I am looking forward to participating in the Labor & Employment panel as part of the Pub K Annual Review 2022. I will be presenting with Nichole Atallah (PilieroMazza PLLC), Howard Wolf-Rodda (Abrahams Wolf-Rodda) and Michael Schrier (Husch Blackwell). Our panel will take place on Monday, January 24, 2022 at 3:00 p.m. EST and highlights will include:

  • The status of the vaccine mandates applicable to government contractors.
  • The increased minimum wage for government contractors.
  • The return of the non-displacement of qualified workers under service contracts requirement.
  • OFCCP trends and new certification requirements.

The Pub K Annual Review 2022 offers many panels over their four-day conference taking place January 24-27, 2022. There is no charge to attend, but registration is required. For additional information and to register, please click here.

I am looking forward to presenting a session titled “Intellectual Property” for the Oak Ridge Small Business Innovation Conference on January 25, 2022 at 12:30 p.m. EDT. The conference is hosted by the UT Center for Industrial Services, Institute for Public Service. Conference highlights include:

  • Tips regarding proposal strategies for SBIR/STTR funding
  • Understanding how to find research and development opportunities
  • Hear from early stage investors about commercializing technology
  • Learn how to leverage research capabilities with Federal partners
  • Learn from a legal expert on how to handle intellectual property
  • Connect with Department of Energy and Department of Defense SBIR/STTR program experts

For more information and to register, please click here.

On December 23, 2021, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and TD Bank, N.A. (TD) reached a settlement to resolve TD’s violations of the North Korea Sanctions Regulations and the Foreign Narcotics Kingpin Sanctions Regulations.  On January 12, OFAC and Sojitz Hong Kong (Sojitz HK) reached a settlement agreement in connection with Sojitz’s violations of the Iranian Transaction and Sanction Regulations (ITSR).  These two resolutions, reached only a few weeks apart, serve as a reminder of OFAC’s broad remit to administer and enforce U.S. sanctions regulations.

TD Bank Violated North Korea and Narcotics Kingpin Sanctions

The United States maintains comprehensive sanctions on North Korea, and most transactions with the country and nationals of the country, wherever located, are prohibited without a license.  While a license authorizes banks in the United States to conduct certain transactions with the North Korean Mission to the United Nations, that license does not extend to maintaining accounts for employees of the North Korean Mission.

According to OFAC, TD processed 1,479 transactions and maintained nine accounts on behalf of five employees of the North Korean Mission without a license from OFAC.  OFAC noted that TD’s sanctions screening did not pick up individual employees of the government of North Korea.  OFAC also noted that TD employees apparently misclassified North Korean Mission personnel when processing passports by filling in the South Korean country code or leaving the citizenship identification field blank.

Continue Reading OFAC Enforcement Update: Settlements Show Value of Internal Controls, Disclosure

I am looking forward to presenting at the 11th Annual U.S. Export & Re-Export Compliance for Canadian Operations Virtual Conference. The conference will take place January 26-27, 2022 with pre-conference workshops on January 25, 2022. I will be presenting with John Boscariol, Partner at McCarthy Tétrault LLP based in Toronto, Canada.

Our session, “Updating Your Risk-Based Economic Sanctions Compliance Program: The Latest U.S. and Canadian Restrictions, and Their Practical Impact,” will take you through the most critical economic sanctions developments and trends affecting exports and reexports. The discussion will focus on new, unanticipated pitfalls to avoid for 2022 and beyond.

  • Comparing and contrasting U.S. and Canadian sanctions-and their practical impact on export and reexport operations
  • The rapidly changing China landscape, and the impact on due diligence and supply chain risks
  • Impact of the PRC’s Foreign Anti-Sanctions Regulation and the new Blocking Statute
  • Performing due diligence amid the increased use of The Entity List
  • Iran: Status report and negotiations with Iran and what is on the horizon

Continue Reading [VIRTUAL EVENT] Updating Your Risk-Based Economic Sanctions Compliance Program: The Latest U.S. and Canadian Restrictions, and Their Practical Impact

On December 8, 2021, President Biden issued Executive Order (EO) 14057 “Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability.” The EO is the administration’s most recent effort to achieve “a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide by no later than 2050.”

Federal agencies, government suppliers, and American businesses are urged to embrace the administration’s sustainability objectives and attain cleaner and more sustainable operation standards.

Federal Sustainability Plan

The EO describes the Biden administration’s efforts to adopt green technology by focusing on five aspects.

Continue Reading Biden’s “Clean Energy” Directive’s Impact on Government Contractors

As the legal battles over the Biden administrations vaccine mandate for federal contractors continue, I authored an article for Law360 published on December 22, 2021 discussing significant rulings limiting the mandate’s enforcement in matters brought by multiple states.

