Labor, Employment, Benefits & Immigration

On September 9, 2021, President Biden announced a sweeping six-pronged plan aimed at addressing the nation’s most recent surge of coronavirus cases fueled by the formidable delta variant. As part of that plan, Biden declared expansive measures, including vaccine mandates that are projected to impact over eighty-million employees in private sector businesses, and have far reaching impacts for employers across multiple industries. As such, employers should be mindful of the following policies to be implemented under Biden’s Action Plan in

Effective July 1, 2021 Virginia employers became subject to a new state overtime law: the Virginia Overtime Wage Act (VOWA) that makes overtime violations and employee misclassifications more costly for employers than the federal Fair Labor Standards Act (FLSA). Like the FLSA, the new Virginia law obligates employers to pay 1.5 times a non-exempt employee’s regular rate of pay for all hours worked in excess of 40 hours in each workweek. However, the VOWA is more onerous on employers (and

On July 9, 2021, President Biden executed a broad Executive Order 14036 (“EO”) entitled Promoting Competition in the American Economy. Among other things, the EO will potentially have a great impact upon non-compete agreements. According to the Fact Sheet explaining the EO, the EO is designed to “promote competition in the American economy, which will lower prices for families, increase wages for workers, and promote innovation and even faster economic growth.” In terms of non-compete clauses, the EO is designed to make

The COVID-19 pandemic changed the way many employers view remote work. Those who had a positive experience may be considering making telecommuting a permanent part of their workplace, but must be aware of the dangers lurking for employers who fail to take into consideration employment and tax compliance associated with remote work. Many states have overlooked temporary remote arrangements necessitated by the pandemic, but will not excuse compliance if remote work continues going forward. Many aspects of the employment relationship are

The deadline for employers to submit and certify 2019 and 2020 EEO-1 Component 1 Data to the Equal Employment Opportunity Commission (EEOC) is Monday, August 23, 2021. Covered employers therefore have a little over one month to complete and submit an EEO-1 Report containing their respective workforce data in accordance with the reporting requirement. The original deadline of July 19, 2021 was extended to August 23 by the EEOC in late June 2021. What is required? Pursuant to Title VII of the

After more than a year of widespread unemployment, 2021 summer travelers saw establishments of all kinds advertising employment openings. With the expiration of pandemic-related federal and state unemployment benefits, many workers are returning to work. On July 2, the Bureau of Labor Statistics reported that employment is up. The jobs report tells us that the U.S. added 850,000 jobs in June, the largest increase in 10 months, though unemployment remains higher than normal at 5.9%. With pandemic restrictions mostly gone

Since vaccines have become readily available, employers have been grappling with whether they should mandate vaccines for employees. Most companies have chosen to “strongly encourage” employees instead of mandating, and many companies have even provided incentives such as gift cards or additional benefits as one way to encourage vaccinations. Earlier this year, one Texas employer, Houston Methodist Hospital, however, established a mandatory vaccination policy. In opposition to the mandatory policy, over one hundred employees of the hospital sued, alleging that the

On June 21, 2021, the Occupational Safety and Health Administration (“OSHA”) published its first mandatory COVID-19 workplace safety rule, which as discussed below, also includes a surprising paid leave component for vaccination, vaccination side effects, and employees that contract COVID-19. The long-awaited Emergency Temporary Standard (“ETS”) applies only to employers in certain healthcare-related work settings and is the first time since the start of the pandemic that OSHA has imposed regulatory requirements relating to COVID-19 workplace safety.  Before the issuance

In February, we outlined some immediate and anticipated changes in the business immigration environment after the Biden Administration took office. Now that several months have passed and the Administration has had time to implement its policies, it is worth revisiting these issues. Regulatory Changes In its waning days, the Trump Administration introduced a number of regulations that would have restricted employment-based immigration programs in various ways. Upon taking office, the Biden Administration instituted a 60-day freeze on all pending and proposed regulations,

