The National Law Forum

Department Of State Releases September 2015 Visa Bulletin

Cutoff dates for EB-2 China and India retrogress to January 1, 2006. Cutoff dates for EB-3 China, India, and the Philippines advance to December 22, 2004.

The US Department of State (DOS) has released its September 2015 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a US embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does The September 2015 Visa Bulletin Say?

The September 2015 Visa Bulletin shows a large retrogression of visa numbers for EB-2 China and India, and an advancement of six and a half months for the EB-3 China, Philippines, and India allotments. The cutoff date for F2A applicants in China, India, Philippines, and the worldwide categories will advance by two and a half months in September. The cutoff date for F2A applicants from Mexico will advance by three months.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to China will retrogress by nearly eight years, and the cutoff date for applicants in the EB-2 category chargeable to India will retrogress by two years and nine months. For both categories, the cutoff date has been set at January 1, 2006. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to the worldwide category and Mexico will advance by one month to August 15, 2015. The cutoff date for applicants in the EB-3 category chargeable to China, India, and the Philippines will advance by six and a half months to December 22, 2004.

EB-5: The cutoff date for applicants in the EB-5 category chargeable to China will advance by three weeks to September 22, 2013. The cutoff dates for applicants in the EB-5 category chargeable to the worldwide category remain current.

The relevant priority date cutoffs for foreign nationals in the EB-2 category are as follows:

China: January 1, 2006 (retrogression of 2,905 days)
India: January 1, 2006 (retrogression of 1,004 days)
Mexico: Current
Philippines: Current
Rest of the World: Current

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: December 22, 2004 (forward movement of 204 days)
India: December 22, 2004 (forward movement of 204 days)
Mexico: August 15, 2015 (forward movement of 31 days)
Philippines: December 22, 2004 (forward movement of 204 days)
Rest of the World: August 15, 2015 (forward movement of 31 days)

The relevant priority date cutoffs for foreign nationals in the EB-5 category are as follows:

China: September 22, 2013 (forward movement of 21 days)
Rest of the World: Current

Developments Affecting The Eb-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The September Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through September 2015.

China

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for EB-2 applicants chargeable to China. The September Visa Bulletin indicates a cutoff date of January 1, 2006, reflecting a retrogression of 2,905 days (nearly eight years). This means that applicants in the EB-2 category chargeable to China with a priority date prior to January 1, 2006 may file AOS applications or have applications approved in September 2015.

India

The August Visa Bulletin indicated a cutoff date of October 1, 2008 for EB-2 applicants chargeable to India. The September Visa Bulletin indicates a cutoff date of January 1, 2006, a retrogression of two years and nine months. This means that applicants in the EB-2 category chargeable to India with a priority date prior to January 1, 2006 may file AOS applications or have applications approved in September 2015.

Developments Affecting The Eb-3 Employment-Based Category

China

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to China. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to China with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

India

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to India. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to India with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

The Philippines

The August Visa Bulletin indicated a cutoff date of June 1, 2004 for EB-3 applicants chargeable to the Philippines. In September, the cutoff date for EB-3 applicants chargeable to China will advance by six and a half months to December 22, 2004. This means that applicants in the EB-3 category chargeable to the Philippines with a priority date prior to December 22, 2004 may file AOS applications or have applications approved in September 2015.

Mexico

The August Visa Bulletin indicated a cutoff date of July 15, 2015 for EB-3 applicants chargeable to Mexico. The September Visa Bulletin indicates a cutoff date of August 15, 2015, reflecting forward movement of one month. This means that applicants in the EB-3 category chargeable to Mexico with a priority date prior to August 15, 2015 may file AOS applications or have applications approved in September 2015.

Rest of the World

The August Visa Bulletin indicated a cutoff date of July 15, 2015 for EB-3 applicants chargeable to the worldwide category. The September Visa Bulletin indicates a cutoff date of August 15, 2015, reflecting forward movement of one month. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to August 15, 2015 may file AOS applications or have applications approved in September 2015.

Developments Affecting The F2a Family-Sponsored Category

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for F2A applicants from Mexico. The September Visa Bulletin indicates a cutoff date of February 1, 2014, an advancement of three months. This means that applicants from Mexico with a priority date prior to February 1, 2014 may file AOS applications or have applications approved in September 2015.

