Employment

Expert Analysis

• BIPA Suits Against 3rd-Party Vendors Face Numerous Hurdles

  

  Two recent Illinois federal court opinions concerning Illinois’ Biometric Information Privacy Act claims against third-party vendors raise questions about the statute’s jurisdictional reach outside the state and whether disclosing biometric data to a vendor constitutes actual injury, say Karen Borg and Al Fowerbaugh at Porter Wright.

• Lesser-Known Litigation Funding Best Practices For Attorneys

  

  Following the American Bar Association's recent publication of third-party litigation funding guidance, Jiamie Chen and Dai Wai Chin Feman at Parabellum Capital outline some additional considerations, including the ethical limitations on single-case funding and the futility of economic prenegotiations between attorneys and their clients.

• Virus Layoffs May Be A Damages Defense In Calif. Bias Cases

  

  California companies facing Fair Employment and Housing Act claims from employees laid off due to COVID-19 may be able to rely on a defense that dismisses damages liability with proof that the same termination decision would have been made based on nondiscriminatory reasons, says Chris Moores at Sloan Sakai.

• Opinion

  ADA Protects Lawyers With Disabilities, But We Must Do More

  

  As an attorney with cerebral palsy, Danielle Liebl at Reed Smith says that while the 30-year-old Americans with Disabilities Act has protected her against discrimination, the legal industry must do more to accommodate lawyers with disabilities and make them more comfortable in self-identifying.

• Calif. Employers May See COVID-19 Safety Citations Soon

  

  The California governor’s recent directive explaining efforts to strategically enforce COVID-19 workplace safety guidelines indicates a high likelihood that the state’s Division of Occupational Safety and Health will issue employer citations for serious violations in the near future, says Thomas Song at Carothers DiSante.

• Perspectives

  Legal Deserts Threaten Justice In Rural America

  

  Many small towns and rural counties have few lawyers or none at all, which threatens the notion of justice for all Americans and demands creative solutions from legislators, bar associations and law schools, says Patricia Refo, president of the American Bar Association.

• CFAA Decision May Raise Bar On Scraping Liability

  

  A D.C. federal court recently held in Sandvig v. Barr that the Computer Fraud and Abuse Act does not prohibit scraping publicly accessible portions of a website, even when doing so violates the website's terms of service, which is similar to the Ninth Circuit's 2019 hiQ v. LinkedIn decision and may influence scraping law in the coming years, say attorneys at ​​​​Perkins Coie.

• 1st Circ. Ruling Complicates Gig Worker Arbitration Pacts

  

  The First Circuit’s recent ruling that Amazon delivery drivers are exempt from the Federal Arbitration Act opens the door to patchwork state enforcement, and will likely force gig economy employers to reevaluate arbitration agreements and class action waivers, say Christopher Feudo and Christian Garcia at Foley Hoag.

• Analyzing Upward And Downward Trends In Legal Tech

  

  Advances in legal technology are often accompanied by bombastic overstatements, but it is important to separate the wheat from the chaff by looking at where various technologies stand on the hype curve, says Lance Eliot at Stanford Law School.

• Health Providers Should Beware FCA Risks Of COVID-19 Aid

  

  Health care providers accepting pandemic aid from the Public Health and Social Services Emergency Fund or Paycheck Protection Program should take steps to protect themselves from criminal and civil exposure under the False Claims Act, even if they receive the funds automatically, say attorneys at Orrick.

• Employer Next Steps After Court Guts DOL Virus Leave Rule

  

  Following a New York federal court’s decision Monday to invalidate parts of a U.S. Department of Labor rule limiting who can take paid sick or expanded family COVID-19 leave, employers may need to adjust determinations related to work availability, health care capabilities, intermittent leave and documentation, says Susan Harthill at Morgan Lewis.

• Lessons From Novartis' $678M Speaker Program Settlement

  

  Novartis' recent $678 million deal with the U.S. Department of Justice, settling allegations that the company's physician-led speaker programs violated the Anti-Kickback Statute, sheds light on arguably the highest-risk marketing practice in the life sciences industry and steps companies can take to avoid DOJ ire, say attorneys at Skadden.

• What A Biden Administration Could Mean For Employers

  

  Presumptive Democratic presidential nominee Joe Biden’s labor and employment policy initiatives would strengthen unions and increase employer mandates, but some policies could benefit companies by creating broader workforce access and supporting retention of existing workers, says Anthony Oncidi at Proskauer.

• Opinion

  ABA's New Guidance On Litigation Funding Misses The Mark

  

  The American Bar Association should revise its recently approved best practices on third-party litigation funding as they do not reflect how legal finance actually works and could create confusion among lawyers, says Andrew Cohen at Burford Capital.

• 3 Cases Spotlight Shareholder Interest In Public Co. Diversity

  

  Recent derivative claims filed in a California federal court over diversity and inclusion shortcomings at Oracle, Facebook and Qualcomm demonstrate shareholder willingness to hold directors and officers accountable for public companies' failure to deliver on environmental, social and governance commitments, say attorneys at Cleary.