Customs and Border Protection Announces Expansion of Global Entry to UK Citizens

On November 3, the US Customs and Border Protection (CBP) commissioner announced the expansion of Global Entry to UK citizens. Global Entry, a CBP Trusted Traveler program, allows for expedited clearance of preapproved, low-risk travelers. As an added benefit, Global Entry members are also eligible to participate in the TSA Pre✓ expedited screening program.

The registration process is quite straightforward. UK citizens will apply through the UK Home Office’s website and pay a £42 processing fee. Successful applicants will receive an access code to enter when applying for Global Entry through CBP’s Global Online Enrollment System. The nonrefundable application fee for a five-year Global Entry membership is $100, and applications must be made online. Once an application is approved, a CBP officer will conduct a scheduled interview with the applicant and make a final eligibility determination. Although no traveler is guaranteed expedited screening, this expansion should facilitate travel for low-risk travelers from the UK significantly.

Similarly, US citizens are eligible to apply for the UK’s trusted traveler program, Registered Traveller. Members enrolled in Registered Traveller may use e-gates at airports in the UK. The service costs £70 to apply and an additional £50 a year thereafter. If an application is unsuccessful, the applicant will receive £50 back. To qualify for Registered Traveller, a US citizen must make four trips to the UK per year.

Article By Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton, Tracy Evlogidis & Roland C. Lechner of Morgan, Lewis & Bockius LLP

Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

E-Verify to Destroy Old Records

E-Verify LogoE-Verify has announced that effective Jan. 1, 2016, in compliance with the National Archives and Records Administration’s retention and disposal schedule, it will destroy all transaction records older than 10 years.  Thus, all transaction records created prior to Dec. 31, 2005 will be destroyed.  Further, E-Verify will delete, on an annual basis, all transaction records that are more than 10 years old.

E-Verify has created a new Historic Record Report that will include all transaction records over a 10-year period.  If you wish to get the Historic Record Report, it must be downloaded before Dec. 31, 2015.  To download the Report, please log into E-Verify where you will find instructions to download the Report.

It is always recommended as best practice to record the E-Verify case verification number on the related I-9 form.  It is now also recommended that employers also retain the Historic Records Report with the Forms I-9.

Article By Shaoul Aslan of Greenberg Traurig, LLP
©2015 Greenberg Traurig, LLP. All rights reserved.

Russia’s New Advanced Development Territories Law: Far East Focus

An initiative to spur investment in this underdeveloped region.

Amid the ongoing loud noise surrounding the situation in Ukraine (and in Syria) and the related sanctions and counter-sanctions, a new Russian development initiative seems to have slipped under the radar. But it is worthy of note—particularly for potential investors in Russia’s Far East. This has all the more potential importance in the context of Russia’s recent pronounced political and economic pivot toward Asia. The Law on Advanced Development Territories (the ADT Law, or the Law), enacted in December 2014 and entered into force in spring 2015 (and the related simultaneously adopted acts that make corresponding amendments to the Tax Code and some 20 other laws) set out the “rules of the road” for these ADTs.

Russian President Vladimir Putin and other top officials at the Eastern Economic Forum in Vladivostok in September spotlighted this ADT program prominently. A number of new projects were announced at that forum or earlier, and most recently at an international forum in Harbin, China.

In a separate related development, in July, a so-called “Free Port of Vladivostok” was established within Vladivostok city and a few neighboring municipalities – which provides benefits and incentives to investors similar to the ADT Law, and with an enhanced exemption regime for customs clearance and immigration. The fiscal benefits of the Vladivostok free port come into force in January 2016, but a major Korean conglomerate is reported to be eyeing this opportunity.

Background

The ADT regime is somewhat similar to Russia’s existing Special Economic Zones (SEZ), which came into being under the 2005 Law on SEZs and some earlier regulations. These programs have had only mixed success. But the central focus of the new ADT regime is different: while SEZs have been aimed primarily at spearheading various industries (such as innovative technologies, ports, or recreational complexes), the ADTs are to address the general unevenness in development across Russia’s vast territory by incentivizing investment in more depressed areas—starting with the underpopulated and relatively neglected Far East.

