Tariff Turmoil Gets Hotter!
As has been widely reported, on Friday, first President Trump announced and then USTR Lighthizer confirmed the 301 tariffs on goods out of China will increase. Specifically, the tariffs on the goods on Lists 1, 2 and 3 will rise from 25% to 30% starting October 1, 2019, while the tariffs on the List 4 products will start at 15% on September 1, 2019 or December 15, 2019, rather than the original 10%, depending on whether your product is on List 4A or List 4B. USTR also acknowledged there will be a notice and comment period provided in the Federal Register notice to follow. While no doubt many American traders hope the possibility exists to remove products from any of the lists, that seems highly unlikely. While this upheaval continues, companies should also keep in mind the ability to seek exclusions for goods on List 3 expires on September 30, 2019. The exclusion process for goods on List 4 has still not been published. Continue reading “Tariff Turmoil Gets Hotter!”
ICE To Increase STEM OPT Worksite Inspections
By Benjamin Lau and David Rugendorf
U.S. Immigration and Customs Enforcement (“ICE”) has recently increased site visits for employers who employ F-1 students under STEM OPT (short for Science, Technology, Engineering, Mathematics Optional Practical Training) work authorization. While ICE has had this authority since the STEM regulations were passed in 2016, the agency only recently started conducting site visits to ensure that employers and F-1 students remain in compliance with the regulations governing F-1 STEM OPT work authorization.
What Is STEM OPT?
STEM OPT allows eligible F-1 visa students with STEM degrees from accredited U.S. colleges or universities to apply for an additional 24 months of Occupational Practical Training. This is in addition to the initial, one-year post-completion OPT granted to all non-STEM-degree F-1 students. In addition to the STEM degree requirements, the F-1 visa student must secure employment with a bona fide employer, work a minimum of 20 hours per week for that employer, and the employer must provide a formal, practical training and learning program within the STEM field which is related to the F-1 student’s degree. Details of the training program are outlined by the employer on Form I-983, which is submitted to and approved by the Designated School Official at the F-1 student’s academic institution.
What Is a Site Visit? Continue reading “ICE To Increase STEM OPT Worksite Inspections”
California Supreme Court: Employee Can’t Bring Conversion Claim for Unpaid Wages
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. Continue reading “California Supreme Court: Employee Can’t Bring Conversion Claim for Unpaid Wages”
New York State Enacts Broad New Sexual Harassment & Discrimination Legislation
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.
Continue reading “New York State Enacts Broad New Sexual Harassment & Discrimination Legislation”
China Tariff Update: List 4, Next Steps
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! Continue reading “China Tariff Update: List 4, Next Steps”
The Trade War Wages On
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. Continue reading “The Trade War Wages On”
Foreign Trademark Applicants and Registrants Are Now Required to be Represented by U.S. Attorneys
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.
Let the Sunshine In: California and New York Prohibit Discrimination Based on Hairstyle
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. Continue reading “Let the Sunshine In: California and New York Prohibit Discrimination Based on Hairstyle”
Get Back: NLRB Overturns Long-Standing “Public Space” Exception
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. Continue reading “Get Back: NLRB Overturns Long-Standing “Public Space” Exception”
Timing Is Everything
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. Continue reading “Timing Is Everything”
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