Under federal law, all employers (including public, private, government and not-for–profit employers, and employment agencies) are required to report certain data about new employees hired within 20 days of the employee commencing work to the National Directory of New Hires (NDNH). No business is exempt from reporting. Employers must also report re-hires or employees who return to work after 60 days of being laid off, furloughed, separated, granted a leave without pay or terminated from employment. The goals of new-hire reporting

In early 2021, pursuant to INA § 212(f) the President of the United States issued a proclamation continuing the suspension of entry of certain travelers located abroad in an effort to control the spread of COVID (the “novel coronavirus” or “COVID-19”). We have previously discussed COVID-related travel and visa issuance restrictions issued in 2020 here (IV ban) and here (NIV ban). The landscape of restrictions has changed dramatically over the last 16 months. At this time, there are multiple COVID-related geographic

On May 6, 2021, in a much-anticipated move, the Biden Administration announced a final rule withdrawing the employer-friendly independent contractor test published in the last few weeks of Donald Trump’s presidency. The withdrawal is effective immediately. As discussed here, defining workers as employees versus independent contractors under the Fair Labor Standards Act (“FLSA”) can have significant implications on employers. The FLSA requires that employers provide minimum wage and overtime pay to employees, whereas independent contractors enjoy no entitlement to same.

There’s a legal answer and a practical one. Because we’re lawyers, let’s start with the legal answer. Yes, an employer can offer employees incentives to get vaccinated. But doing so potentially creates a wellness program. And wellness programs are subject to several federal laws—HIPAA, the ADA, and GINA, and possibly Title VII (religious discrimination) and the FLSA—which make legal compliance tricky. Under HIPAA, a vaccine incentive is likely to be considered a health-contingent wellness program. This kind of program is required to,

On April 27, 2021 President Biden issued an executive order requiring federal contractors and subcontractors to pay a $15 minimum wage to workers on federal contracts and to federal contract workers with disabilities, and directing the incremental elimination of the tipped sub-minimum wage for federal contractors by 2024. When the New Minimum Wage Goes into Effect Starting January 30, 2022 all federal agencies will need to include a $15 minimum wage in new contract solicitations, and the new minimum wage must be

On March 9, 2021, the United States District Court, Northern District of California issued a ruling in Handloser v. HCL Technologies Ltd., 19-cv-01242-LKH, 2021 WL 879802 (Mar. 9, 2021), applying the 2011 Supreme Court standard established in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011), for individuals to properly assert a Rule 23 class for Title VII of the Civil Rights Act of 1964 discrimination claims. The named plaintiffs filed their complaint against HCL Technologies Ltd., an Indian consulting

Under the American Rescue Plan Act of 2021 (ARPA), which was passed by Congress on March 11, 2021, the cost of health insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) is fully subsidized from April 1, 2021 until September 30, 2021 for individuals who lost their health coverage due to an involuntarily termination or a reduction in hours. The ARPA requires employers to notify eligible individuals about the new COBRA subsidy by May 31, 2021.

As various COVID-19 vaccines become more readily available, employers continue to struggle to address issues relating to the impact of a vaccine on their workplaces.  Real legal and practical risks remain for unwary employers.  In recent surveys, only a small percentage of employers are currently planning to mandate a vaccine for employees to return to work; a much higher percentage intend to encourage or incentivize vaccination; but many are still working on their plan.  This four-part blog post addresses some

The American Rescue Plan Act of 2021, signed on March 11, 2021, requires employers to fully subsidize COBRA for certain eligible individuals. Eligible individuals consist of employees and their spouses and dependents who lost coverage in November 2019 or later due to the employee’s involuntary termination of employment (other than for gross misconduct) or reduction of hours. No subsidy is required for employees who voluntarily terminate employment or those who become eligible for Medicare or other employer’s group health plan. Employers

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA, or the “Act”), which created certain additional benefits for employees about which employers should be aware. Extension of FFRCA Credits The Families First Coronavirus Response Act (FFCRA), originally passed into law on March 14, 2020, required companies with fewer than 500 employees to provide paid leave to employees who were unable to come to work for a number of COVID-19 related reasons. Employers were then entitled to

