Category: Labor & Employment

Federal Court Strikes Down NLRB Joint Employer Rule

On March 8, 2024, just days before it was set to take effect, U.S. District Judge J. Campbell Barker of the Eastern District of Texas vacated the National Labor Relations Board’s (“NLRB’s”) recent rule on determining the standard for joint-employer status.

The NLRB issued the rule on October 26, 2023. It established a seven-factor analysis, under a two-step test, for determining joint employer status. Under the new standard, an entity may be considered a joint employer if each entity has an employment relationship with the same group of employees and the entities share or codetermine one or more of the employees’ essential terms and conditions of employment which are defined exclusively as:

  • Wages, benefits and other compensation;
  • Hours of working and scheduling;
  • The assignment of duties to be performed;
  • The supervision of the performance of duties;
  • Work rules and directions governing the manner, means and methods of the performance of duties and grounds for discipline;
  • The tenure of employment, including hiring and discharge; and
  • Working conditions related to the safety and health of employees.

Set to take effect on March 11, 2024, the NLRB’s decision would have rescinded the 2020 final rule which considered just the direct and immediate control one company exerts over the essential terms and conditions of employment of workers directly employed by another firm. The new rule would have expanded the types of control over job terms and conditions that can trigger a joint employer finding.

In the lawsuit, filed by the United States Chamber of Commerce and a coalition of business groups, the Chamber and coalition claimed that the NLRB’s rule is unlawful and should be struck down because it is arbitrary and capricious. Judge Barker agreed as he held that the NLRB’s new test is unlawfully broad because an entity could be deemed a joint employer simply by having the right to exercise indirect control over one essential term. Judge Barker faulted the design of the two-step test which says an entity must qualify as a common-law employer and must have control over at least one job term of the workers at issue to be considered a joint employer, finding that the test’s second part is always met whenever the first step is satisfied. The Court vacated the new standard and indicated it will issue a final judgment declaring the rule is unlawful.

The NLRB quickly responded to the Court’s ruling. In a statement on March 9, 2024 NLRB Chairman Lauren McFerran said the “District Court’s decision to vacate the Board’s rule is a disappointing setback but is not the last word on our efforts to return our joint-employer standard to the common law principles that have been endorsed by other courts.” According to the NLRB, the “Agency is reviewing the decision and actively considering next steps in this case.”

What Employers Need to Know

The legality of the NLRB’s joint-employer standard has been a contested issue since the October 2023 announcement. The rule will not go into effect as scheduled, but Judge Barker’s decision is unlikely to be the final word on the matter.

© 2024 Dinsmore & Shohl LLP. All rights reserved.
by: Brian J. Moore of Dinsmore & Shohl LLP
For more on the NLRB, visit the NLR Labor & Employment section.

U.S. Corporate Transparency Act: CTA is Declared Unconstitutional in U.S. District Court Case

The Corporate Transparency Act has been declared unconstitutional. On March 1, 2024, U.S. District Court Judge Liles C. Burke issued a 53-page opinion[1] granting summary judgment for the National Small Business Association and held that the Corporate Transparency Act “exceeds the Constitution’s limits on the legislative branch and lacks a sufficient nexus to any enumerated power to be a necessary or proper means of achieving Congress’ policy goals.”

As a result, Judge Burke found the CTA to be unconstitutional because it exceeds the Constitution’s limits on Congress’ power, without even reaching a decision on whether it violates the First, Fourth, and Fifth Amendments. The Court then permanently enjoined the government from enforcing the CTA against the named plaintiffs and ordered a further hearing on the award of costs of litigation.

While it is likely that this litigation will continue to play out in the federal court system, the initial victory has gone to small business and importantly that means that compliance with this now unconstitutional regulatory regime can be set aside for the current time being.

[1] Nat’l Small Bus. United v. Yellen, No. 5:22-cv-01448-LCB (N.D. Ala. 2022)

Copyright ©2024 Nelson Mullins Riley & Scarborough LLP
For more on the Corporate Transparency Act, visit the NLR Corporate & Business Organizations section.

Dartmouth Basketball Players Vote to Be First College Athletes Represented by a Union

On March 5, 2024, players on the Dartmouth College men’s basketball team voted to unionize, making the group the first college sports team to do so in the United States. Dartmouth College has already filed an appeal with the National Labor Relations Board (NLRB), setting up a legal challenge that will have significant implications for the status of college athletes and the future of college sports in the United States.

