Proposed Federal Estate & Gift Tax Reform – What You Need to Know Now
Dec 06, 2017
The U.S. House of Representatives and the U.S. Senate have now passed separate versions of the “Tax Cuts and Jobs Act.” The proposals that are being discussed in the news as "repeal of the death tax" are much more complex than the TV sound bites reflect and there are still unresolved differences between the House and Senate versions.
Investment Adviser Update: Revised Form ADV Began October 1st
Oct 04, 2017
Effective October 1, 2017, investment advisers must adhere to amended requirements regarding the investment adviser public disclosure form (Form ADV). The Securities Exchange Commission (the SEC) announced these amendments in 2016. The new Form ADV disclosure requirements apply to both initial and amended Form ADV filings.
Supreme Court to Again Evaluate Whether Auto Service Advisors Are Exempt from Overtime
Oct 02, 2017
On September 28, 2017, the United States Supreme Court agreed to revisit the question of whether service advisors at car dealerships are exempt from overtime. The federal FLSA exempts from overtime "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements" at a covered dealership. See 29 USC § 213(b)(10)(a) (emphasis added). The Oregon statute is virtually identical. See ORS 839-020-0125(3)(g).
Diversity Visa Lottery 2019 Open October 3 to November 7
Sep 22, 2017
The U.S. Department of State (DOS) has announced registration dates for the Diversity Immigrant Visa Program 2019 (DV Lottery). Online registration for the DV Lottery opens Tuesday, October 3, 2017 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and ends Tuesday, November 7, 2017 at 12:00 noon, Eastern Standard Time (EST) (GMT-5).
Premium Processing Resumes for H-1B Cap Cases
Sep 21, 2017
The U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing for all H-1B petitions subject to the Fiscal Year (FY) 2018 cap.
The Fleischer Case: IRS Challenges Ahead for Insurance Producers?
Sep 18, 2017
A 2017 Tax Court decision, Fleischer v. Commissioner, may call into question a tax planning strategy commonly used by commissioned brokers and salespersons in many industries. This Alert looks at the impact of the decision on insurance brokers and agents. Fleischer was an insurance agent and a registered representative of broker-dealer LPL. Fleischer received commissions from sales of fixed life insurance policies from the issuing insurance carriers, and received commissions from sales of variable life insurance policies from LPL.
Federal District Court Invalidates the DOL's Overtime Rules
Sep 01, 2017
A federal judge in Texas issued an order on August 31, 2017, invalidating the Final Rule to the so-called "White Collar Exemptions" promulgated by the United States Department of Labor (DOL).
Under the Final Rule, the minimum salary level for exempt administrative, executive, and professional employees increased from $455 per week ($23,660 annually) to $913 per week ($47,476 annually), with mechanisms for increasing the thresholds at regular intervals.
USCIS to Require In-Person Interviews for Employment-Based Permanent Residence Applicants
Aug 31, 2017
On August 28, 2017, USCIS announced that it will be phasing in interviews for employment-based applicants for adjustment of status to permanent residence. The phase-in will begin October 1, and requires employees in temporary nonimmigrant status who have filed an I-485 application to adjust status to permanent residence to appear at a local USCIS office for an in-person interview before final approval of permanent residence. Of note, this was standard procedure in the distant past, but has been generally waived in employment-based cases for many years.
Big Changes for Large Employers: Oregon Legislature Passes Fair Work Week Act
Jul 19, 2017
Recently, the Oregon legislature passed Senate Bill 828, known as the Fair Work Week Act, which will dramatically change how covered employers schedule workers. Governor Brown is expected to sign the law soon. The Fair Work Week Act applies to large retail, hospitality, and food service establishments in Oregon that employ 500 or more employees worldwide, including chains or "an integrated enterprise."
U.S. Supreme Court Allows Travel Ban to Go Into Effect, With Limitations
Jun 26, 2017
On June 26, 2017, the U.S. Supreme Court (Court) permitted the "Travel Ban" set forth in the second Executive Order issued by President Trump on March 6, 2017 (EO-2) to temporarily go into effect, with constraints. EO-2 provided for a 90-day ban on U.S. entries by citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen. A preliminary injunction on the ban was upheld by the U.S. Court of Appeals for the Fourth and Ninth Circuits.
Oregon Equal Pay Act of 2017 – What Should Employers Be Doing Now?
Jun 13, 2017
On June 1, 2017, the Governor signed into law the Oregon Equal Pay Act of 2017 (the Act), expanding the current law's protection against wage disparities among employees. Currently, Oregon prohibits discrimination "between the sexes in the payment of wages for work of comparable character, the performance of which requires comparable skills." The Act increases the law's scope to prohibit discrimination against employees on the basis of a "protected class," which is defined as, "a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age" in the payment of compensation (wages, salary, bonuses, benefits, fringe benefits and equity-based compensation) for work of comparable character.
U.S. Department of Labor to Increase Enforcement of H-1B and Other Visa Programs
Jun 09, 2017
On June 6, 2017, the U.S. Department of Labor (DOL) announced that it will increase activities to combat fraud and abuse in employment-based visa programs. This will include not only H-1B visas, but other types of nonimmigrant visas, such as the H-2B seasonal worker program. U.S. Secretary of Labor Alexander Acosta has directed DOL to "enforce vigorously" all laws within DOL's jurisdiction.
Trump Administration Appeals Decision on Trump "Travel Ban #2" to U.S. Supreme Court
Jun 02, 2017
After the Ninth Circuit Court of Appeals upheld the preliminary injunction on the Trump Administration's "Travel Ban #1," President Trump issued a new Executive Order on March 6, 2017 that included a temporary 90-day ban on U.S. entries by citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen. This travel ban was challenged in the U.S. District Court of Maryland, which issued a nationwide preliminary injunction. On May 25, 2017, the Fourth Circuit Court of Appeals upheld the nationwide preliminary injunction on "Travel Ban #2" imposed by the Administration.
Oregon House Passes Hidden Property Tax Increase
May 30, 2017
The Oregon House of Representatives just passed a bill (now headed to the Senate) that will significantly increase property taxes in some Oregon cities. House Bill 2088 allows cities to pick the method for determining a property's taxable value after a change occurs to that property, e.g. a remodel or addition. Although you cannot tell from reading the Bill, the practical effect will be a hidden property tax increase.
Employer Cannot Fire Employees for Obscenity-Laced Facebook Posts During Union Organizing Campaign
May 15, 2017
Section 7 of the National Labor Relations Act protects employees who engage in concerted activities for purposes of collective bargaining or for mutual aid and protection. How far that protection extends was tested in NLRB v. Pier Sixty, LLC, a decision issued by the Second Circuit Court of Appeals (which sits in New York) in an enforcement action by the Board. And the result of that case is chilling for employers.
New Executive Order Targets H-1B Visas
Apr 19, 2017
On April 18, 2017, President Trump signed an Executive Order (EO) entitled "Buy American and Hire American," which addresses the H-1B visa program, among other topics. The EO primarily sets policy looking forward, directing the Departments of State, Labor, Homeland Security, and Justice to propose new regulations and issue new guidance to protect U.S. workers, with a specific focus on the prevention of immigration fraud or abuse.
Sexual Orientation Discrimination Claim Allowed Under Title VII
Apr 11, 2017
For more than 30 years, the federal Circuit Courts of Appeal have uniformly ruled that Title VII's prohibitions against discrimination based on "sex" do not cover claims for discrimination based on "sexual orientation." That has now changed. Last week, the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) became the first circuit court of appeals to recognize that discrimination based on sexual orientation is indistinguishable from discrimination based on sex, in Hively v. Ivy Tech Community College of Indiana.
USCIS Announces FY2018 H-1B Cap Reached
Apr 07, 2017
On April 7, 2017, USCIS announced that the H-1B cap for fiscal year 2018 was reached within the five business day filing window running from April 3-7, 2017. This includes both the U.S. advanced degree cap preference limit of 20,000 visas and the regular cap limit of 65,000 visas.
DOL Fiduciary Rule Delayed for 60 Days
Apr 07, 2017
Today, April 7, 2017, the Federal Register published the U.S. Department of Labor's (DOL) final rule extending the applicability date of the ERISA Fiduciary Rule from April 10, 2017 to June 9, 2017. A copy of the final rule is available here. Other delays included in the final rule affect (i) certain transitional requirements under the Best Interest Contract Exemption (BIC), and (ii) compliance with new and revised prohibited transaction exemptions.
