insights

ADA compliance
  • Charity Gates
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New York City to Require Vaccination for Private Sector Employees
New York City to Require Vaccination for Private Sector Employees 500 350 Charity Gates

Employees working in-person for private employers in New York City must have received at least one dose of an FDA-approved COVID-19 vaccine by December 27. The new measure, introduced by outgoing mayor Bill de Blasio, provides exemptions for sincerely-held religious beliefs and valid medical reasons, but does not provide a testing alternative. An application for an accommodation must be made by December 27th.

Employers must verify and keep a record of each in-person employee’s proof of vaccination by December 27. There are 3 options for how employers can meet this requirement:

  1. An employee’s copy of their proof of vaccination or a record of a reasonable accommodation with supporting documentation;
  2. Employers can create their own paper or electronic record that includes identifying information for each employee (i.e. name, whether fully vaccinated, proof of first dose, or record of reasonable accommodation);
  3. Employers may check each employee’s proof of vaccination before they enter the workplace each day. They must keep a record of each verification. [This option may be more suitable for larger employers].

By December 27, employers must complete the “Affirmation of Compliance with Workplace Vaccination Requirements” affirming they are in compliance with this requirement and post it in a public place.

Also, please note that each contractor who enters the workplace is subject to the vaccination requirement as well.

 Additionally, Gov. Kathy Hochul signed an executive order requiring either masks or vaccines in public venues (including workplaces) in New York state.

As always, we are here to answer any questions.

Covid-19 background
  • Cynthia Martens
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COVID-19: What Should Employers Know About Legal Protection for Workers?
COVID-19: What Should Employers Know About Legal Protection for Workers? 1920 1080 Cynthia Martens

The coronavirus pandemic has upended the year for people from Wuhan to Milan. New York City alone now has almost 100,000 confirmed cases and all nonessential businesses, including many in the fashion sector, have shuttered since March 22 in response to orders from the state governor and a collective effort to “flatten the curve” of coronavirus infections.

Workplace consequences have been dramatic. Last week, the federal Labor Department reported that a record 6.6 million Americans had filed for unemployment insurance, bringing the total number of people who have filed for unemployment in the last three weeks alone to almost 17 million. Reports of employers mistreating nurses and retail workers have trickled onto social media, and newly enacted federal laws provide various forms of emergency relief.

James Brudney, a professor at Fordham University School of Law with extensive experience in employment and international labor law, stressed the importance for employers, particularly larger brands, of “doing the right thing by their workers and in reputational terms, not just the barely legal thing.”

Referring to recent walkouts by Amazon warehouse workers protesting conditions of unsafe exposure to the virus, he said employment lawsuits based on job-related illness and death are likely, just as they were common post 9/11. In fact, there already has been one case filed in Illinois by the survivors of a late Walmart employee who claimed he died due to catching the virus at his workplace.

“One would hope that in these circumstances employers, who are also obviously suffering, would have the sense of both compassion and justice not to be taking retaliatory steps against workers who are trying to protect their fundamental safety and health in tough conditions,” said Brudney, adding that exposure to the coronavirus at work could lead to sizable state workers’ compensation claims. He recommended more generally that employers consult the International Labour Organization’s COVID-19 recommendations as well as Convention 177 on protections for home workers, saying that they provide a useful crisis benchmark for the fashion industry.

In this challenging context, what else should employers know? The interplay between federal and state laws, and between the President and state governors, is confusing to many American employers, and even more so to foreign companies doing business in the United States. Some important issues to get straight at the outset are:

Are my employees at-will? Are they exempt or non-exempt?

Most states consider employment to be at-will by default, meaning that either the employer or the employee can end the relationship at any time, with or without cause or notice. However, before letting anyone go or changing any terms of employment, employers must check whether they are bound by a contract with their employees instead. Employers should also know whether their employees are exempt or non-exempt under the federal Fair Labor Standards Act. Employees whose jobs do not meet the FLSA definition or who make less than $674 a week are non-exempt under federal law and must earn overtime pay. States and cities can raise the minimum amount, so that, for example, an employee must earn at least $1,125 a week in New York City to be exempt.

Can I reduce my employees’ hours?

Employers are allowed to reduce the number of hours their non-exempt employees are scheduled to work. Providing reasonable notice is considered good practice, though there is no federal requirement to do so and state laws vary. In California, for instance, notice is important to avoid “reporting time pay” obligations, which employers trigger when they schedule workers but don’t have enough work for them to do because of inadequate planning or lack of proper notice.

Can I reduce my employees’ pay?

