GET BACK: NLRB OVERTURNS LONG-STANDING “PUBLIC SPACE” EXCEPTION

By Jonathan Turner

Canteen, cafeteria, hotel restaurant blur background with blurry dining table and chair in school or university food facility interior empty hall

Photo Credit: istock.com/noipornpan 

Why This Matters

In June, the National Labor Relations Board (“NLRB”) overturned a nearly 38-year old precedent when it ruled that employers may deny nonemployee union representatives access to areas of their property open to the public, like cafeterias or restaurants, when the union representatives are there to solicit for or promote union membership.  In this ruling, the NLRB overruled its previous decisions that had recognized a “public space” exception under which employers were required to permit non-employee union organizers to engage in union activity in public cafeterias or restaurants if the organizers used the facility in a manner consistent with its intended use and were not disruptive. (more…)

Timing Is Everything

Law should know concept, The lawyer explained to the client to plan the case in court.

Photo Credit: istock.com/Jirapong Manustrong

By Jeremy Mittman and Alfredo Ortega

Why This Matters

Earlier this month, the U.S. Supreme Court unanimously ruled in Fort Bend County v. Davis. The message received loud and clear for employers is that timing is everything when it comes to discrimination cases and the use of claim-processing rules, embedded in Title VII, as an affirmative defense. Employers would be well served to ‘watch the clock’ and avoid losing the opportunity to receive an early dismissal. The Court ruled that federal courts can hear discrimination claims under Title VII of the Civil Rights Act if employers do not timely raise the defense that workers failed to first file a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) or state enforcement agencies, as Title VII requires, before filing suit in federal court. Title VII is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, or religion. (more…)

China 301 List 3 Exclusion Process Announced

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By Susan Kohn Ross

 

In the June 20, 2019 pre-publication edition of the Federal Register, the U.S. Trade Representative announced the long awaited process for seeking exclusions for goods on List 3, the one which recently went from 10% to 25%. While the exclusion process itself generally mirrors the process applied to those goods on Lists 1 and 2, there are a few differences, but let’s start at the beginning.

Any exclusion request for List 3 goods must be filed between June 30 and September 30, 2019. The request must be filed through the portal: http://exclusions.ustr.gov (active beginning June 30, 2019). One new wrinkle is parties must register in the portal before filing. (more…)

Tariff Turbulence Continues to Fly!

USA Mexico Trade War

Photo credit: iStock.com/wildpixel

By Susan Kohn Ross

Putting all the hyperbole and posturing to one side, the recent agreement between Mexico and the U.S. which averted the tariffs can be found in the U.S. – Mexico Joint Statement released June 7, 2019. It consists of a few broad policy statements:

  1. Mexico will deploy its National Guard throughout Mexico, giving priority to its southern border – meaning the border with Guatemala;
  2. Mexico will take “decisive” action to dismantle human smuggling and trafficking organizations and their illicit financial and transportation networks;
  3. The U.S. and Mexico will strengthen bilateral cooperation, including information sharing and coordinated actions to better “protect” and “secure” their common border;
  4. The U.S. will immediately expand the existing Migrant Protection Protocols so that those crossing into the U.S. to seek asylum will be “rapidly” returned to Mexico where they “may” await adjudication of their asylum claims;
  5. Mexico agrees to “authorize” the entrance of those individuals for humanitarian reasons, in compliance with its international obligations, while they await adjudication of their claims;
  6. Mexico will offer jobs, healthcare and education to those individuals according to its principles; and
  7. The U.S. commits to “work to accelerate” the adjudication of asylum claims and “conclude removal proceedings as expeditiously as possible.”

(more…)

US Visa Applicants Now Required To Provide Social Media Identifiers

Social media concept

Photo credit: iStock.com/Urupong

By Benjamin Lau and David Rugendorf.

