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Julie Yap quoted in Bloomberg

Wed, 13 Dec 2017 00:00:00 -0500

Julie Yap was quoted in a December 13 story from Bloomberg, "Hotels Add ‘Panic Buttons’ to Protect Housekeepers From Guests," on how the hotel industry is confronting harassment in the workplace. Yap said that she advises companies to emphasize their policies against harassment by non-employees as well as employees, to encourage reporting of incidents, and to require robust training. You can read the full article here.




December 31, 2017: Last Day To Designate DMCA Agent Or Lose Safe Harbor Eligibility

Wed, 13 Dec 2017 00:00:00 -0500

Starting December 31, 2017, all online service providers (which includes website owners) who want to take advantage of the Digital Millennium Copyright Act (DMCA) Safe Harbor must designate a registered agent with the U.S. Copyright Office via the electronic registration system. Any prior designation not made through the online registration system will expire and become invalid after December 31, 2017.
 
The DMCA provides a safe harbor from copyright infringement liability for online service providers that allow content to be posted by third parties. To qualify for the safe harbor, online service providers must designate an agent to receive complaints of alleged copyright infringement on behalf of the company.
 
If you have not done so already, to use the new electronic agent registration system each service provider must first open an account with the Copyright Office here. From there, you must provide the first name, last name, position or title, organization, physical mail address (street address or post office box), telephone number, and email address of two representatives of the service provider who will serve as primary and secondary points of contact for communications with the Office, and a telephone number and email address for the service provider.
 
Of note, designations made electronically are effective for a period of three years from the date of filing. Although the Copyright Office is obligated to notify companies of their agent designation renewal dates, we suggest companies calendar the renewal dates themselves. For additional information, check out the Copyright Office’s FAQs on the electronic agent designation process here.
 
If you have any questions, please contact Seyfarth Shaw Intellectual Property Attorneys, Vincent Smolczynski, Kenneth Wilton, Edward Maluf or Brian Michaelis.



2017 Trade Secrets Webinar Series Year in Review

Wed, 13 Dec 2017 00:00:00 -0500

Throughout 2017, Seyfarth Shaw’s dedicated Trade Secrets, Computer Fraud & Non-Competes Practice Group hosted a series of CLE webinars that addressed significant issues facing clients today in this important and ever-changing area of law. The series consisted of six webinars:   2016 National Year in Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete and Computer Fraud Law  Simple Measures for Protecting Intellectual Property and Trade Secrets Protecting Confidential Information and Client Relationships in the Financial Services Industry Protecting Your Trade Secrets in the Pharmaceutical Industry Trade Secret Protection: What Every Employer Needs to Know Protecting Trade Secrets in the Social Media Age   As a conclusion to this well-received 2017 webinar series, we compiled a list of key takeaway points for each program, which are listed below. For those clients who missed any of the programs in this year’s series, the webinars are available on DVD upon request, or you may click on the title of each webinar for the online recording. Seyfarth Trade Secrets, Computer Fraud & Non-Compete attorneys are happy to discuss presenting similar presentations to your groups for CLE credit. Seyfarth will continue its trade secrets webinar programming in 2018, and we will release the 2018 trade secrets webinar series topics in the coming weeks.    2016 National Year in Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete and Computer Fraud Law   The first webinar of the year, led by Robert Milligan, Michael Wexler, and Joshua Salinas, reviewed noteworthy cases and other legal developments from across the nation over the last year in the areas of trade secret and data theft, non-compete enforceability, computer fraud, and the interplay between restrictive covenant agreements and social media activity, and provided predictions for what to watch for in 2017.   The DTSA can be a powerful tool to protect intellectual capital. However, in order to take full advantage of the DTSA, businesses should carefully check their agreements with employees, handbooks and equity awards to make sure they contain language mandated by the Defend Trade Secrets Act. 2016 was a record year for data and information security breaches. Organizations should alert and train employees on following company policies, spotting potential social engineering attacks, and having a clear method to escalate potential security risks. Employee awareness, coupled with technological changes towards better security will reduce risk and exposure to liability. Several states enacted laws to limit the scope and duration of non-competes in 2016. There were also some significant decisions limiting their scope and enforceability in 2016 as well. Companies should have their non-disclosure and non-compete agreements reviewed to ensure that they comply with the latest state and federal laws, including the new Defend Trade Secrets Act.   Simple Measures for Protecting Intellectual Property and Trade Secrets   Every day, companies unknowingly give up intellectual property and trade secrets, which they could have otherwise protected with simple processes. Poor R&D policies may not capture patent rights on a company invention, or a faulty or simply outdated employment agreement may not protect a customer list used by an employee who leaves for a competitor. These pitfalls are easily avoidable by implementing measures on the front end and educating employees on the basics of intangible property and how to protect it.    In this webinar, Seyfarth attorneys Patrick Muffo and Kevin Mahoney provided a basic overview of what types of intellectual property and trade secrets are protectable, how to protect them, and helpful tips to ensure that a company is doing everything they can to avoid common issues ass[...]



NLRB General Counsel Rescinds Controversial Memo Regarding Section 7 Rights of University Faculty, Student Assistants, and Student-Athletes

Wed, 13 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: On December 1, 2017, the newly-confirmed General Counsel of the National Relations Board, Peter Robb, issued a memorandum to the NLRB regional offices listing legal issues that should be submitted for review to the Division of Advice prior to the issuance of an unfair labor practice complaint.  Among other responsibilities, the Division of Advice provides guidance to the General Counsel and the regional offices with respect to significant legal issues arising in the processing of unfair labor practice charges.  The memorandum also listed seven different legal memoranda, commonly known as “GC Memos,” issued by Mr. Robb’s predecessor that were being rescinded. Of significant importance to colleges and universities is that among the seven rescinded GC Memos was the Memorandum entitled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context” (“the Report”).  This Report set out then-General Counsel Richard F. Griffin Jr.’s views as to the applicability of three election cases previously decided by the NLRB -- Pacific Lutheran University, Columbia University, and Northwestern University -- to unfair labor practice cases involving the Section 7 rights of faculty, student assistants and student-athletes.  Our prior description of the Report can be found here.  The rescission of the Report signals that the new General Counsel intends to depart from his predecessor on these issues.  NLRB Jurisdiction Over Religious Colleges and Universities and Managerial Status In Pacific Lutheran University, 361 NLRB No. 157 (December 16, 2014), the NLRB, departing from well-established case law, including decisions of the United States Supreme Court, announced a new test to determine when jurisdiction would be asserted over religious colleges and universities in representation cases.  The test established in Pacific Lutheran increased the instances in which jurisdiction would be asserted.  Also breaking with a prior decision of the Supreme Court, the Pacific Lutheran decision narrowed the circumstances in which faculty involved in school decision-making would be deemed to be managerial and thus excluded from protection of the National Labor Relations Act (“the Act”).  Analysis of the decision can be found here. As specifically intended,  Griffin’s Report extended the holdings of Pacific Lutheran beyond representation cases to the unfair labor practice context.  The positive effects of  the new General Counsel’s rescission of the Report should be felt in both unfair labor practice and representation cases. Student Assistants In Columbia University, 364 NLRB No. 90 (2016), the Board, departing from years of decision-making, held that students who performed services for the university in connection with their studies, specifically teaching and research assistants, were employees within the meaning of the Act for the purposes of organizing.  The Report extended this conclusion to the unfair labor practice context.  Moreover, and although the Board in Columbia University did not address the status of non-academic student workers such as those who work in cafeterias and bookstores, the Report also concluded that such student workers have rights under the Act. Taken together, the Report meant that prior General Counsel Griffin believed that student assistants and non-academic student workers not only could unionize under the Act, but that they also were protected from actions being taken against them because of their efforts to unionize.  Colleges and universities should expect positive effects in both areas as a result of Robb’s rescission of the Report. Student-Athletes Lastly, Griffin’s Report addressed the Board’s decision in Northwestern University, 362 NLRB No. 167 (2015), in which, based on p[...]



New York’s Highest Court: Pre-Certification Settlements Require Classwide Notice

Wed, 13 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The New York Court of Appeals holds that the state’s class action rules require notice of settlements to be sent to putative class members – even though no class has been certified.

Read the full blog post.




Don’t “Shoot Your Eye Out” Defending Unemployment Benefits Claims

Wed, 13 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The ordinary headaches of responding to unemployment claims with the EDD do not have to bog down employers in 2018. Here, we provide recommendations for managers to consider before the ball drops in Times Square this New Year.

