Category: Labor & Employment

State Voting Leave Requirements: A Refresher in Preparation for the 2022 Midterm Elections

Millions of workers across the United States will be headed to the polls on Tuesday, November 8, 2022, for the midterm elections. With control of Congress up for grabs for the final two years of President Joe Biden’s first term, several close Senate races, five states considering ballot measures to legalize recreational marijuana, and 36 states holding elections for governor, this midterm election is one of the most highly-anticipated in decades. Early voting numbers in some states already suggest there could be record turnout.

Despite the proliferation of early and mail-in voting, increased interest in this election could drive more employees to request time off from work to vote. Most states require employers to provide at least unpaid leave from work when polls are not open for a reasonable amount of time outside of employees’ work hours. Here is an overview of voting leave requirements across the United States to help employers prepare for Election Day.

States Without Specific Voting Time Off Requirements

Several states do not require employers to provide any specific leave to allow employees to vote. These include Delaware, Florida, Hawaii, Idaho, Indiana, Louisiana, Maine, Michigan, Montana, New Hampshire, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, and Virginia.

While not requiring leave, some of those states more generally protect employees’ rights to vote or participate in politics more generally. For instance, Florida and Mississippi prevent employers from discharging an employee for voting or based on how they voted. Similarly, in Idaho and Michigan, employers may not attempt to influence an employee’s vote by discharging or threatening to discharge an employee from employment.

Delaware and New Jersey prohibit employers from intimidating employees into how to vote or not to vote, and Pennsylvania prohibits employers from interfering with an employee’s right to vote. Louisiana requires that employers with 20 or more employees not make any rule that prohibits an employee from participating in politics. In North Dakota, employers are encouraged, but not required, to allow employees to take leave to vote in all elections when employees’ regular work schedules conflict with the time the polls are open.

Finally, Washington and Hawaii do not have specific voting leave laws, but both conduct elections by mail, eliminating the need to take leave to wait at the polls. Hawaii repealed a prior law providing for up to two hours of voting leave when it switched to vote-by-mail for all statewide elections with the 2020 primary election.

Voting Leave Laws Map

States With Unpaid Voting Leave Laws

Several states require employers to provide employees with some amount of unpaid leave to allow them to vote. Connecticut joined this list of states in June 2021, requiring employers to provide all employees with two hours of unpaid leave to vote in a covered election, though employees must provide the employer notice of the need to take the time off at least two days prior to the election. However, the law is set to sunset on June 30, 2024.

Arkansas and Ohio generally require employees to allow employees to take a reasonable amount of time off, unpaid, to vote on Election Day. In Alabama, employees are allowed to take up to one hour of leave to vote in primary and general elections if the polls are not open at least two hours before or one hour after an employee’s work shift.

In Georgia, employers must give employees “necessary” time off to vote when employees provide reasonable notice of the need for the leave, however, employers are not required to provide time off for employees who have at least two hours before or after their work shift when polls are open to vote. In Massachusetts, unpaid voting leave applies only to employees working in manufacturing, mechanical, or mercantile establishments, and employers are not required to pay for this leave. Further, employees may only request leave for the first two hours after the polls are open.

Some states provide more than two hours of leave for employees to vote, though employers are not required to pay for it. In Wisconsin, employers must allow employees to take up to three consecutive hours of unpaid leave to vote. Employers may not deny a request for this leave, but may designate the specific time of the absence. Kentucky provides the most time for voting leave, requiring employers to allow employees to take unpaid leave for a reasonable time, but not less than four hours, to vote or apply for an absentee ballot. Still, employees must request leave in advance and specify the hours to be used.

States With Paid Voting Leave Laws

Employers in a number of states are required to provide paid time off for employees to vote, at least in circumstances where polls are not open outside of an employee’s regular work hours. Alaska requires employers to allow employees who do not have two consecutive nonworking hours while the polls are open to take off as much work time as necessary to vote “without loss of pay.” Similarly, in Texas, employers must allow employees to take paid time off to vote, unless the polls are not open for two consecutive hours outside of an employee’s working hours.

In Minnesota, employees must have “the time necessary” to go to their designated polling place and return to work on Election Day. In Nevada, employees may request “sufficient” leave time to vote on Election Day, which is determined by the distance of the polling place from the employee’s workplace (1 hour for up to 2 miles; 2 hours for greater than 2 and up to 10 miles; and 3 hours for more than 10 miles). Wyoming requires employers to provide for one hour of leave other than a meal break to vote in a general, primary, or special congressional election unless polls are open for at least three consecutive hours outside of an employee’s work shift.

Many states provide for up to two paid hours of leave for voting. These include: California, Colorado, District of Columbia, Illinois, Iowa, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, South Dakota, and Utah. Iowa, in 2021, reduced the paid leave from three hours to two. On the other hand, D.C. joined the states providing for up to two hours of paid leave for voting in October 2020. The D.C. law further requires employers to post a “Time Off to Vote” notice in a conspicuous location in the workplace. In New York, employers must give employees two hours of paid leave if employees do not have at least four consecutive nonworking hours to vote while polls are open. New Mexico’s leave law includes elections for Native American nations, tribes, or pueblos.

