Law and the Workplace

New Jersey Enacts State Anti-Discrimination Protections for Breastfeeding

Newly enacted amendments to the New Jersey Law Against Discrimination (NJLAD) have expanded state anti-discrimination protections in the workplace, housing, and in public accommodations to include individuals who are breastfeeding or expressing milk.  The amendments also require employers to provide reasonable accommodation to breastfeeding employees.  The amendments took effect immediately upon signing by the Governor on January 8, 2018.

Under the amendments, it is now an unlawful employment practice for an employer to refuse to hire, discharge, or otherwise discriminate against an individual on the basis of breastfeeding.  Employers further are required to provide reasonable accommodation for the expression of milk during the workday, unless the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer.  The amendments state that reasonable accommodations include providing:

  • reasonable break time each day to express milk, and
  • a room or other private location, other than a toilet still, in close proximity to the employee’s work location for the expression of milk.

Employers are prohibited from taking adverse action or otherwise retaliating against a worker for requesting or making use of an accommodation relating to breastfeeding or expressing milk in the workplace.

[Podcast]: Laws Governing Background Checks for Employers

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In this episode of The Proskauer Brief, senior counsel Harris Mufson and associate Michelle Gyves discuss the main laws governing background checks for employers. We will discuss how employers can utilize the federal Fair Credit Reporting Act (FCRA) to conduct pre-employment background checks on candidates. In addition to FCRA, we also discuss how “ban the box” and credit check laws play a role in screening potential employees. Be sure to tune in for more information on how these laws can affect both employers and candidates.

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Maryland Senate Overrides Governor’s Veto of Paid Sick Leave Law

On Friday, January 12, 2018, the Maryland Senate voted 30-17 to override Governor Larry Hogan’s veto of the Maryland Healthy Working Families Act (the “Act”) which passed the Maryland General Assembly last year.  The Maryland House of Delegates overrode the veto on Thursday.  Accordingly, Governor Hogan’s veto has been overridden and the Act will become law in 30 days unless the General Assembly acts to delay its implementation.

As we previously reported, beginning January 1, 2018, the Act requires employers with 15 or more employees to provide their employees with at least 1 hour of sick and safe leave for every 30 hours worked, up to a maximum of 40 hours of paid sick and safe leave per year.  Smaller employers will be required to provide their employees with up to 40 hours of unpaid sick and safe leave annually.  Employees who have accrued, unused sick and safe leave at the end of each year must be permitted to carry over that leave to the following year, though employers may impose a 40-hour carry over cap.

Under the Act, employees can use sick and safe leave to care for or treat the employee’s own mental or physical illness, injury or condition; to obtain preventative medical care for the employee or the employee’s family members; to care for a family member with a mental or physical illness, injury or condition; for maternity or paternity leave; or in situations where the absence is necessary due to domestic violence, sexual assault or stalking committed against the employee or the employee’s family member.  A family member includes the employee’s children, parents, spouse, grandparents, grandchildren and siblings.

The Act contains several important exceptions and carve-outs. The Act will not apply to:

  • Employees who regularly work less than 12 hours a week;
  • Employees who are employed in the construction industry and are covered by a collective bargaining agreement that expressly waives the requirements of the law; and
  • Certain “as-needed” employees in a health or human services industry.

In addition, employers will not be required to allow employees to:

  • Carry over more than 40 hours of accrued, unused sick and safe leave from year to year;
  • Use more than 64 hours of sick and safe leave in a year;
  • Accrue more than 64 hours at any time; or
  • Use sick and safe leave during the first 106 calendar days that the employee works for the employer (although leave must accrue during this initial employment period).

Once the Act goes into effect, Maryland will join Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, Washington, and Rhode Island to become the ninth state to require employers to provide paid sick leave. Washington, D.C. also has a paid sick leave law.

