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30 Oct

October 2020 Federal HR Updates

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Trump Administration Announces Interim Final Rules for H-1B Visa Changes

What happened?
Per guidance by the Trump administration, the Department of Homeland Security (DHS) and the Department of Labor (DOL) have issued interim final rules for H-1B visas.

What are the details?  
The DOL and DHS have now both released final interim rules for the H-1B visa changes.

The DOL final interim rules will require a business sponsoring a H-1B visa to first obtain a Labor Condition Application (LCA) from the DOL prior to submitting a petition to U.S. Citizenship and Immigration Services (USCIS). In relation to the LCA, the employer will need to make statements about the wages and working conditions of the foreign workers. The business must then also designate a prevailing wage that they will be paying the worker. The prevailing wage for that occupation will be provided by the DOL. The prevailing wage will act as a minimum wage, in which employers may pay more than the prevailing wage if they wish. The DOL’s rules will not apply to H-1B visas that are already issued and will only apply once those workers with existing visas re-apply, or to new visas before being issued. This rule is set to be effective as of October 8, 2020.

The DHS final interim rule will do several things. It will narrow the definition and standards for specialty occupations. It will impose strict restrictions aimed at workers placed by third-party placement petitions. The rule limits the validity of third-party placement petitions to one year, as opposed to the previous allowed maximum of three years. It will also grant USCIS the authority to conduct site visits, including the ability to interview employees, and the authority to revoke petitions for perceived failure to cooperate. This rule will be effective on December 7, 2020, which is 60 days after the rule was published in the federal register (October 8, 2020).

The DOL’s final interim rule can be found here.

The DHS’s final interim rule can be found here.

An article covering these rules can also be found here.

What do employers need to do?  
Employers utilizing H-1B visas should work with their immigration attorney to determine if they will need to make any changes to their workplace or hiring policies.

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What Options Do Employers and Employees Have as Emergency Leave Runs Out?

What happened?
As the pandemic continues, emergency paid sick leave (EPSL) is beginning to run out for employees, creating an issue for many employees who have kids. Many schools across the country have not re-opened, leaving many parents and employers wondering what options they have.

What are the details?
As EPSL is running out for parents across the country, employees and employers will begin to feel the strain. Some suggested alternatives employers and employees can look at are:

  • Using the interactive process as if the situation were a disability claim, working with the employee to establish how best to accommodate the short-term situation.
  • Utilize other company policies, like vacation and other forms of paid time off provided to employees.
  • Utilize local state laws like mandatory paid sick leave programs, or mandatory paid leave programs.
    • The states of Arizona, California, Massachusetts, Michigan, and New Jersey have general paid leave laws that cover school closure leaves for employees. 

It has been advised by the DOL for employers to “review their leave policies to consider providing increased flexibility to their employees and their families.

An article covering the options of employers and employees in more detail can be found here.

What do employers need to do?
Employers should try to stay flexible when it comes to leave, as there are no specific guidelines on what they should do. Consulting with an employment attorney when they are unsure and giving the benefit of the doubt to employees will help reduce the potential of litigation.

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Updated COVID-19 OSHA Reporting Guidance

What happened?
On October 1, 2020, OSHA updated their FAQ regarding COVID-19 reporting.

What are the details?  
OSHA updated their FAQ again regarding the reporting of COVID-19 as a work-related illness or injury. In the newest FAQ, OSHA has established that “an exposure to SARS-CoV-2 in the workplace” Is a work-related incident. However, it should be noted that federal OSHA FAQs are not formal guidance. Currently, due to absence of other forms of guidance, it is the best bet for employers wishing to stay within compliance of the OSHA reporting standards. Employers will need to be wary of their local reporting requirements created by state OSHA programs. Namely California, New Mexico, and Virginia have taken distinct stances on COVID-19 reporting standards.

California does not require that the COVID-19 case be confirmed with a test before reporting. Cal/OSHA also, generally speaking, does not require employers to have proof that the COVID-19 case was contracted at work for the employer to report the case. 

New Mexico OSHA will require that the employee test positive for COVID-19 before requiring a report. It also does not require the case to be tied to work relatedness to be reported. Additionally, it does require that a report be filled within four hours of an employer knowing of the positive test.

Virginia OSHA requires that the employee test positive for COVID-19 and also that the case can be determined to be work-related. Cluster outbreaks of cases, considered to be three or more employees present at the workplace within a 14-day period who have tested positive for COVID-19, are to be reported as well.

The updated OSHA FAQ can be found here.

