Labor, Employment, Benefits & Immigration

Definitely maybe. Severance benefits are subject to ERISA if they comprise a “plan, fund or program.” The Supreme Court held that there is a plan, fund or program for severance benefits if (1) payment requires an “ongoing administrative scheme,” or (2) benefits are more than a one-time, lump-sum payment triggered by a single contingency that may never happen. On what is an ongoing administrative scheme, courts have been notoriously inconsistent about both the minimum required benefit (or combination of benefits) and

During the 2019 legislative session, the Maryland General Assembly passed a new bill called “Criminal Record Screening Practices (Ban the Box),” which prohibited certain employers from inquiring about an applicant’s “criminal record.”  Following the close of the legislative session, Governor Larry Hogan vetoed the bill. Now, in the 2020 session, the Maryland General Assembly has overridden the veto and the initial bill will go into effect. The law applies to employers with 15 or more full-time employees and bans employers from

On January 9, 2020, USCIS published a notice in the Federal Register to formally announce the implementation of the new registration process for H-1B cap-subject (lottery) petitions for fiscal year 2021. According to USCIS, the initial H-1B petition registration period will run from March 1 through March 20, 2020, and selected registrants will be notified no later than March 31, 2020. Employers may submit full petitions and supporting evidence for selected employees within the filing period to be specified by

Citing shortcomings in Federal anti-discrimination law, a growing number of state and local legislatures are enacting laws prohibiting discrimination in regards to hairstyle. Historical Treatment of Hairstyle under Federal Law Title VII of the Civil Rights Act of 1964 – the landmark Federal anti-discrimination law – has long prohibited discrimination on the basis of race, color, or national origin, amongst other protected characteristics.  However, Courts have generally rejected the argument that discrimination on the basis of hairstyle can amount to discrimination on

As we approach the holiday season, immigration practitioners, interested employers, and foreign nationals are gearing up for yet another H-1B lottery season. The upcoming lottery season will be significantly different than in previous years due to USCIS’s implementation of a new H-1B electronic registration system that will dramatically change how H-1B cap-subject petitions are filed and selected. New H-1B Electronic Registration System On January 31, 2019, the Department of Homeland Security published a new rule introducing an electronic registration system for cap-subject

Who’s excited for the company holiday party?! Probably not your friendly neighborhood employment lawyers who will tell you that employees imbibing together can create risk for employers. This doesn’t mean that no fun can be had, but it does mean that employers should do what they can to manage risk in connection with end-of-year celebrations. An employer’s liability for the negligence of its employees following the consumption of alcohol furnished by the employer is called “social host” liability, and varies by

Poland has been designated into the Visa Waiver Program (VWP). Starting November 11, 2019, eligible citizens and nationals of Poland will be able to travel to the United States without a visa for tourism and business trips of up to 90 days.   What is VWP? The VWP is administered by Department of Homeland Security and enables eligible citizens or nationals of designated countries traveling on passports with embedded computer chips, and who have successfully obtained an Electronic System for Travel Authorization

On October 29, 2019, the Seventh Circuit held that Burlington Northern Santa Fe Railway Company (“BNSF”) did not violate the Americans with Disabilities Act (“ADA”) by refusing to hire a job applicant due to his obesity. The applicant, Ronald Shell (“Shell”) sought a job with BNSF as an intermodal equipment operator. The position required performance of various duties including climbing on railcars, driving trucks, and operating cranes to load and unload containers. BNSF gave Shell a conditional offer contingent on his

On October 8, 2019, the United States Supreme Court heard two oral arguments in three highly anticipated cases centered on the controversial issue of whether sexual orientation and transgender status fall within the protected class of “sex” under Title VII, a 1964 civil rights law protecting employees against discrimination. The first argument consolidated two cases with gay male plaintiffs who alleged they were fired because of their sexual orientation, Altitude Express, Inc. v. Zarda and Bostock v. Clayton County. The second argument was

An IT consulting company based in Southern California recently paid $48,193 to one employee after the Department of Labor (DOL)’s Wage and Hour Division (WHD) found that the company violated provisions of the H-1B visa program by failing to comply with Labor Condition Application (LCA) requirements. Specifically, the WHD found in its investigation that Assigncorp had failed to pay the wage rate required by the LCA to its employee. Notably, in calculating the back wages owed to the employee, the

