MSLaw Blog

The U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking (NPRM) last month for its proposed rule on joint employment, where multiple employers simultaneously employ the same employee. The proposed rule aims to clarify joint-employer status under the Fair Labor Standards Act (FLSA) and would align DOL’s Family and Medical Leave Act (FMLA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA) joint-employer analysis with DOL’s FLSA analysis. Joint employment has been recognized by DOL since the FLSA was enacted

Two states on opposite coasts are reshaping the rules governing noncompete agreements in their jurisdictions. Virginia has amended its law to prohibit enforcement of noncompetes against employees who are terminated without cause in the absence of certain severance benefits, while Washington has gone further by enacting a near-total ban on noncompete agreements for all workers. Together, these laws reflect a broader national trend of restricting noncompetes and may call for businesses with employees in either state to review their current agreements

President Donald Trump signed an Executive Order (EO) on March 26, “Addressing DEI Discrimination by Federal Contractors,” reinforcing the Trump Administration’s stance on DEI programs and escalating the related restrictions on what the Administration considers “racially discriminatory DEI activities.” The Executive Order, which took effect immediately, mandates that all federal government prime contracts, “contract-like” instruments and subcontracts, including lower-tier subcontracts, include a specific contract clause, requiring contractors to comply with the clause or risk potential False Claims Act (FCA) liability. Contractors

Miles and Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 24th annual Hot Topics in Employment Law Seminar last week to business executives, human resources professionals and in-house counsel. Topics included navigating the use of AI in the workplace, updates from the National Labor Relations Board, immigration policy shifts, DEI policy enforcement and the importance of properly drafted employment documents. Here are highlights from the three interactive sessions. Adjusting to an AI-influenced Workplace AI continues to be a driving issue in

Many employers issue paychecks biweekly, which results in 26 pay periods per year. This year, 2026 employers will encounter an adjustment where a biweekly pay schedule may result in 27 pay periods.   Employers that started the year with a paycheck on Friday, Jan. 2, may intend to pay the final paycheck of 2026 on Thursday, Dec. 31, given that Friday, Jan. 1, 2027, is a holiday. If an employer follows this schedule, then they will have 27 pay periods this year

The State of Maryland processed nearly two million unemployment claims during the COVID-19 pandemic. A large number of those claims were fraudulent, with the full extent of the fraud yet to be understood. A significant amount of the fraud involved identity theft, where fraudsters applied for benefits in the names of individuals whose personal information had been compromised. During the pandemic, many employers received calls from anxious employees who had received notices that unemployment benefits had been applied for or awarded

It’s that time of year to celebrate all our hard work over the last 12 months! As 2025 winds down, however, employers should take steps to ensure they aren’t carrying any potential liability into 2026 from those exciting and fun office holiday parties. Employers should have their policies in place about the overconsumption of alcohol and harassment. Everyone should be informed and educated, so that everyone can enjoy the holiday season. First, some general recommendations about holiday parties: Be inclusive of all

Beginning in April, state and local governments will be required to comply with a new final rule published by the U.S. Department of Justice updating regulations for Title II of the Americans with Disabilities Act. The Rule establishes specific requirements, including technical standards, for all digital services provided by public entities, such as websites, mobile applications, online learning platforms, registration systems and financial aid information to ensure that such services are accessible to people with disabilities. Title II of the ADA

California Gov. Gavin Newsom recently signed into law sweeping legislation designed to restrict employers and training providers from requiring workers to repay costs or fees when they leave employment, so-called “training repayment agreement provisions” (TRAPs). The law, set to take effect Jan. 1[1], applies broadly to any person in California permitted to work for or on behalf of an employer or to participate in any other work relationship, job training program or skills training program, including employees and prospective employees. Overview The

President Donald Trump signed a proclamation last week, “Restriction on Entry of Certain Nonimmigrant Workers,” purportedly to reduce the use and abuses of the H-1B non-immigrant classification and adjust the prevailing wage threshold in order to prioritize petitions for highly compensated and highly skilled H-1B workers. While the situation is fluid, here is what we know: The proclamation became effective Sept. 21. The Department of State, U.S. Customs and Border Protection, United States Citizenship and Immigration Services and the White House have

Business executives, human resources professionals and in-house counsel attended last week’s D.C. Hot Topics in Employment Law Seminar, presented by Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group. The event was an encore and updated presentation of the practice group’s Hot Topics in Employment Law Seminar held annually in February in Baltimore. Topics included the use of AI in workplace and performance management; myriad  employment issues raised on a day-to-day basis with human resources professionals, including disability and religious accommodations and

U.S. Attorney General Pam Bondi recently issued new guidance aimed at clarifying the current administration’s stance on the permissibility of diversity, equity and inclusion policies and procedures under federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972 – particularly among entities that receive federal funding, such as schools, universities, state and local governments, health care providers, nonprofits and other private employers. In its guidance, the Department

Washington Gov. Bob Ferguson on May 13 signed the Securing Timely Notification and Benefits for Laid-Off Employees Act into law. Effective July 27, this statute mirrors the federal Worker Adjustment and Retraining Notification (WARN) Act, establishing notice requirements for certain business closures and mass layoffs in Washington. Here’s what employers need to know. Who’s Covered? Employers with 50 or more employees in Washington, excluding part-time workers – but does not extend to state and local governments or political subdivisions. All Washington employees, including part-time

One now-shuttered digital media startup learned a hard lesson about the importance of complying with the requirements of the federal Worker Adjustment and Retraining Notification Act and its New York state-equivalent. JAF Communications Inc., operating as The Messenger, agreed to pay $4.5 million to class members for failing to provide advance notice of their mass layoff before the company shut down Jan. 31, 2024. The parties’ joint motion for settlement approval is pending in the U.S. District Court in New York. The

Three years after Maryland’s Paid Family and Medical Leave Insurance Program (FAMLI) was established by the Time to Care Act of 2022 (TCA), the General Assembly on Monday passed House Bill 102, which delays certain dates related to annual reporting and the implementation of the program. Gov. Wes Moore is expected to sign the bill into law in the coming weeks. The bill would delay when employers and employees must begin submitting contributions for the funding of the program and when

Companies have always faced the potential for a visit from an agent from U.S. Immigration and Customs Enforcement (ICE) but President Donald Trump’s heightened focus on immigration increases the likelihood of that reality. Over the past month, the Trump administration has issued new policies that alter previous guidelines for how ICE agents may act in the line of duty. Of course, a visit from an ICE agent, like contact with any law enforcement officer, may prompt nervous or inappropriate reactions that

The acting general counsel for the National Labor Relations Board on Friday rescinded numerous general counsel memoranda on key Biden-era policies and priorities issued by his predecessor. William Cowan’s memorandum indicates the first significant shift in labor policy priorities under the Trump Administration, previewing fewer restrictions on employers in the next four years. Although GC memos are non-binding, they provide enforcement guidance for NLRB Regional Offices and inform unions and employers of recent developments in board law and policy. New Priorities Impact

President Donald Trump last week removed National Labor Relations Board member Gwynne A. Wilcox and terminated the board’s general counsel, Jennifer Abruzzo. The president then fired acting General Counsel Jessica Rutter on Feb. 1, replacing her with William Cowan. Although the termination of the general counsel was expected and consistent with actions taken by prior presidents, Wilcox’s removal was the first time a president has removed a sitting board member and potentially sets up a legal battle over the president’s

President Donald Trump signed a number of executive orders in his first week in office with broad implications for federal agencies, contractors and, potentially, private employers. Executive orders only apply to federal agencies and their employees and do not impose requirements on private employers. But private employers should be aware of these issues and prepare for potential impacts on their organizations. Order on Gender Identity and Expression Trump signed an executive order Jan. 20, titled “Defending Women From Gender Ideology Extremism and

The Equal Employment Opportunity Commission (EEOC) recently issued guidance to assist health care providers in addressing their patients’ needs for accommodation under the Pregnant Workers Fairness Act (PWFA). The PWFA requires employers with 15 or more employees to provide reasonable accommodations for employees with known limitations related to or arising out of pregnancy, childbirth and related medical conditions, unless the accommodation will cause the employer an undue hardship. The EEOC’s guidance is intended to aid health care providers in understanding

Employers are breathing a sigh of relief after the U.S. Supreme Court last week unanimously confirmed the application of a “preponderance of the evidence” standard to an employer’s burden of proof when it seeks to establish that an employee is exempt from the minimum wage and overtime pay provisions of the Fair Labor Standards Act (FLSA). How Did We Get Here? The Supreme Court sought to resolve a split among federal circuit courts to determine whether employers need only demonstrate by

The 2nd U.S. Circuit Court of Appeals earlier this month vacated a lower court’s permanent injunction that had prevented the employer notice requirement in New York’s reproductive health bias law from taking effect. The appellate court’s decision in Compass Care v. Hochul means New York employers that have employee handbooks must now include notice of employee’s rights and remedies under the reproductive health bias law in those handbooks. The reproductive health bias law, which took effect in 2020, prohibits employers from

A federal judge in Kentucky on Thursday ruled the 2024 Title IX regulations were “arbitrary and capricious” and in violation of the Administrative Procedures Act (APA). Unlike other courts that had issued injunctions preventing the regulations from being implemented in certain states or by certain schools, this court ordered the rule to be vacated, which means that it now may not be enforced by the Department of Education anywhere in the nation. The 2020 regulations that were in place prior

(The following was originally posted Dec. 7, 2023.) It’s the most wonderful time of the year, full of holiday cheer but, unfortunately for some employers, also legal risks and potential liability. A company’s annual holiday party, gala or event can quickly turn from a celebration into a headache. That’s why now is a good time for employers to ensure they have policies in place on the overconsumption of alcohol and harassment. Additionally, employers should consider their possible exposure and ways to

The National Labor Relations Board held last week that captive audience meetings violate Section 8 of the National Labor Relations Act. A captive audience meeting occurs when an employer requires employees to attend anti-union meetings or face discipline or discharge. The Nov. 13 decision in Amazon.com Services overturns a 1948 decision, with the board unanimously holding that captive audience meetings have a “reasonable tendency” to interfere with employees’ exercise of their rights under Section 7 of the NLRA, which includes the

The weather may be turning colder in Maryland but employers now have new obligations under state law to protect employees against heat hazards. Maryland’s Occupational Safety and Health (MOSH) Division of Labor and Industry recently published its Heat Illness Prevention Standard. It became effective Sept. 30, shortly after the Federal Occupational Safety and Health Administration (OSHA) released a proposed rule for comprehensive heat injury and illness prevention. The Standard differs slightly from OSHA’s proposed rule, specifically for rest periods when

