Creating a COVID-19 Playbook: Pennsylvania - April 30, 2020 Webinar - Presented by Reed Smtih
Latest Challenge for Essential Businesses in Pennsylvania: Immediate Compliance with New Workplace Requirements Mandated by the Department of Health - April 17, 2020
- Order of the Secretary of the Pennsylvania Department of Health Directing Public Health Safety Measures for Businesses Permitted to Maintain In-person Operations
- COVID-19 Workplace Safety Questions - Summary provided below by Jay Glunt, Reed Smith
Yesterday the PA Department of Health issued the attached FAQs regarding the 04.15.20 Worker Safety Rule. This appears to be an effort to respond to at least some of the many questions that were immediately raised by this abrupt and disruptive order. There are over 50 FAQs, not organized in any fashion by category. I organized some of the key points into four categories: masks; definition of “probable” case; temperature screening; and enforcement.
- Scarves, bandanas, a disposable face shield, and other face coverings will suffice in place of a mask
- For employers having difficulty obtaining masks, the Department of Community and Economic Development has created a ‘Business-2-Business’ Directory, which identifies potential vendors of masks and other PPE
- An employee does not need to wear a mask if it impedes their vision, if they have a medical condition, or would create an unsafe condition in which to operate equipment or execute a task.
- Bank employees should wear masks at all times. Customers can be asked to remove their masks to reveal their face and then recover their face after the bank employee has identified the customer. This should take place within a minimum distance of six feet
- The Department does not dictate to employers how they should manage their workforce if employees refuse to comply with the Order
- As to workers commuting to work, if the person is driving alone throughout the trip, no mask is needed in the vehicle, however, should they need to travel through a toll-booth or other drive thru they should be wearing a mask
- Employees isolated in their personal office space, when unshared with any other colleagues, do not need to wear a mask. However, when the employee leaves their individual office or has invited a colleague into their office, they must wear a mask
Definition of “probable” case of COVID-19 (triggering response protocols)
A person is considered to have a probable case of COVID-19 if a person has appropriate symptoms (i.e., fever, cough, shortness of breath) and exposure to a high-risk situation, or if the person has a positive antibody test and either symptoms or high-risk exposure.
- Temperature screening applies only apply after an employer is aware of a probable or confirmed exposure
- When there has been a probable or confirmed exposure, all employees at that location must be temperature screened moving forward, not just those employees who were exposed to the probable/confirmed person
- Employers are not required to have a medical professional administer the temperature screenings
- Temperature checks cannot be done through employee self-screening (i.e., employees told to take temp at home)
- There are no acceptable alternative procedures for monitoring temperatures other than on-site at the beginning of each workday after a probable or confirmed exposure
- Temperature screenings should be conducted as to an entire facility/campus, and not just at specific buildings or sections of buildings
- The Order does not specify an end date for temperature screening. According to the FAQs, temperature checks should be conducted for at least 14 days after exposure. DOH recommends routine temperature checks in areas of the Commonwealth with high positive case numbers
- Temperature screening is not required based on confirmed cases that became known before April 15, 2020
- For employers having difficulty obtaining thermometers, the Department of Community and Economic Development has created a ‘Business-2-Business’ Directory, which identifies potential vendors of thermometers and other PPE
- Employee complaints will be taken online only. No hotline complaints. The Department will create a webform for employees to report violations
- There is no waiver process and there are no exceptions (except healthcare providers)
- There are no considerations being made to excuse compliance, even if employers can show they are aggressively working toward compliance. DOH expects full compliance and enforcement begins at 8:00 pm on April 19, 2020.
- Homemade Mask Guidance
- PPG Corrected Article
- Reed Smith Article
Trends in IP Law: Top 3 Things In-House Counsel Need to Know in 2020 - February 6, 2020
Generalist Bootcamp - August 29, 2019
A Guide for Developing and Implementing a Corporate Compliance Program, Charles DeMonaco and Jana Volante Walshak, Fox Rothschild - See also related Article and Key Takeaways
Risk Allocation in M&A: Representations, Warranties, Indemnification and Limitations of Liability, Kevin Wills, Babst Calland
Managing Litigation Partnering With Outside Counsel, Gene Giotto and Laura Reinhart, Cozen O’Connor; and Brian Walters, Matthews International Corporation
Top 10 Employment Law and Executive Compensation Issues in 2019 and Beyond - Jennifer Betts, Ogletree, Deakins, Nash, Smoak & Stewart
Know Your IP: A Refresher on Trademarks, Copyrights, Trade Secrets and Patents, Richard Graham, Reed Smith - See also CLE Supplemental Materials
The Polished Professional Series: Leadership and Ethics –11 Leadership Principles from West Point, the Army, and General Counsel’s Office, Frank DeCarlo, Liberty Tire Recycling - See also: Definition of Leadership, Army Leadership Requirements, 11 Principles of Leadership, 5 Minute Shadow,Definition of Management, Personal After Action Review (AAR) Handout, Principles of Leadership, and PA Rules of Professional Conduct (selected).
