Legal Alerts

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  • White House Proposal Returns to 1978 NEPA Review Procedures

    October 15, 2021

    The Council on Environmental Quality (CEQ) has requested comments, by November 22, 2021, on proposed revisions to the National Environmental Policy Act (NEPA) regulations. The proposal is Phase I in a two-phased approach that will eventually undo a final rule, effective September 2020, that updated NEPA regulations to reflect decades of agency experience and caselaw interpreting the 1969 Act.

  • SEC Climate Change Disclosure Letter Foreshadows Anticipated Regulatory Changes

    October 13, 2021

    In late September 2021, the Division of Corporation Finance of the Securities and Exchange Commission (SEC) issued a Sample Letter providing guidance to companies on how their climate disclosures will be analyzed for compliance with material risk reporting obligations. The Sample Letter precedes the SEC’s issuance of mandatory climate-related disclosure rules anticipated by year-end and signals a greater focus on specific information used to support securities filings, a development that businesses should take seriously.

  • All Florida Employers Must Now Report New Hires and Independent Contractors to State Directory

    October 08, 2021

    Previously, all large employers (those with 250 employees or more) were required to report new hires to a state registry. Florida has now expanded that reporting obligation to all employers regardless of size AND added a reporting requirement for independent contractors. Effective October 1, 2021, all Florida companies must report to the State Directory of New Hires all newly hired or rehired employees, as well as independent contractors, who are paid $600 or more per calendar year for services.

  • New PFAS Reporting Requirements Will Ensnarl Many Companies

    October 05, 2021

    Businesses across the country will soon face challenging new requirements to disclose the presence in their products of, and worker and environmental exposure from, an enormous set of chemicals that have been used for years in products, including cooking pans, furniture and carpets, food wrappers, apparel, paint, automobiles, machinery, and a vast array of other products. The U.S. Environmental Protection Agency (EPA) is set to finalize these new regulations soon.

  • What Do They Mean, "Judgment Obtained"? Florida Supreme Court Addresses Key Question on State’s 'Proposal For Settlement' Provision

    October 04, 2021

    Florida's Proposal For Settlement (PFS) provision was created to encourage early settlement of litigation and is governed by Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442. In Florida, a PFS can be a strategic move that carries financial consequences if rejected.

  • Ninth Circuit Revives California Ban on Employer Use of Mandatory Arbitration Agreements

    September 23, 2021

    As previously reported, on October 10, 2019, California enacted AB 51, which prohibited employers from requiring employees to submit to binding agreements that waived “any right, forum or procedure” available under the California Fair Employment and Housing Act (FEHA) and Labor Code for resolving employment-based claims. Labor Code § 432.6 (a). Last week, in a divided 2-1 panel decision, the Ninth Circuit reversed in part the district court’s conclusion that AB 51 is preempted by the FAA and vacated the preliminary injunction, holding that the core of AB 51 – the prohibition of mandatory employment arbitration agreements – is not preempted.

  • California Court of Appeal Holds Trial Courts Can Strike Unmanageable PAGA Claims

    September 20, 2021

    On September 9, 2021, in a significant victory for California employers, the California Court of Appeal issued the first published appellate opinion in Wesson v. Staples the Office Superstore, LLC holding that trial courts have authority to ensure the manageability of PAGA claims, which includes the power to strike unmanageable PAGA claims as necessary.

  • Colorado Legislature Overturns Ferrer, Permits Direct Negligence Claims Alongside Respondeat Superior Claim

    September 20, 2021

    In May 2021, Colorado Governor Jared Polis signed HB21-1188, which explicitly overturned the Colorado Supreme Court’s ruling in Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017). This law went into effect on September 7, 2021.

  • Illinois Appellate Court Holds Different Statutes of Limitations Apply to Different BIPA Provisions

    September 17, 2021

    Today, in a highly-anticipated opinion, the Illinois First District Appellate Court ruled in Tims v. Black Horse Motor Carriers, Inc. that different statutes of limitations apply to different provisions of the Illinois Biometric Information Privacy Act (BIPA, or the Act). This ruling has far reaching implications for all pending BIPA litigation and is likely to be appealed.

  • California Appellate Court Holds Unpaid Medical Bills May Be Admitted Into Evidence Under Very Limited Circumstances

    September 16, 2021

    In Qaadir v. Figueroa (2021) 67 Cal.App.5th 790, the plaintiff sued the defendants for negligence arising from a car accident defendants caused. During trial, both parties had billing experts testify about the reasonableness of the medical bills. Neither of the billing experts relied upon plaintiff’s unpaid medical bills to determine the reasonableness of the plaintiff’s medical expenses. On appeal, the defendants argued that the trial court erred by admitting the plaintiff’s unpaid medical bills.

  • FTC Publishes Report on Non-HSR Acquisitions by Tech Giants

    September 16, 2021

    On September 15, 2021, the Federal Trade Commission (FTC) published a report summarizing its findings from a study it performed regarding acquisitions made by five large technology firms over a 10-year period that were not reported to the federal U.S. antitrust agencies under the Hart-Scott-Rodino (HSR) Act.

  • House Democrats Propose Detailed Federal Tax Changes, Mostly Increases

    September 15, 2021

    Late in the night on Sunday, September 12, 2021, Democrats on the House Ways & Means Committee leaked changes spanning much of federal tax law. On September 13, Ways & Means officially released a summary of the proposed changes and 645 pages of draft legislative text.

  • Large Employer Vaccine Mandate and COVID-19 Action Plan

    September 10, 2021

    On September 9, 2021, in response to growing case counts and lagging vaccination rates, the Biden administration announced its COVID-19 Action Plan, laying out a “path out of the pandemic.” The centerpiece of the president’s announcement is a new employee vaccination mandate for all private sector employers with at least 100 employees.

  • Florida Supreme Court Adopts Apex Doctrine, Provides Protections for High-Level Corporate Officials

    September 09, 2021

    Historically, Florida state courts have allowed plaintiffs to depose a defendant’s senior executives regardless of whether they have personal knowledge of the underlying claim, a tactic that has been used by some plaintiffs' counsel to exert pressure on the defendant. In federal court, however, this practice is prohibited by the “Apex Doctrine.” On August 26, 2021, the court amended the Florida Rules of Civil Procedure following a certified question of the First District Court of Appeal.

  • Texas Legislature Passes Overtly Employee-Friendly Reforms to Sexual Harassment Laws

    September 09, 2021

    Perhaps surprising for Texas employers, the Texas legislature has significantly expanded sexual harassment protections for employees, rendering Texas’ state law protections more expansive than those provided by similar federal statutes. These changes, which took effect on September 1, 2021, have significant practical implications.

  • Two Steps Backward for Gig Economy Businesses After California Superior Court Judge Finds Proposition 22 Exemption to AB 5 Unconstitutional

    September 08, 2021

    In November 2020, California voters passed Proposition 22, which exempted gig economy businesses (such as Uber Technologies Inc., Lyft Inc., DoorDash Inc. and Instacart Inc.) from California Assembly Bill 5 (AB 5). Previously, AB 5 had required these “app-based drivers” to be classified as employees instead of independent contractors. In what is unlikely to be the only judicial attack on Prop. 22, an Alameda County Superior Court Judge recently deemed Prop. 22 unconstitutional and unenforceable.

  • Compliance Update for NYC Employers: City Council Amends Fair Chance Act

    August 31, 2021

    Although the New York City Fair Chance Act (FCA) has been in effect since October 27, 2015, it has now been amended and employers need to be aware of the changes in order to achieve compliance. The FCA is one of the “ban the box” laws passed in many jurisdictions in recent years. Unless an exemption applies, it generally prohibits employers from inquiring about an applicant’s criminal history prior to making a conditional offer of employment.

  • Florida Jury Finds Damages in Excess of $1 Billion in Wrongful Death Trucking Accident

    August 26, 2021

    There are more than a billion reasons to take a very close look at what is happening in courtrooms across America right now. Nuclear verdicts are occurring with increased frequency and can no longer be ignored. On August 20, 2021, a Nassau County, Florida jury awarded damages in a wrongful death matter in excess of $1 billion, after just five days of testimony and four hours of deliberation. This award included a punitive damages award of $900 million.

  • New York Federal Judge Issues Landmark Ruling Signaling Potential Change in Tide of ADA Website Litigation

    August 24, 2021

    New York federal courts have been hospitable to claims by disabled plaintiffs that websites do not comply with the Americans with Disabilities Act (ADA) due to lack of accessibility based on, among other things, incompatibility with software used by visually impaired individuals and lack of closed captioning on videos that contain audio content as is needed by deaf or hard-of-hearing individuals. A notable new decision took a much different tack, and if it is affirmed on appeal or followed by other jurists, New York federal courts will no longer be a hotbed of these cases.

  • California Supreme Court Declines to Create Exception to Privette Doctrine for “Known Hazards”

    August 19, 2021

    In Gonzalez v. Mathis (Aug. 19, 2021, S247677) __ Cal.5th___, the California Supreme Court reversed an appellate decision holding that a landowner may be liable to an independent contractor, or the contractor’s workers, for injuries resulting from “known hazards,” as running contrary to the Privette doctrine.

  • The Reptile Theory in Practice

    August 19, 2021

    The “Reptile Theory” is a trial strategy that attempts to use fear and anger to make the jury dislike the defendant so strongly they will award a plaintiff a grossly excessive amount of damages. The plaintiff’s attorney will seek to activate the jurors’ “survival mode” instincts by presenting the defendant’s conduct as highly dangerous and worthy of punishment. The defendant’s conduct will be portrayed as a threat to the safety of the general public, and the award as a deterrent needed to protect the community at large. The Reptile Theory appeals to the jurors’ emotions in place of any rational, impartial evaluation of the evidence.

  • State Biometric Legislation Developments

    August 18, 2021

    In 2008, Illinois became the first state to regulate the collection and storage of biometric information amidst the advent of pay-by-touch technologies. Nearly 13 years later, as workers across the country return to their workplaces following a global pandemic and have their temperature and other vitals screened, many state legislatures are busy enacting or amending laws pertaining to biometric data. This alert provides a survey of the existing legal landscape as well as some noteworthy developments across different jurisdictions.

  • Oregon Businesses & Employers Take Note: New Indoor Spaces Mask Mandate Effective Today

    August 13, 2021

    Effective August 13, 2021, Oregon law requires masks, face coverings, or face shields in all indoor spaces (but not private residences) in Oregon regardless of vaccination status under Oregon Administrative Rule (OAR) 339-019-1025.

  • Delaware Courts Lift COVID-19 Restrictions

    August 10, 2021

    Delaware has two separate trial courts – the Superior Court, which is a trial court of general jurisdiction, and the Court of Chancery, which has limited equitable jurisdiction. This streamlined process was substantially slowed in March 2020, due to the pandemic and the series of orders implementing a judicial emergency during COVID-19. However, on June 29, 2021, Chief Justice Collins J. Seitz, Jr, of the Delaware Supreme Court signed what is hoped to be the final order extending the judicial emergency.

  • Mandatory Vaccination Policies – Don’t Miss Your Shot

    August 04, 2021

    Can a business mandate that its employees be fully vaccinated from COVID-19 as a term of condition to their employment? The short answer is, it depends. The long answer is that a business may mandate that its employees receive the COVID-19 vaccination as long as the policy does not violate any existing statutory or anti-discrimination laws. 

  • Delaware Court of Chancery Allows Claims for Breach of Both Fiduciary Duty and Contract Against LLC Manager

    August 03, 2021

    The Delaware Court of Chancery recently explained under what circumstances dual claims will be allowed to proceed for both breach of fiduciary duty and breach of contract in the context of the manager of an LLC allegedly using LLC assets for his personal benefit in a manner not shared by all the other LLC members. In Largo Legacy Group, LLC v. Charles, C.A. No. 2021-MTZ (Del. Ch., June 30, 2021), the court addressed many noteworthy bedrock principles of Delaware commercial litigation.

  • New Jersey Permits Recovery of Personal Injury Damages on Employee Claims for Failure to Accommodate Disabilities

    July 29, 2021

    The New Jersey Supreme Court’s recent decision in Mary Richter v. Oakland Board of Education will effectuate a sea change in the law governing disability discrimination and failure to accommodate claims under the New Jersey Law Against Discrimination (LAD).

  • Texas Supreme Court Clarifies Rule on Controverting Affidavits

    July 29, 2021

    The Texas Supreme Court recently clarified the rules related to medical billing counter affidavits, under Section 18.001 of the Texas Civil Practice and Remedies Code, and restored fair balance to the dispute of reasonable medical charges. 

  • Texas Supreme Court Allows Corporate Representative Depositions in UIM Cases

    July 27, 2021

    In a recent mandamus opinion, the Texas Supreme Court resolved a split in opinion among the Texas Courts of Appeals as to when a corporate representative deposition of an uninsured motorist (UIM) insurance carrier is appropriate. Previously, the Corpus Christi and San Antonio Courts of Appeals permitted such depositions, but both Houston Courts of Appeals held them impermissible.

  • In Groundbreaking Decision, California Supreme Court Mandates Use Of Regular Rate Of Pay In Calculating Meal And Rest Period Premiums

    July 21, 2021

    In an unfortunate and costly shift for employers, the California Supreme Court ruled last week that meal and rest period premiums must be paid at employees’ regular rate of pay, rather than employees’ straight hourly wage. The California Labor Code already made explicitly clear that calculation of employees’ overtime wages must be at employees’ regular rate of pay. Unlike a straight hourly wage, the regular rate of pay includes all remunerations employees received during the applicable pay period, including non-discretionary incentive compensation and bonuses, shift differentials, commissions, mandatory service charges, meals provided to employees, and the like.

  • EEOC Issues Guidance Regarding Discrimination Based On Sexual Orientation and Gender Identity

    July 21, 2021

    In reaction to the United States Supreme Court’s decision in Bostock v. Clayton County, which held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 extends to employment discrimination on the basis of sexual orientation or gender identity, the Equal Employment Opportunity Commission (EEOC) has provided its own informal guidelines outlining workplace protections for LGBTQ employees and job applicants.

  • New York Office Secures Three Significant Summary Judgment Victories on “Serious Injury” Threshold Grounds - Discectomy, Arthroscopic Knee Surgery, and Alleged Fractures Do Not Defeat Threshold Motions

    July 13, 2021

    Lewis Brisbois' New York office has been gaining significant traction in getting transportation cases dismissed on the basis that the plaintiff did not sustain a “serious injury” within the meaning of New York Insurance Law section 5102(d). This alert outlines three recent cases won by Lewis Brisbois attorneys on these grounds.

  • Texas Legislature Passes HB 19, Transportation Industry Breathes Sigh of Relief

    July 13, 2021

    Transportation industry insiders have known for quite some time that the industry has been in crisis and under immense pressure. The increased demands from commerce have butted up against burdensome regulations and oversight, a nationwide driver shortage, and rising operating costs. The industry has been desperate for help, and it finally came in the form of Texas House Bill 19 (HB 19).

  • Amendments to Recently Adopted NY HERO Act Now In Effect, Model Exposure Prevention Plans Issued

    July 13, 2021

    As noted in our May 13 Client Alert, New York recently enacted the Health and Essential Rights Act (HERO Act), which mandates extensive new workplace health and safety protections to prevent workplace exposure to airborne infectious diseases. Shortly thereafter, amendments were signed into law on June 11, 2021.

  • President Biden Signs Executive Order on Promoting Competition in the American Economy

    July 12, 2021

    On July 9, 2021, President Biden signed an “Executive Order on Promoting Competition in the American Economy.” According to a Fact Sheet released in advance of the signing, the Executive Order takes “decisive action to reduce the trend of corporate consolidation, increase competition, and deliver concrete benefits to America’s consumers, workers, farmers, and small businesses.” 

  • Fourth Circuit Questions EPA 2020 Clean Water Act 401 Certification Rule Tolling Prohibition

    July 12, 2021

    Last week, in North Carolina Department of Environmental Quality v. Federal Energy Regulatory Commission, the Fourth Circuit Court of Appeals suggested that Congress did not intend for the states, or tribes, to take final action on Clean Water Act (CWA) Section 401 applications within a year of filing.

  • California Contractors: Amended Section 7141.5 Provides Important License Renewal Safety Net

    July 07, 2021

    During the August 5-6, 2019 Executive, Licensing, and Legislative Committee Meetings, the Contractors State License Board discussed proposed amendments to Section 7141.5 to reduce both the burden on it to review applications for retroactive renewal of a license that had not been timely submitted and to provide contractors with some relief from the high burden to establish “the failure to renew was due to circumstances beyond the control of the licensee.”

  • L.A. Employers Subject to New COVID-19 Vaccine Paid Sick Leave Order

    July 06, 2021

    On June 24, 2021, City of Los Angeles Mayor Eric Garcetti issued a new order titled Vaccine Paid Sick Leave Due to COVID-19 (the Order). The Order is intended to reduce barriers workers face when seeking the COVID-19 vaccine. 

  • Florida Court Addresses Rear-End Presumption and Loss of Consciousness Defense

    June 30, 2021

    Florida’s rear-end presumption rule and the loss of consciousness defense, in car accident cases, was recently the focus of a Third District Court of Appeals decision in Hernandez v. Mishali, 46 Fla. L. Weekly D1016 (Fla. 3d DCA May 5, 2021).

  • EPA Seeks Comment on Clean Water Act Section 401 Certification Rule

    June 29, 2021

    The Environmental Protection Agency (EPA) announced that it will revise a 2020 final rule clarifying requirements for water quality certification under the Clean Water Act (CWA). 85 Fed. Reg. 42210 (June 2, 2021). CWA Section 401 requires states and tribes to certify that any discharges associated with a federal permit will comply with applicable state or tribal water quality requirements.

  • NYC’s New Biometric Privacy Law, Soon to be Effective, Imposes New Obligations on Businesses That Collect Biometric Data

    June 29, 2021

    Right on cue with mask mandates being lifted, a new NYC law aimed at the ever-popular facial recognition software takes effect on July 9, 2021. New York City’s Biometric Identifier Information Law applies to a broad array of biometric data and will have important implications for businesses going forward.

  • Six Flags Agrees to $36 Million BIPA Class Action Settlement

    June 22, 2021

    The parties to the seminal litigation on the application of the Illinois Biometric Information Privacy Act (BIPA), Rosenbach v. Six Flags Entertainment Corp., have received preliminary approval for a proposed class action settlement with an anticipated value of $36 million. If final approval is granted, the settlement would be the second-largest BIPA class action to resolve, trailing only Facebook’s record $650 million settlement for 1.6 million members. 

  • California Court of Appeal Affirms Summary Judgment in Favor of Individual Defendant on Claim of Individual Liability for Wage & Hour Violations

    June 22, 2021

    In an opinion issued on May 28, 2021, the California Court of Appeal for the Fourth Appellate District affirmed summary judgment in favor of an individual owner of a company who was personally sued for alleged wage and hour violations under Labor Code section 558.1.

  • Illinois Enacts Prejudgment Interest For Personal Injury, Wrongful Death Lawsuits

    June 21, 2021

    On May 28, 2021, Illinois Governor JB Pritzker signed Illinois Senate Bill 72 (the Prejudgment Interest Act) into law, which allows 6% prejudgment interest in personal injury or wrongful death lawsuits. The new legislation takes effect on July 1, 2021 and will have an immediate impact on personal injury cases in Illinois.

  • Analyzing Issue of First Impression, Penn. Supreme Court Invalidates No-Poach Provision Between Two Businesses in Service Contract

    June 09, 2021

    On April 29, 2021, the Pennsylvania Supreme Court delivered its long-anticipated decision in Pittsburgh Logistics Systems, Inc. v. Beemac Trucking LLC, et al., unanimously affirming that a no-hire agreement between a business entity and its service vendor was unenforceable because it constituted an unreasonable restraint on trade. The court’s ruling is illustrative of widespread resistance to enforce non-poaching agreements and highlights that Pennsylvania strongly disfavors such restrictions unless they are narrowly tailored.

  • How New York and Illinois Are Addressing Changes in CDC Guidance

    June 07, 2021

    As the COVID-19 vaccine rollout continues into summer, states are beginning to ease their coronavirus-related restrictions in favor of new, more flexible guidelines for vaccinated individuals. In a sampling of the similarities and differences in guidance, this alert covers recent changes in New York and Illinois.

  • New York's Appellate Division Rules Governor Cuomo’s COVID-19 Orders “Toll” Statutes of Limitations

    June 04, 2021

    Since the COVID-19 crisis began, New York’s legal community has been closely following developments regarding a series of Executive Orders issued by Governor Cuomo involving the suspension and/or tolling of legal deadlines during the 228-day period from March 20 to November 3, 2020. In particular, uncertainty had lingered as to whether these orders would effectively “toll” statutes of limitations and other legal deadlines, or alternatively, merely “suspend” them.

  • New York Appellate Division Dismisses Labor Law Action Based on “One Family Exemption” Despite Commercial Project Next Door

    May 26, 2021

    By statute, owners of “one- or two-family dwellings” are exempt from liability under the express language of Labor Law §§ 240(1) and 241(6), unless they directed or controlled the work being performed. The exemption does not apply to general contractors or subcontractors, even if they worked on single-family homes. 

  • Proper Method for Calculating Meal & Rest Period Premiums in California Hangs in the Balance as California Supreme Court Deliberates

    May 26, 2021

    Currently, California law requires the employer to pay the employee a meal period premium of one hour’s wages at the employee’s “regular rate of compensation”. (Cal. Lab. Code § 226.7) Last week, the California Supreme Court heard oral argument centering on the meaning of “the regular rate of compensation” with respect to meal and rest period premiums.

  • Conn. Appellate Court Overturns Jury Verdict, Holding Plaintiff’s Sole Remedy for Injuries Arising From Open Manhole Was State’s Highway Defect Statute

    May 26, 2021

    Recently, in Dobie v. City of New Haven, 2021 Conn. App. LEXIS 162 (App. Ct. May 1, 2021), the Connecticut Appellate Court overturned the trial court’s denial of a municipal defendant’s post-trial motion to dismiss. The court held that even though the plaintiff attempted to assert allegations of negligence against the defendant municipality, Connecticut’s highway defect statute was the plaintiff’s exclusive remedy.

  • CFPB Targets Payment Processors

    May 25, 2021

    On March 3, 2021, the Consumer Financial Protection Bureau filed a lawsuit that has significant implications for the payment processing industry. The complaint alleges that BrightSpeed Solutions, Inc. and its founder and former chief executive officer, Kevin Howard, knowingly processed payments for companies that purported to offer technical-support services and products over the internet, but actually tricked consumers into purchasing expensive and unnecessary software or services.

  • Biden Administration Solicits Comments on Reinvigorating Social Cost of Greenhouse Gases Metrics

    May 13, 2021

    The Office of Management and Budget (OMB), acting on behalf of other White House offices and the Interagency Working Group (IWG) on the Social Cost of Greenhouse Gases (GHG), is requesting comments on a new Technical Support Document that would substantially increase the numerical values used to calculate estimates for the Social Cost of GHG.

  • New York State Enacts Groundbreaking HERO Act

    May 13, 2021

    After a year’s worth of various executive orders addressing worker safety issues arising from the COVID-19 pandemic, as of May 6, 2021, New York has adopted novel legislation designed to protect employees. The stated goal of the New York Health and Essential Rights Act, or NY HERO Act, is to provide support for workers and give them the tools to keep themselves and their families safe.

  • Businesses, Be Aware: Environmental Justice Enforcement is Serious

    May 12, 2021

    In late April 2021, the Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) issued two memoranda that shed light on how the agency will implement President Biden’s directives on environmental justice in environmental enforcement actions. The memoranda describe a significant shift in EPA’s enforcement focus, moving beyond traditional actions against noncompliance to a new emphasis on mitigating harm and delivering benefits to communities affected by environmental non-compliance, including reparation for past harm.

  • California Adds New Residential Remodeling Contractor License Classification, Effective June 1, 2021

    May 10, 2021

    On June 1, 2021, the California Contractors State License Board (CSLB) will start accepting applications for a new classification of licensees – Class B-2 Residential Remodeling. The CSLB will continue to offer the Class B General Building license classification.

