April 19, 2018

Current News and Updates Labor and Employment Special Edition 2018

LABOR DEPARTMENT RESUMES OPINION PROGRAM, REISSUES 17 RESCINDED LETTERS THE U.S. DEPARTMENT OF LABOR (DOL) HAS REISSUED 17 opinion letters originally issued in January 2009 during the last few weeks of the Bush administration but later withdrawn by the Obama administration “for further consideration.” The Obama administration subsequently discontinued the practice of issuing opinion letters, opting instead...

April 19, 2018

2017 Tax Act Impact on Employee Benefits and Executive Compensation

By: Richard Lieberman , Dykema Gossett PLLC THE TAX REFORM LEGISLATION ENACTED IN LATE 2017, known as the Tax Cuts and Jobs Act (Pub. L. No. 115-97) (the Tax Act), made relatively few far-reaching and substantive changes in the area of executive compensation and employee benefits. These changes, summarized in this article, primarily focus on (1) the non-deductibility of excessive employee compensation by publicly held...

April 19, 2018

Conducting Pay Equity Audits

By: Jeffrey M. Landes and Ann Knuckles Mahoney , Epstein Becker & Green, P.C. This article provides advice and guidance to employers regarding how to ensure compliance with equal pay laws, particularly the Equal Pay Act of 1963 (EPA). ALTHOUGH THE EPA HAS BEEN IN EFFECT FOR 50 YEARS, it gained renewed momentum with the Obama administration’s creation of the National Equal Pay Enforcement Task Force, composed...

April 19, 2018

Wage and Hour Self-Audits Checklist

By: Michael S. Kun , Jeffrey H. Ruzal , and Kevin Sullivan , Epstein Becker & Green, P.C. This checklist identifies the main risk categories for wage and hour self-audits. To avoid potentially significant liability for wage and hour violations, employers should consider wage and hour self-audits to identify and close compliance gaps. Preserve the Attorney-Client Privilege/Work Product Audits often involve the...

April 19, 2018

Admissibility of “Me Too” Evidence

By: Kathryn T. McGuigan and Justin Hanassab , Morgan, Lewis & Bockius LLP Introduction In early Fall 2017, the #MeToo campaign exploded into a movement across social media demonstrating the prevalence of sexual assault and harassment in the workplace. Countless public revelations of sexual misconduct allegations against Hollywood producer Harvey Weinstein and other well-known powerful men ignited the movement...

April 19, 2018

Counseling Employers on the Legal Implications of Artificial Intelligence and Robots in the Workplace

By: Richard R. Meneghello , Sarah J. Moore , and John T. Lai , Fisher & Phillips LLP This article provides guidance and best practices for counseling employers on the legal implications of integrating artificial intelligence (AI) and robots into their workplaces. Reductions in Force Due to Artificial Intelligence and Robotics Thanks to recent technological advances, AI algorithms and robots are developing the...

April 19, 2018

Separation Agreements: Drafting and Negotiation Tips For Employers

By: Marc E. Bernstein , Paul Hastings LLP This article addresses initial preparations for drafting a separation agreement and common terms that employers ordinarily should include, or at least consider including, in separation agreements. WHEN TERMINATING AN EMPLOYEE’S EMPLOYMENT, THE employer often requests that the departing employee execute a separation agreement. In doing so, the employer seeks to obtain...

April 19, 2018

Guidance for Employers on ERISA Discrimination, Retaliation, and Whistleblower Claims

By: Brian M. Murray , Baker & Hostetler LLP This article discusses aspects of Section 510 of the Employee Retirement Income Security Act (ERISA) (29 U.S.C. § 1140), which prohibits interference with benefits and retaliation for the exercise of rights under ERISA and ERISA employee benefit plans. The prohibition applies to employee pension benefit plans and employee welfare benefit plans, to vested and unvested...