Optimizing Outside Law Firm Engagement - January 11, 2018
Basics of Employment Law - January 18, 2018
- Have and follow a policy against discrimination and harassment.
- Conduct training on your policy.
- Under the ADA, engage in the interactive process.
- Be aware of benefits issues/complications when offering a separation agreement.
- Make sure your separation agreements are valid.
- Ensure good communication with respect to leave under the FMLA.
- Be careful when FMLA leave is over and an employee still needs medical leave.
- Don't punish employees by taking away wages owed.
- Make sure you have written commission agreements with your salespeople.
- Preserve computer hard drives when a problem employee leaves.
IP Licensing - January 30, 2018
- Licensing Intellectual Property generally refers to patents, trademarks, and copyrights.
- Licenses are contracts and interpreted as such.
- Carefully defining the duties and obligations of the licensor and the licensee is crucial.
- Pitfalls in standard clauses and definitions may be avoided by anticipating possible future legal issues before they arise.
- Specific and easily reviewable sales landmarks should be employed to ensure the obligation to pay license fees is unambiguous.
- Controls and restrictions in sublicensing in the context of subsidiaries and spin-offs should be explicitly provided in the license.
- Bankruptcy law may allow or prevent rejection of certain licenses post-petition.
- Anti-trust laws may be implicated in licensing agreements.
Arbitration v. Litigation: Pros and Cons of Both - February 6, 2018
- Arbitration has perceived advantages, but sometimes litigation is a better choice
- Reach agreement on confidentiality at the outset; arbitration proceedings are not confidential per se
- The choice of rules and procedures can significantly affect the cost and speed of arbitration proceedings
- Arbitration awards are far easier to enforce in foreign countries; a US judgment may not be recognized in the country where your counterparty resides
- Litigation is preferable for multi-party disputes, as it is difficult to consolidate or join parties in arbitration proceedings
- When considering arbitration, think about your counterparty (where are they located, where are the assets) and the nature of the transaction (where will performance be rendered, what types of disputes may arise, what is your potential exposure/liability).
Q: Can one review an arbitration organization's panel of neutrals before a dispute is submitted?
A: It depends on the organization. JAMS, for example, publishes the names of its panel: https://www.jamsadr.com/neutrals/search?name=&keyword=&location=&practice=arbitration&language. The AAA, on the other hand, does not. However, parties may acquire a list of arbitrators in advance for a fee (e.g., $750 for 5 names; $2000 for 15).
- Be prepared
- Look for warning signs
- Thoroughly investigate
- Preserve evidence
- Consider potential pitfalls and unintended consequences
- Determine the appropriate remedy for your organization
Medical Marijuana and Its Effect on the Workplace in the Commonwealth of Pennsylvania - February 27, 2018
Karen Baillie and Jonathan Skowron of Schnader Harrison Segal & Lewis LLP discussed advice and common pitfalls regarding the preservation and collection of electronically stored information (ESI). Topics addressed included:
a lawyer’s ethical duty to securely handle ESI;
- the dangers of ESI spoliation;
- tips for crafting and implementing effective litigation holds;
- recent amendments to the Federal Rules of Civil Procedure regarding ESI;
- the discoverability of employee social media and personal e-mails; and more.
Ms Baillie and Mr. Skowron also discussed recent case law from around the country and provided insight into how courts have been applying the relevant rules in order to offer practical guidance for managing an organization’s electronic data.
State of Employment and Labor Law - March 13, 2018
Recent Supreme Court IP Cases - April 5, 2018
Ethical Quandaries in Discovery - April 10, 2018
LEGAL HOLD ETHICS
Litigation hold notices not only must be issued in a timely manner, but also must be modernized and adapted to new technological advances.
Employees are not prohibited from participating in identifying and collecting relevant records, but counsel should be involved and have proper oversight into how the records are being collected (approved search terms and adequate QC).
REMOVAL OF ONLINE DATA
Removal of online data is permissible; however, that information must still be preserved.