Effective January 1, 2020, an estimated 1.3 million workers may be newly eligible for overtime pay under the United States Department of Labor’s (“DOL”) final rule announced on Tuesday. The final rule updates the regulations issued under the Fair Labor Standards Act (“FLSA”) concerning exemptions from the Act’s requirements, codified at 29 CFR § 541. This is a significant change for employers given that the salary threshold for overtime eligibility was last updated 15 years ago. The salary threshold has been

For a number of years, the Equal Employment Opportunity Commission (“EEOC”) has taken the position that, pursuant to the Americans with Disabilities Act (“ADA”), an employer’s obligation to provide a reasonable accommodation requires the employer to reassign disabled employees to an open position without requiring them to compete for the job. This position has been hotly contested and courts across the country have reached differing conclusions. Until recently, no court in Maryland had opined on this issue. The U.S. District

On September 3, 2019, U.S. Citizenship and Immigration Services (USCIS) announced a notice of proposed rulemaking that would require employers seeking to file H-1B cap subject petitions to pay a $10 fee for each electronic registration they submit to USCIS. The public has 30 days to submit comments on the proposed regulation. By way of background, USCIS is planning to implement a new system for the filing of cap-subject H-1B petitions. Please see our January 31, 2019 blog post. Under the new

Many employers purchase Employment Practices Liability Insurance (EPLI) to insure against loss as a result of employment claims. However, employers who do not carefully read their policies could be surprised by what is (or is not) covered and end up with buyer’s remorse when they realize they didn’t get what they thought they were getting. EPLI policies may vary in coverage. Employers should read the coverage provisions closely to make sure that they are receiving coverage for claims that are important

With the proliferation of the #MeToo movement in late 2017 came concerns over the role that employment contracts and settlement agreements played in concealing abuse by high-level executives. Confidentiality, non-disclosure and “forced arbitration” clauses came under particular scrutiny with reports that accusers were silenced by such agreements or required to litigate their claims in confidential arbitration proceedings out of the public eye. These personal accounts have prompted the passage of laws across the U.S. restricting or prohibiting non-disclosure agreements and

The #MeToo movement has brought public awareness to claims concerning pay disparity based on gender. As more and more women bring equal pay claims and enter into hefty settlements, the general public begins to internalize the message that women are often paid less than men. In this climate, employers have good reason to review their pay practices and take steps to remedy any inequities discovered before an equal pay claim is raised. Equal pay issues can arise in any industry. In

As many of you know, an employer does not have to offer COBRA health insurance coverage to an employee who’s discharged for “gross misconduct.” Unfortunately, COBRA does not define “gross misconduct,” and courts are divided on what it means. Can you guess if the following facts comprise gross misconduct? Nurse N’s primary duties include giving injections, supplying medications, and assisting with examinations at a family care doctor’s office. Late one afternoon, a patient arrived to receive a Toradol injection, an anti-inflammatory

The Fourth Circuit’s recent decision in Evangeline Parker v. Reema Consulting Services, Incorporated, 915 F.3d 297 (4th Cir. 2019) grabbed headlines for its controversial ruling that workplace gossip can support a sex harassment claim under Title VII, but the Court’s decision may also be a harbinger for a decision down the road recognizing sexual orientation bias as a form of sex-based discrimination under Title VII. The Fourth Circuit Reinforces the View That Title VII Prohibits Gender-Stereotyping Through Workplace Gossip Despite starting as a

A staffing and recruiting company based in El Segundo, California recently paid $58,815 in fines to two H-1B workers after an investigation by the Department of Labor (DOL)’s Wage and Hour Division (WHD) found that the company had not complied with applicable H-1B Labor Condition Application (LCA) requirements. Specifically, the WHD found that the company, Login Consulting Services, Inc.: Improperly required an H-1B worker to pay H-1B visa petition fees; Impermissibly “benched” an H-1B worker (“benching” refers to the practice where H-1B

