In Case You Missed It (March 2024)
Bradley Arant Boult Cummings LLP
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Our attorneys regularly publish relevant legal and business articles, by way of our Bradley blog network, to help inform readers and keep you up to date on the latest business trends and issues. This newsletter serves as a space to revisit or discover blog posts you might have missed over the course of the last month.
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Our Labor and Employment team has extensive experience helping our clients resolve disputes both in and out of the courtroom. We are proud to work with a large and diverse group of local, regional, and national clients in a variety of industries, including healthcare, manufacturing, mining, media, transportation, restaurant and food services, education, temporary and permanent staffing, and many others.?We are mindful of the challenges that companies face in today’s litigious environment, and we are committed to providing our clients not only with cost-efficient services, but also long-lasting partnerships built on a deep knowledge of our clients’ day-to-day operations.
Our Labor & Employment Insights blog is the culmination of our experiences, lessons learned, and ideas to help you and your business operate as smoothly as possible.
I Haven’t Been Paying an Employee Correctly! Now What?
It is every employer’s nightmare: You find out that employees (or former employees) are claiming that they were not paid properly and are due overtime for the last two or three years. This primarily arises because you classified the employees as exempt (salaried) under the FLSA and they are challenging that classification, or the employees were simply not getting paid time and a half for every hour worked over 40 in a workweek (or under a different state law standard). You certainly did not intentionally misclassify anyone or deny employees overtime pay. How do you handle the matter? Read more.
Texas Regulators to Consider Changes to Consumable Hemp Program
The Texas Health and Human Services Commission, on behalf of the Texas Department of State Health Services, recently announced that it was accepting public comments to the current rules governing consumer hemp products in the state.?Read more.
A Port in the Infringement Storm: When 35 U.S.C. § 271(e)(1)’s Safe Harbor Applies
Earlier this week, the Federal Circuit granted Meril Life Sciences safe passage out of the infringement storm — otherwise known as Edwards Lifesciences — continuing to chase it (at least for now). More specifically, a divided panel of the Federal Circuit issued an opinion?affirming the Northern District of California’s grant of summary judgment to Meril Life Sciences based on the finding that the importation of two heart valve systems fell within the safe harbor provision of 35 U.S.C. § 271(e). Read more.
Mistake No. 2 of the Top 10 Horrible, No-Good Mistakes Construction Lawyers Make: Not Educating Clients on the Pros and Cons of Arbitration
I have practiced law for 40 years, with the vast majority of that time spent as a “construction lawyer.” I have seen great… and bad… construction lawyering, both when on the other side of a dispute, as well as when serving well over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, so I have tried to be a good mentor to young construction lawyers. Becoming a great construction lawyer is challenging, but the rewards are many. The following is mistake No. 2 of the top 10 mistakes I have seen lawyers make in construction disputes, and yes, I have been guilty of making all of them. Read more.
Pardon? Massachusetts Cannabis Offenders Given New Hope
Following the lead of President Joe Biden’s pardon of simple marijuana possession, Massachusetts Gov. Maura Healy recently announced plans to issue a series of pardons for those convicted of misdemeanor marijuana possession convictions. In doing so, the governor stated that “[n]obody should face barriers to getting a job, housing or an education because of an old misdemeanor marijuana conviction that they would not be charged for today.” Read more.
Time to Sell? Are You and Your Company Prepared to Go After the Elusive Pot of Gold?
After devoting long hours and years of hard work in building their companies, majority owners of private businesses may reach a point where they consider whether it is time for them to sell. This large question – Is now the time for you to sell your business? – will depend on the answers to some important, underlying questions, which are reviewed in this post. The answers to these questions may confirm that the owner is ready to move forward with a sale, but even if that is the case, the answers to these preliminary questions may reveal that there is still quite a bit of work that still remains to be done before the sale process should begin.?Read more.
