Impact of New Massachusetts Noncompete Law on Emerging Tech Companies

Posted in Contracts, emerging technology, GT Alert, Massachusetts, non-competition agreements, start-ups

The Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L, has been the law of the Commonwealth for almost four months. The statute only applies to agreements entered into between employers and certain employees and independent contractors on or after Oct. 1, 2018, so the law’s ramifications are still largely yet to be determined. Nevertheless, even in the short time the law has been operative, its implications for emerging technology and start-up companies have been significant.

To read the full GT Alert, click here.

Illinois Supreme Court Holds No Showing of Actual Harm Needed to State Claim Under Biometric Information Privacy Act

Posted in GT Alert

In a unanimous decision issued Jan. 25, 2019, the Illinois Supreme Court held that a plaintiff need not plead or prove actual harm to bring a claim under Illinois’ Biometric Information Privacy Act (BIPA). The court’s decision in Rosenbach v. Six Flags Entertainment Corp. settles a split among Illinois’ appellate courts, which centered on what a plaintiff needs to plead to be considered “aggrieved” under BIPA.

BIPA, 740 ILCS 14/1, et seq, regulates how private entities may collect and use an individual’s biometric information (e.g., fingerprint, facial feature, or retina information). Illinois is one of a few states that has enacted a statute to protect biometric information, and it is the only state that provides a private cause of action for individuals. Under BIPA, “[a]ny person aggrieved by a violation of [the] Act shall have a right of action.” (Emphasis added.) 740 ILCS 14/20.

To read the full GT Alert, click here.

Top Massachusetts Court Rules in Favor of Employer in Wage Act Case of Calixto v. Coughlin

Posted in earned wages, fiduciary, GT Alert, Litigation, Massachusetts, State Law, wages, WARN

On Dec. 28, 2018, in Calixto v. Coughlin, the Supreme Judicial Court of Massachusetts (SJC) issued a unanimous opinion in favor of Greenberg Traurig’s clients, former officers of a defunct company. The SJC upheld the dismissal of Calixto’s claims alleging violation of the Massachusetts Wage Act, G. L. c. 149, § 148 (Wage Act), and breach of fiduciary duty. Calixto involved an issue of first impression under Massachusetts law – whether damages awarded for a violation of the federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101-2109 (2018) (WARN Act) constitute “earned wages” under the Wage Act, for which officers of the company can be held individually liable.

To read the full GT Alert, click here.

OSHA Continues to Increase the Maximum Penalty Amounts for Citations

Posted in GT Alert, OSHA

On Jan. 15, 2019, the U.S. Occupational Safety and Health Administration issued a notice announcing another increase in the maximum penalty amounts for violations of federal Occupational Safety and Health standards and regulations. Under the new structure, the maximum penalty for “Willful” or “Repeated” violations is $132,598. Moreover, the maximum penalty for “Failure to Abate” violations is $13,260 per day after the abatement date. Finally, the maximum penalty allowed for “Serious,” “Other-Than-Serious,” and “Posting Requirements” violations is $13,260. In addition, states that operate their own Occupational Safety and Health plans are required to adopt maximum penalties levels that are at least as effective as federal OSHA’s.

To read the full GT Alert, click here.

2018 Year in Review: California L&E

Posted in Compensation, Discrimination, EEOC, Federal Law, GT Alert, Harassment, Independent Contractors, Legislation, Litigation, Retaliation, Sexual Harrassment, State Law, Wage & Hour

There are myriad special rules for employers operating in California, and even more were signed into law last term. 2018 was Jerry Brown’s last year of his second “two-term” round as governor. Both legislatively and judicially, 2018 was a busy year, with the legislature sending more than 1,000 bills to the governor. This GT Alert discusses the bills signed into law that will affect California employers and pertinent case-based developments in California labor and employment.

To read the full GT Alert, click here.

New Jersey Federal Court Declares State’s New Equal Pay Act Does Not Apply Retroactively – Will State Courts Agree?

Posted in Compensation, Equal Pay, GT Alert, New Jersey, State Law, Uncategorized

On Jan. 15, 2019, U.S. District Judge William J. Martini ruled that New Jersey’s newly minted Diane B. Allen Equal Pay Act (NJEPA), enacted April 24, 2018, and by its terms effective July 1, 2018, “is not retroactively applicable to conduct occurring prior to its effective date.” Perrotto v. Morgan Advanced Materials, PLC. While Judge Martini’s well-reasoned decision is for employers a welcome early contribution to NJEPA jurisprudence, it remains to be seen whether New Jersey state courts take a different view.

