Alerts & Newsletters

Earlier this month, the DOL published a Notice of Proposed Rulemaking (“NPRM”) to increase the minimum salary level most exempt employees must be paid in order for them to be deemed exempt from the FLSA’s overtime pay requirements. The comment period for the proposed changes will close in late May, and it is anticipated that the salary level rules will be finalized and implemented in early 2020. This NPRM was “big news,” particularly in light of the 2016 national injunction barring the implementation of the Obama Administration’s attempted changes to the regulations.

The new Michigan Paid Medical Leave Act soon becomes effective—on March 29, 2019. By then, employers employing 50 or more employees must have policies in place allowing employees to use up to 40 hours of paid time for various specified reasons.

The much awaited revised new regulations governing who qualifies for the FLSA white collar exemption has finally been revealed by the Department of Labor. It did so on March 8 by publishing an NPRM (“Notice of Proposed Rule Making”).

The fallout from the Illinois Supreme Court’s January 25, 2019, opinion in Rosenbach v. Six Flags Entertainment Corp., 19 IL 12316, continues. Rosenbach settled the dispute of who qualifies as an “aggrieved person” under the Illinois Biometric Information Privacy Act (“BIPA”), and in doing so opened the floodgates for this litigation to proliferate.

On January 19, 2019, federal Magistrate Judge Kandis Westmore of the Northern District of California denied the Government’s application for a search warrant that sought: (1) “all digital devices” present at a California residence; (Order at 3), and (2) that “any individual present at the time of the search to press a finger (including thumb) or utilize other biometric features… for the purposes of unlocking the digital devices found in order to permit a search of the contents,” (Order at 1).

On February 14, 2019, the United States Patent and Trademark Office (PTO) issued a Notice of Proposed Rulemaking (“NPRM”) to require foreign domiciled trademark applicants and registrants to be represented by a licensed U.S. attorney at the PTO. The comment period on the NPRM is open until March 18, 2019.

The U.S. Department of Homeland Security (DHS) has announced it will issue a new Final Rule on January 31, 2019, reversing the order by which the USCIS will select H-1B applications submitted under the statutory/numerical cap and introducing an electronic registration requirement for employers filing H-1B cap-subject petitions. The reverse-selection provisions of the rule will go into effect on April 1, 2019.

On January 23, 2019, the Chicago City Council approved a significant amendment to the transit-oriented development provisions of the Zoning Ordinance. Prior to the change, the Chicago Zoning Ordinance, through increases and reductions of certain development standards, allowed for larger, more dense buildings on properties in close proximity to CTA or Metra train stations. Under the amendment, these development enhancements are now available for properties that are on or near high traffic CTA bus lines. The change promises to open up greater development opportunities across the City. 

The fourth quarter was a busy one for Dykema’s M&A practice. In total, we closed 14 transactions, representing the buyers in eight deals and the sellers in six. The industries covered included liquor distribution, healthcare, automotive, technology, transportation logistics, dental service organizations and death care, and the average deal size was $21M.  

Beginning on January 1, 2019, Illinois employers will—for the first time—have to reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” “Necessary expenditures” are defined as “all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.” The new law amends the Illinois Wage Payment and Collection Act (“IWPCA”).

On Monday, December 17, the California Supreme Court issued its ruling in Dr. Leevil, LLC v. Westlake Health Care Ctr., No. S241324, 2018 LEXIS 9546 (Cal. Dec. 17, 2018) that an owner acquiring title to real property under a power of sale contained in a deed of trust must perfect title before serving the three-day written notice to quit required by California Code of Civil Procedure section 1161a(b). 

In 2015, the Department of Justice (“DOJ”) announced a more aggressive stance requiring individual accountability in civil and criminal investigations of corporate misconduct. This policy change, set forth in a memorandum issued by Deputy Attorney General Sally Quillian Yates (the “Yates Memo”), announced that companies seeking cooperation credit were required (1) to undertake their own investigations, (2) to identify all culpable individuals, and (3) to produce material facts or employee statements related to the individuals’ involvement in the corporate violations. Now, the DOJ is lessening this burden and shifting back towards its pre-Yates Memo discretionary policy.

Before 2018 comes to a close, it may be worthwhile to review the state of your tax, estate, and charitable giving plans.

On December 4, 2018, the Michigan Legislature pared back the minimum wage and paid sick leave laws it passed last September in an effort to preclude those issues from being on the November ballot. Had the Legislature not adopted the language of the ballot initiatives legislation, the measures would have been on the November ballot and it would have needed a vote of three-fourths of each house to amend the law if adopted by the voters. By enacting the proposals directly, it only needed a simple majority to amend those laws. The strategy of using a lame-duck legislative session to amend the laws by a simple majority it passed just two months earlier has been viewed as controversial, but the outcome is welcomed by many in the business community.

Executives and in-house counsel should be aware that traveling with sensitive data can lead to its seizure—with potentially severe consequences worldwide. Recently, Parliament in the United Kingdom seized from a traveling executive a USB drive containing data that had been produced in a United States lawsuit between Six4Three, a software company, and Facebook. Put simply, that data was in the wrong place at the wrong time.

As in previous years, the California legislature kept  busy in 2018. As a result, a number of new and noteworthy employment laws will go into effect on January 1, 2019, and beyond.

In the third quarter, Dykema closed eight transactions, totaling $145 million in deal volume. Year-to-date, that puts us at 31 closed deals for more than $805 million in deal volume. The fourth quarter is normally our strongest quarter for deal closings, so we expect this momentum to continue.

With the new Democratic House majority and Republicans maintaining control of the Senate, Washington, D.C., now enters a period of divided government in the run up to the 2020 presidential election. We will no doubt see a politically-charged and highly partisan environment where both parties will be turning out messaging in preparation for 2020, not only in the form of legislation, but also through committee hearings and investigations in the House. 

On October 12, 2018, Assistant Attorney General Brian A. Benczkowski spoke at the NYU School of Law where he announced new guidelines regarding the procedures governing corporate compliance and monitorships. While most of the attention has been on the new criteria for selecting corporate monitors, AAG Benczkowski also announced that the DOJ will not be hiring new corporate compliance counsel within the Criminal Division, a break from the practices of the previous administration.