On November 15, 2024, a federal judge vacated and set aside the final rule issued by the Department of Labor (“DOL” or the “Department”), which increased the salary threshold required to classify certain positions as exempt under the white-collar exemptions of the Fair Labor Standards Act (“FLSA”). As a result of the ruling, the $58,656 salary threshold increase set for Jan. 1 will no longer take effect and the prior increase (from $35,568 per year to $43,888 per year) which

Maryland’s Time to Care Act (TTCA), enacted more than two years ago and since amended twice, established a paid family and medical leave insurance (FAMLI) program for Maryland employees. The Maryland Department of Labor’s new FAMLI Division recently issued proposed regulations to implement the program in accordance with the TTCA. Applicable to all employers with at least one Maryland employee, FAMLI will provide eligible employees in Maryland with 12 weeks of paid family and medical “leave and benefits” for certain qualifying

The Maryland Department of Health (MDH) released an updated policy manual at the end of September for the 2025 Conrad 30 Waiver Program application cycle, which opened Oct. 1. Changes include an online-only submission process, flexibility for the three-providers- per-practice-site limitation, and guidance regarding telehealth. The Conrad 30 program is one avenue for an immigrant physician to obtain a waiver of the two-year home residency requirement and help alleviate the physician shortage in the United States. (For an overview of the

A slew of new employment laws take effect Tuesday in Maryland related to job postings, wage statements, discrimination, prevailing wages and workplace fraud, among other topics. Notably, Maryland employers should be apprised of the following: Salary Transparency in Job Postings As discussed in greater depth earlier this year, Maryland employers are now required to include the “wage range” for all open and posted job positions. “Wage range” is defined as the minimum and maximum hourly rate or salary for a position, set

The U.S. District Court for the Northern District of Texas issued its decision Tuesday that the business world had been awaiting with bated breath, striking down the Federal Trade Commission's (FTC) final rule making unlawful virtually all noncompete agreements. Unlike the preliminary injunction granted by the court last month, which was limited only to the parties, the court this week “set aside” the FTC rule, which now may not be enforced by the federal agency anywhere in the nation. The Court’s

We are less than 100 days away from Election Day 2024, so it is critical for employers to ensure that they are following applicable voting leave laws in the states where they have employees. Not all states require employers to provide employees with leave to vote. But several require employers to provide employees with one or more hours of voting leave, and a vast majority of those states require employers to pay employees for that time. Below is a roundup of

As record-high temperatures enveloped most of the U.S. earlier this month, the federal Occupational Safety and Health Administration (OSHA) released a proposed rule for comprehensive heat injury and illness prevention. The proposed rule, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” was many years in the making and would affect employers throughout the United States. In the interim, OSHA and various state regulators that have not already adopted their own laws are issuing citations under Section 5(a)1

On July 3, 2024, the U.S. District Court for the Northern District of Texas issued a limited stay and preliminary injunction of the Federal Trade Commission's (FTC) final rule making unlawful virtually all non-compete agreements. This is an important decision and a win for business groups seeking to invalidate the rule. However, it does not put an end to the rule, as the court specifically rejected the request by plaintiffs for a nationwide injunction, instead limiting the application of the

Louisiana recently passed new legislation prohibiting employers from including nondisclosure provisions in agreements with employees that prospectively forbid employees from disclosing or discussing certain facts or claims concerning sexual harassment. Specifically, effective August 1, Louisiana employers will be prohibited from including in agreements with employees a “nondisclosure clause,” defined as “an agreement between an employee and employer that prevents, or has the effect of preventing, an employee from disclosing or discussing a hostile work environment, allegations of a hostile work environment,

More than a dozen business groups last month filed a much-anticipated lawsuit seeking to block the U.S. Department of Labor’s (DOL) new final rule that will significantly raise the minimum salary thresholds for exempt employees under the Fair Labor Standards Act (FLSA). The final rule increases the minimum annual salary threshold for exempt executive, administrative, and professional (EAP) employees, as well as outside sales and computer employees from $35,568 per year to $43,888 per year July 1. Then, on Jan. 1,

Under new legislation amending Maryland’s Equal Pay for Equal Work Law, employers in the state will be required, as of Oct. 1, to include certain wage information in both public and internal job postings and advertisements. This includes any solicitation intended to recruit applicants for a specific available position, such as recruitment done directly by an employer or indirectly through a third party. These new disclosure requirements will apply to any position that will be physically performed, at least in

The Supreme Court last month made it easier for employees who are involuntarily transferred from one position to another to pursue employment discrimination claims under Title VII of the Civil Rights Act of 1964. Traditionally, for a transfer to constitute a sufficient change to the terms and conditions of employment to establish a discrimination claim, an employee needs to demonstrate that they were left at a significant disadvantage because of the transfer. In Muldrow v. City of St. Louis, Missouri, the

Miles & Stockbridge attorneys participated today in a call with the U.S. Chamber of Commerce for an update on litigation the Chamber has filed to stay or enjoin the effectiveness of the FTC rule banning almost all employee non-competes. (Click here to read our summary of the rule.) Here are some key takeaways from the call: The Chamber filed a lawsuit in U.S. District Court for the Eastern District of Texas challenging the rule and seeking to stay or enjoin the effectiveness of

Schools that have been anxiously awaiting the U.S. Department of Education’s final regulations enforcing and interpreting Title IX need wait no longer. The department issued final regulations last week that will govern sex discrimination complaints relating to conduct that occurs after Aug. 1, 2024. The new regulations include significant changes from prior Title IX regulations issued in 2020. The final regulations, among other changes, raise the bar for schools’ compliance, change the definition of sexual harassment, expand protections for LGBTQ+ and

The Federal Trade Commission (FTC) on Tuesday, in a 3-2 vote, approved a final rule banning non-competes in almost all employment contexts. This sweeping rule, while not unexpected, has caused quite a stir among employers and workers alike. Here is what employers need to know. Background The rule, which was first proposed in January, comes on the heels of the Biden administration’s 2021 executive order designed to “promote competition in the American economy, which will lower prices for families, increase wages

The Department of Labor (DOL) on Tuesday increased the salary thresholds for the Fair Labor Standards Act (FLSA) white collar exemptions from overtime pay requirements. On July 1, the minimum annual salary threshold for an exempt employee will be $43,888 ($844 per week), up from $35,568 ($684 per week). This threshold will increase to $58,656 ($1,128 per week) on Jan. 1, 2025. To qualify for the FLSA’s highly compensated employee exemption, employees will now have to earn $132,964 per year

As we previously wrote when the Pregnant Workers Fairness Act (PWFA) went into effect in June 2023, the law requires most employers with 15 or more employees to provide “reasonable accommodations” for a qualified employee’s known limitations related to pregnancy, childbirth or related medical conditions unless the accommodation will cause the employer an undue hardship. Last week, the Equal Employment Opportunity Commission (EEOC) issued a Final Rule to implement the PWFA. The Final Rule clarifies that, to be protected under the

Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 22nd annual Hot Topics in Employment Law seminar April 11 to clients from throughout Maryland and beyond. Topics covered included diversity, equity and inclusion programs, federal and state leave law updates and myriad employment issues raised on a day-to-day basis with human resources professionals, including disability and religious accommodations in the workplace, the impact of changing cannabis and clean slate laws on employers. Here are some highlights from

A New York law recently went into effect significantly limiting employers’ ability to make inquiries regarding employees’ personal social media accounts. Specifically, the new law makes it unlawful for an employer to request, require or coerce any employee or job applicant to: disclose any username and password, password or other authentication information for accessing a personal account through an electronic device[1]; allow the employer to access the employee's or applicant’s personal account in the presence of the employer; or reproduce pictures, videos or other

A federal judge in Vermont last month ruled a plaintiff’s medical marijuana use was not protected by the Americans with Disabilities Act. In Skoric v. Marble Valley Regional Transit District et al., the plaintiff was fired by his employer for failing a random drug test by testing positive for marijuana despite having a valid, state-issued medical marijuana card and being prescribed medical marijuana to treat his chronic pain and depression. In granting the motion to dismiss, the court considered whether the

New York Gov. Kathy Hochul in December vetoed a bill passed by the New York Legislature that would have prohibited nearly all noncompete agreements in the state regardless of the context, salary level or job function of the employee signing it. The ban would have applied equally to all employees and managers alike, regardless of rank or position.  In particular, the vetoed bill would have barred employers from imposing contract language that prohibits New York employees or other “covered individuals” from

The Department of Homeland Security (DHS) announced Friday key changes to the H-1B lottery for Fiscal Year 2025, including a beneficiary-centric selection process for H–1B registrations; start-date flexibility for certain H–1B cap-subject petitions; and codification of the agency’s ability to deny or revoke H-1B petitions where the underlying registration or petition contained a false attestation or was otherwise invalid. The United States Citizenship and Immigration Services (USCIS) is authorized to grant up to 85,000 H-1B cap-subject petitions per fiscal year, of

The Department of Homeland Security published a final rule Jan. 31 adjusting the filing fees for applications for immigration benefits submitted to U.S. Citizenship and Immigration Services (USCIS). For most application types — and particularly for most employment-based requests — the fees will increase, in some cases substantially. The new fees will go into effect on April 1 unless implementation is delayed or otherwise impacted due to legal challenges. Notable Changes The most notable changes in the fee structure for common employment-based

The National Labor Relations Board (NLRB) is chipping away at employment agreements and other restrictive covenants one clause at a time. In a recent memorandum, the General Counsel said she believes restricting employees from holding outside or secondary employment violates federal labor law, and she intends to urge the NLRB’s Democratic-appointee-controlled Board to reach the same conclusion. The General Counsel was providing a regional office advice about the lawfulness of various provisions in a company’s employment agreement when she took issue with

Thursday was the deadline for all Washington, D.C., employers to post the new paid family leave notice/poster, which was recently issued by the district’s Department of Employment Services (DOES). The notice must be posted in a “conspicuous place,” and must be provided to employees on or before Feb. 1, 2024. The new notice became effective last October and is identical to the previous notice in effect from October 2022, except the new notice increases the maximum weekly benefit from $1,049

Washington Mayor Muriel Bowser signed legislation earlier this month that would require employers to disclose pay ranges in job postings and prohibit employers from screening prospective employees based on their salary history. The new law will apply to all employers with at least one employee in the District of Columbia, excluding the federal government, and will go into effect June 30, subject to congressional approval. Under existing law, D.C. employers are prohibited from: (1) requiring that employees refrain from inquiring about, disclosing,

