Retaining temporary labor can be convenient for your business, but the retention introduces new legal risks. Under a joint employment theory, your company can be 100% legally liable for errors made by a staffing agency. You could be sued by temps in a class action. Simple indemnity clauses are not enough. For more on how to approach this, click here for Ten Things That Should Be in Your Staffing Agency Agreements But Probably Aren’t.
Back to the Future: USCIS Resumes Expedited Processing of H-4 and L-2 Applications When Filed Concurrently with an H-1B or L-1 Petition
In a settlement, United States Citizenship and Immigration Services (USCIS) has agreed to return to processing dependent H-4 and L-2 applications at the same time as the H-1B or L-1 petition when filed concurrently. This settlement has returned USCIS to its pre-2019 policy, which changed due to the implementation of a biometrics requirement for dependent applications.
Before March 2019, USCIS routinely processed dependent applications, including H-4 and L-2 employment authorization documents, either at the same time or within a few days of the adjudication of the petition for the primary beneficiary (that is, the H-1B or L-1 visa holder). In March 2019, USCIS began requiring the taking of biometrics for dependent applicants. The addition of a biometrics requirement resulted in separate adjudications of the petitions for primary beneficiaries and their family members, creating gaps of months between the adjudication of the primary petition and the dependent applications. Although the biometrics requirement was suspended in March 2020 due to COVID-19, USCIS has continued to adjudicate dependent applications much more slowly than the corresponding H-1B or L-1 petitions. This gap in adjudication has been especially difficult for spouses who are relying on their dependent status to work in the United States and have faced gaps in employment authorization due to this policy change.
The restarting of bundling dependent applications with the primary petitions will likely result in fewer gaps in employment authorization for spouses and ease the fears of many family members of H-1B and L-1 visa holders. This change should also be particularly beneficial to spouses of L-1 visa holders who, since January 2022, have been authorized to work incident to their status. One of the primary methods of verifying this employment authorization has been an I-94 record with the L-2S designation, which will now become much quicker to attain due to this settlement.
However, this settlement only applies to applications and petitions filed concurrently. If a dependent extension application is filed separately from the primary beneficiary’s application, the dependent application will not receive the expedited adjudication offered by this settlement, which is consistent with USCIS’ policy pre-March 2019. Therefore, it is more important than ever to file dependent applications with the primary beneficiary’s I-129 petition to ensure that dependent applications are adjudicated in an expedited manner.
Giving Birth to Federalized Pregnancy Accommodation Standards: Pregnant Workers Fairness Act and Providing Urgent Maternal Protections for Nursing Mothers Act
Modeled after the Americans with Disabilities Act (ADA) and enforced by the Equal Employment Opportunities Commission (EEOC), the Pregnant Workers Fairness Act (PWFA) was passed with bipartisan congressional support as a component of the 2023 omnibus spending bill and signed by President Joe Biden on Dec. 29, 2022. The PWFA expands and federalizes pregnant employees’ protections currently found in the Pregnancy Discrimination Act (PDA), which was a prior amendment to Title VII. The PWFA will take effect on June 27, 2023. Additionally, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was also signed into law on Dec. 29, 2022, and amends the Fair Labor Standards Act (FLSA). The PUMP Act requires employers to provide employees, including exempt employees, with reasonable break time to express breast milk. The PUMP Act also makes clear that such breaks for nonexempt employees should be paid unless the employee is completely relieved of their duties for the entirety of the break. While the PUMP Act has taken immediate effect, enforcement provisions will take effect on April 28, 2023.
PWFA: What changes?
Under the prior standard imposed by the PDA and interpreted by the Supreme Court in Young v. United Parcel Serv., Inc., accommodations for pregnant employees were available only for medical conditions related to pregnancy. When claiming failure to accommodate, it was the plaintiff’s burden to show that defendant accommodated others who were “similarly situated in their ability or inability to work.” In short, pregnancy, in and of itself, was not enough to trigger an accommodation under the PDA. To top it off, the standard set by Young was somewhat convoluted and had various interpretations throughout the courts.
The PWFA bridges the gap by codifying pregnant workers’ protections that were not explicitly included in the ADA or the PDA. The PWFA requires employers with 15 or more employees to provide reasonable accommodations for a known limitation related to pregnancy, childbirth or related medical conditions of qualified employees. Qualified employees include an employee or job applicant who can perform the essential functions of the position with or without reasonable accommodation. In requirements similar to those of the ADA, employers must engage in the interactive process when arriving at a reasonable accommodation. Employers cannot require an employee to take paid or unpaid leave if another reasonable accommodation can be provided instead. Examples of reasonable accommodations may include permitting an individual to sit or stand more or less frequently than usual; reducing or revising schedules; allowing more frequent breaks; moving a work station closer to a restroom or a water source; providing assistance with physically demanding tasks; or arranging for light duty or a temporary transfer to a different position.