The August Visa Bulletin indicated a cutoff date of December 15, 2013 for F2A applicants from all other countries. The September Visa Bulletin indicates a cutoff date of March 1, 2014, reflecting forward movement of two and a half months. This means that F2A applicants from all other countries with a priority date prior to March 1, 2014 may file AOS applications or have applications approved in September 2015.

Developments In The Coming Months

It is anticipated that EB-2 visa numbers for China and India will advance again at the start of the 2016 fiscal year (October).

Regarding the Diversity Visa (“DV”) program, the US Department of State has warned that “[e]ntitlement to immigrant status in the Diversity Visa (“DV”) category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2015 program ends as of September 30, 2015. . . Numbers could be exhausted prior to September 30.”

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward, backward, or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the September 2015 Visa Bulletin in its entirety, please visit the DOS Website.

ARTICLE BY Eleanor Pelta & Eric S. Bord of Morgan, Lewis & Bockius LLP

Re: Gold King Mine – Statement, Photos and Audio from EPA Administrator in Durango, CO

Today, EPA Administrator Gina McCarthy visited Durango, CO to inspect response efforts relating to the release of waste water from Gold King mine, and meet with state, local and tribal officials and community members. Tomorrow, Administrator McCarthy will visit the response efforts in Farmington, NM. More details about the visit will be released as they become available.

While in Durango, Administrator McCarthy attended a briefing at the Unified EPA Area Command where she discussed promising new data from August 7th, 8th, and 9th that is showing water quality levels in the Animas River near Durango similar to pre-event conditions. EPA is continuing to work with local community officials tasked with making decisions about public health. Later this afternoon EPA scientists will be meeting with those officials to discuss the new data and any decisions moving forward.

Photos: Photos from EPA Administrator Gina McCarthy’s trip to Durango, CO to inspect response efforts relating to the release of waste water from Gold King mine, and meet with state, local and tribal officials and community members.

Audio: Audio from EPA Administrator Gina McCarthy’s remarks and press conference at the Unified EPA Area Command in Durango, CO, on response efforts relating to the release of waste water from Gold King Mine.

Following the briefing, the Administrator held a press briefing at the Unified EPA Area Command in Durango. The following remarks can be attributed to EPA Administrator Gina McCarthy:

No agency could be more upset about the incident happening, and more dedicated in doing our job to get this right. We couldn’t be more sorry. Our mission is to protect human health and the environment. We will hold ourselves to a higher standard than anyone else.

I want to assure the general public as well as the leaders in the states, the counties and the tribal leaders, that we are working hand in hand with our partners to expedite this review, to expedite some return to normalcy in terms of using this river.

The river is returning to pre-event conditions. This is very good news, but we will be working with our partners so they have a chance to review this data thoroughly and have a chance to talk through this data in terms of what it means to their decisions moving forward. We are going to let this high quality and reliable science be our guide.

From this point on, the data will continue to come out. And that’s what’s going to influence decisions on what should happen in this river and in the affected counties.

For additional information on the response to the Gold King Mine release www.epa.gov/goldkingmine

This article first appeared in the EPA Newsroom.

ARTICLE BY EPA of U.S. Environmental Protection Agency

Spring Forward, but Fall Behind: The September 2015 Visa Bulletin Brings Unwelcome News for Indian and Chinese “Green Card” Applicants in the Employment-Based Second Preference Category

Today, the Department of State (DOS) released the last visa bulletin for the 2015 fiscal year. Notably, major retrogressions are seen in the employment-based second preference category (EB-2) for both India and China. The EB-2 India category has retrogressed from October 1, 2008 toJanuary 1, 2006. The EB-2 China category has retrogressed almost eight years, from December 15, 2013 to January 1, 2006.

The employment-based third preference category (EB-3) for Mexico and Worldwide advances by one month. EB-3 China advances by six months and EB-3 India also saw an almost six- month advancement as well.

