Labor & Employment Law Update

The Department of Homeland Security (DHS) announced a proposed rule on November 30, 2018 that would require H-1B cap subject petitioners to register electronically with USCIS which would then conduct the annual H-1B lottery from the pool of timely-filed registrants.

The registration window would open 14 days before the H-1B filing window opens on April 1 and remain open for 14 days after that date. Petitioners selected during the lottery would be notified that they are eligible to file their petition and would have a 60-day window to do so.

The proposed rule would also reverse the order ...

The US Government was shut down for over a month, and the government’s E-Verify system was down from December 22, 2018, to January 27, 2019. During the shutdown, employers who are E-Verify users were unable to enter any of their newly hired employees into the E-Verify system.  But E-Verify users shouldn’t fret.  USCIS is giving you a grace period to catch up.  The Department of Homeland Security and USCIS have updated the E-Verify website to address the shutdown.

The website states: “Now that E-Verify operations have resumed, employers who ...

In light of the current winter storm pounding the U.S. with snow and extreme subzero temperatures, this is a short reminder of when employees must be paid for emergency closures due to inclement weather.

Nonexempt Employees – Generally, hourly workers must only be paid for time they actually work.  They do not need to be paid when the business is closed or closes early due to a weather emergency.  As a side note, when paying a nonexempt employee on a salary basis, state laws may suggest treating compensation more like that paid to a salary exempt employee.

Exempt ...

As reported last November, the Illinois Supreme Court has had in front of it perhaps the seminal case, Rosenbach v. Six Flags Entertainment Corp., regarding Illinois’s Biometric Information Privacy Act (BIPA). Prior to landing before the Supreme Court, the lower (appellate) court had ruled that simply claiming a violation of the notice and consent requirements of BIPA was not tantamount to alleging a compensable injury. Branding such claims only “technical” in nature, the lower court found these were not cases or controversies. If that was all you had, said the ...

In November, thousands of Google employees walked out of work in protest against the company’s practice of compelling mandatory arbitration in sexual harassment claims. Frequently referred to as “forced arbitration” in the context of the current debate, Google responded by modifying its new hire letters to make mandatory arbitration optional for sexual harassment and assault claims. Several other big-name tech companies followed suit and ended the practice for sexual harassment claims.   

Now on the heels of that initial success, tech industry employees are pushing for an ...

The Employee Retirement Income Security Act (ERISA) requires that plan sponsors develop and maintain a comprehensive plan document as well as a concise, understandable summary plan description (SPD) to communicate to employees what types of benefits are available under an ERISA plan, what the eligibility requirements are, how to receive benefits and who to contact if there are problems or questions. An employer cannot assume that because a plan is exempt from filing requirements, it is also exempt from maintaining a plan document. Even a small plan covering only 10 employees could ...

Last month, this blog discussed New Prime, Inc. v. Oliveira, a then-pending case before the Supreme Court that presented the question of whether arbitration agreements between trucking companies and independent contractor drivers fall within the “transportation” exemption to the Federal Arbitration Act (“FAA”).   

This morning, the Court unanimously ruled in favor of Mr. Oliveira, affirming the First Circuit and holding that his independent contractor agreement with New Prime is a “contract of employment” under the FAA.  The Court disregarded the ...

The Supreme Court may soon answer a question that divides federal courts: may an employer consider an employee’s salary history when setting pay without violating the Equal Pay Act (EPA)? The EPA prohibits employers from paying wages to employees of one sex less than employees of the other sex for equal work. The EPA holds employers strictly liable for differential pay, regardless of whether the employer had a discriminatory intent, unless the employer can show the difference in pay is based on a seniority system, merit system, quality or quantity of production measurements ...

We previously reported that in 2018, the U.S. Department of Labor (DOL) began issuing opinion letters again after nearly a decade of silence. While the legislature makes laws, the consequences of presidential elections flow into the executive agencies charged with administering and enforcing the laws. 

As of the close of 2018, the DOL had issued more than 30 new opinion letters involving the Family and Medical Leave Act (FMLA) or Fair Labor Standards Act (FLSA), and those letters addressed a variety of topics including minimum wage and overtime for employees paid varying ...

Flu season is here and offers an opportune time to discuss the tricky intersection between the Americans with Disabilities Act (ADA) and employers’ efforts to require mandatory vaccinations and health screenings for employees.  Some employers, especially those in the health care field who provide direct services to patients, require employees to pass a health screening or receive certain vaccinations either upon hire or at other periodic intervals. Employers should ensure that these efforts comply with the ADA. 

The ADA allows certain health screenings and inquiries ...