North America

SCC Throws Out Man’s Conviction Because of Police Misconduct

In a 3 to 2 decision, the Supreme Court of Canada set aside a man’s gun and drug related convictions ruling that, in light of the police’s unlawful conduct, the admission of incriminating evidence would bring the administration of justice into disrepute.  (See R. v. Le, 2019 SCC. 34)

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New Jersey revises data breach law, expands definition of personal information

On May 10, 2019, New Jersey Gov. Phil Murphey signed Assembly Bill 3245 into law. AB 3245 expands the definition of “personal information” under the state data breach statute and addresses electronic notification in the event that a data breach involves a username or password.

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Employee Benefits Crash Course Webinar Series: Hot New Benefits

Our Employee Benefits and Executive Compensation practice now offers on-demand “crash courses” on diverse topics. You can access these courses on your own schedule. Keep up to date with the latest trends in benefits and compensation, or obtain an overview of an important topic addressing your programs.

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Recent Indictment of Anthem Hackers Serves as a Reminder of the Importance of Rigorous Workforce Cybersecurity Training, Incident Response Plans and Formalized Security Programs

On May 9, 2019, the United States Department of Justice announced the indictment of two Chinese Nationals as members of a sophisticated hacking group responsible for the hack of Anthem, Inc. and other unnamed U.S. based large technology, communications and basic materials companies. The hack resulted in the breach of personally identifiable information of over 78 million individuals held by Anthem and the theft of confidential business information from the victimized organizations. The indictment provides a roadmap to advanced hacking attacks regularly faced by technology, healthcare and infrastructure organizations with valuable data to protect. The indictment serves as a reminder that organizations subject to advanced persistent threat from organized hacking groups should adopt a defense in depth strategy including workforce cybersecurity training, vulnerability scanning, network monitoring and comprehensive incident response plans to thwart or mitigate these attacks. These protective countermeasures should be part of the organization’s formalized information security program.

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New Oregon Law Requires Employers to Remind Departing Employees of Their Noncompete Obligations

Pursuant to a recently passed Oregon state law (HB 2992), noncompete agreements entered into on or after January 1, 2020 will only be enforceable against Oregon employees if the employer provides the departing employee with a signed copy of the agreement within 30 days after the employee’s date of termination.  Though at first blush, this law merely codifies the best practice of reminding departing employees of their continuing obligations to their former employer, it contains a few nuances Oregon employers should keep in mind.

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NLRB Announces Plans for Further Rulemaking: Election Rules, Union Access to Employer Property, Question of Whether Student Athletes on Scholarship Are Employees, and More

The rulemaking priorities of the National Labor Relations Board (“NLRB” or “Board”) have been released, signaling what Board Chairman John F. Ring described as “the Board majority’s strong interest in continued rulemaking.” The announcement was contained in the Unified Agenda of Federal Regulatory and Deregulatory Actions, published by the Office of Management and Budget’s Office of Information and Regulatory Affairs.

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Recent Massachusetts Supreme Judicial Court Case Rules That Employers Must Pay Overtime to Commission-Only Retail Employees

On May 8, 2019, the Massachusetts Supreme Judicial Court (SJC) ruled in Sullivan v. Sleepy’s LLC that commission-only retail salespeople are entitled to additional compensation for overtime and Sunday work. Retail sales employees of Sleepy’s were compensated solely by commissions and paid recoverable draws against those commissions of $125 per day. Although the employees’ commissions, recoverable draw and earned commissions over the draw exceeded the minimum wage and one and one-half times the minimum wage when the employees worked overtime or Sunday, the SJC held that the employees were entitled to additional amounts for overtime and Sunday premium pay. In reaching its conclusion, the Court reasoned that Massachusetts law prohibits the retroactive crediting of payments made for one purpose (i.e., commission compensation for hours worked) towards the entirely separate purpose of time and one-half for overtime hours and Sunday pay. In the Sleepy’s case, the draw plus commission compensation system did not provide the necessary extra compensation.

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Connecticut Likely To Become Latest State to Adopt $15 Minimum Wage

Connecticut appears poised to become the next state to raise its minimum wage to $15 per hour, following the trend set by California, Illinois, Massachusetts, New Jersey, New York, and most recently Maryland, in addition to numerous local jurisdictions.  Governor Ed Lamont is expected to sign H.B. 5004, which passed the state’s House and Senate earlier this month.

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The Role of Patient Preference in Medical Device Evaluation

When we think about the top players in the medical device development space, we often see device company sponsors, clinicians, scientists, and FDA regulators as the ones driving the process. But what about the patient perspective? Does that get factored in?

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NLRB General Counsel Concludes That Drivers Using the Uber App Are Independent Contractors, Not Employees

The Division of Advice of the National Labor Relations Board (“NLRB” or “Board”), in an Advice Memorandum, dated April 16, 2019 (“Advice Memo”),[1] has concluded that “drivers providing personal transportation services” using Uber Technologies Inc.’s “app-based ride-share platforms” were independent contractors and not employees, as the drivers had alleged in a series of unfair labor practice charges filed in 2014, 2015, and 2016. Based on the Division of Advice’s analysis of the relationship between Uber and the drivers, the General Counsel’s office directed that the Regional Directors in San Francisco, Chicago, and Brooklyn dismiss the charges.

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