In-N-Out Burger Served with COVID-19 Workplace Safety and Wage Violation Lawsuit

This week’s spotlight among COVID-19 related workplace litigation involves a common trend of employees alleging retaliation for reporting workplace COVID-19 safety hazards along with unrelated wage and hour allegations.

In Becerra v. In-N-Out Burger, a former butcher for the burger joint filed a Private Attorney General Act (PAGA) complaint alleging various violations of the California Labor Code and unfair business practices. According to the complaint, In-N-Out failed to enforce COVID-19 safety measures, including social distancing and requiring employees to wear personal protective equipment (PPE). The plaintiff claims the meat department was full of sick employees, many of whom exhibited COVID-19 symptoms, but In-N-Out did not place them on medical leave.

The plaintiff filed a report with the L.A. Public Health Department regarding the meat department’s alleged failure to observe safety protocols, and he informed other butchers of their right to report workplace safety concerns. The plaintiff contends that, as a result of his reporting workplace conditions and encouraging other employees to report, In-N-Out retaliated against him by giving him a “final warning” for attendance violations.

In-N-Out reports that it terminated the plaintiff’s employment because he provided false documentation about an absence and exhausted his sick leave. The plaintiff alleges that his previous absences were excused, and that he and similarly aggrieved employees were terminated for attempting to use sick leave. He also claims that In-N-Out failed to pay separated employees their final wages and provide accurate wages statements.

The plaintiff’s allegations are based in the early months of the pandemic when PPE was sparse and employers grappled with how to adjust their workplaces.  However, the alleged wage-related claims will cover a larger time frame.

Employers have learned a lot over the past year in terms of COVID-19 workplace safety.  Employers should remain vigilant, focusing on proper safety protocols and keeping potentially sick employees out of the workplace.

© 2021 BARNES & THORNBURG LLP

ARTICLE BY Colleen Naumovich and Kathleen M. Anderson of Barnes & Thornburg LLP
For more articles on COVID-19 Workplace Safety and Wage Violations, visit the NLR Coronavirus News section.

CDC: Masks Are No Longer Required in Most Settings for Vaccinated People

On Thursday, May 13, 2021, the Centers for Disease Control (CDC) announced new guidance stating it is safe for fully vaccinated people to not wear masks or physically distance in any non-health care setting.1

Per this guidance, fully vaccinated people can now resume most activities without wearing a mask or physically distancing. Unvaccinated people, however, should still consider the risks of particular indoor and outdoor activities now deemed safe for vaccinated people, such as restaurant dining, exercising indoors, or attending a crowded outdoor event, and take necessary precautions.

This is only guidance. Individuals may still be required to wear masks, and businesses may still be required to enforce mask-wearing as required by federal, state, or local law. For example, travelers will still be required to wear masks on all forms of public transportation and in public transportation hubs within the United States.

Additionally, in this latest guidance, the CDC recommended that fully vaccinated people can refrain from testing and self-quarantining before and after domestic and international travel and following a known exposure if asymptomatic, unless the individual lives or works in a high-congregated setting, such as a correctional facility or homeless shelter.

As the country continues to emerge from the pandemic, individuals and businesses should be mindful of this changing landscape as federal and state agencies begin to loosen pandemic requirements. For specific questions concerning national and state COVID-19 legal developments, please contact your Dinsmore attorney.

[1] Guidance for Fully Vaccinated People, Centers for Disease Control, May 13, 2021, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.

ARTICLE BY Faith C. Whittaker of Dinsmore & Shohl LLP
For more articles on CDC mask guidance, visit the NLR Coronavirus News section.

Lessons from the Colonial Pipeline Ransomware

Thankfully, it appears that the Colonial Pipeline ransomware attack is behind us and the panic over gas lines and hoarding can subside. But after an episode like this, it is helpful to take stock and search for what we can learn.

To start, everyone has now heard of ransomware, but to give a bit fuller background, this kind of malicious software is delivered into an information system—such as a computer or a database—and then renders all of the information inaccessible. Backups can sometimes help restore functionality unless the ransomware’s operator or programs decided to wait to activate the malicious software for long enough that it is in the backups. Once the information is rendered inaccessible, the person or group behind the malicious software demands payment in exchange for returning the information. Recently, there has even been reporting that the person or group behind a ransomware attack will begin calling the clients and consumers whose information was exposed as a pressure tactic to get the business to pay up.