Quick Hits

  • The Dartmouth men’s basketball team voted to unionize in what would be the first union to represent college athletes.
  • Dartmouth has filed an appeal with the NLRB that could determine whether college athletes are employees within the meaning of the NLRA.
  • The union vote could have significant implications for the future of college sports in the United States.

In a representation election overseen by the NLRB, the Dartmouth men’s basketball players reportedly voted 13-2 to be represented by the Service Employees International Union Local 560. The Trustees of Dartmouth College immediately filed a request for a review of the regional director’s decision and direction of election that had allowed the unprecedented election to proceed despite serious implications for college sports.

The election comes after an NLRB regional director in Boston, Massachusetts, ruled on February 5, 2024, that the men’s basketball players at Dartmouth—who compete in the National Collegiate Athletic Association (NCAA) Division I, the highest level of college athletics—are “employees” within the meaning of the National Labor Relations Act (NLRA) and have the right to a union election.

Dartmouth argued in its request for review that the players cannot be considered employees under the NLRA because they are amateur students who are provided with financial aid and academic resources, not compensation, and do not provide any service to the school.

Dartmouth, which is a private institution in New Hampshire and part of the all-private Ivy League collegiate athletic conference, called the regional director’s decision an “unprecedented, unwarranted, and unsupported departure” from applicable legal standards that creates a “new definition of ‘employee’” and “promises to have significant negative labor and public policy implications.”

College Athletes’ Employment Status

NLRB Region 1 Director Laura Sacks found that the Dartmouth men’s basketball players were employees in large part because the school “exercises significant control” over their participation on the team, including determining when players practice and play, review film, engage with alumni, and take part in other team-related activities. During travel, the school controls when and where the players travel, eat, and sleep, the regional director found.

Further, the regional director found that despite questions about the revenue generated, the players generate publicity for the school, and do so to receive various economic benefits, including equipment and apparel, tickets to games, lodging, meals, and other specialized academic and career development support.

The Dartmouth appeal tees up for the NLRB the issue of whether college athletes at private schools are employees after the NLRB punted on a similar issue in a 2015 case involving college football players at Northwestern University that left open the issue of whether college athletes at private universities may be considered employees under the NLRA.

In the Northwestern case, the full Board later declined to assert jurisdiction over the case, finding it “would not serve to promote stability in labor relations,” largely because the majority of schools that compete in college football at the highest level are public institutions not subject to the NLRA.

The regional director in Dartmouth reached her conclusion despite the significant differences in the economics of college basketball and football that distinguished the Dartmouth case from the Northwestern case, where the players received athletic scholarships in a sport—football—that generated more revenue. Further, unlike the highest level of college football, which is comprised mostly of public universities, Dartmouth is a member of a collegiate athletic conference made up entirely of private universities that do not provide athletic scholarships.

Looking Ahead

If the Board agrees that the Dartmouth basketball players are employees and allows the union election to stand, it could have a ripple effect, with college athletes at private universities across the country seeking to organize.

Yet the Dartmouth basketball players’ unionization vote is only the latest in a string of legal developments related to whether college athletes may be considered employees or parties entitled to receive compensation under various legal standards, including under the NLRA and Fair Labor Standards Act (FLSA). On February 23, 2023, the U.S. District Court for the Eastern District of Tennessee issued a preliminary injunction blocking the NCAA from enforcing new rules on athletes’ compensation derived from name, image, and likeness (NIL) rights—specifically, rules restricting the ability of so-called school “boosters” to negotiate with NCAA athletes during the recruiting and transfer processes.

© 2024, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more news on College Athletes Unionizing, visit the NLR Labor & Employment section.

United States | H-1B Denial Rates Up Slightly From 2022

H-1B denial rates in fiscal year 2023 increased slightly from FY 2022, according to a National Foundation for American Policy analysis of U.S. Citizenship and Immigration Services data.

Despite the increase, H-1B denial rates for FY 2023 still remain substantially lower than during the Trump administration when they peaked in FY 2018.

Fiscal Year New Employment H-1B Denial Rate
2023 3.5%
2022 2.2%
2021 4%
2020 13%
2019 21%
2018 24%
2017 13%

The low denial rate in recent years is at least in part due to legal challenges that forced USCIS to issue new guidance on the adjudication of H-1B visas in June 2020.