While employers are not required to provide an accommodation when undue hardship on the operation of the business will result, employers cannot deny employment opportunities to qualified employees or take adverse action against an employee where the denial or action is based on the need or request to make reasonable accommodations related to pregnancy, childbirth or related medical conditions. Remedies available under Title VII are also applicable to the PWFA, which includes a private right of action (after exhausting administrative remedies) that may result in an award of back pay, compensatory damages and attorneys’ fees.
For employers located in jurisdictions that are aligned with federal law, the PWFA is a change that explicitly provides for reasonable accommodations for qualified employees. Many states and localities over the years, however, have already enacted enhanced protections for pregnant employees, and this may not be much of a change, or a change at all, for employers in places such as New York City.
PUMP Act: What changes?
The PUMP Act is an expansion of the FLSA and requires employers to provide reasonable breaks to express breast milk to all employees, including salaried employees, and not just nonexempt workers, as was the case under the FLSA. The law also makes clear that such breaks should be considered “hours worked” by an employee and thus appropriately compensated unless the employee is completely relieved of their duties during the entirety of the break. Employers must provide a private place other than a bathroom for covered employees to express breast milk, and the space must be free from intrusion by the public and co-workers. These breaks should be allowed from the date the need arises and for up to one year after the child’s birth. Employers with fewer than 50 employees can seek an exception from compliance if doing so would impose undue hardship on the business. Similar to the PWFA, the PUMP Act allows a private right of action after the employee has exhausted their administrative remedies. For employers located in jurisdictions that allow for similar or greater protections for nursing employees, the PUMP Act may not have as much impact.
While the EEOC has been allotted two years to issue PWFA-specific regulations, including examples of reasonable accommodations, employers should act now, before the law takes effect. Employers should review and revise their policies to ensure that pregnancy, childbirth and related medical conditions can be considered limitations that employers must reasonably accommodate. Further, employers should train managers and human resources professionals to be aware of and sensitive to the changes imposed by the PWFA, especially the need to and when and how to engage in the interactive process with qualified employees.
Enforcement provisions provided under the PUMP Act will not take effect until April 28, 2023, but the law has immediate effect. Therefore, employers that have not already done so should ensure that an appropriate non-bathroom space for employees to express milk is accessible. Further, employers should ensure that nonexempt nursing employees are paid if they express breast milk during their paid breaks or if they are not completely relieved of their duties during the break period while expressing breast milk. Exempt employees should be paid their full salary regardless of whether they take breaks to express breast milk.
Should you have any questions, the BakerHostetler Labor and Employment practice team is here to help.
Just in Time for the Dreaded Recession – Mandated Severance Payments in New Jersey for Mass Layoffs and Closings
I Remember Something About This.
Remember back before COVID-19 arrived in the United States – can you remember that far back? Way back then, New Jersey passed amendments to the New Jersey WARN Act that would require employers to provide extended notice and severance to any employee displaced during a mass layoff or closing. Once COVID-19 hit and devastated the finances of so many employers, New Jersey suspended the enactment of the amendments until the State of Emergency related to COVID-19 was lifted in all respects. Last week, however, the New Jersey Legislature voted to enact the amendments while pieces of the State of Emergency remain in place, and on January 10, 2023, the governor signed the bill allowing those changes to go into effect.
What Is WARN, Anyway?
As many may be aware after having had to quickly get up to speed during the COVID-19 furloughs and subsequent layoffs, WARN is the Worker Adjustment and Retraining Notification Act, which is a federal law that requires certain notices be sent at least 60 days prior to a mass layoff or closing, if the employer is covered by WARN and enough employees are affected by employment loss. The notices provided must go the employee; a union, if any; and various governmental contacts. There are specific requirements that the notice must meet in order to satisfy the law. Many states, including New Jersey, have what are called mini-WARN laws, which have additional or more stringent requirements than the federal WARN law.
What Does This Amendment Change in New Jersey?
The amendments will now require that employers subject to the law give at least 90 days’ notice before any mass layoff, transfer of operations or plant closing. The amendment does not change the number of employees an employer must have in order to be subject to NJWARN, which remains at least 100 employees, but now employers must count all employees, not just full-time employees. The amendments also change the minimum number of employees who need to be affected by employment loss in order to trigger the law in two ways:
- The minimum number of employees who need to be affected by the employment loss is only 50 – regardless of whether or not they are one-third of the workforce.
- There is no longer a distinction between full-time and part-time employees, so all employees who are affected by an employment loss are now counted to determine if 50 or more are affected.