Read the full blog post.




Invest in That?? What are you Smoking??

Wed, 13 Dec 2017 00:00:00 -0500

There is a segment of the investment community that wants to invest in the cannabis industry in the worst way, and that is exactly how some are doing it. Over the past several months our firm has reviewed a number of private placement memoranda (PPM) for clients, and while some appear to be solid and well written, others remind us of the early days of the internet boom when business plans were sometimes written on napkins. Deficiencies we have found in PPMs include confusing descriptions of business plans, lack of financial projections, lack of basis for valuations, inadequate disclosure of risk factors and vague discussion of management compensation and/or equity holdings.

Read the full blog post.




Philippe Weiss authored an article in Human Resource Executive

Wed, 13 Dec 2017 00:00:00 -0500

Philippe Weiss authored a December 13 article in Human Resource Executive, "Training Harassment's First Responders." Weiss provides a few strategies organizations can adopt to avoid becoming unwitting harassment enablers of bad behavior. You can read the full article here.




Senate Committee Set for December 13, 2017 Vote on Confirmation of Trump Nomination for OSHA Administrator

Tue, 12 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The Senate Nominations Committee has scheduled a vote on the Trump nomination, Scott A. Mugno, for the Assistant Secretary of Labor, Occupational Safety and Health.

Read the full blog post.




Google Dodges Gender Discrimination Class Action For Now

Tue, 12 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: In Ellis v. Google, Inc., No. CGC-17-561299 (Cal Sup. Ct. Dec. 4, 2017), Judge Mary Wiss of the Superior Court of California granted a motion to dismiss a class action lawsuit brought by Google employees who claimed that all female Google employees are paid less than their counterparts. Specifically, Judge Wiss found that the plaintiffs failed to plead sufficient facts to conclude that Google paid all female employees less than their male counterparts, even though the complaint alleged that a statistical analysis “found systematic compensation disparities against women pretty much across the entire workforce.” Id. at 4. This case represents a win for employers, who too often are forced to defend large class actions based on conclusory allegations.

Read the full blog post.




Multinational Company in China – Are You Concerned About the Personal Credit System and Privacy Provisions in China? You Should Be!

Tue, 12 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The People’s Republic of China is making progress in implementing its mandatory “social credit system.” Multinational businesses in China should be watchful of this system, and ready for it when it rolls out – if it hasn’t already.

Read the full blog post.




Jon Meer profiled in Law360, “MVP: Seyfarth's Jon Meer”

Tue, 12 Dec 2017 00:00:00 -0500

Jon Meer was profiled in a December 12 story from Law360 as a 2017 “Employment MVP”. Meer was named an “Employment MVP” for securing numerous victories for companies in wage-related class actions, including a significant win in a “bag check” case for shoe giant Nike.




Tracy Billows quoted in the Washington Post

Tue, 12 Dec 2017 00:00:00 -0500

Tracy Billows was quoted in a December 12 story from the Washington Post on the potential human resources issues involved with company holiday parties. Billows said that people tend to feel more comfortable away from the workplace.




Philippe Weiss quoted in the Associated Press

Mon, 11 Dec 2017 00:00:00 -0500

Philippe Weiss was quoted in a December 11 story from the Associated Press, "Will misconduct scandals make men wary of women at work?" Weiss said that certain managers are considering whether to make sure they’re never alone with a staffer, despite the complications of adding a third person in situations like performance reviews. You can read the full article here.




Lawrence Lorber quoted in Human Resource Executive

Mon, 11 Dec 2017 00:00:00 -0500

Lawrence Lorber was quoted in a December 11 story from Human Resource Executive, "An End to Sexual-Harassment Arbitration?," on the “Ending Forced Arbitration of Sexual Harassment Act of 2017." Lorber predicts that the bill, as its currently worded, will likely meet some opposition. You can read the full article here.




Sam Schwartz-Fenwick quoted in SHRM

Mon, 11 Dec 2017 00:00:00 -0500

Sam Schwartz-Fenwick was quoted in a December 11 story from SHRM, "Supreme Court Declines to Clarify Law on Sexual Orientation Discrimination," on the U.S. Supreme Court announcing it would not yet resolve a split among the appeals courts over the question of whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. Schwartz-Fenwick predicted that the Supreme Court will eventually resolve the split, unless Congress passes legislation that clarifies the scope of Title VII. You can read the full article here.




Interns Flunk the Class

Mon, 11 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The Second Circuit has upheld summary judgment against magazine interns seeking payment as “employees” under the FLSA.

Read the full blog post.




Google It: Pay Equity Class Action Complaint Dismissed

Mon, 11 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: In the first case of its kind under the California Fair Pay Act, a court dismissed a pay equity class claim against Google, holding that alleging wage discrimination for “all women” does not plead enough information to sustain a complaint.

Read the full blog post.




No Longer the Stuff of Science Fiction: The FDA’s New Policy Approach to Regenerative Medicine Products

Mon, 11 Dec 2017 00:00:00 -0500

The ability to facilitate the regeneration of parts of the human body is “no longer the stuff of science fiction” according to FDA Commissioner Scott Gottlieb.[i] According to Commissioner Gottlieb, the cell based therapies and their use in regenerative medicine is one of the most promising fields of science already producing “improbable advances.” At the current early stages of development, deceptive claims from unscrupulous actors risks “jeopardizing the legitimacy and advancement of the entire field.” In order to curb such deception while simultaneously providing a clear and efficient path for product developers, the FDA has recently published a suite of four new guidance documents related to their regenerative medicine policy framework.

Read the full blog post.




Spokane City Council Approves “Ban-the-Box” Ordinance for Private Sector Employers

Mon, 11 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The Spokane City Council recently approved a “ban-the-box” ordinance, which, if it becomes law, will prohibit employers from requesting and considering criminal history until after an interview. The Mayor has until December 14, 2017 to veto or sign the ordinance. On November 27, 2017, the City of Spokane City Council approved a new ordinance that restricts the ability of private sector employers to request and consider conviction records for employment purposes, including a requirement that covered employers “ban the box” asking applicants to self-disclose their criminal history on employment applications and defer requesting and considering any criminal history information, including through a criminal background check, until after an interview or, if no interview, after a conditional offer of employment. Mayor David Condon has until December 14, 2017 to sign or veto the ordinance. If passed, Spokane employers will have until July 2018 to comply with the new ordinance, although the City will not enforce it until 2019. Coverage The ordinance applies to all private employers in the Spokane city limits, but does not apply to the following: to any employer hiring an employee who will have unsupervised access to children under the age of 18 or vulnerable adults or persons as defined under state law; to employers who are expressly permitted or required under any federal or Washington state law to inquire into, consider, or rely on information about an applicant’s arrest or conviction record for employment purposes; to certain law enforcement agencies as defined under state law; or where criminal background checks are specifically permitted or required under state or federal law. The ordinance is broad enough to cover all types of work, including “temporary or seasonal work, contracted work, contingent work and work through the services of a temporary or other employment agency; or any form of vocational or educational training, whether offered with or without pay.” The ordinance arguably only applies to those applying for positions in the Spokane city limits. What the Ordinance Prohibits Covered employers may not: advertise job openings in a way that excludes people with arrest or conviction records from applying, such as using advertisements which state “no felons” or “no criminal background,” or which otherwise convey similar messages; include any question on a job application, inquire orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant’s arrest or conviction record until after the applicant has participated in an in-person or video interview or received a conditional offer of employment; use, distribute, or disseminate an individual’s arrest or conviction record except as required by law; disqualify an individual solely because of a prior arrest or conviction unless the conviction is related to significant duties of the job or disqualification is otherwise allowed by this chapter; or reject or disqualify an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position (“otherwise qualified” means the applicant meets certain criteria for the position as set out in the job advertisement or description without considering the existence or absence of a conviction or arrest record). The ordin[...]



Jon Meer recognized in Law360, "Law360 MVP Awards Go To Top Attorneys From 78 Firms”

Sun, 10 Dec 2017 00:00:00 -0500

Jon Meer was recognized by Law360 in a December 10 story regarding the publication’s “MVP Awards” for employment. Notably, in the “Employment MVP” class, Jon is 1 of only 5 honorees.




Jon Meer quoted in Footwear News

Fri, 08 Dec 2017 00:00:00 -0500

Jon Meer was quoted in a December 8 story from Footwear News, "Employee Bag Checks: The Hidden Issue Taking Aim at Retailers This Holiday Season." Meer said that employee bag check litigation is very prevalent, especially here in California, and that every big national retailer has been hit with one. You can read the full story here.