A handful of states provide for up to three hours of paid leave to vote if necessary, including Arizona, Missouri, Tennessee, and West Virginia. These states require employees provide notice of the need for leave prior to Election Day.

Employers may want to prepare for employees to take the leave time afforded by these laws to vote in the November elections.

Article By Ashley Prickett Cuttino and Zachary V. Zagger of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more election law and legislative news, click here to visit the National Law Review.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

The Evolving New York City Workplace: Two Important Updates Effective November 1st

Two important measures impacting New York City employers will be effective on November 1, 2022. The first measure is Mayor Adams’ lifting of the COVID-19 vaccine requirement for private employers, which was implemented by his predecessor Mayor de Blasio shortly before he left office. The second measure is New York City’s new “pay transparency” law, which continues the city’s aggressive efforts to eradicate pay disparity and requires employers to immediately review and update their hiring practices.

Vaccine Mandate Lifted

The New York City COVID-19 vaccine mandate, which became effective on December 27, 2021, mandated all New York City private employers to require that all in-person employees be vaccinated against COVID-19, subject only to approved religious and medical exemptions. Effective November 1, 2022, this vaccine mandate will be lifted.

Going forward, New York City employers retain the right to implement their own vaccination policies. New York City employers may lift the requirement and allow employees who are not vaccinated to return to work on site. Alternately, employers may continue to require the COVID-19 vaccine for in-person staff, in which case such employer mandatory vaccination policies must still provide for medical or religious exemptions consistent with applicable laws.

Pay Transparency

Following a recent national trend, New York City continues to aggressively regulate pay equity by amending the New York City Human Rights Law (“NYCHRL”) to implement “pay transparency” requirements. The law also contains an anti-retaliation provision. The New York City pay transparency law applies to employers with four or more employees (or one or more domestic workers) and employment agencies of any size. The new law does not apply to temporary help firms seeking applicants to join their pool of available workers.

Going forward, covered entities must include the minimum and maximum annual base salary or hourly range of compensation that the employer believes in good faith to be accurate at the time in any advertisement for a job, promotion or transfer opportunity that can or will be performed, in whole or part, in New York City.  While the statutory language is sparse, and regulations have not yet been issued, according to a Fact Sheet published by the New York City Commission on Human Rights (“Commission”) (https://f.datasrvr.com/fr1/622/87383/Salary-Transparency-Factsheet.pdf?cbcachex=897118), an “advertisement” is defined broadly as a written description of an available job, promotion or transfer opportunity that is publicized to a pool of potential applicants, regardless of the medium, and includes postings on internal bulletin boards, internet advertisements, printed flyers at job fairs and newspaper advertisements. The requirement applies when advertising for full-time or part-time employees, interns, domestic workers or independent contractors. The law does not prohibit employers from hiring without using an advertisement or require employers to create an advertisement in order to hire.

According to the Fact Sheet, employers must include both a minimum and maximum salary, and the salary range cannot be open-ended. However, note that “salary” does not include other forms of compensation or benefits offered, including overtime, commissions, tips, bonuses or stock. For example, “$15 per hour and up” or “maximum $50,000 per year” would not be consistent with the new New York City requirements. Further, an advertisement that solely provides that a salary will be commensurate “with experience” also would appear to be inconsistent with the new law.

The Commission investigates complaints of discrimination, as well as the new salary transparency protections. Employers and employment agencies who are found to have violated the NYCHRL may have to pay monetary damages to affected employees, amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants and engage in other forms of affirmative relief. According to the Fact Sheet, the Commission will not assess a civil penalty for the first complaint alleging violation of the salary transparency provision, provided that the employer shows that it has fixed the violation within 30 days.

Notably, New York State lawmakers have also passed a similar pay transparency bill, which is currently pending Governor Hochul’s signature and would go into effect 270 days after it is signed into law. The New York State bill, if it is enacted in its current form, will be potentially broader in its application, such as requiring provision of a job description for the position, if one exists.

It is also important to note that prior recent measures adopted by New York State and/or New York City to ensure non-discriminatory hiring practices and equal employment opportunities include regulations prohibiting employers from asking candidates about their prior salary history, pay equity provisions requiring equal pay for the same or substantially similar work, and stringent limitations on criminal history inquiries.

Takeaways

New York City continues to be at the forefront of enacting employment legislation to protect the rights of employees and applicants. It is critical for New York City employers to be vigilant to ensure compliance with the ever-changing legal requirements, including those relating to COVID-19, and to implement appropriate policies and practices.

With regard to the new pay transparency law, it is important for employers to promptly assess their pay practices, ensure that pay ranges are appropriate and equitable, consider documenting the applicable factors that were considered in reaching the salary decision, review job descriptions and ensure that advertising complies with the new requirements (including online recruitment sites).

For more Labor and Employment Law news, click here to visit the National Law Review.

© Copyright 2022 Sills Cummis & Gross P.C.

Employers, It’s Time to Replace Your Mandatory EEOC Poster

On October 20, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released an updated version of its mandatory workplace poster that informs employees of their rights and protections.

Employers must post this new version of the poster in their office spaces as soon as practicable.

