MSK Blog

DFEH Issues New Workplace Harassment Guidance

By Anthony Amendola and Justine Lazarus

Since April 1, 2016, California employers subject to the Fair Employment and Housing Act (“FEHA”) have been required to comply with a number of amendments to the FEHA regulations that were adopted by the California Fair Employment and Housing Council (“FEHC”).  FEHA imposes an affirmative duty on employers to “take all reasonable steps to prevent discrimination and harassment from occurring.”  To effectuate that duty, the amended FEHA regulations expressly require employers to develop a written harassment, discrimination and retaliation prevention policy. More detailed information regarding the 2016 FEHC may be found here.

To aid employers in complying with their obligations under the FEHA and the 2016 FEHC amendments, the California Department of Fair Employment and Housing (“DFEH”) recently released a “Workplace Harassment Guide for California Employers,” which provides recommended practices for preventing and addressing workplace harassment.  The publication is intended to help employers develop effective anti-harassment programs, investigate reports of harassment, and understand what remedial measures they might pursue.  In short, the Guide discusses the following:

  • What is included in an effective anti-harassment program;
  • The basic steps required to conduct a fair investigation;
  • Confidentiality of investigations;
  • Timing of investigations;
  • Recommended practices for conducting workplace investigations, including impartiality, investigator qualifications and training, type of questioning, making credibility determinations, burden of proof, legal conclusions, and documentation;
  • Special issues, such as what to do if the target of harassment asks an employer not to do anything, investigating anonymous complaints, and retaliation; and
  • Implementing effective remedial measures.

The Workplace Harassment Guide for California Employers is available here. (more…)

Dissecting the TC Heartland Ruling – What Does This Mean for Patent Owners?

By Alesha M. Dominique

In an 8-0 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, No. 16-341, the U.S. Supreme Court placed tighter limits on where a patent owner may file a suit for patent infringement by holding that “a domestic corporation ‘resides’ only in its State of incorporation for purposes of the patent venue statute.”  The Court’s decision reverses Federal Circuit precedent that allowed a patent owner to file suit anywhere a defendant made sales.

In TC Heartland LLC, Kraft Foods Group Brands LLC (“Kraft Foods”) brought a patent infringement suit against flavored drink mix maker TC Heartland LLC (“TC Heartland”) in the U.S. District Court for the District of Delaware.  TC Heartland, organized under Indiana law and headquartered in Indiana, moved to transfer venue to the U.S. District Court for the Southern District of Indiana, arguing that under the patent venue statute, 28 U.S.C. § 1400(b), it did not “resid[e]” in Delaware and had no “regular and established place of business” in Delaware.  TC Heartland based its arguments on the Supreme Court’s decision in Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226 (1957), where the Court concluded that for purposes of § 1400(b) a domestic corporation “resides” only in its State of incorporation.

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Romaine Calm: FSVP is Approaching

By Susan Kohn Ross

Does FSVP Apply to You?

Are you the importer, consignee, or agent for food imported into the United States?  If so, the Foreign Supplier Verification Program for Importers of Food for Humans and Animals (FSVP), a key element of the Food Safety Modernization Act (FSMA), likely applies to you.  Implementation of the FSVP will begin on May 30, 2017, but categories of companies or foods may be subject to later compliance deadlines.  Where do you fit?

The FSVP regulations aligns with key components of the FDA’s overall food safety plan for facilities that manufacture, process, pack or hold food which must now establish and follow the regulations regarding current good manufacturing practice (CGMP) and hazard analysis and risk-based preventive controls for human food and animal food (Preventive Controls or PC).

What Is FSVP? (more…)

Due Your Duty

By Susan Kohn Ross

With the ever-increasing scrutiny being brought to compliance and the payment of duties on imported goods by Customs and Border Protection (CBP), it is worth commenting that any duties which are due when an entry liquidates may, in fact, end up having to be paid even if the related protest remains pending due to the legal and contractual relationship between the importer and his surety company.  Simply put, if a surety insists on receiving payment of any amounts demanded by CBP upon liquidation, the importer does not have any solid grounds to object.  Why would the surety do so if a protest is pending? Because the surety is looking to mitigate its risk. If the importer does not pay, the surety will have to do so, at least up to the face amount of any bonds it has written, and sureties try their best not to be put in that position. (more…)

Protecting Your Brand Overseas

By Evan M. Kent

It has been my experience that when many U.S. clients expand their businesses beyond national borders, they are unaware that their U.S. trademark registrations provide no protection in foreign jurisdictions.