Massachusetts Employers Should Prepare for Penalties and Other Changes to Law Regarding Health Care Contributions

In August 2017, Governor Charlie Baker signed into law, “An Act Further Regulating Employer Contributions to Health Care,” which became effective on January 1, 2018, and will remain on the books through the end of the 2019 calendar year. The Act, which changes the existing employer medical assistance contribution, was designed to close the $300 million budget deficit faced by the state’s Medicaid and Children’s Health Insurance Program (CHIP). The Massachusetts Division of Unemployment Assistances (DUA) recently released its draft Emergency Medical Assistance Contribution (EMAC) supplemental regulations, which provide additional details regarding the law.

Most significantly, the new law imposes a penalty on employers of up to $750 for each employee who is either enrolled in MassHealth or who receives subsidized coverage through the MassHealth Connector (“the Connector”), so long as the employee is not disabled.  Additionally, the new law also increases an employer’s EMAC contributions (i.e. the equivalent of unemployment health insurance contributions) from 0.34% to 0.51% of the employee’s wages. The Massachusetts Department of Unemployment Assistance will be enforcing these new requirements, and thus assessing penalties, by using wage information provided by employers and enrollment information provided by MassHealth and the Connector.

The new law will apply to any employer with 6 or more employees (including full-time, part-time, temporary and probationary employees) residing in Massachusetts in any calendar quarter. For purposes of calculating the six employee threshold, the headcount is based upon dividing the sum of the employer’s headcount for each month in the quarter and dividing that total by three.

Although the law became effective on January 1, 2018, employers will not see a charge until their first quarter statements in April 2018. Many of the changes in the law, including a modification to the unemployment insurance schedule, are technical and complex. Accordingly, we encourage employers to consult with counsel to determine whether they meet any of the exceptions to the law, and if not, to assess the impact of the new law and regulations.

 

DOL Revives Slate of FLSA Opinion Letters From 2009

Continuing the pro-business activities many expected from the agency, the U.S. Department of Labor has revived 17 Fair Labor Standards Act opinion letters that were published in the waning days of the Bush Administration in January 2009 but promptly withdrawn by the Obama DOL in March of that year.  The opinion letters were reissued verbatim on January 5, 2018, albeit with new identification numbers.

DOL Opinion Letters

Historically, the DOL issued opinion letters in response to specific fact patterns presented by employers and other members of the public.  Businesses found the opinion letters exceptionally helpful, not only because they provided insights into the DOL’s enforcement position on wage and hour issues, but because reliance on the letters could—in the right circumstances—provide a complete defense to an FLSA claim.  Conversely, because DOL opinion letters are often characterized as being limited to the specific facts presented to the agency, employers whose circumstances differed in a material way from those described in the letters could rest assured that the letters would not be used as a blunt instrument to challenge a wider range of practices.

DOL Stops Issuing Opinion Letters in 2010

Beginning in 2010, the DOL discontinued the practice of issuing opinion letters and began publishing “Administrator’s Interpretations”—broad pronouncements of the agency’s views on wage and hour issues that were unlinked to any particular fact patterns.  Many businesses bemoaned the shift in policy, and critics pointed to the ways in which the Administrator’s Interpretations departed from the case law, statutory provisions, and regulations on their subjects.  On a more fundamental level, many businesses viewed them as yet another way the Obama-era federal agencies were circumventing the traditional notice-and-comment rulemaking process in furtherance of an expansion-of-rights agenda.

DOL Announces Return of Opinion Letters in 2017

In June 2017, the Trump DOL began to undo some of the sub-regulatory activism of the prior administration by affirmatively withdrawing two Administrator’s Interpretations, No. 2015-01 (on independent contractors) and No. 2016-01 (on joint employment)).  Later that month, the DOL announced that it would return to the practice of issuing opinion letters to provide guidance to employers and employees on FLSA issues.  As Labor Secretary Alexander Acosta explained at the time, “Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the [FLSA] and other statutes … [DOL] is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”  We noted at the time that the shift would be a welcome one for employers and business owners hoping for a more conciliatory, and less punitive, enforcement environment as well as more clarification of the many complex rules around wages and hours.

