Tag: Employment Law

New Rule Provides Additional Flexibility, Enhanced Opportunities for Certain Highly Skills Workers

visaOn January 13, 2016, the Department of Homeland Security (“DHS”) released an advance copy of an updated rule providing additional flexibility and enhanced opportunities for certain highly skilled workers. It covers workers who are in the U.S. in H-1B1 (from Chile and Singapore), E-3 (from Australia), temporary workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transition Worker (CW-1), and immigrant classification for outstanding professors and researchers (EB-1).

Current regulation (8 CFR § 2741.12(b)(20)) allows other high skilled workers in the following nonimmigrant visa categories to continue to work for up to 240 days beyond their current expiration date as long as they file a timely extension request before the expiration date:

  • H-1B specialty occupation workers,
  • L-1 intracompany/multinational corporation transferees,
  • O-1 extraordinary ability aliens,
  • E-1/E-2 treaty traders and investors,
  • TN NAFTA professionals, and
  • Certain international organizational workers and so on.

Because the nonimmigrant visa categories of H-1B1 and E-3 were created after the prior regulation was published, visa holders in these categories have not been able to continue to work unless they submitted their extension requests early or paid an additional $1,225 USCIS premium processing fee for expedited services.

Additionally, DHS added in its regulation allowing immigrant visa (“green card”) applicants to include important patents or prestigious peer-reviewed funding grants as evidence to establish their eligibility as an internationally recognized outstanding professor or researcher in their specialized academic field. Under 8 CFR 204.5(i)(3)(i), USCIS would accept an applicant’s claim to have met the statutory requirement for having satisfied two of the six criteria, such as receipt of major prizes or awards, original authorship of scholarly articles, serving as a judge of the work of others. Although important patents or prestigious peer-reviewed funding grants previously could be used to support the international recognition criterion for final merits review by USCIS, DHS has now codified this as threshold eligibility evidence to meet the statutory requirement.

The final rule is scheduled to be published in the Federal Register on January 15, 2016 with an effective date of February 16, 2016.

Article By Minnie Fu of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Executive Action: Obama’s Legacy and 2016 Predictions (Part 2 of 2)

As promised in our previous post, today we conclude our predictions on President Obama’s 2016 executive activity.  While we believe the President’s final executive orders will target immigration and perhaps even corporate political expenditures, we predict executive agency action will cover a broad range of pressing labor and employment issues.  With federal legislative gridlock expected to continue through 2016, employers should prepare themselves for a barrage of agency activity, especially from the Equal Employment Opportunity Commission (“EEOC”), National Labor Relations Board (“NLRB”), and Department of Labor (“DOL”).  Our summary is below.

Expected Agency Activity of 2016

Based on the 2015 Supreme Court decisions in Young v. UPS and EEOC v. Abercrombie & Fitch Stores, Inc. and the EEOC’s interest in systematic discrimination in the workplace, we predict the EEOC will focus heavily on companies’ policies regarding pregnancy and religious discrimination and accommodation in 2016.  As a refresher, in Young the Court held a genuine factual dispute existed as to whether UPS provided more favorable treatment to at least some employees whose situation “cannot reasonably be distinguished” from Ms. Young’s —e.g., workers unable to lift up to 70 pounds due to reasons other than pregnancy limitations such as a workplace injury or a recognized disability.  In Abercrombie (blogged about here) the Court concluded an employer violates Title VII by rejecting an applicant in order to avoid making a religious accommodation, even if the employer only has an “unsubstantiated suspicion” that the applicant may eventually request an accommodation.

Along with discrimination/accommodation policies, we predict the EEOC and NLRB will focus on company-wide social media policies in 2016. While the NLRB has been hounding employers on social media policies since 2010, the EEOC did not really begin gathering information on the issue until 2014.   We believe 2016 will be the year the EEOC begins targeting employers’ social media policies to evidence discrimination.  We also predict the EEOC’s focus on gender identity discrimination and the NLRB’s focus on FLSA class action settlements will continue with full force into 2016.

With the DOL’s Final Rule on overtime exemption updates expected to roll out this year, we predict the agency will focus on wage-hour reform and that employers will be expected to get into compliance sooner rather than later. Although Solicitor of Labor Patricia Smith stated in November 2015 that final guidelines will not likely be issued until “late 2016,” we believe the DOL will push them out before November’s presidential election.  Employers should expect the Final Rule to increase the minimum salary exemption requirement from $455/week to $970/week.  We would not be surprised if the DOL also finalizes revisions to the duties test, which is a factor along with salary level used to determine whether an employee qualifies under a white collar exemption to minimum wage and overtime rules.