April 19, 2018

Partnership and LLC Equity Compensation

By: Richard Lieberman , Dykema Gosset PLLC This article addresses fundamental considerations in structuring equity compensation for general and limited partnerships, as well as limited liability companies (LLCs) that are classified as partnerships for federal income tax purposes. IT SUMMARIZES THE EQUITY-BASED ARRANGEMENTS USED by entities taxed as partnerships to provide key service providers the opportunity to become...

April 19, 2018

Locating Missing Retirement Plan Participants

By: Hannah DeLuca , W. Andrew Douglass , and Elizabeth Bray , Polsinelli P.C. This article addresses the steps that plan sponsors and fiduciaries must take to locate and notify missing participants in qualified defined contribution and qualified defined benefit plans regarding benefits that are due to them under the plan. PLAN ADMINISTRATORS ARE OBLIGATED UNDER THE Employee Retirement Income Security Act (ERISA) to...

April 19, 2018

Recourse for Trade Secret Misappropriation under the Federal Defend Trade Secrets Act

By: Bret Cohen , Nelson Mullins and Amanda Carozza , Mintz Levin, P.C. THE DEFEND TRADE SECRETS ACT OF 2016 (DTSA), 130 STAT. 376, allows U.S. employers to protect against and remedy misappropriation of trade secret information in federal court. Before the enactment of the DTSA, in the absence of diversity jurisdiction, employers seeking redress had no choice but to sue in state court. While most states have adopted...

April 09, 2018

NEW – Lexis Practice Advisor Special Alert: Civil Procedure Issues in the Stormy Daniels – President Trump Case Featuring Jim Wagstaffe

The case of President Trump and Stormy Daniels actually raises some interesting federal civil procedure. In the following video, noted expert Jim Wagstaffe of The Wagstaffe Group speaks about the high profile case and contends that the lawyers for both President Trump and Stormy Daniels would benefit from the practical guidance in his Lexis content, specifically the sections on removal, venue, and arbitration clauses...

March 01, 2018

Current Updates and Legal Developments Spring 2018

U.S. DEPARTMENT OF LABOR SETS NEW GUIDELINES FOR INTERN COMPENSATION THE U.S. DEPARTMENT OF LABOR (DOL) HAS ADOPTED new guidelines for determining whether interns working at for-profit companies are entitled to compensation under the federal Fair Labor Standards Act (FLSA). The DOL abandoned its six-part analysis for deciding if an intern meets the requirements for employee status under the FLSA in favor of a seven...

March 01, 2018

Drafting Advice: Avoiding Disastrous Force Majeure Clauses

By: Timothy Murray MURRAY, HOGUE & LANNIS Botched Force Majeure Clauses Expose Your Client to Needless Risk As if on autopilot, attorneys sometimes tack onto their contracts generic force majeure clauses, just because everybody else does it, without bothering to tailor the clause to the particular transaction. Force majeure clauses are among the most misused provisions in the contract drafting milieu, and a botched...

March 01, 2018

Top 10 Practice Tips: Real Estate Investment Trust IPOs

By: Daniel P. Adams, Gilbert G. Menna , and Ettore A. Santucci Goodwin Procter LLP LIKE ALL IPOS, THE FUNDAMENTAL PROCESS FOR A REIT IPO involves the preparation of a registration statement (albeit on a Form S-11 instead of a Form S-1), including a prospectus, and a roadshow to be used to market the offering, as well as numerous corporate governance documents necessary to prepare the company to be a public company and...

March 01, 2018

Drafting Office Relationship Contracts Protecting Employers

By: Julie M. Capell Davis Wright Tremaine LLP                         ONCE AN EMPLOYER BECOMES AWARE OF A CONSENSUAL, romantic relationship between two employees, the human resources manager, or other equivalent professional, should meet with the employees—separately—to discuss the office relationship contract. During...

March 01, 2018

Cyber Risks in the Workplace: Guidance for Employers on Managing Insider Threats

By: Lindsay Burke and Moriah Daugherty Covington & Burling LLP Today, among the most critical risks a company can face are the cyber risks associated with its own employees or contractors. Companies are confronting an increasingly complex series of cybersecurity challenges with employees in the workplace, including employees failing to comply with established cybersecurity policies, accidentally downloading an attachment...