Employers can never reduce pay rates for hours already worked; any changes must be prospective. That said, absent a contract, employers are free to reduce employee pay for future hours worked, as long as they pay at least the minimum wage, which varies by state and sometimes by city. For example, federal law sets the floor at $7.25, but while California’s minimum wage is $12 a hour, it’s $15 an hour in San Francisco. In addition, some states impose notice requirements. New York State requires employers to inform employees at least seven calendar days before changing their pay rate, unless the new rates appear explicitly on wage statements. Reducing an employee’s pay can change the employee’s status from exempt to non-exempt.

Can I treat my employees differently?

Reducing some salaries during a period of financial difficulty is legal as long as employers do not discriminate against a protected class under federal or state law. Federal law prohibits discrimination based on gender, race, national origin and age, but some states or municipalities go further. New York City, for example, prohibits treating employees differently based on their “age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or any other protected characteristic under the New York State Human Rights Law.”

“If your reduced hours or furloughs disproportionately affect women, or racial minorities, or older workers, there’s likely to be an effort at some point to organize those workers in litigation terms, or at least it’s a risk that you run,” said Brudney. “You have to be sure you have an evaluation system that can justify what you’re doing so that it doesn’t look discriminatory or arbitrary.” Such a system could include records of past performance evaluations or bonuses, for instance.

What’s a furlough?

An employee furlough occurs when an employer suspends its workforce without pay. Caution: If exempt employees do any work at all while on furlough, the employer must pay them the equivalent of a full day’s salary, and if hourly employees work while on furlough, the employer must pay them for the time worked. Furloughed employees usually retain their health benefits and return to work either on a specific date or when a specific condition is met. Employers should note, however, that furloughs come with the risk that top talent will seek employment elsewhere. A furloughed employee may be eligible for unemployment benefits, depending on state rules.

What unemployment benefits are available to laid-off workers?

Individual states normally manage unemployment insurance benefits and determine eligibility criteria and exclusions. The $2 trillion federal CARES Act passed on March 27 creates two major benefit categories, however. First, there’s Pandemic Unemployment Assistance, which covers individuals — including freelancers and those who are sick or caring for a sick family member — who are unable to work because of the coronavirus outbreak. Secondly, unemployed individuals who are already receiving state benefits are eligible for $600 a week in additional federal aid over the next four months, until July 31.

What is a shared work program?

State shared work programs make it easier for participating employers to keep trained staff during an economic slowdown by allowing employees to receive partial unemployment insurance benefits while working reduced hours. To participate in a shared work program, employers must meet state requirements — typically, a minimum number of employees working in the state, and a certain amount of unemployment contributions over the past year — and submit a shared work plan for state approval. Participating employers may not hire new employees to perform work covered in the plan and must seek plan approval from any relevant collective bargaining representative.

What sort of paid leave do I have to pay my employees during the COVID-19 health crisis?

The Families First Coronavirus Response Act guarantees job-protected paid leave to workers who are unable to work from home and subject to a federal, state or municipal order of quarantine or isolation for COVID-19, or caring for minor children who are under such an order. The amount of paid leave available to employees depends on the size of the business as of Jan. 1, with different rules for small, mid-sized and larger businesses. All must provide their employees with job protection for the duration of the quarantine or isolation order, but larger businesses must provide more days of paid sick leave. When employees return from their COVID-19-related leave, employers must reinstate them to the same or a comparable position and continue to provide health insurance on the same terms as if the employee had not taken leave.

What sort of paid sick leave do I have to offer?

Until the FFCRA was passed, no federally mandated paid sick leave existed, though some states required it. Federal law now allows an eligible employee to take paid sick leave because the employee is in quarantine related to COVID-19, or caring for someone who is, or unable to work remotely because he or she is caring for a child whose childcare provider is closed because of COVID-19. Employers with fewer than 500 employees must provide full-time employees with 80 hours of paid sick leave at the employees’ regular rate (or two-thirds the employees’ regular rate for caregiving employees). Paid sick leave wages are capped at $511 a day, or $5,110 total, per employee for personal use, and $200 a day, or $2,000 total, per employee caring for another. Sick leave pay rates for employees who work a part-time or irregular schedule are based on the average number of hours the employee worked for the six months prior to taking leave. If employees have worked less than six months prior to taking leave, they calculate their rate based on their average scheduled hours over a two-week period.

Cynthia Martens is an associate at The Nilson Law Group, PLLC in New York. She was previously a WWD correspondent in Milan. This article is for informational purposes only and is not intended to constitute legal advice.

Originally published in Women’s Wear Daily

Employment law background
  • Nicholas E. Forgione
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Several Important Changes to New York Employment Law in 2020
Several Important Changes to New York Employment Law in 2020 1920 1080 Nicholas E. Forgione

Minimum Wage Increases

• Minimum wage increases continue to be phased-in each year. As of January 1, 2020, the minimum wage in New York City is $15.00 per hour. In Nassau, Suffolk and Westchester counties, it is $13.00 per hour. In the remainder of the state, it is $11.80 per hour.

