The National Law Forum

Can Employees Commute Tax-Free on Uber or Lyft?

Uber, Lyft, and their competitors, offering handy apps, responsive drivers and competitive prices, are fast becoming a favored commuter option. Many employers either subsidize employee commuter expenses or allow employees to pay for commuter expenses through payroll deductions. Under current law (Internal Revenue Code Section 132(f)) and regulation, these expenses can be tax-free (up to certain dollar limits) if they are incurred through qualifying commuter highway vehicles, van pools, transit passes, parking, and bicycles. Many employers and employees are asking: can Uber and Lyft commutes be provided tax-free?

A quick dive into the legal weeds

Of the types of qualifying commuter expenses, only the “van pool” exemption potentially applies to Uber and Lyft. Generally, the fair market value of qualifying “van pool” benefits may be excluded from an employee’s income up to $255 per month (2016). Slightly different rules apply depending on whether the van pool is employer-operated, employee-operated, or “private or public transit operated.”

In the case of employer-operated or employee-operated van pools, the vehicle in question must seat at least six adults (excluding the driver). In addition, at least 80% of the vehicle’s mileage must be reasonably be expected to be (1) used to transport employees between their homes and jobs and (2) used on trips during which the number of employees transported for commuting is at least 50% of the vehicle’s adult seating capacity (excluding the driver). This is the so-called “80/50” rule. A “private or public transit operated” van pool vehicle must also seat at least 6 adults (excluding the driver) but is not required to meet the 80/50 rule. But what’s a “private or public transit operated” van pool?

The regulations say that the van pool must be “owned and operated either by public transit authorities or by any person in the business of transporting persons for compensation or hire.” In a series of Information Letters (IRS Info. Letters 2014-0028, 2015-0004, and 2016-0004) the IRS suggests that the issue is factually-charged, and that a van owned by a private vendor will not automatically qualify as “private or public transit operated”. Here are some key excerpts from IRS Info. Letter 2016-0004:

“The term “operate” is not specifically defined in Code Section 132 or the regulations. However, the Merriam-Webster Dictionary definition of “operate” includes “to use and control (something); to have control of (something, such as a business, department, program, etc.).”

“Thus, in determining whether a van pool is “operated” by an employer, an employee, or by a private or public transit authority, factors such as who drives the van, who determines the route, who determines the pick-up and drop-off locations and times, and who is responsible for administrative details would all be relevant factors.”

What case is the IRS making here exactly? Is the IRS saying that a van pool can be “employer-operated”, “employee-operated”, “private or public transit operated” or possibly none of the above? Or, is the IRS suggesting that some van pools that individuals or employers consider to be “private or public transit operated” should actually classified as “employer-operated” or “employee-operated” (and subject to the 80/50 rule)? Clarification from the IRS would be most welcome.

Application to Uber and Lyft

Can employers provide or facilitate tax-free Uber or Lyft rides?

First, Uber or Lyft must actually be a “van pool”. Uber does have an “UberPool” service, and Lyft offers “Lyft Line”, which are meant to carry several passengers in the same direction and would seem to qualify.

Second, the vehicle used for the pool must seat at least six adults (not counting the driver). In Boston (where I live), the UberPool service currently maxes out at 4 riders (and would not qualify). In New York City, however, Uber has begun offering UberPool in six-passenger vehicles. So currently UberPool clears this hurdle, but only in some markets. (In fairness to Lyft, I was unable to easily dig up similar information on Lyft Line.)

Third, are UberPool and Lyft Line “private or public transit operated”? In spite of the frustratingly unclear series of IRS Information Letters cited above, signs point to “yes”. IRS regulations (which trump Information Letters) require that the pool services be “owned and operated by [a] person in the business of transporting persons for compensation or hire.” This test seems to be satisfied whether the “person” is the corporate entity or the individual driver.

In sum: Lyft and Uber can potentially qualify as tax free benefits, if the cars seat at least six passengers plus a driver. But read on . . .

Anything else to worry about?