A party has a duty to preserve all unique relevant information proportional to the needs of the case.
OBLIGATIONS IN JOINT DEFENSE SITUATIONS
Counsel must analyze all potential conflicts before adding new clients.
Workplace Violence: Employer Strategies for Preventing and Responding to Workplace Threats - April 19, 2018
MAP programs fail and brand value is harmed typically as a result of uncontrolled distribution coupled with the presence of unauthorized online gray market sellers.
To defeat this problem, companies must implement each of the these three phases of the comprehensive strategy:
Phase I: Achieving Effective Channel Control and Developing a Foundation for Enforcement Against Unauthorized Sellers;
Phase II: Stopping Gray Market Disruption Through Efficient and Effective Unauthorized Seller Enforcement; and
Phase III: Running a Lawful and Effective MAP Program that, by Virtue of Phases I and II, is Positioned for Success
In doing so, companies will be positioned for success in the e-commerce marketplace.
Contract Drafting - A Litigator's Wish List - May 22, 2018
- Avoid problematic contract terms by including examples, calculations, definitions, and specific provisions regarding how a contractual relationship ends.
- Consider dispute resolution options such as arbitration agreements, a forum selection clause, and liquidated damages provisions.
- Mitigate risk by including exculpatory provisions, limitations on liability, and indemnification language.
Deal with AI - June 5, 2018
- Understand the usefulness and the limitations of AI tools and robots—they don't think like a human.
- All algorithms show bias based on their training material, so transparency and accountability issues will arise.
- The legal implications of reductions in workforces due to increased use of AI within the workplace currently require the same planning as RIFs for other causes, but look for regulatory changes that may arise.
- Tort law is likely to evolve in areas of strict liability and defenses regarding AI products.
- AI may lead to interesting intellectual property issues due to creation of ideas and property without human intervention.
- Watch for development of personhood AI constructs that follow rights given to corporations.
Technology Tactics To Keep Ediscovery Costs in Check - June 13, 2018
Practical Applications of AI Technology in the Law - July 11, 2018
September 13, 2018 - What In-House Counsel Need to Know About Doing Business in Canada
October 4, 2018 - Navigating Trade Issues in the Trump Era
October 16, 2018 - Corporate Venture Capital and Strategic Investments
October 25, 2018 - Master Service Agreements - Buyer and Vendor
November 1, 2018 - Negotiation Workshop
- Getting Past Yes - Harvard Business Review - November 2004
- Key Steps for Successful Negotiation Preparation - ABA - 6-27-2017
- Secrets to Advanced Negotiating - ABA - 8-9-2017
The Future of Artificial Intelligence and the Law - January 10, 2017
Expanding In-House Pro Bono Opportunities - February 2, 2017
Global Intellectual Property - Where Are We Now? - February 7, 2017
Significant Pay Equity Developments - February 23, 2017
1Q Value Challenge Roundtable: A Conversation with Susan Hackett, Legal Executive Leadership - March 16, 2017
Evaluation, Performance & Continuous Improvement
You Have Received a Subpoena - What Now? - April 4, 2017
Workplace Privacy and Cybersecurity - April 19, 2017
US & International IP: Trademarks, Copyrights and Designs - May 16, 2017
The Promise and Peril of Legal Technology (2Q Value Challenge Group Roundtable) - May 18, 2017
Cyber Risks and Human Factors - May 24, 2017
- Effectively Addressing Cybersecurity Risks
- Think Outside the Breach: Six Legal Issues to Consider After Responding to a Cybersecurity Incident
Key takeaways about helping a client avoid an inadvertent waiver of privilege:
1. Avoid forwarding emails, memoranda or letters from outside counsel to non-lawyer consultants.
2. Be selective about:
a. which facts and theories you need to share with the consultant knowing that they might be discovered; and
b. the method of communication (email; phone call; face-to-face.)
3. Warn others to keep lawyer advice and writings within a clearly defined, limited group.
4. Consider whether an attorney should retain the consultant and, if done, be able to articulate clearly why the consultant's input is necessary for the attorney to deliver legal services.
5. For each communication, especially during a crisis, consider:
a. Is the purpose to seek or give legal advice?
b. Who is the lawyer?
c. Who is the client?
d. Is someone else present? If so, why?
e. Should the communication proceed with the current people present?
6. In "team meetings" consider using:
a. Agendas to control topics dealt with at all hands meetings;
b. Separate meetings with more limited attendees to discuss legal aspects of the project or case;
c. If necessary, ask third-party consultants to leave the room if the discussion turns to privileged information.
