The National Law Forum

President Trump to Give State of Union Address; Senate to Vote on Ross’ Nomination; Pentagon to Submit Its Anti-ISIS Plan

President Donald Trump is preparing to release another immigration-related Executive Order (E.O.) that is expected to refine a previous directive that banned Syrian refugees from entering the United States and suspended the issuance of visas and admission into the United States for foreign nationals from seven countries of “particular concern.” The President will address a joint session of Congress on Tuesday and give a speech expected to focus on the renewal of the American spirit.

The U.S. Congress returns to Washington on Monday, 27 February, with the Senate scheduled to vote that evening on Wilbur Ross’ nomination to serve as Secretary of Commerce. The Pentagon is also set to submit its plan for defeating ISIS to the White House on Monday.

Syria: Combatting ISIS – DoD Plan Completed

Secretary of Defense Jim Mattis concluded his first trip to the Middle East on 20 February, a trip that included stops in the United Arab Emirates and Iraq. Pentagon Press Operations Director Navy Capt. Jeff Davis told reporters on Tuesday that Secretary Mattis gained valuable insight as he prepares to make key policy decisions, including submitting the results of a review of the Defense Department’s (DoD) strategy to defeat ISIS to the White House this week.

Chairman of the Joint Chiefs of Staff Gen. Joseph Dunford said of the military-political plan at a Brookings Institution event last week: “In the development of the plan, we have been engaged at every level of the State Department” he said. Chairman Dunford added: “Anything we do on the ground has to be in the context of political objectives or it is not going to be successful.” The intelligence community and the Treasury Department have also participated in development of the plan.

Pentagon Spokesperson Capt. Jeff Davis told reporters on Friday that the Pentagon has supported an Authorization for Use of Military Force (AUMF) against ISIS under both the Trump and Obama Administrations. “An AUMF would make a lot of our congressional authorities clearer, and that thinking has not changed,” Davis said.

Senate Armed Services Committee Chairman John McCain (R-Arizona) recently traveled to Syria to speak with U.S. forces there about the campaign against ISIS, according to his office last Wednesday. His trip comes as U.S. Central Command Commander Gen. Joseph Votel told reporters that the Pentagon is considering whether to deploy additional troops to Syria. Chairman McCain met next with Saudi King Salman bin Abdulaziz al-Saud on 21 February. The two reportedly discussed regional issues and enhancing U.S. cooperation with the Kingdom.

Senate Foreign Relations Committee (SFRC) Chairman Bob Corker (R-Tennessee) and Ranking Member Ben Cardin (D-Maryland) sent a letter to Secretary of State Rex Tillerson dated 22 February that urged the Administration to “ensure Assad, Russia and Iran are made to answer for the war crimes and crimes against humanity committed in Syria.” While all 10 Democratic Members of the SFRC signed the letter, Republican committee members appeared to be more reluctant in signing. The letter also asks for an update on the Administration’s steps to document war crimes and crimes against humanity in Syria.

Iranian Naval Exercise Underway

Iran launched naval drills on Sunday, amid increased tension with the United States after the Trump Administration put “Iran on notice.” The U.S. Navy’s Fifth Fleet is based in the region.

Russia – Washington Scrutiny

Washington and the media continue to focus on increased allegations of Russian meddling in the United States. House Intelligence Committee Chairman Devin Nunes (R-California) said at this point there is no evidence of improper influence with respect to the Trump Administration, adding the House would not engage in a “witch hunt.” Senator Tom Cotton (R-Arkansas), who serves as a member of the Senate Select Committee on Intelligence, cautioned this weekend against some calls for a special prosecutor to investigate the Administration’s alleged ties. Meanwhile, the Senate Intelligence Committee is conducting an investigation of Russia’s effort to influence the 2016 U.S. election.

Mexico City Trip Readout

Secretary Tillerson and Secretary of Homeland Security John Kelly met Thursday with several Mexican officials, including Mexican President Enrique Peña Nieto. According to the State Department, both sides acknowledged that “two strong sovereign countries from time to time will have differences,” while also reaffirming “close cooperation on economic and commercial issues such as energy, legal migration, security, education exchanges, and people-to-people ties.”

