Section 199A: Deal Considerations When Buying or Selling a Partnership or LLC Interest

By Daniel M. Cousineau

Internal Revenue Code section 199A attracted immediate attention when it was enacted last December, since it created a new tax benefit.

Section 199A allows individuals to deduct up to 20% of the “qualified business income” from certain types of businesses operated in “pass-through” form. Partnerships, limited liability companies, S corporations and sole proprietorships meet this definition because there is no corporate level tax and the earnings from the business pass through to the owners for tax purposes.

While the intent of Section 199A was to generally put business owners operating in pass-through form on the same footing as businesses who received a reduced 21% federal corporate tax rate, the complexity of the rules left many questions in need of clarification.

On August 8, 2018, the Treasury Department issued proposed regulations addressing some of these questions. One such clarification is the extent to which a buyer of a pass-through entity can avail themselves of the 20% deduction. (more…)

California Supreme Court’s Independent Contractor Ruling Only Applies to Claims Brought Under California Wage Orders

By Jeremy Mittman

Recently, in Garcia v. Border Transportation Group, LLC, the California Court of Appeals weighed in on the scope of the California Supreme Court’s April 2018 ruling in Dynamex Operations West, Inc. v. Superior Court.  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.  This new standard, called the “ABC test” holds that a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. (more…)

California Expands Sexual Harassment Training for Employees

By Jeremy Mittman and Erica Parks

In his final bill-signing period as governor, California Governor Edmund G. Brown signed into law numerous employment-related bills and vetoed others.  One bill that passed significantly expands the scope of required sexual harassment training for employees in California.

Currently, the relevant provisions of California’s Fair Employment and Housing Act (“FEHA”), sections 12950 and 12950.1 of the California Government Code, require employers with 50 or more employees to provide sexual harassment training for all supervisory employees. SB 1343 amends these provisions, instead requiring employers of five or more employees—including seasonal and temporary employees—to provide sexual harassment training for both supervisory and non-supervisory employees by January 1, 2020.  (more…)

New York State Provides Model Sexual Harassment Prevention Materials for Employers

By Gregory Hessinger

Following its passage of new laws requiring that all New York State employers provide annual sexual harassment prevention training and implement sexual harassment prevention policies, effective on October 9, 2018, New York State has now published final versions of compliance materials for employers on a dedicated website, which includes:  (1) a model sexual harassment policy; (2) model training materials; (3) a model complaint form; (4) Frequently Asked Questions (“FAQs”) relating to the model materials and new laws; and (5) lists of minimum standards for sexual harassment policies and trainings for employers who wish to prepare their own.  (more…)

NLRB Proposes Rule Changing Joint-Employer Standard

By Anthony J. Amendola

Recently, the National Labor Relations Board (NLRB) published its “Notice of Proposed Rulemaking; request for comments” in the Federal Register setting forth a proposed new standard for establishing a joint-employer relationship.  The joint-employer analysis is significant because entities found to be joint employers may be jointly liable for alleged unfair labor practices or under collective bargaining agreements.  In various circumstances, parent/subsidiary companies, franchisers/franchisees and client/temporary services providers have been argued to be joint employers. (more…)

Summer Roundup: New California Employment Laws

By Erica Parks

September 30, 2018, was the cut-off for Governor Brown to sign or veto bills passed by the California legislature this year.  So it’s not surprising that that the summer months saw a flurry of employment legislation across Governor Brown’s desk.

Most significantly, the Governor vetoed AB 3080, which, as we alerted you last month, would have effectively banned non-disclosure agreements and arbitration agreements with respect to certain harassment and discrimination claims.  (more…)

China Tariffs – List 3 Finalized and Taking Effect

Economic trade war between USA and China

Photo credit: iStock.com/cybrain

In this video blog, MSK Partner & International Trade Practice Chair Susan Kohn Ross covers the latest developments with the 301 tariffs. 

At the end of the day on September 17, 2018, the U.S. Trade Representative issued notice that List 3 of the China tariffs has been finalized and takes effect with a 10% tariff on September 24, 2018. If “sufficient” progress is not made with the Chinese as defined by the Trump Administration, that tariff rate will rise to 25% on January 1, 2019. List 3 is the list containing products worth $200 billion.

The USTR announcement can be found here. The original list of products was 6,031. The final list was reduced to 5,745 and can be found here.

To no one’s surprise, the Chinese immediately announced their own retaliatory action and those details can be found here. (more…)

California Legislative Efforts to Ban Non-Disclosure Agreements and Arbitration Agreements in the Workplace Edging Closer to Becoming Law

By Jonathan Turner

AB 3080, a closely watched bill affecting the workplace, recently passed the Senate and now is awaiting the Governor’s final approval.  A product of the “me too” movement, AB 3080 does a number of things that are intended to prohibit employers from limiting disclosure and discussion of alleged workplace harassment or discrimination, and to participate in harassment or discrimination investigations or proceedings.  The provisions in AB 3080 appear primarily to be directed to “nondisclosure agreements” and to arbitration agreements, although neither type of agreement is expressly identified as such in the text of the bill. (more…)

USCIS Extends (and Expands) Premium Processing Ban

World map created with passport stamps, travel concept

Photo credit: iStock.com/Delpixart

By David S. Rugendorf

The USCIS announced today that it is extending its ban on premium processing on certain H-1B petitions. Premium Processing allows an employer to seek an adjudication of a visa petition within 15 days upon payment of an additional filing fee, currently $1,225 (increasing to $1,410 on October 1, 2018). Employers should review their current and upcoming H-1B visa needs to determine how the ban will impact their matters, so they can plan accordingly.

To be specific, USCIS estimated earlier this year it would reinstate Premium Processing for H-1B cap cases in September 2018 (in roughly two weeks from now). The suspension of Premium Processing for Fiscal Year 2019 H-1B Cap Petitions is now expected to be extended through at least February 19, 2019. USCIS expects this suspension will help reduce the processing time for H-1Bs by allowing it to process long-pending petitions. In addition, USCIS states that the temporary suspension will allow them to be more responsive to petitions with time-sensitive start dates, as well as to prioritize adjudication of H-1B extension of status cases that are nearing their 240-day work authorization limit dates. (more…)

Will Semiannual Reporting Soon Be a Reality for Public Companies?

Adult banking analyst in eyeglasses working at sunny office on laptop while sitting at wooden table.Businessman analyze document in his hands.Graphs and diagramm on notebook screen.Blurred background.

Photo credit: iStock.com/Pinkypills

By Blake Baron & David Gordon

Last week, the President said that in his discussions with the business community on ways to improve the business ecosystem, one particular idea was raised as a means to bolster business: move to a six-month financial reporting calendar from the current quarterly one.

Now, there is an argument to be made for such a move. One could say this would help deter “short-termism,” seeing as how companies would no longer need to focus on meeting analyst expectations on a quarterly basis at the expense of longer term thinking (not to mention this would save businesses time and money). In addition, some executives view quarterly reporting as one of the hindrances to going public and/or maintaining public company status and, as a result, have already been advocating for changes to be made to the current reporting schedule. (more…)