MSLaw Blog

On November 15, 2021 (the “Effective Date”), President Biden signed into law the Infrastructure Investment and Jobs Act (the “Act”) to invest in our nation’s infrastructure and competitiveness.  The federal government regularly passes transportation bills to fund traditional road, bridge, and mass transit projects. However, the Act dwarfs those efforts in size, at over one trillion dollars, and redefines infrastructure for the modern era.  Climate change heavily influences the spending guidelines of the Act due to its undeniably large impact on

Updates and negotiations for President Biden’s tax plan continue to filter through Congress. The House Ways and Means Committee recently passed the Build Back Better Act (the “Act”), and it is now on its way for the Senate’s consideration. This is an update to our prior blog post about the tax plan released by House Democrats in September. We have noted the differences between the two proposals accordingly. Corporate Tax Provisions Corporate AMT. The Act imposes a 15% alternative minimum tax on the

On November 12, 2021, Stephanie Baron, Kirsten Eriksson, Suzzanne Decker, Veronica Jackson, and Paolo Pasicolan of Miles & Stockbridge’s Labor, Employment, Benefits, & Immigration Practice presented a webinar about the OSHA’s recent Emergency Temporary Standard (“ETS”). Here’s what you missed if you were unable to attend: Challenges to OSHA’s ETS As you may have heard in the news, there have already been several challenges to the legality of the ETS. The 5th Circuit issued a temporary injunction against enforcement of the ETS,

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers and employees regarding religious objections to COVID-19 Vaccine Mandates. With many employers implementing COVID-19 vaccine requirements, (discussed in our October 8, 2021 blog post), employees may be requesting religious accommodations. As such, this updated guidance is helpful for employers seeking to ensure compliance with Title VII. Title VII, in part, prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request

On November 4, 2021, the U.S. Department of Defense (DoD) Office of the Under Secretary of Defense for Acquisition and Sustainment (OUSD(A&S)) announced Version 2.0 of the highly publicized Cybersecurity Maturity Model Certification (CMMC). This updated version seeks to simplify the model and reduce compliance costs by streamlining the program and scaling back the requirement that all defense contractors obtain third-party certification of their cybersecurity capabilities. Under CMMC 2.0, contractors at the lower CMMC levels will be allowed to self-certify.

After much anticipation, on November 4, 2021, the Occupational Safety and Health Administration (OSHA), issued its long-awaited Emergency Temporary Standard (ETS), requiring mandatory COVID-19 vaccination or weekly testing for private employers with 100 or more employees. Shortly after the ETS was issued, a lawsuit was filed to enjoin the enactment and enforcement of the ETS.  The Fifth Circuit Court of Appeals ruled to temporarily enjoin the ETS.  As the case proceeds employers should keep watch for updates.  In the interim, we

On October 12, 2021, the Occupational Safety and Health Administration (OSHA) delivered a draft of the emergency temporary standard (ETS) requiring COVID-19 vaccination or weekly testing of workers for private employers with 100 or more employees to the White House for final review and approval. The ETS is being issued in response to President Biden’s six-pronged Action Plan, announced on September 9, 2021, aimed at addressing the nation’s most recent surge of coronavirus cases. As part of his Action Plan, Biden specifically

The Department of Justice (DOJ) recently overturned the prior administration’s limitations on the use of regulatory guidance in False Claims Act (FCA) litigation. Now, DOJ attorneys may rely on guidance documents “in any appropriate and lawful circumstances.” How should compliance programs respond to the resurgence of the regulators in the ongoing FCA wars? Background Former Attorney General Jeff Sessions initiated the limitation on the use of regulatory guidance in the prior administration with his Memo dated November 16, 2017. His mandate prohibited “Improper Guidance

In the absence of a federal law requiring disclosures be provided to small businesses, regulators in California in 2018, and now New York, have jumped into the void. With the Enactment of the New York Commercial Finance Disclosure Law (“CFDL”) on December 24, 2020, New York regulators have moved forward to propose certain disclosure regulations for those providing commercial financing to small businesses. In one of her first actions upon assuming her position, the Acting Superintendent of the New York