  • Biden Administration Repeals Trump-Era Independent Contractor Rule, Signals Change to Joint Employer Rule

    May 06, 2021

    This week, the Department of Labor (DOL) repealed the Trump Administration’s independent contractor rule under the Fair Labor Standards Act (FLSA). The DOL has also proposed the rescission of the Trump Administration’s joint employer rule and sent a new proposed regulation to the White House Office of Information and Regulatory Affairs (OIRA) for review. Both moves signal a return to standards more likely to find an employment relationship.

  • In a Controversial Decision Certain to be Contested, Ninth Circuit Says FAAAA Does Not Preempt Enforcing A.B. 5 Against California Trucking Industry

    April 30, 2021

    In a decision with wide-ranging implications for the California trucking industry, the Ninth Circuit Court of Appeals ruled this week that the Federal Aviation Administration Authorization Act of 1994 (the FAAAA) does not preempt the ABC employment test adopted under A.B. 5.

  • Florida Supreme Court Adopts Federal Summary Judgment Standard, Substantially Conforming Florida’s Rule 1.510 to Federal Rule 56

    April 29, 2021

    Effective May 1, 2021, the Florida courts will transition to a new summary judgment standard meant to “align Florida’s summary judgment standard with that of the federal courts and of the supermajority of states that have already adopted the federal summary judgment standard.” Consistent with this amendment, Florida Rule of Civil Procedure 1.510 has been amended to adopt the federal summary judgment rule, with exceptions for timing-related issues.

  • Registration for Restaurant Revitalization Act Grants Begins April 30

    April 29, 2021

    The Small Business Administration (SBA) is moving forward to implement an application process for tax-free COVID-19 relief grants to restaurants, bars, and food-service establishments. In the latest developments, the SBA portal will open at 9:00 a.m. ET on April 30, 2021 for applicants to register, and applications will be accepted starting Monday, May 3, at noon.

  • Philadelphia City Council Passes Ordinance Banning Pre-Employment Testing for Marijuana

    April 27, 2021

    As a result of a new ordinance passed by Philadelphia City Council, employers, labor organizations, and employment agencies in Philadelphia may not require a prospective employee to submit to testing for the presence of marijuana in the person’s system as a condition of employment.

  • SEC to Regulated Companies: Be Prepared for ESG Scrutiny

    April 23, 2021

    In actions announced by the Securities and Exchange Commission (SEC) over the past two months, the SEC is sharpening its focus on climate-related disclosures in public company filings. The emphasis is on how public companies address disclosures of actual and material impacts that climate change has on a company’s business and whether they comply with obligations under the federal securities laws.

  • Chief Judge Janet DiFiore Announces Return to Full Staffing Levels in New York Courts

    April 20, 2021

    On April 19, Chief Judge of the Court of Appeals and of the State of New York Janet DiFiore released a message to the legal community announcing the New York State Unified Court System’s plans for returning to full staffing levels. In the announcement, Chief Judge DiFiore stated that, effective Monday, May 24, all judges and court staff will be required to return to work, noting, “It is time to return to our normal and full courthouse staffing levels in order to support the fuller resumption of in-person operations, including jury trials and other proceedings in our courts.”

  • One Step Closer: SBA Activates Website, Releases Sample Form for Restaurant Revitalization Act Grant Program

    April 19, 2021

    On Saturday, April 17, the Small Business Administration (SBA) activated a new website and released a sample application form for the Restaurant Revitalization Act grant program established under the American Rescue Plan Act of 2021. Although applications are not yet being accepted, the limited funding available for this tax-free grant program and its first-come-first-served approach mean that applicants should lose no time in completing the new form so they can submit it at the earliest possible opportunity.

  • Illinois Limits Employers’ Use of Criminal Conviction Records with Amendment to IHRA

    April 13, 2021

    On March 23, 2021, Governor J.B. Pritzker signed Senate Bill 1480 into law, amending the Illinois Human Rights Act (IHRA) by restricting the use of criminal conviction records. A covered employer is now required to follow certain procedures, including engaging in an interactive process with the applicant or employee, if it seeks to disqualify the individual based on a record of criminal conviction.

  • Coming Soon: New Tax-Free COVID-19 Relief Grant Program for Restaurants & Bars

    April 12, 2021

    Restaurants and bars, among the businesses hit hardest by the COVID-19 pandemic, will soon be able to apply for a new tax-free grant program enacted as part of the recently enacted American Rescue Plan Act of 2021, signed into law on March 11, 2021. The Restaurant Revitalization Fund (RRF) will provide $28.6 billion in grants for eligible restaurants and bars that can certify they need the funds to support ongoing operations of the business.

  • Millions of Dollars at Issue in BIPA Appeal to Seventh Circuit

    April 09, 2021

    The Illinois Biometric Information Privacy Act (BIPA or the Act) provides for statutory damages of $1,000 for each negligent violation and $5,000 for each reckless or intentional violation of the Act. An unsettled question is whether a plaintiff can “stack” alleged violations for a windfall recovery. The Seventh Circuit Court of Appeals is about to weigh in.

  • California Contractors: New CSLB Procedure Requires Non-California Corporations to Associate All Officers With Their Contractor’s License

    April 09, 2021

    As of July 1, 2020, “[e]very person who is an officer, member, responsible manager, or director of a corporation or limited liability company seeking licensure under this chapter shall be listed on the application as a member of the personnel of record,” and they must match those officers listed on California Secretary of State’s (SOS) records. This is a deviation from the Contractors State License Board’s (CSLB) past practice of requiring foreign corporations to associate as personnel of record only their president, in contrast to requiring domestic corporations to associate their president, secretary, and treasurer. 

  • The Illinois Equal Pay Act – New Requirements for Employers

    April 07, 2021

    The Illinois Equal Pay Act (IEPA) has been amended to create significant new requirements for Illinois employers. Governor J.B. Pritzker signed Senate Bill 1480 (SB 1480) into law on March 23, 2021, effective immediately.

  • New York City Expands Protections Under Its Ban the Box Law for Applicants and Employees

    April 05, 2021

    The New York City Human Rights Law (NYCHRL) is considered to be one of the most progressive discrimination laws in the nation. Earlier this year, the New York City Council passed a bill which expands the scope of the New York City Fair Chance Act (FCA), more commonly known as the “ban-the-box” law. The FCA prohibits most New York City employers from inquiring about an applicant’s criminal history until after the employer extends a conditional offer of employment. The amended FCA expands protections for both applicants and employees with criminal backgrounds, including convictions, charges and arrests. The amendments go into effect on July 28, 2021.

  • Plain Text: United States Supreme Court Narrowly Interprets Definition of Automatic Telephone Dialing System in Closely-Watched Facebook TCPA Decision

    April 02, 2021

    On April 1, 2021, the U.S. Supreme Court unanimously reversed the Ninth Circuit Court of Appeals' interpretation of the definition of “automatic telephone dialing system” (ATDS), or autodialer, under the Telephone Consumer Protection Act (TCPA). The Court held that a “necessary feature” of an ATDS “is the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” 

  • U.S. Supreme Court Rejects Manufacturer’s Arguments on Specific Jurisdiction

    March 30, 2021

    On March 25, 2021, the United States Supreme Court ruled in Ford Motor Co. v. Montana Eighth Judicial District Court that the connection between the Montana and Minnesota plaintiffs’ claims and Ford’s activities in those states is close enough to support specific jurisdiction. Thus, an auto manufacturer can be sued in a state over injuries from vehicle accidents occurring in the state despite the vehicles in question being manufactured and originally sold elsewhere.

  • Seventh Circuit Holds Employers May Be Required Under USERRA to Pay For Military Leave

    March 30, 2021

    The Seventh Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin) has held that an employer may be required to pay for all or part of a Uniformed Services Employee Reemployment Rights Act (USERRA) covered military leave. USERRA protects servicemembers by mandating that employers provide leave to accommodate military leaves of absence and re-employ servicemembers who timely return to work after their service.

  • Employee Retention Tax Credit Can Significantly Reduce Employer Payroll Taxes

    March 29, 2021

    Added to federal tax law by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and since expanded, the Employee Retention Tax Credit (ERTC) can significantly reduce an employer’s federal employment (payroll) taxes. Employers can use the ERTC to offset dollar-for-dollar employer payroll taxes they otherwise must deposit with the IRS.

  • Terminated Employees Now Eligible for Fully Subsidized COBRA Premium Payments Under American Rescue Plan Act of 2021

    March 29, 2021

    Under the American Rescue Plan Act of 2021 (ARPA), assistance eligible individuals (AEIs) are entitled to have their COBRA premium payments fully subsidized for the period between April 1, 2021 and September 30, 2021 (the “subsidy period”). The subsidy applies to group medical, dental, and vision benefit plans but not healthcare flexible spending arrangements (health FSAs). Employers will be fully reimbursed for all COBRA premiums they front under ARPA through a tax credit on their quarterly payroll tax filings.

  • States Allowing Borrowers to Deduct Business Expenses Paid with Forgiven PPP Loan Proceeds

    March 26, 2021

    In determining their taxable income for federal income tax purposes, borrowers of Payroll Protection Program (PPP) loans now can deduct qualifying business expenses they paid with forgiven PPP loan proceeds. The new law provides that no deduction is denied, no tax attribute is reduced, and no basis increase is denied because of the exclusion from income of the recipient’s forgiven PPP loan. The change is effective for tax years ending after March 27, 2020 (tax year 2020 for calendar year taxpayers).

  • EU Sustainable Finance Disclosure Regulation Goes Into Effect, with Wide Implications for Businesses

    March 26, 2021

    On March 10, 2021, a new set of sustainability disclosure requirements went into effect in the European Union, in the form of its Sustainable Finance Disclosure Regulation (SFDR or EU Regulation). While the measure is complicated, essentially it imposes new obligations on investment funds, requiring disclosures of environmental, social, and governance (ESG) risk factors in materials that are provided to investors and made available on asset companies’ websites and in their periodic reports.

  • Illinois Lawmakers Propose Amending State’s Biometric Information Privacy Act

    March 26, 2021

    Illinois lawmakers have advanced a bill that would materially amend the state’s Biometric Information Privacy Act (BIPA) and provide significant relief to Illinois employers, who have faced a wave of BIPA class action lawsuits in the last three years. Over 850 BIPA class actions have been filed in Illinois.

  • COVID-19 Response: California Governor Signs Retroactive Paid COVID-19 Sick Leave Bill

    March 25, 2021

    On March 19, 2021, California Governor Gavin Newsom revived and expanded the COVID-19 related supplemental paid sick leave (SPSL) law that expired on December 31, 2020. Senate Bill 95 codifies SPSL through newly enacted Labor Code sections 248.2 and 248.3, which place additional requirements on employers beyond existing paid sick leave requirements, apply retroactively, and require employers to provide back payments to their employees.

  • Louisiana Supreme Court Holds Public Policy Prohibits Application of “Regular Use” Exclusion in UM Policy

    March 25, 2021

    The Louisiana Supreme Court, reversing multiple lower circuit court decisions, has now invalidated the “regular use” exclusion in an Uninsured/Underinsured Motorist (UM) policy based on Louisiana public policy. In Higgins v. La. Farm Bureau Cas. Ins. Co., No. 2020-01094 (La. 3/24/21), the plaintiff, Charles Higgins, was injured in an automobile accident while operating a truck owned by his employer, AT&T.

  • Recent Delaware Chancery Decision Addresses Dissolution Based on LLC Deadlock

    March 25, 2021

    A recent Delaware Court of Chancery decision provided an exemplary analysis of when a deadlock in an LLC might be the basis for a dissolution. In Mehra v. Teller, C.A. No. 2019-0812-KSJM (Del. Ch. Jan. 29, 2021), the court analyzed case law, statutes, and learned commentary that it synthesized in a careful application to the facts of this case

  • Texas Supreme Court Finds Payment of Appraisal Award Does Not Absolve Insurer of Statutory Liability

    March 23, 2021

    The Texas Supreme Court recently published its long-awaited decision in the Hinojos v. State Farm Lloyds. In it, the court affirmed its holding in Barbara Technologies, finding that payment of an appraisal award does not absolve an insurer of statutory liability when the insurer accepts a claim but pays only part of the amount it owes within the statutory deadline, and a policy holder can proceed with an action under the Texas Prompt Payment of Claims Act.

  • CFTC Establishes Climate-Risk Unit, Echoing Other Biden Administration Agency Themes

    March 22, 2021

    On March 17, the Commodity Futures Trading Commission (CFTC or Commission) joined other federal agencies led by Biden Administration appointees in ramping up consideration of climate-related risks in matters under the Commission’s jurisdiction. Stressing the need for a climate-resilient financial system, the CFTC’s new Climate-Risk Unit (CRU) will focus on “the role of derivatives in understanding, pricing, and addressing climate-related risk and transitioning to a low-carbon economy."

  • SEC Comment Solicitation on Forthcoming Disclosure Requirements Creates Opportunities for Publicly Traded Companies

    March 19, 2021

    Following previous steps to enhance its focus on climate-related disclosures, the Securities and Exchange Commission (SEC) announced on March 15, 2021 that it was accepting public comment on climate change disclosure requirements for public company filings. Acting Chair Allison Herren Lee opened a 90-day comment period on whether current disclosure requirements provide investors with adequate information on climate-related impacts and, if not, what additional rules should be considered.

  • New York’s App. Div., Second Dept. Addresses Policy Exhaustion Issue, But Doesn’t Resolve Lower Court Split

    March 17, 2021

    New York’s Appellate Division, Second Department recently issued a decision in Alleviation Medical Svcs. v. Allstate Ins. Co., 2021 N.Y. Slip Op. 08159 (App. Div., 2nd Dept. 2/24/21), which was anticipated to specifically address the issue of whether an insurer would be required to pay in excess of the $50,000 policy limit if a court or arbitrator determined that a previously denied claim should have been paid.

  • California Supreme Court Disapproves of Rounding Meal Period Time Punches, Articulates Rebuttable Presumption

    March 15, 2021

    A recent decision from a unanimous California Supreme Court provides further warning to employers against utilizing rounding policies with respect to timekeeping systems. Specifically, the court held that: (1) employers cannot engage in the practice of rounding time punches in the meal period context; and (2) time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations, including at the summary judgment stage.

  • Missouri Asbestos Litigation Reform: New Bill Seeks to Establish Robust Disclosure Obligations

    March 10, 2021

    Missouri State Senator Eric Burlison is reviving attempts to reform asbestos litigation in the State of Missouri through the introduction of SB 331. This bill was pre-filed on December 29, 2020 and first read on January 6, 2021. The bill establishes disclosure procedures for claimants in asbestos-related lawsuits. 

  • UPDATE: In-Person Jury Trials to Commence in Kings County on March 22

    March 09, 2021

    As an update to our previous alerts regarding the commencement of in-person jury trials in New York City, Lewis Brisbois' Trial Team has been informed, per a letter from the Honorable Lawrence Knipe, Administrative Judge for Civil Matters, that in-person jury trials will begin in Kings County (Brooklyn) as of March 22, 2021

  • DOL Rule on Independent Contractor Classification Delayed Until May 2021

    March 08, 2021

    Today, the United States Department of Labor’s (DOL) newly enacted rule concerning the classification of independent contractors was scheduled to go into effect. However, under direction from the Biden Administration, the DOL recently announced a delay of the effective date until May 7, 2021. The rule consists of a multifactor test intended to clarify the analysis that determines whether individuals are independent contractors or employees.

  • COVID-19 Courthouse Restrictions Remain, Even as In-Person Trials Begin to Resume in New York & Nationwide

    March 08, 2021

    Lewis Brisbois’ New York trial team continues to monitor COVID-19 courthouse restrictions, even as the courts begin reopening for jury trials. We remain heavily engaged in preparing for trials within the parameters of the restrictions that remain in place and are continuously evolving. Currently, our New York office has two federal trials scheduled to commence within the next three weeks.

  • Rhode Island Courts Resume Jury Trials On Limited Basis

    March 05, 2021

    Jury trials have resumed on a limited basis in Rhode Island’s state courts. At this time, they are only being held in Providence County Superior Court. Further, no jury trial is scheduled without the express, written authorization of the Presiding Justice of the Superior Court where a constitutional, statutory, or otherwise highly critical need has been demonstrated. Currently, jury trials that proceed are held in-person, rather than virtually. The Superior Court has updated its jury trial process, effective September 2020, in the interests of the health and safety of all jurors, court personnel, litigants, and court users.

  • Back to Virtual and In-Person Jury Trials: Update on New York & New Jersey Courts

    March 01, 2021

    Although we are still in the middle of the COVID-19 pandemic, this has not stopped the steady flow of litigation faced by the court system. And with many court houses and in-person legal proceedings on hold as a result of the pandemic, states are seeing massive trial calendar backlogs. Different states have sought different solutions to this problem. In New York and New Jersey, the courts briefly sought to resume in-person jury trials, despite the various shut down orders across both states.

  • Kentucky Court of Appeals Affirms Jury Award of Zero Damages Even After Finding Defendant at Fault, But Grants Mistrial

    February 23, 2021

    On February 5, 2021, the Kentucky Court of Appeals issued an opinion in Allen v. Wheeler, 2021 Ky. App. Unpub. LEXIS 95, 2021 WL 406308, that raised several interesting issues affecting personal injury actions. The heart of the appeal was whether to affirm a jury verdict awarding the plaintiff zero damages, after determining the defendant was at fault for his injuries.

  • COVID-19 Response: HHS/OIG Announces New Audits, Evaluations of Telehealth Services During Pandemic

    February 18, 2021

    Telehealth was on the rise even before COVID-19 arrived on scene. Prior to this expansion, telehealth was already a focus of investigations for possible fraud and so it should not be a surprise that on January 26, 2021, the Department of Health and Human Services, Office of Inspector General (HHS/OIG) gave notice that it was adding a new audit and evaluation project, known as the HHA Telehealth Project, focused on the implementation of various telehealth waivers by home health agencies as a result of the pandemic. 

  • Biden Administration Focus on Environmental Justice Raises Questions for Industry

    February 12, 2021

    The Biden Administration has left no doubt that it intends to prioritize environmental justice (EJ) in implementing energy and environmental policy. President Biden has announced plans for elevating EJ by designating new Cabinet level offices, intensifying enforcement, and advocating for Congressional action. Given the likelihood of serious impacts from these sweeping changes, industry will need to step up engagement as these concepts are integrated into regulatory decisions and U.S. positions globally.

  • COVID-19 Response: Executive Order 13999: Enhancement of COVID-19-Related Workplace Safety Requirements

    February 08, 2021

     President Biden has signed 28 Executive Orders as of February 2, 2021, but there is one that stands out to employment lawyers – Executive Order 13999. Titled “Protecting Worker Health and Safety,” the Order addresses workplace safety. It sets out instructions, primarily to the Secretary of Labor and Assistant Secretary of Labor for Occupational Safety and Health, for establishing and issuing a set of guidelines under the Occupational Safety and Health Act.

  • Ninth Circuit CAFA Decision Places Greater Jurisdictional Burden on Employers

    February 08, 2021

    A recent decision issued by the U.S. Court of Appeals for the Ninth Circuit makes it harder for employer defendants to remove class actions to federal court under the Class Action Fairness Act of 2005 (CAFA). In remanding a putative class action back to California state court, the Ninth Circuit held that the removing defendant failed to submit competent evidence showing that the amount in controversy exceeded the $5 million jurisdictional threshold required to invoke federal jurisdiction.

  • Biden Administration Changeover in Financial Regulators Will Mean Regulatory Ramp-Up and Aggressive Enforcement

    February 04, 2021

    It is clear the Biden Administration plans big changes in the leadership of the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), and the Consumer Financial Protection Bureau (Bureau or CFPB).

  • "Ongoing Storm" Rules for the Northeast (Connecticut, Massachusetts, New Jersey, New York & Rhode Island)

    February 04, 2021

    As we move through the remainder of this snowy season, it is important for businesses to understand their legal obligations concerning snow removal and the defenses that are available to them in the event that an injury occurs on their premises. This alert summarizes the ongoing storm rules in Connecticut, Massachusetts, New Jersey, New York, and Rhode Island, and analyzes property owners’ snow removal responsibilities as well as related premises liability issues under these states’ laws.

  • FTC Announces 2021 Changes to HSR Filing Thresholds

    February 02, 2021

    On February 1, 2021, the Federal Trade Commission (FTC) announced the annual changes to the Hart-Scott-Rodino (HSR) Act notification thresholds. The FTC is required by law to revise the jurisdictional thresholds annually, based on the change in gross national product (GNP).

  • Biden Administration’s Emphasis on Climate Change Continues to Shake Things Up

    January 28, 2021

    In addition to actions already taken on his first day in office, which included rejoining the Paris climate agreement and revoking the Keystone XL oil pipeline’s permit, on January 27, 2021, President Biden released several new initiatives that represent a major shift in climate policy (see our previous alert from January 19).

  • Fifth Circuit Eliminates “Conditional Certification” Process in FLSA Cases

    January 28, 2021

    On January 12, 2021, the United States Court of Appeals for the Fifth Circuit articulated a new framework for collective actions under the Fair Labor Standards Act (FLSA), eliminating the current “conditional certification” process.

  • Illinois Legislature Enables Pre-Judgment Interest in Personal Injury Cases

    January 19, 2021

    On January 13, 2021, the Illinois General Assembly passed HB 3360, which will enable pre-judgment interest of 9% in personal injury cases. If signed by the governor, personal injury actions in Illinois will be subject to 9% per annum pre-judgment interest accruing “on the date the defendant has notice of the injury from the incident itself or a written notice."

  • Biden Administration Climate Change Policies Likely to Boost Sustainable Investing

    January 19, 2021

    President-Elect Biden is expected to shift executive branch climate policy dramatically, assigning priorities to incentives for renewable energy, support for carbon pricing, and other aggressive measures aimed at reducing greenhouse gas emissions. The new Administration’s goals include increased attention to sustainable investing, standardization of corporate disclosures, and environmental, social and governance (ESG) criteria. These changes create opportunities, but also challenges, for businesses open to the potential for competitive advantage.

  • 2020 Illinois, Indiana, and Michigan Labor & Employment Law Year-End Review

    January 13, 2021

    In contrast to years past, the COVID-19 pandemic has resulted in fewer changes to employment laws in Illinois, Indiana, and Michigan. The alert contains a summary of the major employment law developments of the past year in those three states.

  • 2020 Kansas and Missouri Labor & Employment Law Year-End Review

    January 12, 2021

    Thsi alert contains a summary of the most noteworthy judicial decisions and legislative changes related to employment law that took place in Kansas and Missouri in 2020, including changes to the Kansas Human Rights Commission, the expansion of Missouri's whistleblower law, and COVID-19 updates for both states.

  • 2020 New York and New Jersey Labor & Employment Law Review

    January 08, 2021

    2020 was certainly a year for the books. While the international community experienced shut downs and standstills as the COVID-19 pandemic swept the globe, everyone had to adjust to a “new normal.” Although many New York and New Jersey businesses closed their doors, and court operations went virtual starting in March, that did not stop new legal developments from paving the path to a new pandemic-centric landscape. 

  • Florida Adopts Less Stringent Summary Judgment Standard

    January 08, 2021

    On New Year’s Eve, Florida’s Supreme Court issued an amendment to essentially apply the federal summary judgment standard to cases in Florida state courts starting on May 1, 2021.

  • 2020 Minnesota, North Dakota, and Wisconsin Labor & Employment Law Year-End Update

    January 07, 2021

    Unlike most states, it was a relatively quiet year in terms of legislative updates and judicial opinions in the employment law context in Minnesota, North Dakota, and Wisconsin. This alert provides a summary of the major legal updates in each of these states in 2020.

  • 2020 Pennsylvania Labor & Employment Law Review

    January 06, 2021

    With the conclusion of 2020, Pennsylvania employers should be aware of three significant employment law changes that took effect during the year.

  • DOL Announces Final Rule on Standard for Employees vs. Independent Contractors Under FLSA

    January 06, 2021

    The US Department of Labor (DOL) announced this morning, January 6, its final rule clarifying the standard for employee versus independent contractor under the Fair Labor Standards Act (FLSA), reaffirming an “economic reality” test and identifying five factors to guide the analysis.

