Work Knowledge Blog

Work Knowledge Blog

Proposed Regulations Raise EB-5 Investment Amounts: $1.8M & $1.35M for TEAs

Posted in Immigration

On Jan. 13, 2017, the Department of Homeland Security (DHS) published proposed rules entitled, “EB-5 Immigrant Investor Program Modernization.”  The proposed regulations include priority date retention for subsequently filed EB-5 petitions, increased minimum investment amounts to $1.8 million and $1.35 million in Targeted Employment Areas (TEAs), expansion of TEA designation requirements, and other technical changes.  The period for public comment regarding the rules lasts 90 days and ends on April 11, 2017.

Priority Date Retention

The first major change DHS has proposed is to allow petitioners to retain the priority date of approved EB-5 petitions for any subsequently filed EB-5 petition. This change will benefit the many EB-5 investors whose initial petitions were approved but later revoked through no fault of their own, for instance if the Regional Center terminated or an investment project becomes no longer desirable.

The provision would not apply in two circumstances.  First, priority date retention would not be… Continue Reading

Proposed Rules Issued for EB-5 Regional Center Program

Posted in Immigration

On Jan. 11, 2017, the U.S. Department of Homeland Security (DHS) issued proposed rules regarding the EB-5 Immigrant Investor Regional Center program. The proposed rules address a number of issues. First, initial applications for regional center designation will undergo a bifurcated process. Entities will submit an initial application for regional center designation. A separate exemplar filing will be required before any investor petitions will be considered. DHS has also proposed implementation of safeguards and greater oversight of regional center activities; requirements for continued participation in the regional center program; and rules for termination of regional center designation for noncompliance. DHS will accept comments regarding he rules for 90 days ending April 11, 2017.

The proposed rules will seek to bifurcate the process for initial designation of regional centers. The process would require the filing of an initial application for regional center designation. The sample project or exemplar project requirement would be… Continue Reading

Pro-Tips for the Coming H-1B Season

Posted in Policies & Practices

The New Year is upon us.  For companies seeking to hire high-skilled international workers, it means the start of the FY2018 H-1B filing season.  The filing period for H-1B cap subject petitions opens on April 1 of each year for work beginning on Oct. 1, the start of the government’s fiscal year.  In 2016, the government received over 236,000 for the approximately 85,000 available cap subject H-1Bs.  H-1B petitions must be received within five business days starting April 3, 2017 in order to be considered for processing.  Petitions will be randomly selected for processing.  Below are some pro-tips to help you get ready.

Start Early

Select and communicate with your immigration counsel as early as possible.  Starting early is the best way to ensure timely filing.  Your immigration lawyer will ask you to provide extensive information and documentation from the employer and the employee.  Have company information collected and ready to provide… Continue Reading

Top 5 Mistakes Employers Make with Their Employee Handbooks

Posted in Compliance, Discrimination, Policies & Practices, Retaliation/Whistleblower, Wage & Hour

As 2016 winds down and a new year approaches, now is a great time for employers to think about their employee handbooks and employment policies in general.  As employers go about that thought-process, here are a few common mistakes employers should try to avoid:

(1) Self-Regulation:  Employers often include items in handbooks that are not required.  For example, protection for an employee because of his or her political affiliation may be required in some states but not others.   Compare Tex. Lab. Code § 21.051 (defining unlawful employment practices based on “race, color, disability, religion, sex, national origin, or age” but not political affiliation), with Wis. Stat. § 111.365(1) (defining employment discrimination to include actions “because of declining to attend a meeting or to participate in any communication about religious matters or political matters”).  Or, as another example, California requires overtime to be paid for… Continue Reading

OSHA Update—Texas Judge Denies Injunction Against Enforcement of Anti-Retaliation Provisions of Final Rule

Posted in OSHA, Policies & Practices, Retaliation/Whistleblower

On November 28, 2016, Judge Sam Lindsay in the United States District Court for the Northern District of Texas denied an employer group’s request for a nationwide injunction against the Occupational Safety and Health Administration’s enforcement of certain anti-retaliation provisions in the new final rule.  As we reported previously on the Work Knowledge Blog, the employer group filed a Complaint for Declaratory and Injunctive Relief in July in the Northern District of Texas, captioned TEXO ABC/AGC, Inc., et al. v. United States Sec’y of Lab., Civil Action No. 3:16-cv-01998-D.  The Complaint challenged the new final rule to the extent it prohibited or limited safety incentive programs and/or mandatory post-accident drug testing programs.

