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This blog shall provide a brief summary of the status of the pending lawsuit related to the New Regulations issued by USCIS and effective November 21, 2019, as well as a status report on pending legislation. Needless to say, the market is in a confused state given the uncertainty of what will transpire going forward. As an industry, we are now dealing with the New Regulations which in effect eliminates non-TEA projects from the marketplace since it is very doubtful that investors will invest $1,800,000 to obtain a green card, especially given all the delay and extra costs being encountered…
New Year Brings Substantial Changes for Tobacco, Cannabis, and Food and Beverage Industries We saw plenty of significant federal and state policy, regulatory, and enforcement developments for the tobacco, cannabis, and food and beverage industries this holiday season.  Notably, (1) President Trump signed H.R. 1865 into law, which bans the sale of tobacco products to anyone under the age of 21; (2) the Trump Administration finalized its partial ban on flavored e-cigarette products, while the U.S. Food and Drug Administration issued its enforcement policy on unauthorized flavored e-cigarettes that appeal to children; (3) the U.S. Department of Agriculture approved the…
2020 Preview: Minimum Wages Rise in 24 States Plus D.C. In 2019, we saw significant activity in state legislatures passing employment-related laws in areas where federal government efforts had stalled, like paid sick leave, non-compete agreements and workplace discrimination. Another important area where states took action concerns the raising of minimum hourly wages. In fact, workers in half the states (25 including D.C.) will see an increase in hourly minimum wage rates at some point in 2020. The chart below details which states are affected by minimum wage increases in 2020 and what those increases will be. States in which…
For the past 4 weeks, the EB-5 industry has been anxiously awaiting the status of the pending complaint filed in the United States District Court in the District of Columbia by a Florida regional center against USCIS and other related parties in order to block the enforceability of the New Regulations published by USCIS that became effective November 21, 2019 (the “New Regulations”). As a result of such action, industry experts are taking a precautionary standpoint in analyzing how to deal with investors who would otherwise invest at a $900,000 level, assuming that the new TEA standards have been satisfied…
According to data from the Equal Employment Opportunity Commission (“EEOC”), in 2018, 6.9% of all sexual harassment charges submitted to the EEOC were filed in Illinois, representing the third highest concentration for any state, behind Texas (9.7%) and Florida (9.6%). Notably, that number has increased each year since 2014. Enter the Illinois legislature, which, earlier this year, passed an extensive new law designed to weed out discrimination and harassment in the workplace. The law, dubbed the Workplace Transparency Act (“WTA”), combats unlawful employment practices through a variety of methods, including limits on non-disclosure agreements, mandatory reporting of certain claims, and…
As referenced in our prior WISE blog article here, earlier this year Illinois enacted legislation legalizing recreational marijuana for adults, effective January 1, 2020 (the “Adult Use Act”).  However, given the ambiguity in the original legislation as it related to employer liability and, more specifically, the liability for terminating (or withdrawing a job offer for) employees for testing positive for marijuana, the Illinois legislature recently passed (and the Governor signed into law), an amendment (SB 1557) that clarifies what employers can and cannot do under the Adult Use Act. The primary source of confusion for employers under…
On November  20, 2019, the Commonwealth’s highest court issued a significant decision regarding overtime compensation, which makes it illegal for employers to use the “fluctuating work week” method (“FWW”) to calculate overtime.  In this significant departure from longstanding wage and hour practices and federal law, the Supreme Court of Pennsylvania outlawed the FWW method because it does not guarantee non-exempt employees at least one-and-one-half times their regular rate for working more than 40 hours per workweek, as required by state law.  GNC Store Managers Bring Suit for Overtime Violations This decision arose from the matter of Tawny Chevalier et al.…
Saul Ewing Arnstein and Lehr LLP has been extremely active in navigating the current status of the EB5 industry and determining what courses of action need to be taken given the existence of the new regulations (“New Regulations” or “REGS”), the possibility of the pending legislation being adapted, and the recently-filed temporary restraining complaint against USCIS and related parties in order to invalidate the REGS. The current EB-5 Regional Center Program has been extended by a continuing resolution until December 20, 2019.  However, on July 24, 2019, USCIS published new regulations that became effective on November 21, 2019, and until otherwise modified by…
