President-Elect Joseph Biden has not named a nominee for Secretary of Labor yet, much less an Assistant Secretary of Labor for Occupational Safety and Health who would lead the Occupational Safety and Health Administration (OSHA). But individuals with a background in organized labor may be forerunners. He has promised to be “the most pro-union president you have ever seen” and that “unions are going to have increased power” in his administration.

To read the article in its entirety, click here.

U.S. Citizenship and Immigration Services (USCIS) has issued an alert on delays in processing receipt notices due to the surges in petition filings at lockbox facilities because of the COVID-19 pandemic and the agency’s “flexibility” in response.

Due to the COVID-19 pandemic, many foreign nationals continue to be stuck and unable to leave the United States at the conclusion of their approved stays – either because of their home country travel restrictions, flight restrictions, or the rising COVID-19 cases abroad.  USCIS has suggested that those who unexpectedly have to remain in the United States beyond their authorized stay apply for an extension or change of status on a Form I-539 application. Individuals who timely file (prior to their expiration date) will not accrue unlawful presence. For many, just preparing a filing could be delayed because of lockdowns, illness, and other circumstances related to remote work. USCIS has excused delays that are due to extraordinary circumstances beyond the applicant’s control, including some caused by COVID-19. USCIS may use its discretion to excuse a delay on a case-by-case basis if the request is accompanied by credible evidence that the delay was beyond the applicant’s control and that it was commensurate with the circumstances.

Given the continuation of the pandemic and USCIS’ “flexibility,” it is not surprising that requests for extensions of stay have been soaring during the pandemic. In May 2020 alone, USCIS received 67,000 Form I-539 requests – four times the usual monthly average, with the B-2 Visitor category leading the way. There was a 500% increase in May 2020 compared to May 2019. May 2020 also saw a 100% increase in change of status requests from the previous year – from 4,000 to 8,000. Similarly, online filings increased as individuals struggled to avoid paper filings that would require services that might not be readily available – paper supplies, printing, and mailing.

In the meantime, the increase in filings may have exacerbated the “crisis level” delays and backlogs at USCIS. Between 2014 and 2019, overall case processing time rose by almost 100%. Currently, extension of stay and change of status requests can take from 4 months to 22 months to process. USCIS has been given the authority to institute premium processing for Form I-539 applications (as well as other petitions and applications), but that has yet to be implemented.

The way out of this situation, immigration advocacy groups have suggested, is more Congressional oversight and termination of new policies that are creating delays.

If you have any questions or need assistance regarding new rule changes or USCIS flexibility, please reach out to your Jackson Lewis attorney.

In mid-November, as cases continued to rise, the California Department of Public Health issued a “travel advisory” which recommended quarantining for those who returned to the state from other states or countries. The advisory distinguished between “non-essential travel” such as tourism and “essential travel” such as for work, study, economic services, immediate medical care, or health and safety.

Before the state advisory, the County of Santa Clara issued an order which required all person traveling into Santa Clara County from a point of origin 150 miles from the County border to quarantine for 10 days after arrival. The County had exemptions from the quarantine requirements for licensed healthcare professionals, persons traveling to perform essential governmental functions, or those working for essential critical infrastructure work.

San Francisco also issued a travel quarantine order, which requires anyone who in the 10 days before arriving in San Francisco spent any time outside of the 10 Bay Area counties (San Francisco, San Mateo, Santa Clara, Alameda, Contra Costa, Solano, Sonoma, Napa, Marin, and Santa Cruz) to quarantine for 10 days, including residents. Similar to Santa Clara, San Francisco exempts healthcare professionals, employees of essential infrastructure who are traveling for work, or employees of an essential business who must return to work due to a lack of staffing.

Most recently, the County of Los Angeles issued a travel quarantine order, which requires that those traveling outside the Southern California Region (Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura) quarantine for 10 days after arrival. Like San Francisco and Santa Clara, certain types of employees such as licensed healthcare professionals and those commuting for work for essential infrastructure may be exempt from the order. Also exempted from the Los Angeles County order are professional or collegiate sports teams and team staff; personnel of a film or media production traveling for work.

Employers should be aware of the quarantine and travel quarantine orders applicable to their employees and consider whether there is a supplemental paid sick leave requirement for an employee who needs to quarantine.

Jackson Lewis will continue to monitor state and local orders pertaining to COVID-19. If you have questions about these or other health orders, contact a Jackson Lewis attorney to discuss.

Major League Soccer (MLS) has informed the MLS Players Association that it intends to exercise the force majeure clause that was recently added to the parties’ collective bargaining agreement (CBA) to negotiate additional contract modifications in good faith for 30 days. If a new agreement is not reached during the 30 day period, the league will be permitted to consider terminating the current agreement and initiating a lockout of its players.

Following the league’s notification to the MLS Players Association, the union responded by strongly criticizing the league’s decision to exercise the force majeure clause. Echoing MLS Players Association Executive Director Bob Fosse’s statement from earlier this month that the league’s decision to exercise the force majeure clause “would be a mistake,” the union issued the following strongly word statement:

After a 2020 season of extreme sacrifice, immeasurable risk to personal health, and a remarkable league-wide effort to successfully return to play, this tone-deaf action by the league discredits the previous sacrifices made by players and the enormous challenges they overcame in 2020.

