Category: Labor & Employment

2015 COLAs (Cost of Living Adjustments) for Employee Benefit Plans

Varnum LLP

The Internal Revenue Service has announced the 2015 cost of living adjustments to various limits on employee benefit plans. The adjusted amounts generally apply for plan years beginning in 2015. Some of the adjusted amounts, however, apply to calendar year 2015:

1. he limit on an employee’s contributions made during the 2015 calendar year to a 401(k) or a 403(b) tax-sheltered annuity increases to $18,000. Participants who are age 50 or older by the end of 2015 may make an additional $6,000 catch-up contribution, which also increases from the 2014 limit.

2. The limit on an employee’s contributions made during the 2015 calendar year to a 457 plan sponsored by a governmental unit or a tax-exempt organization also increases to $18,000. Participants who are age 50 or older by the end of the 2015 plan year may make an additional $6,000 catch-up contribution, which also increases from the 2014 limit.

3. The limit on an employee’s compensation that may be considered for retirement plan purposes increases to $265,000 for plan years beginning in 2015.

4. The limit on annual benefits payable under defined benefit plans remains the same at $210,000 for plan years beginning in 2015.

5. The limit on allocations to individual accounts in defined contribution plans increases to the smaller of $53,000 or 100% of compensation for plan years beginning in 2015.

6. The taxable wage base for Social Security increases to $118,500. This figure may affect the “integration level” for plans that are integrated with Social Security.

7. Employees will be classified as highly compensated employees for the plan year beginning in 2015 if their compensation in the 2014 plan year exceeded $115,000.

8. Health savings accounts (HSAs) are a means of paying health care expenses under a high deductible health care plan. To be a high deductible health care plan, the deductible must be at least a minimum amount for the year and out-of pocket expenses cannot exceed a maximum amount for the year. Contributions to an HSA may be made by the employer or the employee, but the total annual contribution amount from both sources cannot exceed the smaller of the plan’s deductible for the year or the maximum contribution amount for the year. For 2015, the adjusted amounts for HSAs are:

  • Maximum contribution: Family: $6,650 Self: $3,350
  • Minimum deductible: Family: $2,600 Self: $1,300
  • Maximum out of pocket: Family: $12,900 Self: $6,450

9. Participants who attain age 55 by the end of the 2015 plan year may make an additional $1,000 “catch-up” contribution to their HSAs.

The maximum amounts that Social Security recipients may earn during 2015 without loss of Social Security benefits are as follows:

  • Recipients ages 62 through full retirement age: $1,310/mo. ($15,720/yr.)
  • Year recipient reaches full retirement age: $3,490/mo. up to the month the recipient reaches full retirement age. ($41,880/yr.)
  • There is a special rule that applies to earnings for one year, usually the first year of retirement, in which you can get a full social security check for any whole month you are retired, regardless of your yearly earnings.
  • “Full retirement age” for Social Security is:

Year of Birth

Full Retirement Age

Prior to 1938

Age 65

1938

Age 65 & 2 months

1939

Age 65 & 4 months

1940

Age 65 & 6 months

1941

Age 65 & 8 months

1942

Age 65 & 10 months

1943 – 1954

Age 66

1955

Age 66 & 2 months

1956

Age 66 & 4 months

1957

Age 66 & 6 months

1958

Age 66 & 8 months

1959

Age 66 & 10 months

1960 and later

Age 67
© 2014 Varnum LLP

California Class Action Suit Alleges LinkedIn Violated Fair Credit Reporting Act (FCRA) By Providing Employers With Reference Reports

Allen Matkins Law Firm

Another interesting case filed in California recently highlights the myriad risks employers face when using social media as part of their hiring process.