Both sides also agreed the “two countries should seize the opportunity to modernize and strengthen our trade and energy relationship.” With respect to border security, the discussion included: (1) dismantling transnational criminal organizations that move drugs and people into the United States; (2) stopping the illicit flow of firearms and “bulk cash” that is originating in the United States and transiting to Mexico; and (3) curtailing irregular migration, which includes securing Mexico’s southern border and supporting efforts to stem the migration from Guatemala, Honduras, and El Salvador.

Press Secretary Spicer said of the bilateral meetings at the Thursday press briefing:

“Both sides had a candid discussion on the breadth of challenges and opportunities as part of the U.S.-Mexico relationship. The conversation covered a full range of bilateral issues, including energy, legal migration, security, education exchanges, and people-to-people ties.”

Peru Bilateral Meeting

President Trump met on Friday with Peruvian President Pedro Pablo Kuczynski, who was in the United States to receive an award from Princeton University. In remarks before the bilateral meeting, President Trump said Peru has been a “fantastic neighbor.” President Kuczynski noted: “Latin America needs to grow more, and we’re going to talk about how to do that.” White House readout of the meeting reflected: “President Trump underscored the continued United States commitment to expanding trade and investment ties with Peru and others in the Asia-Pacific region.” The two leaders also discussed the political and economic situation in Venezuela. President Trump also thanked Peru for hosting the 8th meeting of the Summit of the Americas next year.

Human Trafficking – A Priority

President Trump led a listening session on domestic and international human trafficking on Thursday. He acknowledged:

“Human trafficking is a dire problem, both domestically and internationally, and is one that’s made really a challenge [sic]. And it’s really made possible to a large extent, more of a modern phenomenon, by what’s taking place on the Internet, as you probably know. Solving the human trafficking epidemic, which is what it is, is a priority for my administration”

He said he would direct the Departments of Justice and Homeland Security, as well as other federal agencies, to examine its resources and determine whether additional resources are needed to combat human trafficking: White House Press Secretary Sean Spicer said of the meeting: “Their expertise [re: meeting participants] will be invaluable to the President as he engages with members of Congress to raise awareness about, and push through, legislation aimed at preventing all forms of the horrific and unacceptable practice of the buying and selling of human lives.”

Foreign Policy Congressional Hearings This Week

On Tuesday, 28 February, the Senate Foreign Relations Committee is scheduled to hold a hearing titled “Iraq After Mosul.”
On Tuesday, 28 February, the House Foreign Affairs Subcommittee on the Western Hemisphere is scheduled to hold a hearing titled “Issues and Opportunities in the Western Hemisphere.”
On Tuesday, 28 February, the House Foreign Affairs Subcommittee on Asia and the Pacific is scheduled to hold a hearing titled “Checking China’s Maritime Push.”
On Wednesday, 1 March, the House Judiciary Committee is scheduled to hold a hearing titled “Section 702 of the Foreign Intelligence Surveillance Act.”
On Thursday, 2 March, the Senate Foreign Relations Committee is scheduled to hold a hearing titled “Venezuela: Options for U.S. Policy.”

Defense Congressional Hearings This Week

On Tuesday, 28 February, the House Armed Services Subcommittee on Oversight and Investigations is scheduled to hold a hearing titled “Hearing on Department of Defense Inspector General Report ‘Investigation on Allegations relating to USCENTCOM Intelligence Products.’”
On Wednesday, 1 March, the House Armed Services Committee is scheduled to hold a hearing titled “Cyber Warfare in the 21st Century: Threats, Challenges, and Opportunities.”
On Wednesday, 1 March, the House Armed Services Subcommittee on Tactical Air and Land Forces is scheduled to hold a hearing titled “U.S. Ground Force Capability and Modernization Challenges in Eastern Europe.”
On Thursday, 2 March, the Senate Armed Services Committee is scheduled to hold a hearing titled “Cyber Strategy and Policy.”

