Month: February 2020

Labor & Employment

NLRB Issues Final Rule on Joint-Employer Standard

lawyer and client
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Written by Jeremy Mittman

Why This Matters

On Tuesday, the National Labor Relations Board (“NLRB” or the “Board”) announced that, on February 26, 2020, it will issue its final rule governing joint-employer status under the National Labor Relations Act (“NLRA”).  Under the NLRB’s final rule, an entity may be considered a joint employer of a separate employer’s employees only if the two share or co-determine the employees’ essential terms and conditions of employment.  “Essential terms and conditions of employment” are specifically defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.  The Board’s intent in issuing the final rule is to restore the joint-employer standard that was applied for many years prior to the Board’s 2015 decision in Browning-Ferris.

The final rule will be effective April 27, 2020.  The NLRB’s Fact Sheet regarding the final rule is available here.

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Labor & Employment

California High Court Rules That Employers Must Pay Employees For Exit Searches

Apple Store interior reflected with customers waiting in line outside
Photo Credit: istock.com/AdrianHancu

Written by Carly Epstein

Why This Matters

Last week, the California Supreme Court dealt tech giant Apple Inc. a blow when the Court ruled that California law requires the company to compensate employees for the time they spend waiting for company-required searches before leaving Apple’s retail stores.

To the extent California employers require their workers to undergo unpaid security screenings, the Apple ruling means employers must now either compensate their employees for that time or dispense with their mandatory bag-check/security screening policies.  If the latter isn’t an option, employers may be best served by speeding up their security screens.  The Supreme Court suggested several measures an employer could adopt to limit the scope of searches, such as imposing “reasonable restrictions on the size, shape or number of bags” workers bring and providing workers with off-site lockers in which to store their personal items.

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Labor & Employment

California’s Mandatory Arbitration Agreement Ban Stopped In Its Tracks

Written by Alfredo Ortega Last week, the U.S. District Court for the Eastern District of California granted a request for a preliminary injunction to prohibit the State of California from enforcing Assembly Bill 51 (AB 51) as to arbitration agreements governed by the Federal Arbitration Act (FAA).  AB 51 generally bars conditioning employment or employment-related benefits on the signing of an arbitration agreement covering claims … Continue reading California’s Mandatory Arbitration Agreement Ban Stopped In Its Tracks

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Cybersecurity, Regulatory

New Revisions to the CCPA

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By Susan Kohn Ross

The California Consumer Privacy Act (“CCPA”) took effect on January 1, 2020. In October 2019, the California Attorney General (“CA AG”) published proposed regulations. In the lead up to January 1, 2020, the CA AG repeatedly made the point that those subject to the CCPA should plan for compliance with its broad principals by the first of the year, while admitting enforcement would not start until the regulations were final, meaning July 1, 2020. As part of this process, the CA AG advised he did not expect there to be significant changes to the regulations between October and July. However, upon receiving comments to those October proposed regulations, he changed his mind and on February 7, 2020 revised regulations were issued. A subsequent notice on February 10, 2020 corrected the earlier publication, which omitted certain updates.

To be clear, some of the changes were long awaited (such as what the “Do Not Sell My Personal Data” button looks like), while others were unexpected (such as the change to the training requirement by raising the level of records from four million to ten million). This Alert will summarize the key proposed changes. Continue reading “New Revisions to the CCPA”

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Intellectual Property

New USPTO Guidelines for Electronic Filings and Specimens

Trademark, Patent, USPTO, TTAB, TEAS, Email
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By Alesha M. Dominique and Dima S. Budron

On February 15, 2020, the United States Patent and Trademark Office’s (USPTO) new rules will go into effect (84 Fed. Reg. 37081) requiring applicants, registrants, and parties to a proceeding before the Trademark Trial and Appeal Board (TTAB) to provide their own email address to receive USPTO correspondence, and file all trademark submissions electronically using the Trademark Electronic Application System (TEAS), with limited exceptions.  In addition, the new rule amends the requirements for specimens in accordance with the Trademark Act and precedential case law.

