Labor, Employment, Benefits & Immigration

On June 4, 2018, the United States Supreme Court issued its long-awaited opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, ultimately siding with the baker who refused to make a wedding cake for a gay couple. Voting 7-2, the majority found that the lower court had inappropriately dismissed the baker’s religious beliefs and in doing so violated his First Amendment right to the free exercise of religion.  However, the majority opinion was narrow and focused largely on the Commission’s

As was widely expected, the United States Supreme Court has held that mandatory agency fees for public sector employees are an unlawful violation of individuals’ free speech rights under the First Amendment to the U.S. Constitution.  The 5-4 majority opinion in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., No. 16-1466, 585 U.S. ___ (June 27, 2018), written by Justice Alito, overturned Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), a 40 year-old

During the Obama Administration, the National Labor Relations Board (“NLRB” or “Board”) adopted an aggressive approach to evaluating the legality of – and often striking down – employee handbook policies and rules, to the consternation of employers across the country. These cases involved, what until then, had widely been considered commonplace handbook policies unrelated to activity that is protected under Section 7 of the National Labor Relations Act (“NLRA”), but the Board, applying an expansive interpretation of a case calledLutheran

The Tax Cuts and Jobs Act added a new tax deferral to encourage private corporations to grant more equity awards. If you’re thinking about it, consider whether the juice is worth the squeeze. The Juice One reason private companies don’t grant equity awards is that many employees are unable or unwilling to write a check for the taxes due when shares are issued. Employees with stock options usually prefer waiting until the company is sold or goes public, when their options can be cashed

For over two years, employers and financial institutions (specifically broker-dealers) that managed investments for retirement plans have been dealing with compliance and administration of the Department of Labor (DOL) Fiduciary Rule (the “Fiduciary Rule”), which primarily expanded the definition of “fiduciary” and created new prohibited transaction exemptions under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code of 1986 (IRC). A more in-depth review of the mechanics of the Fiduciary Rule can be found here and here. The

In a Policy Memorandum issued on May 10, 2018 (USCIS Policy Memorandum), the U.S. Citizenship and Immigration Service (“USCIS”) proposed a substantial change in the manner in which it will calculate periods of unlawful presence for foreign students and scholars in F, J, and M nonimmigrant visa status. As a result, foreign students and scholars need to be more careful than ever to comply with all rules and regulations governing the maintenance of their status in the U.S. to avoid

On March 30, 2018, the U.S. Department of State (DOS) published notices in the Federal Register seeking public comment on its proposal to amend Forms DS-260 and DS-160, which are the forms that must be completed by all immigrant and nonimmigrant visa applicants. The proposed amendments include adding questions that would require the disclosure of the visa applicant’s “identifiers” on a variety of social media platforms over the five year period prior to the completion of the application form. While the DOS

Miles & Stockbridge lawyer Sufen Zhang covers steps employers can take to prepare for a potential enforcement action by U.S. Immigration and Customs Enforcement. The following was published in an alert created by TerraLex, a worldwide network of law firms in which Miles & Stockbridge is the Maryland member firm. What are 3-5 critical action steps employers should take in order to ensure compliance with the US Federal Government in the event of a raid by ICE? In light of the government’s

The Maryland General Assembly passed legislation in the final days of the 2018 session that was aimed at addressing some of the issues brought to light by the #MeToo movement. The Disclosing Sexual Harassment in the Workplace Act of 2018 (“Act”) addresses two different but related areas. The Act has not yet been signed by Governor Hogan, however, the Act passed unanimously in the Senate and by a margin of 136-1 in the House so the chance of a veto is very

In Encino Motorcars LLC v. Navarro, 2018 WL 1568026 (Apr. 2, 2018) (“Encino Motorcars II”), the Supreme Court recently concluded that “service advisors” in a car dealership were not entitled to overtime pay under the Fair Labor Standards Act (FLSA) because of a statutory exemption for certain “salesmen” in the auto industry. It was the second time the Court had addressed the case on successive reviews of Ninth Circuit decisions reviving the matter after a California federal district court had originally