Looking Ahead

Washington is expected to focus on the following upcoming events:

28 February: President Trump to address a joint session of Congress
Mid-March?: Release of the President’s Budget for Fiscal Year 2018
14-15 March: Chile to host a Pacific Trade Summit in Vina del Mar, Chile
21-23 April: World Bank/International Monetary Fund Spring Meeting in Washington
28 April: U.S. Federal Government funding expires

ARTICLE BY Stacy A. Swanson of Squire Patton Boggs (US) LLP

4 Ways Attorneys Can Connect with Today’s Legal Consumers

Last year, an Avvo survey of 1,000 consumers who purchased legal services provided some important insights into what attorneys need to know about the modern legal consumer. The Avvo study offered a three-point description of today’s legal consumers. They are:

Informed — access to legal information online has made consumers more savvy than ever about the options available to them. They read legal articles, research their particular legal issue, research an attorney and visit legal forums online.

Connected — people now have immediate access to other legal consumers online and they are reading reviews about others’ experiences with attorneys. An overwhelming 95% said that online reviews were important when choosing a lawyer. Of those who received a referral, 45% still researched attorneys online.

Picky — legal consumers know there are a number of different ways to purchase services, including online forms, fixed fee options, etc. They are increasingly attracted to unbundled services, an a la carte solution for their legal issues. In fact, 76% said they prefer fixed fee billing arrangements.

To connect with legal consumers today, attorneys must:

Have a strong online presence. When it comes to online marketing, you should focus on two things: (1) go where your potential clients are, and (2) implement what you can measure. You have to be able to measure your success (or failure) to discover what works for your area of practice and to be able to build on those successes. When it comes to social media, Facebook is a must for consumer attorneys. One of the most powerful features of Facebook is ad targeting, the ability to layer targeting options on top of one another to create a highly specific audience. This enables you to target locally and get your ads in front of people who need your services now. Facebook ads are low-cost, so you can experiment to see what resonates with your potential clients and then repeat what works.

Encourage online reviews. Attorneys need to create a process for making reviews happen. Always look for those moments in your relationships with clients to create a review opportunity – when you have won a case for a client, when you have helped someone avoid litigation – all opportunities for you to generate a great review. Make it easy for clients to review you by emailing them a link to post a review on Google. Better yet, create an autoresponder email with a built-in Google review form and send it to them at the appropriate time. When you have receive good reviews or testimonials, post them on your website, in your e-newsletter and anywhere else that potential customers are likely to stumble upon them. And be sure to ask whoever provided you with that great review if they would also submit it to Google so it shows up in search.

Offer unbundled services. There are millions of people who download legal documents off LegalZoom or Rocket Lawyer for business and personal use. And it shouldn’t surprise you to know that many of them still want a real live attorney to review those documents (which is why the online legal service providers refer customers to attorneys now from their websites). Consider offering unbundled services like online legal document reviews, especially for business clients — the initial fees may not be much, but could lead to bigger things down the road. Remember, many people are looking for a la carte options.

Provide fixed fee options. To be successful with fixed fee billing, firms need to conduct extensive research into their case files going back several years in order to arrive at pricing that will protect profitability.

ARTICLE BY Stephen Fairley of The Rainmaker Institute

NAFTA: Mexican Trucking Program

President Trump’s plans to renegotiate the North American Free Trade Agreement (NAFTA) may also impact a controversial program that allows Mexican carriers to make long-haul deliveries in the U.S.

As part of the NAFTA agreement, the U.S. and Mexico agreed to allow trucks from each country to carry goods across the border for deliveries anywhere inside each of their respective countries, but the program faced challenges from the get-go. In 2007, the George W. Bush Administration launched a trial program to expand Mexico’s trucking operations beyond the border. However, the program ended in 2009 after Congress defunded the program following pressure from labor unions.

Following retaliatory tariffs imposed by Mexico, the Obama Administration established a new pilot program in 2011 that would allow long-haul operations in the United States by Mexican drivers, beyond the 25-mile “buffer zone” that allows U.S. truckers to transfer and begin transport of merchandise further into U.S. territory. U.S. labor unions objected but failed in their legal challenges against the program, and it was made permanent in January 2015. The International Brotherhood of Teamsters, together with other groups, sued the Department of Transportation in 2015 over a report that they argued was not based on sufficient data to allow for these long-haul deliveries. The program remains in effect while that case is still pending.