Salary History Ban

• In 2017, New York City amended its Human Rights Law to prohibit inquiries into applicants’ salary histories during the hiring process. Effective January 6, 2020, New York state expanded on the New York City law by prohibiting employers from requesting such information of applicants or employees. The law does not prohibit applicants and current employees from voluntarily, and without prompting, disclosing or verifying wage or salary history, such as for the purpose of negotiating wages or salary.

Paid Voting Leave

• With primary and general elections occurring in 2020, employers should be mindful of recent revisions of New York’s election law, which now entitles New York employees who are registered voters up to three hours of paid time off as needed to vote in any election. Employees requiring time off to vote must be afforded such time at either the beginning or end of a workday, at the employer’s election, and must notify their employer of their need not less than two working days before the election.

Continued sexual harassment prevention

• Employers should keep in mind that New York City requirements for employee anti-sexual harassment training are annual requirements.
• On August 12, 2020, the statute of limitations for sexual harassment claims will increase from one year to three years.

Ban on pre-employment marijuana testing

• Effective May 10, 2020, New York City will prohibit employers from conducting pre-employment drug testing for marijuana. Exceptions will apply for certain types of jobs, including various construction and maintenance roles, positions requiring a commercial driver’s license, and positions requiring the supervision or care of children, medical patients, or vulnerable persons.

Expanded protections for “gig” workers

• Effective January 11, 2020, the New York City Human Rights Law will cover freelancers and independent contractors, extending protections from discrimination, harassment, and retaliation. The prohibition on pre?offer criminal background checks and pre?offer salary history inquiries will also apply to freelancers and independent contractors.

Privacy Please
  • Nicholas E. Forgione
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The California Consumer Privacy Act: What You Need to Know
The California Consumer Privacy Act: What You Need to Know 1920 1080 Nicholas E. Forgione

California recently passed a sweeping new consumer privacy law that will have major implications for businesses that collect, store, and share information about California residents. The law goes into effect on January 1, 2020, but businesses that collect any California consumer information should begin preparing for the law’s requirements as soon as possible.

The first of its kind in the United States, the California Consumer Privacy Act (CCPA) gives a number of rights to California residents to allow them to better understand and control what kinds of information businesses collect about them and how businesses use and share such information. The CCPA has many similar concepts and requirements as the European General Data Protection Regulation (GDPR); however, there are several significant differences. Being in compliance with GDPR does not guarantee compliance with CCPA.

The CCPA applies to for-profit entities doing business in California that meet certain revenue and/or data collection thresholds. Compared to the GDPR, the CCPA covers an even broader scope of data including not just personal identifying information, but also any information capable of being used in conjunction with other information to identify an individual person or household. New requirements of the CCPA include individual rights to data access and erasure, and limitations on the use of consumer data. The law also gives consumers the right to opt-out of having their data sold via a clear and conspicuous link on a business’s website.

Like the GDPR, violations of the CCPA may result in significant fines. To ensure compliance when the law takes effect January 1, 2020, businesses should update their privacy policies and begin developing compliance plans to be able to track what kinds of data is collected, stored, shared, and sold and to respond to consumers’ requests for copies of the data stored about them, “Do Not Sell” requests, and data deletion requests. Businesses should ensure that they have a comprehensive, accurate, and up-to-date inventory of all the data they collect share, and/or sell concerning California residents.

With experience drafting privacy policies, we encourage you to consult a Deborah A. Nilson & Associates, PLLC attorney if you have specific questions or concerns relating to the CCPA.

ADA Compliance: Websites Need to Be Accessible Too
  • Emily Ayoob
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ADA Compliance: Websites Need to Be Accessible Too
ADA Compliance: Websites Need to Be Accessible Too 1920 1080 Emily Ayoob

In recent years, a new kind of ADA compliance lawsuit has emerged. Indeed, plaintiffs have started targeting websites—including websites operated by non-U.S. entities—for failure to comply with the Americans with Disabilities Act (“ADA”) of 1990.

The Americans with Disabilities Act was enacted in 1990 to prohibit discrimination against disabled persons and to ensure that disabled persons enjoy equal rights and opportunities. In particular, Title III of the ADA provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The ADA itself, which was enacted before the Internet became widespread, only lists physical places as examples of “places of public accommodation.” That has not stopped plaintiffs from bringing claims against websites. In doing so, they benefit from the support of the Department of Justice (“DOJ”), which has stated, in guidance it has issued on the ADA, that it has interpreted the ADA to cover websites operated by public accommodations.

