MSLaw Blog

As mentioned in our last blog post, H-1B petitions filed during 2017 were subjected to a dramatic and unprecedented increase in scrutiny by the U.S. Citizenship and Immigration Service (“USCIS”). As a result, thousands of H-1B petitions that previously would have been routinely approved were subjected to sometimes lengthy and nearly always burdensome USCIS Requests for Evidence (commonly called “RFEs”). Issues raised by the USCIS in these RFEs have included: Is the position a specialty occupation, meaning one that requires a degree

As 2017 and Chairman Phillip Miscimarra’s term drew to an end, the National Labor Relations Board (“NLRB” or “Board”) issued a flurry of decisions overturning several Obama-era NLRB decisions. Because Board members are appointed by the President, the political make-up of the Board (5 members), and its overall view of employer-employee-union behavior, changes on a fairly regular basis. However, the scope of the recent decisions is unusually broad and has resulted in many labor practitioners telling their clients, “Remember when

Uncertainty and speculation have swirled over the last few months regarding whether U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt would replace the Clean Power Plan (CPP) after proposing to repeal the plan in October. Or would the agency simply move forward with repeal without a replacement regulation? Administrator Pruitt has hinted at a replacement rule in interviews and in prepared remarks, but on Monday, the EPA provided the best evidence yet that the agency may be moving to replace

Given the flood of public sexual harassment accusations in recent months, a bipartisan coalition of lawmakers and celebrities have come together to introduce legislation that would eliminate forced arbitration clauses in employment agreements, which advocates say reduce negative exposure for businesses and discourage women from speaking out about sexual harassment and gender discrimination claims. If enacted, the “Ending Forced Arbitration of Sexual Harassment Act” would prevent businesses from enforcing mandatory arbitration agreements with regard to complaints of sexual harassment and gender discrimination

On Friday, December 1, 2017, the U.S. Environmental Protection Agency (EPA) decided NOT to finalize rules to require hard rock mines and mineral processing operations to provide financial assurance to fund future cleanups of their properties under the federal Superfund law (Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)). A link to EPA’s action can be found here. What a Difference a Year Can Make: Brief History of the Rule from Proposal to EPA’s Decision Not to Finalize Exactly a year before, EPA

While it’s holiday season for most of the world, in the immigration world December also marks the unofficial start of H-1B lottery season.   Background on the H-1B Visa The H-1B program allows employers in the United States to temporarily employ foreign nationals in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include occupations in a variety of

The General Data Protection Regulation (GDPR), a uniform regulation aimed at protecting customer and employee personal information, becomes enforceable on May 25, 2018. The regulation will be implemented and applied in all 28 EU member countries 1 and will cover all EU data subjects. 2 While GDPR will impact the data collection and usage practices of virtually all businesses having access to the personal data of EU data subjects, many companies remain unprepared to meet their new compliance obligations. GDPR covers all companies having a

The U.S. Department of the Treasury’s Bureau of the Fiscal Service (the “Treasury”) announced on December 6, 2017 the suspension of sales of State and Local Government Series (SLGS) nonmarketable Treasury securities, effective 12:00 noon Eastern Time, December 8, 2017. A SLGS suspension, also known as closing the SLGS window, refers to when the Treasury no longer accepts new subscriptions for SLGS securities. The Treasury will reopen the SLGS window when Congress enacts, and the President signs, legislation raising the debt

2017 tax reform efforts may alleviate adverse deemed dividend tax treatment of foreign subsidiary support for the obligations of U.S. parent companies.  Present support is limited to the pledge of 66 ⅔rds of the stock in foreign subsidiaries, but that may change depending on the final Senate bill and the outcome of the conference committee deliberations. Current Law U.S. shareholders owning 10% or more of a controlled foreign corporation (CFC) are required to include in current income for U.S. tax purposes their

Bill O'Reilly. Harvey Weinstein. Kevin Spacey. Charlie Rose. Matt Lauer. It seems that every day the news covers one more explosive incident of sexual harassment in the workplace, with many allegations indicating that the harassment had been occurring for years before action was taken. Companies across the country are wondering:  “How do we keep this from happening to us?” While there is no “silver bullet” to preventing sexual harassment in the workplace, these recent cases demonstrate the importance of creating a

