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H-2B Visa Shortage and Other Immigration Issues Hold Up U.S. Budget as Deadline Nears

Jackson Lewis P.C. • March 21, 2018
The H-2B visa shortage continues, impacting thousands of U.S. businesses around other country. H-2B visas are used widely in hospitality and tourism, landscaping and the construction industry to hire foreign workers for temporary nonagricultural work. There are 66,000 available annually – half for the winter season and half for the summer season.

3 Ways Your Company May Be Engaging in Sex Discrimination

XpertHR • March 21, 2018
March is Women’s History Month, and it marks 55 years since the Equal Pay Act was enacted and 54 years since Title VII of the Civil Rights Act has been the law of the land. And yet women continue to experience discrimination, sexism and harassment in the workplace at alarming rates.

Fringe Benefits Affected by the Tax Cuts and Jobs Act

Ogletree Deakins • March 21, 2018
The enactment of the Tax Cuts and Jobs Act (TCJA) on December 22, 2017, brought about the most sweeping overhaul of the Internal Revenue Code (IRC) since 1986. Most of the changes took effect on January 1, 2018. This article covers the TCJA’s impact on employer-provided fringe benefits and offers insights, based on conversations with employers across the country, on how the changes may influence employers’ fringe benefit offerings in the years to come.

What All Employers Need to Know About Protecting Employee Health Information

Ogletree Deakins • March 21, 2018
Employers obtain employee health information in a number of ways—most commonly, in relation to a work-related injury or when an employee requests medical leave or a disability accommodation. Most employers understand that such information is “confidential,” but may not fully understand what that means or what they should do to protect it.

USCIS Suspends Premium Processing on FY 2019 H-1B Cap Filings

Ogletree Deakins • March 21, 2018
On March 20, 2018, U.S. Citizenship and Immigration Services (USCIS) announced the temporary suspension of the premium processing program for all fiscal year (FY) 2019 cap-subject H-1B cases. The premium processing program allows a petitioner to pay an additional government filing fee to USCIS in return for a guarantee that the agency will issue a decision on the case within 15 calendar days. This suspension only impacts new H-1B quota cases filed for FY 2019. H-1B petitions that are exempt from the annual quota (such as extensions of stay, requests to amend existing H-1B status, and requests for changes of employer) can continue to be submitted with requests for expedited processing under the premium processing program. USCIS noted that the suspension is expected to last until September 10, 2018.

Is the Pay Gap a Sickness in Your Healthcare Organization? How Healthcare Employers Can Tackle Gender Pay Disparities

Ogletree Deakins • March 21, 2018
In 2017, a number of cases were filed in federal court in various states by female doctors claiming their employers paid them less than allegedly comparable male doctors. At least one of these cases was conditionally certified as a collective action under the Equal Pay Act. These cases followed on the heels of recent studies showing that, on average, female doctors are paid less than male doctors. These studies indicated that such disparities exist even when accounting for relevant factors such as specialty practices, practice ownership, years of experience, and work hours. The studies reflect that the disparities grow bigger when race is brought into the equation.

Hair Salons Want A Cut From The Gig Economy

Fisher Phillips • March 21, 2018
The gig economy continues to grow into all sectors of the modern world. By some accounts, on-demand workers are projected to comprise 43 percent of the United States workforce by 2020. If true, we can anticipate large groups of workers searching for non-traditional, more flexible work options in all industries. While the gig economy model is more pervasive in areas like the ride-sharing industry, we will no doubt continue to see growth in countless others. Could the beauty and grooming industry be up next?

What to Make of the DOL'S PAID Program

Franczek Radelet P.C • March 21, 2018
You may have read about the U.S. Department of Labor’s new “Payroll Audit Independent Determination” or “PAID’’ pilot program. Under this program, the DOL invites employers to voluntarily audit their payroll practices and disclose any “non-compliant practices” to the DOL. The DOL then reviews the employer’s records and calculations of what is owed to employees, and tells the employer what it thinks the employer should pay. The employer then pays its employees, and employees sign a release of any FLSA claims against the employer. Participating employers are not subject to civil monetary penalties and are not required to pay liquidated damages to employees. (Available details on the program are included in the DOL’s press release and a FAQ page on the DOL’s website.)