September is the last month of the government’s fiscal year and DOS has evaluated how many visa numbers are left to be issued. After performing this calculation, DOS adjusts the cutoff dates accordingly. Over the past six months, we have seen significant forward movement in the EB-2 category for India and China, and as such more petitions were filed and numbers were used. The retrogression stops this forward momentum for September, however once the new fiscal year begins October 1st more visa numbers should become available.

ARTICLE BY Michele D. Frangella of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Death Threats against Co-Workers Defeat Employee Disability Discrimination Claim, Federal Court Rules

A depressed employee who was fired for threatening to kill his co-workers was not a qualified individual entitled to protection under the Americans with Disabilities Act, as the employee could not perform essential job functions, with or without an accommodation, a federal appeals court in San Francisco has ruled, affirming judgment in favor of the employer. Mayo v. PCC Structurals, Inc., No. 13-35643 (9th Cir. July 28, 2015). The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Background

Timothy Mayo was a welder for PCC Structurals, a manufacturer of specialized aircraft parts. Mayo was diagnosed with major depressive disorder in 1999, but medication and treatment enabled him to continue working without incident until 2010, when he began to feel he was being bullied by his supervisor. Mayo told three different co-workers that he wanted to kill the supervisor. He told one co-worker that he felt like bringing a shotgun to work and “blowing off” the heads of the supervisor and another manager. He told another co-worker that he wanted to “bring a gun down and start shooting people.” Mayo said he wanted to start shooting at 1:30 p.m., because by that time all of his supervisors would be at the worksite, thereby presenting him with a maximally target-rich environment.

Mayo’s co-workers reported the threats to the employer. When questioned, Mayo told an HR representative that he “couldn’t guarantee” he would not carry out the threats. PCC immediately suspended Mayo and called the police. The police took Mayo into custody for six days on the basis that he was an imminent threat to himself and others. After his release from police custody, Mayo spent two months on Family and Medical Leave Act and Oregon Family Leave Act leave. Mayo’s psychologist and a nurse practitioner cleared him to return to work and suggested that Mayo be assigned a different supervisor. Instead, PCC terminated Mayo’s employment.

Mayo brought an Americans with Disabilities Act case against PCC, arguing that his threats were the result of his diagnosed major depressive disorder and that PCC Structurals failed to accommodate him (by following the suggestion of his doctor that he be assigned a different supervisor).

The District Court granted summary judgment to the employer, holding that Mayo could not establish a prima facie case of disability discrimination. Mayo was unable to show he could perform the essential functions of his job with or without a reasonable accommodation and, therefore, he was not a “qualified individual” under the ADA.

Expressed Homicidal Ideation in Workplace Bars ADA Discrimination Claim

The Ninth Circuit affirmed the lower court decision. Its holding was straightforward: Mayo was not a “qualified individual” under the ADA because he could not perform the essential functions of his job:

An essential function of almost every job [including Mayo’s] is the ability to appropriately handle stress and interact with others.

The logic of our holding is that compliance with such fundamental standards is an “essential function” of almost every job.

Writing for the panel, Judge John B. Owens stated that threatening the lives of one’s co-workers “in chilling detail” on multiple occasions indicates that an employee cannot appropriately handle stress and interact with others. The Court also held that, even when the threatening comments can be traced back to a disability, such as major depressive disorder, the employee’s inability to handle stress and interact with others renders him unable to perform essential job functions and negates a claim under the ADA.

The Ninth Circuit’s decision brings it in line with several sister Circuits that have held employers cannot be forced to choose between accommodating a disability and creating an unsafe workplace for other employees. The Court said:

The [ADA] does not require an employer to retain a potentially violent employee. Such a request would place an employer on a razor’s edge — in jeopardy of violating the [ADA] if it fires such an employee, yet in jeopardy of being deemed negligent if it returned him and he hurts someone. The [ADA] protects only “qualified” employees, that is employees qualified to do the job for which they were hired; and threatening other employees disqualifies one.

While acknowledging prior cases holding that conduct resulting from a disability “is considered to be part of the disability,” the Ninth Circuit ruled that when it comes to overt threats to kill co-workers, employers have no obligation to “simply cross their fingers and hope that violent threats ring hollow …. [W]hile the ADA and Oregon disability law protect important individual rights, they do not require employers to play dice with the lives of their workforce.”

