North America

California Expands Restrictions on Employers’ Use of Non-Disclosure Provisions

California Governor Gavin Newsom recently signed into law SB-331, which imposes restrictions on the non-disclosure and non-disparagement provisions that employers can include in agreements with employees.While California law already included restrictions on such provisions, the law expands these prohibitions further. Read more…

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Grassi in Crain’s Cleveland Business Tax Tips: Early termination of the Employee Retention Credit and potential personal liability

McDonald Hopkins member Carl Grassi authored the December 12 edition of Crain’s Cleveland Business’ Tax Tips on “Early termination of the Employee Retention Credit and potential personal liability.”

In the article, Grassi warns, “The early termination of the ERC could cause problems for those businesses that already monetized the credit for wages paid beginning Oct. 1, 2021. The ERC is claimed on the Form 941 quarterly payroll tax return, but the rules allow a business to monetize the credit early by retaining the federal payroll taxes withheld from its employees’ wages, rather than depositing the money with the IRS. As a result, some businesses will not have deposited their tax withholding obligations for Q4 2021 in anticipation of receiving the credit.”

You can read the entire piece at CrainsCleveland.com by clicking here.

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Connolly Gallagher Welcomes Alan R. Silverstein and Regina S. Schoenberg

Regina Schoenberg and Alan Silverstein at the Wilmington officeConnolly Gallagher is pleased to announce the addition of two new attorneys.

Alan R. Silverstein has joined the firm as a Partner in the Intellectual Property Litigation and Delaware Business, Commercial, and Corporate Litigation practice groups. Alan has extensive experience in commercial and complex litigation, with a focus on patent litigation, trademark litigation, and trade secret litigation. In addition, he has regularly represented clients in contract disputes and business tort matters in both Delaware and federal courts. He is experienced with all phases of litigation including large-scale electronic discovery and managing scientific experts. Alan earned his J.D. from Temple University Beasley School of Law and a bachelor of science from Ursinus College. Alan is a member of the American Intellectual Property Law Association and the Richard K. Herrmann Technology American Inn of Court.

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Non-compete agreements are enforceable – to the extent they are reasonable

This article is part of a McDonald Hopkins series on developments in restrictive covenant law that dives deeper into how employers can protect their business interests in light of state – and potentially federal – limitations, strategies for revising employers’ non-compete and non-solicitation agreements, and other topics that will help businesses navigate the changing landscape of employee restrictive covenants.


The Michigan Court of Appeals recently reiterated a common sentiment among courts across jurisdictions – “non-competition agreements are only enforceable to the extent they are reasonable.” Read more…

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Video: Employee Privacy and COVID-19, CMS Vaccine Mandate on Hold, Independent Contractor Classification – Employment Law This Week

As featured in #WorkforceWednesday: This week, we look at complying with the rules that require employers to keep employee COVID-19 vaccination and testing information confidential.

HIPAA, Employee Privacy Protections, and COVID-19

Regulations for employee COVID-19 vaccination or testing remain in limbo, but many employers are crafting policies to ensure that they are keeping employee vaccination and testing information confidential, regardless of what happens in the courts. Attorney Denise Dadika tells us more.

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TEMPORARY EXEMPTIONS FROM CERTAIN BASE SHELF REQUIREMENTS

Certain large issuers may soon be able to file a final base shelf prospectus without first filing a preliminary one. On December 6, 2021 the Canadian Securities Administrators (“CSA“) published temporary exemptions from certain base shelf prospectus requirements for qualifying issuers. The exemptions, which go into effect on January 4, 2022, only capture large reporting issuers, termed “well-known seasoned issuers” (“WKSIs“).

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Karen Bifferato Receives 2021 Women’s Leadership Award from DSBA

The Delaware State Bar Association (DSBA) honored Bankruptcy Partner Karen Bifferato with its 2021 Women’s Leadership Award at the organization’s annual awards luncheon on December 7, 2021.

The Women’s Leadership Award honors a member of the Delaware Bar whose character, strength, personality, achievement and activities in matters affecting women lawyers have served as an inspiration to and a model for women lawyers in their professional careers.  In her 27 years practicing law in Delaware, Karen has demonstrated her commitment to the local community. She has mentored students through the Delaware High School Mock Trial Program and chairs Connolly Gallagher’s Diversity and Inclusion Committee. 

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WHY APPLICATIONS TO A REGULATED INDUSTRY ARE NOT AS SIMPLE AS THEY SEEM

Introduction

Ontario does a very good job regulating certain business sectors in order to ensure a fair marketplace and consumer protection. Three of Ontario’s most common regulated industries are motor vehicle sales, governed by the Motor Vehicle Dealers Act and the Ontario Motor Vehicle Industry Council (“OMVIC“); real estate sales, governed by the Real Estate and Business Brokers Act and the Real Estate Council of Ontario (“RECO“), and; cannabis sales, governed by the Cannabis Licence Act and the Alcohol and Gaming Commission of Ontario (“AGCO“), which also governs liquor licencing.

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CLIENT FOCUSED REFORMS: UPCOMING DEADLINE

As of December 31, 2021, certain amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (the “Rule“) and its Companion Policy, known as the Client Focused Reforms (“CFRs“) are coming into force. The CFRs must be implemented by registered dealers and advisers. Registrants will be required to update their internal policies and practices to be in compliance with the CFRs. This article serves as a reminder about the upcoming changes and summarizes the amendments.

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DOJ’s First Wage Fixing Indictment Survives a Motion to Dismiss Because Court Finds Wage-Fixing Agreements are Illegal Per Se

Within the last year, the U.S. Department of Justice (DOJ) brought its first indictments alleging criminal wage-fixing conspiracies and criminal no-poach conspiracies among competing employers.  In December 2020, DOJ indicted the president of a staffing company for violating Section 1 of the Sherman Act by allegedly conspiring with competitors to fix wages paid to physical therapists.  A month later, DOJ indicted a corporation for violating the Section 1 of the Sherman Act because it allegedly entered into “naked no-poach agreements,” pursuant to which it agreed not to solicit senior employees of two competitors   In March 2021, DOJ filed its second wage-fixing indictment, which also alleged a conspiracy to allocate workers.  As reported here and here, these indictments were the culmination of the DOJ’s Policy, contained in its 2016 Antitrust Guidance for Human Resource Professionals (“Antitrust Guidance”) to bring criminal charges against employers who conspired to suppress wages, either through wage-fixing agreements or naked no-poach agreements.

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