March 01, 2018

The Tax Cuts and Jobs Act: Insights and Planning Tips from Corporate/Business Portions of New Tax Law

By: Jerred Blanchard Baker & McKenzie LLP Background On December 20, 2017, for the first time in 30 years, Congress passed major tax legislation in the form of the Tax Cuts and Jobs Act of 2017, Pub. Law No. 115-97 (Act), signed into law by President Donald J. Trump on December 22, 2017. The legislative text and a joint explanatory statement (Conference Agreement or Conference Report) were released by the Conference...

March 01, 2018

Biometric Information Protection: The Stage is Set for Expansion of Claims

By: Torsten M. Kracht, Michael J. Mueller, Lisa J. Sotto, and Daniella Sterns Hunton & Williams LLP Litigation alleging the improper collection and storage of biometric data is being driven by the Illinois Biometric Information Protection Act (BIPA). The authors of this article discuss two headline-grabbing cases and which technologies and jurisdictions are next. ALTHOUGH SEVERAL STATES HAVE ENACTED OR PROPOSED...

March 01, 2018

Preparing for Random Trademark Registration Audits

By: Janet Marvel Pattishall, Mcauliffe, Newbury, Hilliard & Geraldson LLP The U.S. Patent and Trademark Office (USPTO) is commencing random audits of trademark registrations in which Declarations of Use have been filed to verify that the registered mark is in use on all of the goods and services in the registration. All applicants and registrants, particularly those foreign companies that have filed under the Madrid...

March 01, 2018

Start-up Seed Financing

By: Kristine Di Bacco and Doug Sharp Fenwick & West LLP Start-up companies use seed financings primarily to raise the capital required to build a minimum viable product and test their product-market fit. This article provides guidance to company counsel and founders on how to identify a seed investor and choose the financing method that best fits the company’s needs. The article assumes that the company is...

March 01, 2018

Market Trends: Shareholder Proposals

By: Trevor S. Norwitz , Sabastian V. Niles , Avi A. Sutton and Anna S. Greig Wachtell, Lipton, Rosen & Katz Shareholder proposals are a popular and effective mechanism enabling shareholders to recommend or require that a company and/or its board of directors take a specified action. TO BE ELIGIBLE TO SUBMIT A PROPOSAL FOR CONSIDERATION at a meeting of the company’s shareholders and have such proposal included...

March 01, 2018

Market Trends: Middle Market Loans

By: Patrick Yingling and Aleksandra Kopec King & Spalding What is the “middle market” of the U.S. leveraged loan market? While there is no checklist for what constitutes the middle market, the two basic parameters are that the borrower has between $10 million and $100 million of annual earnings before interest, taxes, depreciation, and amortization (EBITDA) and the aggregate loan size is in the range...

January 10, 2018

Profiles of Lexis Practice Advisor Journal™ Advisory Board Members Tyler Dempsey & Lawrence Weinstein

Tyler B. Dempsey: Troutman Sanders LLP TYLER B. DEMPSEY IS A PARTNER IN the Atlanta office of Troutman Sanders LLP, focusing on the representation of public and private companies in mergers and acquisitions. In addition, he has significant experience with spin-offs, joint venture transactions, private equity financings and general corporate and securities matters. Tyler also has experience in representing payment processing...

December 19, 2017

Current Updates and Legal Developments

D.C. COURT ORDERS EEOC TO RECONSIDER WORKPLACE WELLNESS RULES IN AN ACTION BROUGHT BY THE AMERICAN ASSOCIATION of Retired Persons (AARP), the U.S. District Court for the District of Columbia has ordered the U.S. Equal Employment Opportunity Commission (EEOC) to reconsider two regulations related to employer-sponsored wellness programs. AARP v. U.S. Equal Employment Opportunity Comm’n, 2017 U.S. Dist. LEXIS 133650...