As initially drafted, the ADT Law was to be confined to the Far Eastern Federal District alone. This geographical limit no longer applies so generally under the Law as enacted. But for the first three years, under special transitional provisions, it will apply only in the Far East and in certain sole-core-employer cities “where the social and economic situation is particularly drastic.”

The Law further directs the government to appoint a special authorized body (AB) charged with various ADT supervisory and planning functions. So far only the new Ministry of Eastern Development (established in 2012) has been appointed as such an AB—for the Far Eastern Federal District. For all practical purposes the Law will apply essentially in the Far East, at least initially. The Ministry has already adopted various implementing regulations envisaged under the Law. Further, Deputy Prime Minister Yury Trutnev, who is also the president’s plenipotentiary in the Far Eastern Federal District, has pledged strong support for the ADT program alongside other measures for development of Russia’s Far East.

As of September, the government has already approved the establishment of nine ADTs, including Komsomolsk (in the Khabarovsky Krai), Khabarovsk (covering several districts within Khabarovsk City and elsewhere), Nadezhdinskaya (in the Primorsky Krai), and some others in Kamchatka, Yakutia, and Amurskaya Oblast. The first specific ADT projects announced at the Vladivostok Forum and on other occasions (taking into account the most recent Harbin EXPO) include the following:

  • Construction of a bitumen plant by a Chinese-owned Singapore company together with Russia’s Independent Petroleum Co. (NNK) in the Khabarovsk ADT
  • An Australian coal company’s proposed investment into the transport infrastructure of the Beringovsky ADT in Chukotka
  • Recreational infrastructure facilities (including a golf club) to be financed and constructed by a Japanese company in Vladivostok
  • A proposed major agricultural enterprise investment by Russian interests at Mikhailovsky ADT in Primorsky Krai (the precise location is not yet identified)
  • German investors’ readiness to provide some 20 billion rubles to the Kamchatka ADT
  • A planned 50 billion rubles investment for infrastructure development in the Primorsky ADT
  • A coal-loading terminal to be constructed by Sakhatrans in Khabarovsky Krai (estimated investment of 30 billion rubles)
  • A truck-building plant (and dealership and service centers) project to be undertaken together by Chinese Sinotruk and the Far-Eastern Road and Construction Company in the Komsomolsk ADT

Government Decree

Under the Law, an ADT is created by a government decree for a term of 70 years. Such decrees are based on a proposal by the Authorized Body. This proposal, in turn, is supposed to be based on preliminary agreements with one or more prospective investors into the planned ADT. A special federal government commission will also play a role in ADT selection and formation.

The relevant government decree will set out the main ADT parameters, including its territorial limits (no overlap with an SEZ is allowed), types of commercial activities eligible for benefits to ADT residents (in contrast to SEZs, there are no economic sector limits for such activities are established in the Law), minimum investment and technology requirements, and a few other aspects. These decrees presumably will take into account the preliminary agreements with prospective investors mentioned above.

Tripartite Agreement

After the base government decree is adopted, the AB (again, for practical purposes, this is the Ministry of Eastern Development for now) and the relevant regional and municipal authorities are to enter into a tri-partite agreement to regulate various obligations and procedures for the ADT in question. This includes the regional and municipal authorities’ obligations on transferring of land plots and facilities into ownership by or lease to the management company (see immediately below on this point) or granting the management company the authority to manage such land plots and facilities, financing and operation of the infrastructure facilities, the conditions for granting property and land tax holidays to ADT residents (see more on tax and other exemptions below), and other aspects.

Management Company

An important player in an ADT’s actual functioning is its management company (MC). Under the Law, an MC is a 100% federally owned joint stock company that is designated as such by the government. An MC will have a broad range of powers, authority, and functions for its ADT(s). For example, an MC will (itself or by delegation to a subsidiary) do the following:

  • Act as an infrastructure construction customer (in Russian, zastroischik)
  • Ensure or organize the functioning of the ADT infrastructure
  • Take ownership or lease of federally or municipally owned land plots, buildings, and various infrastructure facilities (on certain conditions)
  • Facilitate connection into the utilities networks for ADT residents and service providers
  • Draft proposals for relevant amendments to municipal and other zoning plans
  • Organize the construction of roads and installation of infrastructure facilities
  • Provide various services to ADT residents

The government has already appointed a joint stock company Korporatiya Razvitiya Dalnego Vostoka (in English, Far East Development Corp.) as such an MC—again, with respect to the whole Far East District.

