2020 National Law Review Thought Leadership Awards

The National Law Review’s 2020 “Go-To Thought Leader Awards” recognizes 71 legal authors and legal organizations, pulled from 20,000+ of pieces of content published in 2020.

With the exceptional challenges of COVID-19, thought leadership from attorneys and other leading professionals became more important and impactful than ever before. The Coronavirus pandemic and resulting economic and social upheaval along with the uncertain political environment presented unparalleled challenges for both businesses and individuals that made the detailed analysis prepared by the National Law Review’s authors more relevant and sought after than ever, leading to 4.3 million page views in both March and April of 2020, during the first wave of news coverage related to the pandemic.

This is the third year the NLR editors have formally recognized the efforts of less than 1% of the publication’s 15,000 authors across a variety of legal specialties and in law practice management and operations. In 2020 the National Law Review saw thousands of articles on COVID-19’s impact on employer compliance, new legislation such as the Families First CoronavirusRecovery Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) as well as the Paycheck Protection Program (PPP) and changing state regulations and mandates. National Law Review attorney authors were able to stay top of mind with their clients, by explaining and analyzing these issues, even as face-to-face events and client visits were impossible.

Additionally, with the turmoil related to the impeachment, election, judicial changes, and an uncertain global economy the topics addressed by the National Law Review were broader and more topical than ever.

Authors chosen as NLR Go-To Thought Leadership recipients not only demonstrate impressive legal knowledge and business acumen, but write with an eye towards compliance or adaptation, and along with attracting high numbers of readers they are also frequently referenced in other media and academic journals.

Click here to view 2020’s winners.

Work from Anywhere? Telecommuting and Tax Obligations for Employers: Practical Considerations and Tips for Human Resources and Management

As a result of the COVID-19 pandemic, there has been a sudden, widespread shift towards remote work arrangements. This shift has provided many benefits, including an increase in the employee talent pool and the ability to recruit without borders, cost savings, and a more flexible employee workday. In response, a number of employees have moved away, or plan to move away, from city centers or to a different state to find a better location in terms of cost of living and personal preference. However, this shift creates concerns for employers regarding labor and employment law compliance, tax compliance, and other business considerations when employees choose to permanently work remotely in a new location. Employers may not be aware of these considerations or even the fact that the employee has moved. It is important to understand these concerns and how they may affect the “workplace” as more businesses prepare for long-term policies on working remotely.

Labor & Employment Considerations

Wage and Hour Laws

 Different jurisdictions impose different wage and hour requirements, such as minimum wage, paid sick leave, overtime, exemptions, pay frequency, and pay statements. Multi-jurisdictional employers must understand these variations to make sure that they are complying with the various wage and hour laws in the states and localities where employees are working. For example, non-exempt employees working from home are still required to be paid based on actual hours worked, and are entitled to overtime. If an employer employs an employee who moves to a state where overtime must be paid for any work over eight hours per day instead of being paid for all hours worked over 40 in a work week, the employer would need to update its payroll system to ensure compliance.

Tracking Hours Worked

With remote work, employees’ actual hours worked can be difficult to track because of variable schedules necessitated by the competing demands of working from home. On August 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) recognized this issue and published a field assistance bulletin that reminds employers of their obligation to track all hours worked by employees who are working remotely, including addressing authorized versus non-authorized hours of work, hours that the employer knows are being worked, and reminds employers that their processes and policies cannot prevent or discourage the reporting of hours worked.

Workers’ Compensation Insurance

Most employers are generally required to obtain workers’ compensation insurance in the states in which they employ workers. An injury that arises out of or in the course of employment will generally be covered by workers’ compensation insurance. This includes injuries that occur suddenly or over time as well as injuries that may occur when working remotely. For example, due to the COVID-19 pandemic, many employees are conducting business from home-office setups where they may sustain various injuries. Depending on the applicable state law, this may be deemed a work-related injury eligible for coverage under workers’ compensation insurance. An employer that does not abide by a state’s laws requiring workers’ compensation insurance may be liable for noncompliance, resulting in potential fines and penalties.

Unemployment Insurance

Similarly, employers are generally required to pay premiums for state unemployment insurance when at least one of their employees conducts business in the state. Employers must generally register for an account with the state unemployment agency within the states in which they have employees working. A failure to pay these premiums may create liability for the employer, including penalties for noncompliance.

Discrimination Laws

 As a general tenet, the federal and state employment discrimination laws in a particular state apply to employees working in that state and they apply to “workplace,” which includes remote work arrangement, online forums, etc. Employers must be prepared to comply with various local and state employment laws, keeping in mind that localities and states might include different protected characteristics in their laws. Employers also will need to be in compliance with state and federal disability discrimination laws, as employees are entitled to reasonable accommodations even when working remotely. Employers may wish to review and, if appropriate, update employee handbooks to ensure that their procedures for internal reporting are accessible and are reasonable as they relate to remote employees.