Even if the “van pool” hurdle is overcome, there are some administrative issues to consider. While none of these hurdles are insurmountable, they promise to add a layer of hassle for employers. For example:

The IRS directs employers to provide vouchers (or something similar) to employees, which the employees may then use to pay for van pools. Cash reimbursements may be used in lieu of vouchers only if vouchers are not readily available. Employers will need to determine whether something like a voucher system can be arranged with Uber or Lyft, and if not, the employer must honor the IRS’ cash reimbursement substantiation rules.
If the benefit is provided through pre-tax payroll deductions, advance elections (in writing or electronic) must be made by employees. The employer will need to arrange a system to do so.
Employers will need to figure out how to value the Uber or Lyft rides. Generally, the fair market value of the benefit is based on all the facts and circumstances. If a car seats six, but the employee rides alone, should the employee be reimbursed tax free for 1/6 of the fare or the entire fare? Or should the value be based on the value of one seat in an ordinary van pool in the employee’s market? Or the entire fare paid by the employee? Note also that there are a number of vehicle valuation rules under the Internal Revenue Code that may be useful. Each employer should confer with its accountants and tax counsel on this point.
Finally, employers need to determine whether it makes sense to offer Uber and Lyft commuter benefits as part of a transportation benefit package. In addition to the added administrative burden, there are optics issues. Proliferation of these policies could cause commuter spending to be redirected from public transportation to Uber and Lyft, creating an argument that the practice is not environmentally forward. Employers should also consider whether any applicable state or municipal laws or ordinances might impact an employer’s transportation benefits.

Conclusion

Based on current guidance, it appears that rides provided to commuters by Uber, Lyft and their competitors may, in some cases, be framed as tax-favored commuter benefits. However, it remains to be seen whether the IRS will take steps to curtail this practice. Employers should carefully consider IRS guidance and administrative concerns, and consult with counsel, before including Uber and Lyft in their transit reimbursement benefits.

ARTICLE BY Patricia A. Moran of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Networking Pitfalls- Falling for the Wrong People

Over the past 10 – 15 years there has been a dramatic increase in the number of people actively focusing on networking. Increasing competition, along with more widespread attention on building a strong network, is encouraging lawyers to flock to networking functions in droves. However, this can be an especially difficult challenge for an attorney to simultaneously balance the billable hour with a devotion to developing a book of business.

To help drive your efficiencies with networking, I’ve categorized business networkers into three groups. In addition to identifying which group you might belong to, it’s important to quickly identify which group others fit into as well. Detecting which group the person you’re speaking with falls into can make or break your results when networking.

Networker Type 1: The Taker

A “Taker” is an individual who attends numerous events and racks up an imposing collection of names and business cards as a way to push appointments and close sales. Unfortunately, these sometimes-aggressive creatures can burn enough people that word “gets around” and ultimately helps to dissolve their reputations. You may even start to observe people physically positioning themselves away from a Taker at consecutive events. Although avoidance seems an appropriate strategy, the Taker should not be dismissed outright. For some people, simply obtaining new sales (however generated) is and always will be their focus.

Perhaps a compassionate view toward seemingly aggressive Takers is the best way to view them. After all, many entrepreneurs require sales quotas of their employees to retain their jobs as a strategy to keep the business viable. Some Takers simply haven’t been taught the art of networking, or are confused on how best to utilize networking in order to achieve long-term results.

That being said, if you can detect a Taker early on at an event, try to avoid the next step: the one-on-one meeting. This is where you schedule a time to meet for coffee or lunch after the initial networking event where you met with a potential business connection. If you find yourself inadvertently ensnared in a meeting with a Taker, this meeting can make for a rough few hours consisting of a sales pitch for the Taker’s product or service, whether you have a need for it or not. It could also turn into a “name grab” by the new acquaintance for the names of your contacts so that he or she can make a sales pitch to them. Run, don’t walk to the nearest exit. We’ve all been there and it’s not fun.

Networker Type 2: The Apparent Giver

The Apparent Giver is the most common networker type. Apparent Givers are those people who, sometime during their careers, have heard and taken very much to heart the concept that “givers gain” or “give to get” as a mantra relating to networking. They believe they understand how to network and think of themselves as major players in the networking game, but often they miss the boat on the important component of follow-through.

Where Apparent Givers stumble is in failing to execute the promises they’ve made to new contacts in an effort to gain their trust. While an Apparent Giver may actually have altruistic intentions in the beginning, promises are worthless if the networker doesn’t follow up and carry out the pledge made to the new contact. Some Apparent Givers become too distracted by other commitments and simply forget to act on their earlier promises. Some with less philanthropic motives may drop the ball when they realize the new contact may not be able to immediately reciprocate. For most people in this age of information overload, if something isn’t scheduled and written down, it probably won’t happen.