Requirement to Provide Applicant, Registrant and Party Email Address

As of February 15, 2020, applicants, registrants, and parties to a proceeding before the TTAB, will be required to provide and maintain their own valid email address for receipt of correspondence from the USPTO.  This requirement is in addition to the attorney address that is already required.  The applicant’s, registrant’s, or party’s email address will be publicly displayed along with other contact information already available in the USPTO’s public database. Continue reading “New USPTO Guidelines for Electronic Filings and Specimens”

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Corporate, Start 'n Knupp

SEC Commissioner Hester Peirce’s Provocative Crypto Proposal

Financial technology concept. Fintech. Crypto currency. Electronic money. Cashless payment. Modern Monetary Theory.
Photo Credit: istock.com/metamorworks

By Mark T. Hiraide

In an unusual and courageous move last week, SEC Commissioner Hester Peirce (aka “Crypto Mom”) urged the Securities and Exchange Commission to adopt a rule that would exempt the sale of tokens or cryptocurrencies from most provisions of the federal securities laws. It’s courageous in its scope and unusual because she (and her staff) drafted the proposed rule leaving the SEC few excuses to avoid considering it.

If adopted by the SEC, the rule will allow anyone to conduct initial coin offerings (ICOs) of tokens intended to be used to develop a decentralized or functional network, provided, that “Network Maturity” occurs within three-years. “Network Maturity” is defined by the proposed rule as when the network is either (i) no longer controlled by a single group or (ii) is functional, as demonstrated by the ability of token holders to use tokens for the transmission and storage of value, to prove control over the tokens, to participate in an application running on the network or in a manner consistent with the utility of the network. Continue reading “SEC Commissioner Hester Peirce’s Provocative Crypto Proposal”

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International Business, International Trade

New Executive Order Addresses E-Commerce and Counterfeit Goods

Close Up Of Woman At Home Looking Up Information About Medication Online Using Laptop
Photo Credit: istock.com/Daisy-Daisy

By Susan Kohn Ross

 

On January 31, 2020, President Trump issued Executive Order 13904 (“EO”) entitled “Ensuring Safe & Lawful E-Commerce for U.S. Consumers, Businesses, Government Supply Chains, and Intellectual Property Rights.” It begins by stating that e-commerce is “being exploited by traffickers to introduce contraband into the United States, and by foreign exporters and United States importers to avoid applicable customs duties, taxes and fees.” The types of malfeasance cited are counterfeit goods, narcotics (specifically synthetic opioids, such as fentanyl), and other contraband, plus, of course, protection of the revenue. The focus of the EO is on express consignment operators, carriers, hub facilities, international posts, customs brokers and e-commerce platform operations (the “Regulated Parties”). Anyone who participates in the “introduction or attempted introduction” of parcels containing contraband can be held accountable with accountability taking the form of both civil and criminal consequences, as appropriate. The EO goes on to state that CBP’s suspension and debarment procedure will form the framework through which these actions will be carried out. Suspension and debarment apply in the context of doing business with the government, such as government contracts, subcontracts, grants, loans and other assistance programs.

Continue reading “New Executive Order Addresses E-Commerce and Counterfeit Goods”

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Immigration, International Business

New Travel Restrictions for New Yorkers

Freedom Tower, Manhattan, New York
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Department of Homeland Security Suspends New York Residents From Enrolling in Global Entry and Other Trusted Traveler Programs

By Benjamin Lau and Susan Kohn Ross

New York residents may no longer be able to enroll (or re-enroll) in Global Entry and other Trusted Traveler Programs, according to recent action by the Department of Homeland Security (“DHS”).

On February 5, 2020, Acting Homeland Security Secretary Chad Wolf announced DHS was suspending enrollment in Global Entry, NEXUS, SENTRI, and FAST for all New York state residents.  This announcement does not affect residents of other U.S. states and jurisdictions who may continue to use, enroll or re-enroll in these programs.  No information was provided regarding how long the suspension would be in effect, although the way the DHS letter to New York state officials was worded makes it seems further discussions between DHS and those officials may be possible.  The stated reason for the restriction is New York’s denial of access to DHS of its Department of Motor Vehicle data for immigration enforcement and criminal history/involvement purposes.  An open question remains as to whether grounds exist to bring court action or some other form of legal challenge given DHS invoking law enforcement considerations as the basis for its actions. Continue reading “New Travel Restrictions for New Yorkers”

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