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Jenn is a Raleigh attorney with a background in biology and a lifelong interest in innovation. She advises life sciences and healthcare companies on a range of regulatory and transactional matters, including licensing agreements, product development, and strategic growth initiatives. Known for her ability to simplify complex legal and technical issues, Jenn provides tailored, pragmatic counsel that aligns with each client’s goals and stage of development.

Her industry insight comes from years of in-house legal roles at leading life sciences and healthcare organizations — including Syngenta, where she worked on global R&D, licensing, and M&A matters, as well as leadership roles at a clinical research organization, a pharmaceutical manufacturer, a gene therapy company, and a metabolomics lab. This hands-on experience gives her a deep appreciation of how innovative companies operate and the regulatory challenges they face.

Jenn began her legal career in Delaware, advising business entities at one of the state’s largest firms, and later worked with North Carolina startups through a boutique practice focused on early-stage company formation, funding, and exit strategy.

We’re excited to have Jenn on board and know our clients will benefit from her thoughtful, business-minded approach to regulatory and transactional counsel.

The post Morningstar Law Group Welcomes Attorney Jennifer Ball to FDA & Healthcare Regulatory Practice appeared first on Morningstar Law Group.

Petitioner Sgt. Jatonya Clayborn Muldrow worked as a plainclothes officer for the St. Louis Police Department for nine years in its specialized Intelligence Division.  During this time, she showed strong performance, worked with high-ranking officials, and had a consistent weekday schedule, along with access to FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside of St. Louis.  In 2017, the Intelligence Division commander transferred Muldrow out of the unit and into a uniformed position and replaced her with a male officer.  Though her rank and pay remained the same in her new role, her perks, scheduling, responsibilities, status, and professional relationships did not.   

Muldrow sued the City of St. Louis under Title VII, claiming that the transfer was a discriminatory employment action.  The District Court held, and the U.S. Court of Appeals for the Eighth Circuit affirmed, that Muldrow was required and had failed to show “significant” change in her working conditions, because the transfer caused only minor changes that did not reduce her title, salary, or benefits.  The case made it to the Supreme Court, which ultimately vacated the lower courts’ judgment, holding that a job transfer can be deemed discriminatory even if the employee’s pay and title remain the same, and that a loss of perks, change of duties, and transfer to a position of less favorable status are enough to demonstrate the level of harm required for a discriminatory employment action.  The Court found that the language of Title VII only required Muldrow to show that the transfer brought about some “disadvantageous” change in an identifiable term or condition of her employment based on her protected characteristic(s), and that Muldrow was not required to show an elevated threshold of harm or that the injury incurred satisfied a “significance” test, as “Title VII’s text nowhere establishes that high bar,” and requiring such would demand more of Title VII plaintiffs than the law as written requires.  Accordingly, while Muldrow represents a victory for Title VII claimants, it also represents another victory for the principles of textualism in statutory interpretation, whereby courts must interpret and apply a statute’s express and plain language and may not add limitations or additional proof requirements not contained within the text.  

When making employment decisions, employers should remember that keeping an employee’s title/rank the same and/or maintaining their salary at the same level, while making other changes to their role, compensation opportunities, or benefits, will not be enough alone to stave off a discrimination claim.  All changes will need to be considered.  In addition to Title VII discrimination claims, the Muldrow standard of harm could also apply to discrimination claims in the context of ADA accommodation discrimination and failure to accommodate claims.

If you have any questions, please do not hesitate to contact our firm. 

Special Thanks to Legal Intern, Alexandra Carmack

The post Employment Law Alert: “Materially Significant Disadvantage” No Longer Required for Race or Gender Discrimination Claims (Muldrow v. St. Louis) appeared first on Morningstar Law Group.

Ongoing Litigation:  On July 3, 2024, the United States District Court for the Northern District of Texas postponed the effective date of the Final Rule.  The Court is currently hearing the case filed against the FTC by Ryan LLC and its intervenors (Chamber of Commerce of the United States of America, Business Roundtable, Texas Association of Business, and Longview Chamber of Commerce), and the judge has announced that she intends to issue a decision about whether to permanently enjoin the rule by August 30, 2024.  While the current preliminary injunction applies only to the named Plaintiffs, Judge Brown’s final decision on August 30^th may apply to non-parties as well under Fifth Circuit precedent.  The presiding Judge requested that the parties brief the issue of nationwide application of the injunction before she issues her merits disposition.  Ryan LLC v. Federal Trade Commission.  There are differing opinions among experts as to whether a federal circuit court has the authority to enter a nationwide injunction, so it’s possible the case could ultimately go to the Supreme Court, leaving a nationwide stay of enforcement in the grey zone for a longer period. 