  • 2020 California Labor & Employment Year-End Update

    December 30, 2020

    In addition to bringing a global pandemic, 2020 was an unprecedented year filled with important judicial rulings and legislative changes throughout the Golden State. This alert contains a summary of the most critical legal updates affecting employers and employment litigation in California

  • A State-by-State Guide to Litigation Financing Disclosure

    December 28, 2020

    Due to the overwhelming response to our earlier alert regarding the process for uncovering litigation funding in New York State, we now share an overview of similar procedures for determining whether a plaintiff has taken out a loan in 12 other states.

  • Litigation Funding in New York: Critical Resource for Defendants Unveiled

    December 23, 2020

    In 2019, the first detailed analysis of the commercial litigation finance industry in the United States was released, showing a staggering $2.3 billion industry growth measured in just one year. The consumer-litigation portion of that industry deals primarily with personal injury claims and small claims in which a plaintiff is typically not well-funded. New York has become a hub for this industry, which poses great challenges to defending personal injury claims, as the use of such funding in lawsuits is far from transparent to defendants and the courts.

  • COVID-19 Response: Federal Guidance for Employers Concerning COVID-19 Vaccination Programs

    December 22, 2020

    Given the current COVID-19 vaccine distribution plans, it may be some time before most private employers (outside of those that employ healthcare or other essential workers) have to grapple with adopting and applying policies for employee vaccinations, including a possible mandatory vaccination policy. Nevertheless, many employers have already begun to prepare for how to deal with employees who may be hesitant about being inoculated with the COVID-19 vaccines recently approved by the FDA. 

  • Washington Trial Court Narrows Definition of First Party Claimant, Clarifies Available Causes of Action in Commercial Property Loss Context

    December 16, 2020

    The law in the State of Washington, albeit clear on issues regarding first party claimants, was recently challenged in the matter of Eye Associates Northwest, P.C. v. Sedgwick et. al.

  • DOJ Announces Its First Criminal Indictment for Wage Suppression

    December 14, 2020

    The Antitrust Division of the Department of Justice delivered on its stated intention to criminally prosecute collusion in labor and employment markets when it announced on December 10, 2020 its first criminal wage-fixing prosecution, charging the former owner of a Texas home healthcare staffing agency with violating Section 1 of the Sherman Act by participating in a conspiracy to suppress rates for physical therapists and physical therapy assistants.

  • COVID-19 Response: Phase II of Colorado’s Healthy Families and Workplaces Act Set to Begin on January 1, 2021

    December 08, 2020

    In light of the ongoing COVID-19 pandemic, on July 14, 2020, Colorado Governor Jared Polis signed into law SB20-205, the “Healthy Families and Workplaces Act,” which provides new sick leave benefits for workers in Colorado.

  • Proposed Rule Addresses “De-Banking” and Politically Driven Lending Practices

    December 02, 2020

    On November 20, 2020, the Office of the Comptroller of the Currency (OCC) published a Notice of Proposed Rulemaking aimed at ensuring fair access to banking services and eliminating  politically-driven, “de-banking” practices used to deny access to financial services to disfavored industry sectors based on ideology rather than quantifiable risk-based factors.

  • COVID-19 Response: California Occupational Safety and Health Standards Board Implements Sweeping New Regulations to Prevent COVID-19 in the Workplace

    December 01, 2020

    On November 19, 2020, the California Occupational Safety and Health Standards Board (OSHSB) proposed sweeping and significant new emergency standards to reduce employee exposure to COVID-19.

  • Illinois Supreme Court Amends Supreme Court Rule 23 to Allow Citation of Unpublished Opinions for Persuasive Purposes

    November 24, 2020

    On November 20, 2020, the Illinois Supreme Court amended Supreme Court Rule 23 to allow unpublished Rule 23 orders issued on or after January 1, 2021 to be cited for persuasive purposes.

  • No “Double Recovery” of Unpaid Wages and Premiums for Non-Compliant Rest Break

    November 23, 2020

    In an uncharacteristically employer-friendly decision, the California Court of Appeal, Third Appellate District, held that employees could not recover both unpaid minimum wages and one-hour premiums for unpaid rest break claims.

  • New York Appellate Decision May Ease Defense Access to Social Media Accounts

    November 13, 2020

     In the matter of Abedin v Osorio, decided on November 12, 2020, New York’s Appellate Division, Second Department granted the defendants’ motion for access to the plaintiff’s Facebook, Snapchat, and Instagram accounts on the ground that such discovery was “reasonably likely to yield relevant evidence.” 

  • Important Non-Election News for Illinois Employers: Sexual Harassment Training Deadline Approaching

    November 03, 2020

    We are now less than two months out from the December 31, 2020 deadline for Illinois employers to ensure that all employees have completed mandatory sexual harassment training. Employers who have not yet complied should immediately arrange for such training, as companies that are not in compliance will be subject to civil penalties.

  • COVID-19 Response: Illinois Supreme Court Issues Order Allowing Remote Jury Selection in Civil Cases

    October 28, 2020

    In response to the COVID-19 emergency, on October 27, 2020, the Illinois Supreme Court issued Order M.R. 30370 expanding its Rules 45 and 241 to include remote jury selection for trials in civil cases. The Order is an attempt by the court to safely balance the continual need for access to justice for the citizens of Illinois with the necessity of protecting the Seventh Amendment right to a jury in civil matters.

  • “Friends Don’t Let Friends Drive Drunk” Takes on New Meaning in New Jersey

    October 27, 2020

    The New Jersey Supreme Court has emerged as the first court in the country to fill a longstanding gap in the matrix of liability for underage drinking and driving.

  • Recent New York Appellate Victories

    October 22, 2020

    Lewis Brisbois' Appellate Team continues to secure significant appellate victories on behalf of our clients. This alert includes two recent wins from the New York Appellate Division, Second Department.

  • Long Overdue: EEOC Bolstering the Conciliation Process

    October 22, 2020

    In an extremely positive, long overdue development, the Equal Employment Opportunity Commission (EEOC) recently proposed amendments to its procedural rules to increase the effectiveness of its conciliation process after the federal agency finds reasonable cause on an administrative charge of discrimination.

  • Georgia’s Highest Court Allows Juries to Apportion Fault to Plaintiffs in Strict Products Liability Cases

    October 21, 2020

    On October 19, 2020, the Supreme Court of Georgia ruled in Johns v. Suzuki Motor of America, Inc. that a jury can apportion fault to a plaintiff in strict products liability cases.

  • New York State’s In-Person Jury Trial Pilot Program Continues, With Jury Trials Resuming Across the State

    October 19, 2020

    On September 9, 2020, Chief Judge of the State of New York Janet DiFiore began a week-long jury trial pilot program across the state. According to Judge DiFiore, it was expected that jury trials would commence in New York City by mid to late-October, with jury summonses already going out to prospective jurors in the City. As of the writing of this alert, we are pleased to inform you that it appears jury trials are now being conducted throughout New York City and the Greater Metro Area.

  • More Changes for New York City Employers: Amendments to Earned Safe and Sick Time Act

    October 19, 2020

    On April 3, 2020, New York State enacted a new paid sick leave law as part of a comprehensive budget bill. As this newly-enacted law did not replace or diminish city or county paid sick leave laws, it presented certain compliance challenges for New York employers with employees located in New York City or Westchester County, which have their own paid safe and sick leave provisions. To address some of these compliance issues, New York City recently passed amendments to the Earned Safe and Sick Time Act.

  • COVID-19 Response: California Enacts Statutes Establishing Rebuttable Presumption of Workplace Injury, New Notice Requirements for COVID-19 Exposure

    October 16, 2020

    Recently, California Governor Gavin Newsom signed Senate Bill 1159 (SB 1159) and Assembly Bill 685 (AB 685), which introduce new measures to address COVID-19 in the workplace, including the creation of a rebuttable presumption of a workplace injury and new notice requirements for employers in the event of a potential COVID-19 exposure. 

  • Regulators Exempt Banks from Patriot Act Compliance for Premium Finance Loans

    October 16, 2020

    The 2001 Patriot Act imposed rigorous customer identification program rules on financial institutions that were designed to prevent terrorist financing and money laundering. In September 2018, federal banking regulators created an exemption from these rules to facilitate premium finance lending for commercial customers. On October 5, 2020, regulators issued an Order expanding this exemption to include loans extended by banks and their subsidiaries to all customers to facilitate purchases of property and casualty insurance policies.

  • California Legislature Expands California Family Rights Act

    October 15, 2020

    California Governor Gavin Newsom recently signed legislation that greatly expands the scope and application of the California Family Rights Act (CFRA). This legislation goes into effect on January 1, 2021, so employers should prepare now to comply with the new requirements.

  • New Addition to New Jersey Court Rules Impacts More Than Trial Practice

    October 08, 2020

    On September 1, 2020, New Jersey adopted a brand-new rule of procedure, Rule 4:25-8, which properly defines motions in limine. On its face, the new rule prohibits, broadly, filing motions in limine that may have a dispositive effect on the case. Most notably, the rule expressly eliminates the ability to move, on motion in limine, to bar expert testimony in matters in which such experts are required to sustain a party’s burden of proof.

  • Governor Cuomo Ends Tolling & Suspension of Civil Legal Deadlines as of November 3, 2020

    October 07, 2020

    The legal community in New York State has been following closely Governor Cuomo’s ongoing series of Executive Orders since the onset of the COVID-19 pandemic in March 2020, tolling statutes of limitations and other civil legal deadlines. In the latest Executive Order, No. 202.67, dated October 4, 2020, the Governor announced that such tolling will end on November 3, 2020.

  • COVID-19 Response: Change of Ownership Transactions Involving PPP Borrowers - New Rules Apply

    October 07, 2020

    With the closure of the loan application phase of the Paycheck Protection Program (PPP) and attention shifting to loan forgiveness, another issue has emerged: how PPP borrowers should handle PPP indebtedness when a PPP borrower wants to transfer some or all of its ownership interests.

  • BIPA Continues Its Devastating Impact on Illinois Businesses

    September 23, 2020

    On September 18, 2020, in a closely watched Illinois Biometric Information Privacy Act (BIPA) case of first impression, the Illinois First District Court of Appeals ruled that BIPA claims for statutory damages by employees against their employers are not preempted by the exclusive remedy provision of the Illinois Workers Compensation Act (IWCA).

  • COVID-19 Response: California Expands Supplemental Paid Sick Leave

    September 23, 2020

    On September 9, 2020, California Governor Gavin Newsom signed Assembly Bill 1867 (AB 1867), which provides COVID-19-related supplemental paid sick leave of up to 80 hours to food sector workers, employees of companies with over 500 employees nationwide, and employees of healthcare providers and emergency responders.

  • Slurpees For Everyone! 7-Eleven Beats Franchisee Misclassification Suit in Massachusetts

    September 23, 2020

    In August 2017, five individual convenience store franchisees filed suit in federal court for violations of the Massachusetts Independent Contractor Law (Massachusetts ICL), the Massachusetts Wage Act, and the Massachusetts Minimum Wage Law against their franchisor, 7-Eleven, Inc. The franchisees alleged that they, and all other franchisees in the Commonwealth of Massachusetts, were employees of 7-Eleven under state law.

  • Trust, But Verify: Oregon Court of Appeals Upholds Order For New Trial Due To Withholding of Bankruptcy Claim Documents

    September 21, 2020

    On August 26, 2020, the Oregon Court of Appeals upheld a trial court’s decision to order a new trial and vacate a judgment in the asbestos case, Golik v. CBS Corp., 306 Or App 202 (2020). After the jury returned a $3.9 million verdict, the defendant premises owner discovered various bankruptcy form documents, including a work affidavit detailing alternative asbestos exposures, which had not been produced in discovery.

  • DOL Provides Clarification for Employer FLSA Compliance in Recent Opinion Letters

    September 16, 2020

    Recently, the Department of Labor (DOL) Wage and Hour Division (WHD) issued four new opinion letters addressing several compliance issues related to the Fair Labor Standards Act (FLSA).

  • Hurricane Guidance for Employers in 2020: Wage & Hour Considerations

    September 11, 2020

    As the 2020 hurricane season peaks, companies impacted by this year’s hurricanes, including Hurricane Laura, face a host of employment law concerns, including significant challenges maintaining compliance with wage and hour laws. This alert provides general guidance about those issues under the Fair Labor Standards Act (FLSA).

  • Calif. Governor Newsom Approves Modifications to AB 5

    September 10, 2020

    On September 4, 2020, California Governor Gavin Newsom approved legislation modifying Assembly Bill 5 (AB 5), California’s worker misclassification law, to allow more individuals to be classified as independent contractors.

  • Governor Cuomo’s Latest Executive Order Extends Tolling of Civil Legal Deadlines to October 4, 2020

    September 10, 2020

    Since the COVID-19 crisis began, the New York legal community has been following Governor Cuomo's Executive Orders on a monthly basis with respect to the tolling of legal deadlines due to the statewide emergency caused by the pandemic.

  • Pennsylvania Considers Amending Human Relations Act To Protect Hairstyles, Traits Historically Associated With Race From Discrimination

    September 09, 2020

    Identical legislation pending in the Pennsylvania Senate (SB 964) and House of Representatives (HB 2725) seeks to amend the definition of “race” in the Pennsylvania Human Relations Act to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” 

  • Ohio Court of Appeals Reaffirms Vicarious Liability Analysis

    September 08, 2020

    In a recent opinion, the First Appellate District of the Ohio Court of Appeals reaffirmed the way in which Ohio courts address issues relating to claims arising from vicarious liability and negligent hiring, supervision, or retention.

  • Getting the ‘Drift’: Maryland Adopts Daubert Standard

    September 08, 2020

    In a recent decision, the Court of Appeals of Maryland ended the state's use of the century-old Frye-Reed general acceptance standard in favor of the relevance/reliability standard first enunciated by the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc. Maryland is now the 40th state to adopt Daubert.

  • New York Trial & Appellate Team Secures Reversal of Jury Verdict in Dram Shop Case - Plaintiff Must Prove Alcohol Was Served to a "Visibly Intoxicated Person"

    September 03, 2020

    New York Appellate Partner Nicholas P. Hurzeler and New York Trial Partner James Whalen recently obtained a reversal on appeal of a jury verdict in a Dram Shop case.

  • COVID-19 Response: School Reopening Plans - Leave Management Considerations for Employers in the “New Normal”

    September 01, 2020

    Various states and school districts are taking different approaches with regard to how schools will reopen in the fall. What does this mean for employers? We have prepared the following FFCRA Frequently Asked Questions and Answers to help employers anticipate and navigate leave management issues that may arise related to school or place of care closures and/or the unavailability of childcare for reasons related to COVID-19. This alert has been updated to reflect recent changes from the Department of Labor.

  • Hurricane Laura: Implications for Insurers in Louisiana

    August 31, 2020

    Just two days before the 15th Anniversary of Hurricane Katrina, Category 4 Hurricane Laura made landfall near Cameron, Louisiana. Preliminary estimates for insured losses from storm surge, flooding, and winds range from $8 to $12 billion for residential and commercial properties. Insurers providing residential or commercial property insurance in Louisiana should keep the following statutory claims handling requirements in mind.

  • COVID-19 Response: Presidential Payroll Tax Deferral - Availability and Employer Responsibilities

    August 31, 2020

    On August 28, 2020, the United States Department of the Treasury and the Internal Revenue Service issued guidance implementing the Presidential "Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster (August 8, 2020)." In this alert, we describe the availability of this tax deferral to employers, defined in the Notice as "Affected Taxpayers." We also point out responsibilities of employers who choose to defer eligible payroll taxes.

  • Eastern District of Louisiana Guidance on Whether Requirement of Naming Additional Insured on “All Policies” Extends to Entire Tower, With Late Notice/Prejudice as Lagniappe

    August 28, 2020

    The U.S. District Court for the Eastern District of Louisiana recently issued judgment in a BP Oil Spill-related suit that may impact claims for additional insured status arising from contractual agreements, and establishes bases for denial of defense and indemnity due to late notice/prejudice and violation of contract requirements.

  • DOL Issues Guidance Summarizing Employers’ Obligation to Use Reasonable Diligence When Tracking Remote Employees’ Hours of Work

    August 28, 2020

    Although there are many advantages associated with remote work arrangements, wage & hour compliance is not one of them. It is one of the reasons this type of work arrangement has been adopted more broadly for exempt rather than non-exempt employees. Not surprisingly, however, COVID-19 has dramatically changed how employees work.

  • Kansas Human Rights Commission Concurs With U.S. Supreme Court Bostock Decision Regarding LGBTQ Sex Discrimination

    August 27, 2020

    Last Friday, August 21, 2020, the Kansas Human Rights Commission (KHRC) Board met to consider the U.S. Supreme Court’s decision in Bostock v. Clayton Cty., 140 S. Ct. 1731, 1734 (2020) and its impact on the KHRC’s interpretation of the Kansas Act Against Discrimination (KAAD).

  • Nassau County, N.Y. Courts Announce Phase 4 Reopening Plans, Return to In-Person Operations for Trials

    August 18, 2020

    Lewis Brisbois’ New York trial attorneys are looking forward to resuming trials and defending their clients’ interests in the courtroom, as courts within Nassau County and across the State of New York continue to implement protocols that will allow in-person proceedings and trials to move forward.

  • COVID-19 Response: New Administrative Appeal Process for PPP Loans – Some Questions Answered and Others Not

    August 17, 2020

    On August 11, 2020, the Small Business Administration released a major new procedural framework for legal challenges to its rulings on loan eligibility and forgiveness under the Paycheck Protection Program (PPP), which has approved more than 5.1 million loans and dispensed more than $520 million to small businesses suffering economic losses from the COVID-19 pandemic.

  • In Extraordinary Session, Missouri Legislature Attempts to Expand Whistleblower Law to Allow Punitive Damages

    August 17, 2020

    Significant new whistleblower legislation is coursing its way through a special session of the Missouri Legislature and, if passed, will drastically broaden the definition of employer to expose businesses and government entities to whistleblower suits claiming punitive damages. House Bill 21 (HB 21) purports to be an emergency clause bill, which would go into effect immediately upon passage.

  • COVID-19 Response: Presidential Payroll Tax Deferral – Knowns & Unknowns

    August 14, 2020

    On August 8, 2020, President Trump directed the U.S. Secretary of the Treasury “to use his authority to defer certain payroll tax obligations with respect to the American workers most in need." Presidential Memoranda: Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster (August 8, 2020).

  • New Jersey Appellate Division Reinforces No Legal Malpractice Successor Liability When Prior Attorney Fails to Properly File Tort Claims Act Notice

    August 13, 2020

    Following a recent panel hearing comprised of Judges Fisher, Accurso, and Rose, the Appellate Division of the Superior Court of New Jersey issued a published opinion in Eileen McNellis-Wallace, et al. v. Joseph Hoffman, Jr., Esq., et al., 2020 N.J. Super. LEXIS 195 (App. Div. 2020), regarding successor liability in a legal malpractice action.

  • COVID-19 Response: Schools, Returning to Work, and the FFCRA

    August 11, 2020

    With the school year commencing, a common question is whether distance or online learning constitutes a school closure under the Families First Coronavirus Response Act (FFCRA), which provides paid leave for covered employees who are unable to work due to certain COVID-19 related reasons.

  • Calif. Supreme Court Limits Interference Claims With At-Will Contracts, Applies Rule of Reason to Contracts Restricting Trade Between Businesses

    August 11, 2020

    On August 3, 2020, the Supreme Court of California (the Court) ruled that in order to state a claim for interference with an at-will contract, the plaintiff must allege that the defendant engaged in an independently wrongful act. Ixchel Pharma, LLC v. Biogen, Inc., 2020 Cal. LEXIS 4876, *1.

  • COVID-19 Response: Proposed SAFE TO WORK Act May Provide COVID-19 Related Immunity to Certain Employers

    August 10, 2020

    The SAFE TO WORK Act pending in the United States Congress would create a sea change as to potential liability for COVID-19 related claims as it would create broad immunity for healthcare providers, businesses and schools from claims related to COVID-19.

  • The EEOC Is Back: Lawsuits Expected, Plus New ADA Guidance on Opioids

    August 07, 2020

    After a noticeable pause in activity in many offices across the country, the Equal Employment Opportunity Commission (EEOC) announced this week that it will re-commence issuing Notice of Right to Sue letters, a process that was suspended for four months because of the COVID-19 pandemic.

  • Get Ready Philadelphia Employers – Enforcement of the Wage Equity Ordinance Begins September 1, 2020

    August 07, 2020

    The Philadelphia City Council has passed the Wage Equity Ordinance in an attempt to narrow the gender wage gap. According to the Ordinance, a 2015 United States Census Bureau report found that women in Pennsylvania were paid seventy-nine cents for every dollar a man earned.

  • National Labor Relations Board Sets Clear Standard for Punishing Abusive Conduct from Union Employees

    August 04, 2020

    On July 21, 2020, the National Labor Relations Board (NLRB) consolidated the standard used to evaluate whether discipline of an employee’s abusive conduct violates the National Labor Relations Act (NLRA).

  • COVID-19 Response: More Uncertainty Ahead for Employers – NY Federal Court Invalidates Several Features of the DOL FFCRA Final Rule

    August 03, 2020

    In response to the coronavirus pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA), which provides two different types of paid leave for employees who are unable to work due to COVID-19 related reasons.

  • COVID-19 Response: NYS Legislature Trims Back Emergency Disaster Treatment Protection Act, Exposing Liability for Non-COVID-19 Treatment

    July 27, 2020

    On July 23, 2020, the New York State legislature voted to narrow the scope of the Emergency Disaster Treatment Protection Act (the Act), exposing nursing homes and other medical providers to liability for treatment unrelated to COVID-19.

  • Calif. Court of Appeal: Vertical Exhaustion of Scheduled Primary Policies Triggers Excess Coverage

    July 15, 2020

    The other shoe has dropped on the issue of vertical and horizontal exhaustion with respect to triggering excess coverage under California law.

  • U.S. Supreme Court Gives Grace to Religious Employers

    July 09, 2020

    In 2012, the United States Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, and first recognized a “ministerial exception”.

  • FINRA Adopts Amendments to Reduce Conflict and Confusion with SEC’s Reg BI

    July 07, 2020

    As we discussed in a previous client alert, in June 2019, the Securities and Exchange Commission (SEC) adopted Regulation Best Interest (Reg BI) as the new standard of care among brokers and dealers to become effective June 30, 2020.

  • COVID-19 Response: Governor Cuomo Extends Tolling and Suspension of Civil Litigation Deadlines in New York for Another 30 Days

    July 07, 2020

    In Governor Cuomo’s latest Executive Order, No. 202.48, dated July 6, 2020, the Governor extended the suspension and tolling of civil litigation deadlines and statutes of limitations for another 30 days, through August 5, 2020.

  • Oregon Employers Must Implement New Anti-Discrimination Policy By October 1, 2020

    July 07, 2020

    Following its own sexual harassment scandal, the 2019 Oregon legislature enacted dramatic changes to the state’s anti-discrimination laws.

  • Illinois Appellate Court Holds Defendant Must Produce Insurer’s Documents Related to Controlled Expert Witnesses

    July 02, 2020

    In Grant v. Rancour, 2020 IL App (2d) 190802 (June 12, 2020), the Second District Appellate Court in Illinois approved the trial court’s order requiring the defendant to produce her automobile insurer’s documents related to controlled expert witnesses previously retained by that insurer in unrelated cases.

  • COVID-19 Response: Federal Reserve Moves Closer to Opening Main Street Lending Program

    July 01, 2020

    On June 24, 2020, we provided updated information on the Paycheck Protection Program and the Main Street Lending Program (MSLP), which continues to evolve before its upcoming launch. Since then, the Federal Reserve (FRB) has revised its frequently asked questions document further to provide more direction to lenders and borrowers who want to take advantage of the MSLP.

  • COVID-19 Response: PPP Loans and Main Street Lending Program - Current State of Play

    June 24, 2020

    The CARES Act created two major loan programs, the Paycheck Protection Program (PPP) and the Main Street Lending Program. This update provides an overview of current developments involving these programs. Borrowers should continue to closely monitor the changing requirements for these programs, which can have important implications for borrower eligibility and maximization of benefits, and seek expert counsel as needed.