Events like the shutdown of Colonial Pipelines, which generate a torrent of media attention, can create a false impression that it is only large or geopolitically sensitive businesses are at risk of these kinds of attacks. This is simply not true. In his 2020 Data Breach Report, North Carolina Attorney General Josh Stein found that there were over 1600 security breaches reported to the North Carolina Department of Justice. Compromising email constituted 40% of all security breaches reported, and ransomware constituted 22% of all security breaches reported. So there is a wide array of businesses in North Carolina that are susceptible to these issues, and small businesses are getting caught up in the mess.

For example, last year, the News and Observer reported that the Food Bank of Central & Eastern North Carolina was the victim of a widespread data breach, and just this past April, WCNC reported that a Charlotte parking app had a serious data breach exposing users’ personal information.

However, while no business can ever prevent all possibility for data breaches, there are steps that any business can take to prepare themselves, and relative to the cost of a breach, these steps have a significant return on investment. For example, making sure a business avoids compliance failures can sidestep significant cost increases in the event of a breach. Identifying an incident response team, creating an incident response plan, and testing both can give certainty and ensure that a business responds as rapidly to an incident as possible. And aligning a business’s internal practices with an established cybersecurity framework can decrease the risk that the business experiences and give strong arguments against any regulatory investigations that suggest the business was negligent.

That being said, cybersecurity and compliance expertise are critical to making sure that these plans do what they are meant to do.

© 2021 Ward and Smith, P.A.. All Rights Reserved.

ARTICLE BY Peter N. McClelland, CIPP/US of Ward and Smith, P.A.
For more articles on cybersecurity, visit the NLR Communications, Media & Internet section.

College Health Association Recommends COVID Vaccine Mandate for Colleges and Universities

As higher education institutions across the country wrestle with how best to safely return campuses to in-person instruction, the American College Health Association (“ACHA”) has issued important new recommendations related to COVID-19 remediation. As a strategy for enhancing campus safety in the face of the ongoing global pandemic, the ACHA is recommending that institutions implement a COVID-19 vaccine mandate covering all on-campus students arriving for the fall term, subject to supply limitations or conflicting state law.

In issuing this recommendation, the ACHA observed that such a vaccine mandate “offers the most effective way for institutions of higher education to return to a safe, robust on-campus experience.” Further, the ACHA observed that such a mandate is in keeping with current practice on most campuses, which already have certain vaccine mandates in place.

The ACHA noted that its recommendation is buoyed by the expectation that the Food and Drug Administration (“FDA”) will convert existing vaccines from an emergency use authorization status (“EUA”) to full approval by fall. At the same time, it is observed that even the current EUA status should not “preclude an institutional vaccine requirement.”

ACHA recommendations further encourage institutions to: engage in appropriate educational communications related to the vaccine; consider how best to support students coming from regions of the globe that do not have access to an FDA-approved vaccine; and evenly apply appropriate vaccine mandate exemptions.

While a campus vaccine mandate may offer campuses a vital tool in the return to safe, in-person instruction, it is important that policies implementing such a strategy be equitable and consistent. Further, institutions should ensure that they have an exemption review process in place to address requests for medical and religious exemptions from any vaccination requirement. Of course, it is likely that some mandates will face public and, perhaps, legal scrutiny.

© Steptoe & Johnson PLLC. All Rights Reserved.

ARTICLE BY Jim Newberry of Mark E. Hanshaw of Steptoe & Johnson PLLC
For more articles on COVID vaccine mandates, visit the NLRCoronavirus News section.

Rulemaking Petition Seeks SEC Guidance on NFTs

A recent rulemaking petition to the SEC requests that the agency issue a concept release on nonfungible tokens, or NFTs. The petition is hopeful that an SEC rulemaking paired with an opportunity for public input will resolve regulatory uncertainty for parties looking to create NFTs and facilitate their sale.