Last month, with its decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) the Sixth Circuit broadened Title VII protection to include protection for individuals who are transgender or transitioning. The Court did not mince words, holding without question that “discrimination on the basis of transgender and transitioning status violates Title VII.” Harris Funeral Homes follows a recent Second Circuit decision holding that sexual orientation is protected under Title VII, which was reported previously on this blog. The

The U.S. Department of Homeland Security’s Office of the Inspector General (OIG) released a report on March 9, 2018 entitled: “USCIS Has Unclear Website Information and Unrealistic Time Goals for Adjudication Green Card Applications.” While this is not surprising news to those of us who practice in this field, the report highlights a significant problem with the processing time information that the USCIS disseminates to the public.   What Processing Time Information Does the USCIS Publish? The USCIS regularly posts data on

The DLLR recently issued new guidance concerning the Maryland Healthy Working Families Act for employers. The new guidance takes the form of sample policies and updated or new responses to the previously posted frequently asked questions. The new guidance is helpful and may answer some of the questions employers face as they implement the Act. The new guidance may be found here. The sample policies address three different scenarios: (i) an employer that awards sick and safe leave at the beginning of

Federal regulations prohibit “related entities” from filing more than one H-1B petition on behalf of a foreign national unless there is a legitimate business need to do so.  This rule is designed to prevent H-1B petitioners from seeking to exploit the random H-1B lottery system by filing multiple petitions in an effort to increase the chance of having one selected in the annual lottery.   The applicable regulations do not define the term “related entities” other than by example, stating in

With its en banc decision on February 26, 2018 in Melissa Zarda v. Altitude Express, Inc., No. 15‐3775 (2d Cir. Feb. 26, 2018), the Second Circuit Court of Appeals became the second federal appeals court to hold that sexual orientation discrimination is prohibited sex discrimination under Title VII of the federal Civil Rights Act of 1964, which expressly prohibits discrimination based on sex, but not sexual orientation. Last year in Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. Apr. 4, 2017), the

On February 23, 2018, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its annual Hot Topics in Employment Law seminar to an audience of nearly three hundred clients and members of the Baltimore business community. The topics covered throughout the seminar included sexual harassment in the #MeToo era, drugs and alcohol abuse in the workplace, and the 2017 year in review. Here are the highlights: Sexual Harassment in the #MeToo Era A 2016 Equal Employment Opportunity Commission (“EEOC”)

During the brief period in late 2017 when there was a 3-2 Republican majority on the National Labor Relations Board, the Board issued a few decisions undoing some of the most union- or employee-friendly decisions of the Obama-era NLRB. One of those decisions was Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), in which the Board overruled the Obama Board’s dramatic expansion of the standard for joint employer status. In Browning-Ferris Industries, 362 NLRB No. 186 (2015), the Democrat-majority NLRB under President

U.S. Citizenship and Immigration Services (USCIS) announced that it will accept credit card payments at no additional cost for the USCIS filing fees associated with filing most of its forms. The credit card payment option is now available for 41 fee-based forms processed at USCIS Lockbox facilities, including commonly used forms such as Form I-140 (an employment-based immigrant petition), Form I-130 (a family-based immigrant petition), Form I-129F (a fiancé visa petition), and Form I-485 (an application for adjustment of status).

Employers are abuzz about the upcoming start of the Maryland Healthy Working Families Act, which goes into effect this Sunday, February 11, 2018.  Contrary to some local news reports, efforts to delay this bill have not yet been successful and will still be an uphill battle.   As readers may recall, House Democrats recently won a six-year battle for paid sick leave, which ended with an override of Governor Hogan’s veto. As we reported to you last month, the Maryland General Assembly

A “seriously delinquent tax debt” will affect the ability of a U.S. citizen to use, or apply for, a passport. Section 7345 of the Internal Revenue Code (“IRC”) permits the Secretary of State to deny, revoke or limit a citizen’s passport upon receipt of a certification from the Commissioner of Internal Revenue Service (“IRS”) that the citizen has a seriously delinquent tax debt. Though IRC §7345 was enacted in 2015, the IRS and State Department began implementing these rules in January