ADT “Residents”

To become an ADT resident, a commercial company (or individual entrepreneur) needs to file an application with the MC that includes a business plan and proposal for the types of activities to be performed and the level of investments and then enter into an activities performance agreement with the MC reflecting the investment obligations as well as the MC’s obligations. The Ministry of Eastern Development in its capacity as AB has already approved a template of such agreement following the ADT Law guidelines. Per the Law, once an ADT is established and running, there are limits to the grounds for an MC to reject an application and refuse to enter into a contract with a potential resident. The main (and quite general) recognized ground is inconsistency between the applicant’s proposal and the ADT’s particular parameters. It remains to be seen how the activity agreements will be negotiated in practice, as more experience is gathered for substantial new proposed investments.

ADT residents will be incentivized by an array of fiscal and administrative measures, including the following:

  • Exemption from or reduction of taxes on corporate profit, mineral extraction, and property and land
  • Customs free zone (if approved by the decree enacting the ADT)
  • Reduction of Social Security payments
  • A system of special protections and guarantees regarding state supervision (only “joint inspections” by various authorities, to be conducted per a schedule approved by the AB, etc.)
  • Exemption from foreign employee quota (if approved by the ADT’s supervisory council)
  • Reduction of educational and medical care administrative burdens (including admission of foreign-trained doctors and use of best foreign educational methods)

Some of these incentives are fairly similar to those applied to SEZs, including tax and customs holidays and state-inspection limitations.

Conclusion

The new ADT Law appears to open real new investment opportunities, primarily in the Far East. Yet one should be mindful of various restrictions in using this Law’s benefits—including that the potential resident has to be registered within the ADT territory and, if it is a commercial company, it may not have branches or other subdivisions outside of the ADT  (sister companies are permitted). More preconditions apply to the associated tax benefits under the revised Tax Code. Time will tell how effective the ADT Law will be in attracting much-needed new investment to Russia’s Far East.

Article By Jonathan H. Hines & Alexander V. Marchenko of Morgan, Lewis & Bockius LLP
Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Budget Deal Alters Reimbursement to Off-Campus Hospital-Owned Facilities

detailed illustration of a compass with medicare text, eps10 vectorOn November 2, 2015, President Obama signed into law H.R. 1314, the Bipartisan Budget Act of 2015 (the “Act”), which significantly changes Medicare reimbursement for off-campus hospital services. The Act, which Congress passed late last week, will alter Medicare reimbursement for new off-campus hospital-owned facilities that have heretofore been treated as “hospital-based.” Off-campus facilities for which a hospital was not billing as “hospital-based” as of the date of the enactment of the Act will not be treated as “hospital-based,” and the physician or other provider’s fee schedule rate, instead of the hospital outpatient rate, will apply.

Prior to the Act, covered out-patient department (“OPD”) services included services provided by facilities meeting the complex hospital-based rules, even if the facility was not physically-located on the campus of the hospital. Subject to the grandfather provision discussed below, the Act adds a specific exclusion to the definition of covered OPD services, making services furnished by an off-campus outpatient department of a hospital ineligible. The Act provides that a facility is “off-campus” if it is not within 250 yards of the hospital’s main buildings (including for this purpose, a “remote location of a hospital,” meaning a separate in-patient campus of the hospital, which is a helpful clarification in an otherwise problematic law). Facilities deemed “off-campus” are ineligible for Medicare reimbursement at the hospital outpatient rate.

The inclusion of a grandfather provision will mitigate some of the Act’s impact, as facilities currently treated as “hospital-based” will not be impacted by the change in law. Only facilities that are not billing as “hospital-based” as of the date of enactment will be ineligible for reimbursement at the hospital outpatient rate. It is unclear whether a conveyance of an off-campus grandfathered facility would eliminate the grandfathered status and the ability of the buyer to bill for the services as “hospital-based.” The Congressional Budget Office (“CBO”) forecasts that the government will reap significant cost savings from the lower rates that will apply; an October 28, 2015 analysis from the CBO projects that the change in reimbursement policy will provide $9.3 billion in relief by 2025.

