-it-workplace-gossip-about-female-sleeping-her-way-to-the-top-could-be-sex-discrimination/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE021919 Workplace Violence and Shootings in the Spotlight https://www.seyfarth.com:443/publications/WSE021919 Tue, 19 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: With the seemingly random workplace violence that continues unabated, many employers are again asking how best to protect their employees.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/workplace-violence/workplace-violence-and-shootings-in-the-spotlight/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT021919 “C” is for… https://www.seyfarth.com:443/publications/TBT021919 Tue, 19 Feb 2019 00:00:00 -0400 <p> Cannabidiol (CBD) competed with Vitamin C as a top ingredient in new cosmetic products this past year, with promises of having anti-inflammatory effects and other healing properties. Amid the hype, at the end of 2018, the Agriculture Improvement Act of 2018, P.L. 115-334 (the &ldquo;2018 Farm Bill&rdquo;) was signed into law, changing the marketing of hemp and derivatives of cannabis and further removing hemp from the Controlled Substances Act thereby making it no longer an illegal substance under federal law. See Section 297A. The 2018 Farm Bill amended the definition of &ldquo;hemp&rdquo; to specifically include &ldquo;all derivatives, extracts, cannabinoids,&rdquo; which has been construed as an attempt to include hemp-based CBD under the definition of industrial hemp. The 2018 Farm Bill allows, subject to certain restrictions, hemp cultivation, along with the sale, transport (including via interstate commerce), and possession of hemp-derived products.<br /> <br /> <a href="https://www.blunttruthlaw.com/2019/02/c-is-for/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/adaartnet021919 Seyfarth's ADA Analysis referenced in artnet News https://www.seyfarth.com:443/news/adaartnet021919 Tue, 19 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA analysis was referenced in a February 19 story from artnet News, &quot;A Spate of Lawsuits Is Targeting Art Schools for Failing to Comply With Disability Act Standards.&quot; The number of website accessibility lawsuits exploded last year, to at least 2,258, an increase of 177 percent over 2017, according to Seyfarth&#39;s analysis. You can read the <a href="https://news.artnet.com/art-world/art-schools-targeted-ada-website-lawsuits-1466275">full article here</a>.</p> https://www.seyfarth.com:443/news/maatmanbi021919 Gerald Maatman quoted in Business Insurance https://www.seyfarth.com:443/news/maatmanbi021919 Tue, 19 Feb 2019 00:00:00 -0400 <p> Gerald Maatman was quoted in a February 19 story from Business Insurance, &quot;Courts take note of sex stereotyping in #MeToo era.&quot; Maatman said that there is a growing trend that courts are more attuned to the nuanced argument that sex-based stereotypes can cross over into harassment than might have been the case a decade ago. You can read the <a href="https://www.businessinsurance.com/article/20190219/NEWS06/912326747/Courts-take-note-of-sex-stereotyping-in-">full article here</a>.</p> https://www.seyfarth.com:443/news/vunyt021819 Minh Vu quoted in the New York Times https://www.seyfarth.com:443/news/vunyt021819 Mon, 18 Feb 2019 00:00:00 -0400 <p> Minh Vu was quoted in a February 18 story from the New York Times, &quot;Galleries From A to Z Sued Over Websites the Blind Can&rsquo;t Use.&quot; Vu said that the landscape is looking rather bleak for defendants. You can read the <a href="https://www.nytimes.com/2019/02/18/arts/design/blind-lawsuits-art-galleries.html">full article here</a>.</p> https://www.seyfarth.com:443/news/adacs021819 Seyfarth's ADA Analysis referenced in the Charlotte Sun https://www.seyfarth.com:443/news/adacs021819 Mon, 18 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA analysis was referenced in a February 18 story from the Charlotte Sun, &quot;Websites for all? Charlotte County one of many facing ADA lawsuits.&quot; According to Seyfarth&#39;s analysis, website accessibility lawsuits across the country last year nearly tripled.</p> https://www.seyfarth.com:443/news/adamb021819 Seyfarth's ADA Analysis referenced in Morning Brew https://www.seyfarth.com:443/news/adamb021819 Mon, 18 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA analysis was referenced in a February 18 story from Morning Brew, &quot;How Accessible Is Your Website?&quot; According to a Seyfarth&#39;s survey, at least 2,258 website accessibility cases were filed in federal courts last year&mdash;nearly 3x the number filed in 2017. You can read the <a href="https://www.morningbrew.com/stories/how-accessible-is-your-website/">full article here</a>.</p> https://www.seyfarth.com:443/news/adawsj021719 Seyfarth's ADA Analysis referenced in the Wall Street Journal https://www.seyfarth.com:443/news/adawsj021719 Sun, 17 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA anlaysis was referenced in a February 17 story from the Wall Street Journal, &quot;Lawsuits Surge Over Websites&rsquo; Access for the Blind.&quot; The number of website-access lawsuits filed in federal court reached 2,250 in 2018, almost three times the 814 filed in 2017, according to Seyfarth&#39;s analysis.</p> https://www.seyfarth.com:443/news/olsonshrm021519 Camille Olson quoted in SHRM https://www.seyfarth.com:443/news/olsonshrm021519 Fri, 15 Feb 2019 00:00:00 -0400 <p> Camille Olson was quoted in a February 15 story from SHRM, &quot;Congress Considers Nationwide Ban on Salary-History Questions.&quot; Testifying before a House Joint Subcommitte Hearing, Olson said that, taken as a whole, H.R. 7 is unworkable as a practical and legal matter in today&#39;s workplaces. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Congress-Considers-Nationwide-Ban-on-Salary-History-Inquiries.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/bartlettbloomberglaw021519 Brett Bartlett quoted in Bloomberg Law https://www.seyfarth.com:443/news/bartlettbloomberglaw021519 Fri, 15 Feb 2019 00:00:00 -0400 <p> Brett Bartlett was quoted in a February 15 story from Bloomberg Law, &quot;Avoiding Joint Liability Requires More Than Just Contracts,&quot; on how the Labor Department and the National Labor Relations Board are turning to new rules to help define joint employer relationships involving employee wages and hours worked as well as labor law. Bartlett said that the business community is eagerly awaiting that clarity, but in the meantime it&rsquo;s not going to affect the increasing joint employer litigation fueled in part by the #MeToo and #TimesUp movements.</p> https://www.seyfarth.com:443/publications/WSE021519 Former OSHA Deputy Assistant Secretary Jordan Barab is Appointed to Congressional Committee to Provide OSHA Oversight https://www.seyfarth.com:443/publications/WSE021519 Fri, 15 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Jordan Barab, former Deputy Assistant Secretary of OSHA, announced on his blog this week that he would &ldquo;start full time work at the Education and Labor Committee in the House of Representatives&rdquo; to provide OSHA oversight.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/former-osha-deputy-assistant-secretary-jordan-barab-is-appointed-to-congressional-education-and-labor-committee-to-provide-osha-oversight/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CP021419 2019 Employment Law: Cases Pending in the California Supreme Court https://www.seyfarth.com:443/publications/CP021419 Thu, 14 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Employment-related cases pending before the California Supreme Court concern various questions that sometimes seem technical, but the answers they elicit will have big consequences. Questions raised by the current crop of cases include standing to sue, the availability of certain claims and remedies, federal preemption of California laws, what counts as compensable time, and&mdash;that perennial favorite&mdash;how to interpret the infernal PAGA statute.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/02/14/2019-employment-law-cases-pending-in-the-california-supreme-court/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM021419-LE USCIS Announces New Version of Form I-539, Application to Extend/Change Nonimmigrant Status, Which Includes Significant Changes https://www.seyfarth.com:443/publications/OMM021419-LE Thu, 14 Feb 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong> On February 11, 2019, the United States Citizenship and Immigration Services (USCIS) announced that it revised Form I-539 and that the new version will be released on March 11, 2019.&nbsp; Form I-539 is a frequently used USCIS form to extend/change the temporary status of dependent family members of principal workers employed pursuant to H-1B, L-1, TN, and E-3 visas, among other categories.&nbsp; Importantly, the announcement stated that applicants will now be required to attend a biometrics appointment before USCIS will grant the extension/change in status.&nbsp; Starting on March 11, 2019, USCIS will only accept the revised Form I-539.</em></p> <p> <strong>Form I-539, Application to Extend/Change Nonimmigrant Status</strong></p> <p> Form I-539 is a frequently used form by those temporarily in the U.S., including in particular, dependents of H-1B, &nbsp;L-1, TN, E-3 and other nonimmigrant workers, to extend and/or change their status.&nbsp; In addition, B-1/B-2 visitors use the form to extend their stay in the United States.</p> <p> The applicant signs Form I-539, which is often filed concurrently with an employer&rsquo;s Form I-129, Petition for Nonimmigrant Worker for the principal worker.&nbsp;</p> <p> <strong>Changes to the Form I-539</strong></p> <p> Although USCIS has not yet released the new version of the form, USCIS did announce the following significant changes:</p> <ul> <li> Every co-applicant included in the primary applicant&rsquo;s Form I-539 must submit and sign a separate Form I-539A.&nbsp; Previously, only the primary applicant was required to sign Form I-539.&nbsp; Parents or guardians may sign on behalf of children under age 14 or those who are not legally able to sign.</li> <li> Every applicant and co-applicant must pay an additional $85 biometrics service fee in addition to the current USCIS filing fee of $370.</li> <li> Every applicant and co-applicant will receive a biometrics services appointment notice, regardless of age.&nbsp; USCIS will schedule the biometrics services appointment at an Application Support Center (ASC) closest to the primary applicant&rsquo;s residential address.</li> <li> As of March 11, 2019, USCIS will only accept the revised version of Form I-539.&nbsp; The new form is not yet available, and according to the announcement, USCIS will not release it until March 11, 2019.</li> </ul> <p> <strong>Expected Consequences of the Revised Form I-539 and Form I-539A</strong></p> <p> Currently, when an applicant files Form I-539 concurrently with the Form I-129, Petition for Nonimmigrant Worker, USCIS typically adjudicates them simultaneously. When filed together under premium processing, USCIS usually approves the I-129 and I-539 together within the 15-calendar day adjudication window, although not obligated to do so.&nbsp; Similarly, under regular processing, USCIS ordinarily adjudicates the I-539 and I-129 together.&nbsp; With the introduction of the biometrics requirement, it is likely that the processing of the I-539 will be significantly delayed, resulting in separate adjudication of the I-539 and I-129.&nbsp; As a result, there may be misalignment of immigration status approvals within a family unit.</p> <p> In addition, the processing of Applications for Employment Authorization, commonly referred to as EADs, filed concurrently with Form I-539 will likely be delayed.&nbsp; This includes EADs for applicants holding dependent statuses, such as H-4, L-2, and E-3D.</p> <p> The revised Form I-539 and Form I-539A are scheduled to be released on March 11, 2019.&nbsp; As of March 11, 2019, USCIS will only accepted the revised form.&nbsp; Consequently, practitioners, employers, and applicants will not be given ample time before the release to review the new form nor complete it in anticipation of an imminent filing.&nbsp; In particular, the timing of the release will impact the Fiscal Year 2020 H-1B &ldquo;Cap&rdquo; Season, as applicants seeking H-4 dependent status often include the Form I-539 along with the principal beneficiary&rsquo;s Form I-129 petition for H-1B status.&nbsp; Therefore, there will be limited time for practitioners and employers to review and complete the form in advance of the H-1B filing window, which opens on April 1, 2019 and closes on April 5, 2019.&nbsp;</p> <p> Seyfarth Shaw LLP will closely monitor this new development.</p> https://www.seyfarth.com:443/publications/TBT021419 The Week in Weed: February 15, 2019 https://www.seyfarth.com:443/publications/TBT021419 Thu, 14 Feb 2019 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/2019/02/the-week-in-weed-february-15-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA021419-LE House Holds Hearing on Paycheck Fairness Act https://www.seyfarth.com:443/publications/MA021419-LE Thu, 14 Feb 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>On Wednesday, February 13, Seyfarth Shaw&rsquo;s Camille A. Olson testified at a joint hearing of the House Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections on the Paycheck Fairness Act&nbsp; (H.R. 7).&nbsp; That bill, in summary, would radically amend the Equal Pay Act to virtually eliminate the ability of an employer to explain pay differences between employees based on job-related factors that are not specifically enumerated in the Equal Pay Act; prohibit an employer from seeking or relying on an applicant&rsquo;s pay when extending a job offer; impose unlimited punitive and compensatory damages and expand class action rules to the benefit of the trial bar; and make numerous other changes to existing law.&nbsp; In addition to highlighting significant concerns with H.R. 7, Camille also discussed certain opportunities to enhance the current protections against wage discrimination.</em></p> <p> <strong>What Would H.R.7 &ldquo;The Paycheck Fairness Act&rdquo; Do?</strong></p> <p> Although couched in seemingly technical language, H.R. 7 would:&nbsp; make sweeping changes to the Equal Pay Act making it extremely difficult for an employer to defend itself even when legitimate job-related factors explain differences in pay; impose unlimited punitive and compensatory damages and expand class action rules to the benefit of the plaintiffs&rsquo; trial bar; and impose numerous other changes.&nbsp; There are a number of significant concerns with the H.R. 7, including:</p> <ul> <li> <strong>Defacto Eliminates the &ldquo;factor other than sex&rdquo; Defense</strong>.&nbsp; Under the EPA, an employer must explain any pay difference is job-related. &nbsp;If the employer cannot do so, the plaintiff prevails. &nbsp;No showing of discriminatory intent is required under the EPA. &nbsp;H.R. 7 requires an employer prove that (1) it paid more because of a business necessity, (2) the proven business necessity explains 100% of any pay difference, and (3) the business necessity was not derived from a sex-based differential in compensation.&nbsp; Even if an employer meets this high burden, H.R. 7 provides that the employer will have liability if an &ldquo;alternative employment practice&rdquo; would have served the same purpose without producing a wage difference.&nbsp;</li> <li> <strong>Prohibits Employers From Seeking Or Relying on Current or Prior Pay</strong>.&nbsp; Under H.R. 7, employers cannot seek and must ignore an applicant&rsquo;s current pay when making an offer.&nbsp; Seyfarth highlighted that current pay often provides valuable information regarding a candidate&rsquo;s actual experience, performance or expertise, and that the EEOC has described justifiable reasons for considering an applicant&rsquo;s prior salary.&nbsp; H.R. 7 essentially keeps both sides in the dark about the expectations that each party has with regard to the pay for the job at issue.</li> <li> <strong>Expands Available Damages and Class Actions Under the EPA</strong>.&nbsp; While concurrently gutting the existing ability of employers to defend legitimate reasons for pay differences, H.R. 7 creates another layer of damages that allow for unlimited compensatory and punitive damages.