Opponents of the rule argue that the FTC has exceeded its rule-making authority conveyed by the Administrative Procedure Act (APA) and intruded on an area usually legislated by state governments.  They claim that non-competes safeguard companies’ trade secrets, protect them from client losses, and ultimately help workers by increasing retention of highly trained employees.   

Proponents (workers’ rights organizations, etc.) claim that non-competes are exploitative, that non-disclosure and solicitation agreements are sufficient to protect businesses, and that banning non-competes will increase workers’ wages, innovation from locked up talent, and new startups. 

Either Way, the Ball Bounces:  Regardless of the outcome in the Texas Court, it is likely that there will be continued activity on this issue as public support for advancing workers’ bargaining positions is growing.  If the Final Rule is invalidated, it’s likely that the FTC will propose a new version that more closely mirrors certain existing state laws, which limit the applicability of non-competes, for example, with salary thresholds.   

Looking Ahead: Now is a good time to reassess your approach to restrictive covenants in case the Final Rule is not blocked.     

• Focus non-compete requirements on categories of workers with intimate access to competitive information and relationships, and the types of covenants that protect those assets.   

• Be sure covenants are narrowly tailored for enforceability based on the Final Rule’s language, and severable so that language found to be invalid will not invalidate other language.   

• Since non-competes with senior executives (those with over $151,164 annual compensation and in a policy making position for the business) and those entered in the context of a bona fide sale of a business interest (requiring sufficient bargaining power in the transaction) will be grandfathered, but new ones prohibited, make sure you have those in place before the Final Rule’s new effective date (TBD). 

• Stay up-to-date with the ongoing litigation surrounding the Final Rule, particularly the decision set to come August 30, 2024, and prepare to notify employees that their non-compete covenants will be unenforceable if the Court is unable to block the FTC’s non-compete ban

Should you need assistance with any of these matters, please do not hesitate to contact our firm.

Special Thanks to Intern, Alexandra Carmack

The post Employment Law Alert: FTC’s Non-Compete Ban Stayed by Court appeared first on Morningstar Law Group.

Wood explains that the hard-fought agreement, based on claims that Purdue Pharma sales of OxyContin played a major role in creating the U.S. opioid crisis, brought together all 50 states and thousands of other public entity-claimants to provide nearly $7 billion in much-needed relief to help local communities across the country fight the opioid epidemic.

The Supreme Court’s 5-4 decision to throw out the Purdue settlement threatens to turn $7 billion in desperately needed relief into nearly nothing.

Claimants will now face formidable obstacles to effectively pursue the Sacklers individually. Even if a substantial collective recovery is somehow achieved, thousands of people who could have been helped will suffer – and some will die – during the time it takes for those efforts to play out.

Read the entire article HERE.

Article By:

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Higher FLSA Salary Level Thresholds for Exempt Employee Status – Effective July 1^st

As of July 1, 2024, substantially more employees became eligible for minimum wage and overtime requirements as a result of the Department of Labor’s (DOL) increases in the Salary Level Thresholds for exempt status under the Fair Labor Standards Act (FLSA). Final Rule – 29 CFR 541.

Exempt employees must be paid on a predetermined salary basis, regardless of the quality or quantity of their work:

• New Standard Salary Level Threshold
  • $844 per week ($43,888 annualized)
• New Highly Compensated Employee Total-Compensation Threshold
  • $132,964 per year, including at least $844 per week

The thresholds will increase again in January 2025, and beginning in July 2027 will be updated every three years based on DOL earnings data.

Action to Take Now:  Assess the classifications of all employees and either (i) adjust salaries as needed to meet the minimum threshold, or (ii) reclassify employees who no longer meet the minimum threshold as non-exempt and take the necessary steps to record their worktime and pay overtime as appropriate.

New FLSA Independent Contractor Classification Test

In March 2024, the DOL changed its requirements for a worker to be classified as an independent contractor for minimum wage and overtime purposes. 

The old standard focused on two main factors (the nature and degree of the worker’s control over the work, and the worker’s opportunity for profit or loss) out of a set of five factors.  The new standard weighs six factors equally to produce a more holistic (totality-of-the-circumstances) assessment of workers’ economic realities and dependence on employers as the basis for determining whether the worker is an employee or an independent contractor, regardless of any agreement between the worker and employer.  The new standard is weighted toward finding employee status, so that more workers will have access to minimum wages and overtime pay. 

The Final Rule (89 FR 1638) provides a list of the 6 factors necessary to prove independent contractor status, along with commentary explaining how each will be evaluated:

1. Opportunity for profit or loss depending on managerial skill,
2. Investments by the worker and the employer,
3. Permanence of the work relationship,
4. Nature and degree of control,
5. Whether the work performed is integral to the employer’s business, and
6. Skill and initiative.