HSI Increases I-9 Audits to Target Unauthorized Employment In October 2017, U.S. Immigration and Customs Enforcement (“ICE”), a division of the Department of Homeland Security, pledged to increase workplace enforcement by a factor of four to five. The acting ICE director characterized this as a “clear message to employers who scheme to hire and retain a workforce of illegal immigrants.” As promised, there has since been a surge in workplace enforcement actions by ICE, according to statistics published by Homeland Security

Data security and privacy concerns have become one of the top issues keeping business leaders up at night. According to the Ponemon Institute’s 2018 study regarding the cost of data breaches, data breaches are increasingly costly and result in more consumer records being lost or stolen, year after year. 1 In 2017, for example, the average per capita cost of a data breach rose from 2016’s average of $141 to $148, an increase of 4.8%. 2 To help address these concerns, employees should be

In 2016, President Obama released a “Call to Action” encouraging state legislatures to take a hard look at non-compete reform. The “Call to Action” urged states to ban restrictive covenants that impose unnecessary restrictions on the mobility of specific categories of workers, including lower-wage earners. Recently, Maryland joined a growing number of states that have answered the Obama Administration’s call and taken steps to limit the enforceability of non-compete agreements. Since 2016, the Maryland legislature has twice introduced but failed to

When a company negotiates either an employment agreement or separation agreement with an employee, the employee benefits offered are typically a large piece of the total package. However, the terms of these types of agreements are subject to various federal and state laws that can be difficult to navigate and coordinate. Examples include Section 409A of the Internal Revenue Code (the “Code”) and continuation health coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). As such, careful drafting

Introduction The #MeToo movement exploded in the fall of 2017 and put sexual harassment on the front pages of newspapers, websites and other media outlets. Since that time, #MeToo has inspired many people to come forward to tell their stories on sexual harassment and has continued to be relevant in a broad range of arenas from politics to entertainment. Particularly relevant for many employers, is the fact that this movement has had and continues to have a huge impact on the number

Background ‘No-poach’ agreements between businesses not to compete with each other for employees have long been held unlawful under Section 1 of the Sherman Antitrust Act, which prohibits certain restraints on trade and competition. Historically, the Department of Justice (“DOJ”) has filed civil enforcement actions against businesses entering into no-poach agreements with other businesses. In October 2016, however, DOJ and the Federal Trade Commission (“FTC”) issued joint Antitrust Guidance, establishing a stronger stance on enforcement actions and putting businesses on notice that

On May 31, 2019, the Department of State (DOS) updated its immigrant and nonimmigrant visa application forms (Forms DS-260 and DS-160, respectively) to require that visa applicants divulge their social media identifiers for all accounts used in the five-year period preceding the date of the visa application. While the new forms require visa applicants to list the username, handle, screen name and other identifiers associated with any social media account or profile, disclosure of passwords is not required. What’s the reason

If you are a government contractor, one of the last things you want to see is your customer getting embroiled in the workplace problems of your employees. When your employees complain about workplace issues to the government customer, you invariably end up with an irritated customer who questions your ability to manage your workforce — not exactly the kind of performance review that leads to more business. And so it makes for good customer relations — and thus good business

Immediately following the close of the 2019 legislative session, this blog released a summary of the three new bills that could impact your workforce. One of those bills, the “Criminal Record Screening Practices (Ban the Box),” has now been vetoed by Governor Larry Hogan. The bill banned employers from requiring an applicant to disclose a criminal record at any time prior to the first in-person interview. Because of the veto, the bill will not take effect, but employers are still bound by

Coming out of the 2019 legislative session, the Maryland General Assembly passed several new bills that will impact employers in Maryland. Three of the most significant ones are described here: 1.  “The Fight for Fifteen” – Minimum Wage is Going Up After voting to override Governor Larry Hogan’s veto, the Maryland legislature has successfully enacted a new law that eventually raises the minimum wage, statewide, to $15.00 per hour. Despite opposition from Governor Hogan, the Chamber of Commerce and other business organizations