The Maryland Department of Labor (MDOL) issued proposed regulations last month to the Economic Stabilization Act. Also known as the Maryland Mini-WARN Act, it provides notice requirements and guidance to employers faced with a shutdown of a plant, factory, or office or a major reduction in their workforce. The proposed regulations amend definitions, time and notice requirements to the act and implement compliance and penalty requirements. The public-comment period closed Tuesday, while a public hearing to review the proposed regulations has

Two bills took effect in California earlier this month imposing further limitations on restrictive covenants in employment agreements, one of which voids noncompete agreements even if they are signed outside of the state. While noncompete agreements are largely void in California, Senate Bill 699 expands the ways in which employees can challenge noncompete agreements. Specifically, the bill makes any agreement that restricts an employee’s ability to engage in a lawful profession, trade or business unenforceable regardless of where and when it

The U.S. Department of Labor (DOL) announced a final rule last week revising its guidance to employers and workers to help determine if a worker qualifies as an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The new rule, which was published in the Federal Register on Wednesday and takes effect March 11, rescinds the DOL’s previous Independent Contractor Rule that was published three years ago.  The final rule’s analysis for determining employee or independent contractor status

Last year continued the trend of rising inflation, interest rates and borrowing costs, as well as cost-of-living increases. With these concerns top of mind, many states continued to increase their required minimum wage rates. Employers should be aware of the following minimum wage increases that took effect at the end of 2023 or the beginning of 2024. Because these increases do not apply to tipped workers and other special classes of employees, and may be superseded by local mandates, employers should

Roughly 20 states and 30 local jurisdictions have implemented paid sick leave laws. Several of these states and jurisdictions amended their paid sick leave policies in 2023, with the amendments taking effect Jan. 1, 2024. Additionally, Minnesota has enacted its first statewide paid sick and safe time law, which also takes effect Monday. Below is a summary of these new or updated laws. California California’s paid sick leave law applies to any employer that employs at least one employee in California

The Supreme Court earlier this month declined to address who has standing to sue a business whose website violates the Americans with Disabilities Act (ADA). In Acheson Hotels, LLC v. Laufer, the justices unanimously remanded the case back to the lower court with instructions to dismiss it as moot, sidestepping an examination of the merits of a case with national implications for hotels and potentially other public accommodations as well.  Background Deborah Laufer is a prolific litigant with physical disabilities and

It’s the most wonderful time of the year, full of holiday cheer but, unfortunately for some employers, also legal risks and potential liability. A company’s annual holiday party, gala or event can quickly turn from a celebration into a headache. That’s why now is a good time for employers to ensure they have policies in place on the overconsumption of alcohol and harassment. Additionally, employers should consider their possible exposure and ways to reduce liability based on the actions of

Maryland health care employers and J-1 physicians who commit to serve the underserved in Maryland and who missed Conrad 30 waiver application deadline Dec. 1 are in luck: The Maryland Department of Health (MDH) has reopened its application period! Physicians who completed graduate medical education in J-1 status now have additional time to secure a clinical service waiver of the two-year home residence requirement to provide medical services in Maryland. MDH received fewer than 30 Conrad waiver applications prior to the

The National Labor Relations Board (NLRB) issued a controversial decision last year significantly limiting a company’s ability to implement and enforce uniform and dress code policies. In Tesla, Inc., 317 NLRB No. 131 (2022), the NLRB said Tesla could not prohibit employees from wearing pro-union shirts at work absent “special circumstances” justifying the prohibition. The Board reached its decision even though Tesla’s dress code policy was content-neutral (requiring only that employees wear Tesla-issued shirts) and even though employees could still

As the Covid-19 pandemic drifts further into the rearview, many companies are rolling back work-from-home policies and requiring employees to return to the office on a schedule similar to pre-pandemic office hours, with renewed attendance requirements. Many executives say their companies are more innovative and collaborative when employees are physically present in the office, which in turn increases revenue, productivity and employee retention. After several years of work-from-home, however, some employees are opposed to return-to-office mandates. Employees seeking an exemption from

The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) recently entered into a new Memorandum of Understanding (MOU) under which the two agencies have agreed to work together to foster interagency cooperation and coordination through information sharing, referrals, training and outreach, with a particular focus on enforcement of the anti-retaliation provisions of the National Labor Relations Act (NLRA) and Occupational Safety and Health Act (OSH Act), as well as other whistleblower provisions under laws falling

The Equal Employment Opportunity Commission (EEOC) released earlier this month updated proposed guidance on harassment in the workplace, largely based on developments in applicable case law and societal trends coming out of the #MeToo movement and the rise of social media. (The guidance was first released in 2017 but was never finalized.) Expansions on Protected Classes The proposed guidance expressly references the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII’s prohibition on employment discrimination “because of

Gov. Gavin Newsom vetoed a bill earlier this month that would have made California the first state to ban caste-based discrimination. Senate Bill No. 403 would have expanded the definition of “ancestry” under the California Fair Employment and Housing Act (FEHA), California Education Code and the Unruh Civil Rights Act (California Civil Code Section 51) to include “lineal descent, heritage, parentage, caste, or any inherited social status” as protected sub-classes. Newsom deemed the bill unnecessary, reasoning that discrimination based on

Sharing personal data across borders is critical for organizations operating and doing business internationally. Doing so in compliance with data security and privacy laws, however, can be a complex and challenging exercise due to the differing protections and transfer mechanisms across jurisdictions and countries. Thanks to recent developments between the United States, European Union and United Kingdom, U.S. companies once again have an easier pathway to share and receive data from their business partners and related entities in the EU

The potential government shutdown Sunday would impact a host of federal government programs and agencies, and immigration is no exception. Here’s a look at the potential impact of a shutdown on immigration-related programs and what employers and foreign workers can expect. USCIS U.S. Citizenship and Immigration Services (“USCIS”) is a fee-based agency — as opposed to having its funding appropriated by Congress — and, therefore, many of its operations will continue as normal. USCIS should continue to accept, process and adjudicate petitions

In July, we wrote about a bill passed by the New York State Assembly which, if signed by the governor, will prohibit nearly all noncompete agreements for workers in New York. We also wrote about a Minnesota law that went into effect in July, banning nearly all post-employment noncompetes entered into on or after July 1, 2023. As the attack on noncompetes continues at the federal and state levels, California Gov. Gavin Newsom recently signed legislation to amend California’s noncompete

The Equal Employment Opportunity Commission (“EEOC”) and the Wage and Hour Division of the Department of Labor (“WHD”) entered into a far-reaching Memorandum of Understanding (“MOU”) last week under which the two agencies agreed to work together to increase enforcement of the federal laws administered by the two agencies through information sharing, joint investigations, training and outreach. Key Elements Information Sharing Under the MOU, the WHD and the EEOC may share any information or data that supports the other agency’s enforcement activities, whether the

Employers in New York can no longer discipline employees who opt not to attend “captive audience” meetings under a new state law. Employers generally hold these mandatory meetings to express their views on unionization to their workforce. The new law amends Section 201-d of the New York State Labor Law, which already prohibited employer discrimination on the basis of an individual’s political activities, off-duty use of cannabis and union membership. The amendment specifically prohibits employers from requiring attendance at meetings where

The National Labor Relations Board in August broadened the scope of what constitutes “protected concerted activity” under federal labor law with two key decisions. In Miller Plastic Products, Inc., 372 NLRB No. 174 (2023), the Board returned to a “totality of the circumstances” approach to evaluating whether an employee’s activity is concerted within the meaning of the National Labor Relations Act (“the Act”). In American Federation for Children, Inc., 372 NLRB No. 137 (2023), the Board held that advocacy efforts

The National Labor Relations Board (NLRB) issued companion decisions last month that significantly limit an employer’s ability to change the working conditions of their unionized staff without bargaining with the union. Wendt Corporation In Wendt Corporation, 372 NLRB No. 135 (2023), the Board reaffirmed the Supreme Court decision in NLRB v. Katz, 369 U.S. 736 (1962). Under Wendt and Katz, employers are prohibited from unilateral action informed by a large measure of discretion, even where the action is consistent with a longstanding

The U.S. Department of Labor (DOL) announced Wednesday a proposed rule that would increase the minimum salary threshold for exempt employees under the Fair Labor Standard Act (FLSA). DOL said the standard salary level for exempt employees would increase from $35,568 per year to $55,068 per year if the rule is implemented. Additionally, the total annual compensation threshold for highly compensated employees would increase from $107,432 to $143,988 per year. The proposal also includes a provision that would trigger automatic updates

On Aug. 25, the National Labor Relations Board (NLRB) published a Final Rule that will reduce the time between the filing of a union election petition and the date the election occurs. The new rule largely reverses the 2019 election rules (“2019 Rule”) instituted by a then-Republican Board and returns to the Board’s election procedures in place since 2014, which critics have labeled “quickie election” rules. The Board previously rescinded parts of the 2019 Rule that were struck down last year

The National Labor Relations Board (NLRB) signaled last week its preference that employers voluntarily recognize unions based on “card check” rather than a secret ballot election. In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, the Board also turned the current union organizing framework on its head by making it an employer’s responsibility – rather than a union’s – to file an election petition with the NLRB. This decision, in conjunction with the Board’s final election rule that takes

We continue to track updates to the Pregnant Workers Fairness Act (“PWFA”) that took effect June 27.[1] On Aug. 7, the EEOC released its Notice of Proposed Rulemaking for implementing the PWFA (“Proposed Rule” or “Proposed Regulations”). The Proposed Regulations were published to the Federal Register on Aug. 11, starting the 60-day public comment period. In the interim, the Proposed Regulations provide employers with a glimpse into the EEOC’s enforcement strategy. While the PWFA is similar in some respects to

On Aug. 2, the National Labor Relations Board (NLRB)  set a new standard to evaluate facially neutral work rules in union and nonunionized workplaces  when it issued a much-anticipated decision in Stericycle, Inc., 372 NLRB No. 113 (2023). The new standard skews heavily in favor of employees and unions and overrules the more employer-friendly precedent in place since 2017. Unfortunately, however, Stericycle provides little, if any, guidance to employers about how to craft rules that will satisfy the new standard. The New

On June 30, 2023, the Supreme Court rendered its long-awaited decision in 303 Creative LLC v. Elenis, holding that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs that would conflict with her religious beliefs. Background Under the Colorado Anti-Discrimination Act (“CADA”), all “public accommodations” are prohibited from denying the “full and equal enjoyment” of its goods and services and may not refuse to serve a customer based on their race, gender, age, sexual orientation, or any