Sixth Circuit Holds Transgender Status Is Protected by Title VII and Rejects Religious Freedom Restoration Act Defense

FordHarrison LLP • March 20, 2018
Executive Summary: The Sixth Circuit Court of Appeals is the latest to weigh in on the heated debate as to whether sexual orientation, gender identity, transgender status and/or gender expression are protected classes under Title VII of the Civil Rights Act of 1964. Following on the heels of the Second Circuit’s February 26, 2018 en banc ruling in Zarda v. Altitude Express that Title VII protects sexual orientation, on March 7, 2018, in EEOC v. R.G., 2018 U.S. App. LEXIS 5720 (6th Cir. March 7, 2018), the Sixth Circuit became the first to hold that Title VII also protects transgender status. In doing so, the Sixth Circuit rejected the employer’s defense under the Religious Freedom Restoration Act (RFRA).

D.C. Circuit Court Finally Rules on FCC’s 2015 TCPA Order

Jackson Lewis P.C. • March 20, 2018
After two and a half years, the U.S. Court of Appeals for the District of Columbia issued a highly anticipated ruling reviewing the Federal Communications Commission’s (“FCC” or “Commission”) July 2015 Declaratory Ruling and Order (“2015 Order”) in which the FCC issued interpretative guidance on several aspects of the Telephone Consumer Protection Act (”TCPA”).

Business Immigration Zone (BIZ): The Spring Planting Season Places Focus on the H-2A Program

Phelps Dunbar LLP • March 20, 2018
Spring is here, and so is the H-2A filing season. The H-2A program allows U.S. farmers and agricultural businesses to bring foreign nationals to the United States to fill temporary agricultural jobs. A U.S. employer, an agent as described in the regulations, or an association of U.S. agricultural producers named as a joint employer may apply for H-2A workers to assist with planting and harvesting operations.

Obesity and The ADA

Goldberg Segalla LLP • March 19, 2018
Is obesity a disability?

Report: New Internal Oversight Division within USCIS to be Established

Jackson Lewis P.C. • March 19, 2018
The Washington Post has reported that USCIS is establishing an internal oversight division. The new division’s purpose, in part, would be to monitor more closely officers who are too lenient in assessing applications for permanent residence and citizenship, including overlooking negative factors such as misdemeanors and the receipt of government benefits (e.g., food stamps). Employees of USCIS would be encouraged to report any such observed “misconduct” by other staff to the new office, which would report directly to Director Francis Cissna.

Harassment by Emojis: Leaving Employers at a Loss for Words

Ogletree Deakins • March 19, 2018
As many employers are attempting to navigate the #MeToo movement and cultural changes surrounding sexual harassment claims, they now face another legal issue on the harassment horizon: how to address harassment allegations involving wordless communications—namely, emojis. Workplace harassment claims regarding emojis are increasing at a significant rate and leaving employers scratching their heads.

A New Push to Organize Graduate Students at Private Colleges and Universities? Four Major Unions Announce a Coalition on Higher Ed Organizing

Franczek Radelet P.C • March 18, 2018
On March 14, 2018, leaders from the Service Employees International Union, the United Auto Workers, the American Federation of Teachers, and UNITE HERE announced a new coalition to organize graduate students at private universities. Each union will contribute money, political connections, and membership to support organizing efforts at private universities.

Ninth Circuit Creates More Uncertainty in 80/20 Rule for Tipped Workers

FordHarrison LLP • March 18, 2018
Executive Summary: On February 16, 2018, the United States Court of Appeals for the Ninth Circuit granted en banc review of Marsh v. J. Alexander’s LLC, 869 F.3d 1108, creating a new layer of uncertainty for hospitality employers. The previous decision by a three-judge panel on September 6, 2017, had rejected what is commonly called the “80/20 rule,” which states that hospitality employers may not reduce a tip-earning employee’s hourly pay below the minimum wage when that employee spends more than 20 percent of his or her workweek on non-tip-earning tasks. The case will now be reconsidered by a larger panel of the Ninth Circuit, with oral argument scheduled for the week of March 19, 2018. The grant of en banc review suggests an intention to reconsider the panel’s prior holding or analysis.