The most obvious downside to turning into an Apparent Giver is that failure to follow through will tarnish your reputation if you come to be viewed as someone who doesn’t act on a pledge to a new contact. On the receiving end of the networking exchange, Apparent Givers present a distraction from your ultimate goal of disqualifying this contact type as a potential strategic partner due to empty promises.

Networker Type 3: The True Giver

The ultimate networking aspiration is to become a True Giver and to seek to interact with others of this type. True Givers understand the “big picture” when it comes to networking. This networker’s mantra is “I’ll give selflessly, regardless of what’s in it for me personally.”

As a busy attorney, you’re probably concerned with the amount of time it would take to help everyone you encounter. Even if you had only five short coffee meetings in a month, it might be problematic to then make one quality introduction for each. That’s why being a True Giver has to be balanced with a deliberate process.

First and foremost, remember that you don’t have to meet with everyone you encounter at a networking event. Try to qualify the best people for you to meet and possibly refer to another connection and then focus in on quality connections.

Second, don’t feel obligated to promise referrals for every person you meet. Not everyone is worthy of your “endorsement” by way of an introduction to another one of the contacts you’ve nurtured. It’s fairly easy to disqualify Takers and industry non-experts as people not to make pledges to or introduce to others.

Finally, while of course the Golden Rule tells us we should be nice to everyone, you should focus your networking energy on helping those people you identify as True Givers and those who appear to have the ability to be a strong strategic partner over the long haul. If time is money, then let’s invest time, energy and referrals on the true givers with whom we can have a long-term reciprocal relationship.

ARTICLE BY Steve Fretzin of Sales Results, Inc.

Recent Studies Show Increasing Need For Employee Training in Data Security

Two recent studies show an increasing need for companies to better train their employees in data security to prevent data and monetary loss. On September 7, 2016, Wells Fargo Insurance released a study on cyber security showing some interesting trends in companies with $100 million or more in annual revenue. The second-annual study questioned 100 decision makers on issues of data, hackers, network vulnerabilities, and other cyber security matters. The study showed that companies were nearly twice as concerned with losing private data as they were with being hacked or having some other security breach disrupt their system.

In particular, Wells Fargo noted the surprising trend that companies are not more concerned with employee misuse of technology (finding only 7% of companies believed that their employees’ misuse of technology posed a potential threat). Yet this is a real issue. This was confirmed in another study released this month by the Ponemon Institute – 2016 Cost of Insider Threats – which showed that organizations are spending on average $4.3 million annually to mitigate and resolve insider threats. “Companies perceive insider threats as mostly driven by malicious employees, but the fact is that a significant portion of the risk is due to insider carelessness.”

The Ponemon report polled 280 IT and security practitioners from medium and large organizations. It found a total of 874 insider incidents over the course of a year, 65% of which were caused by employee or contractor negligence, 22% by malicious employees or criminals, and about 10% by imposter fraud. The security incidents from negligence cost the respondents about $207,000 per incident and about $2.3 million annually.

But both studies point out that what companies are doing to combat what has been termed “the human factor,” or an employee’s misuse of technology, is not enough. As noted in the Ponemon report, the “training programs that companies have are just not very good. They are really focused on check-the-box compliance requirements to show everyone that [the] company [has] training on data protection.” Wells Fargo noted, “[c]yber risk management is first and foremost about education,” and this applies to companies both big and small. In the domain of imposter fraud alone, where a fraudster gains access to the email account of a company’s senior executive and then requests a payment, the professional risk practice at Well Fargo handles five to ten of these incidents each week, from clients that are not well-known brands.

In addition, the time to contain these insider-related incidents correlates directly to the total cost to the company. The Ponemon study showed that it took more than 60 days to contain the incident or attack for 58% of their sample, with another 20% experiencing containment within 30 days.

So what should companies be doing? Companies are most frequently using data loss prevention tools and mandatory user training and awareness. However, as the Ponemon study shows, deployment of user behavior analytics would result in the largest total cost savings, at $1.1 million (based on the mean value of $4.3 million), and could drive the most impact in terms of cost on investment. The recommendation is to focus on visibility and transparency – not on stringent controls – and to build “a layered defense that delivers a comprehensive range of capabilities across visibility, detection, context and rapid response.”

ARTICLE BY Mary Kathryn Curry of Polsinelli PC

Café Manager Seeks Class Action for Overtime Pay

A Chicago-based Barnes & Noble Café Manager filed a collective action on September 20, 2016 in federal court, Southern District of New York, seeking overtime compensation for herself and similarly situated individuals who have worked as Café Managers “or in comparable roles with different titles”, for Barnes & Noble anywhere in the United States. According to the complaint, Barnes & Noble operates 640 retail stores in the 50 states. Brown v. Barnes and Noble, Inc., 1:16-cv-07333-RA (S.D.N.Y. 2016).

The plaintiff, Kelly Brown, claims that Barnes & Noble deliberately understaffs its Cafés, and strictly manages hours worked by non-exempt Café employees to avoid paying them overtime. As a consequence, the suit claims, Café Managers “spend the vast majority of their time performing the same duties as non-exempt employees, such as: making coffee and other beverages, preparing food, serving customers, working the cash register and cleaning the Café.” Ms. Brown claims that Café Managers regularly work in excess of forty hours and frequently work ten or more hours a day.

The lawsuit asserts that Café Managers are not exempt “executive” employees because they: (1) are closely supervised by their Store Managers and their work is specifically defined by corporate policies and procedures; and (2) are not responsible for the overall performance of the stores, or for coaching, evaluating, hiring or firing employees.

To be exempt from overtime as an executive employee, the employee must satisfy both the duties and the salary test:

Duties Test

The “executive” exemption requires that the employee:

1. regularly supervises two or more other employees;

2. has management as the primary duty of the position; and

3. has some real input into the job status of other employees (such as hiring, work assignments, promotions and/or firing).

With regard to the first factor, the supervision must be a regular part of the employee’s job. The “two employees” requirement may be met by supervising two full-time employees or the equivalent number of part-time employees.

For the second factor, the FLSA Regulations set forth a list of typical management duties, which, in addition to supervising employees, includes:

interviewing, selecting, and training employees;

setting rates of pay and hours of work;

maintaining production or sales records (beyond the merely clerical);

appraising productivity; handling employee grievances or complaints, or disciplining employees;

determining work techniques;

planning the work;

apportioning work among employees;

determining the types of equipment to be used in performing work, or materials needed;

planning budgets for work;

monitoring work for legal or regulatory compliance; and

providing for safety and security of the workplace.

An employee may qualify as performing executive job duties even if she performs a variety of “regular” job duties, such as preparing food or drinks and/or serving customers. However, she must also perform at least some of the tasks a “boss” would typically perform, as set out above. For example, the executive must have genuine input into personnel matters. This does not require that the employee be the final decision maker, but the employee’s input must be given “particular weight.”

Salary Test

Ms. Brown’s salary of $33,000 is above the current salary threshold for exempt employees, $23,600. However, the new USDOL Rule will raise the threshold to $47,476 effective December 1, 2016.

Recent Attorneys General Court Challenge to New Salary Test

On September 20, 2016, the same day that Ms. Brown filed her lawsuit, officials from 21 U.S. states filed a lawsuit claiming that the DOL acted unlawfully in issuing the new salary limit, which the states assert will place a heavy burden on state budgets. Hours after the states announced their lawsuit, the U.S. Chamber of Commerce and other business groups filed a separate challenge to the rule in the same federal court in Sherman, Texas. Business groups and Republican officials say that the rule will force employers to demote salaried workers to hourly positions and create more part-time jobs.

Whether this challenge is sustained, the Barnes & Noble case serves as a reminder that an employee must meet both the duties and the salary tests to qualify for the exemption.

TAKE-AWAYS:

Regardless of which salary threshold applies, the “duties” test remains unchallenged.
The restaurant and related-food and drink businesses are targets for plaintiff class action lawyers.
Assistant Managers in larger operations have asserted claims similar to Ms. Brown’s here: that is, that they primarily do the same work as the rank-and-file employees.
All employers should conduct regular audits of the jobs currently classified as exempt. We are reminded again and again in the case law that the employee’s job title is not the a significant factor in the outcome.
Non-compliance will result in exposure for the overtime pay owed plus heavy penalties; double damages under federal and Connecticut law, treble damages under Massachusetts law.

ARTICLE BY Barry J. Waters of Murtha Cullina

Twenty-One States Join Forces to Oppose the FLSA’s New Overtime Rule

As most of you know, in May 2016 the Department of Labor (DOL) released its long-awaited Final Rule modernizing the Fair Labor Standard Act’s (FLSA) white-collar exemptions to the overtime requirements of the FLSA. See our rundown of the changes in our earlier post here. The new rule is scheduled to take effect December 1, 2016.

This week, however, 21 states banded together to express their disapproval of the Final Rule and filed a lawsuit against the DOL. The states challenging the constitutionality of the rule are: Alabama, Arizona, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah and Wisconsin.

The primary argument in the states’ lawsuit is that the new FLSA rule will force many businesses—particularly state and local governments—to unfairly and substantially increase their employment costs. For state governments in particular, the states allege that the new rule violates the Tenth Amendment by mandating how state employees are paid, what hours they will work and what compensation will be provided for working overtime. The lawsuit also alleges that implementation of the new rule will disrupt the state budgeting process by requiring states to pay overtime to more employees and would ultimately deplete state resources.

It’s no coincidence that more than 50 business groups—including the US Chamber of Commerce and the National Association of Manufacturers—filed a similar lawsuit on the same day and in the same court. This lawsuit alleges, among other things, that the new rule disregards the mandate of Congress to exempt white-collar employees from the overtime requirements of the FLSA.

How the courts will handle these parallel cases is an unknown. For now, employers—both public and private—are encouraged to proceed as though the new rules will take effect on December 1, 2016 as scheduled.

ARTICLE BY Anne Marie Schloemer of Squire Patton Boggs (US) LLP

Illinois Supreme Court Rules 6-Person Jury Act Unconstitutional

In an opinion released this morning, the Illinois Supreme Court held that the right of trial by jury includes the right to demand a 12-member jury. In Kakos v. Butler, 2016 IL 120377, the Court held that Public Act 98-1132, which bars a litigant from exercising this right, and the statute it amended, 735 ILCS 5/2-1105(b), were “facially unconstitutional.” Kakos, 2016 IL 120377, ¶ 37. Because the provision regarding jury size could not be severed from the entirety of the Act, the Court invalidated the entire Act.

Public Act 98-1132 (effective June 1, 2015), which amended section 2-1105(b) of the Code of Civil Procedure, limited the size of a civil jury to six persons and increased the amount paid per juror across the state. In Kakos, the plaintiffs filed a complaint at law alleging multiple counts of negligence and loss of consortium against the defendants. The defendants then moved to request a 12-person jury and sought a declaration that P.A. 98-1132 was unconstitutional. The circuit court agreed with the defendants and granted the motion, finding that the Act was facially unconstitutional and violated separation of powers. The plaintiffs then appealed to the Illinois Supreme Court as a matter of right under Rule 302(a).

According to the Supreme Court, “it is clear that the drafters of the 1970 Illinois Constitution intended for the essential common-law features of a jury trial as then employed to be preserved and protected.” Kakos, 2016 IL 120377, ¶ 36. The Court said that Article I, section 13, of the Illinois Constitution “reveals an intent on the part of the drafters to maintain common-law characteristics of jury trials.”Id. Article I, section 13, provides: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” Id. ¶ 13. According to the Court, “[t]he phrase ‘as heretofore enjoyed’ plainly indicates that the drafters intended for certain characteristics of a jury trial to be maintained.” Id. It further observed, “[t]his court has long interpreted the phrase ‘as heretofore enjoyed’ to mean ‘the right of a trial by jury as it existed under the common law and as enjoyed at the time of the adoption of the respective Illinois constitutions.’” Id. ¶ 14.

The Court said that it “has long included the 12-person size of a jury within its descriptions of the essential features of a jury trial.” Id. ¶ 36. The “transcripts from the convention debates,” the Court explained, “make clear that the drafters did not believe the legislature had the authority to reduce the size of a jury below 12 members and the drafters did not act to give the legislature such power.” Id. The Act and statutory amendment violated Article I, section 13.

The decision, authored by Justice Garman, was 5-0, with Justices Thomas and Kilbride taking no part.

ARTICLE BY Brad Elward of Heyl, Royster, Voelker & Allen, P.C.

Register Today for LMA Tech West – October 5 & 6, 2016

The Legal Marketing Technology Conference is the largest conference dedicated to technologies that law firm professionals use to identify, attract and support clients.

Register today!

Join us for the full day conference on October 6, and the half day pre-conferences on October 5. Our pre-conferences include: Technology Workshops and a Lead Marketers’ Summit.

Agenda highlights:

Leading Law Firms through a Competitive Revolution (Keynote: Roland Vogl, CodeEx: The Stanford Center for Legal Informatics)
How CLOC is Changing Legal Service Delivery Models
How Law Firms Can Use Video to Reach New Clients
Data Visualization for Law Firms
Bringing your CRM Data, Legal Expertise and Pricing Data Together: The Future of Effective Legal Sales
Creating Efficiencies Through Marketing Automation: Principles & Practices
Dynamic Content via Deep Personalization – the next stage in email marketing
Using Livestreaming Video to Tell Your Story, Build Relationships, and Attract Clients
Blockchain ID and The Changing Face of Digital Identity

Pokémon Go: At (Or Coming To) A Workplace Near You

If you haven’t already heard, Pokémon Go, a virtual reality app created by Nintendo and Niantic, is taking the world by storm. According to Forbes, the app is about to surpass Twitter on the Android platform in daily active users, even though it was first released just a couple weeks ago in the United States and Australia and has not yet been made available worldwide. More and more people are getting in on the action, exploring real world landscapes with their smart phones in hopes of capturing virtual Pokémon appearing on their screen based on their phone’s clock and GPS location. It seems that no location is off limits, as Pokémon appear on or near both public and private property – even in bathrooms. As the Pokémon franchise motto commands, users “Gotta Catch ’Em All” at designated “Pokéstops” in their quest to become a renown Pokémon “trainer” who can out battle other users at local, virtual “Gyms.”

Pokémon Go users have been wreaking havoc, day and night, along the way. They have been loitering near, and trespassing on, private property, so much so in Massachusetts that the Boston police are calling for users to be “vigilant” in avoiding private property and the “obvious inherent dangers” presented by playing Pokémon Go. They have disrupted operations at hallowed sites, such as the 9/11 Memorial and the Holocaust Museum. One even interrupted a live weather report. Users have used the app to lure and then rob other, unsuspecting users. One gamer ran his car into a tree while playing the app. Another was hit by a car trying to cross a public highway while playing the app. They have even fallen off a 75 foot-high cliff while playing the app.

Employers are not immune from the Pokémon Go fun. They have been – or soon will be – affected not only as property owners but also as managers of their employees.

Employer as Property Owner

As legal bloggers have noted, Pokémon Go challenges the traditional paradigm for legal property rights. It blurs the lines between reality and augmented reality, raising a number of interesting legal questions in the process. Does placing a Pokémon on private property without permission affect a property owner’s common law right to exclusive ownership of his property? Are Nintendo/Niantic potentially liable for placing characters on private property? Does the presence of virtual Pokémon on a property create an attractive nuisance that could create liability for the owner in the event a child-user injures himself on the property? If so, how would the property owner abate the nuisance? Can the state preclude users from playing Pokémon Go on public property consistent with the First Amendment? The answers to these questions are unclear.

What is clear, however, is a property owner’s right to exclude others from his property under West Virginia law. A property owner generally has the right to exclude other persons from his property, but there are exceptions to this rule. For example, if the property is a place of public accommodation, the property owner may not exclude persons based on their protected status, e.g., race, sex, religion, disability, or national origin. Generally speaking, however, property owners could legally exclude Pokémon Go users from their premises. To wit, in the case of a trespasser, a property owner could seek monetary damages for any damages caused by a trespass, even if such damages are only nominal.

A property owner’s obligation to keep his property safe is also clear. In the case of an invited person, the property owner must exercise reasonable care to protect the invited person from anticipated/foreseeable hazards. In the case of a trespasser, such as a wandering Pokémon Go user, the property owner need only refrain from willfully or wantonly injuring the trespasser to escape liability.

Pokémon Go isn’t all bad from a property owner’s perspective, however. For the right property/business owner, Pokémon Go could be a very useful marketing tool. Just Google “6 Ways To Use Pokémon Go in Your Local Marketing Campaign” to learn how. One New York Pizzeria spent just ten dollars to have a dozen Pokémon lured to its store and saw a 75% increase in their business. How’s that for return on investment?

Employer as Manager

Pokémon Go also raises several concerns for employers as managers. Several of these concerns are obvious. The foremost of these concerns may be workplace safety. In a little more than a week, Pokémon Go users have shown just how dangerous the app can be. Think about what could happen if you added a distracted user to the existing hazards in your workplace. Disaster. In addition, there is the age-old concern of vicarious liability, especially for employers who have employees out on the road. Your mobile device policy should preclude employees from using a mobile device while driving, if it doesn’t already. West Virginia law makes it unlawful to use your phone while operating a motor vehicle on a public road.

Further, Pokémon Go is yet another appealing fad, much like March Madness, that threatens to bring your workforce to a halt while on the clock, particularly if you employ groups of Millennials or Gen Zers. You must set appropriate boundaries and outline clear expectations with your employees, especially where you are relying on broad language in your company handbook. If you need a “catchy” sign to get your employees’ attention, one human resource manager has got you covered:

pokemon forbidden

Otherwise, revisit your personnel policies and update them as needed to mitigate the potential employment carnage that could result from Pokémon Go. At bare minimum, no Pokémon hunts in the bathroom!

There are at least a couple of hidden concerns with Pokémon Go too. For one, users participate on the Pokémon Go program with their phone’s camera and will soon, if they do not already, have the option of recording or even live streaming their Pokémon Go gameplay. That is cause for concern where employees are permitted to play Pokémon Go on breaks in the workplace. In their quest to capture Pokémon “living” around the office, they may record or stream unsuspecting coworkers, or worse, confidential company information. This creates one more avenue for workplace conflict among employees and raises security concerns for private company information.

For another, Pokémon Go may be a cyber-security concern for company’s using Google products, such as Chrome, Gmail, and Google drive. When the app first debuted, it requested “full access” to the user’s Google account, which meant that Nintendo and/or its partner, Niantic, could not only review your email, your Google docs, Google photos, your location history, your search history, but also, modify all that content, and even send emails as the user of your Gmail account! For users who signed up with a company-related Google account, Niantic was functionally a business partner. It appears that recent outcry has led the Pokémon Go creators to modify the permissions required to download the app. It will be interesting to see whether this change is enough to quell the public outcry. Either way, the initial cyber-security scare is a reminder that employers should remain vigilant in maintaining the wall between work and play with employees that have been granted a company-sanctioned mobile device.

What You Should Do

Pokémon Go is all the rage and promises to be for your employees soon, if it isn’t already. Regardless of whether the app catches on at your workplace, go through the exercise of reviewing your mobile device and social media policies. Are they inclusive of augmented reality apps? If necessary, update them to ensure that they are clear on the use, non-use, or limited use of augmented reality apps like Pokémon Go at your workplace. But don’t stop there. Review your policies with your employees, even if you don’t make any changes. Make sure that employees are aware of the boundaries for augmented reality apps at the office.

ARTICLE BY Benjamin W. Mounts of Steptoe & Johnson PLLC

OSHA to Employers: No Gagging Whistleblowers!

On September 9, 2016, the United States Occupational Safety and Health Administration (“OSHA”) published new guidelines for approving settlements between employers and employees in whistleblower cases to ensure that those agreements do not contain terms that could be interpreted to restrict future whistleblowing. OSHA reviews settlements between employees and employers to ensure that they are fair, adequate, reasonable, and in the public interest, and that the employee’s consent was knowing and voluntary. The guidance provides that OSHA will not approve settlement agreements that contain provisions that discourage (or have the effect of discouraging) whistleblowing, such as:

“Gag” provisions that prohibit, restrict, or otherwise discourage an employee from participating in protected activity, such as filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government. These constraints often arise from broad confidentiality or non-disparagement clauses, which complainants may interpret as restricting their ability to engage in protected activity. The prohibited constraints may also be found in provisions that:
- restrict the employee’s right to provide information to the government, file a complaint, or testify in proceedings based on a respondent’s past or future conduct;
- require an employee to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct;
- require an employee to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employee has violated the law; and/or
- require an employee to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency.
Provisions providing for liquidated damages in the event of a breach where those provisions are clearly disproportionate to the anticipated loss to the respondent of a breach, the potential liquidated damages would exceed the relief provided to the employee, or whether, owing to the employee’s position and/or wages, he or she would be unable to pay the proposed amount in the event of a breach.