The latest “Know Your Rights” flyer, which replaces the previous “EEO is Law” poster, must be displayed in all workplaces covered by the agency’s jurisdiction. This includes private sector businesses with 15 or more employees, as well as state and local government agencies, educational institutions, unions, and staffing agencies.

What’s Changed?

The new poster includes several updates from the older version. Some of the main changes are:

  • Clarification that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity;
  • Identifies harassment as a prohibited form of discrimination;
  • Provides information about equal pay discrimination for federal contractors; and
  • Uses more straightforward language and formatting.

The poster also includes a QR code for employees with a smartphone or other compatible devices to quickly access the EEOC’s website on how to file a charge of employment discrimination.

What’s Remained the Same?

While the poster has been updated, some of the information included remains the same. The bulletin still outlines the types of discrimination that are prohibited by federal law, such as:

  • Race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, religion,
  • Age (40 and older),
  • Equal pay,
  • Disability,
  • Genetic information (including family medical history or genetic tests or services), and includes
  • Retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding.

Actions Employers Should Take

Employers who fail to post the new Know Your Rights poster could face noncompliance penalties from the EEOC. Therefore, businesses must take the time to update their posters as soon as possible.

On October 25, 2022, the EEOC distributed an FAQ stating that employers should remove the old poster and display the new one “within a reasonable amount of time” but did not provide a specific deadline.

The agency recommends that employers post the new flyer in a conspicuous place where employees will see it, such as in a break room or near the time clock.  Covered employers should also consider posting an online notice on their website for remote or hybrid workers.

You can download a copy of the poster here.

Article By Emily G. Massey and Ward and Smith, P.A.

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 Ward and Smith, P.A.. All Rights Reserved.

Love and Basketball … and Romantic Workplace Relationships? Key Takeaways for Employers from the Boston Celtics’ Recent Suspension of its Head Coach

The Boston Celtics recently suspended its head coach Ime Udoka for the entire 2022-2023 season and although the team did not disclose whether the suspension will be paid or unpaid, it noted that he will be subject to a “significant financial penalty” as a result of multiple unspecified violations of the organization’s policies stemming from Udoka’s conduct towards a female member of the organization.

Originally believed to have been a consensual relationship, it was subsequently reported that the female staff member accused Udoka of making unwanted advances, including inappropriate comments towards the staff member.  In response, the Celtics organization acted quickly and launched an internal investigation, which found “a volume of violations” of various policies.  Please note, it is unknown as to whether the Celtics had a consensual relationship policy in place for employees.

The Celtics scandal comes at a time when workplace harassment claims (as reported by the EEOC) are on the rise, yet consensual office romantic relationships remain fairly common.  While most employees do not want their employers placing limits on whom they may seek as a romantic partner, from an employer’s viewpoint, the risks of such romances are clear, as they can easily cause real issues in the workplace: interoffice gossip, lack of productivity, reduced moral, allegations of favoritism, or worse, claims of sexual harassment.

Fortunately, employers have several options available to minimize risk. Employers can rely on various types of anti-fraternization policies (also known as workplace romance or consensual relationship policies) and/or love contracts.  Separate, but related, employers should also implement robust anti-harassment policies and training for all employees (including management).

Relationship Policies

Some employers choose to implement a policy banning all romantic relationships between employees regardless of position or authority.  These policies discourage personal and romantic workplace relationships and threaten discipline against employees who violate the policy. Other employers opt for a more flexible policy, which only prohibits romantic relationships where one individual has the ability to affect the terms and conditions of the other’s employment, including but not limited to, compensation, assignments, and promotions. This latter policy is more common as it is often less intrusive and aimed at preventing favoritism or claims of sexual harassment or retaliation.

Regardless of the policy used, most employers also include a disclosure requirement, which then allows the employer to determine the best course of action forward (e.g. eliminating the reporting relationship)..

Further still, some employers, in addition to their relationship policy, have used “love contracts” that couples sign to confirm their consensual relationship status, affirm their awareness of the company’s sexual-harassment and workplace conduct policies and other expectations related to conducting themselves in the workplace, indicate that they understand the consequences if they fall short of the company’s expectations.

Employer Actions After A Relationship Disclosure

Such policies and related documents allow employees to come forward as early as possible so employers can proactively address a situation.  For example, it allows employers to remove any supervisory oversight or doubt that such a relationship is consensual, while also setting expectations with both employees about their conduct in the workplace during the relationship, and if and after the relationship ends.  As part of this expectation setting discussion, even in the absence of a reporting relationship, employers should make sure to provide a copy of its anti-harassment policy to the dating employees and have them reaffirm they will comply with its terms and conditions.  Employers should also confirm with each employee that they will immediately disclose when the relationship ends or is otherwise no longer consensual.

Anti-Harassment Policies & Training

Ultimately, and regardless of what policy an employer adopts, all employers should have a clear anti-harassment policy that, among other things, defines and clearly prohibits sexual harassment and requires all employees to report sexual harassment, including any unwanted advances or comments.

Such policies should include a complaint procedure that is readily accessible to employees and provides multiple avenues for raising complaints.  It should confirm that the company will promptly and thoroughly investigate all complaints and will not retaliate against any individual who reports or participates in an investigation of harassment (including sexual harassment).