COVID-19-related temporary flexibilities for Form I-9 end July 31, and employers face the daunting task of completing in-person physical document inspections for employees whose documents were inspected remotely by Aug. 30. The newly announced alternative remote I-9 document examination procedure authorized by the Department of Homeland Security (DHS) provides much needed and welcome relief for qualified E-Verify employers. Effective July 31, the COVID-19 flexibilities that had permitted employers to remotely examine I-9 documents under certain circumstances since March 20, 2020 will

The Supreme Court ruled unanimously last month in favor of an evangelical Christian postal worker who refused to work on Sundays due to Sabbath observance. In Groff v. DeJoy, while declining to overturn its longstanding precedent for establishing undue hardship in the context of religious accommodations, the Supreme Court clarified its prior interpretation from 1977 in Trans World Airlines v. Hardison, holding that, to deny a religious accommodation on the basis of undue hardship, an employer must show that the

Earlier this month, we wrote about a bill passed by the New York State Assembly which, if signed by the governor, will prohibit nearly all noncompete agreements for workers in the state. Now, yet another state, Minnesota, has banned nearly all post-employment noncompetes entered into on or after July 1, 2023. Broad Ban on Noncompetes Gov. Tim Walz signed into law May 24 a bill prohibiting employers from entering into noncompete agreements with employees or independent contractors. The Minnesota law defines a

The National Labor Relations Board (“NLRB” or “the Board”) continued its course of reversing Trump-era law by issuing a decision last month that will make it easier for workers to establish “employee” – as opposed to “independent contractor” – status within the meaning of the National Labor Relations Act (“the Act” or “NLRA”), thereby giving more workers the right to unionize in private-sector workplaces. In The Atlanta Opera, Inc., 372 NLRB No. 95, the Board found that makeup artists, wig artists

The Supreme Court came down hard on unions last month when it held that a company may bring state law tort claims against a union for property damage caused during a strike. The court held that the federal law governing labor disputes – the National Labor Relations Act (“NLRA” or the “Act”) – did not preempt the company’s state law claims. In Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, 143 S.Ct. 1404, a concrete company brought

The wait is over! The Pregnant Workers Fairness Act (“PWFA”) took effect June 27. Employers who haven’t already done so should familiarize themselves with the law’s requirements and take any steps necessary to ensure they are following the new law, including giving proper consideration to requests for reasonable accommodations raised by pregnant employees. We are still waiting on exact guidance from the Equal Employment Opportunity Commission (EEOC) as to what could be considered a reasonable accommodation, which the agency should issue

The New York State Assembly, during a special legislative session last month, passed a bill that, if signed by the governor, will prohibit nearly all noncompete agreements for workers. With the passage of the bill, New York is poised to join California and a handful of other states that have banned noncompetes regardless of salary level or job function. Broad Ban on Noncompetes The bill contains a near-total ban of noncompete agreements for employees, and potentially independent contractors, based in New York. On

In a continued effort to crack down on provisions in employment agreements, the National Labor Relations Board’s General Counsel (“GC”) announced that she will find most noncompete agreements between private sector employers and non-supervisory employees unlawful, absent special circumstances justifying the noncompete. In the memo, which was released to the NLRB’s field offices May 30, Jennifer A. Abruzzo concluded that noncompete agreements hinder employees in the exercise of Section 7 rights – that is, their right under the National Labor Relations

Over the past three years, employers have navigated various workplace issues impacted by the COVID-19 pandemic, including remote work, vaccination, contraction of COVID-19 in the workplace and workplace accommodations, among many others. Since March 2020, the Equal Employment Opportunity Commission (“EEOC”) has maintained and updated guidance to assist employers with this process. Last month, the federal Public Health Emergency for COVID-19 (“PHE”) – which had been in place since early 2020 – officially ended. In its most recently updated guidance,

As we noted on the blog in February and discussed during our annual Hot Topics in Employment Law Seminar on April 25, the Pregnant Workers Fairness Act (“PWFA”), which will require employers subject to Title VII to provide covered employees with reasonable accommodations necessitated by pregnancy, childbirth or related medical conditions, will take effect June 27, and the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act, which expands existing employer obligations to include providing pumping breaks for exempt employees covered

Employers are increasingly relying on electronic systems to supplement – and, at times, supplant – the work of actual human employees relating to certain hiring, retention and employee-management practices. Such systems are often utilized or viewed as a measure to increase efficiency, reduce human error, decrease costs and optimize performance metrics. Of particular note in this arena is algorithmic decision-making tools, such as artificial intelligence (“AI”). At its essence, AI leverages computers and machines to mimic the problem-solving and decision-making capabilities of

One year after Maryland’s Paid Family and Medical Leave Insurance Program (“FAMLI”) was established by the Time to Care Act of 2022 (the “Act”), the General Assembly passed SB 828, which modifies multiple provisions of the program. (An overview of FAMLI as initially enacted can be found here.) Gov. Wes Moore signed the bill into law May 3. Notable Changes to the FAMLI Program The Act initially required covered employers — those with 15 or more employees — to begin contributing to

The National Labor Relations Board has reverted to decades-old standards for assessing whether employee misconduct during the course of protected activity should be protected under federal labor law. The Board’s move will make it more difficult for employers to discipline employees for bad behavior at work if the behavior occurs in the context of discussions or protests over working conditions. The decision applies to private sector employers in union and non-unionized work environments. In Lion Elastomers LLC, 372 NLRB No. 83,

Miles & Stockbridge’s Labor, Employment, Benefits & Immigration Practice Group presented its 21st annual Hot Topics in Employment Law seminar April 25 to clients from throughout Maryland and beyond. Topics covered included employee pay updates; the proposed federal ban on non-competes; attacks on confidentiality clauses in employment agreements; federal and state leave law updates; and the myriad issues raised on a day-to-day basis with human resources professionals, including health and safety issues in the workplace, the impact of changing cannabis

In an era of fluctuating obligations, ramped-up enforcement and increased penalties, employers are wise to ensure they are fully compliant with current Occupational Safety and Health Administration (OSHA) recordkeeping and electronic reporting requirements. Current Requirements Employers with more than 10 employees have long been required to maintain a record of work-related fatalities, injuries and illnesses using OSHA 300, 300A, and 301 forms (or equivalent forms for establishments not partially exempt based on industry). For covered employers, severe injuries and fatalities must be

The COVID-19 pandemic spurred countless businesses to transition to a remote workforce. Today, despite the public health emergency ending May 11, many of those workforces remain fully or partially remote. To that end, the U.S. Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin in February regarding telework under the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). The Bulletin discusses what FMLA and FLSA compliance looks like when a business employs teleworkers and how

The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to all private employers in the U.S., regardless of size, and requires them to provide unpaid leave for up to five years for certain absences related to an employee’s service in the military. While employers may choose to pay for a portion of this time, there was no requirement to do so – until this year. USERRA generally requires employers to provide the same “rights and benefits” to employees during a

The National Labor Relations Board’s decision last month in McLaren Macomb, holding that the mere proffer of a severance agreement containing a broad confidentiality or non-disparagement clause violates federal law, left many employers questioning what to do with their existing severance agreements and wondering about the practical implications of the decision. (We wrote about the Board’s decision here.) Last week, the NLRB’s General Counsel, who oversees the Board’s 26 field offices, released a memo to assist field offices in responding to

Proposed legislation that would govern recreational marijuana use in Maryland was amended earlier this month in the House of Delegates to remove employer protections. Consistent with existing state policy regarding medicinal cannabis use, House Bill 556, as originally written, maintained Maryland employers’ rights to deny employment to an individual who tests positive for cannabinoids or cannabinoid metabolites, provided that the test was conducted in accordance with the employer’s established drug testing policy. The bill also retained employers’ rights to discipline employees

Over the past three years, employers have grappled with how best to respond to various workplace issues caused by the COVID-19 pandemic. Many of the protocols employers put in place relied heavily upon guidance issued by the Centers for Disease Control, National Institutes of Health and other federal, state and local government authorities during the COVID-19 national emergency (NE) and public health emergency (PHE). Now that the Biden administration has announced its plan to officially end both the NE and PHE

U.S. Citizenship and Immigration Services (USCIS) updated last year its policy guidance about a specific type of employment-based, immigrant visa petition known as a National Interest Waiver (NIW), clarifying and possibly relaxing the standards for foreign nationals with advanced degrees in science, technology, engineering, and mathematics (STEM) fields. The new guidance reflects the Biden Administration’s efforts to attract and retain foreign STEM graduates, which we previously discussed in regards to O-1 nonimmigrant visas. These updates make the NIW a potentially

The U.S. Department of Justice (DOJ) announced Friday a three-year pilot program designed to promote compensation systems that “shift the burden of corporate financial penalties away from shareholders . . . on to those more directly responsible.” The Compensation Incentives and Clawbacks Pilot Program directs companies entering into criminal resolutions to implement  compliance-oriented compensation systems and provides incentives to companies that seek to recoup compensation from culpable employees. First, the DOJ directs companies entering into criminal resolutions to implement robust, compliance-related

The National Labor Relations Board last week sent employers into a frenzy over their severance agreements when it declared most standard nondisparagement and confidentiality provisions unlawful and held that even the mere proffer of severance agreements containing such provisions to employees violates federal labor law. The Board’s decision impacts private sector employers in union and nonunion workplaces. The Board’s decision Feb. 21 in McLaren Macomb reverses a set of cases decided in 2020 by a then-Republican-controlled Board, which held that severance

One of the greatest joys in my life – next to becoming a lawyer, of course – was becoming a mother. However, it was also one of the scariest times in my life. I remember starting a new job while pregnant, unsure of what my role would entail or how the firm would react upon learning the news. Thankfully, I joined a firm that is thoughtful and caring, ahead of its time when it comes to expecting employees. Unfortunately, many

The Pregnant Workers Fairness Act (“PWFA”) is not the only new pregnancy-related law for employers to look for in 2023. The federal Providing Urgent Maternal Protections for Nursing Mothers Act (or “PUMP Act”) became law in December. The PUMP Act expands upon the requirements set forth in the Break Time for Nursing Mothers provision of the Fair Labor Standards Act (“FLSA”), which requires employers to provide nursing mothers for at least one year after giving birth a reasonable break time to

Employers: Don’t throw out your open-door policy just because your employees are unionizing. That’s the message the National Labor Relations Board shared this week in cautioning companies against telling their employees that they cannot maintain a direct relationship with management if they vote for a union. Under a 1985 case called Tri Cast, Inc., 274 NLRB 377, the Board set a broad standard for what employers were allowed to say about the future of the employment relationship to convince employees not

A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled earlier this month that the National Labor Relations Board violated the Administrative Procedure Act (APA) in 2019 by issuing certain rules governing union election procedures without seeking public comment. The 2019 Rule – issued by a Trump Board – modified what is colloquially known as the Obama Board’s 2014 “quickie election” rules. The AFL-CIO challenged the 2019 Rule and in 2020, now-Supreme Court Justice Ketanji Brown