Legalizing LSD? FDA Says Mm-hmm to MM120
If you know either of us, you know neither of us would pass up a chance to say, “I told you so.” As we looked ahead to 2024 in January, we speculated that psychedelics could be legalized as a prescription medicine. Now, not even a quarter into 2024, proponents of the psychedelic industry should be more optimistic that federal legalization of psychedelics as medicine is closer than ever. Read more.
California Court Sends Solar Contractor’s Bond Claims to Arbitration
A California federal court ruled last week that a surety can enforce an arbitration clause in a contract to which it is not a party. The dispute involves performance and payment bond claims brought by solar contractor Swinerton Builders, Inc. Swinerton brought the claims in California federal court against Argonaut Insurance, the surety of a mechanical subcontractor who defaulted after its owner and license qualifier passed away. The surety moved to compel arbitration pursuant to the dispute resolution provision of the underlying subcontract. Read more.
Get Interactive!?Searching for ADA Accommodations with Employees
The Americans with Disabilities Act (ADA) requires covered employers to provide reasonable accommodations for employees with disabilities. To help determine effective accommodations, employers should use an “interactive process,” which simply means that employers and employees with disabilities who request accommodations work together to brainstorm accommodations. While it’s not a?per se?requirement, the law favors an “interactive process” for determining whether an effective accommodation is available. However, many employers may get “tripped up” on this process by not vetting additional options, which opens potential to adverse verdicts under the ADA. Read more.
Veep Urges DEA to Reschedule Marijuana “As Quickly as Possible”
In case you missed it, Fat Joe visited the White House late last week to discuss federal marijuana policy. 2024, man.
During a roundtable discussion with Mr. Joe (?), Kentucky Gov. Andy Beshear, and several individuals who have received pardons from President Joe Biden for prior federal marijuana convictions, Vice President Kamala Harris “urged the Drug Enforcement Administration to work as quickly as possible on its review of whether to reschedule marijuana as a less-dangerous drug.” Read more.
领英推荐
Domestic Preference Development: New DFARS Buy American Act Requirements
In 2024 the White House continues to place an emphasis on the U.S. Government’s longstanding domestic purchase preferences. The latest update implementing the domestic purchase preference is the Department of Defense’s Final Rule that was published on February 15, 2024, which amends the Defense Federal Acquisition Regulation Supplement (DFARS). This revision to the DFARS supplements the FAR Final Rule that implements Executive Order (E.O.) 14005, “Ensuring the Future Is Made in All of America by All of America’s Workers.” Read more.
Mounting Media Pressure for the Residential Solar Consumer Finance Industry Sparks Concerns about Increased Regulatory Scrutiny
As more Americans install photovoltaic power generation and storage systems on their homes, journalists have reported incidents of alleged fraud and other forms of misconduct by solar system installers, finance companies, and other related parties. The media attention has correlated directly with an increase in press releases, investigations, and even lawsuits by attorneys general and other regulators in states including Arizona, Connecticut, Florida, Georgia, Idaho, and New Mexico. Read more.
Texas Hold ‘Em: Lone Star State Enacts New Notice Law Regarding Workplace Violence
Workplace violence is an issue that impacts employees and employers alike. While OSHA uses the General Duty Clause to address such issues, some states are enacting their own laws about it. As we reported a few weeks ago, Texas recently enacted a new law to protect healthcare employees from violence in the workplace. The Texas Legislature also implemented Chapter 104A, “Reporting Workplace Violence,” to the Texas Labor Code. The law became effective on September 1, 2023, and applies to all Texas employers. Read more.
State False Claims and AKS Statutes Keep Case Alive in 2nd Circuit: Underappreciated State Laws May Present Significant Compliance Risk
Recent years have seen eye-popping judgments and settlements involving cases brought under the federal False Claims Act (FCA) and federal Anti-Kickback Statute (AKS). And healthcare companies have, unsurprisingly, focused their compliance efforts on these and other federal fraud-and-abuse statutes. But a recent decision out of the Second Circuit underlines the importance of incorporating state-level anti-fraud laws in any compliance program.?Read more.