It is crucial that employers think about responding in a fashion similar to the Celtics’ in promptly investigating and addressing alleged misconduct.  For example, the Celtics quickly engaged independent outside counsel to conduct a thorough investigation, which positioned the Celtics well to determine its appropriate next steps.  Critically, the Celtics did not appear to allow the employee’s status within the organization to interfere or impact its decision to enforce its policies and impose serious penalties.  By following the Celtics’ lead, employers can, among other things, create an environment where employees feel safe to complain and further eliminate the possibility of misconduct in the workplace, while also enhancing any legal defense in the event a lawsuit follows.

Having written policies is key, but it is equally important that employees, particularly supervisors or managers, are thoroughly trained on how to recognize potentially problematic situations, including when employees are dating, and how to respond to and further report potential policy violations.  Some jurisdictions even make training a statutory requirement.

Key Takeaways for Employers

The reality is that romantic relationships in the workplace occur and those employers that are proactive in anticipating such relationships and responding to them when they occur will be best positioned to limit potential liability.  Employers should consider taking the following actions:

  • Adopting a consensual relationship policy that is best suited for the company;
  • Ensure the use of a robust anti-harassment policy;
  • Periodically conduct anti-harassment training; and
  • Be prepared to monitor and respond upon learning of a relationship between your employees.

Article By Delaney M. Busch of Mintz

For more labor and employment legal news, click here to visit the National Law Review.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Supreme Court Questions Whether Highly Compensated Oil Rig Worker Is Overtime Exempt

On October 12, 2022, the Supreme Court of the United States heard oral arguments in a case regarding whether an oil rig worker who performed supervisory duties and was paid more than $200,000 per year on a day rate basis is exempt from the overtime requirements of the Fair Labor Standards Act (FLSA).

The case is especially significant for employers that pay exempt employees on a day rate. It could have a major impact on the oil and gas industry in the way that it recruits, staffs, and compensates employees who work on offshore oil rigs and at remote oil and gas work sites. In addition, depending on how the Supreme Court rules, its decision could have much broader implications.

During the arguments in Helix Energy Solutions Group, Inc. v. Hewitt, the justices questioned whether, despite the employee’s high earnings, he was eligible for overtime compensation because he was paid by the day and not on a weekly salary basis. There is no express statutory requirement that an employee be paid on a “salary basis” to be exempt from overtime requirements, but such a requirement has long been included in the regulations issued by the U.S. Department of Labor (DOL) applicable to the FLSA’s white-collar exemptions. Notably, Justice Brett Kavanaugh suggested during the arguments that the regulations may be in conflict with the text of FLSA, although Helix did not raise this issue in its petition for certiorari.

Background

The case involves an oil rig “toolpusher,” an oilfield term for a rig or worksite supervisor, who managed twelve to fourteen other employees, was paid a daily rate of $963, and earned more than $200,000 annually. Between December 2014 and August 2017, when Michael Hewitt was discharged for performance reasons, he worked twenty-eight-day “hitches” on an offshore oil rig where he would work twelve-hour shifts each day, sometimes working eighty-four hours in a week. After his discharge, Hewitt filed suit alleging that he was improperly classified as exempt and therefore was entitled to overtime pay. The district court ruled in favor of Helix.

In September 2021, a divided (12-6) en banc panel of the U.S. Court of Appeals for the Fifth Circuit held that Hewitt was not exempt from the FLSA because his payment on a day-rate basis did “not constitute payment on a salary basis” for purposes of the highly compensated employee (HCE) exemption that is found in the FLSA regulations.

The Fifth Circuit further concluded that the employer’s day-rate pay plan did not qualify as the equivalent of payment on a salary basis under another FLSA regulation because the guaranteed pay for any workweek did not have “a reasonable relationship” to the total income earned. In other words, the court found that the employee was not exempt because the $963 he earned per day was not reasonably related to the $3,846 the employee earned on average each week.

Oral Arguments

Oral arguments at the Supreme Court focused on the interplay between the DOL’s HCE regulation, 29 C.F.R. § 541.601, and another DOL regulation, 29 C.F.R. § 541.604(b), which states that an employer will not violate the salary basis requirement under certain limited circumstances even if the employee’s earnings are computed on an hourly, daily, or shift basis.

At the time of Hewitt’s employment, the HCE exemption required an employee to be paid at least $455 per week on a “salary or fee basis” and to earn at least $100,000 in total annual compensation. Those threshold amounts have since been increased to $684 per week and $107,432 per year.

The other regulation, 29 C.F.R. § 541.604(b), states that an employee whose earnings are “computed on an hourly, a daily or a shift basis” may still be classified as exempt if the “employment arrangement also includes a guarantee of at least the minimum weekly required amount paid on a salary basis regardless of the number of hours, days or shifts worked, and a reasonable relationship exists between the guaranteed amount and the amount actually earned. The reasonable relationship test will be met if the weekly guarantee is roughly equivalent to the employee’s usual earnings at the assigned hourly, daily, or shift rate for the employee’s normal scheduled workweek.”