A Uniform Standard of Review in ERISA Benefit Denial Cases: The Fifth Circuit Overrules Itself to Fall in Line with Other Courts

Littler Mendelson, P.C. • March 18, 2018
With its en banc decision in Ariana v. Humana Health Plan of Texas,1 the Fifth Circuit reconsidered the standard of review in an ERISA denial of benefits case.

Bed Time! Uber Announces Mandatory Rest Periods

Fisher Phillips • March 18, 2018
In a move met with near-universal praise, Uber recently announced it will now require drivers take at least six hours of time off for every 12 hours they spend driving. After announcing this decision last month, Uber rolled it out across the United States over the course of two weeks. The company already has mandatory rest times in the United Kingdom where drivers must take a six hour break after 10 hour shifts. Fellow ride-sharing company Lyft currently has a mandatory break period after 14 hours of driving. In fact, several local laws already mandate certain rest periods after a length of time driving in order to combat drowsy driving.

The Gender Pay Equity Movement Goes International

Fisher Phillips • March 18, 2018
The national and international spotlight on pay equity is getting brighter by the day. By way of illustration, this post explores two laws that took effect on January 1, 2018, one in California and one in Iceland, and a wage equity ordinance in Philadelphia that is currently being challenged on constitutional grounds. These are just examples of the much larger trend at the local and state level in the United States, as demonstrated by the Fisher Phillips Pay Equity Map. This trend can be seen around the world as more countries introduce some form of pay equity measures. Overall, the major question that all companies should be thinking about is: does the salary reflect the job position, not the person who is filling the position?

USDOL Self-Report PAID Program: Benefits TBD

Fisher Phillips • March 18, 2018
Last week the U.S. Department of Labor (USDOL) announced its Payroll Audit Independent Determination (PAID) pilot program to mixed reactions. The PAID program is meant to provide a framework for employers to proactively resolve potential federal Fair Labor Standards Act (FLSA) claims. In a nutshell, an employer will be able to self-report potential violations to USDOL and attempt to resolve the issues efficiently and under the agency's "supervision," as outlined on its website.

Beltway Buzz, March 16, 2018

Ogletree Deakins • March 18, 2018
If, like the Buzz, your bracket is already busted, please take a break from the games and spend a few minutes reading about what happened in labor and employment policy in D.C. this week.

The 2017 Tax Cuts and Jobs Act: A Pandora’s Box for Higher Education

Ogletree Deakins • March 18, 2018
The enactment of the Tax Cuts and Jobs Act of 2017 has raised a number of potential issues for institutions of higher education. Due to this significant impact, institutions need to study the Tax Act and plan appropriately.

More Transparency at the OFCCP: New Protocol to Standardize Use of Predetermination Notices

Ogletree Deakins • March 18, 2018
In a move toward greater transparency, the Office of Federal Contract Compliance Programs (OFCCP) recently issued Directive 2018-01 affecting the use of predetermination notices (PDNs) in discrimination cases. OFCCP uses PDN letters to inform contractors of preliminary findings of employment discrimination. PDNs give “contractors 15 additional calendar days to rebut OFCCP’s proposed findings that sufficient evidence exists of discrimination.”

DOL to Roll Out Payroll Audit Independent Determination (PAID) Program

Goldberg Segalla LLP • March 18, 2018
Earlier this month, the U.S. Department of Labor (DOL) announced the Payroll Audit Independent Determination (PAID) Program. PAID will be rolled out in April 2018 as a six-month pilot program to incentivize employers to address any wage and hour underpayments under the Fair Labor Standard Act (FLSA).

Labor Board Nominee Ring Approved By Senate Committee

Jackson Lewis P.C. • March 18, 2018
The Senate Health, Education, Labor and Pensions (HELP) Committee has confirmed Republican John Ring to the National Labor Relations Board by a 12-11 vote. The next step is a vote by the full Senate.

Report: New Internal Oversight Division within USCIS to be Established

Jackson Lewis P.C. • March 18, 2018
The Washington Post has reported that USCIS is establishing an internal oversight division. The new division’s purpose, in part, would be to monitor more closely officers who are too lenient in assessing applications for permanent residence and citizenship, including overlooking negative factors such as misdemeanors and the receipt of government benefits (e.g., food stamps). Employees of USCIS would be encouraged to report any such observed “misconduct” by other staff to the new office, which would report directly to Director Francis Cissna.