On March 12, 2021, the Occupational Safety and Health Administration issued a National Emphasis Program (“NEP”), signaling a renewed focus on COVID-19 under the Biden Administration. A NEP is a temporary program that focuses OSHA's resources on particular hazards and high-hazard industries based on an evaluation of inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, inspection findings, and other available information sources. The recently issued NEP is viewed as a response to

On March 9, 2021, the House of Representatives passed the PRO Act by a vote of 225 – 206. It now heads to the Senate. The Act’s fate in the Senate is uncertain; however, President Biden has voiced his support for the bill. The PRO Act, if passed, would make sweeping changes to the National Labor Relations Act (NLRA) and tilt the playing field decidedly in favor of organized labor. One area of significant change is with regard to the coverage

The temporary shutdowns in response to the pandemic dealt a major blow to businesses as well as their employees. Since last March, many employers have been forced to shutter their businesses and lay off their workforce. One of the hardest hit sectors has been the coronavirus-sensitive leisure and hospitality industry. The industry alone accounts for 39% of all jobs lost to the pandemic. With the introduction of a vaccine and government restrictions loosening up, businesses are starting to reopen, and

The first two weeks of the Biden Administration have seen a flurry of activity indicating it will move away from the more restrictive immigration environment of the Trump era, including for employment-based immigration programs. This post summarizes some of the early actions the Biden Administration has taken. Regulatory Freeze The Biden Administration instituted a freeze on all pending and proposed regulations for a 60-day period of review. In its last several months, the Trump Administration had issued or proposed a series of

As discussed in our blog “Virginia Takes the Lead in Adopting Workplace Safety Regulations for COVID-19,” in July 2020, Virginia became the first state to enact a temporary COVID-19 emergency workplace rule set to expire on January 27, 2021. The Virginia Safety and Health Codes Board approved a permanent rule on January 13, 2021, that will essentially make the temporary rule permanent, with some changes. The permanent rule must be reviewed by Governor Northam and, if no revisions are requested

The O-1A is a nonimmigrant classification that allows employers and agents to temporarily employ individuals who have “extraordinary ability” in the areas of science, education, business, or athletics in the United States. It initially allows up to three years of employment in the US, and it can be extended in one year terms. The category is reserved for those who have “sustained national or international acclaim and recognition” and are acknowledged as “one of the small percentage who have arisen to

On January 8, 2021, the Department of Homeland Security (“DHS”) published a final rule that would dramatically change how H-1B cap petitions are selected in the annual “lottery.” Under this final rule, the current random selection process would be replaced with a system that gives priority to workers whose offered salary is in the highest wage levels for their occupation and geographic location. The new rule will go into effect 60 days after publication—March 9, 2021—and U.S. Citizenship and Immigration

In response to 2020’s continued accounts of brutality and discrimination against Black people, and the corresponding wave of demands for accountability and racial justice, organizations across the country began implementing additional measures aimed at achieving equity in the workplace. In line with these initiatives, many organizations opted to provide various forms of diversity, equity, and inclusion training for their employees. These trainings often cover topics including unconscious bias, systemic racism, and white privilege. Trump’s Executive Order Seemingly in an effort to taper

On December 15, 2020, the District of Columbia Council unanimously passed one of the strictest bans on employee non-compete agreements in the country, prohibiting nearly all such restrictions on employment both during and after an employee leaves employment with a DC employer. The Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”) prohibits any DC employer from requesting or requiring an employee to sign a non-compete agreement. The Act defines a “non-compete” to include any provision that limits an employee’s

On December 27, 2020, President Trump signed a $900 billion COVID-19 relief bill, providing for, among other things, a $300 per week supplemental unemployment benefit, direct payment checks of up to $600 per adult and child, $284 billion in Paycheck Protection Program (“PPP”) loans, and $25 billion in rental assistance.   So what effect will this relief bill have on the paid leave mandated by the Family First Coronavirus Response Act (the “FFCRA”)?  As detailed in a blog post on March

As news of a COVID-19 vaccine increased during the late fall, employers were anxiously awaiting EEOC guidance as to whether they could require employees to get vaccinated. While it will be several more months before the vaccine will be available to the general public, employers are thinking ahead and have been looking for guidance about their ability to require vaccination. In addition, health care employers and employers in essential businesses will be among the first to have to make these

