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Since 1908, Mitchell Silberberg & Knupp LLP (MSK) has proven its ability to understand the complex, demystify the mysterious, and define the unknown. With more than 130 lawyers and offices in Los Angeles, New York, and Washington D.C., MSK is often distinguished as a “go-to” firm by industry and legal insiders, and has extensive experience in a variety of practice areas, including Entertainment & IP Litigation, Labor & Employment, Motion Picture, Television & Music Transactions, Immigration, Corporate Securities, Regulatory, Tax, Trusts & Estates, Real Estate and International Trade. Relentlessly innovative, our lawyers have developed groundbreaking legislation, established influential precedents, and shaped the legal landscape. For more information, visit www.msk.com.

NLRB’s General Counsel’s Office Releases Seven New Advice Memos

By Jonathan Turner

Photo credit: iStock.com/BCFC

On July 13, 2018, the National Labor Relations Board (NLRB) released seven new memos from its Division of Advice, which is part of the NLRB’s Office of the General Counsel.  The memos resulted from requests for guidance by various NLRB Regional Directors on cases their offices were handling.  The General Counsel’s office can release advice memos to the general public at its discretion after a case has been closed.  The earliest of the seven memos was issued in 2014 and the latest is dated June 14, 2018.  (more…)

China 301 List 2 – Effective August 23, 2018

USA and Chinese flags on mountain signpost.

Photo credit: iStock.com/Darwel

By Susan Kohn Ross

USTR Lighthizer yesterday published notice that the 25% tariff on goods appearing on List 2 will become effective on August 23, 2018. For those who wonder if filing comments makes a difference, the answer is yes! In his announcement, USTR Lighthizer made the point the list dropped from 284 to 279 tariff items based on testimony and comments which had been received. None of this, of course, helps those companies which are taking a serious financial hit from these tariffs, but then once the official notice is published in the Federal Register, an exclusion request will be included, and so companies should be gearing up to do two things: (more…)

U.S. – China Trade War Heats Up Even More!

By Susan Kohn Ross

Update on the China 301 List 3 Products

On August 1, 2018, USTR Lighthizer issued a press release indicating he was following through with President Trump’s direction and will consider raising the rate of duty from 10% to 25% on those products on the China 301 List 3. A formal notice in the Federal Register is expected soon.

Mr. Lighthizer also announced the written comment period is being extended to September 5, 2018, while the deadline to request to appear at the public hearing is changed to August 13, 2018. The hearing itself is still scheduled for August 20 to 23, 2018.

Then on August 2, there was a new publication which appeared on the USTR website. In it, USTR clarified the August 17, 2018 deadline for comments regarding products on the China 301 List 3 has also been extended to September 5, 2018. (more…)

Brief Updates on China 301 List 3

By Susan Kohn Ross

On August 1, 2018, USTR Lighthizer issued a press release indicating he was following through with President Trump’s direction and will consider raising the rate of duty from 10% to 25% on those products on China 301 List 3. A formal notice in the Federal Register is expected soon.

Mr. Lighthizer also announced the written comment period is being extended to September 5, 2018, while the deadline to request to appear at the public hearing is changed to August 13, 2018. The hearing itself is still scheduled for August 20 to 23, 2018.

There is a new publication which appeared on the USTR website on August 2, 2018. In it, USTR clarifies the August 17, 2018 deadline for comments regarding products on the China 301 List 3 has also been extended to September 5, 2018.

8/7/18 UPDATE:

In the August 7, 2018 Federal Register, U.S. Trade Representative Lighthizer published the latest official timeline for those planning to participate in the China 301 List 3 proceedings. The relevant dates are:

  • August 13, 2018 – due date for filing requests to be a witness and a summary of expected testimony;
  • August 20-23, 2018 – public hearing dates;
  • September 6, 2018 – due date of submission of comments and post-hearing rebuttal comments – this deadline was previously announced as September 5, 2018.

For those planning to participate in this part of the 301 case, these are the dates by which to be governed.

Employers Cannot Rely on the De Minimis Doctrine to Avoid Paying Small Amounts of Regularly Occurring Off-the-Clock Work

By Emma Luevano

The de minimis doctrine, which states that the law does not concern itself with “trifles,” has been applied by federal courts to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.  On Thursday, July 26, 2018, the California Supreme Court ruled that this doctrine does not apply when the otherwise compensable time occurs regularly.  According to the Supreme Court, the advent of modern technology in recording time makes reliance on the de minimis rule nearly unnecessary.  The Supreme Court, however, left for another day whether the de minimis doctrine can excuse an employer from paying for compensable time which does not occur regularly.

In Troester v. Starbucks Corp., a Starbucks employee claimed that, after clocking out, he was required to perform tasks such as transmitting sales data, setting alarms, and sometimes bringing in patio furniture or walking coworkers to their cars, which took an additional 4 to 10 minutes of time per day.  A federal judge dismissed the case, finding that it would be impractical to require Starbucks to record the brief amounts of time employees spent doing work tasks before leaving their stores.  The plaintiff appealed, and the Ninth Circuit Court of Appeals asked the California Supreme Court to decide whether the de minimis rule applies to claims for unpaid wages brought under California Labor Code Sections 510 (providing for overtime pay), 1194 (setting forth a private right of action for minimum wage and overtime violations), and 1197 (providing for minimum wage).  In Thursday’s ruling, the Supreme Court addressed the question in two parts.  (more…)

My H-1B Was Rejected In The Lottery! What Now?

Close-up detail of American VISA

Photo credit: iStock.com/AlxeyPnferov

By Benjamin Lau and John E. Exner IV

You did everything right. You got into the best school, you got the necessary work experience, you found an employer willing to sponsor you for an H-1B visa, and you filed on April 1. However, despite all your work, your case was not selected as part of this year’s H-1B lottery. Through forces beyond your control, you are now back to square one, wondering whether you must now leave the United States.

But wait! There may still be an alternative visa option available to you within the alphabet soup of U.S. work visas. So, before throwing in the towel and packing your bags, you may want to consider the list of alternative U.S. work visa categories below. One of these alternative visas may offer you the best chance for future employment in the United States – and while the list is not conclusive, it represents the most likely options for you to secure U.S. work authorization. (more…)

Talking Trade: The Latest on 232 & 301

July 10, 2018
Talking Trade: 301 & 232 – What’s New

In this video blog, MSK Partner & International Trade Practice Chair Susan Kohn Ross covers what’s new with the 301 & 232 tariffs, including exclusions, the timeline, the 232 process, alternate sourcing, and more.

July 11, 2018
Talking Trade: China 301 – List 3 is Here

In this video, Su Ross provides the update that the new List 3 is now a reality and further explores what this new List entails. For more information on List 3, see this alert.

China 301: List 3 Now A Reality

China United States Trade Solution

Photo credit: iStock.com/wildpixel

By Susan Kohn Ross

Late on July 10, 2018, U.S. Trade Representative Lighthizer released a list of the next Chinese-made products targeted for additional duties, this time at a 10% rate and worth about $200 billion. The statement in support of this action can be found here, and the list of affected products here. As before, the list of products is released in Federal Register pre-publication format.

The dates to keep in mind are as follows… (more…)