09 Sep

August 2020 Federal HR Legal Updates

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DHS Extends Temporary COVID-19 Rule Allowing Certain H-2A Petitioners to Hire Certain Foreign Workers

What happened?
The Department of Homeland Security (DHS) has temporarily extended some of the provisions of the April 20, 2020 temporary final rule. On August 20, 2020, DHS published a new temporary final rule to extend the amendment that allows all H-2A petitioners with a valid temporary labor certification (TLC) to start employing certain foreign workers who are currently in the United States and in valid H-2A status.

What are the details?
The temporary final rule continues to allow non-E-Verify employers with properly filed H-2A extension of stay petitions to hire H-2A workers currently employed by a different company beginning on or after the date U.S. Citizenship and Immigration Services (USCIS) receives the extension of stay petition (as stated on the Form I-797 receipt notice), but no earlier than the start date of employment listed on the H-2A petition. The temporary rule applies if USCIS receives the new employer’s extension of stay H-2A petition on or after August 19, 2020, and no later than December 17, 2020.

What do employers need to do?
Under this temporary final rule, you, the new, non-E-Verify employer may employ the H-2A worker while the extension petition is pending, for a period not to exceed 45 days starting from the date of the receipt notice, or until USCIS denies your petition or you withdraw the petition, whichever comes first. Employers of H-2A workers continuing employment with the same employer or with a new employer that is enrolled in E-verify should continue to follow the current Form I-9 guidance provided in the Handbook for Employers (Section 6.6).

See additional details on your responsibilities and options here (USCIS H-2A Temporary Agricultural Workers page).

See the April 20, 2020 Temporary Final Rule here.

See the August 20, 2020 New Temporary Final Rule here.

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DOL Issues Guidance on Employers’ Obligation to Compensate Remote Workers

What happened?
On August 24, 2020, the Department of Labor (DOL) issued Field Assistance Bulletin (FAB) 2020-5 to clarify an employer’s obligation under the Fair Labor Standards Act (FLSA) to track the number of compensable hours worked by teleworking employees who are working remote or other employer-controlled premises. However, the DOL confirmed that the guidance applies to all telework or remote work arrangements, whether the remote work is in response to COVID-19 or for any another reason.

What are the details?
According to a FAB issued on August 24, 2020 by the Wage and Hour Division (WHD) of the DOL, the standard used by most courts for determining whether an employer should have known that its nonexempt employees were working outside of their regularly scheduled hours is “reasonable diligence.” Under this standard, the DOL asks what a reasonably diligent employer should have known, not what it could have known. As explained in the FAB, one way an employer may exercise “reasonable diligence” to learn about its employees’ unscheduled hours of work is by establishing a “reasonable process” for the employees to report those unscheduled work hours. If an employer has a reasonable process and the employee fails to use that process to report unscheduled hours worked, then the employer generally is not required to investigate further to uncover unreported hours. In other words, employers generally are not required to sort through or search other records in order to determine whether employees performed work outside of their regular work hours.

What do employers need to do?
An FAB is not binding precedent on any court and recognizes that the circumstances of particular situations may require different outcomes. Employers should develop a policy and process by which nonexempt employees working remote can report the hours they work beyond their regularly scheduled hours, and employers should not do anything to discourage the reporting of those extra hours.

When an employer has or should have actual knowledge that employees are working outside of their scheduled hours—as evidenced by work produced, communications, or other reports—it is the employer’s duty to compensate the employees for the hours worked. Employers with nonexempt employees working remote must be mindful of daily and/or weekly overtime requirements.

See the official Field Assistance Bulletin here.

See helpful articles that provide guidance here, here, and here.

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DOL Issues New Opinion Letters

What happened?
On August 31, 2020, the DOL WHD issued new opinion letters addressing a variety of topics.

What are the details?
FLSA2020-12: What are an employer’s obligations for reimbursing non-exempt drivers for business expenses related to the operation of the drivers’ personal vehicles, and how are those expenses calculated? FLSA2020-12 clarifies that employers are not required to calculate the actual expenses incurred by employees (although they may) but instead may use a “reasonable approximation” of the costs when the actual amount is unknown, such as when calculating the cost of depreciation for a percentage of a vehicle used for both business and personal reasons. Finally, whether an employer must consider fixed expenses, such as registration fees that the driver necessarily would incur even if the vehicle was not used for business purposes, will depend on whether the expense is incurred “primarily for the employer’s benefit.” However, employers need not make that determination on an individualized basis but rather may make such a determination applicable to all of the drivers at issue.

