It was another successful year in Chicago at the 40th Annual Association of National Advertisers/Brand Activation Association Marketing Law Conference. During Friday’s general session, I gave a presentation titled “The Pursuit of ‘Truth’ in Advertising,” taking a look at how consumers view the truth in this era of fake news and alternative facts, and how this changing understanding of the truth has affected the advertising ecosystem and the practice of advertising law. In the next series of posts, I will share some highlights from my presentation. Let’s dive into the first one…
On November 19, 2018, a new ETA Form 9035, Labor Condition Application for Nonimmigrant Workers (“LCA”), will be fully implemented and “go live.” The LCA must be completed before any H-1B petition can be filed or approved by the U.S. Citizenship and Immigration Services (“USCIS”). A key change to the LCA will require an employer to indicate whether a foreign worker will be placed at a client or third-party worksite and then enter that client’s or third party’s legal business name and address. This new version of the LCA will also require additional information from H-1B dependent employers that rely on the master’s degree exemption.
Royal Oak, Michigan, November 15, 2018: Howard & Howard Attorneys PLLC is pleased to announce that Kayla R. Mullen has joined the firm. She will practice out of the firm’s Royal Oak office.
On November 1, 2018, the Office of the Inspector General (“OIG”) for the U.S. Department of Health and Human Services (“HHS”) published an audit report finding that the U.S. Food and Drug Administration’s (“FDA”) policies and procedures were “deficient for addressing medical device cybersecurity compromises.” (A copy of OIG’s complete report is available here and Report in Brief is available here.) Specifically, the OIG found that FDA’s policies and procedures were “insufficient for handling postmarket medical device cybersecurity events” and that FDA had not adequately tested its ability to respond to emergencies resulting from cybersecurity events in medical devices. Although the OIG report “did not identify evidence that FDA mismanaged or responded untimely to a reported medical device cybersecurity event,” it noted that “existing policies and procedures did not include effective practices for responding to these events.”
In its 2008 landmark decision Edwards v. Arthur Andersen LLP (2008) 44 Cal. 4th 937, the California Supreme Court set forth a broad prohibition against non-compete provisions, but it left open whether or to what extent employee non-solicit provisions were enforceable. Since Edwards, no California appellate court has addressed that issue in a published opinion – until recently. On November 1, the California Court of Appeal in AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., ruled that a broadly worded contractual clause that prohibited solicitation of employees for one year after employment was void under California Business and Professions Code section 16600, which provides “Except as provided in this chapter every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.” The decision calls into question the continuing viability of employee non-solicitation provisions in the employment context, and employers who regularly include such provisions in their agreements should reassess their use and enforcement of those provisions.
Royal Oak, Michigan, November 13, 2018: Howard & Howard has been named to the 2019 U.S. News & World Report and Best Lawyers® “Best Law Firms” list in the following areas:
Effective December 31, 2018, New York State’s salary basis threshold for exempt executive and administrative employees will increase again, as a part of amendments to the minimum wage orders put in place in 2016. Employers must increase the salaries of employees classified as exempt under the executive and administrative exemptions by the end of the year to maintain these exemptions.
U.S. Department of Labor Rescinds Guidance Regarding “Side Work” and the FLSA’s Tip Credit in Restaurants
Under the Fair Labor Standards Act (“FLSA”), employers can satisfy their minimum wage obligations to tipped employees by paying them a tipped wage of as low as $2.13 per hour, so long as the employees earn enough in tips to make up the difference between the tipped wage and the full minimum wage. (Other conditions apply that are not important here.) Back in 1988, the U.S. Department of Labor’s Wage and Hour Division amended its Field Operations Handbook, the agency’s internal guidance manual for investigators, to include a new requirement the agency sought to apply to restaurants. Under that then-new guidance, when tipped employees spend more than 20% of their working time on tasks that do not specifically generate tips—tasks such as wiping down tables, filling salt and pepper shakers, and rolling silverware into napkins, duties generally referred to in the industry as “side work”—the employer must pay full minimum wage, rather than the lesser tipped wage, for the side work.
One controversial issue that commonly arises in Ohio commercial activity tax (CAT) audits is whether taxpayers qualify for the so-called “agency exclusion” for gross receipts received on behalf of others. The CAT is Ohio’s entity-level tax for the privilege of doing business in the state, as measured by the taxpayer’s “taxable gross receipts” in Ohio. Some other states impose a net income tax at the entity-level, which removes expenses from the base of the tax, or have no entity-level business tax at all.
The breach notification provisions of Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) went into effect Nov. 1, 2018. PIPEDA places requirements and restrictions on an entity’s collection and use of “personal information,” defined as information about an identifiable individual, in the course of a commercial activity. All organizations that collect and use personal information belonging to Canadians must comply with PIPEDA’s requirements. This includes consumer/customer data, as well as employee data. The law has been in force since 2001 and was amended in 2015 to include breach notification requirements, though the 2015 breach notification amendments made as a result of the Digital Privacy Act were not immediately effective. Those amendments are now effective.