Hewitt earned double the minimum total compensation level for the HCE exemption. Since the minimum salary level for the exemption was only $455 per week, and Hewitt was guaranteed that he would be paid at least $963 per week for each week he worked at least one day, Helix argued that he was exempt from the FLSA’s overtime requirements because the HCE exemption was completely self-contained and to be applied without regard to other regulations, including the “salary basis” test and the minimum guarantee regulation. Hewitt argued that the HCE exemption required compliance with either the “salary basis” test or the minimum guarantee regulation since he was admittedly paid on a day rate basis.

However, Justice Ketanji Brown Jackson suggested that it was not that simple. Justice Jackson said the question of salary basis is more about the “predictability and regularity of the payment” for each workweek. “What he has to know is how much is coming in at a regular clip so that he can get a babysitter, so that he can hire a nanny, so that he can pay his mortgage,” Justice Jackson stated. Justice Jackson echoed the language of the salary basis test requiring that an exempt employee be paid a predetermined amount for any week in which she performed any work.

Similarly, Justice Sonia Sotomayor asked Helix, “so what you’re asking us to do is take an hourly wage earner and take them out of 604, which is the only provision that deals with someone who’s not paid on a salary basis.” Justice Sotomayor additionally raised the FLSA’s goal of “preventing overwork and the dangers of overwork.”

In contrast, Justice Clarence Thomas suggested that Hewitt’s high annual compensation relative to the average worker is a strong indication that he was paid on a salary basis and should be exempt. “The difficulty is just, for the average person looking at it, when someone makes over $200,000 a year, they normally think of that as an indication that it’s a salary,” Justice Thomas stated.

Justice Kavanaugh asked if the issue of whether the DOL regulations conflict with the FLSA is being litigated in the courts. He said, “it seems a pretty easy argument to say, oh, by the way, or maybe, oh, let’s start with the fact that the regs [sic] are inconsistent with the statute and the regs [sic] are, therefore, just invalid across the board to the extent they refer to salary.” He further stated, “if the statutory argument is not here, I’m sure someone’s going to raise it because it’s strong.”

Key Takeaways

It is difficult to predict how the Supreme Court will rule in this case. A decision that requires strict adherence to the regulation’s reasonable relationship test, even when the minimum daily pay far exceeds the minimum weekly salary threshold, would have a significant negative impact on the manner in which certain industries compensate their workers. It also could lead to even more litigation by highly compensated employees, many of whom make more money without receiving overtime pay than what many people who currently are paid overtime compensation make.

Depending upon its breadth, a decision that the regulations are in conflict with the statutory text of the FLSA could provide a roadmap for additional challenges to other parts of the regulations. This could have a wide-ranging impact, as the DOL currently is in the process of preparing a proposal to revise its FLSA regulations. Then again, if a future litigant takes up Justice Kavanaugh’s invitation to challenge whether the salary regulations are overbroad compared to the language of the FLSA, the current effort to revise the regulations regarding exemptions for executive, administrative, and professional employees may be moot.

Article By Andrew P. Burnside, Steven F. Pockrass, and Zachary V. Zagger of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more supreme court and litigation legal news, click here to visit the National Law Review.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

November 2022 Visa Bulletin – A Warning for EB-2 All Other Countries

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process, or if already pending, when the final step can be adjudicated.

Below is a summary of the November Visa Bulletin, including Final Action Dates and changes from the previous month.

China:   EB-1 remains current; EB-2 holds at June 8, 2019; EB-3 freezes at June 15, 2018; EB-3 other workers advances three months to December 1, 2012.

India:   EB-1 remains current; EB-2 holds at April 1, 2012; EB-3 freezes at April 1, 2012; and EB-3 other workers remains April 1, 2012.

All Other Countries:   EB-1, EB-2 and EB-3 remain current (except for EB-3 Other Workers which has a cutoff date of June 1, 2020).

NOTE 1:  The November Visa Bulletin warns of possible future retrogression in the EB-2 All Other Countries category due to increased demand for overall visa numbers.

NOTE 2: USCIS will accept I-485 applications in November based on the Department of State’s slightly more favorable Dates for Filing chart.

This post was written by Courtland C. Witherup and the Immigration & Nationality Law Practice at Hunton Andrews Kurth.

For more immigration legal news, click here to visit the National Law Review.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

Supreme Court Takes Up FLSA High Earners Exemption

On October 12, 2022, the U.S. Supreme Court heard oral arguments in a case that considers whether a supervisor who earned over $200,000 annually may still be eligible for overtime pay under the Fair Labor Standards Act (FLSA). The case centers on the interpretation of the regulatory scheme surrounding highly compensated employees and their exemption status under the FLSA.

The Plaintiff in the case was a worker in a supervisory role on an oil rig and his compensation was based on a daily rate. The plaintiff argued that his daily rate of pay did not constitute a salary.  Prior to the Supreme Court, the Fifth Circuit en banc agreed with the Plaintiff and found that he was not paid a salary such that he was not an exempt employee under the FLSA.

This case has implications for how employers will pay workers, and whether there is potential exposure for overtime claims, even for highly compensated employees.

For more Labor and Employment legal news, click here to visit the National Law Review.