It all started with good intentions. On May 10, 2016, Maryland approved the Contraceptive Equity Act. One purpose of the act is to require Maryland’s health insurers to cover vasectomies without charging deductibles, effective January 1, 2018. Sounds unobjectionable enough, right? Here’s the problem: requiring free vasectomies conflicts with the federal tax requirements of a health savings account (HSA). An HSA (offered in tandem with a high deductible health plan) must have minimum deductibles for coverage, other than preventive care. And there’s a list of what counts as preventive

There has been a lot of talk in the news about the new tax law known as the Tax Cuts and Jobs Act of 2017, that was passed by Congress and signed into law in late December 2017. While most of the focus of the tax law was regarding the change in corporate and individual tax rates, it also included a new tax credit for employers who provide paid family and medical leave. Employers who wish to take advantage of

More and more employers are seeking employees on the internet through targeted advertisements on Facebook. Employers can target these advertisements to certain users based on age, location, interests, experience, among other things, and the advertisements will only be sent to those users that fit the qualifications. Arguably these targeted advertisements help employers to get the advertisements to those potential candidates who will be most interested in or qualified for the job. However, older workers recently have argued that these targeted

Last week, we reported that the General Assembly had overridden Governor Hogan’s veto of the Maryland Healthy Working Families Act, and that employers in Maryland would be required to provide paid sick leave as soon as February 11, 2018. An emergency bill was introduced yesterday to delay the implementation of that Act for 60 days, which would give employers some breathing room to revise and implement their policies. Senate President Mike Miller had previously indicated a willingness to consider a

As employers prepare to send employees their W-2s for last year by the end of the month, cybercriminals are preparing phishing emails under the guise of company executives requesting personal information on employees. The IRS has warned payroll and human resources professionals of the surge in these schemes particularly during the tax season when companies’ guards may be down and such requests may not appear out of the ordinary. These hackers have become more sophisticated in their schemes by researching the names of company

Last year, we reported that Governor Hogan had vetoed legislation that would have required most employers in Maryland to provide paid sick leave.  In one of its first actions in 2018, the General Assembly overrode the Governor’s veto of House Bill 1 (the “Act”) on January 12, 2018.  The law will now go into effect on February 11, 2018, per legislative guidelines.  While the Maryland Chamber of Commerce and others plan to seek an extension of the time for implementation, employers

As mentioned in our last blog post, H-1B petitions filed during 2017 were subjected to a dramatic and unprecedented increase in scrutiny by the U.S. Citizenship and Immigration Service (“USCIS”). As a result, thousands of H-1B petitions that previously would have been routinely approved were subjected to sometimes lengthy and nearly always burdensome USCIS Requests for Evidence (commonly called “RFEs”). Issues raised by the USCIS in these RFEs have included: Is the position a specialty occupation, meaning one that requires a degree

As 2017 and Chairman Phillip Miscimarra’s term drew to an end, the National Labor Relations Board (“NLRB” or “Board”) issued a flurry of decisions overturning several Obama-era NLRB decisions. Because Board members are appointed by the President, the political make-up of the Board (5 members), and its overall view of employer-employee-union behavior, changes on a fairly regular basis. However, the scope of the recent decisions is unusually broad and has resulted in many labor practitioners telling their clients, “Remember when

Given the flood of public sexual harassment accusations in recent months, a bipartisan coalition of lawmakers and celebrities have come together to introduce legislation that would eliminate forced arbitration clauses in employment agreements, which advocates say reduce negative exposure for businesses and discourage women from speaking out about sexual harassment and gender discrimination claims. If enacted, the “Ending Forced Arbitration of Sexual Harassment Act” would prevent businesses from enforcing mandatory arbitration agreements with regard to complaints of sexual harassment and gender discrimination

While it’s holiday season for most of the world, in the immigration world December also marks the unofficial start of H-1B lottery season.   Background on the H-1B Visa The H-1B program allows employers in the United States to temporarily employ foreign nationals in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include occupations in a variety of