  • COVID-19 Response: Kansas Businesses Provided Broad Immunity From Liability in Response to COVID-19 Claims

    June 22, 2020

    On June 4, 2020, the Kansas legislature passed House Bill No. 2016, creating the COVID-19 Response and Reopening for Business Liability Protection Act. Under this Act, many Kansas businesses are “immune from liability in a civil action for a COVID-19 claim if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the cause of action when the cause of action accrued.” 

  • California Court of Appeal Deals One-Two Punch to Employers Seeking to Compel Arbitration

    June 19, 2020

    In Jarboe v. Hanlees Auto Group, et al, California’s First District Court of Appeal recently handed employees two lifelines in their battle against being compelled to arbitrate employment disputes.

  • New California Law Requires Insurers to Determine If Claimants Owe Child Support

    June 19, 2020

    At the start of 2020, a new statute went into effect in California requiring insurers, under certain circumstances, to take steps to determine if a claimant is in arrears on a child support obligation.

  • “The Answer is Clear”: U.S. Supreme Court Outlaws LGBTQ+ Employment Discrimination. What’s Next?

    June 15, 2020

    On June 15, 2020, the United States Supreme Court held that Title VII, the federal employment law that prohibits discrimination “because of sex,” bars discrimination based on an individual’s sexual orientation and transgender status. This alert discusses the landmark 6-3 decision, background on the cases involved, and what employers should consider going forward.

  • In Missouri, Inevitable Revisions to Punitive Damages Statutes and Standards - Part II

    June 15, 2020

    Last month, the Missouri legislature passed Senate Bill 591 (SB 591), making important changes to the state’s punitive damages laws, civil procedure, improper healthcare laws, and its consumer protection statute, the Missouri Merchandising Practices Act (MMPA). Part II of this two-part alert discusses the effects of the bill on the MMPA and actions based on improper healthcare.

  • Illinois Supreme Court Reaffirms New Due Process Limitations for Personal Jurisdiction Over Nonresidents

    June 12, 2020

    On June 4, 2020, the Illinois Supreme Court handed down an opinion in the joint actions Christy Rios et al., Appellees, v. Bayer Corporation et al., Appellants and Nichole Hamby et al., Appellees, v. Bayer Corporation et al., Appellants (Docket Nos. 125020, 125021), which again recognized new U.S. Supreme Court due process limitations for personal jurisdiction over nonresident defendants.

  • Lewis Brisbois Successfully Uses WC Exclusivity Provisions Defense to Bar Bus Driver Claim Against Affiliated Company

    June 12, 2020

    Suffolk Supreme Court Justice Carmen Victoria St. George recently granted summary judgment in favor of a Lewis Brisbois transportation client in a personal injury suit brought by a bus driver. The court found that the plaintiff’s bodily injury complaint must be dismissed based on the exclusivity provisions contained in New York's Workers’ Compensation Law. New York Partner James M. Strauss explains

  • Governor Cuomo Again Extends the Tolling of Civil Laws and Deadlines

    June 11, 2020

    On June 6, 2020, Governor Cuomo signed Executive Order 202.38, which continues until July 6, 2020, the tolling of civil deadlines in response to the COVID-19 crisis.

  • The COVID-19 Impact: Navigating the Legal Landscape’s New Normal

    June 11, 2020

    For the past couple of months, most litigation cases have largely been put on pause in the courts and at administrative agencies. However, as we adjust to what is clearly a new normal in both our lives and the legal landscape as we know it, cases will begin to pick up speed again, albeit with new strategies and challenges to keep in mind.

  • In Missouri, Inevitable Revisions to Punitive Damages Statutes and Standards - Part I

    June 11, 2020

    Last month, the Missouri legislature passed Senate Bill 591 (SB 591), making important changes to the state’s punitive damages laws, civil procedure, improper healthcare laws, and its consumer protection statute, the Missouri Merchandising Practices Act (MMPA). Part I of this two-part alert discusses the reforms SB 591 makes to punitive damages in Missouri.

  • California Court of Appeal Provides Clarity on What Triggers Supplemental Analysis Under California Environmental Quality Act

    June 10, 2020

    In a recent ruling, California’s Sixth District Court of Appeal clarified the need for supplemental environmental analysis under the California Environmental Quality Act (CEQA).

  • COVID-19 Response: Recent Executive Orders Present Opportunities for Businesses Seeking Regulatory and Enforcement Relief and Expedited Project Development

    June 08, 2020

    Two recent Executive Orders (EO) aimed at promoting economic recovery from the COVID-19 crisis offer regulatory and enforcement relief and encourage agencies to expedite infrastructure project approvals.

  • COVID-19 Response: Tax Update - PPP Flexibility Act Decouples Loan Forgiveness and Deferral of Federal Payroll Taxes

    June 05, 2020

    Signed into law by President Trump on June 5, 2020, the Payroll Protection Program Flexibility Act (HR 7010) increases the benefits of Payroll Protection Program (PPP) loans both prospectively and for persons who have already borrowed. This alert highlighst how this legislation significantly enhances a particular tax aspect of PPP loans.

  • COVID-19 Response: New Legislation Adds Flexibility to PPP Loan Program

    June 04, 2020

    The Paycheck Protection Program (PPP), created by the CARES Act to provide forgivable, low-interest loans to small businesses struggling to meet payroll and other basic costs in the wake of the COVID-19 crisis, has distributed more than $500 billion in funds.

  • COVID-19 Response: New York Employers, Teleworkers May Obtain COVID-19 Relief from State Income Tax and Withholding Requirements – A Harbinger for Other States?

    June 03, 2020

    In normal times, many employees of New York businesses commute to and from their jobs in New York State from other states including New Jersey, Connecticut, and Pennsylvania. Because these nonresident commuters perform services in New York, their employers are generally required to withhold New York income taxes from their paychecks.

  • Understanding and Defending Foodborne Illness Litigation

    June 01, 2020

    Recent highly publicized outbreaks of foodborne illness have lead to an upsurge in foodborne illness lawsuits through the United States.

  • COVID-19 Response: Combating Price Gouging During the Pandemic and Other Emergencies

    May 29, 2020

    The private sector is showing creativity in combating price gouging during the COVID-19 era. Companies like Amazon and 3M successfully have defended their brands in the name of the public good.

  • Only Fix What’s Broke: A Guide to the Proposed 2020 Amendments to FRCP 30(b)(6)

    May 28, 2020

    On October 23, 2019, the Judicial Conference Advisory Committee on Civil Rules proposed amendments to Federal Rule of Civil Procedure (FRCP) 30(b)(6) that will increase the amount of work required to get a corporate designee to speak on behalf of a company.

  • COVID-19 Response: New Considerations for Liability Policies

    May 27, 2020

    Dubbed “essential” by the government powers-that-be, many manufacturers are being called on to continue operations as a core component of our nation’s response to the COVID-19 pandemic.

  • New York Allows Filing of New Non-Essential Lawsuits

    May 22, 2020

    On May 20, 2020, Chief Administrative Judge Lawrence K. Marks issued a memorandum order under which New York’s court system will allow electronic filing of new non-essential lawsuits starting on Monday, May 25, 2020.

  • COVID-19 Response: Long-Awaited PPP Loan Forgiveness Guidance Answers Some Questions, Raises Others

    May 19, 2020

    Late on May 15, 2020, the Small Business Administration published information on the Paycheck Protection Program (PPP) loan forgiveness process, including the Forgiveness Application and some much needed clarification on questions that have perplexed borrowers since the PPP debuted in the CARES Act on March 27, 2020.

  • New York Child Victims Act Ruled Constitutional by State Court Judge

    May 14, 2020

    A New York State judge has denied a motion by a Nassau County diocese to dismiss 44 complaints filed against it under New York’s Child Victims Act (CVA), rejecting the church’s argument the law violates the Due Process Clause of New York’s constitution.

  • New York State Enacts Permanent Paid Sick Leave Law

    May 12, 2020

    On April 3, 2020, Governor Andrew Cuomo signed into law the Fiscal Year 2021 New York State budget. Of great significance for all New York employers is the amendment this budget makes to the state’s Labor Law to include a new permanent requirement for sick leave.

  • PPP Eligibility: New Guidance May Require Another Look at Headcount Calculations for Firms with Employees Outside the United States

    May 11, 2020

    If your business has employees outside the United States, and you applied for and received Paycheck Protection Program (PPP) loan funds on the basis of the U.S. employee head count, you may want to consider checking your math.

  • Governor Cuomo Issues Newest Executive Order Extending the Tolling of Civil Laws and Deadlines

    May 08, 2020

    On May 7, 2020, Governor Cuomo signed Executive Order 202.28, which continues until June 6, 2020, the tolling of civil deadlines in response to the COVID-19 crisis.

  • Ohio Supreme Court: Misrepresentation in Auto Insurance Application Renders Auto Policy Void "Ab Initio"

    May 08, 2020

    This week, in Nationwide Mut. Fire Ins. Co. v. Pusser, 2020-Ohio-2778, the Ohio Supreme Court held that an insured’s misrepresentation in an auto insurance application rendered the auto policy void ab initio (i.e. from the beginning).

  • Seventh Circuit Confirms Article III Standing in Federal Court BIPA Cases

    May 06, 2020

    On May 4, 2020, the Seventh Circuit joined the Ninth Circuit in ruling that a plaintiff alleging violations of the informed consent provisions of the Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14/15(b) has Article III standing to sue in federal court.

  • COVID-19 Response: CARES Act Borrowers Beware - Prosecutions Are Beginning

    May 06, 2020

    As expected, investigations into potential fraud and abuse are already underway in the award of massive stimulus funds under the CARES Act Paycheck Protection Program (PPP). On May 5, the Justice Department announced its first prosecution, charging two Rhode Island businessmen with fraudulently seeking more than a half million dollars in forgivable PPP loans.

  • COVID-19 Response: Is a Bankrupt Small Business Eligible for a Small Business Loan Under the Paycheck Protection Program?

    May 06, 2020

    On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which established the Paycheck Protection Program (PPP). Under the PPP, the U.S. Small Business Administration can temporarily authorize and guarantee small business loans designed to incentivize small businesses to keep their workers on the payroll and help small businesses survive the pandemic.

  • Supplemental vs. Amended Bill of Particulars: If Challenged, New York Courts Will Closely Examine Such Filings Post-Note of Issue

    May 06, 2020

    On April 30, 2020, the New York’s Appellate Division, First Department, issued a decision in Silber v. Sullivan Properties, L.P., affirming the trial court’s denial of a plaintiff’s post-Note of Issue motion to file an Amended Bill of Particulars, which charged the defendant with violating a section of the building code that had never been previously alleged. 

  • Texas Supreme Court Recognizes Collusive Fraud Exception to Eight-Corners Rule

    May 04, 2020

    On May 1, 2020, the Texas Supreme Court adopted an exception to the State’s eight-corners rule, a vital tenet of Texas insurance law that governs the determination of an insurer’s duty to defend.

  • COVID-19 Response: Federal Reserve Board Expands Scope and Eligibility of Main Street Lending Program But Still Provides No Start Date

    May 04, 2020

    In response to more than 2,000 public comments to its initial term sheets, the Federal Reserve Board (FRB) on April 30, 2020 unveiled changes to its previously announced $600 billion Main Street Lending Program (Program), although it still did not reveal when lending will get underway.

  • COVID-19 Response: Safety Measures Briefing – Returning to Work, Part II

    May 01, 2020

    In the first part of this alert on taking employees’ temperatures, we explained some of the obligations created under discrimination laws, occupational safety and health standards, and data privacy regulations. In this second part, we emphasize the newest guidance around temperature screenings, COVID-19 testing, and returning to work.

  • COVID-19 Response: Tax Update - IRS Disallows Tax Deductions for Expenses Paid from Forgiven Payroll Protection Loans

    May 01, 2020

    If a recipient of a Payroll Protection Program (PPP) loan uses the money to pay eligible expenses, then the borrower stands to reap two benefits.

  • Convictions Handed Down in $31.7 Million Trip-And-Fall Criminal Fraud Scheme

    May 01, 2020

    In May of 2019, three defendants were convicted following a three-week trial in New York federal court, Southern District, in connection with a fraudulent scheme to concoct phony lawsuits.

  • COVID-19 Response: New Jersey Amends Leave Laws in Response to COVID-19 Pandemic

    May 01, 2020

    On April 14, 2020, New Jersey Governor Phil Murphy signed into law Senate Bill 2374. This bill amends the New Jersey Family Leave Act (NJFLA), the New Jersey Family Leave Insurance law (NJFLI), and the New Jersey Temporary Disability Law (NJDTL) to address COVID-19 related leave issues. Remarkably, it provides a do-over in light of amendments passed hurriedly only two weeks earlier. Please note that the amendments are retroactive to March 25.

  • COVID-19 Response: Healthcare Provider Funding Update

    April 30, 2020

    The President signed into law the fourth COVID-19 bill. In it, an additional $484 billion has now been allocated by the federal government to assist in the relief efforts. The lion’s share of the funding, $380 billion is to extend the Paycheck Protection Program, to enable processing of additional applications.

  • U.S. Supreme Court Creates New Clean Water Act “Functional Equivalent” Test: Help or Hindrance?

    April 30, 2020

    Seeking to address a longstanding environmental law question of what circumstances require a Clean Water Act (CWA) permit from a “point source,” the U.S. Supreme Court’s decision on April 23, 2020 in County of Maui v. Hawaii Wildlife Fund established a new test that even the Court realized may result in greater confusion rather than less.

  • COVID-19 Response: What the EEOC Wants Employers to Know About Disability Accommodation Requests, Harassment, and Returning to Work in the Current COVID-19 Landscape

    April 30, 2020

    Recently, the United States Equal Employment Opportunity Commission (EEOC) updated its recommendations for employers endeavoring to comply with the Americans with Disabilities Act (ADA) and other employment laws amidst the challenges posed by the COVID-19 pandemic. Most saliently, the guidance includes a new section on returning employees to the workplace.

  • COVID-19 Response: California Governor and Cities Expand COVID-19 Paid Sick Leave

    April 27, 2020

    As part of the federal government’s efforts to address employment concerns relating to COVID-19, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law last month, requiring employers to provide paid time off to their employees for reasons related to the virus.

  • COVID-19 Response: New Jersey Amends Its Mini-WARN Act in Light of the Coronavirus Pandemic

    April 27, 2020

    New Jersey had recently amended its Mini-WARN Act to expand the protections available for employees whose employers engage in mass layoffs or termination of operations effective July 19, 2020. Most notably, New Jersey had become the first state in the nation to mandate severance payments (one week’s pay for each year of service).

  • COVID-19 Response: CARES Act 3.5 Provides Additional Funding for Small Business and Healthcare Relief Programs

    April 24, 2020

    The Paycheck Protection Program (PPP) and Health Care Enhancement Act, signed into law on April 24, 2020, provides $484 billion of additional funding for small business loan programs and direct benefits to health care providers for COVID-19 response and testing.

  • COVID-19 Response: Tax Update - Businesses Can Claim Tax Refunds and Revisit Previous Tax Elections Based on CARES Act

    April 24, 2020

    In initially analyzing the tax provisions of the CARES Act, we identified some opportunities for businesses to claim refunds of federal taxes paid for tax years preceding 2020. See "COVID-19 Response: Tax Update - Using CARES to Conserve or Generate Cash, and Other Changes to Federal Tax Law”.

  • COVID-19 Response: Treasury Department Guidance on Small Business Loan Program: Well-Financed Borrowers Need Not Apply

    April 23, 2020

    The Treasury Department released new guidance on April 23, 2020 regarding the Paycheck Protection Program (PPP) in an effort to curtail the fallout from news that publicly traded companies and financially secure universities obtained millions of dollars from the program meant to provide a financial lifeline to struggling small businesses.

  • COVID-19 Response: CARES Act Borrowers Beware - The Past is Prologue

    April 23, 2020

    With more than $349 billion distributed in the Small Business Administration (SBA) Paycheck Protection Program (PPP) (and more being appropriated this week), plus $1 trillion to be allocated in Federal Reserves Main Street Lending funds under Title IV of the CARES Act, the stage is set for both mistakes and fraud.

  • Louisiana Supreme Court Concludes Collateral Source Rule Does Not Apply to Medical Expenses Written Off Under Workers’ Compensation

    April 23, 2020

    In Simmons v. Cornerstone Invs., LLC, 282 So.3d 199 (La. 2019), the Louisiana Supreme Court evaluated whether the lower courts had erred in prohibiting a plaintiff from introducing the full amount of medical expenses billed as well as limited evidence of the amount actually paid by the employer through workers’ compensation.

  • COVID-19 Response: Illinois Business Coalition Files Suit Against State's WC Commission Over Emergency Amendment

    April 23, 2020

    On April 22, 2020, a coalition of Illinois businesses, including the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association, filed suit in Sangamon County alleging that the Illinois Workers' Compensation Commission (IWCC) exceeded its rule-making authority when it passed an Emergency Amendment stating that workers in essential categories who become ill with COVID-19 are presumed to have contracted the virus in the workplace, thus making them eligible for workers’ compensation benefits.

  • After-Acquired Evidence Can Bar Liability Entirely in ADA Cases

    April 22, 2020

    The after-acquired evidence doctrine is an affirmative defense in employment litigation that employers can assert and prove at trial. In a recent decision, the Ninth Circuit tweaked this rule as it pertains to disability discrimination claims under the Americans with Disabilities Act (ADA), permitting a complete bar to liability in certain circumstances.

  • No Rest For The Weary – New Jersey Appellate Division Abrogates the Ongoing Storm Rule

    April 22, 2020

    A recent decision by New Jersey’s Appellate Division has expanded the duties of a commercial landowner to remediate a weather-related, dangerous condition. In doing so, the opinion, written by the Presiding Judge, dismantled what it deemed to be misplaced reliance on nearly 100 years of jurisprudence.

  • COVID-19 Response: Pennsylvania Businesses That Are Permitted to Maintain In-Person Operations During the COVID-19 Pandemic Must Comply with Additional Protocols

    April 21, 2020

    In a further attempt to stem the spread of COVID-19, Pennsylvania now requires those businesses that are considered life-sustaining and therefore permitted to continue operating - other than healthcare providers - to follow additional social distancing, mitigation, and cleaning protocols.

  • Environmental Protection Agency and Army Corps Finalize Clean Water Rule

    April 21, 2020

    On April 21, 2020, the Environmental Protection Agency and U.S. Army Corps of Engineers finalized the Navigable Waters Protection Rule, which defines “Waters of the United States," effective June 22, 2020.

  • COVID-19 Response: Safety Measures Briefing - Taking Employees’ Temperatures, Part I

    April 14, 2020

    In “ordinary” times, employers should tread carefully when taking employees’ temperatures. While a seemingly simple step to ensure workplace safety during the COVID-19 epidemic, there are numerous potential legal implications associated not only with the act of measuring body temperature, but also with regard to how this information is documented, stored, used, disseminated, and ultimately, destroyed.

  • COVID-19 Response: Key Funding Provisions for Healthcare Providers in the Coronavirus Response

    April 14, 2020

    Now that the Coronavirus Aid, Relief, and Economic Security (CARES) Act and other related provisions have been signed into law, there are significant questions from many healthcare providers on what funding they are eligible for and how to get that money flowing.

  • Illinois Appellate Court Expands Duty of Ordinary Care to Cover “Frequent Trespassers”

    April 13, 2020

    The First District Appellate Court (Chicago) in Epple v. LQ Management, LLC (2019 ILL App 180853) overruled a Cook County trial court’s decision granting summary judgment for a national hotel chain.

  • COVID-19 Response: The Federal Reserve and Treasury Announce $1.1 Trillion in COVID-19 Relief Loan Programs for Small & Mid-Size Businesses, and States & Municipalities

    April 10, 2020

    The Federal Reserve and the Department of the Treasury announced two new loan programs on April 9, 2020, under the spending authority granted by the CARES Act. First, the Main Street Lending Program (MSLP), which has two variations, will facilitate loans to small and mid-size businesses by providing up to $600 billion in funding.

  • COVID-19 Response: Tips for Effective "Virtual" Mediations

    April 09, 2020

    Faced with obstacles such as social distancing and stay-at-home orders, normal litigation tasks, such as mediation, are either not being considered, or pushed off indefinitely. However, for certain cases, parties and their counsel should give consideration to conducting a mediation “virtually” through the use of technology.

  • An Update on NYS Courts from Lewis Brisbois' New York Trial & Appellate Team

    April 09, 2020

    On April 6, 2020, Chief Judge Janet DiFiore announced a plan to expand remote operations currently in place for essential court matters to the court system's non-essential cases, in a video posted on the New York State Court of Appeals' website.

  • SEC Confirms Regulation Best Interest Deadline Remains in Place

    April 06, 2020

    On April 2, 2020, Securities and Exchange Commission (SEC) Chairman Jay Clayton issued a statement that the June 30, 2020 compliance deadline for Regulation Best Interest (Reg BI) remains in place. The statement further indicated that the SEC would not grant industrywide extensions. 

  • COVID-19 Response: CARES Act Paycheck Protection Program for Small Business Loans - Slightly New Guidance on the Affiliation Rules

    April 06, 2020

    As small business borrowers and their counsel scramble to understand the rules governing eligibility for the low interest small business loans in the CARES Act, questions on how the “affiliation rules” will apply have come up over and over again.

  • COVID-19 Response: CARES Act Paycheck Protection Program for Small Business Loans - New Guidance for Key Provisions

    April 03, 2020

    Rules of the road for the $349 billion loan program continue to change as small business borrowers eager for 1.0% loans with significant forgiveness potential began submitting loan applications on April 3, 2020. 

  • COVID-19 Response: Pennsylvania Amends Unemployment Compensation Law in Response to COVID-19 Pandemic

    April 03, 2020

    In response to the economic impact caused by the COVID-19 pandemic, including the closing of businesses across Pennsylvania, Governor Wolf signed a bill amending Pennsylvania’s Unemployment Compensation Law to make it easier for employees affected by the pandemic to apply for and receive unemployment benefits.

  • COVID-19 Response: New York - Limiting Construction Risk from the COVID-19 Outbreak Through Force Majeure Clauses

    April 03, 2020

    Many in the construction industry are concerned about the widespread effects of COVID-19 as it relates to fulfilling their contractual duties and obligations.

  • COVID-19 Response: What New Jersey Employers Need to Know About Coronavirus-Era Operations

    April 02, 2020

    In the short time since the pandemic arrived, and as we have been reporting, the federal government and the states have adopted a variety of new statutes, regulations, and guidance with which employers must become conversant. This alert focuses on key new developments for New Jersey employers.

  • COVID-19 Response: Obtaining Injunctive Relief During the Coronavirus Pandemic - Challenging But Not Impossible

    April 02, 2020

    With the courts around the country cancelling jury trials and issuing special or emergency orders that severely limit in-person hearings during this time of the “social distancing” and shelter-at-home orders, many businesses are worried that if they need to obtain injunctive relief, they may not be able to get it. 

  • COVID-19 Response: State of Washington Office of Insurance Commissioner Issues “Special Data Call” to All Authorized Commercial Property and Casualty Insurers

    April 01, 2020

    On March 25, 2020, the State of Washington Office of Insurance Commission issued a letter to all authorized property and casualty insurers titled “Special Data Call Relating to Business Interruption and Related Commercial Coverage Written in Washington State.”

  • COVID-19 Response: The Potential Application of Force Majeure, Frustration of Purpose, and Impossibility of Performance Defenses to Retail Leases

    April 01, 2020

    As a result of the COVID-19 outbreak, commercial landlords and tenants find themselves in an unprecedented situation fraught with uncertainty. Government mandated business closures and wide spread shelter in place orders have caused substantial disruptions to both the economy and the way we live.

  • COVID-19 Response: Coloradans to Stay at Home in Response to COVID-19

    March 31, 2020

    On March 25, 2020, Governor Polis issued Executive Order D 2020-017, ordering Coloradans to stay at home due to the presence of COVID-19 in the State.

  • COVID-19 Response: Tax Update - Using CARES to Conserve or Generate Cash, and Other Changes to Federal Tax Law

    March 31, 2020

    Signed into law by President Trump on March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (CARES) (Public law No. 116-36) amends numerous provisions of federal tax law affecting both businesses and individuals. Many of the changes aim to help taxpayers conserve or generate cash, either prospectively or by amending prior years’ tax returns. 

