A hacker has breached the computer system of an unnamed defence contractor and stolen 30 gigabytes of data, including information on Australia’s $17 billion Joint Strike Fighter program. The data breach, which the Australian Government publicly disclosed last week, also includes information about Australia’s $4 billion P-8 surveillance plane project, Collins Class submarines and the warships HMAS Canberra and HMAS Adelaide. The Government has emphasised that the stolen data is commercially sensitive but not classified. The announcement coincides with the release of the Australian Cyber Security Centre’s 2017 Threat Report, available here, which reveals that the hack is among 734 cyber incidents affecting private sector systems of national interest and critical infrastructure providers. In this instance, the hacker had access to data for about 4 months before the breach was discovered in November last year. In an investigation into the breach, the Australian … [Read more...] about Just One of 734: Australian Defence Contractor Hacked
California Governor Signs Law Banning Salary History Inquiries
On October 12, 2017, Governor Jerry Brown signed AB 168, prohibiting California employers from asking job applicants about their salary histories. This new law thrusts California yet again into the forefront of jurisdictions tackling pay equity through local legislation. Although the new law does not specifically reference pay equity, the law’s authors justified the change as a means to eliminate pay gaps. The legislative commentary proclaims: “Gender wage discrimination is destructive not only for female workers but for our entire economy. Closing the wage gap starts with barring employers from asking questions about salary history so that previous salary discrimination is not perpetuated.” Governor Brown had vetoed a similar bill two years ago, stating that he wanted to give the recently-amended Fair Pay Act a chance to work. The Fair Pay Act has since been amended two times in two years, and it appears that the legislature’s work is not done. … [Read more...] about California Governor Signs Law Banning Salary History Inquiries
Governor Signs Bill Prohibiting Employers From Asking Applicants About Prior Salary History
On October 12, 2017, Governor Brown signed a new law which expands California’s fair pay laws in front of the Women’s Empowerment Group in Sacramento, California. Specifically, AB 168 added Labor Code 432.2 which generally requires all employers, of any size, to adhere to these new rules: Cannot ask for prior salary information. An employer shall not, orally or in writing, ask for or seek salary history information, including compensation and benefits, about an applicant for employment. Cannot use prior salary information to set wage rates for applicants. An employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant. Must provide pay scale for position. Upon request, an employer shall provide the pay scale for a position to an applicant applying for employment. The … [Read more...] about Governor Signs Bill Prohibiting Employers From Asking Applicants About Prior Salary History
New California Law Mandates Small Businesses Provide Parental Leave
On October 12, 2017, Governor Jerry Brown signed the New Parent Leave Act into law, extending unpaid leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement to employees of businesses with as few as 20 employees. Commenting on Senate bill (SB) 63, Governor Brown stated, “today’s actions will make a positive difference for women, children and families across the state.” Until now, smaller employers have been exempt from the mandates of the California Family Rights Act, which applies to businesses with 50 or more employees, and which provides the right to take time off for parental leave, among other reasons. The new law will apply to employers with 20–49 employees in a 75-mile radius. As a result, approximately 16 percent of California’s labor force or 2.6 million workers will be eligible for unpaid parental leave. Employees will be eligible to take the leave provided that they have … [Read more...] about New California Law Mandates Small Businesses Provide Parental Leave
Deputy Attorney General Rod Rosenstein Warns Against Warrant-Proof Encryption
In a speech delivered at the United States Naval Academy on October 10, Deputy Attorney General Rod Rosenstein waded into the public debate between data privacy and law enforcement interests. As part of a discussion moderated by former Covington cybersecurity attorney Jeff Kosseff, Rosenstein’s remarks discussed cyber issues facing law enforcement with a particular focus on the advent of “warrant-proof” encryption. In his view, warrant-proof encrypted data and devices are unable to be intercepted or unlocked by law enforcement, even with a court order. Noting that “[p]rivate sector entities are crucial partners” in the fight against cyber threats, Rosenstein expressed concerns about the role played by tech companies in advancing warrant-proof encryption. While recognizing the need to balance important privacy interests against law enforcement priorities, Rosenstein argued that “[w]arrant-proof encryption defeats the … [Read more...] about Deputy Attorney General Rod Rosenstein Warns Against Warrant-Proof Encryption
ESMA Updates UCITS and AIFMD Q&As
