Member Articles
No Surprises Act Implementing Regulations Answer Some Questions, Leave Others Pending The Departments of Health and Human Services, Labor, and Treasury, and the Office of Personnel Management recently issued an Interim Final Rule (IFR) implementing portions of the No Surprises Act enacted in December 2020... |
The Third Circuit Opens The Door to Class Actions Seeking Paid Military Leave On August 10, 2021, the Third Circuit in Travers v. Federal Express Corporation revived a class action lawsuit under the Uniformed Services Employment and Reemployment Act of 1994 (“USERRA”), holding that employers must provide servicemembers with pay during military leave when employers pay employees on “comparable types of leave... |
New COVID-19 Vaccination Requirements for California State Employees and Health Care Workers Governor Gavin Newsom and the California Department of Public Health (“CDPH”) recently issued new public health requirements in response to the increasing number of hospitalizations and ICU patients in California caused by the highly contagious COVID-19 Delta variant... |
FTC Finalizes “Made in USA” Rule in Partisan Split At the Federal Trade Commission’s (FTC) July 1 meeting, it finalized a new “Made in USA” Rule that was almost two decades in the making. The FTC issued a notice of proposed rulemaking in June 2020 and received 700 comments from stakeholders... |
Do You Import Products for Commercial Sale? Have You Heard About the ‘Forever Chemicals?’ These two worlds are colliding. If any of the products you sell contain hidden ‘forever chemicals’ you will be subject to EPA’s new reporting rule. Per- and polyfluoroalkyl substances (PFAS) are known as the ‘forever chemicals’ due to their high persistence in the environment. There are over 1,300 different PFAS chemistries of varying shapes and sizes. Concerns exist regarding their impacts on human and environmental health... |
ESG Considerations in M&A
In a recent post (“Environmental, Social and Corporate Governance: What are the Risks, Really?”), we discussed the various risks, trending issues, and emerging concerns arising from environmental, social, and corporate governance factors (“ESG”). As noted previously, neglecting ESG considerations can result in a number of risks to a company, including risks associated with the reputational, financial, and legal impacts of handling ESG issues poorly... |
Scabby the Rat, Coming to a Business Near You? It's Possible. Scabby the Rat is a familiar sight in disputes between unions and employers. Scabby, a giant inflatable rat with red eyes, fangs, and claws, is often placed outside the places of business of employers with whom a union has a labor dispute (the “primary” employer)... |
Amidst Uncertainty Surrounding the Scope of BIPA Liability, Hyatt Settles Employee Biometric Data Class Claims for $1.5 Million Use of employee biometric data – including fingerprints, eye scans, voiceprints, and facial scans – continues to be a popular, yet legally risky, proposition for employers. Several states and municipalities have laws that specifically govern the use of biometric data, the highest profile of which is the Illinois Biometric Information Privacy Act (BIPA)... |
What Cartel Enforcement Under Biden’s DOJ Might Look Like, Law360 |
FTC Changes Course and Retains Care Labeling Business re-openings, increased hiring, and a fresh batch of stimulus checks have driven a recovery in retail sales during the first half of 2021. However, the collective sigh of relief that many retailers (and their landlords and lenders) are breathing is not being shared by all... |
President Biden’s Proposal to Enhance Financial Account Information Reporting Regime on Form 1099 On May 28, 2021, President Biden released some of the legislative items that would be added by his American Families Plan, which includes a provision that could impact tax information reporting by financial institutions. If enacted, this proposal could require substantial effort to implement and administer. President Biden’s American Families Plan includes a provision which would increase the information reporting compliance requirements for financial institutions... |
The Employee Retention Tax Credit: Why Is My Refund Taking So Long? We have written previously regarding the employee retention tax credit (the “ERC”). The ERC was created by the Coronavirus Aid, Relief, & Economic Security Act (the “CARES Act”) and was expanded by the Consolidated Appropriations Act, 2021 (the “Appropriations Act”) to provide a tax credit on a per-employee basis if employers had a sufficient reduction of revenue or had a partial or complete shutdown based on a civil authority order... |
D.C. Circuit Clarifies Boundaries of Protected Employer Expressions On June 1, 2021, the U.S. Court of Appeals for the D.C. Circuit overturned a NLRB determination that a manager’s incorrect blaming of a union for discrepancies in an employee’s paid-leave time constituted an unfair labor practice. The pivotal issue was whether the manager’s statements had a reasonable tendency to interfere with employees’ labor rights. As discussed below, the D.C... |
Allegations That COVID-19 was Physically Present and Altered Property are Sufficient to Sustain COVID-19 Business Interruption Suit On Wednesday, a federal judge in Texas denied Factory Mutual’s Rule 12(c) motion for judgment on the pleadings, finding that the plaintiffs adequately alleged that the presence of COVID-19 on their property caused covered physical loss or damage in the case of Cinemark Holdings, Inc. v. Factory Mutual Insurance Co., No. 4:21-CV-00011 (E.D. Tex. May 5, 2021)... |
