Work Knowledge Blog

Work Knowledge Blog

USCIS Issues Final Rule Providing Employment Authorization to H-1B Spouses

Posted in Employment Authorization

On February 25, the United States Department of Homeland Security (DHS) issued final regulations making H-4 dependent spouse status holders eligible for an employment authorization document (EAD) under two circumstances: 1) where the H-1B principal is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker or 2) where the H-1B principle has been granted status pursuant to the 7th year extension provisions of Section 106(a) of the American Competitiveness in the 21st Century Act (AC21). The rule does not extend eligibility to H-4 dependents who are children. Eligible persons may file Form I-765, Application for Employment Authorization, concurrently with Form I-539, Application to Extend/Change Nonimmigrant Status. The effective date and of the rule is May 26, 2015, which will be the first day DHS will accept H-4 EAD applications. The rule was promulgated in 80 FR 10284.

H-4 nonimmigrant status is conferred on foreign nationals… Continue Reading

EEOC v. Freeman: Another Employer Victory in EEOC’s Enforcement Efforts Regarding Employer Use of Background Checks

Posted in EEOC

Last summer, we wrote about the federal Fair Credit Reporting Act (“FCRA”) requirements in conjunction with the EEOC’s effort to sue employers who use background checks for job applicants and employees. Essentially, the EEOC alleges that an employer’s use of background checks can lead to a disparate impact among applicants and employees. Thus far, the EEOC’s effort in this regard has been basically unsuccessful—albeit relentless.

Nevertheless, the Fourth Circuit recently issued another resounding defeat against the EEOC in its opinion, EEOC v. Freeman, No. 13-2365, 2015 WL 728038 (4th Cir. Feb. 20, 2015). Specifically, the Fourth Circuit affirmed the district court’s holdings in EEOC v. Freeman, 961 F. Supp. 2d 783, 793–96 (D. Md. 2013), which we discussed in our June 2014 Work Knowledge Blog post on this issue. Id. at *3. Like the district court, the Fourth Circuit took issue with the EEOC’s expert,… Continue Reading

Preparing for H-1B Season: Tips for Filing and After

Posted in Visas

With the coming of the New Year also comes the beginning of a new H-1B filing season.  The H‑1B visa program is the primary method United States companies use to hire foreign nationals in IT, engineering, and business professions.  H-1B visas are subject to a strict quota which does not meet the current demand.  The filing period for those limited number of H-1B visas begins on April 1.

Being ready for the April 1 H-1B filing deadline can be logistically tricky for many employers and HR departments.   Below is some guidance regarding the H-1B program and tips for making sure the H-1B filing process goes smoothly for employers and their new hires.

About the H-1B program

The H-1B program allows United States employers to hire foreign nationals to work in specialty occupations. A specialty occupation requires theoretical and practical application of a body of highly specialized knowledge.… Continue Reading

Texas Governor Mandates State Contractors Use E-Verify

Posted in Policies & Practices

Texas Governor Rick Perry issued an Executive Order mandating the use of the E-Verify system by all contractors performing services to Texas agencies under the oversight of the governor.  The order was announced on December 3, 2014, during a press conference by Governor Perry addressing border security.

The Executive Order imposes two requirements as a condition of all state contracts with agencies under the direction of governor.  First, the order requires that contractors use the E-Verify system to determine the eligibility of all persons employed during the contract term to perform duties within Texas.  Second, the order requires contractors use the E-Verify system to determine the eligibility of all persons, including subcontractors, assigned by the contractors to perform work pursuant to the contract.  The order encourages agencies not under the direction of the governor to implement use of E-verify and mandate use by contractors, as well.  The… Continue Reading

Get Ready for Increased On-Site FMLA Compliance Investigations

Posted in FMLA

The U.S. Department of Labor FMLA Branch Chief Helen Applewhaite recently announced the agencies’ renewed focus on conducting more on-site compliance investigations (“pivotal year for FMLA enforcement”). The DOL’s stated intent is two-fold: (1) to increase its investigators’ access to information; and (2) save time by reviewing the employer’s documents and interviewing employees on-site.

A DOL spokesman mentioned key focal points the agency is most concerned about, a list that includes exactly the type of violations that we frequently see employers having difficulty understanding and complying with. Examples include:

Refusing to authorize FMLA leave for an eligible employee; Discouraging a worker from using FMLA leave; Making someone’s request for or use of FMLA leave a negative factor in employment actions, such as hiring, promotions or disciplinary actions; and Systemic violations.