Miles & Stockbridge is preparing for what we hope will be a fortuitous H-1B lottery season for cap-subject petitions. The United States Citizenship and Immigration Services (“USCIS” or the “Service”) announced last week the H-1B cap registration period for FY 2024 (Oct. 1, 2023 to Sept. 30, 2024) will run from March 1 through March 17. The H-1B registration program, as it has been administered since FY21, allows employers to register with USCIS for the H-1B lottery without incurring substantial

The Federal Trade Commission (FTC) proposed a rule last week that would ban employers from requiring workers to sign non-compete provisions in employment contracts. The rule also would prevent employers from entering into new non-compete agreements with workers and require employers to rescind existing non-compete agreements. Non-compete provisions limit workers from leaving an employer to work for a competitor or starting a competing business after their employment ends. Most states have statutes that restrict or prohibit non-compete provisions. Except in states

Maryland health care employers and J-1 physicians who commit to serve the underserved in Maryland and who missed the Dec. 1 J-1 Conrad 30 waiver application deadline are in luck: The Maryland Department of Health (MDH) has reopened its application period! Physicians who completed graduate medical education in J-1 status now have additional time to secure a clinical service waiver for the two-year home residence requirement to provide medical services in Maryland. MDH received 24 Conrad waiver applications prior to the

The U.S. Court of Appeals for the Fourth Circuit has expanded its view of what a hostile work environment looks like and lowered the bar in terms of what a plaintiff must show to sufficiently allege a race-based hostile work environment claim under Title VII. Marie Laurent-Workman, an African American and former career civilian employee of the United States Army initially filed suit in U.S. District Court for the Eastern District of Virginia alleging multiple counts of discrimination, including on the

The National Labor Relations Board’s Los Angeles Regional Office (LA Regional Office) decided last week that the University of Southern California, the Pac-12 Conference and the National Collegiate Athletic Association (NCAA) are violating federal labor law by failing to treat student basketball and football players as employees. This move sets the stage for student athletes to unionize and may have broader implications for members of the NCAA. The LA Regional Office’s decision is not surprising given NLRB General Counsel Jennifer Abruzzo’s

The National Labor Relations Board issued a flurry of employee-friendly decisions last week, continuing its move away from the more employer-friendly rulings by the Trump Board and, in many cases, returning to or reaffirming, precedent developed during the Obama administration. The decisions came just before the end of Republican Member John Ring’s term. Going into the New Year, the Board now is composed of a 3-1 Democratic majority. Below is a summary of the Board’s decisions. Failure to Give Employees Certain

The past year has brought many challenges, including those associated with rising inflation and cost-of-living increases. With such concerns top of mind, many states are increasing their required minimum wage rates. Employers should be aware of the following minimum wage increases set to take effect at the end of this year or in 2023. The increases discussed below do not cover tipped workers, other special classes of employees or those mandated by local law. Employers should review their current compensation

The National Labor Relations Board on Wednesday revived an Obama-era standard that will make it easier for unions to organize employees and win elections. In a 3-2 decision in American Steel Construction Inc., the Board resurrected the standard developed in a 2011 case called Specialty Healthcare for analyzing appropriate bargaining units. This framework applies when a union seeks to represent some – but not all – job classifications in a particular workplace and makes it easier for unions to organize

The National Labor Relations Board announced Tuesday that it was expressly expanding the scope of its traditional “make whole” remedy to require employers to compensate wrongfully terminated employees for all “direct or foreseeable pecuniary harm.” Historically, the Board’s remedy for unfair labor practices has been limited to lost wages and benefits; reinstatement to the employee’s former position or a substantially similar position; and, more recently, search-for-work and interim employment expenses incurred because of an unlawful discharge. Now, the Board also will

Earlier this year, the Southeast Crescent Regional Commission (SCRC), a federal-state partnership to alleviate economic and poverty issues, opened a J-1 waiver program, accepting applications for physicians of all medical specialties and subspecialties for positions at sites in designated underserved areas across the southeastern United States. This program significantly increases access to medical care in all of Florida and parts of Alabama, Georgia, Mississippi, North Carolina, South Carolina, and Virginia. Selection for a waiver spot is the first step to securing

When the weather outside is frightful, company holiday party season can be so delightful. The soirees are a great opportunity for colleagues to celebrate everyone’s hard work and get to know one another better. But the mixture of excitement, alcohol and the resulting lowered inhibitions can result in a legal headache for employers, who can be held vicariously liable for the actions of their staff. A determination of an employer’s liability for the conduct of its employees following the consumption of

Maryland voters earlier this month overwhelmingly supported a constitutional amendment to legalize recreational marijuana, joining 19 other states and the District of Columbia. (Missouri also approved legalization of recreational marijuana on Election Day.) While the voice of the electorate might not come as a surprise, the constitutional amendment may leave Maryland employers with more questions than answers. The passage of the amendment does not immediately impact employers but serves as an opportunity for them to evaluate their current drug testing

With Election Day around the corner on Nov. 8, employers may be wondering if their employees are entitled to leave to vote and, if they are, whether it needs to be paid. Here is a breakdown of what is required in the DMV: Maryland Employers must provide employees who are registered voters two hours of paid leave if employees do not otherwise have two hours of continuous off-duty time to vote during the period that polls are open. An employee should provide

The Council of the District of Columbia passed the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”), one of the strictest bans on employee non-compete agreements in the country, approximately two years ago. After several delays and modifications, the amended Act – aptly named the Non-Compete Clarification Amendment Act of 2022 (D.C. Act 24-526) – was signed into law July 27, 2022 and finally took effect Oct. 1, 2022. Unlike the original 2020 Act, which sought to impose

In recent years, employers adapted workplace policies and trainings to conform with changing state laws legalizing medical marijuana use. The landscape is continuing to evolve as many states have now prohibited adverse employment actions for employees’ recreational use of marijuana. New Jersey is one of those states. In February 2021, the New Jersey Cannabis Regulatory Enforcement Assistance, and Marketplace Modernization Act (the “Act”) legalized adult use of recreational marijuana which prohibits employers from taking adverse employment action solely based on

Today (October 13, 2022), the Department of Labor (“DOL”) issued a proposed rule that would provide guidance on classifying workers as employees or independent contractors under the Fair Labor Standards Act (the “FLSA”). The FLSA requires employers to pay non-exempt employees at least the federal minimum wage and overtime pay for all hours worked beyond 40 hours in a work week. The FLSA does not apply to independent contractors. In other words, this proposed rule would be a "practical guide"

On September 27, 2022, California Governor Gavin Newsom signed into law the Pay Transparency for Pay Equity Act, a new pay transparency law imposing increased payroll reporting requirements on large employers and placing additional requirements on employers of all sizes related to salary history inquiries and pay scale disclosures. What Does the Bill Require? Additional Pay Reporting Requirements for Large Employers The new law amends and imposes new payroll reporting requirements for large employers relating to workforce demographics and pay. Under existing law, private employers

In a recent decision, the Maryland Court of Appeals reversed lower rulings related to federal preemption of state law and Maryland’s educational malpractice doctrine. The ruling could have significant implications for students bringing negligence claims and educators defending against them. Case Facts and Procedural History Over the course of the 2016-2017 school year, Dorchester County sixth grader—referred to as “S.”—endured several instances of physical and verbal assault at the hands of classmates, resulting in varying injuries. When S. shared with her

The Maryland Department of Health (MDH) recently released its July 2022 Maryland Conrad 30 (J-1 Visa Waiver) Program Policy and Procedures. This policy is effective October 1, 2022 for the 2023 fiscal year. The Conrad 30 (J-1 Visa Waiver) program allows qualified foreign medical graduate (FMG) physicians to apply for a waiver of the 2-year foreign residence requirement. Recipients of a Conrad waiver remain in the United States to provide essential healthcare services in underserved areas of the United States. The

On September 6, 2022, the National Labor Relations Board (“NLRB” or “Board”) issued a much anticipated proposed rule that would broaden the circumstances under which two companies may be held responsible for labor law violations and union bargaining obligations under federal labor law. The rule has the potential to create labor law obligations and liability for companies that contract with staffing agencies to supply their labor, as well as franchisors.   Two companies are joint employers if they “share or codetermine” employees’ essential

This week, the National Labor Relations Board (“NLRB” or “Board”) ruled that employers may not stop employees from wearing union insignia in the workplace without good reason. This decision, involving Tesla, Inc.’s dress code policy, is the first of what is sure to be a number of precedent-shifting decisions from Biden’s NLRB.  In a 3-2 decision, the Board reaffirmed longstanding U.S. Supreme Court precedent that employees have the right to display union insignia in the workplace, and held that when an employer

October 1 in Maryland is the time when the leaves are changing, there is a chill in the air, and many of the Maryland General Assembly’s bills that were passed in April take effect. Two upcoming laws should be on employers’ radar: the expanded definitions of illegal harassment and reasonable accommodations for applicants with disabilities. 1. Definitions of Harassment and Sexual Harassment Have Expanded (SB450) Maryland’s antidiscrimination law will vastly expand the liability of employers under state law. Previously, the definition of “harassment”

In a decision on July 13, 2022, Maryland’s highest court held that the federal Portal-to-Portal Act has not been adopted or incorporated into Maryland wage laws or regulations. As a result, “what constitutes ‘work’ under Maryland law is not limited to what is compensable work under the [federal] PPA and FLSA” and Maryland employers may be required to pay their employees additional wages for time spent under a broader state definition of work that is not otherwise compensable at the

A federal appeals court this week ruled that “gender dysphoria” qualifies as a disability under the Americans with Disabilities Act (“ADA”). This decision will give broader protection to transgender and other individuals seeking workplace and public accommodations for gender dysphoria.  The lawsuit  was brought by former inmate Kesha Williams, who sued a Virginia prison for violations of the ADA and other civil rights laws. Williams was born male but identifies as female. Prior to her incarceration, she was living as a woman for nearly 15

The Occupational Safety and Health Administration (“OSHA”) recently unveiled a new National Emphasis Program (“NEP”) for outdoor and indoor heat-related hazards. To best protect workers in hot working environments, particularly in a climate of ramped up enforcement, employers are wise to devote considerable attention to understanding heat-related hazards, appreciating OSHA’s planned expansion of heat-related inspections, and preparing workplaces in response to the rollout of the heightened enforcement program. Especially during a summer of record-breaking temperatures, it is never too late