After considering briefing by both the employer group and the Secretary of Labor on the court’s authority to issue a nationwide injunction, among other issues, Judge Lindsay held that the employer group failed… Continue Reading

Court Issues Injunction Against New Salary Thresholds

Posted in Wage & Hour

In a much anticipated decision, Judge Amos Mazzant, United States District Court Judge for the Eastern District of Texas, issued a nationwide injunction prohibiting the Department of Labor from implementing the regulations that were to take effect on December 1 for the new salary thresholds for exempt, so-called “white collar” employees.  Judge Mazzant found that the injunction preserves the status quo while he rules on the ultimate merits as to whether the Department of Labor has the authority to promulgate the salary thresholds.  Specifically, he noted that if the salary thresholds are determined to be valid, then this injunction only delays the implementation of those thresholds.

So for employers poised to increase salaries for its exempt employees next week, there is (at least temporary) relief.

 

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Court Takes Injunction on Salary Threshold Levels Under Advisement

Posted in Wage & Hour

Today, Judge Mazzant of the Eastern District of Texas Sherman Division heard arguments on an Emergency Motion for Preliminary Injunction regarding changes to the federal salaried exemption threshold, which, absent an injunction, become effective on December 1, 2016.

During the hearing, which lasted over three hours, Judge Mazzant asked several questions that provide insight into the issues he views as important to his ruling. For example, he questioned whether the court had authority to issue a nationwide injunction. He also asked how to reconcile Auer v. Robbins, 519 U.S. 452 (1997), a case that gives broad authority to the Secretary of Labor to “‘define and delimit’ the scope of the exemption for executive, administrative, and professional employees.” Judge Mazzant questioned the Department of Labor on its authority to define the limit. Judge Mazzant also noted that his ruling will not be based on political rhetoric or speculation about the change in… Continue Reading

OSHA Update—Surge in Enforcement Efforts to Reduce Amputations Hazards in Arkansas, Louisiana, Oklahoma, and Texas

Posted in OSHA

The Occupational Safety and Health Administration (“OSHA”) recently announced that it will have a “heightened focus” on amputation hazards in Region 6, which comprises Arkansas Louisiana, Oklahoma, and Texas.  OSHA reports that 2,600 amputations occurred nationwide in 2015, most of which were in the manufacturing industry.  OSHA’s goal in this initiative will be on increased enforcement.

With that in mind, OSHA will begin with “targeted enforcement, including on-site inspections” of employers with machinery or equipment that could expose employee to amputation hazards.  These on-site inspections will be broad and will encompass all aspects of operations, working conditions, recordkeeping, and safety and health programs.  OSHA stated that it will “conduct a surge of planned inspections” immediately but confirmed that it will continue to inspect based on complaints, hospitalizations, and fatalities as well.

In its announcement, OSHA stated that amputations occur “most often” due to… Continue Reading

Legal Considerations for Employers during Election Years—Reminder

Posted in Compliance, Policies & Practices, Uncategorized

With Election Day rapidly approaching next week, employers should be prepared for a host of issues associated with election year politics in the workplace.  We recently wrote about some of the key issues facing employers in election years on the Work Knowledge Blog.  As a reminder about those issues, here are links to the related posts:

(1) Voting Leave Rights

(2) Free Speech in the Workplace

(3) Drafting and Implementing Employment Policies

If you are an employer and have any questions about these  issues or about how to comply with other employment laws during an election year, contact an experienced employment law attorney.

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OSHA Update—OSHA Issues Enforcement Guidance on New Reporting and Anti-Retaliation Provisions

Posted in OSHA, Policies & Practices, Retaliation/Whistleblower

The Occupational Safety and Health Administration (“OSHA”) has issued a memorandum to its Regional Administrators and published a new webpage outlining its planned enforcement of the new reporting and anti-retaliation provisions.  The agency’s guidance does little more than restate and expound upon what it has already provided in previous documents, such as in the 2012 Fairfax Memorandum and the comments to the final rule itself.  Nevertheless, it may be easier for employers to review their discipline, post-accident drug testing, and safety incentive programs with these guidelines in hand.

As we reported previously on the Work Knowledge Blog, OSHA issued new rules 29 C.F.R. §§ 1904.35, 1904.36, 1904.41 in May 2016.  After a couple of delays, Sections 1904.35 and 1904.36 are set for enforcement on December 1, 2016—unless, of course, OSHA delays that enforcement again unilaterally or at the… Continue Reading