Following President Trump’s inauguration, and in response to his April 2017 “Buy American, Hire American” Executive Order, various agencies of the federal government have announced enhanced efforts to protect U.S. workers from discrimination. For example: U.S. Department of Justice (“DOJ”): In February 2017, the DOJ’s Civil Rights Division launched its “Protecting U.S. Workers Initiative.” This initiative is aimed at targeting, investigation, and bringing enforcement actions against employers that discriminate against U.S. workers in favor of foreign workers. U.S. Department of Labor (“DOL”):

Drug overdoses are now the leading cause of death for Americans under the age of 50. Of the drugs contributing to these deaths, prescription opioids, heroin, and the synthetic opioids, such as fentanyl, have risen dramatically over the past few years, leading President Trump to declare the opioid crisis a national emergency. By now, this grim news is well-known by most Americans, but the opioid epidemic may be hitting closer to home than Maryland-area employers realize. The Center for Disease Control reports that Maryland

On November 8, 2017, Suzzanne W. Decker, a Principal in the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group, and Sandra McLelland, Managing Counsel at Under Armour, presented a webinar to members of the Association of Corporate Counsel (“ACC”) on preserving the attorney-client privilege in corporate investigations and the extent to which internal communications may be protected by the attorney-client privilege or the attorney work-product doctrine.   Companies routinely perform internal investigations in response to employee grievances, whistleblower complaints

Introduced on November 9, 2017, the Senate Tax Bill would maintain private activity bonds (“PABs”). With this positive development, advocates will press Senate committee members to reverse their decision to terminate advanced refundings as of December 31, 2017. Advanced refundings represent almost 27% of the bond market according to Thompson Reuters. The end of advanced refundings would have a major impact on issuers and the market. Advanced refundings provide flexibility to issuers, and their termination would prevent issuers from taking

For the past several years the United States Supreme Court has sought to clarify the proper exercise of specific personal jurisdiction over foreign corporate defendants. This issue is particularly applicable in mass tort litigation where out-of-state plaintiffs are often grouped together with in-state plaintiffs for a consolidated trial setting. The Supreme Court addressed that concern in the groundbreaking decision Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017). In Bristol-Myers, the Supreme Court ultimately held that state courts could not circumvent the

On November 2, 2017, a bill called the “Tax Cuts and Jobs Act” was introduced to the United States House of Representatives. The bill seeks to simplify and reduce taxation for both individuals and businesses. Of interest to Estate Planners and our clients are the provisions relating to Federal estate, gift and generation skipping taxes. Here is a re-cap of current legislation and the possible future for Maryland residents: Federal and State laws currently impose taxes on transfers from an estate

Some of the potential impacts of the proposed Tax Cuts and Jobs Act (the “Act”), as currently drafted and described in our prior alert are summarized below for consideration. Draw-down bonds with an outstanding amount to be drawn may need to be drawn and/or escrowed prior to the effective date of the Act (currently proposed as December 31, 2017) to avoid potential characterization of post-effective date draws as newly issued bonds. There is some support for the concept that each draw of a draw-down

In my previous article “The Tiny House Craze: Zoning Laws Could Be a Tiny Impediment” I discussed the popular new “tiny house” trend in residential housing options. Along with the “tiny house” craze, another new and growing trend in housing options, particularly in urban areas, is the increasing popularity of the “micro unit.” Whether the popularity and demand is being driven by economic factors and the need for more affordable housing, or by peoples’ preference to downsize to a more simplified lifestyle,

On November 2, 2017, the House Committee on Ways and Means released a draft of its Tax Cuts and Jobs Act (the “Tax Bill”). The Tax Bill proposes to eliminate the federal tax exemption of interest income from all private activity bonds (e.g., exempt facility bonds, qualified 501(c)(3) bonds, qualified small issue bonds, qualified mortgage bonds, qualified redevelopment bonds and qualified veterans’ bonds), all tax credit bonds (e.g., qualified zone academy bonds, qualified energy conservation bonds, and new clean renewable

In February 2015, the Department of Homeland Security (“DHS”) issued a rule permitting certain persons maintaining H-4 nonimmigrant status to apply for and, if eligible, receive employment authorization from DHS.Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284-10,312 (hereinafter the “H-4 EAD Rule”). Eligible H-4 visa holders include those whose H-1B status spouse has an approved I-140 immigrant visa petition or a post-sixth year H-1B visa extension. Following publication of the H-4 EAD Rule, many H-4 visa holders