&nbsp; These damages far exceed the available remedies under Title 7 which require intentional discrimination for both compensatory and punitive capped damages and are in addition to the significant penalties that already exist in the EPA.&nbsp; In addition, the changes to the class action methodology would significantly expand the class size because the &nbsp;potential class members would be required to opt-out of the class as opposed to opting-in to the class under current law.&nbsp;&nbsp;</li> <li> <strong>Definition Of &ldquo;Establishment.&rdquo;</strong> The Equal Pay Act requires equal pay for men and women who perform equal work in the same establishment. The proposed law would cover pay disparities between employees working not only in the same physical location, but also between employees working in the same &ldquo;county or similar subdivision of a State.&rdquo;&nbsp;</li> <li> <strong>New Data Collection Obligations. </strong>H.R. 7 would mandate an EEOC-driven data collection process that would require employers to submit compensation data <u>and </u>other employment-related data (including hiring, termination, and promotion data) by gender, race/ethnicity and national origin.&nbsp; H.R. 7 also requires that the data must be &ldquo;disaggregated&rdquo; (an undefined term).</li> <li> <strong>Changes to OFCCP Practice. </strong>H.R. 7 also proposes to direct the OFCCP to change its methodology regarding the identification of compensation discrimination.&nbsp; The statute would reinstate the pay grade methodology, and would eliminate the requirement that the OFCCP prove discrimination by the use of multiple regression analyses, among other changes.&nbsp; In addition, H.R. 7 creates a new mandatory reporting requirement for government contractors.</li> </ul> <p> While highlighting these concerns in her <a href="https://edlabor.house.gov/imo/media/doc/Olson%20Testimony.pdf">testimony</a>, Ms. Olson also highlighted that employers have a deep commitment to ensuring that their compensation systems effectively attract, motivate, reward and retain employees while complying with applicable laws. Ms. Olson also identified certain opportunities to improve the Equal Pay Act.&nbsp; For example, (1) adding language to the EPA that expressly states that pay differences between workers performing the same work must be based on job-related reasons, (2) providing employees with an express protection within the EPA against retaliation for engaging in discussions and gathering information regarding compensation for the purpose of determining whether an unlawful wage disparity exists, and (3) providing employers with incentives to engage in voluntary self-critical compensation analyses that encourage self-evaluation to eliminate unjustified pay discrepancies without the need for litigation. &nbsp;</p> <p> H.R. 7 is based on the false premise that broad wage differences between men and women in equal jobs are necessarily due to wage discrimination by employers, and, taken as a whole, H.R. 7 is unworkable as a practical and legal matter in today&rsquo;s workplaces.</p> <p> Seyfarth was invited to provide substantive analysis and expertise regarding the implications of H.R. 7 on an employer&rsquo;s pay practices as well as its impact on current litigation and class procedures under the Equal Pay Act.&nbsp; The other hearing witnesses provided support for H.R. 7&rsquo;s existing language without reservation.&nbsp;</p> <p> Numerous Seyfarth Shaw attorneys provided significant analytical contributions to the testimony presented, including Annette Tyman, Richard B. Lapp, Lawrence Z. Lorber, and Randel K. Johnson.&nbsp; For further information, contact Annette Tyman, Pay Equity Group Co-Chair; &nbsp;Randy Johnson, Government Relations and Policy Group Chair; or Camille Olson, Complex Discrimination Practice Group Chair.&nbsp;</p> https://www.seyfarth.com:443/publications/FutureEnterprise021419 Finding and Hiring the “A Players” for Your Team https://www.seyfarth.com:443/publications/FutureEnterprise021419 Thu, 14 Feb 2019 00:00:00 -0400 <p> I recently learned of a company which ten years ago had radically changed their hiring process, and has achieved dramatic success with hiring great employees. Their &ldquo;bible&rdquo; for the change? A book by Geoff Smart and Randy Street, Who - The A Method For Hiring. Intrigued, I read the book, which promotes a structured approach to finding the right people and putting them in the right job.<br /> <br /> <a href="https://www.futureenterprise.com/blog/2019/2/13/finding-and-hiring-the-a-players-for-your-team">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE021419 OSHA and Title VII on Workplace Violence in Healthcare and Social Assistance https://www.seyfarth.com:443/publications/WSE021419 Thu, 14 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Fifth Circuit rules on Title VII liability concerning workplace violence in a healthcare setting involving third parties. Gardner v. CLC of Pascagoula, No. 17-60072 (5th Cir. February 6, 2019).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/workplace-violence/osha-and-tittle-vii-on-workplace-violence-in-healthcare-and-social-assistance/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/EL021419 OSHA and Title VII on Workplace Violence in Healthcare and Social Assistance https://www.seyfarth.com:443/publications/EL021419 Thu, 14 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Fifth Circuit rules on Title VII liability concerning workplace violence in a healthcare setting involving third parties. Gardner v. CLC of Pascagoula, No. 17-60072 (5th Cir. February 6, 2019).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2019/02/osha-and-tittle-vii-on-workplace-violence-in-healthcare-and-social-assistance/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC021419 Seyfarth Shaw’s Jerry Maatman Presents On 2018 Class Action Trend 5: Impact Of The #MeToo Movement https://www.seyfarth.com:443/publications/WC021419 Thu, 14 Feb 2019 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.workplaceclassaction.com/2019/02/seyfarth-shaws-jerry-maatman-presents-on-2018-class-action-trend-5-impact-of-the-metoo-movement/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/lcld021419 Seyfarth Lawyers Selected to Leadership Council on Legal Diversity https://www.seyfarth.com:443/news/lcld021419 Thu, 14 Feb 2019 00:00:00 -0400 <p> Seyfarth Shaw LLP is pleased to announce that lawyers Uma Chandrasekaran (Labor &amp; Employment Partner - Chicago), Oluwafunmito &quot;Funto&quot; P. Seton (Labor &amp; Employment Associate - Houston) and Honore Hishamunda (Labor &amp; Employment Associate - Atlanta) have been selected to the Leadership Council on Legal Diversity (LCLD).</p> <p> Chandrasekaran was named a member of the 2019 class of Fellows, participating in a landmark program created by LCLD to identify, train, and advance the next generation of leaders in the legal profession. The Fellows Program is designed to connect high-potential attorneys from preeminent organizations for a year-long professional development series that focuses on leadership and relationship building. The program, which has trained more than a thousand mid-career attorneys since 2011, is one of LCLD&rsquo;s most important initiatives.</p> <p> Seton and Hishamunda were named members of the 2019 class of Pathfinders, participating in a program designed by LCLD to train early-career attorneys in critical career development strategies including leadership and the building of professional networks. The Pathfinder Program is designed to connect high-potential attorneys from preeminent organizations for a six- to seven-month professional development series that focuses on foundational leadership skills, professional networks and relationship building skills, and career development strategies. The program is now in its fourth year as a full-scale program, having been piloted in 2015 among a select number of LCLD Member law firms and corporations. It is an initiative that has filled a gap in LCLD programming, targeting junior associates and the youngest members of corporate law departments.</p> <p> Founded in 2009, the Leadership Council on Legal Diversity (LCLD) has grown to an organization of more than 300 Members, who serve as either general counsel of major corporations or managing partners of the nation&#39;s leading law firms. United by a spirit of activism and personal commitment, LCLD Members participate widely in the programs they&#39;ve created&mdash;leading by example, taking action, and challenging the legal profession to prepare future generations of diverse talent for the highest positions of leadership. To learn more, visit <a href="https://www.lcldnet.org/">here</a>.</p> https://www.seyfarth.com:443/news/adanyp021419 Seyfarth's ADA Analysis referenced in the New York Post https://www.seyfarth.com:443/news/adanyp021419 Thu, 14 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA Analysis was referenced in a February 14 story from the New York Post, &quot;This disability lawyer has been scamming his clients by filing lawsuits without their consent.&quot; Federal disability-discrimination suits have increased by 30 percent in just the past year, according to Seyfarth&#39;s analysis. You can read the <a href="https://nypost.com/2019/02/14/this-disability-lawyer-has-been-scamming-his-clients-by-filing-lawsuits-without-their-consent/">full article here</a>.</p> https://www.seyfarth.com:443/news/lorberbloomberglaw021419 Lawrence Lorber quoted in Bloomberg Law https://www.seyfarth.com:443/news/lorberbloomberglaw021419 Thu, 14 Feb 2019 00:00:00 -0400 <p> Lawrence Lorber was quoted in a February 14 story from Bloomberg Law, &quot;&lsquo;Secret&rsquo; Pacts Between Agencies, Attorneys Raise Some Hackles.&quot; Lorber said that, if this is known, it could inhibit settlement discussions since employers will be giving information to plaintiffs&rsquo; lawyers in addition to the government.</p> https://www.seyfarth.com:443/news/olsonhouse021319 Seyfarth Labor & Employment Partner to Testify Before House Education & Labor Subcommittees https://www.seyfarth.com:443/news/olsonhouse021319 Wed, 13 Feb 2019 00:00:00 -0400 <p> <span style="font-size:14px;"><em>Camille Olson to Appear Before Joint Subcommittee Hearing on Paycheck Fairness Act </em></span></p> <p> On Wednesday, February 13, Seyfarth Shaw LLP partner Camille Olson will testify before the U.S. House Education &amp; Labor Committee&rsquo;s Subcommittee on Civil Rights and Human Services and Subcommittee on Workforce Protections.</p> <p> The House Joint Subcommittee hearing, &ldquo;Paycheck Fairness Act (H.R. 7): Equal Pay for Equal Work,&rdquo; will begin at 10:15 a.m. ET; the webcast and more details can be found <a href="https://edlabor.house.gov/hearings/paycheck-fairness-act-hr-7-equal-pay-for-equal-work-">here</a>. Camille&rsquo;s full written testimony can be found <a href="https://edlabor.house.gov/imo/media/doc/Olson%20Testimony.pdf">here</a>. Key highlights from the testimony include:</p> <ul> <li> Employers have a deep commitment to ensuring that their compensation systems effectively attract, motivate, reward and retain employees while complying with applicable laws. The Equal Pay Act requires that differences in pay between men and women in equal jobs be appropriately justified by job-related factors. A matrix of broad protections in the law ensure that employers comply with this basic principle.</li> <li> H.R. 7 is based on the false premise that broad wage differences between men and women are necessarily due to wage discrimination by employers and, taken as a whole, H.R. 7 is unworkable as a practical and legal matter in today&rsquo;s workplaces.</li> <li> Although often couched in seemingly technical language, H.R. 7 would: make sweeping changes to the Equal Pay Act such as making it virtually impossible for an employer to defend itself even when legitimate job-related factors explain differences in pay; impose unlimited punitive and compensatory damages and expand class action rules to the benefit of the plaintiffs&rsquo; trial bar; and impose numerous other changes.</li> <li> Nevertheless, there are some areas in which the Equal Pay Act could be enhanced and should be considered by the Congress.</li> </ul> <p> Throughout the last decade, Olson has appeared before the United States Senate, the United States House of Representatives, the EEOC, and the United States Department of Labor on her own behalf (as a recognized expert in various fields), and on behalf of business and human resource organizations. She has represented companies nationwide in all areas of litigation, with an emphasis on employment discrimination and harassment, wage and hour matters, and independent contractor classification issues. Olson is co-chair of Seyfarth&rsquo;s National Complex Litigation practice group and is a member of the firm&rsquo;s Government Relations and Policy practice group.</p> <p> Seyfarth&rsquo;s Government Relations and Policy practice group provides legal expertise to clients regarding the actions of Congress and federal, state, and local administrative agencies. Comprised of Seyfarth attorneys with government relations and policy experience, the team develops solutions for clients and provides ongoing education and advocacy on policy issues.</p> https://www.seyfarth.com:443/news/hoffmanwapo021319 Valerie Hoffman quoted in the Washington Post https://www.seyfarth.com:443/news/hoffmanwapo021319 Wed, 13 Feb 2019 00:00:00 -0400 <p> Valerie Hoffman was quoted in a February 13 story from the Washington Post, &quot;REI&rsquo;s CEO and the era of zero tolerance: &lsquo;Errors of judgment were made&rsquo;.&quot; Hoffman said public company boards of directors today have an extraordinarily low tolerance for bad or noncompliant behavior by CEOs, even CEOs who are otherwise very successful. You can read the <a href="https://www.washingtonpost.com/business/2019/02/13/reis-ceo-era-zero-tolerance-errors-judgment-were-made/?noredirect=on&amp;utm_term=.8343ce621083">full article here</a>.</p> https://www.seyfarth.com:443/news/olsonlaw360021319 Camille Olson quoted in Law360 https://www.seyfarth.com:443/news/olsonlaw360021319 Wed, 13 Feb 2019 00:00:00 -0400 <p> Camille Olson was quoted in a February 13 story from Law360, &quot;Equal Pay Bill Attacked As Ineffective &#39;Cash Cow&#39; For Lawyers,&quot; on her testimony before the House Committee on Education and Labor Joint Subcommittee Hearing on the Paycheck Fairness Act (H.R. 7). Olson said that H.R. 7 is based on false premises and is unworkable as a practical and legal matter.</p> https://www.seyfarth.com:443/news/johnsonbloomberglaw021319 Randel Johnson quoted in Bloomberg Law https://www.seyfarth.com:443/news/johnsonbloomberglaw021319 Wed, 13 Feb 2019 00:00:00 -0400 <p> Randel Johnson was quoted in a February 13 story from Bloomberg Law, &quot;Republicans Move to Quicken Trump Nominee Votes in Senate.&quot; Johnson said that two hours of debate on top of the committee hearings should be more than adequate to vet the qualifications of a nominee.</p> https://www.seyfarth.com:443/news/maatmanmarketwatch021319 Gerald Maatman quoted in MarketWatch https://www.seyfarth.com:443/news/maatmanmarketwatch021319 Wed, 13 Feb 2019 00:00:00 -0400 <p> Gerald Maatman was quoted in a February 13 story from MarketWatch, &quot;The Trump administration is taking a closer look at class-action lawsuits that pay consumers.&quot; Maatman said that it was rare for federal lawyers to give their two cents on a case until Trump&rsquo;s Department of Justice started doing it. You can read the <a href="https://www.marketwatch.com/story/the-trump-administration-is-taking-a-closer-look-at-class-action-lawsuits-that-pay-consumers-2019-02-13">full article here</a>.</p> https://www.seyfarth.com:443/publications/TS021319 Please Join Seyfarth at the AIPLA Trade Secret Law Summit – March 21-22, 2019 https://www.seyfarth.com:443/publications/TS021319 Wed, 13 Feb 2019 00:00:00 -0400 <p> The American Intellectual Property Law Association (AIPLA) will host its annual Trade Secret Law Summit at the American Express Company in New York City&rsquo;s Financial District on March 21-22, 2019.