Recovering Alcoholic’s Claims Dismissed Because He Did Not Show He Was “Disabled”

Jackson Lewis P.C. • March 18, 2018
A federal court in New York dismissed all claims asserted by a recovering alcoholic under the Americans with Disabilities Act and the Rehabilitation Act for numerous reasons including that he did not show he was “disabled.” Johnson v. N.Y. State Office of Alcoholism & Substance Abuse Servs., No. 16-cv-9769 (S.D.N.Y. March 13, 2018).

Can Embracing March Madness Improve Employee Engagement?

XpertHR • March 18, 2018
The signs are upon us that spring is coming. The clocks have sprung forward, the trees and flowers are starting to bloom (in some parts of the country at least), and March Madness has arrived! It’s time for the sports frenzy dreaded by many employers, supervisors and HR professionals alike – the NCAA basketball tournaments that take place annually during March. But could employers actually win by embracing the madness and increasing employee engagement?

Cost-Benefit Analysis 101 for Healthcare Providers

Jackson Lewis P.C. • March 15, 2018
Nary a week goes by without news of a data breach by a healthcare provider…while there are certainly a good number of breaches resulting from a breach of cybersecurity defenses or from the wrongful exploitation of system security weaknesses, there is still a risk to healthcare providers resulting from the internal operations of the healthcare provider. There are frequent reports of these “internal” breaches: loss of equipment (e.g., laptops that were not secured and unencrypted USB drives), employee wrongdoing (e.g., theft of records or improper access to records to satisfy personal curiosity), and then those unfortunate “oops” moments (e.g., sending personal health information (“PHI”) to administrative vendors without a proper business associate agreement (“BAA”) in place, or a spontaneous conversation in a waiting room disclosing PHI).

Collection of Biometric Data Raises Privacy Concerns for Employees and Compliance Issues for Employers

Fisher Phillips • March 15, 2018
Many of us have become comfortable with the convenience of logging into our laptops or smartphones using a fingerprint scan in lieu of remembering yet another password. We are familiar with television and movie portrayals of retina scans being required for access to top secret laboratories or other secure buildings and rooms. This kind of technology, however, is no longer the stuff of science fiction. Businesses are increasingly using biometric data (i.e., measurements of a person’s physical being) for a variety of identification purposes, such as to provide security for the financial transactions of their customers and for the tracking of work hours of their employees.

March Madness for Employers - Revisited

Nexsen Pruet • March 15, 2018
With the 2018 NCAA Men’s Basketball Tournament kicking off this week, there will be the inevitable dour reports that bracket filling, live streaming and fun (or even higher stakes) wagering will cost employers billions of dollars of productivity. According to these reports, over 80 million brackets will be filled out for the 68 teams in the tournament, making this an incomparable cultural event and one that inevitably will touch the workplace.

What’s on Your Bulletin Board? Federal Contractor and Subcontractor Posting Requirements

Ogletree Deakins • March 15, 2018
Federal contractors and subcontractors must post certain information to inform job seekers and/or employees of applicable policies, regulations, and laws.

Travel Ban 3.0 Updated: DOS Waiver Process

Jackson Lewis P.C. • March 15, 2018
News outlet Reuters has reported that during the first month of Travel Ban 3.0, 8,400 individuals from Chad, Iran, Libya, North Korea, Syria, Somalia, Yemen, and Venezuela applied for visas, while only an estimated 100 waivers were granted.

eLABORate: Deadline for Employers to File EEO-1 Report - March 31, 2018

Phelps Dunbar LLP • March 14, 2018
The March 31, 2018 deadline for employers to file the federally mandated EEO-1 report is rapidly approaching. The EEO-1 is a compliance survey that requires company employment data to be categorized by race/ethnicity, gender and job category. The Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) use the EEO-1 to collect and analyze information from private employers and government contractors about their female and minority workforces.