Additionally, and arguably the biggest change, is the requirement to pay severance to employees who are affected by the employment loss. The severance should be one week per each full year of employment they have worked for the employer, or severance required by a collective bargaining agreement, whichever is greater. Additional severance is required if an employer fails to provide the requisite 90 days’ notice.
Wow. Is This in Effect Right Away?
The law goes into effect 90 days from passage, which is April 10.
What Should Employers Be Doing Now?
If employers know that they are headed for a layoff/plant closing, or may be, they may want to work as quickly as possible to effectuate those layoffs or plant closings prior to April 10 to avoid the additional costs associated with an extra 30 days’ paid notice and the severance required under the new amendments. Remember, however, that certain employers are still subject to the current NJWARN, which requires 60 days’ notice for certain qualifying events.
If you have questions related to planning a future layoff, relocation or closing; whether you are an employer subject to WARN; or how to draft compliant notices, please reach out to our team for additional information.
New Illinois Employment Laws for 2023
As the new year rolls in, Illinois employers should take note of new laws that went into effect on January 1, 2023.
First, Illinois has expanded and renamed the former Child Bereavement Leave Act, which is now called the Family Bereavement Leave Act. While the old law required employers to provide unpaid leave for the death of an employee’s child, the new law mandates up to two weeks of unpaid leave due to the death of the employee’s children, stepchildren, spouse, domestic partner, sibling, parents, mother-in-law, father-in-law, grandchildren, grandparents, or stepparents. Children include biological, adopted, or foster children; stepchildren; legal wards; and children of a person standing in loco parentis. Leave under the new law is also available for a miscarriage, unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure, failed adoption, failed surrogacy agreement, diagnosis that negatively impacts pregnancy or fertility, or stillbirth. Employers should review their current leave policies to ensure compliance with the new law.
Gaining Clarity on Pay Transparency Podcast
Since the recent NYC Pay Transparency law came into effect on November 1, companies now have new requirements to consider as it relates to their job postings. With several other states and cities having enacted similar laws in recent years, and with more coming down the pike, we’ve created a new podcast, Gaining Clarity on Pay Transparency, designed to help you navigate this new law and ensure you are in compliance.
California Employers: Considerations for California’s Expanded Pay Data Reporting Requirements
California’s passage of SB 1162 expanded the pay data reporting obligations for private employers with 100 or more employees that file annual federal Employer Information Reports (EEO-1) to include employee pay data information in a report to the Civil Rights Department (CRD) (formerly the Department of Fair Employment and Housing). While employers were previously required to disclose head count, pay and hours worked data for covered employees by race, ethnicity and sex in each specified job category, SB 1162 added several new obligations.
Wage and Hour Division Administrator Nominee Advances in the Senate
Today, the Senate Health, Labor, and Pensions Committee voted 13-9 to advance the nomination of Jessica Looman, who has been serving as the top official of the Wage and Hour Division of the U.S. Department of Labor, to be the permanent administrator of the agency. Looman’s nomination has been held in the committee for several months and likely will now progress to a full vote in the Senate before the current Congressional term expires.
You are Being Monitored for Electronic Surveillance and Automated Management Practices, Says the NLRB
On October 31, 2022, the National Labor Relation Board’s (“NLRB”) General Counsel, Jennifer Abruzzo issued a potentially spooky memorandum for employers regarding electronic surveillance and automated management. The memo sets out to restrict the “omnipresent surveillance” of employees in the advent of work at home culture. Ms. Abruzzo specifically identifies GPS tracking, video surveillance, and key loggers as potential concerns. The memo also equates automated managing software and artificial intelligence (“AI”) to “surveillance” software.
For California Electronic and Computing Services Companies, New Processes Required Before Responding to Warrants, Subpoenas and Other Information Requests
In response to the Dobbs decisions, Califoria enacted legislation intended to enhance data privacy and block record requests by other states concerning alleged abortion-related offenses that are lawful in California. In September, California launched a website – abortion.ca.gov – dedicated to abortion access information. The website includes a disclaimer: “California protects your privacy.”
On September 27, California Governor Gavin Newsom signed unique legislation that seeks to protect abortion data privacy by preventing out-of-state law enforcement officers from executing search warrants on California electronic communication and computing services companies for the purpose of investigating another state’s abortion-related offenses. For California-incorporated or -headquartered communications or computer services companies, Assembly Bill 1242 (AB 1242) significantly changes the process for responding to out-of-state law enforcement requests and lawful court orders for records of activity, such as cellphone location or internet usage, and wiretap requests. AB 1242 includes a series of laws with the sole purpose of protecting the privacy of abortion providers and seekers in California.
Read full alert.