Delta-Nope: Florida Poised to Ban Delta-8 and Delta-10 Products
Earlier this week, the Florida legislature passed a bill (SB 1698) that will limit the amount of THC in hemp-derived products and threatens to upend the novel cannabinoid industry in the state. Read more.
11th Circuit Puts to Sleep Florida Anti-Woke Law Prohibiting Certain Workplace Training
You may recall that in 2021 the State of Florida, in a much-publicized move, passed a law called the “Stop W.O.K.E. Act,” which banned Florida employers from mandating employee attendance to any training or instruction that “espouses, promotes, advances, inculcates, or compels” a certain set of beliefs regarding the treatment of individuals based on race, color, sex, or national origin.?The law did not stop training on the general subject of protected classes, but instead any discussion that “endorses” ideas that a certain race is either morally superior to another or is inherently discriminated against.?The law did not prohibit mandatory trainings that promoted other types of ideas not included in the list.?The law also didn’t bar voluntary attendance at these type trainings – only policies that made it mandatory. Read more.
Bid Protests in Pennsylvania
Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see, e.g., our posts on bid protests in North Carolina, Georgia, the District of Columbia, New York, Virginia, and Alabama). For the next state in this series, we focus on the bid protest procedures in Pennsylvania. Read more.
Congress Tees Up Copyright Protection for Golf Course Designs with the BIRDIE Act
A new federal bill aims to put golf courses on “par” with other architectural designs by expanding federal copyright protection to golf courses. Copyright law in the United States, rooted in the U.S. Constitution, ensures protection for “original works of authorship fixed in any tangible medium of expression” (17 U.S.C. § 102(a)). This broad definition covers everything from literature to music to photographs, and — since a 1990 amendment to the Copyright Act — the design of buildings. This inclusion marked an acknowledgment of the creative and intellectual effort involved in architectural design, extending copyright’s reach to protect the fruits of architects’ labors. Read more.
Insurance in the Know (Part 1): Reservations of Rights Can Trigger Right to Independent Counsel
This is the first in a series of discussions about issues that arise on a regular basis after policyholders file an insurance claim.
Many liability insurance policies require the insurer to defend the insured. This “duty to defend” usually includes the right to select defense counsel – typically “panel counsel” from a list of pre-approved law firms – and control the defense. The relationship between the insurer, defense counsel, and the policyholder is known the “insurance triangle” (think Bermuda triangle) because it is laden with pitfalls. Read more.
Rise in Healthcare Data Breaches & the Impact for Healthcare Providers in 2024
The healthcare sector is increasingly facing cyber-threats with ransomware and hacking at the forefront. In the last five years, there has been a staggering 256% rise in significant hacking-related breaches and a 264% surge in ransomware incidents reported to the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR). Hacking alone was responsible for 79% of the major breaches reported to OCR in 2023. These breaches have had a profound impact, affecting over 134 million individuals in 2023 alone, marking a 141% increase from the previous year.? In response to rise in cyber-threats within the healthcare industry covered entities and business associates subject to the Health Insurance Portability and Accountability Act (HIPAA) should be proactive in aiming to mitigate or prevent the growing menace of cyber-attacks. Read more.
The Top 10 Horrible, No-Good Mistakes Construction Lawyers Make: Mistake No. 1: Not Realizing It’s All About the Facts
I have practiced law for 40 years, with the vast majority spent as a “construction lawyer.” I have seen great… and bad… construction lawyering, both when on the other side of a dispute, as well as when serving well over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from my mistakes and was lucky enough to have great construction lawyer mentors to lean on and learn from, and I have tried to be a good mentor to young construction lawyers. Becoming a great construction lawyer is challenging, but the rewards are many. The following are the Top 10 mistakes I have seen lawyers make in construction disputes, and yes, I have been guilty of making all of them. Read more.
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