Although the 2016 federal legislation horizon looks bleak, President Obama and his executive agencies are poised for a busy final year. Stay tuned for further developments.

Article By Kristine M. Woliver of Squire Patton Boggs (US) LLP
© Copyright 2015 Squire Patton Boggs (US) LLP

Executive Action: Obama’s Legacy and 2016 Predictions (Part 1 of 2)

Federal legislation in 2015 was plagued by the same congressional gridlock that President Obama has faced throughout most of his presidency. The President has therefore turned to executive action to achieve many of his goals over the past seven years and we expect this trend to continue with gusto in 2016.  Below is a summary of our predictions for 2016’s executive orders and agency action.

Expected Action: Executive Orders in 2016

On January 5, President Obama announced several executive orders seeking to expand background checks and place new licensing requirements on gun show and online gun dealers. During the State of the Union address on January 12, the President expressed his frustrations with stalled immigration reform and corporate influence in politics.  Throughout the remainder of his term, the President might take action on a variety of issues affecting employers nationwide, including:

  • Implementing 2014 Immigration Orders extending work permits to certain undocumented workers. The Fifth Circuit held [pdf] in November 2015 that a federal district court properly blocked the Department of Homeland Security from implementing Obama’s immigration plan, opening the door for Supreme Court review. If the High Court grants the Obama Administration’s certiorari petition and reverses the injunction order, the President will be able to substantively implement a sizable chunk of his long-stalled immigration reform.

  • Improving job portability for beneficiaries of employment-based visa petitions. President Obama’s Department of Homeland Security announced proposed changes to its regulations on this immigration issue, among others, on December 31, 2015. The comment period for the Proposed Rule extends through February 29.

  • Restricting Citizens United and its progeny by requiring contractors to disclose certain political contributions. President Obama has a longstanding and vocal opposition to this case and its effect on corporate political expenditures. The President stated on January 12 during the State of the Union address that he has had a difficult time working with republicans “making sure the system’s not rigged in favor of the wealthiest and biggest corporations.”

It is likely the President’s policies will extend beyond his own executive orders to the federal agencies under his administration, our predictions to be summarized tomorrow in Part 2.

Article By Kristine M. Woliver of Squire Patton Boggs (US) LLP
© Copyright 2015 Squire Patton Boggs (US) LLP

Covered Contractors Take Note of Changes in 2016

Pay transparency final rule is in effect

Executive Order 13665 (EO 13665), the Final Rule promoting pay transparency protection, took effect on January 11, 2016. The executive order covers employees and job applicants of companies with over $10,000 in federal contracts/subcontracts entered into or modified on or after January 11, 2016.

If covered by the law, employers must:

  • Disseminate the Pay Transparency Statement, as prescribed and made available by the OFCCP on its website, by either electronic posting OR by posting a copy of the provision in conspicuous places available to employees and applicants for employment; and

  • Incorporate the Pay Transparency Statement into existing employee manuals or handbooks; and

  • Update your equal employment opportunity clause in covered federal contracts/subcontracts and purchase orders to include a prohibition from discharging, or in any manner discriminating against any employee or applicant for employment because the employee or applicant inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. If you are currently only incorporating the nondiscrimination obligation by reference to 41 CFR 60-1.4, you may continue to do so.

It is important to note that the pay transparency nondiscrimination provision is required to be posted in addition to the required “EEO is the Law” posting. Once the “EEO is the Law” poster is updated to reflect the new pay transparency nondiscrimination provision, it will be made available on the OFCCP’s and EEOC’s website. In the meantime, however, you can place the supplement to the “EEO is the Law” poster alongside the “EEO is the Law” poster. You can find the supplement on the OFCCP’s website.

Minimum wage increases for covered contractors

Effective as of January 1, 2016, the minimum wage for certain employees of covered federal contractors will increase by five cents to $10.15 per hour, and the minimum cash wage for tipped employees working on or in connection with covered federal contracts will increase to $5.85 per hour.

Covered contracts include those contracts resulting from solicitation issues on or after January 1, 2015, and contracts awarded outside of the solicitation process on or after January 1, 2015. Significantly, not all federal contractors are subject to this new requirement. As a practical matter, most “supply” contractors, or those providing goods (and not services) to the federal government should not be covered by this new Executive Order.

Article By Margaret R. Kurlinski & Deborah  Rehorst of Godfrey & Kahn S.C.