Tax Reform Passes the Next Hurdle -- The Senate

Fri, 08 Dec 2017 00:00:00 -0500

This is the second issue in a planned series of alerts for employers on selected topics on tax reform. The series of Tax Reform Management Alerts is designed to provide an in-depth analysis of executive compensation and employee benefits aspects of the tax reform proposals and how they will impact your business.    After much last minute wrangling, Senator Mitch McConnell finally had the votes needed to pass tax reform in the Senate.  Using a heavily hand-marked version, in the early hours of December 2, 2017, the Senate passed its Tax Cuts and Jobs Act (the “Senate Bill”) by the narrowest of margins with a vote of 51 to 49.    There were very few changes from the Senate Finance Committee proposal, as modified (the “Senate Proposal”), which were reported on in our last Alert. As a result, the Senate Bill, as passed, still retains several significant provisions that make important changes affecting executive compensation and employee benefits generally.    What Happens Next?    Now that both the House and Senate have passed their respective bills, both bills head to Conference to reconcile the differences. Congressional leaders have promised a reconciled bill to be on the President’s desk for signature by Christmas.   The following table updates the prior summary by providing the highlights of the Senate Bill, as passed, as compared to the current version of the House Bill.   Executive Compensation   ISSUE HOUSE BILL, AS PASSED SENATE BILL, AS PASSED Right to Defer Stock (Private Companies) Effective for stock attributable to options exercised or RSUs settled after  December 31, 2017 Right to defer income on stock received in connection with an option exercise or RSU settlement if an employee, who is not an “excluded employee,”1 makes an election no later than 30 days after the first time the right to the stock is substantially vested or transferable (whichever is earlier);2 right is limited and will not apply to public corporations Clarifies that Section 83 does not apply to restricted stock units Same Section 162(m)  $1 million Deductibility Limit Effective tax years beginning after 2017 with no grandfather or transition period Eliminates the performance based compensation and commission exceptions, further limiting compensation that can be deducted  Includes principal financial officer as “covered employee,” realigning definition with the SEC disclosure rules Once an employee becomes a covered employee after 2016, he or she stays one, including if amounts are paid to a beneficiary Effective tax years beginning after 2017 with limited grandfather Same Same Same Same New Tax on Excess Compensation Paid by Not-for-Profits Beginning 2018, a new tax is imposed on excess compensation paid by a tax exempt employer: Tax equals 20% of compensation paid to a covered employee over $1,000,000, plus excess parachute payments The employer is liable for the ta[...]



Email Systems: GC Memorandum 18-02 Signals that the Trump Board May Review the Controversial Obama Board Changes Allowing Employees to Use Employer’s Email Systems for Protected, Concerted Activities

Fri, 08 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.

Read the full blog post.




If Pain, Yes Gain—Part XL: Arizona Publishes Final Sick Leave Rules

Fri, 08 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: More than several months after the Arizona Fair Wages and Healthy Families Act went into effect, the state published its long-awaited paid sick time final rules. The final rules, among other things, explain how employers should handle unused sick time at year-end and the Act’s notice and posting requirements. The Industrial Commission of Arizona (the “Commission”) published the Notice of Final Rulemaking (the “final rules”) for the Fair Wages and Healthy Families Act (the “Act”). The Act, which went into effect on July 1, 2017, provides eligible Arizona employees with paid sick time benefits.  After months of anticipation and as explained below, the final rules bring clarity to a number of gray areas in the Act.     The final rules represent the third iteration of the Commission’s sick time rules. After releasing its proposed rulemaking in May 2017, the Commission made significant substantive changes to employers’ would-be sick time obligations in its Notice of Supplemental Proposed Rulemaking, which was released in late-June 2017.  The final rules are largely consistent with the state’s paid sick time supplemental proposed rulemaking. Here are the highlights: Equivalent Paid Time Off: The final rules include the phrase “equivalent paid time off” (defined below) when referencing earned paid sick time. This is helpful for employers seeking to use their current paid time off or other paid leave policies for Arizona sick leave compliance. Definitions: The final rules also contain the following definitions: “Amount of earned paid sick time available to the employee” means the amount of earned paid sick time or equivalent paid time off that is available to the employee for use in the current year.  This definition, along with the three that immediately follow, will assist employers in meeting the Act’s burdensome paystub notice requirements. “Amount of earned paid sick time taken by the employee to date in the year” means the amount of earned paid sick time or equivalent paid time off taken by the employee to date in the current year. “Amount of pay the employee has received as earned paid sick time” means the amount of pay the employee has received as earned paid sick time or equivalent paid time off to date in the current year. “Employee’s regular paycheck” is defined as a regular payroll record that is readily available to employees and contains the information set forth in the Act’s paystub notice requirements.  The final rules expressly state that physical or electronic paychecks or paystubs are permitted. ·“Equivalent paid time off” “means paid time off provided under a paid leave policy, such as a PTO policy, that makes available an amount of paid leave sufficient to meet the accrual requirements of the Act that may be used for the same purposes and under the same conditions as earned paid sick time.” “Heath care professional” means a physician, physician assistant, registered nurse practitioner, certified nurse midwife who is a registered nurse practitioner, licensed dentist, or a behavioral health provider practicing as a psychologist, clinical social worker, family therapist, o[...]



Court Refuses To Release Correctional Facility Employer From Age Discrimination Suit, But Orders The EEOC To Identify Aggrieved Individuals

Fri, 08 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: In an ADEA action brought by the EEOC alleging that the New Mexico Department of Corrections failed to promote correctional officers over the age of 40, a federal district court in New Mexico denied the employer’s motion to dismiss but ordered the EEOC to file a supplemental pleading identifying previously unnamed aggrieved parties.

Read the full blog post.




Be Fore-WARNed: California Really Is Peculiar

Fri, 08 Dec 2017 00:00:00 -0500

Seyfarth synopsis: Companies contemplating a mass layoff must comply with the federal Worker Adjustment and Retraining Notification Act. In California, alas, companies must also consider the even more stringent requirements of California’s own WARN act. That is the harsh lesson recently imparted by the California Court of Appeal in Boilermakers v. NASSCO Holdings Inc.

Read the full blog post.




The 2017 Judicial Hellholes Report Is Out And Makes For An Interesting Read

Fri, 08 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: Each year the American Tort Reform Association (“ATRA”) publishes its “Judicial Hellholes Report” that focuses on litigation problems in state court systems and challenges for corporate defendants in the fair and unbiased administration of justice. The ATRA’s 2017 Report was recently published; a copy is here, as well as an executive summary here.

Read the full blog post.




Ouch: EEOC Gets Summary Judgment Win Relative To Employer’s Medical Testing

Thu, 07 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: In an ADA action alleging that a maker of train components discriminated against a group of applicants by regarding them as disabled, a federal district court in Illinois granted the EEOC’s partial motion for summary judgment, holding that the company’s decision to deny them work was based on improper tests concerning prospective injuries.

Read the full blog post.




The Week in Weed: December 8, 2017

Thu, 07 Dec 2017 00:00:00 -0500

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

Read the full blog post.




U.S. Supreme Court Hears Oral Argument in Key Case on LGBT Rights and Religious Liberty

Thu, 07 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: Oral argument suggests the Supreme Court is narrowly divided on how to reconcile non-discrimination protections for LGBT individuals with claims for religious liberty, with Justice Kennedy appearing likely to cast the decisive vote. On December 5, 2017, the United States Supreme Court heard oral arguments in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, No. 16-111.  The question presented was “Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”  The case involves Jack Phillips, the owner of Masterpiece Cakeshop in Colorado, who refused to bake a custom wedding cake for a same-sex couple.  The owner asserted that the First Amendment rights to freedom of speech and religious liberty protected his refusal to make custom cakes for same-sex couples.  Based on his refusal, he was ultimately found to have violated Colorado’s Anti-Discrimination Act, and the Supreme Court ultimately took up the case. At oral argument, the baker’s attorney argued that the government cannot force a person “to express messages that violate religious convictions” and that requiring the bakery owner to “sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions” would violate those rights.  Conversely, counsel for Colorado argued that the bakery, as a commercial enterprise holding itself open to the public, cannot invoke religious beliefs to avoid application of a generally applicable anti-discrimination law, which “extended to LGBT people the same protections used to fight discrimination against race, sex and persons of faith.” At the spirited oral argument, Justice Ginsburg and Justice Kagan pressed the baker’s counsel to explain where the line could be drawn:  after admitting that it would not be compulsion of speech to require a baker to sell a pre-made cake, but suggesting that a custom cake is protected speech, the Justices asked whether florists, jewelers, and hairstylists also could claim First Amendment protections to refuse service to customers.  Justice Sotomayor also expressed concern that a rule where expressive speech trumps public accommodation laws against discrimination could have an impact on race discrimination and other civil rights laws.  However, Justice Kennedy —  historically a champion for LGBT rights —  challenged Colorado’s position.  He pressed counsel for Colorado on whether the application of the anti-discrimination law in this case expressed impermissible hostility to religious views.  Justice Kennedy later stated: “[T]olerance is essential in a free society. And is most meaningful when it’s mutual.  It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”    Justice Gorsuch suggested that the requirements of the anti-discrimination law amounted to compe[...]



