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Non-Discretionary Bonuses and Overtime Pay Calculations

More employees than ever may be categorized as non-exempt when the new Department of Labor (“DOL”) salary requirement for exempt employees becomes effective on December 1, 2016. Many formerly salaried, exempt employees will be changed…more

CFPB Issues Proposed Rules Regulating Payday, Vehicle Title and Other Loans, as Permitted by Dodd-Frank

On Friday, July 22, 2016, the Consumer Financial Protection Bureau (the “Bureau”) published proposed rules and a request for public comment in the Federal Register to establish a new consumer regulation, 12 CFR 1041, which would…more

Attention—The DOL Has Made its FMLA Poster More “Reader Friendly”!

Generally, the Family and Medical Leave Act (FMLA) provides eligible employees of covered employers with up to 12 workweeks of unpaid leave for certain family and medical reasons, with continuation of group health insurance coverage…more

Eleventh Circuit Finds Insurer Liable for Medicare Lien Notwithstanding Insurer's Efforts to Satisfy the Lien in Settlement, also Grants Medicare Double its Damages

In a case with far-reaching implications, the Eleventh Circuit Court of Appeals issued an opinion concluding that the Medicare Secondary Payer Act (MSP) permits a private insurance company/PART C Medicare Advantage Organization (MAO)…more

PTAB's 1st Preliminary Reply And Surreply Under New Rules

The most recent Patent Trial and Appeals Board rule changes, effective May 2, 2016, allow petitioners to seek leave to file a reply to a patent owner preliminary response upon a showing of good cause. Amendments to the Rules of…more

Third Circuit Rejects Class Certification for Widener Law Grads

A panel of the Third Circuit Court of Appeals refused to allow class certification for a group of Widener University School of Law Graduates who allege that the law school inflated postgraduate employment rate statistics in Harnish v…more

Being a Returned Fugitive from Justice May Not Be the Worst Thing

But don’t flee justice! This is not legal advice to you, but I really don’t mean to recommend avoiding problems with federal prosecutors by going to other countries where it’s hard for those prosecutors to catch up with you. Still…more

Department of Transportation Clarifies Regulations Regarding Abandoned Pipelines

On Aug. 16, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued Advisory Bulletin ADB-2016-05 to owners and operators of pipelines used for the transportation of hazardous…more

Immigration Law Violations Occurring After November 2, 2015 Carry Heavier Penalties

Effective August 1, 2016 the Department of Justice is assessing higher penalties for employers that violate immigration laws. These penalties cover violations that occurred after November 2, 2015. Specifically, the DOJ’s interim final…more

DOL Issues Guidance on the Fair Pay and Safe Workplaces Executive Order

On August 24, 2016, the Department of Labor (DOL) issued guidance on Executive Order 13673, Fair Pay and Safe Workplaces. The Executive Order requires federal contractors and subcontractors to report violations of 14 federal laws and…more

Court Invalidates Janssen Remicade® Patent for Double Patenting; Celltrion Seeks Speedy Appeal

Janssen’s suit against Celltrion in the District of Massachusetts (C.A. No. 1:15-cv-10698) relating to a biosimilar of Janssen’s Remicade® (infliximab) is one of the few currently pending BPCIA litigations. Over the last week, there…more

Class Action Retirement Plan Litigation Hits Higher Ed Hard

In recent weeks, multiple class action lawsuits have been filed against private, nonprofit universities across the country alleging breaches of fiduciary duty and claiming millions of dollars in damages for retirement plan…more

IRS Simplifies Rules for Correcting Failed Rollover

On August 24, 2016 the IRS published Revenue Procedure 2016-47, which simplifies the steps for correcting a missed rollover from a qualified plan or IRA to another qualified plan or IRA. Amounts distributed from a qualified plan or IRA…more

BOEM advances California offshore wind leasing

U.S. ocean energy managers are moving closer to leasing sites in federal waters offshore California for wind energy development. Acting in response to a lease area requested by Trident Winds, LLC, this month the Bureau of Ocean Energy…more

BEWARE OSHA Phishing Scam Email

Employers should be cautious of an email that has been circulating to numerous employers around the country that appears on its face to be a request from OSHA to download a guidance document about “Safety & Health at U.S.: Protecting…more

You May Not Stack the Deck: SEC Announces Penalties Against Companies Requiring Employees to Waive Whistleblower Protections to Receive Severance

The Securities and Exchange Commission (“SEC”) recently announced that two companies agreed to pay penalties of more than $500,000, combined, for illegally requiring employees to waive their rights to monetary awards from the SEC’s…more

The Interplay of the Defend Trade Secrets Act, Inevitable Disclosure, and Non-Competes

When it comes to protecting one’s trade secrets, one of the most important remedies a trade secret owner may want is a court order enjoining a former employee from going to a competitor and making use the trade secret there, to the…more

Receiving Data from Europe: The EU-US Privacy Shield

The European Union ("EU") recently announced that the new EU-US Privacy Shield Agreement ("Privacy Shield") is adequate to meet EU data privacy requirements and allow for the transfer of personal data from the EU to the US in support…more

A Tale of Two Escobars: Federal Courts Begin Grappling with Opposing Views of “Materiality”

On June 16, 2016, the U.S. Supreme Court issued a highly anticipated opinion in Universal Health Services, Inc. v. U.S. ex rel. Escobar, which for the first time expressly recognized implied certification as a viable theory under the…more

Susan E. Rich: A Legacy of "Firsts"

Susan Elliott Rich is a legend at Baker Donelson. In fact, she holds all of the "firsts" – first female shareholder, first woman to be an Office Managing Shareholder and first woman appointed to the Firm's Board of Directors. None of…more

Nationwide EAS Test Now Just One Month Away

As the summer winds down and the weather cools off, action around the Emergency Alert System (“EAS”) is heating up. Hopefully by now, if you are an EAS participant, which includes all cable television systems, radio stations, and both…more

Whistleblower’s Claim Survives Dismissal and Death

The Energizer Bunny has nothing on the whistleblower claim of Robert Cunningham. Here’s what’s happened since Robert files his qui tam action against Millennium Labs back in 2009: the government declined to intervene; seven more…more

NLRB Rules that Student Assistants Can Unionize; Debate May Now Shift to Whether They Should

In a sweeping decision issued on August 23, 2016, the National Labor Relations Board reversed its 2004 holding in Brown University that graduate students are not employees under the National Labor Relations Act. The Board ruled that…more

A Constitutional Challenge to Florida's New Unclaimed Property Act Amendments

In April, Florida amended its Disposition of Unclaimed Property Act (“Act”) to require life insurers to perform Death Master File (DMF) searches for all policies issued since 1992. The amended Act also provides that a DMF match creates…more

SBA Final Rule on Mentor-Protégé Programs for All Small Businesses Becomes Effective

The Small Business Administration (SBA) issued a long-awaited final rule establishing a new, expanded mentor-protégé program that will allow all types of small businesses to qualify as protégés, while retaining, but slightly revising…more

District Court Dismisses Challenge to Biological Opinions In Light of Circuit Court’s Exclusive Jurisdiction

Primarily relying on precedent from the U.S. Court of Appeals for the Ninth and D.C. Circuits, the U.S. District Court for the District of Maine recently dismissed an Endangered Species Act (ESA) lawsuit challenging two biological…more

Shoddy Harassment Investigation Comes Back To Bite Employer

Employers, has this ever happened to you? An employee has accused her boss of sexual harassment. Right now, it’s her word against his, but you might be able to find out the truth if you interview her co-workers. The only…more

New IRS Management Guidance is Flexible, Furthers P3s

State and local governments and 501(c)(3) organizations have been given very flexible guidance by the IRS for longer-term private management of tax-exempt bond financed projects to facilitate general operations and major infrastructure…more

Labor Department Settles Overtime Pay Dispute with Its Own Employees

The Department of Labor (DOL) has agreed to pay $7 million to resolve claims that it failed to pay overtime to thousands of its own employees. The settlement reached with the American Federation of Government Employees Local 12 (AFGE)…more

Cybersecurity Risks to the Manufacturing Sector

The 2016 Manufacturing Report by Sikich finds that there has been a progressive growth in cyber-attacks in the manufacturing sector. This is consistent with the most recent IBM /X-Force Research 2016 Cyber Security Intelligence Index…more

Modern slavery reporting rises five-fold

Recent reports have suggested that there has been a steep rise in modern slavery reporting. This indicates that efforts to highlight the issue have been somewhat successful. The Salvation Army has confirmed that it supported 1,805…more

Why Should Employers Take Pregnancy Discrimination and Accommodation Seriously? Here Are More Than 500,000 Reasons Why.

Doris worked for the Chipotle restaurant chain. And she was pregnant. After she announced her pregnancy to her supervisor, Doris claimed her boss began monitoring her bathroom breaks (then berated her for taking too long), required her…more

Time to Disrupt Insurance Regulation?

Innovators are not only disrupting the financial industry but also financial regulation as regulators weigh how to monitor financial technology (fintech) innovators and their new products and services. As they begin to address…more

Lessons from History and a Best Practices Compliance Program

I am on assignment in Oxford on a two-week study course, focusing on the Tudors. For the first week we focused on Richard III to the end of Henry VIII’s reign. Although Richard III was not a Tudor, we began with him to study the ‘bad…more

Time to Review Your Severance Agreements

In August 2016, the SEC issued cease-and-desist orders against two different companies for using severance agreements which required exiting employees to waive their ability to obtain monetary awards under the SEC’s whistleblower…more

CFPB report on community networks to combat elder financial abuse and resource guide highlight role of financial institutions

The CFPB has issued a new elder financial abuse report, “Report and Recommendations: Fighting Elder Financial Exploitation through Community Networks,” and a related resource guide, “A Resource Guide for Elder Financial Exploitation…more

Canadian Securities Laws, Issuer Websites and Social Media: Do The Evolution

A lot has changed since the ’90s and change has, for the most part, been a good thing, although I still have a nostalgic yearning to wear plaid flannel and Doc Martens again. Despite the astonishing technological developments over the…more

Court Finds Spokeo Closes Door on TCPA Claim

A federal district judge has paved the way to a successful defense for Telephone Consumer Protection Act (TCPA) claims on standing grounds post-Spokeo. In Romero v. Department Stores National Bank, et al., No. 15-CV-193 (S.D. Cal. Aug…more

Rio, Swimming, Lies, and Morals Clauses

This week, four companies announced that they were cutting ties with Ryan Lochte after the swimmer admitted to lying about being robbed at gunpoint during the Olympics. Speedo, for example, said that although they enjoyed the…more

Another Blow to Medicare “Self-Disallowance” Rule

You can tell by its name that you won’t like the Medicare “self-disallowance” rule. The federal district court for D.C. didn’t like it, either, and gave a group of Banner Health hospitals summary judgment that the rule was invalid as…more

FTC Overturns ALJ’s LabMD Decision and Reasserts its Role as a Data Security Enforcer

On July 29, 2016, the Federal Trade Commission (“FTC” or “Commission”) reversed an FTC administrative law judge’s (“ALJ”) opinion which had ruled against the FTC, finding that the Commission had failed to show that LabMD’s conduct…more

Federal Circuit Holds the PTAB Must Apply Narrower Phillips Claim Construction Standard to Patents that Expire During Pendency of Re-exam

In In re CSB-System Int’l, Inc., No. 15-1832 (Fed. Cir. Aug. 9, 2016), the Court of Appeals for the Federal Circuit recently held that patents that expire during a pending re-examination before the Patent Trial and Appeal Board…more

The SBA’s Two New Recertification Rules

The Small Business Administration (“SBA”) has issued two more regulations that will require that small businesses recertify their size when they engage in a merger and/or acquisition (“M&A”). The regulations, published in conjunction…more

What Is "Litigation" for Work Product Protection Purposes?

Fed. R. Civ. P. 26(b)(3) and its state counterparts protect from discovery "documents and tangible things that are prepared in anticipation of litigation." This obviously includes civil litigation. But what about other forms of…more

What Does Illinois' New Employee Sick Leave Act Mean to Employers?

On August 19, 2016, Governor Rauner signed HB 6162, the Employee Sick Leave Act (the Act), permitting an employee to use “personal sick leave benefits” for family care purposes. The Act, which takes effect on January 1, 2017, provides…more

Final Rule and Guidance on Fair Pay & Safe Workplaces Released

Today the Federal Acquisition Regulatory Council published its Final Rule and the U.S. Department of Labor issued its Final Guidance to implement President Obama’s Fair Pay and Safe Workplaces Executive Order. The new documents are…more

Is It Possible to Dodge Liability for Anti-Money Laundering?

Dodge, duck, dip, dive, and… dodge. Unfortunately, these five rules apply not only to dodgeball players but also to employees attempting to evade detection as they engage in money laundering and other financial crimes. As unlawful…more

Shandong Province Issues the Air Pollution Prevention Act

The Shandong Province has issued the Air Pollution Prevention Act in order to combat air pollution, protect and improve the atmospheric environment, protect public health, promote the construction of ecological civilization, and…more

European Commission Adopts Technical Standards Detailing the Reporting of Transactions Obligations under MiFIR

The European Commission adopted a Commission Delegated Regulation in the form of Regulatory Technical Standards supplementing the Markets in Financial Instruments Regulation. MiFIR will, from January 3, 2018, require an investment firm…more

New Zealand Issues Guidance for Major Hazard Facilities

The Health and Safety at Work (Major Hazard Facilities) Regulations 2016 came into force on April 4, 2016. It provides specific requirements for specified major hazard facilities. In order to help facilities maintain compliance with…more

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