An article covering the updates to the OSHA FAQ and providing the guidance on state reporting can be found here.

What do employers need to do?  
Employers should review their workplace policies and ensure they are following the OSHA FAQ’s guidelines on reporting for COVID-19 cases. 

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SBA Issues New FAQ About PPP Loan Forgiveness

What happened?
On October 12, 2020, the Small Business Administration (SBA) published a new set of answers to frequently asked questions.

What are the details?
The new FAQ can be found here.

What do employers need to do?
Employers who utilized the PPP Program and have questions related to loan forgiveness should review the FAQ. 

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OFCCP Requests Information on Federal Contractor Workplace Training 

What happened?
On October 22, 2020, the Office of Federal Contract Compliance Programs (OFCCP) published a request in the Federal Register for federal contractors to provide their workplace training material that involves race or sex stereotyping or scapegoating.

What are the details?  
In the wake of President Trump’s Executive Order 13950 “Combating Race and Sex Stereotyping,” the OFCCP is seeking training information from federal contractors, subcontractors, and their employees from their training materials, workshops, or similar programming that has to do with diversity and inclusion. This request is for the OFCCP to better enforce the executive order. Companies that comply with the information request will be provided compliance assistance by the OFCCP. This can be advantageous for employers who are unsure of how to proceed in the wake of the executive order and are worried that they may be out of compliance, as the OFCCP will not be enforcing compliance issues, regarding the executive order, while assisting companies who are part of this request. The request will be open to submissions until December 1, 2020.

The official request for information can be found in the Federal Register, located here.

What do employers need to do?  
Federal contractors and subcontractors should submit the relevant information they have available to the OFCCP to receive assistance from the enforcement body, without recourse. This is an excellent opportunity for employers that can take advantage of it.

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EEOC Revises Language in Dismissal Letters

What happened?
On October 15, 2020, the Equal Employment Opportunity Commission (EEOC) published a final rule amending its procedural regulations regarding the closing of investigations and issuance of their Dismissal and Notice of Rights correspondence.

What are the details?  
The changes will be effective on November 16, 2020. The main focus of the rule is a changing in the verbiage used in the EEOC’s Dismissal and Notice of Rights correspondence. This notice is issued at the conclusion of an EEOC investigation that does not result in charges being pressed against the employer. However, the notice beforehand was seen to be indicative of a lack of wrongdoing by the employer. The updated notice now contains language to specifically outline the fact that the EEOC is not supporting the idea that if they cannot find wrongdoing, then it has not occurred. Instead, the conclusion of the investigation simply means that they will make “no determination about whether further investigation would establish violations of the statutes. This does not mean the claims have no merit.”

The rule also touches on the delegation of authority to investigators to issue dismissal notices. The EEOC has advised in the final rule that investigators who have the authority to issue dismissal notices will have requisite experience and guidance. This was mentioned due to previous concerns that investigators may dismiss investigations that would have otherwise been charged had the investigator been a more senior official. Additionally, the regulation allows the Dismissal and Notice of Rights to be distributed electronically. This had already been done as a standard practice but is now in the regulations. This may be part of the EEOC’s attempts to increase transparency.

The full text of the regulation in the Federal Register can be found here.

An article summarizing the regulations can be found here.

What do employers need to do?  
Employers should take note of the regulation changes in case they are to ever be investigated by the EEOC.

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EEOC Issues New Rule Regarding Voluntary Dispute Resolution Process

What happened?
On October 8, 2020, the EEOC released new rules regarding the conciliation process that takes place before the EEOC files suit on behalf of the employee.

What are the details?
In the standard procedure of the EEOC they encourage employers and employees to come to a voluntary agreement. During this conciliation period the EEOC will stand back. Only once this process has failed will the EEOC intervene with a lawsuit on behalf of the employee. This new regulation will require the EEOC to provide employers with “a written summary of the known facts,” among other information that will better inform the employer on the findings of the case. The goal is to further increase the amount of cases that are resolved in the conciliation period, instead of going to court.

The full regulation can be read here.

An article going more in-depth on the changes to this regulation can be found here.

What do employers need to do?
Employers should be aware of this requirement, should they be a part of an EEOC investigation.

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ICE Posts Guidance Related to Virtual I-9 Process

What happened?
Recently, U.S. Immigration and Customs Enforcement (ICE) provided a new hidden FAQ (not posted through their normal channels) dealing with virtual Form I-9 questions.