The NFAP analysis stated that “H-1B temporary status remains often the only practical way for an international student or other high-skilled foreign national to work long term in the United States” and said the 85,000 H-1B cap “remains the leading immigration problem for most tech companies.” The report can be read here.

©2024 Berry Appleman & Leiden. All Rights Reserved.
by: BAL U.S. Practice Group of Berry Appleman & Leiden
For more on H-1B, visit the NLR Immigration section.

New Department of Labor Rule Restores Multifactor Analysis for Classifying Workers as Employees or Independent Contractors

Effective March 11, 2024, a new administrative rule will modify how the Department of Labor (DOL or Department) classifies workers as either employees or independent contractors under the Fair Labor Standards Act (FLSA). The 2024 rule will rescind the 2021 rule currently in place, which focused the Department’s classification analysis on two “core factors,” and restores the multifactor analysis that previously had been in use by courts for decades.

Given the procedural uncertainty surrounding the 2021 rule, its impact on FLSA jurisprudence has been minimal-to-nonexistent. In this sense, the 2024 rule merely codifies an analysis that federal courts never really stopped using, in the first place. But it also sends an important signal to employers operating in the modern economy: even if workers have significant autonomy over their day-to-day work lives, they should be classified as employees if, as a matter of economic reality, they are dependent on their employer’s business for work.

Background on the FLSA and Pre-2021 Classification Analysis

Under the FLSA, employers generally must pay employees at least the federal minimum wage for all hours worked and at least one and one-half times the employee’s regular rate of pay for every hour worked over 40 in a single workweek. The FLSA does not, however, extend these and other workplace protections to workers who are classified as independent contractors. Employees who are misclassified as independent contractors therefore may incur substantial losses in unpaid overtime and other lost wages as a result of their status.

Prior to 2021, federal courts applied flexible, multifactor tests rooted in Supreme Court precedent to determine whether workers should be classified as employees, and thus covered by the FLSA, or independent contractors, and thus excluded from FLSA coverage. The “ultimate inquiry” was whether, as a matter of economic reality, the worker was economically dependent on the business entity for work (employee) or was in business for herself (independent contractor).

Though the specific factors varied somewhat by circuit, the tests generally took into consideration (1) workers’ opportunity for profit or loss; (2) the amount of investment in the business by the worker; (3) the permanency of the working relationship; (4) the business’s control over the worker; (5) whether the work constituted an “integral part” of the business; and (6) the skill and initiative required to do the worker’s job. Courts tended not to assign predetermined weight to any factor or factors and engaged in a “totality-of-the-circumstances” analysis.

Prior to 2021, DOL had issued only informal guidance on classifying workers as employees or independent contractors and other than some industry-specific guidance—for example, for sharecroppers and tenant farmers and certain workers in the forestry and logging industries—had not engaged in formal rulemaking on this topic. Rather, the Department allowed federal courts to develop and hone their own classification analyses on a case-by-case basis.

The 2021 Rule

On January 7, 2021, DOL promulgated a first-of-its-kind rule identifying a total of five factors, but prioritizing only two “core factors,” for federal courts to consider in conducting the classification analysis. DOL articulated the two “core factors” as (1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit or loss based on initiative, investment, or both. It articulated the three remaining factors as (3) the amount of skill required for the work; (4) the degree of permanence of the working relationship between the individual and the business; and (5) whether the work is part of an “integrated unit of production.” If the two “core factors” weighed in favor of the same classification, it likely was the correct classification, and the Department deemed it “highly unlikely” the three non-core factors could outweigh the combined probative value of the other two.

By elevating the two “core factors” above the other factors traditionally considered by federal courts, the 2021 rule focused almost exclusively on workers’ control over when and on what projects they worked and their ability to earn more money based on how efficiently or for how long they worked. This approach ignored the reality that for many workers, their work is completely dependent on their employer’s business—and vice versa—even though they may have significant autonomy over their day-to-day work lives.

