1. Cyberattacks have emerged as a critical threat to trade secret security. This Employment Law This Week Deep Dive episode focuses on cybersecurity and protecting your trade secrets from attacks that occur from inside your company. Attorneys Brian Spang and Brian Cesaratto of Epstein Becker Green discuss cybersecurity awareness, the Defend Trade Secrets Act and the evolution of cybersecurity, and the importance of implementing strong employee policies and planning ahead. Having a security incident response plan ready is a must for employers in this environment.

    Read on for more about this episode:

    1. Cybersecurity Awareness

    British Airways, T-Mobile—these are just a few companies affected by hundreds of data breaches that have occurred this year. October is Cybersecurity Awareness Month, and every new breach is a reminder that cybersecurity cannot be taken for granted. And while the media often focuses on foreign attackers, data increasingly shows that the bigger threat comes from inside your company. We spoke to Brian Spang and Brian Cesaratto, from Epstein Becker Green, for more.

    Brian Spang:

    "Most data breaches are caused by insiders as opposed to outside attackers. By ‘insiders,’ I mean people who already have access to your system. That includes current employees, former employees who retain access rights to your system, and potentially third-party contractors or vendors who you have granted access to your system."

    Brian Cesaratto:

    "The data is increasingly showing that insider threat to trade secrets is a growing vulnerability. And that's both because insider threat presents two types of risk: risk of an intentional malicious insider causing damage or exfiltrating trade secrets or unintentional insider threat. So, what companies should do is they should consider the type of threats they face using available data and then determine what their existing controls are and how those can be improved."

    For more, click here: ebglaw.com/eltw130-hla

    2. The Evolution of Cybersecurity

    These attacks have emerged as a critical threat to trade secret security. In 2016, Congress stepped in and tried to make it easier for companies to protect their trade secrets by taking their claims straight to federal courts with the Defend Trade Secrets Act.

    Brian Spang provides more:

    "The most significant change brought about by the Defend Trade Secrets Act is the establishment of federal subject-matter jurisdiction for trade secrets claims. Plaintiffs now may go directly to federal court without worrying about establishing diversity jurisdiction or relying on a different federal statute to establish subject-matter jurisdiction in federal court. Employers generally view federal court as a forum in which they can obtain relief more quickly and in which the cases move more quickly."

    In the past, companies have sometimes relied on non-compete agreements to help prevent insider threats or to provide an avenue for relief. But as Brian Spang tells us, the current regulatory trend is running against these agreements.

    "Regulation in this area is evolving toward restricting the use of non-compete agreements and in favoring the rights of individuals. And in certain jurisdictions, there have been recent decisions throwing out claims attempting to enforce over-broad non-compete agreements without giving the plaintiffs any opportunity to argue for modification or a narrowing of the restrictions."

    3. Employee Policies and Planning Ahead

    In this uncertain climate, ultimately the best offense is still a good defense, and that means stopping the insider threats before they materialize. The most important cybersecurity tools for employers are strong policies that shore up vulnerabilities and a firm plan for a potential incident or breach.

    Brian Cesaratto tells us:

    "The most important step that an employer can take to prepare for a security incident is to have in place a security incident response plan and to train employees and managers in the implementation of the plan. Planning ahead of time is important because that way, when the time comes and there is a crisis, the company's not reactive. It's not attempting to address the issue under stress where there's no plan in place."

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  2. On October 1, New York State released final guidance and updated materials in connection with the state’s newly enacted laws concerning sexual harassment measures that mandate enhanced policies as well as training for all employees. New York’s new sexual harassment laws will take effect on Tuesday, October 9, 2018, and mandate that employers must complete compliant training for all current employees no later than October 9, 2019. Employers also must provide such training for all new hires within a reasonable time of their hire dates. Meeting these deadlines to provide and complete compliant training should now be top of mind for all employers.

    The New York guidance came the day after California Governor Jerry Brown signed four new #MeToo-inspired laws.

    We invite you to view Employment Law This Week® – tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns.

    Watch the series and subscribe for email notifications: EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  3. This Employment Law This Week Monthly Rundown features a recap of the most important news from September 2018. The episode includes:

    1. SCOTUS October Term Begins with Eight Justices

    September was a busy month in employment law, the highlight of which was the contentious confirmation hearings on Brett Kavanaugh’s nomination to the U.S. Supreme Court. With the outcome of Kavanaugh’s confirmation still uncertain, the Supreme Court’s term begins today with a flashback to 2016: eight justices and a 4-4 ideological split with no clear majority. A tie decision leaves the lower-court ruling in place. The #MeToo movement has had an undeniable impact on the process, as the once nearly certain confirmation of Judge Kavanaugh was derailed by allegations of past sexual assaults and misconduct. It’s an important reminder for employers that allegations alone can create major problems for a company without the right processes in advance.

    2. NLRB Action Signals Shifting Priorities

    The National Labor Relations Board (“NLRB” or “Board”), with its Republican majority, has continued to undo the legacy of the Obama-era Board. The NLRB is taking steps to replace the Browning-Ferris joint-employment test with a more employer-friendly one. The agency will also likely overrule its decision in Purple Communications that established the right of employees to use employer email for organizing and other union activity. On joint employment, the Board published a proposed rule that would restore the "direct and immediate control" standard that was in place for 30 years, prior to Browning-Ferris.

    For more, see here: https://bit.ly/2xVUbuB

    In addition, last month, the NLRB General Counsel urged the Board to reverse Purple Communications, which could spur action soon. Legislation has been introduced in Congress to both expedite and undercut the NLRB positions so that the November midterms could have an impact on the outcomes. On top of that, over the objection of many in the business community, President Trump nominated Mark Pearce, a Democrat first nominated by President Obama, for another five-year term in one of the two seats reserved for the party not in the White House. All this illustrates just how difficult it is to turn the ship in a different direction when it comes to the NLRB, where the policy impact of presidential elections is sometimes not felt until years later.