Update: On April 25, 2019, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered that employers must submit expanded annual Employer Information Reports (“EEO-1 Reports”) with employee pay data by September 30, 2019. Ruling from the bench on Thursday morning, Judge Chutkan also ordered the EEOC to retroactively collect 2017 pay data by the same deadline or collect 2019 pay data with 2020 EEO-1 Reports. The EEOC must notify the Court of its choice by

Criminal investigations/arrests and I-9 audits surged in fiscal year 2018 following the U.S. Immigration and Customs Enforcement (ICE)’s announcement of its intent to increase its worksite enforcement efforts. A few FY2018 statistics document this surge: 6,848 worksite investigations were opened (compared to 1,691 in FY2017);   5,981 I-9 audits were initiated (compared to 1,360 in FY 2017);   779 criminal and 1,525 administrative worksite-related arrests occurred (compared to 139 and 172, respectively, in FY2017). Several high-profile enforcement actions have been reported by ICE, including: In April 2018,

Maryland “public work” contractors and subcontractors better be checking their payroll, and then checking it twice, because Senate Bill (“SB”) 300 just came to town! Of course, this level of payroll diligence should already be the norm, but effective October 1, 2019, the stakes for certain public work contractors and subcontractors are just a little bit higher for those that fail to pay the appropriate Maryland prevailing wage rates. As a result, the legal process for their underpaid employees could move much

The U.S. Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”), which is responsible for the regulatory oversight of Federal Government contractors and subcontractors regarding Equal Employment Opportunity and non-discrimination, has just posted its latest Corporate Scheduling Announcement List (“CSAL”). If you are asking what is the Corporate Scheduling Announcement List, now is the time to get smart. On March 25, 2019, OFCCP posted the CSAL (which it does at least annually) to let contractors and subcontractors know that they likely

Yesterday, the Department of Labor (“DOL”) issued a much anticipated Notice of Proposed Rulemaking (“NPRM”) proposing to increase the salary threshold for the so-called “white collar” exemption from the minimum wage and overtime requirements of the Fair Labor Standards Act (“FLSA”) applicable to “bona fide” executive, administrative, professional, outside sales, and computer employees. The proposal would increase the salary level almost 50% - from $455 to $679 per week ($35,308 on an annualized basis) and would allow the inclusion of

On February 28, 2019, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its seventeenth annual Hot Topics in Employment Law seminar to an audience of nearly four hundred clients and friends from throughout Maryland and beyond. Topics covered included workplace sexual harassment a year into the #MeToo movement; the complex interplay of leave requirements under the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), the Maryland Sick and Safe Leave Act, and the top 10 labor

On January 30, 2019, the Department of Homeland Security announced a final rule amending regulations governing H-1B cap-subject petitions. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it also introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The reverse selection order will apply to petitions filed for the fiscal year (FY) 2020 H-1B cap season (starting on

Note to the Reader—on February 1, the EEOC did, if fact, extend the reporting deadline for the 2018 EEO-1 Report until May 31, 2019.  The EEOC will also provide updated submission instructions in the near future.  The EEOC’s notice is available here. If you are a Government prime contractor or subcontractor working under an agreement worth at least $50,000, and you have at least 50 employees (part-time employees included), then March 31, 2019 should mean something to you. March 31 is the day

With the partial shutdown of the federal government entering its nineteenth day (as of today), and with reports indicating there are no signs of an imminent resolution, employers should be aware of the status of federal entities whose activities may impact their workforces and employment law-related issues. Here is a quick rundown of the status of federal agencies that may be relevant to you: 1)    U.S. Department of Labor (DOL) Fully staffed and operational during the shutdown. 2)    National Labor Relations Board (NLRB) Fully staffed

As 2018 draws to a close and much of the world is celebrating the holiday season, the immigration world is preparing to enter another H-1B lottery season. For an overview of the H-1B program and H-1B lottery, please see our December 3 blog. Current H-1B Adjudication Trends Until last year, receiving a Request for Evidence (RFE) was the exception rather than the rule and a denial was a rare occurrence. Now, it is fairly common for an H-1B petition to result in the

