CALIFORNIA SUPREME COURT: EMPLOYEE CAN’T BRING CONVERSION CLAIM FOR UNPAID WAGES

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By Jeremy Mittman and Stephen Franz

Last week, the California Supreme Court ruled that a former start-up employee could not hold his former boss personally liable for unpaid wages based on the theory of common law conversion.  Conversion is a legal term for theft.  This is a win for employers as, if the Court had ruled otherwise, employers potentially could be held liable for tort damages (including punitive damages) for failing to pay wages. (more…)

NEW YORK STATE ENACTS BROAD NEW SEXUAL HARASSMENT & DISCRIMINATION LEGISLATION

Lawyers consulted on various lawsuits.

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by Jeremy Mittman and Gregory Hessinger 

Why This Matters

On August 12, 2019, New York Governor Cuomo signed into law legislation that greatly strengthens protections against sexual harassment. The bill, SB 6577, makes sweeping changes to current sexual harassment and discrimination laws.  Most will take effect 60 days from the date the Governor signed the bill, or on October 11, 2019. New York State employers should work with employment counsel to alter their policies and practices to comply with these new requirements.

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China Tariff Update: List 4, Next Steps

Truck in port

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By Susan Kohn Ross

While the Federal Register notice containing all the relevant details has yet to be published, today, the U.S. Trade Representative published an announcement confirming that certain unidentified products were removed from List 4 for health, safety, national security and similar reasons, and those remaining would be rolled out on two different lists with two different effective dates. List 4A will be effective September 1, 2019 and can be found here. List 4B can be found here, and will be effective on December 15, 2019. USTR notes the products on List 4B include “cell phones, laptop computers, video game consoles, certain toys, computer monitors, and certain items of footwear and clothing.” Given the contents of List 4B, one is left to wonder whether USTR was trying to avoid making Christmas too grim for American consumers! (more…)

The Trade War Wages On

Economic trade war between USA and China

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By Susan Kohn Ross

As has been repeatedly mentioned in the general press, President Trump tweeted on August 1st that the U.S. “will start, on September 1st, putting a small additional Tariff of 10% on the remaining 300 Billion Dollars of goods and products coming from China into our Country.” There are lots of questions about what that short message actually means, and right now, no answers. So far, there is no official notice from the U.S. Trade Representative (USTR) for publication in the Federal Register. There is nothing new posted on the USTR website. We know the President said he picked September 1st because there are goods on the water, but we do not know whether September 1st is the date by which the goods must arrive in the U.S., or must be exported from China. Will the products on List 4 change from those originally published? Whatever goods are on the final version of List 4, will at least some of the products be listed to the 10-digit level? Right now, all products are listed to the eight-digit level, but the descriptions assigned to those classifications, in some cases, do not include all the products encompassed by the very different products classified under that eight-digit number. This is typically the case due to either the type of good or its constituent material. (more…)

Foreign Trademark Applicants and Registrants Are Now Required to be Represented by U.S. Attorneys

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By Alesha M. Dominique and Dima S. Budron

The U.S. Patent and Trademark Office (USPTO) published a new rule on July 2, 2019, requiring trademark applicants, registrants, and parties to Trademark Trial and Appeal Board proceedings whose domicile is not located within the United States or its territories to be represented before the USPTO by a U.S.-licensed attorney as of August 3, 2019. Domicile is typically defined as the permanent legal place of residence of an individual or the headquarters of an entity. The rule does not retroactively apply to applications filed before August 3, 2019, but impacts such applications if an office action is issued on or after August 3, 2019, requiring the applicant to designate a U.S.-licensed attorney to respond. This rule is intended to streamline trademark registrations and reduce the potential of invalidations by providing the USPTO a more efficient way to enforce statutory and regulatory requirements.

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LET THE SUNSHINE IN: CALIFORNIA & NEW YORK PROHIBIT DISCRIMINATION BASED ON HAIRSTYLE

Three multi-racial office workers talking and laughing

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By Jeremy Mittman and Sam Richman 

Within the past two weeks, both California and New York have passed laws prohibiting employers from discriminating based upon hairstyle.  Governor Gavin Newsom signed California’s “CROWN Act” (Create a Respectful and Open Workplace for Natural Hair) on July 3, 2019.  The law amends the state’s Education and Government Codes to define “race or ethnicity” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” It takes effect on January 1, 2020. (more…)

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

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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.

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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

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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.”

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