7. The preservation of privilege is not an end unto itself. It is a factor to be considered (an important one, but not the only one) as the client struggles to meet the challenge presented by the crisis du jour. It is at such times that we as counselors can add value by reminding a busy, perhaps overwhelmed, client about the foregoing principles.
Transgender Issues in the Workplace - September 26, 2017
- While the law on the basis of gender identity is in a state of flux, decisions based on sexual stereotyping are unlawful, and issues affecting transgender employees can raise privacy concerns.
- The number of transgender employees in the workplace is growing, so it is recommended that employers plan now for how they want to address issues relating to transgender employees and applicants.
- Planning includes reviewing policies and procedures which may affect transgender employees and training managers and professionals involved in hiring on how to respond to various requests raised by transgender employees.
The presentation provided attendees with the key components of an effective ethics program and tools to evaluate the effectiveness of existing ethics programs.
Key takeaways included:
- The methodology used to design and implement an effective ethics program, including the use of employee surveys, and understanding of business operations and interviews.
- The importance and components of an effective written Code of Business Ethics and its role in setting the "tone from the top."
- Identification of effective internal controls to monitor the effectiveness of an ethics program including internal auditing, use of a hotline, corporate compliance, disciplinary guidelines, and periodic assessment of the program.
- The importance of annual ethics training with a discussion about its purpose, appropriate scope, and how to ensure participation and completion.
- The purpose of antitrust law is to protect competition not competitors.
- Individuals in management, sales, distribution, and product development need to be mindful of antitrust issues.
- Antitrust law principally focuses on practices that will adversely affect market price, supply volume, or product quality.
- Conduct that has a clear effect of raising price or limiting supply will be automatically unlawful.
- Conduct that does not directly affect price or supply will be assessed for potential pro-competitive effects.
- Competitor communications should be avoided with respect to price, product features, delivery terms, and markets.
- Markets can also be affected by advertising practices, intellectual property, and interference with contracts.
- Corporate counsel draft and interpret contracts everyday and should be aware of how common clauses are interpreted, be careful to avoid common drafting pitfalls and establish internal best practices to ensure commercial agreements meet the needs of their business.
- Assignment clauses may be interpreted differently in different jurisdictions, so drafters should take care to be clear in the intended meaning.
- Specificity in drafting increases the likelihood that courts will interpret a commercial agreement in the manner intended by the parties.
- Common modifying terms such as "knowledge" and "materiality" may be interpreted more broadly or more narrowly than intended and drafters should consider defining or limiting these terms where appropriate.
- Counsel should periodically review their organization's standard form agreements to ensure the forms include applicable updates reflecting changes in law and change in the organization's business.
The program provided an overview of the legal and reputational risks associated with data breaches, an assessment of the current legal landscape, and offered best practices to minimize risks and mitigate potential breaches. Key takeaways included:
- While approximately 80% of businesses have experienced a cybersecurity incident since 2016, some companies have done a much better job than others in mitigating the resulting harm to their reputations and valuations and in minimizing their litigation risks.
- 48 states now have data security breach laws that require companies to notify individuals when personal information is lost or stolen.
- The FTC and several prominent states have recently become more active in regulating and investigating companies’ handling of consumer data.
- Courts have differed on what constitutes sufficient harm to permit a consumer whose data was exposed in a breach to bring a lawsuit.
- Companies can minimize their risks by closely managing vendors that have access to consumer data, regularly reviewing and assessing internal policies and procedures governing sensitive data, creating a dynamic data breach response plan, and following that breach response plan when an event occurs.
Reed Smith recently launched its free to use Breach RespondeRS App. The App was developed completely in-house and assists companies in evaluating a potential data loss incident by applying the breach notification laws of 48 U.S. states to the known facts of any new potential data loss incident. Nearly every state in the United States has a data security breach law, requiring notice when certain personal information is lost, stolen, or misused. However, the many laws differ in small but crucial respects, making it difficult to get to a bottom line. Breach RespondeRS is the first app of its kind and prompts companies to answer basic factual questions from which it provides an immediate response as to the likelihood that notification is required.
10 Things Non-IT Lawyers Should Know About IT Contracts - December 13, 2017
- You need to learn some basic terminology.
- License, Not Purchase.
- You need to understand license scope.
- You need to know where stuff will be.
- You may need to specify what product/service will do.
- You need to understand how product will be implemented.
- You need to establish performance warranties/standards.
- You need to understand how product will be maintained/supported.
- You need to understand data rights.
- You need to think about limitations of liability.