After an initial COVID-19 related delay, the sweeping new NLRB representation election rules that reversed the Obama-era “quickie” election process were about to go into effect on May 31, 2020.  However, an eleventh-hour district court order struck down a significant portion of the rule as unlawfully implemented for failing to follow proper administrative procedure, casting doubt on when, if at all, the new rules will apply.  Details of the planned changes are outlined in our reporting on the NLRB’s initial announcement of proposed amendments, as well as updated rules regarding election rules and procedures here and here. On…
As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases. The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules from such decisions due to the varied workplaces – even more so now during the COVID-19 pandemic, where workplaces are transforming and new safety guidelines are issued. What may present a legitimate workplace safety concern in one setting, may be deemed pretext in another.…
The unprecedented level of uncertainty caused by COVID-19 is expected to trigger portfolio company and fund level liquidity issues as fund sponsors grapple with  unexpected need for additional capital in segments of their portfolios, whether due to stalled public markets, lack of available credit,  or otherwise.  In addition, we expect segments within the limited partner (“LP”) community will seek sources for liquidity due to decreased realization events and declining public markets, while we expect others (particularly secondary funds, preferred equity providers and other asset managers) will view the current disruption as an attractive opportunity to put available capital to work. …
There has been much discussion over the past year or so about the UK government’s proposal to make changes to the application of the off-payroll working (or IR35) tax rules to private sector end clients so as to shift certain employment status assessment and, depending on the circumstances, employment tax payment obligations from the worker’s intermediary entity (or personal service company) to the private sector end client. These rules were due to come into effect on 6 April this year but, as a result of the COVID-19 crisis, have now been delayed until 6 April 2021. One of the consequences…
States around the country have activated their price gouging statutes due to the COVID 19 pandemic.  These temporary restrictions typically go into effect upon the declaration of a local, state or national emergency.  However, even though all the emergency declaration began at roughly the same time (the first week of March 2020), they likely will end at very different times. States are taking much different approaches to their predicted end-dates for their price gouging restrictions.…
On 27 May 2020, the UK Financial Conduct Authority (“FCA”) published the latest issue (“Issue 63”) of its Market Watch newsletter focusing on market conduct and transaction reporting issues. Market Watch 63 sets out the FCA’s expectations of market conduct in the context of increased capital raising events and alternative working arrangements due to the current pandemic. The newsletter is intended to highlight that firms need to be more vigilant where there is an increase in the likelihood of potential leaks and rumours in the current market, and as more businesses are heading to the market to recapitalize…
The proposed Chicago COVID-19 Anti-Retaliation Ordinance (the “Ordinance”) that was the subject of our post on April 27, 2020, has now become law. The Ordinance prohibits Chicago employers from retaliating against employees for obeying a public health order requiring an employee to remain at home as a consequence of COVID-19.  This reflects a growing trend among states and local governments in enacting protections against retaliation amid the COVID-19 pandemic. *      *      * Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management…
A Reuters article published on May 26, 2020 reports that the SEC has experienced an uptick in complaints amid the COVID-19 pandemic.  According to the article, the SEC received about 4,000 complaints from mid-March through mid-May – a 35% increase from the previous year.  With an abundance of tips at its disposal, the SEC is eager to investigate and prosecute COVID-19 related misconduct. The article discusses how the COVID-19 pandemic has incited a wave of misconduct, ranging from loan and healthcare fraud to the production of counterfeit and substandard medical supplies, across a wide range of industries.  The article quotes…
The CDC has issued interim guidance on antibody testing for the SARS-CoV-2 coronavirus that causes COVID-19. While the guidance is primarily directed at clinical and public health entities, it does contain some information relevant to employers, educational institutions, and other entities who may be considering whether and to what extent such antibody testing may play a role in its reopening plans. Specifically, the guidance states that, although the presence of anti-SARS-CoV-2 antibodies when detected using a reliable antibody testing method “likely indicates at least some degree of immunity, until the durability and duration of immunity is established, it cannot be…
While most of society struggles to flatten the curve, treat the sick and restart the economy, regrettably, some bad actors have used the COVID-19 emergency as an opportunity to exploit vulnerabilities for personal gain. One of the key areas of increased exposure is cybersecurity. Companies should review their risk management and insurance arrangements now to ensure that they are properly protected in the event they become the target of cyber crime. The rapid and unexpected onset of the coronavirus pandemic resulted in massive changes in the way we do business. The transition from secure office infrastructure to working from home…
Creating a grantor retained annuity trust (commonly referred to as a “GRAT”) is a relatively simple way to transfer property to your children at virtually no gift tax cost. In order for a GRAT to be successful, your retained annuity from the GRAT must increase in value greater than a hurdle rate. The hurdle rate is linked to the market yield on U.S. government-issued debt, which is largely determined by the Federal Reserve’s monetary policy. The hurdle rate for June 2020 has dropped to 0.6%, which is a new all-time low. Thus a super low interest rate combined with the…
The Illinois House of Representatives recently introduced House Bill 5769, which would create the Illinois Personal Protective Equipment Responsibility Act (the “Act”).  The Act would require “essential employers” to provide personal protective equipment (“PPE”) to both employees and independent contractors.  The Act defines an “essential employer” as an employer engaged in an “essential business” as defined by a disaster proclamation issued pursuant to Illinois’s Emergency Management Act or any executive order issued in furtherance thereof. At a minimum, essential employers would be required to provide face coverings and require that such coverings be worn “when maintaining a 6-foot social…
Price gouging enforcement and litigation is front and center for company counsel and business managers nationwide. Our weekly round up highlights some of the most relevant news and information to our clients and friends. Cattle Industry Price Gouging Complaints, an Oklahoma Congressman, and the Secretary of Agriculture—Battling it out on the Western Front Congressman Markwayne Mullin of Oklahoma’s Second District, who is both a rancher and a restaurant owner, is publicly calling for the resignation of Secretary of Agriculture Sonny Perdue over alleged price gouging in the cattle industry. In a public video statement the Congressman said that he is…
During the early days of the coronavirus pandemic, the Maryland legislature passed over 600 pieces of legislation, many of which relate to employment issues.  Several of these bills, including ones that prohibit use of facial recognition technology, wage history inquires and hairstyle discrimination, and revise the state’s mini-WARN act, recently became law when the deadline for their enactment passed without Governor Larry Hogan’s veto.  These laws, which are detailed below, will take effect on October 1, 2020. Prohibition Against Use of Facial Recognition Technology Quick Hit: Maryland now prohibits using facial recognition technology during the job interview process, absent an…
Originally published on April 14, 2020. Last updated as of the evening of May 25, 2020. Since the enactment of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) on March 27, 2020, the U.S. Small Business Administration (the “SBA”) and the U.S Treasury Department (“Treasury”) have issued a sizable number of rules and additional guidance to implement the CARES Act’s marquee small business loan component – the Paycheck Protection Program (the “PPP”). This up-to-date guide summarizes the key terms of the PPP, including with respect to the forgiveness aspect of the program, and addresses various issues and…
Introduction In light of significant deterioration in cash flows and asset values in many classes of real estate caused by the COVID-19 pandemic, many real estate lenders are finding some of their otherwise well-underwritten loans to be non-performing. The capital markets are generally not open for hospitality and retail properties and, with respect to other property types, debt financing is only available if there is relatively low leverage, significant debt service coverage and strong sponsorship. Adding fuel to the fire, a number of debt funds, mortgage and other hybrid REITs need to raise liquidity in order to satisfy margin calls,…