Courts have also been receptive to such claims, agreeing to hear them despite defendants’ objections. There is, however, a split among courts as to which websites fall within the scope of the ADA. Some courts have ruled that places of public accommodation do not need to be physical places, and that, therefore, websites themselves could be places of public accommodation. For instance, in National Federation of the Blind v. Scribd Inc., the United States District Court for the District of Vermont found that a digital library offering reading subscription services via a website was a place of public accommodation. The court (and others like it)’s rationale is that Congress, in enacting the ADA, intended for the Act to have broad coverage so that disabled people would be able to fully participate in all aspects of society, and that, although when the ADA was enacted in 1990, the Internet was only in its infancy, it has now become central to many aspects of society. On the other side of the split, some courts require a strong nexus between the website and a physical place of public accommodation for the website to be covered by the ADA. For instance, earlier this year, in Robles v. Domino’s Pizza, LLC, the United States Court of Appeals for the Ninth Circuit noted that “Domino’s website and app facilitate access to the goods and services of a place of public accommodation—Domino’s physical restaurants,” and therefore ruled that the ADA applied to the website (and – it must be noted – the mobile app). The court emphasized that the nexus between the website and the physical place of public accommodation was “critical” to its analysis.

Although many of the cases brought so far have focused on Title III of the ADA, new cases are now being brought under Title I. Title I prohibits discrimination on the basis of disability in the context of job application, hiring, advancement and dismissal of employees, and terms and conditions of employment. For instance, in Kasper v. Ford Motor Co., a case filed earlier this year, the plaintiff is alleging that the defendant violated Title I by failing to offer disabled people a proper accessible alternative to their online job application process.

For the time being, the exact standard websites should adhere to in order to be in compliance with the ADA remains unclear. The DOJ has not yet made available any guidance on website compliance with the ADA and may not do so in the near future. The DOJ has recently reiterated, however, that the “absence of a specific regulation does not serve as a basis for noncompliance” with the ADA. As a result, businesses operating a website have little choice but to turn to privately created standards, the most commonly relied-upon standard being the Web Content Accessibility Guidelines (“WCAG”) 2.0. WCAG 2.0 contains guidance on how to make websites perceivable, operable, and understandable for people with disabilities, as well as robust (i.e. able to withstand changes in technology). At least one court—the United States District Court for the Southern District of Florida in Gil v. Winn Dixie Stores, Inc.—has ordered a company to ensure that its website conforms with WCAG 2.0. The DOJ has nonetheless specified recently that “noncompliance with a voluntary technical standard for website accessibility [such as WCAG 2.0] does not necessarily indicate noncompliance with the ADA,” thereby affording some flexibility to websites on how they comply with the ADA. However, it is generally considered best practice for all websites to meet basic accessibility criteria, not just because of the threat of an ADA lawsuit, but because it simply sends a more positive message to all consumers. In addition, compliance with basic accessibility guidelines should be standard practice, as the skills, effort and/or tools required to meet such guidelines should be minimal for most developers.

In sum, in the absence of further clarification by the DOJ, Congress, or the Supreme Court on which websites fall within the scope of the ADA, and on what compliance with the ADA exactly entails for a website, it is advisable for any website that could potentially have US-based visitors to comply with WCAG 2.0 in order to mitigate the risk of ADA compliance lawsuit.

Important Changes in the US Patent & Trademark Office
  • Emily Ayoob
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Important Changes in the US Patent & Trademark Office
Important Changes in the US Patent & Trademark Office 1920 1080 Emily Ayoob

The United States Patent and Trademark Office (USPTO) recently announced a new rule effective August 3, 2019, requiring all foreign-domiciled trademark applicants, registrants, and parties to Trademark Trial and Appeal Board (TTAB) proceedings to be represented by an attorney who is licensed to practice law in the United States. This requirement applies to applications, post-registration maintenance documents, provisional refusals in Madrid applications and TTAB proceedings.

Under the rule, the USPTO will correspond only with representatives who are qualified U.S. attorneys. If an application is filed without complying with this new rule, the USPTO will issue an Office Action that appointment of a qualified US Attorney is required. Failure to comply will result in the abandonment of the application.

Foreign-domiciled applicants who submit an application based on section 66(a) of the Act (Madrid applications) are subject to the requirement in all provisional refusals (i.e. Office Actions). However, provided the initial application with the International Bureau of the World Intellectual Property Organization complies with all other requirements for registration, the initial application will be exempt from the requirement.

This rule also removes from the regulations the authorization for reciprocally recognized Canadian patent agents to practice before the USPTO in trademark matters but continues to allow reciprocal recognition of Canadian trademark attorneys representing Canadian parties in U.S. trademark matters.

