On April 27, 2017, the U.S. Senate confirmed Alexander Acosta as the next U.S. Secretary of Labor by vote of 60-38. Acosta is a former U.S. Department of Justice and National Labor Relations Board member. Secretary Acosta will now face the monumental task of coordinating Trump’s policy shifts within the department. A key issue demanding his attention is the Obama administration’s overtime rule, which increased the minimum salary threshold to $47,476. During his confirmation hearing before the Senate committee, Secretary Acosta acknowledged that the threshold was due for an increase but stated that the move to $47,476 was excessive. Because a Texas federal judge enjoined the prior administration’s rule prior to its December 1, 2016, effective date, Secretary Acosta will have to determine whether to pursue an appeal of the injunction to the Fifth Circuit Court of Appeals. Employers will be watching these developments closely in the coming weeks and months.… Continue Reading
On April 3, 2017, USCIS announced a program to deter and detect H-1B fraud and abuse. In the announcement, USCIS stated that too many American workers are ignored or unfairly disadvantaged as a result of the H 1B visa program. In an effort to combat fraud, USCIS will implement a targeted site visit program with the following focuses:
1. Employers where basic business information cannot be validated through commercially available data 2. H-1B dependent employers 3. H-1B employers who work off-site at another company or organization location
The announcement emphasizes that the focus of enforcement will be where fraud and abuse of the H 1B program may occur. USCIS stated that it will continue random nationwide site visits. USCIS also stated that the enforcement is not meant to target nonimmigrant employees for criminal or administrative action, but rather to identify employers abusing the system.
USCIS has also announced an email where reports of… Continue Reading
Texas State Representatives Terry Canales (District 40, serving part of Hidalgo County) and Nicole Collier (District 95, serving part of Tarrant County) have proposed legislation related to employers’ consideration of credit information for employees and job applicants. HB 317 amends Chapter 52 of the Texas Labor Code by generally prohibiting a covered employer’s use of an employee’s or job applicant’s “credit score, credit account balances, payment history, savings or checking account balances, or savings or checking account numbers” as a “condition of employment” unless the employer meets one of 4 exceptions. HB 317 has been pending in the Business and Industry Committee since testimony was first heard on the proposed legislation (in its original form) on March 13, 2017, but a vote is expected soon on this controversial bill.
Representative Canales testified at the March 13 committee hearing that agencies report that… Continue Reading
Plaintiffs now have only one bite-at-the-apple when pursuing claims of misappropriation of confidential information in Texas. 360 Mortg. Grp., LLC v. Homebridge Fin. Servs., Inc., No. A-14-CA-00847-SS, 2016 WL 900577, at *8 (W.D. Tex. Mar. 2, 2016). Tort claims focused on misappropriation of confidential information are preempted under the Texas Uniform Trade Secrets Act (TUSTA) if the origin of the claim focuses on the taking or use of another’s confidential information. For example, tort claims of unjust enrichment and constructive trust, based on a res of misappropriated confidential information, are pre-empted. On the other hand, conspiracy to misappropriate confidential information is not pre-empted, because the claim is based on an independent meeting of the minds.… Continue Reading
Last week, Representative James White, a Republican representing District 19 (Hardin, Jasper, Newton, Polk, and Tyler Counties), proposed a new state law that would protect Texas workers from adverse actions for expressing their political opinions and views away from the job. The key provision of the proposed legislation defines “political beliefs” to include “only” those beliefs of an individual “expressed outside the workplace and outside the course and scope of the individual’s employment.” The proposed legislation, if passed, would modify the Texas Labor Code by making “political beliefs” a protected class, alongside “race, color, disability, religion, sex, national origin, or age.” Tex. Lab. Code § 21.051. You may read the proposed text of the legislation here.
On March 1, 2017, the United States Department of Labor proposed another delay to the effective date of Occupational Safety and Health Administration’s (“OSHA”) new beryllium rule. The proposed delay is again in conjunction with the White House’s Regulatory Freeze Pending Review Memorandum (the “Memorandum”). If implemented, it will make the rule’s new effective date May 20, 2017.
Beryllium is a strong, but light, element often used to make cell phones, missiles, and aircraft. Beryllium and related compounds are most commonly used in the aerospace, electronics, energy, telecommunication, medical, and defense industries. Based on various studies and information, the International Agency for Research on Cancer has classified beryllium as carcinogenic. OSHA states that if inhaled or touched, beryllium is highly toxic and poses an increased risk of chronic beryllium disease or lung cancer.
With that in mind, OSHA seeks in… Continue Reading
It’s that time of year again. Between February 1 and April 30, employers must post a copy of their completed OSHA Form 300A for each establishment in a conspicuous place or in a place where employee notices are customarily posted. 29 C.F.R. § 1904.32(b)(5). Form 300A summarizes job-related injuries and illness logged the previous calendar year. So if you are an employer and have not already posted your completed Form 300A, it is imperative that you do so now before OSHA comes knocking.
Keep in mind that employers are also required to retain accurate OSHA 300, 300A, and 301 logs and forms for five (5) years after the end of the particular calendar year. 29 C.F.R. § 1904.33(a). OSHA 300 logs and 301 Incident Report forms should be verified at the end of each calendar year to ensure they contain accurate entries for all recordable injuries and illnesses that occurred during… Continue Reading
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 of each year.
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. It also requires… Continue Reading
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
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