The National Law Forum

San Francisco Mandates Solar Power on New Buildings

The City of San Francisco announced today that it will now mandate solar photovoltaic or solar water panels on all new residential and commercial buildings of 10 floors or less. The City’s renewable energy ordinance makes San Francisco the first major city in the country to require solar panels on new construction.

Will San Francisco’s action spur Cal/OSHA to take a renewed look at workplace safety in the solar industry? Indeed, as solar installations increase rapidly throughout the country, perhaps Federal OSHA will dust off its Green Job Hazards guidance in light of what appears to be a continued movement toward renewable energy sources and the inevitable increase in workplace hazards that occurs when industries rapidly expand.

Article By Matthew Linton of Holland & Hart LLP

Wave of Recent and Transformative Pro-Employee Measures in New York

New York State and New York City lawmakers have taken several actions recently to expand employee rights and benefits. New York State has passed a 2016-2017 budget (“Budget”) that will significantly impact New York employers by creating a law governing paid family leave and enacting a statewide plan to incrementally increase the minimum wage resulting in a $15 minimum wage rate for some employers. Mayor Bill de Blasio also recently signed several bills amending the New York City Human Rights Law (“NYCHRL”), including 3 amendments that will strengthen existing employee protections.

Paid Family Leave

The New York State Budget enacts a paid family leave policy for New York employees (the “Paid Family Leave Law”) that will provide wage replacement to employees taking time o for covered reasons. Beginning January 1, 2018, employees who have worked for at least 6 months will be eligible for 8 weeks of paid leave benefits for the purpose of (1) caring for a family member with a serious health condition, (2) caring for a new child during the first 12 months after the child’s birth or after the first 12 months after placement of the child for adoption or foster care with the employee, or (3) addressing certain exigencies when a family member, including a spouse, domestic partner, child or parent, is called to active military service. Leave will be paid at a rate of 50% of the individual’s average weekly wage, not to exceed 50% of the state average weekly wage.

The length of leave benefits and amount of bene ts paid to eligible employees will increase incrementally. Once fully implemented on January 1, 2021, the Paid Family Leave Law will provide employees with up to 12 weeks of paid family leave to be paid at a rate of 67% of the individual’s average weekly wage, not to exceed 67% of the state average weekly wage.

Until New York passed the Paid Family Leave Law, only 3 states o ered any paid family leave: California, New Jersey and Rhode Island. While New York State lauds its Paid Family Leave Law as the “longest and most comprehensive in the nation,” this week San Francisco’s city supervisors voted to require employers with more than 20 employees to give workers six weeks of fully paid leave – a measure that is even more expansive than California’s current leave law that provides benefits for 55% of an employee’s average weekly wage. If signed into law, San Francisco’s paid leave law may be considered the most far-reaching in the nation.

But how does New York’s Paid Family Leave Law stack up against paid family leave insurance benefits o ered by its neighbor across the Hudson?

	New York	New Jersey
Employers Covered	All Employers	All Employers
Employees Eligible	All employees who have worked for at least 6 months in NY	All employees who have worked 20 calendar weeks
Reasons for Leave	care for newborn/newly adopted/foster child care for family member with serious health condition address exigencies associated with certain family members on active military service	care for newborn/adopted child care for family members with serious health condition
Length of Benefits	12 weeks, once fully implemented	6 weeks during any 12 month period, with a different rate for intermittent leave
Amount of Benefits	67% of average weekly wage, not to exceed 67% of the state average weekly wage, once fully implemented	2/3 of employee’s average weekly wage, up to $524 per week maximum, with a different rate for intermittent leave
Job and Benefits Protection	Requires reinstatement to the position held immediately prior to taking leave, or to a comparable position with comparable benefits.	No job protection

Minimum Wage

New York’s Budget incorporates minimum wage increases throughout the State, which will increase the wage significantly from the current $9 per hour rate. The increases will be implemented in incremental phases and will vary by location within New York State and by the size of the employer’s business. By the end of 2018, many New York City businesses will be required to pay employees $15 per hour, which is the swiftest and most significant increase set forth in the Budget. However, New York City employers with 10 or fewer employees will experience smaller increases over a longer period leading to a $15 minimum wage rate at the end of 2019. Employers in other counties around New York City will reach the $15 per hour minimum wage rate by the end of 2021. Other areas in New York State will experience lesser increases, reaching a $12.50 minimum wage rate by the end of 2020 with further increases to be determined. New York is the second state to institute a $15 minimum wage rate, preceded by California which also recently implemented a phased-in increase to its minimum wage rates that will begin next year.