EEOC Gives Okay for Employer's Vaccine Incentive Programs in Certain Instances Since the beginning of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has frequently released guidance on the many employment law compliance issues that have arisen as a result of the pandemic. The latest guidance issued by the EEOC concerns whether employers may implement vaccine incentive programs to encourage employees to get vaccinated without running afoul of the Americans with Disabilities Act (ADA) or the Genetic Information Discrimination Act (GINA)... |
Class Action Litigation Trends Warn of Renewed Focus on Overdraft Practices While overdraft litigation risks have threatened the financial services industry for some time, recent class action lawsuits have trickled down to community banks. One place in particular where exposure has expanded is the increased willingness of plaintiff’s counsel to challenge the use of form account agreements and disclosures, including reliance on Regulation E’s model consent form... |
Significant Accounting Deficiencies The challenges of addressing COVID-19, government closure orders, the Paycheck Protection Program, Main Street Lending Facilities and digital banking made this past audit season more challenging than most. Not surprisingly, it has given rise to quite a number of potential significant deficiencies.1 Significant deficiencies that are not addressed will no doubt become “material weaknesses... |
D&O Insurer Muted by “Uncertainty” in Contract Exclusion, and “Complicated” Endorsements, in Headphone Manufacturer’s Liability Claim The Eighth Circuit Court of Appeals held that a D&O liability insurer could not rely on ambiguous endorsements as a basis to deny coverage for claims brought by investors against its insured company and its CEO. Reversing the Eastern District of Missouri, the appellate court in Verto Medical Solutions LLC et al. v. Allied World Specialty Insurance Co., No. 19-3511 (8th Cir... |
Ninth Circuit Rules California’s ABC Test Is Not Preempted By The Federal Aviation Administration Authorization Act In an April 28, 2021 decision, the Ninth Circuit determined that that the application of California’s ABC test (also known as AB-5) to motor carriers is not preempted by the Federal Aviation Administration Authorization Act of 1994 (“F4A”). The ABC test is a judicially-created independent contractor test that was ultimately codified via AB-5. For a more in-depth discussion of AB 5, visit our previous blog post here... |
The Trend Towards Legal Recreational Cannabis: Considerations for Employers In the first four months of 2021, Virginia, New Mexico, New York and New Jersey passed laws legalizing or decriminalizing, in some form, recreational marijuana. Exactly how these laws will affect employers in these states is still an open question, but for now, employers should understand the nuances of the laws so they can prepare for the emerging reality that is legal marijuana... |
Upcoming Fifth Circuit Hearing to Address FLSA Day-Rate Issues Most employers know the Fair Labor Standards Act (“FLSA”) requires employees to be paid time-and-one-half for all hours worked over 40 in a workweek unless an exemption applies. But what some employers don’t realize is, for the most-commonly-used overtime exemptions to apply, employees must not only satisfy various “duties” tests, but they must also be paid on a “salary basis” at not less than $684 per week... |
Virginia Enacts Employment Protections For Medical Use of Cannabis Oil On March 25, 2021, Virginia Governor Ralph Northam signed into law new protections for employees related to the medicinal use of cannabis oil. Effective July 1, 2021, the newly enacted § 40.1-27... |
Virginia’s New Overtime Law Threatens Double and Treble Damages For Employers Who Don’t Pay Up Following the flood of employee-friendly legislation during the Virginia General Assembly’s 2020 session, which included a significantly strengthened wage payment law that we previously discussed, the 2021 session resulted in the passage of yet another new wage-related law that employers need to be aware of... |
Biden's Nominee to Lead OSHA May Signal Increased Enforcement Scrutiny President Joseph R. Biden on April 12 nominated current Cal/OSHA Chief Doug Parker to lead federal OSHA. If confirmed, employers should prepare for the potential that California-style enforcement may reach the federal law. President Biden has pledged to make improved working conditions a central tenet of his administration, including support for changes to federal OSHA and the National Labor Relations Act... |
Insurer Denies Coverage for Deal Litigation Despite Bank Purchasing Runoff Coverage for Pre-Acquisition Alleged Wrongful Acts Everest National Insurance Company has filed a lawsuit denying any obligation to cover a post-acquisition lawsuit by a credit union alleging fraud against two banks and their executives. The seller paid additional premium for an extended reporting period to report claims based on pre-acquisition wrongful conduct, but the insurer denied coverage on the ground that any claims asserted by the buyer are excluded under the D&O policy’s “insured vs... |
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