Safety has been one of the biggest concerns raised by critics of the program. However, a 2014 Congressional Research Service report suggests safety likely has less to do with whether the truck originates in the U.S. or Mexico, and more to do with the type of truck being used:

Drayage carriers, whose trucks make short-haul movements and spend much time idling while awaiting customs processing, tend to use older equipment. Long-haul trucks tend to carry relatively high-value goods or temperature-controlled cargo, because lower-value goods and less time-sensitive goods can be carried over long distances much more economically by rail or water. If shippers are willing to pay a substantial premium over rail or water transport to truck their product long distances, it seems plausible that they would choose a reliable trucker with modern equipment to avoid risk of delay or spoilage.

Opponents of the program are almost certain to call for its repeal as part of any new NAFTA negotiations. Representative Peter DeFazio (D-Oregon), Ranking Member of the House Transportation Committee, opposes the long-haul program and has already said he plans to raise the issue with Trump Administration officials.

ARTICLE BY Mayte Gutierrez of Squire Patton Boggs (US) LLP

DHS Guidance Memos Chart Aggressive Course to Implement President Trump’s Executive Orders on Immigration Enforcement

On February 20, 2017, U.S. Secretary of Homeland Security John Kelly released two new policy memoranda aimed at implementing President Trump’s executive orders on enhancing the public safety of the interior and border enforcement of immigration laws.

The first memo, titled “Enforcement of the Immigration Laws to Serve the National Interest,” immediately rescinded President Obama’s Priority Enforcement Program, which prioritized deportation of criminals and recently-arrived undocumented individuals, and gives immigration officials broad authority to deport “all removable aliens,” including those who have “committed acts which constitute a chargeable criminal offense” and those who “pose a risk to public safety or national security.” These enforcement guidelines mark a major policy shift that aims to dramatically escalate deportations of undocumented immigrants, potentially encompassing individuals who commit minor offenses like traffic infractions or who receive government assistance.

Secretary Kelly’s second memo, titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” implements a dramatic expansion of expedited removal, a procedure that allows a U.S. Department of Homeland Security (DHS) official to remove a noncitizen from the U.S. without a hearing before an immigration judge. Prior to this memo, DHS limited its application of this summary procedure to inadmissible noncitizens who either arrived at a port of entry or were apprehended within 14 days of their arrival and within 100 miles of an international land border. Under the new guidance, DHS is now authorized to apply expedited removal to anyone who has not been continuously present in the country for the two years before apprehension and to individuals encountered anywhere in the United States.

The memoranda instruct DHS to immediately hire thousands of immigration enforcement officials, including 10,000 Immigration and Customs Enforcement (ICE) agents and 5,000 Border Patrol agents, as well as additional operational and support staff. Notably, the memos do not address how DHS will obtain the necessary funding for this hiring surge. Moreover, both memos call for a dramatic increase in the use of local law enforcement to act as immigration agents and enforce immigration law under Section 287(g) of the Immigration and Nationality Act.

While the memoranda do not rescind President Obama’s Deferred Action for Childhood Arrivals program, they make it evident that any undocumented immigrant who is charged with a crime, however minimal, is now eligible for deportation.

ARTICLE BY Anna F. Angel of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

March 2nd in St. Louis: Using Readership Analytics to Strengthen Your Firm’s Thought Leadership

Thought leadership is a time honored method for attorneys to demonstrate their expertise and to keep their profiles out in the public sphere –but how do you create readership goals, measure its effectiveness and manage attorney’s expectations? When confronted with billable hour pressures – how do you convince your lawyers that producing quality content is a critical and measurable endeavor? Show them evidence that you can define success using data and that you have the tools you need to help their content be successful.

REGISTER TODAY!

Managing Director of the National Law Review, Jennifer Schaller, will discuss strategies for optimizing your firm’s content based on the latest information available for 2017. Jennifer will provide brief case studies of content that reached different types of audiences, analyzing the promotion, reach and SEO structure of various articles. Along the way, various tips on formatting, writing titles, and promoting via social media will be provided to maximize the reach of your firm’s thought leadership efforts.

Nicole Minnis, lead publications manager at the National Law Review will show you how to use data from Google Analytics (and other readership information) to convince your attorneys that thought leadership is a critical and worthy endeavor. She will cover what core metrics you can extract from readership analytics that will be compelling to attorneys, where you can find them, and why they are important.Location:
Thompson Coburn
One US Bank Plaza
St. Louis, Missouri 63101

Parking:
Validated parking is available in the 7th Street garage, located on 7th Street between Locust & Washington Avenue. Upon arrival, take the skywalk to the US Bank building and take the elevator from the bank on your right to the 35th floor.