Posting Requirements

Employers may be required to display in the workplace posters that discuss employees’ employment rights, such as those granted under the federal Occupational Safety and Health Act (OSHA) or the federal Family and Medical Leave Act (FMLA), as well as under other local, state, and federal laws. If employees are working remotely, employers may be required to send out the postings by mail or email or display the postings on an employee information website, depending on the applicable law. Employers may want to consider providing a manner for employees to acknowledge receipt of the posted information to ensure they are fulfilling their obligations.

State Tax & Registration Implications

The unplanned and exponential increase in the number of remote workers due to the COVID-19 pandemic has raised state tax and registration questions for employers with employees now working in one or more states separate from the states(s) in which the employer normally conducts business. Generally speaking, the presence of an employee in a state may trigger a requirement that the employer register as an entity transacting business, establish nexus for income/franchise taxes and sales and use taxes, and require registration as an employer for purposes of state and local income tax withholding.

This analysis is further complicated by the lack of uniformity in guidance issued by state authorities. A number of state tax authorities have been noticeably silent, suggesting that pre-pandemic rules continue to apply to out-of-state employers. Even with regard to the states that have issued COVID-19 related guidance, that guidance varies, as some states provide relief (generally temporarily waiving registration and reporting issues relating to remote workers created as a result of the pandemic) while others have simply confirmed that their laws are not impacted by the pandemic. The state guidance may also draw a distinction between previously assigned remote workers and those forced to work from home due to the pandemic.

Business Registration

Employers may wish to consider whether the presence of these new remote workers creates a duty to obtain a certificate of authority in order to transact business in states in which employers previously did not have any employees or operations. Failure to comply with these rules can result in significant penalties.

Business Taxes

If an employee performs services in his/her state of residency, this may create substantial nexus between the employer and this state. As a result, employers may be obligated to pay state and local franchise, income, or other applicable business tax in such states solely as a result of their remote workers. For retailers, it would trigger a duty to collect, remit, and report state and local sales and use taxes.

Income Tax Withholding

In the majority of jurisdictions, employers attribute an employee’s wages for income tax withholding purposes to the state in which the employee performs services. These rules would require employers to register with state and local tax agencies and withhold the income taxes according to the laws of those jurisdictions. With regard to other states that utilize a “convenience of the employer” sourcing rule, employers are faced with unique and complex challenges in the current pandemic environment. Generally, in such states, wages are considered earned by a nonresident employee and are allocated to the office location the employee is assigned to, unless the employee performs work that, out of necessity and not convenience, requires the employee to perform work from another location other than their assigned office. Historically, what is considered to be at the “convenience of the employer” has been defined broadly with narrow exceptions, and it remains unclear whether alternative remote working arrangements due to the pandemic would constitute work conducted offsite for the “convenience of the employer.” This situation is further complicated by additional states (most notably Massachusetts) temporarily adopting “convenience of the employer” rules under the guise of limiting disruption to employers.

In many cases, employers are left without clear direction and have no choice other than to review state specific guidance as it applies to their remote workers, including those who may have relocated temporarily or have relocated without any advance notice to their employer. While enforcement activity may be limited at the current time, employers should consider whether states will look to enforcement of these tax rules against nonresident employers in order to balance state budgets deeply impacted by the pandemic.

Localized Compensation

Many employees who plan to work remotely on a permanent basis are moving to more affordable cities to reduce costs or for other personal reasons. Some employers have responded by adjusting pay for employees based on localized factors, including income tax rates and the cost of labor in the employee’s new location. Some of these employers have made pay adjustments based on a case-by-case basis, while others have implemented a set pay cut when an employee moves away from large city centers, such as New York or San Francisco. While companies have pointed out that it is standard practice for an employee’s location to be a factor considered in determining pay, there has been some push back by remote workers related to this decision.

Conclusion

Due to the legal risks associated with employees relocating while working remotely, employers may wish to consult with legal counsel for guidance on navigating applicable law.

Copyright © 2020 Robinson & Cole LLP. All rights reserved.
For more articles on remote working, visit the NLR Labor & Employment section.

Mandatory or Voluntary Employee Vaccinations: EEOC Weighs In

Since well before FDA approval of the first COVID-19 vaccine, many employers have contemplated whether eventual employee vaccination should be a voluntary or mandatory condition of returning to, or remaining at, the workplace. The current legal considerations surrounding employee vaccination depend on interpretation of many existing laws and other sources of employee rights in the workplace. Such rights are not just established by laws, but also by collective bargaining relationships and, in some cases, the industry which the employer does business. In addition, there are compelling business considerations unique to each employer that should influence whether to mandate, or simply encourage, employee COVID-19 vaccination.