Addressing Mayo’s claim that PCC Structurals should have reasonably accommodated him by following his psychologist’s suggestion that he be assigned a different supervisor, the Ninth Circuit stated:

Giving Mayo a different supervisor would not have changed his inappropriate response to stress – it would have just removed one potential stressor and possibly added another name to the hit list.

Implications

The Court was faced with a person clearly disabled by major depression who manifested that disability through very specific threats of violence. While being sensitive to the realities of mental illness, the Court ultimately was forced to decide whether safety of the workplace must take primacy over the otherwise extant protections of the ADA for disabled employees. The Ninth Circuit came down on the side of workplace safety. Its ruling can be summarized as “Safety first. ADA second.”

The decision applies only to misconduct that takes the form of violence (or the expression of homicidal or violent ideation in the workplace). The Court did not hold that all forms of employee misconduct fall outside the ADA. Indeed, it emphasized that its holding was limited to “the extreme facts . . . of an employee who makes serious and credible threats of violence.” It stated that employees who are rude, gruff, unpleasant, or anti-social may have a “psychiatric disability” and, thus, be a “qualified individual” under the ADA. Where non-violent misconduct stems from a disability, it will continue to be deemed a part of the disability, requiring employers to attempt accommodation to mitigate future disability-driven misconduct.

ARTICLE BY Andrew L. Pepper of Jackson Lewis P.C.

Jury Awards $1.6M to Sarbanes-Oxley Whistleblower

A New York federal jury awarded $1.6M in compensatory damages to a whistleblower in a Sarbanes-Oxley whistleblower retaliation lawsuit. The verdict is consistent with a recent trend of large jury verdicts in whistleblower retaliation claims, including a six million dollar verdict in the Zulfer SOX case. According to the verdict form, the full amount of the verdict awarded to whistleblower Julio Perez was for compensatory damages. Under the whistleblower provision of SOX, there is no cap on compensatory damages.

While employed at Progenics Pharmaceuticals as a Senior Manager of Pharmaceutical Chemistry, Perez worked with representatives of Progenics and Wyeth to develop Relistor, a drug that treats post-operative bowel dysfunction and opioid-induced constipation. In May 2008, Progenics and Wyeth issued a press release stating that the second phase of trials “showed positive activity” and that the two companies were “pleased by the preliminary findings of this oral formulation” of Relistor. Within two months of the issuance of the press release, Wyeth executives sent a memo to Progenics senior executives informing them that the second phase of clinical trials failed to show sufficient clinical activity to warrant a third phase of trials. The Wyeth memo specifically stated: “Do not pursue immediate initiation of Phase 3 studies with either available oral tablets or capsule formulations.”

Perez saw the confidential Wyeth memo and on August 4, 2008, he sent a memo to Progenics’ Senior Vice-President and General Counsel in which he alleged that Progenics was “committing fraud against shareholders since representations made to the public were not consistent with the actual results of the relevant clinical trial, and [Plaintiff] think[s] this is illegal.” The next day, Progenics’ General Counsel questioned Perez about the confidential Wyeth memo. Progenics then terminated Perez’s employment, claiming he had refused to reveal how he had obtained the Wyeth memorandum.

Perez brought suit under SOX, alleging that Progenics terminated his employment because of his August 4, 2008 Memorandum, and denying that he refused to answer questions about his access to the Wyeth memo. Progenics again claimed that it terminated Perez’s employment because he failed to explain how he got the memo. The memo’s intended recipients denied giving Perez a copy of the memo. During the litigation, Perez argued that the memo was distributed widely within Wyeth and that he had not “misappropriated” it.

Following an investigation, OSHA did not substantiate Perez’s SOX complaint. Perez removed his SOX complaint to federal court in November 2010. On July 25, 2013, Judge Kenneth Karas issued an order denying Progenics’ motion for summary judgment. The case was hard-fought, with more than 120 docket entries concerning pre-trial matters. Perez was represented by counsel when he filed his SOX claim in federal court, but proceeded pro seshortly before Progenics moved for summary judgment through trial.