After the U.S. District Court for the Eastern District of Kentucky ruled on November 30 to prohibit enforcement of the mandate against contractors and subcontractors in Kentucky, Ohio and Tennessee, the U.S. District Court for the Middle District of Georgia issued an injunction on December 7 prohibiting such enforcement nationwide. On December 16, the U.S. District Court for the Western District of Louisiana issued a third injunction prohibiting enforcement of the mandate, which was limited to the plaintiff states.

In addition to detailing the arguments and legal considerations weighed by the court in each case, I offered insight on what contractors can do now as additional cases are heard around the country, particularly as related matters head for January 7 oral arguments at the U.S. Supreme Court (announced shortly after Law360 published my article).

Continue Reading Injunctions May Only Pause the Government Contractor Vaccine Mandate

In an article for Business Weekly Taiwan, I discussed the impact on Taiwan companies amid rising tensions between the United States and China. The U.S. Department of Commerce recently added China-based tech company Hunan Goke Microelectronics to the Entity List, one of the U.S. government lists that impose various levels of trade, travel, asset, and financial restrictions on overseas companies to help protect U.S. national security. Adding China-based companies to the Entity List or another restrictive trade list, often negatively impacts Taiwan companies who rely on trade with China.

As I recommend to Taiwan companies, it’s important to know your customer – it’s important to research fully to know the supply chain and end users of your products. I note that companies in China and anywhere, including the U.S., put a lot of their businesses on the website so you can see the types of activities that they’re engaged in. Company websites are a good starting point for researching companies and exercising due diligence.

Continue Reading Impact on Taiwanese Companies Amid Trade Situation between United States and China

UPDATE: On the evening of December 22, the Supreme Court announced that Justice Kavanaugh has referred the applications for an emergency stay of the OSHA ETS to the full court, those applications have been consolidated, and consideration of those applications has been deferred pending oral argument scheduled for January 7, 2022.

On January 7, the Supreme Court will also hear the oral argument regarding the application by the Department of Justice for a stay of the injunction issued by the District Court for the Western District of Louisiana of the CMS vaccine mandate. That application, which was submitted to Justice Alito, who is responsible for emergency applications from the Fifth Circuit, was also referred to the full Court.  

In addition, on December 22, the District Court for the Middle District of Florida granted Florida’s request for a preliminary injunction of the government contractor mandate. This is the fifth injunction of that mandate, with four of the five courts finding that the president exceeded his authority under the Federal Property and Administrative Services Act. The parties have been given until December 29 to propose a preliminary injunction consistent with the order.

Finally, as of December 23, it does not appear that DOJ has sought an emergency stay of the injunctions of the government contractor vaccine mandate from the Supreme Court.

Continue Reading If the Government Contractor Vaccine Mandate Doesn’t Get You, the OSHA ETS Might

A 2016 Government Accountability Office (GAO) report noted that the Office of Federal Contract Compliance Programs (OFCCP) did not have an official method of validating contractors’ affirmative action plans or programs (AAP) compliance. GAO recommended that OFCCP progress from an “honors” or self-representation system to a mechanism that regularly monitors AAP compliance. In September 2020, OFCCP published a notice seeking comment on the possibility of an annual AAP certification and verification process.

On December 2, 2021, the U.S. Department of Labor (DOL) announced that federal service and supply contractors and subcontractors presently required to create and maintain written AAPs will also be required to certify whether they meet annual AAP requirements. Certification will be through a secure online Contractor Portal developed and monitored by OFCCP. Contractors can also upload their AAPs to the portal during a compliance evaluation. Certifying compliance in the Contractor Portal does not exempt a contractor or subcontractor from compliance evaluations. Contractors and subcontractors that are only construction and not supply and service contractors are not required to certify AAP compliance.

Continue Reading OFCCP’s New Affirmative Action Program Oversight Tool

On December 16, in the challenge filed by Louisiana, Mississippi, and Indiana to the federal contractor vaccine mandate, the Western District of Louisiana (WD of LA) granted the plaintiff’s motion for a preliminary injunction (PI) with respect to “contracts, grants, or any other like agreement by any other name between the Plaintiff States and the national government.”  However, the ruling denied the motion for a PI to the extent it sought to enjoin the application of EO 14042 against contracts between private contractors and the government.

WD of LA Splits from the Other Districts on Key Contractor Vaccine Mandate Issues

Interestingly, unlike the Eastern District of Kentucky (ED of KY) and Southern District of Georgia (SD of GA), the WD of LA concluded that “a reasonably sufficient nexus can exist between EO 14042 and the government’s policy under [the Federal Property and Administrative Services Act] to procure and manage properties and services in an economical and efficient manner.”  Instead, the WD of LA concluded that the EO is unlawful because it conflicts with the Tenth Amendment.

Continue Reading A Third Court Enjoins the Federal Contractor Vaccine Mandate