The petition opens by noting that the federal securities laws, first written in the 1930s, “provide a crude mechanism for the regulation of NFTs.” It then uses the SEC’s Howey guidance to consider whether NFTs should be deemed securities for purposes of the federal securities laws. The petition observes that if NFTs are deemed securities, platforms facilitating their sale and secondary trading may be deemed exchanges, broker-dealers or alternative trading systems under SEC rules. However, consistent with the market’s current approach to the issue, the petition also posits that if an NFT “relates to an existing asset and is marketed as a collectible with a public assurance of authenticity on the blockchain, it should not be deemed a security.”

To allay any potential uncertainty in the future, the petition urges the SEC to issue a concept release (which is the SEC’s term for an advance notice of proposed rulemaking under the Administrative Procedure Act) on the status and regulation of NFTs under the federal securities laws. Because NFTs do not typically function as traditional securities, the petition advocates that the SEC provide guidance that defines when an NFT is a security and what type of registration is required by firms facilitating the trading of NFTs. Doing so will, according to the petition, stimulate innovation and promote market integrity, capital formation, and protection of investors.

As we have previously noted, new SEC Chairman Gary Gensler brings a deep understanding of blockchain and digital assets to the agency. The crypto community has been hopeful that he will also bring a more progressive attitude towards the regulation of digital asset securities. Mr. Gensler is scheduled to testify for the first time as SEC chairman before the full House Financial Services Committee on May 6, 2021, but his prepared testimony does not address digital assets. As NFTs continue to proliferate, weighing in on this asset class will provide a great deal of insight to Chairman Gensler’s broader approach to the crypto space in his new role.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.

ARTICLE BY Scott H. Kimpel of Hunton Andrews Kurth
For more articles on NFTs, visit the NLR Corporate & Business Organizations

Potato, Potahto… Email, Slack

First came email.  Then came Slack, WhatsApp, Zoom, Teams, texts, and a host of social media platforms where we can communicate…in writing…and those communications are saved as electronically stored information (ESI).  “Collaboration software,” like Slack, Zoom, and Teams, is the newest eDiscovery challenge.  But the challenge lies in the preservation, capture, and review, as well as the analysis of proportionality, and not in the question of whether it is discoverable.

The United States District Court for the Central District of California recently ruled that Plaintiff’s Slack messages were both relevant and proportional to the needs of the case and ordered their production.  Benebone LLC v. Pet Qwerks, Inc., 2021 WL 831025 (2/18/21).  The main points of contention between Plaintiff and Defendant focused on the cost to extract, process, and review 30,000 Slack messages.

Although the Court described Slack as a relatively new communication tool, it was part of Plaintiff’s internal business communications and there was no real dispute that Plaintiff’s Slack messages were likely to contain relevant information.

On the topic of burden and proportionality to the needs of the case, the court held a (Zoom) hearing and determined that “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportionate to the needs of this case.” Id. at *3.

One of the key takeaways from this case is to get an eDiscovery expert. Defendant’s expert testified that there are readily available third-party tools for collection and review of Slack and that searches of the data could be limited to certain Slack channels, users, or custodians (similar to focusing an email search on custodians and time frames).  Defendant’s estimate of cost for the project was vastly different than Plaintiff’s unsupported estimates ($22,000 compared to $110,000-$255,000).  To that end, Defendant’s expert proposed that contract attorneys could do first-level review at a rate of $40 an hour as opposed to a $400 an hour attorney rate.  Plaintiff failed to provide a declaration or testimony from an eDiscovery expert.

When facing federal litigation, your case will involve electronically stored information. Slack is considered a more dynamic form of ESI, making search, collection, and processing more difficult.  Choosing the right application programming interface (API) is important as Slack data is exported in JSON format, which is difficult to decipher and requires the right processing to get to more user-friendly data for review purposes.  Additionally, the level of subscription used impacts what can be recovered.

©2021 Strassburger McKenna Gutnick & Gefsky

ARTICLE BY Gretchen E. Moore of Strassburger McKenna Gutnick & Gefsky
For more articles on Slack and WhatsApp, visit the NLR Corporate & Business Organizations section.

Law Firms are Switching to the Cloud. Here’s Why

Cloud computing has become ubiquitous in modern society, but law firms have been slower than most in adopting the technology. Recently, however, law firms switching from on-site data management to the cloud has become the norm due to rapid advancements in cybersecurity, increasing client demand, and the appeal of improving efficiency while cutting costs.