  • COVID-19 Response: The PREP Act and Liability Immunity During the Coronavirus Outbreak

    March 30, 2020

    The Public Readiness and Emergency Preparedness (PREP) Act authorizes the Secretary of Health and Human Services (HHS) to issue a declaration to provide liability immunity to certain individuals and entities against any claim of loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures, except for claims involving “willful misconduct.”

  • COVID-19 Response: SEC Extends Conditional Exemptions From Reporting and Proxy Delivery Requirements for Public Companies, Funds, and Investment Advisers Affected by Coronavirus

    March 30, 2020

    On March 25, 2020, the Securities and Exchange Commission (SEC) issued Order (Release No. 34-88465) extending the filing periods and proxy delivery requirements covered by its previous Order issued on March 4, 2020, due to the coronavirus, or COVID-19.

  • COVID-19 Response: CARES Act Provides Immediate Lifeline for Small Businesses

    March 27, 2020

    Passed by the United States Senate on March 25 and the House of Representatives on March 27, the Coronavirus Aid, Relief and Economic Security Act, or CARES Act, H.R. 748, provides approximately $2 trillion in federal relief for individuals and businesses coping with the COVID-19 pandemic.

  • COVID-19 Response: The Latest Development for New York Employers - New Sick Leave Law & State Executive Orders

    March 27, 2020

    On March 18, 2020, New York Governor Andrew Cuomo signed a new law to provide New York State employees job-protected leave and benefits during precautionary or mandatory quarantine or isolation due to COVID-19.

  • COVID-19 Response: Essential Business Operations: a High-Stakes Question Under Proliferating “Stay at Home” Orders

    March 27, 2020

    An ever-expanding number of states and local government authorities are issuing “shelter in place” or “stay at home” orders that restrict the movement of employees of non-essential businesses. 

  • California Supreme Court Holds Employees Who Settle & Dismiss Their Individual Claims Do Not Lose Standing to Pursue Claims Under PAGA

    March 26, 2020

    In Kim v. Reins International California, Inc. the California Supreme Court held employees do not lose standing to pursue a claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) if they settle and dismiss their individual claims for Labor Code violations.

  • COVID-19 Response: Shelter-in-Place and Non-Essential Business Closure Orders – What Employers Need to Know Now, Part II

    March 25, 2020

    The evolving response to COVID-19 brings daily legal and public health developments. Businesses, already struggling under immense economic pressures, now face new and unprecedented questions regarding how Shelter-in-Place (or Stay-at-Home) and Non-Essential Business Closure Orders (Orders) will impact their operations and workforces. Part II reviews the leave management, furlough, and lay-off considerations facing employers, particularly in light of new federal leave requirements under the federal Families First Coronavirus Response Act (FFCRA).

  • COVID-19 Response: Shelter-in-Place and Non-Essential Business Closure Orders – What Employers Need to Know Now, Part I

    March 25, 2020

    On March 19, 2020, shortly after several California counties issued “shelter-in-place” orders, California Governor Newsom issued an Executive Order that, effective immediately, required all California residents to comply with the state Department of Public Health order requiring all residents to stay at home in an effort to slow or reduce the spread of the novel coronavirus (COVID-19). Since then, over 21 states and numerous other local jurisdictions have issued similar orders which restrict the movement of residents and/or close public or in-person operations of non-essential businesses.

  • “But For” vs. “Motivating” - Now Two Similar Anti-Discrimination Laws Have Different Proofs of Causation

    March 25, 2020

    On March 23, 2020, the Supreme Court (Court) issued its opinion regarding the case, Comcast Corporation v. National Association of African American-Owned Media. Justice Gorsuch delivered the opinion of the Court.

  • COVID-19 Response: Closings or Layoffs in Response to Coronavirus May Trigger the Federal WARN Act Notice Requirement

    March 25, 2020

    As the novel coronavirus (COVID-19) continues to spread, requiring businesses to close their offices and locations, employers must determine whether the elimination of jobs and facilities trigger notice requirements under the Federal Worker Adjustment and Retraining Notification (WARN) Act.

  • COVID-19 Response: Oregon Issues “Stay Home, Save Lives” Order Closing Many Businesses

    March 24, 2020

    On March 23, 2020, Oregon’s Governor issued a "Stay Home, Save Lives" order, which closes much business, but allows others to continue operations if they take certain steps. This alert answers to some of the most fundamental questions about the impact of the order on business operations within Oregon.

  • United States Supreme Court Declines To Extend the Bivens Doctrine

    March 24, 2020

    In Bivens v. Six Unknown Fed. Narcotics Agents, the United States Supreme Court allowed for the creation of a private cause of action for damages arising from violations of the Fourth Amendment to the United States Constitution. This was novel because there was neither a statute nor provision in the Constitution for a cause of action for damages.

  • COVID-19 Response: Tax Update - IRS Filing & Payment Deadlines Postponed Until July 15

    March 23, 2020

    Reversing a distinction previously made, the Internal Revenue Service (IRS) on March 21 postponed until July 15 deadlines for both paying and filing federal income taxes normally due April 15. The postponed deadlines cover only federal income tax.

  • FDIC Proposes Roadmap for Fintechs to Become Insured Banks

    March 23, 2020

    The term “fintech” is used to describe the application of new technology to improve the delivery and use of financial services and products in a more cost-effective way than is available in the traditional financial marketplace.

  • COVID-19 Response: The EEOC Chimes In Concerning How to Navigate the Americans with Disabilities Act in a Pandemic Context

    March 23, 2020

    The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcement of the employment discrimination laws. The Commission has issued two publications to assist employers and employees in interpreting the Americans with Disabilities Act (ADA) in the context of  dealing with pandemics.

  • COVID-19 Response: Temporary Suspension of Cal-WARN Act 60-Day Advance Notice Requirement Amid COVID-19 Crisis

    March 23, 2020

    On March 17, 2020, California Governor Gavin Newsom signed Executive Order N-31-20, which temporarily suspends Cal-WARN’s 60-day notice requirement for covered employers conducting mass layoffs, plant closures or terminations during this emergency crisis.

  • Texas Supreme Court Shuts Down Policy Language Exception to Eight-Corners Rule

    March 23, 2020

    On March 20, 2020, the Texas Supreme Court issued its greatly anticipated decision in Richards v. State Farm Lloyds, the case that examined whether an exception to the eight-corners rule existed. As most insurance practitioners expected, the answer was a resounding “No.”

  • COVID-19 Response: Important Updates for the Healthcare Industry: Long-Term/ Skilled Nursing Care, Healthcare Providers, and Dialysis Centers

    March 23, 2020

    Recently, the federal Centers for Medical & Medicaid Services (CMS) and Center for Disease Control and Prevention (CDC) announced new guidance to further protect those working in nursing homes, long-term care facilities, dialysis centers, and other healthcare facilities, in light of the coronavirus pandemic.

  • COVID-19 Response: Federal Aid Package Presents Opportunities for American Businesses Impacted by Coronavirus

    March 20, 2020

    The ongoing coronavirus (COVID-19) crisis is precipitating an unprecedented federal response as Congress and the Administration grapple with how to address the economic downturn resulting from efforts to contain the spread of the virus. Numerous industries have been adversely affected, with even stronger impacts on small businesses. In response, Congress and the Executive Branch are negotiating a large financial stimulus package to ease the economic pain.

  • COVID-19 Response: OSHA and the Coronavirus

    March 20, 2020

    In response to possible exposure to COVID-19, the United States Occupational Safety and Health Administration (OSHA) recently issued guidance for employers on how to handle the COVID-19 pandemic. OSHA’s guidelines rely in large part on previously issued guidance from the Center for Disease Control .

  • COVID-19 Response: The Families First Coronavirus Response Act Passes, Creating Significant New Rights to Paid Employee Leave

    March 20, 2020

    The Families First Coronavirus Response Act was approved by the U.S. Senate and signed by President Trump on March 18, 2020. The Act requires that covered employers grant up to 12 weeks of emergency family medical leave and 80 hours of sick leave to employees impacted by the coronavirus.

  • COVID-19 Response: HHS Announces Telehealth Expansion Measures in Response to Pandemic

    March 19, 2020

    In response to the COVID-19 emergency, the U.S. Department of Health & Human Services (HHS) has advised of certain measures that it is taking in the area of telehealth so that providers and patients may connect with ease. 

  • COVID-19 Response: U.S. Department of Labor Issues FAQs Regarding the FLSA and FMLA During Public Health Emergencies

    March 18, 2020

    The United States Department of Labor has issued frequently asked questions for coronavirus-related workplace issues under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). We discuss some of the key points for employers to be mindful of in this difficult time. 

  • COVID-19 Response: New Jersey Assembly Passes Legislature Regarding COVID-19 and Business Interruption Claims

    March 18, 2020

    As a follow up to our prior alert, the New Jersey Assembly has passed 29 measures intended to protect New Jersey residents, small businesses, and local governments during the coronavirus crisis. The State Senate would need to pass the bills and Governor Murphy would have to sign them before they become law. 

  • COVID-19 Response: Environmental Compliance Worries in the Time of Coronavirus

    March 18, 2020

    Earlier this week, a rumor made the rounds that a forthcoming Presidential Executive Order would impose a nationwide mandate that all employees work remotely. While the rumor proved baseless, it raised questions about manufacturers’ abilities to comply with environmental permit obligations in the event of a COVID-19 precipitated operational shutdown due to federal or state mandates or workforce depletion resulting from widespread illness.

  • COVID-19 Response: Tax Implications

    March 17, 2020

    Congress and the Trump Administration have been moving swiftly to provide income tax relief to workers coping with the COVID-19 outbreak. It is a quickly moving target – here's what we now know.

  • COVID-19 Response: The Families First Coronavirus Response Act Creates Significant New Rights to Paid Employee Leave

    March 16, 2020

    The Families First Coronavirus Response Act was approved by the U.S. House or Representatives on March 13, 2020 (the Act). The Act would require that covered employers grant up to 12 weeks of emergency family medical leave and 80 hours of sick leave to employees impacted by the coronavirus. 

  • COVID-19 Response: New Jersey Legislature Considering Bill Regarding COVID-19 Business Interruption Claims Expressly Excluded by ISO "Virus" Exclusion

    March 15, 2020

    As a follow up to our earlier alert regarding the March 10, 2020 “Call for Special Report” letter issued by the New York State Department of Financial Services, it has been reported that the New Jersey legislature will begin discussion on March 16, 2020 of a draft bill that will force insurers to pay COVID-19 business interruption claims expressly excluded by ISO’s “Virus” exclusion.

  • COVID-19 Response: Antitrust Considerations for Competitor Collaboration in the Face of Disruptions Caused by the Coronavirus Outbreak

    March 13, 2020

    With worldwide supply chains disrupted because of the COVID-19 global pandemic, companies facing significant effects on demand as well as input supply shortages should consider whether an industry-wide response is available. While collective efforts among competitors must proceed carefully to address and minimize antitrust risk, these approaches can produce efficiencies and meet important public health and societal needs.

  • COVID-19 Response: NYDFS Issues Call for Special Report on Interrupted Business Coverage from All Authorized Commercial Property & Casualty Insurers

    March 12, 2020

    New York's Department of Financial Services (DFS) issued a letter on March 10, 2020, titled "Call for Special Report Pursuant to Section 308, New York Insurance Law: Business Interruption and Related Coverage Written in New York." This letter instructs each authorized property/casualty insurer to provide certain information regarding the commercial property insurance it has written in New York and details on the business interruption coverage provided in the types of policies for which it has ongoing exposure. 

  • COVID-19 Response: A Quick Guide for Oregon Employers

    March 11, 2020

    There are many questions brewing about the impact of coronavirus/COVID-19 on employers. Below, we address a few (of the many) frequently asked questions by Oregon employers regarding COVID-19-related attendance issues:

  • COVID-19 Response: Federal Regulators Issue Pandemic Preparation Guidance to Banks

    March 11, 2020

    Illustrating another impact of the COVID-19 outbreak, on March 6, 2020, the Federal Financial Institutions Examination Council (FFIEC), an interagency council of federal financial regulators, issued a guidance document advising banks how to minimize a pandemic’s potential adverse effects on financial institutions.

  • WARNING! New Jersey Radically Expands WARN Act

    March 11, 2020

    On January 21, 2020, New Jersey Governor Philip Murphy signed widespread amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act (the NJ-WARN Act) into law that go into effect July 19, 2020. The most important and widely remarked-upon change is that, in certain instances, employers must pay severance of one week’s pay for every full year of employment. 

  • COVID-19 Response: Key Legal Considerations for Event Cancellations

    March 10, 2020

    Every passing day brings stark new reports of novel coronavirus (COVID-19) cases and increasing numbers of cancelled conventions, concerts, and other major events. Both the hospitality and travel industry on the one hand, and organizations that are canceling events on the other, are scrambling to understand the legal consequences of these costly terminations. 

  • COVID-19 Response: CMS Issues Memo Regarding Spread of Coronavirus in Nursing Homes

    March 05, 2020

    On March 4, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a memo to State Survey Agency Directors regarding the spread of coronavirus (COVID-19) in nursing homes.

  • Proposed Illinois Law Would Ban Intrastate Forum Non Conveniens, Likely Increasing Forum Shopping

    February 28, 2020

    On February 13, 2020, Madison County, Illinois-area representative Jay Hoffman (D-Belleville) sponsored House Bill 5044, which would abolish the doctrine of intrastate forum non conveniens.

  • California Supreme Court Holds Employees Must Be Compensated for Mandatory Exit Searches

    February 26, 2020

    Last week, in Frlekin v. Apple Inc., the California Supreme Court held that employees must be compensated for employer-mandated exit searches of packages, bags, and personal technology devices. In arriving at this conclusion, the Court developed a new four-factor test to be used when analyzing on-site, employer-controlled activities.

  • Not So Fast: Uber and Postmates’ Request for Preliminary Injunction to Block California’s New Independent Contractor Law Is Denied

    February 26, 2020

    On February 10, 2020, the Central District of California denied a request for preliminary injunction filed by Uber and Postmates to block enforcement of California Assembly Bill 5 (AB 5). AB 5, which took effect on January 1, 2020, is a controversial bill that makes it harder for workers to be classified as independent contractors.

  • Pennsylvania Supreme Court: Fair Share Act Does Not Preempt Common Law When Apportioning Liability

    February 25, 2020

    On February 19, 2020, the Pennsylvania Supreme Court issued a long awaited opinion in the matter of Roverano v. John Crane, Inc., No. 26 EAP 2018, No. 27 EAP 2018 (Pa. 2020). The Court’s opinion is a must-read for anyone involved in asbestos litigation in Pennsylvania.

  • Texas Supreme Court Considers Fraud Exception to Duty to Defend

    February 19, 2020

    On February 26, 2020, the Texas Supreme Court will hear an insurer’s argument that it should create an exception to Texas’ "eight corners rule" in Loya Insurance Company v. Osbaldo Hurtado Avalos et al.

  • California Expands Penalties for Late Wage Payments

    February 18, 2020

    In October 2019, Governor Gavin Newsom signed Assembly Bill 673 into law, broadening the scope of California Labor Code (Labor Code) section 210 to permit recovery of statutory penalties for late wage payments by affected employees.

  • California Court Finds Employer Violated Labor Code By Using Unregistered Acronym For Fictitious Business Name on Wage Statements

    February 12, 2020

    California’s Third Appellate District recently held that an acronym for an out-of-state fictitious business name does not comply with section 226(a)(8) of the state’s Labor Code.

  • These Shoes Aren’t Made For Walkin’: New Jersey Court Declines to Extend In Personam Jurisdiction to Internet Seller of Classic Car

    February 11, 2020

    In the first quarter of 2019, 11% of all retail sales in the United States, or more than $146 billion, were internet-based transactions. Recently, the New Jersey Appellate Division approved for publication an opinion confirming that a person-to-person transaction over the internet will not automatically confer personal jurisdiction on the seller when the buyer is a New Jersey resident.

  • California Federal Judge Grants Preliminary Injunction, Preserving Employers’ Right to Use Mandatory Arbitration Agreements

    February 11, 2020

    As previously reported, on December 29, 2019, Judge Kimberly Mueller of the United States District Court for the Eastern District of California granted a temporary restraining order preventing the enforcement of AB 51, which was set to go into effect on January 1, 2020. 

  • Colorado 2019 Labor & Employment Law Updates

    February 10, 2020

    2019 was an active year for Colorado labor law, with the legislature and courts making many changes that will impact employers in the state. This alert is a brief summary of those changes along with some new items to watch for as we head into 2020, so that employers can start the new year off on the right foot.

  • FTC Announces 2020 HSR Filing Thresholds & Interlocking Directorates Thresholds

    February 10, 2020

    The Federal Trade Commission (FTC) recently announced the annual revisions to the jurisdictional thresholds applicable to the Hart Scott Rodino Antitrust Improvements Act of 1976 (HSR Act) pre-merger notification program and to Section 8 of the Clayton Act which prohibits certain interlocking directorates.

  • In California, the New Year Brings New Minimum Wage Requirements

    February 06, 2020

    The State of California has a history of increasing its minimum wage, with wage increases occurring at the start of both 2019 and 2018. This new year is no different, with California again increasing its state minimum wage at the start of 2020. 

  • New Jersey Supreme Court Declines to Hold Landlord Responsible for Property Over Which Tenant Maintained Control

    February 03, 2020

    A recent case decided by the New Jersey Supreme Court draws a significant line between what care and service of property, and the resulting liability therefrom, can and cannot be delegated by a landlord. While it represents a departure from historic notions of a landlord’s duty, the Court was not willing to completely separate from prior rulings, running the analysis under the existing framework as well.

  • Southern District of Texas Holds Professional Services Exclusion Applies to Preclude Duty to Defend

    February 03, 2020

    In Project Surveillance, Inc. v. Travelers Indemnity Company, No. 4:19-CV-03324, 2020 WL 292247 (S.D. Tex. Jan. 21, 2020), the court held that the professional services exclusion in the insured’s commercial general liability policy precluded Travelers’ duty to defend. 

  • California Contractors, Do You Have a Backup Plan For Your License Qualifier?

    January 31, 2020

    Pursuant to California’s Contractors License Law, all license classifications must have a qualifier or qualifying individual. This alert discusses what is required if your qualifier is leaving and some possible delays you may face when replacing your qualifier.

  • Facebook Settles BIPA Class Action Suit for $550 Million

    January 30, 2020

    In a significant development in the ever-expanding universe of Illinois Biometric Information Privacy Act (BIPA) litigation, on January 29, 2020, Facebook agreed to pay $550 million to settle a BIPA class action that was filed in the Northern District of California.

  • EPA Takes Aim at 160+ PFAS Chemicals for New Reporting Requirements, Spotlights Many Potentially Affected Industries

    January 27, 2020

    On December 4, 2019, the Environmental Protection Agency published an Advance Notice of Proposed Rulemaking that seeks comments on which of the approximately 600 per- and polyfluorinated chemical substances (PFAS) currently active in U.S. commerce should be added to environmental reporting requirements under the Toxics Release Inventory. 

  • 2019 False Claims Numbers Show Healthcare Remains High Priority for DOJ Civil Division

    January 23, 2020

    The numbers are in – the Department of Justice (DOJ) recently published its annual breakdown of false claims litigation undertaken by its Civil Division. The report show new matters filed by year, the DOJ's recoveries through judgments and settlements, and the share of the recoveries by relators in qui tam litigation. For healthcare providers, here are some quick takeaways.

  • California Contractors – You Should Know That Section 7141.5 May Be Your Golden Ticket

    January 22, 2020

    Under California’s Contractors’ State License Law, Cal. Bus. & Prof. Code §§ 7000 et seq., all contractors’ and subcontractors’ licenses expire two years from the last day of the month in which the license issued, or two years from the date on which the renewed license last expired.

  • Billion-Dollar Trial Given Greenlight After Facebook Loses in Supreme Court on Illinois BIPA Statute

    January 22, 2020

    On January 21, 2020, the U.S. Supreme Court denied Facebook’s petition for a writ of certiorari to review whether a group of potentially millions of Facebook users have constitutional standing to pursue claims brought under the Illinois Biometric Information Privacy Act (BIPA) for alleged violations of the statute’s notice and consent mandates.

  • Things are About to Change, What this Means for a California Contractor’s License

    January 21, 2020

    If you are contemplating purchasing or selling a business entity that is a licensed California contractor or even simply changing the type of business entity under which you operate as a licensed California contractor, you must carefully consider and understand the implications and consequences.

  • Administration Proposal to Overhaul Environmental Review Under the National Environmental Policy Act Creates New Opportunities for Project Development

    January 15, 2020

    On January 10, 2020, the Council on Environmental Quality (CEQ) published a notice of proposed rulemaking to update regulations for implementing the National Environmental Policy Act (NEPA).

  • Southeast Employment Law Update

    January 13, 2020

    A review of recent major labor and employment law developments in Alabama, Florida, and Tennessee.

  • The 9-1-1 for California Contractors on Personnel of Record With the CSLB

    January 10, 2020

    California’s Contractors’ State License Law, Cal. Bus. & Prof. Code §§ 7000 et seq., requires licensees to provide various pieces of information to the Contractors State License Board (CSLB) both in the application for an original contractors license and “within 90 days” of a triggering event. 

  • Kentucky & Ohio Supreme Courts Address Police, Government Liability for Damage Caused During Vehicle Pursuits

    January 08, 2020

    Two recent decisions, one from the Supreme Court of Kentucky and the other from the Supreme Court of Ohio, addressed the issue of liability for police officers and political subdivisions, respectively, following claims that arose from motor vehicle accidents caused during suspect vehicle pursuits. The two courts took opposing views, with one expanding liability and the other limiting it. This alert provides a summary of these cases.

  • 2019 Missouri, Kansas, and Oklahoma Employment Law Year End Review

    January 07, 2020

    Missouri legislators were silent on employment and labor law in 2019, neither presenting nor enacting any legislation in the area. The Missouri Supreme Court, on the other hand, actively handed down rulings in labor and employment.

  • New York Trial Partner Successfully Defends Damages-Only Trial Involving Cervical Fusion, Limiting Award to Only $148,000

    January 06, 2020

    New York Partner Alecia Walters-Hinds obtained a very favorable verdict after a two-week damages-only trial in Queens Supreme, limiting a potential multimillion-dollar verdict to a jury award of less than $150,000.

  • Court Grants Temporary Restraining Order Preventing Enforcement of AB 51

    January 03, 2020

    In October, we reported on California’s passage of AB 51, a law which prohibits mandatory arbitration agreements for nearly all types of employment law claims.

  • Continued PFAS Action Likely in 2020

    January 03, 2020

    Action on per- and polyfluoroalkyl (PFAS) substances continued until the last days of 2019 and shows no chance of slowing in 2020. Congress vigorously debated federal regulation of PFAS compounds throughout 2019 and at year’s end agreed on a major PFAS-related compromise in must-pass defense legislation.

  • 2019 Pennsylvania Employment Law Review

    January 02, 2020

    As employers are aware, the FLSA requires the payment of a minimum wage for all hours worked and overtime for hours worked in excess of 40 hours per week. Pursuant to the FLSA, employers may utilize the fluctuating workweek method to calculate overtime compensation when a non-exempt employee receives a fixed weekly salary but works hours that varies from week to week.

  • 2019 Illinois, Indiana, Michigan, and Wisconsin Employment Year in Review

    December 26, 2019

    A review of the most important labor and employment law updates of the past year from Illinois, Indiana, Michigan, and Wisconsin.

  • Washington Employment Law Review For 2019

    December 20, 2019

    As we all get ready to relax and spend time with our family and friends to celebrate the holidays and the coming of a new year, it is a good time to look back at the changes in Washington law that have occurred over the past year, and the changing landscape that Washington employers will face in the next decade. 

  • California Enacts Statutes Which Will Make Discovery More Costly

    December 19, 2019

    Beginning in 2020, two new California statutes, signed into law by Governor Gavin Newsom earlier this year, will increase the cost and burden of discovery on litigants and their attorneys, particularly business entity defendants.

