Legal Updates

Ringing in the New Year with Minimum Wage Increases and Revised Exempt Salary Thresholds

Before ringing in the New Year, employers should carefully evaluate whether they need to adjust their current practices to ensure that they remain compliant with state and local laws, including those relating to minimum wage and salary thresholds for exempt employees.

As reflected in the charts below, in 2022, minimum wages will increase in more than two dozen states and localities, with many changes taking effect January 1st.  Accordingly, employers with minimum wage workers should consult with counsel to ensure that their compensation practices are compliant with the laws in all jurisdictions in which they operate. Employers should pay particular attention to the effective date to ensure compliance by the appropriate date.

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Update: CMS Interim Final Rule Stay Lifted Nationwide, Still in Effect in Twenty-Four Plaintiff States

As we previously reported, the Centers for Medicare & Medicaid Services’ (CMS’s) interim final rule (the “Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers (i.e., the “vaccine mandate”) was effectively stayed nationwide on November 30, 2021, by the U.S. District Court for the Western District of Louisiana (the “Louisiana Court”).  In yet another twist to the ongoing legal battles, the U.S. Court of Appeals for the Fifth Circuit lifted the nationwide stay and held that the Louisiana Court only had authority to block the vaccine mandate in the fourteen plaintiff states that brought suit in that court. Those states are Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.

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Holiday Cyber Storm Warnings

Recent data thefts and systems intrusions, particularly with respect to ransomware, have assured that cybersecurity is top of mind for corporate executives and compliance officials. We at EBG have tried to keep you up to date with respect to legislative, regulatory and litigation developments and recommended best practices and procedures. As we close out the year, we all should remain mindful that cyber criminals, especially those who are supported or protected by foreign adversaries, have little incentive to rest up during the holidays. Indeed, they likely will find that a loosened semi-remote business environment offers them opportunities to exploit human and technologic weakness that allow execution of Zero Day exploits and other attacks upon corporate information systems. Through our participation in the National Chamber of Commerce Cyber Security Working Group, we have been actively interfacing with Executive Branch and Congressional officials to contribute to and to monitor the array of proposals being considered by the Congress, and the regulatory guidance being issued by federal agencies including The National Institute of Standards and Technology (“NIST”) of the Department of Commerce, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency “CISA,” the Department of Health & Human Services Office of Civil Rights that deals with PHI protection, as well as the Treasury Department’s Office of Foreign Asset Control (“OFAC”). Thus, we have issued recent guidance concerning ransomware avoidance and resilience, the availability of helpful best practices tool kits from NIST and CISA, and heightened responsibilities with respect to ransomware payment decisions. We expect that the need for counselling with respect to cybersecurity and privacy compliance, data breach and ransomware response, and litigation defense is unlikely to diminish in the year ahead. From both regulatory and enforcement perspectives, government recognizes it as well.

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Keep Your Safety Plans in Place: New York HERO Act Requirements Extended Once Again

The Commissioner of the New York Department of Health has extended the designation of COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health under the NY HERO Act until January 15, 2022, at which point the designation will be reviewed. Accordingly, the airborne infectious disease exposure prevention plans required under Section 1 of the Act must be kept in place through that date.

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Illinois Takes Steps to Limit Employer Use of Restrictive Covenants

Illinois recently passed Public Act 102-0358 (the Act), which addresses the enforceability of non-compete and employee and customer non-solicit agreements entered into on or after January 1, 2022. While the Act codifies certain pre-existing case law regarding the enforceability of these agreements, it may also significantly change the landscape for restrictive covenants in Illinois.Compensation ThresholdsThe Act imposes per-se bans on non-compete and non-solicit agreements for employees making below certain annualized compensation thresholds. Read more…

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Supreme Court Set to Decide Whether Epic Systems Extends to PAGA Representative Claims

More than three years after its landmark decision in Epic Systems Corp. v. Lewis, the United States Supreme Court has granted certiorari in Viking River Cruises, Inc. v. Moriana to determine whether Epic Systems extends to arbitration agreements that include waivers of representative actions brought under the California Private Attorneys General Act (PAGA).

Employers with operations in California, who have been plagued by the filing of boilerplate PAGA actions, could be heard to breathe a sigh of relief.

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COP, CARBON & COMMERCIAL PROPERTY

As quickly as COP26 arrived in Glasgow, all traces of the Conference seem to have disappeared. Only time will tell whether a tangible impact is felt in its wake from a global climate perspective. What’s clearer is that the agreements reached in Glasgow, coupled with emerging domestic environmental policies and legislation, are going to have a notable impact on the commercial property sector as we move towards a ‘net-zero’ carbon future. Read more…

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REAL ESTATE AND THE CARBON CHALLENGE: OPERATIONAL V EMBODIED CARBON

Last month Glasgow hosted COP26, where leaders from all around the world gathered to take decisive action to tackle the climate crisis. This conference forced all sectors to examine their actions and consider how these affect our environment.

Recent figures have revealed that the Real Estate Sector is responsible for 38% of global carbon emissions and consumes around 40% of the world’s energy. Such striking figures highlight the pressing need for developers, businesses, and all those involved in the real estate sector to take drastic steps to make real and lasting positive change. Read more…

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The Presence of a “Trap” Is Not an Essential Criterion for a Personal Injury Claim

By Alice Bourgault-Roy, from our Insurance Law Practice Group

December 14, 2021 — Since the Supreme Court ruling in Rubis v. Gray Rocks Inn Ltd., 1982 CanLII 17 (SCC), [1982] 1 SCR 452, in 1982, personal injury claims have largely been determined on the basis of the concept of “trap”. Essentially, a trap is defined by the case law as a situation that has an inherent danger, which is hidden rather than apparent, and which has an element of abnormality. The existence of such a trap is in a way assimilated to the fault of the owner or custodian, who is responsible for the victim’s injuries due to his or her failure to ensure the safety of the premises.

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TSX VENTURE EXCHANGE ANNOUNCES AMENDMENTS TO SECURITY—BASED COMPENSATION POLICIES

Overview

On November 24, 2021, the TSX Venture Exchange (“TSXV” or the “Exchange“) published a bulletin outlining a number of amendments made to TSXV Policy 4.4 — Incentive Stock Options (the “Former Policy“). The amendments (the “New Policy“) came into effect the same day the bulletin was published.

Some of the most significant changes made to the Former Policy include:

  • The expansion of more than one type of security-based compensation;
  • Additional categories of security-based compensation plans;
  • The introduction of effective compensation tools to advance the interests and flexibility of issuers; and
  • Permission of the exercise of stock options on a “cashless” and “net exercise” basis.
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