An H-1B Season of Transition Begins

Contributed by Jacqueline Lentini McCullough, February 10, 2020

Immigration Law books with a judges gavel on desk in the library. Law education ,law books concept.

On February 3, 2020 a coding flaw in a mobile app delayed the tabulation and reporting of the Iowa Democratic Caucus results.

This high-profile failure reminds us that technological glitches can show up any time but especially when a system is put to extreme use.

This reminder is the guiding principle for an H-1B preparation strategy this year. A sound strategy involves planning for glitches with back up measures to ensure as smooth an H-1B filing experience as possible.

New changes to the H-1B filing process may introduce several speed bumps to the process of filing petitions.

Electronic Registration Process

This year the United States Citizenship and Immigration Service (USCIS) is implementing several changes to the H-1B petition process.

USCIS’s new requirements include that employers register electronically in advance of filing an H-1B petition and pay a $10 registration fee. USCIS officially announced this new process in the Federal Register on January 9, 2020.

Registration will happen via the organization’s myUSCIS online portal. USCIS launched the myUSCIS portal in 2015. The portal currently permits filing of forms such as I-90, N-400, and N-600, but as of this writing has not yet enabled H-1B registrations. The $10 registration fee will be paid on a separate platform, pay.gov.

Since October, the Department of Labor has been using its new Foreign Labor Application Gateway (FLAG) system to accept Labor Condition Applications (LCAs), which need to be in place before filing H-1B petitions.

Three different systems will play a role in the H-1B cap season this year – FLAG, pay.gov, myUSCIS – two of which are relatively new to the process.

Will the systems need to talk to each other? It is not yet known if myUSCIS will be able to see from pay.gov that the registration fee has been paid. As someone who has occasionally been challenged to get my computer to talk to my printer, this question looms in my mind.

H-1B Filing Timeline

Also new this year is USCIS’s schedule for the H-1B filing process.

While lawyers can establish myUSCIS accounts now, USCIS will only accept initial registrations from March 1 – March 20, 2020. Given the newness of the system and the unknown number of registrations that will be submitted, it is prudent to submit registrations during the early part of this time frame.

Between March 20th – 31st, 2020 USCIS promises to conduct the lottery and to inform registrants who have been selected by March 31. Selected registrants then have 90 days beginning April 1 to submit petitions.

USCIS included a clause in the Federal Register that would allow it to suspend the registration requirement if the system were found for any reason to be “inoperable.” If that were to happen, USCIS would likely return to the prior system and accept paper petitions to count toward the cap on a first come first serve basis. That means the cap could be reached in just a few days as in past years.

Paper records ensured the Iowa Democratic Caucus would still be able to tally votes even if it took a long time. And paper could save the day for H-1Bs this year.

USCIS Releases New Form I-9

Contributed by Sara Zorich, February 6, 2020

U.S. Citizenship and Immigration Services on white background next to American flag

On January 31, 2020, the United States Citizen and Immigration Services (USCIS) announced the release of a new version of the Form I-9, version 10/21/2019. This new version contains only minor changes to the Form I-9 itself and  to the Form I-9 instructions.  

The one key thing employers must be aware of is that the issuance of the new version of the Form I-9 impacts what version an employer may use going forward. According to the USCIS press release, until April 30, 2020, employers can use either: (1) the new Form I-9, version 10/21/2019 or (2) Form I-9 with a revision date of 07/17/2017 N. On May 1, 2020 employers must use version 10/21/2019 and no other versions of the form will be acceptable for newly completed Form I-9’s as of that date. 

The issuance of a new form I-9 DOES NOT mean that employers must redo previously completed Form I-9’s. As stated, this new version will be used on a going-forward-basis no later than May 1, 2020.

The new Form I-9 and related materials can be found here:

Employers should ensure that those responsible at their company for completing the Form I-9 have a copy of the correct version of the form to use with new employees.

Facebook Agrees to $550 Million Settlement in BIPA Class Action

Contributed by Carlos Arévalo and guest author Molly Arranz, February 4, 2020

Biometric Identification Personality, Scanning Modern Access Control, Technology Recognition Authentication System Concept – Illustration Vector

In the face of billions of dollars of potential liability at trial, social media giant, Facebook, opted for the finality of a class-wide settlement—to the tune of $550 million—reached with Illinois users complaining of violations of the Illinois Biometric Information Privacy Act (BIPA). Facebook explained that the settlement was “in the best interest of [its] community and shareholders.” If approved by the court, the $550 million settlement will be the largest of its kind and will put an end to a case where Plaintiffs alleged that Facebook violated BIPA by collecting biometric data without consent through its facial-tagging feature. 