© Polsinelli PC, Polsinelli LLP in California

Five New Employment Laws that Every California Employer Should Know

A new year brings new employment laws for California employers.  California employers will want to begin revising employee policies and handbooks now, so that they are prepared to comply with these new laws when the majority of them go into effect on January 1, 2023.  Here are five new employment laws that every California employer should know:

AB 1041 (Expanded Definition of “Family Member” for Medical and Sick Leave)

Through AB 1041, the California legislature amended Government Code section 12945.2 and Labor Code section 245.5 to expand the definition of “designated person” for purposes of employee medical leave.  Section 12945.2 provides qualifying employees with up to 12 workweeks in any 12-month period for unpaid family care and medical leave.  Section 245.5 relates to California paid sick leave.  Both sections permit an employee to take protected leave to care for a “family member,” which is currently defined as a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.  With the passage of AB 1041, the Legislature added a “designated person” to this list of “family members” for whom an employee may take protected leave.  A “designated person” is defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.”  In light of this broad definition, employers should be prepared to provide employees with leave to care for a wider range of persons.  An employee may identify his or her designated person at the time of requesting protected leave.  However, an employer may limit an employee to one designated person per 12-month period.

AB 1949 (Bereavement Leave)

AB 1949 adds section 12945.7 to the Government Code, in order to provide employees with protected leave for bereavement.  Under this new law, eligible employees may request up to five days of bereavement leave upon the death of a qualifying family member.  Family member is defined as a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent in law.  Although the employee must complete bereavement leave within three months of the family member’s death, the employer may not require that the five days be used consecutively.  Statutory bereavement leave is unpaid, but the employer must allow the employee to use any accrued and unused paid vacation, personal leave, sick leave, or other paid time off for this purpose.  Section 12945.7 prohibits discrimination, interference or retaliation against an employee for taking bereavement leave; also, the employer must maintain confidentiality when an employee takes bereavement leave. Finally, section 12945.7 does not apply to certain union employees, with an existing agreement regarding bereavement leave.

SB 1162 (Posting Pay Ranges and EEO Reporting Requirements)

SB 1162 modifies Government Code section 12999 and Labor Code section 432.3 to require employers to provide candidates with salary ranges on job postings, report employee compensation and demographic information to the California Civil Rights Department (formerly the DFEH) on an annual basis, and retain relevant records.  For job postings (including those posted by third parties), employers with 15 or more employees will be required to include a pay range, which is defined as the salary or hourly wage range that the employer reasonably expects to pay for the position.  In addition to the current requirement that, upon request, the employer must provide a candidate a pay range, the employer must now also provide existing employees with a pay range, when requested.  Failure to comply with the pay range disclosure or record retention requirements can result in penalties of up to $10,000 per violation.

The new reporting requirement concerns annual employer pay data reports.  Employers must now report the median and mean hourly rate by each combination of race, ethnicity, and sex, within each job category, with the first report due on May 10, 2023, based on 2022 pay data.  Employers with 100 or more employees hired through labor contractors must now produce data on pay, hours worked, race/ethnicity, and gender information in a separate report.  Employers who fail to timely file these required reports face civil penalties of up to $200 per employee.

Finally, employers must retain records of job titles and wage rate histories for each employee for the duration of the employee’s employment and three years after termination.  Failure to comply with these retention requirements can result in penalties of up to $10,000 per violation.

AB 2188 (Off the Job Cannabis Use Protection)

Effective January 1, 2024, AB 2188 adds section 12954 to the Government Code, which prohibits employers from discriminating against a person because of cannabis use while off the job, with some exceptions.  Employers may take action against a person who fails a pre-employment drug test, or other employer-required drug test, that does “not screen for non-psychoactive cannabis metabolites.”  This is because, according to the California Legislature, cannabis “matabolites do not indicate impairment, only that the individual has consumed cannabis in the last few weeks.”  The employer may administer a performance-based impairment test, and terminate any employee who is found to be impaired in the workplace.  This new law does not apply to employees in the building or construction industry, or in positions requiring a federal background investigation or clearance, and does not preempt state or federal laws that require employees to be tested for controlled substances.

AB 152 (COVID-19 Supplemental Paid Sick Leave Extension)

AB 152 modified Labor Code section 248.6 and 248.7 in order to extend COVID-19 Supplemental Paid Sick Leave (SPSL), previously blogged about here, which was expected to expire on September 30, 2022.  This new modification allows California employees to use any remaining SPSL through December 31, 2022.  It does not provide employees with new or additional SPSL.  In a departure from the original version of the law, when an employer requires an employee to take a COVID-19 test five days or later after a positive test result, the employer is now permitted to require the employee to submit to a second diagnostic test within no less than 24 hours.  If the employee refuses, the employer may decline to provide additional SPSL.  The employer obligation to cover the cost of any employee COVID-19 tests remains in effect.

Article By Kate Gold and Wesley C. Shelton of Proskauer Rose LLP

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© 2022 Proskauer Rose LLP.