In addition to other previous guidance released, the Equal Employment Opportunity Commission (EEOC) has now provided its current interpretation, which certainly is subject to change, of how employers might grapple with the laws the agency enforces.1

Voluntary Employee COVID-19 Vaccination

EEOC’s new guidance generally clears the way for employers to encourage employees to receive vaccinations on a voluntary basis. Critical to this is EEOC’s clear statement that it does not consider vaccinations themselves to be “medical examinations” which require special justification under the ADA. EEOC does state that the concurrent need to answer pre-vaccination medical screening questions may implicate ADA rights, requiring employers to establish that employee vaccination is “job related and consistent with business necessity.” However, EEOC makes an exception to this justification requirement “if an employer has offered a vaccination to employees on a voluntary basis.”

Mandatory Employee COVID-19 Vaccination

EEOC’s new guidance does not prevent employers from making employee vaccination a mandatory condition of remaining in or returning to the workplace, but it does impose an obstacle course for employers if they choose to make COVID-19 vaccination mandatory.

The obstacle course starts with the medical screening questions required before employees receive the vaccination. As noted, EEOC states that answering these questions may implicate employee ADA rights, so any employer mandating vaccination which either itself administers or contracts out mandatory vaccine administration must establish that the mandatory vaccination requirement is “job related and consistent with business necessity” for each position for which the employer requires mandatory vaccination. Employers can avoid this obstacle if they are willing to accept proof of mandatory vaccination carried out by “a third party that does not have a contract with the employer, such as a pharmacy or other health care provider.” But even employers who accept such proof of vaccination are cautioned “to warn the employee not to provide any medical information as part of the proof.”

The obstacle course continues in how employers mandating vaccinations must handle employees who object to receiving the vaccination either due to a disability or religious beliefs. In both cases it is necessary for the employer to channel such employees through “a flexible, interactive process” of exploring, in an open-minded manner, the nature of the objection and whether reasonable accommodation may be made to allow the employee to continue working. If the only way a disabled employee can continue working is by being present in the workplace, the employer must be able to prove, under the ADA’s legal standards, that the unvaccinated employee poses a “direct threat” causing a “significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Even where there is “no possible reasonable accommodation,” EEOC’s view is “this does not mean that employer may automatically terminate the worker” without first determining “if any other rights apply under the EEO laws or other federal, state or local authorities.”

Practical Realities and Implications

In the opening to the new “Vaccinations” addition to its guidance, EEOC includes a disclaimer-type statement that “The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.” Accordingly, employers should be safe to follow such authorities. That said, neither the CDC nor any federal, state, or local public health authority has, as of today, made it mandatory for any group of employees to receive the COVID-19 vaccination as a condition of remaining in or returning to the workplace. Assuming this remains the case, and there is no further law or guidance on the subject, any employer who wishes to implement mandatory vaccinations should consider and determine, taking into account its business and unique circumstances, how to navigate each obstacle in the course EEOC has set up in its Dec. 16, 2020 guidance.

1 With a widely anticipated Dec. 16, 2020 update to its publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” EEOC addresses vaccination under the laws it enforces that supply relevant employee rights, including the rights of employees with disabilities, as protected by the Americans With Disabilities Act (ADA), the rights of employees who may have religious objections to receiving a vaccination, as protected under Title VII of the Civil Rights Act of 1964 (Title VII) and the right not to disclose or allow employers the opportunity to use genetic information under Title II of the Genetic Information Nondiscrimination Act (GINA).

©2020 Greenberg Traurig, LLP. All rights reserved.
For more articles on the coronavirus vaccine, visit the NLR Coronavirus News section.

Supreme Court to Weigh in College Sports: The Intersection of Antitrust and “Amateurism”

The Supreme Court announced Wednesday that it would hear arguments in the long-running NCAA dispute over student-athlete compensation, granting and consolidating two cases, National Collegiate Athletic Association v. Alston and American Athletic Conference v. Alston, that seek to overturn a May decision by the U.S. Court of Appeals for the Ninth Circuit. The case will be argued in early 2021, with a decision expected by the end of June. This will be the first time in over 35 years that the Court has heard an antitrust matter involving college athletics.