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/02/articles/trade-secrets/please-join-seyfarth-at-the-aipla-trade-secret-law-summit-march-21-22-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC021319 Seyfarth Shaw’s Jerry Maatman Presents On 2018 Class Action Trend 4: Lower Class Action Settlement Numbers https://www.seyfarth.com:443/publications/WC021319 Wed, 13 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Of the five major class action developments in 2018, the decline in class action settlement numbers may have been most the striking shift. In fact, when compared to the 2017 numbers, the value of the top class action settlements in 2018 decreased by over $1 billion. In today&rsquo;s blog, our readers can see and hear Workplace Class Action Report (&ldquo;WCAR&rdquo;) author Jerry Maatman outline what he called &ldquo;a very significant marker of class action litigation in 2018.&rdquo; Click the link below to watch and hear Jerry&rsquo;s presentation from Seyfarth Shaw&rsquo;s &ldquo;Top Trends In Workplace Class Action Litigation&rdquo; book launch event!<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/02/seyfarth-shaws-jerry-maatman-presents-on-2018-class-action-trend-4-lower-class-action-settlement-numbers/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA021219-LIT The California Consumer Privacy Act of 2018: What Businesses Need to Know Now https://www.seyfarth.com:443/publications/MA021219-LIT Tue, 12 Feb 2019 00:00:00 -0400 <div> California, home to more than 40 million people and the 5th largest economy in the world, has passed the California Consumer Privacy Act (CCPA), its omnibus consumer privacy law. The law creates sweeping new requirements concerning the collection, maintenance, and tracking of information for both employees or customers who are residents of California. Many aspects of the implementation and enforcement are still being finalized by the California Attorney General. However, companies with employees or customers in California need to take stock of the information they are processing that could qualify as &ldquo;personal information&rdquo; for California residents, and they need to begin establishing mechanisms for compliance before the end of 2019.</div> <div> &nbsp;</div> <h2> The California Consumer Privacy Act</h2> <div> Effective January 1, 2020, the law applies to businesses collecting, selling, or disclosing personal information in California. In sum, its intended purpose is to require impacted businesses to provide enhanced transparency and to give consumers the right to control their personal information. Specifically, its goal is to further a California consumer&rsquo;s right to privacy by ensuring various rights including: 1) knowing what personal information is being collected; 2) knowing whether their personal information is sold or disclosed and to whom; 3) saying no to the sale of their personal information; 4) access to their personal information; and 5) equal service and price, even if they exercise their personal rights.&nbsp;</div> <div> &nbsp;</div> <h3> What Companies Are Affected?</h3> <div> The CCPA applies to any company doing business or with employees in California if they:</div> <ul> <li> generate $25 million or more a year in revenue;</li> <li> annually buy, receive, sell, or share personal information of 50,000 or more consumers, households, or devices for commercial purposes; or&nbsp;</li> <li> derive 50% or more of their annual revenue from selling consumer personal information.</li> </ul> <div> &nbsp;</div> <h2> Its Implications and Why It&rsquo;s Important</h2> <div> <strong>First</strong>, several terms integral to the law&rsquo;s application are given broad stroke meaning. These terms: 1) determine which organizations must comply with the law; 2) determine the scope of what is considered personal information; 3) determine whose personal information the law applies to; and 4) acknowledge personal information as an asset through a broad definition of &lsquo;sell.&rsquo; These terms include:</div> <div> &nbsp;</div> <ol> <li> <strong>Business</strong> is defined as any company that does business in California for a profit that collects personal information and that either (i) has annual gross revenue more than $25 million; (ii) annually buys, <em>sells</em>, receives, or shares for a commercial purpose the personal information of 50,000 or more consumers, households, or devices; or (iii) derives 50% or more of its annual revenues from <em>selling</em> consumer&rsquo;s personal information. Note that both &ldquo;sell&rdquo; and &ldquo;personal information&rdquo; are integral parts of the definition of business.&nbsp;</li> <li> <strong>Personal information</strong> is defined to include anything that identifies, relates to, describes, is capable of being associated with, reasonably linked, directly or indirectly, with a particular consumer or household and includes,<em> but is not limited to</em>, such things as:&nbsp;<br /> Individual Identifiers such as real name, alias, postal address, unique personal identifier, Internet Protocol Address, email address, account name, social security number, passport number, or other similar identifiers; Geolocation data; Biometric Information; Internet or other electronic network activity; Audio, electronic, visual, thermal, olfactory, or similar information; Inferences that can be drawn from any of the previous information in order to create a profile; and the list goes on.</li> <li> <strong>Consumer</strong> is defined as a natural person who is a California <em>resident</em> including by any <em>unique identifier</em>. (<em>NOTE: Resident means</em> (1) every individual who is in the state for other than a temporary or transitory purpose and (2) every individual who is domiciled in the state who is outside the state for a temporary or transitory purpose. All other individuals are nonresidents.)</li> <li> <strong>Sell</strong> or variants of the word means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer&rsquo;s personal information by one covered business to another business or a third party for monetary or other valuable consideration.</li> </ol> <div> &nbsp;</div> <div> Together, these terms, along with other definitions, as applied to legal requirements under the law, result in compliance obligations for many organizations doing business in California.</div> <div> &nbsp;</div> <div> <strong>Second</strong>, under the CCPA, the state legislature has tasked the California Attorney General with the primary responsibility to enforce its provisions. As its enforcement arm, the Attorney General has various enforcement mechanisms at its disposal. For example, this includes the ability to penalize non-compliant organizations through administrative fines upon the expiration of a 30 day notice of violation and opportunity to correct. These fines may not exceed $2,500 per violation or $7,500 for intentional violations.&nbsp;</div> <div> &nbsp;</div> <div> More importantly, the Attorney General has the authority to decide how organizations must comply. In the above example, this could include defining what constitutes a violation. Depending on how the Attorney General defines a violation, it could result in vastly different penalties. Given that the law has just passed, it is unclear how the Attorney General will enforce the statute or determine whether a violation has taken place for a particular situation.&nbsp; That said, the law gives the Attorney General broad discretion to make those determinations.&rdquo;&nbsp;</div> <div> &nbsp;</div> <h2> Actions Required</h2> <h3> What Companies Conducting Business in California Need to Know</h3> <div> Despite an effective date of January 1, 2020, for an impacted California business to be in compliance, companies are advised to begin coordination efforts to comply far sooner than this because of the complexity of the law.&nbsp;</div> <div> &nbsp;</div> <div> In addition to taking certain steps to be in compliance and reinforcing consumer rights regarding the privacy of personal information businesses must:</div> <ul> <li> Perform a data inventory in order to identify informational flow. Following completion, the business will need to identify issues impacting compliance and develop controls or countermeasures to address them.&nbsp;</li> <li> Provide California consumers with two or more methods for submitting their requests for information&shy;&mdash;including, at a minimum, a toll free telephone number.&nbsp;</li> <li> On its online privacy policy or policies (if in existence) or otherwise on its website, disclose a description of a consumer&rsquo;s rights pursuant to this law regarding the collection, use, and sale of personal information and one or more designated methods for submitting requests, and provide a list of the categories of personal information it has collected, disclosed for a business purpose, or sold in the preceding 12 months by reference to specific categories of personal information in the law&mdash;or if the business has not done so, to disclose that fact. Information so posted must be updated at least once every 12 months.</li> <li> On its website home page, provide a link to a web page titled &lsquo;Do Not Sell My Personal Information&rsquo; in order to allow a customer (or their agent) to opt out on the sale of their personal information to a third party. In addition to this link, the business is required to include a description of a consumer&rsquo;s rights, along with a separate link to the above titled &lsquo;Do Not Sell My Personal Information&rsquo; page in its online privacy policy or policies (if in existence) as well as any California-specific description of consumers&rsquo; privacy rights.</li> <li> Implement and maintain reasonable security procedures and practices appropriate to the nature of the personal information.</li> </ul> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/MA021219-LE Is “Calling It In” Really “Reporting For Work”? https://www.seyfarth.com:443/publications/MA021219-LE Tue, 12 Feb 2019 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>Traditionally, &ldquo;report for work&rdquo; has meant physically showing up at the jobsite, ready to work. Only then might an employer be liable for reporting pay for failing to provide work to the employee who reported for work as scheduled. Now, however, an activist California judicial interpretation makes the employer liable for reporting pay if the employer requires employees on an on-call schedule to telephone the employer two hours prior to the shift and if the employer then fails to provide work to employees who have complied with this requirement to report their availability for work.&nbsp;</em></div> <div> &nbsp;</div> <div> <u><strong>The Facts</strong></u></div> <div> &nbsp;</div> <div> Skylar Ward worked as a sales clerk in a Tilly&rsquo;s store in California. Tilly&rsquo;s employees allegedly were assigned on-call shifts, but were not told until they called in&mdash;two hours before their shift&mdash;whether they should go in to work that day. If they were not needed for work, they did not get any pay for having been &ldquo;on call.&rdquo; Ward sued Tilly&rsquo;s for reporting pay, arguing that Tilly&rsquo;s was liable under provisions of California&rsquo;s Wage Order 7 (for retail employers), which requires employers to pay &ldquo;reporting time pay&rdquo; for each workday an employee must &ldquo;report for work&rdquo; and does report, but is not put to work or receives less than one-half the usual or scheduled day&rsquo;s work.&nbsp;</div> <div> &nbsp;</div> <div> Ward contended that when she contacted Tilly&rsquo;s two hours before her on-call shift, she was &ldquo;report[ing] for work&rdquo; and, thus, was owed reporting time pay if Tilly&rsquo;s did not need her that day. Tilly&rsquo;s countered that employees &ldquo;report for work&rdquo; only when they physically present themselves at the jobsite. Employees who merely call in and are not asked to work that day are, therefore, not owed reporting time pay. As the Court of Appeal described it, &ldquo;the dispute turn[ed] on the meaning of &lsquo;report for work,&rsquo; a phrase Wage Order 7 uses, but does not define.&rdquo;&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> The trial court dismissed Ward&rsquo;s case, explaining that &ldquo;merely calling in to learn whether an employee will work a call-in shift&rdquo; does not amount to &ldquo;report[ing] for work.&rdquo; Ward appealed.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <u><strong>The Appellate Court Decision</strong></u></div> <div> &nbsp;</div> <div> The Court of Appeal reinstated Ward&rsquo;s claim, holding that &ldquo;an employee need not necessarily physically appear at the workplace to &lsquo;report for work.&rsquo;&rdquo; Instead, an employee &ldquo;reports for work&rdquo; when s[he] presents him or herself &quot;<em>as ordered</em>.&rdquo; The Court of Appeal said that &ldquo;report for work&rdquo; &ldquo;does not have a single meaning, but instead is defined[] by the employer.&rdquo; So if an employer directs employees to present themselves for work by calling two hours before the shift, then the reporting time requirement under Wage Order 7 is triggered <em>by the call</em>.&nbsp;</div> <div> &nbsp;</div> <div> The two-justice majority opinion by the Court of Appeal, citing notions of public policy, opined that &ldquo;[r]eporting time pay requires employers to internalize some of the costs of overscheduling, thus encouraging employers to accurately project their labor needs and to schedule accordingly. Reporting time pay also partially compensates employees for the inconvenience and expense associated with making themselves available to work on-call shifts, including forgoing other employment, hiring caregivers for children or elders, and traveling to a worksite.&rdquo; Unpaid on-call shifts impose tremendous costs and burdens on employees&mdash;&ldquo;precisely the kind of abuse [by employers] that reporting time pay was designed to discourage.&rdquo; A strong dissenting opinion pointed out that policy considerations of this sort are for the Legislature, not the courts, and if the Legislature wants to create an expanded definition for &ldquo;report for work&rdquo;&mdash;which traditionally has always meant to show up physically at the jobsite, ready to work&mdash;then the Legislature can, and should, make that change itself; judges should not rewrite the law to guess at the result the lawmakers might have intended.</div> <div> &nbsp;</div> <div> <u><strong>What <em>Ward </em>Means to Employers&nbsp;</strong></u></div> <div> &nbsp;</div> <div> Under <em>Ward</em>, employees &ldquo;report for work&rdquo; if, while subject to an on-call schedule, they comply with the employer&rsquo;s requirement to call before the shift to see if they must actually go in to work. Employers subject to reporting-pay Wage Order provisions should therefore consider re-structuring their on-call scheduling to minimize unintended liability for reporting time.&nbsp; &nbsp;&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/WC021219 Seyfarth Shaw’s Jerry Maatman Presents On 2018 Class Action Trend 3: Governmental Enforcement Litigation https://www.seyfarth.com:443/publications/WC021219 Tue, 12 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Governmental enforcement litigation increased in 2018 despite the U.S. Equal Employment Opportunity Commission&rsquo;s (&ldquo;EEOC&rdquo;) first full year under the presumably business-friendly Trump Administration. However, while the EEOC&rsquo;s filing numbers went up, the value of the top 10 governmental settlements dropped by more than $350 million. As a result, these developments represent the third trend of the 15th Annual Workplace Class Action Litigation Report (&ldquo;WCAR&rdquo;). In today&rsquo;s post, our blog readers to see and hear WCAR author Jerry Maatman&rsquo;s presentation from Seyfarth Shaw&rsquo;s recent &ldquo;Top Trends In Workplace Class Action Litigation&rdquo; book launch event. Watch Jerry discuss the government&rsquo;s 2018 enforcement litigation activity in the link below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/02/seyfarth-shaws-jerry-maatman-presents-on-2018-class-action-trend-3-governmental-enforcement-litigation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE021219 OSHA Issues FAQs for General Industry for Crystalline Silica Standard https://www.seyfarth.com:443/publications/WSE021219 Tue, 12 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has recently issued a Frequently Asked Questions for General Industry for the Respirable Crystalline Silica Standard.