The best advice for employers in light of the DOL’s announcement that they will be increasing on-site investigations is, with the assistance of outside counsel, conduct… Continue Reading

If it Passes, What Exactly Will the Proposed FMLA Enhancement Act Enhance?

Posted in FMLA

On Feb. 5, 2014, Rep. Carolyn Maloney (D-NY) reintroduced a Bill, that if passed, would extend both who is covered and what is covered under the Federal and Medical Leave Act.

Who:  Extending leave protections under the FMLA to employers with 25 or more employees, a lower threshold than the current 50 or more employee requirement.  Thus, the Bill would bring many small employers under the FMLA.

What is covered:  At this time, the FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons.  The proposed expansion would allow employees to use leave for reasons that:

Do not necessarily rise to the level of a serious health condition; or In some cases, are not medically related at all. The Bill proposes up to four additional hours of FMLA leave per month of unpaid Parental Involvement and Family Wellness, to participate in or attend activities sponsored by a school or community… Continue Reading

New Definition of “Spouse” would Expand FMLA Benefits to More Same-Sex Married Couples

Posted in FMLA

Two weeks ago, the Secretary of Labor announced a proposed rule that would extend the benefits and protections of the Family and Medical Leave Act (“FMLA”) to employees in same-sex marriages, regardless of where they live. Currently, only spouses in a same-sex marriage who live in a state that recognizes same-sex marriage are entitled to FMLA leave to care for their spouse. Thus, a same-sex couple who was legally married in Rhode Island (which recognizes same-sex marriage), but who lives in Tennessee (which does not), is not afforded the protections and benefits of the FMLA for leave to care for their spouse. This is often called the “state of residence rule.”

The new definition of “spouse” that the Secretary of Labor proposed last Friday would include spouses in legally recognized same-sex marriages, regardless of where the couple resides. Put another way, as long as the employee seeking FMLA… Continue Reading

President’s Recess Appointments Exceed Authority Based on Supreme Court Decision

Posted in NLRB

After months of anticipation, the United States Supreme Court today issued its opinion in the Nat’l Lab. Relations Bd. v. Noel Canning case.  No. 12-1281, slip op. at 1 (June. 26, 2014).  By way of background, on January 2, 2012, President Obama made three appointments to the National Labor Relations Board while the Senate “was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by ‘pro forma session[s],’ with ‘no business . . . transacted,’ every Tuesday and Friday through January 20, 2012.”  Id. at 2.  In a unanimous decision, the Court found that President Obama exceeded his authority by making these appointments.  Id.

Cutting to the chase, what does this mean for employers? This decision calls into question the validity of the decisions from the National Labor Relations Board since the January 2, 2012 recess appointments.  The new five member Board, including… Continue Reading

The FCRA: A Battle on Two Fronts for Employers

Posted in EEOC, FCRA, OSHA, Policies & Practices

As if employers were not already faced with enough headaches from employment-specific federal statutes, such as the Occupational Safety and Health Act or the Fair Labor Standards Act, they also have to consider the effect of other statutes, including the Fair Credit Reporting Act (“FCRA”).  The FCRA applies to any entity that uses “consumer report[s]” for “employment purposes.”  15 U.S.C. § 1681b(b).  “Employment purposes” means use of the reports for hiring decisions on job applicants, as well as for promotion or termination decisions on current employees.  See 15 U.S.C. § 1681a(h).  And the term “consumer report” includes such routine investigative documents as credit reports, criminal checks, and even motor vehicle background checks.  See 15 U.S.C. § 1681a(d)(1)(B).

Given this broad application of the FCRA in the employment context, navigation of the risks and requirements associated with the FCRA is often difficult and dangerous for employers—especially without… Continue Reading

President Obama to Issue Executive Order on LGBT Workplace Protections

Posted in Discrimination

The White House announced on Monday that the President will sign an executive order restricting all federal contractors from discriminating against employees and applicants on the basis of sexual orientation and gender identity. It is an historic expansion of workplace rights affecting gay and lesbian rights in the workplace. The Executive Order is expected to be issued in the next several weeks.

This executive order is a partial solution to the inability of Congress to pass the long debated Employment NonDiscrimination Act (“ENDA”) which would extend Title VII protection to gay, lesbian and bisexual workers and applicants. This Executive Order will only apply to federal contractors.

Continue Reading