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Editor’s Note: With the arrival of our Native American Interns Kele Bigknife (Michigan Law) and Heather Torres (UCLA Law), I asked a colleague at the University of San Diego how law schools were doing in attracting and keeping Native American law students. Was the Native American Bar increasing? I learned that law schools are still struggling to attract Native American law students. Guest blogger Kiyana Kiel, Esq., USD School of Law Director, Academic Success & Bar Programs, provides insight into this problem, and hope for improvement. Diversity is a hot topic in legal education, specifically, the lack of diversity at American law schools. Though law school admissions professionals strive to build diverse student bodies, the recruitment (and retention) of minority candidates remains stagnant. My experience on admissions committees and anecdotal evidence from other law school admission professionals identifies a primary problem: there are not enough minority candidates. Click here to read the full article.

On May 23, 2016, the Department of Labor (DOL) published the final rule colloquially termed the “Overtime Rule” as part of the Fair Labor Standards Act (FLSA). The new rule raises the salary threshold for overtime exempt workers to $47,476 per year, requiring salaried employees paid less than this amount to be paid for overtime work regardless of their work classification. The new rule raised the threshold from $23,660 per year, broadening the scope of salaried employees entitled to overtime pay by 4.2 million workers. Click here to read the full article.

There are many incentives for land developers to challenge the government’s determination of what are “waters of the United States” under the Clean Water Act—mainly the prospective savings of significant dollars in permits, mitigation and fees. This past May, the Supreme Court ruled in the case of US Army Corps of Engineers v. Hawkes Co. that federal determinations of protected waters are subject to early judicial review—providing for judicial review without waiting for final agency action. Click here to read the full article.

The Federal Gates Are Open for Trade Secret Owners Companies can now bring civil actions for misappropriation of their trade secrets in federal courts through the Defense of Trade Secrets Act 2016 (“DTSA”). The DTSA law allows companies to more easily prevent former or current employees and competitors from misappropriating customer lists, pricing lists, proprietary business methods, algorithms, know-how, recipes, formulas and other protectable trade secrets. Some procedural holes that were present under the old trade secret regime have been filled by the DTSA, signed into law last week by President Barack Obama. Click here to read the full article.

Effective April 1, 2016, more California employers will have to comply with even more employment law requirements. The newly promulgated regulations significantly expand the reach of the California Fair Employment and Housing Act (“FEHA”) and impose new requirements on California employers. In order to ensure compliance with the new regulations, employers should review their policies and practices and make the necessary updates. Click here to read the full article.