Under BIPA, entities may not “collect, capture, purchase, receive through trade or otherwise obtain” or store a person’s biometric information without informing an individual in writing about the collection or storage of said information. Further, entities collecting biometric information must specify the purpose for its collection and storage and how long it will be kept. Finally, entities must obtain a written release signed by the individual whose information has been collected. A failure to comply with these requirements gives an aggrieved individual a “private right of action” and allows the recovery of a minimum of $1,000 in liquidated damages, reasonable attorneys’ fees and costs and injunctive relief to anyone who successfully shows a violation. 

While plaintiff did not allege actual damages, the 9th Circuit confirmed that failure to obtain written consent and to establish a compliant retention schedule resulted in a compensable injury. Facebook and other companies have similarly come up short in other defenses in the face of BIPA class actions grounded in a failure to obtain the appropriate consent and complying with the statute’s other requirements.

In fact, Illinois’ BIPA, the most comprehensive legislation addressing the privacy of biometric information, packs a significant punch because unlike other states that have statutes protecting biometric data, including the California Consumer Privacy Act (the CCPA), the Illinois statute has been found to contain a private cause of action for the (mere) failure to comply with the law’s requisites. It’s unclear the impact that this Facebook settlement will have on other state legislatures in drafting similar privacy protections and how such an eye-popping settlement, without any alleged injury to the actual privacy of the Facebook users, might drive Congress to take action. No matter what: there appears to be no immediate relief in sight.

Our prior recommendations remain in place. Specifically, employers should review, audit and update practices regarding the use of their employees’ biometric data. This means companies with an Illinois presence should take the following steps:

  1. Establish and make public (for example, post on the company’s website) a written policy that addresses the purpose(s) of biometric data use, how it will be collected, and how it will be stored.
  2. Be prepared to address any requests for reasonable accommodations based on disability, religious, or other reasons.
  3. If biometric data might leave a closed system, ensure that proper safeguards are in place, including contractual liability shifting.
  4. Ensure that employees whose biometric data is used acknowledge the policy, and authorize its use and collection in writing.
  5. Train supervisors on the company’s policies and practices to ensure consistency.
  6. Have biometric data systems audited to ensure that data is not open to the public or a systems breach.
  7. Consult with competent counsel to ensure that policies and practices comply with relevant law.

Summary of the 2020 FLSA Regulation Changes for Employers

Contributed by Sara Zorich, January 31, 2020

gavel and scales of justice

2020 has already proven to be a busy year for changes in the Fair Labor Standards Act (FLSA).  Below is a summary of the changes thus far: 

  1. New FLSA Salary Threshold (Effective January 1, 2020)

As previously reported, as of January 1, 2020, the FLSA requires employers to pay all salary exempt employees at least $684/week (equivalent to $35,568 per year for a full-year worker).

2. Changes to the FLSA Regulations Regarding the “Regular Rate of Pay” for Purposes of Calculating Overtime (Effective January 15, 2020)

The FLSA generally requires nonexempt employees to receive overtime pay of at least one and one-half times their regular rate of pay for any hours worked in excess of 40 hours per workweek, but what is included in the “regular rate of pay” is not always obvious. Based on years of court and agency precedent, and workplace changes since the regulations were implemented over 50 years ago, the DOL revised the following regulations to clarify and provide examples of whether certain benefits, perks and other miscellaneous payments must be included in the “regular rate of pay” for overtime purposes. Changes were made to the following regulations: 29 CFR §778.202, 203, 205, 207, 211, 212, 215, 217, 218, 219, 220, 221, 222, 223, 224, and 320. See the Department of Labor website for more information

3. Joint Employer Final Rule (Effective March 16, 2020)

The US Department of Labor updated the joint employer test under the FLSA (29 CFR 791.1 – 791.3) to address the changing nature of employment and varying court decisions.  The test for joint employment is important because when two entities are found to be joint employers under the FLSA, each is liable for compliance with the provisions of the FLSA.  Of note, a joint employer does not have to be a business.  A joint employer can be an individual, partnership, association, corporation, business trust, legal representative, public agency, or any organized group of persons, excluding any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such a labor organization

The new joint employer rules address two different scenarios:

Scenario 1: Situation where an employee works one set of hours for an employer and another person/entity simultaneously benefits from that work.  The other person/entity is a joint employer only if the other person/entity is acting directly or indirectly in the interest of the employer.  Joint employment will be determined by applying the following four factors as to whether the other person/entity has direct control (or indirect control) over the employee:

  • hires or fires the employee;
  • supervises and controls the employee’s work schedules or conditions of employment to a substantial degree;
  • determines the employee’s rate and method of payment; and
  • maintains the employee’s employment records.