So, what are the most common reasons why cloud computing is still so controversial among legal professionals, and what has caused the industry shift toward cloud migration?

Cloud Computing and Confidentiality

One of the driving forces that used to keep many law firms from using cloud servers is client confidentiality. When practicing law, attorney-client privilege is essential and cannot be taken lightly. Even today, concerns about confidentiality and ethics are the main reasons why cloud computing can be a contentious subject among those in the legal industry.

In the early days of cloud-based systems, these issues were a valid reason to avoid outsourcing data storage to an off-site server. However, cybersecurity advancements have led to the cloud often being more secure than on-site servers. Small to medium sized law firms are particularly vulnerable to cyber attacks since they often don’t have the infrastructure or expertise to keep their servers secure. Even with a secure firewall, a Wi-Fi connection can leave information and files vulnerable to a data breach.

Cloud services offer end-to-end encryption, backup servers, teams of expert IT professionals, and physical safety measures, such as securely locked rooms with top-of-the-line camera systems and 24/7 monitoring. These procedures are impossible for law firms to enact at a lower cost than outsourcing.

Cloud-Based Law Practice Management Software is Efficient

The benefits of being able to integrate and automate systems is one of the greatest advantages to companies using cloud technologies. Time consuming and tedious tasks such as scheduling, billing, invoicing, file management, and the creation of legal documents are all streamlined on the cloud.

With a low barrier of entry and the ability to access their important information whenever and wherever they need it, many legal teams that were hesitant to make the switch are now migrating over to cloud-based systems, as Zoom meetings and online court hearings have become the norm.

Is the Cloud More Reliable than In-House Systems?

While it has been a long-standing belief that in-house servers are more reliable and secure than cloud systems, this is no longer the case. Cloud servers offer redundancy that is unmatched by internal servers, since the cloud is able to utilize a secondary server if the primary system should fail. This leads to less downtime and a much lower risk of losing files to equipment error, damage, or a data breach.

It is also common to forget to create local server backups, leaving law firms vulnerable to data loss. Cloud systems are able to continually sync and update, so companies don’t have to worry about being able to access files or documents.

Cloud Technology Saves Money

While efficiency is important, at the end of the day, companies are trying to improve their bottom line. Cloud technology saves law firms money by allowing them to increase efficiency while eliminating the high cost of local data storage and maintenance. Not only that, but they are able to budget better by avoiding unexpected costs, which are inevitable when dealing with aging hardware.

Another significant cost-saving feature of cloud-based law practice management software is the ability to scale. When data is kept on site, scalability is considerably more expensive (and difficult). Law firms using cloud technology are able to grow without updating or adding equipment, software, IT staff, or other expenses associated with keeping data management in-house. Being able to focus on the growth of the business and having predictable, consistent data management costs is a notable advantage when scaling.

Despite the obvious benefits, many law firms are still reluctant to take the plunge into the cloud. Some of the common reasons why include:

Unpleasant Past Experiences

Whether a law firm was an early adopter of cloud technology, or recently had a poor experience with a particular cloud service, unpleasant transitions can sour an entire legal team against the idea of cloud technology altogether. Since there have been remarkable advancements in cloud computing recently, past exposure to cloud services shouldn’t be considered representative of how most cloud servers operate.

Difficult Migrations

One of the most common complaints law firms have when attempting to switch over to cloud-based technology is a difficult migration process. It’s important for companies to check reviews and find out more about what’s required to import their data to the cloud before committing to a cloud computing service.

Security Concerns

Due to the added scrutiny and obligations regarding confidentiality that legal teams are required to abide by, security concerns persist as an important reason why some law firms remain dubious about using cloud technology. However, modern cloud computing services typically offer considerably more secure data storage options than what law firms can provide in-house.

Control and Possession of Data

Some legal professionals feel as though migrating to the cloud means giving up control over their data and important documents because it gives them peace of mind to have their servers physically nearby. This kind of thought pattern inhibits growth by limiting their ability to scale; in reality they are not giving up control or possession of their data, they are simply moving it to a safer location that is easily accessible.

© Copyright 2021 PracticePanther

ARTICLE BY PracticePanther
For more articles on the legal industry, visit the NLR Law Office Management section.

