Troutman Sanders and Pepper Hamilton officially became Troutman Pepper (Troutman Pepper Hamilton Sanders LLP), a national law firm of 1,100 attorneys in 23 U.S. offices. Our new firm offers clients greater resources and bench strength, enhanced practices, and expanded geographical reach.

We are now one of the 50 largest law firms in the country, with offices in eight of the 10 largest U.S. markets. Our attorneys support some of the country’s biggest industry sectors, including health sciences, energy, real estate, insurance, finance, private equity, construction, and technology.

While we have grown, our mission remains the same: to provide a higher commitment to client care. The merger brings expanded capabilities to our Labor and Employment and Employee Benefits and Executive Compensation teams, which now include 50 attorneys in 11 offices across the country, and we are excited for our clients to experience the increased benefits and services.

Please continue to follow our HR Law Matters blog to receive the latest news, analysis and commentary on your industry. You can read more about Troutman Pepper and our hallmark focus on client care.

States are re-opening in various phases, and some exercise facilities have opened their doors once again. For most states, gyms and fitness studios shuttered for months are now considering how to operate and attempt to recoup months of lost revenue while complying with strict social-distancing guidelines. Additionally, many states are seeing mandatory face covering orders for the first time. Continue Reading Considerations for Re-Opening Gyms and Fitness Studios

Following President Trump’s Presidential Proclamation on April 22, 2020 to temporarily suspend immigrant visa processing and entry of certain immigrants into the United States, the White House has issued a new Executive Order entitled “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”. This new order is directed at foreign nationals and their dependents who seek to obtain visas in the following classifications: H-1B and H-2B, L-1, and J-1 for participation in intern, trainee, teacher, camp counselor, au pair, or summer work travel programs. Other visa classifications, such as B-1, F-1, O-1, and TN, are not addressed by this proclamation. Continue Reading Impact of Executive Order Suspending Entry of Certain Employment-Based Nonimmigrants

Lee E. Tankle, Associate, Pepper Hamilton
Moses M. Tincher, Associate, Troutman Sanders

As governors begin to lift stay-at-home orders and communities around the country continue to progress through various phases of reopening, employers and employees alike are starting to plan for workers to return to offices and worksites. Although many Americans are adapting to the temporary “new normal,” COVID-19 remains a threat and must continue to be taken seriously. In preparation for returning employees, employers should be asking the following questions: Continue Reading Return to Work: Questions All Employers Should Ask Before Reopening

The White House took another step last week aimed at easing the economic impact of the coronavirus pandemic. President Trump signed an Executive Order seeking “to combat the economic consequences of COVID-19” by giving “businesses, especially small businesses, the confidence they need to re-open.”  The Order directs agencies to address the economic impact of the pandemic by eliminating regulations, providing reopening guidance to businesses, and recognizing that regulatory compliance may be difficult under the current circumstances. Continue Reading President Trump Signs Executive Order Seeking “To Combat The Economic Consequences Of COVID-19

It is hard to overstate the significance of the employment law changes going into effect as of July 1, 2020. As Virginia employers presently consider how to return to work following an unprecedented global pandemic, they will soon meet the added challenge of a radically different legal landscape governing employment matters. The affected areas of Virginia employment law are broad, covering wage and hour laws, employee misclassification, LGBTQ rights, employment thresholds for coverage under anti-discrimination laws, and expanded whistleblower protections. Whereas, Virginia was once considered a State where employee rights were extremely narrow, effective July 1, it will have some of the broadest protections available for employees to assert their rights. The following is a summary of the more significant laws going into effect. Continue Reading Virginia Employers Brace for Seismic Changes in Employment Laws Effective July 1, 2020

On April 20, 2020, President Trump tweeted: “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!” This broadly vague statement has obviously caused great concern and confusion; however, the impact of the actual order will not be known until the content of the order has been revealed, which is expected to happen in the next few days. Additionally, depending on the claimed legal basis for such action, litigation is also expected. We will provide further updates and guidance on the practical impact of this action as more information is released.