The DOL has indicated that whether an individual or entity is a joint employer will depend on all the factors of a case and appropriate weight will be given to each factor depending on the circumstances. Further, additional factors may be relevant but only if they indicate whether the potential joint employer is exercising significant control over the employee.

Scenario 2: Situation where one employer employs an employee for one set of hours in a workweek, and another employer employs the same employee for a separate set of hours in the same workweek. If the entities are joint employers, then they must combine the hours worked for each entity for purposes of determining if the minimum wage and overtime requirements of the FLSA are met. The joint employer test will generally be met if:

  • There is an arrangement between the two entities to share the employee’s services;
  • The employer is acting directly or indirectly in the interest of the other employer in relation to the employee; or
  • If the entities share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.

The final rule also provides eleven (11) examples of how the test should be applied.

In light of these changes, employers should review their wage and hour practices for not only compliance with the FLSA but also compliance with state law as many state laws are more onerous than the FLSA.

Register Now! Dealing with Cannabis in the Workplace – A National Perspective

Although cannabis remains illegal under federal law, the legalization of cannabis on the state-level has left employers feeling uncertain of how to tailor their workplace policies and procedures to fit the changing landscape.

Join Heather Bailey and Michael Wong on Thursday, February 20 at 12:00 PM CT for the latest installment of our Labor & Employment Quarterly Series. They will do a deep dive into the cannabis laws and what employers should do to diminish their legal risks to protect their workforce. Specific topics include:

  • What makes a good drug policy?
  • Defining reasonable suspicion in the workplace
  • Drug testing best practices
  • Does your locale prohibit pre-employment drug testing for cannabis?
  • How to handle safety-sensitive positions and testing for cannabis

Who should attend? HR professionals, managers, and business owners

DOL’s First FLSA Opinion Letter of the Decade Provides a Reminder—And Guidance—For Reconciling Non-discretionary Bonuses and Overtime Pay

Contributed by Steven Jados, January 16, 2020

money and clock

On January 7th, the U.S. Department of Labor’s Wage and Hour Division issued its first Opinion Letter of 2020, and the Letter serves as a reminder to businesses that retroactive overtime payments may be necessary if non-discretionary bonuses are paid to non-exempt (hourly-paid) employees.

The scenario at issue in the Letter is that an employer had an announced policy through which employees were paid a $3,000 bonus after they completed ten weeks of training.  A particular employee worked 40 hours per week in eight of those ten weeks. But in the fifth week he worked 47 hours, and in the ninth week he worked 48 hours, so he was entitled for overtime pay for those two weeks.

A bonus like this is considered non-discretionary under federal law because it was announced to employees in advance and not limited by any sort of discretionary language.  (Limiting discretionary language could take the form of a statement that the bonus would only be paid “when, in management’s sole discretion, company performance warranted bonus payments.”)  But there was no limiting, discretionary language, so the bonus is non-discretionary. 

And the characterization of the bonus as non-discretionary is critical because non-discretionary bonuses must be included in an employee’s regular rate of pay for purposes of determining the overtime pay rate for workweeks in which an employee works more than 40 hours.

Calculating overtime pay when a non-discretionary bonus covers a single week is relatively simple.  The employer multiplies the employee’s hourly rate by the total hours worked for the week, adds the bonus amount to that result, and then divides by the total hours worked to get the “regular rate” for the workweek.  Employees are to be paid 1.5 times the regular rate for each overtime hour worked.

But in situations in which a bonus applies to more than one workweek, the amount of the bonus must be apportioned, for overtime pay purposes, over the workweeks the bonus covers—and retroactive overtime payments must be made for each workweek in which an employee worked more than 40 hours.  Generally speaking, this means that the bonus must be divided equally among the workweeks at issue if it seems the bonus was earned in equal parts each workweek.  However, in other circumstances involving, e.g., performance-based bonuses, it might be more reasonable to apportion the bonus payment by the hour, not the week —particularly if the total hours worked varied significantly from week to week within the bonus period.   