NCAA v. Board of Regents

In 1984, the Supreme Court, in a 7-2 decision in NCAA v. the Board of Regents, stripped the NCAA of its control over television broadcast rights for college football games. Although the Court held that the NCAA’s broadcast restrictions were in the nature of a per se illegal restraint on trade, the majority explicitly declined to apply a per se rule to the case because “a certain degree of cooperation is necessary if the type of competition that [the NCAA] seek[s] to market is to be preserved.” The Court instead applied the less stringent Rule of Reason to the NCAA’s restrictions because the NCAA needed “ample latitude” to play “a critical role in the maintenance of a revered tradition of amateurism in college sports.” Writing for the majority, Justice Stevens advised future courts that “[it] is reasonable to assume that most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and therefore procompetitive because they enhance public interest in intercollegiate athletics.” This language has allowed the NCAA for decades to argue for special treatment under antitrust law with regard to any of its bylaws that further amateurism. In his dissent, Justice White was concerned that the majority’s opinion would not further the NCAA’s stated purpose to “keep university athletics from being professionalized to the extent that profit making objectives would overshadow educational objectives.” Some now argue that Justice White’s fears have come to fruition – the NCAA has evolved into a monolith generating billions in revenues on the backs of student-athletes.

O’Bannon v. NCAA

The most recent case before Alston was a class action brought in 2009 by former UCLA basketball player Ed O’Bannon that challenged the NCAA’s use of the images of former student-athletes for commercial purposes. O’Bannon argued that a former student-athlete should be entitled to financial compensation for the NCAA’s commercial use of his or her image, while the NCAA contended that paying its student-athletes would be a violation of its concept of amateurism. In 2014, Judge Claudia Wilken of the U.S. District Court for the Northern District of California found for O’Bannon, holding that the NCAA’s rules and bylaws operate as an unreasonable restraint of trade violating federal antitrust law. In 2015, the Ninth Circuit rejected the NCAA’s arguments based on Board of Regents and affirmed the NCAA’s violation of the Sherman Act. The court stated “we are not bound by Board of Regents to conclude that every NCAA rule that somehow relates to amateurism is automatically valid.” Both sides appealed to the Supreme Court—the NCAA challenged the court’s affirmation that its compensation rules were an unlawful restraint of trade, and O’Bannon challenged the court’s conclusion that preserving amateurism is an important goal and that any compensation athletes might receive had to be related to education. The Supreme Court declined to hear the case.

Alston v. NCAA

The current case was brought by former West Virginia football player Shawne Alston and others. In May of this year, the Ninth Circuit ruled that the NCAA violated Section 1 of the Sherman Antitrust Act when it limited schools from offering certain education-related benefits to student-athletes in Division I basketball and Football Bowl Subdivision football programs. The opinion affirmed an injunction issued by District Judge Claudia Wilken in Alston v. NCAA that would prevent the NCAA from adopting rules that prohibit member schools from limiting the non-cash education-related benefits that can be provided to student-athletes. The case does not focus on the contentious issue of pay for college athletes and concerns only non-cash benefits related to education, such as computers, science equipment, musical instruments, study abroad and post-graduate scholarships, and paid internships. Schools would not be required to provide these types of benefits, and individual conferences may restrict such benefits. The NCAA also still may set limits on compensation that is not education-based. However, that model may change radically next year with the NCAA Board of Governors’ adoption of the Final Report and Recommendations of its Federal and State Legislation Working Group concerning modernization of the NCAA rules applying to student-athletes’ rights to commercialize their name, image and likeness.

In Alston, the NCAA argued that Board of Regents required plaintiffs attacking an NCAA rule promoting amateurism to meet a heavier burden in a Rule of Reason analysis. The Ninth Circuit rejected the NCAA’s arguments, noting that it had previously found the Board of Regents language relied upon by the NCAA to be dicta in its O’Bannon decision. In his concurring opinion, Judge Milan Smith states his concern that “[t]he treatment of Student-Athletes is not the result of free market competition” and instead “is the result of  a cartel of buyers acting in concert to artificially depress the price that sellers could otherwise receive for their services. Our antitrust laws were originally meant to prohibit exactly this sort of distortion.” Judge Smith’s concerns are consistent with the growing weight of academic opinions that the NCAA’s amateurism rules should not enjoy a special exemption from antitrust scrutiny. The amateurism rules, like any other trade association’s rules, should be defensible under antitrust law only if they yield procompetitive benefits and enhance overall consumer welfare. (See, for example, literature published by Case Western Reserve Law Review, Michigan Law Review, Tennessee Law Review, Harvard Journal of Sports and Entertainment Law, Washington and Lee Law Review and The John Marshall Law Review.)

The Supreme Court

After the Supreme Court denied a request from the NCAA to freeze the lower court rulings, the NCAA in October successfully petitioned the Supreme Court to review the Ninth Circuit’s decision. The NCAA argues that the Ninth Circuit’s ruling “will fundamentally transform the century-old institution of NCAA sports, blurring the traditional line between college and professional athletes.” On the other side, players argue that the top athletic teams are operating a system that acts as a classic restraint of trade in violation of Section 1 of the Sherman Act. Without those restraints, they argue that student-athletes would be compensated at a level more commensurate with their value to their universities, conferences, and the NCAA.