  • Interest in Critical Minerals Grows as Federal Government Seeks to Counter Reliance on Foreign Imports

    December 11, 2019

    For some time, the Administration and Congress have expressed concern about U.S. overreliance on foreign sourcing for critical, or strategic, minerals that are essential to U.S. defense and technology production.

  • New York Trial Team Obtains Defense Verdict in Multimillion-Dollar Sidewalk Trip & Fall

    December 10, 2019

    New York Trial Partner Joelle T. Jensen obtained a defense verdict on December 5, 2019, ending a two-week jury trial held in Manhattan’s Supreme Court, New York County.

  • Lewis Brisbois New York Team Settles TBI Case for $15K in Wake of Favorable Kings County Ruling

    December 06, 2019

    New York Partners Nicholas P. Hurzeler and Sheryl S. Fyffe recently settled a traumatic brain injury (TBI) case for $15,000, following the filing of a notice of appeal by plaintiff’s counsel in a matter where plaintiff’s counsel demanded $7.5 million throughout the litigation

  • California Court of Appeal Holds Service Charges May Be Considered Gratuity

    December 06, 2019

    Last month, in O’Grady v. Merchant Exchange Productions, Inc., the California Court of Appeal held that a mandatory “service charge” may be considered a “gratuity” for purposes of Labor Code section 351.

  • A Guide to Holiday Gift Giving & Receiving in the Healthcare Industry

    December 05, 2019

    It's that time of year again when we show our appreciation for those who have contributed to our success in the past year, but those in the healthcare industry must be extremely careful when making gifts to referral sources, or even receiving gifts from vendors and others.

  • Washington Supreme Court Expands Scope of Consumer Protection Act

    December 04, 2019

    In order to prevail in an action against an insurer for violation of the Washington Consumer Protection Act (CPA), a plaintiff must prove an unfair or deceptive act which “causes injury to the plaintiff’s business or property.”

  • New York Employment Law Update for the Holiday Season

    December 03, 2019

    One might quip that the season of giving is in full swing in Albany and New York City based on their year-end enactments of new laws protecting employees, but the reality is that we have seen similar significant changes throughout 2019 at both the State and City levels.

  • Updates to Kings & Bronx County Supreme Court ADR Processes

    November 26, 2019

    The Kings County and Bronx County Supreme Courts have recently implemented formalized early alternative dispute resolution (ADR) for civil cases. This alert reviews the upcoming changes in Kings Supreme, and the changes in Bronx Supreme from this past September.

  • Implementing Executive Orders on Agency Guidance: What Businesses Should Know

    November 26, 2019

    On October 31, 2019, the Office of Management and Budget, Office of Information and Regulatory Affairs (OIRA), published a memorandum (the OIRA memo) instructing the regulatory agencies on how to implement an October 9, 2019 Executive Order, EO 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.”

  • Common Billing Patterns Resulting in a False Claims Act Investigation & Litigation

    November 25, 2019

    Data mining allows government investigators to review a healthcare provider over time and relative to healthcare providers across the local, state, and regional levels. Though not necessarily indicative of fraud, a healthcare provider whose billing practice suggests one of the following trends is very likely to be investigated.

  • PFAS in Foods: Another Dimension to the Issue

    November 22, 2019

    Multiple federal agencies have recently taken steps to assess and regulate per- and poly-fluoroalkyl substances (PFAS), based on evolving science and concerns about potential human health and environmental impacts from historic or future releases of PFAS chemicals.

  • Massachusetts AG Announces Landmark Settlement with “Gig” Economy Company

    November 21, 2019

    Massachusetts Attorney General Maura Healy recently announced that her office has reached a “landmark settlement” with a Boston-based “gig” economy company.

  • 2019 California Labor & Employment Law Updates

    November 19, 2019

    The 2019 California legislative session was another busy year with numerous employment-related bill signed into law. Notably, the legislature enacted many statutes to combat sexual harassment in both the public and private sectors.

  • FTC to Hold Hearings on the Antitrust and Consumer Protection Impact of Employee Non-Competes

    November 13, 2019

    The Federal Trade Commission (FTC) will hold a workshop to examine the antitrust and consumer protection effects of employee non-competes on labor markets. Of particular interest, whether such restrictions inhibit job mobility and, by implication, depress wages and innovation.

  • Environmental Protection Agency Implements Major Clean Water Act Regulatory Changes

    November 12, 2019

    This alert provides an update on steps the Environmental Protection Agency (EPA) has taken under Executive Orders (EO) promoting President Trump’s deregulatory agenda.

  • Federal Action Accelerates on PFAS Regulation

    November 11, 2019

    Federal agencies and Congress are taking aggressive new steps to regulate and fund additional research on per- and poly-fluoroalkyl substances (PFAS).

  • An Early Challenge to Chicago’s Fair Workweek Ordinance

    November 07, 2019

    On November 1, 2019, the Building Owners & Managers Association of Chicago (BOMA) filed a lawsuit in federal court against the City of Chicago challenging the recently passed Chicago Fair Workweek Ordinance (the Ordinance).

  • Analysis: New Jersey’s New Aid-in-Dying Law – Implications for Physicians, Estate Planning & Malpractice Attorneys

    November 06, 2019

    The State of New Jersey recently passed the Medical Aid in Dying for the Terminally Ill Act (MAID Act), which allows a physician to assist in the suicide of a terminally ill patient following three requests to do so by the patient, one of which must be written

  • Attention Healthcare Providers: Upcoming Priorities for the HHS Office of Inspector General

    November 05, 2019

    As an attendee at the 2019 American Health Lawyer’s Association (AHLA) Conference on Fraud and Compliance earlier this year, I had the opportunity to hear directly from Joanne Chiedi, the Acting Inspector General in the Office of Inspector General at the Department of Health and Human Services (OIG/HHS).

  • California Enacts Statutes Expanding Scope of Employee Lawsuits & Restricting No-Rehire Provisions in Settlement Agreements

    October 31, 2019

    This month, Governor Newsom approved two new employee-friendly bills which extend the statute of limitation for claims under the Fair Employment and Housing Act (FEHA), and prohibit employers from including “no-rehire” provisions in settlement agreements. Below, we discuss the substance of these new laws and their effects.

  • California Attempts to Bar Mandatory Employment Arbitration Agreements

    October 25, 2019

    On October 10, 2019, California Governor Gavin Newsom signed into law AB 51, which prohibits mandatory arbitration agreements for nearly all types of employment law claims in California.

  • California Expands Its Lactation Accommodation Requirements

    October 24, 2019

    On October 10, 2019, Governor Newsom approved Senate Bill 142, thereby broadening the scope of existing accommodations for lactating employees. For some employers, this development will require considerable changes to existing policies and practices governing lactation in the workplace. 

  • The False Claims Act & Why It Matters to Healthcare Providers

    October 23, 2019

    The False Claims Act (FCA) is designed to deter abuse and fraud of government benefits or contracts by private parties. Whenever a person or company contracts to provide services to the government or government beneficiaries, the FCA imposes liability on any contractor or business that knowingly presents or causes to be presented a false or fraudulent claim for payment or approval.

  • California Consumer Privacy Act Amendments Offer Brief Reprieve to Employers

    October 22, 2019

    In the final days of the legislative session, the California Assembly passed and Governor Newsom signed into law a number of amendments to the California Consumer Privacy Act (CCPA), two of which will impact California employers and provide at least a slight reprieve from compliance with some of the more onerous aspects of the CCPA.

  • Eleventh Circuit: Expert Disagreement with Clinical Judgment of Care Provider Not Necessarily an Indication of Fraud

    October 17, 2019

    The Eleventh Circuit’s recent decision in United States v. Aseracare, Inc., No. 16-13004 (11th Cir. Sept. 9, 2019) makes clear that reasonable minds can disagree in the exercise of clinical judgment without constituting actionable fraud in medical certifications for reimbursement by Medicare.

  • New White House & Agency Initiatives on Guidance Create Opportunities for Federally Regulated Businesses

    October 17, 2019

    On October 9, 2019, the White House issued two Executive Orders (EOs) that clarify how federal agencies can use guidance documents. These new presidential directives follow the release of new policies issued on August 6 by the Environmental Protection Agency’s Assistant Administrator for the Office of Water that also take aim at informal or draft policy documents.

  • In California, Meal and Rest Period Premiums Can Be Paid as Straight Time Wages, at Least for Now

    October 11, 2019

    In California, all non-exempt employees are generally allowed to take an uninterrupted thirty minute meal period and two rest periods during an eight hour shift. If an employee is unable to take a compliant meal or rest period, then California law requires the employer to pay the employee a premium of one hour’s wages at the “regular rate of compensation”. 

  • Wash. Supreme Court: Employee Claims Adjusters Cannot Be Held Individually Liable for Bad Faith, CPA Violations

    October 07, 2019

    On October 3, the Washington State Supreme Court issued a narrow victory to insurers with its 5-4 decision in In Keodalah v. Allstate Ins. Co. and Tracey Smith, 95867-0 (Wn. App. 2018), holding that employee claims adjusters cannot be held individually liable for bad faith or violations of Washington’s Consumer Protection Act.

  • Real Renter’s Insurance: The Graves Amendment & Rental Vehicle Liability

    September 30, 2019

    If a company is merely a leasing service for any type of vehicle, it typically cannot be held personally liable for accidents caused by the renters of such vehicles. This is because, on August 10, 2005, President Bush signed into law the “Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2005,” colloquially referred to as the Graves Amendment.

  • Labor Department Approves a New Final Rule Altering FLSA Exempt Status, Extending Overtime Eligibility

    September 25, 2019

    On September 24, 2019, the United States Department of Labor’s Wage and Hour Division issued its long awaited Final Rule modifying the regulations contained in 29 C.F.R. Part 541, which pertains to the “white collar” exemptions to the Fair Labor Standards Act.

  • Appellate Decision May Lead to More Unified Trials Across New York’s Second Department

    September 23, 2019

    A recent appellate decision in Castro v. Malia Realty may lead to more unified trials in New York’s Second Department, a large venue that encompasses Brooklyn, Queens, Long Island, Staten Island, and several Upstate New York counties. 

  • Codifying Dynamex, California Dramatically Alters Employee v. Independent Contractor Classification Standard

    September 20, 2019

    California recently enacted Assembly Bill 5, which dramatically alters the legal standard for evaluating whether a worker is an employee or an independent contractor.

  • Why Every Healthcare Provider Should Be Concerned About Potential Healthcare Fraud Allegations

    September 18, 2019

    Recent trends show that federal and state governments and the private insurance industry are all very concerned about the reduction of healthcare fraud, abuse, and waste, and are engaged in aggressive enforcement actions against healthcare providers alleged to have engaged in fraudulent activities.

  • New York Appellate Court Upholds Only $250K for Cervical Fusion Pain and Suffering Award

    September 13, 2019

    In Chung v. Shaw, 2019 NY Slip Op 06468 (2d Dept. 2019), decided on September 11, 2019, New York’s Appellate Division, Second Department, increased a jury award for past and future pain and suffering from $25,000 to $250,000. The total pain and suffering award is notably low for a fusion surgery in New York appellate jurisprudence on the question of sustainable “reasonable compensation.”

  • New York Court of Appeals: Defendants Can Now Obtain Medical Records for Injuries Not Alleged in Bill of Particulars

    September 12, 2019

    We are pleased to report a significant Court of Appeals decision on the scope of the physician-patient privilege in New York that we anticipate will impact discovery disputes and cross-examination at trial going forward. This successful appeal was handled by New York Trial & Appellate Partners Nicholas P. Hurzeler and Sydney S. Sanchez.

  • California Delays Expanded Sexual Harassment Training Requirement to January 1, 2021

    September 11, 2019

    It’s not often that we get to advise on reasonable compliance developments out of California. So, we are happy to report that on August 30, 2019, Governor Newsom signed Senate Bill 778 into law which delays the expanded sexual harassment training requirements applicable to employers with five or more employees in California.

  • Hurricane Guidance for Employers: Wage and Hour Considerations

    August 30, 2019

    As hurricane season begins and Florida braces for Hurricane Dorian, companies impacted by this year’s hurricanes face a host of employment law concerns, including significant challenges maintaining compliance with wage and hour laws. This alert provides general guidance about those issues under the Fair Labor Standards Act (FLSA).

  • Ninth Circuit Affirms Class Certification, Standing in Illinois Biometric Information Privacy Act Suit Against Facebook

    August 21, 2019

    A three-judge panel of the Ninth Circuit U.S. Court of Appeals has held that Illinois Facebook users may bring claims for privacy violations under state law for the use and storage of biometric information on the company’s platforms and servers. 

  • Update: New York’s Child Victims Act In Effect From Today

    August 14, 2019

    New York’s Child Victims Act (CVA) takes effect today after having been signed by Governor Cuomo on February 14, 2019. The CVA makes it much easier for childhood sexual assault survivors to file suit by, among other things, allowing victims the right to file suit against sexual assault perpetrators and their institutional employers, based upon a theory of negligence or intentional conduct.

  • Summer 2019 – Never a Dull Moment in New Jersey Employment Law

    August 13, 2019

    The weather down the shore is not the only thing heating up in the Garden State. New Jersey remains active on the legislative front with respect to laws impacting all employers active in the state. We discuss below several recent developments.

  • New York City Public Accommodations Requirements: New Entrance Ramps Requirements

    August 05, 2019

    The New York City Council has passed a bill that imposes new requirements for existing portable entrance ramps available for use by disabled persons.

  • California Court Holds that On-Duty Meal Periods Must Be At Least 30 Minutes in Length

    August 02, 2019

    On July 31, 2019, the California Court of Appeal provided much needed guidance on an exception to Industrial Welfare Commission (IWC) Wage Order 5 that allows employers to provide “on-duty” meal periods to employees.

  • Third Time’s the Charm: Maryland Bans Non-Compete Agreements for Low Wage Workers

    August 01, 2019

    Maryland has been attempting to limit the use of non-compete agreements within the state since 2016. On May 25, 2019, the Maryland legislature was finally successful in passing a bill that prohibits the use of non-compete agreements for employees who earn $15/hour or $31,200 annually or less.

  • Oregon Employers Beware: New Technical Requirements for Non-Compete Enforcement

    July 29, 2019

    On May 14, 2019, Oregon Governor Kate Brown signed House Bill (HB) 2992, amending the existing non-compete statute to now require employers to provide employees with a signed, written copy of their non-competition agreements within 30 days after the termination of employment.

  • FINRA Arbitrators Issue $3 Million Dollar Sanctions for Failure to Comply with Discovery Order

    July 26, 2019

    A three-person FINRA panel in Miami ordered Morgan Stanley Smith Barney LLC (Morgan Stanley) to pay Puerto Rico bond investors $3 million in sanctions for failure to produce documents related to the termination of a broker. 

  • Chicago Passes Fair Workweek Ordinance

    July 26, 2019

    After more than two years of negotiations, on July 24, 2019, the Chicago City Council, in a unanimous vote and with Mayor Lori Lightfoot’s support, passed the Fair Workweek Ordinance (FWO).

  • Maine Drastically Restricts the Use of Non-Compete Agreements

    July 25, 2019

    Earlier this month, Maine passed the Act to Promote Keeping Workers in Maine (the Act), banning non-compete agreements with employees who earn less than 400% of the federal poverty line ($49,960 per year for 2019).

  • New Hampshire Bans Non-Compete Agreements for Low Wage Employees

    July 22, 2019

    On July 10, 2019, the Governor of New Hampshire, Chris Sununu, signed a bill that prohibits non-competition agreements for employees who make 200% or less of the federal minimum wage, which translates to $14.50/hour.

  • California Amends FEHA, Broadens Scope of Race Discrimination Claims to Include Discrimination Based on Hairstyle

    July 19, 2019

    This month, California Governor Gavin Newsom approved an amendment to the state’s Fair Employment and Housing Act (FEHA), which significantly broadens the scope of race discrimination claims. 

  • California Court of Appeal Rules that Employers are Not Required to Reimburse Employees for Slip-Resistant Shoes

    July 16, 2019

    California Labor Code section 2802 requires an employer to reimburse employees “for all necessary expenditures” incurred by them as a direct result of the discharge of their job duties.

  • New York’s Child Victims Act Provisions Will Likely Lead To A Significant Increase In Civil Suits Arising Out Of Childhood Sexual Abuse

    July 16, 2019

    On February 14, 2019, New York State Governor Andrew Cuomo signed into law the Child Victims Act (CVA), which greatly expanded the right of childhood sexual assault survivors.

  • Obesity Is 'Always' a Disability in Washington, Washington Supreme Court Rules

    July 15, 2019

    The Washington Supreme Court recently ruled that obesity is “always” a disability under the Washington Law Against Discrimination (WLAD) in a decision that seems problematic in its analysis and troubling in its consequences.

  • New York State Dramatically Expands Its Discrimination Laws

    July 11, 2019

    The New York State legislature has adopted, and it is anticipated that Governor Cuomo will soon sign, new legislation that makes the state one of the most pro-employee states in the country. The dates on which particular legislative provisions take effect are staggered, but many of the most drastic changes take effect within 60 days after the legislation is adopted.

  • Illinois Legislative Update – New Challenges for Employers

    July 08, 2019

    A marathon legislative session that spilled into overtime saw the Illinois Legislature pass multiple bills with important impacts on employment law in the Prairie State, including bills legalizing recreational marijuana, proscribing employers from requesting job applicants’ salary history, and instituting new limitations on the use of artificial intelligence, among others.

  • Louisiana Supreme Court Finds Collateral Source Rule of Evidence Does Not Apply to Medical Expenses Charged But Not Paid by Workers’ Compensation Carrier

    June 28, 2019

    In Simmons v. Cornerstone Investments, LLC, et al, 2018-0735 (La. 05/08/19), a tort case involving a third party tortfeasor, the Louisiana Supreme Court recently held that the amount of medical expenses charged by a provider above the amount actually paid by a workers’ compensation insurer does not qualify as a collateral source under Louisiana evidentiary law, and thus, the “written off” amounts are admissible at trial.

  • Hold the Arbitration - Washington Appellate Court Finds Pizza Delivery’s Arbitration Policy Unenforceable.

    June 27, 2019

    In a recent reported decision, a Washington appeals court addressed the requirements of enforcing an arbitration policy that is an employment handbook. The court’s reasoning provides a number of reminders for employers who want to arbitrate employment claims.

  • New York Legislature Alters Civil Jurisprudence With Passage of Several Important Measures

    June 26, 2019

    The New York legislature recently passed several important measures that will alter civil jurisprudence in New York State and are expected to be signed by Governor Cuomo. Our New York office is committed to keeping all our clients advised of these important changes to New York law, and our attorneys will be ready to litigate the new rules as soon as they take effect.

  • New York Court of Appeals Affirms Insurers May Withhold Payment for Fraudulent Incorporation Without Proving Actual Fraud

    June 26, 2019

    On June 11, 2019, the New York Court of Appeals finally affirmed that no-fault insurers are not required to pay providers who do not operate in accordance with New York law in terms of licensing and incorporating, regardless of whether they prove the elements of common law fraud at trial. 

  • Enhanced Federal Regulation of PFAS Teed Up for U.S. Senate Action

    June 20, 2019

    Per- and polyfluoroalkyl (PFAS) substances took center stage this week in the United States Senate with consideration of a bipartisan compromise that would mandate stronger new federal PFAS regulations.

  • Oregon’s Updated Anti-Discrimination Law Extends Statute of Limitations on Claims, Restricts Use of Confidentiality Agreements & Mandates Expanded Workplace Policies

    June 20, 2019

    Riding the “me too” wave, and in reaction to its own sexual harassment scandal, the Oregon legislature passed Senate Bill 726, known as the “Oregon Workplace Fairness Act.” Governor Kate Brown signed the bill into law on June 11, 2019, and parts of it take effect as early as this fall. These changes apply to every employer in Oregon and are not limited to sexual harassment claims.

  • Beginning 2021, Colorado’s Equal Pay for Equal Work Act Will Impose New Requirements on Employers’ Hiring, Promoting, and Record-Keeping Practices

    June 17, 2019

    On Wednesday, May 23, 2019, Colorado Governor Jared Polis signed into law Senate Bill 19 085, which imposes new, stringent obligations on Colorado employers as to hiring practices, promotion procedures, and record-keeping requirements.

  • Starting September 1, 2019, Colorado Will “Ban the Box” That Inquires Into Job Applicant Criminal History

    June 14, 2019

    Colorado Governor Jared Polis signed into law House Bill 19-1025 (the Act), making Colorado the latest state to prohibit certain employers from inquiring into a prospective employee’s criminal history on a job application. Starting September 1, 2019, certain employers will no longer be able to ask job applicants to disclose prior criminal history on job applications, but employers are explicitly permitted to perform a publicly available criminal background check at any point in the hiring process.

  • SEC Adopts “Regulation Best Interest” for Broker-Dealers and Interpretive Rules of Conduct for Retail Customers

    June 14, 2019

    On June 5, 2019 the Securities and Exchange Commission (SEC) adopted a package of regulatory items in four parts intended to “substantially enhance” the standards of conduct for financial professionals.

  • Colorado Supreme Court Rules Judge-Made Economic Loss Rule Does Not Bar Recovery for Concurrent Civil Theft, Breach of Contract Claims

    June 12, 2019

    Colorado Supreme Court recently issued an important ruling to address whether litigants may pursue a civil theft claim (including theft or unauthorized use of trade secrets) where such acts also constitute a breach of contract. Colorado civil theft, codified in C.R.S. § 18-4-405, awards the rightful owner of stolen property the greater of $200 or three times the loss suffered.

  • Beginning in 2020, Willful Failure to Pay Wages Will Be a Criminal Offense in Colorado

    June 03, 2019

    On May 16, 2019, Governor Jared Polis signed into law bipartisan House Bill 19-1267 (the Act), which creates criminal liability for employers that intentionally refuse to pay, or that underpay, their employees. Starting January 1, 2020, employers could face criminal charges of petty offense, misdemeanor, or felony, depending on the amount of unpaid or underpaid wages. This means that employers or their agents could face imprisonment of up to a maximum of 24 years and a fine of up to $1 million for the most egregious offenses.

  • Florida Legislature Grapples with Economic Damages Issue

    May 31, 2019

    In the state of Florida, defendants often fall victim to inflated verdicts. Laws currently allow a plaintiff to present evidence of medical expenses that do not accurately reflect a plaintiff’s actual economic damages. This can result in significantly unfair verdicts. The Florida legislature attempted to address this issue in their last session.

  • Common Signs Your B2B Invoice Will Not Get Paid

    May 30, 2019

    Cash flow is the life blood of every business. Companies rely on receiving timely payments from B2B customers to keep a positive cash flow and to smoothly and profitably operate their businesses. Commercial clients and customers who fail to pay for goods and services can negatively impact your company, including the ability to pay your own bills or grow your business.

  • Fraudulent Concealment of Prior Medical Treatment Proves Costly

    May 28, 2019

    Recently, New York Partner David L. Rosenthal secured the dismissal of spinal fusion case that came with a $3 million settlement demand, based upon the plaintiff’s failure to disclose prior treatment.

  • 'What are the Meds?': How Medicals Impact Case Settlements & Jury Arguments

    May 24, 2019

    “What are the meds?” This is a common question when valuing a personal injury case. The question is critically important because plaintiffs are unlikely to settle their cases before getting their medical bills paid. Further, in order to cultivate large awards, plaintiffs employ a variety of methods to artificially inflate the value of the medical care.

  • Aggressive Interest in Federal PFAS Regulations Continues to Mount

    May 23, 2019

    Pressure for tough federal action to regulate per- and polyfluoroalkyl substances (PFAS) continues to grow, with two Congressional hearings, multiple legislative proposals, the issuance of a new scientific report, and EPA’s release of expected dates for particular PFAS regulations all making news in the last two weeks. This heightened focus and the unusually aggressive proposals for regulating these chemicals leave little question that there is an increasing business risk for current and former manufacturers of PFAS chemicals and products containing them. 

  • New EEO-1 Pay Data Reporting Requirements Impose Additional Burdens On Employers.

    May 23, 2019

    The Equal Employment Opportunity Commission (EEOC) requires that private employers with over 100 employees and certain federal contractors with 50 or more employees provide data regarding the number of employees by job category, race, ethnicity, and sex in EEO-1 Reports. Following a recent United States District Court opinion and subsequent statements by the EEOC, these employers must now provide additional data related to hours worked and pay data for 2017 and 2018 by September 30, 2019.