A class action lawsuit was filed in the Central District of California against LinkedIn based on allegations that thereference reports LinkedIn generates for premium subscribers, including many employers, violate the Fair Credit Reporting Act(“FCRA”). According to the plaintiffs in Sweet, et. al. v. LinkedIn Corporation, an employer who is a premium subscriber can generate a report containing the names, locations, employment areas, current employers, and current positions of all persons in a user’s network who may have worked with a job applicant and also contact the applicant’s “references.” An employer, according to the allegations, can run such a “reference report” on a job applicant without the applicant receiving any notification whatsoever. Thus, as the complaint alleges, “any potential employer can anonymously dig into the employment history of any LinkedIn member, and make hiring and firing decisions based upon the information they gather, without the knowledge of the member, and without any safeguards in place as to the accuracy of the information that the potential employer has obtained.” The complaint claims this activity potentially violates both the FCRA’s purposes, which include safeguards as to the accuracy, fairness, and privacy of the information that a potential employer obtains, and the FCRA’s customer notification requirements.

This latest lawsuit against LinkedIn serves as another example of the complex legal issues and risks that an employer faces when using social media to make recruiting and hiring decisions.

© 2010-2014 Allen Matkins Leck Gamble Mallory & Natsis LLP
ARTICLE BY

Alexander Nestor
Nisha Verma
OF
Allen Matkins Leck Gamble Mallory & Natsis LLP

Paid Sick Leave Spreads Throughout New Jersey

Sheppard Mullin Law Firm

While the New Jersey Senate and Assembly continue to debate state-wide sick leave laws, four more New Jersey municipalities have enacted mandatory sick leave laws for private employers.  Effective January 2015, East Orange, Paterson, Irvington and Passaic will join Newark and Jersey City in requiring paid sick time for employees.

Under the recently passed ordinances of those municipalities, most employees of private employers who work a total of 80 hours or more in a covered municipality will accrue at least one hour of paid sick time for every 30 hours worked.  For employees who are exempt from the overtime requirements of the Fair Labor Standards Act, employers should assume a 40 hour workweek, unless the employee’s normal workweek is less than 40 hours.  If the exempt employee’s normal workweek is less than 40 hours, accrual may be based on the employee’s normal workweek.

Employees who work for employers with 10 or more employees in the municipality may accrue up to 40 hours of paid sick time in a calendar year, while employees who work for employers with less than 10 employees in the municipality may accrue up to 24 hours of paid sick time per calendar year, with some exceptions.  For example, home health care workers and food service workers may accrue up to 40 hours per calendar year regardless of the size of the employer.

Paid sick time accrual begins upon the effective date of the applicable ordinance and thereafter upon the date of hire.  However, accrued time may not be used until after the 90th calendar day of employment.  After 90 calendar days of employment, employees must be permitted to use accrued sick time for several reasons including:

  • To care for their own or a family member’s sickness, need for medical diagnosis, care or treatment of a sickness, or need for preventative medical care; or

  • Due to a forced closing of the employee’s place of business or to care for a child whose school or place of care has a forced closing, or to care for a family member when a health authority or a health care provider has determined that the family member’s exposure to a communicable disease would jeopardize the health of other’s in the community.

The ordinances allow an employer to require reasonable advance notice where the leave is foreseeable and as soon as practicable where it is not.  The ordinances also permit an employer to request that the employee confirm in writing that the time was used for a permissible purpose, and where the employee has been out for three or more consecutive days, the employer may request reasonable supporting documentation from a health care professional.  An employer may not, however, require that the documentation explain the nature of the illness.  To the extent any health information is disclosed, such information must be treated as confidential and only disclosed to the affected employee or with the affected employee’s permission.

Once accrued, up to 40 hours of paid sick time may be carried over into the next calendar year.  An employer may, however, elect to pay its employees for unused sick time at the end of the calendar year in lieu of carry over.  Note that even where an employee does carry over accrued paid sick time, an employer is not required to permit the employee to take more than 40 hours of paid sick time in a calendar year.  The “calendar year” may be defined by the employer as any regular consecutive 12-month period.

Employers who already have paid time off policies that provide sufficient paid time to satisfy the total annual accrual requirements of the applicable ordinance, and permit such paid time off to be used for the same purposes identified in the ordinance, are not required to provide additional paid time.  Employers should be mindful, however, that if their current policy only provides paid time off to full-time employees, either their policy should be modified to extend such paid time off to all employees who work more than 80 hours in a covered municipality or a separate policy should be implemented for part-time and temporary employees that satisfies the minimum requirements of any applicable ordinance.