The Budget incorporates a “safety valve” provision, which provides that starting in 2019 the State Director of the Division of Budget will annually assess the impact of the minimum wage increases to determine whether it is necessary for the State to temporarily suspend the scheduled increases. Based on the Director’s recommendation and report, the Commission of Labor will determine whether or not to suspend or delay further increases to the minimum wage rate.

NYCHRL

The recent amendments to the NYCHRL, which already had some of the broadest employee protections in the country, further strengthen employee protections in New York City. Speci cally, the NYCHRL has been amended to benefit employees by:

codifying three judicial decisions, including by expressly stating that the statute must be interpreted liberally to accomplish “uniquely broad and remedial purposes” regardless of whether similar civil and human rights provisions under federal or state law have been similarly construed and that any and all exceptions and exemptions found in the statute must “be construed narrowly in order to maximize deterrence of discriminatory conduct.”
permitting a claimant to recover attorneys’ fees, expert fees and other costs in an administrative proceeding before the New York City Commission on Human Rights; and
repealing several provisions that were previously interpreted to limit protections related to sexual orientation.

Each of these amendments is effective immediately.

Tips for Employers

New York employers should review their policies regarding leave and ensure any necessary updates are made in advance of the Paid Family Leave Law’s January 1, 2018 implementation date. Similarly, the varied and incremental increases to the minimum wage rate throughout New York State will require New York employers to closely monitor their payroll practices to ensure that they properly implement minimum wage requirements. The employment-related amendments to the NYCHRL do not create a rmative requirements on employers. However, employers should bear in mind that New York City’s ever expanding NYCHRL creates unique challenges for employers seeking to defend claims. We will continue to update you as courts interpret these new measures, and if and when regulations are issued to address more nuanced concerns about the new legislation.

Article By David I. Rosen, Galit Kierkut, Charles H. Kaplan & Grace A. Byrd of Sills Cummis & Gross P.C.

Supreme Court’s Decision on Future of DACA and DAPA

Supreme Court argument has taken place in United States v. Texas, a high-stakes, hotly contested case on the Administration’s executive programs that deferred possible deportation of millions of undocumented individuals. The Court’s expected June decision is likely to have far-reaching implications for employers.

In 2012, the Obama Administration introduced through executive action Deferred Action for Childhood Arrivals (DACA), a program which deferred deportation of certain individuals who arrived to the United States unlawfully as minors. DACA allowed these individuals access to employment authorization. In late-2014, the Administration, again through executive action, expanded DACA, in part, by increasing the available periods of employment authorization for DACA beneficiaries from two years to three years, and introduced Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA is a program which deferred deportation of and created a basis for employment authorization for parents who, as of November 20, 2014, had a child who was a U.S. citizen or green card holder.

In February 2015, the U.S. District Court for the Southern District of Texas concluded the 2014 DACA expansion and DAPA creation were unconstitutional and enjoined the 2014 executive action. The U.S. Circuit Court of Appeals for the Fifth Circuit upheld the lower court’s injunction later that year. The Administration appealed that decision to the U.S. Supreme Court.

The case raises the threshold issue as to whether states have the right to bring such an action and carries with it broad implications for the limits on and use of executive power. The case is important for employers because hundreds of thousands of individuals have obtained employment authorization through DACA’s 2012 guidelines and more than 100,000 more received three-year employment authorization approvals through the 2014 expansion before the district court’s injunction. It was expected that many individuals would continue to apply for three-year employment authorization under the DACA expansion and DAPA creation. Since February 2015 and until the Supreme Court renders a decision, only individuals qualifying under the original 2012 DACA guidelines may obtain employment authorization, limited to two-year increments. If the Supreme Court agrees with the Fifth Circuit, then the DACA expansion and DAPA program will be nullified. Whether the pre-2014 DACA program and guidelines would survive a Supreme Court decision affirming the Fifth Circuit’s ruling is unclear.