Emerging LGBTQ Protections: Two Circuits Expand Coverage of Title VII

Nexsen Pruet • March 14, 2018
Nexsen Pruet’s webinar series presentation last month was on Hot Topics in Employment Discrimination and included a segment on the ABC’s of LGBTQ issues in the workplace. As we discussed in the webinar, the Fourth Circuit Court of Appeals, which covers North and South Carolina, has not determined that Title VII prohibits employment discrimination because of an employee’s sexual orientation or gender identity.

Guns in the Workplace: A Three-Part Series

Nexsen Pruet • March 14, 2018
Few topics produce more heated reactions than guns, gun violence, and the Second Amendment. For employers in North and South Carolina, this subject can be especially fraught, as both states are near or at record highs in gun ownership. Moreover, as frightening workplace and school shootings become all too frequent, customers, vendors and employees want to know whether, and to what extent, they can or should arm themselves as they go about their workday.

Employee’s Improper Access to Secured Area Outweighs Right to Engage in Concerted Activity, NLRB Finds

Jackson Lewis P.C. • March 14, 2018
The National Labor Relations Board has held that an employee lost the protection of the National Labor Relations Act when he improperly accessed a secure area of the employer’s hotel, even though he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018).

OFCCP Issues New Directive in Furtherance of Commitment to Increased Transparency

Jackson Lewis P.C. • March 14, 2018
Under the leadership of new OFCCP Director Ondray Harris, the Agency has issued its first policy directive of 2018. Directive 2018-01, effective February 27, addresses an area of concern discussed at length during the Agency’s listening sessions earlier this year: the need for increased transparency.

USCIS to Permit Reregistration for Syrians With TPS

Ogletree Deakins • March 13, 2018
On March 5, 2018, United States Citizenship and Immigration Services (USCIS) published an announcement in the Federal Register stating that it will permit current Syrian beneficiaries of temporary protected status (TPS) to extend their status through September 30, 2019, provided they reregister for the designation between March 5, 2018, and May 4, 2018. Additionally, USCIS announced that it will automatically extend employment authorization documents (EADs) for Syrian nationals currently under the TPS program with EADs that expire on March 31, 2018, for 180 days through September 27, 2018.

From #SHRMLeg: How Employers Deal with Marijuana, Opioids and Other Drugs in the Workplace

XpertHR • March 13, 2018
With the human and economic costs of the opioid crisis dominating the headlines, the topic of how to deal with drug use in the workplace proved to be a popular topic at the 2018 SHRM Employment Law and Legislative Conference. In a session entitled “Changes to Marijuana Laws and the Opioid Crisis: How Employers Are Dealing with These Complicated Issues,” Jim Reidy of Sheehan Phinney spoke to the overflow-capacity crowd regarding the rapidly evolving legal and policy landscape.

Fisher Phillips | California | California Supreme Court Embraces Employee-Friendly Formula For Calculating OT Pay (March 05, 2018)

Fisher Phillips | California | FEHC Proposes Regulations to Implement California’s New “Ban the Box” and “New Parent Leave” Laws (March 04, 2018)

Fisher Phillips | California | Your Comprehensive Guide to 2018 Proposed California Legislation (February 28, 2018)

FordHarrison LLP | California | California Supreme Court's Recent Overtime Ruling Likely to Cause Payroll Problems (March 07, 2018)

Jackson Lewis P.C. | California | California Court of Appeals Holds Labor Code § 558 Claims Are Indivisible Claims and Not Arbitrable (February 28, 2018)

Jackson Lewis P.C. | California | Calculating Overtime Value of Flat-Sum Bonus Must Be Based on Actual Non-Overtime Hours Worked, California High Court Holds (March 11, 2018)

Fisher Phillips | California | The Plot Thickens: Trump Administration Sues California Over New Immigration Laws, Including AB 450 (March 09, 2018)

Jackson Lewis P.C. | California | Pending California Legislation Alert! Recently Introduced Bill Seeks to Protect Medicinal Marijuana Users from Employment Discrimination in California (February 27, 2018)

Jackson Lewis P.C. | California | California Transportation Industry Waives Goodbye to Enforcement of Federal Arbitration Act Provisions in Employment Contracts (March 07, 2018)

Carothers DiSante & Freudenberger LLP | California | California Proposes New Regulations on Parent Leave and Criminal History Inquiries (March 14, 2018)