To read the full GT Alert, click here.

The LAUSD Strike and Its Impact on Employers

Posted in GT Alert, Labor, LAUSD strike

Jan. 17, 2019, marks the fourth day of the Los Angeles Unified School District (LAUSD) teachers’ strike. For now, the nation’s second largest school district is using substitute teachers to keep classrooms open on a regular schedule for the hundreds of thousands of elementary, middle, and high-school students LAUSD serves, though as discussed below, certain programs for younger children have been suspended.

The strike, which includes not only teachers but also other school staff such as nurses, librarians, and counselors, raises serious questions for parents: Should they send their children to thinly staffed schools or keep them home? How long will the strike last? How long can the current arrangement continue? What can they do if they’re scheduled to work but have a young child whose early education program is closed, or an older child with medical or special needs? It also raises questions for employers.

If your business employs anyone with young and school-age children (or even grandchildren), you already may have started fielding questions from parents about time off to find care or supervision for them during the strike. What you may not have realized is that, depending on the size of your business, California’s child-related activities leave law may enable some of your employees to take job-protected time off – up to 40 hours per year – to deal with school and child care-related issues. Cal. Lab. Code § 230.8. This GT Alert provides a brief overview of the obligations employers may have under this law to provide time off for parents and grandparents of young and school-age children or grandchildren.

To read the full GT Alert, click here.

Greenberg Traurig Adds Veteran Employment Litigator Charles Thompson in San Francisco

Posted in ERISA & Employee Benefits Litigation

San Francisco employment attorney Charles O. Thompson has moved to global law firm Greenberg Traurig, LLP as a shareholder, further strengthening the firm’s Global Labor and Employment Practice. Thompson, a seasoned employment trial lawyer, was formerly managing partner of Polsinelli’s San Francisco office and chair of its Class Action Practice. He has extensive experience litigating employment-related issues for public and private companies, having handled over 1,000 employment matters for clients ranging from Fortune 500 companies to Silicon Valley startups.

“Chuck’s broad experience and reputation as one of the nation’s leading labor and employment attorneys further enhance and complement our strong and growing presence in the western states’ labor and employment community,” said Chuck Birenbaum, who serves as Greenberg Traurig’s chair of Northern California. “We are experiencing strong client demand in class actions and high exposure cases, leading us to reach out to experts like Chuck Thompson. We are thrilled to welcome him to our San Francisco office.”

To read the full press release, click here.

New Year’s Resolution: Prepare Yourself for an IRS or DOL Plan Audit

Posted in Compensation, Department of Labor, ERISA & Employee Benefits Litigation, Federal Law, fiduciary, GT Alert, Retirement, Tax

How confident are you that your company’s retirement plans are being run in accordance with all legal requirements under the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC)? Are you comfortable with the integrity of the annual representations made to your plan auditor that key benefit-plan controls are in place to make sure that your retirement plans are operated pursuant to their terms and applicable law? This Alert addresses what questions you should be asking when attempting to potentially minimize monetary sanctions, serious consequences to your employees, and personal liability for company officials who are ERISA-plan fiduciaries responsible for the investment of plan assets and plan administration that can stem from an IRS or DOL Plan audit.

To read the full GT Alert, click here.

New Patient-Brokering Prohibitions Affect Treatment Facilities and Laboratories

Posted in Compensation, Federal Law, GT Alert, Independent Contractors, Legislation, opioids

Congress passed the Eliminating Kickbacks in Recovery Act (the Act) in 2018 to prevent “patient brokering” in treatment for substance abuse disorders. The Act imposes criminal penalties against anyone who knowingly and willfully “solicits or receives any remuneration . . . in return for referring a patient or patronage to a recovery home, clinical treatment facility, or laboratory” or who knowingly and willfully “pays or offers any remuneration . . . to induce a referral of an individual to a recovery home, clinical treatment facility, or laboratory; or in exchange for an individual using the services of that recovery home, clinical treatment facility, or laboratory.”

The Act applies to all payors, even where no Federal program dollars are at play. Penalties are harsh and may include a fine up to $200,000 and imprisonment for up to 10 years. Because the Act broadly defines the facilities that are subject to its restrictions, any entity or individual providing addiction-treatment and recovery services (even if only as a minor part of their service offerings) and clinical laboratories should evaluate arrangements with referral sources to ensure compliance with the Act.

To read the full GT Alert, click here.