The Defense Against Trade Secrets Act: what does it means for you?

This month, President Obama signed into law the most significant trade secret reform in nearly twenty years: the Defend Trade Secrets Act of 2016 (DTSA).  The Act received enormous bipartisan support, illustrating how significant this issue is to business. How does the Act impact your workplace?

Historically, trade secret protection has been the exclusive domain of the states. In fact, the DTSA does not pre-empt state law but adds an additional level of federal protection for trade secret holders. Specifically, the Act allows a federal cause of action to obtain a civil seizure order and remedies for trade secret theft. If a showing of “extraordinary circumstances” is met, a federal court can issue an ex parte property seizure—a powerful tool to stop misappropriation. The Act specifies how a trade secret threshold is met, and refers to “reasonable measures” to keep the information secret.  Moreover, the Act requires the information sought to be protected derives “independent economic value” for the owner(s).  The federal remedies are welcome but the burden of establishing information as a trade secret is high.

The best way to protect business secrets to avoid a breach and to seek federal and state protection after a breach is:

1. Identify and continually protect trade secrets;
2. Establish steps to maintain secrecy;
3. Develop a comprehensive Protection Plan;
4. Periodically audit your security measures.

Most importantly, the DTSA requires that employers must now provide a notice of whistle blower immunity protection in any contract or agreement with an employee (or an independent contractor or consultant).

We can help. Our lawyers have vast experience assisting businesses with trade secret matters.  Contact us at info@foleylawpractice.com or call 508.548.4888

Thanks DOL. Now what?

At last, the final version of the Department of Labor’s (DOL) overtime rule has been issued. The final rule will:

-Raise the salary threshold for overtime eligibility for “white collar” workers from $455/week to $913 per week or $47,476 per year, effecting a projected 4.2 million workers.
-Automatically update the salary threshold every three years, based on wage growth over time.
-Amend the highly compensated employees subject to a minimal dutes test salary from $100,000 to $134,004 per year.
-Go into effect December 1, 2016.
We won’t quote Joe Biden here, but this is a big….deal. With six months to prepare, do not wait until the last minute. Be sure your employees are properly classified with an employment audit. Running afoul of the Fair Labor Standards Act (FLSA) is expensive with big penalties, plus the possibility of class action lawsuits.

In other less shattering but important news:

The EEOC just released their final rules regarding employer wellness plans. The ten second version: the EEOC’s final rules describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their spouses. The guidance applies to both employers and employees about how workplace wellness programs can comply with the ADA and GINA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act (Affordable Care Act).

Time to take a closer look at your Wellness Plan. No good deed goes unpunished.

We can help. 508-548-4888

Understanding the Zone in the Workplace

-Attorney Timothy G. Kenneally

Retaliation protection in the workplace is defined by the “zone of interests” standard. If an employee falls within the interests sought to be protected under the law (Title VII) that employee is shielded against retaliatory adverse employment action.

A recent decision by the Massachusetts Commission Against Discrimination (the “Commission”) in Schillace v. Enos Home Energy Therapy illustrates how the zone works. Schillace charge Enos with terminating her employment because her fiancé, who had also worked for Enos, had previously charged the company with retaliation.  The Commission concluded that the fiancé relationship was “a close personal association” for Schillace, and therefore she was protected against any adverse employment action motived by or related to her fiancé’s claim.  The Commission concluded that Schillace was entitled to back pay and damages for emotional distress due to the wrongful termination of her employment. In other words, she was in the zone of protection.

How should employers properly define the zone and react to it?  For starters, employers must acknowledge that the focus on a zone of interests, in practice, creates a unique type of protection for each employee.  This personalized zone is defined by any and all of the employee’s known close personal associations with members of protected classes. Close personal associations have been defined to include blood relatives, relatives by marriage, adoptive relations, and of course, a fiancé.  However, we hesitate to suggest that a Court or the Commission will not define the group more broadly to include other persons closely tied to the employee.

Before taking adverse employment action, employers must consider all of the employee’s known close personal associations.  Do any of those persons fall within protected classes?  Can the adverse action be viewed as retaliation related to a person associated with the employee?  Only through a measured and careful analysis, can an employer minimize its risk of running afoul of the ZONE.

If you have any questions about the zone of interests, feel free to contact me at tim@foleylawpractice.com.

 

Um, where are those DOL overtime changes again?

Government moves at its own pace. Sometimes the effective date of change is unknown, or as was once famously coined, a “known unknown.” In the case of the changes to the salary threshold for overtime pay, it is unknown when the rule will become effective (and perhaps even what the final salary threshold will be).  There are, however, some knowns.  The rule making comment period closed 9/4/15, with a whopping 293,394 comments.  The rule making website has the Final Rule scheduled for “7/00/16” which we all know is not a real date, even in Washington. This is an election year, however, so the rule will most likely take effect sometime between Labor Day and November 1, 2016. How’s that for accuracy?

What’s an employer to do? Prepare. The change is coming and an employment audit will put you in compliance. We can help. 508.548.4888