Copyright © 2015 Godfrey & Kahn S.C.

Exercise Care When Terminating Employee Who Holds H-1B Status

If an employer doesn’t follow certain requirements when it terminates an employee holding an H-1B visa, then the employer could be surprised to learn that employee wasn’t properly terminated, and the obligation to pay that employee wages and benefits continues despite the attempted termination. As background, Department of Labor (DOL) regulations at 20 CFR §655.731 provide guidance regarding wage obligations relating to H-1B (“specialty occupation”) employees.  Employers are required to pay to H-1B visa holders the higher of the prevailing wage for the occupation, or the actual wage for the position, as confirmed in the Labor Condition Application (LCA) that the employer must file during the H-1B petition process.

This wage obligation even applies to H-1B nonimmigrants who have been “benched” or are no longer actively working for the employer.  When an employer terminates an H-1B employee prior to the expiration date of the employee’s H-1B status, DOL considers this action to be a form of benching the employee UNLESS/UNTIL the employer has taken the following steps to effectuate a “bona fide” termination:

STEP 1 – The employer must notify the USCIS that the relationship has been terminated (USCIS will then cancel the petition); and

STEP 2 – The employer must provide the employee with offer of payment for return transportation abroad [for these purposes, the term “abroad” is defined in 8 CFR 214.2(h)(4)(iii)(E) as the foreign national’s last place of foreign residence].

Although not required by regulation, it is also advisable for the employer to withdraw the underlying Labor Condition Application (LCA), as long as the terminated employee is the only employee who has been covered by that particular LCA.

Failure to take Steps 1 and 2 above may result in DOL’s requiring the employer to pay back wages commencing on the date of attempted dismissal and continuing until the date upon which DOL determines that the termination has been perfected.

Note that these regulations do not apply to an H-1B employee who has voluntarily terminated his/her employment prior to the H-1B expiration date. Termination by the employer launches these stringent requirements.  In reality, many terminated H-1B employees are able fairly quickly to secure new employment and to transfer their H-1B sponsorship to the new employer; however, these two simple steps should shield the original H-1B sponsor from potential back-pay obligations.Article By

ARTICLE by Nancy M. Lawrence of Odin, Feldman & Pittleman, P.C.
© 2015 Odin, Feldman & Pittleman, P.C.

EEOC Sues McDonald's for Disability Discrimination

mcdonalds logoFast Food Giant Denied Sign Language Interpreter for Deaf Applicant

KANSAS CITY, Mo. — McDonald’s Corporation and McDonald’s Restaurants of Missouri violated federal law by refusing to accommodate and hire a deaf applicant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the suit, Ricky Washington, who is deaf, applied online for a job at a McDonald’s restaurant in Belton, Mo. in June 2012. Washington indicated on his application that he attended Kansas School for the Deaf. Washington also said he had previous job experience working as a cook and clean-up team member at a McDonald’s restaurant in Louisiana in 2009. When the Belton restaurant manager learned Washington needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, despite Washington’s sister volunteering to act as the interpreter. Restaurant management continued to interview and hire new workers after Washington made several attempts to schedule an interview.

Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against people with disabilities in employment and requires employers to make reasonable accommodations for job applicants so they will have equal opportunities during the application process. EEOC filed its lawsuit (EEOC v. McDonald’s Corporation, et al, 4:15-cv-01004-FJG) in U.S. District Court for the Western District of Missouri after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC seeks back pay, compensatory and punitive damages, and injunctive relief, including training for all McDonald’s managers on accommodations for applicants with disabilities, particularly those who are deaf.

EEOC St. Louis District Director James R. Neely, Jr. said, “Removing obstacles in the hiring process for people with disabilities is a national priority for EEOC. All employers, but especially large ones, should join with the agency to make sure everyone has equal access to the employment process.”

“People with disabilities have one of the highest unemployment rates in the country,” added EEOC Regional Attorney Andrea G. Baran. “Providing equal employment opportunities to all job applicants – including those with disabilities – is not just the law, it is good for our economy and our workplaces.”

According to company information, McDonald’s is a global fast food provider that serves over sixty-nine million customers per day in 100 different countries.  The Belton, Mo. restaurant is owned and operated by the corporation’s world-wide headquarters in Oak Brook, Illinois.

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma and a portion of southern Illinois.

EEOC is responsible for enforcing federal laws prohibiting employment discrimination.

The original content can be viewed here.