Will the “Spirits” of the Holiday Haunt You? (Not Just Your Obligatory “Holiday Party” Blog Post)

Thu, 07 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: Over the next few weeks, we’re going to weigh in on the growing national debate around the recent wave of sexual harassment allegations. To date, no one seems immune from the allegations: celebrities, politicians, presidents. See for instance Time Magazine’s Person of the Year 2017 issue. We hope this dialogue will empower employees and employers, alike, to speak up before inappropriate, but previously unmentioned conduct, festers. This conversation also creates an opportunity for a company to look hard at its corporate culture and how it can strive to make it welcoming and inclusive. Welcome to our three part series.

Read the full blog post.




Work Stoppages: GC Memorandum 18-02 Signals the “Trump Board” Will Have the Opportunity to Review Controversial Changes With Respect to Work Stoppages

Thu, 07 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo setting forth a wide range of issues that must be submitted to Advice before Complaints will be authorized. Generally these issues involve areas of the law where the “Obama Board” issued decisions departing from previously established precedent. The memo strongly suggests that instead of declining to exercise prosecutorial discretion not to issue Complaints where the General Counsel disagrees with the legal principles announced in these decisions, he intends to given the newly constituted Board the opportunity to assess these legal principles as the opportunity arises. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Today’s blog looks at controversial changes with respect to work stoppages. Click here to find prior posts.

Read the full blog post.




2017 Trade Secrets Webinar Series Year in Review

Thu, 07 Dec 2017 00:00:00 -0500

Throughout 2017, Seyfarth Shaw’s dedicated Trade Secrets, Computer Fraud & Non-Competes Practice Group hosted a series of CLE webinars that addressed significant issues facing clients today in this important and ever-changing area of law. The series consisted of six webinars:

Read the full blog post.




SLOW DOWN Congress: You Are About to Render the FAA Inapplicable to Employment Disputes (and Class Waivers), and You Probably Don’t Realize It

Thu, 07 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: Pending bi-partisan legislation aimed at preventing employers from enforcing arbitration agreements of sexual harassment claims might make employers unable to enforce arbitration agreements, and class waivers included in them, as to any employment claim.

Read the full blog post.




Short-Term Layoffs Require Advance Notice Under California WARN

Wed, 06 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: Like the Federal WARN Act, California’s WARN Act (Cal-WARN) requires employers to notify employees of certain covered layoffs that will affect them. The California Court of Appeal has now confirmed that Cal-WARN requires sixty days’ notice of a wide range of short-term layoffs (such as furloughs). Failure to provide that notice triggers liability for back pay, lost benefits, medical expenses, civil penalties, and attorneys’ fees. The Facts In early 2014, NASSCO Holdings, because of a lack of work, needed to temporarily reduce its workforce—much of it represented by the Boilermakers Union. NASSCO ultimately laid off ninety employees for four to five weeks. During this furlough, employees did not receive wages, did not earn vacation pay, and did not accrue service credit for purposes of pension benefits. NASSCO did not give prior notice of the furlough.  The Boilermakers Union and three individual employees sued NASSCO under Cal-WARN for failing to provide a sixty-day notice of the furlough. The plaintiffs sought back pay and millions of dollars in civil penalties. When the parties cross-filed for summary judgment, the trial court ruled for the plaintiffs, holding that the laid-off employees were entitled to back pay and lost pension benefits, but not to civil penalties.   The Court of Appeal’s Decision NASSCO argued that the furlough was not a “separation from a position” that would trigger Cal-WARN’s sixty-day notice obligation. The Court of Appeal disagreed. Looking to the plain meaning of “separation,” the Court of Appeal noted that separation could be “an action of moving apart” that need not be either “permanent” or “temporary.” Thus, being “separated from a position” does not mean that the employment relationship must entirely end. Instead, under Cal-WARN, a triggering separation “encompasses a temporary job loss, even if some form of the employment relationship continues and the employees are given a return date.” The Court of Appeal was not willing to specify how long a furlough need be to constitute a “separation” that would trigger Cal-WARN. Rather, the Court of Appeal advised more generally that Cal-WARN applies to temporary layoffs “where advance notice would provide the workers time to plan and prepare for their sudden wage loss,” even if workers subject to a temporary layoff would not need training for a new job. In reaching this conclusion, the Court of Appeal underscored the California Legislature’s “judgment that California employers, not California employees, should bear the risk of surprise resulting from an unexpected layoff,” and that Cal-WARN is a remedial statute akin to “a wage workers’ equivalent of business interruption insurance.” In so holding, the Court of Appeal dismissed the employer’s argument that pointed to language in the statute deeming employers “liable to each employee entitled to notice who lost his or her employm[...]



EPA Determines No Need for Additional Superfund Financial Responsibility Rules for Hardrock Mining Industry

Wed, 06 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) announced that it will not issue a final rule for the Obama-era’s proposed regulations for financial responsibility requirements for certain hardrock mining (HRM) facilities. 82 Fed. Reg. ______ (Dec. __, 2017).

Read the full blog post.




GC Memo 18-02 May Signal a Shift Away From Finding Disparate Treatment of Employees During Contract Negotiations to be Unlawful Where Only General Antiunion Animus is Found

Wed, 06 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.

Read the full blog post.




San Francisco Regulators Provide Anticipated Guidance For Lactation Ordinance

Wed, 06 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: In June 2017, the San Francisco Board of Supervisors passed an ordinance requiring employers to provide a private “lactation location” where new mothers can pump their milk as well as a “lactation break” during the work day, in addition to other amenities. The ordinance is effective January 1, 2018 and is more expansive than current state and federal law requiring employers to make reasonable efforts to provide lactation breaks throughout the workday. In the wake of its passage and the approaching effective date, the City’s Office of Labor Standards Enforcement and Department of Public Health are issuing administrative guidance for employers.

Read the full blog post.




Ilana Morady quoted in Business Insurance

Wed, 06 Dec 2017 00:00:00 -0500

Ilana Morady was quoted in a December 6 story from Business Insurance, "Addition of third commissioner should clear safety review backlog," on how employers and their representatives will be watching how the review commission weighs in on several key issues, including OSHA’s use of the general duty clause, which the agency has increasingly relied on to cite employers in the absence of OSHA standards covering particular risks. Morardy said that’s really a hot issue right now — how the general duty clause applies to workplace violence and what employers’ duties are to protect their patients who might have a history of violence. You can read the full article here.




Andrew Boutros interviewed on CBC News Network

Wed, 06 Dec 2017 00:00:00 -0500

Andrew Boutros was interviewed December 6th on the CBC News Network, "Are Trump's tweets official documents?" Boutros discussed the U.S. president's tweets, including the Flynn firing tweet that his lawyer alleges he wrote. You can watch the full interview here.




Raymond Wong quoted in the International Bar Association

Wed, 06 Dec 2017 00:00:00 -0500

Raymond Wong was quoted in a December 6 story from the International Bar Association, "Debt concerns prompt greater scrutiny of China’s entrepreneurs," on China’s regulatory attitude towards outbound M&A. Wong said that China becoming more cautious is positive from a buyer’s perspective as it should create greater market certainty. You can read the full article here.




Valerie Hoffman quoted in Bloomberg BNA

Wed, 06 Dec 2017 00:00:00 -0500

Valerie Hoffman was quoted in a December 6 story from Bloomberg BNA, "Lawmakers Want Harassment Cases Made Public," on how forced arbitration agreements would be a thing of the past under legislation from a bipartisan group of lawmakers. Hoffman said that the real issue here is that management, including boards of directors, needs to take action to eradicate harassment when they have good evidence that there is a problem.