The Supreme Court’s decision could fundamentally change the economics and structure of college sports. On the one hand, a decision holding that the NCAA’s amateurism rules violate federal antitrust law could open the door to significant competition between schools for athletes and likely would lead to more benefits for players whose collegiate sports careers allow their schools, conferences and the NCAA to reap billions in television and other revenue. On the other hand, a decision siding with the NCAA could foreclose that type of competition, allowing the NCAA to maintain its restrictions on benefits for the nation’s top student-athletes. The Court’s decision also has implications for how the currently constituted Court views the Rule of Reason mode of antitrust analysis and how that analysis is properly applied to labor markets. We will continue to monitor this important case and will report back after the Supreme Court renders its decision.

© Copyright 2020 Cadwalader, Wickersham & Taft LLP
For more articles on sports, visit the National Law Review Entertainment, Art & Sports section.

What Were the Three Biggest Labor Law Developments In 2020?

With the year end in sight, employers are looking back on a tumultuous 2020 and preparing for more labor law changes in 2021. This year at the National Labor Relations Board (NLRB), companies saw a lot of positive change from a management perspective. Election rule changes gave employers some breathing room on the union avoidance front, and the NLRB exercised restraint in relaxing its enforcement standards against employers during the pandemic. But as the new year approaches, a union-friendly administration waits in the wings, presenting a real possibility that the positive change for employers may be coming to an end.

Employer-Friendly Election Rules

2020 saw the NLRB’s much maligned ambush election rules scrapped, in part, and replaced with employer-friendly rules. The ambush election rules had resulted in truncated campaign periods that left employers at a disadvantage. The new rules, while not without their own challenges, extend the period of time between the filing of a representation petition and the election. Employers can look forward to 2021 knowing the new rules will give them more time to combat a union organizing drive.

NLRB’s COVID-19 Response and Guidance

The NLRB’s guidance related to COVID-19 was at times slow and presented a mixed bag to employers.

On one hand, the NLRB’s election-related guidance gave Regional Directors wide discretion on how to conduct elections during the pandemic. This led to a large increase in mail-ballot elections, normally the less-preferred method of conducting elections. Ultimately, this did not change the overall union win rate, which remained around 70 percent.

On the other hand, the NLRB demonstrated a willingness to give employers leeway during the pandemic. Faced with an emergent situation without a true parallel in case precedent, employers were forced with situations where they had to make immediate unilateral changes to terms and conditions of employment, for example requiring temperature screenings or PPE, changing staffing levels, or shutting down facilities. Normally, making unilateral changes to terms and conditions of employment without first bargaining with the union will result in an unfair labor practice charge. But starting in July, the NLRB began issuing informal advice email memos instructing Regional Directors to dismiss several complaints where employers were forced to make these unilateral changes because of the emergency posed by COVID -19. The NLRB general counsel’s position was that if the unilateral change was reasonably related to the emergent pandemic, employers were justified in carrying out the change unilaterally so long as they bargained with the union within a reasonable time thereafter.

New Presidential Administration Coming in 2021

In November, employers learned that Joe Biden had been elected as the new President of the United States. Set to take office on Jan. 20, 2021, President-elect Biden described himself as “the strongest labor president you have ever had” – setting the tone for what could be big changes on the horizon. Any labor law changes supported by the new Biden administration would likely have to wait until the composition of the NLRB’s five-member Board changes. At the earliest, that would be August 2021. Further, Biden will not be able to appoint his own NLRB general counsel – the official in charge of all NLRB Regional Offices – until November 2021. While wholesale changes are not likely until late 2021 at the earliest, employers should brace for a pro-union shift, which could take the form of precedent-changing decisions, rulemaking, or even substantive pro-union legislation.

What a year – we’ll see what 2021 has in store. Stay tuned.

© 2020 BARNES & THORNBURG LLP
For more articles on labor law, visit the National Law Review Labor & Employment section.

Beyoncé Fends Off Challenge to Daughter’s “Blue Ivy Carter” Mark From Owner of “Blue Ivy” Mark for Event Planning

In 2012, BGK Trademark Holdings, LLC applied for registration of the trademark BLUE IVY CARTER with the consent of Blue Ivy, daughter of Beyoncé Giselle Knowles-Carter and Shawn Corey Carter (Jay-Z), but was met with opposition from the owner of the mark BLUE IVY for event planning. In dismissing the opposition, the Trademark Trial and Appeals Board (TTAB) rejected the Opposer’s claims of likelihood of confusion, lack of bona fide intent to use the mark in commerce, and fraud. Morales v. BGK Trademark Holdings LLC, Opposition No. 91234467 (T.T.A.B. 2020).