    3. Uber Drivers Head to Arbitration

    Here is big news from the gig economy. The Ninth Circuit has decertified a gigantic class of Uber drivers. Several named plaintiffs sought to form a class of hundreds of thousands drivers to challenge the company’s classification of them as independent contractors. Reversing a lower court’s ruling, the three-judge panel found that the claims should be arbitrated individually by any driver who signed the company’s arbitration agreement, which included a class waiver. A majority of the drivers involved signed the agreement. The Ninth Circuit noted that the Supreme Court’s Epic Systems ruling found class waivers legal. The plaintiffs are considering an en banc appeal.

    4. Sexual Harassment Laws Go Into Effect in New York

    We’re just a few days away from New York State’s new sexual harassment laws taking effect. Starting October 9, all employers in the state will be required to institute a sexual harassment policy and begin annual anti-harassment training for all employees. We are awaiting final word from the state, but proposed guidance says that all current employees must complete compliant training by January 1, 2019. New hires must be trained within 30 days of hire. The law applies to all employers in the state, no matter the size. Next year, additional training requirements will be imposed in New York City.

    For more, click here: https://bit.ly/2NP7Oql

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  4. Welcome to Employment Law This Week®! About this episode:

    1. Preventing Harassment in the #MeToo Era - youtu.be/-09aEPAEbJU?t=6s

    The #MeToo and Time’s Up movements have resulted in blockbuster allegations against titans of media, entertainment, and politics, but they have also raised the stakes for all employers. In this edition of Employment Law This Week, we look at preventing harassment in the #MeToo era.

    What has #MeToo taught us? We asked Jennifer Gefsky, from Epstein Becker Green:

    “I think if the #MeToo movement taught us one thing, it's that employers face significant liability and risk in the event that allegations are made against any employee or supervisor or the highest-level executive at the company. And sometimes those claims are insurmountable for a company, and they don't survive. Now, that case is rare, but it certainly has happened. But even in the case where the company does survive, it can do significant damage, not just in terms of money but in terms of reputation. And, in that way, it makes it very difficult for companies to hire new talent and to create that great culture that every company wants.”

    2. Regulation on the Rise - youtu.be/-09aEPAEbJU?t=1m4s

    State and local governments have been taking a much more active role in regulating the working environment, requiring transparency from employers and the infrastructure necessary to handle complaints. Ian Carleton Schaefer, from Epstein Becker Green, gives us an overview of recent legislation:

    “We're seeing states and cities enacting and promulgating model anti-harassment policies, model anti-sexual harassment trainings. We’re seeing a prohibition against non-disclosure agreements, both before the employment relationship begins or the outset of the employment relationship, as well as in settlement agreements, prohibition against confidentiality for sexual harassment complaints, unless it's the choice of the plaintiff or the aggrieved employee. We're seeing required training, like in New York State and New York City, that requires employers to conduct annual anti-harassment training for all of its employees, whether you have worked there for one day or for 10 years.”

    New York City now has the most robust anti-harassment and anti-discrimination protections in the country, with new laws going into effect from the city and the state in October 2018 and early 2019, respectively. The lynchpin of the NYC model is mandatory training. All employers are now required to provide annual anti-harassment training to every employee and even independent contractors. The training must meet or exceed the “model training” that the state has provided.

    For more, click here: hrdive.com/news/metoo-leads-to-training-mandates-and-more/531636/

    Jennifer Gefsky provides more:

    “All employees in a company should understand the company’s policies on harassment and discrimination, and they should know what to do in the event they see something, hear something, or something is happening to them. Who do they go to, who do they report to? And then what they can expect to happen in the event they make a complaint.”

    Ian Carleton Schaefer:

    “I think you're seeing a trend, if you need to look forward in terms of what's happening, what's going to happen in the future, what can we anticipate. I think if you look at what's happening in New York State and New York City, that's going to be the model for what happens throughout the country.”

    For more, click here: ebglaw.com/news/new-york-state-provides-draft-anti-sexual-harassment-materials-for-employers/

    3. EEOC Guidance on Workplace Harassment - youtu.be/-09aEPAEbJU?t=3m4s

    Along with training, employers and regulators are looking at cultural and institutional issues within an organization. On a federal level, the Equal Employment Opportunity Commission (EEOC) has issued guidance calling for this approach.

    Both the training being mandated in New York and the cultural approach that the EEOC advocates are measures that experts say can significantly decrease a company’s exposure to risk.

    For more, click here: ebglaw.com/news/with-eeocs-involvement-more-sex-harassment-suits-are-likely

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  5. In this news development from Employment Law This Week®, attorney Ian Carleton Schaefer of Epstein Becker Green discusses how sexual harassment training is evolving in the #MeToo era. He also talks about how requirements like the recently released New York State model training guidelines could become the standard for all employers nationwide.

    For more, read our recent Act Now Advisory, "New York State Provides Draft Anti-Sexual Harassment Guidance for Employers": ebglaw.com/news/new-york-state-provides-draft-anti-sexual-harassment-materials-for-employers/

    We invite you to view Employment Law This Week® - tracking the latest developments that could impact you and your workforce. The series now features three components: Breaking News, Deep Dives, and Monthly Rundowns.

    Watch the series and subscribe for email notifications: EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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Employment Law This Week®

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Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – tracks the latest developments that could impact you and your workforce. The series features three…


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Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – tracks the latest developments that could impact you and your workforce. The series features three components: Trending News, Deep Dives, and Monthly Rundowns. Learn more at ebglaw.com/employment-law-this-week/

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