Resources

The U.S. Department of Transportation ("DOT") released its revised federal policy for automated vehicles, entitled “Automated Driving Systems 2.0: A Vision for Safety” (the “Voluntary Guidance”) on September 12, 2017, and at the same time announced it is working on a 3.0 version to be released next year.

The higher salary requirements under the Fair Labor Standards Act (FLSA) white collar exemptions that were set to take effect December 1, 2016, have been ruled invalid by a U.S. District Court in Texas. The same court preliminarily enjoined the implementation of these regulations on November 22, 2016. That decision is presently on appeal to the Fifth Circuit Court of Appeals. Although the U.S. Department of Labor (DOL) requested that the district court delay its final decision on the merits of the case until after the court of appeals rules on the preliminary injunction, the district court declined to do so and issued its final decision on August 31, 2017.

The Office of Management and Budget (“OMB”) issued a memorandum yesterday to the Equal Employment Opportunity Commission (“EEOC”) informing the agency that it is initiating a review of the effectiveness of the pay data reporting requirements of the revised EEO-1 form which went into effect on September 29, 2016. As a result, the EEO-1 pay data reporting requirements are stayed indefinitely.

USCIS announced it will expand the in-person interview process for certain beneficiaries of permanent residency applications.  

As noted in our December 9, 2016, Client Alert, the Supreme Court in Salman v. U.S. ruled that the required “personal benefit” to the person disclosing inside information (the tipper) does not need to be “pecuniary” or something of a “similarly valuable nature.” Instead, the Supreme Court relied on its prior opinion in Dirks v. SEC, and found that a “gift” of inside information provided to the tipper’s family member or friend can be inferred by a jury as intent by the tipper to “provide the equivalent of a cash gift,” which is the personal benefit to the tipper. Salman, 137 S. Ct. 420, 427-28 (2016). “In such situations, the tipper benefits personally because giving a gift of trading information is the same thing as trading by the tipper followed by a gift of the proceeds.”  Id. at 428. The Supreme Court in Salman overruled as “inconsistent with Dirks” the Second Circuit’s 2014 holding in U.S. v. Newman that “the tipper must also receive something of a ‘pecuniary or similarly valuable nature’ in exchange for a gift to family or friends.”  Id. at 428. The Supreme Court did not directly address the other requirement in Newman that a non-pecuniary, non-monetary “personal benefit” can only be established with “proof of a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.”  U.S. v. Newman, 773 F.3d 438, 452 (2nd Cir. 2014) (emphasis added).

This is Part II of a four-part series discussing the new AIA 2017 forms. Part I discussed the agreements between the Owner and Contractor (A101-2017 and A102-2017); Part III will discuss the Owner—Architect forms (B101-2017, B102-2017 and B103-2017); Part IV will discuss miscellaneous new forms, including the new insurance exhibits and consultant forms.

USCIS announced it will resume premium processing for certain cap-exempt H-1B petitions effective July 24, 2017.

The Department of Labor (DOL) recently announced that it had submitted a proposed Request for Information, related to possible new overtime rules, to the Office of Management and Budget (OMB) for review. The OMB review has now been completed and the DOL published the Request for Information on July 26, 2017. The DOL noted that the purpose of the Request for Information was to gather information for formulating a proposal to revise the white collar exemption regulations. The Request for Information seeks answers to 11 questions and is the strongest indication yet that the current DOL leadership will abandon the new salary basis regulations issued under President Obama.

USCIS has implemented a revised Form I-9 effective July 17, 2017. Employers have until Sept. 17, 2017, to discontinue use of the Nov. 14, 2016, edition of the Form I-9 but employers are urged to use the new version of the form as soon as possible. The new form has been updated to allow employers to accept Form FS-240, Consular Report of Birth Abroad as an acceptable List C document. The I-9 employer handbook has also been updated to reflect this change.

As previously reported, the Fifth Circuit Court of Appeals is currently reviewing a challenge to the recent Fair Labor Standards Act ("FLSA") overtime changes. Previously, a Texas district court entered an injunction preventing the Department of Labor ("DOL") from implementing new regulations regarding the determination of who is exempt for overtime purposes. On June 30, the DOL filed its reply brief with the Court of Appeals, stating that although it was no longer defending the overtime rule set to become effective on Dec. 1, 2016, it believed the district court erred in concluding that the DOL had no authority to set white-collar salary limitations. Therefore, the DOL requested that the court rule in its favor on that issue and reject the district court’s issuance of the injunction, which, it argued, “would call into question any salary-level test adopted by the [DOL].”