In a stunning decision that has the potential to change the way independent private schools operate, a federal district judge recently ruled in Conrad v. Baltimore Lutheran High School Association d/b/a Concordia Preparatory School that an education institution’s § 501(c)(3) tax exemption constitutes “federal financial assistance” that brings private independent K-12 schools under the auspices of Title IX. To say that this decision is a “game changer” for private schools is an understatement, as the implications are wide and far-reaching. A similar

For those of you who may have missed this important update, Maryland law now requires employers with 15 or more employees to permit the use of existing accrued paid leave for bereavement purposes. Effective October 1, 2021, Maryland’s Flexible Leave Act (“MFLA”) was amended to allow employees to use paid leave for bereavement purposes related to the death of an immediate family member. For purposes of bereavement leave, “immediate family member” is broadly defined as the employee’s spouse, parent, or

More and more, employers have considered using surveillance within the workplace, whether it is to prevent theft, measure productivity, or simply monitor what employees are doing when they are on the clock. While these are legitimate business concerns, employers should be mindful of varying state laws on surveillance and an employee’s reasonable expectation of privacy.  An employer has a legitimate interest in maintaining an efficient and safe workplace operation. However, this interest is not without limitation. One aspect of that interest is

J-1 exchange visitors, often Foreign Medical Graduates ("FMGs"), who receive graduate medical education or training in the U.S. are subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act ("INA"). This requirement means that, upon completion of medical training, the J-1 physician must return to their country of nationality (or country of last permanent residence) for a period of at least two years in the aggregate before becoming eligible for certain nonimmigrant work visas, such

As is now well known both inside and outside of the legal community, the Supreme Court of the United States recently decided Dobbs v. Jackson Women’s Health Organization, where the Court analyzed a Mississippi law that restricted pre-viability abortions. The Supreme Court upheld the Mississippi statute and overturned the constitutional right to abortion established in the 1973 landmark case, Roe v. Wade. The Court emphasized that the precedent set in Roe and affirmed in Planned Parenthood v. Casey was “egregiously

On May 13, 2022, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its twentieth annual Hot Topics in Employment Law seminar to clients from throughout Maryland and beyond. Topics covered included remote work; tax issues, FMLA, and federal and state leave laws; and the myriad issues raised on a day-to-day basis with Human Resources professionals, including coronavirus and mental health concerns, and more. Here are some highlights: Hidden Dangers of Remote Work Meg Manchester presented the potential tax consequences

On May 4, 2022 a Temporary Final Rule (TFR) published by the US Citizenship and Immigration Service (USCIS) of the Department of Homeland Security (DHS) increased the automatic extension period for certain categories of work authorization to up to 540 days. This is a welcome relief for certain categories of foreign nationals who are at risk of losing work authorization due to USCIS’s processing delays.  Below is a summary of this important rule: Who: This rule applies to foreign nationals whose employment

Maryland will join the nine states and the District of Columbia in enacting its own paid family and medical leave. Maryland Sen. Antonio L. Hayes (D-Baltimore City) and Del. Kris Valderrama (D-Prince George’s County) sponsored the Time to Care Act of 2022 (the “Act”).  On March 31, 2022, Senate Bill 275 (the Act) passed the legislature and was submitted to Governor Hogan, who ultimately vetoed the bill on April 8, 2022. However, on April 9, 2022, legislators in the Maryland General Assembly

On March 24, 2022, Washington’s Silenced No More Act (formally known as Engrossed Substitute House Bill 1795) was signed into law by Governor Jay Inslee. As a result, Washington has become the second state to declare certain nondisclosure and nondisparagement provisions in employment and independent contractor agreements illegal. California passed its own version of the Silenced No More Act last year. The Washington Silenced No More Act is scheduled to take effect on June 9, 2022. Once enacted, the law will

The Supreme Court has recently taken the challenge of assessing the scope and breadth of workplace arbitration provisions under the Federal Arbitration Act (“FAA”) in Viking River Cruises, Inc. v. Moriana, and Southwest Airlines Co. v. Saxon, both of which stand to have far-reaching impacts for employers seeking to resolve disputes with employees outside of court. The Viking River Cruises case involves a controversy between Viking and its employee Angie Moriana. Ms. Moriana signed an arbitration agreement in which she and

U.S. Citizenship and Immigration Services (USCIS) published a final rule on March 30, 2022 that will increase access to its premium processing service, under which applicants for certain immigration benefits can obtain expedited processing by paying additional fees. Through the new rule, USCIS seeks to address the budget shortfalls, backlogs, and ever-increasing processing times that have plagued the agency and frustrated applicants, especially during the Covid-19 pandemic. USCIS intends to introduce the increased access to premium processing in the following

Mandatory arbitration agreements for all employment claims will no longer be enforceable under a newly passed law. On March 3, 2022, President Biden signed the Ending Forced Arbitration Act (the “Act”), which invalidates previously agreed upon arbitration clauses to resolve sexual harassment or sexual assault disputes, a bill that had previously passed with wide bipartisan support in the House and Senate. Now, regardless of when an arbitration agreement was signed, mandatory arbitration will not be enforced for claims that arise

On February 24, 2022, the Fourth Circuit restored a $1,186,975.00 arbitration award for a North Carolina securities wholesaler (“Warfield”) who alleged that his former employer ICON Advisers Inc. (“ICON”) unlawfully fired him without cause. Warfield v. Icon Advisers, Inc., No. 20-1690, __ F.4th__, 2022 WL 552029, (4th Cir. Feb. 24, 2022). North Carolina, like most states in the United States, is an at-will employment jurisdiction. At-will employment means that an employer can terminate an employee at any time for any

Nearly one year ago to the date, I wrote in my blog post that the “the path to qualifying in [for the O-1A visa classification] is far from transparent.” At that time, I noted that the request for evidence (“RFE”) rate was on an upward swing in this temporary, non-immigrant visa classification. Today, we are pleased to discuss the Biden Administration’s recent steps to increase clarity and predictability for foreign nationals seeking this classification, with a focus upon those in

Federal supply and service contractors and subcontractors have long been required to create and maintain written affirmative action plans (“AAP”) if they meet certain contracting thresholds. Unless and until a contractor was audited by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), however, there was no real mechanism for the government to confirm that contractors were in compliance with these obligations. Even though contractors are required to certify compliance in order to contract, OFCCP’s experience through

When can a data breach can get worse? When the process of notifying victims creates a second breach. Take the example of a cancer treatment center that recently paid $425,000 to settle allegations that included a faulty notification process following a breach. The story provides an important lesson. One Breach Leads to Another It began with a spear phishing attack. Employees at the facility fell victim to the attack and their email accounts were compromised. The result: protected health information and other

After hearing oral argument on January 7, 2022, on January 14, 2022, the Supreme Court issued a  ruling staying the Biden administration’s vaccine or testing mandate for large employers. As many doubtless know, on September 9, 2021, the Biden administration announced a sweeping six-pronged plan aimed at addressing the pandemic, which included a requirement that all employers with 100 or more employees have their employees vaccinated or tested weekly for COVID-19. In setting forth his plan, the president charged the Occupational Safety and Health

What You Need to Know The injunction on the ETS has been lifted and the rules are currently in effect OSHA has offered a brief non-enforcement holiday for violations OSHA will not enforce regulations until January 10 OSHA will not issue citations for employers taking good faith steps to get into compliance prior to February 9 Petition for a further stay has been filed with the SCOTUS Friday evening, the 6th U.S. Circuit Court of Appeals delivered a welcome decision to the Biden Administration and dissolved

On November 12, 2021, Stephanie Baron, Kirsten Eriksson, Suzzanne Decker, Veronica Jackson, and Paolo Pasicolan of Miles & Stockbridge’s Labor, Employment, Benefits, & Immigration Practice presented a webinar about the OSHA’s recent Emergency Temporary Standard (“ETS”). Here’s what you missed if you were unable to attend: Challenges to OSHA’s ETS As you may have heard in the news, there have already been several challenges to the legality of the ETS. The 5th Circuit issued a temporary injunction against enforcement of the ETS,

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers and employees regarding religious objections to COVID-19 Vaccine Mandates. With many employers implementing COVID-19 vaccine requirements, (discussed in our October 8, 2021 blog post), employees may be requesting religious accommodations. As such, this updated guidance is helpful for employers seeking to ensure compliance with Title VII. Title VII, in part, prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request

After much anticipation, on November 4, 2021, the Occupational Safety and Health Administration (OSHA), issued its long-awaited Emergency Temporary Standard (ETS), requiring mandatory COVID-19 vaccination or weekly testing for private employers with 100 or more employees. Shortly after the ETS was issued, a lawsuit was filed to enjoin the enactment and enforcement of the ETS.  The Fifth Circuit Court of Appeals ruled to temporarily enjoin the ETS.  As the case proceeds employers should keep watch for updates.  In the interim, we

On October 12, 2021, the Occupational Safety and Health Administration (OSHA) delivered a draft of the emergency temporary standard (ETS) requiring COVID-19 vaccination or weekly testing of workers for private employers with 100 or more employees to the White House for final review and approval. The ETS is being issued in response to President Biden’s six-pronged Action Plan, announced on September 9, 2021, aimed at addressing the nation’s most recent surge of coronavirus cases. As part of his Action Plan, Biden specifically

As an employer, you might be thinking about implementing a mandatory vaccine policy for your workforce. There are many issues to consider when developing a mandatory vaccine policy, and it is hard to keep up with fast-developing federal, state, and local requirements. Before putting a policy into place, what are some of most pressing issues that you should be thinking about? State Law Considerations It is important to consider the state(s) where you have employees. Several states, including Florida and Texas, passed

The Maryland Court of Special Appeals held on September 7, 2021 that Maryland public school teachers cannot be held liable in negligence for the injuries of students under their supervision at the hands of other misbehaving students. Gambrill v. Board of Dorchester County, et al., No. 0886, September Term 2019 (September 7, 2021). The Court upheld the trial court’s summary judgment decision in favor of the Board of Education of Dorcester County related to the treatment of a sixth grade

Update (October 26, 2021): The Biden Administration has announced that the vaccination requirement for international travelers to the United States described in this post will go into effect on November 8, 2021. The vaccination requirement will apply to travelers arriving both at airports and land border crossings. Limited exceptions will apply, most notably for children under 18 years of age. The Biden administration has announced that it will lift current regional pandemic-related travel restrictions on foreign nationals in early November. The

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

Whistleblowers who report perceived illegal activity by an individual, agency, or organization have long been heralded as heroes, serving both the public and private sectors by producing evidence of wrongdoing despite great personal risk. Accordingly, whistleblowers are afforded heightened protections that prohibit an employer from retaliating against an employee for reporting alleged wrongdoing. However, a recent decision from the D.C. Circuit demonstrates that whistleblowers are not shielded by a super power of invincibility.  Any adverse action taken by an employer against