Article By Edward S. Kornreich, Roger A. Cohen & Julia B Bienstock of Proskauer Rose LLP

© 2015 Proskauer Rose LLP.

‘Fight for $15’ Walk-Outs and Protests Continue; Are You Prepared for November 10?

national labor relations boardContinuing its three-year campaign, “Fight for $15” on November 4, 2015, announced plans for worker strikes and protests at fast food restaurants in 270 U.S. cities on November 10. The protests, timed to occur one year prior to the 2016 presidential election, is calculated to send a message to voters and candidates. Protests will culminate with a march on the November 10 Republican presidential debate in Milwaukee.

While the fast food workers involved in the walk-outs are not represented for purposes of collective bargaining by a labor union, the walk-outs have largely been organized and funded by the Service Employees International Union (“SEIU”). Employers with union contracts who have lived with the possibility of strikes are generally more familiar with the rights and obligations of employees and employers under the labor law than their non-union counterparts. But now that walk-outs and work stoppages are becoming an accepted strategy in the non-union workforce, non-union employers need to know the rules, too. Indeed, over three years of protests, scores of unfair labor practice charges have been filed against non-union employers alleged to have interfered with employee participation in protected activity. Moreover, on November 4, 2015, the National Labor Relations Board (“NLRB”) upheld a decision finding that a St. Louis Chipotle Grill unlawfully discharged an employee because he engaged in fight-for-$15 protests.

“Protected, Concerted Activity”

Under the National Labor Relations Act, employees have the right to engage in group activity for the purposes of “mutual aid and protection.” Thus, whether a union is involved, if two or more employees acting in concert walk off the job to protest work conditions or enforce demands relating to the terms of their employment, the walk-out, or strike, generally is protected concerted activity under the National Labor Relations Act. (Quickie, intermittent work stoppages might not be.) Under these circumstances, it would be unlawful to discipline or discharge (or otherwise disadvantage) employees for walking off the job. It also means that unless the employees have been permanently replaced (discussed below), the strikers are entitled to be returned to their jobs when they make an unconditional offer to do so.

Lawful Employer Responses to Protected Concerted Activity

Employers are not without rights in dealing with protected concerted activity (“PCA”). First and foremost, employers have a right to continue business operations. This can be accomplished by assigning managers or hiring replacement workers to do the work of the employees who walked off the job. If the strike is not caused by an employer unfair labor practice, employers have the right to designate the replacement workers either as permanent or temporary. (If the strike is caused by an employer unfair labor practice, employers have the right to designate the replacement workers only as temporary.)

If replacement workers are designated as temporary, when the strikers offer to return to work, the employer is obligated to lay off the temporary workers and put the strikers back to work.

When the employer designates the replacements as permanent, when the strikers offer to return to work, they are placed on a preferential hiring list. In that situation, the employer is not obligated to lay off the replacements, but when positions open up through normal attrition, the employer first has to offer those openings to the former strikers who are on the preferential hiring list.

Walk-outs in the fast food industry have been short, however, typically rendering the hiring of replacement workers impractical. As a practical matter, employers may have to rely on managers or other employees who are not participating in the strike.

Violence and Other Picket Line Misconduct

Employees lose the protection of the NLRA if they engage in certain improper conduct. This includes intermittent or “quickie strikes.” Generally, strikers lose the protection of the NLRA when they engage in a pattern of striking for short periods, returning to work briefly, and then striking again. By engaging in this type of conduct, strikers effectively deny the employer the ability to run its business either by relying on its regular employees or by hiring replacements. The NLRA does not prevent the employer from issuing discipline or discharging employees who participate. However, before taking action, employers should consult counsel and be absolutely certain the particular job action is unprotected.

Other activities that are unprotected include stay-ins or sit-down strikes. A stay-in or sit-down strike occurs when employees refuse to work and also refuse to vacate the employer’s premises. Strikers seek to force the employer to accede to their demands by bringing operations to a halt, preventing the employer from operating. This type of trespasser activity generally is unprotected.

Slow-downs are another tactic sometimes used to impede production. Work is deliberately performed ever more slowly; the employer cannot conduct business and customers fume. Slow-downs are not protected and can be addressed by discipline or discharge.

