The Center News: February 2017

A Publication of the National Association of ManufacturerstheCenter for Legal Action

Center Perspectives

By Patrick Forrest, Vice President and Deputy General Counsel

On January 27, President Donald Trump signed an executive order that prohibits foreign nationals from seven designated countries from entering the United States for 90 days. The order was put in place immediately and resulted in confusion at U.S. ports of entry and abroad. A week later, as part of a lawsuit filed by Washington and Minnesota, a federal judge issued a temporary injunction blocking implementation of the order. Then, on February 9, the Ninth Circuit Court of Appeals upheld the injunction. To save the order, President Trump must ultimately go to the Supreme Court.

If the injunction is eventually lifted, it could impact the business community immediately in several ways. First, workers from the listed countries in the United States on employment-based visas would have their visas revoked should they travel outside of the United States. Second, lawful permanent residents or green-card holders from the designated countries could travel to the United States, but they could face additional questioning before they are admitted to the country. Additional scrutiny could include secondary inspection and the possibility of searches of phones, laptops and other electronic devices. Third, dual nationals who have in the past represented themselves to be citizens of one of the seven countries—including presenting a passport in connection with a benefit or a visa application—may want to postpone travel until there is further clarity. Fourth, U.S. citizens or permanent residents who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen may be questioned about their travel when reentering the United States.

Parts of the executive order remain standing despite the Ninth Circuit Court of appeals injunction. The order suspends the Visa Interview Waiver Program or “drop-box” method of applying for visa renewals at all U.S. embassies. This program allowed frequent visitors to the United States to skip in-person interviews for visa renewals. The elimination of this timesaving program may cause significant delays in the availability of visa application appointments and extensive delays in the time needed to adjudicate initial applications as well as extensions.

More broadly, the executive order has generated anxiety within the business community because of what it may mean for future immigration actions. To date, no changes have been made to the H-1B process or other high-skilled immigration programs, but an unverified draft executive order regarding employment-based immigration has been leaked. The draft calls for agencies processing immigration matters to review their procedures, identify potential changes and propose regulatory changes. The draft also directs government fraud detection officers to conduct unannounced checks on employment-based visa holders such as those with L Visas. We are unlikely to see significant changes in the employment-based programs through presidential actions. These programs are governed primarily by statutes and regulations, and the process for changing a statute or regulation normally takes many months with an opportunity for substantial input by employers and members of the public.

Employers are in a wait-and-see pattern but should anticipate increased complexity surrounding employment-based visa programs. The Manufacturers Center for Legal Action (MCLA) will continue to monitor developments affecting manufacturers and provide regular updates. Please do not hesitate to contact me with questions at pforrest@nam.org.

MCLA in the Courts
Class Actions

Manufacturers weigh in on key class-action antitrust case: The National Association of Manufacturers (NAM) urged the Supreme Court to consider this case involving the presumption of class-wide antitrust impact based on allegations of a coordinated cardboard packaging industry price increase. Many industries feature price indexes that help set standard prices, and this case raises concerns that manufacturers will be exposed to expansive class-action antitrust liability.

More Information: Kleen Products LLC v. International Paper Co. (U. S. Supreme Court)
Environmental

“Waters of the U.S.” hearing delayed: The NAM’s “waters of the United States” case in the U.S. Supreme Court is postponed until October. The case will resolve which court—a district court or an appellate court—should hear our challenge of the rule. This development provides more time for the parties to file briefs and prepare for arguments and will likely mean that a full complement of nine justices will hear the case.

More Information: NAM v. U.S. Dep’t. of Defense (U. S. Supreme Court)

Judge allows public trust greenhouse gas case to proceed in Oregon: A federal judge in Oregon rejected NAM and Obama administration arguments opposing a lawsuit filed by a group of young people seeking further government action to reduce greenhouse gases. Unless appealed, the case will now proceed to trial in an attempt to prove that the government helped cause climate change by inadequate regulation.

More Information: Juliana v. United States (U.S. District Court for the District of Oregon)
Free Speech

Federal court supports manufacturers’ First Amendment free speech rights: U.S. District Judge James L. Robart supported the NAM’s position in Microsoft v. U.S. Dep't of Justice by affirming that companies have a First Amendment right to talk to their customers and to discuss how the government may be conducting its investigations against them.  The government’s order in this matter attempted to indefinitely prevent Microsoft from speaking about government investigations, implicating Microsoft’s First Amendment rights.

More Information: Microsoft v. U.S. Dep't of Justice (U. S. District Court for the Western District of Washington)
Labor

NAM pushes back against NLRB overreach: The NAM filed a brief supporting Volkswagen in its dispute with the United Auto Workers (UAW). The UAW brought a complaint against Volkswagen for refusing to bargain with a group of maintenance employees at the automaker’s Tennessee plant. The main issue is the application of the Specialty Healthcare case, which reversed decades of precedent and established an unlawful new standard creating so-called micro-unions of a narrow class of employees.

More Information: Volkswagon Group of Aml, Inc. v United Auto Workers, Local 42 (U. S. Court of Appeals for the District of Columbia Circuit)

Business pushes back on sweeping change by Department of Labor: The NAM, along with a group of 60 business associations, filed a brief urging a federal appeals court to keep the preliminary injunction of the “overtime” rule in place. The Department of Labor failed to acknowledge that its new rule radically upends decades of regulations, consider whether the new rule would impermissibly sweep in employees who should have been exempt, and give any consideration to the business community’s legitimate interests. The new administration is evaluating the issues of this case, which arose during the Obama administration.

More Information: Nevada v. U.S. Dept. of Labor (U.S. Court of Appeals for the Fifth Circuit
OSHA

NAM buys time to undo OSHA regulation: The NAM asked for and received an extension of time to oppose the Occupational Safety and Health Administration’s (OSHA) new workplace injury and illness rule. This delay will give the new administration more time to work on reversing the rule. We also added an additional argument to our complaint to address the electronic reporting requirements. Amending the complaint, combined with the extension of time, should provide enough time for the new Department of Labor  to suspend, repeal and replace the rule altogether—which we have reason to believe they will do.

More Information: Texo ABC/AGC, Inc. v Perez (U.S. District Court for the Northern District of Texas)
Product Liablity

Court mandates duty to warn in medical device case: The Washington Supreme Court ruled against a medical device manufacturer in an appeal involving its duty to warn about risks from a robotic device used for laparoscopic surgery. The court ruled that the company has a duty to warn not only the doctor using the device, but also the hospital that bought it. The NAM had filed an amicus brief arguing that the manufacturer had only a duty to warn the physician, who was the sole learned intermediary.

More Information: Taylor v. Intuitive Surgical, Inc. (Supreme Court of Washington)
Questions or Comments?

Contact Senior Vice President & General Counsel Linda Kelly at lkelly@nam.

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