J-1 exchange visitors who received graduate medical education or training in the U.S. are subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act (INA).  This requirement means that, upon completion of medical training, the J-1 physician must return to his/her home country (or country of last permanent residence) for a period of at least two years in the aggregate before being eligible for certain nonimmigrant work visas, such as H-1B, or legal permanent

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 August 13, 2021, the Occupational Safety and Health Administration (OSHA) updated its “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The guidance was originally released on January 29, 2021, and was updated once previously on June 10, 2021. The new OSHA guidance follows the U.S. Centers for Disease Control and Prevention’s (CDC) recent update to the “Interim Public Health Recommendations for Fully Vaccinated People,” which encourages fully-vaccinated people to wear masks in all “public indoor

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

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

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 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

On December 27, 2020, the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (TCDTR Act) amended the employee retention credit (ERC) provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Among other changes, the ERC is now available from January 1, 2021 through June 30, 2021. Below is a description of the ERC available under the CARES Act and a list of the modifications now in place under the TCDTR Act. ERC under the CARES Act The ERC

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

The Justice Department announced on November 10, 2020 that it signed a settlement agreement with Fleetlogix Inc. (“Fleetlogix”) resolving claims that the company discriminated against work-authorized, non-U.S. citizens by requiring them to provide specific and unnecessary work authorization documentation because of their citizenship or immigration status. Fleetlogix, based in San Diego, California, operates offices nationwide that provide cleaning and transportation services to rental car companies. The Justice Department’s underlying investigation in 2019 that led to the settlement showed that Fleetlogix required

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

On August 3, 2020, a federal court in the Southern District of New York overturned key provisions of the Families First Coronavirus Response Act (FFCRA)—the federal law requiring certain employers to provide eligible employees with emergency paid sick leave (EPSL) and expanded family and medical leave (EFML) for specified reasons related to COVID-19—significantly broadening employee eligibility to receive emergency leave under the Act. The unexpected decision came in response to a challenge by the state of New York, which sought

As more and more employees are returning to work, it is no surprise that employers are dealing with an influx of new issues. Guidance from the CDC and other agencies seems to change regularly, and employers may struggle to keep their policies up-to-date with the changes. Since the start of the pandemic, the CDC has provided recommendations for individuals who were infected with the coronavirus to self-quarantine for a period of time.  Employers have used these recommendations to determine when an

On July 27, 2020, a new rule went live, making it easier for retirement plans to communicate with participants electronically. This new rule modernized an existing rule that was becoming obsolete. Existing Rule Employer benefit plans must disclose certain information to participants. Information can be delivered electronically if delivery is calculated to ensure actual receipt. Receipt is presumed if information is sent to participants who have e-mail access at their workplace and who actively consent to electronic delivery, subject to additional conditions. Specifically, electronic

On July 21, 2020, the National Labor Relations Board (NLRB) issued a decision in General Motors LLC, 369 NLRB No. 127 (2020) which fundamentally changed the standard for, “determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements — including profane, racist, and sexually unacceptable remarks — in the course of activity otherwise protected under the National Labor Relations Act” (Act). Prior to its decision in General Motors, the NLRB had established three different setting-specific tests

New Optional-Use FMLA Forms On July 16, 2020, following a period of public comment, the DOL published new optional-use FMLA forms. The forms were revised by the DOL to make them easier to understand and use.  For instance, the forms now contain fewer questions requiring written responses. Instead, the forms use statements and check boxes. This change is intended to cut down on the time it takes to complete the form and to cut down on the need for follow up

On July 15, 2020, the Virginia Safety and Health Codes Board adopted the Emergency Temporary Standard, Infectious Disease Prevention, SARS-CoV2 Virus that Causes COVID-19 (ETS), making Virginia the first state to adopt COVID-related workplace safety regulations. The text of the ETS is currently being finalized and will go into effect upon publication, which is expected to occur the week of July 27, 2020. The ETS will remain in effect for at least six months. The ETS is designed to supplement current

On July 8, 2020, the Supreme Court of the United States issued two new opinions applying First Amendment religious rights to employers. The first case, Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020), overturned the Ninth Circuit in expanding the individuals employed by religious institutions that are exempt from anti-discrimination laws. The second case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431 (July 8, 2020), overturned a nationwide injunction instituted

Effective July 1, 2020, Virginia’s employment laws are substantially changing to provide broader protections to employees in many areas. We previously summarized the Virginia Values Act (VVA), which goes into effect on July 1, 2020, and subjects employers with more than five employees to new state claims for, among other things, gender identity and sexual orientation discrimination and for larger damage awards. Because of the significance and volume of the new laws going into effect July 1, 2020, we covered the

Effective July 1, 2020, Virginia’s employment laws are substantially changing to provide broader protections to employees in many areas.  We previously summarized the Virginia Values Act (VVA) here which goes into effect on July 1, 2020 and subjects employers with more than five employees to new state claims for, among other things, gender identity and sexual orientation discrimination and for larger damage awards. Because of the significance and volume of the new laws going into effect July 1, 2020, we will

Last night, President Trump signed a Presidential Proclamation imposing entry restrictions on certain foreign nationals in temporary work visa statuses, including H-1B, L-1, J-1 and H-2B, and related categories for dependents, with some exceptions. The restrictions will take effect on June 24, 2020, at 12:01am EDT and will expire on December 31, 2020, subject to possible extensions. Additionally, the Proclamation extends the current restrictions on certain immigrant visa applicants until December 31, 2020. The Proclamation will only impact foreign nationals

On Thursday, June 18, the Supreme Court rejected the Trump Administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program for undocumented immigrants brought to the country as children, known as “Dreamers.” The 5 to 4 decision was written by Chief Justice John G. Roberts Jr. and joined by the court’s four liberal justices. The Supreme Court held that the Department of Homeland Security (DHS)’s effort to terminate the DACA program was arbitrary and capricious, and remanded the

According to media and other sources, the Trump Administration will likely issue a Presidential Proclamation instituting additional immigration restrictions by the end of this month. The Proclamation is likely to extend the April 22, 2020, Presidential Proclamation, “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” which suspended immigrant visa processing for some applicants for permanent residency for 60 days. The new Proclamation is also expected to impose temporary

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) released additional information within its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” guidance. In March 2020, the EEOC began periodically releasing frequently asked questions and corresponding answers about the intersection of the laws it enforces and COVID-19. As the enforcer of workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII of the Civil Rights Act (“Title

In a seminal 6–3 decision for LGBTQ rights on Monday, June 15, 2020, the Supreme Court of the United States held plainly: An employer who fires an individual merely for being gay or transgender defies the law. The Opinion by Justice Gorsuch, issued more than eight months after the Supreme Court heard oral arguments in the three consolidated cases at the center of this action, provides that an employer who intentionally treats a person worse because of sex—such as by

You don’t need a legal blog to tell you that the country is in a state of extreme unrest regarding the killings of George Floyd, Ahmaud Arbery, Breonna Taylor and so many other Black people, at the hands of police and in other racially charged incidents. People in the United States and abroad have engaged in protests about issues related to race in America, including police brutality and institutional racism. In addition to people protesting in the streets, millions more

On May 7, 2020, in accordance with Article II, Section 16(c) of the Maryland Constitution, Governor Hogan allowed hundreds of Maryland bills to become law without his signature. Many of these laws will have direct implications on the workplace that employers should be aware of. A summary of these employment-related laws is provided below. All will become effective on October 1, 2020. Expansion of Employers’ Notification and Reporting Obligations for Workforce Layoffs S.B. 780, referred to as “Maryland’s Mini-WARN Act” (a state

Businesses required by the Occupational Safety and Health Administration (OSHA) to maintain a log of work-related injuries and illnesses—referred to as an “OSHA 300 Log”—must now pay additional attention to whether employee cases of COVID-19 are “work-related” and therefore recordable. As of May 26, 2020, OSHA has announced that its earlier enforcement guidance— exempting employers (except for those in certain high-risk industries) from recording cases of COVID-19 absent obvious indications of “work-relatedness”—will be rescinded and replaced with a revised enforcement

U.S. Citizenship and Immigration Services (USCIS) today announced that it will resume premium processing for Form I-129 and Form I-140 petitions in phases over the next month. On March 20, USCIS announced the temporary suspension of premium processing for all Form I-129 and I-140 petitions due to the coronavirus (COVID-19). Effective June 1, 2020, USCIS will accept Form I-907, Request for Premium Processing Service, for all eligible Form I-140 petitions. Effective June 8, USCIS will accept premium processing requests for: H-1B petitions filed

On May 8, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) announced the issuance of a new form that federal contractors must use to ask job applicants and employees to self-identify as disabled. This is the first revision to the form since March 2014, when the regulations implementing Section 503 of the Rehabilitation Act of 1973 were revised, and contractors were required to perform data collection regarding applicants and employees with disabilities. The 2014 regulations require federal contractors subject

On April 11, 2020, Virginia Governor Ralph Northam signed into law the Virginia Values Act (VVA), which will subject employers with more than five employees to state claims for discrimination with increased damages.  The new law, which goes into effect July 1, 2020, also adds gender identity and sexual orientation to the list of classes protected under the Virginia Human Rights Act (VHRA). Prior to the passage of the VVA, the VHRA only applied to employers with more than 5 and

Governor Larry Hogan allowed Senate Bill 780 to become law without his signature on May 7, 2020. The law will become effective on October 1, 2020. This new law significantly revised the existing Economic Stabilization Act (MD Code, Labor and Employment §11-301 – §11-304)(“Act”) and will drastically change Maryland employers’ notification and reporting obligations regarding workforce layoffs. Previously, the Act provided voluntary guidelines for employers who intended to lay off employees regarding the provision of notice to those employees. Under the

The COVID-19 emergency has impacted businesses throughout the country, from placing restrictions on reopening to dealing with the nuances of the CARES Act. Another workplace issue that will rise out of this national emergency is how the workers’ compensation system will deal with COVID-19 claims. Workers’ compensation is usually the exclusive remedy for employees injured at work. The system benefits employees by providing injured employees the prospect of swift and sure compensation, without having to prove their employer was at fault.