As an employer, you might be thinking about implementing a mandatory vaccine policy for your workforce. There are many issues to consider when developing a mandatory vaccine policy, and it is hard to keep up with fast-developing federal, state, and local requirements. Before putting a policy into place, what are some of most pressing issues that you should be thinking about? State Law Considerations It is important to consider the state(s) where you have employees. Several states, including Florida and Texas, passed

On September 24, 2021, the Safer Federal Workforce Task Force issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the “Guidance”). This highly anticipated Guidance outlines the Covid-19 protocols for government contractors that were announced on September 9 in Executive Order 14042 (Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors) (“Order”), which was covered in a recent M&S Industry Alert. These new protocols will be enforced through a contract clause that must be included in all

The Maryland Court of Special Appeals held on September 7, 2021 that Maryland public school teachers cannot be held liable in negligence for the injuries of students under their supervision at the hands of other misbehaving students. Gambrill v. Board of Dorchester County, et al., No. 0886, September Term 2019 (September 7, 2021). The Court upheld the trial court’s summary judgment decision in favor of the Board of Education of Dorcester County related to the treatment of a sixth grade

Update (October 26, 2021): The Biden Administration has announced that the vaccination requirement for international travelers to the United States described in this post will go into effect on November 8, 2021. The vaccination requirement will apply to travelers arriving both at airports and land border crossings. Limited exceptions will apply, most notably for children under 18 years of age. The Biden administration has announced that it will lift current regional pandemic-related travel restrictions on foreign nationals in early November. The

Big tax changes are on the way! President Biden, the House, and the Senate all seem to have their own agenda, but the proposal introduced by the House Ways and Means Committee (the “Proposal”) is a good starting point for predicting what may be in our future. Corporate and Business Tax Reforms Corporate Tax Rate: One of the Proposal’s most prominent provisions is a graduated rate structure for the currently flat 21% corporate income tax. Effective for taxable years beginning after December

Last month, the California Department of Financial Protection and Innovation (the "DFPI") published a notice inviting comments for its second rulemaking regarding the rules that will be promulgated under the new California Debt Collection Licensing Act (the "DCLA"). The DCLA was enacted pursuant to Senate Bill 908, and will become operative on January 1, 2022. Although the DFPI has not yet promulgated rules for the DCLA, the DFPI has started to accept applications for a debt collector license. With California joining

On September 9, 2021, President Biden issued an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Order”). The Order seeks to “promote economy and efficiency in procurement” by requiring compliance with new COVID-19 protocols, which will be announced on September 24. The Order was issued on the same day as the President’s widely-covered speech announcing vaccine mandates for federal employees and businesses with 100 or more employees (see companion blog post, available here). Accordingly, although the Order

On September 9, 2021, President Biden announced a sweeping six-pronged plan aimed at addressing the nation’s most recent surge of coronavirus cases fueled by the formidable delta variant. As part of that plan, Biden declared expansive measures, including vaccine mandates that are projected to impact over eighty-million employees in private sector businesses, and have far reaching impacts for employers across multiple industries. As such, employers should be mindful of the following policies to be implemented under Biden’s Action Plan in

Whistleblowers who report perceived illegal activity by an individual, agency, or organization have long been heralded as heroes, serving both the public and private sectors by producing evidence of wrongdoing despite great personal risk. Accordingly, whistleblowers are afforded heightened protections that prohibit an employer from retaliating against an employee for reporting alleged wrongdoing. However, a recent decision from the D.C. Circuit demonstrates that whistleblowers are not shielded by a super power of invincibility.  Any adverse action taken by an employer against

J-1 exchange visitors who received graduate medical education or training in the U.S. are subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act (INA).  This requirement means that, upon completion of medical training, the J-1 physician must return to his/her home country (or country of last permanent residence) for a period of at least two years in the aggregate before being eligible for certain nonimmigrant work visas, such as H-1B, or legal permanent

It’s no secret that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) exists to protect the privacy of patients and their sensitive health information. However, understanding the importance of HIPAA compliance and the potential consequences of violations also can help protect the health care providers who care for them. With this in mind, we are pleased to share a recap of five key areas important for health care providers of all shapes and sizes. The HIPAA Security Rule places

Effective July 1, 2021 Virginia employers became subject to a new state overtime law: the Virginia Overtime Wage Act (VOWA) that makes overtime violations and employee misclassifications more costly for employers than the federal Fair Labor Standards Act (FLSA). Like the FLSA, the new Virginia law obligates employers to pay 1.5 times a non-exempt employee’s regular rate of pay for all hours worked in excess of 40 hours in each workweek. However, the VOWA is more onerous on employers (and

On August 13, 2021, the Occupational Safety and Health Administration (OSHA) updated its “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The guidance was originally released on January 29, 2021, and was updated once previously on June 10, 2021. The new OSHA guidance follows the U.S. Centers for Disease Control and Prevention’s (CDC) recent update to the “Interim Public Health Recommendations for Fully Vaccinated People,” which encourages fully-vaccinated people to wear masks in all “public indoor

Well, summer is more than half over, and although the initial pandemic has nearly run its course, a new COVID variant appears to be on the rise. Before we hunker down and mask up to fight off this stronger DELTA version of COVID, we urge the mortgage finance community and state regulators to permanently apply the valuable lessons learned from the initial COVID convergence and allow licensed mortgage loan originators (“MLOs”), under proper conditions and safeguards, to originate residential mortgage

In March of 2021, China’s most important annual political meetings took place as thousands of delegates to the National People’s Congress (NPC), the national legislature, and the Chinese People’s Political Consultative Conference (CPPCC), the top political advisory body, convened for a week at the Great Hall of the People in Beijing. Commonly known as the lianghui – or “Two Sessions” – this year’s elite gatherings in Beijing were particularly significant. The Chinese leadership not only set the national socio-economic and

On July 9, 2021, President Biden executed a broad Executive Order 14036 (“EO”) entitled Promoting Competition in the American Economy. Among other things, the EO will potentially have a great impact upon non-compete agreements. According to the Fact Sheet explaining the EO, the EO is designed to “promote competition in the American economy, which will lower prices for families, increase wages for workers, and promote innovation and even faster economic growth.” In terms of non-compete clauses, the EO is designed to make

The COVID-19 pandemic changed the way many employers view remote work. Those who had a positive experience may be considering making telecommuting a permanent part of their workplace, but must be aware of the dangers lurking for employers who fail to take into consideration employment and tax compliance associated with remote work. Many states have overlooked temporary remote arrangements necessitated by the pandemic, but will not excuse compliance if remote work continues going forward. Many aspects of the employment relationship are

On July 9, 2021, President Biden executed an Executive Order (EO) on Promoting Competition in the American Economy. This EO impacts the Intellectual Property (IP) transactions and portfolios as discussed below. The EO directly mentions the information technology sector, the prescription drugs/healthcare sector, and the telecommunications sector as being in need of additional regulation. The EO states that the: information technology sector has long been an engine of innovation and growth, but today a small number of dominant Internet platforms use their

The deadline for employers to submit and certify 2019 and 2020 EEO-1 Component 1 Data to the Equal Employment Opportunity Commission (EEOC) is Monday, August 23, 2021. Covered employers therefore have a little over one month to complete and submit an EEO-1 Report containing their respective workforce data in accordance with the reporting requirement. The original deadline of July 19, 2021 was extended to August 23 by the EEOC in late June 2021. What is required? Pursuant to Title VII of the

On July 01, 2021, the United States Patent and Trademark Office (USPTO) published a Notice requiring prophetic examples and working examples to be distinguished, at least, by using different tense in order to satisfy the written description and enablement requirements and comply with Applicant’s duty of disclosure. 1. What’s the difference between prophetic examples and working examples? Prophetic examples are experiments that Applicant described in a patent application but did not actually conducted. Therefore, the results described in prophetic examples are predicted

After more than a year of widespread unemployment, 2021 summer travelers saw establishments of all kinds advertising employment openings. With the expiration of pandemic-related federal and state unemployment benefits, many workers are returning to work. On July 2, the Bureau of Labor Statistics reported that employment is up. The jobs report tells us that the U.S. added 850,000 jobs in June, the largest increase in 10 months, though unemployment remains higher than normal at 5.9%. With pandemic restrictions mostly gone

Since vaccines have become readily available, employers have been grappling with whether they should mandate vaccines for employees. Most companies have chosen to “strongly encourage” employees instead of mandating, and many companies have even provided incentives such as gift cards or additional benefits as one way to encourage vaccinations. Earlier this year, one Texas employer, Houston Methodist Hospital, however, established a mandatory vaccination policy. In opposition to the mandatory policy, over one hundred employees of the hospital sued, alleging that the

On June 21, 2021, the Occupational Safety and Health Administration (“OSHA”) published its first mandatory COVID-19 workplace safety rule, which as discussed below, also includes a surprising paid leave component for vaccination, vaccination side effects, and employees that contract COVID-19. The long-awaited Emergency Temporary Standard (“ETS”) applies only to employers in certain healthcare-related work settings and is the first time since the start of the pandemic that OSHA has imposed regulatory requirements relating to COVID-19 workplace safety.  Before the issuance

In my last post, “Real Estate Alphabet Soup: Y Is for Yard”, I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” and completes the recipe with the final ingredient, the letter Z. I once heard a marketing consultant suggest that everyone should have a brief “elevator speech” for responding to inquiries about what you do for a profession and, in my case, what areas of law I practice. So my short

In February, we outlined some immediate and anticipated changes in the business immigration environment after the Biden Administration took office. Now that several months have passed and the Administration has had time to implement its policies, it is worth revisiting these issues. Regulatory Changes In its waning days, the Trump Administration introduced a number of regulations that would have restricted employment-based immigration programs in various ways. Upon taking office, the Biden Administration instituted a 60-day freeze on all pending and proposed regulations,

Under federal law, all employers (including public, private, government and not-for–profit employers, and employment agencies) are required to report certain data about new employees hired within 20 days of the employee commencing work to the National Directory of New Hires (NDNH). No business is exempt from reporting. Employers must also report re-hires or employees who return to work after 60 days of being laid off, furloughed, separated, granted a leave without pay or terminated from employment. The goals of new-hire reporting

In early 2021, pursuant to INA § 212(f) the President of the United States issued a proclamation continuing the suspension of entry of certain travelers located abroad in an effort to control the spread of COVID (the “novel coronavirus” or “COVID-19”). We have previously discussed COVID-related travel and visa issuance restrictions issued in 2020 here (IV ban) and here (NIV ban). The landscape of restrictions has changed dramatically over the last 16 months. At this time, there are multiple COVID-related geographic

On May 6, 2021, in a much-anticipated move, the Biden Administration announced a final rule withdrawing the employer-friendly independent contractor test published in the last few weeks of Donald Trump’s presidency. The withdrawal is effective immediately. As discussed here, defining workers as employees versus independent contractors under the Fair Labor Standards Act (“FLSA”) can have significant implications on employers. The FLSA requires that employers provide minimum wage and overtime pay to employees, whereas independent contractors enjoy no entitlement to same.

There’s a legal answer and a practical one. Because we’re lawyers, let’s start with the legal answer. Yes, an employer can offer employees incentives to get vaccinated. But doing so potentially creates a wellness program. And wellness programs are subject to several federal laws—HIPAA, the ADA, and GINA, and possibly Title VII (religious discrimination) and the FLSA—which make legal compliance tricky. Under HIPAA, a vaccine incentive is likely to be considered a health-contingent wellness program. This kind of program is required to,

In my last post, “Real Estate Alphabet Soup: X Is for X-factor” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter Y. Y is for “Yard.”  Not a “yard” in the sense of a precise linear measurement, but rather, a “yard” in the sense of the open area situated around buildings and structures. Although, of course, there are precise measurements required to determine the location, boundaries and area

On April 27, 2021 President Biden issued an executive order requiring federal contractors and subcontractors to pay a $15 minimum wage to workers on federal contracts and to federal contract workers with disabilities, and directing the incremental elimination of the tipped sub-minimum wage for federal contractors by 2024. When the New Minimum Wage Goes into Effect Starting January 30, 2022 all federal agencies will need to include a $15 minimum wage in new contract solicitations, and the new minimum wage must be