IRS Delays Additional Amendment Deadlines for Major Retirement Legislation

The IRS has extended additional deadlines for required retirement plan amendments, similar to the extensions we discussed last month found here. Notice 2022-45 extends the deadline for amending qualified retirement plans to comply with certain provisions of:

  • The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)

  • The Taxpayer Certainty and Disaster Tax Relief Act of 2020 (“Relief Act”)

Notice 2022-45 specifically extends the amendment deadlines for Section 2202 of the CARES Act and Section 302 of the Relief Act. Section 2202 of the CARES Act permitted plans to: (1) provide coronavirus-related distributions, (2) increase retirement plan loan sizes, and (3) pause retirement plan loan payments. Section 302 of the Relief Act permitted qualified disaster distributions.

Notice 2022-45 extends the amendment deadlines relating to the applicable provisions in the CARES and Relief Acts for non-governmental qualified plans and 403(b) plans to December 31, 2025. Governmental plans (including qualified plans, 403(b) plans maintained by public schools, and 457(b) plans) are granted further delays depending on the underlying circumstances of the plan sponsor.  These extended deadlines under Notice 2022-45 align with the previous deadline extensions under Notice 2022-33. Accordingly, most plan sponsors will be able to adopt a single amendment to comply with the SECURE Act, BAMA, the CARES Act, and the Relief Act.

Notably, tax-exempt 457(b) plans do not appear to be covered by the relief granted by either Notice 2022-33 or Notice 2022-45. Accordingly, these plans remain subject to a December 31, 2022, amendment deadline.

Article By Brian T. Gallagher, Samantha A. Kopacz, and Samuel L. Parks of Miller Canfield

For more tax law legal news, click here to visit the National Law Review.

© 2022 Miller, Canfield, Paddock and Stone PLC

Top Legal Industry News Updates for Fall 2022: Law Firm Hirings, Legal Industry Recognition, Women in Law, and More

Welcome back to another edition of the National Law Review’s legal news roundup! Please read on for the latest updates in law firm hiring and expansion, pro bono efforts, industry awards and recognition, and a spotlight on women in law! Additionally, be sure to check out the latest episode of our Legal News Reach podcast: The Perfect Storm: Law Firm Marketing & Business Development Budgeting with Beth Cuzzone, Global Practice Leader of Intapp.

Law Firm Hiring and Expansion

Kristian R. Sullivan has joined the Patent Prosecution & Litigation practice group at Womble Bond Dickinson. Based in Houston, Mr. Sullivan has a great deal of experience in intellectual property services, including the drafting of IP-related agreements, performing freedom-to-operate analyses, and the securing of important IP assets. He has worked across a great number of industries, such as energy, automotive, technology, and construction.

“The Houston economic market has a high concentration of clients in the advanced manufacturing and oil/gas industries. As such, there is a demand for patent prosecution attorneys with mechanical engineering experience to do this work,” said Jeff Whittle, Womble Bond Dickinson’s Houston Office Managing Partner and Energy Sector Co-Lead. “Kristian’s strong mechanical experience, including in oil and gas, will be a boost for the Houston office and add further depth to the firm’s Patent Prosecution & Litigation group and growing Energy sector team.”

Sidley Austin LLP has added James Lu as a Partner in the Corporate practice group. Mr. Lu, who focuses his practice on representing venture capital and private equity investors at leading companies, is based in the firm’s Century City office. He has a great deal of experience in many areas, primarily public and private securities offerings, joint ventures, mergers and acquisitions, and cross-border transactions.

“James is the trusted advisor that every client — and law firm — wants on its team. He combines market leading intelligence from two continents with a range of transactional expertise,” said Dan Clivner, co-leader of the firm’s global M&A and Private Equity practice. “Many of our partners have worked with James and couldn’t be happier to call him ‘our partner.’”

Danette R. Edwards, former Senior Counsel at the U.S. Securities and Exchange Commission, has joined Katten Muchin Rosenman LLP’s Securities Litigation practice as a Partner. Ms. Edwards, who has vast experience leading enforcement efforts at the SEC and litigating complex cases involving anti-fraud and other securities laws, joins the firm at its office in Washington, D.C.

“Danette is a strong addition to our Securities Litigation team because she offers our clients exceptional experience on all types of SEC-related matters,” said Bruce G. Vanyo, chair of Katten‘s Securities Litigation practice. “Her impressive skill set and extraordinary background strengthens Katten’s already widely recognized reputation for defending high-stakes securities matters for some of the country’s most prestigious companies.”

Einhorn, Barbarito, Frost & Botwinick, PC has announced the addition of three new associates: Alma A. Godinez, Angelica M. Mercado, and T. Matthew Wolfe II. Ms. Godinez focuses her practice on personal injury matters involving medical malpractice, products liability, and other accidents. Ms. Mercado practices family and matrimonial law, with experience drafting motions and emergent applications related to matrimonial and non-dissolution matters. Mr. Wolfe II focuses his practice on wills, trusts, estates, and taxation matters, with a particular emphasis on topics such as family wealth transfer and preservation planning, charitable giving, and retirement planning.

“We are pleased to welcome these three exceptional young professionals to the firm and we know that their experience in several of our key practice areas will enhance our ability to serve our clients,” said Patricia M. Barbarito, Co-Managing Partner of Einhorn Barbarito.