Finally, please note that the USPTO has instituted a program to perform random audits of US trademark registrations upon renewal. Registrations are randomly selected for audit to generally determine whether marks are in use with the goods and services identified in the registration. If a renewal is audited, the USPTO will require the owner to submit proof of use for at least two additional goods or services per class. If proof of use for the goods and/or services identified is not available, the identified goods and any other goods not currently in use will be deleted from the registration. Accordingly, it is important to be accurate when listing the goods and services sold in connection with the US-based trademark registration.

Please contact us if you have any questions about the above changes and requirements.

Sexual Harassment in the Workplace: New York Legislation in the Wake of the #MeToo and #TimesUp Movements
  • Caitlin Delaney
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Sexual Harassment in the Workplace: New York Legislation in the Wake of the #MeToo and #TimesUp Movements
Sexual Harassment in the Workplace: New York Legislation in the Wake of the #MeToo and #TimesUp Movements 1920 1080 Caitlin Delaney

In the United States, the concept of implementing policies and procedures to prevent sexual harassment in the workplace is not new. However, the #MeToo and #TimesUp movements, which were sparked by disturbing revelations about top executives across a range of industries, have mobilized the public to demand more protections for employees in the workplace. Indeed, lawmakers across the country have reacted to these demands, in part, by enacting legislation aimed at preserving employees’ rights to a workplace free from sexual harassment and discrimination.

On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 New York Budget, creating new obligations for New York employers (the “Law”). The following is a summary of what the Law does with respect to sexual harassment in the workplace and how it will affect employers.

Prohibits Mandatory Arbitration Agreements for Sexual Harassment Claims

The Law amends the New York Civil Practice Law and Rules (“CPLR”) to prohibit, except where inconsistent with federal law, any provision in an employment-related contract which requires a party to submit claims of sexual harassment to mandatory and binding arbitration. For employment-related contracts entered into as of July 11, 2018, such mandatory arbitration clauses will be rendered null and void. The exception to this prohibition will be arbitration clauses included in collective bargaining agreements, which will still be enforceable.

Prohibits Confidential Settlement Agreements for Sexual Harassment Complaint without the Complainant’s Consent

The Law further amends the CPLR and New York General Obligations Law to prohibit employers from including confidentiality provisions in any settlement agreement for sexual harassment unless the confidentiality provision is the complainant’s preference. The Law requires that the confidentiality clause must be provided to all parties. The complainant must be given (i) 21 days to consider the provision and (ii) 7 days in which to revoke his or her acceptance of the provision. This prohibition will be effective July 11, 2018.

Extends Sexual Harassment Protection to “Non-Employees”

Effective immediately, an employer can be held liable under the New York State Human Rights Law for permitting the sexual harassment of non-employees (including contractors, vendors, consultants, service providers, etc.) in the employer’s workplace.

Requires Employers to Implement Sexual Harassment Policies and Training Program in Accordance with State Standards

The Law amends the New York Labor Law to require employers to have a written sexual harassment policy and to provide employees with annual training on this topic. The New York Department of Labor and the New York State Division of Human Rights will work together to create a model sexual harassment prevention policy (the “Model Policy”) and a model sexual harassment prevention training program (the “Model Training Program”) that employers can use.

The Model Policy must include the following elements:

• A statement prohibiting sexual harassment including examples of conduct that would constitute unlawful sexual harassment;
• Information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims, and with a statement that there may be additional applicable laws;
• A standard complaint form;
• A procedure for timely and confidential investigation of complaints that ensures due process for all complaints;
• A statement informing employees of their rights of redress and available forums for adjudicating sexual harassment complaints administratively and judicially;
• A clear statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and against managers and supervisory personnel who knowingly allow such behavior to continue; and
• A clear statement that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding is unlawful.
The Model Training Program must be interactive and include:
• An explanation of sexual harassment and examples of conduct that would constitute unlawful sexual harassment;
• Information about the federal and state statutory provisions concerning sexual harassment and remedies available to victims;
• Information addressing supervisor conduct and additional responsibilities for such supervisors; and
• Information concerning employees’ right of redress and all available forums for adjudicating complaints.

New York employers must either (1) adopt the Model Policy and Model Training Program or (2) develop their own policies and training programs that equal or exceed the minimum standards set forth by the state agencies. Employers will have until October 9, 2018 to distribute their written harassment policies to their employees, and to implement and present their training program.

Next Steps for New York Employers

Employers should take several measures to ensure that they comply with the obligations and prohibitions created by the Law. First, employers should review existing sexual harassment prevention policies (including those set forth in employee handbooks) and training programs and consult an attorney to determine what revisions should be made. Employers should also review their standard settlement and arbitration agreements and revise them in accordance with the limitations set forth in the Law.
For assistance in crafting a compliant sexual harassment prevention policy or training program, or revising your standard employment-related agreements, please contact our office.

