Employer Law Report

ADA public accommodations law reform on its way?

Yesterday (Feb. 15, 2018), The U.S. House of Representatives passed a bill, the ADA Education and Reform Act (HB 620), that would impose new requirements on plaintiffs before they file a lawsuit. Places of public accommodations, including websites and apps, would have 6 months to bring their place of public accommodation into compliance before a claimant could file a lawsuit seeking injunctive relief and attorneys’ fees.

Any employer who is also a place of public accommodation knows that lawsuits under the Americans with Disabilities Act (ADA) Title III have long posed a problem for businesses. Businesses want to comply but are often unaware of minor issues of noncompliance at their facilities. This law, if it passes the Senate and is signed by President Trump, would allow businesses notice of the alleged issues of noncompliance and a grace period to fix the issues before they would face potential liability for attorneys’ fees and costs.

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USCIS Administrative Appeals Office issues important non-precedent decisions on wage level determinations for H-1B petitions

Beginning in the summer of 2017, employers began to see an increase in Requests for Evidence (RFE) from USCIS on H-1B petitions alleging that the occupation was not a specialty occupation because the employer assigned a level 1 wage. Two recent decisions from the Administrative Appeals Office (AAO) indicate that this may no longer be an concern.

Some background to this issue is helpful. The H-1B visa is available for foreign nationals who will be preforming services in a specialty occupation. The specialty occupation is a field that requires a specific educational background as a minimum qualification to perform the duties of the position. The statute also imposes an obligation to pay the “prevailing wage” or the actual wage, whichever is higher, as a measure to protect U.S. workers against unfair competition from foreign workers willing (or coerced) to work for substandard wages. The employer may calculate the prevailing wage by using the data provided by the Bureau of Labor Statistics for occupations and locations nationwide. The Department of Labor has issued guidance on how to determine which of the four wage levels provided in the data should be selected, based upon the normal requirements for the occupation compared to the employer’s requirements for the specific position.

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NLRB discards Obama-era decisions

After Republicans regained control of the majority seats on the National Labor Relations Board (NLRB or the board) for the first time in nearly nine years, the majority has swiftly reset the board’s tone. Recently, the NLRB has been busy taking steps to undo some of the more labor and employee friendly standards and opinions that were implemented under the Obama Administration. The result is a return to what many employers would consider to be a common sense approach. Continue Reading

Administration disavows proposal to limit all H-1Bs to six years

On Dec. 30, 2017 McClatchy News reported that USCIS was considering an interpretation of a provision in the American Competitiveness in the Twenty First Century Act that would restrict H-1B visas from extensions beyond six years. This story provoked a fire storm of panic among Indian H-1B visa holders who have been waiting for an available immigrant visa while caught in backlogs often in excess of 10 years and longer. While many lawyers cautioned that the statute could only be interpreted to withhold three year extensions but not one year extensions (creating only a more pronounced processing backlog but not substantively impacting the right to remain and work in the United States), various other sources argued that the Administration could indeed eliminate a statutory provision provided by Congress.

Today, McClatchy News reported that that the Administration is not considering such an interpretation. The article notes that the Administration is backing away from the proposal in light of the extreme pressure. But, according to the USCIS spokesman: “USCIS was never considering such a policy change and that ‘any suggestion that USCIS changed its position because of pressure is absolutely false.’ ”

The story published this morning eliminates the fear that the Administration will move to end the H-1B eligibility for tens of thousands of immigrants waiting for a green card. The Administration has announced that the Buy American Hire American Executive Order issued on April 18, 2017 provides a mandate to scale back the program. USCIS is examining H-1B regulations and policies, and we anticipate further announcements that will likely restrict the H-1B program in additional ways.  We will have a better idea of the parameters being considered when the proposed new regulations are published.

D.C. Federal Judge vacates the EEOC’s Workplace Wellness Program Rules, effective Jan. 1, 2019

On Dec. 20, 2017, a D.C. federal judge held that the Equal Employment Opportunity Commission (EEOC)’s workplace wellness program rules – which permit employers to incentivize employees who participate in workplace wellness programs—will be vacated on Jan. 1, 2019. The judge held that the EEOC failed to provide a reasoned explanation for the rules, which he believed violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) without a reason for permitting an exception to the normal rules prohibiting disability-related inquiries, medical examinations and requesting genetic information. The judge further ordered the EEOC to promulgate any new proposed rules by Aug. 31, 2018 and to file a status report on the agency’s schedule for rulemaking by March 30, 2018.