Bill O'Reilly. Harvey Weinstein. Kevin Spacey. Charlie Rose. Matt Lauer. It seems that every day the news covers one more explosive incident of sexual harassment in the workplace, with many allegations indicating that the harassment had been occurring for years before action was taken. Companies across the country are wondering:  “How do we keep this from happening to us?” While there is no “silver bullet” to preventing sexual harassment in the workplace, these recent cases demonstrate the importance of creating a

Following President Trump’s inauguration, and in response to his April 2017 “Buy American, Hire American” Executive Order, various agencies of the federal government have announced enhanced efforts to protect U.S. workers from discrimination. For example: U.S. Department of Justice (“DOJ”): In February 2017, the DOJ’s Civil Rights Division launched its “Protecting U.S. Workers Initiative.” This initiative is aimed at targeting, investigation, and bringing enforcement actions against employers that discriminate against U.S. workers in favor of foreign workers. U.S. Department of Labor (“DOL”):

Drug overdoses are now the leading cause of death for Americans under the age of 50. Of the drugs contributing to these deaths, prescription opioids, heroin, and the synthetic opioids, such as fentanyl, have risen dramatically over the past few years, leading President Trump to declare the opioid crisis a national emergency. By now, this grim news is well-known by most Americans, but the opioid epidemic may be hitting closer to home than Maryland-area employers realize. The Center for Disease Control reports that Maryland

On November 8, 2017, Suzzanne W. Decker, a Principal in the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group, and Sandra McLelland, Managing Counsel at Under Armour, presented a webinar to members of the Association of Corporate Counsel (“ACC”) on preserving the attorney-client privilege in corporate investigations and the extent to which internal communications may be protected by the attorney-client privilege or the attorney work-product doctrine.   Companies routinely perform internal investigations in response to employee grievances, whistleblower complaints

In February 2015, the Department of Homeland Security (“DHS”) issued a rule permitting certain persons maintaining H-4 nonimmigrant status to apply for and, if eligible, receive employment authorization from DHS.Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10,284-10,312 (hereinafter the “H-4 EAD Rule”). Eligible H-4 visa holders include those whose H-1B status spouse has an approved I-140 immigrant visa petition or a post-sixth year H-1B visa extension. Following publication of the H-4 EAD Rule, many H-4 visa holders

Human-resource professionals are a notoriously organized and efficient bunch. So it’s no surprise that we are often asked, “How long should I keep benefit plan records?” There’s no simple answer, unfortunately, and a record-retention policy needs careful consideration of the rules underlying the policy. IRS’s Statute of Limitations The IRS advises that you keep records long enough to respond to an audit. A plan is open to IRS audit, according to Section 6501 of the Internal Revenue Code, for three years after the filing

The recent controversy surrounding NFL players kneeling during the National Anthem raises an interesting question concerning the protection of the National Labor Relations Act (NLRA) vis-à-vis work-place protests over social issues. Colin Kaepernick began protesting last year over his belief that minorities in this country are not treated fairly. His protest involved him kneeling during the playing of the National Anthem. His protest drew attention, but the attention was mostly focused on him and the San Francisco 49ers. What changed this

It has long been thought that an employer may refuse to hire a foreign worker who: (1) is not currently authorized to work or (2) will require future visa sponsorship to work for the employer.  A new legal theory has developed challenging this traditional thinking. So far, the proponents of this developing legal theory have been beneficiaries of the Deferred Action for Childhood Arrivals (“DACA”) program. DACA beneficiaries (also known as “Dreamers”) have been granted temporary authorization to work, but their

Uber and other ride sharing companies have been at the forefront of the “gig economy” where websites and mobile applications (commonly called “apps”) connect workers to customers who need a temporary service. With the rise of the gig economy, one important question still remains unanswered: are those working in the gig economy employees of the company or independent contractors? Why It Matters: For years, Uber drivers have tried to convince a court that they are employees of Uber, rather than independent contractors,