While none of the ordinances require an employer to pay employees for accrued but unused sick time upon separation, if an employee is rehired within six months, any accrued but unused sick time must be reinstated.  Likewise, if an employee is transferred within the municipality the employee retains any unused sick time.

Each of the ordinances provide expansive protections against retaliation and require employers to provide individual employees with notice of their rights under the law.  Notice to individual employees must be in English and in the employee’s primary language, provided the employee’s primary language is the primary language of at least 10% of the employer’s workforce.  Employers are also required to display a poster in a conspicuous and accessible place in each covered business establishment.  In addition, employers must maintain records documenting their compliance with the applicable ordinance.

Failure to comply with these ordinances may result in fines, civil penalties, or a private action by a current or former employee.  As such, employers in the covered municipalities should familiarize themselves with the applicable ordinances and take steps to ensure compliance.

ARTICLE BY

Lisa M. Harris
OF
Sheppard, Mullin, Richter & Hampton LLP

A Guide to Dealing with Illnesses in the Workplace

Godfrey Kahn Law Firm

As a result of all of the media coverage surrounding the Ebola issues, many of our clients have wondered whether they need to do anything, as employers, to prepare for similar issues and to address related employment issues. Whether it is the Ebola virus or another virus or pandemic, the general rules for employers remain the same.

The Ebola Virus Basics

The key to contracting the Ebola virus is direct contact (through broken skin or mucous membranes in, for example, the eyes, nose or mouth) with someone who is carrying the virus.  The Centers for Disease Control and Prevention (“CDC”) has a website dedicated to understanding, preparing for and preventing the spread of the Ebola virus.  For additional information regarding the Ebola virus, including symptoms and other useful information, please visit the CDC’s website.

For employers, the key is not to panic.  Given that we are at the early stages of flu season, employers should avoid overreacting at the first sight of an employee with flu-like symptoms.  Employers concerned about particular employees should consult with legal counsel before taking any steps that may lead to liability under various employment laws (more on this below).

Important Employment Issues Each Employer Should Consider

Pandemics (whether the Ebola virus, the 2009 H1N1 virus or influenza) implicate a number of employment laws.  Employers must strike a proper balance between protecting employees from infection and operating within the confines of applicable law.

1. Consider the requirements of the Americans with Disabilities Act before requiring employees to undertake a medical examination.

The Americans with Disabilities Act (“ADA”) prohibits, among other things, medical examinations for applicants and employees.  An employer cannot require a current employee to undergo a medical examination unless the examination is job related and consistent with business necessity.  According to the Equal Employment Opportunity Commission (“EEOC”), medical examinations of an employee are job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions of his/her job will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.  “Direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. § 1630.2(r).  For additional guidance on direct threats, please see the EEOC’s website.

The EEOC’s 2009 guidance specific to the H1N1 virus sheds additional light on how employers should make direct threat assessments before requiring a medical examination.  The EEOC states that whether a pandemic virus rises to the level of a direct threat depends on the severity of the illness.  Helpful data points to determine the severity—and associated direct threat—of a virus are the warnings and guidance from government agencies such as the CDC, state health departments and other recognized authorities on illness and disease.

2. Consider the Occupational Safety and Health Act when accessing your workplace practices.

In addition to the ADA’s medical inquiry restrictions, most employers must follow the safety and health regulations dictated by the Occupational Safety and Health Administration (“OSHA”) under the Occupational Safety and Health Act (“OSH Act”).  Although OSHA does not specifically regulate Ebola or other pandemics, employers may trigger workplace safety violations under OSHA’s General Duty Clause if they do not take proper steps to protect their employees.

Employers run the risk of receiving citations under the General Duty Clause if they expose employees to a hazard that the employer could reasonably have reduced and that the employer recognized would cause or likely would cause serious physical harm to employees.  Employers in industries with a high risk of disease contamination (e.g., healthcare employers) should therefore evaluate potential hazards and determine whether they can take steps to reduce the risk of exposure to employees.

