25% Tariff Imposed on Chinese Goods

port

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By Susan Kohn Ross

The U.S. Trade Representative (USTR) today issued two lists of products on which the U.S. seeks to impose tariffs on goods made in China at a 25% rate. The lists together cover 1,102 tariff lines valued at approximately $50 billion. According to the USTR’s release, the list of products settled on was intended to focus on “products from industrial sectors that contribute to or benefit from the ‘Made in China 2025’ industrial policy,” and include aerospace, information and communications technology, robotics, industrial machinery, new materials and automobiles. Cellular telephones and televisions are not included. (more…)

California Courts of Appeal Pave the Way for More PAGA Claims

By Brett Thomas

The California Court of Appeal recently issued two employee-friendly rulings regarding the California Private Attorneys General Act (PAGA), which further expand PAGA’s reach.  PAGA is part of the California Labor Code and authorizes individuals to bring representative actions against employers to recover civil penalties for violations of the California Labor Code.

In the first, Huff v. Securitas Security Services USA, Inc., a California Court of Appeal addressed the issue of whether a plaintiff who brings a PAGA representative action may seek penalties not only for the Labor Code violation that affected him or her, but also for different Labor Code violations that affected other employees.  The Court held that PAGA allows a plaintiff to pursue penalties for all the Labor Code violations committed by that employer that affected any employee, provided that the plaintiff must have been affected by at least one Labor Code violation.  In other words, a plaintiff who brings a representative action under PAGA may seek penalties for violations that he or she did not even suffer.  (more…)

New Federal Act Amending Dodd-Frank Also Seeks to Help Startups

business concept money of glass and growht small tree

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By Mark Hiraide

In late May, President Trump signed the Economic Growth, Regulatory Relief and Consumer Protection Act. Although the president and many Republican members of Congress had threatened to repeal and replace Dodd-Frank, the new law’s actual changes are relatively minor. The new law rolls back some of the post-financial crisis legislation enacted in 2010, particularly for smaller community banks and credit unions. But it largely leaves intact the core framework of Dodd-Frank.

Less publicized but worthy of attention is the new law’s Title V—Encouraging Capital Formation, which amends the Securities Act of 1933 and Investment Company Act of 1940 with regard to early stage companies. Like the amendment to Dodd-Frank, the new law’s amendments to the federal securities laws are modest.  (more…)

232 Auto Investigation Timeline Published

By Susan Kohn Ross

The Federal Register notice advising the timeline which applies to the Administration’s 232 investigation regarding automobiles and parts was published on May 30, 2018.  The relevant time frame requires that written comments are due by June 22, 2018 and rebuttal comments by July 6, 2018.  A public hearing will be held on July 19 and 20, 2018.  All comments should be filed through www.regulations.gov referring to Docket Number DOC-2018-0002.

In particular, Commerce wants information about:

  • The quantity and nature of imports of automobiles, including cars, SUVs, vans and light trucks, and automotive parts and other circumstances related to the importation of automobiles and automotive parts;
  • Domestic production needed for projected national defense requirements;
  • Domestic production and productive capacity needed for automobiles and automotive parts to meet projected national defense requirements;
  • The existing and anticipated availability of human resources, products, raw materials, production equipment, and facilities to produce automobiles and automotive parts;
  • The growth requirements of the automobiles and automotive parts industry to meet national defense requirements and/or requirements to assure such growth, particularly with respect to investment and research and development;
  • The impact of foreign competition on the economic welfare of the U.S. automobiles and automotive parts industry;
  • The displacement of any domestic automobiles and automotive parts causing substantial unemployment, decrease in the revenues of government, loss of investment or specialized skills and productive capacity, or other serious effects;
  • Relevant factors that are causing or will cause a weakening of our national economy;
  • The extent to which innovation in new automotive technologies is necessary to meet projected national defense requirements;
  • Whether and, if so, how the analysis of the above factors changes when U.S. production by majority U.S.-owned firms is considered separately from U.S. production by majority foreign-owned firms; and
  • Any other relevant factors. (more…)

Which Way Is Up?

By Susan Kohn Ross

Living true to the times, it is nearly impossible to find predictability in current events. That fact makes it quite challenging for businesses, and we have recent events adding to the confusion.

One notable example is that on June 1, the suspension of the 232 tariffs on steel (25%) and aluminum (10%) expire on the relevant goods from Australia, Argentina, Brazil, Canada, Mexico and the EU member countries: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and United Kingdom.  Last reports indicate that negotiations with Australia continue, while the NAFTA renegotiations with Canada and Mexico seem mired in the automobile domestic content requirement.  (more…)

U.S. Supreme Court Rules That Class Action Waivers in Employment Arbitration Agreements Are Enforceable

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By Stephen Rossi

Last week, in an important win for employers, the U.S. Supreme Court resolved a circuit-split on whether class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA), holding that they are.

The Court decided three cases, Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA, Inc., and answered the question of whether class or collective action waivers contained in employment arbitration agreements violate the National Labor Relations Act (NLRA).  In 2012, the National Labor Relations Board (NLRB) ruled that employers violate the NLRA when they require employees, as a condition of employment, to agree to arbitration provisions containing class or collective action waivers, or clauses stating that employees must arbitrate any employment-related claims on an individual basis only (rather than on behalf of a class of other employees).  The U.S. Courts of Appeals for the Second, Fifth, and Eighth Circuits did not follow the NLRB’s ruling. The U.S. Courts of Appeals for the Seventh and Ninth Circuits reached the opposite result.

In a 5-4 decision, the U.S. Supreme Court held that neither the FAA nor NLRA prohibit class and collective action waivers in employment arbitration agreements.  The Court’s majority opinion, written by Justice Neil Gorsuch, first ruled that the “savings clause” in the FAA, which allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract,” applies only to general contract defenses (such as fraud, duress, or unconscionability).  It does not apply to defenses that specifically target arbitration, “either by name or by more subtle methods.”  The Court next held that class and collective actions are not “concerted activities” protected by Section 7 of the NLRA and that, for a variety of reasons, the NLRA does not trump the FAA in this instance.  Finally, the Court ruled that the NLRB’s decision was not entitled to the usual deference given to an administrative agency’s statutory interpretation because the decision interpreted the NLRA in a way that limited the FAA, which is not “administered” by the NLRB.  Justice Ginsburg authored a dissent joined by three other Justices.

The decision is a victory for employers, particularly those who already have such arbitration agreements in place.  Employers who do not have class or collective action waivers in their arbitration agreements should strongly consider adding them after consulting with qualified counsel.

New York City & State Implement Stronger Protections Against Workplace Harassment

New York City Dawn

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By Greg Hessinger

As states begin to focus heightened attention on sexual harassment in the workplace in the wake of the #MeToo movement, New York State (“NY State”) and New York City (“NYC”) have implemented stronger protections for employees against workplace harassment. The new requirements, which have been passed into law in NY State and NYC, will impact employers’ training, policies & procedures, and employment agreements for New York employees.

New York State: (more…)