Lunch will be provided.

$25 LMA Members
$35 Non-Members and any registrations after February 24th

FY 2018 H-1B Visa Season Has Started!

Petitions for new H-1B visas are eligible to be filed on April 1, 2017, for federal FY 2018 beginning October 1, 2017. There are a limited number of new H-1B visas each year (65,000 and an additional 20,000 for foreign nationals with a U.S. Master’s degree or higher), which historically is used up within days of the start of the filing period. Last year, 236,000 applications were filed for the 85,000 slots. Now is the time to review your hiring needs.

Given the changing immigration landscape, you should also think about whether you want to file H-1B petitions for foreign students working on Optional Practical Training (OPT) and for employees working in TN or other treaty-based statuses who might be affected by upcoming changes and who you wish to retain.

There are considerable pre-filing requirements, so it is important to get started in order to meet the April 1st deadline.

ARTICLE BY Forrest G. Read IV of Jackson Lewis P.C.

You’re Hired: President Trump Introduces Ethics Pledge For His Appointees With Serious Departures from Obama’s Ethics Pledge

On January 28, 2017, President Trump signed an executive order that requires all full-time political appointees to sign an ethics pledge (the “Trump ethics pledge”) that “contractually” binds them to certain ethical standards. The Trump ethics pledge supersedes and is different from the ethics pledge that President Obama required appointees to sign during his administration (the “Obama ethics pledge”), and includes a five-year lobbying ban that severely restricts the ability of covered appointees to engage in the policy advocacy business upon leaving government.

The Trump ethics pledge applies to all full-time, non-career political appointees regardless of whether they are appointed by the president, the vice president, an agency head, or other government official. It is unclear, without further guidance from the Office of Government Ethics, whether the Trump ethics pledge invalidates the Obama ethics pledge, or if that pledge remains intact for those who signed it. In any event, a summary of the Trump ethics pledge highlighting the key restrictions and key differences from the Obama ethics pledge is below. Please contact one of K&L Gates’ political ethics lawyers with any questions.

Appointees Leaving Government

Lobbying Ban

The Trump ethics pledge includes a “lobbying ban” that is far more restrictive than the Obama ethics pledge. Not only is the lobbying ban extended from two years to five years, the scope of the ban is substantially expanded. Under the terms of the Trump ethics pledge, covered appointees may not engage in “lobbying activities” with his or her former agency for five years upon leaving the government. “Lobbying activities” is the defined term that appears in the Lobbying Disclosure Act (“LDA”) that includes both lobbying contacts and background preparation and strategy work. This restriction also applies toengaging in lobbying activities with any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Trump Administration.

Therefore, as opposed to the Obama ethics pledge, which prohibited covered appointees from “lobbying” as defined as “acting as a registered lobbyist,” any covered appointee under the Trump ethics pledge is prohibited not just from acting as a registered lobbyist, but from engaging in the “behind the scenes” activity, regardless of whether the covered appointee’s lobbying contacts trigger lobbying registration. Given the incredibly restrictive nature of this provision, the Office of Government Ethics may produce additional guidance, in which case we will supplement this alert with further analysis.

Cooling-off Period

The Trump ethics pledge restores the one-year “cooling-off” restriction for certain senior administration officials on contacting employees in their former agency that is codified in Section 207(c) of Title 18 of the United States Code. Note that this is a broader restriction on making contacts than that of the lobbying ban since it applies to contacts with any employee of the former agency (as opposed to contacting covered officials and non-career Senior Executive Service appointees for purposes of the lobbying ban). This is a departure from the Obama ethics pledge, which extended the statutory prohibition on contacting and appearing before former agency officials for two years. As noted above, it is unclear whether this portion of the Obama ethics pledge still applies to signees of the Obama ethics pledge or if it has been invalidated.

Lifetime Ban on FARA Representation of Foreign Governments and Political Parties

The Trump ethics pledge also prohibits any covered appointee from engaging in any activity on behalf of a foreign government or political party that would require registration under the Foreign Agents Registration Act of 1938 (“FARA”) for the remainder of the appointee’s life. This is another massive departure from the Obama ethics pledge. FARA, which implements strict disclosure requirements for any person who represents a foreign entity in seeking to influence U.S. public opinion, policy, and laws, is enforced by the Department of Justice.