Employers should also keep in mind that an employee who reasonably refuses to report to work because of a dangerous work condition—including contracting a pandemic virus—may be protected from retaliation.

OSHA’s guidance about Ebola and pandemic influenza provides useful information for employers who want to prepare for and respond to contagious disease risks in their workplaces.

3. Employees may be entitled to leave under the Family and Medical Leave Act.

Federal and state (where applicable) family and medical leave laws (“FMLA”) complicate the web of responsibilities an employer has to navigate when it comes to dealing with ill employees.  For employers covered by these laws (generally employers with 50 or more employees under federal law), an eligible employee who has contracted the Ebola virus or another pandemic virus may qualify for leave based on a serious health condition.  Similarly, an eligible employee may qualify for leave if an eligible family member contracts a virus that qualifies as a serious health condition.

If an emergency situation prompts the need for FMLA leave, administering the leave in a lawful manner gets more complicated than under normal circumstances.  For example, it may not be practical to solicit and review medical certification forms.  In these situations, employers must have sufficient information (including the employee’s statements) that the underlying condition qualifies as a serious health condition.  Designating leave as FMLA without sufficient information establishing a serious health condition can result in a retaliation claim.  In emergency situations, employers may also need to exercise forbearance on the return of medical certification forms, particularly if an employee needs to assist a family member who is ill.  For additional FMLA guidance, please visit the United States Department of Labor website.

Steps Employers Should Take to Minimize Workplace Safety and Health Issues

As with any other workplace safety and health issues, the recent Ebola-related news has raised many questions about what employers should do when facing similar situations.  Although each employer is unique and each industry must confront different obstacles and risks, employers should, at a minimum, follow the steps outlined below.

  • Have a plan.  Consult with internal safety experts and review the guidance provided by government agencies regarding specific safety issues.  Create a plan (preferably with the assistance of legal counsel) that addresses issues specific to your workplace and your industry.

  • Communicate your plan to employees.  Your company’s protocols for dealing with safety issues should not be a secret to any of your employees.  Publicize the plan internally and ensure that employees have ready access to the plan.

  • Train your employees.  Train your employees about your company’s safety protocols on a yearly basis.  If you are concerned about a particular risk that is not usually common to your workplace or if you update your plan, provide additional training as needed to address these issues.

  • Supervise implementation of the plan.  Having a plan in place and training your employees to follow certain procedures is meaningless if no one supervises the process.  Designate individuals to review employee actions to ensure that the plan’s protocols are followed and to identify potential shortcomings of/improvements to the plan.  Whenever necessary, update your plan to ensure that it addresses all major safety risks and train employees on the changes made to the plan.

Employers that consult government and other advocacy organization websites to adopt ideas, disseminate information and prepare practices and procedures for addressing workplace safety and health issues will be in a good position to protect against unwanted legal action.

ARTICLE BY

Rufino Gaytán
OF
Godfrey & Kahn S.C.

Ebola and Potential Labor Relations Issues

Proskauer Law firm

The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers.  We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws.  In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of requirements, recommendations and guidelines for employers and workers.  The escalating concern over Ebola also raises potential labor relations issues.  Many of the workplaces with the potential for employees to come into contact with infected persons or material – health care providers, cleaning services, waste disposal firms, ambulance and other transportation services, to name a few – are unionized, and unions have begun to seek greater protections for their members.  Non-union employers may be affected as well, as at least one group of non-union employees has engaged in a strike to protest inadequate safety measures.

An important step all employers can take, whether unionized or not, is to share information disseminated by the Centers for Disease Control (CDC) and other public health agencies to educate their employees.  Indeed, a recent Washington Post article highlighted the information gap that is fueling public fears.  Sharing accurate, up to date information should help address employee concerns and avoid potential workplace disruptions based on unfounded fears.

Beyond the dissemination of information, in workplaces where employees may have some potential to come into contact with persons or material infected with the Ebola virus, employers must comply with applicable workplace health and safety laws and regulations, including making sure that effective protocols are in place, that protective equipment and clothing are available, and that employees receive appropriate training.  Not surprisingly, healthcare workers – nurses in particular – have been at the forefront in demanding increased protection and training.