This change is representative of the surge of public opinion (and state law changes) on independent contactor status, and is expected to have significant implications in the construction, transportation, and gig economies as companies navigate the classifications of their workers.  

Businesses using independent contractors should review their relationships with workers in light of the new DOL rule, as well as other federal agency rules (e.g., IRS) and applicable state laws and regulations limiting independent contractor status.  

Should you need assistance with any of these matters, please do not hesitate to contact our firm.

Special Thanks to Intern, Alexandra Carmack

The post Employment Law Alert: New Rules for Worker Classifications appeared first on Morningstar Law Group.

What’s New?  To be considered non-exempt under FLSA regulations, a position must meet three tests: the salary basis test, the salary level test, and the duties test.  There are two salary level tests that set the minimum amount an employee can earn to be considered exempt from FLSA overtime protections: the standard salary test and the highly compensated employee total-compensation test.

While the salary basis and duties tests remain unchanged, the DOL’s new final rule increases the compensation thresholds for both the standard salary level test and the highly compensated employee test as explained below:

New Standard Salary Level Threshold

• Before July 1, 2024:  $683 per week ($35,568 annualized)
• Effective July 1, 2024:  $844 per week ($43,888 annualized)
• Effective January 1, 2025:  $1,128 per week per week ($58,656 annualized)

New Highly Compensated Employee Total-Compensation Threshold

• Before July 1, 2024:  $107,432 per year, including at least $684 per week paid on a salary or fee basis
• Effective July 1, 2024:  $132,964 per year, including at least $844 per week paid on a salary or fee basis
• Effective January 1, 2025:  $151,164 per year, including at least $1,128 per week paid on a salary or fee basis

After 2025, the final rule provides for updates of these thresholds every three years beginning on July 1, 2027 to reflect current earnings data.

Anything to do now?  Now is a good time to reassess the classification of all employees.  Before July 1, 2024, prepare to (i) raise salaries as needed to meet the minimum threshold or (ii) reclassify employees who will no longer meet the minimum threshold as non-exempt and take the necessary steps to begin paying overtime as appropriate. Should you have any questions regarding these updates, please do not hesitate to contact our firm.

Should you have any questions regarding this ruling, please do not hesitate to contact our firm.

The post Employment Law Alert: DOL Updates / Revises Fair Labor Standards Act (FLSA) Regulations appeared first on Morningstar Law Group.

No New Non-competes: In short, the final rule is a comprehensive ban on new non-competes with all workers at all levels (including employees, independent contractors, interns, volunteers, etc.), effective 120 days after publication of the Final Rule in the Federal Register, which we expect to occur very soon.

Existing Non-competes only for Senior Execs: The rule allows existing non-competes with senior executives to remain, while declaring existing non-competes with other workers to be unenforceable, and requires companies to inform those worker that their non-compete covenants will not be enforced.

Sale of Business Exception: A non-compete entered into pursuant to a “bona fide sale” is not prohibited by the rule. The FTC drew some blurry lines in the sand: “In general, the Commission considers a bona fide sale to be one that is made between two independent parties at arm’s length, and in which the seller has a reasonable opportunity to negotiate the terms of the sale. So-called “springing” non-competes and non-competes arising out of repurchase rights or mandatory stock redemption programs are not entered into pursuant to a bona fide sale because, in each case, the worker has no good will that they are exchanging for the non-compete or knowledge of or ability to negotiate the terms or conditions of the sale at the time of contracting. Similarly, sham transactions between wholly owned subsidiaries are not bona fide sales because they are not made between two independent parties.”

Will it Stand? Many have argued that the FTC has exceeded its rule-making authority. Court challenges are already underway, and likely the Rule will be stayed pending a final court ruling. However, as noted by Morningstar Government Actions Partner, Swain Wood, “[t]here is evidence that political support for advancing workers’ bargaining position with employers may be growing in some quarters. As a result, even if legal challenges to the new FTC rule prove successful, there will likely be continued activity on this issue in state and federal legislative arenas and among State Attorneys General.” So, stay tuned.

Anything to do now? Now is a good time to review and update your restrictive covenants. If the Rule becomes effective in its current form, non-competes entered with senior executives prior to the effective date will remain in force, so make sure you have those in place. Many confidentiality and nonsolicitation covenants will need to be tweaked to avoid being swept under the auspices of the Rule. And, for all workers and all restrictive covenants, it is important that covenants be severable in case the court carves down the Rule and so that a covenant found to be invalid will not invalidate other covenants.

Should you have any questions regarding this ruling, please do not hesitate to contact our firm.

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