UPDATE: On January 13, 2022, the U.S. Supreme Court found that the Federal OSHA’s COVID vaccine ETS, targeting nearly all large U.S. employers and imposing significant penalties on noncompliant employees and employers, is a “broad public health measure” outside of OSHA’s purview.
This is an update to our October 1, 2021 Preparing for a Return to the Workplace, Employers Are Making Big Decisions (UPDATED) article.
Valued Clients:
We are writing to our venture capital and private equity fund clients to remind you of several important deadlines that are approaching. The annual deadline for filing certain initial Schedules 13G, an amendment to a previously filed Schedule 13G, an initial Form 13F filing, and an annual update to a previously filed Form 13H with the Securities and Exchange Commission (the “SEC”) for the year ended December 31, 2021 is Monday, February 14th. As you may remember from prior years, all Schedule 13G and Form 13F filings, including amendments, and Form 13H filings, including annual updates, must be filed electronically through EDGAR. As a result, we will be working with a financial printer in connection with these Section 13 filings. We are also using this opportunity to remind you that if you are subject to the California Consumer Privacy Act (“CCPA”), which went into effect on January 1, 2020, you are required to review and update your firm privacy policies and provide an annual privacy notice to your employees, contractors and investors that are California resident natural persons. Finally, we would like to give our clients who have previously filed a Form ADV with the SEC a reminder that generally your firm will be required to file an annual updating amendment to such Form ADV by the deadline of Thursday, March 31, 2022.
Employers must file information returns with the Internal Revenue Service and provide employees with information statements related to incentive stock option exercises that occurred during calendar year 2021. Similarly, employers (typically relevant only for public companies) must file information returns with the IRS and provide employees with information statements related to initial transfers of stock acquired during 2021 under an employee stock purchase plan that complies with Internal Revenue Code Section 423.
On December 15, 2021, the Securities and Exchange Commission (“SEC” or “Commission”) voted to adopt two sets of rule proposals designed to address the agency’s stated concerns about the prevalence of certain trading practices by issuers and corporate insiders that the SEC believes may harm investors and undermine the integrity of the securities markets, including through the misuse of material nonpublic information (“MNPI”).
On November 3, the staff of the Division of Corporation Finance (the “staff”) of the U.S. Securities and Exchange Commission (the “SEC” or “Commission”) issued new Staff Legal Bulletin No. 14L (“SLB 14L”) relating to shareholder proposals under Rule 14a-8 of the Securities Exchange Act of 1934 (“Rule 14a-8”). SLB 14L rescinds three previously issued legal bulletins and expressly states that the staff may no longer permit companies to exclude from their proxy statements certain shareholder proposals that raise significant environmental or social issues that would have been excludable in the past.
Gunderson Dettmer is pleased to announce its Returning to the Workplace Survey Report. This report summarizes the data gathered from over 250 VC firms.
On October 14, the U.S. Securities and Exchange Commission (SEC or Commission) announced the reopening of the comment period on its executive compensation clawback rule, initially proposed in 2015 to implement Section 954 of the Dodd-Frank Act, which calls for the Commission to direct the U.S. stock exchanges to establish listing standards requiring listed companies to adopt, comply with and provide disclosure about a compensation recovery (or “clawback”) policy applicable to incentive-based compensation received by current and former executive officers in the event of certain financial restatements.
Gunderson Dettmer is pleased to announce its Returning to the Workplace Survey Report. This Report summarizes the data gathered from over 230 companies in the venture-backed startup ecosystem. The results were presented at the National Venture Capital Association, Strategic Operations and Policy Summit Return to the Workplace panel on Thursday, October 21, 2021.
Employers continue to make big decisions on returning to the workplace, especially with the Delta variant and changing guidance from the Biden Administration, the Centers for Disease Control and Prevention (CDC), and numerous states and localities. The standards for dealing with this new guidance in an office setting will continue to evolve.
On August 6, a divided U.S. Securities and Exchange Commission (SEC) voted to approve Nasdaq’s new listing rules related to board diversity and disclosure, a significant development that magnifies the rising importance of diversity in board governance.
Since the start of the Biden administration, the U.S. Securities and Exchange Commission (SEC) has signaled that climate and broader environmental, social and governance (ESG) disclosure will be an area of heightened focus, subject to more proactive and aggressive regulatory oversight and enforcement.
The European Commission (EC) recently finalized new Standard Contractual Clauses (SCCs), updating a method used by many companies to lawfully transfer personal data out of the European Union (EU) under the EU General Data Protection Regulation (GDPR). Please read below for the steps you can take now to prepare for this change.
Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act) (the “Act”) into law on May 5, 2021. Amendments were made in June and signed by Governor Cuomo on June 14, 2021. The purpose of this new law is to protect employees against exposure and disease during a potential future airborne infectious disease outbreak. The Act establishes a new obligation on New York employers to develop extensive workplace health and safety standards to prevent exposure to airborne infectious diseases in the workplace.
Employers are starting to make big decisions on returning to the workplace, especially with the changing guidance from the Centers for Disease Control and Prevention (“CDC”), including that fully vaccinated people do not need to wear masks indoors, and various states.
Earlier this week, Securities and Exchange Commission (SEC) Chair Gary Gensler was interviewed about his policy-making priorities at The Wall Street Journal’s CFO Network Summit, where he identified Rule 10b5-1 trading plans and practices as a rulemaking and enforcement imperative.