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/osha-issues-faqs-for-general-industry-for-crystalline-silica-standard/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CDL021219 The California Consumer Privacy Act of 2018: What Businesses Need to Know Now https://www.seyfarth.com:443/publications/CDL021219 Tue, 12 Feb 2019 00:00:00 -0400 <p> California, home to more than 40 million people and the 5th largest economy in the world, has passed the California Consumer Privacy Act (CCPA), its omnibus consumer privacy law. The law creates sweeping new requirements concerning the collection, maintenance, and tracking of information for both employees or customers who are residents of California. Many aspects of the implementation and enforcement are still being finalized by the California Attorney General. However, companies with employees or customers in California need to take stock of the information they are processing that could qualify as &ldquo;personal information&rdquo; for California residents, and they need to begin establishing mechanisms for compliance before the end of 2019.<br /> <br /> <a href="https://www.carpedatumlaw.com/2019/02/california-consumer-privacy-act-2018-businesses-need-know-now/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS021219 The California Consumer Privacy Act of 2018: What Businesses Need to Know Now https://www.seyfarth.com:443/publications/TS021219 Tue, 12 Feb 2019 00:00:00 -0400 <p> California, home to more than 40 million people and the 5th largest economy in the world, has passed the California Consumer Privacy Act (CCPA), its omnibus consumer privacy law. The law creates sweeping new requirements concerning the collection, maintenance, and tracking of information for both employees or customers who are residents of California. Many aspects of the implementation and enforcement are still being finalized by the California Attorney General. However, companies with employees or customers in California need to take stock of the information they are processing that could qualify as &ldquo;personal information&rdquo; for California residents, and they need to begin establishing mechanisms for compliance before the end of 2019.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/02/articles/privacy-2/the-california-consumer-privacy-act-of-2018-what-businesses-need-to-know-now/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/GPW021219 The California Consumer Privacy Act of 2018: What Businesses Need to Know Now https://www.seyfarth.com:443/publications/GPW021219 Tue, 12 Feb 2019 00:00:00 -0400 <p> California, home to more than 40 million people and the 5th largest economy in the world, has passed the California Consumer Privacy Act (CCPA), its omnibus consumer privacy law. The law creates sweeping new requirements concerning the collection, maintenance, and tracking of information for both employees or customers who are residents of California. Many aspects of the implementation and enforcement are still being finalized by the California Attorney General. However, companies with employees or customers in California need to take stock of the information they are processing that could qualify as &ldquo;personal information&rdquo; for California residents, and they need to begin establishing mechanisms for compliance before the end of 2019.<br /> <br /> <a href="https://www.globalprivacywatch.com/2019/02/the-california-consumer-privacy-act-of-2018-what-businesses-need-to-know-now/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/billowsshrm021219 Tracy Billows quoted in SHRM https://www.seyfarth.com:443/news/billowsshrm021219 Tue, 12 Feb 2019 00:00:00 -0400 <p> Tracy Billows was quoted in a February 12 story from SHRM, &quot;These Federal and State Trends May Prompt Handbook Updates in 2019.&quot; Billows said that, if employers have not already done so, they should look at the NLRB general counsel&#39;s 2018 guidance on employee handbooks, which rolled back prior guidance on a number of policies. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Employee-Handbook-Updates-in-2019.aspx">full article here</a>.</p> https://www.seyfarth.com:443/news/okeefe021119 Labor and Employment Lawyer Bryan O’Keefe Joins Seyfarth in Washington, D.C. https://www.seyfarth.com:443/news/okeefe021119 Mon, 11 Feb 2019 00:00:00 -0400 <p> WASHINGTON, D.C. -- (February 11, 2019) -- Seyfarth Shaw LLP announced today the arrival of partner Bryan M. O&rsquo;Keefe to the Labor &amp; Employment department in Washington, D.C. O&rsquo;Keefe joins from Kirkland &amp; Ellis LLP, where he was a Washington, D.C. partner in its Employment &amp; Labor practice group.</p> <p> O&rsquo;Keefe frequently represents employers in traditional labor law matters, including in NLRB unfair labor practice charges and administrative law judge trials, NLRB appellate matters, union organizing and representational elections, collective bargaining, strikes, pickets, and corporate campaigns. In addition, he is frequently called upon to advise on traditional labor relations matters that arise in corporate transactions such as (i) advice and counsel on the structure of union corporate transactions, (ii) the potential for NLRA successorship, (iii) decisional and effects bargaining obligations, and (iv) union-related bankruptcy implications.</p> <p> &ldquo;Our growing team gains another outstanding labor lawyer with the addition of Bryan,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;He brings significant experience in all areas of traditional labor law and has developed a leading practice in labor and employment transactional work.&rdquo;</p> <p> O&rsquo;Keefe also frequently represents employers in employment litigation matters, in particular non-compete cases, wage and hour litigation, and high stakes government investigations before the U.S. Department of Labor and state agencies.</p> <p> &ldquo;Bryan is an immensely talented lawyer who has successfully represented companies in high profile proceedings in front of the NLRB and other federal agencies,&rdquo; said Robert Bodansky, managing partner of Seyfarth&rsquo;s Washington, D.C. office. &ldquo;In addition, his corporate transactional capabilities are a fantastic complement to the firm&rsquo;s corporate practice.&rdquo;</p> <p> Earlier in his career, O&rsquo;Keefe was a public policy consultant on labor, employment, and higher education in Washington, D.C. for several think tanks and trade associations, working with organizations such as the U.S. Chamber of Commerce and H.R. Policy Association. He earned his J.D., <em>summa cum laude</em>, from the Pennsylvania State University Dickinson School of Law, where he served as editor-in-chief of the <em>Penn State Law Review</em>. O&rsquo;Keefe received his B.A., <em>summa cum laude</em>, from the George Washington University.</p> <p> Last week, Seyfarth announced the arrival of partner Richard Chen to the Labor &amp; Employment department in Los Angeles. Earlier this year, the firm hired labor economist Christopher Haan to the Labor &amp; Employment department and the firm&rsquo;s Organizational Strategy &amp; Analytics (OSA) team.</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/adaflarecord021119 Seyfarth's ADA Analysis featured in the Florida Record https://www.seyfarth.com:443/news/adaflarecord021119 Mon, 11 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA analysis was featured in a February 11 story from the Florida Record, &quot;Website accessibility suits surge in Florida, New York, following favorable plaintiff rulings.&quot; The number of website accessibility lawsuits filed in federal court has exploded, with the greatest numbers being filed in New York and Florida, according to Seyfarth&#39;s new study. Launey said that any business that provides a service or goods is at risk in facing a website access lawsuit. You can read the <a href="https://flarecord.com/stories/511770459-website-accessibility-suits-surge-in-florida-new-york-following-favorable-plaintiff-rulings">full article here</a>.</p> https://www.seyfarth.com:443/news/adanmn021119 Seyfarth's ADA Analysis referenced in National Mortgage News https://www.seyfarth.com:443/news/adanmn021119 Mon, 11 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA analysis was referenced in a February 11 story from National Mortgage News, &quot;Latest Ellie Mae Encompass update offers ADA compliance tools.&quot; In 2018, there were 2,258 lawsuits filed in a federal court alleging the defendant&#39;s website (in all industries) violated the ADA&#39;s requirements under Title III for accessibility, a 177% increase over 814 suits filed in 2017, Seyfarth&#39;s ADA report said.</p> https://www.seyfarth.com:443/news/wexlernewsday021119 Howard Wexler quoted in Newsday https://www.seyfarth.com:443/news/wexlernewsday021119 Mon, 11 Feb 2019 00:00:00 -0400 <p> Howard Wexler was quoted in a February 11 story from Newsday, &quot;Office worker: Can manager record calls with clients?&quot; Wexler said that such practices are legal because in New York, as many other states, follows the federal &quot;one-party consent rule.&quot; You can read the <a href="https://www.newsday.com/business/manager-records-phone-calls-1.27192111">full article here</a>.</p> https://www.seyfarth.com:443/news/lloydsfc021119 Eric Lloyd quoted in the San Francisco Chronicle https://www.seyfarth.com:443/news/lloydsfc021119 Mon, 11 Feb 2019 00:00:00 -0400 <p> Eric Lloyd was quoted in a February 11 story from the San Francisco Chronicle, &quot;Revolt of the gig workers: How delivery rage reached a tipping point.&quot; Lloyd said that the internet gave rise to this whole new economy, giving businesses a way to build really innovative models, and it&rsquo;s given workers new ways to advance their rights. You can read the <a href="https://www.sfchronicle.com/business/article/Revolt-of-the-gig-workers-How-delivery-rage-13605726.php">full article here</a>.</p> https://www.seyfarth.com:443/publications/cons021119 President Trump Issues Another Executive Order in Pursuit of Buy American Initiative https://www.seyfarth.com:443/publications/cons021119 Mon, 11 Feb 2019 00:00:00 -0400 <p> Since taking office in 2017, President Trump has made no secret of his &ldquo;Buy American, Hire American&rdquo; initiative. The President recently took another step to promote American industry by signing an Executive Order on January 31, 2019, (the &ldquo;Order&rdquo;) which instructs all agencies to &ldquo;maximize the use of iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in contracts, sub-contracts, purchase orders, or sub-awards.&rdquo;</p> <p> <a href="https://www.constructionseyt.com/2019/02/president-trump-issues-another-executive-order-pursuit-buy-american-initiative/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC021119 Seyfarth Shaw’s Jerry Maatman Presents On 2018 Class Action Trend 2: Class Certification Rulings https://www.seyfarth.com:443/publications/WC021119 Mon, 11 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Last week, we posted the first video in a series of clips from Seyfarth Shaw&rsquo;s &ldquo;Top Trends In Workplace Class Action Litigation&rdquo; book launch event. Specifically, this set of exclusive videos allows our readers to see and hear Workplace Class Action Litigation Report author Jerry Maatman&rsquo;s perspective on each major class action trend from 2018. Today&rsquo;s clip focuses on class certification rulings, and identifies the areas of litigation in which the Plaintiffs&rsquo; bar experienced noticeable success in 2018. Watch and hear Jerry&rsquo;s analysis in the link below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/02/seyfarth-shaws-jerry-maatman-presents-on-2018-class-action-trend-2-class-certification-rulings/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WSE021119 On And On We Go – Coalition Groups Sue DOL for the Rollback Rule https://www.seyfarth.com:443/publications/WSE021119 Mon, 11 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has just been sued for removing the requirements for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year. These establishments will still be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/on-and-on-we-go-coalition-groups-sue-dol-for-the-rollback-rule/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/ERISA021119 District Court Clarifies That “Disability” Requiring Workplace Accommodation Does Not Entitle Plaintiff to Disability Benefits https://www.seyfarth.com:443/publications/ERISA021119 Mon, 11 Feb 2019 00:00:00 -0400 <p> In Cannon v. Charter Commc&rsquo;ns Short Term Disability Plan, No. 3:18-CV-041-DCK, 2019 WL 235325 (W.D.N.C. Jan. 16, 2019), the Plaintiff sought benefits under his employer&rsquo;s self-insured short-term disability plan (the &ldquo;Plan&rdquo;), claiming he was unable to work due to recurrent vertigo, sleep apnea, heart disease, insomnia, and other, related conditions. In support of his claim, he submitted documentation from his sole treating physician, which stated he was unable to perform the essential functions of his position, but identified his only restriction as an inability to &ldquo;drive in traffic.&rdquo; To be eligible for benefits under the Plan, Plaintiff needed to demonstrate that he was unable to perform the essential duties of his occupation.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2019/02/11/district-court-clarifies-that-disability-requiring-workplace-accommodation-does-not-entitle-plaintiff-to-disability-benefits/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/launeyab021019 Kristina Launey quoted in American Banker https://www.seyfarth.com:443/news/launeyab021019 Sun, 10 Feb 2019 00:00:00 -0400 <p> Kristina Launey was quoted in a February 10 story from American Banker, &quot;ADA lawsuits tied to websites mount: Should banks fix, or fight?,&quot; on how the number of federal lawsuits filed in 2019 that allege ADA noncompliance almost tripled to about 2,258 in 2018, according to Seyfarth&#39;s analysis. Launey said that the lawsuits are going to be increasing exponentially.</p> https://www.seyfarth.com:443/news/wexleriiradio021019 Howard Wexler interviewed on Issues and Ideas Radio https://www.seyfarth.com:443/news/wexleriiradio021019 Sun, 10 Feb 2019 00:00:00 -0400 <p> Howard Wexler was interviewed February 10th on Issues and Ideas Radio. Wexler explains what NJ businesses need to review and prepare for with the new $15 minimum wage and how it&#39;ll be phased in. You can listen to the <a href="http://www.issuesandideasradio.com/podcasts/howardwexler.mp3">full interview here</a>.</p> https://www.seyfarth.com:443/news/vufoxbusiness020819 Minh Vu interviewed on Fox Business https://www.seyfarth.com:443/news/vufoxbusiness020819 Fri, 08 Feb 2019 00:00:00 -0400 <p> Minh Vu was interviewed February 8th on Fox Business&#39; Varney &amp; Co., &quot;Federal website accessibility lawsuits nearly tripled last year: Report.&quot; Vu weighed in on the surge in federal website accessibility lawsuits. You can watch the <a href="https://video.foxbusiness.com/v/6000034103001/#sp=show-clips">full interview here</a>.</p> https://www.seyfarth.com:443/publications/TS020819 10th Circuit Affirms that Employer Failed to Show How Past Harm Signified Future Irreparable Harm in Support of Preliminary Injunction Request in Trade Secret Battle https://www.seyfarth.com:443/publications/TS020819 Fri, 08 Feb 2019 00:00:00 -0400 <p> On December 28, 2018, a three-judge panel of the Tenth Circuit Court of Appeals affirmed the holding by the U.S. District Court for the District of Colorado denying the plaintiff&rsquo;s, DTC Energy Group, Inc. (&ldquo;DTC Energy&rdquo;), request for a preliminary injunction against a collective of defendants: former DTC Energy employees Adam Hirschfeld (&ldquo;Hirschfeld&rdquo;) and Joseph Galban (&ldquo;Galban&rdquo;) and Ally Consulting, LLC (&ldquo;Ally Consulting&rdquo;), Hirschfeld&rsquo;s new employer and a DTC Energy competitor. DTC Energy Grp., Inc. v. Hirschfeld, No. 18-1113, 2018 WL 6816903, at *1 (10th Cir. Dec. 28, 2018). In a majority opinion written by the Honorable Mary Beck Briscoe, the Court held that the trial court did not abuse its discretion in determining that DTC Energy failed to present evidence in support of a preliminary injunction. Id., at *5. In particular, while DTC Energy proffered prior harm as a consequence of Hirschfeld&rsquo;s past breaches of his employment contract and the individual defendants&rsquo; failure to uphold their duty of loyalty, it could show that neither the prior harm established a significant risk of future irreparable harm saddled by DTC Energy nor Hirschfeld currently breached his employment agreement. Id.