Contributing to the interest in and speculation about this case is the vacancy on the Supreme Court created by Justice Antonin Scalia’s recent death. Should the Supreme Court’s deliberations end in a 4-4 tie, the lower court’s ruling would remain intact and undisturbed, thus foreclosing the ability of individuals who would otherwise be qualified for employment authorization under DACA expansion and DAPA to receive employment authorization as the 2014 executive action intended. However, because an affirmance by an equally divided 4-4 Court would be non-precedential, the issues could be raised again in another case, after a ninth justice was seated on the Court.

There will be great interest in the outcome of this case as the end of the current term approaches.

Limelight Networks v. Akamai Tech. – Supreme Court Cert. Denied

Yesterday, the Supreme Court declined to hear Limelight’s petition for cert. on the question of whether an accused infringer may be held liable for direct infringement of a claim to a method where multiple parties perform the steps of the method.

On August 13, 2016, the S. Ct. remanded the en banc decision of the Fed. Cir. that set forth the law of divided infringement under s. 271(a), and found that Limelight directly infringed U.S. Pat. No. 6,108,703. The court held that an entity will be found responsible for others’ performance of method steps “(1) where that entity directs or controls others’ performance, [or] (2) where the actors form a joint enterprise.”

As well as in the case of agency or contractual direct infringement, the court concluded that liability under s.271(a) can also be found what an infringer “conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner and timing of that performance.” The infringer must have the right and ability to stop the infringement.

In those instances, “the third party’s actions are attributed to the alleged infringer such that the alleged infringer becomes the single actor chargeable with infringement.” The element of direction or control is a question of fact, as is the presence of a joint enterprise.

If the facts support the presence of a joint venture, all parties involved can be found liable for direct infringement, “as if each were a separate actor.”

The court found that Limelight directed or controlled its customer’s performance of each remaining method step: “tagging and serving content”). Don’t ask me what this means. See slip. op. at 8-9. Of course, this decision is relevant to a drug company instructing a physician and, ultimately, the patient, via labelling and/or training, about how to use a drug or biological.

Article By Warren Woessner of Schwegman, Lundberg & Woessner, P.A.

Red Stripe Prevails in Alcohol Beverage Labeling Class Action

The latest merits decision in the ongoing false advertising/labeling class actions appears here. This case involves allegations that the labeling and marketing of Red Stripe Beer misleads consumers into thinking they are purchasing beer made in Jamaica from Jamaican ingredients. In fact, production of Red Stripe for the US market moved to the US in 2012. The Southern District of California’s Dumas v. Diageo PLC decision to dismiss the plaintiffs’ case gives hope that companies with alcohol beverage brands originating overseas can produce those brands in the US without facing significant litigation risk.

The plaintiffs brought their case under several California statues and also alleged negligent and intentional misrepresentation. Central to the plaintiffs’ allegations were statements on Red Stripe’s secondary packaging and labeling that the beer was a “Jamaican Style Lager” and contained “The Taste of Jamaica.” The plaintiffs also pointed to the labeling and packaging’s continued display of the original Jamaican brewer’s logo as evidence of deception. Finally, the plaintiffs pointed to the label’s statement that the beer “embodied the spirit, rhythm and pulse of Jamaica and its people.” Of course, the labels and secondary packaging did disclose that the US market beer was brewed and bottled in Latrobe, Pennsylvania.

Looking only at the complaint and before any discovery, the court dismissed the case, concluding that “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” More specifically:

The mere fact that the words “Jamaica” and Jamaican” appear on the packaging does not support a conclusion that consumers would be confused about the origin and ingredients of the beer.
The statements on Red Stripe were similar to those made with respect to a “Swiss Army knife” – just as “Swiss” modified “Army,” in this case “Jamaican” modifies “Style” and does not connote the actual place of production.
Red Stripe’s display of “Jamaican Style” and similar claims are similar to Blue Moon making a “Belgian-Style Wheat Ale” and Harpoon making a “Belgian Style Pale Ale.”
“Taste of Jamaica” is too vague and meaningless to form the basis of a false advertising claim.
Red Stripe presents different facts from the facts that give rise to the false advertising case involving Beck’s Beer, where the labeling and packaging stated “Originating in Germany,” “brewed under the German Purity Law of 1516,” and “German quality.”
Even though consumers may have already held an expectation that Red Stripe is brewed in Jamaica based on past production on the island, no legal authority places a duty on marketers to counter such pre-conceived notions.

On the basis of this reasoning, the court dismissed the plaintiffs’ complaint as a matter of law. It did, however, dismiss the case “without prejudice,” which will give the plaintiffs 15 days (until April 21, 2016) to assert new claims that might survive dismissal.

