The U.S. Department of Homeland Security (DHS) recently issued a final rule aimed at modernizing the H-1B nonimmigrant worker visa program, with significant and favorable changes set to take effect on January 17, 2025. These updates provide much-needed clarity and support for U.S. employers seeking talented and professional employees. Following is a breakdown of the most impactful changes and what these changes mean for employers.
DOL Proposes End of Program Allowing Employers to Pay Disabled Employees Subminimum Wage
Posted in Employment Counseling & Workplace Claims Prevention, Wage & HourAs part of a program dating back to 1938, the little-spoken-about Section 14(c) of the Fair Labor Standards Act (FLSA) includes a provision that allows employers to obtain certificates from the U.S. Department of Labor (DOL) authorizing them to pay subminimum wage to workers with disabilities that impair the worker’s productivity for the work being performed. Now, on the heels of mounting state legislation prohibiting the use of these certificates, the DOL is proposing to end the program altogether in its new Proposed Rule, Employment of Workers with Disabilities Under Section 14(c) of the Fair Labor Standards Act. Read on to understand the implications of this rulemaking, particularly with a new incoming presidential administration.
Employer Alert! The Department of Homeland Security (DHS) Announces Permanent 540-Day Automatic Extension Period of Employment Authorization Document (EAD) Renewals Timely Filed By Qualified Applicants
Posted in Immigration Planning & ComplianceIn a significant update for employers and human resource teams, the Department of Homeland Security (DHS) has made the 540-day auto-extension period for Employment Authorization Document (EAD) renewals a permanent benefit. In May 2022, DHS extended the EAD auto-extension to up to 540 days to mitigate the risk of a work authorization gap for those renewing their EADs. At that time, this temporary rule applied to individuals with renewal applications pending as of May 22, 2022, or those who filed renewal applications between May 4, 2022, and October 26, 2023. Later, the DHS extended the auto-extension for EAD renewal applicants who filed on or after October 27, 2023, with an eligibility window extending through September 30, 2025.
The Time for Certain Foreign National Workers to Stop Traveling Abroad is NOW, Not After the Inauguration
Posted in Immigration Planning & ComplianceOne of the simplest but most important steps that employers should take to minimize the workforce disruptions associated with the upcoming change in presidential administrations is to avoid international travel by certain foreign national workers starting now, and to bring at-risk employees who are currently outside the country back into the U.S. as soon as possible. Unpredictable and swift immigration policy changes over the next several months could make return extremely difficult for foreign national employees caught outside the country at the moment an unfavorable new rule or procedure is put into place. And in many cases, those caught in such circumstances will have no resort to U.S. courts, nor any other appeal rights. Even a person who leaves the U.S. now and expects to return before the presidential handover, such as for a family visit at the holidays, is taking a risk that unrelated delays or complications while away — a natural disaster or a lost passport — could subject the return trip to new, unexpected legal treatment under the next administration.
Employers should proactively review their workers’ individual situations, and should not only forego assignments that include international work travel for those at risk, but also warn at-risk employees against personal travel. Managers and human resources executives should not assume that workers themselves will understand or be aware of these risks. Even in periods when underlying immigration policies are relatively stable, examples abound of well-meaning, unguided employees who become unavailable for work or upend their and their employers’ intricate immigration planning because of incautious travel.
Worker Classification in the Gig Economy: Legal Wins and Strategic Considerations for Employers
Posted in Employment Litigation, Labor Relations, Wage & HourThe gig economy continues to prosper, fueled by some recent legal wins, which have been delivered at a crucial juncture for businesses reliant on the flexibility and cost efficiencies that come with classifying workers as independent contractors. These victories are not merely legal milestones — they are critical indicators of how companies can strategically navigate the complex area of worker classification to sustain their competitive edge amidst ongoing regulatory pressures and an anticipated paradigm shift due to the incoming Trump administration.