The place of employment remains a critical consideration for employers sponsoring foreign nationals in H-1B, H-1B1, and E-3 status. In addition to determining the geographical location for prevailing wage and required wage considerations for the labor condition application (LCA), the place of employment also is considered when providing the required notice for the LCA. However, with most of the United States under some level of restrictions on movement and many companies requiring work-from-home (WFH), compliance with the LCA requirements is no longer business as usual.

Employers with workers currently in H-1B, H-1B1, or E-3 status. These classifications are location-specific, which means that a change in work location will require analysis to determine if an amended petition is required. If the new work location is in the same area of intended employment, then an amended petition would not be required as long as the employer provides satisfactory notice to the workers in the same occupational classification on or before the first day of work at the new location. If there is no collective bargaining representative, then this notice can take the form of a physical posting or electronic notification.

Working from home within the area of intended employment. As businesses impose WFH protocols, employers must ensure continuing compliance with the LCA requirements. These employers are required to provide a copy of the signed certified LCA to the employee on or before the first day of work under the LCA. Thus, if the employee is working from home, and his or her home is within normal commuting distance from the location listed in the LCA, then the employer already has satisfied the notice requirement. A memorandum should be inserted into the public access file to document the change in work location and confirmation that the employee received satisfactory notice. Please note, however, that if the employee lives with other workers in the same occupational classification, then notice must be provided to the roommates as well; such notice can be accomplished by posting the certified LCA in the residence for 10 consecutive business days or by providing electronic notification. Again, such satisfaction of the notice requirement should be acknowledged in a memorandum and placed in the public access file. Due to the COVID-19 pandemic, the United States Department of Labor has provided flexibility in providing such notice on or before the employee’s first day of work at the new location; in this case, such notice must be provided as soon as practical but not later than 30 calendar days after beginning employment at the new location.

Working outside the area of intended employment. If the employee will be working in a new location that is not within the area of intended employment, then an amended petition will need to be filed, unless such temporary placement falls under the short-term placement rule. This rule provides for a 60-day max and is available only for H-1B workers, so if the contemplated assignment will last beyond 60 days or if the worker is in H-1B1 or E-3 status, then an amended petition will need to be filed.

New petition filings for H-1B, H-1B1, or E-3 employees. With the recent completion of the H-1B lottery selection process, employers are now beginning to prepare their H-1B submissions. Additionally, H-1B, H-1B1, and E-3 transfers and extensions continue. These H-1B submissions also require the LCA, which itself continues to require that notice of the filing of the LCA be provided. If the normal work location is temporarily closed, then the physical posting of the notice at the work location will not suffice and the employer will need to provide electronic notice to employees in the occupational classification at each place of employment where the employee ordinarily will work. The relevant regulations provide that electronic notice can be accomplished in one of two ways:

  1. On a company website (either internet or intranet) that the company ordinarily uses to communicate with its workers about job vacancies or promotion opportunities and must be accessible by the workers at the anticipated location for 10 consecutive business days, or
  2. A one-time email of the relevant information which can be included in a regular communication (such as a company or worksite newsletter) or on its own as a single personal email message to each relevant employee.

Note that the electronic notice does not need to be accessible to all employees company-wide, only to “…employees in the occupational classification (including both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment) for which H-1B nonimmigrants are sought, at each place of employment where any H-1B nonimmigrant will be employed.” If the relevant employees do not have practical computer access, then hard copy notification must be provided to individual employees.

Whether the notice is provided via one-time email or posted electronically for 10 consecutive business days, such method must be documented via printouts of the respective methods and placed in the public access file. If the printouts are not clear, then a memo explaining the details should be drafted and included with the printouts.

As a practical matter, due to the uncertain timelines regarding the pandemic, it may be advisable to list both the desired office location and the home office (and any other locations where the employee could work).

Despite the disruption caused by the COVID-19 pandemic, employers must continue to maintain compliance with the relevant government regulations. The above recommendations might not be practicable in all circumstances, so if you have specific questions, please contact a Troutman Sanders immigration attorney to discuss your particular situation. Please visit the Pepper Hamilton/Troutman Sanders COVID-19 Resource Center for COVID-19-related news and developments.