Feeling Discouraged About Immigration? You are not alone. Many agree that the U.S.’s current immigration system is in need of comprehensive legislative reform. In the absence of meaningful action by Congress, the strategy of the current Administration appears to be to subtly (and sometimes not-so-subtly) discourage immigration through executive order and agency action. The Secretaries of Labor, State, and Homeland Security have been directed to issue rules to protect the interests of U.S. workers in the administration of the immigration

On August 31, 2017, U.S. District Judge Amos Mazzant in Plano, Texas abrogated the United States Department of Labor (“DOL”) changes to the Fair Labor Standards Act (“FLSA”) regulations with respect to overtime pay (the “Overtime Rule”). The Overtime Rule would have raised the salary threshold for overtime eligibility to almost double the current threshold. While not absolute, this ruling provides employers a stronger inclination that the Overtime Rule will not survive, alleviating employers from the financial and administrative burden the new

As the number of states legalizing the use of marijuana for medical purposes has steadily grown, employers have been anxiously asking whether they are required to accommodate the use of medical marijuana if the use is related to an employee’s disability. Employers have felt comfortable that the use of medical marijuana is not protected under the federal Americans with Disabilities Act. Courts have routinely concluded that that because the ADA does not cover employees who use illegal drugs, and because

Next term the Supreme Court hopefully will provide an answer to the hotly debated question whether the Dodd-Frank Act’s anti-retaliation provision (Section 21F) protects only those whistleblowers who report violations to the Securities and Exchange Commission (“SEC”), or if the protections extend to those who report concerns internally. The U.S. Court of Appeals for the Second Circuit was the first court to take up this issue in Berman v. Neo@Ogilvy LLC, No. 14-4626. The court decided that employees who make internal complaints of suspected

One of the most common types of litigation facing employers is the Fair Labor Standards Act (“FLSA”) collective action. These lawsuits are generally a lose-lose situation for employers because they must wage a defense through the lengthy class certification process while attorneys’ fees for both sides stack up. Even if the employer’s pay practices are fully compliant with the FLSA, courts generally do not consider the merits of the case until well into the litigation. Read more about this in

In April of 2015, the National Labor Relations Board (“NLRB”) issued its new Election Rule (“Rule”) governing representation case procedures. The NLRB recently construed a portion of the Rule in a way which will make it more difficult for an employer to comply. One provision of the Rule requires an employer to furnish a voter list (generally referred to as an Excelsior List) to the Regional Office and the union within 2 business days after the approval of a stipulated election agreement or

For years, the Wage and Hour Division of the Department of Labor (WHD) provided official guidance, in the form of opinion letters, to employers and employees. The opinion letters issued by the WHD addressed the application of the Fair Labor Standards Act (FLSA), the Davis-Bacon Act (DBA), and the Walsh-Healy Public Contracts Act (PCA) to specific fact patterns. Employers who relied on an opinion letter were provided with a good-faith reliance defense to certain claims under the FLSA, DBA, and

If you’ve had better things to do, you might only be vaguely aware that the new fiduciary rule becomes effective on June 9, 2017. We’ve written about this before (here and here), but a quick refresher might be helpful as the deadline looms. For employers, the June 9 deadline should be a nonevent, other than an opportunity to review HR procedures and relationships with vendors. New Fiduciaries An employer, as sponsor of a retirement plan, has always been a fiduciary subject to duties imposed by ERISA. This

Inevitably, all businesses must deal with employee turnover and the departure of key employees. Such departures have become more frequent of late, as the economy is again on the rise, more jobs are available, the unemployment rate is at an almost decade low 4.4% and wages have increased. Indeed, the average wage growth for full-time workers aged 25-34 who changed jobs in the first quarter of this year was 10.2%, versus a 6.8% increase for job holders. As a result,

In the past few years, there has been a significant focus by lawmakers on closing the “gender gap” in the pay earned by men and women. Although state and federal law have prohibited gender-based discrimination in pay for many years, the new focus has been upon salary history. Advocates claim that basing an applicant’s salary upon his or her prior earnings perpetuates pay discrimination and leads to women being systematically paid less than men. In order to address this disparity, state