Human-resource professionals are a notoriously organized and efficient bunch. So it’s no surprise that we are often asked, “How long should I keep benefit plan records?” There’s no simple answer, unfortunately, and a record-retention policy needs careful consideration of the rules underlying the policy. IRS’s Statute of Limitations The IRS advises that you keep records long enough to respond to an audit. A plan is open to IRS audit, according to Section 6501 of the Internal Revenue Code, for three years after the filing

Property Assessed Clean Energy (PACE) Bonds are a financing tool used to finance energy efficiency upgrades or renewable energy projects in residential, commercial and industrial properties. Such projects might include increased insulation, sealing of air leaks, cool roofs and solar panels.   In a typical structure, a state, municipality or state/local agency would issue bonds and use the proceeds to provide loans to various individual homeowners and/or business owners. The property owner would use the proceeds of the loan to pay

The recent controversy surrounding NFL players kneeling during the National Anthem raises an interesting question concerning the protection of the National Labor Relations Act (NLRA) vis-à-vis work-place protests over social issues. Colin Kaepernick began protesting last year over his belief that minorities in this country are not treated fairly. His protest involved him kneeling during the playing of the National Anthem. His protest drew attention, but the attention was mostly focused on him and the San Francisco 49ers. What changed this

Many plaintiffs consider the Circuit Court for Baltimore City to be the asbestos capital of the Maryland courts. After all, the City has its own asbestos litigation rules, docket procedures, and even its own electronic filing system for asbestos cases. Specifically, since 1987, litigants have filed suits and handled discovery and trial dates under a Master Order docketed by the late Judge Marshal A. Levin. In the years following Judge Levin’s Order, plaintiffs’ attorneys have filed tens of thousands of cases

The Internal Revenue Service (the “IRS”) and The U.S. Department of the Treasury (the “Treasury”) proposed regulations on September 28, 2017 to update and streamline the public approval requirement applicable to tax-exempt private activity bonds issued by State and local governments (the “Proposed Regulations”) as imposed under the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA Notice”). Issuers must comport with the TEFRA Notice requirement (see section 147(f)) when issuing all types of tax-exempt private activity bonds, as defined in section 141(e). Issuers can opt

It has long been thought that an employer may refuse to hire a foreign worker who: (1) is not currently authorized to work or (2) will require future visa sponsorship to work for the employer.  A new legal theory has developed challenging this traditional thinking. So far, the proponents of this developing legal theory have been beneficiaries of the Deferred Action for Childhood Arrivals (“DACA”) program. DACA beneficiaries (also known as “Dreamers”) have been granted temporary authorization to work, but their

In Private Letter Ruling 201725022 (the “PLR”), the IRS determined that rental income an S-corporation received from its operations is not passive investment income that would subject the S-corporation to termination. In the PLR, the taxpayer was an S-corporation active in the business of acquiring, developing, leasing and managing commercial real estate, primarily medical office suites and clinics.  The taxpayer received rental income in connection with such operations. An S-corporation with accumulated earnings and profits will be subject to the highest level

In the wake of the latest massive data breach, this one involving Equifax, more and more companies are likely wondering what they should do in the event that they are faced with a data breach that exposes the personal data of their employees or customers. Data security incidents involve complex legal issues that must be navigated carefully to reduce the risk of improper (or unnecessary) breach notification, attention from state and federal regulators, and potential class actions related to the

For a creditor, the difference between a perfected and unperfected security interest can mean the difference between full repayment and receiving mere pennies on the dollar (or nothing) in a bankruptcy. On August 30, 2017, a Wisconsin court (United States Sec. & Exch. Comm'n v. ISC, Inc.. 2017 WL 3736796 (W.D. Wis. Aug. 30, 2017)), provided a helpful reminder of the attention to detail that is required when drafting a UCC-1 financing statement (“UCC-1”) to ensure the security interests are

Online service providers have until December 31, 2017, to re-register a designated agent with the Copyright Office if they want to remain eligible for protection from copyright infringement liability under the Digital Millennium Copyright Act’s “safe harbor”. The 1989 Digital Millennium Copyright Act, also known as the “DMCA,” made significant changes to U.S. copyright law, including changes that offer online service providers such as website operators and Internet service providers protection from copyright infringement liability provided they meet certain eligibility requirements. The