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/02/articles/restrictive-covenants/10th-circuit-affirms-that-employer-failed-to-show-how-past-harm-signified-future-irreparable-harm-in-support-of-preliminary-injunction-request-in-trade-secret-battle/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS020819a Seyfarth Attorneys Author Article on Trade Secret Protection and Social Media https://www.seyfarth.com:443/publications/TS020819a Fri, 08 Feb 2019 00:00:00 -0400 <p> Seyfarth Shaw Partner Erik Weibust and Associate Alex Meier published a Law360 article about trade secret protections related to social media. Weibust and Meier discuss risks employers face when employees access social media accounts, as well as some e-discovery considerations for social media. To learn more, check out &ldquo;Trade Secret Protection and Social Media: A 5-Year Update&rdquo; from Law360 here.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/02/articles/social-media-2/seyfarth-attorneys-author-article-on-trade-secret-protection-and-social-media/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC020819 Seyfarth Shaw’s Jerry Maatman Presents On 2018 Class Action Trend 1: The Impact Of U.S. Supreme Court Rulings https://www.seyfarth.com:443/publications/WC020819 Fri, 08 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On January 30, 2019, Seyfarth Shaw hosted &ldquo;Top Trends In Workplace Class Action Litigation&rdquo;, an event designed to officially launch the firm&rsquo;s 15th Annual Workplace Class Action Litigation Report (&ldquo;WCAR&rdquo;). The event&rsquo;s special guest was Law360 Senior Employment Report Braden Campbell, and also featured an exclusive presentation by WCAR author Jerry Maatman. Over the next week, we will be posting a series of video clips allowing our blog readers to see Jerry&rsquo;s analysis of the five most influential class action developments in 2018. Click the link below to watch Jerry discuss highlights from the U.S. Supreme Court in 2018!<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/02/seyfarth-shaws-jerry-maatman-presents-on-2018-class-action-trend-1-the-impact-of-u-s-supreme-court-rulings/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC020819a Federal Court Determines That Decision-Making By Upper Management May Allow For Certification In A Title VII Class Action https://www.seyfarth.com:443/publications/WC020819a Fri, 08 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: On February 4, 2019, in Woods-Early v. Corning Corp., Case No. 18-CV-6162, a race discrimination class action, Judge Frank P. Geraci, Jr. of the U.S. District Court for the Western District of New York refused to strike class allegations of discrimination in promotions on the basis of race and color in violation of Title VII and the New York State Human Rights Law. Although Plaintiff&rsquo;s amended complaint failed to identify a single promotion she was denied on the basis of race and color, the Court found that allegations of discriminatory decision-making by a small group of upper-level management exercising unfettered discretion over an employer&rsquo;s performance review process was sufficient to survive a motion to dismiss the class claims under Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/02/federal-court-determines-that-decision-making-by-upper-management-may-allow-for-certification-in-a-title-vii-class-action/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/WC020719 Law360’s Braden Campbell Presents On The “Top Trends In Workplace Class Action Litigation” https://www.seyfarth.com:443/publications/WC020719 Thu, 07 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: Last week, we were honored to have Braden Campbell, Senior Employment Reporter for Law360, as our guest speaker for Seyfarth Shaw&rsquo;s &ldquo;Top Trends In Workplace Class Action Litigation&rdquo; book launch event. As the official book launch of our 15th Annual Workplace Class Action Litigation Report, over 1,000 attendees participated in the live event webcast and tuned in to see and listen to Braden&rsquo;s in-depth analysis. Specifically, Braden spoke to our viewers about the most influential Supreme Court decisions of 2018, and gave his prediction for the hottest class action topics of 2019. Today&rsquo;s post allows anyone who missed the event to see Braden&rsquo;s entire presentation. Watch it the link below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2019/02/law360s-braden-campbell-presents-on-the-top-trends-in-workplace-class-action-litigation/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/OMM020719-LIT The Fifth Circuit Holds That Lenders Cannot Be Held Vicariously Liable Under RESPA https://www.seyfarth.com:443/publications/OMM020719-LIT Thu, 07 Feb 2019 00:00:00 -0400 <div> In a matter of first impression, the Fifth Circuit upheld a dismissal by the Northern District of Texas holding that a lender cannot be held vicariously liable for a loan servicer&rsquo;s purported violation of the Real Estate Settlement Procedures Act (&ldquo;RESPA&rdquo;). In upholding the decision, the Court held that the borrower failed to plead an agency relationship, and that, even if an agency relationship existed, the lender could not be held vicariously liable as a matter of law for the servicer&rsquo;s alleged failure to comply with RESPA. In reaching its decision, the Fifth Circuit relied upon a plain reading of RESPA, which imposes duties only on loan servicers and restricts liability to those who fail &ldquo;to comply with any provision&rdquo; of RESPA.</div> <div> &nbsp;</div> <div> There is presently a split of authority nationally at the district court level as to the viability of the vicarious liability theory under RESPA. As always, we will continue to monitor and report on key developments in this area.</div> https://www.seyfarth.com:443/publications/weibustmeierlaw360020719 Erik Weibust and Alex Meier authored an article in Law360 https://www.seyfarth.com:443/publications/weibustmeierlaw360020719 Thu, 07 Feb 2019 00:00:00 -0400 <p> Erik Weibust and Alex Meier authored a February 7 article in Law360, &quot;Trade Secret Protection And Social Media: A 5-Year Update.&quot;</p> https://www.seyfarth.com:443/publications/TBT020719 The Week in Weed: February 8, 2019 https://www.seyfarth.com:443/publications/TBT020719 Thu, 07 Feb 2019 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/2019/02/the-week-in-weed-february-8-2019/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/CCD020719 The Fifth Circuit Holds That Lenders Cannot Be Held Vicariously Liable Under RESPA https://www.seyfarth.com:443/publications/CCD020719 Thu, 07 Feb 2019 00:00:00 -0400 <p> In a matter of first impression, the Fifth Circuit upheld a dismissal by the Northern District of Texas holding that a lender cannot be held vicariously liable for a loan servicer&rsquo;s purported violation of the Real Estate Settlement Procedures Act (&ldquo;RESPA&rdquo;). In upholding the decision, the Court held that the borrower failed to plead an agency relationship, and that, even if an agency relationship existed, the lender could not be held vicariously liable as a matter of law for the servicer&rsquo;s alleged failure to comply with RESPA. In reaching its decision, the Fifth Circuit relied upon a plain reading of RESPA, which imposes duties only on loan servicers and restricts liability to those who fail &ldquo;to comply with any provision&rdquo; of RESPA. There is presently a split of authority nationally at the district court level as to the viability of the vicarious liability theory under RESPA. As always, we will continue to monitor and report on key developments in this area.<br /> <br /> <a href="https://www.consumerclassdefense.com/2019/02/the-fifth-circuit-holds-that-lenders-cannot-be-held-vicariously-liable-under-respa/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TBT020719a High Risk, High Reward: When is it Time to Establish or Grow a Cannabis Franchise System? https://www.seyfarth.com:443/publications/TBT020719a Thu, 07 Feb 2019 00:00:00 -0400 <p> Cannabis and CBD-driven business format franchising is coming.</p> <div> Franchising in the United States has deep historical roots in a nearly endless array of industries, from Benjamin Franklin&rsquo;s Franchise-esque Printing Business to the Singer Sewing Machine&rsquo;s profit-share model (1851) to Martha Matilda Harper&rsquo;s Creation of the Modern Franchise with the Harper Method &ndash; all sixty-plus years before Ray Kroc created the World&rsquo;s best-known franchise..</div> <p> <br /> <a href="https://www.blunttruthlaw.com/2019/02/high-risk-high-reward-when-is-it-time-to-establish-or-grow-a-cannabis-franchise-system/">Read the full blog post.</a></p> https://www.seyfarth.com:443/news/adahrdive020719 Seyfarth's ADA Analysis featured in HR Dive https://www.seyfarth.com:443/news/adahrdive020719 Thu, 07 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA Analysis was featured in a February 7 story in HR Dive, &quot;Website accessibility lawsuits nearly tripled in 2018.&quot; Website accessibility lawsuits filed in federal court nearly tripled in 2018, partly driven by cases in New York that were allowed to proceed to discovery, according to a Seyfarth&#39;s report. You can read the <a href="https://www.hrdive.com/news/website-accessibility-lawsuits-nearly-tripled-in-2018/547776/">full article here</a>.</p> https://www.seyfarth.com:443/news/chenlacc020619 Seyfarth Hires Labor and Employment Litigator Richard Chen in Los Angeles https://www.seyfarth.com:443/news/chenlacc020619 Wed, 06 Feb 2019 00:00:00 -0400 <p> LOS ANGELES -- (February 6, 2019) -- Seyfarth Shaw LLP announced today the arrival of partner Richard Y. Chen to the Labor &amp; Employment department in Los Angeles - Century City. Chen joins from Ogletree Deakins, where he was a shareholder in its Employment Law practice group in Orange County.</p> <p> Chen&rsquo;s practice focuses on a broad range of labor and employment matters, including discrimination, harassment, retaliation, and wrongful discharge disputes arising under Title VII and the California Fair Employment and Housing Act. He is an experienced litigator, handling jury trials, administrative hearings and mediations. Chen represents Fortune 1000 companies in a variety of industries, including manufacturing, retail, aerospace, transportation, hospital/healthcare, and corrections.</p> <p> &ldquo;Richard is a tremendous employment lawyer and tenacious litigator. He is extremely skilled in all facets of employment law and is known widely for his winning track record in employment litigation,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;We are thrilled to welcome Richard to our premier labor and employment team during an exciting time of national growth for the firm.&rdquo;</p> <p> In addition to representing employers in high stakes litigation, Chen also counsels businesses on many daily employment issues, including investigations, employee discipline and terminations, and wage and hour compliance.</p> <p> &ldquo;As we enter a new era of challenging times for California employers, Richard is a fantastic addition to our West Coast labor and employment group,&rdquo; said Laura Shelby, co-managing partner of Seyfarth&rsquo;s Los Angeles - Century City office.</p> <p> &ldquo;Richard is regarded as a true professional in the local community and brings a dynamic work ethic to our Los Angeles office,&rdquo; said Nicholas Waddles, co-managing partner of Seyfarth&rsquo;s Los Angeles - Century City office.</p> <p> Chen earned his J.D. from the Rutgers University School of Law, where he served as editor of the <em>Rutgers Law Review</em>. He received his B.A. from the University of California, Santa Barbara.</p> <p> Earlier this year, Seyfarth announced the arrival of labor economist Christopher Haan to the Labor &amp; Employment department and the firm&rsquo;s Organizational Strategy &amp; Analytics (OSA) team.</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/adacc020619 Seyfarth's ADA Analysis featured in Corporate Counsel https://www.seyfarth.com:443/news/adacc020619 Wed, 06 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s ADA Analysis was featured in a February 6 story from Corporate Counsel, &quot;California Companies Likely to See More ADA Website Accessibility Suits in 2019.&quot; The firm&#39;s new analysis report predicts a surge in federal ADA website accessibility lawsuits that could hit California companies in 2019. Seyfarth&#39;s Kristina Launey expects that we&rsquo;ll probably see an increase in website accessibility lawsuits in federal court again in California.</p> https://www.seyfarth.com:443/news/califanobloomberglaw020619 Anthony Califano quoted in Bloomberg Law https://www.seyfarth.com:443/news/califanobloomberglaw020619 Wed, 06 Feb 2019 00:00:00 -0400 <p> Anthony Califano was quoted in a February 6 story from Bloomberg Law, &quot;Medical Marijuana Use Worker Protections Growing, Rulings Show.&quot; Califano said that the Massachusetts Supreme Court ruling recognizing protections under state law forbidding disability discrimination creates the prospect of similar rulings elsewhere.</p> https://www.seyfarth.com:443/news/wcarmarketwatch020619 Seyfarth's Workplace Class Action Report featured in MarketWatch https://www.seyfarth.com:443/news/wcarmarketwatch020619 Wed, 06 Feb 2019 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was featured in a February 6 story from MarketWatch, &quot;President Trump says he cut regulations for business &mdash; but employee lawsuits have doubled over this critical issue.&quot; Regulators are still aggressive when it comes to some workplace issues, Seyfarth&#39;s recent report says. The report&#39;s author and Seyfarth partner Gerald Maatman said that class-action cases remain at the top of the list of challenges that keep business leaders up late at night. You can read the <a href="https://www.marketwatch.com/story/the-trump-administration-has-not-curtailed-employee-rights-in-this-critical-area-2019-01-08">full article here</a>.</p> https://www.seyfarth.com:443/publications/OMM020619-LIT President Trump Issues Another Executive Order in Pursuit of Buy American Initiative https://www.seyfarth.com:443/publications/OMM020619-LIT Wed, 06 Feb 2019 00:00:00 -0400 <div> Since taking office in 2017, President Trump has made no secret of his &ldquo;Buy American, Hire American&rdquo; initiative. The President recently took another step to promote American industry by signing an Executive Order on January 31, 2019, (the &ldquo;Order&rdquo;) which instructs all agencies to &ldquo;maximize the use of iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in contracts, sub-contracts, purchase orders, or sub-awards.&rdquo;</div> <div> &nbsp;</div> <div> This recent Order comes on the heels of Executive Order No. 13788, signed on April 28, 2017, which required federal agencies to &ldquo;scrupulously monitor, enforce, and comply with Buy American laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law.&rdquo; Executive Order 13788 also mandated federal agency action on Buy American laws at specified dates, as well as subsequent reporting on implementation of Buy American laws. In short, agencies were instructed to follow the law and report back.</div> <div> &nbsp;</div> <div> While Executive Order 13788 targeted recipients of &ldquo;federal grants,&rdquo; the recent Order amends that language to include those receiving &ldquo;Federal financial assistance,&rdquo; as defined in 2 C.F.R. &sect; 200.40&mdash;federal assistance received by private entities in the form of grants, cooperative agreements, direct appropriations, loans, etc. Thus, private entities receiving public funds will be &ldquo;encouraged&rdquo; to use domestic sources when procuring goods or services.&nbsp;</div> <div> &nbsp;</div> <div> Pursuant to the Order, each agency head has 90 days to &ldquo;encourage recipients of new Federal financial assistance awards pursuant to a covered program to use, to the greatest extent practicable, iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in every contract, subcontract, purchase order, or sub-award that is chargeable against such Federal financial assistance award.