A sweeping proposed bill (A1278B) amending the New York Labor Law to make unlawful any non-compete agreement has passed the state Assembly and is heading to New York Governor Hochul. If signed, the bill would cover all non-compete agreements entered into or modified 30 days after the bill’s effective date. Notably, the pending bill does not require the rescission of existing non-compete agreements. The proposed bill provides that all non-compete agreements purportedly covering any person who performs work or services for another person (employee or contractor) are void and permit an affected individual to bring a civil action against an… Read more
In an 8-1 decision, the United States Supreme Court ruled for the employer in Glacier Northwest v. Teamsters, Local 174 in a case that has significant implications for a union’s right to strike and for the targeted employer to respond to the strike with a court action for property damage. In Glacier, the Court addressed whether the National Labor Relations Act (“NLRA” or the “Act”) preempts an employer’s state tort claim against a union “alleging that the Union intentionally destroyed its property during a labor dispute.” The Court held that the NLRA does not protect a union from state claims… Read more
The United States Patent and Trademark Office (USPTO) has recently issued an alert warning of scams being perpetrated where a caller impersonates an employee of the USPTO. In a tactic called “spoofing,” the scammers trick phone networks into displaying caller ID that is different from their actual information. To obtain more information on reporting spoofed calls and protecting yourself from scammers, read the USPTO’s recommendations. You may also contact a member of SGR’s Intellectual Property Practice.
In 1989, the Second Circuit Court of Appeals, in what has become known as the Rogers Test, held that a suit for trademark infringement based on the use of an accused mark in an expressive work (and/or a use in its title) should be dismissed at the outset unless the trademark owner could show that the challenged use “has no artistic relevance to the underlying work” or the challenged use “explicitly misleads as to the source or content of the work.” But the Second Circuit made clear that its Rogers Test was not a general rule and was not to… Read more
On May 30, 2023, the General Counsel of the National Labor Relations Board (“NLRB”) issued a memorandum (the “Memorandum”) to all NLRB Regional Directors, Officers-in-Charge, and Resident Officers concluding that most non-compete provisions contained in employment agreements and severance agreements violate the National Labor Relations Act (the “Act”). The Memorandum provides that the General Counsel “believed” non-compete provisions interfere with non-supervisory employees’ exercise of their Section 7 rights under the Act, and “[e]xcept in limited circumstances, . . . the proffer, maintenance and enforcement of such agreements violate Section 8(a)(1) of the Act.”[1] The General Counsel takes the position that… Read more
New York City amended its Human Rights Law, effective November 22, 2023, to prohibit discrimination on the basis of height and weight, further expanding the list of protected characteristics under New York City law. The law applies to all New York City employers and prohibits consideration of height and weight in employment decisions with two limited exceptions — where height and weight factors are: (1) required by applicable law or regulation; (2) permitted by a New York City Commission of Human Rights regulation identifying particular jobs or categories of jobs for which a person’s height or weight (a) could prevent… Read more
The United States Department of Labor’s Wage and Hour Division (WHD) recently published opinion letter FMLA2023-2-A clarifying how to calculate the amount of leave used when an employee takes Family and Medical Leave Act (FMLA) leave for less than a full week during a week that includes a holiday. Specifically, WHD issued FMLA2023-2-A in response to a request for an opinion concerning whether an employee who takes leave during a week that includes a holiday is (a) using a fraction of the employee’s usual workweek (as if the workweek did not contain a holiday), or (b) using a fraction of… Read more
The United States Department of Labor (DOL) Wage and Hour Division recently issued Field Assistance Bulletin No. 2023-02 (FAB) to provide guidance to Wage and Hour Division (WHD) field staff regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and its enforcement, including new posting requirements for employers covered by the Fair Labor Standards Act (FLSA). The PUMP Act requires FLSA-covered employers, with limited exception, to provide all nursing employees, exempt or non-exempt, with reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk… Read more
Sackett v. EPA On May 25, 2023, the U.S. Supreme Court issued a decision in Sackett v. EPA, a closely watched case regarding the jurisdictional reach of the federal Clean Water Act (CWA). Specifically, the Supreme Court addressed the test to be utilized for determining whether wetlands are “waters of the United States” within the scope of the CWA. In Sackett, the plaintiffs Michael and Chantell Sackett were backfilling their property with dirt and rocks in preparation for building a house when they received a compliance order from U.S. EPA informing them that their backfilling violated the CWA because their… Read more
In its “Warhol/Prince” opinion issued on May 18, the U.S. Supreme Court has clarified that copyright protection, at least for pictorial, graphic, and sculptural works (specifically photographs), includes the exclusive right of the copyright owner to prepare and to authorize the preparation of derivative works that transform the owner’s original copyrighted work. The Court has further clarified that the first of four statutory factors that determine whether an accused work is protected “fair use” focuses on whether the specific use of the accused work has a further purpose or a different character, which is a matter of degree, that is sufficiently… Read more