© Copyright U.S. Equal Employment Opportunity Commission

EEOC Sues McDonald’s for Disability Discrimination

mcdonalds logoFast Food Giant Denied Sign Language Interpreter for Deaf Applicant

KANSAS CITY, Mo. — McDonald’s Corporation and McDonald’s Restaurants of Missouri violated federal law by refusing to accommodate and hire a deaf applicant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the suit, Ricky Washington, who is deaf, applied online for a job at a McDonald’s restaurant in Belton, Mo. in June 2012. Washington indicated on his application that he attended Kansas School for the Deaf. Washington also said he had previous job experience working as a cook and clean-up team member at a McDonald’s restaurant in Louisiana in 2009. When the Belton restaurant manager learned Washington needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, despite Washington’s sister volunteering to act as the interpreter. Restaurant management continued to interview and hire new workers after Washington made several attempts to schedule an interview.

Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against people with disabilities in employment and requires employers to make reasonable accommodations for job applicants so they will have equal opportunities during the application process. EEOC filed its lawsuit (EEOC v. McDonald’s Corporation, et al, 4:15-cv-01004-FJG) in U.S. District Court for the Western District of Missouri after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC seeks back pay, compensatory and punitive damages, and injunctive relief, including training for all McDonald’s managers on accommodations for applicants with disabilities, particularly those who are deaf.

EEOC St. Louis District Director James R. Neely, Jr. said, “Removing obstacles in the hiring process for people with disabilities is a national priority for EEOC. All employers, but especially large ones, should join with the agency to make sure everyone has equal access to the employment process.”

“People with disabilities have one of the highest unemployment rates in the country,” added EEOC Regional Attorney Andrea G. Baran. “Providing equal employment opportunities to all job applicants – including those with disabilities – is not just the law, it is good for our economy and our workplaces.”

According to company information, McDonald’s is a global fast food provider that serves over sixty-nine million customers per day in 100 different countries.  The Belton, Mo. restaurant is owned and operated by the corporation’s world-wide headquarters in Oak Brook, Illinois.

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma and a portion of southern Illinois.

EEOC is responsible for enforcing federal laws prohibiting employment discrimination.

The original content can be viewed here.

© Copyright U.S. Equal Employment Opportunity Commission

EMPLOYERS: The #ElderlyChristmasSongs Hashtag Is Trending On Twitter

We have posted numerous blogs discussing the need for employers to stay on top of what is trending on the Internet. Why? Because trending topics can sometimes lead to controversial discussions that might not be consistent with an employer’s EEO Policy. As a result, we explained that it would be prudent to understand what may be the current topic being discussed around the watercooler.

Here is a follow up to those posts. The #ElderlyChristmasSongs hashtag is currently trending on Twitter. What is the relevance of this topic to employers? A quick search shows that a lot of the content posted can be construed as inappropriate and/or discriminatory (although presumably meant to be humorous).  It’s the middle of the work day where we are – so we can only presume a lot of this content is being posted by employees in the workplace.

Remember: The Age Discrimination in Employment Act and many state laws prohibit discrimination based on age.  The more questionable content generated in the workplace, the better chance an employee can argue there is evidence of a convincing mosaic of discrimination tolerated by the employer. Be sure to remind employees of your company’s EEO policy if you come across any inappropriate content and/or discussions. And, as always, be sure to stay on top of trends that may have an impact in the workplace.

Article By Peter T. Tschanz of Barnes & Thornburg LLP
© 2015 BARNES & THORNBURG LLP

Holiday Party Checklist—Plan Ahead to Minimize Employer Risks

Delicious food, fine wines, music, camaraderie, laughter – all ingredients for a great holiday get-together.  What could go wrong?  Too much, unfortunately.  Employees may drink too much, act inappropriately, offend co-workers or guests, hurt themselves or others, or even start a brawl. Depending on the circumstances, your company may find itself potentially liable for the inappropriate or unlawful actions of your employees at company-sponsored parties.  You can help minimize the risks associated with holiday parties by following these five tips.

  • Avoid or Limit Alcohol

Employers face potential liability when providing alcohol at a company holiday event when someone gets hurt due to drunk driving, falling down, etc., or when inappropriate behavior crosses the line from embarrassing to unlawful, such as sexual harassment or violence during an argument.  You can limit your company’s exposure for such conduct by either banning alcohol entirely (we know that may not be well-received in some situations), or limiting each person’s consumption through the use of drink tickets or a 2-drink limit.  If you choose to allow alcohol at your events, don’t allow free access to the alcohol (e.g., open bar, self-serve beer or unlimited wine bottles).  Instead have a professional, licensed bartender serve the alcohol as they are trained not to over-serve patrons.  Be sure to offer plenty of food and non-alcoholic beverages.  Arrange for taxis or hotel stays if someone over-indulges.  Schedule the event during the week so folks are less inclined to get carried away. Set an end time for the party and shut down the bar at least a half hour before the event closes.  Do not authorize or condone “after parties.” Finally, designate some supervisors or managers to refrain from drinking alcohol to make sure things don’t get out of hand.

