Weekly Legislative Update - September 24, 2018

Wage and Hour Issues
The Department of Labor has announced that the Wage and Hour Division would resume issuing Opinion Letters again (only eleven Opinion Letters were issued between 2010 and 2016-two of which were withdrawn by the Trump Administration). 

The Opinion Letters resumed earlier this year and the DOL just issued the following five Opinion Letters on August 20, 2018:
  • FLSA2018-1-A-Stating that the employer is not violating in FMLA maintaining a policy that assigns points to employees for tardiness and absences that remain on an employee's record for twelve months before they are removed and requires that the twelve months be working months, meaning that FMLA or other extended leave will not count towards the twelve months before the points can be removed.
  • FLSA2018-2-A-Stating that an eligible employee can use FMLA leave to recover from organ donation requiring inpatient care, even if the individual was in good health before the donation and the donation was to improve another person's health.
  • FLSA2018-20-Stating that where employees have the option to voluntarily participate in biometric screenings, wellness activities or wellness fairs, bur are in no way required to do so, the time the employee spends on such activities can be treated as off-duty non-compensable time.
  • FLSA2018-21-Stating that a business selling a customized technology platform to merchants could qualify as a "retailor service establishment" for the purposes of the wage and hour laws.
  • FLSA2018-22-Stating that members of a nonprofit serving one to two weeks per year as graders for the professional examinations administered by the nonprofit can be classified as volunteers and do not need to be compensated for their time (notwithstanding the fact that the nonprofit reimburses member graders for their travel expenses).
  • FLSA2018-23-Stating that the overtime exemption for employees employed by a motion picture theater apply to employees working in the food services section serving as part of a motion picture theatre.
*It is important to note that, while they can serve as a helpful guide, the Wage and Hour Opinion Letters are only binding authority as to the specific facts presented and the employer who requested the opinion.

USTR Finalizes Tariffs on $200 Billion of Chinese Imports in Response to China's Unfair Trade Practices 
From: The Office United States Trade 
As part of the United States' continuing response to China's theft of American intellectual property and forced transfer of American technology, the Office of the United States Trade Representative (USTR) released a list of approximately $200 billion worth of Chinese imports that will be subject to additional tariffs.  In accordance with the direction of President Trump, the additional tariffs will be effective starting September 24, 2018, and initially will be in the amount of 10 percent.  Starting January 1, 2019, the level of the additional tariffs will increase to 25 percent.  

The list contains 5,745 full or partial lines of the original 6,031 tariff lines that were on a proposed list of Chinese imports announced on July 10, 2018.  Changes to the proposed list were made after USTR and the interagency Section 301 Committee sought and received comments over a six-week period and testimony during a six-day public hearing in August.  USTR engaged in a thorough process to rigorously examine the comments and testimony and, as a result, determined to fully or partially remove 297 tariff lines from the original proposed list.  Included among the products removed from the proposed list are certain consumer electronics products such as smart watches and Bluetooth devices; certain chemical inputs for manufactured goods, textiles and agriculture; certain health and safety products such as bicycle helmets, and child safety furniture such as car seats and playpens. 

In March 2018, USTR released the findings of its exhaustive Section 301 investigation that found China's acts, policies and practices related to technology transfer, intellectual property and innovation are unreasonable and discriminatory and burden or restrict U.S. commerce.

Specifically, the Section 301 investigation revealed:

  • China uses joint venture requirements, foreign investment restrictions, and administrative review and licensing processes to require or pressure technology transfer from U.S. companies. - China deprives U.S. companies of the ability to set market-based terms in licensing and other technology-related negotiations.
  • China directs and unfairly facilitates the systematic investment in, and acquisition of, U.S. companies and assets to generate large-scale technology transfer.
  • China conducts and supports cyber intrusions into U.S. commercial computer networks to gain unauthorized access to commercially valuable business information.

After separate notice and comment proceedings, in June and August USTR released two lists of Chinese imports, with a combined annual trade value of approximately $50 billion, with the goal of obtaining the elimination of China's harmful acts, policies and practices.  Unfortunately, China has been unwilling to change its policies involving the unfair acquisition of U.S. technology and intellectual property.  Instead, China responded to the United States' tariff action by taking further steps to harm U.S. workers and businesses.  In these circumstances, the President has directed the U.S. Trade Representative to increase the level of trade covered by the additional duties in order to obtain elimination of China's unfair policies.  The Administration will continue to encourage China to allow for fair trade with the United States.


Click here to view the final tariff list. 

Statement from the President on Tariffs
Issued on:  September 17, 2018
"Today, following seven weeks of public notice, hearings, and extensive opportunities for comment, I directed the United States Trade Representative (USTR) to proceed with placing additional tariffs on roughly $200 billion of imports from China.  The tariffs will take effect on September 24, 2018, and be set at a level of 10 percent until the end of the year.  On January 1, the tariffs will rise to 25 percent.  Further, if China takes retaliatory action against our farmers or other industries, we will immediately pursue phase three, which is tariffs on approximately $267 billion of additional imports.

We are taking this action today as a result of the Section 301 process that the USTR has been leading for more than 12 months.  After a thorough study, the USTR concluded that China is engaged in numerous unfair policies and practices relating to United States technology and intellectual property - such as forcing United States companies to transfer technology to Chinese counterparts.  These practices plainly constitute a grave threat to the long-term health and prosperity of the United States economy.

For months, we have urged China to change these unfair practices, and give fair and reciprocal treatment to American companies.  We have been very clear about the type of changes that need to be made, and we have given China every opportunity to treat us more fairly.  But, so far, China has been unwilling to change its practices.  To counter China's unfair practices, on June 15, I announced that the United States would impose tariffs of 25 percent on $50 billion worth of Chinese imports.  China, however, still refuses to change its practices - and indeed recently imposed new tariffs in an effort to hurt the United States economy.

As President, it is my duty to protect the interests of working men and women, farmers, ranchers, businesses, and our country itself.  My Administration will not remain idle when those interests are under attack.

China has had many opportunities to fully address our concerns.  Once again, I urge China's leaders to take swift action to end their country's unfair trade practices.  Hopefully, this trade situation will be resolved, in the end, by myself and President Xi of China, for whom I have great respect and affection." -President Donald Trump