Richard Gerakitis, Partner, Troutman Sanders
Emily E. Schifter, Associate, Troutman Sanders
Susan K. Lessack, Partner, Pepper Hamilton
Tracey E. Diamond, Of Counsel, Pepper Hamilton
Lee E. Tankle, Associate, Pepper Hamilton

Hot on the heels of the temporary rule issued April 1, 2020 regarding the Families First Coronavirus Response Act, the Department of Labor’s (“DOL”) Employment and Training Administration recently issued three new guidance documents providing additional clarity regarding the unemployment insurance (“UI”) provisions of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act.

As we previously covered, the CARES Act provided a significant expansion in unemployment insurance benefits and availability nationwide as part of a wide-ranging $2 trillion stimulus package. However, many employers (and employees) were left with questions regarding how these newly expanded benefits might play out in practice. With unemployment claims continuing to reach record highs, these letters provide some needed insights on the scope of benefits provided.

Additional Guidance to States – COVID-19 Warrants Flexibility, But Only So Much
First, in a letter issued April 2, 2020, the DOL provided states with instruction on available flexibility in staffing related to the UI provisions of CARES. But along the way, this guidance (and the two following it) emphasized the importance of ensuring the “fundamental eligibility requirements of the Federal-State UI program,” including, in what is likely a welcome reminder for many employers, reiterating that “quitting work without good cause to obtain additional benefits would be fraud.” This guidance further confirmed states’ “fundamental role in ensuring the integrity of the UI program” and emphasized that while states have been given increased flexibility in response to COVID-19, this flexibility is not intended to undercut key eligibility and accountability requirements.

The DOL reminded states that these flexibilities are “generally limited to dealing with the effects of COVID-19.” Many states have revised their UI laws in response to COVID-19 through emergency rulemaking or executive order to temporarily relax standard requirements relating to being able and available to work, or looking for work, but the April 2 guidance reminds states that their eligibility standards, even as modified or relaxed, continue to play a critical role in the UI system.

Details on Coordination of Benefits
Importantly, the April 2 guidance letter also clarifies the order in which an individual eligible for benefits should apply for them under the UI programs provided by several state and federal CARES Act.

An individual eligible for regular state UI benefits:

  • Must first apply for and be awarded regular state UI benefits. Individuals awarded regular benefits may receive an additional $600/week in Federal Pandemic Unemployment Compensation (“FPUC”) benefits pursuant to Section 2104 of the CARES Act.
  • May then be eligible, if the individual exhausts regular UI benefits, to receive extended compensation under Section 2107 of the CARES Act through Pandemic Emergency Unemployment Compensation (“PEUC”) for up to an additional 13 weeks.
  • May apply for state extended benefits consistent with state law if the individual exhausts the Section 2107 PEUC benefits, and the state has “triggered on” its extended benefits program.
  • May apply for additional UI compensation under Section 2102, Pandemic Unemployment Assistance (“PUA”), if any eligibility remains or the state has not “triggered on” its extended benefits program.

Individuals not eligible for regular state UI benefits should apply directly for Section 2102 PUA benefits if they believe they may be eligible.

Confirmation of Coverage for PEUC Section 2104 Benefits
In a letter issued April 4, 2020, the DOL provided additional details regarding the Section 2104 FPUC benefits – that extra $600 federally funded weekly benefit you have heard so much about.

Among other details, this letter clarifies that the Section 2104 FPUC benefits are available to individuals collecting regular UI, as well as individuals collecting the benefits from several other programs – including, in what had been an open question in the minds of many employers, individuals receiving benefits from short-time compensation programs in states that operate them (or initiate them). The guidance confirms that individuals receiving any benefit from their state – full or partial – may receive the additional $600 weekly benefit, noting that: “if the individual is eligible to receive at least one dollar ($1) of underlying benefits for the claimed week, the claimant will receive the full $600 FPUC.” However, if an individual is not entitled to an underlying benefit in any given week because, for example, they have performed part-time work for which they earn more than their weekly benefit amount, the individual will presumably not be eligible for either the regular UI or FPUC benefits for that week.

The guidance also addresses the end date for payment of the additional benefit. As noted, FPUC benefits are not payable for any week of unemployment ending after July 31, 2020. Accordingly, in states where the week of unemployment ends on a Saturday, the last week that FPUC benefits may be paid is the week ending July 25, 2020. For states where the week of unemployment ends on a Sunday, the last week that FPUC benefits are payable is the week ending July 26, 2020.