Nothing to Sneeze At: Evaluating Employee Safety Protections in the Healthcare Industry

Tue, 05 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.

Read the full blog post.




No Winter Blues Here: GC Memorandum 18-02 Brings Handbook Cheer to Employers

Tue, 05 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.

Read the full blog post.




Nothing to Sneeze At: Evaluating Employee Safety Protections in the Healthcare Industry

Tue, 05 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: NIOSH reiterated last week that healthcare workers are exposed to a wide range of hazards on the job and healthcare employers may not be following best practices to protect against these hazards.

Read the full blog post.




Happy New Year? 2018 Brings New Minimum Wage & Exempt Thresholds for New York Employers

Tue, 05 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: New York employers are facing a host of changes in 2018, including an increase to the minimum salary amounts for exempt status and increases in the minimum wage. If employers in New York did not have enough on their minds this holiday season – with the rollout of Paid Family Leave across the state, the New York City Fair Workweek Law, changes to the New York City Earned Sick Time Act and proposed rules requiring pay for on-call scheduling practices – both the minimum wage and salary threshold for exempt employees are scheduled to increase on December 31, 2017. Minimum Wage The minimum wage increase is part of the “tiered” minimum wage structure that was signed into law last year and aimed at bringing the minimum wage across the state to $15 per hour.  The increase is dependent on where employees work and on the size of the employer, as follows: Size/Location of Employer Minimum Wage as of December 31, 2017 New York City, 11 or more employees $13.00 New York City, 10 or fewer employees $12.00 Nassau, Suffolk, and Westchester counties, regardless of size of employer $11.00 Remainder of state, regardless of size of employer $10.40   Along with the increase to the minimum wage, the amounts employers can deduct from employees’ wages for items such as tip credits, uniform allowances and meals is also set to change on December 31.  The Department of Labor has summarized the revisions applicable to hospitality employers, employers in “miscellaneous industries,” and employers in the “building service industry”.  Employers should consult these summaries to determine how much they can deduct for a uniform allowance and claim as a meal, lodging and tip credits.  Salary Threshold for Exempt Employees In keeping with the gradual increase in the State’s minimum wage levels, the new tiered salary thresholds across the state, effective December 31, 2017, are now: Size/Location of Employer Salary Threshold as of December 31, 2017 New York City, 11 or more employees $975.00 per week New York City, 10 or fewer employees $900.00 per week Nassau, Suffolk, and Westchester counties, regardless of size of employer $825.00 per week Remainder of state, regardless of size of employer $780.00 per week   Conclusio[...]



Department of Labor’s Wage and Hour Division Proposes to Nix Unpopular Tip Pooling Rule

Tue, 05 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: On Monday, the DOL issued a Notice of Proposed Rulemaking announcing rescission of a rule that regulates tip pooling by employers who do not take the tip credit.

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Extra Credit: Franchise Restaurant Workers Clear Path to Massive Payout on Technicality Under New York Law

Mon, 04 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: Tipped workers who didn’t receive notice of the tip credit get a win under New York state minimum wage law in a case that echoes technical traps we have seen in FLSA decisions.

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SCOTUS Declines To Address Texas Supreme Court Ruling Limiting Reach of Obergefell

Mon, 04 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The Supreme Court announced that it would not hear an appeal from the City of Houston in a case challenging the city’s ability to offer spousal benefits to same-sex spouses of municipal employees. By leaving in place the Texas Supreme Court’s ruling that the Obergefell decision does not, in fact, require such benefits to be extended, the decision to deny cert will return the case to the trial court, where plaintiffs will argue that the benefits violate Texas state law and seek an order forcing the city to rescind them.

Read the full blog post.




The 2018 Annual Workplace Class Action Litigation Report Is Coming Soon!

Mon, 04 Dec 2017 00:00:00 -0500

Happy Holiday season to our loyal readers of the Workplace Class Action Blog!

Read the full blog post.




9th Circuit’s Xerox Decision Copies Sister Circuits in Affirming Workweek Standard for FLSA Compliance

Mon, 04 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The Ninth Circuit recently joined the Second, Fourth, Eighth, and D.C. Circuits in holding that the relevant unit for determining minimum-wage compliance under the FLSA is the workweek as a whole, rather than each individual hour within the workweek.

Read the full blog post.




FDA Releases Draft Guidance on Determining Whether to Submit an ANDA or a 505(b)(2) Application

Mon, 04 Dec 2017 00:00:00 -0500

This article provides a summary of the draft guidance[1] released by the FDA to assist applicants in determining which one of the abbreviated approval pathways under the Federal Food, Drug and Cosmetic Act (FD&C Act) is appropriate for the submission of a marketing application to the FDA. The draft guidance was released on October 13, 2017, for which comments are due by December 12, 2017.

Read the full blog post.




New York Court of Appeals Establishes Standard for Punitive Damages Under NYCHRL

Mon, 04 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The New York Court of Appeals, on a question certified by the Second Circuit, announced the standard for punitive damages in claims under the New York City Human Rights Law. Punitive damages are appropriate under the New York City Human Rights Law where the defendant’s actions amount to recklessness or willful or wanton negligence, or where there is “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.”  So held the state’s Court of Appeals in Chauca v. Abraham, resolving a long-undecided issue at the request of the Second Circuit. Background In November 2010, Veronika Chauca (“Chauca”) sued her former employer, Park Management Systems, LLC., and two supervisory employees, in the Eastern District of New York for pregnancy discrimination under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law (“NYCHRL”).  At trial, over Chauca’s objection, the District Court declined to provide a punitive damages instruction, finding that Chauca had failed to introduce any evidence that the employer had intentionally discriminated with “malice” or with “reckless indifference” to her protected rights–the standard under Title VII.  After receiving a jury award of $60,500 in compensatory damages, Chauca appealed, arguing that, with respect to her NYCHRL claim, the District Court erred in using the Title VII standard for punitive damages.  She argued that the City law, which mandates that its provisions be “liberally” construed and analyzed “separately and independently” of federal law, calls for a more lenient, pro-plaintiff approach – specifically, that a punitive damages jury instruction is appropriate and necessary upon any finding of liability, regardless of whether the employer discriminated with malice or reckless indifference. The defendants argued, on the other hand, that the District Court was correct all along, and that  the NYCHRL standard is the same as Title VII. The Second Circuit, after concluding that neither the statute nor case law provided sufficient guidance as to the appropriate standard, certified the following question to the New York Court of Appeals: “What is the standard for finding a defendant liable for punitive damages under the [NYCHRL]?” New York Court of Appeals Analysis On certification, the New York Court of Appeals, in a 6-1 decision, took a middle ground. Regarding Chauca’s argument, it noted that punitive damages[...]



Year-End News From The NLRB’s General Counsel

Mon, 04 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration, which our blog will be exploring over the next three weeks.

Read the full blog post.




What Employers Should Know About This Week’s “Drama” At The CFPB

Mon, 04 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: A somewhat bizarre event – even by this year’s standard of unusual current events – hit the news stream earlier this week, as two “Acting Directors” showed up to work on Monday morning at the U.S. Government’s Consumer Financial Protection Bureau, also known as the CFPB. In today’s vlog, Partner Jerry Maatman of Seyfarth Shaw, LLP gives our readers an explanation of the situation at the CFPB, discusses the agency’s significance for employers, and forecasts potential class action implications based on these developments.

Read the full blog post.




Gerald Maatman quoted in Business Insurance

Mon, 04 Dec 2017 00:00:00 -0500

Gerald Maatman was quoted in a December 4 story from Business Insurance, "Sexual harassment cases to remain a priority," on how the U.S. Equal Employment Opportunity Commission may change focus on other areas, but it is still expected to pursue sexual harassment. Maatman said that sexual harassment issues have always been very important to the EEOC and he doesn't see that changing. You can read the full article here.




Gerald Maatman quoted in Business Insurance

Mon, 04 Dec 2017 00:00:00 -0500

Gerald Maatman was quoted in a December 4 story from Business Insurance, "EEOC likely to exercise restraint on litigation," on how the U.S. Equal Employment Opportunity Commission is expected to change its processes and policies to reflect a more pro-business stance under the Trump administration. Maatman said that his sense is less systemic cases will be brought with more cases filed on behalf of only one or two workers. You can read the full article here.




Adam Young quoted in Business Insurance

Mon, 04 Dec 2017 00:00:00 -0500

Adam Young was quoted in a December 4 story from Business Insurance, "Recovery workers face toxic water risks," on how employers should conduct a job hazard assessment before sending workers to work in areas with waste water from natural disasters. Young said that you are going to have a lot of different factors to the work environment that were not there before, and you may be using employees who aren’t used to working in this environment. You can read the full article here.




