Mayer Brown LLP updates

HIPAA authorisation for research: HHS issues interim guidance on authorisation sufficiency
Mayer Brown LLP
  • Insurance
  • USA
  • July 03 2018

The US Department of Health and Human Services (HHS) was to issue guidance by December 2017 clarifying when an individual's authorisation for a Health Insurance Portability and Accountability Act-covered entity to use or disclose their protected health information contains a sufficient description of the purpose for its use or disclosure. Having missed this deadline and presumably feeling pressure to issue some direction, HHS issued interim guidance in early June 2018.

Second Circuit holds that sexual orientation discrimination is sex discrimination under Title VII
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • June 06 2018

The US Court of Appeals for the Second Circuit recently reversed its prior precedent and held that Title VII's prohibition on sex discrimination includes a prohibition on sexual orientation discrimination. For years, states and municipalities have been adding laws prohibiting discrimination based on sexual orientation. However, whether Title VII prohibits discrimination based on sexual orientation under federal sex discrimination prohibitions has been actively debated in both courts and administrative agencies.

Transgender and gender transitioning status under Title VII
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • May 30 2018

The US Court of Appeals for the Sixth Circuit has held that a funeral home violated Title VII of the Civil Rights Act 1964 when it fired a director because she was planning to undergo sex reassignment surgery and had requested to dress in women's clothing at work. Employers – particularly those in the Sixth Circuit – should consider reviewing their employment policies and hiring practices to ensure that they are treating transgender status as a protected category.

California Court of Appeal invalidates employee arbitration clause on basis of exemption to Federal Arbitration Act
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • May 23 2018

The Fourth District of the California Court of Appeal recently ruled that a truck driver could not be compelled to arbitrate his claims in a state wage and hour class action against his staffing company employer, notwithstanding an arbitration clause in his employment contract that required individual arbitration rather than class actions. This ruling continues a line of California state court decisions giving a broad reading to the Federal Arbitration Act's transportation worker exception.

California Supreme Court clarifies method for calculating overtime rate of pay relating to flat-sum bonuses
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • May 16 2018

A recent California Supreme Court decision has had significant implications for employers when determining the regular rate of pay used to calculate overtime following the payment of flat-sum bonuses. The court held that employers must calculate the overtime rate of pay in pay periods in which an employee earns a flat-sum bonus by dividing the flat-sum by the non-overtime hours actually worked in that pay period, not the total hours worked (including overtime).

National Labour Relations Board vacates joint employer ruling and reverts to Browning-Ferris standard
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • May 09 2018

The National Labour Relations Board (NLRB) recently changed its joint-employer standard for the second time in the past three months, returning to the standard set in its 2015 decision in Browning-Ferris Industries. By reinstating Browning-Ferris, the current NLRB standard is that a joint-employer relationship exists whenever "two or more entities... share or codetermine those matters governing the essential terms and conditions of employment".

Bipartisan Senate proposal seeks partial reversal of FHFA captive insurance exclusion
Mayer Brown LLP
  • Insurance
  • USA
  • March 13 2018

Certain captive insurers that lost or will lose membership in the US Federal Home Loan Bank (FHLB) system as a result of a 2016 rulemaking by the Federal Housing Finance Agency may get a reprieve under the Housing Opportunity Mortgage Expansion Act. A similar bill was also introduced in the House of Representatives. Significantly, the proposals provide only for the restoration of FHLB membership for captive insurers, not for new membership for those captive insurers that previously had no membership.

New parental leave and salary history laws take effect
Mayer Brown LLP
  • Employment & Benefits
  • USA
  • February 28 2018

California has enacted two new pieces of legislation in order to improve job opportunities, for women in particular. SB-63 expands the California Family Rights Act to provide up to 12 weeks' unpaid parental leave for employees of companies with as few as 20 employees, while AB-168 prohibits employers from seeking or relying on a job applicant's salary history information when deciding whether to offer employment and what salary to offer.

NAIC adopts Insurance Data Security Model Law
Mayer Brown LLP
  • Insurance
  • USA
  • December 19 2017

The National Association of Insurance Commissioners recently adopted the Insurance Data Security Model Law. The model law builds on existing data privacy and consumer breach notification obligations by requiring insurance licensees to comply with detailed requirements regarding maintaining an information security programme and responding to and giving notification of cybersecurity events.

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