Legal Updates

Washington, D.C. Postpones Ban on Non-Competes

Washington, D.C. employers have more time to get their non-compete ducks in a row. On August 23, 2021, Mayor Bowser signed the Fiscal Year 2022 Budget Support Act of 2021 (B24-0373) (the “Support Act”), which includes various statutory changes necessary to implement the D.C. FY 2022 budget. As expected, the Support Act postpones the applicability date of the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Non-Compete Act”) until April 1, 2022. The postponement not only provides more time for employers to prepare for the non-compete ban—it also permits the D.C. Council to continue its consideration of additional amendments to the Non-Compete Act. For a summary of those other possible changes, please see our recent post here.

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Time Is Money: A Quick Wage-Hour Tip on … Compensability (or Not) of COVID Screening

Employers grappling with the many questions related to bringing employees back into the workplace safely in the midst of the COVID-19 pandemic should pay close attention to the potential wage-and-hour risks attendant to doing so—including whether to pay employees for time spent waiting in line for a temperature check, verifying vaccination status, or completing other health screening inquiries.

Given the growing trend of COVID-19 lawsuits, ignoring these risks could leave employers vulnerable to costly class and collective action litigation.

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Video: OSHA Updates COVID-19 Guidance, NLRB GC’s Priorities, Biometrics at Work – Employment Law This Week

As featured in #WorkforceWednesdayThis week, we look at new federal guidance recommending all employees wear masks in the workplace and unique vaccination considerations for unionized workplaces.

OSHA Updates COVID-19 Mask, Vaccination Guidance

The Occupational Safety and Health Administration (OSHA) recently updated its COVID-19 guidance, now recommending that all employees wear masks in the workplace, even if they’re vaccinated. Meanwhile, employers with unionized workforces face unique considerations with regard to vaccination polices. Attorneys Bob O’Hara and Neresa De Biasi tell us more.

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Reminder to ERISA Fiduciaries: ERISA May Not Protect Fiduciaries from Liability Under State Law

The recent Seventh Circuit decision in Halperin v. Richards provides a reminder to ERISA fiduciaries who are also corporate officers (frequently referred to as “dual-hat officers”) that they can be held liable under both ERISA and state tort law for the same underlying acts.

When paper company Appvion Inc. filed for bankruptcy in 2017, the liquidation plan granted Appvion’s creditors the right to pursue state law tort claims against former Appvion executives.  Halperin v. Richards concerned state law claims raised by certain creditors against former Appvion executives alleging that the executives fraudulently inflated the value of Appvion stock in the years leading up to the bankruptcy.

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Connecticut Employers Must Provide Two Hours of Unpaid Time Off to Vote

On June 23, 2021, Governor Lamont signed Senate Bill 1202, a special session bill implementing the state budget for fiscal years 2022 and 2023.  Included in the 837-page bill is a requirement for employers to provide employees with two hours unpaid time off to vote on the day of a regular state election.  In the case of a special election for U.S. Senator, U.S. Representative, state senator, or state representative, the new requirement to provide time off applies only to employees who are “electors” (meaning already registered to vote). Thus, non-registered voters are not entitled to time off to vote in a special election.

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Colorado Employees Entitled to Unused Vacation Time Pay Despite Forfeiture Agreements

This summer, the Colorado Supreme Court addressed whether employers may implement practices by which employees forfeit accrued, unused vacation pay upon the termination of employment.  In Nieto v. Clark’s Mkt., Inc., 2021 CO 48, 2021 Colo. LEXIS 423 (Colo. June 14, 2021), the Court held that the Colorado Wage Claim Act (“CWCA”) requires employers to pay employees for earned but unused vacation upon the separation of their employment. The requirement applies irrespective of an employment agreement or policy forfeiting an employee’s right to such payment.

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NLRB General Counsel Jennifer A. Abruzzo Issues “Mandatory Submissions to Advice” and “Utilization of Section 10(j) Proceedings” Memos, Outlining Her Priorities and Enforcement Agenda

On August 12, 2021, Jennifer A. Abruzzo issued her first memorandum as newly sworn National Labor Relations Board (“NLRB” or “Board”) General Counsel. The memo, Mandatory Submissions to Advice, Memorandum GC 21-04 (“GC Memo 21-04”), serves as a road map of the new General Counsel’s plans and her intent to depart from the priorities of her predecessor, Peter Robb, and to target cases and initiatives from the Trump Board that overruled the precedent from the Obama Board. As we have previously reported, President Biden, on the day of his inauguration, took the unprecedented step of firing Mr. Robb from the General Counsel position, a clear indicator of his intention for a significant change in direction for the NLRB to a more union-friendly agenda.

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It’s a New Day? EDNY District Court Deviates from Peers Holding That Newspaper’s Website Is Not a Place of Public Accommodation Under Title III of the ADA

Last week, in Winegard v. Newsday LLC, the U.S. District Court for the Eastern District of New York issued a decision that may finally tee up the issue of website accessibility to be directly addressed by the Second Circuit and provided businesses without a brick and mortar presence with unexpected relief by dismissing a serial plaintiff’s putative class action lawsuit alleging that a newspaper’s failure to provide closed captions of online videos for individuals who are deaf or hard of hearing violated Title III of the Americans with Disabilities Act (“Title III” or “ADA”).

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Being Struck by a Bullet During a Police Car Chase: An Automobile Accident?

By Eloïse Robichaud, from our Insurance Law Practice Group

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August 20, 2021 — Since the adoption of the Automobile Insurance Act [Act], a lot has been written about its inherent concept of causation. Cohen c. Ville de Montréal, 2021 QCCS 1874, a recent decision of the Superior Court, provided an overview of the applicable principles.

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SEPARATION AGREEMENTS

The breakdown of a relationship, whether parties are married, in a civil partnership or a cohabiting couple is a very challenging time for all involved.  All parties must consider the financial implications of their separation and how the arrangements in respect of the children will be affected.  There are significant legal consequences when parties go through a separation, which is why both parties are always strongly advised to seek separate independent legal advice, where possible. Read more…

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