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Posts Tagged ‘Trump’

NLRB Decisions are Trending Pro-Employer

Posted on: February 27th, 2019

By: Amy C. Bender

The National Labor Relations Board (“NLRB”) under the Trump administration is showing a return to more conservative, employer-friendly interpretations of the laws regarding employees’ rights to engage in concerted activity to improve wages and working conditions. As a reminder, these protections apply to almost all private-sector employees, regardless of whether they belong to a union.

Independent Contractors – The NLRB recently issued a decision returning to the pre-Obama era, employer-friendly “common law agency” test for determining whether a worker is an employee or an independent contractor. This ruling makes it easier for employers to classify workers as independent contractors, which benefits employers since independent contractors do not have certain rights that employees have, such as the right to unionize (and employers do not have to pay taxes or insurance on independent contractors, among other distinctions).

Joint Employers – The NLRB recently closed the period to submit comments on its proposed rule regarding the standard for when two entities are considered joint employers. Under the proposed rule, an entity will be deemed a joint employer only if it has and exercises substantial, direct, and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. The current standard from the Obama administration allows a finding of joint employment if an entity exercises indirect control or merely has the contractual right to exercise control, which can result in increased liability for businesses.

Employee Handbook Rules – The NLRB recently issued guidance on when an employer’s workplace policy interferes with employees’ rights to engage in protected concerted activity. The guidance provides that a policy will be placed into one of three categories (generally lawful, warrants individualized scrutiny, or unlawful) and be subject to a balancing test between the policy’s negative impact on employees’ ability to exercise their rights and the policy’s connection to employers’ right to maintain discipline and productivity in their workplace. This guidance provides employers more clarity and detail on how to craft lawful policies and also makes clear that policies will be analyzed to determine the impact they would have (and not just conceivably could have) on employees’ rights.

These developments signal good news for employers, and let’s hope this trend continues.

For questions or assistance in reviewing or preparing your workplace policies, contact Amy Bender at 770-818-1421 or [email protected]

USCIS Creates Another Roadblock for Legal Immigrants

Posted on: August 8th, 2018

By: Kenneth Levine

A proposed Trump administration change to the “public charge” regulations, expected to be issued within the next few months, will dramatically alter the process for how Immigration Officers determine eligibility for citizenship or permanent residency.  USCIS designates an applicant as a “public charge” if they are likely to become predominantly dependent on government benefits for long term survival.  Currently, USCIS Officers focus on the petitioning sponsor’s income (or a cosponsor’s income if the petitioner’s income falls below the required amount) in assessing eligibility.  Section 212(a)(4) of the Immigration and Nationality Act currently allows USCIS to deem a permanent residency applicant ineligible if they are likely at any time to become a “public charge.” Although the current regulation appears to afford an Immigration Officer considerable discretion in assessing an Applicant’s public charge prospects, in practice there is virtually no discretion.  In other words, if the petitioner or the co-sponsor’s current income satisfies the affidavit of support, then USCIS will typically have no justifiable basis to deny an application on public charge grounds.

The new regulations would substantially redefine “public charge” criteria by creating new grounds of ineligibility if the foreign national (or immediate family members) ever obtained health insurance through the Affordable Care Act (ACA) or signed up for supplemental assistance programs for financial and/or nutritional assistance for their U.S. citizen children.  Moving forward, USCIS Officers will be allowed to analyze a foreign national applicant’s income, employment history, job skills, health status, assets, and any family history of having received public health benefits (no matter if they were legally entitled to receive such benefits).  This new approach will dramatically expand USCIS authority to deny a case based on the arbitrary whims of an Officer who looks unfavorably on an applicant’s job history or the amount of money they have saved in the bank.

At this point it is unknown whether there will be different public charge standards for permanent residency or citizenship applicants.  Regardless, FMG Immigration Attorneys fully expect that federal litigation will ensue once USCIS attempts to implement the new public charge regulations.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

New Potential SCOTUS Justice: Friend or Foe of Qualified Immunity?