Additional Detail on Section 2102 PUA Benefits
Finally, in a letter issued April 5, 2020, the DOL offered further clarity regarding the Section 2102 PUA benefits – the new program that expands possible eligibility for UI benefits to many individuals who historically did not have access to them, like gig workers or individuals new to the workforce or with otherwise limited earnings history.

The letter confirms that only individuals impacted by one of the COVID-19 related reasons enumerated in Section 2102 qualify for PUA benefits. The letter also reiterates that PUA benefits are not payable to individuals who have the ability to telework with pay, or who are receiving paid sick leave or other paid leave benefits, but noted that an individual “receiving paid sick leave or other paid leave benefits for less than his or her customary work week” or who “has been offered the option of teleworking with pay and does telework with pay, but is working less than the individual customarily worked prior to the COVID-19 pandemic,” still may be eligible for at least reduced weekly PUA benefits.

The letter also explains how several COVID-19-related circumstances can qualify an individual for PUA benefits.  For example:

  • An individual who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis, for purposes of Section 2102, may include:
    • An individual who has to quit his or her job as a direct result of COVID-19 because the individual has tested positive for the coronavirus or has been diagnosed with COVID-19 by a qualified medical professional, and continuing work activities, such as through telework, is not possible by virtue of such diagnosis or condition; or
    • An individual who has to quit his or her job due to coming in direct contact with someone who has tested positive for the coronavirus or has been diagnosed by a medical professional as having COVID-19, and, on the advice of a qualified medical health professional is required to resign from his or her position in order to quarantine.
  • An individual who is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID-19, for purposes of Section 2102, may include:
    • An individual who is “providing care” to a family member when the provision of such care requires such ongoing and constant attention that the individual’s ability to perform other work functions is severely limited.
    • However, an individual who is assisting a family member who is able to adequately care for him or herself is not “providing care” under this category.

Finally, in this letter the DOL reminded applicants (and states) that many of the COVID-19 related reasons that allow individuals to qualify for Section 2102 PUA assistance will be short in duration, and, if that is the case, the individual will not actually receive the maximum 39 weeks of benefits outlined in that section. For example, if an individual qualified on the basis that he or she “is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency,” and that quarantine lasts only a few weeks, he or she may lose eligibility to the Section 2102 benefits once the quarantine ends, at least on that basis.

We will closely monitor and update any changes as appropriate. In the meantime, please visit the Pepper Hamilton/Troutman Sanders COVID-19 Resource Center for COVID-19-related news and developments.

Emily Schifter, Associate, Troutman Sanders
Richard Gerakitis, Partner, Troutman Sanders
Tracey Diamond, Of Counsel, Pepper Hamilton
Rogers Stevens, Associate, Pepper Hamilton
Lee Tankle, Associate, Pepper Hamilton
Susan Lessack, Partner, Pepper Hamilton

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27, provides an estimated $2 trillion stimulus package in response to the COVID-19 pandemic. The wide-ranging package covers many areas, but one of the most relevant for employers and to many individuals across the country involves the significant expansion of unemployment insurance benefits with three new federally funded programs — Pandemic Unemployment Compensation, Pandemic Emergency Unemployment Compensation and Pandemic Unemployment Assistance. With unemployment claims topping 3.2 million this week, the CARES Act should provide some much-needed relief to workers.

First, the Pandemic Unemployment Compensation program in section 2104 of the CARES Act substantially increases the standard amount of unemployment insurance available to otherwise qualified Americans. This program allows individuals who are eligible for and are awarded unemployment insurance benefits by their state to receive an additional $600 per week (funded by the federal government) for the next four months (through July 31, 2020) as Federal Pandemic Unemployment Compensation, which will be paid in addition to the weekly benefit amount authorized under state law. This supplemental benefit will be paid at the same time (but not necessarily in the same check) as regular state or federal unemployment compensation benefits.

Surprisingly to most employers, the $600 weekly unemployment compensation supplement is a flat amount that will be distributed to all individuals receiving full unemployment benefits (as well as, in states that provide them, partial unemployment benefits); it is not prorated based on an employee’s pay rate. Many companies worry that this will provide a disincentive for employees to return to work when and if work becomes available.