Appointees Entering Government

Ban on Participating in Matters Involving Former Client or Employer

The Trump ethics pledge imposes a two-year ban on covered appointees from participating in matters that are directly and substantially related to their former client or employer, including regulations and contracts, when the former client or employer is, or represents, a party to that matter. This includes any clients or employers for whom the covered appointee worked for during the two years prior to his or her appointment. This language is identical to the Obama ethics pledge.

Ban on Participating in Matters Lobbied in the Past

The Trump ethics pledge prohibits covered appointees from working on particular matters on which the covered appointee lobbied (as a registered lobbyist) in the two years prior to their appointment. This prohibition applies for two years after the covered appointee enters the government. It also applies to participating in any matter that falls within the same specific issue area. The terms of this prohibition are similar to those of the Obama ethics pledge. However, in another departure from the more restrictive Obama ethics pledge language, the Trump ethics pledge does not prevent a covered appointee from working in an agency that he or she lobbied in the past.

Gift Ban

Like the Obama ethics pledge, covered appointees under the Trump ethics pledge are prohibited from accepting gifts from registered lobbyists or lobbyist organizations during their time in the Trump Administration. The term “gift” has the same definition as under Office of Government Ethics rules, although covered appointees are not subject to all of the same exceptions. Of note, covered appointees may not accept gifts that fall under the de minimis exception ($20 per gift/$50 per year), and may not attend widely attended gatherings free of charge.

ARTICLE BY Michael G. H. Pfeifer, Tim L. Peckinpaugh & Michael J. O’Neil of K&L Gates

United Auto Workers Announces ‘Buy Union American-Made’ Ad Campaign

Looking to piggyback off the “keep jobs in America” theme touted by President Trump, the United Auto Workers (UAW) Union announced an ad campaign that urges people to buy union- and American-made cars. UAW President Dennis Williams said the campaign could be similar to the “Look for the Union Label” jingle in in the 1970s in support of the now-defunct International Ladies’ Garment Workers’ Union. “If it’s not built in the United States, then don’t buy it,” Williams said in news reports.

Williams clarified that the union is urging consumers to buy union-made vehicles first, then those made at non-union factories in the U.S. The union-made then American-made caveat could put the UAW in a tricky spot with Detroit automakers, however, as five of the top eight cars on the 2016 American-Made Index by Cars.com are made by either Toyota or Honda. The Toyota Camry, built in Georgetown, Kentucky, and Lafayette, Indiana, tops the list. By contrast, the popular Ford F-150 pickup did not make the list because it fell below the 75-percent eligibility threshold for domestic-parts content.

The UAW did not specify when the ads might start running or how much they might cost. Presumably, the ads would be funded with UAW members’ dues, which average about two hours’ pay per month.

ARTICLE BY John T.L. Koenig of Barnes & Thornburg LLP

Paying Bonuses to Non-Exempt Employees: Avoiding Class-Wide Overtime Violations

Employers generally recognize that their non-exempt employees must receive overtime premiums on their base pay – in most cases, their hourly wage – when they work overtime. However, not all employers are as well attuned to the requirement that overtime premiums may also be required on other, “supplemental” components of compensation to nonexempt employees. Bonuses are a common example.

By law, employers are required to pay overtime premiums on non-discretionary bonuses to non-exempt employees when those employees have worked overtime during the timeframe for which the bonus is paid (i.e., whether it is paid on a monthly, quarterly, annual, or other basis). The legal risks involved in violating overtime laws when it comes to non-discretionary bonuses is exacerbated by the fact that this violation is typically repeated as to other non-exempt employees who receive bonuses from the employer. As such, this is a type of violation that plaintiffs’ attorneys often look to bring on a class, collective, and/or representative basis.