&rdquo; Within 120 days, each agency head must identify any &ldquo;tools, techniques or conditions that have been used . . . to maximize the use of iron and aluminum as well as steel, cement, and other manufactured products produced in the United States&rdquo; and report those, along with a proposed strategy to encourage greater use of domestic products, to the President and the U.S. Trade Representative.&nbsp;</div> <div> &nbsp;</div> <div> Congress passed the Buy American Act (&ldquo;BAA&rdquo;) during the Great Depression to protect American industry from foreign competition for federal procurement contracts. The BAA affords generous pricing preferences to offerors who certify their compliance with the domestic purchasing requirements stated in the act. Specifically, the BAA requires public agencies to procure articles, materials, and supplies that were mined, produced, or manufactured in the United States, except under five exempt circumstances. See 41 U.S.C. &sect; 8302(a).</div> <div> &nbsp;</div> <div> The BAA is one of several federal statutes implementing domestic purchasing requirements, including the &ldquo;Buy America Act&rdquo; and related regulations applicable to certain federal infrastructure and federal stimulus projects. See 49 U.S.C. &sect; 5323(j) (mass transit grants); 23 U.S.C. &sect; 313 (federally-funded highway grants); 49 U.S.C. &sect; 24305(f) (federal grants to Amtrak); 49 U.S.C. &sect; 50101 (grants to the Federal Aviation Administration); 48 C.F.R. &sect; 25.600, et seq. (projects using funds appropriated by the American Reinvestment and Recovery Act).</div> <div> &nbsp;</div> <div> Much like the Executive Order No. 13788, the current Order leaves a lot to be determined. Both Orders instruct agencies to take action &ldquo;consistent with applicable law.&rdquo; Both Orders require agency heads to develop policies within a specified time. EO No. 13788 gave agency heads 150 days to &ldquo;develop and propose policies&rdquo; to ensure the use of domestic products. By year end 2018, the Government Accountability Office (&ldquo;GAO&rdquo;) reported that the Department of Defense (&ldquo;DOD&rdquo;) was currently training 18,000 personnel, and Department of Homeland Security (&ldquo;DHS&rdquo;) was training 1,400 personnel on BAA requirements. The focus of the training&mdash;whether in response to the under application or over application of BAA&mdash;remains to be seen.&nbsp;</div> <div> &nbsp;</div> <div> Similarly, under the current Order, agency heads have 120 days to come up with a plan to encourage those receiving federal financial assistance to use domestic products. Those plans will presumably describe what challenges agencies will face in the process, as domestic preference programs present administrative and financial hurdles on purchasers. It is possible, if not likely, that BAA training will be amplified among those receiving federal financial assistance, resulting in stricter enforcement of BAA requirements. Although this Order clearly illustrates that the President is continuing to pursue his Buy American strategy, the impact will be defined over time.&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/CP020619 Is Looking For Applicants On Social Media Looking For Trouble? https://www.seyfarth.com:443/publications/CP020619 Wed, 06 Feb 2019 00:00:00 -0400 <p> Seyfarth Synopsis: While targeted social media ads may help employers find potential applicants with specific skill sets, inartfully crafted ads may open the door to discrimination claims, particularly in California.<br /> <br /> <a href="https://www.calpeculiarities.com/2019/02/06/is-looking-for-applicants-on-social-media-looking-for-trouble/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/TS020619 Robert Milligan to Present Webinar on Latest Developments in Trade Secrets Law and Non-Compete Agreements https://www.seyfarth.com:443/publications/TS020619 Wed, 06 Feb 2019 00:00:00 -0400 <p> On Tuesday, February 26, 2019, at 12 p.m. to 2:00 p.m. Eastern, Seyfarth Partner and Trade Secrets, Computer Fraud &amp; Non-Compete Practice Group Co-Chair Robert Milligan is presenting a webinar for myLawCLE, a partner of the Federal Bar Association. The &ldquo;Latest Developments in Trade Secrets Law and Non-Compete and Non-Solicitation Agreements&rdquo; webinar covers some of the recent developments in trade secret law and recent legislative and case law trends regarding non-compete and non-solicitation agreements and offers best practices for structuring permissible contracts.<br /> <br /> <a href="https://www.tradesecretslaw.com/2019/02/articles/trade-secrets/robert-milligan-to-present-webinar-on-latest-developments-in-trade-secrets-law-and-non-compete-agreements/">Read the full blog post.</a></p> https://www.seyfarth.com:443/publications/MA020619-LIT An Update: Cosmetics and Personal Care Products Regulation and Litigation https://www.seyfarth.com:443/publications/MA020619-LIT Wed, 06 Feb 2019 00:00:00 -0400 <div> As 2019 is underway and the government is back up and running (at least for now), we have summarized for you key developments from 2018 and projections for 2019 on issues that we have been monitoring closely in the cosmetics and personal care products space. May these topics highlight where to fill compliance gaps and take risk-adverse measures to avoid litigation.&nbsp;</div> <h3> &ldquo;C&rdquo; is for&hellip;</h3> <div> Cannabidiol (CBD) competed with Vitamin C as a top ingredient in new cosmetic products this past year, with promises of having anti-inflammatory effects and other healing properties.&nbsp; Amid the hype, at the end of 2018, the Agriculture Improvement Act of 2018, P.L. 115-334 (the &ldquo;2018 Farm Bill&rdquo;) was signed into law, changing the marketing of hemp and derivatives of cannabis and further removing hemp from the Controlled Substances Act thereby making it no longer an illegal substance under federal law.&nbsp; <em>See</em> Section 297A.&nbsp; The 2018 Farm Bill amended the definition of &ldquo;hemp&rdquo; to specifically include &ldquo;all derivatives, extracts, cannabinoids,&rdquo; which has been construed as an attempt to include hemp-based CBD under the definition of industrial hemp.&nbsp; The 2018 Farm Bill allows, subject to certain restrictions, hemp cultivation, along with the sale, transport (including via interstate commerce), and possession of hemp-derived products.</div> <div> &nbsp;</div> <div> Despite the major move in hemp legalization, the Food and Drug Administration (&ldquo;FDA&rdquo;) still reigns over CBD.&nbsp; When the 2018 Farm Bill passed, the FDA issued a <a href="https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm628988.htm">press release</a> acknowledging the &ldquo;growing public interest in cannabis and cannabis-derived products, including cannabidiol (CBD).&rdquo;&nbsp; The FDA communicated its commitment to &ldquo;advance new steps to better define public health obligations in this area&rdquo; and &ldquo;continue to closely scrutinize products that could pose risks to consumers.&rdquo;&nbsp; Critically, the press release warned that it is unlawful to introduce into interstate commerce food, including dietary supplements, containing CBD absent FDA approval, <em>regardless of whether the substance is hemp-derived</em> (because CBD is an active ingredient in FDA-approved drugs).&nbsp; The FDA further advised that there are pathways available to seek approval from the FDA to market such products, such as <a href="https://www.seyfarth.com/publications/OMM070518-LIT">Epidiolex </a>(the first drug containing CBD to be approved by the FDA for the treatment of epilepsy), and that the FDA is also considering its authority to issue a regulation allowing the use of a pharmaceutical ingredient in a food or dietary supplement.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Therein lies some confusion as to the effect of the passing of the 2018 Farm Bill and the FDA&rsquo;s interpretation of its authority&mdash;hemp and hemp-derived products have been officially removed from the Controlled Substances Act (<em>i.e.</em> no longer treated as a drug) but the FDA maintains that regardless of their source, CBD products, including those derived from hemp, and, at least those used in food and dietary supplements, are still subject to pre-market approval by the FDA.&nbsp; The 2018 Farm Bill was intended to aid farmers so that they can grow hemp for industrial applications and apply for grants and insurance to do so.&nbsp; Although related, legislators have not expressly authorized the extraction of CBD from hemp plants for human consumption as a food additive, dietary supplement, or medication.&nbsp; The FDA has determined though that <a href="https://www.fda.gov/Food/NewsEvents/ConstituentUpdates/ucm628910.htm">hulled hemp seeds, hemp seed protein powder and hemp seed oil</a> are safe for use without FDA approval and thus added to the Generally Recognized as Safe (GRAS) list.&nbsp; Hemp-derived CBD was not among the hemp derivatives added to GRAS and the FDA confirmed that these new GRAS conclusions &ldquo;do not affect the FDA&rsquo;s position on the addition of CBD and THC to food&rdquo; which is prohibited under section 301(II) of the Federal Food, Drug, and Cosmetic Act.&nbsp;</div> <div> &nbsp;</div> <div> Notably, the FDA press release was devoid of any mention of CBD in cosmetic products or where included in a product <em>unintended</em> for medical use or oral consumption.&nbsp; The December 2018 press release is still informative in highlighting the FDA&rsquo;s attention to CBD and under the 2018 Farm Bill, the new regulatory scheme for industrial hemp.&nbsp; With new legislation and recent guidance from the FDA, we can expect even more clarity from the FDA on CBD products through further interpretation and application of the law via additional postings and enforcement measures, including warning letters.&nbsp; As stated in the press release, &ldquo;[t]he FDA has sent <a href="https://www.fda.gov/NewsEvents/PublicHealthFocus/ucm484109.htm">warning letters</a> in the past [the last of which were in 2017] to companies illegally selling CBD products that claimed to prevent, diagnose, treat, or cure serious diseases, such as cancer.&rdquo;&nbsp; CBD therefore still remains a controversial ingredient, but generally, we can expect greater production of hemp-based products.</div> <h3> <em>Au naturel</em>--but is it really?</h3> <div> In the wake of the &ldquo;clean beauty&rdquo; movement, existing retailers and new manufacturers alike have shifted their focus to chemical-free and synthetic-free products, removing ingredients like formaldehyde, artificial colors, phthalates and parabens.&nbsp; To communicate this transition to consumers, labels and marketing campaigns have ramped up their use of terms such as &ldquo;natural,&rdquo; &ldquo;organic,&rdquo; &ldquo;green,&rdquo; &ldquo;non-toxic,&rdquo; &ldquo;wholesome,&rdquo; &ldquo;botanical,&rdquo; &ldquo;earth-friendly,&rdquo; &ldquo;safe,&rdquo; &ldquo;fresh&rdquo; and of course, &ldquo;clean.&rdquo;&nbsp; The use of such claims in advertising to consumers is not without risk.</div> <div> &nbsp;</div> <div> The FDA, which regulates cosmetics, has not defined the term &ldquo;natural&rdquo; nor has it established a regulatory definition for this term in cosmetic labeling.&nbsp; With regard to <a href="https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm456090.htm">food labeling</a>, the FDA has issued informal, non-binding guidance that the term &ldquo;natural&rdquo; means that &ldquo;nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in that food.&rdquo;&nbsp; Heeding to that definition, cosmetics advertised as &ldquo;natural&rdquo; should not contain synthetic or artificial substances that would not be expected to be in the product.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The FDA has also not defined the term &ldquo;organic&rdquo; for cosmetics.&nbsp; The U.S. Department of Agriculture (USDA), however, oversees the National Organic Program (NOP), which provides a definition of &ldquo;organic&rdquo; and further, provides certifications that agricultural ingredients have been produced under conditions that would meet the definition.&nbsp; The USDA has issued <a href="https://www.ams.usda.gov/sites/default/files/media/Cosmetics-Body Care Products.pdf">guidance for using the term &ldquo;organic&rdquo;</a> for cosmetics and personal care products (although the publication is over ten years old).&nbsp; In short, if a product contains agricultural ingredients that meet the USDA/NOP organic production, handling, processing and labeling standards, it may be eligible to be certified under the NOP regulations and labeled accordingly.&nbsp; Pursuant to the USDA&rsquo;s regulations, to label a product &ldquo;organic,&rdquo; it must contain at least 95% organically produced ingredients.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Use of the term &ldquo;natural&rdquo; has found a number of companies in hot water (H20 is a chemical by the way&mdash;pun intended).&nbsp; Lawsuits, namely, class actions, have been brought under state and federal consumer protection and false advertising laws where the products have been advertised as &ldquo;natural&rdquo; but are alleged to contain synthetic ingredients.&nbsp; Products labeled &ldquo;organic&rdquo; have equally faced litigation for mislabeling where some ingredients have been linked to health concerns or otherwise do not meet the NOP&rsquo;s standards.&nbsp;</div> <div> &nbsp;</div> <div> While there have been a number of lawsuits based on these terms, because they have been dismissed, stayed (pending formal definitions by the regulators), or settled, courts have been unable to offer more guidance on the issue.&nbsp; At least one court last year noted that &ldquo;[d]etermining whether a reasonable consumer acting reasonably would find the term &lsquo;natural&rsquo; deceptive when a product contains both natural and synthetic ingredients is a question this Court and Jury are well suited to entertain.&rdquo;&nbsp; <em>Petrosino v. Stearn&rsquo;s Prod., Inc.</em>, No. 16-CV-7735 (NSR), 2018 WL 1614349, at *10 (S.D.N.Y. Mar. 30, 2018).&nbsp; To date, neither the FDA nor FTC have brought an enforcement action against a cosmetics company premised on &ldquo;natural&rdquo; or &ldquo;organic&rdquo; but in 2019 or the near future, it may look to set a precedent for proper use of these terms and those connoting cleaner ingredients.&nbsp;</div> <h3> Social media, influencers, and the fine print</h3> <div> With <a href="https://www.washingtonpost.com/business/2018/11/30/they-had-us-fooled-inside-paylesss-elaborate-prank-dupe-people-into-paying-shoes/?utm_term=.dc09a9bcf0c1">social experiments</a> highlighting the public&rsquo;s blind reliance on image and &ldquo;influencers&rdquo; coupled with <a href="https://www.nytimes.com/interactive/2018/01/27/technology/social-media-bots.html?mod=article_inline">exposure of fraudulent internet accounts</a>, social media will likely fall under heightened scrutiny.&nbsp; Indeed, in the last year, the authenticity of influencers has been subject to criticism because of a number of so-called scandals revealing how much influencers are paid to either promote a product or critique a competitor.&nbsp; This realization has caused leaders in the personal care industry to call on influencer marketing to &ldquo;<a href="https://www.wsj.com/articles/unilever-demands-influencer-marketing-business-clean-up-its-act-1529272861">clean up its act</a>.&rdquo;&nbsp; While the concept of marketing through endorsements has been around for eons, such as athletes endorsing athletic wear, the use and reach of online bloggers through multiple platforms from Twitter, to Instagram, and other sites is subject to greater ambiguity (namely the relationship between the &ldquo;reviewer&rdquo; and developer of the product) and as a result, is susceptible to misleading consumers.&nbsp;</div> <div> &nbsp;</div> <div> Clients using social media for marketing should afford such efforts with the same attention as other forms of media.&nbsp; Use of a celebrity or even a &ldquo;minor&rdquo; but growing blogger may require disclosures by the company, the endorser, or both to afford consumers with requisite transparency, especially about the relationship between the endorser and the product.&nbsp; In mid-2017, the FTC caught wave of the social media endorsements and <a href="https://www.ftc.gov/news-events/press-releases/2017/04/ftc-staff-reminds-influencers-brands-clearly-disclose">issued 90 letters</a> &ldquo;reminding influencers and marketers that influencers should clearly and conspicuously disclose their relationships to brands when promoting or endorsing products through social media.