Employers are starting to make big decisions on returning to the workplace, especially with the fast-changing announcements from the Centers for Disease Control and Prevention (CDC). The CDC recently announced that fully vaccinated people do not need to wear masks indoors. Assuming states where the Company has offices lift mask requirements for those who are fully vaccinated, how do employers handle the situation? Should we put employees on the “honor system” and tell them they don’t need to wear a mask if they are fully vaccinated? Or should we be asking for proof of vaccinations as a prerequisite for allowing employees not to wear masks?
Once considered an unorthodox path to going public, direct listings are gaining traction as an alternative to the traditional IPO. On Wednesday, the Securities and Exchange Commission (SEC) approved a rule change, with immediate effect, that will permit companies to raise capital in a direct listing on the Nasdaq Global Select Market.
To all venture capital and private equity fund clients, reminder of several important deadlines that are approaching.
Employers must file information returns with the Internal Revenue Service and provide employees with information statements related to incentive stock option exercises that occurred during calendar year 2020. Similarly, employers (typically relevant only for public companies) must file information returns with the IRS and provide employees with information statements related to initial transfers of stock acquired during 2020 under an employee stock purchase plan that complies with Internal Revenue Code Section 423.
On December 27, 2020, the Consolidated Appropriations Act, 2021 was signed into law.
With the passage of Senate Bill 826 at the end of September 2018, California became the first state in the U.S. to require public companies incorporated in California or other public companies with their principal executive offices in California (according their Annual Report on Form 10-K) to have specified numbers of women serving on their Boards of Directors. In addition, with the passage of Assembly Bill 979, these same public companies will be required to have at least two members of their Boards of Directors from an “underrepresented community.”
On November 3, Californians voted to approve Proposition 24, the California Privacy Rights Act (or “CPRA”). This ballot initiative will significantly modify the California Consumer Privacy Act (“CCPA”), California’s existing privacy law which came into effect less than a year ago.
Senate Bill 1383, signed earlier this year by Governor Gavin Newsom, takes effect at the start of next year.
A recent New York law and an amendment to New York City’s existing Earned Safe and Sick Time Act (“ESSTA”) will require employers to update their policies and issue notices before the end of the year. Below is a summary of the new NY law, the amended NYC law and their impact on employers.
Over the last several months, we have seen a dramatic interest among successful venture-backed companies in pursuing an exit with SPACs (Special Purpose Acquisition Companies). An exit via a SPAC entity may be the right option for companies looking to raise capital and obtain access to the public markets in lieu of a traditional IPO.
This alert is the third in our series of Privacy Topics: Practical Guidance from Gunderson Dettmer – a collection of practical privacy and data security guidance and accompanying materials designed to facilitate your company’s compliance efforts. As companies throughout the U.S. are starting to reopen their offices after months of lockdown due to the COVID-19 pandemic, today’s alert focuses on privacy considerations under the California Consumer Privacy Act (CCPA) and other laws in connection with COVID-19 screening in the workplace. The CCPA went into effect on January 1, 2020, and enforcement by the California Attorney-General began on July 1, 2020, with no delay in enforcement despite the COVID-19 pandemic.
What now? In the landmark Schrems II decision, the European Court of Justice invalidates the Privacy Shield; upholds the Standard Contractual Clauses (but only with additional scrutiny and safeguards). Yesterday’s Schrems II decision, which invalidated the U.S.-EU Privacy Shield Framework and added complexity to the use of Standard Contractual Clauses, has major implications for international data transfers.
Form BE-10 is part of a recurring 5-year benchmark survey designed by the U.S. Department of Commerce’s Bureau of Economic Analysis (“BEA”) to gather current economic data on the foreign investment operations of U.S. multi-national enterprises and their foreign affiliates. All “U.S. reporters” with one or more foreign affiliates during their 2019 fiscal year must make Form BE-10 filings regardless of whether they were contacted by the BEA.
The deadlines for filing Form BE-10 with the BEA have been, in both cases, extended to August 31, 2020 (originally May 29, 2020 for filers with less than 50 foreign affiliate filings and June 30, 2020 for filers with 50 or more foreign affiliate filings).
Form BE-10 is part of a recurring 5-year benchmark survey designed by the U.S. Department of Commerce’s Bureau of Economic Analysis (“BEA”) to gather current economic data on the foreign investment operations of U.S. multi-national enterprises and their foreign affiliates. All “U.S. reporters” with one or more foreign affiliates during their 2019 fiscal year must make Form BE-10 filings regardless of whether they were contacted by the BEA. Latin American venture-backed businesses that include U.S. holding companies in their corporate structure may be U.S. reporters.
The deadlines for filing Form BE-10 with the BEA have been, in both cases, extended to August 31, 2020 (originally May 29, 2020 for filers with less than 50 foreign affiliate filings and June 30, 2020 for filers with 50 or more foreign affiliate filings).
SBA Issues First Guidance Following Passage of the PPP Flexibility Act
Following the enactment on June 5, 2020 of the bipartisan Paycheck Protection Program Flexibility Act of 2020 (the “Flexibility Act”), the U.S. Small Business Administration (“SBA”) has issued new guidance interpreting and implementing the act. As discussed in our previous client alert on the subject, the Flexibility Act amended the Small Business Act and the CARES Act to significantly modify the forgiveness and other provisions of the SBA’s Paycheck Protection Program (“PPP”).
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