New Travel Ban/Executive Order Stayed by Courts
Mar 21, 2017
On March 15, 2017, the U.S. District Court for the District of Hawaii blocked the Trump Administration's new travel ban, Executive Order No. 13,780 (EO). The Court issued a nationwide temporary restraining order that blocks enforcement of two key provisions of the new EO: section 2 of the EO that attempted to temporarily prohibit nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States (the "travel ban") is blocked; section 6 of the EO that attempted to temporarily suspend the U.S. Refugee Admissions program for 120 days is blocked.
Enhanced Whistleblower Protections for Nonprofit Employees
Mar 21, 2017
In the wake of Governor John Kitzhaber's resignation last year, the Oregon Legislature amended Oregon's "whistleblower" protection statute (ORS 659A.203) by expanding it to include Section 501(c)(3) nonprofit organizations that receive public funds from grants or contracts. Effective January 1, 2017, the new law protects employees and board members of nonprofit organizations who, based on a "good faith and objectively reasonable belief" that a violation has occurred, disclose "lawfully accessed information related to" a violation of law by the nonprofit organization.
Temporary Guidance for Fiduciary Rule Compliance
Mar 17, 2017
On Friday, March 10, 2017, the Department of Labor (DOL) issued a field assistance bulletin (FAB) adopting a temporary enforcement policy regarding compliance with the ERISA Fiduciary Rule. The ERISA Fiduciary Rule is set to go in effect on April 10. On March 2, 2017, the DOL submitted a proposal to extend the applicability date for sixty days and sought comments on the proposal. The DOL expects to issue a decision regarding the delay in the Fiduciary Rule in advance of the April 10 applicability date.
Trump Administration Issues New Executive Order Restricting Travel for Nationals of Six Designated Countries
Mar 14, 2017
The Trump Administration issued a new Executive Order (EO) on March 6, revoking the January 27 Executive Order banning U.S. entry of nationals from seven countries (see prior news alert here). The new EO becomes effective March 16 and imposes a "temporary pause" for at least 90 days on visa issuance and other immigration benefits for individuals from the following six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraqi citizens are not included in the temporary travel ban under the new EO.
Oregon Court Summarily Dismisses Manufacturing Establishment Overtime Claims
Mar 10, 2017
On March 9, 2017, a Multnomah County judge dismissed the claims asserted by a putative class of workers in the closely-watched case Mazahua Reyes, et al. v. Portland Specialty Baking, LLC. All Oregon non-exempt employees are entitled to overtime for hours worked over 40 in any workweek. Unlike employees in other industries, however, those working in a "manufacturing establishment" are also entitled to daily overtime when they work more than 10 hours in any work day.
USCIS Temporarily Suspends Premium Processing of All H-1B Petitions Filed On or After April 3, 2017
Mar 06, 2017
On March 3, 2017, USCIS announced it will suspend Premium Processing of all H-1B petitions filed April 3, 2017 and later. The suspension may last up to six months, and is intended to reduce the processing times for H-1B petitions filed regular processing. Many regular processed H-1B petitions have remained pending with USCIS for nearly 240 days. USCIS cites the greatly increased use of premium processing over the last few years as one of the causes for the delay in regularly processed cases.
Reminder: New (Cap) H-1B Filings - April 3-7 Deadline
Feb 28, 2017
U.S. employers that wish to pursue new H-1B visas on behalf of prospective or existing employees should do so as soon as possible, and contact counsel for assistance if desired. April 3 through 7, 2017 is the anticipated deadline for filing new H-1B petitions under the USCIS H-1B quota for FY2018. The quota provides for 65,000 regular H-1B visas and 20,000 additional H-1B visas for individuals who have a master's degree (or higher) from a U.S. university.
Important Deadlines Loom for Landlords Under Portland Residential Renter Protection Ordinance
Feb 17, 2017
For a very limited time, residential landlords can rescind some pending Notices of Termination and Notices of Rent Increases that would otherwise trigger Relocation Assistance under Portland's new Renter Protection Ordinance. The Portland City Council passed Ordinance No. 188219 on February 2, 2017 requiring residential landlords to pay "Relocation Assistance" to residential tenants when the landlord decides not to renew an expiring fixed term rental agreement or terminates a month-to-month rental agreement for reasons other than "for cause."
Fiduciary Rule's Status Uncertain
Feb 14, 2017
On Friday, February 3, 2017, the President signed an executive order requiring the re-examination of the final Fiduciary Rule (81 Fed. Reg. 20946 (April 8, 2016)) set to go into effect on April 10, 2017. The Fiduciary Rule, which was the subject of significant debate, expands the statutory definition of "fiduciary" and requires a broader swath of financial professionals to act in their customers' "best interest," as opposed to following a "suitability" standard.
Ninth Circuit Upholds Temporary Block on Travel Ban
Feb 10, 2017
Yesterday, February 9, 2017, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) unanimously upheld the temporary restraining order that halted the federal government ban on issuance of visas to, and entry of, individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The temporary restraining order will remain in place for the time being while litigation on the Executive Order continues.
Temporary Restraining Order Halts Trump Administration Executive Order of January 27, 2017
Feb 06, 2017
As has been widely reported, on Friday, February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order impacting the Trump Administration Executive Order issued on January 27, 2017 (Executive Order). The temporary restraining order temporarily stops the federal government from barring the issuance of visas to, and entry of, individuals based solely on the fact that they are from the countries of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. In response, on February 4, 2017, the Trump Administration filed an emergency motion for administrative stay and motion for stay pending appeal with the United States Court of Appeals for the Ninth Circuit (Ninth Circuit).
International Travel and Petition Processing - Clarification and Guidance on Trump Administration Executive Orders
Feb 03, 2017
The White House, U.S. Department of State, U.S. Citizenship and Immigration Services (USCIS), and U.S. Customs and Border Protection (CBP) have issued guidance clarifying the impact of the Trump Administration Executive Orders issued last week. One of the Executive Orders placed a temporary hold on travel to the United States for individuals from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
Company Violated the Fair Credit Reporting Act (FCRA) By Including a Liability Waiver with the Required FCRA Disclosure
Jan 30, 2017
The Fair Credit Reporting Act (FCRA) allows companies to obtain background information or "consumer reports" for both prospective and current employees. However, it imposes restrictions on the procedure for obtaining reports, and the use of this information in making credit and employment decisions. These restrictions are designed to ensure fair and accurate credit reporting and to protect consumer privacy.
How to Respond to Trump Administration Executive Orders
Jan 30, 2017
Last week, President Trump issued three Executive Orders addressing a wide range of immigration issues. The content of the Orders establish executive branch policy and immediate concrete action items. The Executive Orders include measures impacting refugees, enhancing enforcement (building "the wall"), and many other highly significant issues. This Alert focuses on the key business immigration related impacts of the first three Executive Orders issued by the Trump Administration through January 27, 2017.
Service Advisors at Auto Dealerships Not Exempt, Says the Ninth Circuit
Jan 24, 2017
On January 9, 2017, the Ninth Circuit issued its opinion in Navarro v. Encino Motorcars, LLC
, on remand from the United States Supreme Court. It held, once again, that service advisors at car dealerships are not exempt from overtime under the Fair Labor Standards Act ("FLSA").
New OSHA Rules May Require Rewriting Your Employment Policies
Dec 14, 2016
The Occupational Safety and Health Administration issued a new rule, effective December 1, 2016, which includes three provisions designed to promote complete and accurate reporting by employees of work-related injuries: Employers must inform their employees of their right to report work-related injuries and illnesses free from retaliation. This requirement may be satisfied by posting already-required OSHA workplace posters.
Curb the Pain of Recent Property Tax Increases: Appeal By Dec. 31
Dec 13, 2016
Due to the convergence of unusual circumstances and Oregon's unique property tax laws, property taxpayers have an opportunity to obtain significant tax savings this year and for the following five years by appealing their "real market values" this year. Normally, taxpayers are not concerned with appealing "real market value" assessments unless such an appeal would also result in a lower "assessed value." Why? Because in Oregon, property taxes are largely governed by "assessed values." But, this year is unique.