Disclaimer: No Legal Advice or Attorney-Client Relationship
The information and materials available in this article are for informational purposes only and are not intended to and do not constitute legal advice, a solicitation for the formation of an attorney-client relationship, or the creation of an attorney-client relationship. The information provided may not apply to your particular facts or circumstances; therefore, you should seek legal counsel prior to relying on any information that may be found in this article. Furthermore, information provided in the article may not reflect the most recent and/or all developments in the law.

Questions at the Border: Preparing for Your Next Business Trip to the US
  • Caitlin Delaney
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Questions at the Border: Preparing for Your Next Business Trip to the US
Questions at the Border: Preparing for Your Next Business Trip to the US 1920 1080 Caitlin Delaney

In light of recent U.S. policy changes with respect to immigration enforcement and border control, it is important to be prepared for heightened questioning when entering the United States. Citizens of countries participating in the Visa Waiver Program (“VWP”) can generally enter the United States without a visa for stays of ninety days or less, as long as the individual has been authorized under the Electronic System for Travel Authorization (“ESTA”) (Visit https://www.cbp.gov/travel/international-visitors/esta or consult an immigration attorney for more details). Therefore, if you are traveling to the U.S. as the employee of a foreign (i.e., non-U.S.) company to check on the operations of that company’s U.S. subsidiary, and you are authorized under the VWP and ESTA, you are entitled to enter the United States without a visa.

However, when a U.S. Customs and Border Protection (“CPB”) officer asks you questions about your purpose for traveling to the United States, it is best to limit your answer to (1) inspecting the U.S. subsidiary’s operations and/or (2) attending meetings. Other employment-related activities may trigger the CPB agent to mistakenly conclude that you are an employee of the U.S. subsidiary, and therefore, that you require an employment visa. To ensure that you can answer a CPB officer’s questions correctly and without confusion, we have outlined below what you should not say when being questioned by a CPB officer:

(1) that you have authority to supervise, hire or fire employees of the U.S. subsidiary
(2) that you are an employee of and/or are paid a salary by the U.S. subsidiary
(3) that the U.S. subsidiary is covering the costs of your trip, lodging, etc.

One way to facilitate the entry process is to present to the CPB officer an attorney letter confirming the purpose of your U.S. visit (only present the letter if he/she asks about your business activities in the United States). If you will be traveling frequently to the United States for the purpose discussed above, it would be prudent to have such a letter on hand.

Please contact our office if you would like us to provide you with an attorney letter for the next time you visit the United States to check on the activities of your U.S. subsidiary. If you have additional questions related to visas and other immigration matters, please consult your immigration attorney or allow us to make a referral.

Disclaimer: No Legal Advice or Attorney-Client Relationship
The information and materials available in this article are for informational purposes only and are not intended to and do not constitute legal advice, a solicitation for the formation of an attorney-client relationship, or the creation of an attorney-client relationship. The information provided may not apply to your particular facts or circumstances; therefore, you should seek legal counsel prior to relying on any information that may be found in this article. Furthermore, information provided in the article may not reflect the most recent and/or all developments in the law.

What Every Employer Should Know About Family and Medical Leave in the United States
  • Caitlin Delaney
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What Every Employer Should Know About Family and Medical Leave in the United States
What Every Employer Should Know About Family and Medical Leave in the United States 1920 1080 Caitlin Delaney

Unlike Europe, Canada, Japan, and most economically advanced nations around the world, the United States is an outlier when it comes to paid family or medical leave. The U.S. is one of the only economically advanced countries without some type of legislation mandating paid family or medical leave for employees. Despite this anomaly, there is a growing trend among U.S. states and municipalities to require paid family and/or medical leave to certain employees. This trend builds upon the unpaid leave laws in the U.S., namely, the Family Medical Leave Act, and the expansions thereof implemented by state and local governments. The topic of paid leave has recently made headlines with respect to the U.S. presidential election, as both Democratic and Republican candidates have proposed their own paid leave plans should they be elected in November. As an employer, it is vital to understand the current federal and local leave laws as they apply to your business, and to be aware of potential changes in the law. Without delving into the intricacies of the FMLA, its state and local counterparts, and perhaps the hairiest subject of them all, politics, here are some general questions you should be asking yourself as an employer:

1. What is the FMLA, and how does it apply to my business?

The Family Medical Leave Act (“FMLA”) is a national law that provides up to twelve weeks of unpaid, job-protected leave during a twelve-month period to (1) care for the employee’s newborn, adopted or foster child; (2) to care for the employee’s family member; or (3) to care for the employee’s own serious medical condition. The law provides a base-line requirement for family or medical leave, and allows states to set more expansive standards. The “job-protected” feature of the FMLA means that employers cannot fire an employee for taking such leave, and cannot take any other adverse employment action on that basis. After an employee returns from leave, he or she must be restored to the same or an equivalent position, except in limited circumstances. The FMLA applies to private employers with fifty or more employees within a seventy-five mile radius.