The Dumas opinion represents merely one battle won (at least temporarily) in what will no doubt prove a long war over alcohol beverage labeling in the United States. Nevertheless, it provides helpful reasoning that may eventually influence other courts and provide guidance to marketers in the future.

Article By Marc E. Sorini of McDermott Will & Emery

Lawyers in the United States Should Pay Attention to the Panama Papers

The Panamanian law firm that was the source of the “Panama Papers” says it was hacked, exposing its clients’ personal and financial data to the world.

For American lawyers subject to the Rules of Professional Conduct, the problems facing the Panamanian firm Mossack Fonseca should serve as a reminder to take extra care to secure electronic data. Lawyers have an obligation under Model of Rule Professional Conduct 1.6(c) to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” This data security obligation was added to Massachusetts Rule of Professional Conduct 1.6(c) last year.

In the Panama Papers case, Mossack Fonseca blamed the hack on an “unauthorized breach of our email server.” That should give American lawyers pause, even if they do not count the prime minister of Iceland, cronies of Vladimir Putin, or members of the Chinese Politburo among their clients. Massachusetts lawyers should pay attention, and consider what would happen if their clients’ confidential information became publicly available. Although exposure of such information might not make headlines, it could devastate clients if it fell into wrong hands.

What Constitutes “Reasonable Efforts?”

Rule 1.6(c) does not say what constitutes “reasonable efforts.” But Comment 18 to the rule says:

[f]actors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

Comment 18 also states that a lawyer does not violate Rule 1.6(c) if someone gains unauthorized access to information, notwithstanding reasonable efforts to prevent the access.

Still, it would be embarrassing, or worse, for any lawyer to explain to his or her client – and, possibly, the Board of Bar Overseers – that confidential documents were exposed because they were held in the lawyer’s Hotmail account, for which the password was “password.” Even if the password were stronger, lawyers must remember that someone who knows the answers to a security question might be able to gain access to web-based email. If the question is something like: “Where did you go to high school?” sensitive client information might be at risk to anyone who knows anything about you – or is willing to invest in a little internet sleuthing

The need to protect client information is not lessened if a lawyer’s clients are not public figures. Adversaries, business competitors and jealous ex-spouses, among others, may be highly interested in a client’s confidential electronic files, to say nothing of identity thieves and fraudsters.

Lawyers and firms should tailor their data security to their clients and their practices. There are numerous actions lawyers can take to protect their data, but some of the simplest and most non-burdensome steps include the following:

Adopt an information security policy that covers all information systems, including e-mail, voicemail, text messages, computers, cellphones, remote access and passwords, among others.
Use difficult passwords. A random collection of characters is far stronger than an English-language word. Letters and numbers can be added or switched to make the password easier to remember; for example, the dog’s name – “skippy” –might become “$k1ppy!” Change passwords regularly.
Lawyers who use web-based email should check their security questions, and make sure they are not obvious and well-known to others. All web-based email should also utilize two-step verification.
Consider retaining an outside IT expert to make sure your security is as strong as possible.
Finally, use common sense, and train your employees to do the same. For example, do not click on suspicious links and attachments, or keep your password written down in an obvious place on your desk.

The upshot is that it is better to consider – and possibly upgrade – your security before a hack, rather than to have to defend it afterwards.

Article By Thomas W. Kirchofer of Sherin and Lodgen LLP

Six Biofuel Trade Associations Write Congress To Extend Advanced Biofuel Tax Credits

On April 5, 2016, the biofuel trade associations Advanced Biofuels Business Council, Algae Biomass Organization, Biotechnology Innovation Organization (BIO), Growth Energy, National Biodiesel Board, and Renewable Fuels Association sent a letter to House and Senate Leaders asking for a multiyear extension of advanced biofuel tax credits. The six organizations are specifically asking that the Second Generation Biofuel Producer Tax Credit, the Special Depreciation Allowance for Second Generation Biofuel Plant Property, the Biodiesel and Renewable Diesel Fuels Credit, the Alternative Fuel and Alternative Fuel Mixture Excise Tax Credit, and the Alternative Fuel Vehicle Refueling Property through the Protecting Americans From Tax Hikes Act of 2015 are extended before they expire at the end of 2016. Other energy production tax credits have been extended, and the biofuel trade associations argue that extending certain energy tax provisions and not others creates investment uncertainty across the energy sector, and puts biofuel producers at a disadvantage.