Brett Bartlett quoted in Bloomberg BNA

Mon, 04 Dec 2017 00:00:00 -0500

Brett Bartlett was quoted in a December 4 story from Bloomberg BNA, "PUNCHING IN: Labor Nominees, SCOTUS Cases, and a Question for the NLRB," on whether employer trade groups might step in and request opinion letters from the Wage and Hour Division (WHD) on behalf of members, who could then wave the WHD opinion in front of the judge. Bartlett said that it is clear from the past that the WHD would issue opinions in response to what could be viewed to be proxy requests made by associations or consortiums of employers even while the practices about which the requests were made were the subject of private litigation.




Andrew Boutros interviewed on CBC News Network

Sun, 03 Dec 2017 00:00:00 -0500

Andrew Boutros was interviewed December 3rd on the CBC News Network, "Trump's Twitter storm: what's the legal risk?" You can watch the full interview here.




Andrew Boutros interviewed on CBC News Network

Sat, 02 Dec 2017 00:00:00 -0500

Andrew Boutros was interviewed December 2nd on the CBC News Network, "Micheal Flynn's guilty plea: who's next?" You can watch the full interview here.




What Employers Should Know About This Week’s “Drama” At The CFPB

Sat, 02 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: A somewhat bizarre event – even by this year’s standard of unusual current events – hit the news stream earlier this week, as two “Acting Directors” showed up to work on Monday morning at the U.S. Government’s Consumer Financial Protection Bureau, also known as the CFPB. In today’s vlog, Partner Jerry Maatman of Seyfarth Shaw, LLP gives our readers an explanation of the situation at the CFPB, discusses the agency’s significance for employers, and forecasts potential class action implications based on these developments.

Read the full blog post.




California Passes Website Accessibility Requirements Applicable to State Agencies

Fri, 01 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: California will soon have a new law requiring WCAG 2.0 AA compliance for state agencies’ websites by 2019.

Read the full blog post.




Shifty Business IV: NYC Fair Workweek Law and Final Rules Are Now Effective

Fri, 01 Dec 2017 00:00:00 -0500

Seyfarth Synopsis: The New York City Department of Consumer Affairs has issued final rules to implement the Fair Workweek Law, which imposes significant constraints on shift scheduling in the retail and fast food industries and took effect on November 26. Two days after the Fair Workweek Law took effect, the Office of Labor Policy and Standards (OLPS), part of the New York City Department of Consumer Affairs (DCA), published final rules implementing the Law.  Those rules took effect immediately.  They do not significantly change or expand upon the obligations imposed by the statute, nor do they vary materially from the proposed rules issued a few weeks ago. Below is a summary of the final rules. For further details about the Law, see our prior alerts here and here. Definitions The final rules define several terms used without definition in the Law. The key definitions are detailed below. General Actual hours worked: As described below, all covered employers will need to keep records of employees’ “actual hours worked.” The rules define this term to mean the number, dates, times, and locations of hours worked by the employee, regardless of whether that reflects a departure from the advance work schedule provided. Fast Food Employers Additional shift: This means a shift not previously scheduled that would be offered to a new fast food employee in the absence of the Law’s access-to-hours requirement. Good faith estimate: Fast food employers are required to provide each employee with the number, days, times, and locations of hours the employee can expect to work each week. “Times” for this purpose means the start and end time of each shift. This information must be provided before the employee’s first day of work. Current fast food employee: Fast food employers must provide current employees the opportunity to work an available shift before hiring a new employee to fill the shift.  The final rules define “current employee” as one who has worked at least 8 hours in the past 30 days or is otherwise currently on the employer’s payroll. New fast food employee: The final rules revise the definition of “new employee” to one who has not worked at least 8 hours in the prior 30 days for the emplo[...]



Andrew Boutros interviewed on CNBC

Fri, 01 Dec 2017 00:00:00 -0500

Andrew Boutros was interviewed December 1st on CNBC's "Power Lunch." Boutros provided his take on the legal implications following Michael Flynn pleading guilty to lying to the FBI. You can watch the interview here.




Jon Meer quoted in SHRM

Fri, 01 Dec 2017 00:00:00 -0500

Jon Meer was quoted in a December 1 story from SHRM, "Stores Lawfully Checked Bags of Exiting Employees Off the Clock," on his successful representation of Nike and Converse in class-action cases challenging uncompensated exit inspections. Meer said that employees tend to overestimate the time they spend waiting, like people tend to overestimate time spent awaiting an elevator or a green light. You can read the full article here.




Robert Milligan quoted in Law360

Fri, 01 Dec 2017 00:00:00 -0500

Robert Milligan was quoted in a December 1 story from Law360, "Noncompete Roundup: Developments You Might Have Missed," on the news that New Jersey and Pennsylvania lawmakers are proposing curbing noncompetes. Milligan said that the bills — especially the Pennsylvania proposal — are long shots to pass, though they could be models for other states to follow, or for defendants to argue against a particular noncompete.




Possible Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees

Thu, 30 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: If Congress cannot resolve FY2018 funding issues by December 8, 2017, resulting in a federal government shutdown, it will have a ripple effect on employers, both large and small, with an impact on several agencies involved in the processing of immigration petitions.

Read the full blog post.




Possible Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees

Thu, 30 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: If Congress cannot resolve FY2018 funding issues by December 8, 2017, resulting in a federal government shutdown, it will have a ripple effect on employers, both large and small, with an impact on several agencies involved in the processing of immigration petitions.  U.S. Citizenship and Immigration Services (USCIS) In the event of a shutdown, USCIS will be minimally impacted because it is largely a fee-funded service.  This means USCIS will continue to process applications and petitions for immigration benefits, with some processing delays possible.  However, petitions for which a Department of Labor (DOL) certification is required -- such as an H-1B or E-3 petition that requires a Labor Condition Application (LCA) -- may be adversely affected, as discussed.   E-Verify, USCIS’ free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be inaccessible during a shutdown.  Employers must continue to complete I-9 forms in compliance with the law and create cases in E-Verify if E-Verify becomes available. Other agencies of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) would likely retain most of their essential staff, so it is expected that TN and L-1 petitions for Canadian nationals would continue to be adjudicated at the border. Department of Labor (DOL) Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL,  are considered non-essential and would likely be placed in furlough status during a  government shutdown.  OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, applications for permanent employment certification (PERM applications), or PERM audit responses. Department of State (DOS) In the event of a shutdown, it is likely that visa issuance will continue, at least temporarily.  It is expected that domestic and overseas Consular operations will r[...]



Paul Galligan, Gena Usenheimer and Meredith-Anne Berger authored an article in Employee Benefit Adviser

Thu, 30 Nov 2017 00:00:00 -0500

Paul Galligan, Gena Usenheimer and Meredith-Anne Berger authored a November 30 article in Employee Benefit Adviser, "Proposed national paid leave could preempt state leave laws." The article discusses the the Workflex in the 21st Century Act which signals the increasing frustration with the complexities of multi-state compliance among business owners. You can read the full article here.




More Coffee Please: CBP Rules that Coffee’s Country of Origin is Determined by Where Beans are Roasted — Not Where Raw Beans Actually Originate

Thu, 30 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: U.S. Customs & Border Protection recently issued a Final Determination that the coffee roasting process “substantially transforms” raw coffee for purposes of country-of-origin determinations and U.S. Government “Buy American” regulations. This clear new guidance should help corporations and their executives avoid civil, administrative, and criminal legal exposure as President Trump fulfills a campaign promise to crack down on illegal trade.

Read the full blog post.