On May 31, 2019, the US Department of State updated their Form DS-160 (online nonimmigrant visa application) and Form DS-260 (online immigrant visa application) to collect social media identifiers for those applying for nonimmigrant and immigrant visas. Applicants for US visas are now being asked to provide all social media identifiers they have used within the past five (5) years. This update was announced in a statement to the press by a US Department of State official on June 1, 2019.

A social media “handle” or “identifier” is any name used by the individual on social media platforms including, but not limited to, Facebook, Twitter, and Instagram. The updated visa application forms currently employ a drop-down menu which list the specific social media platforms for which identifiers are being requested. An example of the drop-down menu from online visa application form can be seen below: (more…)

Trade Trouble – East, West and South, but North is Settled for Now!

Container Ship Enroute to Port

Photo credit: iStock.com/Darwin Brandis

By Susan Kohn Ross

Agriculture Secretary Perdue recently stated the trade damages to be addressed in a new round of farm aid is $15 to $20 billion! The general press is replete with stories about how, as these tariffs continue, companies are making sourcing changes that will be hard to reverse. So, what is the latest news?

First, there is trade with China. It seems clear that unless there is a breakthrough at the G-20 meeting in Tokyo, or shortly thereafter, the anecdotal headaches we hear about will get far more costly. The American Chamber of Commerce in China and the American Chamber of Commerce in Shanghai conducted a survey before List 3 was announced. Even at that point, American companies operating in China acknowledged higher production costs, decreased demand for products, reduced staffing, reduced profits, increased inspections at importation, increased bureaucratic oversight and regulatory scrutiny, slower approval of licenses and permits, higher product rejections, and increasing plans to relocate (but not back to the U.S.). (more…)

HIT THE ROAD, JACK: UBER DRIVERS ARE INDEPENDENT CONTRACTORS ACCORDING TO NLRB

Taxi navigation

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By Jonathan Turner

Why This Matters

On May 14, the National Labor Relations Board (“NLRB”) released an advice memorandum declaring that Uber drivers are independent contractors (not employees) and are, therefore, not eligible to unionize.  The memo, dated April 16, 2019, said the drivers are independent contractors under the NLRB’s recently-adopted SuperShuttle test (see here), because they have “significant entrepreneurial opportunity” while driving for Uber.   The NLRB’s standard only applies in the labor context.  It does not apply to California wage claims and lawsuits, where the California Supreme Court has adopted the ABC Test set forth in Dynamex (see here). (more…)

Are you rEDDy for the Audit?

Incoming Financial Audit

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By Jeffrey Davine

We regularly assist clients with worker classification audits that are conducted by both the Internal Revenue Service (the “IRS”) and the California Employment Development Department (the “EDD”).  It appears that these types of audits may be occurring with greater frequency than in the past. Waiting until after the IRS or the EDD comes calling to review the status of these workers is not a good option.

There are two categories of workers- employees and independent contractors.  From the perspective of a business, classifying a worker as an independent contractor is usually less expensive and entails fewer administrative burdens than classifying a worker as an employee.  This is because various tax obligations (such as withholding and remitting income and employment taxes) are triggered when a worker is classified as an employee.  In addition, if a worker is an employee he or she may be eligible for certain fringe benefits such as paid vacation, health insurance, and retirement plan participation.  Moreover, labor laws impose numerous obligations on a business when it hires an employee.  These tax and administrative requirements do not need to be satisfied when engaging an independent contractor.  (more…)

Wealthy Californians (and their Children) Can Breathe a Sigh of Relief

Calculator with wooden house and coins stack and pen on wood table. Property investment and house mortgage financial concept

Photo credit: iStock.com/marchmeena29

By Joyce Feuille

Wealthy Californians, and more importantly, their children and grandchildren, can pop that champagne. The bill that would have imposed a California gift, estate, and generation skipping transfer tax appears to be dead – – at least for now. It will not get a floor vote in the California Legislature.  Absent a floor vote, the California bill will not obtain the required approval of the California Legislature to put it on the November 2020 ballot. (more…)

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…)