As recent events have unfortunately shown us, there may be times when a business needs to vacate a commercial space before the expiration of its lease. A business may decide to close, sell its assets, merge with another company or move to a larger space to accommodate expanding needs. Simply put, business conditions can and do change; therefore, it is important that commercial leases contain as much flexibility as possible to help tenants mitigate any potential exposure arising from obligations within the lease. This protection is often best achieved by negotiating the inclusion of fair sublease and assignment clauses in a lease, as well as avoiding the use of open-ended terminology which favors the landlord.

On July 30, 2021, the Biden Administration issued a proposed amendment to the Federal Acquisition Regulations (FAR), the comprehensive and overarching regulatory framework for federal government contracts, in support of President Biden’s Executive Order 14005 issued on January 25, 2001 (“Executive Order”). The objective of the Executive Order – aptly entitled “Ensuring the Future is Made in America by All of America’s Workers” - is to “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” The proposed amendment to the FAR (“FAR Amendment”) is intended to bolster this policy objective, as well as support the fulfillment of Biden’s promise to strengthen the nation’s manufacturing base.

As the Covid-19 pandemic wears on, forcing businesses to continue suspending or terminating contracts, it seems the oft-overlooked notice provision is finally having its day. Although notice provisions can take a multitude of forms, many are proving to be antiquated or problematic, especially considering the substantial changes to the way we work. To that end, now may be a great time to review the notice provisions in your form contracts and make adjustments where needed.

On June 24, 2021, Connecticut Governor Ned Lamont signed into law Public Act 21-69, “An Act Deterring Age Discrimination in Employment Applications.” The new law, which goes into effect on October 1, 2021, amends Connecticut’s Fair Employment Practices Act to prohibit employers from inquiring about the ages of applicants “on an initial employment application.”

In the absence of federal privacy legislation and in response to growing public concern over businesses’ use of personal data here in the U.S., more states are filling the void that exists in the area of consumer privacy protection. Earlier this year, Virginia passed the Virginia Consumer Data Protection Act (CDPA), and more recently, Colorado introduced the Colorado Privacy Act (CPA) on July 7^th, 2021. Both of these laws will take effect in 2023.

On July 15, 2021, the California Supreme Court handed down a decision which will have a significant impact on the way employers must pay hourly/non-exempt employees for missed meal periods, rest periods, and heat illness recovery periods. In Ferra v. Loews Hollywood Hotel, LLC, the Court held that such payments must be made at the “regular” rate of pay, not the base hourly rate. The court’s decision also will have a retroactive effect, meaning that employers must immediately change payroll practices and potentially pay employees back wages for the last four years.

As employers have been working through post-pandemic office reopening plans, those with employees in New York must be mindful of additional issues and compliance obligations. In May, Governor Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act”), which amended NY Labor Law to codify extensive health and safety directives. This law applies to all private employers with at least one employee at any worksite located in New York, unless already covered by federal OSHA’s emergency temporary standard for COVID-19.

When licensed software lies at the heart of a product or service, the licensee must consider how its business could be impacted in the event access to the software is suddenly disrupted (i.e., the licensor goes out of business). In some cases, the licensee’s contingency plan may include exercising a negotiated option to purchase a license to the software’s source code directly from the licensor; or if the software is easily replaced, finding an alternate vendor. When a source code license is not available and/or the software is not easily replaced, however, the licensee often considers a source code escrow arrangement.