Legal Updates

IRS announces new retirement plan limitations for 2020

The IRS announced cost of living adjustments affecting dollar limitations for pension plans and other retirement-related items for the 2020 tax year. Changes to the limits are based on the Social Security cost-of-living increases. READ MORE

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CMS extends Medicare payments for care management

The Centers for Medicare & Medicaid Services recently issued a final rule which continues the trend of encouraging care management activities by making it easier and more financially attractive to furnish chronic care management, transitional care management and remote physiologic monitoring services for Medicare patients. READ MORE

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Department of State Proposes Amending ITAR Definitions, Creating Encryption Carve-Out

In a recently published Notice of Proposed Rulemaking,[1] the Department of State proposes an amendment to the International Traffic in Arms Regulations (“ITAR”) provisions defining activities that are not exports, re-exports, or retransfers. Such activities that will not be exports, re-exports, or retransfers under the proposed definition include (1) launching items into space, (2) providing technical data to U.S. persons within the United States or within a single country abroad, and (3) moving defense articles between U.S. states, possessions, and territories. Importantly, the proposed revisions will allow for the electronic storage and transmission of unclassified technical data through foreign communications infrastructure without requiring ITAR licensing when the technical data is sufficiently secured to prevent access by foreign persons. The proposed amendments also include the creation of a definition for “access information” and the revision of the “release” definition to include the improper provision of access information to foreign persons.

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NLRB Adds New Three-Part Test to Standard for Evaluating Appropriateness of Bargaining Units

One of the matters of significance to employers and unions under the National Labor Relations Act that became a point of contention under the National Labor Relations Board (“NLRB” or “Board”) during the Obama Administration was the movement to allow representation elections in what were commonly referred to as “micro-units,” which many believed made it easier for unions to score victories and gain bargaining rights. The Board’s recent decision in Boeing Co. and International Association of Machinists and Aerospace Workers provides important guidance for employers regarding how the Board will assess the appropriateness of proposed bargaining units going forward, and is evidence of the NLRB’s repudiation of Specialty Healthcare.

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Time Is Money: A Quick Wage-Hour Tip on…State Salary Thresholds for Certain Exempt Employees

After a false start three years ago, the federal Department of Labor (“DOL”) will finally be rolling out an increased minimum salary threshold for employees qualifying under the “white collar” exemptions. The increase in the salary threshold for professional, administrative, and executive exemptions (making up the “white collar” exemptions) under the Federal Fair Labor Standards Act (“FLSA”) will become effective on January 1, 2020.

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The Eastern District of New York Provides Businesses an Early Holiday Gift in Strictly Construing Standing Requirements in ADA Title III Case

For businesses growing weary of the seemingly perpetual wave of serial ADA claims (e.g., website accessibility; gift card accessibility), thanks to recent a decision issued by a federal judge in the U.S. District Court of the Eastern District of New York (“EDNY”), some may believe that “Christmas came early.”  Last week, EBG achieved an impressive victory, obtaining a complete dismissal of a serial plaintiff’s class action complaint in the case Castillo v. The John Gore Organization.

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Preparing for Non-Compete Litigation – Practice Note Update

Thomson Reuters Practical Law has released the 2019 update to “Preparing for Non-Compete Litigation,” a Practice Note I co-authored with Zachary Jackson.

See below to download the full Note – following is an excerpt:

Non-compete litigation is typically fast-paced and expensive. An employer must act quickly when it suspects that an employee or former employee is violating a non-compete agreement (also referred to as a non-competition agreement or non-compete). It is critical to confirm that there is sufficient factual and legal support before initiating legal action. Filing a complaint for monetary damages or a request for an injunction can backfire if an employer is not prepared with sufficient evidence to support its request. This Note discusses the steps an employer can take to best position itself for successful enforcement of a non-compete and the strategic considerations involved with initiating non-compete litigation. In particular, it discusses:

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California Court Rules That Mandatory Service Charges May Be Gratuities Continue Reading…

Upsetting what many considered settled precedent, a California Court of Appeal has held that a mandatory service charge may qualify as a “gratuity” under California Labor Code Section 351 that must be distributed to the non-managerial employee(s) who provided the service.

In O’Grady v. Merchant Exchange Productions, Inc., No. A148513, plaintiff, a banquet server and bartender, filed a putative class action against their employer for its failure to distribute the entirety of the proceeds of an automatic 21% fee added to every food and beverage banquet bill to the non-managerial banquet service employees who staffed the event, alleging a violation of California Labor Code Section 351, as well as intentional interference with advantageous relations, breach of implied contract, and unjust enrichment.

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California Ballot Initiative Would Remove Ride-Share and Delivery Drivers from the “ABC” Test Continue Reading…

As we wrote here recently, California’s Governor Gavin Newsom signed a bill known as AB5, which is designed to make it more difficult for companies to treat workers as independent contractors.  The new law, which goes into effect on January 1, 2020, codified and expands the “ABC” test adopted by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court for determining whether workers in California should be classified as employees or as independent contractors.

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WHD Releases Text of Proposed Revisions to the Fluctuating Workweek Regulations

On August 26, 2019, we wrote of the plan by the U.S. Department of Labor’s Wage and Hour Division (“WHD”) to update the Fair Labor Standard Act (“FLSA”) regulations on calculating overtime pay for salaried non-exempt workers to allow employers to include additional forms of compensation in the so-called “fluctuating workweek” calculations.  Under a fluctuating workweek calculation, an employer divides all of an employee’s relevant compensation for a given workweek by the total number of hours the employee worked in the week to derive the regular rate for that week, and then pays one half of that regular rate—in addition to the other pay the employee is receiving for the week—for each hour of overtime.  This method of calculating overtime is available under federal law and in most, but not all, states.  On November 4, 2019, the WHD released the text of the proposed rule for public comment.

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