2. Has my state expanded the FMLA standards for unpaid leave?

This question will depend on where you and your employees conduct business. Therefore, consulting an attorney who understands your state’s employment law is key. Some states that have expanded the standards for unpaid leave are California, Connecticut, Rhode Island, Maine, New Jersey, and Vermont. These states and others who have expanded the standards for unpaid leave have done so by either (1) increasing the amount of leave-time, (2) including more people for whom an employee may take leave, (3) setting additional standards for businesses with more or less than fifty employees, or (4) a combination of some or all of the above expansions. For example, Maine’s unpaid leave laws applies to employers with only fifteen or more employees, and also provides for leave to be an organ donor. Connecticut allows up to sixteen weeks of family or medical leave in a span of two years for employees of businesses with seventy-five or more employees. With so many variations on how federal unpaid standards are expanded, it is important to consult counsel to ensure that your business is complying with all of your state’s leave laws.

3. Which state or local governments have implemented paid leave laws?

Currently, three states have implemented paid family and medical leave laws. California, New Jersey, and Rhode Island all offer paid family and medical leave. In 2018, New York’s Paid Family Leave Benefits Law will go into effect and join the growing wave of updated family leave laws. With respect to paid sick leave, California, Connecticut, Massachusetts, Oregon, and Vermont have implemented legislation requiring employers to provide paid sick leave to their employees. In addition, Seattle, Washington, New York, New York, several cities in New Jersey, and number of other municipalities have established laws mandating paid sick leave. Similar to unpaid leave laws, each state or city has its own rules regarding the application of such laws, so consulting an attorney is integral to understanding your rights and obligations as an employer.

4. What changes should I look out for in the near future with respect to leave laws in the U.S.?

It is always important stay up to date when it comes to the laws that affect your business and your employees. Recently, the media has focused on the 2016 U.S. presidential campaign and the proposals (and colorful attributes) of each candidate. In the realm of family and medical leave, each candidate has a plan that involves federally funded leave for certain employees. Hillary Clinton’s plan guarantees up to twelve weeks of paid family and medical leave to care for a new child or a seriously ill family member, and up to twelve weeks of medical leave to recover from a serious illness or injury of their own. The Democratic candidate further proposes that an employee on paid family or medical leave will earn at least two-thirds of his or her current wages, capped at a certain amount. Her plan for funding paid leave is to reform taxes.
On the Republican front, Donald Trump’s plan provides for six weeks of paid maternity for employees whose employers do not offer paid maternity leave. He proposes that the plan will implemented by amending the existing unemployment insurance that companies are required to carry, and paid for by offsetting reductions in the program.

5. What’s the takeaway?

No matter the outcome of the 2016 election, it is likely that the U.S. will undergo significant changes with respect to family and medical leave laws in the coming years. The key is to stay informed: consult an attorney to know which federal and local laws apply to your business and understand your rights and obligations underneath them, as well as the rights and obligations of your employees. Keep abreast of new laws on the horizon and make sure that your business is prepared.
This article provides only a basic summary of the various aspects of family and/or medical leave under U.S. law. Consult an attorney for specific and individualized advice tailored to the needs of your business.

Disclaimer
No Legal Advice or Attorney-Client Relationship
The information and materials available in this article are for informational purposes only and are not intended to and do not constitute legal advice, a solicitation for the formation of an attorney-client relationship, or the creation of an attorney-client relationship. The information provided may not apply to your particular facts or circumstances; therefore, you should seek legal counsel prior to relying on any information that may be found in this article. Furthermore, information provided in the article may not reflect the most recent and/or all developments in the law.

Intellectual Property Protection in the United States
  • Deborah Ann Nilson
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Intellectual Property Protection in the United States
Intellectual Property Protection in the United States 1920 1080 Deborah Ann Nilson

Intellectual property can be among the most valuable assets of a business. Therefore, it is critical that businesspeople understand the different varieties of intellectual property and protect them accordingly. “Intellectual property” describes intangible assets that are creations of the mind, which may be musical, literary, and artistic works; discoveries and inventions; or words, phrases, symbols, and designs. Below is a brief explanation of the different types of intellectual property that are recognized under U.S. law.