The Department’s articulation of some of the non-core factors also departed from longstanding court precedent and rendered them less, not more, compatible with the modern economy. For example, the 2021 rule considered only whether a worker’s job was part of an “integrated unit of production,” akin to a job on an assembly line, rather than its importance or centrality to the business, overall. This change risked misclassifying employees who performed work that was essential to but “segregable from” an employer’s process of production or provision of services, even though modern industry is much more sprawling than the traditional assembly line. The 2021 rule also combined the distinct “investment in the business” factor with consideration of a worker’s potential for profit and loss, which improperly shifted the focus of that factor from worker inputs to worker outcomes. This change likewise risked misclassifying employees who earned more profits because of greater “investment” in their employers’ businesses, even though the costs they bore might have been non-capital in nature, e.g., an existing personal vehicle, or imposed unilaterally by the employers.

Shortly after the change in administration that took place on January 20, 2021, the Department took steps to delay and ultimately withdraw the 2021 rule based on these and other concerns about its potential to misclassify employees as independent contractors. But legal challenges to the administrative process led a Texas district court to vacate the Department’s delay and withdrawal actions, ostensibly leaving the 2021 rule in effect. Though the Department appealed the district court’s order, the Fifth Circuit stayed the action pending promulgation of the new rule. In the interim, the uncertain legal status of the 2021 rule and impending new rule meant that few courts, if any, incorporated the “core factor” analysis into their jurisprudence.[1]

The 2024 Rule

After unsuccessful efforts to delay and withdraw the 2021 rule, the Department opted to rescind and replace it altogether with the new final rule it announced on January 10, 2024. The 2024 rule, effective March 11, 2024, identifies six equally-weighted factors for courts to consider in classifying workers as independent contractors or employees: (1) opportunity for profit or loss depending on managerial skill; (2) investments by the worker and the potential employer; (3) degree of permanence of the work relationship; (4) nature and degree of control; (5) extent to which the work performed is an integral part of the potential employer’s business; and (6) skill and initiative. Each single factor should be considered “in view of the economic reality of the whole activity” and additional factors “may be relevant” to the analysis.

Notably, the 2024 rule reverts to the “integral to the business” formulation of that factor; treats “investment in the business” as a distinct factor; differentiates between capital and non-capital investments by workers; and takes into consideration whether a particular cost was incurred based on entrepreneurial initiative or was imposed unilaterally by the employer. In these ways, the 2024 rule is much more compatible with the growing and increasingly diffuse economy than was the 2021 rule.

Ongoing and prospective legal challenges to the 2024 rule, plus the looming possibility that the Supreme Court will overturn or modify Chevron v. Natural Resources Defense Council—the 1984 decision applying deference to a federal agency’s interpretation of the statutes it administers—mean the 2024 rule may have a limited impact on FLSA jurisprudence. But it nevertheless conveys the Department’s position that employers should err on the side of classifying workers as employees, not independent contractors, and therefore subject to FLSA protections.

Given this changing landscape, employers may struggle to classify workers who were considered independent contractors under the 2021 rule but will be considered employees under the 2024 rule. If your employer has misclassified you as an independent contractor instead of an employee, you may be entitled to benefits and protections under the FLSA or state equivalents, like time-and-a-half pay for overtime work, that you are not currently receiving. If you believe you have been misclassified, consider contacting an attorney to discuss your legal options.

[1] The Fifth Circuit remanded the Texas case to the district court in light of the 2024 rule on February 19, 2024. Coal. for Workforce Innovation v. Walsh, No. 22-40316 (5th Cir. Feb. 19, 2024).

Katz Banks Kumin LLP Copyright ©
For more on Classifying Workers, visit the NLR Labor & Employment section.

The False Claims Act in 2023: A Year in Review

In 2023, the government and whistleblowers were party to 543 False Claims Act (FCA) settlements and judgments, the highest number of FCA settlements and judgments in a single year. As a result, collections under the FCA exceeded $2.68 billion, confirming that the FCA remains one of the government’s most important tools to root out fraud, safeguard government programs, and ensure that public funds are used appropriately. As in recent years, the healthcare industry was the primary focus of FCA enforcement, with over $1.8 billion recovered from matters involving hospitals, pharmacies, physicians, managed care providers, laboratories, and long-term acute care facilities. Other areas of focus in 2023 were government procurement fraud, pandemic fraud, and enforcement through the government’s new Civil Cyber-Fraud Initiative.

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© 2024 Bradley Arant Boult Cummings LLP
For more on the False Claims Act, visit the NLR Criminal Law / Business Crimes section.