DC Proposed Regulations Modify Deed of Trust Recording Tax Exemptions

Wed, 29 Nov 2017 00:00:00 -0500

Overview   New regulations proposed by the District of Columbia affect the recordation tax exemptions for purchase money deeds of trust not recorded simultaneously with the deed, deeds of trust recorded to refinance construction loans and certain other deeds of trust.   Current Law For Delayed Recording of Purchase Money Deeds of Trust   Section 42-1102 of the D.C. Code provides for an exemption from recordation tax for “a purchase money mortgage or purchase money deed of trust that is recorded simultaneously with the deed conveying the real property.” Section 42-1103(b-1)(1)(B) provides, in part, that a purchase money deed of trust shall “be recorded within 30 days of the date that the deed conveying title to the real property to the purchaser is duly recorded.” [Emphasis added.] The District of Columbia Recorder of Deeds and the real estate community at large have interpreted these two provisions as allowing a thirty day grace period after a deed is recorded within which to record a purchase money deed of trust exempt from a second recordation tax.    Proposed Change   A proposed amendment to Section 501 of Title 9 of the District of Columbia Code of Municipal Regulations (DCMR) would limit the recordation tax exemption for purchase money deeds of trust to those instruments recorded simultaneously with the deed conveying the real property. A proposed change to Section 519.3a of the Regulations would make this change also applicable to purchase money deeds of trust securing indebtedness incurred to acquire an economic interest in real property. These proposed amendments as well as the other proposed amendments discussed in this One Minute Memo will be effective for instruments executed on or after December 15, 2017.   Other Proposed Changes   Another important change is the way the Recorder of Deeds will tax modifications to construction loan deeds of trust. Currently if a construction loan is increased and a modification to the deed of trust is recorded, the recordation tax will be imposed on the e[...]



The Second Circuit Weighs In On Tidal Wave Of Class Actions Under The Illinois Biometric Privacy Act

Wed, 29 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: As biometric technology has become more advanced and affordable, more companies and employers have begun implementing procedures and systems that rely on biometric data. Given the serious repercussions of compromised biometric data, a number of states have proposed or passed laws regulating the collection and storage of biometric data, including Illinois through the passage of the Illinois Biometric Privacy Act (“BIPA”) – the only biometric statute which provides a private cause of action.

Read the full blog post.




Senate Hearing Scheduled on Trump Nomination for OSHA Administrator

Wed, 29 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: Senate hearing scheduled for the White House pick, Scott A. Mugno, as the new Administrator of OSHA.

Read the full blog post.




Unions Looking to Increase Diversity in Their Leadership Ranks

Wed, 29 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: Recognizing the rise of Millennials and the increasing diversity of the workforce, some labor unions appear to be taking a keen interest in increasing the diversity of those in their leadership ranks, which is at least in part a key organizing tactic.

Read the full blog post.




Alex Passantino quoted in Human Resource Executive

Wed, 29 Nov 2017 00:00:00 -0500

Alex Passantino was quoted in a November 29 story from Human Resource Executive, "An HR-Backed Workflex Act," on a newly proposed House bill that seeks to give employers latitude in crafting flexible work arrangements. Passantino said that while the proposal has overwhelming support of the HR community, there will undoubtedly be a number of HR challenges if it becomes law. You can read the full article here.




David Bizar quoted in Bloomberg BNA

Wed, 29 Nov 2017 00:00:00 -0500

David Bizar was quoted in a November 29 story from Bloomberg BNA, "CFPB Leadership Lawsuit May Be Headed to Appeals Court," on how Leandra English, deputy director under former CFPB Director Richard Cordray, might ask Judge Timothy J. Kelly for a preliminary injunction. Bizar said that's significant because if English asks for the preliminary injunction and Kelly says no, English likely would be positioned to take her case to the U.S. Court of Appeals for the District of Columbia Circuit.




Recent Ethics Opinion Provides Key Guidance for All Attorneys Crossing the Border with Client Information

Tue, 28 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: In a much-needed opinion, the New York City Bar recently issued a first-of-its-kind Ethics Opinion setting out the ethical obligations that all attorneys must adhere to when crossing the U.S. border with confidential client materials, whether print or electronic. The Opinion takes the groundbreaking step of setting out many of the best practices that attorneys can­—and should—strive to achieve in their passport travels. And, given many of the same considerations that govern U.S. border crossings apply equally—if not more—to international border crossings in countries such as Brazil, Russia, India, and China, among others, the Opinion provides the analytical ethical framework for all border crossings undertaken by all U.S.-licensed attorneys regardless of practice area. In this regard, not only is the New York Opinion important in its own right but it also provides guidance that other jurisdictions are expected to follow or otherwise expound upon.   With President Donald J. Trump’s increased focus on border security, the number of border searches of electronic devices by United States Customs & Border Protection (CBP) has risen exponentially, from an average of less than 2,000 per month in 2016, to more than 5,000 in February 2017. For attorneys, who are obligated to safeguard client confidences under ABA Model Rule of Professional Conduct 1.6, this presents special concerns. The New York City Bar recently underscored those concerns in a groundbreaking Formal Ethics Opinion, namely, 2017-5, finding that attorneys are ethically obligated to (1) take reasonable steps to avoid disclosing confidential information before even reaching the U.S. border; (2) disclose client information to CBP at the border only to the extent reasonably necessary to comply with a claim of lawful authority; and (3) inform affected clients about any border disclosures.     Th[...]



EPA and the Corps Propose to Add Years to “Effective” Applicability Date of WOTUS Rule

Tue, 28 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) propsed a rule that would add an applicability date two years in the future to the Obama-era Waters of the United States (WOTUS) rule. 82 Fed. Reg. 55542 (Nov. 22, 2017).

Read the full blog post.




Proposed National Paid Leave and Flexible Work Options Law Will Preempt State Leave Laws

Tue, 28 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: Three Republicans from the House of Representatives hailing from states with paid family and sick leave laws have sponsored the Workflex in the 21st Century Act, signaling increasing frustration with the complexities of multi-state compliance. Representatives Mimi Walters of California, Elise Stefanik of New York, and Cathy McMorris Rodgers of Washington have pitched a bill that would exempt employers who offer certain amounts of paid time off from complying with state paid leave laws. In its current form, the bill would serve to drastically reduce employee access to paid leave, but would also grant employees alternative work arrangements, known as “workflex” options.

Read the full blog post.




The Supreme Court To Clarify Who Is a Whistleblower Under the Dodd-Frank Act; Employers Have a Reason to be Hopeful

Tue, 28 Nov 2017 00:00:00 -0500

Seyfarth Synopsis:  Following oral argument, employers can be cautiously optimistic that the U.S. Supreme Court will hold that the Dodd-Frank Act’s anti-retaliation protections apply only to those employees who have made a report to the SEC, not to those who make reports internally or to other agencies. On Tuesday, the U.S. Supreme Court heard argument in Digital Realty Trust, Inc. v. Somers, a closely-watched case that will clarify the scope of whistleblower protection under the Dodd-Frank Act.  The issue, in simple terms, is whether an employee who only reports alleged wrongdoing to his or her employer may sue for whistleblower retaliation under the Act, even though the statute expressly defines a “whistleblower” as one who reports a securities law violation “to the [Securities and Exchange] Commission.”   This seemingly straightforward question has divided the Second, Fifth, and Ninth Circuit Courts of Appeal, prompting the high court’s review.  A significant source of the circuit conflict is that the SEC, through administrative rule-making, has taken the position that, despite the statutory “whistleblower” definition, a report to the agency is not required in order to trigger whistleblower protection; an internal report to the employer suffices.  The SEC’s expansive definition of “whistleblower,” if endorsed by the Supreme Court, could open the floodgates for Dodd-Frank whistleblower suits based solely on internal reports (or reports to other agencies or law enforcement), and those suits bring with them the risk of double back-pay awards. Making predictions from oral argument is difficult, and the authors of this post, who attended the argument, offer these insights with all of the usual caveats.[1]  Based on the tone and substance of the [...]



Amicus Briefs at the PTAB Permitted For Question on Termination of Allergan IPR Case Based on Tribal Sovereign

Mon, 27 Nov 2017 00:00:00 -0500

In an unprecedented move by the U.S. Patent and Trademark Office (USPTO), the Patent Trials and Appeals Board (PTAB) has permitted the filing of amicus briefs on whether the Saint Regis Mohawk Tribe (“Tribe”) should be permitted to terminate the inter partes review of Allergan’s patents contested in IPR2016-00127, IPR2016-01128, IPR2016-01129, IPR2016-01130, IPR2016-01131, and IPR2016-01132. Allergan assigned the patents challenged in these IPRs to the Tribe, while retaining an exclusive license in exchange for ongoing payments. As a sovereign entity, the Tribe seeks to terminate the IPR challenges of these patents, a move which the PTAB had ruled in 2016 shielded the University of Florida Research Foundation as a sovereign entity from IPRs. See Covidien LP v University of Florida Research Foundation Inc., IPR2016-01274, Paper 21 (PTAB Jan. 25, 2016). Amicus briefs of no more than 15 pages are due to be filed by December 1, 2017, and the Petitioners and Tribe are each authorized to file a single response to any amicus brief by December 15, 2017.