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NLRB establishes new standard for evaluating employee handbook policies

The new Republican-led National Labor Relations Board (NLRB) has wasted little time in reconsidering decisions made during the Obama Administration. In its Boeing, Inc., decision, announced on Thursday, Dec. 14, 2017, the board overturned its Lutheran Heritage Village-Livonia decision that has guided its evaluation of employee handbook policies for the past 13 years and most recently has come under intense criticism from the employer community for chipping away at common employee handbook policies.

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New top lawyer for NLRB signals change

Peter Robb is President Trump’s new General Counsel for the National Labor Relations Board (NLRB). He was confirmed by the Senate in November. The General Counsel is the top lawyer guiding NLRB enforcement activity. Direction from the General Counsel’s office influences how NLRB Regional Directors enforce the law and has a significant impact on legal issues facing union, as well as non-union, companies. In a memo issued on December 1 to all of the NLRB Regional Offices around the country, Mr. Robb signaled his intention to systematically change many of the more controversial labor law enforcement initiates pursued by the NLRB during the Obama administration. Continue Reading

SCOTUS allows travel ban 3.0 to take effect

The third time is the charm for the Trump Administration, for now. On Monday, Dec 4, 2017, the U.S. Supreme Court issued an order allowing President Trump’s third attempt at a travel ban to take full effect while the issue of its constitutionality is litigated in the circuit courts. This decision has the practical effect of lifting hard-fought blocks against the controversial ban.

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DOT amends drug testing rules effective Jan. 1, 2018

In response to the nation’s opioid epidemic, the Department of Transportation (DOT) amended its testing program requirements to require inclusion of four semi-synthetic opioids, hydrocodone, oxycodone, hydromorphone and oxymorphone, to the required drug testing panel. DOT also added methylenedioxyamphetamine (MDA) to the panel and removed methylenedioxyethylamphetaime (MDEA) as a confirmatory test analyte as redundant since MDA is a metabolite for MDEA. Because the added opiods can be legally taken pursuant to a doctor’s prescription, this may result in more initial positives that trigger MRO review and require the MRO to evaluate whether the employee is taking the opioid pursuant to a valid prescription.

The new rule adds three “fatal flaws” to the list of when a laboratory would reject and discard a specimen and modifies the “shy bladder” process so that the collector will discard certain questionable specimens and proceed under the shy bladder process for the second specimen.

The new rule also removes the requirement for consortium/third party administrators to submit blind specimens because it is unneeded and imposes unnecessary administrative burdens and costs.

Companies that are covered by DOT should amend their drug testing programs accordingly before Jan. 1, 2018. Companies that voluntarily comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs should consider amending their programs as well.

Scam alert: USCIS does not request I-9 forms by email

U.S. Citizenship and Immigration Services (USCIS) recently posted notice advising employers of a scam operation requesting I-9 forms. USCIS, as well as any other investigating government agency, will never request I-9 forms by email. There are reports of recent scam operations that appear to come from a government email address requesting I-9 forms for recently hired employees. Employers should delete any emails requesting emails or uploaded copies of I-9 forms. The full government warning states:

Scam Alert: USCIS Does Not Request Forms I-9 By Email

USCIS has learned that employers have received scam emails requesting Form I-9 information be sent to the fraudulent email address news@uscis.gov. You should neither respond to these emails nor click the links in them. Employers are not required to submit Forms I-9 to USCIS.

Employers are required to prepare a Form I-9 on behalf of every new employee. The employee must prepare section one of the form on or before the first day of employment, and employers must review the supporting documents and complete section two by the third day of employment. Employers are required to retain the I-9 form, but do not file it with USCIS. Audits of I-9s are conducted by the Immigration and Customs Enforcement or the Department of Labor and are always accompanied by written notice from the agency.

We recently posted an explanation of the new Form I-9, which is required for all employees hired on or after Sept.18, 2017.

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