Federal Judge Halts DOL's New Overtime Rules
Nov 23, 2016
On November 22, 2016, a federal judge in Texas issued a preliminary injunction halting the United States Department of Labor (DOL) from implementing and enforcing its new rules related to the so-called "White Collar Exemptions," which were to be effective on December 1, 2016. As we informed you in a past Tonkon Tip on the DOL's Final Rule, the DOL effectively doubled the minimum salary threshold for exempt administrative, executive and professional employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually).
Mandatory EVUS Enrollment Starts Nov. 29 for Certain Chinese Travelers
Oct 28, 2016
The U.S. Department of Homeland Security and Department of State have created a new Electronic Visa Update System (EVUS). Certain visa holders will be required to enroll in EVUS to continue to use their visas to enter the United States. The government anticipates identifying additional countries and visa types that will be subject to EVUS enrollment over time.
Diversity Visa Lottery 2018 Open October 4 to November 7
Oct 03, 2016
The U.S. Department of State has announced registration dates for the Diversity Immigrant Visa Lottery 2018 (DV-2018). Online registration for the lottery will be accepted beginning Tuesday, October 4, 2016 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4) until Monday, November 7, 2016 at 12:00 noon, Eastern Standard Time (EST) (GMT-4).
DOL Major Changes to Fiduciary Investment Adviser Definition and Prohibited Transaction Exemptions - Part 3
Sep 14, 2016
On April 6, 2016, the U.S. Department of Labor (the "DOL") issued final regulations expanding the definition of who is a fiduciary and what constitutes fiduciary advice to ERISA-covered employee benefit plans, as well as a new fiduciary adviser definition and related prohibited transaction exemptions. This Tonkon Tip, the third in a series of tips, addresses the new Best Interest Contract Exemption, which includes a streamlined exemption that can be used by "Level-Fee Fiduciaries."
BOLI Issues Rules Regarding Minimum Wage Increase
Jun 17, 2016
Oregon's minimum wage is increasing effective July 1, 2016. The law creates a tiered wage floor based on three zones around the state, as we previously discussed here. On June 15, 2016, in response to comments from an advisory group and other Oregonians, the Bureau of Labor and Industries published new minimum wage rules related to the increase.
DOL Major Changes to Fiduciary Investment Adviser Definition and Prohibited Transaction Exemptions - Part 2
Jun 01, 2016
On April 6, 2016, the U.S. Department of Labor (the "DOL") issued final regulations expanding the definition of who is a fiduciary and what constitutes fiduciary advice to ERISA-covered employee benefit plans and individual retirement accounts (IRAs). This is the second in a series of Tonkon Tips addressing the new investment advice fiduciary definition. This Tip focuses on what activities do not constitute fiduciary advice under the new rule and therefore are not subject to the rule's requirements.
DOL Finalizes Increased Salary Requirements for White Collar Workers
May 19, 2016
In order to be exempt from overtime under the federal Fair Labor Standards Act (FLSA), white collar workers generally must satisfy both the "salary basis" and "duties" tests. In July 2015, the Department of Labor (DOL) issued a notice of Proposed Rulemaking primarily focused on raising the salary threshold, and asking for public comment on its plans. We previously highlighted the Proposed Rule here. The Department received more than 270,000 comments in response.
Major Changes to DOL Fiduciary Investment Adviser Definition and Prohibited Transaction Exemptions
May 09, 2016
On April 6, 2016, the U.S. Department of Labor (the "DOL") issued final regulations redefining fiduciary investment advice for ERISA-covered employee benefit plans and individual retirement accounts ("IRAs"). The final rule significantly expands the definition of who is a fiduciary and what constitutes fiduciary advice.
Employers Can't Discontinue Health Insurance During OFLA Leave
Apr 21, 2016
With so many sweeping changes to Oregon employment laws taking effect in 2016, one minor but important change to OFLA has the potential to be overlooked. Until this year, employers were free to cease providing employment benefits if an employee was on leave and, therefore, was not eligible for continued benefits. The passage of HB 2600, which was signed into law on July 1, 2015, and effective January 1, 2016, removes that option.
USCIS Announces FY2017 H-1B Cap Reached
Apr 08, 2016
On April 7, 2016, USCIS announced that the H-1B cap for fiscal year 2017 was reached within the five business day filing window running from April 1 to April 7, 2016. This includes both the U.S. advanced degree cap preference limit of 20,000 visas and the regular cap limit of 65,000 visas.
New 24-Month STEM OPT Rule
Mar 16, 2016
The U.S. Department of Homeland Security recently announced a final rule extending optional practical training (OPT) to 24 months for F-1 international students with eligible STEM degrees (science, technology, engineering, and math). OPT is a training opportunity provided to most F-1 students after they graduate from U.S. universities
Oregon's Minimum Wage Increase
Mar 14, 2016
Beginning July 1, 2016, Oregon's minimum wage will increase to $9.75 per hour, and it doesn't stop there. Oregon is the first state to implement a tiered minimum wage system that sets different hourly rates in different parts of the state. The minimum wage will continue to increase each year for the next six years, and will adjust for inflation thereafter.
IRS Issues Alert on Email "Phishing" Scheme
Mar 07, 2016
The IRS has issued an alert to payroll and human resources professionals who are the targeted victims of an emerging phishing email scheme. These "spoofing" emails appear to be addressed from company executives and specifically request payroll data including Forms W-2 that contain Social Security numbers and other personally identifiable information. In light of these recent scams, payroll and human resources professionals should be cautious when responding to such requests from company executives.
The New "Ban the Box" Rules for Job Applicants
Feb 01, 2016
The new year is upon us and so too are many new laws that the Oregon legislature has enacted. New laws that went into effect on January 1, 2016 include: Oregon's "Ban the Box" law; state-wide Oregon paid sick leave; changes to Oregon's noncompetition law; protection for employee discussions about their wages in the workplace; additional social media protections; and required continuation of medical coverage under the Oregon Family Leave Act, to name a few.
New (Cap) H-1B Filings - April 1 Deadline
Jan 12, 2016
April 1 through 7, 2016 is the deadline for new H-1B petitions to be filed under the USCIS H-1B quota. We recommend that employers review upcoming hiring needs and determine as soon as possible if the company needs to file any new H-1B petitions under the FY2017 quota (for start dates on or after October 1, 2016). The quota provides for 65,000 H-1B visas and 20,000 additional H-1B visas for individuals who have a master's degree (or higher) from a U.S. university.
Exempt from Overtime? Maybe Not - The Rules Are Changing
Nov 17, 2015
On March 13, 2014, President Obama signed a Presidential Memorandum directing the Department of Labor (Department or DOL) to update the regulations for the "white collar exemptions" to overtime. In response, the DOL issued a Notice of Proposed Rulemaking (NPRM) on July 6, 2015, inviting comments to the proposed rule until September 4, 2015.
NLRB Limits Ability of Employers to Ban Use of Cameras in Workplace
Oct 13, 2015
The NLRB has extended Section 7 to limit the ability of employers to ban the use of cameras (including those on phones) in the workplace. Section 7 of the National Labor Relations Act (NLRA) gives employees the right to form, join, support, or assist unions to bargain collectively with their employer about wages, hours, and other working conditions.
Diversity Lottery 2017 Open October 1 to November 3!
Oct 05, 2015
The U.S. Department of State has announced registration dates for the Diversity Immigrant Visa Lottery 2017 (DV-2017). Online registration for the Diversity Lottery will be accepted beginning October 1, 2015 at noon EDT (GMT -4) until November 3, 2015, at noon EST (GMT -5).
KBR, Inc. Settlement Prompts SEC Initiative for Whistleblowers Protection
Jul 06, 2015
Due to a recent enforcement action by the SEC, companies in the financial services industry are now on alert of potential SEC action against employers for including confidentiality clauses in employment-related agreements that restrict employees from reporting certain violations of securities laws to the SEC.
Oregon Senate Passes Brownfields Land Bank Bill
Jun 24, 2015
By a vote of 26-2, the Oregon Senate passed the "Brownfields Land Bank Bill" today. HB 2734 had previously passed the House with a vote of 43-15. The bill now heads to the Governor's office for signature. With the enactment of the Brownfields Land Bank Bill, local governments will have a significant new tool to assist them in redeveloping brownfields.
Technical Difficulties Cause Delay in Nonimmigrant Visa Processing at U.S. Consulates and Embassies Worldwide
Jun 16, 2015
The U.S. Department of State (DOS), Bureau of Consular Affairs is currently experiencing technical problems with its visa system which has resulted in delays in printing visas and may mean rescheduling visa interviews. This issue is not specific to any particular country, citizenship document, or visa category.
DOL Proposes Major Changes to Investment Adviser "Fiduciary" Definition
Jun 02, 2015
On April 14, 2015, the U.S. Department of Labor (the "DOL") issued proposed regulations redefining who is a "fiduciary" of an employee benefit plan under the Employee Retirement Income Security Act of 1974 ("ERISA") as a result of giving investment advice to a plan or its participants or beneficiaries. The proposal also applies to the definition of a "fiduciary" of a plan, including an individual retirement account ("IRA"), under the Internal Revenue Code (the "Code").
Temporary Suspension of Premium Processing of Extension of Stay H-1B Petitions
May 27, 2015
U.S. Citizenship and Immigration Services (USCIS) announced that it will temporarily suspend its premium processing service for all H-1B Petitions requesting an Extension of Stay (including amendment and change of employer requests). The temporary suspension will be in effect from May 26, 2015 until July 27, 2015. USCIS will continue to provide premium processing service for all other H-1B petitions (including change of status and consular notification).
USCIS Announces FY2016 H-1B Cap Reached
Apr 08, 2015
On April 7, 2015, USCIS announced that the H-1B cap for fiscal year 2016 was reached within the five business day filing window running from April 1 to April 7, 2015. This includes both the U.S. advanced degree cap preference limit of 20,000 visas and the regular cap limit of 65,000 visas.
Employment Authorization for Certain H-4 Spouses
Mar 02, 2015
To help U.S. businesses retain highly-skilled workers, the U.S. Citizenship and Immigration Services (USCIS) has issued a final rule providing employment authorization eligibility to certain H-4 spouses. Beginning May 26, 2015, certain H-4 spouses of H-1B nonimmigrants will be eligible to apply for employment authorization with the USCIS.
New (Cap) H-1B Filings: April 1 Deadline
Jan 29, 2015
April 1 through 7, 2015 is the deadline for new H-1B petitions to be filed under the USCIS H-1B quota (assuming, as in the past, that the H-1B quota will be immediately exhausted). We recommend that employers review upcoming hiring needs and determine as soon as possible if the company needs to file any new H-1B petitions under the FY2016 quota (for start dates on or after October 1, 2015).
Effect of Canada's Anti-Spam Legislation on U.S. Businesses
Nov 20, 2014
As of July 1, 2014, U.S. businesses that interact with people or companies in Canada have been required to comply with Canada's Anti-Spam Legislation ("CASL"). CASL prohibits sending an unsolicited commercial electronic message ("CEM") to a recipient in Canada without the recipient's prior consent. In other words, CASL requires that every Canadian recipient of CEMs opt-in to receiving such messages. This differs from the "opt-out" regime under the United States' anti-spam law, "The Controlling the Assault of Non-Solicited Pornography and Marketing Act" ("CAN-SPAM").
Diversity Lottery 2016 Opens October 1!
Sep 30, 2014
The U.S. Department of State has announced registration dates for the Diversity Immigrant Visa Lottery 2016 (DV-2016). Online registration for the Diversity Lottery will be accepted beginning October 1, 2014 at noon EDT until November 3, 2014, at noon EST.
USCIS Announces FY2015 H-1B Cap Reached
Apr 09, 2014
On April 7, 2014, USCIS announced that the H-1B cap for fiscal year 2015 was reached within the five business day filing window running from April 1 to April 7, 2014. This includes both the U.S. advanced degree cap preference limit of 20,000 visas, and the regular cap limit of 65,000 visas.
New (Cap) H-1B Filings -- April 1 Deadline
Feb 12, 2014
April 1 through 7, 2014 is the deadline for new H-1B petitions to be filed under the USCIS H-1B quota (assuming, as in the past, that the H-1B quota will be immediately exhausted). Employers should therefore determine as soon as possible whether they have any new H-1B petitions to be filed under the FY2015 quota (for start dates on or after October 1, 2014).
2013 HR Roundup - Checklist of New Employment Laws this Year
Dec 17, 2013
The year 2013 brought several changes to employment laws affecting Oregon employers. In this alert, we highlight the key changes of this past year so that our clients are aware of the changes, and have an opportunity to update their employee handbooks, policies and procedures before the New Year.
Don't Let The Holidays Take You For a Sleigh Ride
Dec 12, 2013
With the holidays around the corner, many employers organize parties to promote collegial working relationships and foster a pleasant work environment. While the benefits of holiday parties on employee morale are tangible, they may also present legal risks for employers. The first-and perhaps most obvious-risk arises from alcohol consumption. Courts have not hesitated to find an employer liable for accidents caused by inebriated employees leaving a company function.
Proposed Regulation Crowdfunding: Who Wants to Be a Crowdfunding Platform? Part II
Dec 06, 2013
On October 23, 2013, the SEC proposed rules governing the offer and sale of securities through "crowdfunding." If adopted, these rules would permit companies to raise capital by selling small amounts of equity to large groups of investors via regulated, online crowdfunding platforms. Crowdfunding platforms are necessary because companies looking to undertake a crowdfunding offering can only do so through an intermediary that has registered with the Financial Industry Regulatory Authority, or FINRA, the organization that currently oversees, among other things, securities brokers.
Proposed Regulation Crowdfunding: Few Surprises and Possibly a Step Forward - Part I
Nov 25, 2013
On October 23, 2013, the SEC proposed rules governing the offer and sale of securities through "crowdfunding." If adopted, these rules would allow issuers to raise capital by selling small amounts of equity to a large number of investors via regulated Internet crowdfunding platforms.
New Legal Developments in California's Booming Renewable Energy Market
Nov 07, 2013
Renewable energy advocates have many reasons to cheer recent legal developments in California. First, Governor Jerry Brown signed a quartet of renewable energy-related bills into law. Second, the California Public Utilities Commission recently established a target for the state's investor owned utilities to develop 1,325 MW of energy storage by 2020, with installations complete by 2024.
IRS Modifies "Use-it-or Lose-it" Rule for Health Flexible Spending Accounts
Nov 01, 2013
On October 31, 2013 the IRS issued Notice 2013-71 modifying the "use-it-or-lose-it" rule for health flexible spending accounts ("FSAs") under §125 cafeteria plans. These modified rules are welcome relief for employers and employees, and can apply as early as the 2013 plan year.
Diversity Lottery 2015 is Open!
Oct 22, 2013
The U.S. Department of State has opened entries for the Diversity Lottery 2015 (DV-2015). Online registration for the Diversity Lottery will be accepted until Saturday, November 2, 2013, at noon EDT. The Diversity Lottery allows nationals from countries with historically low rates of immigration to the United States to apply through a lottery process to potentially be selected for a diversity immigrant visa (to ultimately become a permanent resident of the United States).
SEC Proposes CEO Pay Ratio Disclosure Rules
Oct 16, 2013
On September 18, 2013, the Securities and Exchange Commission approved proposed rules requiring the disclosure by public companies of the median annual total compensation of all employees of the company, the annual total compensation of the Chief Executive Officer, and the ratio between the two. Companies would need to disclose this pay ratio in proxy statements, information statements, registration statements and annual reports. The proposed rules are an effort to implement Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
Veterans Day Mandatory Holiday for Oregon Employers
Oct 15, 2013
With Veterans Day (November 11) looming in the horizon, Oregon employers should plan to give the day off to eligible veterans in their workforce. Earlier this year, Governor Kitzhaber signed into law Senate Bill 1 that requires companies to provide paid or unpaid time off on Veterans Day to employees who: (1) would otherwise work that day; (2) give at least 21 days' notice that they intend to take the day off; and (3) present documents that verify their veteran status.
EEOC Focuses on ADA and Sex Bias Lawsuits
Oct 10, 2013
Information gleaned from the filings by the Equal Employment Opportunity Commission ("EEOC") for its fiscal year 2013, which ended September 30, shows a very decided emphasis on cases arising under the Americans With Disabilities Act ("ADA") and cases alleging sex bias, which include sex and pregnancy discrimination. The EEOC filed 134 lawsuits in 2013 (up from 122 in 2012, but down from 177 in 2011). ADA cases made up 36% of those filings, and sex bias claims made up 31% of the filings.
Private Offerings: SEC Proposes Amendments to Form D
Sep 11, 2013
This Client Update is the third segment in a three-part series on the new or proposed Securities and Exchange Commission rules governing private placements, mandated under the JOBS Act and the Dodd-Frank Act. This update focuses on the SEC's proposed changes to Form D. Form D is the notice filing made with the SEC in connection with private placements seeking the benefit of the Regulation D safe harbor.
Private Offerings: SEC Imposes "Bad Actor" Limitations on Certain Private Placements
Aug 28, 2013
This Client Update is the second segment in a three-part series on the new or proposed Securities and Exchange Commission rules governing private placements, mandated under the JOBS Act and the Dodd-Frank Act. This update focuses on the rules governing offerings that are associated with "bad actors."
Private Offerings SEC Lifts Ban on General Solicitation and Proposes New Requirements
Aug 14, 2013
This Client Update is the first segment in a three-part series on the new or proposed Securities and Exchange Commission rules governing private placements, mandated under the JOBS Act and the Dodd-Frank Act. This update, Part 1, focuses on the new rules lifting the ban on general solicitation and general advertising in certain private placements of securities.
U.S. Supreme Court Issues Significant Land Use Decision Benefiting Developers
Jul 25, 2013
In a 5-4 decision last month in Koontz v. St. Johns River Water Management District, the U.S. Supreme Court made a new contribution to constitutional land use law that could significantly impact the balance of power between developers and local governments.
Faster Permitting for Infrastructure Projects May Be On Tap in Pacific Northwest
Jul 18, 2013
Secretary of the Interior Sally Jewell and the states of Oregon and Washington have signed a declaration creating the Pacific Northwest Regional Infrastructure (PNRI) team. The PNRI team will work to streamline the permitting process for infrastructure projects in those states when both state and federal agencies have review responsibility.
ACA Employer Mandate and Reporting Requirements Delayed
Jul 03, 2013
On July 2, 2013, President Obama announced that implementation of the employer mandate and health care coverage reporting provisions of the Affordable Care Act will be delayed until January 1, 2015.
Form I-94s to Go Paperless (If Traveling by Air or Sea)
Apr 30, 2013
Today, U.S. Customs and Border Protection (CBP) started phasing in a "paperless" Form I-94 Arrival/Departure Record for foreign nationals entering the United States in nonimmigrant status by air or sea. Foreign nationals traveling by land will continue to receive a paper Form I-94.
Portland City Council Passes Mandatory Sick Leave Ordinance
Mar 27, 2013
On March 13, 2013, the Portland City Council unanimously approved an ordinance proposed by Portland Commissioner Amanda Fritz, which requires Portland area employers to provide sick leave for their employees.
Important Changes Affecting Commercial Real Estate in California
Mar 21, 2013
Commercial owners and tenants in California should be aware of new requirements with respect to disability access and energy use that take effect in 2013.
FTC Finalizes Amendments to COPPA Rule
Mar 14, 2013
Do you run a website designed for kids? Or do you run a website designed for a general audience that you know collects information from children under the age of 13? Either way, you are likely aware that you must comply with the requirements of the Children's Online Privacy Protection Act and the Children's Online Privacy Protection Rule.
New Form I-9 Mandatory After May 7, 2013
Mar 12, 2013
The U.S. Citizenship and Immigration Services has released a new version of Form I-9 (Employment Eligibility Verification). Employers should begin using the newly revised Form I-9 for all new hires and re-verifications, but may continue to use previous versions of Form I-9 (dated February 2, 2009 and August 8, 2009) until May 7, 2013. After May 7, 2013, employers are required to use the newly revised Form I-9 (dated March 8, 2013).
New H-1B Filings -- April 1st Deadline
Feb 04, 2013
April 1 through 5, 2013 is the filing deadline for new H-1B petitions to be made under the USCIS H-1B quota (assuming, as in the past, that H-1B quota availability will be immediately exhausted).
What Employers Can Learn from Petraeus's Downfall
Nov 19, 2012
We have all witnessed the instantaneous fall from grace of General David Petraeus, which snowballed from anonymous harassing emails sent to Tampa socialite Jill Kelley to implicating Petraeus's biographer Paula Broadwell to revealing the racy details of the writer's relationship with Petraeus.
Diversity Lottery 2014 Opens
Oct 11, 2012
The U.S. Department of State opened entries for the Diversity Lottery 2014 (DV-2014) beginning Tuesday, October 2, 2012 at noon EDT, and ending Saturday, November 2, 2012, at noon EDT. All entries must be submitted via the Department of State's online system; paper submissions are not accepted.
Sick Times in Seattle: A New Ordinance Provides Generous Leave for Seattle Employees
Aug 28, 2012
Beginning on September 1, 2012, a new law in Seattle will require certain employers to offer paid sick and safe time ("PSST") to employees who work within Seattle city limits. The Seattle Paid Sick and Safe Time Ordinance applies to all companies with employees working in Seattle whether on a full-time, part-time, or temporary basis.
Employers Should Continue Using Current Form I-9 to Verify Employment Eligibility
Aug 16, 2012
The U.S. Citizenship and Immigration Services (USCIS) recently announced that employers should continue using the version of Form I-9 currently available on the USCIS website (dated 08/07/09) for purposes of verifying employment eligibility even after the August 31, 2012 expiration date.
IRS Issues Guidance on $2,500 Health Flexible Spending Account Limit
Jun 20, 2012
The IRS recently issued helpful guidance in Notice 2012-40 on the $2,500 annual limitation on salary reduction contributions to health flexible spending accounts ("FSAs"), effective beginning in 2013.
JOBS Act Directs SEC to Lift Ban on General Solicitation and General Advertising in Rule 506 Offerings
Jun 20, 2012
The recently enacted Jumpstart Our Business Startups Act (JOBS Act) directs the U.S. Securities and Exchange Commission (SEC) to adopt rules that remove the existing prohibition against general advertising and general solicitation in private placements exempt from registration under Rule 506 of Regulation D, as long as the securities are sold only to accredited investors.
JOBS Act Amends Exchange Act Registration Thresholds (Part 3 of 3)
May 31, 2012
This Client Update is the third part of a three-part series on the new Jumpstart Our Business Startups Act of 2012. This update summarizes the amended thresholds for registration under the Securities Exchange Act of 1934 and related changes under the JOBS Act.
IPO Streamlining and Reduced Reporting Requirements for Emerging Growth Companies, and Regulation A+ Offerings (Part 2 of 3)
May 09, 2012
This Client Update is the second segment in a three-part series on the new Jumpstart Our Business Startups Act of 2012. This update focuses on streamlined initial public offering and reporting requirements for a newly created category of "emerging growth companies, as well as the increase in the cap for regulation A offerings from $5 million to $50 million.
JOBS Act Eases Burden on Fundraising for Small Companies (Part 1 of 3)
Apr 24, 2012
On April 5, 2012, the President signed into law the Jumpstart Our Business Startups Act of 2012 (the "JOBS Act"), which is intended to ease capital raising for smaller businesses by relaxing regulatory requirements. This update is the first segment in a three-part series outlining the new law.
SEC Adopts Final Rules on Performance-Based Fees
Apr 23, 2012
As discussed in a previous Tonkon Tip, the Securities and Exchange Commission issued an order raising the financial thresholds of Rule 205-3 under the Investment Advisers Act of 1940, which provides that only "qualified clients" may be charged a performance-based fee.
Transfer on Death Deeds: A Good Tool for Estate Planning in Oregon?
Mar 28, 2012
Effective January 1, 2012, Oregon law provides for a new form of deed known as a transfer on death (TOD) deed. These deeds allow an owner of real property to designate a beneficiary who will obtain title to that real property when the owner dies, without having to go through probate (subject to some exceptions).
New H-1B Filings Begin April 2
Feb 15, 2012
April 2 through 6, 2012, is the initial filing window for new H-1B petitions to be filed against the USCIS FY2013 H-1B quota if the H-1B quota availability is immediately exhausted. Employers should determine as soon as possible whether they have any new H-1B petitions to be filed under the FY2013 quota (for start dates on or after October 1, 2012).
Final ERISA Service Provider Fee Disclosure Rules Go Into Effect July 1, 2012
Feb 06, 2012
On February 2, 2012, the Department of Labor ("DOL") issued final regulations requiring service providers to ERISA retirement plans to disclose information about the service providers' compensation and potential conflicts of interest. The final rules replace interim final ERISA section 408(b)(2) regulations that were to go into effect on April 1, 2012.
Preparing for the 2012 Proxy Season
Feb 02, 2012
This Client Update provides an overview of corporate governance and disclosure matters that U.S. public companies should note as they approach the 2012 proxy season. The matters addressed will not apply equally to all companies, and their applicability may vary depending on a particular company's size, shareholder base, 2011 voting results, and executive compensation plans and policies.
Washington Tax Nexus: Can You Afford to "Sleep Like a Baby?"
Jan 26, 2012
Mattress World, whose radio ads told listeners "it's not too late to sleep like a baby," recently announced that it owes the State of Washington approximately $1.7 million in uncollected sales taxes and will be shutting down its business.
SEC Overhauls Form ADV Part 1A to Conform to New Dodd-Frank Requirements
Jan 25, 2012
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 has significantly changed how investment advisers are regulated. Among other things, the Act (a) increased the amount of assets under management required for SEC registration and (b) eliminated the so-called "private adviser" exemption, obligating many managers of private investment funds to register with the SEC or report to the SEC as "exempt reporting advisers."
New Employment Laws Ring in the New Year
Dec 29, 2011
The Oregon legislature enacted a few employment laws this year which go into effect on January 1, 2012.
Dodd-Frank Broadly Expands SEC Whistleblower Program (Part 2 of 2)
Nov 17, 2011
As discussed in a previous update, the Securities and Exchange Commission recently issued final rules implementing its new whistleblower program designed to encourage reporting of potential violations of the federal securities laws.
Dodd-Frank Broadly Expands SEC Whistleblower Program (Part 1 of 2)
Oct 27, 2011
The Securities and Exchange Commission recently issued final rules implementing a whistleblower program designed to encourage reporting of potential violations of the federal securities laws to the SEC to enhance its success in enforcement actions.
Current H-1B Cap Count for Fiscal Year 2012
Oct 25, 2011
As of October 14, 2011, U.S. Citizenship and Immigration Services (USCIS) reported that only approximately 21,700 of the regular 65,000 H-1B visas for Fiscal Year 2012 remain available. The quota provides for 65,000 H-1B visas and 20,000 additional H-1B visas reserved for individuals who hold a master's degree or higher from a U.S. university (only 400 of the master's preference visas remain as of October 14).
Train Supervisors to Recognize Requests for Reasonable Accommodations
Oct 05, 2011
The Americans With Disabilities Act (and similar state statutes) places obligations on employers to provide reasonable accommodation to employees with disabilities. The sticky part is what exactly constitutes a request for a reasonable accommodation.
Diversity Lottery 2013 Opens
Oct 04, 2011
The U.S. Department of State opens entries for the Diversity Lottery 2013 beginning October 4, 2011 at noon EDT, and ending November 5, 2011, at noon EDT.
New .xxx Domain Names - Opportunity to Safeguard your Trademarks
Sep 19, 2011
After many years of debate, the new sponsored top-level domain ("TLD") .xxx has been approved. The .xxx TLD is targeted at the adult entertainment industry.
SEC Finalizes Dodd-Frank Rules Affecting Private Investment Fund Managers
Aug 18, 2011
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 makes significant changes to the current investment adviser regulatory regime.
Federal Incentives for Commercial Buildings to Go Green
Aug 10, 2011
Cutting down on energy costs is beneficial for companies long term, but making the upfront investment to cut those costs can be significant. However, some little-known federal incentives may help with the cost of transitioning your building into an energy efficient one.
SEC Raises "Qualified Client" Thresholds
Aug 03, 2011
On July 12, 2011, the Securities and Exchange Commission issued an order raising the financial thresholds under Rule 205-3 under the Investment Advisers Act of 1940, which permits registered investment advisers to charge certain clients a performance-based fee.
SEC Extends Deadlines for Compliance with New Investment Adviser Registration Regime under Dodd-Frank
Jul 15, 2011
As we detailed in a previous Tonkon Tip, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank") makes significant changes to the current investment adviser regulatory regime.
New ERISA Participant-Directed Plan Disclosure Rules
Jun 28, 2011
A discussion of the new Department of Labor rules, enumerating the plan and investment-related information that employers must furnish to participants.
From Aesop to the Supreme Court
Jun 13, 2011
In 1679, La Fontaine memorialized Aesop's famous Cat's Paw fable into verse as a metaphor for princes who do kings' dirty deeds and receive no reward. In the fable, a monkey convinces a cat to take roasting chestnuts out of a fire. After the cat burns its paws removing the chestnuts, the monkey makes off with the chestnuts, leaving the cat with nothing.
BlackBerry Use and Overtime Laws: the Lawsuits Have Started
Apr 20, 2011
Thinking about giving a BlackBerry or an iPhone to your employees? Think again. As the lines between business hours and private lives become blurred by always-there-technology, employers are facing new challenges in administering wage and hour laws for hourly employees.
Get Ready Now to Comply with ERISA Service Provider Fee Disclosure Rules
Feb 15, 2011
On January 1, 2012, new rules go into effect that will require investment advisers, brokers and others who provide services to ERISA plans to disclose to plan fiduciaries information relating to the service provider's compensation. This disclosure is intended to help plan fiduciaries determine the reasonableness of a service provider's compensation, and whether conflicts of interest may affect a service provider's performance of services.
City and County Income Tax Traps
Jan 26, 2011
The Multnomah County Business Income Tax and the Portland Business License Law (the City/County Tax) is a 3.65% combined tax on "business income" apportioned to the city and county under a single sales factor. The City/County Tax is loaded with traps for the unwary.
SEC Extends Deadline for Brochure Supplements for Certain RIAs
Jan 12, 2011
As discussed in a previous Tonkon Tip, the SEC recently amended the requirements of Form ADV Part 2 to require registered investment advisers to provide clients with a "brochure" under Part 2A of Form ADV and "brochure supplements" under Part 2B of Form ADV.
Oregon State Taxation of Nonqualified Deferred Compensation Plan Benefits
Dec 20, 2010
Hypothetical: Oregon executive will begin to receive payments from a nonqualified deferred compensation plan upon retirement. He plans to move to Washington state following retirement. Will the payments be subject to Oregon income tax?
DOL Proposes Broader Definition of ERISA "Fiduciary" Applicable to Investment Advisers
Dec 07, 2010
On October 22, 2010, the Department of Labor ("DOL") published proposed regulations that would broaden the definition of when a person is an ERISA "fiduciary" by reason of giving investment advice to an employee benefit plan or a plan's participants.
Tonkon Torp water law expert to address Portland City Club
Dec 02, 2010
Janet Neuman, senior counsel on water law at Tonkon Torp, will speak at the Portland City Club on Friday, December 3 at 12:15 p.m. on "The Politics of Water."
SEC Amends Part 2 of Form ADV to Create New Disclosure Regime for RIAs
Dec 02, 2010
The SEC recently amended the requirements for the principal disclosure document that SEC-registered advisers provide to their clients and prospective clients. Under the previous Form ADV Part II, advisers were required to respond to a series of multiple-choice and fill-in-the-blank questions, supplemented with narrative descriptions expanding on certain responses.
Oregon Election Outlook
Nov 05, 2010
November 2, 2010 will go down as an historic Election Day in Oregon. Not only because of an uncommonly close gubernatorial race that made John Kitzhaber Oregon's first three-term Governor, but because voters also approved Ballot Measure 71 which for the first time instructs the Oregon Legislative Assembly to meet annually and pursuant to a strict schedule.
Dodd-Frank to Change Investment Adviser Registration Requirements
Oct 20, 2010
Are you an investment adviser currently registered with the Securities and Exchange Commission ("SEC")? If so, you may have to de-register with the SEC and register instead with one or more states, as required by the recently passed Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank").
Diversity Lottery 2012 Opens; H-1B Cap Update
Oct 11, 2010
The U.S. Department of State opened entries for the Diversity Lottery 2012 (DV-2012) beginning October 5, 2010 at noon EDT, and ending November 3, 2010, at noon EDT. Please note that this is a shorter entry period than in previous years.
Delaying a Difficult Decision...
Sep 01, 2010
Deciding whether to pull up stakes and change residency is often a difficult decision for individuals and families. Yet, it is a decision that Oregonians often face when selling stock because of the income tax consequences of remaining an Oregon resident.
Changes to "Accredited Investor" and "Qualified Client" Standards Under Dodd-Frank Act
Aug 27, 2010
On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"), which brings into place a broad range of financial regulatory reforms. Title IV of the Dodd-Frank Act, titled Private Fund Investment Advisers Registration Act of 2010 (the "Registration Act") significantly modifies the registration and reporting requirements under the Investment Advisers Act of 1940 ("Advisers Act").
Health Care Reform Update: Model Notices
Jul 22, 2010
The Department of Labor (DOL) has issued model notices that include background information and model language that may be used to satisfy the new notice obligations.
Health Care Reform Update
Jul 15, 2010
This Tip reports on the interim final regulations issued under the Patient Protection and Affordable Care Act (the "Health Care Act") regarding the prohibition on annual and lifetime dollar limits on "essential health benefits" under group health plans.
SEC Provides Custody Rule Relief to Investment Advisers Serving as Co-Trustees
Jun 17, 2010
Earlier this year, the SEC amended its custody rule, Rule 206(4)-2, to impose new requirements on investment advisers deemed to have "custody" of client assets. As discussed in a previous Tonkon Tip, an adviser is deemed to have custody if the adviser (or an employee of the adviser) serves as sole trustee of a trust comprised of client assets.
FBAR Regs: Good News and Bad News...
Jun 11, 2010
The good news is that new regulations have clarified the definition of "U.S. Persons" for FBAR reporting rules.
E-Verify Tutorial Alert
Jun 11, 2010
Alert: Completion of a new tutorial is required in order to continue using E-verify after a redesign is released on Sunday, June 13, 2010.
COBRA Premium Subsidy Extended Again
May 05, 2010
COBRA Premium Subsidy Extended Again
Congress has passed, and the President has signed, the Continuing Extension Act of 2010 (the "Continuing Extension"), which again extends the COBRA premium subsidy program created by the American Recovery and Reinvestment Act of 2009 (ARRA).
Marijuana Accommodation has Gone to Pot: Oregon Supreme Court Ruling Eliminates Protections
Apr 22, 2010
The Oregon Supreme Court held that Oregon's disability discrimination laws do not require an employer to accommodate an employee's use of medical marijuana.
Oregon Legislature Hears Proposals To Modify The Business Energy Tax Credit
Feb 04, 2010
The 2010 special session of the Oregon Legislature began this week, and the House Revenue Committee wasted no time in holding a hearing on proposed revisions to the Business Energy Tax Credit ("BETC") that is available to projects in the conservation and recycling, renewable energy generation, and renewable energy manufacturing sectors.
Stronger Custody Rule Approved for SEC-Registered Investment Advisers
Feb 04, 2010
The SEC amended its custody rule, effective March 12, 2010, to increase the oversight of advisers that are deemed to have custody of client assets. An adviser is deemed to have "custody" in numerous situations, such as when the adviser deducts fees from client accounts, manages a private investment fund, serves as trustee for a client, or has a general power of attorney from a client. If an adviser is deemed to have custody of client assets, a "qualified custodian," such as a bank, trust company or broker-dealer, must maintain those assets (other than certain privately offered securities).
Change in Law Regarding Employer Mandated Meetings
Jan 13, 2010
Effective January 1, 2010, Oregon law gives employees the right to opt out of certain employer mandated meetings and requires employers (regardless of the size) to post a communication in the workplace regarding that right.
New and Extensive Massachusetts Data Protection Law
Dec 03, 2009
Do you have clients who are Massachusetts residents? If so, you should know that, beginning March 1, 2010, a new Massachusetts regulation will require that you implement a comprehensive information security program to protect the personal data of such clients.
The Genetic Information Nondiscrimination Act of 2008 (GINA) Took Effect on
Dec 02, 2009
GINA prohibits discrimination by employers (and health insurers) on the basis of genetic information."Genetic information" is defined broadly to include, among other things, information about "the manifestation of a disease or disorder in family members of such individual."
Diversity Lottery 2011 Opens
Oct 02, 2009
The U.S. Department of State opens entries for the Diversity Lottery 2011 (DV-2011) beginning October 2, 2009 at noon EDT, and ending November 30, 2009, at noon EST.
Federal Contractors Are Required to Use E-Verify for Many Federal Contracts Awarded On or After September 8, 2009
Sep 25, 2009
Companies who receive federal contracts on or after September 8, 2009, must use the government E-Verify system to confirm their employees' eligibility to work in the United States if the federal contract includes the Federal Acquisition Regulation E-Verify Clause.
U.S. Department of Labor Sending Questionnaires to Certain H-1B Workers
Aug 31, 2009
The U.S. Department of Labor (DOL) has begun sending detailed questionnaires to H-1B workers who are current or former employees of companies DOL is investigating. Please note that DOL states in the questionnaire that the H-1B worker is not required to respond.
Expanded Form U4 Disclosure - All Forms U4 Must Be Amended
Aug 24, 2009
By November 14, 2009, registered investment advisers and broker-dealers must amend all of their representatives' Forms U4 to comply with amendments to Form U4 recently approved by the SEC.
ICE Form I-9 Audit Initiative: Are Employers Prepared?; H-1B Numbers Remain Available
Jul 02, 2009
On July 1, 2009, U.S. Immigration and Customs Enforcement ("ICE") issued a news release announcing that it is launching "a bold, new [Form I-9] audit initiative" and has issued 652 Notices of Inspection (NOIs) to employers nationwide.
Act Now: Trademark Infringement on Facebook
Jun 11, 2009
On Tuesday, June 9, Facebook, Inc., the social networking website company, publicly announced that beginning Saturday, June 13th at 12:01 a.m. U.S. EDT
, users of the Facebook website will be allowed for the first time to create personalized URLs for their Facebook pages (facebook.com/yourname).
New LCA System Required by U.S. Department of Labor
May 06, 2009
The U.S. Department of Labor (DOL) has activated a new online system for the filing and certification of Labor Condition Applications (LCAs). The system is referred to as the "iCert Portal" and will be required as of May 15, 2009.
Governor Kulongoski Signs Legislation Modifying Oregon's Mini-COBRA
Apr 29, 2009
In previous alerts, we informed you about changes to COBRA affected by the American Recovery and Reinvestment Act of 2009 ("ARRA").
Court Clarifies ADA Requirements
Apr 28, 2009
Last month U.S. District Court Judge Anna Brown made a ruling that adds some clarity to the Americans With Disabilities Act (ADA), the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and Oregon Disability Law. In Neal v. Kraft Foods Global, Inc., the court granted summary judgment in favor of Kraft Foods in a claim by plaintiff that Kraft Foods failed to reasonably accommodate her disability.
FY 2010 H-1B Numbers Remain Available
Apr 09, 2009
The USCIS has confirmed as of April 9 that approximately 23,000 of the 65,000 H-1B visas from the FY2010 quota remain available following the April 1 opening for filings.
Recovery Act Model COBRA Notices Now Available
Mar 20, 2009
The Department of Labor has now posted model notices and corresponding instructions in their web site.
The IRS and Department of Labor post forms, facts, and clarifications of changes to COBRA as a result of the American Recovery and Reinvestment Act of 2009
Mar 03, 2009
Last week, we notified you of the substantial changes to COBRA resulting from the American Recovery and Reinvestment Act of 2009 (the "Recovery Act").
Significant Changes to COBRA Take Effect Immediately Under the New Recovery Act
Feb 26, 2009
On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 ("Recovery Act").
New H-1B Filings -- April 1 Deadline
Feb 11, 2009
April 1, 2009 is the filing deadline for new H-1B petitions to be made under the USCIS H-1B quota (assuming, as in the past, that H-1B quota availability will be immediately exhausted). USCIS may soon announce a longer filing window, as it did last year.
Very Important Update to January 26 Immigration Update
Jan 30, 2009
The USCIS announced today that implementation of the new Form I-9 has been delayed for 60 days. The February 2 effective date is now superseded. All U.S. employers should continue to use the current version of Form I-9 until April 3, 2009.
New Form I-9 Becomes Effective Monday, February 2, 2009
Jan 26, 2009
The United States Citizenship and Immigration Services (USCIS) is issuing a new Form I-9 (Employment Eligibility Verification), which becomes effective on Monday, February 2, 2009.
Visa Waiver Travel and TN Status Updates
Nov 17, 2008
On November 17, 2008, the Department of Homeland Security (DHS) announced that seven additional countries have been added to the Visa Waiver Program.
Diversity Lottery 2010 Opens
Oct 07, 2008
The U.S. Department of State opened entries for the Diversity Lottery 2010 (DV-2010) beginning October 2, 2008 at noon EDT, and ending December 1, 2008, at noon EST.
Proposed Amendments to the ADA
Sep 23, 2008
Last week, the Senate and the House of Representatives passed a bill that significantly expands workplace protections for Americans with disabilities.
Tonkon Torp Announces New Form I-9 Software
Jun 13, 2008
Tonkon Torp LLP is pleased to announce the launch of its new Form I-9 Web-based software application, EarthVisaSM.
Supreme Court Decisions Likely to Result in Increased Number of Retaliation Claims
Jun 10, 2008
In two decisions issued on the same day at the end of May, the Supreme Court ruled that employees are protected from retaliation when they complain about discrimination in the workplace, adopting a broad interpretation of workers' rights under two separate federal civil rights laws.
USCIS Performs H-1B Lottery Selections for FY2009
Apr 14, 2008
Today USCIS performed the random selection process for H-1B petitions to be selected in the FY2009 lottery. USCIS anticipates issuing receipt notices for selected cases by June 2.
Department of Homeland Security Responds to SSA No-Match
Apr 08, 2008
In October, we told you that the United States District Court for the Northern District of California granted an injunction against the Department of Homeland Security's (DHS) new "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" final rule.
When Drug Policies and Employment Privacy Rights Collide
Mar 25, 2008
In a case involving the city of Woodburn, the Ninth Circuit held that an employer's policy of requiring pre-employment drug testing was unconstitutional as applied to the particular position the prospective employee applied for.
Employer's Liability to Excluding Third Parties from Work Premises
Mar 11, 2008
In a case involving the University of Oregon, the Oregon Court of Appeals made a favorable ruling for employers who exclude outside persons from their work premises in response to complaints by employees.
Revisions and Amendments to the Family and Medical Leave Act
Feb 12, 2008
The Department of Labor has released proposed revisions to the Family and Medical Leave Act ("FMLA") regulations.
Oregon's Domestic Partner Insurance Mandate
Feb 06, 2008
On February 5, 2008 the Oregon Insurance Division issued a bulletin mandating that all group health and life insurance policies issued or renewed in Oregon after March 31, 2008 include same-gender domestic partner coverage, if coverage is offered for spouses. (INS 2008-2).
Employment Law Changes in the New Year
Jan 08, 2008
The New Year has arrived! This means that all the statutory changes we discussed in our last two issues are now in full effect.
One Week Until U.S. Employers Are Required to Use Revised Form I-9 (Employment Eligibility Verification)
Dec 20, 2007
The U.S. Citizenship and Immigration Services (USCIS) recently announced revisions to Form I-9, and has confirmed that use of the revised Form I-9 must be implemented by employers no later than December 26, 2007.
More Changes to Oregon's Employment Laws
Nov 20, 2007
The countdown has started: 42 days until the New Year! In addition to the statutory revisions we discussed in our last issue, January 1, 2008 will bring the following changes to Oregon's employment relationships.
Changes in Oregon's Employment Law
Nov 06, 2007
The new year marks the start of many important changes in Oregon's employment law.
There's a New Domain Name in Town: DotAsia
Oct 26, 2007
The DotAsia community covers 73 countries in the Asia/Pacific region, including China, Japan, Australia, Philippines, India, Israel, Turkey.
Preliminary Injunction Ordered by United States District Court: New DHS "SSA No-Match Safe Harbor" Final Rule Placed on Hold
Oct 12, 2007
On October 10, 2007, the United States District Court for the Northern District of California granted a preliminary injunction against the Department of Homeland Security's (DHS) new "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" final rule that was to have taken effect September 14, 2007. The District Court's order places the final rule on hold pending the outcome of litigation.
Recent Developments in Immigration
Oct 01, 2007
The Diversity Immigrant Visa Program ("DV Program"), also known as the "Diversity Lottery," is now open.
New SEC Rules Require Internet Availability of Proxy Materials: Update of Notice and Access Model
Aug 30, 2007
The Securities and Exchange Commission recently adopted amendments to the proxy rules under the Securities Exchange Act of 1934.
Negligent Hiring and Retention
Aug 14, 2007
Employers must be careful about whom they hire and whom they continue to employ, particularly when an employee exhibits violent tendencies. In such cases, employers must act and act fast.
New Rules for Retaliation Lawsuits
Aug 01, 2007
Employers frequently face the difficult task of investigating the poor performance of an employee who, coincidentally, has made complaints of discrimination or unlawful conduct.
Follow Up to July 13th Immigration Update
Jul 17, 2007
We are pleased to announce that today the U.S. Citizenship and Immigration Services (USCIS) has agreed to accept adjustment of status applications until August 17, 2007 at the pre-July 30 filing fee rates.
Recent Developments in Immigration
Jul 13, 2007
In mid-June, the U.S. Department of State (DOS) issued its Visa Bulletin for July 2007, listing all employment-based categories as current.
New Law Adds Conditions to Arbitration Agreements Imposed by Employers
Jul 11, 2007
When the Oregon legislature passed new laws on noncompetition and arbitration agreements last month, most employers focused upon the new requirements for enforceability of noncompetition agreements, which we highlighted in a June issue.
Are Your Employment, Consulting or Separation Pay Arrangements Subject to § 409A Tax Rules?
Jun 19, 2007
Action is required! The deadline for amending plans and agreements to comply with the new deferred compensation tax rules is December 31, 2007; companies that have not yet reviewed their arrangements in light of § 409A should do so now.
Supreme Court Allows Superfund Cleanup Cost Recovery
Jun 13, 2007
On June 11, 2007, in U.S. v Atlantic Research Corp., the United States Supreme Court solved a portion of the puzzle that has confounded so-called potentially responsible parties (PRPs) since the Court's decision in Cooper Industries, Inc. v Aviall Services, Inc. in 2004.
Changes Imminent to Oregon Law on Noncompetition Agreements
Jun 12, 2007
Employers may soon bid farewell to the days when Oregon's test for enforceability of a noncompetition agreement was as simple as, "did the employee sign the noncompetition agreement upon initial employment or a subsequent bona fide advancement?"
Deadline Extended for Resolution of Certain Measure 37 Claims
May 29, 2007
On May 10, 2007, Governor Kulongoski signed House Bill 3546, which extends the time period for government entities to decide certain Measure 37 claims from 180 to 540 days.
If You Are an Employer Requiring Medical Tests of Job Applicants, Order Means Everything
May 29, 2007
You may be like many employers who require applicants to provide medical information as a part of the hiring process.
Summer Help Wanted!
May 09, 2007
Are you thinking about hiring high school age employees for summer jobs? If so, remember that the employment of minors (ages 14-17) is heavily regulated, both under Oregon and federal laws. This is a quick list of things to keep in mind.
Oregon Expands Employment Discrimination Laws to Protect Sexual Orientation
Apr 24, 2007
Last week the Oregon Senate cleared the way for Governor Kulongoski to sign into law the Oregon Equality Act, also known as Senate Bill 2.
Beware of Pitfalls in Vetting Applicants for Employment: Background Checks
Apr 10, 2007
This week brought good news for the U.S. economy. The unemployment rate is at a five-year low with 180,000 jobs added in the month of March. As employers add new workers, many will struggle with establishing procedures for hiring.
Time for Spring Cleaning
Mar 27, 2007
Spring is a great time to conduct an internal review to ensure that your workplace policies and procedures are being properly followed.
Will Congress Short Circuit an Employer's Right to Union Elections?
Mar 13, 2007
The Employee Free Choice Act ("EFCA") was introduced into the U.S. House of Representatives on February 5, 2007. This Act would dramatically change union organizing and collective bargaining over first time labor agreements. If it passes, the EFCA will have an impact on all employers regardless of size, industry or location.
Supreme Court Eliminates Obstacle to Declaratory Relief in Patent Cases
Jan 17, 2007
If you are a party to a patent license agreement, the U.S. Supreme Court just made it easier to go to court to test the validity of the patent or whether a licensed product would actually infringe the patent.
Deadline to File Certain Measure 37 Claims is December 2, 2006
Nov 07, 2006
Oregon's Ballot Measure 37 (now codified as ORS 197.352) took effect on December 2, 2004.