On August 3, 2020, the U.S. District Court for the Southern District of New York struck down four parts of the regulations issued by the U.S. Department of Labor (DOL) implementing the Families First Coronavirus Response Act (FFCRA). As a result of the decision: Continue Reading Federal Court Decision Changes How Employers Must Implement Families First Coronavirus Response Act
Employers’ Continued Use of Return-to-Work COVID-19 Testing Protocols Brought into Question
Until late July, the CDC offered a test-based or symptom-based strategy to govern the timing of “discontinuing isolation” for a person known or suspected to be infected with COVID-19. In an abrupt change in guidance, the CDC announced a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances. The CDC now recommends following only a modified symptom-based strategy, which means: Continue Reading COVID-19 Testing No Longer Generally Recommended for Discontinuing Isolation, CDC Says
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.
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
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:
- 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
- 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.