National Nurses United (NNU) has been especially outspoken.  In addition to its criticism of the Texas Health Presbyterian Hospital, where two nurses caring for an Ebola patient became infected themselves, it has launched a multi-pronged campaign to achieve increased training and protection for nurses who may be called upon to treat Ebola patients.  As part of their campaign, they have released an Ebola Toolkit that includes a guide to state and federal whistleblower laws and a comprehensive set of collective bargaining demands.  Their demands include detailed proposals for Ebola-specific protocols, training and protective equipment, creation of a joint labor-management infectious disease task force, medical services for exposed or potentially exposed employees, and full paid time off for nurses exposed to an infectious disease.  Healthcare employers should expect to be presented with comparable demands from the unions representing their employees, if they have not done so already.

Other unions are engaging in similar activities.  As the largest union in the U.S. representing healthcare workers, cleaners, and other service employees who could potentially come into contact with a person or material infected by Ebola, the SEIU has been particularly active.  Its public efforts to date have been focused largely on educating union members and training them to use protective equipment.

In addition to union advocacy and education, there has been at least one work stoppage arising from employees’ Ebola concerns.  At LaGuardia airport, a group of more than 200 non-union aircraft cabin cleaners recently engaged in a one-day strike to protest what they claimed were inadequate protections from exposure to Ebola.  In that case, the SEIU is attempting to organize the striking cleaners, but regardless of whether non-union employees are seeking union representation, they have the right under the National Labor Relations Act to engage in concerted activity for their mutual aid and protection, such as a strike to protest working conditions related to Ebola risks.

Education and communication are critical to addressing employees’ Ebola-related concerns and avoiding workplace disruptions based on unfounded fears.  In unionized workplaces, union representatives should be included in the education and communication process. Of course, all employers must comply with applicable workplace safety and health laws and regulations.  Depending upon the circumstances, unionized employers may have bargaining obligations with respect to additional measures they seek to implement in response to Ebola concerns.  They may also be faced with bargaining demands by employees seeking greater protection.  Finally, it is important for non-union employers to understand that their employees also have the right to act in concert for their mutual aid or protection.

ARTICLE BY

Scott Faust
OF
Proskauer Rose LLP

EEOC Sues Florida and Michigan Companies for Transgender Discrimination

McBrayer NEW logo 1-10-13

The Equal Employment Opportunity Commission (“EEOC”) has just filed suit against two companies for alleged discrimination against transgendered employees. The suits were filed separately in Florida and Michigan, against Lakeland Eye Clinic and G.R. Harris Funeral Homes, Inc., respectively. In both cases, employees alleged that they were fired after they disclosed they were undergoing gender transitions.

Title VII does not specifically protect against transgendered persons. In 2012, however, in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the EEOC ruled that employment discrimination against employees because they are transgender, because of gender identity, and/or because they have transitioned (or intend to transition) is discrimination based on sex, and thus violates Title VII.

The EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as one of their top enforcement priorities in its 2012 Strategic Enforcement Plan. Thus, these suits should not be surprising. Earlier this year, President Obama also issued an Executive Order prohibiting federal contractors from discrimination against lesbian, gay, bisexual and transgender workers.

In light of the recent emphasis on the protection of these individuals, employers should take extra precautions to ensure that no discriminatory practices are in force in the workplace. Further, all adverse employment decisions should be properly documented and managers and supervisors should be properly trained about what to do should a discrimination-related issue arises.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.
ARTICLE BY

Benjamin L. Riddle
OF
McBrayer, McGinnis, Leslie and Kirkland, PLLC

U.S. Supreme Court Declines to Hear Wisconsin’s Same-Sex Marriage Case: How Does This Affect the Administration of an Employer’s Employee Benefits?

Michael Best Logo

On Monday, October 6, 2014, the U.S. Supreme Court denied certiorari in Wolfe v. Walker. As employers will recall, in June 2014, U.S. District Court Judge Crabb found that Wisconsin’s 2006 constitutional amendment barring recognition of same-sex marriages violated the equal protection clause of the U.S. Constitution. In September 2014, the Seventh Circuit affirmed that decision. The Supreme Court’s action means that Judge Crabb’s decision stands.