Beginning on October 1, 2017, several new laws will go into effect in Maryland governing condominiums and homeowners associations (“HOA”). With so much of new residential real estate being developed as part of an HOA or a condominium regime, these new laws will affect many homeowners in Maryland. HOA Resale Inspection Fee – Under this new bill, an HOA is now authorized to charge a fee of up to $50.00 to conduct an inspection in connection with the resale of a lot

In 2015, a group of consumer groups filed a petition with the U.S. Consumer Product Safety Commission (“CPSC”) seeking to ban under the Federal Hazardous Substances Act the use of non-polymeric organohalogen flame retardants (“ORF”) from children’s products, furniture, mattresses and cases surrounding electronics. The petitioners assert that ORFs migrate from the products and create adverse health effects. CPSC staff reviewed the petition, and recommended rejecting it, concluding that there was insufficient data supporting the health risks asserted in the petition. Despite

Uber and other ride sharing companies have been at the forefront of the “gig economy” where websites and mobile applications (commonly called “apps”) connect workers to customers who need a temporary service. With the rise of the gig economy, one important question still remains unanswered: are those working in the gig economy employees of the company or independent contractors? Why It Matters: For years, Uber drivers have tried to convince a court that they are employees of Uber, rather than independent contractors,

Since 2011, the U.S. Supreme Court has continued to roll back the expansion of personal jurisdiction by lower courts and has set more limitations on where a plaintiff can sue corporate defendants. We have  watched this unfold in the Court’s rulings in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924-929 (2011) and the seminal case Daimler AG v. Bauman, 134 S.Ct. 746 (2014). On June 19, 2017, the Supreme Court further rolled back jurisdictional expansion in Bristol-Myers Squibb Co. v.

The U.S. Consumer Product Safety Commission (“CPSC”), by unanimous vote, has approved a final rule providing that seven plastics in children’s toys and child care articles will no longer require third-party testing because they do not exceed limits on phthalates. The Consumer Product Safety Improvement Act of 2008 (CPSIA) bans children’s toys or child care articles containing concentrations above 0.1% of certain specified phthalates, and requires third-party testing to ensure subject products are in compliance before they can enter the stream of commerce

Feeling Discouraged About Immigration? You are not alone. Many agree that the U.S.’s current immigration system is in need of comprehensive legislative reform. In the absence of meaningful action by Congress, the strategy of the current Administration appears to be to subtly (and sometimes not-so-subtly) discourage immigration through executive order and agency action. The Secretaries of Labor, State, and Homeland Security have been directed to issue rules to protect the interests of U.S. workers in the administration of the immigration

On September 21, 2017, President Trump nominated Dana Baiocco to replace Commissioner Marietta S. Robinson when her term at the Consumer Product Safety Commission (CPSC) expires on October 26. Ms. Baiocco is a partner at Jones Day in Boston and a seasoned product liability litigator. Ms. Baiocco received a B.S. in 1988 from Ohio University and a J.D. from Duquesne University in 1997. She has experience in mass torts and consumer product litigation, as well as representing clients in CPSC matters.      Ms.

Climate change related cases are on the rise nationwide, just like sea water levels. In fact, according to a United Nations study released in May 2017, the U.S. has three times more climate change litigation cases than the rest of the world combined, and the number of countries with climate change cases has tripled since 2014. In conjunction with the increased number of cases, there has been an uptick in novel legal arguments lodged against governments, government officials, and industry to force

A Country Inn provides a venue for a cozy dinner or event and possibly an overnight stay nestled in a rural setting in Montgomery County. It is a nice, relaxing getaway from the hustle and bustle of the busier parts of Montgomery County. However, the Montgomery County Council is proposing to further limit Country Inn locations. Under the Montgomery County Zoning Ordinance, Country Inns that were not approved before the October 30, 2014 effective date of the comprehensive amendment to the zoning

As I write this article, powerful Hurricane Irma is bearing down on Florida, and Hurricane Jose is close behind it, farther out in the Atlantic Ocean. Hurricane Irma has already devastated parts of the Caribbean Islands, and now threatens Florida. By the time you read this, sadly, there will have been more damage and devastation. And these two storms come on the heels of Hurricane Harvey which just recently wreaked its own havoc on the City of Houston and coastal