DHS and DOJ Announce Joint Guidance on Electronic Form I-9 Processing

The Department of Homeland Security (DHS) and Department of Justice (DOJ) recently issued a fact sheet to guide employers on electronically completing, modifying, or retaining Form I-9. The joint guidance applies to employers using private sector commercial or proprietary I-9 software programs to complete Form I-9 or participate in E-Verify.

Requirements for Employers Using Electronic Form I-9 Software Programs

DHS permits completing Form I-9 electronically provided that the I-9 software complies with I-9 and E-Verify requirements. The DHS/DOJ fact sheet confirms that employers, rather than the software vendor, are responsible for ensuring compliance with these requirements. It provides the following key requirements and states that an I-9 software must:

  • Provide employees with access to the current acceptable version of Form I-9, I-9 instructions, and list of acceptable documents.
  • Allow employees to leave optional fields blank and accommodate employees with only one name.
  • Meet integrity, accuracy, security, and reliability requirements designed to prevent and detect unauthorized or accidental creation, alteration, or deletion of stored I-9s.
  • Comply with standards for electronic I-9 signatures.
  • Comply with general requirements applicable to I-9 documentation, retention, and audit trail requirements.
  • Ensure the electronic generation or storage of Form I-9 is inspected and monitored periodically.
  • Ensure the I-9 forms and all information fields on electronically retained I-9s are fully and readily accessible in the event of a government audit.

Specifically related to modifying and retaining Forms I-9 electronically, the fact sheet states that I-9 software must provide employees, employers, and preparers/ translators the option to make and record corrections to a previously completed I-9 form. Further, the software must uniquely identify each person who accesses, corrects, or changes an I-9 form. Modifications to stored I-9 forms must be properly annotated to include the date of access, the identity of the person making the change, and the nature of the change. Commercial or proprietary I-9 software may lack the functionality to comply with these guidelines regarding providing an audit trail and permitting corrections to completed I-9 records, so these are specific considerations employers should be aware of when assessing potential I-9 software for compliance.

Requirements for Employers Using Electronic Form I-9 Software Programs to Create E-Verify Cases

The DHS/DOJ fact sheet notes that employers who participate in E-Verify and access E-Verify through a software must:

  • Confirm that the software’s functionality allows employers to follow the requirements detailed in the E-Verify Memorandum of Understanding and DHS’s E-Verify guidance.
  • Refrain from creating new E-Verify cases due to corrections made to the previously completed I-9 if the employee received a prior “employment authorized” result. Depending on functionality, commercial or proprietary I-9 software may require completing a new I-9 instead of allowing a correction to the previously completed form.
  • Be able to delay creating E-Verify cases as instructed by E-Verify rules. For example, E-Verify instructs employers to postpone creating E-Verify cases for employees who have not yet received their Social Security numbers and for employees who show certain acceptable receipts for the Form I-9. The software’s functionality should permit employers to delay creating the E-Verify case in these scenarios.

Training for Employer Personnel Administering I-9 Software on Behalf of the Employer

The DHS/DOJ fact sheet also reminds employers to properly train personnel completing electronic Forms I-9 on the employer’s behalf. Key points include the following:

  • Employer personnel should be familiar with the employer’s procedures to complete Form I-9 or create an E-Verify case outside of the Form I-9 software program if, for example, the person completing the I-9 cannot use the I-9 software program or there is a software outage.
  • Employers should not pre-populate fields on electronic I-9 forms with employee information. An I-9 software may be part of the employer’s other HR-related systems and the system may initiate the I-9 verification process through impermissibility pre-populating the employee’s information on the electronic I-9.
  • The employer must not use auto-correct, use predictive text, or post-date an I-9 when completing an I-9 with an I-9 software.
  • The employer should not complete the I-9 on an employee’s behalf and must not change or update the employee’s citizenship or immigration status attestation. For corrections to Section 1, the process is the same as when completing a paper I-9 and changes or corrections to Section 1 must be made by the employee. The I-9 software must have the functionality to allow the employee to make corrections to a previously completed I-9 form.
  • The employer must not remove or add fields to Form I-9. An I-9 software that adds additional questions seeking information that is not requested by the I-9 form may violate this guidance.
  • Employers must permit preparers or translators to assist an employee in completing an electronic I-9.
  • Employers must permit employees to present any valid and acceptable documentation to establish identity and employment authorization, including acceptable receipts, and should not suggest specific documents for this purpose. Thus, an I-9 software should not notify the employer to, for example, request documentation to reverify an employee’s identity document or reverify a permanent resident card.
  • The fact sheet reminds employers to not impose unnecessary obstacles that make it more challenging for employees to start work or get paid, such as by requiring a Social Security number to onboard or by not paying an employee who can complete the Form I-9 but is still waiting for a Social Security number.