The “Truth Hurts”: Judge Rules Lizzo is 100% That [Copyright Owner]

Judge Dolly M. Gee of the Central District of California recently awarded singer Lizzo a major victory in a copyright dispute concerning the artist’s hit song “Truth Hurts.” In her ruling, Judge Gee dismissed with prejudice a claim that Lizzo must share copyright ownership of “Truth Hurts” with the plaintiffs in the case, because the co-ownership claim was based only on the plaintiffs’ contributions to a prior independent work. See Melissa Jefferson v. Justin Raisen et al.

The proceedings began in 2019, when Lizzo filed an action against songwriters Justin Raisen, Jeremiah Raisen, and Justin “Yves” Rothman, seeking a judicial declaration of non-infringement as to “Truth Hurts.” In response, the three songwriters filed a counterclaim for declaratory relief, seeking a judgment stating that they are joint authors and co-owners of the work.

The Raisens and Rothman allege that in April of 2017, they met with Lizzo and her collaborator Saint John for writing and recording sessions where they worked on a different song, titled “Healthy.” They claim that during that session, while searching the internet for inspiration, Saint John came across a meme that read “I did a DNA test and found out I’m 100% that…” Amused by the line, Jeremiah Raisen suggested it be used as a lyric in “Healthy.” Although Lizzo and Saint John were against the idea at first, they eventually included the “100%” lyric in “Healthy.”

The songwriters allege that after their session, Lizzo continued working on “Healthy,” and that she eventually evolved the song into “Truth Hurts.” “Truth Hurts” was then released in September of 2017, crediting Lizzo, Saint John, and two others as writers. The Raisens and Rothman allege that “Truth Hurts” incorporates the “100%” lyric and other musical elements from “Healthy.” These alleged facts form the basis of the songwriters’ copyright co-ownership claim.

Last year, Judge Gee dismissed the co-ownership counterclaims without prejudice, to the extent they were premised on allegations that Lizzo copied “Healthy” in creating “Truth Hurts.” In that prior order, the court concluded “[j]oint authorship in a prior work is insufficient to make one a joint author of a derivative work.”

The court reached the same conclusion here, after considering the songwriters’ amended counterclaims. Even though the amended counterclaims were “stripped of all statements that Truth Hurts copied or was derived from Healthy,” they “continue[d] to allege the same underlying facts that indicate ‘Healthy’ was a standalone song and not an incomplete, partial contribution.” Put differently, the counterclaimants continued to allege that “Healthy” and “Truth Hurts” were distinct songs. Specifically, the court pointed to allegations that “Healthy” was being considered for inclusion on Lizzo’s upcoming EP. Again, the court determined that joint authorship on a prior standalone work is not enough to confer joint authorship in a derivative work.

The court clarified that even though joint authorship of a prior work is insufficient to sustain co-ownership claims, it does not preclude them. If the songwriters had adequately pled the required elements of joint authorship, they could have still succeeded on their co-ownership claim. But the court determined that the songwriters failed to do so; the court ruled two of the three factors required for establishing joint authorship weighed against a finding of joint authorship. Though the court did not address the third factor,[1] it found the songwriters’ failure as to the other two factors was enough to preclude their joint authorship claim.

First, the court determined the songwriters pled no facts suggesting control over “Truth Hurts.” The songwriters only alleged control over elements of “Healthy.” The court found this might have been persuasive had they been able to show that “Truth Hurts” was actually the end product of “Healthy.” But because the songwriters’ allegations suggested that the two works were entirely distinct, their purported control over “Healthy” carried no weight as to “Truth Hurts.” As the court noted, even assuming the songwriters controlled Lizzo’s use of the “100%” lyric in “Healthy,” they had no control over her choice to use it in “Truth Hurts.”

Second, the court ruled the songwriters failed to adequately plead manifestation of a shared intent to be co-authors. The songwriters argued that by crediting Saint John on “Truth Hurts” based solely on his contributions during the April 2017 sessions, Lizzo manifested an intent and understanding that all the collaborators at the April 2017 sessions would be co-authors. The court was unconvinced. First, even assuming a shared intent to co-author songs written at the April 2017 sessions, “Truth Hurts” was not written at those sessions. Judge Gee noted that at the time of the April 2017 sessions, the Raisens and Rothman only intended to co-author “Healthy” – not some future undefined work. Further, the court found Lizzo’s choice to credit St. John and others actually showed an intent not to include the Raisens and Rothman; she explicitly chose to exclude them while choosing to include others.