  • Texas Supreme Court Issues Opinion Curtailing Gross Negligence Claims

    May 17, 2019

    On April 26, 2019, the Texas Supreme Court issued an opinion that should greatly curtail the ability of plaintiffs to sustain gross negligence claims in transportation cases by reinforcing the extremely high burden plaintiffs must meet to establish gross negligence.

  • Ninth Circuit Rules the Dynamex ABC Test Applies Retroactively and to Franchisors

    May 16, 2019

    Last year, the California Supreme Court held in Dynamex Operations v. Superior Court that the “ABC test” determines whether a worker should be classified as an independent contractor or an employee, replacing the more lenient Borello test. 

  • New Windows Vulnerability Discovered

    May 16, 2019

    Microsoft recently announced a critical vulnerability in its Windows operating systems so serious that it is issuing a patch for even unsupported, older versions of Windows. The vulnerability allows for remote code execution in Remote Desktop Services with no authentication at all. In fact, there is no user interaction of any kind required for a malicious actor to exploit the vulnerability.

  • In a Historic Move, Washington Bans Non-Competes for Employees Making Less Than $100,000

    May 10, 2019

    Following the White House’s “call to action” in 2016, many states sprang into action and attempted to reign in the use of non-compete agreements in their states to even the playing field between employers and employees. Enveloped in this wind of change, on May 8, 2019, Washington State signed into law its own non-compete statute that establishes a black-and-white compensation test for workers who can be required to sign a non-compete agreement and those who cannot.

  • Consumer Financial Protection Bureau Moves to Regulate Debt Collection

    May 07, 2019

    In a surprise move a day before a scheduled “town hall” on debt collection, the Consumer Financial Protection Bureau released its long-awaited proposed debt collection rule. Key elements of the proposal include call caps (limits on the number of times debt collectors can contact debtors), clarity on allowable use of electronic communications, and disclosure requirements on information to be communicated to consumers.

  • Perfluorinated Chemicals: A Rapidly Evolving Regulatory and Legal Risk Issue for Businesses

    May 06, 2019

    A once obscure group of chemicals known as perfluorinated chemical substances (PFAS) have gripped national headlines in recent months, due to increasing concerns over potential health risks. PFAS have been used for many years in a wide variety of products, such as non-stick cookware, cleaning and coating solutions, paper, food packaging materials, fire-fighting foam, automotive applications, upholstery, and carpeting. These chemicals have been detected in groundwater and surface water across the country, and Congress, federal and state regulators, and litigants are all taking steps in response. 

  • California Court of Appeal Holds that Employers May Use Fictitious Business Names on Wage Statements

    May 03, 2019

    California Labor Code section 226(a) mandates nine categories of information to be displayed on wage statements issued to employees, including “the name of the legal entity that is the employer.” How California employers can meet this obligation has been the subject of heavy litigation over the years.

  • Spring Brings New Developments for New York and New Jersey Employers

    May 01, 2019

    An overview of recent important developments in New York and New Jersey labor and employment laws.

  • United States Supreme Court Holds That Class Arbitration Must Be Explicitly Authorized

    April 25, 2019

    On April 24, 2019, the United States Supreme Court issued its opinion in Lamps Plus Inc., v. Varela, ___ 587 U.S. ___ (2019), clarifying whether a court can compel class action arbitration when the arbitration agreement is ambiguous concerning class action arbitration. 

  • Premises Liability Cases: Know The Evidentiary Issues

    April 22, 2019

    Recently, in Melendez v. Spin Cycle Laundromat, LLC, 188 Conn. App. 807 (2019), the Connecticut Appellate Court affirmed a trial court's decision to deny a plaintiff's motion to set aside a jury verdict rendered in favor of a laundromat defendant in a premises liability case.

  • U.S. Supreme Court Rules Certain Businesses and Lawyers Are Not Debt Collectors Under the FDCPA

    April 22, 2019

    The federal courts are plagued by what we might charitably refer to as creative claims under the Fair Debt Collection Practices Act (FDCPA). Many of those law suits are filed against lawyers assisting their clients in debt collection-related matters. Happily for members of the bar, and for some businesses, the United States Supreme Court has unanimously ruled that certain activities by attorneys and their clients do not fall fully within the scope of the FDCPA.

  • Illinois Legislature Passes Bill Allowing Civil Suits Against Employers in Latent Injury Cases

    April 17, 2019

    On March 14, 2019, the Illinois legislature passed Senate Bill 1596, lifting the 25-year statute of repose for occupational disease lawsuits and allowing direct common law actions against employers in latent injury cases.

  • Claims Management: Reefer Trailer Madness! - Frozen Food Cargo Claims

    April 10, 2019

    In handling interstate cargo claims, it is likely that you will face claims for thawing damage to frozen food. This is especially true during summer months and in warm-weather states like Florida, as reefer trailer breakdown is more likely to occur under such conditions.

  • New York Trial & Appellate Victory Alert - April 2019

    April 03, 2019

    Our New York office has had another successful run of trial wins, appellate victories, and outstanding settlements. We have compiled some of the most interesting and important wins in this alert.

  • A New Target: Antitrust Division Takes Aim at Criminal Antitrust Violations in Public Procurement

    April 02, 2019

    The Antitrust Division (Division) of the Department of Justice (DOJ) investigations of public procurement bids has uncovered multiple criminal violations.

  • Georgia Court of Appeals Underscores Importance of Property Owners’ Knowledge of Prior Crime in Negligent Security Cases

    March 28, 2019

    A crime occurs in an apartment complex, a parking lot, or outside a business. The perpetrator vanishes without a trace and the victim files suit against the property owner claiming the criminal attack was foreseeable and would not have occurred but for the owner’s inadequate security measures. In Georgia, this basic fact pattern routinely gives rise to multi-million dollar jury verdicts against property owners and property management companies. 

  • Supreme Court Lorenzo Decision Expands Liability Under Rule 10b-5

    March 27, 2019

    On March 27, 2019, the Supreme Court issued its much-anticipated decision in Lorenzo v. SEC, 587 U.S. ____ (2019), which expands the category of conduct under which a private action can be brought pursuant to SEC Rule 10b-5. 

  • The Wait Is Finally Over – DOL’s New Proposed Overtime Rule Sets Federal Minimum Salary Level Threshold at $679/Week ($35,308/year)

    March 27, 2019

    On March 7, 2019, the U.S. Department of Labor (DOL) announced the long-awaited Notice of Proposed Rulemaking (NPRM) which proposes updates to the required salary amounts used to determine eligibility for certain exemptions from the FLSA overtime requirements.

  • California Court of Appeal Determines Employee’s Imprecise Evidence Can Result In Liability When Employer Fails To Keep Accurate Time Records

    March 22, 2019

    In Furry v. East Bay Publishing, the California Court of Appeal reversed a trial court’s decision denying a plaintiff relief for overtime and meal break claims.

  • New Jersey Employers Beware – Parts of Your Employment Agreements May Now Be Unenforceable

    March 21, 2019

    As of March 18, 2019, New Jersey employers may not include any provision in an employment contract that waives any substantive or procedural rights or remedies that relate to a claim of discrimination, retaliation or harassment. Any such provision is deemed unenforceable and against public policy. 

  • General Liability Coverage for the Explosion of Class Actions Under the Illinois BIPA Proliferation

    March 15, 2019

    The Illinois Biometric Information Privacy Act was enacted in 2008 to regulate the collection and storage of biometric information by private entities. The Act covers retina or iris scans, fingerprints, voiceprints, and scans of hand or facial geometry, and requires entities to have a written collection / storage / destruction policy in place, and to obtain a written release from a person for the collection and use of their information.

  • Texas Introduces Three Bills To Curb Application of Anti-SLAPP Statute in Non-Compete and Trade Secrets Litigation

    March 14, 2019

    The Texas Citizens Participation Act (TCPA), enacted by the legislature in 2011, has been wreaking havoc in business and employment disputes due to the statute’s overbroad language, confusing and conflicting interpretation by the various courts of appeals and federal courts, and defendants’ persistence in invoking the statute’s dismissal process in trade secrets and non-compete lawsuits.

  • Supreme Court Denies Oracle "Full Moon" Costs In Copyright Case

    March 12, 2019

    On March 4, 2019, the Supreme Court issued a unanimous decision overturning the Ninth Circuit Court's award of $12.8 million in costs in the copyright infringement matter Rimini Street, Inc. et al v. Oracle USA, Inc. et al. No. 17-1625, slip op. (U.S. Mar. 4, 2019).

  • Claims Management Update: Federal Court Removal Quandary in Florida

    March 05, 2019

    What if you determine that your company or insured has grounds to dismiss a state court complaint as well as a basis to remove the action to federal court? As the Eleventh Circuit noted in Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246, litigating a state court action on the merits generally waives a defendant’s right to remove a state court action to federal court.

  • Ohio Workers’ Comp Program Proposes Major Rate Cut

    February 28, 2019

    Ohio is unique in its Workers’ Compensation laws. The state funded program has been effective over the years, but has not always been as employer-friendly as one might expect. Following on from former Governor John Kasich’s rebates in his last term, the state fund still appears to be overfunded. The Ohio Bureau of Workers’ Compensation has recognized this issue and is considering efforts to further reduce premiums across the board.

  • Third Party Liability in Distracted Driving Litigation

    February 26, 2019

    Litigation arising out of automobile crashes resulting from the use of smartphones and similar modern technology is on the rise. Recently, the Fifth Circuit Court of Appeals – which presides over Texas, Louisiana and Mississippi – ruled in a case of first impression that Apple was not liable for a driver’s neurobiological response to a smartphone notification which caused him to check his phone and cause an accident as the result of the distraction.

  • Philadelphia Employers Should Prepare For the Requirements of the Fair Workweek Ordinance

    February 26, 2019

    The Philadelphia Fair Workweek Employment Standards Ordinance (“Ordinance”) establishes work scheduling and pay requirements for certain employers in the retail, hospitality and food service industry. This article summarizes some of the pertinent provisions of the Ordinance, which is effective on January 1, 2020.

  • Department of Education Proposes Significant Changes to Title IX Regulations

    February 25, 2019

    The U.S. Department of Education has proposed new regulations that, if adopted, would significantly change the landscape of Title IX sexual misconduct investigations. Title IX, enacted in 1972, bars sex discrimination in schools and colleges (“recipients”) that receive federal funding. The proposed regulations add new due-process protections to respondents in Title IX investigations.

  • California Court of Appeal Establishes Classification of Domestic Caregivers as Employees or Independent Contractors

    February 25, 2019

    California’s approach to classifying independent contractors from employees has undergone significant developments over the past year. The Court’s most recent opinion on this line of issues is Duffey v. Tender Heart Home Care Agency, LLC. In Duffey, the California Court of Appeal addressed classification of workers under the Domestic Worker Bill of Rights (DWBR), which sets forth overtime pay obligations to for domestic caregivers. The Duffey Court held that the DWBR provides its own unique test for classifying domestic workers as employees or independent contractors, distinct from the ABC or Borello tests.

  • Post-Accident Photos Allowed Into Evidence Without Expert Testimony in Illinois

    February 20, 2019

    In Peach v. McGovern, 2019 IL 123156, the Illinois Supreme Court definitively established that post-accident photos will be allowed into evidence without accompanying expert witness testimony.

  • 2019 HSR Filing Thresholds and Interlocking Directorates Thresholds Announced

    February 19, 2019

    On February 15, 2019, the Federal Trade Commission announced the revision of the jurisdictional thresholds for the mandatory notification of certain mergers and acquisitions prior to consummating the transaction pursuant to section 7(a) of the Clayton Act 15 U.S.C. § 18a.

  • New Governor Delivers on Campaign Promise: Illinois Passes Law to Raise Minimum Wage to $15/hr

    February 19, 2019

    On Tuesday, February 19, 2019, Illinois’ new Democratic Governor, JB Pritzker, signed a law that will raise the state’s minimum wage from $8.25/hour to $15/hour over the next six years. The $15/hour minimum wage was one of the issues championed by Pritzker during his campaign.

  • Ninth Circuit: Employers Must Use Separate FCRA & ICRAA Disclosure Forms When Conducting Background Checks

    February 19, 2019

    The Ninth Circuit Court of Appeals recently held in Gilberg v. Cal. Check Cashing Stores, LLC that employers are required to use two separate, standalone forms when conducting background checks on applicants, rather than combining both disclosures into a single document.

  • California Court of Appeal Ruling Requires Reporting Time Pay for On-Call Employees, Even When Not Physically Reporting to Work

    February 15, 2019

    On February 4, 2019, in the case of Ward v. Tilly’s Inc., a California Court of Appeal issued a ruling requiring employees who are subject to on-call scheduling to be paid reporting time pay of at least two hours – even when the employees do not have to physically report to work for a shift and simply need to place a short phone call to determine whether they are needed.

  • New York Enacts Statutes Impacting Admissibility of Certain Evidence at Trial

    February 15, 2019

    The New York legislature recently enacted two new statutes that became effective January 1, 2019. Notably, these statutory changes will have a significant impact on admissibility of certain evidence at trial.

  • Is the Wait Over? Proposed Changes to FLSA Overtime Exemption Regulations May Arrive as Early as March

    January 28, 2019

    As employers begin to develop their compliance agenda for 2019, one area of focus often is (and should be) reviewing and updating wage and hour practices to comply with legislative and regulatory developments. Employers have been faced with uncertainty, however, regarding the status of the proposed changes to the Federal Fair Labor Standards Act (FLSA) overtime exemption regulations.

  • Circumstantial Evidence in Slip & Fall Cases – A Broadening Definition in Illinois

    January 28, 2019

    The appellate courts in Illinois may be trending toward a broader definition of circumstantial evidence in slip and fall cases.

  • Illinois Supreme Court Issues Major BIPA Decision in Blow to Employers

    January 25, 2019

    In a unanimous decision issued January 25, 2019, the Illinois Supreme Court held in Rosenbach v. Six Flags Entertainment Corporation, et al. that an individual seeking redress for violations of Section 15(b) of the Biometric Information Privacy Act need not plead actual damages. 

  • New York’s Appellate Division, First Department Expands Discovery of Electronic Devices

    January 25, 2019

    On January 24th, New York’s Appellate Division, First Department rendered an important decision that expands the ability of litigators to obtain discovery from parties’ electronic devices, including email accounts and social media data, such as messaging apps content and even deleted materials.

  • An ADEA Victory for Employers Sued Under a Disparate Impact Theory in the Seventh Circuit

    January 24, 2019

    On January 23, 2019, the United States Court of Appeals for the Seventh Circuit, in an 8-4 decision, dealt a blow to older job applicants in a case brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., under a theory of disparate impact liability. 

  • Where’s the Evidence? - Illinois Premises Liability & The Notice Requirement

    January 22, 2019

    To prevail in a premises liability action in Illinois, a plaintiff must satisfy the “notice” requirement, proving that the defendant had either actual or constructive notice that a condition existed that posed an unreasonable risk of harm to others.

  • Pennsylvania Employers Now Have an Obligation to Protect Employees' Electronically Stored Information

    January 17, 2019

    The Pennsylvania Supreme Court, in Dittman v. UPMC, ruled that employers have a have a legal duty to exercise reasonable care to safeguard employees’ electronically stored personal information.The dispute arose after a data breach occurred at the University of Pittsburgh Medical Center, resulting in the personal and financial information of 62,000 UPMC employees being accessed and stolen from the UPMC computer systems.

  • Will Illinois Forgo the Natural Accumulation Rule in Favor of a Duty of “Reasonable Care”?

    January 14, 2019

    For many years Illinois has followed the “Massachusetts Rule” for snow and ice accumulations. Illinois Pattern Jury Instructions 125.04 codifies the “natural” accumulation rule and as been instrumental in allowing defendants to present strong defenses to slip and fall accidents that oftentimes result in very significant damages.

  • Supreme Court Holds Threshold Question of Arbitrability Is One of Contract and Valid Agreements to Submit Question to Arbitrator Will Be Enforced

    January 08, 2019

    Today, the U.S. Supreme Court in Henry Schein, Inc. v. Archer & White Sales, Inc. unanimously held that where parties agree in a contract to submit even the gateway question of arbitrability to an arbitrator, the Federal Arbitration Act and Supreme Court precedent compel federal courts to honor that contractual agreement even where the arbitration demand appears ‘wholly groundless.'

  • 2018 Illinois, Indiana, and Wisconsin Employment Law Year in Review

    January 08, 2019

    Our summary of the most important labor and employment law developments from Illinois, Indiana and Wisconsin in 2018.

  • Seventh Circuit Rules Parents, Not Starbucks, Have Duty of Care to Protect Child From Harm While Playing Inside Store

    January 08, 2019

    In Roh v. Starbucks Corp., a federal appeals court dismissed a negligence lawsuit brought by parents against Starbucks, holding Starbucks was not responsible for injuries that led to the amputation of a 3-year old child's finger who was playing in the store, because the child's parents bore the duty of protecting the child from any harm arising from his play.

  • Antitrust Compliance – Proceed Cautiously When Sharing Information

    January 03, 2019

    Through recent enforcement actions, the Antitrust Division of the Department of Justice has shown its continuing vigilance in sanctioning information sharing that distorts the normal price-setting mechanisms for goods and services in the United States. 

  • Texas Supreme Court Lays out Process for Proving Employer’s Vicarious Liability

    December 27, 2018
  • 2018 New York Labor & Employment End of Year Review

    December 21, 2018
  • Texas Supreme Court Clarifies Whether Bad Faith Liability May Exist in Absence of A Policy Breach

    December 20, 2018
  • Washington Employment Law 2018 Year In Review

    December 19, 2018
  • 2018 Louisiana Employment Law Update: Louisiana’s Own Version of the WARN Act is Working Its Way Through The Legislature

    December 12, 2018
  • Everyone is Doing It! Three More States Join the Bandwagon in Decriminalizing the Use of Medical and Recreational Cannabis

    December 11, 2018
  • 2018 Oregon Employment Law Update

    December 06, 2018
  • Uber Eats and Accident Liability - Are Restaurants Liable For Ride-Share Food Delivery Services?

    November 29, 2018
  • NYC’s Temporary Schedule Change Law is Now in Effect – Here’s What You Need to Know

    November 28, 2018
  • California Appellate Court Casts Doubt Upon Enforceability of Contracts Prohibiting Solicitation of Co-Workers

    November 20, 2018
  • California Court of Appeal Clarifies Application of the ABC Test for Independent Contractors

    November 19, 2018
  • 2018 Missouri, Kansas & Oklahoma Employment Law Update

    November 15, 2018
  • 2018 California Labor & Employment End of Year Review

    November 14, 2018
  • DOL Gives Restaurant Employers a Huge Tip in Recent Opinion Letters

    November 12, 2018
  • Westchester County, New York Adopts New Laws Impacting Employers

    November 06, 2018
  • 2018 Arizona Employment Law Update

    November 01, 2018
  • California Court of Appeal Holds Individuals May Be Personally Liable for Labor Code Violations

    October 30, 2018
  • California Enacts New Laws Expanding Lactation Accommodation Requirements, Other Paid Family Leave Benefits

    October 11, 2018
  • California Enacts a Package of Legislation Aimed to Prevent Sexual Harassment in the Workplace

    October 09, 2018
  • California Enacts a Package of Legislation Providing Limited Exceptions to Wage and Hour Laws for Specific Industries

    October 08, 2018
  • Ninth Circuit Delimits Use of Tip Credit for Tipped Employees Engaging in Untipped Duties

    September 27, 2018
  • Massachusetts Adopts Uniform Trade Secrets Act

    September 17, 2018
  • New Legislation in Massachusetts Significantly Restricts the Ability of Employers to Utilize Noncompetition Agreements in Massachusetts

    September 05, 2018
  • One-Year Time Bar to File an IPR Begins on Date Complaint Served Regardless of Post-Service Activities

    September 04, 2018
  • Illinois Governor Vetoes Expanded Anti-Discrimination Statute

    August 20, 2018
  • California Supreme Court Holds That Regular, Non-Trivial Time Worked “Off the Clock” is Compensable

    July 30, 2018
  • ALERT: #MeToo Impacts New York Employers & Employees

    July 26, 2018
  • The New Jersey Equal Pay Law Requires the Immediate Attention of All New Jersey Employers

    July 26, 2018
  • Companies With No-Poaching Agreements Must Consider Whether They Are Worth the Risk

    July 24, 2018
  • Tribal Sovereign Immunity Cannot Bar IPR Review: Federal Circuit

    July 23, 2018
  • SEC Votes to Expand “Smaller Reporting Company” Definition

    July 19, 2018
  • California Court of Appeal Upholds Jury Verdict Finding Twelve Instances of Verbal Mocking Severe and Pervasive Harassment

    July 18, 2018
  • California’s Going and Coming Rule: Frequent Use of Your Car Throughout the Work Day Doesn’t Mean Your Employer Pays for Your Accidents

    July 10, 2018
  • Supreme Court Finds Patent Owners Can Recover Foreign Lost Profits for U.S. Patent Infringement

    June 26, 2018
  • New York Client Trial Alert

    June 19, 2018
  • Business as Usual in Colorado

    June 05, 2018
  • First Ruling on New Texas Insurance Code Provision

    June 05, 2018
  • California Appellate Court Expands the Scope of the California Private Attorneys General Act

    June 04, 2018
  • Fassbender v. Correct Care Sols., LLC, No. 17-3054, 2018 U.S. App. LEXIS 12556 (10th Cir. 2018)

    May 24, 2018
  • 2018 Mid-Year Non-Compete Update

    May 23, 2018
  • U.S. Supreme Court Approves Use of Class Action Waivers in Employment Arbitration Agreements

    May 21, 2018
  • California Supreme Court Adopts Stricter Test for Independent Contractor Status Under the Wage Orders

    May 15, 2018
  • New Jersey Litigation Update

    May 10, 2018
  • Texas Supreme Court Closes Loophole That Allowed Plaintiffs’ Attorneys to Inflate Medical Expenses

    May 09, 2018
  • Sell Me Something Good – U.S. Supreme Court Finds Auto Service Works Are Exempt Under the FLSA

    May 03, 2018
  • Texas Supreme Court Recognizes ‘Sham Affidavit Rule,’ Allowing Courts to Disregard Affidavits Contradicting Prior Deposition Testimony

    May 02, 2018
  • Supreme Court Upholds Constitutionality of Inter Partes Reviews

    April 26, 2018
  • Watching the Equal Pay Act: Ninth Circuit Rejects Prior Salary as a Basis for Setting Initial Pay

    April 18, 2018
  • Colo. Supreme Court Weighs in on Deadline for Wage Claims

    April 16, 2018
  • Washington Raises Mandatory Arbitration Limit to $100,000

    April 12, 2018
  • “Blurred Lines” Copyright Ruling Leaves Answers Blurry

    March 23, 2018
  • California Supreme Court Rejects Federal Regulation on How Overtime Is Computed on Non-Production Flat Sum Bonuses

    March 22, 2018
  • USCIS Suspends Premium Processing for Fiscal Year 2019 H-1B Cap Petitions

    March 21, 2018
  • Texas Court of Appeals Holds Punitive Damages Not Covered Under Personal Lines Auto Policy

    March 20, 2018
  • DC Circuit Strikes Down FCC Order Regarding TCPA

    March 19, 2018
  • New York Client Trial Alert

    March 19, 2018
  • United States Department of Labor Announces New Wage Audit Program for Employers

    March 16, 2018
  • California Federal Court Rules in California’s First “Gig Economy” Case that GrubHub Delivery Driver Was Properly Classified as an Independent Contractor

    March 14, 2018
  • Effective Use of Examinations Under Oath in Pipe Freeze Claims

    March 06, 2018
  • The Texas Supreme Court Rules Trial Courts Must Watch Video Evidence Before Deciding to Exclude; Finds Video Evidence Probative of “Soft Damages” in Personal Injury Cases

    March 05, 2018
  • New York City to Require Employers and Landlords to Engage in New “Cooperative Dialogue” Process for Requests for Reasonable Accommodations

    February 28, 2018
  • Kansas Public Speech Protection Act

    February 26, 2018
  • Texas Attorney General Asserts State Regulation of HRAs ‘Likely’ Preempted by ERISA

    February 16, 2018
  • California Labor Commissioner Opines that Employees May Not Be Required to Stay on Premises or Keep in Radio Communication During Rest Periods

    February 15, 2018
  • New York Client Trial Alert

    February 12, 2018
  • #MeToo and Time’s Up: The Focus on Sexual Harassment in the Workplace

    February 07, 2018
  • U.S. Antitrust Enforcers Actively Targeting Agreements Between Competitors In Employment Markets That Restrict Competition For Employees

    February 07, 2018
  • New Jersey Litigation Update

    February 05, 2018
  • New York Client Alert

    January 30, 2018
  • New Tax Cut Bill Gives Nod to #MeToo Movement

    January 22, 2018
  • Louisiana: Updates Impacting Employers in 2018

    January 09, 2018
  • California’s WARN Act: A Primer After NAASCO

    January 08, 2018
  • “Backward or Forward” Where Will Missouri Supreme Court Go?

