Author Archives: smithamundsen

H-1B Visas: What You Need to Know About Filing in 2019

Contributed by Jacqueline Lentini McCullough, January 30, 2019

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.

book with words immigration law and glasses.

The proposed rule would also reverse the order that USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption. Currently the agency selects the advanced degree beneficiaries before filling the H-1B cap. Under the new rule, USCIS would count all applicants selected against the H-1B cap first, and then select the ones to receive the advanced degree exemption. Even with the reversal, those with advanced degrees will still have two chances in the lottery.

USCIS estimates that the proposed change would result in a 16 percent increase in the number of beneficiaries holding a master’s degree or higher from a U.S. educational institution.

The proposed rule was published in the Federal Register on December 3, 2018. USCIS accepted comments on it through January 2, 2019. On January 11, 2019, USCIS sent a final version of the proposed rule to the Office of Management and Budget (OMB) for review. The OMB completed its review on January 25th, and a final rule must be published in the Federal Register for it to take effect.

USCIS aspires to finalize and implement the new rule in time for the Fiscal Year 2020 filing season which begins April 1, 2019. Given that the OMB is scrambling in the wake of the shutdown, and the time it would take for the normal review process, it is uncertain that the proposed rule will apply this year.

What is true for this year is that H-1B petitions will require more strategic planning and upfront preparation than in prior years. Following the Trump Administration’s Buy American Hire American Executive Order on April 18, 2017, requests for evidence tripled for the past two years. I expect this level of scrutiny to continue for this year, too.

This means that we need to begin your application earlier, especially if you have never filed before. Companies filing for the first time need to apply to have the DOL verify their business and approve a Labor Condition Application (LCA) before they can file the H-1B petition. Each of those two processes takes at least 7 days.

The Government is Back For Now… Employers Should Address E-Verify Compliance Over the Shutdown Period

Contributed by Sara Zorich, January 29, 2019 

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 participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available. You must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.”

If you have an employee who received a Tentative Non-Confirmation (TNC) during the shutdown (or just before) and informs the employer no later than February 11, 2019 that they want to contest, USCIS has indicated that employers should add 10 federal business days to the date on the employee’s “Referral Date Confirmation” notice, and give the employee the revised notice. Federal business days are Monday through Friday and do not include federal holidays. As written, this statement could be interpreted to mean, for instance, that an employee who received a TNC on December 21, 2018, would originally have had until January 4th (8 federal business days) to visit SSA or DHS.  Adding ten more federal business days would only give a new deadline of January 18th (which is still in the past—and during the shutdown). 

With this in mind, we suggest employers watch the USCIS website for further updates because we expect USCIS to correct this instruction. In the interim, if an employee has chosen to contest the TNC and the employee’s deadline to visit SSA or DHS has passed due to the government shutdown, make sure you inform the employee that they should visit SSA or DHS as soon as possible. Do not terminate the employee until you receive a final non-confirmation from E-Verify.

All of the normal E-Verify deadlines apply to employees hired on or after January 28, 2019.

Must Employees Be Paid For Extreme Weather & Emergency Closings?

Contributed by Noah A. Frank, January 28, 2019

Bad weather caution sign

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 Employees – When the business is closed and salary exempt employees are willing and able to work, they must still be paid their full salary for the week if they perform any work during the week.  However, if the business is open (or employees can work remotely), and employees choose not to work, they do not need to be paid for full-day absences, and the business may require use of vacation/PTO benefits.  Salary may not, however, be reduced for partial day absences.

There Are Always Exceptions in Employment Law

Handbooks may provide for paid leave in the face of extreme weather.  In particular, “cookie cutter” handbooks may contain hidden traps (which is our reminder that businesses should have their handbooks reviewed by employment counsel!).  Similarly, union collective bargaining agreements or other inclement weather policies might create a requirement to pay for missed time.

In a developing national trend, even when the employer is open for business, state and local paid sick leave ordinances may require that employees be permitted to use available paid sick leave with little notice when, for example, a child’s school is closed due to a weather emergency.  Employers should be sensitive to this issue, especially if they have not previously implemented written policies or complied with the requirements of these local ordinances.

Some state and local laws also require reporting pay when employees either report to work and are sent home before working their full shift, or when their schedule is changed or cancelled with insufficient notice.  Such laws may apply to weather closures.

Finally, employee morale and goodwill might dictate that an employer err on the side of paying for missed time. 

Employers should review their employment policies in light of these developing laws and trends to make the determination of whether employees should be paid for a business closure or other weather-related absence.  Experienced employment counsel should also be consulted to make sure the business is operating in a way that avoids needless wage and hour exposure.