Lawful Responses to Unprotected Activity

Strikers, of course, are allowed to picket on public property near their place of employment to publicize a labor dispute. They, however, are not privileged to engage in threats, physical assaults, trespass, or property destruction. When they do, employers have these remedies available:

1. Law Enforcement: The most immediate relief available is to call the police. Just because employees ostensibly are engaged in a strike does not immunize them from prosecution when they commit crimes.

2. State Court Injunction: Another remedy is to seek a state court injunction to prohibit violence. This is particularly helpful when there is mass picketing, obstruction of traffic, and blockages of entrances, and the police have difficulty controlling the situation. In these kinds of cases, employers seek court orders prohibiting further violence or destructive activities and limiting to a reasonable number the number of picketers at a particular location at any given time, so police can assure public order.

3. Employer Discipline and Discharge: If the threats, violence and property destruction are egregious enough, the employees involved lose the protection of the NLRA, which means they can be discharged or disciplined. (However, a full investigation should be conducted before the employer takes action to determine what the employee actually did or said. In addition, investigation of past discipline in similar situations not involving protected concerted activity is important because the rules (under the NLRA) prohibit discrimination against employees who engage in such activity. In other words, if, in the past, an employee who was not participating in protected concerted activity engaged in violence for which he was suspended, an employee who engages in similar violence while partaking in protected concerted activity generally also should be suspended, rather than discharged.) Employees should not suffer greater discipline for their misconduct because it occurs while they engage in activity the law protects.

While there is no bright line for evaluating when misconduct becomes unprotected, some general guides may be kept in mind. For example, simple name-calling, momentary blocking of ingress and egress at employer facilities, and simple trespass onto an employer’s property, without any accompanying destruction or violence, probably will not be sufficient to cause the employee to lose the protection of the NLRA. However, physical assaults, participating in extended blocking of ingress or egress, and property destruction are generally the types of conduct that will cause an employee to lose the protection of the NLRA.

Article By Jonathan J. Spitz, Philip B. Rosen, Timothy J. Ryan & Peter N. Moss of Jackson Lewis P.C.
Jackson Lewis P.C. © 2015

Holiday Planning Should Include H-1B Cap Planning

While it may seem early, the holiday season is a good time for employers to start preparing for the H-1B Cap for Fiscal Year 2017, which begins October 1, 2016. Demand for the H-1B has steadily increased so that last year, only about 40% of the H-1B petitions were selected in the lottery. Employers should expect this trend to continue and be prepared to file their H-1B petitions on the earliest possible date, April 1, 2016.

Background:

By way of background, the H-1B is a very significant visa category as it allows qualified professionals to enter the U.S. Only a limited number may be granted each fiscal year (which runs from October 1st through September 30th). Under current immigration law, only 65,000 new H-1B petitions may be granted each fiscal year with an additional 20,000 available for those individuals with advanced degrees from a U.S. academic institution.

For Fiscal Year 2016, USCIS received nearly 233,000 H-1B petitions during the filing period. For the prior year, USCIS received approximately 172,500 H-1B petitions. It is anticipated that more cases will be filed this year.

Because of the large number of cases being filed, there is a significant chance that cases could miss the filing date due to delays, particularly at the Department of Labor (DOL). As part of the H-1B petition, employers must have a Labor Condition Application (LCA) certified by the DOL. No H-1B petition will be accepted by USCIS without a certified LCA. Normal processing of LCAs generally takes about 7 to 8 days. However, as volume increased in March of 2014, many LCAs took longer. Proskauer recommends filing as many LCAs in earlier months as possible to ensure that the H-1B petitions are ready for filing in anticipation of April 1.

Evaluating your Potential H-1B Population:

Due to the increased demand for the H-1B, it is important that employers evaluate their employee populations early to ensure that all petitions are submitted by the earliest possible date. We outline below some of the types of employees to review when making decisions whether to file an H-1B petition.

  • F-1 Students: Students, particularly those on F visas and currently working for you pursuant to approved Optional Practical Training (OPT) should be the first group of employees to consider for filing an H-1B petition on April 1st. The reason for this is simple. If you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT (unless they are able to extend it in the limited circumstance described below).