Given the significant penalties for non-compliance, employers should exercise thorough due diligence when evaluating I-9 software, considering compliance with DHS regulations alongside factors like cost, functionality, and interoperability with its other systems. Although government guidance has been minimal, the fact sheet provides some insight into the government’s stance on regulatory requirements for electronic I-9s and may be helpful to employers when selecting an I-9 software.

©2024 Greenberg Traurig, LLP. All rights reserved.
For more news on Electronic Form I-9 Processing, visit the NLR Labor & Employment section.

It’s Protected: NLRB Finds “Black Lives Matter” Insignia on Employee Uniform Constitutes Protected Activity Under Circumstances

The National Labor Relations Board (“NLRB”), in a 3-1 decision, held that an employee’s display on their work uniform of “BLM,” an acronym for Black Lives Matter, constituted protected concerted activity under Section 7 of the National Labor Relations Act (“Act”). Accordingly, the NLRB reversed an Administrative Law Judge (“ALJ”) decision, and found that the employer (Home Depot) violated Section 8(a)(1) of the Act by directing the employee to remove the BLM insignia because it violated the company’s uniform policy. The employee resigned instead of removing the insignia from their uniform.

Procedural History

In June 2022, an ALJ found that the employer did not violate the Act by requiring the employee to remove the BLM messaging, because the insignia lacked “an objective, and sufficiently direct, relationship to terms and conditions of employment.” The ALJ concluded that the BLM messaging was “primarily used, and generally understood, to address the unjustified killings of Black individuals by law enforcement and vigilantes … [and] while a matter of profound societal importance, is not directly relevant to the terms, conditions, or lot of Home Depot’s employees as employees.” (emphasis in original).

Further, the ALJ determined that the employee’s motivation for displaying the BLM message (i.e., their dissatisfaction with their treatment as employees) was not relevant. The petitioner sought review before the NLRB.

NLRB Finds Wearing BLM Insignia at Work Constitutes Protected Activity

On review, the NLRB concluded that the employee’s refusal to remove the BLM insignia was protected concerted activity under Section 7 of the Act because the activity was for “mutual aid or protection,” as it was a “logical outgrowth” of the employee’s and other employees’ complaints about race discrimination in the workplace that allegedly occurred over the preceding months.

According to the NLRB, an individual employee’s actions are a “logical outgrowth” of the concerns expressed by the group where “the record shows the existence of a group complaint,” even though “the employees acted individually and without coordination.” In this case, the fact that the group complaints post-dated the employee’s initial display of the BLM insignia was not dispositive. Instead, and contrary to the ALJ’s conclusion, the NLRB focused on whether the employee’s subsequent refusal to remove the BLM insignia was a “logical outgrowth” of the prior protected concerted activity.

Additionally, the NLRB found that no special circumstances existed, such that there was a sufficient justification for the company to preclude their employees from wearing such insignia. For instance, this was not a situation where display of the insignia might jeopardize employee safety, exacerbate employee dissention, or unreasonably interfere with the company’s public image. In this regard, the NLRB concluded that the company’s public image was not at issue because it encourages employees to customize their uniforms. Likewise, the NLRB held that the company failed to put forth evidence of any non-speculative imminent risks to employee safety from the public and/or any violent or disruptive acts or threats thereof by other employees connected to the BLM insignia.

The NLRB ordered the employer to, among other things, (1) cease and desist from prohibiting employees from taking part in “protected concerted activities,” such as displaying “Black Lives Matter” insignia on their uniform aprons; (2) reinstate the employee without prejudice and compensate him for lost back pay and any adverse tax consequences; and (3) post notice of the decision for 60 days at the store where the dispute arose. The company may still appeal the Board’s decision to a federal appeals court.