Social media has permeated almost every aspect of our daily lives and sites such as Facebook, Twitter and LinkedIn can be used as powerful tools in building an organisation’s profile. Many businesses are using social media whether it be for marketing, advertising or recruiting. However social media can create some huge challenges for business both within and outside their organisation, Claire McDermott and Barry Connolly of Flynn O’Driscoll, Dublin, look at some of the internal and external exposures which businesses have when it comes to social media. HAVE A POLICY: Employers are urged to implement a social media policy to protect their business and to prevent costly misunderstandings at a later date. Employers should have a clear and straight forward policy setting out the conduct they expect from their employees when interacting on social media sites when it is clear that the employee is working for them. There are several perspectives from which an employer must consider the risks surrounding social media and these should all be covered in a social media policy. 1. Protecting the Brand How the company manages access to its social media sites and the content to be included thereon should be monitored and controlled to ensure that the company reputation is protected at all times. Content to be uploaded on social media in the name of the company should be signed off by management before it is published. Passwords to access social media should also be strictly controlled, employment contracts should also provide for the return of all login details along with all company property upon termination of employment. Once it is published on social media it is instant and out there in the public domain for all to see. 2. Company Contacts and Clients The employer needs to put in place some contractual provisions to ensure that the company’s client lists and business contacts remain its own property. The social media policy should clarify that either the employee is not entitled to add company contacts to their personal social media accounts or in the alternative it should be clear that client contacts are the property of the company and any social media accounts used by the employee for company business are the property of the company to be returned upon termination of employment. Companies should in the normal course consider appropriate contractual restrictions on employees post-termination, such as non-compete and non-solicitation provisions. It is quite common for us to be consulted by an employer client seeking advice having heard, after a former sales employee has joined a competitor, that most of its client contacts have been contacted via LinkedIn or other sites suggesting meetings from the employee in their new role. 3. Productivity Studies suggest that employees are spending upward of an hour a day on social media sites, whether through their own devices, such as smart phones or tablets or by accessing social media sites on their work computers. The company should, where appropriate, block access to social media sites on their own network. In relation to employee’s own devices, the company’s social media policy should make it clear that employees are prohibited, during working hours, to access social media and/or use their mobile devices. 4. Disciplinary Issues The possibility of disciplinary issues arising through inappropriate use of social media is far reaching and very serious. Employers should ensure that their social media policy is linked to their disciplinary policy so that any breach of the social media policy which generally can damage the company reputation can be dealt with accordingly. If there is no social media policy, Irish employment tribunals have held that the employee cannot be dismissed or disciplined for misuse of social media. Although it is important to ensure the proper use of social media inside a company, there are still several legal risks associated with social media from outside of the company. Unfortunately, in these cases, the company is likely to have less direct control (if any) on the use of such social media. However there are several actions a company can take in order to ensure that it protects itself from such risks: A. Social Media platforms will have their own Terms of Use and Privacy Policies Just as the company will have its own Terms of Use, social media platforms will have their own set of terms. These policies will have rules that the company should be aware of. Some areas to consider include: – (i) are there any restrictions on what can be published on the company’s social media account? (ii) who will own any intellectual property on the social media account? (iii) what terms apply to the processing of any personal data collected through a social media account? For example, Facebook have a separate set of guidelines where a company may use a Facebook Page to advertise or promote their brand. These include specific requirements on Page names, advertising on a Page, organising of promotions through a Page and an obligation to comply with data protection legislation where any personal data from users is collected through Facebook. B. Beware of User-Generated Content – Prepare to Take-down if necessary Whether the company has a presence on a social media platform or facilitate user contributions on its own website, it is imperative that they are aware of the possible dangers associated with users posting content online. Possible risks can range from causing damage to a brand’s reputation, breaching intellectual property rights or defaming a third party. Online forums hosted or otherwise arranged by the company should be moderated to ensure that content does not infringe another party’s rights. Under Irish and European Law, such companies that essentially act as hosts for such content (intermediaries) may be equally liable for it, unless they act expeditiously to remove or disable access to it, once they are made aware that it is unlawful. In these circumstances, it is essential that the company have in place a clear policy and procedure for removing such unlawful content. In many cases, the third-party social media platform will have their own policy, however, where possible, the company should also act to remove any such content in order to avoid any damage being associated with the company. There may also be circumstances where the company will want to have certain content removed where it infringes its own rights. In these circumstances, the first response is usually to follow the take-down procedure of the relevant social media platform. Unfortunately, these procedures are not always clear to follow, however, before making any formal complaint, it is usually more efficient to go through a social media platform’s own takedown policy in advance. It can save costs in having to consult lawyers and can (sometimes) prove to be an effective way of tackling infringement of the company’s rights online. Companies should feel confident about embracing social media, throughout its business. It represent a powerful tool and can give a company more reach than it has ever had before. However, companies should look both inside the company and outside of it in order to ensure that is protected, when it comes to social media. Barry Connelly can be contacted at Flynn O’Driscoll at BarryConnolly@fod.ie and Claire McDermott at ClaireMcDermott@fod.ie.

Last week, McDonald’s and the National Labor Relations Board (NLRB) faced off in an administrative court to determine whether the fast-food chain is liable for the actions of its franchisees as a joint employer. The case arose out of hundreds of complaints filed by fast food workers alleging they were illegally threatened, disciplined, or fired after protesting for collective bargaining and a $15 minimum wage. The NLRB backs these workers and charges that the McDonald’s corporation should be held equally liable for any violations a franchisee commits against its employees. If the NLRB prevails, the ruling will overturn decades of precedent, disrupting the expectations of thousands of businesses. Significantly, it would allow workers to unionize and bargain directly with corporate headquarters, and would expose franchisors to a great deal of liability in labor matters. Click here to read the full article.