For the ten-week training bonus, the DOL stated it was reasonable to consider the bonus earned in equal parts each week, so $300 was allocated to each of the workweeks. And to be clear, that $300 only factors into the two workweeks in which the employee worked more than 40 hours. No additional payment was owed for the eight weeks in which the employee worked only 40 hours.

The bottom line is that, in the new year—particularly in Illinois in light of the state’s increased penalties for wage and hour violations—it is critically important for employers to remember that retroactive overtime payments must be made for non-exempt employees who work more than 40 hours in any workweek for which a non-discretionary bonus is paid.  This may seem like a tremendous burden, particularly for small businesses, but rest assured that it is far less burdensome than defending a wage and hour lawsuit brought by one or more employees who were not properly paid under the law.         

What the W-4 is that? Answers to Your Questions about the New W-4

Contributed by Michael Wong, January 8, 2020

The process of filling out the W-4 form, shallow depth of field

Following the 2017 Tax Cuts and Jobs Act, which made major changes affecting taxpayer withholding, the IRS announced it would be redesigning Form W-4. The new W-4 has officially been released, creating confusion and questions (at the time of this article the new federal 2020 W-4 can be found on the IRS website).

First and foremost, employers do NOT need to get all employees to sign a new W-4. According to IRS Publication 15, employers are to remind employees before December 1 each year to submit a new W-4 form if their withholding allowances have changed or will change for the next year. If the employee does not submit a new W-4 form, the company must continue to withhold taxes pursuant to the last valid W-4 that was provided. If the employee has not ever submitted a valid W-4, the company must withhold tax as if the employee is single with no other adjustments.

So, again, just because there is a new W-4 form (that looks drastically different), you do not have to have all of your current employees fill out a new W-4. A W-4 previously filled out by an employee will continue to be good until the employee decides to change their withholdings. The only exception is employees who claim to be exempt from any withholdings (i.e. no taxes withheld at all from wages). As addressed below, employees must complete a new W-4 annually to maintain a full exemption

Employers should ensure that new W-4s are used as follows:

  • New employees. All new employees hired or paid in 2020 are required to use the current year’s W-4 form and applicable state W-4. 
  • Employees who want to change their withholdings. Life can sometimes change quickly, if something happens during the year and an employee wants to change his or her exemptions, adjustments, withholdings or credits, the employee will need to fill out a the new W-4 form and applicable state W-4.  Note, an employee is permitted to complete a W-4 anytime, not only when a major life event happens — this could be as simple as the employee realizing that instead of getting a refund, he or she wants to stop providing an interest free loan to the government.
  • Employees claiming exemption from withholding. All W-4s claiming an individual is exempt from any taxes being withheld expire on February 16th each year. This means, that any employee claiming to be exempt from withholdings, should be reminded to turn in a new W-4 (using the new form) by February 15th and advised that if they do not submit a new W-4, you are required to withhold taxes based on the last W-4 in which the employee did not claim to be exempt or, if the employee has always claimed a complete exemption, the employee will be treated as being single with no other adjustments.

To help employees (and you) the IRS has created an Estimator to help employees determine what they should put on their W-4 at www.irs.gov/W4App

Finally, W-4s have to be filled out for all non-U.S. Citizens (“Aliens”). Resident Aliens should be treated the same as U.S. Citizens when filling out the new W-4. Nonresident aliens should be provided the Supplemental Form W-4 Instructions for Nonresident Aliens, which provides:

  • Non-Resident Aliens cannot claim they are exempt from income tax withholding;
  • Non-Resident Aliens must request withholding as if they are “Single”, even if he or she is married;
  • Nonresident Aliens must still provide a SSN, they cannot enter an ITIN on Line 2.
  • Only certain nonresident aliens who are residents of Canada, Mexico, South Korea, or India may be eligible to claim an additional allowance for the child tax credit. To claim the child tax credit your child must have an SSN valid for employment issued prior to the due date of your tax return (including extensions).
  • Write “Nonresident Alien” or “NRA” in the space below Step 4(c) of Form W-4.

So, while the changes in the tax code and W-4 are championed as creating more transparency and simplifying the accuracy and simplicity of the W-4 form, as with all change it will initially create more confusion and panic, just like Y2K. But don’t worry, 2020 is just the beginning to another new decade.