Moreover, even when employees may extend their OPT it is advised to file an H-1B for Fiscal Year 2017. This gives the employees two opportunities to obtain the H-1B. If more applications are filed than visas available and these employees do not obtain the H-1B this year, then the OPT extension may serve as a backup and you can file for the H-1B again next year.

  • L-1Bs: In recent years the L-1B visa category has faced increased scrutiny. The L-1B is for intracompany transferees who are being relocated to the U.S. to serve in a specialized knowledge capacity after having been employed by the company abroad for one year in either a managerial or specialized knowledge role. The strict interpretation of what qualifies as specialized knowledge has resulted in denials of many L-1B petitions. Therefore, rather than file an L-1B extension many employers are opting to file H-1Bs.

  • Certain Green Card Cases: Certain applicants for green cards may run out of authorized time in the U.S. unless they are in H-1B status. We recommend you consult with counsel on such cases.

Employers and HR professionals should take time during the holiday season to evaluate their nonimmigrant population and determine which employees should apply for the FY 2017 H-1B Cap. It is not too soon to send H-1B cap cases to the lawyers!

We encourage employers to reach out to our Immigration & Nationality group if they have questions. We will continue working with our clients to ensure that H-1B petitions are prepared and ready for filing by April 1.

Article By David Grunblatt, Hallie A Cohen, Erica Loomba, Valarie H McPherson, Praveena N Swanson & Jennifer Wexler of Proskauer Rose LLP

© 2015 Proskauer Rose LLP.

Target Faces First Ever Union

The Wall Street Journal reports the NLRB has rejected an appeal from Target Corp. seeking to invalidate an employee vote in favor of unionization.  In September, a “micro-unit” of about one dozen pharmacy workers in Brooklyn, NY voted in favor of unionization.  The company appealed, but the NLRB affirmed the vote yesterday.

As reported in the article, “The group of less than a dozen employees in Brooklyn, N.Y., would be the first union among Target’s nearly 350,000 employees, marking a significant milestone for a company that has fought to keep unions out of its stores.”  The complete article can be found here.

Article By John T.L. Koenig of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP

Lawrence of Arabia Makes Surprise Contribution to UK Holiday Pay Debate

There is a line in, I think, Lawrence of Arabia where a terrified young soldier trapped under fire with a small group of his colleagues asks Peter O’Toole as Lawrence what they  are going to do.  “Nothing”, drawls O’Toole languidly, “After all, it’s generally best”.

And so by a tenuous little link to the question of amending your holiday pay calculations to reflect the new jurisprudence around including an allowance for overtime and/or commission.  Have you been sitting in your office wondering why no one seems able to tell you exactly what you need to do?  Have you been approached for a deal by your union on the basis that everyone else has sorted it out and only your company still has its head over the parapet?

You are not as alone as you may feel.  A survey of over 1,000 companies of a wide variety of sizes, sectors and employee representation structures provides the answers and a number of interesting statistics:-

  • Of all respondents, a full 73% have yet to take any steps to amend their holiday pay calculations. Those union claims may perhaps be taken with a pinch of salt.

  • Of the 27% who have changed their holiday pay arrangements, only a small majority (less than 60%) have unionised workforces.

  • Where changes to holiday pay include use of a reference period, the period invariably picked has been twelve weeks. That is even though that period has yet to be enshrined in law and even though those responses came from sectors as diverse as construction, aviation, retail and banking.  Employee numbers in those businesses ranged from less than 100 to over 45,000.  It therefore appears that for all the uncertainties and injustices both ways which such a reference period can generate (and despite the enormous spread of overtime and commission schemes in use over that population) twelve weeks will likely be the default position for voluntary holiday pay agreements.

  • Where respondents have reached agreements with their workforces about alterations to holiday pay calculations, these have all been forward-looking. None of respondents refer to any accommodation being reached in relation to any notional arrears.

  • The principal factors leading to changes in those 27% of employers were (i) awareness of the case law (i.e. the perceived inevitability of having to do something at some stage) followed by (ii) union/employee pressure (though of the 73% who had made no change, only one admitted to receipt of a Tribunal claim), and (iii) brand/reputational factors.

  • Where changes have been made, half had applied them to the full UK 5.6 week holiday entitlement. About a quarter of respondents had limited the changes to the Working Time Directive four week minimum and a further quarter did not specify which.