January 8, 2018 Opinion Letters

Here are the opinion letters reissued by the DOL on January 8, 2018:

No. Previously Issued As Subject
2018-1 FLSA2009-7 (Jan. 14, 2009) Compensability of “on call” hours
2018-2 FLSA2009-8 (Jan. 14, 2009) FLSA § 7(i) “retail sales” exemption
2018-3 FLSA2009-9 (Jan. 14, 2009) Exempt status of helicopter pilots
2018-4 FLSA2009-1NA (Jan. 15, 2009) Exempt status of project superintendents
2018-5 FLSA2009-2NA (Jan. 15, 2009) Regular rate calculation
2018-6 FLSA2009-10 (Jan. 15, 2009) Teaching exemption and coaches
2018-7 FLSA2009-25 (Jan. 16, 2009) Salary basis and full-day deductions
2018-8 FLSA2009-26 (Jan. 16, 2009) Exempt status of client service managers
2018-9 FLSA2009-27 (Jan. 16, 2009) Year-end bonuses and the regular rate
2018-10 FLSA2009-29 (Jan. 16, 2009) Exempt status of project supervisors
2018-11 FLSA2009-30 (Jan. 16, 2009) “Job bonuses” and the regular rate
2018-12 FLSA2009-31 (Jan. 16, 2009) Exempt status of clinical coordinators and business development managers
2018-13 FLSA2009-32 (Jan. 16, 2009) Exempt status of fraud/theft analysts and agents
2018-14 FLSA2009-33 (Jan. 16, 2009) Salary basis and salary deductions
2018-15 FLSA2009-34 (Jan. 16, 2009) Exempt status of event coordinators
2018-16 FLSA2009-35 (Jan. 16, 2009) Volunteer EMTs and joint employment
2018-17 FLSA2009-36 (Jan. 16, 2009) Exempt status of home construction supervisors

According to the DOL, each reissued opinion letter “is an official statement of [DOL Wage and Hour Division] policy and an official ruling for purposes of the Portal-to-Portal Act.”

Safe Harbors

The Portal to Portal Act of 1947 added two significant safe harbors to the FLSA, both of which implicate DOL opinion letters.  The first, codified at 29 U.S.C. § 259(a), provides a complete bar to an FLSA minimum wage or overtime claim if the employer “pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the [DOL], or any [relevant] administrative practice or enforcement policy of such agency.”  The safe harbor will apply even if the DOL regulation, order, ruling, approval, interpretation, practice, or enforcement policy on which the employer relied is later modified, rescinded, or determined by a court to be invalid.

The second safe harbor, codified at 29 U.S.C. § 260, empowers a court in its “sound discretion” to award less than 100% liquidated damages—or no liquidated damages at all—if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that it had reasonable grounds for believing that the act or omission was not a violation of the FLSA.  (Absent such a showing, a prevailing plaintiff could recover liquidated damages in an amount equal to the unpaid minimum wages or overtime, under 29 U.S.C. § 216(b).)

Employers whose acts or omissions conform to those deemed lawful by DOL opinion letters can take advantage of both safe harbors.  In addition, under 29 U.S.C. § 255(a), non-willful violations of the FLSA carry a two-year statute of limitations, as opposed to the three-year statute of limitations for willful violations.  An employer acting in accordance with a reasonable reading of a DOL opinion letter would ostensibly have a persuasive argument that its violation of the FLSA (if any) was not willful.

Employers eager for guidance on how to comply with the federal wage and hour laws should welcome the reissuance of these opinion letters.

Stay connected to our wage and hour blog for further developments from the DOL.

Immigration Fact and Fiction for the U.S. Employer: H-1 Extensions for Applicants for Permanent Residence are Alive and Well

I guess it is not a surprise, there was another information leak. This time the leak was from USCIS, perhaps an accident or perhaps not.  Is it true or is it fake news that a regulation would be proposed limiting, at least in part, H-1B extensions beyond the normal 6-year limitation for individuals who have applied for permanent residence.

Even floating this idea has created a tumult and the blowback, if there is any attempt to implement it, would likely be extraordinary.

Pursuant to the American Competitiveness in the 21st Century Act (AC-21), one is eligible, pursuant to Section 104(c) to a three-year H-1B extension beyond the normal six-year maximum period if the applicant has an approved employment-based immigrant visa petition, and is eligible to be granted lawful permanent resident status, but is prevented from doing so because of a lack of visa availability.  The Statute provides that the Service “may grant” such extensions on an ongoing basis until such time as the adjustment of status application has been adjudicated.