On October 5, the European Securities and Markets Authority (ESMA) updated two question and answer documents: one relating to the Undertakings for the Collective Investment in Transferable Securities Directive (UCITS) and the other relating to the Alternative Investment Fund Managers Directive (AIFMD). The updated UCITS Q&A contains one new question and answer on periodic reporting under Article 13 of the Regulation, which relates to the reporting and transparency of securities financing transactions (SFTR) for UCITS and alternative investment funds (AIFs) for investors using securities financing transactions (SFTs) and total return swaps. The updated AIFMD Q&A contains new questions and answers relating to the following topics: the application of remuneration disclosure requirements to staff of the delegate of an alternative investment fund manager (AIFM) to whom portfolio management or risk management activities have been delegated; the manner of disclosure of AIFM … [Read more...] about ESMA Updates UCITS and AIFMD Q&As
5 New Laws: California Governor Approves Employee-Friendly Laws
The 2017 California Legislature adjourned on September 15, 2017, and resulted in more than 700 bills being sent to Governor Jerry Brown’s desk for approval. Although the deadline for the Governor to sign new bills into law does not officially expire until October 15, the Governor has already given his stamp of approval to a handful of new employment laws that will take effect on January 1, 2018, including one from the California Chamber of Commerce’s annual list of “Job Killers.” Below is a summary of the major bills recently signed into law. Prohibition on Salary History Inquiries and a New Duty to Disclose “Pay Scales” (AB 168) Effective January 1, 2018, employers are barred from seeking or inquiring into a job applicant’s salary history, compensation and benefits. Further, employers must now disclose pay scales for a position upon request from an applicant. As we noted in August while reporting on San Francisco’s … [Read more...] about 5 New Laws: California Governor Approves Employee-Friendly Laws
Virginia Uniform Trade Secrets Act Prohibits Improper Acquisition of Trade Secrets, Regardless of Subsequent Use
Misappropriation of trade secrets claims can sometimes be difficult to sustain. While evidence of the taking of a trade secret may be available, evidence of its subsequent use may not. In Integrated Global Services, Inc. v. Michael Mayo, Case No. 3:17cv563, by decision issued on September 13, 2017, the federal court for the Eastern District of Virginia entered a preliminary injunction against a former employee, after concluding that he had likely misappropriated the company’s trade secrets in violation of the Virginia Uniform Trade Secrets Act (“VUTSA”). The opinion is particularly notable for its conclusion that the mere acquisition of a trade secret by improper means constituted an unlawful misappropriation under the VUTSA, regardless of whether the defendant actually used the trade secrets or disclosed them to third parties. The former employee, Michael Mayo, held a management position with Integrated Global Services, Inc. … [Read more...] about Virginia Uniform Trade Secrets Act Prohibits Improper Acquisition of Trade Secrets, Regardless of Subsequent Use
Trump Administration Takes Aim at ACA With AHP Executive Order
Yesterday, Thursday, October 12th, on the heels of the recent and repeated failures to repeal and replace the Affordable Care Act (“ACA”), President Donald Trump signed an executive order nominally aimed at increasing competition in the healthcare marketplace, but widely believed to be driven by a desire to undermine the ACA. The executive order broadly tasks the Labor Department with changing the current policies on the accessibility of certain healthcare plans. The coming policy changes are speculated to expand the market for healthcare plans that are exempt from many of the regulations under the ACA. Such healthcare plans are known as Association Health Plans (“AHPs”). AHPs allow small businesses and some individuals to band together and obtain health insurance in a similar manner as larger businesses do for their workers. The order, however, focuses mostly on small businesses. It is believed that these “new” AHPs will most likely provide less … [Read more...] about Trump Administration Takes Aim at ACA With AHP Executive Order
OFCCP Issues Compliance Relief to Federal Contractors in Wake of Devastating Hurricanes
In the wake of the devastating series of hurricanes throughout the United States, the Office of Federal Contractor Compliance Programs (“OFCCP”) has provided compliance exemptions to federal contractors providing hurricane relief. OFCCP has issued three National Interest Exemptions: one for Hurricane Harvey; one for Hurricane Irma; and one for Hurricane Maria. The notices provide contractors providing hurricane relief with an exemption from the requirement to develop a written affirmative action program for both women and minorities and veterans and individuals with disabilities. Contractors are still required to post the “Equal Opportunity is the Law” poster, maintain records as required by federal contracting regulations and post employment listings “with the appropriate employment service delivery system as required by VEVRAA.” This is strictly a three month exemption for contractors entering into contracts for … [Read more...] about OFCCP Issues Compliance Relief to Federal Contractors in Wake of Devastating Hurricanes
Tracking Trends in CFIUS Review Process Based on Recently Released 2015 Annual Report