Recent Sarbanes-Oxley Whistleblower Jury Verdicts

On March 5, 2014, a California jury awarded $6 million to Catherine Zulfer in her SOX whistleblower retaliation against Playboy, Inc. (“Playboy”). Zulfer, a former accounting executive, alleged that Playboy had terminated her in retaliation for raising concerns about executive bonuses to Playboy’s Chief Financial Officer and Chief Compliance Officer. Zulfer v. Playboy Enterprises Inc., JVR No. 1405010041, 2014 WL 1891246 (C.D.Cal. 2014). She contended that she had been instructed by Playboy’s CFO to set aside $1 million for executive bonuses that had not been approved by the Board of Directors. Id. Zulfer refused to carry out this instruction, warning Playboy’s General Counsel that the bonuses were contrary to Playboy’s internal controls over financial reporting. Id. After Zulfer’s disclosure, the CFO retaliated by ostracizing Zulfer, excluding her from meetings, forcing her to take on additional duties, and eventually terminating her employment. Id. After a short trial, a jury awarded Zulfer $6 million in compensatory damages and also ruled that Zulfer was entitled to punitive damages. Id. Zulfer and Playboy reached a settlement before a determination of punitive damages. The $6 million compensatory damages award is the highest award to date in a SOX anti-retaliation case. Id.

The Ninth Circuit recently affirmed a SOX jury verdict awarding $2.2 million in damages, plus $2.4 million in attorneys’ fees, to two former in-house counsel. Van Asdale v. Int’l Game Tech., 549 F. App’x 611, 614 (9th Cir. 2013). The plaintiffs, both former in-house counsel at International Game Technology, alleged that they had been terminated in retaliation for disclosing shareholder fraud related to International’s merger with rival game company Anchor Gaming. Id. Specifically, plaintiffs alleged that Anchor had withheld important information about its value, causing International to commit shareholder fraud by paying above market value to acquire Anchor. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 992 (9th Cir. 2009). When the plaintiffs discovered the issue, they brought their concerns about the potential fraud to their boss, who had served as Anchor’s general counsel prior to the merger. Id. at 993. International terminated both plaintiffs shortly thereafter. Id.

In addition, a former financial planner at Bancorp Investments, Inc. who alleged that he was terminated for disclosing trade unsuitability obtained a $250,000 jury verdict in the Eastern District of Kentucky in late 2013. Rhinehimer v. Bancorp Investment, Inc., 2013 WL 9235343 (E.D.Ky. Dec. 27, 2013), aff’d 2015 WL 3404658 (6th Cir. 2014).

Zulfer, Van Asdale, and Rhinehimer highlight the importance of the removal or “kick out” provision in SOX that authorizes SOX whistleblowers to remove their claims from the Department of Labor to federal court for de novo review 180 days after filing the complaint with OSHA.

ARTICLE BY Jason Zuckerman of Zuckerman Law

False Claims Act: Do You Really Have Just 60 Days to Repay?

One of your employees informs you of a potential overpayment from Medicare. Do you really only have 60 days from that point to determine if it is indeed an overpayment and repay it?

The Patient Protection and Affordable Care Act of 2010 requires that a person who receives an overpayment of Medicare or Medicaid funds report and return the overpayment within 60 days of the “date on which the overpayment was identified,” and makes the failure to do so a violation of the False Claims Act. 42 U.S.C. 1320a-7k(d)((2)-(3)(emphasis added). However, Congress didn’t define what it means toidentify a false claim.

On August 3, 2015, the United States District Court for the Southern District of New York issued the first federal court decision addressing when an overpayment should be considered to be “identified” for purposes of determining whether there has been a False Claims Act violation.

The ruling came in the case of Kane v. Healthfirst, et al. and U.S. v. Continuum Health Partners Inc. et al., in which Continuum Health Partners Inc. “ which operated and coordinated a network of non-profit hospitals “ was accused of failing to make timely repayment of identified overpayments.

The potential false claim was first brought to the defendants’ attention in September, 2010 by New York State auditors. An employee of Continuum subsequently provided a preliminary list of potential overpayments to management in February, 2011. He was fired four days later and subsequently filed a whistle-blower action. It wasn’t until the government issued a Civil Investigative Demand in June, 2012 that Continuum reimbursed the government for a large number of claims. Continuum did not return all of the overpayments to the government until May, 2013 approximately two years after the initial internal email.

