First Round of Defend Trade Secrets Act Complaints Alleging Misappropriation Activity Both Before and After DTSA’s Enactment: Will They Stick?

This is a guest post from our colleagues in Reed Smith’s Intellectual Property, Information and Innovation Group. For additional reading on the Defend Trade Secrets Act, please see our prior Employment Law Watch blog post, “New Immunity Given To Employees Who Disclose Employer Trade Secrets.” 

Following President Obama’s signing of the federal Defend Trade Secrets Act (“DTSA” or the “Act”) into law last week, parties are beginning to file lawsuits asserting claims under the DTSA. As widely reported, before the DTSA’s enactment, civil trade secret legislation was solely a creature of state law.  Consequently, absent another basis for federal jurisdiction, parties could only bring a civil trade secret claim in state court. The DTSA dramatically changed trade secret litigation practice by opening the door to federal court through creation of a federal civil trade secret misappropriation cause of action. Continue Reading

U.S. DOL Releases Final Revisions on Overtime Protections

Today, the U.S. Department of Labor (DOL) released its highly anticipated final revisions to the Fair Labor Standards Act’s (FLSA) so-called “white collar” exemptions, the first major update to the federal overtime rules in more than a decade. Although the final rule is somewhat similar to the proposed rule published by the DOL last summer, it does contain at least one notable difference: namely, that the pay threshold for exempt employees will increase from $455/week to “only” $913/week, rather than $970/week as initially proposed. In addition, despite rampant speculation, the final rule does not modify the “duties” tests associated with the exemptions.

Read more in our published Client Alert on reedsmith.com.

New Immunity Given To Employees Who Disclose Employer Trade Secrets

On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 (DTSA) into law, which takes effect immediately. Apart from adding fresh arrows into the quivers of companies that seek to prevent trade secret theft, it also creates new obligations for employers and opens the door for workers to disclose trade secrets under certain circumstances.

First, the new law provides immunity to persons from civil and criminal liability under both federal and state trade secret law for the disclosure of a trade secret that is (1) made in confidence to a federal, state, or local government official or to an attorney for the sole purpose of reporting or investigating a suspected violation of law; or (2) made in a filing under seal in “a lawsuit or other proceeding.” The statute also includes a provision that further specifies that an individual “who files a lawsuit for retaliation by an employer for reporting a suspected violation of law” may disclose the trade secret to his attorney and use the trade secret information in the court proceeding, if the individual files the documents containing the trade secret under seal, and does not disclose the trade secret except by court order. Continue Reading

Gender Pay Gap Reporting – Why It Matters Now

On 1 October 2016, regulations are expected to come into force in the UK which will require large private and voluntary sector employers to report annually on gender pay gap information. To give employers time to get to grips with the new obligation, the Government is expected to set 29 April 2018 as the deadline for the first report. However, with a lot of work to do to prepare, this is not as far away as it seems – particularly given that companies will be required to report on bonuses paid for a 12-month period which started 1 May 2016.

We explain below what employers should be doing now to get their house in order and to ensure they are ready to report on time and in a way which promotes and protects their businesses. Continue Reading

Reminder for NYC Employers: Ban on ‘Caregiver’ Discrimination Has Taken Effect

On May 4, a New York City law barring discrimination against “caregivers” took effect. Specifically, the law prohibits employers from taking an adverse action (e.g., refusing to hire, firing, or demoting), or otherwise discriminating against an employee with respect to the terms and conditions of employment, based on the employee’s actual or perceived status as a “caregiver.”

The law defines “caregiver” as a “person who provides direct and ongoing care for a minor child or a care recipient.” “Care recipient,” in turn, is defined as a person with a disability who (1) relies on the caregiver for medical care or to meet the needs of daily living, and (2) resides in the caregiver’s household or is the caregiver’s child, spouse, domestic partner, parent, sibling, grandchild, or grandparent, or the child or parent of the caregiver’s spouse or domestic partner, or any other individual in a familial relationship with the caregiver as designated by the NYC Commission on Human Rights (the Commission), the agency that enforces the law. Continue Reading

Gov. Christie Vetoes Proposed Equal Pay Act Again as ‘Business Unfriendly’

On May 2, 2016, New Jersey Gov. Chris Christie, for the second time, issued a conditional veto of proposed legislation that would bar gender-based pay discrimination, saying in part that the Bill would go too far beyond federal standards and make New Jersey “very business unfriendly.”