Article By Kathleen M. Roberts of Bergeson & Campbell, P.C.

H-1B Cap: The Receipts Are Trickling In!

The July 2015 Visa Bulletin Brings Little Change On April 7, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it received more H-1B petitions than available under the statutory cap of 65,000 general-category visas and 20,000 U.S. Master’s visas for the fiscal year. Another record-breaking year: USCIS received over 236,000 H-1B petitions during the filing period.

This is the fourth consecutive year that the H-1B quota has been reached during the first five business days of April. Before that, the last time the cap had been reached during the first week was in April 2008 for FY 2009. The decreased demand after FY 2009 was due to the effects of the financial crises. H-1B petition submissions have increased each year, as outlined below:

FY 2017	236,000
FY 2016	233,000
FY 2015	172,500
FY 2014	124,000

On April 9, USCIS ran the computer-generated lottery to select enough petitions to meet the 65,000 general-category cap and the 20,000 Master’s cap. As such, USCIS began issuing Receipt Notices for those cases that “won” the lottery this week. They are slowly “trickling” in. Once the case is “receipted” it still must undergo review and adjudication by USCIS. USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

Any cases not selected in the lottery will be returned with their filing fees.

We appreciate that, during this period, employers and foreign national employees will be anxious while awaiting the lottery results. Proskauer will continue to update its clients directly and through alerts as to H-1B cap developments.

Article By David Grunblatt, Hallie A Cohen, Erica Loomba, Valarie H McPherson, Praveena N Swanson & Jennifer Wexler of Proskauer Rose LLP

Introducing the New SmartExpert: Self-driving Car “Drivers”

The National Highway Traffic Safety Administration has deemed the artificial intelligence that controls Google’s self-driving car a qualified “driver” under federal regulations. So, if a computer can drive, must we have a computer testify as to whether this new “driver” was negligent? It sounds laughable: “Do you, computer, swear to tell the truth?” But, with so many new potential avenues of litigation opening up as a result of “machines at the wheel,” it made us wonder how smart the new expert will have to be?

With its heart beating in Silicon Valley and its position well-established as a proponent of computer invention and progress, it was surprising when California was the first state to suggest we need a human looking over the computer’s shoulder. That is essentially what the draft regulations from the California Department of Motor Vehicles for the regulation of self-driving vehicles proposes – that self-driving cars have a specially-licensed driver prepared to take the wheel at all times. After years spent developing and testing self-driving cars in its home town of Mountain View, California, Google may now be looking elsewhere for testing and production. The rule proposed by the California DMV would make Google’s car impossible in the state. Why? Because humans cannot drive the Google self-driving car. It has no steering wheel and no pedals. The Google car could not let a human take over the wheel. Does that thought make you pause?

It apparently didn’t give the National Highway Traffic Safety Administration any cause for concern, as they approved Google’s self-driving software, finding the artificial intelligence program could be considered a bonafide “driver” under federal regulations. In essence, Google’s driving and you are simply a passenger. If you would hesitate to get in, Google’s Chris Urmson, lead engineer on the self-driving car program explains: “We need to be careful about the assumption that having a person behind the wheel will make the technology safer.” Urmson is basically saying computers are safer than humans. When you think about the number of automobile accident-related deaths in the United States alone, he may be right. If he is right, wouldn’t artificial intelligences sophisticated enough to drive a car more safely than humans be able to learn to do other things better as well? Couldn’t they drive a forklift, perform surgery on humans, manage a billion dollar hedge fund? If that is where things are heading, who will testify as to the applicable standards of behavior for these machines? In the hedge fund example, will it be a former hedge fund manager who has years of experience handling large, bundled securities or a software developer who has years of experience programming artificial intelligence?

Who do you think will be able to testify in cases where an artificially-intelligent machine plays a role? Liability at the hands of a machine is bound to emerge. Someone will have to speak to the standard of judgment, discretion, and care applicable to machines. Maybe Google will be allowed to text while driving. Who’s to say?

Article By Annie Dike of IMS ExpertServices

Introducing the New SmartExpert: Self-driving Car "Drivers"

Article By Annie Dike of IMS ExpertServices

The National Law Forum

San Francisco Mandates Solar Power on New Buildings

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