Under Section 106(a), one-year extensions of H-1B classification can be obtained, as long as 365 days have passed since the filing of an application for labor certification or of an I-140 petition, initiating a permanent residence case. This section provides that the six-year maximum “shall not apply” and directs the Service “shall extend” the H-1B stay in one-year increments.

It appears that USCIS may believe that it can impose restrictions on renewing the “three-year provision” given that the Statute provides that it “may grant” the extension, but it does not appear that they would have any room to maneuver with reference to the “one-year provision”, which has mandatory language, “shall not apply to” and “shall extend”.

It almost seems as if the purpose of letting this idea escape into the public realm was to create the fear and uncertainty that such a proposal could induce without actually having to implement it.

Rumors such as this discourage individuals from coming into the United States to work, and encourage those already here to leave. Perhaps that was the intention?  A cost-free method of discouraging H-1B workers.

H-1B holders and their employers are already planning in anticipation of a change that might never come by filing H-1B extensions as early as legally possible.

Some are even considering what a temporary relocation out of the United States might imply, given that a return to the United States in H-1B visa classification or L-1 classification would be possible after one year. However, even if the worst were to happen and the three-year provision is somehow restricted, the “one-year provision” would be available to virtually all of these visa applicants who would then be required to renew their H-1B visa classification on a yearly basis.

At first, it puzzled me why USCIS would be considering such an initiative if all it does is impose an additional administrative burden on petitioners without a change in the bottom line result. But then, if the goal or objective is to generate fear and uncertainty and psychologically discourage H-1B applicants or, for that matter, all immigrants and non-immigrants, then it makes sense.  If the goal is to make hiring H-1B workers as onerous and costly as possible – it also makes sense.  Probably all of the above are goals.

Those who are eligible for these AC-21 provisions represent a population that has persevered under the most trying of circumstances. They have sought entry into the United States the right way by following all the rules and properly applying for and renewing their H-1B status while going through the elaborate and challenging process of qualifying as immigrants through Department of Labor certification under the PERM program, and the filing and approval of a petition within which USCIS has vetted the appropriateness of the job offered, the certification issued by the Department of Labor, and the credentials of the applicants.  They have not jumped the line.  They are patiently waiting, many of them for more than a decade until their turn comes under the legal rules imposed upon them.  Others similarly situated who were born in countries other than India and China and followed this same legal path may not only be permanent residents of the United States now, but even citizens.

Many of them have been here so long legally waiting in line, that their children have grown up to be adults already. They are sort of like employment immigration’s DACA kids!

As I have said, they have persevered, and they will continue to persevere. If now they will have to renew H-1B classification yearly, rather than every three years, they will do so, because they are the best examples of a population that still believes in the American dream.

FAQ’S

Q: Is the three-year H-1B extension under AC-21 the only type of extension available for long-time H-1B visa holders with pending applications for permanent residence?

A: No.  Virtually all applicants for permanent residence who qualify for the three-year H-1B extension under Section 104(c) also qualify for the one-year extension under Section 106(a).  Any applicant for permanent residence who has already been granted a three-year extension could easily qualify for the mandatory one-year extension, given that the threshold is an application for permanent residence pending longer than 365 days.

Q: Should a new regulation be passed restricting three-year extensions, would those currently granted be revoked?

A: No.  The Statute provides that the Service “may grant” such extensions and there is no provision for revoking a legally granted extension of stay, once granted, without following normal regulatory procedures for revoking petitions for violation of status.

Q: Should current H-1B visa holders who are beneficiaries of Section 104(c) [the three-year provision] preemptively proceed with one-year extensions going forward?

A: There would seem to be no need to take such a dramatic step since, in all likelihood a regulatory change would be required to modify the current policy, and there would be significant lead time with reference to any change.  Employers and visa holders should carefully monitor the situation and plan the extension and renewal process with an eye on the possibility of a change in USCIS policy.

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