FLSA2020-13: Does either the “learned professional” exemption or the “highly compensated” exemption apply to highly educated employees who provide corporate management training? First, the DOL concludes that the trainers, who are required to possess at least a masters-level degree, likely satisfy the “duties” requirements of the exemption. However, because the employees were paid a daily rate for the work ($1,500 per day), the “salary basis” requirement is not satisfied (despite exceeding the minimum salary level requirement) because the trainers’ pay is not a pre-determined amount paid on a weekly, or less often, basis. Finally, the DOL concluded that these employees do not satisfy the “highly compensated” exemption (currently, at least $107,432 per year) because they worked only part-time and this exemption does not include a provision for prorating the salaries of part-time employees.

FLSA2020-14: May the Fluctuating Workweek (FWW) pay method be used even where employee hours fluctuate only above 40 hours, or must they fluctuate both above and below 40 hours per week? The DOL makes it clear that, notwithstanding the holdings of some district courts, the FWW pay method does not require that an employee’s hours fluctuate both above and below 40 on a regular basis.

Rather, the pay method requires only that those hours regularly fluctuate — even if that fluctuation occurs primarily, or even exclusively, above 40 hours per week.

What do employers need to do?
Review the opinion letters for further details:

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Remote I-9 Verification and E-Verify Temporary Policies Extended

What happened?
The Department of Homeland Security extended the temporary rules which allow remote verification of identification for the I-9 and E-Verify program.

What are the details?
Due to the COVID-19 pandemic, the DHS has extended flexibility for employers and workplaces who are working remotely for an additional 30 days, until September 19, 2020.

What do employers need to do?
If still working remotely, employers may remotely verify I-9 identification forms. However, if employers have returned to in-person work, the verification must be completed as normal.

A press release of the original order can be found here.

The most recent extension announcement can be found here.

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Form I-9 Verification During EAD Production Delays Due to COVID-19

What happened?
Due to extensive delays in the production and issuance of Employment Authorization Documents (Form I-766)(EADs) by the USCIS, the agency announced that employees may temporarily use Form I-797 Approval Notices for EADs as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization.

What are the details?
The Form I-797 Approval Notices must have been issued from December 1, 2019, through August 20, 2020. Employees may present their Form I-797 Approval Notice until December 1, 2020, and must also present their employer with an acceptable List B document that establishes identity. Current employees who require re-verification can present this Form I-797 Approval Notice as proof of employment authorization under List C.

By December 1, 2020, the employer must re-verify employees who presented the Form I-797 Approval Notice as employment verification. These employees will need to present their employers with new evidence of employment authorization from either List A or List C. Employers should note that it is the employee’s choice whether to present the EAD or another document from either List A or List C.

The full announcement can be found here.

What do employers need to do?
Employers may utilize the alternative documents as needed. Employers should make note of each employee who needs to use Form I-797 for verification at a later date.

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OSHA Updates COVID-19 FAQ

What happened?
The Occupational Safety and Health Administration (OSHA) has updated their FAQ regarding COVID-19.

What are the details?
A noticeable change is the language used for the question, ”Are employers required to provide cloth face coverings to workers? OSHA now “encourage(s)” employers to urge their employees to wear face coverings. Previously, OSHA had stopped short of urging employers to mandate masks, instead of writing that employees “may choose to wear face coverings as a means of source control.” This new recommendation is consistent with the guidance from the Centers for Disease Control and Prevention that face coverings should be worn in all public places. It is intended to protect employees from exposure to the coronavirus carried by pre-symptomatic or asymptomatic persons who are still at work because they do not yet know they are infected.

However, OSHA points out that masks do not supersede physical distancing or personal protective equipment (PPE) protocols that might already exist, as these practices are generally more effective than mask-wearing to prevent the spread of the virus.

The full FAQ can be found here.

What do employers need to do?
Employers should be aware that business-related entities may be moving towards more mask-oriented guidance. No action needed at this time.

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DOL Issues New FMLA Forms

What happened?
The DOL has issued new, revised model Family and Medical Leave Act (FMLA) forms and notices. The new FMLA forms and notices are intended to be more streamlined and convenient, and include more explanatory language on various FMLA rights and requirements.