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Laura Maechtlen quoted in HR Dive

Mon, 27 Nov 2017 00:00:00 -0500

Laura Maechtlen was quoted in a November 27 story from HR Dive, "Legal debate over LGBT discrimination 'a hot mess' — but finally at a crossroads," on the American Bar Association's Labor and Employment Law Conference panel "Marriage Equality & Religious Liberty: The Crossroads or Crosshairs of the First Amendment?" Maechtlen said that most employers want to do the right thing and want to take the practical approach. You can read the full article here.




Marshall Babson quoted in Bloomberg BNA

Mon, 27 Nov 2017 00:00:00 -0500

Marshall Babson was quoted in a November 27 story from Bloomberg BNA, "Union Membership Decline Doesn't Explain Drastic Drop in Strikes." Babson said that employers and unions have become smarter in reaching agreements.




Alison Ashford quoted in Forbes Insights

Mon, 27 Nov 2017 00:00:00 -0500

Alsion Ashford was quoted in a November 27 special report from Forbes Insights, "Filling the Gap: A Realistic Look at Today’s Challenges and Opportunities in U.S. Infrastructure." Ashford said that, overall, P3 is a proven model for sharing the risks and the opportunities and to get things done. You can download the full report here.




Andrew Boutros interviewed by CBC News Network

Sun, 26 Nov 2017 00:00:00 -0500

Andrew Boutros was interviewed November 26th by the CBC News Network, "Is Michael Flynn working with U.S. federal prosecutors?" Boutros discussed the news that Michael Flynn has stopped communicating with President Donald Trump's lawyers, indicating he might be working with special counsel Robert Mueller in the Russian elections meddling probe. You can watch the full interview here.




Dennis Greenstein quoted in the New York Times

Sat, 25 Nov 2017 00:00:00 -0500

Dennis Greenstein was quoted in a November 25 story from the New York Times, "Will the Loss of a View Lead to Lower Maintenance Costs?," on how maintenance fees are determined by how many shares of the corporation are allocated to an apartment. Greenstein said that shares are allocated to each apartment and they’re set. You can read the full article here.




Andrew Boutros, Leon Rodriguez and John Schleppenbach authored an article in Bloomberg White Collar Crime Report

Fri, 24 Nov 2017 00:00:00 -0500

Andrew Boutros, Leon Rodriguez and John Schleppenbach authored a November 24 article in Bloomberg White Collar Crime Report, "Don't Just Wing It: First-of-Its-Kind Ethics Opinion Gives Critical Guidance for All Attorneys Crossing Border with Client Information." The authors provide an in-depth analysis of a recent New York City Bar Ethics Opinion on the obligations of attorneys to protect client information from disclosure during border searches by U.S. Customs. You can read the full article here.




The Week in Weed: November 24, 2017

Thu, 23 Nov 2017 00:00:00 -0500

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.

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OSHA Extends E-Reporting Deadline to December 15, 2017

Wed, 22 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: As most employers probably know by now, OSHA’s revised recordkeeping rule requires certain employers to electronically file injury and illness data with OSHA. Originally the reporting deadline was July 1, 2017. OSHA has again extended the deadline, this time to December 15, 2017.

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Predictive Scheduling Laws: Guide to Avoid Becoming A Cotton-Headed Ninnymuggins

Wed, 22 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: Since the days of Buddy the Elf’s short stint as a retail employee, New York City and many other municipalities have adopted predictive scheduling laws. Though California does not yet have a such a law, San Francisco, Emeryville, and San Jose have adopted predictive scheduling ordinances. With the bustling holiday season upon us, covered employers should make sure that they are complying with these ordinances. We highlight here the requirements of these predictive scheduling ordinances while pointing out some of the best ways to ensure compliance with them.

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Scott Rabe quoted in Business Insurance

Wed, 22 Nov 2017 00:00:00 -0500

Scott Rabe was quoted in a November 22 story from Business Insurance, "Oklahoma jury awards fired transgender professor over $1 million," on the news that an Oklahoma City jury awarded $1,165,000 in damages to a transgender English professor who filed a discrimination lawsuit after she failed to achieve tenure and lost her job. Rabe said that the verdict by a jury in a conservative state such as Oklahoma should send a message to both employers and potential plaintiffs that there is a path to a discrimination claim on the basis of gender identity. You can read the full article here.




Brett Bartlett quoted in Bloomberg Law

Wed, 22 Nov 2017 00:00:00 -0500

Brett Bartlett was quoted in a November 22 story from Bloomberg Law, "U.S. Drivers Suing Uber Hope U.K. Ruling Ripples Across the Pond," on how a regulatory tribunal across the Atlantic may have given U.S. drivers suing Uber a slight boost in their claim that they aren’t independent contractors. Bartlett said that the U.K. tribunal isn’t binding on any court in the U.S. And the concepts it weighed don’t easily translate to the U.S. You can read the full article here.




Scott Rabe and Sam Schwartz-Fenwick quoted in the National Law Journal

Tue, 21 Nov 2017 00:00:00 -0500

Scott Rabe and Sam Schwartz-Fenwick's blog post, "TITLE VII: Court Breaks from Department of Justice on Transgender Rights,” was referenced in a November 21 story from the National Law Journal, "The US Justice Department Retreated From a Transgender Professor's Case. She Still Won." The nearly $1.2 million jury verdict Monday for a transgender professor in Oklahoma followed a years-long battle in which the U.S. Justice Department—once a plaintiff in the case—retreated from the dispute in the Trump administration, highlighting the increasingly complex landscape for gender identity discrimination complaints. The Seyfarth team wrote that employers should be vigilant in establishing and maintaining nondiscrimination and anti-harassment policies that extend protections to individuals on the basis of gender identity.




District Court Awards Punitive Damages In Sex-Based Harassment EEOC Suit

Tue, 21 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: In E.E.O.C. v. Scott Medical Health Center, P.C. No. CV 16-225, 2017 WL 5493975, at *2 (W.D. Pa. Nov. 16, 2017), a default judgement of liability was entered against the defendant company for sex-based harassment, and the Court awarded the EEOC back pay, prejudgment interest, and compensatory and punitive damages. Although the Court found that an award of compensatory damages above $50,000 would be consistent with cases with comparable emotional distress, the Court determined that it was not authorized by statute to award more than this statutory cap.

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Tax Reform: Employee Benefits

Tue, 21 Nov 2017 00:00:00 -0500

This is the first issue in a planned series of alerts for employers on selected topics on tax reform. The series of Tax Reform Management Alerts is designed to provide an in-depth analysis of executive compensation and employee benefits aspects of the tax reform proposals and how they will impact your business.    On November 2, 2017, Republicans revealed their tax plan in the Tax Cuts and Jobs Act (the “House Bill”). While most of the media attention has been focused narrowly on the cut to corporate tax rates and the changes in the individual tax brackets and deductions, the House Bill, and the soon-to-come companion Senate version, have several significant provisions that make important changes affecting executive compensation and employee benefits generally.    On November 16, 2017, the House Bill, as modified by the House Ways & Means Committee, passed with a vote of 227–205. The House initially took a heavy hand to many favorable executive compensation provisions and made some important changes in the retirement and welfare areas, but the House Ways and Means Committee relented a bit. The Senate Finance Committee proposal, as modified (the “Senate proposal”), released late Thursday followed suit in its approach to executive compensation. Thus, employers seem to have avoided sweeping changes that would have effectively ended nonqualified deferred compensation plans.    [...]



Thankful (and Bonus Social Media Privacy Legislation Desktop Reference)

Tue, 21 Nov 2017 00:00:00 -0500

Seyfarth Synopsis: Wishing you a wonderful holiday season.

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Now Available! Seyfarth Shaw’s 2017-2018 Edition of the Social Media Privacy Legislation Desktop Reference

Mon, 20 Nov 2017 00:00:00 -0500

There is no denying that social media continues to transform the way companies conduct business. In light of the rapid evolution of social media, companies today face significant legal challenges on a variety of issues ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property.

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“Tax Cut and Jobs Act” H.R. 1 Passes House Of Representatives: Provisions To Watch

Mon, 20 Nov 2017 00:00:00 -0500

BioLoquitur has reported on legislative developments in the past, but never did we expect to discuss a tax bill. Last week, however, the U.S. House of Representatives passed the “Tax Cut and Jobs Act” Bill (H.R. 1) and H.R. 1 deserves a spotlight. After all, one of our goals is to provide the life science industry with the latest news that could affect the industry.

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