Work Knowledge Blog

Work Knowledge Blog

OSHA Update—Proposed Delay for New Beryllium Rule Effective Date

Posted in Compliance, OSHA

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

OSHA Update—Reminder Regarding Posting, Retaining, and Submitting Injury and Illness Summaries

Posted in OSHA

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

Preparing for H-1B Season: Tips for Filing

Posted in Policies & Practices

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

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