Pennsylvania Seeks to Raise Minimum Wage, Scrap Salary Increase for Overtime Exemption The Pennsylvania Senate passed Senate Bill 79 on November 20, 2019, which would raise the minimum wage but also halt the state Department of Labor and Industry (“DLI”) from raising the salary threshold for overtime wages. The bill, which still needs to pass the house and be signed by the governor, is expected to pass and represents a compromise between the Republican-controlled legislature and Democratic governor. Under the proposed law, Pennsylvania’s minimum wage would gradually raise over the next three years to: $8.00/hour effective July 1, 2020 $8.50/hour…
On October 8, 2019, the Department of Labor (“DOL”) issued long awaited rules that could have a significant impact in the restaurant industry. The proposed rules would broaden employers’ abilities pay tip credit wages for non-tipped work and to include both front and back of the house employees in certain tip pooling programs.  Background The Fair Labor Standards Act (“FLSA”) requires employers to pay at least the federal minimum wage, which is currently $7.25 per hour. However, employers are allowed to pay a lower “tip credit” minimum wage to employees that regularly receive tips, by crediting some of the employees’…
Wages Employers frequently face a rash of absences and call-offs in the wake of a natural disaster. Generally, whether a business is required to pay an employee who misses work depends on whether the employee is exempt or non-exempt under the Fair Labor Standards Act (“FLSA”). If an exempt employee misses work for personal reasons, but the business remains open, the employer may deduct a full day’s salary. This includes absences due to transportation problems caused by weather. Likewise, a business is not required to pay a non-exempt employee for time not worked. If a business is closed due to…
Following on the heels of a much publicized incident in high school athletics, the New Jersey Division of Rights (“DCR”) issued enforcement guidance (“Guidance”) clarifying and explaining discrimination based on hairstyles, “with a particular focus on hairstyles closely associated with Black people.” The Guidance follows an incident where a high school African-American wrestler was told by a referee that he must choose between cutting his dreadlocks or forfeiting the match. According to the DCR the New Jersey Law Against Discrimination’s (“LAD”) “prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with…
On September 20, 2019, the Tenth Circuit held that cannabis industry employers are subject to the Fair Labor Standards Act (FLSA). Defendant contended that because the employer’s employment activities are in violation of the Controlled Substances Act, the FLSA’s protections to do not apply to its workers.  This argument was soundly rejected by the Tenth Circuit – putting cannabis industry employers on notice that the FLSA and most likely other federal workplace protections apply to workers in the cannabis space.     Earlier this year we discussed the case, Kenney v. Helix TCS, Inc., at the time the appeal was first argued. …
Language in Performance Bond Critical in Determining Surety’s Rights to Complete If an owner terminates a contractor due to a contractor default on a bonded project, can the surety hire the same contractor to complete the work under the bond?  Depending on the language of the bond, it may be permissible in Florida. Recently, in Seawatch at Marathon Condominium Association, Inc. v. The Guarantee Company of North America, No. 3D18-1337, 2019 WL 4850194 (Fla. 3d DCA Oct. 2, 2019), a Florida appellate court ruled that the unambiguous terms of an AIA A312 Performance Bond permitted a surety to propose a…
On October 2, 2019, the Supreme Court declined to review a 9th Circuit decision in a website accessibility lawsuit, Robles v. Domino’s. The 9th Circuit decision had reversed a grant of summary judgment and held that ADA Title III did potentially require that services of a place of public accommodations offered through websites and mobile apps, such as ordering pizza for delivery, be accessible, and remanded the case. Domino’s, supported by many major business groups, asked the Supreme Court to take the case and to provide direction on the application of the ADA to websites and other digital platforms. Many…
On September 27, 2019, Francis Suarez, the Mayor of Miami, sponsored an OZ Expo conference for the City of Miami.  Prior to the conference, one of our clients hosted a lunch for the dignitaries who attended the conference that included Secretary of HUD Dr. Ben Carson, Mayor Francis Suarez, the Acting Administrator of the of SBA for the United States, Chris Pilkerton, as well as national and local representatives of the SBA, representatives from HUD, representatives from the Opportunity Zone Division of the Federal Government including Scott Turner, Executive Director, White House Opportunity and Revitalization Council, representatives of the local…