On November 18, 2020, the United States Court of Appeals for the Fourth Circuit upheld a decision that retailer Lowe’s Home Centers LLC (“Lowe’s”) did not violate the Americans with Disabilities Act (ADA) when it removed a disabled store manager from his position and declined to reassign him to a similarly situated vacant managerial position.   The Plaintiff, Charles Elledge, was a long time employee of Lowe’s and had worked in a demanding position managing multiple store locations and working long

Sometimes, a retirement plan is required to distribute a missing participant’s account balance into a state’s unclaimed property fund. Until recently, it was unclear whether this distribution is subject to withholding of federal income tax and how this distribution is supposed to be reported to the IRS. The IRS finally cleared up both issues by ruling that (1) the total amount distributable (i.e., the entire account balance) is subject to withholding of federal income tax, and (2) any distribution of $10

As the holidays approach, many businesses have employees who travel or attend large family gatherings. Employers who have reopened their doors to working in-person will face questions about how to safely return to work after potential exposure during the holidays. Here are a few likely questions and guidance for employers to help control the spread of COVID-19. 1.  Can employers monitor where employees travel? Yes. According the Equal Employment Opportunity Center (“EEOC”), if the CDC or state or local public health officials

Background   On August 8, 2020, a Presidential Memorandum was issued that allowed employers to defer withholding and payment of certain payroll tax obligations of their employees. To implement the Presidential Memorandum, the IRS issued Notice 2020-65 (“Notice”) on August 28, 2020, which gave employers the option to defer withholding of employee-side Social Security taxes from employee paychecks. The Notice allowed for the deferral of such withholding for wages paid from September 1, 2020 to December 31, 2020, if the wages were

On September 28, 2020, the New York City Council enacted Int 2032-2020, “Requiring city employers to provide earned safe and sick time to employees.” This local law amended the city’s Paid Safe and Sick Leave law and becomes effective in two parts. On September 30, 2020, the following amendments became effective: Employers must provide domestic workers with 40 hours of paid safe and sick leave; Employers must allow employees to use safe and sick leave as it is accrued; Employers must reimburse employees who

The Equal Employment Opportunity Commission (“EEOC” or “Agency”) has issued new procedural regulations for handling employment discrimination charges. 29 CFR 1601; 29 CFR 1626. The regulations now provide for the digital filing of charge-related documents. The EEOC’s digital charge filing system was piloted in 2015 and has been in place for some time on certain charges. While digital filing is not compulsory, it is now codified as the preferred option for charging parties and respondents to submit documents to the

On October 9, 2020, the Equal Employment Opportunity Commission (EEOC or Commission) published in the Federal Register a proposed rule describing amendments it intends to make to the regulations governing the statutory conciliation process. As stated in the proposed rule, the EEOC “… believes that providing greater clarity to the conciliation process will enhance the effectiveness of the process and ensure that the [EEOC] meets its statutory obligations.” Citing Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), the EEOC

As detailed in an earlier blog post, as of May 26, 2020, the U.S. Occupational Safety and Health Administration (OSHA) requires employers to determine whether employee cases of COVID-19 are work-related, and therefore recordable on the employer’s OSHA 300 Log. OSHA has issued guidance to assist employers in making the determination of work-relatedness, which should serve as a starting point in responding to a report that an employee has tested positive for COVID-19. As discussed previously, the determination of work-relatedness

On October 8, 2020, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) published new regulations that could dramatically tighten the eligibility requirements for H-1B visa petitions and substantially raise the wages that must be paid to foreign nationals in certain visa classifications, including H-1B and many employment-based green card categories. These new regulations are part of the Trump Administration’s wider effort to restrict legal immigration programs and further the goals of the Buy American,

On September 22, 2020 the Department of Labor  ("DOL") issued proposed regulations explaining how to determine whether a worker should be classified as an employee covered under the Fair Labor Standards Act ("FLSA") or an independent contractor (who is not covered by the FLSA). The proposed regulations would make it easier for companies to classify workers as independent contractors thereby eliminating their claims under FLSA (overtime and minimum wage for non-exempt employees), as well as claims under the Family Medical Leave

