Articles Posted in Business Law

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Starting July 1, 2018 the City of Philadelphia has a new reduced local tax structure.  It impacts local businesses, employees and residents as follows:

City Wage Tax (applies to all businesses that operate within the City limits or hire Philly residents)

  • 3.8809% city wage tax for Philadelphia residents

Data

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The General Data Protection Regulation (GDPR) was approved by EU Parliament back in May 2017.  The GDPR, in a nutshell, was designed to replace an inconsistent set of data privacy laws with a comprehensive law that protected all European Union residents.  Please click here for my original post on the GDPR.  While the GDPR has been in effect for over a year, the law gave companies until May 25, 2018 to comply.  Well, that deadline has come and gone.  If you fail to comply, regulators can impose a fine of up to 4% of worldwide revenue.  This is NOT a typo!  4% of worldwide revenue up to 20 million euros.

Currently, there are no grace periods if your company still has not complied with the GDPR.  Additionally, as the ability to enforce compliance is less than 1 week old, there is no precedent out there that we can use as guidance.  Regulators for EU member states have indicated different going forward approaches to enforcement.  While one state regulator has inferred that even if full compliance has not yet been achieved, the efforts made to attain compliance will be taken into account as a mitigating factor.  Alternatively, other state regulators have simply stated that if we have reason to impose a fine we will impose a fine.  In this regard, the newly created European Data Protection Board was recently created.

Hospital Beds

Hospital Beds

Earlier this month New Jersey passed a paid sick leave act (the “Act”) that goes into effect on October 29, 2018.  This new law requires all New Jersey employers regardless of size to provide paid sick time off.  This law preempts towns and municipalities from enacting new paid sick law ordinances and preempts ordinances that were on the books prior to the passage of this new law.  For a full copy of the Act click here.

Amount of Paid Time Available

Scale of Justice

Scale of Justice

Last month the Diane B. Allen Equal Pay Act (the “Act”) was signed into law by New Jersey Governor Phil Murphy.  This marks the third time in four years that the NJ legislature has amended its Law Against Discrimination.  The Act expands equal pay protections for NJ employees and increases compliance obligations on NJ employers.  The Act goes into effect on July 1, 2018.  In a nut shell, the Act makes it an illegal employment practice to pay an employee who is a member of a “protected class” less compensation and benefits for performing substantially similar work by employees outside of the “protected class” unless the employer can show a recognized exception.  In addition, the Act imposes public reporting requirements for employers who deal with public contracts.

Substantially Similar Work and Recognized Exceptions to Equal Pay Act

Wage Gap

Wage Gap

Last month a federal judge sitting in the Eastern District of Pennsylvania ruled that the recently enacted prohibition against asking job applicants their wage history violated the first amendment.  The Philadelphia City Council enacted the ordinance to level the playing field with respect to the wage gap between men and woman.  For a discussion surrounding the history and specific components of this law, please click here for my earlier post.

Philadelphia’s Wage History Law

Picture of cell phoneLast month the Pennsylvania Supreme Court held that accessing any information from a cell phone without a warrant violates the fourth amendment to the constitution.  The Fourth Amendment states in a nut shell that we shall be free from unreasonable searches and seizures.  In this particular criminal case, the police powered on a cell phone that was recovered at the scene of an arrest.  The police officers at the scene powered on the phone, determined its number, connected it to a crime and obtained a warrant to monitor a phone number that was found in the cell phone.  This action ultimately led to the arrest of the owner of the cell phone that the police powered on without a warrant.  The PA Supreme Court stated there is  “no exception for what police or courts may deem a ‘minimally invasive search.”  The Court reasoned that a person’s expectation of privacy rests in the phone itself and even went so far as to compare the opening and powering on of a cell phone as tantamount to walking through the front door of someone’s house without a warrant.

Protection of Digital Rights

The Pennsylvania Supreme Court’s decision continues the movement towards the protection of digital rights.  While this case centered on criminal activity, it has clear implications in the business world.  SEC or DOJ investigations, internal audits and civil litigation will be impacted by this decision.  With virtually every adult in the business world possessing a cell phone, understanding one’s rights and obligations in this digital world can mean the difference between jail and freedom, termination for cause versus without cause, or turning over trade secrets when you are under no obligation to do so.  The laws that encompass digital privacy are rapidly changing.  Indeed, I have had several New Jersey litigation cases where opposing counsel was not aware of New Jersey’s Social Media Law that prohibits employers from requiring employees to provide access to their social media accounts (5th amendment issues).  Without this information, opposing counsel was not able to access the information needed to prove her case.

Picture of Doug Leavitt

Photo: Doug Leavitt

Last month the Department of Labor’s Wage and Hour Division officially rejected the 6-part test it had been using to determine if an employer who had an unpaid intern was violating the Fair Labor Standards Act (FLSA).    Going forward the DOL will employ a “primary beneficiary” test which is designed to focus on the specific economic realities between the employer and intern.  The new test affords the DOL more flexibility in its analysis with one factor not being any more or less important than another factor.

Primary Beneficiary Test

courthouse

Image of courthouse pillars

A Delaware business client recently asked me to review his commercial privacy policy to see if his website complied with current online privacy protection requirements.  Not surprisingly in this fast pace and constantly changing digital landscape – the website failed because it did not clearly provide a link to its privacy policy on the home page.  And this is putting aside the May 25, 2018 GDPR compliance deadline that is fast approaching and its severe financial consequences for noncompliance.  The Delaware Privacy Online Act Delaware Online Privacy Protection Act has three stated goals but for purposes of this alert, I will focus on only on the commercial purpose.  Operators of an internet service must  conspicuously post its “privacy policy” if it collects personally identifiable information of Delaware residents.  To better understand this, let’s break this down into its component parts.

Operators of an Internet Service

woman holding cell phone sitting at work desk with clock
Last week on October 13 the Third Circuit Court of Appeals held that an employer must pay a non-exempt employee for all rest breaks of 20 minutes or less.  This is nothing new and has been the law of the land under the Fair Labor Standards Act (FLSA) for quite some time.  The FSLA was established in 1938 and established certain minimum living standard for workers such as minimum wage, time and a half and child labor standards.  What is new under this decision is that the Court decided this is a bright line test and the facts surrounding each break period need not be looked at on a case by case basis.  In other words, if the employer did not pay an employee for a 20 minute employee break, the analysis is over and the employer has violated the FLSA.

Employee Breaks – FLSA as a Federal Floor and State Laws

Employers are governed by both federal (FLSA) and state employment laws.  Understand that the FSLA is a minimum standard, a floor, if your will, and that if a particular state has more stringent employee protection requirements, that state’s law must be complied with as well.  The Department of Labor has a list that identifies (current as of January 2017) what each state requires under their employment laws regarding paid employee breaks.  Click here for that state by state list.

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