When OSHA encounters these types of provisions, it will ask the parties to remove those provisions and/or prominently place the following statement in the settlement agreement: “Nothing in this Agreement is intended to or shall prevent, impede or interfere with the complainant’s non-waivable right, without prior notice to Respondent, to provide information to the government, participate in investigations, file a complaint, testify in any future proceedings regarding Respondent’s past or future conduct, or engage in any future activities protected under the whistleblower statutes administered by OSHA, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency.”

ARTICLE BY Shennan Harris of Squire Patton Boggs (US) LLP

Department of State Releases October 2016 Visa Bulletin

Employment-based China and India First Preference and Worldwide Second Preference cutoff dates become “current” once again.

The US Department of State (DOS) has released its October 2016 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status and consular immigrant visa application filings and approvals.

What Does the October 2016 Visa Bulletin Say?

The October 2016 Visa Bulletin includes a Dates for Filing Visa Applications chart and an Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for adjustment of status or immigrant visas, and the latter indicates when an adjustment of status application or immigrant visa application may be approved and permanent residence granted.

If the US Citizenship and Immigration Services (USCIS) determine that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will state on its website that applicants may use the Dates for Filing Visa Applications chart. Otherwise, applicants should use the Application Final Action Dates chart to determine when they may file their adjustment of status applications. It is not yet clear which chart the USCIS will select for October 2016 filings. To be eligible to file an employment-based (EB) adjustment application in October 2016, foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country (changes from last month’s Visa Bulletin dates are shown in yellow).

Application Final Action Dates

Application Final Action Days
EB	All Charge- ability Areas Except Those Listed	China (mainland born)	El Salvador, Guatemala, and Honduras	India	Mexico	Philippines
1st	C	C (was 01JAN10)	C	C (was 01JAN10)	C	C
2nd	C (was 01FEB14)	15FEB12 (was 01JAN10)	C (was 01FEB14)	15JAN07 (was 22FEB05)	C (was 01FEB14)	C (was 01FEB14)
3rd	01JUN16 (was 01MAY16)	22JAN13 (was 01JAN10)	01JUN16 (was 15MAy16)	15MAR05 (was 15FEB05)	01JUN16 (was 15MAY16)	01DEC10 (was 01JULY10)
Other Workers	01JUN16 (was 15MAY16)	01JAN05 (was 01JAN10)	01JUN16 (was 01MAY16)	01MAR05 (was 15FEB05)	01JUN16 (was 15MAY16)	01DEC10 (was 01JUL10)

Dates for Filing Visa Applications

Application Filing Dates
EB	All Charge ability Areas Except Those Listed	China (mainland born)	India	Mexico	Philippines
1st	C	C	C	C	C
2nd	C	01MAR13 (was 01JUN13)	22APR09 (was 01JUL09)	C	C
3rd	C	01MAY14 (was 01MAY15)	01JUL05	C	01SEP13 (was 01JAN13)
Other Workers	C	01AUG09	01JUL05	C	01SEP13 (was 01JAN13)

How This Affects You

On the Application Final Action Dates chart, the cutoff dates for EB-1 will once again be “current” for all chargeable countries, including India and China. EB-2 cutoff dates for the worldwide allotment, El Salvador, Guatemala, Honduras, Mexico, and Philippines will be “current” as well. Cutoff dates for EB-2 India and EB-2 China will advance by slightly more than two years (China to February 15, 2012 and India to January 15, 2007).

EB-3 final action cutoff dates for the worldwide allotment, El Salvador, Guatemala, Honduras, and Mexico will advance by one month to June 1, 2016. The final action cutoff date for EB-3 China will advance by more than three years to January 22, 2013. EB-3 India will advance by two weeks to March 1, 2005, and EB-3 Philippines will advance by five months to December 1, 2010. The EB-5 China cutoff date will remain unchanged at February 15, 2014.

The DOS confirmed that the EB-1 allotment should remain current in the coming months, the allotments for China should see modest advancement of three months, and the allotment for India will advance by up to four months. EB-1 allotments will return to “current” status for October. The EB-3 category may see retrogression in the worldwide classification with advancements of up to three months for EB-3 China and up to one week for EB-3 India.

Read the entire October 2016 Visa Bulletin.

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