Duties Not Dollars: Texas Court Invalidates DOL’s Overtime Rule Before Anticipated January 1, 2025 Salary Level Increase
Posted in Employment Counseling & Workplace Claims Prevention, Non-Compete & Trade Secret Litigation, Wage & HourWith the upcoming change in administration, we expected that the U.S. Department of Labor’s (DOL) 2024 Overtime Rule ultimately would be cast aside, but the timing of the January 1, 2025 salary level increase before Inauguration Day was slated to be a potential headache for employers. A federal court in Texas has just invalidated the rule, sparing employers across the country the logistical challenge of being caught in the disequilibrium. In striking down the DOL Overtime Rule, the court found that the rule improperly focuses on “dollars” not “duties,” in contravention to Congressional intent and authority relegated to the DOL under the Fair Labor Standards Act (FLSA). The court’s ruling sets aside the DOL’s Overtime Rule on a nationwide basis, with its impact reverberating well beyond the parties involved in that litigation. With the 2024 Overtime Rule vacated and remanded to the DOL, the agency will have to start over. This legal development will render unnecessary the reclassification of exempt workers to nonexempt status for nearly three million workers, which was expected by the new year.
NYC’s Pet-Pawsitive Proposal: Paid Sick Leave for Pets Could Be Coming Soon
Posted in Employee Benefits, Employment Counseling & Workplace Claims Prevention, Medical & Other LeavesIn recent years, there has been a growing shift in mindset for pet owners that consider animals to be essential to their well-being and integral to their home life. In fact, one ASPCA survey reported that, in the early stages of lockdowns and quarantines during the COVID-19 crisis, nearly 1 in 5 households acquired a cat or dog, and the American Pet Products Association reported that pet industry expenditure in the United States reached over $147 billion in 2023. As this trend grows, workers are starting to seek employment benefits, like continued hybrid and remote working, to allow for the flexibility to take care of these new family members in their home. One of the most significant reflections of this policy shift is a newly proposed bill in New York City that would require employers to provide paid sick leave for workers who need to care for their sick pets. Here’s what employers need to understand about this proposed change and how it could impact their workplace policies.
Navigating Immigration Challenges Under the Second Trump Administration: What Employers Need to Know
Posted in Immigration Planning & ComplianceAs President-elect Trump’s administration prepares for a second term, employers should anticipate intensified changes to U.S. immigration policies and procedures. These changes are expected to significantly impact various immigration categories, including nonimmigrant and immigrant employment-based processes, hiring practices, and compliance responsibilities. The administration is likely to push forward with stricter enforcement, increased procedural challenges, and policies aimed at reducing foreign labor reliance. Employers should begin preparing now for these imminent changes, particularly in areas such as: E-Verify and I-9 compliance, H-1B, TN, EB-1-EB-5, F-1, H-4 EAD, DACA, TPS, and other nonimmigrant and immigrant visas and work authorization processes.
A Tip for Employers With Tipped Employees — Stay on Top of the Ever-Changing Guidance on the 80/20 Rule!
Posted in Employment Counseling & Workplace Claims Prevention, Wage & HourEmployers with tipped employees are constantly trying to keep up with the ever-changing and evolving tip credit rules promulgated by the United States Department of Labor (DOL) — specifically, what is known as the 80/20 rule. However, a recent federal appeals court has given the 80/20 rule the pink slip, and it may not be returning anytime soon, in light of an incoming Trump Administration. The 80/20 rule, which attempts to impose restrictions on when and how employers can take advantage of the tip credit for tipped employees, just might be cast aside for the foreseeable future.
Understanding the Pregnant Workers Fairness Act: What Employers Need to Know
Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other LeavesThe Pregnant Workers Fairness Act (PWFA) is growing up very quickly, and the EEOC has been working fervently, through a combination of guidance and enforcement measures, to ensure it thrives. Specifically, just shy of the PWFA’s first birthday, the EEOC’s final rule and interpretive guidance has taken effect, amplifying employer obligations regarding pregnancy-related accommodations in the workplace. Of late, the EEOC has initiated a string of lawsuits against employers under the PWFA. Given these recent developments, employers should review their pregnancy-related accommodations policies and procedures to make sure they comport with the latest agency guidance.