  • Keep Harassing Behavior in Check

Make sure that your sexual harassment policy is up-to-date and that it applies to company parties, even if held off company premises.  Send out a reminder to employees in advance of the party that all company policies, including those prohibiting harassment and other inappropriate conduct, apply to the party. Consider making the event a family party where employees may bring their spouse, significant other, or children as the presence of family members and children often deters inappropriate behavior which could give rise to a harassment complaint.  Make sure that supervisors and managers watch out for potentially harassing conduct and are trained to intervene as necessary.

  • Respect Religious Differences and Keep the Party Neutral 

Although many holidays toward the end of the year are religious in nature, be sensitive to your employees’ varying religious beliefs and avoid any conduct that could be construed as favoring one religious group over another.  Refrain from calling your party a “Christmas Party” and stick with the neutral “Holiday Party” instead.  Do not make attendance at the company-sponsored events such as parties, volunteer activities, food drives or other holiday outings mandatory.  Make sure the timing of the company party does not exclude any employees for religious reasons.  For example, because the Jewish Sabbath starts on Friday night, a party on a Friday evening may exclude Jewish employees.  Avoid decorating with religious symbols, such as nativity scenes, menorahs or angels.  There are plenty of neutral decorations, such as snowflakes, holly and reindeer, that can be used instead.

  • Be Wary of Gift Exchanges

Gift exchanges between employees may seem innocuous enough, but consider the potential issues a gift exchange may cause.  Employees may not be able to afford to participate, even within a recommended cost guideline.  Other employees may give sexy or “funny” gifts that end up offending others.  The best practice is to avoid a company or department sponsored gift exchange altogether.  If you decide to allow one among your employees, make sure it is entirely voluntary and no one is pressured or made to feel uncomfortable for not participating.  Set cost guidelines and remind participants that gifts must be appropriate for the workplace.

  • Remember Wage and Hour Laws

If you assign any non-exempt employees to plan, prepare for and staff the party, their hours are likely work hours for which they must be paid.  For example, if your office receptionist is required to be at the door of your holiday party to greet guests and hand out name tags, that individual is likely working and you need to include those hours in his or her weekly work hours when determining regular and overtime wages.  You do not need to pay employees who are attending the party if their attendance is voluntary and they are not expected to provide services that benefit your organization.

Follow this checklist and you’ll avoid last minute holiday headaches and keep your organization out of trouble.

Article By Mark Wiletsky of Holland & Hart LLP

Copyright Holland & Hart LLP 1995-2015.

Client, Staffing Agency and E-Verify: What’s Permissible?

E-Verify LogoCompanies facing an I-9 audit by Immigration and Customs Enforcement (ICE) can be subject to heavy fines and penalties. Some companies that use staffing agencies may especially be concerned about their potential liability, particularly if they believe, after Browning-Ferris, they may be considered a joint employer with their staffing agencies due to the specific facts of the contract.  Can such a business, for its protection, demand that the staffing agency use E-Verify for all individuals placed with the client?

The issue of whether a business may demand that the staffing agency use E-Verify for all staffed individuals implicates the I-9 anti-discrimination provisions that the Department of Justice enforces.  A staffing agency may enroll in E-Verify as an employer or as an E-Verify employer agent with limited participation of hiring sites, but may not designate those hiring sites based on the national origin or citizenship status of employees hired at those sites. If the staffing agency only uses E-Verify at certain sites, it may create the appearance of a discriminatory practice, leading to complaints by employees.

Despite that, a recent TAL, a technical assistance letter, provided general guidelines for staffing agencies in this situation. It first reiterated compliance with the anti-discrimination provisions is required, but also stated that, to the extent E-Verify is used selectively by the staffing agency to meet the client’s demands for reasons “wholly unrelated” to the workers’ citizenship status or national origin, it likely will not violate any anti-discrimination provisions. As with guidance on other employment issues to employers, careful written documentation of the client’s legitimate reasons for the request, wholly unrelated to the citizenship status or national origin of the workers, is essential.

Article By Doreen D. Dodson of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California