Legal Updates

EpsteinBeckerGreen’s Labor and Employment Practice Chair, Jay P. Krupin, Testifies on Union Election Rules in First NLRB Hearing

As you may know, the authors of this blog are attorneys at Epstein Becker Green, a national law firm with approximately 300 lawyers practicing in ten offices throughout the U.S.

On July 19, 2011, Epstein Becker Green’s Jay P. Krupin testified before the National Labor Relations Board (NLRB) concerning the Board’s dramatic rulemaking proposals to modify the representation election process. The firm was one of only a handful of management-side firms invited to provide testimony on behalf of clients at this first-ever NLRB hearing.

Vigorously arguing against the proposed changes, Jay asserted, among other things, that the “blatantly pro-labor” proposals to shorten the pre-election period would significantly hinder employees’ ability to make informed decisions. Jay further admonished the Board for improperly usurping Congress’s power to change federal labor law, and reminded the Board that the legislature has specifically refused to act on the Employee Free Choice Act, which would have called for the changes that the Board now seeks to implement by fiat.

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You May Think That All Non-Compete Agreements Are Unenforceable Under California Law, But You Would Be Wrong

Co-authored by Betsy Johnson* and Viktoria Lovei.

Contrary to popular perception, California law does not bar all restrictive covenants in the employment context. Rather, in certain very narrow circumstances (i.e., non-competes arising in connection with the sale or dissolution of certain businesses), non-competes are permissible under California law.

The General Prohibition of Non-Competes Under California Law

Under California Business and Professions Code § 16600, “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” Cal. Bus. & Profs. Code § 16600 (2008). In Edwards v. Arthur Andersen LLP, 44 Cal.4th 937 (2008), the California Supreme Court confirmed the viability and breadth of section 16600 and expressly rejected a line of Ninth Circuit cases which had upheld sufficiently narrow restrictive covenants that only barred a party from pursuing a small or limited part of its business. Id. at 948-49. The California Supreme Court in Edwards held that “noncompetition agreements are invalid, even if narrowly drawn, unless they fall within the applicable statutory exceptions of section 16601, 16602, or 16602.5.” Id. at 955. These three exceptions are discussed below.

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CIRA Announces Implementation Date For New CDRP Policy and Rules

The Canadian Internet Registration Authority (CIRA), has announced that its revised Dispute Resolution Policy (CDRP) and Rules will take effect on August 22, 2011.  A summary of the changes is available on the CIRA website.

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On Like Donkey Kong: S.B. 5 referendum officially set for November

Ohio Secretary of State Jon Husted officially certified that opponents of recently enacted changes to the Public Employees’ Collective Bargaining Law (popularly known as S.B. 5) had collected 915,456 valid signatures, easily surpassing the necessary legal requirements to place the issue on the 2011 November ballot.election_ballot_box_2.bmp

The most recent polling from the Quinnipiac University Polling Institute indicates that 56% of respondents favored repeal, while 32% support keeping the law in place.  But the fight is far from over:  The same polling suggests that Ohioans support mandatory minimums on public employee health care and pension contributions and basing pay on merit rather than seniority by similarly strong majorities.  This polling data suggests that Ohioans may be generally leery of limiting public employees’ right to bargain over terms and conditions of employment, but support imposing certain conditions on all public employees.

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Proposed New BCUC Rules for Electricity Supply Contracts

Today, the British Columbia Utilities Commission (BCUC) released proposed new Rules for Electricity Energy Supply Contracts, which will affect all future electricity supply contracts (or electricity purchase agreements) to a public utility in British Columbia, unless otherwise exempted by law, regulation or order.

These new Rules will update the 1993 Rules on account of changes to the BC Utilities Commission Act and the Clean Energy Act.

The BCUC is seeking public comments on the new Rules, up to August 26, 2011.

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Corporate Breakout Session – Anti-Corruption Laws – UK Bribery Act

So far, we’ve re-capped Alishan Naqvee’s introduction to anti-corruption laws, and Stuart Gerson’s comments on the US’s Foreign Corrupt Practices Act.  Following Stuart’s presentation, the group heard from Charles Wander of Fladgate LLP, who spoke about the new UK Bribery Act.

Charles began by saying that he would give a brief overview of what’s coming on July 1, 2011 in the UK.  As he had mentioned during an earlier session, the firm has been doing some work on this with their clients, trying to understand what the issues might be.  As Stuart had said, this is going to be applied on a worldwide basis, so it will be applied to anyone with any kind of tenuous connection with the UK.  

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Ohio Statehouse Update: Week in Review – July 22, 2011 — Our top "4" subjects you should know

Week in Review

July 22, 2011 — Our top “4” subjects you should know

1. Small Business Advisory Council members announced

Lt. Governor Mary Taylor, House Speaker William Batchelder (R-Medina) and Senate President Tom Niehaus (R-New Richmond) announced their selections for the Small Business Advisory Council this week. The nine-member council established in Senate Bill 2 will advise the newly created Common Sense Initiative (CSI) Office of the adverse impact that proposed or existing agency rules and regulations have or could have on small businesses in Ohio. The council will meet at least quarterly.

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Corporate Breakout Session – Anti-Corruption Laws – the FCPA

Yesterday, I shared with you this post re-capping Alishan Naqvee’s introduction to the topic of anti-corruption at our 2011 Annual Meeting.  To follow up on that, we’ll review Stuart Gerson’s (Epstein Becker & Green) comments during the session regarding the Foreign Corrupt Practices Act (FCPA) and its implications for those in the room.

Stuart provided the attendees with both an article he and a colleague authored on the FCPA, and an overview that their healthcare group had developed.  Stuart said that as Alishan had mentioned, both the FCPA and the new UK Anti-Bribery law are extraterritorial – but not only are they applied overseas throughout the world, but they are also applied against non-US citizens, as long as the commerce that they’re supporting is in the stream of interstate commerce within the US.

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Corporate Breakout Session – A Re-Cap

During our  2011 Annual Meeting in Lisbon, we had specialty group breakout sessions – and lucky for you, our corporate session was recorded! The group had a roundtable discussion dedicated to the topic of “Anti-Corruption Laws and Navigating Client Businesses in Foreign Territories,” which was moderated by Alishan Naqvee of LexCounsel Lawyers in India.

Alishan began with some slides to aid the discussion, saying that there is an organization in Japan called Control Risks, who conducted a survey of about 50 companies in Brazil, France, Germany, Hong Kong, the Netherlands, the UK and the US.  All of them said that corruption is a major cost for international business, and at the same time, an increasing number of companies in the world, while they are not absolutely aware of the anti-corruption laws in their jurisdictions, most of their business is governed by them, even when doing business in other jurisdictions.

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Healthcare Alert: CMS proposes retraction of physician signature requirement for lab requisitions

CMS proposes retraction of physician signature requirement for lab requisitions

The Centers for Medicare & Medicaid Services (CMS) published a proposed rule in the Federal Register on June 30, 2011, that would retract the CMS policy requiring that requisitions for clinical diagnostic laboratory tests be signed by a physician or non-physician practitioner (NPP). This signature requirement had been scheduled to take effect on January 1, 2011, but enforcement had been postponed. This requirement and the proposed change are discussed below.

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