This decision serves as a reminder that co-ownership claims and infringement claims are not interchangeable. Claims for co-ownership must be grounded in contributions to the work at issue, and not in some other independent work – even if the works may share elements.

__________________________________________

[1] The third factor, which the court did not address, is whether the audience appeal of the work turns on both contributions and whether the share of each contribution in the work’s success can be appraised.

© 2021 Proskauer Rose LLP.

ARTICLE BY Sandra A Crawshaw-Sparks,  David A Munkittrick
and Anisha Shenai-Khatkhate of Proskauer Rose LLP
For more articles on copyright, visit the NLR Intellectual Property section.

Recent OSHA Update Targets Restaurant Industry

Occupational Safety and Health Administration (OSHA) has recently updated its COVID-19 response plan. Last year, OSHA focused much of its COVID-19 related attention on healthcare, elderly care, and prisons. This new Updated Interim Enforcement Response Plan for COVID-19 and National Emphasis Program — Coronavirus Disease 2019 (COVID-19) guidance shifts its focus to other industries where OSHA feels there could be spread of COVID-19. As part of the guidance, OSHA specifically targeted full-service and limited-service restaurants for inspections.

Restaurants should be prepared for on-site or virtual OSHA inspections. To prepare, restaurants should:

  • Ensure all OSHA recordkeeping (OSHA 300, 300A, and 301s) is in order and up to date.
  • Ensure any contact tracing for COVID-19 illness is properly documented.
  • Ensure a COVID-19 response plan is documented and in place-include relevant Federal, state and local guidance.
  • Ensure compliance with OSHA standards, specifically Personal Protective Equipment and Blood Borne Pathogens.
  • Ensure employees are trained on COVID-19 related hazards, reporting of COVID-19 symptoms, prevention of COVID-19, and document this training.
  • Ensure employees are trained that they will not be retaliated against for raising concerns regarding safety, specifically COVID-19 related safety.

Note that we are still waiting for OSHA’s Emergency Temporary Standard to be issued. OSHA has provided its proposed standard to the White House where it is currently being reviewed. Once that is issued, there will likely be more requirements for all industries with respect to COVID-19 related employee safety and health.

This article was written by Jane H. Heidingsfelder at Jones Walker law firm. For more information on OSHA guidance, please visit our Labor and Employment news page.

In Historic Vote, Alabama House of Representatives Passes Medical Cannabis Bill

In February a bill to legalize, regulate, and tax non-smokable medicinal cannabis passed through the Alabama Senate on a 21-10 vote. Progress on the bill slowed after moving to the House. The medical cannabis bill passed both House committees it was assigned to in April.

On Tuesday the medical cannabis bill was set to receive a final vote on the floor of the House. Earlier that day, the bill easily cleared two House procedural votes by a vote of 69-31 and 71-20, to allow the bill to be brought to the House floor for a final vote. However, a handful of House lawmakers filibustered the final vote through speaking objections on the House floor. On Thursday morning the medical cannabis bill was again back on the House floor for another day of debate. The morning session started off with gusto, as both supporters and detractors appeared ready to fight with amendments, counter-amendments, and impassioned floor speeches filling the morning. Around 12:30 p.m. the House finally took a final vote on the medical cannabis bill, and it passed by a vote of 68-34. The medical cannabis bill will now head back to the Senate for concurrence or conference committee.

This is a historic day in Alabama politics, as this is by far the closest Alabama has come to passing a medical cannabis bill. Similar bills had previously passed through the Alabama Senate three times, in three separate sessions. This is the first time, however, a medical cannabis bill has come up for a full vote on the House floor – much less passed the House.

We will continue to monitor this bill as the Senate again takes it up for either concurrence or further consideration. That could happen as early as today, or it could be later this month.

© 2021 Bradley Arant Boult Cummings LLP

This article was written by Whitt Steineker of Bradley law firm.

For more information about cannabis legislature, please visit the NLR Food & Drug section. 

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