BGK Trademark Holdings, owned by Beyoncé—actress, singer, and songwriter—applied for the mark BLUE IVY CARTER for a variety of goods and services, such as fragrances, cosmetics, key chains, audio and visual sound recordings, banners, hair accessories, product merchandising, entertainment services, and more. Veronica Morales, owner of the lifestyle event planning company “Blue Ivy,” filed an opposition asserting, in part, likelihood of confusion with her BLUE IVY mark, which she has used for event planning services since 2009 and registered in 2012.

The Lanham Act prohibits the registration of a mark that (1) resembles an already registered mark previously used by another and (2) that when used in connection with the goods of the applicant, is likely to cause confusion, mistake, or deception. To succeed, Morales needed to show that use of the BLUE IVY CARTER mark by BGK would cause confusion as to the source or sponsorship of the goods and services.

The TTAB found there was no evidence suggesting the marks were related in such a way as to give rise to confusion. Considering the oft-cited DuPont factors, the TTAB found the second and third factors—the similarities between the goods, services, and the similarity of trade channels—weighed heavily against a finding of confusion. Morales’s mark is registered for “event planning and management for marketing, branding, promoting or advertising the goods and services of others.” BGK’s proposed mark is directed to many different goods and services, with the most similar being “product merchandising for others” and “entertainment marketing services, namely, marketing, promotion and advertising for recording and performing artists.” The TTAB found that although these services were similar, there was no evidence they were related in a manner that would cause confusion. Additionally, the TTAB found no evidence the goods and services travelled in the same channels of trade, specifically stating that online marketing does not establish similar trade channels and does not prove a likelihood that consumers would confuse similar marks. With respect to the strength of the mark, the fifth DuPont factor, the TTAB found this factor neutral because while BLUE IVY is conceptually strong, there was not enough evidence to determine commercial strength. Therefore, although the marks were similar in connotation and impression under the first DuPont factor, the other factors tipped the scales in favor of finding no likelihood of confusion between the marks.

Morales also challenged applicant’s bona fide intent to use the mark in commerce as of the filing date of the application. Trying to convince the Board there was a lack of bona fide intent, she argued BGK failed to produce documentation supporting a bona fide intent despite requests to produce documents in discovery. The TTAB was not persuaded because Morales had failed to pursue a motion to compel when BGK objected to the requests for production. Next, relying on BGK’s abandonment of an earlier trademark application for the same mark in which the company failed to file a Statement of Use, Morales argued BGK’s current application suffered from a lack of bona fide intent to use the proposed mark. The TTAB, however, determined that a prior abandoned application is not, by itself, enough to support a finding of bad faith conduct. Finally, Morales relied on statements made by Jay-Z in in a Vanity Fair magazine article where he stated that they sought a trademark for Blue Ivy’s name for a line of baby clothes “merely so no one else could,” to show lack of bona fide intent to use the mark in commerce. Rejecting that argument, the TTAB determined those statements could not be used to show lack of bona fide intent because Jay-Z is not legally connected to BGK and the statements in the article were not direct quotes. Finding no lack of bona fide intent, the Board likewise rejected Morales’ fraud arguments.

As a result, there was no bar to Beyonce and BGK securing trademark registration for their BLUE IVY CARTER mark.

COPYRIGHT © 2020, STARK & STARK
ARTICLE BY Gene Markin of  Stark & Stark
For more articles on trademarks, visit the National Law Review Intellectual Property section.

Major Drop In Toy Safety Inspections for Over Six Months Due to COVID-19 Threat

A USA TODAY investigation found that the Consumer Product Safety Commission (CPSC) pulled its toy police from ports around the country for over 6 months because of the threat of COVID-19, causing a major drop in safety inspections. This is a follow up from our Most Dangerous Toys of 2020 post, further warning parents, grandparents, and gift-givers to research a toy’s potential hazards before clicking the “buy now” button.

CPSC inspectors are supposed to intercept bad toys and other household products before they reach the market.

“Anything that could potentially harm consumers, my job is to stop it here,”
– CPCS compliance investigator from a video posted on the agency’s website.

The leaders of the federal agency made the decision without warning consumers or full disclosure to Congress. They continued the shutdown at the ports and a government testing laboratory until September, including spring and summer months that were their inspectors’ busiest in 2019.

USA TODAY found an extraordinary lapse in safety surveillance during the pandemic which was hidden from the public. From April to September, during the COVID-19 closures, the agency issued a fourth of the violations it did during the same period a year earlier.

CPSC inspectors performed an average of 3,000 monthly screenings at the ports at the beginning of 2020, according to internal agency data. By May, that number had fallen to about 100 and in August, they only performed 47. As of December 2020, the records show inspectors were still not working in five of the 18 ports they normally patrol, Chicago, New York City, Savannah, Buffalo, New York, and Norfolk, Virginia.