According to the ruling, approximately half of the February, 2011 preliminary list of overpayments did, in fact, constitute overpayments. The Continuum defendants had argued that the 60-day period began only after the overpayment was “classified with certainty.” The court, however, sided with the government and found that the 60-day clock starts when a person is “put on notice” that a claim may be overpaid.

The court tempered its ruling, though, by stating that a false claims violation occurs only when the “obligation is knowingly concealed or knowingly and improperly avoided or decreased.” Further, the court stated that “prosecutorial discretion would counsel against” an enforcement action in a situation involving “well intentioned” providers working with “reasonable haste” to rectify the issue. In such a case, the healthcare provider wouldn’t have acted with the “reckless disregard, deliberate ignorance, or actual knowledge” required to support a false claims case.

While the decision didn’t provide bright lines and identify exactly when that 60-day clock starts, one of the key takeaways is that once a potential overpayment is identified, a health care provider must take prompt action and follow through with a thorough internal review process to determine whether an overpayment truly exists. Then, it must make repayments to the extent required.

ARTICLE BY Steven E. Pozaric, Robert Schwendinger, Diane E. Felix, Jonathan F. Dalton & Bradley S. Byars of Armstrong Teasdale

Delaware Adds to Growing Patchwork of Social Media Laws

On August 7, Delaware Governor Jack Markell signed a law to prohibit employers from interfering with the personal social media accounts of their prospective and current employees. The new law, which also took effect on August 7, defines “personal social media” to encompass any account on a social networking site created and operated by a prospective or current employee exclusively for his or her personal use. The term does not include accounts created or operated by an employer and that are operated by an employee as part of his or her employment.

Specifically, the new law prohibits an employer from requesting or requiring a prospective or current employee to:

disclose a username or password for the purpose of allowing the employer to access personal social media;

access personal social media in the presence of the employer;

use personal social media as a condition of employment;

divulge any personal social media (except as otherwise permitted by the new law);

add a person, including the employer, to the list of contacts associated with the prospective or current employee’s personal social media,

invite or accept an invitation from any person, including the employer, to join a group associated with the prospective or current employee’s personal social media; or

alter settings on the prospective or current employee’s personal social media that affect a third party’s ability to view the contents of the medium.

The new law also forbids an employer from taking adverse action against a prospective or current employee for failing to comply with any of these requests or demands.

Despite these broad prohibitions, nothing in the new law prevents an employer from:

exercising its right or obligation under its personnel policies, federal or state law, case law, or other rules or regulations to require or request that an employee divulge a username, password, or social media “reasonably believed to be relevant” to an investigation of alleged employee misconduct or violation of applicable laws and regulations (so long as the social media is used solely for purposes of that investigation or a related proceeding);

requiring or requesting an employee to disclose a username, password, or other accessing credentials for (i) an electronic communication device supplied by or paid for in whole or in part by the employer; or (ii) an account or service provided by the employer, obtained by virtue of the employee’s employment relationship, or used for the employer’s business purposes;

accessing, blocking, monitoring, or reviewing electronic data stored on an employer’s network or on an electronic communications device supplied by or paid for in whole or in part by the employer;

complying with a duty to screen prospective or current employees, or to monitor or retain employee communications, (i) under federal or state law or by a self-regulatory organization, as defined in the Securities and Exchange Act of 1934 (like FINRA); or (ii) in the course of a law enforcement employment application or officer conduct investigation performed by a law enforcement agency; or

accessing, using, or viewing information about a prospective or current employee otherwise available in the public domain.

The new Delaware law continues a growing trend across the country. Twenty-one other states have similar laws restricting employer access to a prospective or current employee’s personal social media account, including Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Maryland, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, and Wisconsin.

