On Friday, March 20, 2020, the Internal Revenue Service (IRS), US Department of Labor (DOL), and US Department of the Treasury published a joint news release (Release) regarding tax credits available to employers who will be required to provide paid sick and family care leave for COVID-19-related purposes under the Families First Coronavirus Response Act
Companies are permitting (or requiring) employees to work remotely right now in response to COVID-19 concerns. This decision, calculated to minimize certain risks, presents new and wide-ranging concerns for the protection of trade secrets. In this “temporary” working remotely environment, employees will have considerable opportunity to access, download, or store sensitive information from company systems and databases. Have you vetted these circumstances or otherwise addressed their use? Think – home printers? Cell phones? Tablets? Personal email accounts? Working in public places such as libraries and coffee shops? Companies may also be inclined to relax otherwise well thought out document management rules or allow for workarounds from the usual security measures in the interest of business continuity. In such an environment, employees may make assumptions that they have wider latitude to email, copy, send, print, or download information, given the circumstances. Compounding these insider risks are a series of unknowns, such as whether your employees’ home networks have security anywhere near on par with in-office network security that could allow outsiders to intrude or access data.
Trade secret litigation has grown exponentially in the United States, in part due to the passage of the Defend Trade Secrets Act (18 U.S.C. § 1836, et seq.) in 2016, and in response to the incredible value embodied in companies’ customer lists, knowhow, processes, formulas, business strategies, salary structures, and numerous other forms of intellectual property. If information is valuable, kept secret, and derives value from its secrecy, then it can be a protectable trade secret — as long as the company puts in place reasonable measures to maintain the secrecy.
Whether your company has a sophisticated trade secret protection plan in place or not, the current work environment will stress policies and procedures. Employees pose the biggest threat to securing a company’s valuable IP, and several remote-working concerns raise long-term policy questions to be addressed over time. But, the action items can’t all wait until a calmer moment. Consider the following immediate steps as your company reacts to recent events.
1. Communicate current obligations and requirements in the remote working environment
If you have a robust work-from-home policy, review it now with a specific focus on maintaining your company’s most valuable secrets. If you do not have such a policy, implement something immediately, even if it is temporary. Set clear expectations on what information the business considers to be confidential or trade secrets and what particular steps employees are required to follow when using or accessing that information. Not only does it make business sense to keep employees on notice of company policies and procedures, but federal case law under the DTSA has made clear that employees can only be held to trade secret obligations where they are specific and clear, such that employees are “on notice” of the trade secrets.…
ICE Releases Guidance Relaxing I-9 Requirements For Certain Employers
The US Department of Homeland Security (DHS) has issued guidance that provides flexibility for certain employers to comply with Form I-9 requirements due to COVID-19.
Which employers does the new guidance apply to?
The relaxed requirements apply only to employers and workplaces operating remotely due to COVID-19. If there are employees physically present at a work locations, no exceptions will apply. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate on a case-by-case basis.
Effective Friday, March 20, 2020, Governor Newsom imposed a California-wide Shelter-in-Place via Executive Order (“Executive Order”). This Executive Order comes on the heels of numerous shelter-in-place orders issued by individual counties and cities across the state in the past week. The Governor’s Executive Order requires all individuals living in California to stay home or at…
Unfortunately, the economic reality of the COVID-19 pandemic, including recent shelter in place orders in California, is forcing employers to implement a range of cost-cutting measures – furloughs, temporary office and location closings, and layoffs. As employers continue to adjust operations during these extraordinary times, it is essential to remember the notice obligation under the…
Everything You Need To Know Right Now
After a “warp speed” Senate vote overwhelmingly approving the Families First Coronavirus Response Act (FFCRA), President Trump signed the FFCRA into law yesterday. The legislation is historic; it was not only enacted in days instead of the usual months, but for the first time in US history, many…
On March 18, 2020, Oak Park, Illinois — one of the closest suburbs to Chicago with a population of approximately 60,000 — issued a “Shelter in Place” order (the “Order”) for all Oak Park citizens and businesses in response to the COVID-19 pandemic. This Order comes after a resident was found to have contracted the virus in the western part of the town earlier in the day. The full text of the Order may be found here.
The Order requires all residents to “shelter at their place of residence” from March 20 through and including April 3, although the Order may be rescinded before April 3 or extended beyond April 3. Crucially, all non-essential businesses “[a]re required to cease all activities at facilities located within [Oak Park]” except for the performance of duties necessary for maintaining the value of a business’s inventory, ensuring business security, processing payroll, and attending to employee benefit matters (referred to as “Minimum Basic Operations” in the Order). The Order also imposes broad restrictions on travel. All travel is prohibited unless deemed: (1) “Essential Travel”; or (2) necessary (a) to perform work for an “Essential Business”; or (b) to perform an “Essential Activity.”
There are several important carve-outs in this Order.
First, businesses may continue operations consisting exclusively of employees or contractors performing activities at their own residences. In other words, employees may still work from home even if the employer is not an “Essential Business” (as defined below) and must close its physical office or retail space located within Oak Park. And non-essential businesses may still engage in Minimum Basic Operations as defined above.
Effective Tuesday, March 17, 2020, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties imposed Shelter-In-Place Orders. These Orders require all individuals ordered to shelter in place in their residences and for businesses to cease all activities at facilities located within the listed counties and with certain exceptions for: (1) “Essential Businesses” (as defined by the Orders); and (2) “Minimum Basic Operations” for businesses that do not qualify as “Essential Businesses.” The Shelter-In-Place Orders currently remain in effect through April 7. At this time, Napa, Solano, and Sonoma counties have not issued similar mandates.
The intent of the Orders is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of Coronavirus (also known as COVID-19) to the maximum extent possible. Although each of the seven Bay Area counties issued a separate Order, the substantive terms of the Orders are the same.
What Businesses are Covered by the Orders?
All businesses with a facility in the above-listed counties, except for “Essential Businesses,” are covered by the Orders. The Orders list 21 categories of Essential Businesses, ranging from healthcare operations and hardware stores to businesses that ship or deliver goods directly to residences. Employees of Essential Businesses may perform travel to/from and related to the Essential Business. The full list of Essential Businesses may be found here:
Current and Anticipated Requirements
The stark reality of government quarantines, mass-gathering bans, school closures, public health emergencies, and travel restrictions is impacting the American workplace and workforce in truly unprecedented ways. Every day, US employers institute facility closures, remote-working, furloughs and, in some cases, layoffs in response to the economic and health impacts of the…
Encouraging employees to wash their hands is no longer enough!
As anticipated in our last alert, the World Health Organization (WHO) has now declared the COVID-19 virus a pandemic, changing the legal landscape for employers in terms of how they navigate the impact of the outbreak on their workforce. As such, we are circulating an…