In addition to the increase in the amount of benefits paid, the Pandemic Emergency Unemployment Compensation program set forth in section 2107 of the CARES Act provides for an additional 13 weeks of state benefits after an individual has exhausted all regular state unemployment compensation benefits for total unemployment. Thus, individuals may be entitled to an additional 13 weeks of benefits beyond what their state ordinarily would offer.

Further, through the Pandemic Unemployment Assistance program in section 2102 of the CARES Act, federal unemployment assistance will be provided to workers who are otherwise ineligible for state unemployment benefits, including certain workers affected by COVID-19, along with other individuals who generally are not eligible for unemployment assistance, such as independent contractors, self-employed individuals and individuals with limited work histories.

Specifically, benefits under section 2102 of the Act are available for unemployed or eligible partially unemployed individuals who:

  • have been diagnosed with COVID-19 or are experiencing symptoms and seeking a diagnosis.
  • have a member of their household who has been diagnosed with COVID-19.
  • have a child who is unable to attend school because it is closed as a direct result of the COVID-19 public health emergency and care by the school is required for the individual to work.
  • are unable to reach work due to quarantine.
  • are unable to work because they have been advised by a health care worker to self-quarantine.
  • were scheduled to begin work but no longer have a job or are unable to reach work.
  • have become the head of household or breadwinner because the head of their household has died as a direct result of COVID–19.
  • are forced to quit their job as a direct result of COVID-19.
  • have their place of employment closed as a direct result of COVID-19.

Thus, the CARES Act expands on the Families First Coronavirus Response Act by providing salary relief to qualified individuals who become unemployed and to qualified individuals who are forced to remain at home due to a shutdown order imposed by many state and local governments closing all nonessential or nonlife-sustaining businesses. Individuals who meet one of the above definitions may submit a “self-certification” that they are unable to work due to the coronavirus outbreak. Despite this broad reach, however, the CARES Act does not cover individuals who are able to telework with pay or individuals who are receiving paid sick leave or other paid benefits, regardless of whether they meet any of the definitions for covered employees.

Further, in an effort to provide immediate compensation to eligible individuals, the CARES Act provides that the one-week waiting period normally applicable under most state unemployment compensation laws will be waived under the CARES Act. Moreover, the law builds on federal guidance issued earlier this month permitting significant flexibility for states to amend their unemployment insurance laws to provide unemployment benefits in multiple scenarios related to COVID-19 by directing states to provide “flexibility” with regard to the work-search requirement for individuals who are unable to search for work due to the COVID-19 pandemic. Many states had already responded by relaxing existing requirements; some have even implemented new rules (such as encouraging or requiring employers to file partial claims on behalf of their employees in the face of unprecedented demand).

The federal government also will temporarily provide full funding for states with workshare programs, thereby providing unemployment benefits to employees whose hours and pay have been reduced. Workshare programs allow employers to voluntarily enter into agreements with the state unemployment office to prevent layoffs by instead reducing employee hours.

The CARES Act also provides relief for employers in the form of loan forgiveness to incentivize employers to keep workers employed. Specifically, if employers maintain their payroll at levels compared to previous time periods (dependent on the size of the employer), the portion of the loan used to cover payroll costs, mortgage interest payments, rent and utilities will be forgiven.

Finally, section 2301 of the Act provides a refundable payroll tax credit for 50 percent of wages — up to $10,000 per employee — available to employers whose receipts decreased by more than 50 percent compared to 2019 or whose business operations were closed or partially closed due to the COVID-19 crisis. Again, the specifics of these benefits and the number of employees for which an employer may receive credit is subject to the size of the employer.

In sum, the multifaceted CARES Act should provide some much-needed relief to employees, as well as incentives to employers to keep employees working, or at least on the payroll, while employers continue to weather the COVID-19 storm.

Please visit the Pepper Hamilton LLP / Troutman Sanders LLP COVID-19 Resource Center for COVID-19 news and developments, recommendations from leading health organizations, and tools that businesses can use free of charge. Please reach out to members of the COVID-19 Task Force of Troutman Sanders and Pepper Hamilton, or an attorney with whom you work, for guidance about COVID-19.