In the wake of the killing of George Floyd and other African Americans by police officers, many government contractors have undertaken social justice initiatives and increased training around unconscious or implicit bias. On September 22, 2010 President Trump signed an Executive Order "Combating Race and Sex Stereotyping" extending his ban on governmental agencies providing training that they believe is "divisive" and "promotes sexual and racial stereotyping" to Federal contractors and recipients of Federal grants. The Executive Order also requires posting notice of

U.S. Citizenship and Immigration Services (USCIS) will implement a new fee schedule on October 2, 2020 to account for increased costs in adjudicating immigration applications and petitions. The new fee schedule also ushers in new versions of certain immigration forms, including those for work visa categories, as well as a longer timeframe for premium processing. Fees for USCIS petitions and applications increased most recently in December 2016 and 2019, and they are slated for another increase in October 2020. On August

With just a few weeks left in FY 2020, the OFCCP has published new lists of 2,450 establishments for audit. Federal contractors and subcontractors are highly encouraged to check the lists—one for supply and service contractors (which includes universities/colleges for the first time in three years), and one for construction contractors. The lists can be found here. The CSAL lists reflect a number of changes at OFCCP that are new. First, in a new era of remote audits, OFCCP District Offices

Gender segregation in bathrooms, which some conservatives have predicted for decades would be undermined by sex discrimination laws, has in fact proven to be a persistent target for civil rights litigation in at least one narrow respect:  when bathroom access by the transgendered is restricted. The United States Court of Appeals for the Fourth Circuit, which hears federal cases brought in Maryland and Virginia, and three other southeastern states, recently re-addressed the subject as it affected a transgendered public school

The Center for Disease Control (“CDC”) previously advised that it was not necessary for asymptomatic individuals to be tested even after a known exposure to COVID-19. This guidance drew sharp criticism from many, including the Infectious Disease Society of America. On September 18, 2020, the CDC reversed its course. Now, because of “the significance of asymptomatic and pre-symptomatic transmission,” guidelines state that anyone who has been within 6 feet of a person with COVID-19 for at least 15 minutes should

On September 16, 2020, the U.S. Department of Labor published emergency regulations (making them effective as of the day of publication) revising certain portions of the Families First Coronavirus Response act (FFCRA) in response to a decision from a federal court in New York finding certain portions of the previous regulations invalid. The court had struck down four important provisions of the existing regulations relating to: The work-availability requirements Employer consent to intermittent leave The definition of “health care provider” Documentation required for leave The court’s

For those who may have missed it during a pandemic summer, on May 7, 2020 Governor Hogan allowed hundreds of Maryland bills to become law, some of which will have direct implications on employers. A summary of the employment related laws, along with recommendations on how employers can implement them in the workplace, is provided in Miles & Stockbridge’s June 8, 2020 publication titled “Maryland Enacts Host of New Laws”. Each of the laws discussed therein will become effective on

With Labor Day upon us, many families are facing the start of a school year with remote or hybrid learning. As a result, many employees must figure out how to satisfy their work obligations while making alternate arrangements for childcare until schools re-open in-person. During this time, employers must keep in mind that the Family First Coronavirus Response Act (FFCRA) may provide paid leave to eligible employees struggling to arrange for childcare as the result of school closures. As detailed in a

On August 24, 2020, the U.S. Department of Labor released a Field Assistance Bulletin to provide guidance addressing how employers should track the number of hours worked by employees who are working remotely. While the guidance was issued to respond to current conditions caused by the COVID-19 pandemic, the guidance is a summary of existing law and applies to all remote working arrangements, not just those resulting from the pandemic. Under the federal Fair Labor Standards Act, employers have an obligation

In September 2019, the California legislature passed, and Governor Gavin Newsom signed into law, Assembly Bill 5 (“AB5”), which established a more stringent test for classifying workers as independent contractors. This so-called “ABC test” requires a hiring entity to establish all three of the following conditions in order to classify an individual as an independent contractor: The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract