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Employers Should No Longer Rely on Their Policies Alone to Support a Computer Fraud and Abuse Act Claim Against Current or Former Employees

On June 3, 2021, the U.S. Supreme Court issued its opinion in Van Buren v. U.S. addressing a long-standing circuit split on employee computer access limits under the Computer Fraud and Abuse Act (CFAA). For many years the federal courts struggled with and disagreed over how to interpret the CFAA provisions that impose criminal and civil liability on a person who "intentionally accesses a computer without authorization or exceeds authorized access." 18 U.S.C. §1030(a)(2). The phrase "exceeds authorized access" is defined by the CFAA as follows: "To access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. §1030(e)(6). Unlike the typical employment scenario, the Van Buren case involved a police officer who used his access to a law enforcement database to search a license plate in exchange for $5,000.00 that was offered to him as part of a planned FBI investigation. The police officer was charged with a felony violation of the CFAA based on the allegation that his license plate search violated the "exceeds authorized access" provision of the CFAA. 18 U.S.C. §1030(a)(2). Specifically, the government's case against the police officer was that he used his authorized access to the license plate database for "an improper purpose" that included "any personal use." Van Buren, p. 4, citing App. 17. After the police officer was convicted by a jury, he was sentenced to 18 months in prison. On appeal the Eleventh Circuit affirmed by holding that the police officer had violated the CFAA by his action in accessing the law enforcement database for an "inappropriate reason." Van Buren v. U.S., 940 F.3d 1192, 1208 (9th Cir. 2019). More ›

Frequently Asked Questions About the Latest CDC COVID-19 Guidance

While helpful to individuals, the new guidance issued recently by the Center for Disease Control raises more unanswered questions for employers preparing or implementing return-to-work strategies. In an advisory published on Hinshaw's website, we review these questions, and provide analysis.

DOL Withdraws Trump-Era Independent Contractor Rule

During the Trump administration, the Department of Labor (DOL) issued a new rule regarding the classification of independent contractors. Designed to streamline how a company determines whether a worker is an employee or independent contractor, the rule narrowed the factors in the "economic realities" test and focused the analysis on the two "core factors" of control and the opportunity for profit and loss. The proposed regulations were set to go into effect on March 8, 2021. With the change in administration, the DOL initially pushed the effective date back to May 7, 2021, to allow for further review and consideration. The DOL announced on May 5, 2021, that it is withdrawing the rule altogether. More ›

U.S. House Seeks Drastic Revision of Labor Law with Protect the Right to Organize Act of 2021

In a Hinshaw Insights for Employers Alert, we consider the drastic revisions to the National Labor Relations Act and federal labor policy contemplated by the Protect the Right to Organize Act of 2021. The bill was passed with little fanfare by the U.S. House of Representatives last month.

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Amendments to Illinois Law Make Using Criminal Convictions in Employment Decisions a Civil Rights Violation, Outlines New Equal Pay Reporting Requirements

Illinois Governor J.B. Pritzker signed SB 1480 into law on March 23, 2021. Effective immediately, the law significantly amends the Illinois Human Rights Act (IHRA), Illinois Equal Pay Act (IEPA), and the Illinois Business Corporation Act. The amendments affect employers' ability to use criminal conviction records in employment decisions and imposes new reporting requirements regarding pay equity. More ›

California Court of Appeal Rules Alleged Contractor Misclassification Not Enough to Justify Class Action

On Friday, March 12, 2021, the California Court of Appeal issued a ruling in Wilson v. The La Jolla Group that addresses the appropriate scope of class treatment for employee misclassification under Dynamex Operations West, Inc. v. Superior Court. Dynamex—and its later enactment into statute in the form of AB 5—established the ABC test for determining independent contractor status. More ›

DOL Delays Effective Date of Test for Determining Independent Contractor Status

Under the administration of former President Donald Trump, the Department of Labor (DOL) proposed new regulations to simplify the test for determining whether a worker is an employee or independent contractor. The regulations were set to go into effect on March 8, 2021. More ›

Whole Foods Prevails Against Racial Bias Claims

With political and social activism surging in the workplace, Frith et al. v. Whole Foods Market Inc. et al., may prove to be the tip of the iceberg when it comes to employee discrimination claims. At issue in the polarizing case decided in a Massachusetts' federal court was whether Whole Foods violated federal discrimination laws when it barred employees from expressing support for the Black Lives Matter movement by wearing masks and apparel referencing BLM. More ›

President Biden's American Rescue Plan Would Reinstate and Expand Federally Mandated Paid Sick and FMLA Leave

On January 20, 2021, President Biden announced the principal points of his American Rescue Plan (the Plan), a new COVID-19 relief package that would revive the federal mandate on employers to provide paid sick and paid FMLA leave for certain COVID-19-related absences. On February 1, 2021, Republican lawmakers responded with a competing relief package that does not include those paid leave mandates. As of now, neither side has released a draft of the actual proposed legislation. Much of what we know comes from the announcement released by the Biden administration and a chart from Republican Senators. More ›

New Illinois House Bill Would Significantly Limit the Use of Restrictive Covenants in Employment Contracts

On January 8, 2021, a bill, HB 789 was introduced in the Illinois House that, if passed, will significantly change the treatment of restrictive covenants in the employment context. The new law would require employers to review their form contracts and modify their procedures for signing restrictive covenants. In some instances, it would forbid the use of such covenants. The bill—which would amend the existing Illinois Freedom to Work Act—is likely to pass in some form; if passed, HB 789 would go into effect on June 1, 2021. More ›