Employers who use the fluctuating workweek method of compensating employees and those who rely on the retail establishment exemption from overtime are both in for some changes. Recently the Department of Labor (DOL) passed two key regulations altering the application of certain rules under the Fair Labor Standards Act (FLSA) applicable to each. First, the DOL has authorized employers to offer bonuses and hazard pay to workers with fluctuating workweeks, without destroying the validity of that method of pay. Second, it has changed its regulations addressing which businesses qualify as “retail” businesses for certain overtime exemptions. Employers should review these rules and identify whether either policy might provide relief to their businesses as they adjust to flexible schedules and potentially new service or retail offerings.
In light of COVID-19, the federal government has extended temporary guidance relating to remote verification and relaxed restrictions on documents supporting I-9 verification. With respect to the latter, given ongoing stay-at-home orders and restrictions on renewing state driver’s licenses, state ID cards, and other forms of List B identity documents due to COVID-19, the Department of Homeland Security (DHS) has issued a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification. As of May 1, 2020, employers may treat List B identity documents that expired on or after March 1, 2020, and are not otherwise extended by the issuing authority, the same as if the employee presented a valid receipt for an acceptable document when completing Form I-9. Employers must also be sure to complete the 10/21/19 edition of Form I-9, which became mandatory on May 1, 2020.
Employees in Chicago have been granted new protections if they must stay at home to comply with a state or local stay order or to care for someone under such an order under a new Chicago City Council ordinance enacted late last month. The Anti-Retaliation Ordinance, SO2020-2343 protects employees who work as few as two hours in a two-week period and is effective immediately.
The explosive growth of teleworking during the COVID-19 pandemic has re-shaped notions about how we work, presenting novel challenges for management. Re-opening business worksites brings new legal and operational challenges in continuing to effectively manage remote workers, while deciding whether, when, and which remote workers should return to the worksite. The new focus on teleworking requires consideration of a host of issues including technology, productivity and communications, cybersecurity, time and recordkeeping, and best practices for avoiding workplace claims.
As employers contemplate or commence reopening, they should be cognizant of potential workplace claims which are likely to escalate in the COVID-19 era. Such claims can arise out of a wide range of situations, including: deciding which employees should be brought back to the worksite first, which should be allowed to continue to telework and where there isn’t sufficient work, which should be terminated; barring vulnerable workers from returning to work; failing to provide a safe workplace; interfering with leave rights; and wage and hour errors. Employers should take steps now to reduce exposure to such claims.
While some states have moved quickly to re-open for business, California Governor Gavin Newsom has announced a four-stage plan to modify the statewide stay-at-home order, beginning with expanded testing and contact tracing measures, and culminating with the re-opening of live-audience sports, concerts, and other large events. As California employers begin implementing that plan, they must keep California’s unique employment law requirements in mind.
As federal, state, and local government authorities pave the pathway to re-opening America in the ever-changing COVID-19 environment, employers should be prepared to address key immigration issues likely to arise. To ensure continuity of business operations and alleviate disruptions in the workforce due to immigration noncompliance, employers should develop a plan now to carefully transition non-U.S. citizen employees back into the workplace. Continue Reading
Amidst the fast changing pace of employer benefits and obligations during the COVID-19 pandemic, the Department of Homeland Security (DHS) has implemented changes to ensure that immigration worksite compliance continues. Beginning May 1, 2020, employers must use the newer 10/21/19 edition of Form I-9, Employment Eligibility Verification, but may also benefit from relaxed I-9 procedures intended to comply with social distancing guidelines.
Employers face a myriad of issues in thinking through whether and how to re-open for business after mandatory closures, or how to thoughtfully phase out teleworking models currently in place for ongoing enterprises. While federal, state, and local authorities haggle over who will decide which businesses can re-open and under what circumstances, employers should start preparing now. In particular for multi-state employers, preparation should already be under way.
Though many return-to-work considerations are evolving, we are confident that the re-opening of America is likely to be staggered, by community, by nature of business, and by the nature of the workers themselves. Regardless, every business will need the basics and should start planning now.
President Trump’s latest Executive Order temporarily suspends the issuance of certain Immigrant visas (Green Card) at U.S. Consulates and Embassies overseas and halts Green Card applicants from entering the United States. However, it does not have an immediate impact on U.S. nonimmigrant workers in valid status such as H-1B, H-1B1, E-3, L-1A, L-1B, O-1, and other temporary worker visa classifications. The Proclamation also does not affect those who hold a valid immigrant visa or travel document, such as an Advance Parole, or foreign nationals with pending Adjustment of Status Applications to permanent residence.
The Order affects only those who are outside of the U.S., have not yet secured an immigrant visa at a U.S. Consulate or Embassy, and who do not possess an official travel document, such as an Advance Parole. These foreign nationals will not be admitted to the U.S. during a temporary period of 60 days, effective April 23, 2020.