A Sign of the Times? Tennessee Expands Anti-Bullying Law to Private Employers

Two Male Colleagues Fighting In Office

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By Jeremy Mittman and Samuel Richman

On April 23, 2019, Tennessee Governor Bill Lee signed a bill into law extending the Healthy Workplaces Act, Tennessee’s workplace bullying prevention law, to private employers. The law went into effect immediately upon signing. Tennessee’s anti-bullying law encourages employers to adopt policies to address and prevent “abusive conduct” in the workplace. The law defines “abusive conduct” as “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment.” (more…)

Tariff Turmoil

USA and Chinese flags on mountain signpost.

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By Susan Kohn Ross

The last few days have seen some startling developments regarding trade between the U.S. and China. Perhaps none of this is remarkable given the current climate, but trying to keep track has caused untold whiplash!

On May 10, we learned from USTR the timing of the 25% tariff on List 3 was changed. It is now applicable to goods entered on or after June 1, 2019. Given that CBP originally programmed its computer and the 25% on List 3 goods applied so long as the arrival date was May 10 or later, if you get caught in the payment timing cycle of having to pay the 25%, you will want to coordinate with your customs broker to file a Post Summary Correction and seek a 15% refund. (more…)

The Ever-Expanding Dynamex Decision

Exam Answer sheet in exam room

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By Jeremy Mittman and Danton Liang

Why This Matters

The day after the Ninth Circuit Court of Appeals ruled that the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court applies retroactively (see here), California’s Division of Labor Standards Enforcement (DLSE) released an opinion letter concluding that Dynamex’s ABC test applies to both IWC Wage Order claims and certain Labor Code provisions that enforce Wage Order requirements. The California Court of Appeals has ruled that Dynamex applies only to claims brought under the IWC Wage Orders (see here) and the DLSE’s recent opinion letter seems to expand what that means.

While California state and federal courts are not bound by DLSE opinion letters (meaning they could reach a different conclusion as to exactly which California Labor Code claims fall under Dynamex), the DLSE’s opinion letter reflects the way that agency will be interpreting Dynamex moving forward. This will impact employers who face DLSE wage claims where employees contend they were improperly classified as independent contractors. (more…)

The Roller Coaster Ride Continues

Tariff, Taxes on Imported Goods

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By Susan Kohn Ross

In yesterday’s “Talking Trade” Periscope broadcast, we made the point that the wording in the China 301 tariff notice left confusion which needed to be cleared up, and now, it has been. As is common knowledge, the 10% tariff on the goods on List 3 or Traunch 3 went up to 25% at 12:01 a.m. on May 10, 2019. How this applies is, however, a bit more nuanced. The Federal Register Notice reads: “Effective with respect to goods (i) entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight time on May 10, 2019, and (ii) exported to the United States on or after May 10, 2019…” (more…)

Dynamex Goes Back in Time

Businessman holding sign clock. Concept business time is money

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By Jeremy Mittman

Why This Matters

On Thursday, May 2, in Vazquez v. Jan-Pro Franchising International, Inc., a three-judge panel of the Ninth Circuit Court of Appeals held that the California Supreme Court’s ruling in Dynamex Operations West, Inc. v. Superior Court applies retroactively. In Dynamex, the Supreme Court adopted a new standard for determining whether a California worker is an employee or independent contractor under the California Industrial Welfare Commission’s (“IWC”) wage orders. As we have previously discussed (see here, here, and here), Dynamex’s reach continues to grow and the Ninth Circuit’s ruling in Vazquez should be of particular concern to employers, who now face potential liability for their past decisions to classify workers as independent contractors rather than employees under a standard that did not exist at the time. (more…)

2017 and 2018 EEO-1 Pay Data Reporting Requirements Due September 30th

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By Bethanie Thau

Why This Matters

In early March, the U.S. District Court for the District of Columbia revived an Obama-era rule that requires larger companies to report workers’ pay data broken down by gender, race, and ethnicity. Last week, the Court issued an order requiring employers to submit 2018 EEO-1 pay data by September 30, 2019. Just this morning, the EEOC announced it will also collect 2017 data. This means that employers with 100 or more employees (and federal contractors with 50 or more employees) will be required to report their employees’ 2017 and 2018 W-2 compensation information and hours worked by the September deadline. The deadline to submit all other EEO-1 data, such as race and gender information, remains May 31, 2019. (more…)

The United States Finalizes Its Welcome Notice to Israeli Investors: E-2 Visas Available in May

Global business concept.

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By John E. Exner IV and Frida P. Glucoft

Pursuant to a recent announcement by the U.S. Embassy in Israel, E-2 Investor visas will be available to Israeli citizens starting May 1, 2019.  While the bill granting Israeli citizens eligibility for the United States E-2 Treaty Investor visa was signed into law in 2012, the availability of visas was delayed by lengthy negotiations over the final terms of the reciprocal agreement between Israel and the United States.  Fortunately, the terms of the reciprocal agreement between the two countries have now been finalized, allowing for the issuance of E-2 investor visas to Israel citizens starting in May.

The E-2 investor visa is available to citizens of qualifying countries who are actively engaged in the development and direction of a United States enterprise. In order to qualify for the E-2 visa, the foreign investor must have already invested, or be in the process of investing, a substantial amount of capital into the United States company. Although the list of qualifying nations for the E-2 visa includes over 70 countries, that list did not include Israel – until now. (more…)

Opportunity Zones Overview

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Part Two:  Flow-Through QOF Basis Benefits

By Andrew Park

On April 17, 2019, the highly anticipated, second round of proposed regulations (the “April 2019 Proposed Regulations”) were finally issued, and taxpayers were rewarded for their patience.

The primary tax benefit for a qualifying investment in a QOF is the investor’s ability to step up his or her QOF investment basis to FMV if a 10-year holding period is met.  The plain language of the statute appears to limit the benefit of the basis step-up to the equity interest in the QOF itself, but not the QOF’s assets. (more…)

Actions Speak Louder Than Words

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Employee Must Arbitrate Employment Dispute Once Employer Declares that Continued Employment Manifests Assent to Arbitration Policy

By Jonathan Turner and Irina Constantin

Late last week, the California Court of Appeals ruled in Diaz v. Sohnen Enterprises that an employee must arbitrate her discrimination suit against her employer because she consented to an arbitration agreement by continuing to work.  The split, three-judge panel sent the employee’s claims to arbitration even though she never signed the written arbitration agreement and verbally rejected it.

In short, the Court held that “California law in this area is settled: when an employee continues his or her employment after notification that an agreement to arbitration is a condition of continued employment, that employee has impliedly consented to the arbitration agreement.” (more…)

Warning to Employers When Staffing Special Projects

Quality control certification, checked guarantee of standard.

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By Susan Kohn Ross and Frida P. Glucoft

There are many ways employers may run afoul of the anti-discrimination provisions in U.S. immigration law. As a very clear starting point, the general rule for a long time has been and remains an employer may not make hiring, firing, or recruitment / referral decisions based on a worker’s citizenship status. However, there are notable exceptions and the one relevant here relates to controlled goods.

For these purposes, the definition of controlled goods includes their documentation – typically referred to as technical data – and means those goods which are subject to either the International Traffic in Arms (ITAR) or Export Administration Regulations (EAR) laws and regulations. ITAR is the export license restrictions which regulate military and defense articles, whereas BIS controls other higher tech exports which are subject to export license restrictions. As part of their regulatory regimes, both agencies (and some others of more limited scope) regulate when and how non-U.S. persons may gain access to either the actual good, the technical data or both, and require some form of notice to and pre-approval by the agency. (more…)