What are the details?
Some examples of the new explanatory language, the Rights and Responsibilities Notice adds information on the substitution of paid leave, the medical certifications of a serious health condition define the term “serious health condition,” and the Eligibility Notice defines the terms “spouse,” “child,” and “parent.” Further, the forms may now be signed with an electronic signature.

As the new FMLA forms are optional and no specific form or format is required, employers may continue to use prior FMLA forms. Employers may not require new employee certifications using the new forms where certification has already been provided unless recertification is otherwise required. There is no new FMLA employee notice issued that employers must post.

The new forms and their links are listed below:

What do employers need to do?
These new forms are not mandatory to use. Employers may continue using their old forms, though it is recommended to move to the new forms as they are meant to help the process along.

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DOL Updates COVID-19 FAQ with School Closure-Related Leave Questions

What happened?
On August 27, 2020, the DOL updated their comprehensive FAQ regarding COVID-19, including new questions about school closures and how they relate to leave.

What are the details?
The new updated FAQ Includes three questions and answers regarding school closure-related leave. Here is an example of one of the questions:

Q. My child’s school is operating on an alternate-day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?

A. Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

Note: The above Q&A confirms that employees can take FFCRA to leave intermittently based on their child’s school scheduling policies.

The full FAQs can be found here. The new questions are 98-100.

What do employers need to do?
If employers have many employees with children, it can be very useful to read these new questions. These are questions employees are likely to ask at some point.

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DOL Provides Guidance Through FAQ for Certain Federal Contractors on FFCRA Leave

What happened?
On August 3, 2020, the Department of Labor (DOL) provided a new FAQ for federal contractors who fall under the McNamara-O’Hara Service Contract Act (SCA) and the Davis-Bacon Act.

What are the details?
Both the SCA and the Davis-Bacon Act set wage rates for employees and require covered employers to either provide fringe benefits, e.g., health insurance and paid sick leave, or pay the employee a cash equivalent. The FAQs clarify what employers covered by either of these laws must pay when employees take leave under the FFCRA, using either Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFML).

The Full FAQ can be found here.

What do employers need to do?
Contractors should confirm that their pay and fringe benefit practices during the FFCRA leaves comply with the most recent guidance (the FAQ as of September 4, 2020).

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OFCCP VEVRAA-Focused Review Resources for Contractors

What happened?
The Office of Federal Contract Compliance Programs (OFCCP) has started scheduling the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) focused reviews.

What are the details?
OFCCP’s VEVRAA focused review landing page is a centralized location for information, resources, and helpful tools for contractors seeking to learn more about the review process. On the landing page, contractors can find information on the focused review directive, the VEVRAA scheduling letter and compliance assistance resources.

Contractors should also consider the provided VEVRAA best practices. Contractors will find an array of resources, including information on creating affinity groups, understanding the range of health issues that veterans face, and developing relationships with veterans’ organizations.

OFCCP has also provided a FAQ for contractors to reference.

The OFCCP’s VEVRAA-focused review landing page can be found here.

The OFCCP’s focused review directive can be found here.

The VEVRAA scheduling letter can be found here.

The OFCCP’s VEVRAA compliance assistance resources can be found here.

The OFCCP’s VEVRAA best practices can be found here.

The OFCCP’s FAQ about the VEVRAA can be found here.

What do employers need to do?
Federal contractors working with the VEVRAA should review the above resources to ensure workplace compliance.

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VETS-4212 Reporting Opened August 1, 2020

What happened?
The 2020 DOL Veteran’s Employment and Training Services (VETS) filing season has begun on August 1, 2020.

What are the details?
Federal contractors and subcontractors must submit the VETS-4212 report annually with the number of employees in their workforces who are veterans covered under VEVRAA. All non-exempt federal contractors and subcontractors with a contract or subcontract in the amount of $150,000 or more with any U.S. department or agency for the procurement of personal property or non-personal services must comply with the reporting requirement. Although employers can file the VETS-4212 either electronically or using the paper form, the DOL strongly recommends submitting reports electronically as “processing of mailed VETS-4212 reports may be delayed due to COVID-19-related social distancing measures.”

Employers may submit their files at this webpage.

What do employers need to do?
Employers working under federal contracts must submit this report every year. Federal contractors should review the above information to determine if they need to file this year.

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