Posted on: July 10th, 2018

By: Sara Brochstein

President Trump announced his decision to nominate Judge Brett Kavanaugh to fill the Supreme Court vacancy created by Justice Anthony Kennedy’s retirement.  Should he be confirmed, Judge Kavanaugh could have significant impact on the preservation of qualified immunity, which continues to come under fire of late.   Essentially, the defense of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Given the current climate with unending allegations of excessive use of force by police, the call for reconsideration of the expansive protection offered by qualified immunity has become widespread.  And whether officers remain entitled to qualified immunity under the current parameters of the doctrine has substantial effect on civil litigation outcomes and potential damage awards.

Such a hot button issue continues to present itself to the Supreme Court.  In fact, just one year ago, Justice Clarence Thomas wrote separately in the Court’s decision in Ziglar v. Abbasi, stating that in an appropriate case, the Court should reconsider its qualified immunity jurisprudence.   It will be interesting to see how the Court evolves in its decisions to uphold officers’ entitlement to qualified immunity, especially given continuing outspoken public perception on the issue.   However, if Judge Kavanaugh’s recent dissent in Wesby et al. v. District of Columbia et al. is any indication of his views of qualified immunity and the position he would take as a Justice, it appears qualified immunity could endure as a strong  defense given that the Supreme Court ultimately sided with the dissent.

If you have any questions or would like more information, please contact Sara Brochstein at [email protected].

Pass That Dutch: California Insurers Respond to Budding Cannabis Industry

Posted on: July 2nd, 2018

By: Kristin Ingulsrud

California Insurance Commissioner Dave Jones announced on June 4, 2018 his approval of the Cannabis Business Owners Policy (CannaBOP) in California.  The new CannaBOP program was designed for cannabis dispensaries, storage facilities, processors, manufacturers, distributors, and other related businesses.  The CannaBOP program includes property and liability coverage for qualifying businesses.

Other recent offerings by insurers to the California cannabis industry include the first commercial insurance from an admitted carrier in November 2017, the first surety bond program in February 2018, and the first coverage for commercial landlords and a product liability and product recall program in May.

In April, President Donald Trump seemingly called off Attorney General Jeff Sessions’s war on marijuana and promised to support legislation that would protect states that have legalized marijuana from a federal crackdown.  The unpredictability of the current administration in regards to federal enforcement is just one of the unique issues the legalized cannabis industry faces.

Commissioner Jones hosted a webinar in May, Weeding through the Unique Insurance needs of the Cannabis Industry with the National Association of Insurance Commissioners Center for Insurance Policy and Research.   “Cannabis businesses face various insurance gaps—which means cannabis customers, workers and business owners may not have access to insurance to help them recover if there are accidents, injuries, property damage, or any of the things commercial insurance typically covers,” said Jones.

Topics included the effects of conflicting state and federal law on insurance claims, policy exclusions and gaps in coverage.  The webinar also covered the future of the cannabis industry and new trends such as on-site consumption, cryptocurrency, and blockchain.

Commissioner Jones  held the nation’s first public hearing in October 2017 to identify insurance gaps faced by the cannabis industry as part of his ongoing initiative to encourage commercial insurers to offer tailored coverage.  Since that time, insurers in California continue to expand their offerings to the cannabis industry.

If you have any questions or would like more information, please contact Kristin Ingulsrud at [email protected].

U.S. Supreme Court Upholds President Trump’s Travel Ban

Posted on: June 27th, 2018

By: Layli Eskandari Deal

The U.S. Supreme Court, in a 5-4 decision, upheld President Trump’s latest travel ban.  The Court dismissed the anti-Muslim statements of President Trump and other administration officials when evaluating the legality of the ban. The decision stated that the ban is neutral and advances the national security of the United States.  The Judges relied on the discretionary powers granted to the President under the Immigration and Nationality Act (“INA”).

The travel ban restricts entry of foreign national to the United States from Iran, Libya, North Korea, Syria, Yemen, Somalia, and Venezuela.  A waiver can be granted on a case-by-case basis by the U.S. Department of State.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].