What are the details?
The provided FAQ answers two questions that employers who have been using virtual I-9 verification will likely have asked:

Q: What if the Employment Authorization (EA) documents used during the remote hire have expired or are lost?

A: If the employee is presenting the same EA documents and they were valid at the time of hire, no additional documentation other than the updating of the “additional comments” field is required.

If the documents are lost or unavailable, have the employee fill out a new Form I-9 and present any combination of a valid List A or List B and C documents. Complete the Form I-9 as usual and use the same hire date as the remote hire, attach this Form I-9 to the remote hire Form I-9 with a note indicating that the original documents were unavailable.

Q: What if the person who examined the EA documents is not available to conduct the physical inspection?

A: Have the employer representative who is conducting the physical inspection complete a new second page (Section 2) of the Form I-9 and attach that to the (complete) remote inspection Form I-9. Any government audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only. If an employee is currently physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. Additionally, employers may designate an authorized representative to act on their behalf to complete Section 2. An authorized representative can be any person the employer designates to complete and sign Form I-9 on their behalf. The employer is liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on the employer’s behalf.

The FAQ can be found here.

What do employers need to do?
Employers using remote Form I-9 Verification should review the above information and adjust their hiring policies to prepare for the eventual restoration of “normal operations.”

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SEC Announces Human Capital Disclosure Requirement

What happened?
The Securities Exchange Commission (SEC) has announced a new human capital disclosure requirement for public companies to modernize their reporting standards.

What are the details?
On August 26, 2020, the SEC adopted amendments to Regulation S-K, which sets forth nonfinancial reporting requirements applicable to registration statements, proxy statements, and other periodic filings. As a result, companies will now be required to disclose additional information about their human capital resources, and resource objectives. Specifically, companies must disclose:

“A description of the registrant’s human capital resources, including the number of persons employed by the registrant, and any human capital measures or objectives that the registrant focuses on in managing the business (such as, depending on the nature of the registrant’s business and workforce, measures or objectives that address the development, attraction and retention of personnel).”

The SEC announcement of these changes can be found here.

What do employers need to do?
Publicly traded companies should update their reporting practices as soon as possible to come into compliance with this reporting rule.

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SEC Adopts Amendments to Whistleblower Program Rules

What happened?
The Securities Exchange Commission (SEC) has adopted new rules regarding their whistleblower program.

What are the details?
Effective as of September 23, 2020, the SEC has adopted new rules governing its whistleblower program. The goal of the amendments is to give more money to whistleblowers, and faster. These new rules will specifically touch on the whistleblower rewards, definition, and a new process for the SEC to handle frivolous award applications.

An article going more in depth on the new rules can be found here.

The press release by the SEC for the new rules can be found here.

What do employers need to do?
Publicly traded employers should read the article mentioned above to stay up to date on SEC rules and regulations.

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CDC Expands Procedure of Identifying Close Contact for COVID-19 Tracking Purposes 

What happened?
On October 21, 2020, the Centers for Disease Control and Prevention (CDC) issued new guidance that changed the procedures for identifying individuals who are in “close contact” with each other for contact tracing purposes.

What are the details?
Previously, the definition was any individual who was within six feet of an infected individual for 15 minutes or more, within 48 hours prior to the sick individual showing symptoms (or, for asymptomatic individuals, two days prior to test specimen collection). The new guidance now considers close contact for individuals to be: If an individual is within six feet of an infected individual for a total of 15 minutes or more over a 24-hour period during the 48 hours before the infected individual exhibited symptoms or, if asymptomatic, 48 hours before the COVID-19 test was administered, even if the interactions that lead to a cumulative total of 15 minutes were brief and spread out over that time.

Additionally, the CDC provided some other factors to consider when determining “close contact,” such as:

  • Proximity
  • Duration
  • Symptomatic/Asymptomatic
  • Respiratory Aerosols
  • Environmental Factors

An article covering this change can be found here.

This information can be found on the CDC website, located here.

What do employers need to do?
Employers should update their workplace policy of contact tracing to account for the increased chance of “close contact” situations around the workplace.

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Multi-State Minimum Wage Updates

Washington: From $12.00 an hour to $13.69 an hour. Effective January 1, 2021.

Seattle, WA: Rideshare Drivers Only. $0.56 per minute and $1.33 per mile driven with passengers. Effective January 1, 2021.

Florida: From $8.46 an hour to $8.65 an hour. Effective January 1, 2021.

Ohio: From $8.55 an hour to $8.80 an hour. Effective January 1, 2021.

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