In an effort to address and remediate gender-pay gaps in the state, the New Jersey Senate introduced and passed Senate Bill No. 992 (the “Bill”) in February 2016. The Bill comprised similar terms presented in two separate Senate bills back in 2012, one of which Gov. Christie issued a conditional veto of in March 2012, explaining at the time that his opposition sprang from the bill’s failure to include an explicit statutory limitation on back-pay recoveries for employees. Other provisions of the current Bill that would have required government contractors to report employee gender and compensation information to the New Jersey Department of Labor were also vetoed by Gov. Christie in 2012, who commented back then that the unique gender and pay-data reporting requirements would impose costly burdens on the state’s employers. Continue Reading

Landmark Federal Trade Secrets Legislation on Its Way to President Obama for Signature

As technology accelerates and electronic information theft becomes more difficult to detect and prevent, vigilant companies constantly look for ways to protect the trade secrets they consider their “crown jewels.” The passage of the Defend Trade Secrets Act of 2016 (DTSA) will help company management and counsel sleep better knowing that federal courts will be empowered to provide consistent, uniform trade secret protection across the country.

The House voted yesterday to pass the DTSA, which the Senate had unanimously passed.  President Obama is expected to sign it into law.

The DTSA amends the Economic Espionage Act of 1996 (EEA) by allowing plaintiffs to file civil lawsuits for trade secret misappropriation in federal court.  Thus, the DTSA provides an option to bring claims for misappropriation of trade secrets in federal court when federal jurisdiction would not otherwise exist. It also provides uniformity in the law regarding trade secrets at a federal level, and should result in the development of national case law in an area that is often viewed as patchwork at best. This consistency, along with the benefit of access to federal courts, is one of the main reasons company management strongly supported the DTSA. Continue Reading

San Francisco Becomes the First City to Provide Fully Paid Parental Leave

San Francisco has just given the employees of its resident companies quite the baby shower gift. On April 5, 2016, San Francisco passed its Paid Parental Leave law. The local ordinance will leverage off of the California Paid Family Leave law passed in 2004, which allows employees to take time off to bond with a newborn baby, newly adopted child, or newly placed foster child. California Paid Family Leave currently entitles workers to receive 55 percent of their pay for up to six weeks through payments made by the California State Disability Insurance (SDI) fund, a fund financed by the payroll contributions of workers. San Francisco will now require private employers to make up the remaining 45 percent of the parent’s full pay to ensure they receive 100 percent of their normal wages over the six weeks’ leave period.

Paid parental leave has become a hot topic in U.S. employment law over the past few years, as evidenced by New York’s approval of parental leave legislation just last month. San Francisco’s law gives additional volume to the national conversation by passing a measure that requires employers to provide six weeks of fully paid parental leave for mothers and fathers, including same-sex couples, to spend time at home with their newborns.

Employees, both mothers and fathers, who have been employed for at least 180 days, work as least eight hours a week, and spend at least 40 percent of their workweek in San Francisco, qualify for this benefit. The six weeks off can be taken at any time during the newborn’s first year or the first year following placement of an adopted or foster child.

Continue Reading

California Supreme Court Takes a Stand About Employees Sitting

Earlier this week, the California Supreme Court, in Kilby v. CVS Pharmacy, clarified that the suitable seating requirement in several California wage orders may entitle employees to a seat when their tasks can be accomplished while seated. Specifically, the language states: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” There has been no interpretation as to what seats are “suitable,” who determines the “nature of the work,” or under what circumstances the “nature of the work” “reasonably permits” suitable seats.

The Ninth Circuit asked the California Supreme Court to weigh-in and interpret this language after its application arose in two federal appeals involving separate industries. In the underlying federal appeals cases, clerks/cashiers at CVS and tellers at a bank alleged that their employers failed to provide them with adequate seating. Continue Reading

California Governor Signs into Law New Bill Raising Minimum Wage to $15 per Hour

Not to be outdone by New York’s pending move to increase its minimum wage to $15.00 per hour for non-exempt employees in the coming years, on April 4, 2016, California Gov. Jerry Brown signed into law a bill that will increase California’s statewide minimum wage to $15.00 per hour by 2022. The bill sets out gradual increases in the California minimum wage, starting with a move up to $10.50 per hour January 1, 2017, for all employees working for an employer of 26 or more employees. Smaller businesses with 25 or fewer employees will follow the same incremental increases as larger employers, but starting a year later, with a move up to $10.50 per hour January 1, 2018.

The incremental increases every January 1 will be as follows: Continue Reading

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