Trademarks and Servicemarks

A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of the goods of one party from others. A servicemark plays the same role for the services offered by a party. In this article, I will use “trademark” to describe both trademarks and servicemarks. The most common examples of trademarks are a company’s name and logo. For instance “McDonald’s” is a trademark of McDonald’s Corporation. The “golden arches” logo, the large yellow M, is also a trademark of McDonald’s Corporation. These trademarks help potential customers distinguish McDonald’s stores and products from other stores and products. A user of a trademark acquires some rights to such trademark by merely using it in commerce, but in order to take advantage of stronger protections under federal law against use by another party or challenges to ownership, a trademark owner must register its trademark with the United States Patent and Trademark Office (“USPTO”). Notably, while most European jurisdictions use a class-based registration system, in the United States, a trademark owner may only obtain a trademark registration in connection with the specific goods and services the trademark owner provides or has a bona fide intent to provide.

Once a trademark is registered, a trademark owner must maintain its trademarks properly in order to retain its rights. For one thing, if a trademark owner chooses to license its trademarks, such license must include provisions giving the trademark owner control over how the trademark is used and protecting the goodwill of the trademark and the reputation of the trademark owner. Failing to exercise the required amount of control could result in loss of trademark rights. Furthermore, a trademark owner may lose its rights through abandonment, either by failing to continue to use the trademark in commerce or by failing to stop unauthorized parties from using the trademark.

Copyrights

A copyright is the exclusive legal right to print, publish, perform, film, or record literary, artistic, or musical material. The most commonly-known types of works that are subject to copyright are books, movies, songs, and computer programs (including code). The author of a written or recorded work automatically possesses a copyright in a work as soon as the work is written down or recorded as long as such work qualifies as “original” under applicable federal law. However, in order to create proof of copyright and to avail itself of the stronger protections for copyrighted works provided under federal law, including the right to bring a legal action in court, a copyright holder must register its copyright with the United States Copyright Office. Use of a notice of copyright in connection with the work is also an important tool in copyright protection.

Patents

A patent is the exclusive legal right to exclude others from making, using, offering for sale, or selling an invention. Unlike trademark rights, copyrights, trade dress rights, and trade secrets (discussed below), patent rights do not automatically arise from use or creation of an invention but must be granted by a governmental authority. In the United States, an inventor must apply for a patent through the USPTO. Moreover, unlike trademarks and copyrights, which may be registered at any time after use or creation of the underlying work, respectively, applicants may only file for a patent within one year of the private or public disclosure of an invention. The two most common types of patents issued by the USPTO are utility patents and design patents. An invention qualifying for a utility patent must introduce a useful process, machine, manufacture, or composition of matter that is novel and nonobvious. An invention qualifying for a design patent must introduce a new, original, and ornamental design embodied in or applied to an article of manufacture that is nonobvious. The term of a utility patent is 20 years, while the term of a design patent is 14 years. Apple Inc. holds design patents for the iPhone, which include, for instance, the rounded edges and the bezel on the front surface of the phones. It also holds a utility patent for the tap-to-zoom feature used in iPhones.

Trade Dress

Trade dress is the distinctive packaging of a product or design of a building, which, like a trademark, identifies and distinguishes the source of the product. For example, the restaurant chain TGI Friday’s decorates its locations in red stripes and uses the same distinctive red stripes in its advertisements. In order to be protectable, trade dress must be inherently distinctive, and its distinctive aspects must not be purely functional. Although it is more difficult to register trade dress than it is to register trademarks, trade dress may be registered with the USPTO, thereby obtaining stronger protections under federal law.

Trade Secrets

A trade secret is a formula, process, device, or compilation used in business which gives the owner an advantage over competitors who do not know or use such trade secret. For instance, the recipe used in making Coca Cola is a trade secret that has never been revealed. Trade secrets cannot be registered. In fact, the only way to protect trade secrets is to preserve their secrecy by implementing proper security and confidentiality procedures within the business which owns the trade secret and with respect to anyone outside the business to whom the owner discloses the trade secret, such as attorneys and independent contractors. If a properly-maintained trade secret is misappropriated, the owner of the trade secret may sue the misappropriating party for damages.

This article provides only a basic summary of the various types of protection available under U.S. law. Consult an attorney for specific and individualized advice tailored to the needs of your business.

Disclaimer

No Legal Advice or Attorney-Client Relationship
The information and materials available in this article are for informational purposes only and are not intended to and do not constitute legal advice, a solicitation for the formation of an attorney-client relationship, or the creation of an attorney-client relationship. The information provided may not apply to your particular facts or circumstances; therefore, you should seek legal counsel prior to relying on any information that may be found in this article. Furthermore, information provided in the article may not reflect the most recent and/or all developments in the law.

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