A recent federal appeals decision is sending shockwaves throughout the financial services sector. In Hunstein v. Preferred Collection & Mgmt. Services, Inc., the Court of Appeals for the Eleventh Circuit held that, under the federal Fair Debt Collection Practices Act (FDCPA), businesses and individuals operating as “debt collectors” are prohibited from communicating debtor information to third-party service providers and vendors (such as mail processors) hired to send dunning correspondence or other communications “in connection with the collection of any debt.” In

On March 9, 2021, the United States District Court, Northern District of California issued a ruling in Handloser v. HCL Technologies Ltd., 19-cv-01242-LKH, 2021 WL 879802 (Mar. 9, 2021), applying the 2011 Supreme Court standard established in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011), for individuals to properly assert a Rule 23 class for Title VII of the Civil Rights Act of 1964 discrimination claims. The named plaintiffs filed their complaint against HCL Technologies Ltd., an Indian consulting

The Supreme Court’s latest personal jurisdiction opinion – Ford Motor Co. v. Montana Eighth Judicial District Court – seems to raise more questions than answers regarding the contours of specific jurisdiction. A curious result, given the eight-member panel 1 unanimously agreed that Ford was subject to specific jurisdiction in the forums – Montana and Minnesota – where the underlying suits were filed. Writing for the five-member majority, Justice Kagan reached this conclusion by recognizing that specific jurisdiction may exist where a defendant’s

Under the American Rescue Plan Act of 2021 (ARPA), which was passed by Congress on March 11, 2021, the cost of health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) is fully subsidized from April 1, 2021 until September 30, 2021 for individuals who lost their health coverage due to an involuntarily termination or a reduction in hours. The ARPA requires employers to notify eligible individuals about the new COBRA subsidy by May 31, 2021.

One of the best-known features of bankruptcy law is the automatic stay, which prevents a variety of actions to collect debts and to take possession or control of anything considered “property of the estate.” However, one thing that may not be considered property of the bankruptcy estate is the S-corporation (“S-corp”) status of a corporate debtor. Although at least two Bankruptcy Appellate Panels have found that the S-corp status of a debtor is property of the bankruptcy estate, the Third

The Office of Inspector General (OIG) and the Centers for Medicare & Medicaid Services (CMS) jointly published final rules that expand upon and modify regulatory safe harbors and exceptions to the Anti-Kickback Statute and the Ethics in Patient Referrals Act (the Stark law), respectively. This article will address each rule and focus on the exceptions and safe harbors applicable to value-based arrangements. Stark Law Final Rule: Value-Based Arrangements The Stark law prohibits physicians from referring patients to receive certain designated health services

In my last post, “Real Estate Alphabet Soup: W is for Warranties” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter X. I knew when I started to stir up this “alphabet soup” that the letter X would prove to be a challenging ingredient to mix into the soup. And now that I have reached this step in the recipe, that challenge still stands, but I’ll do my

In March, we reported on a new law enacted in New York at the end of last year, Senate Bill 5470-B that imposes certain Truth-in-Lending Act modeled disclosure obligations on those making or brokering certain commercial loans of $500,000 or less. We also reported on the existing New York Licensed Lenders Law that imposes a licensing obligation to make commercial loans of $50,000 or less with an annual interest rate in excess of 16 percent. We further indicated that we

As various COVID-19 vaccines become more readily available, employers continue to struggle to address issues relating to the impact of a vaccine on their workplaces.  Real legal and practical risks remain for unwary employers.  In recent surveys, only a small percentage of employers are currently planning to mandate a vaccine for employees to return to work; a much higher percentage intend to encourage or incentivize vaccination; but many are still working on their plan.  This four-part blog post addresses some

The Small Business Restructuring Act of 2019, Pub. L. 116-54, 133 Stat. 1079 (Aug. 23, 2019) (“SBRA”) became effective February 19, 2020.  SBRA, among other things, created a new Subchapter V under Chapter 11 of Title 11 of the United States Code, designed to provide business debtors a more streamlined bankruptcy process for reorganization.  The streamlined process was expected to reduce the time and expense of small business reorganizations when compared to the current Chapter 11 process.  Subchapter V is