Legal Industry Awards and Recognition

Jason Rubinstein, Partner at Gilbert LLP, has been named to the Board of Directors of the Legal Aid Society of the District of Columbia. Representing tenants facing evictions and assisting injured individuals to obtain important medical treatments, Mr. Rubinstein has made a special effort to prioritize pro bono work throughout his career. Beyond this work, at Gilbert, he has focused his practice on insurance recovery and strategic risk management.

“The work Legal Aid does for persons living in poverty in the District is unparalleled,” said Mr. Rubinstein of the honor, “and I look forward to helping to provide the leadership and legal assistance necessary to assist those in need.”

New York Law Journal recognized IMS Consulting & Expert Services as the winners of the “Best Of” 2022 award survey. They were named a Top 3 recipients in the “Best of” category for Online Jury Research Provider. Winners for this award were selected based on the results of a crafted ballot containing several dozen categories for attorneys and firm administrators to vote on.

IMS’ Vice President of Client Services, Chris Sizemore, commented, “We’re thrilled to be selected by our clients as one of New York’s top legal service providers. IMS consultants help reduce uncertainty before and at trial by understanding the psychology of the jury to identify and refine persuasive themes that will better connect with decision makers in the case—juries, judges, and arbitrators.”

On September 22, 2022, Bruno R. Marasso, partner at Romanucci & Blandin, LLC, was installed as President of the Justinian Society of Lawyers. Mr. Marasso has received numerous awards previously, including the Emerging Lawyer award by Law Bulletin Publishing Company every year since 2017, a Rising Star by Super Lawyer every year since 2018, a naming to Best Lawyers: Ones to Watch for 2021, and a naming to the list of Best Lawyers in America for 2023.

On his recent appointment, Mr. Marasso shared, “Romanucci & Blandin has a rich history in serving the Justinian Society of Lawyers and I am proud to continue it with my term as President. As Justinians, we pride ourselves in contributing to both the legal profession and to the community and I am humbled to serve in this role.” Mr. Marasso recently served as Vice President of the Justinian Society of Lawyers and focuses his practice on the areas of automobile collisions, wrongful death, premises liability, and institutional misconduct.

Diversity and Inclusion in the Field

The Arab American Foundation has selected Shumaker, Loop & Kendrick Associate Ali W. Latif for inclusion on their “40 Under 40” list for his role in empowering the national Arab American community. Ms. Latif is a trilingual Palestinian-American based in Columbus, Ohio who specializes in business, immigration, and environmental law. Prior to joining Shumaker, Latif owned his own firm, where he represented marginalized clients. He still prioritizes disadvantaged communities, spending hundreds of hours providing free legal services for low-income clients with the Legal Aid Society of Columbus. In 2019, he received the LASC/CBA/CBF New Attorney Pro Bono Award.

Shumaker Partner and Diversity and Inclusion Committee Co-Chair Cheri Budzynski says, “We are excited that Ali has the opportunity to be celebrated for his passion and leadership in connecting and empowering Arab Americans. As part of the firm’s commitment to diversity and inclusion, we recognize that our legal system needs to adapt to represent diversity and the people of our nation.”

Corporate Counsel Women of Color has chosen Foley & Lardner Senior Counsel Lauren Champaign to receive their “Next Gen Emerging Millennial Leader” award, which celebrates young attorneys with exceptional legal talent and community orientation. A commercial litigator specializing in securities, product liability, antitrust, and consumer finance, Ms. Champaign also co-founded Foley’s Racial Justice and Equity Practice Group.

Ms. Champaign has previously volunteered with numerous legal aid organizations, such as the D.C. Legal Aid Society’s Housing Division, and served as the Deputy GOTV Director for President Obama’s Philadelphia re-election campaign. There, she contributed to increased voter turnout and eventual victory, and as a Regional Field Director for Obama for America, she was featured in the Washington Post and PBS Now for her organizing work in South Carolina and Chicago. Ms. Champaign and her five fellow awardees will be feted at an October 7th ceremony during Corporate Counsel’s Career Strategies Conference.

Barnes & Thornburg Partner Robyn Maguire has been included on Massachusetts Lawyers Weekly’s “Top Women of Law” list, which showcases women leading the legal field through education, mentorship, and innovation. Ms. Maguire practices complex civil litigation in Boston, where she manages product liability, real estate, and land use disputes.

Ms. Maguire is an active member of her local pro bono and volunteer community, assisting clients with housing and asylum matters and submitting amicus briefs to the U.S. Supreme Court and U.S. Court of Appeals for the First Circuit for issues related to immigration and employment discrimination. She chairs the Town of Hingham Zoning Board of Appeals and is an executive committee and board member for Lawyers for Civil Rights. She has previously been recognized as a “Rising Star” and “Super Lawyer” in Massachusetts Super Lawyers and on the “Top Ten Verdicts” list in Massachusetts Lawyers Weekly. Maguire and her fellow nominees will be profiled in the magazine’s November issue and honored at an awards ceremony.

Article By Crissonna Tennison, Shelby Garrett, and Chandler Ford of The National Law Review / The National Law Forum LLC

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