Last month, the Committee on Foreign Investment in the United States (“CFIUS”) released its annual report to Congress for 2015 (the “2015 Annual Report”) and its cumulative table summarizing foreign investment activity from 2014 through 2016 (the “Cumulative Summary Table”). These documents reflect a substantial increase in the number of CFIUS filings in recent years and an increase in the percentage of CFIUS Notices that have been subject to an investigation process. The Report also reflects a new focus at CFIUS on the national security risks associated with data breaches affecting U.S. citizens’ personal information. CFIUS Overview CFIUS is an interagency committee authorized by statute[1] to review investments that could result in foreign control of a U.S. business that impacts U.S. national security. Parties to a transaction potentially subject to CFIUS review generally file a voluntary Notice. CFIUS takes 30 days to review the Notice, then … [Read more...] about Tracking Trends in CFIUS Review Process Based on Recently Released 2015 Annual Report
Go Figure – Production and Maintenance Employees Belong in the Same Bargaining Unit
In its K&N Engineering decision issued Oct. 12, the National Labor Relations Board (NLRB) ruled that a regional director misapplied its Specialty Healthcare standard. The International Association of Machinists (IAM) had filed a petition to represent K&N Engineering’s production and janitorial employees, but not its maintenance employees, the latter of which are traditionally perceived to likely be “no” voters. The regional director applied Specialty Healthcareand ruled that the employer had not met its burden of proving that the maintenance employees shared an overwhelming community of interest with the production employees. In this decision, the board confirms that the heightened Specialty Healthcare standard — overwhelming community of interest – only applies if the petitioned-for unit constitutes an appropriate unit when applying traditional community of interest criteria. The NLRB went on to confirm that … [Read more...] about Go Figure – Production and Maintenance Employees Belong in the Same Bargaining Unit
Beltway Buzz, October 13, 2017
Trump Signs New Executive Order Threatening ACA. Following last month’s senatorial defeat on full repeal-and-replace—after which Congress vowed to move on to tax reform and other lower hanging fruit—the Trump administration is trying a new tactic by issuing a comprehensive executive order (EO) on October 12, 2017. Though administration officials intend for the new EO to be the “first steps to providing millions of Americans with Obamacare relief,” critics fear the order might cause the present health care marketplace to implode like the Washington Nationals in the playoffs, resulting in widespread loss of quality coverage . Although details are few at this time, the EO expands the availability of three already existing alternatives to ACA-covered health plans: association health plans (AHPs); short-term, limited-duration insurance (STLDI); and health reimbursement arrangements (HRAs). Each of these alternative arrangements are exempt from certain … [Read more...] about Beltway Buzz, October 13, 2017
CFPB Issues Update to HMDA Small Entity Compliance Guide
The Consumer Financial Protection Bureau has issued a second version of the Home Mortgage Disclosure Act (Regulation C) Small Entity Compliance Guide. The updated version incorporates various changes to the HMDA rule that were issued in August 2017 and published in the September 13, 2017 Federal Register. One of the main changes incorporated in the revised Guide is the temporary increase in the threshold to report home equity lines of credit (HELOCs) from 100 to 500 transactions in each of the two proceeding calendar years. Based on the temporary increase, financial institutions originating 100 or more HELOCs but fewer than 500 in 2018 or 2019 would not be required to begin collecting and reporting HELOC data until January 1, 2020. However, the CFPB may take further action to amend the threshold. … [Read more...] about CFPB Issues Update to HMDA Small Entity Compliance Guide
ERIC Challenges Oregon Reporting Requirements for Retirement Plans
On October 12, 2017, McDermott Will & Emery filed a lawsuit filed on behalf of The ERISA Industry Committee (ERIC) challenging new reporting requirements under Oregon law as applicable to retirement plans subject to ERISA. OregonSaves is the state of Oregon’s state-run retirement program that automatically enrolls employees of employers into individual retirement arrangements (IRAs). Unless an employee opts out of OregonSaves, a portion of each paycheck is added to an IRA account in the employee’s name. Oregon is the first state to establish an auto-enrollment IRA program. An employer that offers a qualified plan is not required to participate in OregonSaves, but only if it has a valid and current certificate of exemption. Obtaining this exemption depends upon reporting to the state of Oregon regarding an employer’s qualified plan. For employers with 100 or more employees in Oregon, this filing is due by November 15, 2017. The ERIC lawsuit alleges that … [Read more...] about ERIC Challenges Oregon Reporting Requirements for Retirement Plans
Attorney General Reverses Obama-Era Protection of Transgender Employees
