Employer Law Report

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.

Porter Wright offers tailored HR Audits

Porter Wright is pleased to announce that it is now offering customized audits of the specific HR policies and practices you select at custom, fixed-cost or other fee arrangements that will give you certainty about the expense before the audit even begins. Simply choose from the menu of HR audit services we offer and work with one of our labor and employment attorneys to determine a price for those services. Our tailored HR audit allows you to focus on those areas of concern specific to your business, while giving you the certainty and predictability regarding cost that your business requires.

Click here for more information about an HR audit tailored to your business, including a list of the HR audit services we offer.

How employers can help employees after a natural disaster

In recent months we have seen a significant number of natural disasters – from Hurricanes Irma to Harvey to Maria and the massive wild fires crossing Northern California. Our colleague, Abby Brothers, shares the tax-free options employers can use to support their employees and communities. Check out her full post on Employee Benefits Law Report, Federal disaster relief available to employees in aftermath of natural disasters.”

Workers’ compensation law aiming to reduce appeal time is constitutional

The Ohio Supreme Court has definitively decided that an employee cannot unilaterally dismiss an employer-initiated appeal in a workers’ compensation case; rather, the employer must consent to the dismissal.

After a workers’ compensation claim proceeds administratively before the Industrial Commission, any party may appeal the Commission’s decision to permit the employee to participate in the workers’ compensation system to the Court of Common Pleas. After an appeal is filed, the employee must file a petition/complaint within 30 days.

Regardless of which party files the appeal, the employee is the plaintiff in the workers’ compensation case. While the court case is proceeding on an employer-initiated appeal, the employee continues to receive workers’ compensation benefits. However, should the court reverse the Industrial Commission’s decision and deny the claim, the employer receives a refund of costs previously paid to the employee. Continue Reading

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