Travel Ban 3.0 May Take Effect (For Now), U.S. Supreme Court Rules

The latest version of the Trump Administration’s travel ban may take effect pending decisions expected shortly from the Courts of Appeals for the Fourth and Ninth Circuits, the U.S. Supreme Court has ruled.

The third iteration of the travel ban (Travel Ban 3.0), implemented in late-September, restricts travel to the U.S. for individuals from Chad, Iran, Libya, Somalia, Syria, and Yemen.  Travel Ban 3.0 also limits travel for individuals from the non-majority Muslim countries of North Korea and Venezuela.

Travel Ban 3.0 was targeted to cover specific categories of visa travelers. Two federal court judges had issued injunctions limiting implementation of the revised travel ban. They indicated that individuals would still be eligible for visas if they had a “bona fide” relationship to someone in the United States, including grandparents, nieces, nephews, cousins, and brothers- and sisters-in-law, or to an entity in the United States, such as an employer or a university.

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By a 7-2 decision, with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting, a majority of the Supreme Court overruled the lower court injunctions, allowing the travel ban to be implemented in full. The Court noted that the Ninth Circuit and the Fourth Circuit courts are both hearing oral arguments on the substantive legality of the travel ban within a week, and the Court expects decisions will be issued “with appropriate dispatch.” A decision on the underlying merits is expected to be appealed to the Supreme Court, potentially to be decided this term.

Attorney General Jeff Sessions stated that the Court’s ruling allowing the President’s proclamation to go into effect was “a substantial victory for the safety and security of the American people.”

Omar Jadwat of the ACLU, which represents some of those challenging the ban, stated: “It’s unfortunate that the full ban can move forward for now, but this order does not address the merits of our claims. . . . We will be arguing Friday in the Fourth Circuit that the ban should ultimately be struck down.”


Jackson Lewis P.C. © 2017

This post was written by Michael H. Neifach of Jackson Lewis P.C.

Read more immigration legal updates.

The Agricultural Guestworker Act Gaining Ground

In October, the Agricultural Guestworker Act of 2017 (House Resolution 4092), introduced by U.S. Rep. John Goodlatte (R-Va.), was passed by the House Judiciary Committee and sent to the full House. Michigan’s lone representative on the committee, Rep. John Conyers (D), voted against it.

John Kran, national lobbyist with Michigan Farm Bureau, commented that “any farmer who’s dealt with this issue will tell you that the availability of domestic workers continues to decrease. This bill not only deals with the seasonal workforce, but the need for year-round ag workers.” The need for such legislation is clear, at least to farmers. Currently, the only way farmers can have the peace of mind about a legal workforce is to go through the H-2A program, which is so notorious for burdensome paperwork, long lead times and woefully complicated processes that Michigan Farm Bureau established the Great Lakes Agricultural Labor Services (GLALS) to help farmers successfully navigate the process.

Goodlatte’s legislation would create a new H program, called H-2C, under which a new guest-worker program would be established, allowing farmers to hire workers for up to 18 months for seasonal labor and 36 months for year-round labor, such as are needed on dairy farms, other livestock operations, and food processing, including meat packing. “Michigan dairies have a huge need for the longer visa, and poultry and hog operations have trouble finding people too,” Kran said. “The bill isn’t perfect, but it’s a good place to start.” Among the things Farm Bureau would like to see changed in the bill is a mandatory limit on the number of workers allowed in. The bill proposes that the number be capped at 450,000 per year, with an ‘escalator’ for additional need.


© 2017 Varnum LLP
This post was written by Aaron M. Phelps of Varnum LLP.
Read more Immigration legal updates.

Restitution for the Corporate Victim

Corporations and businesses of all varieties risk falling victim to crimes committed by their employees and becoming ensnared in criminal investigations of their vendors and business partners. When wrongdoers are convicted federally, the Mandatory Victims Restitution Act (MVRA) requires that they make restitution for losses directly caused by their criminal conduct. In addition to direct losses, entities often incur additional losses when cooperating with and responding to a government investigation.

The MVRA provides for the recovery of these ancillary losses, but there is more to the process than simply submitting an invoice to the government to qualify for restitution. Indeed, recent cases make clear that there are limits to how far courts will go in making victims whole. To ensure maximum recovery for their clients, counsel should know of the limitations and how to present a successful claim.

Corporations as a “Victim”

Of course, to qualify as a victim entitled to restitution under the MVRA, a corporation must be “directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.” Qualifying offenses include: (i) crimes of violence; (ii) offenses against property, including any offense committed by fraud or deceit; and (iii) offenses related to tampering with consumer products.

Republished with permission from the Connecticut Law Tribune.  Originally published here.

Read other articles in the series:

Fourth Amendment Exception Allows Customs to Search Personal Devices.

Exploring the Boundaries of the Fifth Amendment.

Go to the National Law Review’s Corporate Page for more information.

Cheers! Brewers Will Have Reason to Toast if Proposed Tax Changes Become Law

Much press has been given to recent efforts in Congress to reform the federal tax code. The House and the Senate have each proposed their own bills to amend the tax laws, and congressional leaders are fervently trying to reconcile the two.  Amid all of this attention to tax changes, a rarely mentioned provision in the Senate bill currently under consideration grants temporary relief to brewers by reducing the federal excise tax on beer.

Beer is heavily taxed. Whether the historical policy rationale for beer’s steep taxation remains relevant today can be debated, but there is no debate that beer is currently one of the most heavily taxed industries in the United States.  However, brewers might feel some financial relief if the current congressional proposal to lower the federal excise tax on beer becomes law.