In an October 4, 2017 letter to all United States attorneys and heads of federal agencies, Attorney General Jeff Sessions announced that the Department of Justice (“DOJ”) will no longer interpret Title VII of the Civil Rights Act of 1964 (“Title VII”) to provide employment protections to transgender individuals. This statement reversed former Attorney General Eric Holder’s position, who previously concluded that Title VII does protect transgender individuals from employment discrimination. Although this letter from the Attorney General is a departure from the DOJ’s prior position, this announcement is not surprising. Earlier this year the DOJ filed a brief, without being asked by the court, in a case before the Second Circuit Court of Appeals in Zarda v. Altitude Express. The DOJ argued that Title VII does not prohibit employment discrimination on the basis of sexual orientation. In that same matter, the current Equal … [Read more...] about Attorney General Reverses Obama-Era Protection of Transgender Employees
USDA Announces $21 Million In Funding For Biobased Products
On September 22, 2017, the U.S. Department of Agriculture’s (USDA) National Institute of Food and Agriculture (NIFA) awarded six grants totaling nearly $21.1 million to support the development of new jet fuel, biobased products, and biomaterials from renewable sources. The funding is provided through NIFA’s Agriculture and Food Research Initiative (AFRI) Sustainable Bioenergy and Bioproducts (SBEBP) Challenge Area. Grant recipients include: University of Arizona, which received $7,026,000 for the cultivation of two desert-dwelling feedstocks, specifically guayule and guar, that can provide biomass year round for biofuel production; University of Florida, which received $7,026,000 for the development of a resilient Brassica carinata-based biofuel and bioproduct supply chain in the Southeast; University of Missouri, Rolla, which received $32,000 to help develop a viable market for guayule resin through laboratory and field research, and expand the research … [Read more...] about USDA Announces $21 Million In Funding For Biobased Products
NYC Issues Additional Guidance on Upcoming Salary Inquiry Prohibitions
Effective October 31, 2017, New York City employers generally may not inquire about or rely upon a job applicant’s salary history in making employment decisions. The New York City Commission on Human Rights (NYCCHR) previously released an Employer Fact Sheet and a Job Applicant Fact Sheet to assist employers and employees with understanding the law. The NYCCHR has now added a “Salary History Law: Frequently Asked Questions” section to its website. The following are key highlights from the fact sheet for employers: The law applies to all employers in New York City, regardless of size. Employers with as few as one employee must comply with the law. The law also is broad in regards to protection. That is, most applicants for new employment in New York City will be covered (e.g., full-time, part-time, internship, and independent contractors without employees). However, the law does not apply to job applicants for internal transfer or promotion with their current … [Read more...] about NYC Issues Additional Guidance on Upcoming Salary Inquiry Prohibitions
Clock Keeps Running on Insurers’ Good Faith and Fair Dealing Obligations in California
Imagine this: Your insurer denied coverage, forcing you to file a lawsuit to secure policy benefits. The insurer retains litigation counsel and begins engaging in unreasonable litigation conduct to attempt to force you to abandon the case and to justify the insurer’s prior denial of coverage. What should you do? Don’t ignore the ongoing bad faith conduct that may be occurring during litigation. In fact, under California law, the implied covenant of good faith and fair dealing in every insurance policy does not cease upon the filing of litigation and instead continues unabated. The standard dates back to 1985, when, in White v. Western Title Ins. Co., the California Supreme Court held “[i]t is clear that the contractual relationship between insurer and the insured does not terminate with commencement of litigation…. It could not reasonably be argued under such circumstances either that the insurer no longer owes any contractual duties to the … [Read more...] about Clock Keeps Running on Insurers’ Good Faith and Fair Dealing Obligations in California
ESMA Highlights Importance of LEI for MiFID II Compliance
On October 9, the European Securities and Markets Authority (ESMA) published a briefing (Briefing) on the importance of the legal entity identifier (LEI) in enabling firms to comply with their obligations under the revised Markets in Financial Instruments Directive (MiFID II) and the Markets in Financial Instruments Regulation (MiFIR), beginning January 3, 2018. The LEI is a 20-digit, alpha-numeric code that enables clear and unique identification of legal entities participating in financial transactions. LEIs, like other identifiers, are needed by firms to fulfil their reporting obligations. In order to obtain an LEI, entities should contact an LEI issuer. The list of LEI issuers is available on the Global LEI Foundation (GLEIF) website. The LEI plays an important role in the new harmonized data-reporting regime under MiFID II, in particular under Articles 26 and 27 of MiFIR, and it is crucial to ensure the quality and consistency of the data reported to EU supervisors. ESMA … [Read more...] about ESMA Highlights Importance of LEI for MiFID II Compliance