What Is the Effect of the Supreme Court’s Ruling? Hereafter, Wisconsin and its respective governmental subdivisions must issue same-sex marriage licenses and must recognize same-sex marriages, whether formed in Wisconsin or in other jurisdictions. Moreover, the ruling affects employer-provided employee benefits.

Eligibility for Health Plan Coverage. The ruling has different implications depending upon the type of health plan at issue. For ERISA plans, there is some uncertainty regarding how this will play out moving forward because of ERISA preemption. Following the 2013 U.S. Supreme Court decision in United States v. Windsor, the Department of Labor announced in guidance that it would interpret the terms “spouse” and “marriage” to include same-sex marriages valid in the state of celebration. However, since it appears that neither Windsor nor Wolf nor the DOL guidance addresses private discrimination or imposes an obligation on employers to provide same-sex benefits, ERISA may still preempt a state discrimination law.

There is an additional nuance under state insurance laws. The Department of Health and Human Services (HHS) has mandated that health insurance issuers providing policies that cover spouses ensure that same-sex spouse coverage is also available to consumers. The guidance HHS provided, however, does not mandate that employers obtaining that coverage actually offer the benefit. It is unclear how this will play out under state insurance law (which applies to insured ERISA plans) and further guidance from the state is required.

For plans that are not subject to ERISA, the preemption argument disappears. Thus, such non-ERISA plans failing to offer such coverage may now violate Wisconsin’s Fair Employment Act, which prohibits discrimination on the basis of sexual orientation and marital status. Even so, those plans that are exempt from ERISA because they constitute “church plans” may be able to assert a religious exemption from discrimination rules.

Employers contemplating providing only opposite-sex spousal benefits should be in close contact with their legal counsel regarding the risks associated with such a decision. Further, it will be very important to ensure that “spouse” is defined with precision in the plan materials.

Imputed Income. Previously, the Wisconsin Tax Code treated employer-provided coverage for same-sex spouses of employees as taxable income and Wisconsin employers were required to treat such coverage as imputed income for Wisconsin withholding purposes. Now that Judge Crabb’s decision has been permitted to stand, Wisconsin employers must stop imputing income for state tax purposes to employees who receive coverage for same-sex spouses (and certain dependents). Employers will also need to pay attention to how the Wisconsin Department of Revenue addresses the taxation of income that was previously imputed; that is, how employees and employers might recover excess amounts withheld by the state government based upon imputed income in prior months and years.

Note, nothing has changed as it relates to domestic partners benefits – employees are still subject to imputed income where the employee obtains coverage on behalf of his or her domestic partner.

Family and Medical Leave. As we advised in a June client alert, family and medical leave under the state law is largely unaffected by this decision because domestic partner coverage was already contemplated by the state law and same-sex spouses were deemed domestic partners for such purposes.

On a federal level, this decision accelerates the effective date of proposed regulations issued earlier this year by the U.S. Department of Labor in response to Windsor. Earlier this year, the Department of Labor issued proposed regulations to change the FMLA’s definition of spouse from an individual who is recognized as a spouse under the state law in the place of the employee’s residence to an individual who is considered legally married to the employee based upon the laws of the state of celebration. These regulations are not yet finalized. Nevertheless, the Supreme Court’s decision means that even under the current regulations Wisconsin same-sex married couples will be considered spouses for purposes of FMLA administration.

What should employers do now?

  • Account for those same-sex couples who may have been married in a state that permitted same-sex marriage or who are newly married in Wisconsin;

  • Determine if modification of benefit plan materials may be necessary;

  • Determine the appropriateness of a special enrollment opportunity to couples married in other jurisdictions prior to the Supreme Court’s ruling who would not otherwise be eligible for a HIPAA special enrollment opportunity based upon the date of the wedding; and

  • Determine if modification of FMLA policy/forms is warranted based upon the changes.