Illinois Supreme Court Rules Actual Damages, Injury or Harm Not Necessary in Biometric Privacy Case

Contributed by Carlos Arévalo and Molly Arranz

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 appellate court, your BIPA case should be dismissed at the outset. 

Today, in a unanimous decision, the Illinois Supreme Court rejected that approach and ruled that alleging a violation of statutory rights under BIPA is enough. An individual does not have to allege an actual injury in order to qualify as an “aggrieved” person entitled to seek liquidated damages and injunctive relief. “To require individuals to wait until they have sustained some compensable injury beyond violation of their statutory rights… would be completely antithetical to [BIPA’s] preventative and deterrent purposes.”

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. BIPA cases are—almost without exception—brought as class actions, whereby hundreds or thousands of “aggrieved persons” and their alleged damages are lumped together.

With today’s ruling, BIPA’s requirements alone empower private citizens to serve as watchdogs over company policy. The Court explained: “[i]t is clear that the legislature intended for [BIPA] to have substantial force” and “[w]hen private entities face liability for failure to [simply] comply with the law’s requirements … those entities have the strongest possible incentive to conform to the law…” Rosenbach is not an employment case (it concerns a patron’s access to Six Flags); but, it impacts employers’ practices for collecting and maintaining biometric data for time tracking or security purposes. All companies—with any presence in Illinois—should be reviewing policies and protocols because simply failing to comply with the statute’s requirements could result in a firestorm of litigation from affected employees, consumers and patrons.

What should you ensure you are doing today?

  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. Finally, consult with competent counsel to ensure that policies and practices comply with relevant law.

Tech Industry Employees Protest for End to Mandatory Arbitration

Contributed by Michael Faley, January 24, 2019

Arbitration title on legal documents

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 end to all mandatory arbitrations for employee-related claims. Last week, protestors, organized under a group called Googlers for Ending Forced Arbitration, conducted a massive social media campaign pressing Google and other tech companies to eliminate their mandatory arbitration schemes for employee claims. Members of Googlers for Ending Forced Arbitration argue that mandatory arbitration schemes lack transparency and enable misconduct against employees. They view going to court as the solution, and demand that arbitration always be optional. In addition, they seek elimination of onerous confidentiality requirements and want an end to class-action waivers so employees can file similar claims together. 

So far, neither Google nor the other targeted tech giants have signaled a willingness to change their current mandatory arbitration schemes beyond the recent modification for sexual harassment claims. However, groups such as Googlers for Ending Forced Arbitration do not appear to be letting up either. Undoubtedly, the scope and general use of mandatory arbitration clauses will continue to be a hot topic of debate in 2019.

Do You Know What Your Summary Plan Description Says?

Contributed by Rebecca Dobbs Bush, January 22, 2019

page with ERISA the employee retirement income security act of 1974 on a table.

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 still be subject to ERISA’s requirement for a written plan document. 

Many employers mistakenly operate under the assumption that the coverage booklet or insurance contract they receive from their health insurance provider meets the requirements for a SPD. While these documents contain important information, they typically are drafted to comply with state insurance codes, not federal ERISA regulations, and are not adequate to serve alone as a plan document or SPD.  An employer can help remedy such a situation by creating a wrap document to attach to the health insurance provider’s coverage booklet. A good wrap document may help bring the company into compliance and serve to protect it from future litigation and Department of Labor (DOL) audits of the company’s benefit programs.

As a plan document that governs administration and operation of a plan is, in effect, a contract between the employer and its employees, employers should engage counsel to review their plan documents, just as they would any other contract. Most importantly, a plan sponsor must follow the plan procedures consistently. Employers should not wait until the IRS, DOL or a lawsuit forces them to hire counsel to review their documents.

UPDATE: Supreme Court Rules For Workers On FAA “Transportation” Exemption

Contributed by Brian Wacker, January 15, 2019 

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 characterization of his relationship with New Prime as an independent contractor (as opposed to an “employee”) and found that the FAA’s exemption for “contracts of employment” refers to any “agreements to perform work.” Therefore, Mr. Oliveira’s agreement fell within the FAA’s exemption and his claims were not properly subject to compelled arbitration.  

This is a significant victory for workers, especially considering the unanimity of the Court’s decision, authored by one of its more conservative jurists, Justice Gorsuch. Employers with independent contractors in the transportation field should take note: existing arbitration provisions in independent contractor agreements can no longer be used to shield businesses from the risks, expenses and uncertainty of litigation in court.