1. FRANK HARTY Direct Number: (515) 283-3170 | Facsimile: (515) 283-3108 | E-Mail: fharty@nyemaster.com 700 Walnut, Suite 1600 | Des Moines, IA 50309-3899 | (515) 283-3100 Attorneys at Law | Offices in Des Moines, Ames and Cedar Rapids FRANK HARTY put himself through college and law school by playing football and working. He received a B.B.A. with honors in Industrial Relations from the University of Iowa School of Business and graduated Order of the Coif from Drake University Law School where he was Editor in Chief of the Drake Law Review. Frank is a Fellow of the American College of Labor and Employment Lawyers. He is also recognized as a Leading Individual Labor and Employment Lawyer in Iowa by Chambers and Partners and is recognized by The Best Lawyers in America and Great Plains Super Lawyers. Frank is a fellow of the Iowa Academy of Trial Lawyers and the American Board of Trial Advocates. He has taught trial advocacy and employment law at the Drake University Law School. Frank is Past Chair of the Labor and Employment Law Section of the Iowa State Bar Association. T HE G IG W ORKFORCE : H IDDEN R ISKS & T HE D EFEND T RADE S ECRETS A CT www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

2. T HE W ORKFORCE OF THE F UTURE : M INIMIZING L EGAL R ISK www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

3.  The disappearing “job”  BLS statistics and the growth of the “gig” and “shadow” workforce  There are numerous legal traps awaiting  Knowledge and planning are key I NTRODUCTION www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

4.  The disappearing “job”  Browning-Ferris Industries  Traditional standards under the NLRA  The new standard:  Is there a common law employment relationship  Control over essential terms and conditions of employment  Impact of BFI and future developments T HE N ATIONAL L ABOR R ELATIONS A CT AND J OINT E MPLOYMENT www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

5.  “Employees” under the FLSA  Enforcement priorities  The definition of employee W AGE AND H OUR R ISKS AND T HE S HADOW W ORKFORCE www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

6.  The Darden test  Ernster v. Luxco  Other tests I NDEPENDENT C ONTRACTOR T ESTS www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

7.  Interns and Trainees  DOL Test  Judicial Tests U NPAID I NTERNSHIPS www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

8. V OLUNTEERS www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

9.  Cheap labor and the Nestle, Lumber Liquidators lesson  Human trafficking  Iowa law – a crime – “benefitting” from human trafficking C RIMINAL L IABILITY www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

10.  Use written agreements  Set minimum qualifications  Monitor compliance  Require indemnification P ROACTIVE M EASURES : I NDEPENDENT C ONTRACTORS www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

11.  Identify and document the benefits to the trainees  Require affiliation with a school or training program  Control expectations regarding pay and future employment  Keep interns separate from employees P REVENTATIVE M EASURES : I NTERNS AND T RAINEES www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

12.  Educate managers  Keep separate  Don’t replace employees A VOIDING R ISK : V OLUNTEERS www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

13.  Use reliable agencies  Set and enforce assignment limits  Use a comprehensive written agreement P REVENTING T ROUBLE : J OINT E MPLOYMENT www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

14. C ONCLUSION www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

15. T HE D EFEND T RADE S ECRETS A CT OF 2016 www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

16.  Prior to DTSA  $300 billion annually in loss to economy from trade secret theft  Issues resulting from lack of uniformity T HE D EFEND T RADE S ECRETS A CT OF 2016 www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

17.  Federal cause of action  Ex parte seizure  Protections from unnecessary disclosure  Whistleblower protections  Increased criminal penalties O VERVIEW OF S OLUTIONS www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

18.  Jurisdiction  “used in, or intended for use in, interstate or foreign commerce”  Provides uniformity  “Trade secret” under DTSA  Discovery disputes  Period of limitations  Does not preempt state trade secret law  Remedies A N EW F EDERAL C AUSE OF A CTION www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

19.  Available in “extraordinary circumstances”  Additional protections for party whom order is directed against  Seizure hearing  Consequences of wrongful or excessive seizure E X P ARTE S EIZURE O RDER www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

20.  Trade secret materials in custody of the court  Prohibition on connecting to internet or network  Encryption  Unrelated materials  Protections during litigation  Protective orders  Court ordered disclosure protection  Express consent needed to waive trade secret protections  Interlocutory appeal P ROTECTIONS FROM D ISCLOSURE www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

21.  Two circumstances which disclosure of a trade secret is protected  “in confidence” to a government official “solely for the purpose of reporting or investigating a suspected violation of law”  Retaliation claim  Employer notice requirement  Consequences of non-compliance W HISTLEBLOWER P ROTECTIONS www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

22.  Increased maximum penalty  RICO Act I NCREASED C RIMINAL P ENALTIES www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.

23. Q UESTIONS ? www.nyemaster.comJuly 2016 ©2016 Nyemaster Goode, P.C.