On August 31, 2017, U.S. District Judge Amos Mazzant in Plano, Texas abrogated the United States Department of Labor (“DOL”) changes to the Fair Labor Standards Act (“FLSA”) regulations with respect to overtime pay (the “Overtime Rule”). The Overtime Rule would have raised the salary threshold for overtime eligibility to almost double the current threshold. While not absolute, this ruling provides employers a stronger inclination that the Overtime Rule will not survive, alleviating employers from the financial and administrative burden the new

The U.S. Consumer Product Safety Commission (“CPSC”) announced on August 29 it has provisionally agreed with Home Depot U.S.A., Inc. to a $5.7 million settlement of allegations that the retailer unlawfully sold recalled products over a four year period.  The settlement will almost certainly become final once The Commission considers public comments as required by its rules. The CPSC staff alleges in the settlement agreement  that Home Depot “knowingly” sold or distributed approximately 2,816 units of 33 different recalled products from 2012 to 2016,

Last year the U.S. Supreme Court in Kingdomware Technologies Inc. v. United States[1] appeared to have settled a long-standing dispute about whether the U.S. Department of Veterans Affairs must prefer service-disabled veteran-owned small businesses (“SDVOSBs/VOSBs”), instead of purchasing products or services from the General Service Administration’s Federal Supply Schedules. The Supreme Court ruled against the VA, holding that pursuant to the Veterans Benefits, Healthcare and Information Technology Act of 2006,[2] the VA was required to set aside a procurement whenever

Cisco’s midyear report showed that CEO fraud netted cybercrime five times more money than ransomware 1 over the last three years. CEO fraud is a scam in which cybercriminals spoof company e-mail accounts and impersonate executives to try and fool an employee in accounting or HR into executing unauthorized wire transfers, or sending out confidential tax information. The FBI calls this type of scam “business e-mail compromise” and defines BEC as “a sophisticated scam targeting businesses working with foreign suppliers and/or businesses that regularly perform

The IEC 62304 standard 1 specifies life cycle requirements for the development of medical software and software within medical devices. It is a standard that is harmonized between the European Union (EU) and the United States (US). This standard spells out a risk-based decision model on when the use of Software Of Unknown Pedigree (SOUP) is acceptable. The standard was developed from the perspective that product testing alone is insufficient to ensure patient safety when software is involved.   The standard requires all

During the campaign and thus far in the current administration, the President has prioritized the modernization of the Nation’s infrastructure and promised a $1 trillion investment plan to help fund that vision. There is rare bipartisan support in Congress for such a measure, as many agree that our roads, bridges, tunnels, railways, airports, energy, and water systems are in need of repair and replacement. Although no legislation has been proposed to fund such projects, last week the President signed an Executive Order that

This is a question that I often am asked when inventors have been working with us for an extended period of time. In the past, we could use an existing, executed declaration in the family for a new member, but not after changes to the oath and declaration went into effect on September 16, 2012.   The changes to the Oath and Declaration are provided for in 35 U.S.C. §§ 115 and 118. Under the changes, someone other than an inventor

In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit determined that the U.S. Environmental Protection Agency (U.S. EPA) wrongly invoked its general waiver authority and set the volumes for renewable fuel that must be blended into transportation fuel below the targets called for by Congress. The Renewable Fuel Standard Program The Renewable Fuel Standard (RFS), established by the Energy Policy Act of 2005, is a regulatory program that increases the amount of renewable fuels, such as

With anticipation and wonder many of us stood still for several moments on August 21, 2017 hoping to catch at least a glimpse of the much anticipated total eclipse of the sun. Whether you were fortunate to be in the area of “totality” or anywhere else in the contiguous United States, you could witness at least a portion of the full solar eclipse (with proper eye protection of course). A total eclipse of the sun is a rare occurrence, especially one

Over the last week, the U.S. Court of Appeals for the District of Columbia Circuit stayed two high-profile litigations concerning the regulation of carbon dioxide emissions from new and existing coal-fired power plants. By granting the U.S. Environmental Protection Agency’s requested stays, the Court provided the agency with additional time to weigh its options on whether to suspend, revise, or rescind the rules. Clean Power Plan Litigation Stayed Additional 60-Days On August 8, 2017, the Court extended the stay of the Clean