&rdquo;&nbsp; In November 2018, the FTC <a href="https://www.ftc.gov/news-events/press-releases/2018/11/pr-firm-publisher-settle-ftc-allegations-they-misrepresented">settled a case</a> involving a mosquito repellant company that relied on athletes to post online about the product&rsquo;s effectiveness without disclosing that they were paid to do so.&nbsp; These actions signal that companies need to be careful about properly disclosing endorser relationships so as to not mislead consumers into thinking the endorser is providing a neutral, unsolicited review.&nbsp;</div> <div> &nbsp;</div> <div> The FTC has published helpful answers to <a href="https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking#about">FAQs </a>and an <a href="https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf">Endorsement Guide</a> to aid companies utilizing endorsements to promote a product.&nbsp; The FTC also recently <a href="https://www.ftc.gov/news-events/blogs/business-blog/2018/11/planning-social-media-marketing-campaign-read-first">provided pointers</a> about what companies should do before planning a social media marketing campaign, including clearly disclosing paid promotional relationships.&nbsp; As companies begin to expand on their utilization of <a href="https://www.forbes.com/sites/tomward/2018/12/18/the-influencer-marketing-trends-that-will-explode-in-2019/#4b0760ac2786">influencers </a>and <a href="https://www.forbes.com/sites/forbesagencycouncil/2018/12/27/four-influencer-marketing-predictions-for-2019/#5496f6394fbc">social media</a> marketing, be it through longer partnerships or more controversial figures, companies should heed to the regulations governing endorsements.&nbsp;</div> <h3> Fake news consumer reviews</h3> <div> At the end of 2017, the Consumer Review Fairness Act (P.L. 114-258, 15 U.S.C. &sect; 45b) took effect.&nbsp; As <a href="https://www.ftc.gov/enforcement/statutes/consumer-review-fairness-act">summarized by the FTC</a>, the CRFA:</div> <div> &nbsp;</div> <div> <table align="center" border="0" cellpadding="1" cellspacing="1" style="width:500px;"> <tbody> <tr> <td> makes provisions of form contracts between sellers and individual consumers void from inception if the provisions: (1) prohibit or restrict individuals from reviewing sellers&rsquo; goods, services, or conduct; (2) impose penalties or fees on individuals for such reviews; or (3) require individuals to transfer intellectual property rights in such reviews. The Act also bars sellers from offering form contracts with such provisions. The Act contains certain exceptions, including for contract provisions that bar the submission of confidential, private, or unlawful information.</td> </tr> </tbody> </table> <p> &nbsp;</p> </div> <div> The FTC has set forth <a href="https://www.ftc.gov/tips-advice/business-center/guidance/consumer-review-fairness-act-what-businesses-need-know">basic guidance</a> for CRFA compliance.&nbsp; In August 2018 the FTC brought and soon settled its <a href="https://www.ftc.gov/news-events/press-releases/2018/12/defendants-sellers-playbook-get-rich-scheme-settle-ftc-minnesota">first case under the CRFA</a> against a company for misrepresenting its earnings.&nbsp; In the course of selling programming and services to improve customers sales on an online market place, defendants in the case had customers sign &ldquo;form contracts&rdquo; that restricted customers from engaging in reviews, performance assessments, and similar analyses of the defendants&rsquo; goods, services, and conduct.&nbsp; These contracts were entered in direct violation of the CRFA.&nbsp;</div> <div> &nbsp;</div> <div> While the CRFA bars business activities intended to prevent people from giving honest reviews about products or services they receive, businesses should also refrain from activities that promote positive reviews where such reviews are not based on a consumer&rsquo;s truthful use. In 2018, at least one cosmetic company faced negative media coverage after a <a href="https://www.reddit.com/user/throwawayacctSRiley">former employee leaked an internal, company email</a> that insisted employees post positive reviews of a new product and even provided detailed instructions on what to say about the product as well as how to avoid tracing a review back to the company&rsquo;s IP address.&nbsp; To date, while the leak did not lead to legal action, it certainly resulted in immediate damage control.&nbsp;</div> <div> &nbsp;</div> <div> The same concerns that apply to influencers apply to consumer reviews, ensuring transparency and honesty.&nbsp; Consumers should not be penalized for sharing their reviews and on the flip side, to the extent a reviewer is compensated in exchange for writing a positive review (<em>i.e.</em> paid, entered into a sweepstakes or receives free products), that relationship needs to be publically disclosed.&nbsp; In sum, the rule of thumb for customer reviews is that they should be truthful and honest and thus, short of selling products, retailers should steer clear of dictating the content.&nbsp; An exception to that standard applies when a consumer posts a review, of which a manufacturer is aware, that indicates an unintended use or result from a product.&nbsp; In response, the manufacturer should clarify the testimonial.&nbsp; For example if a cosmetic company announces on Instagram a sale of its facial moisturizer intended for hydrating dry skin and a consumer posts about how that facial cream miraculously healed the customer&rsquo;s eczema, it may be incumbent upon the company to clarify to consumers on its Instagram page that the product is not intended to treat eczema, a medical condition.&nbsp; The FTC has provided guidance for <a href="https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking#testimonials">these reviews</a>, which are characterized as &ldquo;testimonials that don&rsquo;t reflect the typical consumer experience.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> The online universe <em>naturally </em>creates murky waters and should prompt cosmetic companies to take greater, pro-active online surveillance.&nbsp; The growing use of online media and easily manufactured consumer testimonials may present new opportunities for litigation or enforcement actions in 2019.&nbsp;</div> <h3> Indie Brands: their rise , their acquisitions, and the lawsuits they bring</h3> <div> From purportedly copying product names to copying product formulations, cosmetic competitors, including growing independent brands, filled the 2018 docket.&nbsp; A lawsuit that brought significant attention involved a multinational personal care conglomerate filing a patent infringement action against a young (approximately five years old) skincare company for selling an alleged copycat Vitamin-C serum at half the cost.&nbsp; To avoid being copied, many cosmetics companies avoid filing patents because it may require disclosing exact formulations of their products, but in this particular instance, the plaintiff did file a patent for its product.&nbsp; No results yet as the matter is still pending but the action may prompt companies to be more proactive in protecting their coveted intellectual property (the fountain of youth comes at a cost and after insurmountable research).&nbsp; However, in the growing push for &ldquo;clean&rdquo; cosmetics, query what variety will be left if the culturally-acceptable ingredient list continues to diminish.&nbsp;</div> <div> &nbsp;</div> <div> In another case this past year, roles were reversed where a <a href="https://www.allure.com/story/kylie-jenner-sheree-cosmetics-born-to-sparkle-eyeshadow-lawsuit">U.S. indie brand sued</a> a celebrity-owned cosmetic company for trademark infringement for imitating its eyeshadow palette.&nbsp; Three weeks <em>after </em>the celebrity-owned company launched its &ldquo;birthday special&rdquo; product, the indie company filed a trademark for a product advertised under the same name that it had released ten months earlier.&nbsp; The complaint alleged that the product likely confused consumers to believe they are buying the genuine, original cosmetic from the indie company and that &ldquo;inherently distinctive packaging, including the imprinting of quotations in the products,&rdquo; have also been copied.&nbsp;</div> <div> &nbsp;</div> <div> With a plethora of cosmetic brands, it is hard for any brand to maintain a competitive edge, especially where larger, established companies have been known to quickly pursue acquisitions of successful indie brands.&nbsp; For example, between 2017 and 2018, Colgate-Palmolive acquired PCA Skin and EltaMD.&nbsp; While an acquisition may be the &ldquo;finish line&rdquo; for some aspiring start-up cosmetic companies, the foregoing lawsuits demonstrate the effect early IP safeguards, i.e., trademarks, trade secrets, copyrights and patents, can have on potentially insulating a product and company from competition.&nbsp; On the other hand, these cases demonstrate that companies need to be aware of IP protections, so as to not find themselves in litigation for purported bootlegging.&nbsp;</div> <h3> Class actions always lurking in the corner</h3> <div> Whether a newbie to the cosmetics industry or long-standing mogul, companies were exposed to 2018&rsquo;s fair share of class actions.&nbsp; In <a href="https://www.truthinadvertising.org/wp-content/uploads/2018/08/Flint-v-Revlon-complaint.pdf">New York</a>, a class action was filed against two popular drug-store cosmetic brands for allegedly misleadingly marketing products as &ldquo;hypoallergenic&rdquo; when, according to plaintiffs, they contain allergens, irritants, and other dangerous ingredients.&nbsp; Also in New York, another class action was filed against two different well-known drug-store brands for misleading packaging for liquid cosmetics based on the amount of liquid cosmetic advertised in the container without disclosing that consumers will not be able to access a large portion (sometimes more than half) of the product in the container because the pumps were allegedly defective.&nbsp; Also concerning representations of volume but as to the product&rsquo;s effect, a lawsuit was filed in <a href="https://www.truthinadvertising.org/wp-content/uploads/2018/05/Floth-v-Too-Faced-Cosmetics-complaint.pdf">California</a> against a cosmetics company for allegedly misleadingly advertising that its mascara gives consumers 1,944% more volume when, according to the plaintiffs, the mascara did not work as advertised.&nbsp; Related to our discussion of &ldquo;natural,&rdquo; separate class actions were brought in <a href="https://www.classaction.org/media/patora-v-tarte-inc.pdf">New York</a> against a rising cosmetic brand and in <a href="https://www.truthinadvertising.org/wp-content/uploads/2018/06/Kutza-v-Williams-Sonoma-complaint.pdf">California</a> against a prevalent retailer for allegedly falsely marketing products as &ldquo;natural&rdquo; when they purportedly contain unnatural and synthetic ingredients.</div> <div> &nbsp;</div> <div> This sampling of class actions from 2018 illustrates that consumers (or rather plaintiffs&rsquo; counsel) not only continue to bring traditional false advertising claims based on product labels, <em>i.e.</em> stated ingredients and effects, but have also generated claims from the product itself and its packaging (<em>e.g.</em> slack fill).&nbsp; As a result, cosmetic manufacturers must not only ensure that product labeling and advertising is accurate but so too are the tangible features, including product content and size. Piggybacking on our earlier discussion of social media and online reviews, 2019 may see class actions premised on this activity, rather than the product alone.&nbsp; That is, consumer claims may stem from beyond the product and label to business activities surrounding online marketing of the product.&nbsp;</div> <h3> Push for regulatory reform</h3> <div> In light of all the foregoing developments, consumers and legislators alike have pushed for greater cosmetic reform.&nbsp; As we highlighted in <a href="https://www.seyfarth.com/publications/OMM042718-LIT">April </a>and <a href="https://www.seyfarth.com/publications/OMM101118-LIT">October</a>, 2018 saw a heightened interest in advancing legislation to regulate cosmetics by both the Senate and House, backed by support from industry leaders and famed celebrities.&nbsp; Amidst the mid-term elections, the call to action, that is, any true reform was projected to be delayed until this year or 2020.&nbsp; Eyes are on watch this year for the continued campaign for &ldquo;clean&rdquo; cosmetics and enhanced FDA oversight.&nbsp;</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/MA020619TS-LIT Top 10 Developments and Headlines in Trade Secret, Non-Compete, and Computer Fraud Law in 2018/2019 https://www.seyfarth.com:443/publications/MA020619TS-LIT Wed, 06 Feb 2019 00:00:00 -0400 <div> Continuing our annual tradition, we have compiled our top developments and headlines for&nbsp; 2018&ndash;2019 in trade secret, non-compete, and computer fraud law.</div> <div> &nbsp;</div> <h2> 1. Government Agencies Increasing Scrutiny of Restrictive Covenants</h2> <div> In mid-2018, the Attorneys General of ten states investigated several franchisors for their alleged use of &ldquo;no poach&rdquo; provisions in their franchise agreements. 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 several franchisors about their alleged use of such provisions. Less than twenty-four hours later, some franchisors (mostly different ones than those who received the information demands) entered into agreements with the Washington State Attorney General&rsquo;s Office to remove such clauses from their franchise agreements. The recent focus by state law enforcement on franchisors is a new twist, given that restrictive covenant agreements in the franchise industry are typically given more leeway than in the employment context.</div> <div> &nbsp;</div> <div> In a settlement with the office of New York Attorney General, a large employer agreed to drop its non-compete requirement for all employees except high-level executives, consistent with a policy in favor of employee mobility.</div> <div> &nbsp;</div> <div> On the federal level, Assistant Attorney General Makan Delrahim announced in 2018 that the DOJ had been &ldquo;very active&rdquo; in reviewing potential antitrust violations stemming from agreements among employers not to compete for workers. Employers should remain vigilant and confirm their compliance with these laws, as employers may face DOJ enforcement actions and class action litigation.</div> <div> &nbsp;</div> <h2> 2. Supreme Court Grants Cert. to Interpret Meaning of &ldquo;Confidential&rdquo; or &ldquo;Trade Secret&rdquo; Under FOIA</h2> <div> On January 11, 2019, the Supreme Court accepted certiorari in <em><a href="https://www.supremecourt.gov/docket/docketfiles/html/public/18-481.html">Food Marketing Institute v. Argus Leader Media</a></em> to reconcile fractured circuit tests on when the government may withhold information from a Freedom of Information Act (&ldquo;FOIA&rdquo;) request based on responsive information being confidential or a trade secret. The case has major potential ramifications for the protections given to sensitive information submitted by companies to the government, whether voluntarily, under compulsion (say, via grand jury or administrative subpoena) or as part of reporting obligations. For anyone or entity that does business or interfaces with the government, the Supreme Court&rsquo;s decision in Food Marketing Institute will be one to closely watch.</div> <div> &nbsp;</div> <h2> 3. Whistleblower Protection</h2> <div> In what appeared to be a first under the DTSA, the Eastern District of Pennsylvania federal court&nbsp; in <em>Christian v. Lannett Co., Inc.</em> threw out claims against an alleged trade secret thief on the basis of the DTSA&rsquo;s immunity for confidential disclosures to attorneys in the course of investigating a suspected violation of the law.</div> <div> &nbsp;</div> <div> In <em>MMM Holdings, Inc. v. Reich</em>, a California Court of Appeal held that the receipt, retention, and dissemination of confidential information by a whistleblower&rsquo;s attorney is protected under the state&rsquo;s anti-SLAPP statute, adding to the protections for attorneys who in similar factual circumstances, use or disclose confidential documents in related actions.</div> <div> &nbsp;</div> <div> In <em>Anheuser-Busch Companies, LLC, et al v. James Clark</em>, a Ninth Circuit panel heard oral arguments in late 2018 concerning the denial of a former employee&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. 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.</div> <div> &nbsp;</div> <h2> 4. Notable Trade Secrets Cases</h2> <div> On the civil side, a Texas jury awarded over $700 million in damages to a technology start-up regarding the alleged misappropriation of its real estate valuation trade secrets.</div> <div> &nbsp;</div> <div> On the criminal side, a Chinese scientist was <a href="https://www.justice.gov/opa/pr/chinese-scientist-sentenced-prison-theft-engineered-rice">sentenced</a> to over 10 years in prison for conspiring to steal proprietary rice seeds for representatives of a Chinese crop institute.</div> <div> &nbsp;</div> <div> In a matter of first impression under the DTSA, the <a href="https://www.tradesecretslaw.com/2018/12/articles/dtsa/the-limits-of-taking-the-lead-early-a-dismissal-without-prejudice-will-not-support-defend-trade-secrets-act-attorneys-fees/">Fifth Circuit held</a> that a dismissal without prejudice of a DTSA case does not support an award of prevailing party attorney&rsquo;s fees.</div> <div> &nbsp;</div> <div> The Fifth Circuit&rsquo;s decision in <em>Brand Services v. Irex</em>, combined with prior Louisiana appellate court rulings, largely settles the scope of the LUTSA&rsquo;s preemption for future disputes. The LUTSA only preempts claims based on actual trade secrets, not claims based on confidential information outside the definition of a trade secret.</div> <div> &nbsp;</div> <div> The <a href="https://www.tradesecretslaw.com/2018/06/articles/trade-secrets/in-trade-secret-misappropriation-case-texas-court-of-appeals-affirms-attorneys-fees-award-approaching-220000-where-actual-damages-were-4000/">Texarkana Court of Appeals</a> took the extraordinary measure of affirming an award of plaintiff attorney&rsquo;s fees against a defendant for willful and malicious misappropriation of trade secrets in an amount that was ultimately more than 50 times higher than the plaintiff&rsquo;s actual awarded damages.</div> <div> &nbsp;</div> <div> For further information about the DTSA, please see our desktop reference: &ldquo;<a href="https://www.seyfarth.com/uploads/siteFiles/practices/163502DefendTradeSecretsActGuideM1.pdf">The Defend Trade Secrets Act: What Employers Should Know Now</a>.&rdquo;</div> <div> &nbsp;</div> <h2> 5. Expansions of California&rsquo;s Business &amp; Professions Code &sect; 16600</h2> <div> A California Court invalidated a non-solicitation of employees provision as an unlawful restraint of trade in violation of section 16600 (i.e., California&rsquo;s non-compete statute), where the employees at issue were travel nurse recruiters who left their employer for a competitor. In <em>AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. et al.</em>, No. D071924, 2018 WL 5669154 (Cal. App. 2018), the court rejected a &ldquo;reasonableness&rdquo; approach to employee non-solicitation provisions, emphasizing the plain language of section 16600 and the California Supreme Court&rsquo;s decision in <em>Edwards v. Anderson</em>&mdash;placing further into question the viability of employee non-solicitation provisions.</div> <div> &nbsp;</div> <div> California&rsquo;s notorious section 16600 may even reach non-parties to a contract, according to a California Superior Court. The court applied section 16600 to invalidate the &ldquo;show cause order&rdquo; provisions in the NCAA bylaws, endangering the NCAA&rsquo;s ability to enforce its rules by voiding one of its &ldquo;go-to&rdquo; sanctions. The court reasoned that the &ldquo;show cause&rdquo; penalty requiring NCAA member schools to demonstrate to the Committee why they should not be penalized for the rule violations of a sanctioned individual is essentially a &ldquo;career-terminating sanction&rdquo; that restricts the individual&rsquo;s ability to practice his profession nationwide.</div> <div> &nbsp;</div> <div> Back in 2015, we covered the divided holding of the Ninth Circuit in <em>Golden v. California Emergency Physicians Medical Group</em>, 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.</div> <div> &nbsp;</div> <div> These decisions demonstrate the extent to which some California courts will go to invalidate restraints on employees and promote &ldquo;open competition and employee mobility.&rdquo;</div> <div> &nbsp;</div> <div> In contrast, a Delaware Chancery Court found that a non-compete provision may be enforced against a California executive because the employee was represented by counsel concerning the Delaware choice of law and forum selection provisions contained in the agreement.</div> <div> &nbsp;</div> <h2> 6. Other Notable State Cases Regarding Restrictive Covenants</h2> <div> The <strong>Wisconsin</strong> Supreme Court in <em>Manitowoc Company v. Lanning</em>, 2018 WI 6 (2018), extended the reach of the state&rsquo;s highly restrictive non-compete statute to invalidate an employee non-solicitation clause, finding that the non-solicitation clause prevented the employee from soliciting any of the company&rsquo;s 13,000 employees worldwide, and therefore was essentially a non-compete subject to the state&rsquo;s strict statutory requirements.</div> <div> &nbsp;</div> <div> In <em>Farm Bureau Life Insurance Co. v. Dolly</em>, 2018 S.D. 28 (2018), the <strong>South Dakota</strong> Supreme Court invalidated a life insurance agent&rsquo;s non-compete agreement because it did not meet the requirements set forth in South Dakota&rsquo;s state statute regarding non-competes.</div> <div> &nbsp;</div> <div> In <em>Capistrant v. Lifetouch</em>, 916 N.W.2d 23 (2018), the <strong>Minnesota</strong> Supreme Court determined that the return of property provision at issue in the case was a condition precedent of the employee&rsquo;s receipt of post-employment payments, but remanded to the district court based on its adoption of &ldquo;inequitable forfeiture.&rdquo;</div> <div> &nbsp;</div> <div> The Northern District of <strong>Illinois</strong> applied the &ldquo;janitor rule&rdquo; in <em>Medix Staffing Solutions Inc. v. Dumrauf</em>, No. 1:2017cvo6648 (N.D. Ill. 2018), to invalidate a former sales director&rsquo;s non-compete agreement as overbroad and unenforceable.</div> <div> &nbsp;</div> <div> Establishing a new cautionary tale of joint representation of employer and employee, a federal judge in <strong>Kentucky</strong> allowed claims for tortious interference with contract and aiding and abetting breach of fiduciary duty to proceed against the defendant law firm, based on allegations that the defendants told the plaintiff&rsquo;s former employees that they could make more money on their own and directed the employees to breach their contracts.</div> <div> &nbsp;</div> <h2> 7. New State Legislation Regarding Restrictive Covenants</h2> <div> On July 31, 2018, the <strong>Massachusetts</strong> legislature finally passed a non-compete bill, which went into effect on October 1, 2018, and changed the landscape of non-compete enforcement in the state. The Massachusetts Noncompetition Agreement Act (&ldquo;MNAA&rdquo;) imposes new restrictions on non-competes entered into on or after the effective date of the Act, governing everything from the length of permissible non-compete provisions to the enforceability of non-compete agreements. With this bill, Massachusetts also became the 49th state in the Union (with only New York lagging) to adopt a version of the Uniform Trade Secret Act. A more detailed discussion of the MNAA, and what it means for Massachusetts and other states that face increased difficulty in enforcing non-compete agreements, can be found <a href="https://www.seyfarth.com/publications/MA080218-LIT">here</a>.</div> <div> &nbsp;</div> <div> In March 2018, <strong>Idaho</strong> amended its non-compete law to put the burden of establishing irreparable harm back on employers&mdash;effectively nixing a previous amendment in 2016 entitling companies to a rebuttable presumption of irreparable harm upon a finding that the defendant-employee violated the non-compete.</div> <div> &nbsp;</div> <div> In March 2018, <strong>Utah</strong> passed a new law modifying its Post-Employment Restricts Act to bar the enforcement of non-compete agreements for employees in the broadcasting industry who earn less than a set salary amount per year and where certain conditions are present.</div> <div> &nbsp;</div> <div> In April 2018, <strong>Colorado</strong> passed an amendment to a law governing non-compete agreements for physicians, excluding physicians treating patients with &ldquo;rare disorders&rdquo; from the requirement to pay damages for joining a competitor.</div> <div> &nbsp;</div> <div> Other states, including <strong>New Jersey</strong> and <strong>Washington</strong>, have proposed legislation curbing employers&rsquo; ability to enforce non-compete agreements and other restrictive covenants. Although the proposed restrictions did not pass, such proposals reveal the continuing trend of limiting the availability and enforceability of restrictive covenants. <strong>Vermont</strong> recently proposed legislation as well to curb the use of non-compete agreements.</div> <div> &nbsp;</div> <div> For a 50 state survey of non-compete laws, please see our recently updated: &ldquo;<a href="https://www.tradesecretslaw.com/wp-content/uploads/sites/232/2019/01/50-State-Desktop-Reference-2018-2019.pdf">50 State Desktop Reference: What Businesses Need To Know About Non-Compete and Trade Secrets Laws</a>.&rdquo;</div> <div> &nbsp;</div> <h2> 8. Federal Legislation Regarding Restrictive Covenants</h2> <div> On April 26, 2018, Democratic U.S. Senators Warren, Murphy, and Wyden introduced the &ldquo;Workforce Mobility Act,&rdquo; which would prohibit the use of covenants not to compete, nationwide. The text of the bill provides, in pertinent part, that &ldquo;No employer shall enter into, enforce, or threaten to enforce a covenant not to compete with any employee . . . who in any workweek is engaged in commerce or in the production of goods for commerce (or is employed in an enterprise engaged in commerce or in the production of goods for commerce).&rdquo; However, the bill also states that &ldquo;Nothing in this Act shall preclude an employer from entering into an agreement with an employee to not share any information (including after the employee is no longer employed by the employer) regarding the employer or the employment that is a trade secret, as defined in section 1839 of title 18, United States Code.&rdquo;</div> <div> &nbsp;</div> <div> Florida Senator Marco Rubio recently introduced the &ldquo;<a href="https://www.tradesecretslaw.com/2019/01/articles/legislation-2/federal-proposed-non-compete-legislation-could-have-unintended-consequences/">Freedom to Compete Act</a>&rdquo; (the &ldquo;Act&rdquo;) proposing to amend the Fair Labor Standards Act (FLSA) of 1938 to ban non-competes for most non-exempt workers. The Act is broadly drafted to void any agreement that restricts &ldquo;any work for another employer,&rdquo; &ldquo;any work in a specified geographical area,&rdquo; and &ldquo;any work for another employer that is similar&rdquo; to the employee&rsquo;s prior work. While it purports to void only non-compete agreements, the bill&rsquo;s use of the sweeping language &ldquo;any work&rdquo; could be interpreted to ban not only non-compete agreements, but other post-employment restrictive covenants such as customer and employee non-solicitation agreements. Further, the Act (if passed) would purportedly apply retroactively to agreements entered into before its enactment.</div> <div> &nbsp;</div> <h2> 9. New Trade Secrets Law for France</h2> <div> Continuing as one of the EU&rsquo;s first few members to protect trade secrets on a local front, France recently adopted loi n&deg;2018-670, which offers companies protection for their economic and strategic information, implements the Directive 2016/943/EU, and puts French companies on a more equal footing with foreign competitors who already benefit from regulated business secrecy (e.g., U.S. and Chinese companies).</div> <div> &nbsp;</div> <h2> 10. Blockchain Technology Intersecting with Trade Secrets</h2> <div> The rise in blockchain technology has created new challenges for trade secret disputes as courts struggle to apply existing trade secret law to new types of digital property and information. <em>Founder Starcoin v. Launch Labs, Inc.</em> was one of the first trade secret decisions involving blockchain technology. There, the Southern District of California federal court denied the plaintiff&rsquo;s request for a preliminary injunction regarding the idea for cryptocollectible cats bearing the likeness of sports athletes and other celebrities. But the case&rsquo;s conceptual confusion around blockchain technologies&mdash;the attempt to draw a clear distinction between commodity/coin tokens and unique collectibles, where no such distinction really exists&mdash;is indicative of the danger cutting-edge companies may run into in trying to enforce (or even defend against) trade secret claims.</div> <div> &nbsp;</div> <div> We will continue to provide up-to-the-minute information on the latest legal trends and cases in the U.S. and across the world, as well as important thought leadership and resource links and materials.</div> <div> &nbsp;</div> https://www.seyfarth.com:443/publications/cnbnews020519 Glenn Smith, Howard Wexler and Lisa Savadijan authored an article in CNB News https://www.seyfarth.com:443/publications/cnbnews020519 Tue, 05 Feb 2019 00:00:00 -0400 <p> Glenn Smith, Howard Wexler and Lisa Savadijan authored a February 5 article in CNB News, &quot;GUEST OPINION: New Jersey Raises the Roof on Minimum Wage. Last month, New Jersey State Assembly Speaker Craig Coughlin introduced a Bill seeking to increase the minimum wage to $15.00 per hour by 2024 for most employees working in the State of New Jersey. You can read the <a href="https://www.gloucestercitynews.net/clearysnotebook/2019/02/guest-opinion-new-jersey-raises-the-roof-on-minimum-wage.html">full article here</a>.</p> https://www.seyfarth.com:443/publications/MA020519-LE Pre-Dispute Arbitration Agreements and Non-Disclosure Provisions on the Chopping Block in New Jersey https://www.seyfarth.com:443/publications/MA020519-LE Tue, 05 Feb 2019 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>The New Jersey Legislature recently passed Senate Bill 121 affecting claims of discrimination, harassment and retaliation, which if signed into law, would render any prospective waiver of rights against public policy, including pre-dispute mandatory arbitration agreements. In addition, non-disclosure provisions in settlement agreements involving these&nbsp; claims would be unenforceable against employees.&nbsp;</em></p> <div> On January 31, 2019, the New Jersey Legislature passed <a href="https://www.njleg.state.nj.us/2018/Bills/S0500/121_R2.PDF">Senate Bill 121</a>, which would prohibit employers from enforcing, among other things, mandatory pre-dispute arbitration and non-disclosure provisions in settlement agreements for claims of discrimination, retaliation, and harassment.&nbsp; The bill seemingly does not affect <strong><em>existing </em></strong>waivers or non-disclosure agreements (&ldquo;NDAs&rdquo;).&nbsp; Governor Phil Murphy has not commented publicly as to whether he will sign the bill into law.&nbsp; If signed, the breadth of this law would surpass any similar law in the country.&nbsp;</div> <div> &nbsp;</div> <div> Notably, whereas similar laws in <a href="https://www.seyfarth.com/publications/MA051418-LE">New York</a>, Vermont, Maryland, and Washington prohibit mandatory pre-dispute arbitration of sexual harassment claims, the New Jersey bill would extend such protections to all claims of discrimination, retaliation, and harassment under the New Jersey Law Against Discrimination (&ldquo;NJ LAD&rdquo;).</div> <div> &nbsp;</div> <div> Below is a synopsis of the key provisions of the bill and its potential impact on New Jersey employers.</div> <p> <br /> <strong><u>Prohibition on Prospective Waivers</u></strong></p> <div> The bill provides that any provis