Seth Ford

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For those who missed it while getting an early start to their Labor Day weekend, late last week a federal judge closed the door on regulations that would have significantly changed overtime exemptions after previously leaving that door ajar.

Most employers became very familiar — and concerned — with the…

In Part 1 and Part 2 of this series of posts, we began the discussion of what the Defend Trade Secrets Act (DTSA), enacted in May 2016, really means for employers in defending their trade secrets.  In particular, we addressed some of the “good” the DTSA offers for employers, including:  (1) a clear path to federal court, (2) ex parte seizure orders and (3) international application.  In Part 3, we addressed the bad — four potential downsides of the DTSA for employers, including mandatory disclosure of whistleblower protections.  In this final Part 4, we outline questions left unanswered by the DTSA which are worth watching for future developments.

In Part 1 and Part 2 of this series of posts, we began the discussion of what the Defend Trade Secrets Act (DTSA), enacted in May 2016, really means for employers in defending their trade secrets.  In particular, we addressed some of the “good” the DTSA offers for employers, including:  (1) a clear path to federal court, (2) ex parte seizure orders and (3) international application.  In this Part 3, we address the bad — four potential downsides of the DTSA for employers.

In Part 1 of this post, we began the discussion of what the Defend Trade Secrets Act, passed in May 2016, really means for employers in defending their trade secrets.  In particular, Part 1 addressed some of the “good” the DTSA offers for employers, particularly:  (1) a clear path to federal court, (2) consistency in application, and (3) ex parte seizure orders.  In this Part 2, we address the rest of the good — five more positive benefits of the DTSA for employers.

Signed into law on May 11 of this year, the federal Defend Trade Secrets Act of 2016 (“DTSA”) amends the Economic Espionage Act to create a private civil cause of action for trade secret misappropriation, and it has been hailed by the New York Times and other authorities and media outlets as the “most significant expansion in federal intellectual property law in the past 70 years.”  Yet, for decades, state trade secret laws have already been a fundamental source of protecting the confidential information of business in the United States. 

The Labor-Management Reporting and Disclosure Act requires labor organizations, consultants, and employers to file reports and disclose expenditures on labor-management activities. For over fifty years, the DOL has interpreted the provisions of the Act to require reporting only for what are known as “direct” persuasive activities, such as when employers hire consultants or attorneys to personally and directly deliver counter-union messages to employees. Under the Act, mere “advice” pertaining to persuasive activities is not reportable. The advice exemption permitted law firms and employers to avoid the reporting obligations since the law firms were not actually engaged in direct persuasion, but only in advice. However, in March of this year, the DOL set forth a Final Rule significantly broadening what is reportable by employers and consultants in an effort to require reporting on activities that have been viewed as “advice.” Significantly, the Northern District of Texas today issued an order preliminary enjoining the Department of Labor from enforcing its Final Rule until a lawsuit challenging the Final Rule can be fully litigated. Unless that preliminary ruling or other pending challenges to the Final Rule are successful and upheld on appeal, the Final Rule will apply to agreements entered into on or after July 1, 2016. Two important updates concerning the Final Rule are covered in this alert, one of which necessitates an employer taking action before July 1, 2016.

Online forums where anyone can post comments, reviews, or opinions about a company are growing in popularity.  As a result, employers are finding postings by former employees who may have left on “bad” terms and now share their unhappy feelings with the world.  Often such postings – while annoying and potentially embarrassing – are well within an employee’s rights.  Companies need to remember that the former employee will likely soon grow tired of the cyber smear campaign, and such posts do not often cause meaningful damages (particularly the type that can be proven in court).  Additionally, where such posts are on sites like Twitter or Facebook, the daily volume of postings means that any bothersome posts get moved down the feed pretty quickly.  Most of the time the employer’s best bet is to follow the advice of Disney’s “Frozen” and just “Let it Go.”