All beer sold in the United States is subject to federal excise tax which is calculated on a per-barrel basis. Currently, the excise tax is assessed at a rate of $18 per barrel of beer.  However, small domestic brewers, those who produce less than 2,000,000 barrels per year, enjoy a lower tax rate of only $7 per barrel for the first 60,000 barrels sold and $18 per barrel for any sales in excess of the 60,000 barrels.

Although the excise tax on beer is paid by the brewer, in reality the tax is passed on to the consumer in the form of a higher price for the product. Because a barrel contains 31 gallons, and each gallon is 128 fluid ounces, a barrel holds about 330 twelve ounce bottles or cans of beer.  This means the tax on a barrel could be passed on to as many as 330 beer drinkers!

The Senate bill, as written on November 28, 2018, would reduce the excise tax on beer in two ways. First, the excise tax for all brewers would be reduced from $18 per barrel to $16 per barrel on the first 6,000,000 barrels sold each year.  Every brewer, even the largest ones, would benefit from this reduced tax rate.  Second, domestic brewers producing less than 2,000,000 barrels per year would experience a reduction in the excise tax on the first 60,000 of barrels sold from the current rate of $7 per barrel to $3.50 per barrel.  These two changes to the tax law would apply only for years 2018 through 2020.  In 2021, the tax rates would return to their current levels.  Because the tax reduction is only temporary, consumers should not expect to see an immediate corresponding drop in beer prices.

The table below illustrates the tax savings various sized brewers would realize if the Senate proposal becomes law.

The proffered policy rationale for temporarily reducing the excise tax on beer is to encourage brewers to create jobs and make capital investment. The theory behind this policy is that if the tax burden on brewers is temporarily reduced, brewers could invest the savings into growing their operations and boosting the economy.

No new law is ever certain until it has been passed by both houses of Congress and signed by the President. Nonetheless, brewers should keep an eye on the ultimate fate of the Senate proposal and have a plan for how they will deploy the resulting tax savings if the bill ultimately becomes law.

This post was written by Zachary F. Lamb and Hayley R. Wells of Ward and Smith PA.

How Prevalent is Harassment in Organizations?

Recently it seems that we are constantly learning about another high profile individual who has allegedly engaged in sexual misconduct / harassment in the workplace.  These disclosures beg the question of how prevalent is sexual (or other forms of unlawful) harassment in our workplaces.  It is easy to believe that for every high profile individual who has misbehaved, there are countless of other employees who have similarly misbehaved.  Moreover, many of the recent disclosures suggest that the employer in question knew or had reason to know of the alleged misconduct, which had occurred over an extended period, but failed to take any prior action.  So what should organizations do now?

First, organizations should ensure that they have a comprehensive anti-discrimination policy, which includes a procedure for employees to share any concerns about harassment.  Second, organizations must educate its employees at all levels of the organization of its policy and procedure so that they become part of the organization’s culture.  Third, organizations can conduct training on its policy and the law prohibiting harassment.

Supervisors need to be regularly trained to identify conduct that could be considered harassment and how to address it, not ignore it.

Employees need to know that they are entitled to work in a harassment free environment, that they will be held accountable for their behavior at work and for their behavior out of work that can affect the work environment, and that the organization wants them to report any concerns regarding harassment so that they can be addressed.  With these steps, an organization should be able to create a culture that can quickly deal with any concerns of harassment before they present legal liability.

Authored by:  Michael Colgan Harrington of Murtha Cullina 

 © Copyright 2017 Murtha Cullina

Go to the National Law Review’s Labor & Employment Page for more information.

Saliva Test Predicts Prolonged Concussion Symptoms in Children

According to the American Academy of Pediatrics, although the majority of concussions that are diagnosed annually occur in children, clinical guidelines are usually based on adult concussion sufferers. The lack of guidelines may limit the ability of pediatricians to accurately predict the duration of a child’s symptoms, including headaches, fatigue, and concentration problems — which can interfere with school and other activities.

In many concussion cases, concussion symptoms last only a few days. However, up to 25 percent of children have prolonged concussion symptoms which can last for months.

Concussion Symptom Saliva Test Study Presented at Annual Meeting

New research presented at the 2017 Pediatric Academic Societies (PAS) Meeting suggests that a saliva test for children may offer answers as to how long concussion symptoms will last. Researchers presented an abstract of the study, “Peripheral microRNA patterns predict prolonged concussion symptoms in pediatric patients.” The PAS Meeting is produced through a partnership of four organizations: Academic Pediatric Association, American Academy of Pediatrics, American Pediatric Society, and Society for Pediatric Research.

Results of Concussion Symptom Saliva Test Study

Following a concussion, injured brain cells release fragments of genetic material (microRNAs) which show up in blood and saliva. Studies have found altered micro ribonucleic acids (miRNA) levels in the saliva of children with mild concussions. Similar miRNA changes have been found in cerebrospinal fluid of patients with severe brain injury.

Researchers at Penn State College of Medicine studied 50 children, ages 7 to 18 years old who experienced mild traumatic brain injury. Spit samples from each child were tested for miRNA levels. Concussion symptoms were evaluated through the parent and child Sports Concussion Assessment Tool (SCAT-3) surveys.

Researchers found that salivary miRNA levels were more effective than SCAT-3 surveys in predicting which children would continue to experience concussion symptoms that lasted longer than four weeks. The SCAT-3 surveys were less than 70 percent accurate in identifying children who would have prolonged concussion symptoms. The miRNA saliva test correctly predicted whether concussion symptoms would last for at least a month nearly 90 percent of the time.

The saliva-based RNA testing indicates the potential for an accurate and non-invasive method to evaluate pediatric concussions and provide a more accurate prognosis.

This post was written by Bruce H. Stern of STARK & STARK., COPYRIGHT © 2017
For more Health Care Law legal analysis go to The National Law Review

The ABA Presents: Air & Space Catalog

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