    January 05, 2018
  • Oregon 2017 Employment Legislative Update

    December 28, 2017
  • 2017 Illinois Employment Law Update

    December 27, 2017
  • Colorado: Updates Impacting Employers in 2018

    December 18, 2017
  • 2017 Missouri, Kansas, and Oklahoma Employment Law Update

    December 18, 2017
  • 2017 New York Employment Law Update

    December 13, 2017
  • Yesterday’s Science Fiction, Today’s Reality: Biometrics for Illinois Employers

    December 06, 2017
  • New York-Area Doctors Indicted in Fraud Scheme

    December 06, 2017
  • 2017 Texas Employment Law Update

    November 15, 2017
  • 2017 California Employment Law Updates

    November 13, 2017
  • California Enacts a Quartet of Employment Laws Affecting Hiring Practices, Parental Leave, and Harassment Training

    November 03, 2017
  • Third Circuit Imposes Daunting Standard To Prove Oligopolistic Price Fixing Via Circumstantial Evidence, But Manufacturers Must Still Tread Carefully When Setting Their Prices

    October 31, 2017
  • Employment Law Changes Impacting Employee Handbooks

    October 31, 2017
  • NY & NJ Trial and Appellate Team Update - October 2017

    October 12, 2017
  • California Law Significantly Expands Labor Commissioner’s Authority to Investigate and Enforce Retaliation Claims

    October 10, 2017
  • Federal Appeals Court Vacates a $147M Jury Award Based on Comity Principles

    October 04, 2017
  • Texas Employers’ Guide to Classifying Workers

    October 03, 2017
  • Washington Supreme Court Imposes RPC 1.7 Conflict Waiver Requirement on Insurance Defense Counsel Retained Subject to Reservation of Rights

    September 29, 2017
  • 2017 in Review: Changes to Non-Compete Laws Around the Country

    September 29, 2017
  • Federal Government Warns That Anti-Poaching and Wage-Fixing Agreements May Violate Antitrust Laws. What Does This Mean for US Companies?

    September 18, 2017
  • 409A Issues in Executive Compensation Contracts and Employment Agreements

    September 05, 2017
  • Missouri Bill SB 43 Goes into Effect

    September 01, 2017
  • New Jersey Litigation Update

    August 30, 2017
  • San Francisco Issues Lactation Accommodation Guidance for Employers

    August 28, 2017
  • Illinois Court Ruling Reexamines Taxi Drivers & Transportation Drivers as Employees

    July 28, 2017

    On June 30, 2017, the Illinois Appellate Court reversed a trial court’s finding of summary judgment granted to a Chicago taxi company finding that there were “material questions of fact” as to whether the driver was the taxi company’s agent when he assaulted the female plaintiff passenger.

  • Ninth Circuit Holds Mortgage Underwriters Not Exempt Under the Administrative Exemption

    July 13, 2017

    On July 5, 2017, the Ninth Circuit, on appeal from the Eastern District of California, issued a ruling reversing the district court’s grant of summary judgment in favor of a defendant Bank, holding, contrary to the district court, that mortgage underwriters were not administratively exempt under the Fair Labor Standards Act.

  • First Federal Court Ruling That Retailer’s Website Violates Title III of the ADA

    July 11, 2017

    Since our August 2016 article on the applicability of the Americans with Disabilities Act of 1990 (the “ADA”) to the Internet, litigation involving website violations of the ADA has been on the rise. To date, however, there remains a split among the circuit courts with regard to whether Title III of the ADA applies to websites. To further complicate the issue, the federal government has not yet formally adopted a set standard for website accessibility.

  • Watching the TCPA: Second Circuit Rules Consent Given as Part of Binding Contract may not be Revoked Under Telephone Consumer Protection Act

    June 30, 2017

    In a much-watched decision involving the hotbed issue of consent under the Telephone Consumer Protection Act (TCPA), the U.S. Court of Appeals for the Second Circuit has ruled that consent may not be revoked when it was originally provided as a term of a contract.

  • The United States Supreme Court Holds that the Lanham Act’s Disparagement Clause Violates the Free Speech Clause to the First Amendment, Opening Registration for Additional Marks and Potentially Preserving Additional Marks

    June 27, 2017

    On June 19, 2017, the United States Supreme Court invalidated a provision of the Lanham Act, 15 U.S.C. § 1052(a), which had prohibited the registration of trademarks “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, . . . or bring them into contempt, or disrepute[.]”

  • California Court of Appeal Holds that Workers Are Entitled to Federal and California Wage and Hour Protections Regardless of Immigration or Work Authorization Status

    June 26, 2017

    Last week, on June 15, 2017, a California Court of Appeal reaffirmed the principle that individuals performing work for the direct benefit of an employer are entitled to wage and hour protections under the Federal Labor Standards Act (“FLSA”) and California law regardless of immigration or work authorization status.

  • What the DOL's New Fiduciary Rule Means to Employers, Agents, and Insurance Carriers

    June 19, 2017

    Effective June 9, 2017, the Department of Labor expanded the definition of fiduciary (the “Fiduciary Rule”) to include any professional, including but not limited to insurance agents and brokers, who makes covered investment advice, recommendations, or solicitations to a retirement plan, plan fiduciary, plan participant and beneficiary, Individual Retirement Account (“IRA”), or IRA owner in exchange for direct or indirect compensation.

  • Texas Amends Its Trade Secrets Statute, Making It the Most Comprehensive Trade Secrets Statute in the Nation

    June 08, 2017

    Texas Governor Greg Abbott recently signed House Bill 1995, which amends the four-year old Texas Uniform Trade Secrets Act (“TUTSA”).

  • New Expedited Appeals Process Regarding Petitions to Compel Arbitration in Elder Abuses Cases Goes Into Effect July 1, 2017

    June 06, 2017

    The California Legislature has created a new class of highly expedited time frames for appeals from an order denying a petition to compel arbitration in cases involving a claim under the Elder and Dependent Adult Civil Protection Act. The new rules go into effect July 1, 2017.

  • Bronx County Changes Trial Rules for Motor Vehicle Cases

    June 02, 2017

    For the past several years, there have been extensive delays in the Bronx County Supreme Court with respect to pending actions receiving final trial dates and proceeding to the commencement of jury selection. Recently, the administrators of the Bronx County Supreme Court implemented new rules specifically to accelerate to trial motor vehicle cases pending in the Bronx County Supreme Court. 

  • New Regulations Restricting California Employers’ Use of Applicant and Employees’ Criminal Conviction History

    May 30, 2017

    On January 10, 2017, the California Fair Employment & Housing Council (“FEHC”) approved regulations that identify a number of ways in which employers can face liability when using a job applicant or employee’s criminal conviction history to influence employment decisions. 

  • Rigid Progressive Disciplinary Practices and Long-Term Employment May Undermine an Employee’s At-Will Status

    May 24, 2017

    Many employers take comfort that their employees are at-will, meaning that either party may terminate employment at any time and for any reason, as long as the reason is not unlawful.

  • NASAA Releases Supplementary Commentary on Financial Performance Representations

    May 23, 2017

    Franchisors need to review their Franchise Disclosure Document (“FDD”) to ensure compliance with new commentary (“Commentary”) issued by the North American Securities Administrators Association (“NASAA”) regarding Financial Performance Representations (“FPR”).

  • New York City Freelancers Are Now Protected by the Freelance Isn’t Free Act

    May 22, 2017

    On May 15, 2017, New York City continued its rapid expansion of worker protection, this time creating greater security for independent contractors.

  • California Supreme Court Settles Unresolved Questions Regarding “Day of Rest” Requirements for Non-Exempt Employees, Affording Employers More Flexibility and Much Needed Guidance

    May 19, 2017

    On May 8, 2017, the California Supreme Court clarified several major points of ambiguity regarding the interpretation of the state’s obscure “day of rest” statutes.

  • Sue Tsunami: The Rising Tide of Verdicts and Settlements in California-Based Employment Litigation

    May 17, 2017

    Within weeks of each other, two California juries awarded eight-figure verdicts to individual plaintiffs in employment cases.

  • New York Appellate Team Update

    May 11, 2017

    The New York office of Lewis Brisbois maintains a full team of appellate specialists who are well versed in litigating pre-trial motions and post-trial appeals.

  • Employment Law Recovery – Blue Skies No More

    May 11, 2017

    In a boon for employers, on May 8, 2017, the Missouri House of Representatives passed Senate Bill 43, which dramatically alters Missouri’s state employment anti-discrimination statutes. The Bill previously passed the Senate.

  • New York City Bans Private Sector Employers From Seeking Salary History Information From Job Applicants

    May 08, 2017

    New York City has now joined the city of Philadelphia, the state of Massachusetts, and the commonwealth of Puerto Rico in prohibiting private sector employers from inquiring into the salary history of job applicants. 

  • Colorado Wage Theft Transparency Act Now Makes Wage Law Violations Subject to Public Disclosure

    May 03, 2017

    On April 13, 2017, Governor Hickenlooper signed the Colorado Wage Theft Transparency Act (House Bill 17-1021). 

  • Latest Executive Order Ban

    April 27, 2017

    United States District Court Judge William H. Orrick struck down President Trump’s executive order to penalize “sanctuary cities.” 

  • Form I-9 Alert: Social Security Numbers Scrambled on I-9 Forms Completed in November 2016!

    April 24, 2017

    The United States Citizenship and Immigration Services (USCIS) issued an alert this week warning employers of a technical glitch in its online system. 

  • New York Client Alert - April 2017

    April 20, 2017
  • California Supreme Court Finds Arbitration Provision that Waives the Right to Pursue Public Injunctive Relief in Any Forum is Unenforceable

    April 17, 2017

    In McGill v. Citibank, N.A., the California Supreme Court tackled the validity of clauses in pre-dispute arbitration agreements which purport to waive an individual’s right to seek public injunctive relief in any forum such as in court.

  • California Supreme Court Limits Enforceability of Arbitration Provisions

    April 13, 2017

     The Federal Arbitration Act (“FAA”) has been construed to liberally promote the use of arbitration provisions. However, in recent years, a sort of tug-of-war has played out between federal courts and California as to the enforceability of arbitration provisions governed by the FAA.

  • 15-Month Prison Sentence Reminds That Spoliation Can Be A Crime Resulting In Serious Jail Time

    April 10, 2017

    Individuals instructed to preserve records in federal proceedings should not take their duties lightly. Avoid learning this lesson the hard way, as an IT director of a U.S. bus tour company recently did. For spoliating backup tapes, he has been sentenced to prison for 15 months.

  • USCIS Reaches H-1B Cap for FY 2018

    April 07, 2017

    U.S. Citizenship and Immigration Services announced this morning that it has reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018. USCIS also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the Master’s Cap. 

  • In Landmark Law, Seattle Might Soon Be the First City to Have Unionized Uber Drivers

    April 03, 2017

    Seattle is a city that likes to be friendly to its workers. It was one of the first to implement the $15 minimum wage law, a paid leave law, and even enacted an ordinance protecting hotel workers. 

  • New York & New Jersey Trial Team Update - March 2017

    March 16, 2017
  • Hugs in the Workplace Can Get You Sued, Rules the Ninth Circuit

    March 16, 2017

    Can a supervisor who engages in excessive hugging and other seemingly innocuous conduct create a hostile work environment? The Ninth Circuit held that this question is one for the jury, and that a rule categorically excluding hugs and other common workplace behavior from creating an actionable hostile work environment would be improper.

  • Georgia Supreme Court Clarifies Conditions Allowed in Settlement Demands by Motor Vehicle Plaintiffs

    March 10, 2017

    On March 6, 2017, a divided Georgia Supreme Court issued its opinion on a ruling requested by the Eleventh Circuit Court of Appeals pertaining to a policy limits demand in a fatal 2014 motor vehicle accident.

  • California Court Holds that Employees Paid on Commission Are Entitled to Separate Compensation for Rest Periods

    March 02, 2017

    On February 28, 2017, the California Second Appellate District issued a decision in Vaquero v. Stoneledge Furniture LLC finding that an employer must separately compensate commissioned employees for rest periods.

  • California Court of Appeal Holds That a CBA Arbitration Provision Does Not Cover Statutory Wage and Hour Claims When Not Explicitly Stated

    February 27, 2017

    California and federal case law has established that a collective bargaining agreement (CBA) may necessitate arbitration of a statutory claim if, in an explicit waiver, it is clear and unmistakable that the parties intended to waive their right to proceed in a judicial forum for statutory claims. 

  • Showing It Can Embrace Progressive Causes, The City of Spokane, Washington Enacts Its Own Paid Leave Law

    February 14, 2017

    It came as some surprise to those of us who practice employment law in Washington that the City of Spokane followed the lead of Seattle and other progressive cities in enacting a paid leave law. Indeed, even Spokane’s mayor was surprised.

  • Right-To-Work Movement Claims Victory in Missouri

    February 09, 2017

    Organized labor suffered another significant setback on Wednesday, February 6, 2017, when Missouri Gov. (R) Eric Greitens signed SB19 into law, adding Missouri to the nation’s growing list of states to adopt right-to-work protections for its public and private sector employees.

  • Ninth Circuit Ruling Bars Liability Waivers in Employers’ FCRA Background Check Disclosure Forms

    February 07, 2017

    The Ninth Circuit recently became the first appellate court in the country to rule that an employer’s inclusion of a liability waiver in a background check disclosure is a willful violation of the Fair Credit Reporting Act 

  • Antitrust & Competition Law Client Alert - February 1, 2017

    February 01, 2017

    Each year, the Federal Trade Commission revises the thresholds that determine whether companies are required to notify the FTC and the Antitrust Division of the Department of Justice about the terms of a transaction (merger or acquisition of stock or assets) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. 

  • DHS Publishes Final International Entrepreneur Rule

    January 30, 2017

    The Department of Homeland Security today published a final rule to improve the ability of certain promising start-up founders to begin growing their companies within the United States and help improve our nation’s economy through increased capital spending, innovation and substantial potential for rapid growth and job creation.

  • Reversal of $340 Million Jury Award Shines Light on Evidentiary Requirements to Establish Anticompetitive Conduct

    January 30, 2017

    In December 2016, the Fifth Circuit Court of Appeals reversed a $340 million jury award in an antitrust, attempted monopolization case, ruling the verdict was not legally supported by the jury’s factual findings.

  • California Supreme Court Holds That On-Duty and On-Call Rest Periods Violate California Law

    January 30, 2017
  • 2016 Louisiana Employment Law Updates

    January 11, 2017

    In 2016, the Louisiana Legislature enacted numerous employment-related laws. Louisiana employers should take note of these new laws to ensure that their policies and procedures are in compliance.

  • Wang v. Nibbelink: A Landowner’s Immunity from Liability for Injuries Caused by a Recreational Activity Expanded to Uninvolved Persons on Adjacent Property

    December 21, 2016
  • Supreme Court’s Decision Not to Hear Manufacturer’s Appeal of $156 Million Antitrust Award Reinforces that “Refusals to Deal” Can be a Minefield for Manufacturers

    December 02, 2016
  • Federal Judge Grants Emergency Injunction Blocking DOL’s New Salary Basis Test for White Collar Exemptions

    November 23, 2016
  • United States District Judge Issues Nationwide Injunction Forbidding the Implementation and Enforcement of the DOL’s Rule Increasing the Minimum Salary Level for Exempt Employees

    November 23, 2016
  • The FCRA: A Little Planning Could Shield Employers from a Lot of Trouble

    November 21, 2016
  • New York Client Alert: November, 2016

    November 02, 2016
  • U.S. Antitrust Authorities Now Characterize Employee Wage-Fixing & No-Poaching Agreements Between Competitors as Criminal Behavior

    November 01, 2016
  • California Insurance Code Does Not Trump Choice of Law Provision in ERISA Benefit Plans

    October 25, 2016
  • Colorado’s New Personnel File Law Goes Into Effect In January: Steps You Can Take Now To Prepare

    October 25, 2016
  • Oregon Court Affirms Duty To Indemnify Full Construction Defect Judgment, Despite Evidence That Some Damage Must Have Occurred Outside Policy Period

    October 10, 2016
  • California Enacts Two Bills Strengthening Protections for Employees

    September 29, 2016
  • Lewis Brisbois Attorneys Defeat $60 Million PAGA Case of First Impression

    September 20, 2016
  • Cal-OSHA’s Web Portal Goes Live on October 3, 2016 – Appeals Just Got Easier!

    September 13, 2016
  • Ignoring Changes to the New ‘Smart’ Form I-9 Will be Costly

    September 13, 2016
  • New York City Broadens Its Already Expansive Human Rights Law

    September 07, 2016
  • Does a New California Law Threaten Your Business? Has Your License Been Revoked? The Writ of Mandate is an Effective Tool to Challenge Government Action.

    August 29, 2016

    It is rare to find a business these days that is not subject to government regulation, especially in the State of California

  • New York & New Jersey Trial Team Update

    August 26, 2016
  • Admissibility of Biomechanical Expert Testimony

    August 24, 2016
  • San Diego Finalizes Amendments to the Earned Sick Leave and Minimum Wage Ordinance

    August 18, 2016
  • California Supreme Court Holds that Arbitrator, Not Court, Decides Whether Arbitration Agreements Permit Class-Wide Arbitration

    August 12, 2016
  • Accessibility 2.0: The Applicability of the ADA to the Internet as a Place of Public Accommodation

    August 12, 2016
  • Post-Incident Drug Testing May Be Retaliation

    August 03, 2016
  • OSHA Penalty Adjustments Take Effect August 1, 2016

    August 02, 2016
  • SB 54 Aims to Oust Non-Trades Contractors From Refinery Construction Work

    August 02, 2016
  • OSHA Turns Up the Heat in California

    July 11, 2016
  • Employment & Labor Law Client Alert - June, 2016

    June 30, 2016

    Los Angeles Paid Sick Leave Ordinance Requirements

  • Intellectual Property Client Alert - June, 2016

    June 21, 2016

    Supreme Court Upholds AIA Trial Standard For Claim Construction

  • Intellectual Property Client Alert - June, 2016

    June 17, 2016

    Supreme Court Outlines New Standards For Attorneys’ Fees Awards In Copyright Cases

  • Employment & Labor Law Client Alert - June, 2016

    June 16, 2016

    Colorado Passes New Pregnancy Accommodation Law

  • Intellectual Property Client Alert - June, 2016

    June 15, 2016

    Supreme Court Rules That Enhanced Damages In Patent Cases Will Now Be Easier To Secure

  • Employment & Labor Law Client Alert - April, 2016

    April 15, 2016
  • California Expands Personal Liability for Wage and Hour Violations and Enhances Labor Commissioner Enforcement Measures Under the New “A Fair Day’s Pay Act”

    February 02, 2016

    On October 11, 2015, Governor Jerry Brown signed into law the “A Fair Day’s Pay Act,” which expands liability for willful wage and hour violations to owners, directors, officers, and managing agents of the employer, as well as establishes new procedures the Labor Commissioner can use to enforce judgments from unpaid wages.

  • Brace Yourself for Winter Storms with Lewis Brisbois’ Polar Vortex of Litigation Booklet!

    January 01, 2016

    Brace yourself for the winter storms heading this way with the Lewis Brisbois Polar Vortex of Litigation booklet! This booklet features tips and tricks for defending and winning snow and ice cases.

  • Transportation Client Alert - August, 2015

    August 01, 2015

    Mayor de Blasio recently instituted changes to the traffic law as part of his “Vision Zero” plan to reduce the number of serious motor vehicle accidents in New York City.

  • Antitrust & Competition Law Client Alert - February 18, 2015

    February 18, 2015
  • Superstorm Sandy Coverage Bulletin

    June 27, 2014

    Both the Federal and State Courts in New York and New Jersey recently issued decisions in disputes arising from Storm Sandy. The Eastern District of New York’s “express train” discovery schedule limiting and expediting discovery in Storm Sandy cases continues. The United States District Court for the District of New Jersey has followed suit. There are over 1,000 Storm Sandy cases alone pending in the Eastern District of New York.

  • Insurance News Flash - April, 2014

    April 01, 2014

    United States District Court Finds Defective Product That Caused Property Damage An “Occurrence” Under A Commercial General Liability Insurance Policy.

  • California Governor Jerry Brown Signs Into Law Senate Bill 255

    October 21, 2013

    Governor Jerry Brown signs into law Senate Bill 255, making it a crime to publish con-consensual "Revenge Porn."

  • New Jersey Insurance Coverage Alert - October, 2013

    October 01, 2013

    A recent New Jersey Supreme Court decision held that a policyholder or claimant must exhaust the policy limits of solvent insurance carriers in long-tail, continuous-trigger cases before seeking statutory benefits from the state Guaranty Association for an insolvent insurance carrier.

  • CA Appellate Court Expands Employer Liability For Vehicle Accidents Occurring During Daily Commutes

    September 24, 2013
    Majid Moradi v. Marsh USA, Inc. (September 17, 2013) Cal. Court of Appeal, Second District
  • Three New Statutes in New Jersey Increase Employee Rights

    September 13, 2013
  • Governor Brown Signed AB 499 and SB 776 Into Law on August 27, 2013

    September 05, 2013
    AB 499 expands the protection period for civil harassment restraining orders and SB 776 asserts that no less than the general prevailing rate of per diem wages be paid to workers and imposes misdemeanor penalties for certain violations of this requirement.
  • Plaintiff Must Exhaust Administrative Remedies in Labor Code Retaliation or Discrimination Actions

    September 03, 2013
    MacDonald v. State of California (C069646) (Aug. 27, 2013)
  • California Court Concludes that Piece-Rate Workers Be Paid an Hourly Wage for Non-Piece-Rate Work

    July 30, 2013
    In Gonzalez v. Downtown LA Motors, LP (April 2, 2013) 215 Cal.App.4th 36, a California Court concluded that piece-rate workers must be paid separate hourly wage for non-piece-rate work.
  • Oregon Insurance Coverage Alert - July, 2013

    July 16, 2013

    Oregon Environmental Insurance Law Creates New Risks, Requirements & Restrictions

  • Employer Mandate To Provide Health Insurance Delayed Until 2015

    July 03, 2013
    Implementation of the Affordable Care Act's "pay or play" provisions has been delayed until at least January 1, 2015.
  • U.S. Supreme Court Holds That Title VII Retaliation Claims Utilize Principles of “But-For” Causation

    July 01, 2013
    University of Texas Southwestern Medical Center v. Nassar, 568 U.S. __ (No. 12-484)
  • U.S. Supreme Court Narrowly Defines “Supervisor” for Purposes of Title VII Vicarious Liability

    June 27, 2013
    Vance v. Ball State University, 570 U.S. ___ (2013)
  • Supreme Court Defers to Arbitrator’s Decision to Allow Class Arbitration

    June 20, 2013
    But Leaves Door Open to Let Courts Decide the Availability of Class Arbitration in the First Instance
  • Employers Must Give Employees Notice of Health Insurance Exchanges by October 1, 2013

    June 11, 2013

    The Department of Labor recently issued guidance on how and when employers are to notify employees about the availability of state-run health insurance exchanges, and provided sample notices for employers to provide to their employees. All employers must comply with this notification requirement whether or not the employer is obligated to provide health insurance or pay penalties.