Target, Dollar Tree, Walgreens, Amazon, and UPS were among the large wholesale distributors, shipping companies, and name-brand retailers who brought in products from overseas while the CSPS investigators were away from their posts this year, not screening for hazards that wholesalers and retailers are supposed to test for themselves.

Shoppers of these stores and others that import products will have no way to differentiate good products from any bad items that have slipped in. Experts fear it could take years to discover the dangerous items that have been allowed into American homes.

If you notice any problems, experts say to immediately report them to a CPSC website where such complaints are publicly posted: saferproducts.gov.

© 2020 by Clifford Law Offices PC. All rights reserved.
For more articles on toy safety, visit the National Law Review Consumer Protection section.

Trump Signs IoT Cybersecurity Improvement Act into Law

On Dec. 4, 2020, President Donald Trump signed into law the bipartisan-backed Internet of Things Cybersecurity Improvement Act of 2020. By its terms, the new law applies solely to federal government agencies, but its downstream consequences are likely to reach further, impacting devices procured by the federal government and—likely, eventually—consumer devices.

Internet of Things (IoT) devices are in widespread use, most visibly by consumers of new smart home devices. The new law defines IoT devices as those devices that:

  1. Interact with the physical world
  2. Have a network interface for transmitting or receiving information via the internet
  3. Are not conventional information technology devices such as smartphones or laptops and cannot function as a component of another device such as a processor

Despite having a highly technical definition, IoT devices are common and becoming increasingly so. You probably even have several in your home or office, with many wireless devices—like refrigerators, smart speakers, networked printers, security systems and locks—satisfying this definition of an IoT device.

Though perhaps less visible than consumer adoption of IoT devices, the federal government’s use of IoT devices is increasing and, given the federal government’s significant size and buying power, impacting the market in meaningful ways. For instance, the Environmental Protection Agency (EPA) uses sensors that transmit data regarding weather conditions. Customs and Border Protection (CBP) uses autonomous surveillance towers that detect and identify items of interest at the border. NASA even uses spacesuits that monitor and transmit data regarding astronauts’ vital signs. Although these items often serve more sophisticated functions than IoT devices purchased and used by consumers, many of the underlying technologies are similar or even identical.

Despite, or perhaps because of, their growing adoption, IoT devices are generally viewed as being more vulnerable to cyberattacks and subject to abuse as part of distributed denial of service (DDoS) attacks.

The IoT Cybersecurity Improvement Act seeks to reduce those risks, at least among IoT devices procured by the federal government. To achieve this goal, the new law:

  1. Tasks the National Institute of Standards and Technology (NIST) with developing, publishing and updating security standards for IoT devices
  2. Requires the Office of Management and Budget (OMB) to review each federal agency’s information security policies to ensure they comply with the standards NIST promulgates for IoT devices
  3. Prohibits federal agencies from procuring any devices that fail to comply with NIST’s standards

Although NIST’s standards are not yet drafted and, even when they are, will not impose any direct requirements on the private sector, it is important for all device manufacturers and sellers to pay close attention to developments. The sheer size and scope of the federal government’s buying power may result in private sector businesses adopting the eventual NIST standards to ensure they can sell devices to the government. Similarly, the eventual NIST standards may provide a possible baseline for private sector businesses to satisfy and bring themselves into compliance with state IoT security laws that require “reasonable security features.”

Copyright © 2020 Godfrey & Kahn S.C.
For more articles on IoT, visit the National Law Review Communications, Media & Internet
section.

Nine Things Employers Should Know About the COVID-19 Vaccine

Early this week, trucks carrying the first doses of the COVID-19 vaccine began arriving at distribution points throughout United States.

Anticipating this distribution and appearing before the Michigan legislature’s Joint Select Committee on the COVID-19 Pandemic earlier this month, Michigan Department of Health and Human Services Director Robert Gordon said that the agency is not considering a statewide coronavirus vaccine mandate. Nonetheless, many employers wonder whether—and when—their companies can require employees to take advantage of the vaccine.

There is currently no law or regulation directly addressing whether employers may mandate vaccination for COVID-19, but employers can gain some insight from companies’ ability to mandate the flu vaccine. Generally speaking, the Equal Employment Opportunity Commission (EEOC) does not prohibit employers from mandating the flu vaccine, as long as such requirements are job-related and consistent with business necessity. Mandatory vaccination policies are controversial, particularly outside the health care industry, and the EEOC has stated that “generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”

Once the COVID-19 vaccine becomes widely available, employers should consider their options and policies carefully, keeping in mind the following:

  • Realize if an employee objects to the vaccine for religious reasons, the employer will need to explore what reasonable accommodations it can provide, absent undue hardship.
  • Similarly, if an employee declines vaccination due to a medical condition or disability, the employer must engage in an interactive process with the employee to identify reasonable accommodations, if any.
  • Discuss policy with applicable insurance carrier before implementation to address coverage in the event that an employee becomes ill.
  • Explore options to increase liability protections such as a waiver or release in case a vaccinated employee has an adverse reaction, and what consideration will support the waiver or the release.
  • Consider whether the employer will cover any costs connected to administering vaccination and how this will integrate with employer-provided health plans.
  • Evaluate whether to provide additional paid leave to employees who receive the vaccine and become ill or need days off from work to recover.
  • Review and update job descriptions to include essential functions that may relate to COVID-19 risk, such as travel requirements, customer or patient interaction, and close contact with other employees.
  • For unionized workplaces, consider whether a mandatory vaccination policy will be a mandatory subject of bargaining.
  • Develop a vaccination policy and procedure for requesting accommodation for religious or medical reasons.
© 2020 Varnum LLP
For more articles on the COVID-19 vaccine, visit the National Law Review Coronavirus News section.

What Lawyers Can Learn from the Rise of Telehealth

Like most industries during the COVID-19 pandemic, law firms have been forced to take their operations online. In a field dominated by face-to-face interactions which build trust and create mutual understanding, the absence of this basic human function poses a major challenge. Simple technology so far has been the key replacement for today’s attorney-client relationships, but law firms need more than email and cell phones to run their practices these days.

Much like lawyers, doctors have faced similar challenges of needing to continue to provide quality care and service, while doing so virtually. Luckily for doctors, the infrastructure of telemedicine was already at their fingertips, though adoption of the service was extremely low before the onset of COVID-19. Virtual visits are now estimated to top 1 billion by the end of 2020 based on Forrester’s analysis. What can lawyers learn from telehealth’s initial growing pains and subsequent successes in order to make their practices efficient and effective?

The Rise of Digital Care

Telemedicine is broadly defined as the use of electronic communications and software to monitor and treat patients in lieu of an in-patient visit. At its simplest form it sounds like a quick and convenient way to meet with your doctor, and in an on-demand world, it seems to be a no-brainer from a patient’s perspective. So why was adoption so low upon the initial roll out?

Lack of Awareness

66% of people interviewed by J.D. Power in 2019 said they were not aware of telehealth services or it was not available to them.

Fear of Costs

Many insurance providers made it harder for patients and doctors alike to use telemedicine by only offering certain visits via telehealth. Doctors were also getting paid less and more slowly for these appointments.

Desire for in-person care

When you’re not feeling well, being reassured by another human can be some of the best medicine which often does not translate very well to an app experience.

Of course many of our habits and rules went out the window in March of 2020 and adoption of telehealth has increased out of pure necessity. Just as patients still need to visit with their doctors regularly, clients still need services from lawyers. Here are a few ways COVID-19 is affecting law firms.

How Lawyers Can Replicate Success

Law firms can’t wait 10 years for the adoption of a digital practice, and building one from scratch isn’t in the cards either. By automating your firm with law practice management software, you can have your business up and running in a virtual capacity in no time. Let’s look at how you can have immediate success with this technology as opposed to the slow burn of telemedicine.

Lack of Awareness

One of the quickest ways to grow your client list is through word-of-mouth recommendations. In the same J.D. power survey of telemedicine users, they found that “positive recommendations from others led nearly two-thirds (65%) of telehealth users to try the service.” The key to gaining a customer by word-of-mouth is to first provide quality service, and in a remote world, that often means quick response times and seamless interactions. Today’s law practice management tools allow you to be alerted when any changes are made to a clients account, resulting in faster service. If your client feels that attention, they’ll be more likely to recommend your firm to their peers.

Fear of Costs

Unlike medical patients who often have to deal with cumbersome insurance plans and third party collections teams, your clients should pay their invoices as if they were checking out at an online retailer. With increased transparency thanks to the speed and accuracy of online payment functions which many law firms are adopting, clients won’t feel apprehensive or overwhelmed about the money they owe.

Desire for in-person care

While telehealth can’t replicate the reassuring touch of a doctor, it does open up a great line of communication. Today’s case management tools elevate your client communication by storing all your messages in one place. The days of sifting through binders, then scrolling through email, and finally browsing a rolodex are over. Everything from start to finish of a case or matter can be accessed instantly with today’s technology so you can maintain a full picture of your clients’ needs as if you were in the room together.

Just as doctors have embraced telehealth and finally seen the tools take off, law firms will see the same benefits as they begin to transition online. Practice management software can help your firm gain word-of-mouth clients in a digital world through quick service thanks to real time updates, create client trust through financial transparency, and ensure smooth communication via powerful CRM’s.

© Copyright 2020 PracticePanther
ARTICLE BY Dan Bowman of PracticePanther
For more articles on telehealth, visit the National Law Review Communications, Media & Internet section.

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