However, as suggested by the reference above to “non-discretionary” bonuses, employers are not required to pay an overtime premium on all bonuses. Certain types of bonuses (and other “supplemental” forms of compensation) are excluded from the overtime premium requirement. Federal regulations, which California and other states follow in making these determinations, provide that discretionary bonuses may be excluded. However, this exclusion is very limited. Moreover, like many things in the law, the line between a “discretionary” and a “non-discretionary” bonus is not always clear. Accordingly, employers face risks when they do not pay overtime premiums on bonuses on the premise that the bonus falls under the definition of a “discretionary” bonus. Amongst the guidance provided by federal regulations is that “the employer must retain discretion both as to the fact of payment and as to the amount until a time quite close to the end of the period for which the bonus is paid. The sum, if any, to be paid as a bonus is determined by the employer without prior promise or agreement . . . If the employer promises in advance to pay a bonus, he has abandoned his discretion with regard to it.” Conversely, “[a]ttendance bonuses, individual or group production bonuses, bonuses for quality and accuracy of work, bonuses contingent upon the employee’s continuing in employment until the time payment is to be made and the like” fall in the “non-discretionary” category.

Employers who pay “holiday” or “end of the year” bonuses should also be cognizant of the potential requirement to pay overtime premiums on these payments. Federal regulations provide that “gifts made at Christmas time or on other special occasions, as a reward for service, the amount of which are not measured by or dependent on hours worked, production or efficiency” are excluded from overtime premium requirements. However, in a similar vein, if the amount of the gift, holiday or special occasion award is determined by hours worked, production, or efficiency, this exclusion is lost.

Ultimately, employers who pay bonuses and other forms of “supplemental” compensation to non-exempt employees should be cognizant of the potential requirement to pay overtime premiums on these payments and should consider seeking legal guidance in connection with their bonus programs. The need for proper guidance is especially important due to the class, collective, and/or representative action risks presented by violating this aspect of the law.

ARTICLE BY S. Sean Shahabi of Jackson Lewis P.C.

Are You Using the New I-9 Form?

As the Trump administration settles in, those of us who counsel employers have cautioned to “expect the unexpected.” Certainly, the last five weeks have brought a bevy of twists and turns. However, one consistent theme from the new administration has been a tough stance on immigration-related matters. Accordingly, employers must pay close attention to the newly revised Employment Eligibility Verification — which we all refer to more commonly as the I-9 form — that is now in effect.

As we reported last October, U.S. Citizenship and Immigration Services (USCIS) Department issued an updated version of the I-9 form on November 14, 2016. According to USCIS, all employers are required to have begun using the new form as of January 22, 2017. In other words, if you are still using the prior version of the I-9 form, you must immediately switch to the latest version.

The new I-9 form, which can be accessed here, has been referred to as the “Smart I-9” because employers can now access an interactive pdf version of the form, which includes a variety of technical advantages, such as:

Drop down menus for ease in selecting dates and inserting data
Automatic prompts in order to confirm that information is entered correctly
Real-time error notifications, if information is not properly entered
The ability to receive help while entering information via use of a clickable question mark
A unique barcode attached to each form, which allows for easy identity in the event of an audit

While these advances will make it easier to complete I-9 forms, it is important to remember that the process is not completely electronic. Employers still have the option to print out a blank form and complete their entries the old fashioned way — with a pen. Or, they can fill in fields electronically and print out the completed form. But either way, the forms still must be physically printed and signed (there is no provision for electronic signatures) and stored in hard copy format.

In addition to the technical advances, the new I-9 forms contain a few substantive differences as well. Some of these changes include:

The “Other Names Used” field is now replaced by “Other Last Names Used.” This is intended to increase privacy and avoid potential discrimination against transgender persons whose first names may have changed.
Foreign nationals authorized to work in the United States previously were required to provide both an I-94 number (a specific passport stamp issued by Customs Border Protection) and foreign passport information. With the new form an individual who claims status as a foreign national authorized to work in the U.S. can provide either an I-94 number, an alien registration number, or a foreign passport number.
The prior I-9 form only contained one signature field for preparers or translators. This caused difficulty when multiple individuals had to squeeze their signatures into one small box. The new form allows for up to five individual preparers or translators to sign and date the form in their own individual fields.

Effective immediately, make sure that you are using the new I-9 form for all of your hires. (It is not necessary to go back and re-complete I-9 forms for existing employees). Given the administration’s focus in immigration, as well as recently announced penalty increases for I-9 violations, this is an area in which all employers should exercise extreme care.

ARTICLE BY Larry S. Perlman of Foley & Lardner LLP

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