Trademark ownership provides important commercial and legal benefits including the exclusive right to use the registered trademark and the right to sell or license it to another for profit. Further, trademark ownership gives one legal standing to prevent others from using or attempting to register similar or identical trademarks. Trademarks are considered to be tangible assets of the owner and add to the value of the shares of a company. If you are an exporter, or thinking about exporting in the future, you should seriously consider securing protection for your trademarks at the earliest possible date in those foreign markets which are or could be of interest. (more…)

DOJ Defines Compliance

By Susan Kohn Ross

In the span of the last 18 months, the topic of corporate compliance programs has gotten considerable attention from the Department of Justice  (“DOJ”) and now finally, DOJ has published significant details about how it is likely to measure the sufficiency of any company’s compliance program.

First, some background.  In September 2015, the Yates memo was published, see DOJ Sets Its Sights on Officers and Directors for more details. In short, then Deputy Attorney General Yates reminded the DOJ offices nationwide, if a corporation has violated the law,  its level of cooperation will be measured, in large part, by whether it provides “all” the relevant details, which means did the company identify the individuals whose actions or inactions resulted in the violations under consideration, and provide supporting documentation to show what happened and how those individuals were involved. If the company did not do so, it does not get full credit under the Sentencing Guidelines. (more…)

Implementation of Executive Order Imposing Temporary Travel and Refugee Ban

By Benjamin Lau and David Rugendorf

On March 6, 2017, President Trump reissuedbusiness travel the Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” with an effective date of March 16, 2017. The previous Executive Order 13769 of January 27, 2017, will be revoked on March 16, 2017, and replaced with this reissued Order.

The new Executive Order bans immigrant and nonimmigrant entries for nationals of six designated countries – Syria, Iran, Libya, Somalia, Sudan, and Yemen – for at least 90 days beginning on March 16, 2017. The new Executive Order specifically removes Iraq from the list of designated countries.   (more…)

U.S. Immigration to Suspend Premium Processing for All H-1B Petitions

By Stephen Blaker and Howard Shapiro

U.S. Citizenship and Immigration Services (USCIS) announced that as of Monday, April 3, 2017, it will not accept Premium Processing requests for H-1B visa petitions for a temporary period expected to last up to six (6) months. This applies to all H-1B visa petitions, including extensions, amendments, cap-exempt and new employment petitions, such as those to be submitted in the FY18 Bachelor’s and Master’s Caps. USCIS has indicated that the suspension is required to eliminate the backlog on long-pending H-1B visa petitions. Starting on April 3, 2017, USCIS will reject any H-1B visa petition that is filed with a Form I-907 and one (1) combined check for the I-129 filing fees and the I-907 filing fee. (more…)

Is the Border Tax Crossing the Line?

By Susan Kohn Ross and Jeffrey D. Davine

It is far too early to discern the extent of any change to the relationship between the U.S. and Mexico in the face of the oft-repeated insistence of the Trump campaign to “renegotiate” NAFTA, a promise that was reiterated once Mr. Trump was sworn into office. Following a prickly meeting last month between President Trump and Mexican President Enrique Peña Nieto, accounts from Mexico report the government as having started consultations with its business community, a process described as taking 90 days. The results of those consultations and how they might impact any further discussions with the U.S. remain to be seen. Similarly, President Trump and Canadian Prime Minister Justin Trudeau also met last month, but under somewhat more cordial circumstances. Again, next steps with Canada remain an open question. However, the overarching theme is the oft-repeated promise from the Trump Administration that a border tax will be imposed.  While nothing concrete has been proposed to date, how such a border tax might work has understandably caused varying levels of concern among American companies. Given there is nothing concrete to examine, in this Alert, we seek to provide a brief explanation of the concepts being bandied about. (more…)

Understanding UPMIFA: Delegation of Management and Investment of Endowment Funds

By David Wheeler Newman

The Uniform Prudent Management of Institutional Funds Act (UPMIFA or the Act) was adopted in 2006 by the National Conference of Commissioners on Uniform State Laws, as the successor to the Uniform Management of Institutional Funds Act (UMIFA), and has (on 1/1/2017) been enacted in every state except Pennsylvania. UPMIFA provides guidance and authority to charitable organizations concerning the management and investment of charitable funds and for endowment spending.

prior post focused on UPMIFA rules for endowments held by charitable organizations, including standards for determining the annual spending from those funds, while this post will address UPMIFA rules for the delegation of management and investment functions.

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