The General Manager of a legal entity, incorporated in the UAE, whether located within the on-shore jurisdiction or within one of the many free-zones, is generally entrusted with the sole responsibility for all executive decision making and day-to-day operations of that legal entity. The position of a General Manager in the UAE can be contrasted with the position in common law jurisdictions, where the entire board of directors would often be responsible to exercise executive control collectively. The General Manager or a UAE entity therefore unilaterally acts as a “one man” board of directors. The powers and authority of a General Manager are provided for in the constitutional documents of the legal entity, which may be as broad or as restrictive as the shareholders may desire, however these may be supplemented by way of a power of attorney from the shareholders or partners if necessary. While the shareholders of a legal entity are protected from liabilities generated by the company during the course of its business and/or obligations of that legal entity due to the limited liability nature of LLCs in the UAE, very little protection is afforded to the General Manager. Given the extensive powers and authority that are enjoyed by a General Manager, the laws in the UAE impose both civil and criminal liability on the General Manager for circumstances in which the company may find itself through no direct fault of the General Manager but rather as a victim to market forces or third party actions. Examples of such liabilities that a General Manager may be exposed to would include the following: In the event of a cheque issued by the company to a third party and signed by the General Manager is not honoured for payment by the bank due to a lack of the necessary funds within the company account, the General Manager as the signatory on the cheque and indeed as a named signatory on the company account from which the cheque was issued, would be held criminally liable and expose himself to a potential civil claim by the third party alongside the company. Criminal cases are accompanied by a travel ban on the concerned individuals. Non-payment of judgments issued by the Labour Courts may, inter alia, lead to a travel ban being imposed on the General Manager until the matter is settled. In the event a legal entity is declared insolvent and a liquidator is appointed by the Courts during bankruptcy proceedings, often the court appointed liquidator is instructed to investigate the manner in which the company was managed. Should the liquidator conclude that the bankruptcy of the company is in part due to mismanagement and ‘poor decision making’, the General Manager may be held liable for parts of the debts of the company in addition to potential criminal proceedings. In view of the above liabilities and in order to assist General Managers in mitigating their exposure to such actions, General Managers are often advised to ensure that he or she adopt certain measures which include: (i) not acting outside the scope of his/her powers and authority as prescribed to him/her by the Memorandum of Association or granted Power of Attorney; (ii) to only issue payments of cheques when certain that sufficient funds exist within the company account and to avoid the provision of post-dated cheques in the market; and (iii) at all times manage the affairs of the company in a proper and diligent manner and where unsure as to potential exposure to seek legal counsel. More often than not, General Managers in the UAE are unaware of their full responsibilities and the associated liabilities when appointed to the highest post of the company. These risks only become apparent when the liabilities begin to arise at which point, the management of their exposure becomes increasingly difficult to administer. For further details, contact Ziad Choueiri at zchoueiri@ach-legal.com or Devvrat Periwal at dperiwal@ach-legal.com.

At the start of this year, a new provision of the Illinois Mechanics Lien Act became effective. 770 ILCS 60/38.1 (2016). Section 38.1 of the Act allows for certain parties to substitute a court-approved surety bond as collateral in place of the mechanic’s lien against the affected real estate, allowing litigation over the merits of a mechanic’s lien claim to proceed against the principal and surety under the substitute bond. This amendment is a major development in the history of Illinois’ Mechanics Lien Act, and it may simplify the sale or refinancing of real estate which would otherwise be encumbered by mechanic’s lien litigation. It is sure to be an important topic for lenders, land owners, developers, and the construction industry. Click here to read the full article.

If you run a company, you have probably had many requests from a potential business partner to sign a non-disclosure agreement (NDA). The NDA may be a short document, containing what appears to be just a few pages of legal boilerplate, and the other party may assure you that this is their “standard” form. While a typical NDA may look innocuous enough, you shouldn’t assume that it will give complete protection to the sensitive information you may be revealing, and the NDA may restrict you in ways you didn’t expect. This article describes some terms that companies should be on the lookout for when asked to sign an NDA. Click here to read the full article.

The British humorist, Alan Coren, satirically and accurately pointed out that the Act of God provisions in insurance policies mean “roughly that you cannot be insured for the accidents that are most likely to happen to you.” In the era of climate change, 1000 year floods which occur every year, and political instability throughout the world, Mr. Coren’s humor is especially apropos to drafting Force Majeure provisions. Most construction contracts (including commonly used AIA, ConsensusDocs, and EJCDC form contracts) contain boiler plate Force Majeure or Act of God provisions addressing what happens when construction is delayed by unforeseeable events of nature (floods, earthquakes, fire or other unanticipated weather) or political events (war, strike or revolution). However, it is crucial that construction contracts clearly identify events of Force Majeure and their impact on contract terms. They should also allocate the risks of delay caused by Force Majeure events. Click here to read the full article.