ARTICLE BY Katharine H Parker & Daniel L. Saperstein of Proskauer Rose LLP

Temps May Have Multiple Employers

The Fourth Circuit Court of Appeals recently ruled that a temporary agency employee could be deemed an employee of the customer company as well as the temporary agency. The Fourth Circuit adopted a hybrid test and set forth nine factors that should be considered to determine if an employee is jointly employed by two or more entities. The nine factors are:

Authority to hire and fire the individual;
Day-to-day supervision of the individual, including employee discipline;
Whether the customer furnishes the equipment used and the place of work;
Possession of and responsibility over the individual’s employment records, including payroll, insurance, and taxes;
The length of time during which the individual has worked for the customer;
Whether the customer provides the individual with formal or informal training;
Whether the individual’s duties are akin to the duties of the customer’s employees;
Whether the individual is assigned solely to the customer; and
Whether the parties intended to enter into an employment relationship.

The court made clear that none of the factors are dispositive, but that control is still the “principal guidepost” in making the determination. However, the court noted that the first, second and third factors were the most important in the analysis.

Based on the analysis of the factors provided by the court, prudent employers should note the following:

Authority to hire and fire can be found if the customer employer directs the temp agency to fire or discipline the employee even if the temp agency is actually the one that carries out the termination.
Temp employees working “side by side” with the company’s employees and performing the same tasks as the company employees is also an indicator of control.
Even though temp employees may wear a different uniform from the company employees, that is not dispositive of control.
Temp employees performing tasks essential to the business of the customer company such as producing goods or services core to the business also weighs in favor of control.
Although the temp agency may handle dispersal of paychecks, official terminations and employee discipline, this does not guarantee that the temp agency is the sole employer for purposes of liability.

ARTICLE BY Karla Turner Anderson of Poyner Spruill LLP

Coming to America: Foreign Manufacturers Looking to Produce in the U.S.

There’s been buzz about Keer Group lately, the Chinese textile company that opened a cotton mill this year in South Carolina. China has long been seen as the global capital of textile manufacturing, due in part to their low production costs and seemingly endless supply of cheap labor. But Keer Group found the rising costs in China made it difficult to grow in its hometown of Hangzhou. Wages there have been steadily increasing, energy costs are rising, and shipping costs are growing higher. Textile operations in China are actually starting to become unprofitable. So production was moved to America. And Keer Group is not alone. JN Fibers Inc., also of China, is building a plant in South Carolina. Indian textile manufacturer, ShriVallabh Pittie Group, is building a factory in Georgia.

Why would textile companies from traditionally low cost countries move production to the U.S.? What’s the allure for these foreign companies? Isn’t it expensive to operate here as opposed to low wage countries like China and India? Well, despite the comparatively high wage rate in the U.S., several factors are at play to offset the cost of labor. Years of low employment mean that Americans are willing to work longer hours and for suppressed wages. The U.S. is also home to several right-to-work states where union representation is low and workers are not restricted to a single task but rather can set up, operate, and run multiple machines. But even with a wage gap between the U.S. and low wage countries, the gap is more than compensated for by other savings.

“Except for human labor, all other production factors are cheaper in the U.S.”

The U.S. is a political, economic, and infrastructural oasis in an uncertain world. America benefits from cheap, plentiful, and reliable energy ensuring production facilities can be kept running constantly. While textile companies in the past have looked to countries such as Bangladesh and India to keep production costs low, economic volatility resulting in unreliable energy sources are disrupting production. Many plants today are primarily automated, meaning companies rely on the constant energy supply. What good are cheap utilities when they aren’t stable?

The U.S. has also created incentives to keep costs down for foreign companies looking to relocate. Government at the local, state, and federal level have eagerly provided infrastructure grants, revenue bonds, and tax credits in order to bring back jobs to economically depressed areas. Additionally, trade agreements between the U.S. and other low cost countries provide the extra incentive of keeping shipping and logistical costs low. NAFTA has created duty free zones on imported textiles between the U.S. and several trade partners. And should the Trans-Pacific Partnership reach an agreement, companies with production in America can take advantage of an expanded pool of countries with tariff reductions, including Vietnam.

Just how difficult is it for a foreign company to establish operations in America? Not difficult at all. The U.S. Small Business Administration has provided excellent guidance on the basic steps needed get started.