Significantly, the NLRB declined to adopt a broader objective advanced by the NLRB General Counsel that protesting civil rights issues on the job is “inherently concerted” activity that is protected by Section 7 of the Act. The fact-intensive reasoning behind the NLRB’s decision here reflects that the underlying circumstances in each situation will play a significant role in the legal outcome as to whether the conduct at issue is protected, and it is not advisable to adopt a broad, one-size fits all rule from this decision.

© 2024 Proskauer Rose LLP.
For more news on Protected Concerted Activity under the NLRA, visit the NLR Labor & Employment section.

USCIS Releases H-1B Lottery Information: Registration Process Begins March 6

U.S. Citizenship and Immigration Services (USCIS) released guidance on the Fiscal Year (FY) 2025 H-1B lottery process. The registration system will be open from noon Eastern, March 6, 2024 until noon Eastern, March 22, 2024. The application fee will remain $10 for each case entered into the system.

This year, USCIS will implement a new “Beneficiary Centric Selection” process that will help to ensure all beneficiaries have an equal chance of selection, regardless of the number of times each beneficiary is registered. Please see “Winning Futures? The H-1B ‘Lottery’ Will Open Soon. USCIS Predicts Success” for more details.

Why is H-1B filing season important?

This is the only time of year (with minor exceptions indicated below) USCIS accepts H-1B specialty worker petitions for the next fiscal year, which begins Oct. 1, 2024. For a petition to qualify in the H-1B category, the job offered must be a specialty occupation in which a bachelor’s degree (or its equivalent) is normally the minimum requirement, and the foreign national employee must hold a bachelor’s degree (or its equivalent) in the specialty defined by the position. In some cases, a bachelor’s-level threshold may be met through a combination of the employee’s education and work experience.

There is an overwhelming demand for the annual allotment of 85,000 new H-1Bs. The number of H-1B approvals requested by employers has reached the annual H-1B cap every year for more than 10 years. Last year, USCIS received 780,884 registrations within the electronic lottery system for 85,000 H-1B slots. If you have an employee that needs a “new” H-1B visa, it is imperative that you take action during the H-1B filing season or you will have to wait a full year for another opportunity.

Electronic registration process in 2024

USCIS will use same the electronic registration system from years past to implement the new beneficiary centric selection process. Employers seeking to file H-1B cap-subject petitions must complete an electronic registration for every case the employer wishes to enter into the H-1B lottery. This year, the employer must enter a valid passport or travel number for each registrant. If selected, the passport or travel number used in the H-1B petition filing must be the same number used at the time of registration. This new approach, focusing on the individual registrant, should increase selection odds.

After the registration period closes, USCIS will conduct a random selection lottery from the registrations. The date of the lottery selection has not been announced but will likely occur on or about April 1, 2024. Employers whose cases are selected will then have at least 90 days to complete and file H-1B petitions with USCIS.

Dinsmore attorneys are available to assist employers in navigating the new application process, including completion of the electronic registration and subsequent preparation and filing of selected petitions. USCIS continues to develop its electronic registration system and is expected to release additional details as the registration period approaches.

Are there certain employees we should consider registering?

Yes, four situations come to mind:

  1. Students who hold F-1 visa status and who are working for your organization under a grant of Curricular Practical Training, Optional Practical Training or STEM Optional Practical Training work permission;
  2. Certain L-1 Intracompany Transferees or TN (USMCA/NAFTA) workers who work for your organization;
  3. Candidates who are not yet working for your organization but whom you have an interest in employing in the near future; and
  4. Dependent spouses who hold H-4 status and who have been authorized to work with an Employment Authorization Document (EAD).

Why F-1 students?

Some F-1 students may qualify for an Optional Practical Training (OPT) work permission that is limited to one year following completion of their degree. Other F-1 students may be eligible for an additional 24 months of STEM OPT work permission. Either way, OPT is time-limited. Furthermore, some additional students may hold Curricular Practical Training (CPT). CPT authorizes employment off campus while the student is still taking classes. These students may be pursuing their first degree in the U.S., or they may have returned to school for an additional degree following exhaustion of their first round of OPT if they were not selected in the H-1B cap lottery. Bottom line: If you have a student working for you on OPT or CPT, it is worth evaluating if they need an H-1B cap registration.

Why L-1 intracompany transferees?

The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial or specialized knowledge capacities for at least one year with a commonly owned foreign company, and who are in the United States working for the same or a related U.S. employer.