© MICHAEL BEST & FRIEDRICH LLP
ARTICLE BY

Charles P. Stevens
OF
Michael Best & Friedrich LLP

Department of State Releases November 2014 Visa Bulletin

Morgan Lewis

The bulletin shows slight forward movement in all employment-based preference categories, with the exception of the EB-2 India category, which will remain unchanged.

The U.S. Department of State (DOS) has released its November 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the November 2014 Visa Bulletin Say?

The November Visa Bulletin shows retrogression of more than four years in the cutoff date for the EB-2 India category.

The cutoff date for F2A applicants from all countries will advance slightly in October.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will retrogress by more than four years to February 15, 2005.The cutoff date for applicants in the EB-2 category chargeable to China will advance by 23 days to December 8, 2009. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by seven days to November 22, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by nine months to January 1, 2010, once again moving ahead of the cutoff date for EB-2 China. The cutoff date for applicants in the EB-3 category chargeable to the Philippines, Mexico, and the worldwide category will advance by eight months to June 1, 2012.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: January 1, 2010 (forward movement of 275 days)
India: November 22, 2003 (forward movement of 7 days)
Mexico: June 1, 2012 (forward movement of 244 days)
Philippines: June 1, 2012 (forward movement of 244 days)
Rest of the World: June 1, 2012 (forward movement of 244 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The November Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through November 2014.

China

The October Visa Bulletin indicated a cutoff date of November 15, 2009 for EB-2 applicants chargeable to China. The November Visa Bulletin indicates a cutoff date of December 8, 2009, reflecting forward movement of 23 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to December 8, 2009 may file AOS applications or have applications approved in November 2014.

India

Throughout September and October, the cutoff date for EB-2 applicants chargeable to India was May 1, 2009. The November Visa Bulletin indicates a cutoff date of February 15, 2005, reflecting a retrogression of more than four years. This means that only applicants in the EB-2 category chargeable to India with a priority date prior to February 15, 2005 may file AOS applications or have applications approved in November 2014.

The cutoff date in the EB-2 India category had advanced rapidly in recent months through the use of “otherwise unused” employment-based visa numbers prescribed by section 202(a)(5) of the Immigration and Nationality Act. The DOS’s Visa Office had warned that continued forward movement of this cutoff date could not be guaranteed and that increased demand in this category would require the retrogression of the cutoff date in order to hold number use within the fiscal year 2015 annual limit.

Developments Affecting the EB-3 Employment-Based Category

China

The October Visa Bulletin indicated a cutoff date of April 1, 2009 for EB-3 applicants chargeable to China. The November Visa Bulletin indicates a cutoff date of January 1, 2010, reflecting forward movement of 275 days. This means that applicants in the EB-3 category chargeable to China with a priority date prior to January 1, 2010 may file AOS applications or have applications approved in November 2014.

India

The October Visa Bulletin indicated a cutoff date of November 15, 2003 for EB-3 applicants chargeable to India. The November Visa Bulletin indicates a cutoff date of November 22, 2003, reflecting forward movement of seven days. This means that EB-3 applicants chargeable to India with a priority date prior to November 22, 2003 may file AOS applications or have applications approved in November 2014.

Rest of the World

The October Visa Bulletin indicated a cutoff date of October 1, 2011 for EB-3 applicants chargeable to the worldwide category. The November Visa Bulletin indicates a cutoff date of June 1, 2012, reflecting forward movement of 244 days. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to June 1, 2012 may file AOS applications or have applications approved in November 2014.

Developments Affecting the F2A Family-Sponsored Category

The October Visa Bulletin indicated a cutoff date of July 22, 2012 for F2A applicants from Mexico. The November Visa Bulletin indicates a cutoff date of September 22, 2012, reflecting forward movement of 62 days. This means that applicants from Mexico with a priority date prior to September 22, 2012 will be able to file AOS applications or have applications approved in November 2014.

The October Visa Bulletin indicated a cutoff date of February 1, 2013 for F2A applicants from all other countries. The November Visa Bulletin indicates a cutoff date of March 1, 2013, reflecting forward movement of 28 days. This means that F2A applicants from all other countries with a priority date prior to March 1, 2013 will be able to file AOS applications or have applications approved in November 2014.