Businesses in the U.S. are incorporated at the state level, first by registering with the state and then establishing a registered agent with a valid state address to receive legal documents on behalf of the company. Considerations for the foreign company include which state will be the most attractive in terms of readiness of labor force, land availability, and tax benefits.

International shipping of goods through the U.S. will be regulated at the federal level, requiring specific licenses and permits. The Department of Commerce’s Trade Information Center and the U.S. Customs and Border Protection provide useful information on U.S. importation and exportation procedures. Additional considerations include compliance with the Internal Revenue Service, starting by either obtaining an Employment Identification Number or an Individual Taxpayer Identification Number, depending upon the citizenship of the individual establishing the business. Trade licensing requirements, IRS compliance, and tax credits, including incentives available to businesses through a foreign tax treaty, are all important issues to consider, and if left with any questions, it is always best to consult with a qualified attorney.

There are numerous benefits for a foreign company to relocate manufacturing operations to the U.S., but there are also important considerations that should be taken into account. However, navigating the channels of regulations and requirements shouldn’t deter manufacturers from taking advantage of all of that come from setting up shop in America. Foreign companies are finding that operating in what were traditionally considered to be low cost countries are no longer profitable and are starting to look outside their borders. And if companies like Keer Group are any indication, for the first time in a long time manufacturing in America is not only a consideration, it’s a serious contender.

ARTICLE BY Ayako Hobbs & Sarah K. Rathke of Squire Patton Boggs (US) LLP

Trans-Pacific Partnership Negotiations Face Tighter Timeline as Talks Continue

Trade ministers announced that they will continue negotiations over several unresolved provisions of the Trans-Pacific Partnership (TPP) during a four-day meeting in Maui, Hawaii that concluded July 31. Trade ministers representing the 12 Pacific Rim countries included in the free trade deal remain optimistic about negotiations and said in a joint statement that they are “more confident than ever that TPP is within reach.”

trade partnership, negotiations, trading deal, stakeholders, intellectual property

One of the major sticking points reportedly centers around intellectual property protections for biologics. The U.S. reportedly attempted to secure 12 years’ data protection for pharmaceutical companies, while Australia is insisting on five years. Observers suggest the agreement will fall somewhere between five and seven years’ data protection. U.S. stakeholders concerned with a deal that only includes five years of data protection could threaten to round up enough opposition in Congress to stymie the deal.

Other points of contention arose over agricultural issues and the auto industry. The U.S. is pushing for greater access to Canada’s dairy market, but Canada is concerned that could cause instability in its prices. Australia is seeking increased access to the U.S. sugar market, while the U.S. is trying to limit large increases in sugar imports. Meanwhile, the U.S., Canada, Mexico and Japan are hashing out “rule of origin” and other auto industry issues.

Once all 12 trade ministers agree to a deal, Congress will have 90 days to review and approve it. If talks continue beyond August, pushing the review period deep into the fall or winter, the deal is likely to become front and center in the U.S. presidential campaign. Democratic front-runner Hillary Clinton would face intense pressure from labor unions to disavow the deal, along with the 28 House Democrats who supported legislation to fast-track passage of the agreement. It could also become a problem for Canadian Prime Minister Stephen Harper, who is up for re-election in October.

The TPP will govern foreign exports, imports, and investment implicating several major sectors of the U.S. economy, including manufacturing, intellectual property, textiles and apparel, telecommunications, agriculture and others. It will also cover labor, employment, and environmental issues. The TPP will initially cover 12 countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. Collectively these countries represent 40 percent of the global economy.

ARTICLE BY Richard J. Ferris, Jr., Jennifer F. Walsh & Michelle A. Leeds of Foley & Lardner LLP

The National Law Forum

Department Of State Releases September 2015 Visa Bulletin

Cutoff dates for EB-2 China and India retrogress to January 1, 2006. Cutoff dates for EB-3 China, India, and the Philippines advance to December 22, 2004.

What Does The September 2015 Visa Bulletin Say?

Developments Affecting The Eb-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

China

India

Developments Affecting The Eb-3 Employment-Based Category

China

India

The Philippines

Mexico

Rest of the World

Developments Affecting The F2a Family-Sponsored Category

Developments In The Coming Months

How This Affects You

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