On Sunday, May 3, 2020, the Centers for Disease Control and Prevention (CDC) updated their Frequently Asked Questions for General Business and released guidance for Symptom-Based Strategy to Discontinue Isolation for Persons with COVID-19. The new guidance is targeted at assisting employers as they try to navigate the landscape of reopening businesses during the COVID-19 outbreak. When returning individuals to work, the employer should take proactive measures to prevent the spread of the virus in the workplace, including limiting social interaction,

Until recently, employers had largely ignored unemployment claims other than to contest an occasional claim. Now, however, as employers consider different options to address the impact of the COVID-19 pandemic on their business, they find themselves struggling to understand the system and the impact it may have on their operations. While unemployment rules and regulations will vary on a state-by-state basis, there are some general principles that employers should understand to help them develop the best business plan for their

On April 22, 2020, President Trump issued a proclamation suspending the entry of certain immigrants for 60 days. The proclamation applies only to a limited group of new immigrants who are currently outside the United States and does not impact foreign nationals who are in the U.S. or who are seeking to enter on temporary visas. However, the proclamation does leave the door open for future restrictions, which may impact those in temporary work visa status such as H-1B, TN

On April 17, 2020, the EEOC updated its guidance initially published on March 17, 2020, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address additional employment concerns in the wake of the COVID-19 pandemic. Notable new topics addressed by the guidance, including issues related to temporary accommodations, undue hardship and returning to work, are discussed below. For a summary of the topics previously addressed by the EEOC in this guidance,

Employees concerned about the coronavirus and its impact on their health and that of their family members have been speaking out in the workplace, on social media and in the press. Employees have been raising issues such as social distancing in the workplace, available safety equipment and disinfecting their workspaces. There have been a number of recent articles concerning discipline issued to employees for raising those concerns. Employees’ concerns and discussions about those concerns are likely to increase as businesses

As businesses continue to wait for curves to begin to flatten, there is little doubt that there will be increased pressure to resume operations as quickly as possible. Businesses should begin to consider now how they will comply with best practices to safeguard employees and avoid situations that put their employees at risk. Jeff Johnson’s March 26 blog post touched on OSHA’s emphasis to that date and is a good starting place for professional managers trying to anticipate problems that good

One of the few good things about a pandemic is that it can trigger the human instinct to share. If you are thinking about adopting or expanding a leave-sharing or PTO donation program, remember to consider the tax consequences to employees. The simplest form of a leave-sharing program is where one employee donates PTO to another employee or an employer-managed PTO bank. The donated PTO can be used by another employee for any reason or for certain reasons specified by the

Is COVID-19 a disability under the ADA? To qualify as disabled under the Americans with Disabilities act, an individual must be: A person who has a physical or mental impairment that substantially limits one or more major life activities; A person who has a record of such an impairment; or A person who is regarded as having such an impairment.1 According to recent guidance released by the EEOC in a March 27 webinar, it is unknown whether COVID-19 would itself qualify as a disability under

The Coronavirus Aid, Relief, and Economic Security Act (“Act”) contains several business relief provisions, including an employer payroll tax deferral (“Deferral”) and a companion provision allowing an employee retention credit (“Credit”). 1.    Deferral The Act allows for deferral of the employer portion of Social Security tax imposed by I.R.C. Section 3111(a). Deferral does not apply to employee income tax withholding, the employee or employer portion of the Medicare tax, or the employee portion of the Social Security tax. There are no employer eligibility requirements

On April 1, 2020, the IRS finalized Form 7200 – Advance Payment of Employer Credits Due to COVID-19 and the accompanying instructions. The Form provides additional guidance for eligible employers to take advantage of refundable tax credits under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security Act (CARES) Act. Background Employer Relief under the FFCRA. Under the FFCRA, an eligible employer’s costs associated with required paid family and sick leave are offset dollar-for-dollar (up to

The spread of COVID-19 is taking the world by storm with unprecedented and far-ranging consequences. During this extraordinary time, many employers are dealing with difficult issues regarding their workforces amidst office closures, shelter-in-place orders and other disruptions. Below we provide general guidance to common questions and scenarios with respect to workers in H-1B status during this challenging time, although particular cases will require an individualized assessment. 1.    Can an H-1B worker be furloughed or placed in other unpaid leave status? No, an

In response to the significant challenges related to the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) and the Department of State (DOS) have recently implemented temporary operational changes and immigration-related measures. Below are some of the important updates impacting U.S. employers and their foreign national workers. Suspension of Routine Visa Services by the DOS The DOS is temporarily suspending routine, non-emergency visa services at all U.S. embassies and consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa

Unfortunately, many of the regulations governing employers’ obligations to their employees provide little guidance on how to navigate a global health pandemic like coronavirus. This is particularly true for regulations issued by the Occupational Safety and Health Administration (OSHA), which are the primary source of an employer’s obligations to provide a safe working environment, but are ill-suited to address the current health crisis. To provide clarity on the obligations of employers relating to Coronavirus, OSHA recently created a COVID-19 Resource

The U.S. Department of Labor (DOL) yesterday issued its Families First Coronavirus Response Act (FFCRA) “Employee Rights Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act” poster for most public employers and private employers with fewer than 500 employees to post in the workplace. The poster informs employees of their rights under the FFCRA. The DOL also posted helpful frequently asked questions concerning the poster. The frequently asked questions clarify that the posting requirement

On Monday, March 23, 2020, Governor Northam issued Executive Order 53 (“EO53”) ordering the statewide closure of recreational and educational businesses to the public, non-essential retail businesses, all K-12 schools for the remainder of the academic year, banning all gatherings of more than 10 people, and restricting Essential Retail Businesses and Professional Service Businesses to complying with the CDC guidelines. This order went into effect yesterday (Tuesday March 24, 2020, at 11:59 p.m. and will remain in place until 11:59 p.m.

On March 24, 2020, the Department of Labor issued its first published guidance relating to the Emergency Paid Sick Leave (EPSL) and Emergency FMLA (EFMLA) established under the Families First Coronavirus Response Act (FFCRA). For a full explanation of the FFCRA, please see our prior blog.  The three guidance documents from the DOL are available here, here and here. The most notable piece of information is that the law is going into effect a day earlier than anticipated—on April 1, 2020.

Employers with a unionized workforce are familiar with the general prohibition under the National Labor Relations Act (NLRA) against unilaterally changing terms and conditions of employment that are specifically covered by an existing collective bargaining agreement (CBA). For terms and conditions not specifically covered by an existing CBA, employers also know that they may not make changes without bargaining to an agreement or reaching an impasse over those issues. However, what may an employer do when faced with an unforeseen

As the Coronavirus (COVID-19) spreads, a growing number of employers are considering terminating or furloughing employees. This has raised a number of Maryland unemployment compensation questions that, although not specifically related to the COVID-19 pandemic, result from its effects on employees and employers alike. This article provides guidance on the most common COVID-19 related unemployment issues. Determining a claimant’s weekly benefit amount (WBA) in Maryland. A claimant’s WBA is approximately 54% of gross weekly wages up to a maximum of $430 per

With the novel coronavirus (COVID-19) causing Employers to switch to teleworking or temporarily shuttering their operations, government contractors have special challenges. Some employees of government contractors may not be able to work remotely under the terms of the government contract and others who perform classified work or need access to government networks may not be able to telework. Therefore, due to COVID-19, temporary furloughs of employees working for government contractors are likely. Government contractors should plan now for possible furloughs

On March 18, 2020, the United States Senate passed the revised “Families First Coronavirus Response Act,” (“FFCRA”) that had been passed by the United States House earlier this week, which President Trump has now signed.  The FFCRA becomes effective within 15 days (April 2, 2020), so employers should immediately begin preparations to ensure compliance with the law. Importantly, the new law does not require that employers provide paid leave for employees who are off work just because of an office closure.

Senate Bill 1080 which was cross-filed with House Bill 1663, were recently passed by both the House (March 17, 2020) and the Senate (March 18, 2020). The Bill is on its way to Governor Hogan, who is expected to sign it into law. Among other issues, the Bill expands employees’ eligibility for unemployment compensation due to the impact of the current COVID-19 health emergency. Specifically, the Bill provides that an employee need not separate from employment to be eligible for unemployment

On March 16, 2020, the United States House of Representatives passed a “corrected” version of the Families First Coronavirus Response Act (FFCRA), which made some notable changes to the provisions impacting employers. The FFCRA’s major requirements for employers relate to paid leave, as follows: Emergency Paid Sick Leave (EPSL).  Private employers with fewer than 500 employees and all public employers must provide 80 hours of paid leave to all full-time employees who need to miss work because of illness or quarantine, or

While response and preparedness efforts are in full swing throughout the country and globally, many employers are tackling how to handle a variety of employment issues in the face of the coronavirus pandemic. Most of our clients and other readers have likely already encouraged their employees to practice good hand washing and social distancing, and to stay home when they are sick, as the CDC has suggested through its Interim Guidance for Businesses and Employers. Beyond these recommendations, here are

On March 14, 2020, the United States House of Representatives passed with overwhelming bipartisan support the “Families First Coronavirus Response Act” (FFCRA), which if ultimately signed into law, would impose significant obligations on employers with fewer than 500 employees, including mandatory additional paid sick leave and expanded Family Medical Leave Act leave. The United States Senate is expected to take up the legislation this week, and while there may be some further changes, President Trump has expressed his support and indicated

As of March 11, 2020, the World Health Organization (“WHO”) officially declared the COVID-19 virus outbreak to be a global pandemic.  On an hourly basis, we are watching both government agencies and corporations respond by making drastic changes to their routine business operations and plans by cancelling events and otherwise restricting travel and large meetings.  Most companies are facing the dilemma of how to continue to do business while meeting their legal obligations to protect employees.  This article provides an

On March 6, 2020, the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group presented its eighteenth annual Hot Topics in Employment Law seminar to clients from throughout Maryland and beyond. Topics covered included reasonable accommodations; leave issues under the ADA, FMLA, and state and local leave laws; and the myriad issues raised on a day-to-day basis with Human Resources professionals, including Coronavirus concerns, government investigations, and more. Marc Freedman, Vice President of Workplace Policy for the U.S. Chamber

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,

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

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

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

The EU General Data Protection Regulation (GDPR) took effect on May 25, 2018. Potential fines for violating the GDPR include up to four percent of an organization's annual profits or €20 million (approximately $23 million), whichever is greater. Despite the risks associated with failing to meet the GDPR standards, many companies are still working towards compliance.   If you are among this group, it is critical to not give up but, rather, to focus on actively continuing efforts to achieve (and

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

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”)

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

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

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

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

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

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

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

In the wake of the latest massive data breach, this one involving Equifax, more and more companies are likely wondering what they should do in the event that they are faced with a data breach that exposes the personal data of their employees or customers. Data security incidents involve complex legal issues that must be navigated carefully to reduce the risk of improper (or unnecessary) breach notification, attention from state and federal regulators, and potential class actions related to the

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