Developments in the Coming Months

The DOS Visa Office predicts the following movement in the next three months:

F2A Family-Sponsored Category

  • The cutoff date in the F2A category will likely advance by three to five weeks per month.

Employment-Based Second Preference Category

  • The worldwide category will likely remain current.

  • The cutoff date in the EB-2 China category will likely advance by three to five weeks per month.

  • The cutoff date in the EB-2 India category will likely remain unchanged.

Employment-Based Third Preference Category

  • The cutoff date in the EB-3 worldwide category will continue to advance rapidly for the next several months. Demand is expected to increase significantly, at which point, the cutoff dates will be adjusted accordingly.

  • The cutoff date in the EB-3 China category is expected to advance rapidly in the next few months. Demand is expected to increase and may result in adjustments to the cutoff date by February 2015.

  • The cutoff date in the EB-3 India category will advance little, if at all.

  • The cutoff date in the EB-3 Mexico category will remain at the worldwide date.

  • The cutoff date in the EB-3 Philippines category will remain at the worldwide date. Increased demand in this category may result in adjustments to the cutoff date later in the fiscal year.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the November 2014 Visa Bulletin in its entirety, please visit the DOS website.

Copyright © 2014 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

November Visa Bulletin Confirms Fears of Significant Retrogression for EB-2 India

Greenberg Traurig Law firm

The Department of State released its November Visa Bulletin today. It is a mixture of good news and really bad news. The good news is that the EB-2 and EB-3 categories for all countries, except for India, continue to experience forward movement. Worldwide, EB-2 availability remains current and EB-3 availability advanced to June 1, 2012. China also experienced forward movement, with EB-2 advancing to December 8, 2009, and EB-3 advancing to January 1, 2010.

The really bad news in the Visa Bulletin relates to visa availability for India. As expected, EB-2 availability for India retrogressed by more than four years, from May 1, 2009, to February 15, 2005. EB-3, however, advanced by one week to November 22, 2003.

The Visa Bulletin also contains projections for future months. Visa availability in the EB-1 (all countries) and EB-2 (worldwide) categories are expected to remain current over the coming months. EB-3 worldwide availability is expected to experience rapid forward movement for the next several months. For China, EB-2 availability is projected to increase by three to five weeks per month, and rapid forward movement is also expected in the EB-3 category, with potential retrogression in February. India is not expected to have any forward movement in the EB-2 or EB-3 categories.

In short, individuals from India face a bleak outlook in green card availability over the next few months, while the future is brighter for individuals from all other countries.

EB   Category

Worldwide

China

India

EB-1

Current

Current

Current

EB-2

Current

12/08/2009

02/15/2005

EB-3

06/01/2012

01/01/2010

11/22/2003
©2014 Greenberg Traurig, LLP. All rights reserved.
ARTICLE BY

Scott T. Decker
OF
Greenberg Traurig, LLP

California Law Protects Unpaid Interns and Volunteers from Harassment and Discrimination

Jackson Lewis Law firm

California has become the third state in the country, after New York and Oregon, to ban sexual harassment and discrimination in the workplace directed toward unpaid interns.

The new law (AB 1443) extends workplace harassment and discrimination protections under the California Fair Employment and Housing Act (“FEHA”) to unpaid interns, volunteers, and individuals in apprenticeship training programs. It will go into effect January 1, 2015.

The new law amends current law (Government Code section 12940(c) and (j)) to make it an unlawful employment practice to discriminate against or to harass an unpaid intern or volunteer on the basis of any legally protected classification unless an exception applies, such as a bona fide occupational qualification.

The following classifications are protected in California: race, religious creed, religious observance, color, age, sex, sexual orientation, gender identity, gender expression, national origin, ancestry, marital status, medical condition as defined by applicable state law, disability, genetic information, military service, military and veteran status, pregnancy, childbirth and related medical conditions. Employers should consider reviewing their policies for compliance with the recent changes in California law.

ARTICLE BY

Jonathan A. Siegel
OF
Jackson Lewis P.C.