L-1 executives or managers (L-1A) may remain in the United States for a maximum of seven years. Specialized knowledge (L-1B) employees may remain for a maximum of five years. There is no possibility of an extension once the seven-or five-year limit has been reached and the time table to complete the permanent residence process continues to climb, especially for Indian foreign nationals.

Why H-4 spouses with employment authorization documents?

H-4 spouses are eligible to apply for an H-4 Employment Authorization Document (EAD) if their spouses in H-1B status have an approved I-140 petition. The H-4 EAD allows the spouse to obtain work authorization and engage in employment in the United States. H-4 spouses working with EADs may wish to have their H-4 statuses changed to H-1B for greater long-term employment security.

Why TN employees?

While TN workers under the U.S. Mexico-Canada Agreement (formerly known as NAFTA) are not limited in employment duration like their L-1 counterparts, pursuing permanent residence while holding TN status can be problematic. Employers may want to change their TN employees to the H-1B category to facilitate permanent residence (green card) sponsorship.

Are there any exemptions from the annual H-1B cap?

Persons already counted under the H-1B cap and who need an extension of stay are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a new employer are exempt from the cap. The annual limitation applies only to persons not yet counted against the annual cap. Also, certain types of educational or nonprofit organizations that file H-1B petitions are exempt from the H-1B numerical limitation.

© 2024 Dinsmore & Shohl LLP. All rights reserved.
by: Katie P. Jacob , Jazmin E. Harris of Dinsmore & Shohl LLP
For more news on H-1B Lottery Information, visit the NLR Immigration section.

Managing Workplace Conflict: 3 Lessons to Learn from the Super Bowl Game Kelce-Reid Incident

During the recent Super Bowl game, millions of viewers witnessed a tense moment that quickly became a talking point far beyond the realm of sports. Kansas City Chiefs’ star tight end, Travis Kelce, was seen apparently pushing and yelling at Head Coach Andy Reid. The incident seemed to stem from the player’s frustration over being sidelined during a crucial part of the game, leading to an outburst that suggested he was demanding more playing time.

This high-profile episode serves as a powerful example for managers and supervisors across all industries, illustrating the challenges of dealing with insubordinate (and possibly disruptive) behavior in the workplace. If not for Coach Reid’s calm and collected response, this incident could have escalated into a far more unpleasant exchange.

Drawing lessons from the incident, here are three key actions that leaders can take when faced with threatening or insubordinate employees:

1. Exercise Professional Restraint and Demonstrate Leadership

The first lesson is the importance of maintaining composure and professionalism. In any situation where tensions may rise, it’s crucial for managers to exercise restraint and avoid escalating the situation further. This approach not only helps in diffusing immediate tension, but also sets a positive example for the rest of the team. It’s essential that managers not misuse their position of power; rather, as Coach Reid exemplified, demonstrating calm and decisive leadership can often de-escalate a potentially volatile situation.

2. Refer to Company Policies and Engage HR

When dealing with insubordination or an outburst by an employee, it’s important to follow established corporate protocols. Managers should consult the company’s employee handbook for procedures to handle complaints and investigations. Filing a formal complaint with Human Resources can initiate a process that is both fair and impartial. Ideally, the HR department should be properly trained to address a tense situation. This step ensures that all parties are heard, and that the incident is addressed thoroughly, respecting the rights and dignity of everyone involved, and setting an example for the rest of the company.

3. Support the Investigative Process

Once a complaint is filed, cooperating fully with the ensuing investigation is paramount. An effective investigation can uncover the root causes of the conflict, offering insights into not just what happened, but why. By supporting this process, managers can help ensure that resolutions are just, and that similar incidents can be prevented in the future. It’s also an opportunity for organizations to reinforce their commitment to a respectful and safe working environment for all employees.

Conclusion

The incident at the Super Bowl game, while unfortunate, provides valuable lessons for leaders in any field. Managing workplace conflict requires a balanced approach that prioritizes restraint, adherence to company policies, and support for the investigative process. By applying these principles, managers and supervisors can navigate complex interpersonal challenges, fostering a workplace culture that is both respectful and productive.

Recognizing principles of good leadership remains constant and essential, whether on the football field or in the office.

 
©2024 Norris McLaughlin P.A., All Rights Reserved
For more on Workplace Conflict, visit the NLR Labor & Employment section.