Tipsy employees create a slew of risks for employers, and the annual holiday party may be one of the only times in the year when employees have the chance to imbibe together. This doesn’t mean that employers have to be the fun police, but they should take care to minimize risks wherever possible. An employer’s liability for the negligence of its employees following the consumption of alcohol furnished by the employer is called “social host” liability, and varies by state. Maryland’s social host

This year, 2017-2018, the Supreme Court issued numerous cases impacting employers. Here is an overview: Janus v. AFSCME: The case disputed the validity of state laws permitting public sector unions to collect “fair share” or “agency” fees from represented nonmembers. Despite precedent upholding agency fee arrangements, the Supreme Court rejected stare decisis and struck down the fee arrangements stating that they violated the First Amendment. The Court held that public sector unions cannot compel nonmembers to pay fees for collective bargaining services of a

The Department of Homeland Security (DHS) published today in the Federal Register a notice of proposed rulemaking that would change how employers file cap-subject H-1B petitions and how USCIS conducts the H-1B lottery process. The proposed rule would require employers to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. The proposed rule would also reverse the order in which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption. Background on the H-1B

As attracting and retaining employees grows increasingly critical to a business’s success, the pressure is mounting for employers to ensure accurate and consistent execution of leave policies, sometimes across multiple corporate locations nationwide. However, it is becoming more and more difficult for employers to keep up and comply with the changing regulations regarding employee leaves of absence. With additional state and local leave and paid leave laws coming into effect and with the trend of more jurisdictions considering adopting such

The DOL recently released its Fall Regulatory Agenda, signaling its intent to act on some important issues under the Fair Labor Standards Act (“FLSA”). Three items of note are on the agenda with upcoming dates: changes to the salary level for the overtime exemption; a joint employer rule; and clarification of regular rate and basic rate requirements. FLSA Salary Test In 2016, a Texas court struck down the Obama administration’s changes to the FLSA overtime regulations governing the standard for determining when an

On October 1, 2018, Maryland Senate Bill 853, also known as Maryland’s General Contractor Liability for Unpaid Wages Act, went into effect, expanding the liability of a general contractor on a construction project under the Maryland Wage Payment and Collection Law. In the paragraphs below, we detail what this means for contractors, subcontractors and their employees.   Generally, the Maryland Wage Payment and Collection Law requires that an employer set regular pay periods and pay employees at least once every two

In the months since the U.S. Supreme Court handed down its landmark decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31,[1] striking down compulsory agency fees for public employees on First Amendment grounds, there has been extensive public discussion of the ruling’s impact on public sector union finances, public employer operations, and even the potential implications for other compelled-fee organizations like bar associations. But there is another aspect of the court’s ruling, which has received

In our July 12, 2018 blog, we discussed a new U.S. Citizenship and Immigration Services (USCIS) policy requiring the issuance of a Notice to Appear (NTA), which initiates removal proceedings against a foreign national, upon the denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. As we noted at the time, the new policy marked a potentially significant departure from previous practice and the ramifications were unknown, but concerning. USCIS had

For better or worse, when your parents disapprove of the person you’ve chosen to marry, there’s not much recourse in the law (although some might call your parents’ attitude a form of intentional infliction of emotional distress). But according to one New York appellate court, the law does protect employees when their employer disapproves of their spouse. What’s more, it doesn’t even matter whether the employee is actually married as long as the employer believes that to be the case, nor does it matter

In the evening of July 13, 2018 (Friday), U.S. Citizenship and Immigration Services (USCIS) posted new policy guidance giving immigration adjudicators marching orders to deny an immigration application or petition without having to first issue a request for evidence (RFE) or notice of intent to deny (NOID) if the original submission lacks sufficient initial evidence to establish eligibility. This new policy guidance, effective September 11, 2018, rescinds USCIS’s June 3, 2013 policy guidance and represents a drastic policy shift, potentially to

On July 5, 2018, U.S. Citizenship and Immigration Services (USCIS) published new guidance that will generally require that USCIS issue a Notice to Appear (NTA), and thereby initiate removal proceedings, upon its denial of an immigration benefit request where the denial renders the applicant “not legally present” in the United States. This reflects a dramatic change in prior practice that may have far-reaching implications for many.   What Is an NTA? The issuance of an NTA is the government’s method for instituting