  • Of those cases where changes had not been made, nearly 85% of employers had also taken no steps to amend their commission/overtime structures to minimise the scope for employee claims.

So in other words, whether or not it is generally best, doing nothing does seem thus far to be the principal employer response to the holiday pay question.  There are good objective reasons to support such a stance at this point, including in particular the absence of Government guidance, the uncertain direction (in matters of detail, at any rate) of the case law, and the relatively limited number of unions willing to undertake the colossal logistical exercise of collective Tribunal claims.  There is no reason to expect much change in the first two factors in the near future, but whether that last point will remain valid if employer indifference persists at such a high rate is an open question.

Article By David Whincup of Squire Patton Boggs (US) LLP

© Copyright 2015 Squire Patton Boggs (US) LLP

White House Announces Long-Awaited Trans-Pacific Partnership Agreement

The Obama administration released the full text of the Trans-Pacific Partnership (TPP) agreement, on November 5, kicking off a 90-day window for congressional review.

The TPP would arguably be the largest free trade agreement in history when considering the economies of the 12 Pacific Rim member countries, covering approximately 40% of the global economy. The agreement must now be individually approved by each of the 12 countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam.

If ratified, the TPP will be one of President Obama’s crowning achievements. Obama has championed the landmark agreement as a vehicle for opening new markets to American products and establishing higher labor and environmental standards, while building an economic bloc in the Asia-Pacific region to compete with China. (See the White House Fact Sheet here.)

Obama now has an uphill climb as he launches a major public relations campaign to sell the agreement to the American public. The debate will be contentious, with a bitterly divided Congress voting on the final agreement in early 2016 – well into the election year as presidential primary elections are taking place.

Under pressure from labor unions to oppose the deal, Democrats have largely withheld support. In early October, former Secretary of State, and current presidential candidate, Hillary Clinton came out against the deal which she once called the “gold standard” of trade agreements. Last spring, Obama relied on Republicans in Congress to pass the underlying fast-track trade authority bill, with only 28 Democrats in the House voting in favor of passage. Under fast-track authority, Congress can approve or reject the agreement, but not amend it.

Note: The Office of the United States Trade Representative (USTR) posted the agreement in roughly two hundred separate PDF documents. The Washington Post promptly published a search function on their website for easier searching.

Article By Michelle A. Leeds of Foley & Lardner LLP

© 2015 Foley & Lardner LLP

Department of State Issues Final Rule re: Procedures for Issuing Nonimmigrant Visas

The July 2015 Visa Bulletin Brings Little ChangeThe Department of State (DOS) issued a final rule effective November 2, 2015 updating its regulations regarding the nonimmigrant visa format and record retention procedures found at 22 CFR §41.114, which currently provides for the placement of a nonimmigrant visa stamp in the foreign national’s passport.

The DOS has now amended the regulation to reflect the current practice of issuing machine-readable visas on adhesive foils that are affixed to passports. The updated regulation also allows for the planned future practice of issuing such visas as electronic visas that U.S. Customs and Border Protection officers will be able to access via an electronic database after scanning the machine readable are of the visa holder’s passport to verify the foreign national’s biometrics and identity. Finally, the regulation has been amended to remove DOS procedures regarding visa review and file retention instructions found in the Foreign Affairs Manual.

The DOS’ final rule, available at the Federal Register, is in compliance with regulatory requirements including the Administrative Procedure Act and the applicable Executive Orders. The amendment is issued as a final rule as it is not subject to notice-and-comment rulemaking. The Department of State has certified that the rule will not have a significant economic impact on a substantial number of small entities; rather, only individual foreign nationals seeking consideration for nonimmigrant visas and foreign officials regulating the relevant documentation will be affected. Additionally, DOS does not consider the rule to be an economically significant rulemaking action, and is not aware of any monetary effect (including any increase in costs or prices) due to the update.

The amendments to 22 CFR §41.114 account for useful updates in technology that affect nonimmigrant visa holders. It remains to be seen exactly how the information contained in the electronic visa database available to CBP now provided for in the regulation will be accessible to other stakeholders, including employers.

Article By Lauren A. Tetenbaum of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.