MLS and its players association had reached an agreement in principle on the terms of a new collective bargaining agreement on January 31, 2020. However, the five year agreement which was negotiated between the parties and scheduled to run through the 2025 season was never ratified as a result of the COVID-19 pandemic.

Lacking formal ratification, MLS was able to reach agreement on a renegotiated CBA with the MLS Players Association in June. The renegotiated agreement included substantial economic concessions from the union following a near three month COVID-19 delay to the start of the 2020 season. While the agreement that was originally negotiated between the parties included more liberal free agency rights for the league’s players and drastic increases in minimum salary levels for veteran players, the modified CBA delayed the effective date of those modifications.

According to Executive Director Fosse, the modified CBA provided player economic concessions in excess of $100 million, including a 5% reduction in player wages, in addition to a $5 million cap on performance and individual bonuses.

The alterations to the CBA also involved the introduction for the first time of a force majeure clause, which allowed MLS to opt out of the revised agreement in the event of a catastrophic event, such as the continuation of the pandemic or its reoccurrence.

While MLS reportedly attempted to negotiate a force majeure escape provision based upon specific attendance numbers in the event of a second wave of COVID-19, the players refused to agree to any type of attendance language in the clause. Rather, the final version, agreed upon by the parties, allowed the league to potentially opt out of  the contract with 30 days’ notice if an event made the CBA economically unfeasible.

According to published reports, the force majeure clause specifically authorizes MLS to terminate the CBA with 30 days’ notice “if an event or condition makes it impossible for the league to perform its obligations under the CBA, frustrates the underlying purpose of the CBA or makes the CBA economically impracticable.”

The league now seeks to utilize the force majeure clause to conduct further negotiations with its players union and to seek additional concessions to lower costs as the financial realities of the pandemic continue to impact the league. While projected financial losses for the 2021 season have not been released, MLS Commissioner Don Garber has reported that MLS lost nearly $1 billion in revenue in 2020.

While the parties begin plans to initiate another round of negotiations for the third time in less than a year, the ongoing economic impact of COVID-19 and the anticipated restrictions on attendance at sporting events, such as professional soccer, will continue to have a drastic financial impact on MLS and other professional sports leagues well into 2021.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the economic impact of COVID-19 throughout professional and collegiate sports. We will also closely follow the ongoing MLS collective bargaining issues arising from the league’s exercising of the force majeure clause in the CBA. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

The Consolidated Appropriations Act, 2021, generally provides the annual funding for the federal government and, in almost 5,600 pages, contains several important rules giving further COVID-19 relief, including the expansion of eligibility for the Paycheck Protection Program (PPP) and the Employee Retention Tax Credit.

The Act also relaxes several health, welfare, and retirement plan rules in light of the on-going COVID-19 pandemic and eases the financial impact of other pandemic-caused employment changes.  More

The Consolidated Appropriations Act, 2021 generally provides the annual funding for the federal government and also contains several important rules giving further COVID-19 relief. The comprehensive relief package funds certain hard-hit industries, expands eligibility for the Paycheck Protection Program (PPP), and extends and expands the Employee Retention Tax Credit.

The Act also relaxes several normally rigid health, welfare, and retirement plan rules in light of the on-going COVID-19 pandemic, easing the financial impact of pandemic-caused employment changes, while instituting new rules related to surprise medical billing.

The Act was approved by Congress on December 21, 2020, and signed into law by President Donald Trump on December 27, 2020.  More

The Consolidated Appropriations Act, 2021 (Act) generally provides the annual funding for the federal government and contains several important rules giving further COVID-19 relief. These include, among other things, revisions to the Paycheck Protection Program (PPP), expansion of the employee retention tax credit, and changes to other employer-related tax provisions.

The Act was passed by Congress on December 21, 2020, and signed by President Donald Trump on December 27, 2020.  More

Since it was issued in September 2020, Executive Order 13950 – Combatting Race and Sex Stereotyping has been a source of controversy and criticism.  Speculation as to the fate of the Executive Order in the future Biden/Harris administration has accelerated in recent weeks with talks of rescission and legal challenges.  While we await the ultimate fate of the Order, a federal district court entered a nationwide preliminary injunction stopping the administration from enforcing Executive Order (EO) 13950. Santa Cruz Lesbian and Gay Cmty. Ctr., et al. v. Trump, No. 5:20-cv-07741-BLF (N.D. Cal. Dec. 23, 2020).

As a reminder, EO 13950 prohibits federal contractors and subcontractors from using “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating,” including a list of “divisive concepts.”  The district court ruled that the EO violates the Free Speech Clause of the First Amendment “because it impermissibly chills the exercise of the Plaintiffs’ constitutionally protected speech, based on the content and viewpoint of their speech.” The court also ruled that parts of the EO are so vague that they violate the Fifth Amendment Due Process Clause because

“it is impossible for Plaintiffs to determine what conduct is prohibited.”

The Office of Federal Contract Compliance Programs (OFCCP) has taken action to enforce the EO through the advent of a hotline to accept complaints and also issued a voluntary information collection.  While the court order is preliminary in nature and may be reversed, for now, OFCCP and other federal government agencies may not enforce the EO.

For more information on this development, check out our Article detailing today’s order.

In April of this year, which seems far longer than eight months ago, we posted about an alert from federal agencies warning that cyber threat actors were exploiting the coronavirus pandemic to fuel phishing and other attacks. Those efforts have continued throughout the year with attackers now retooling their messaging around the COVID-19 vaccine. Criminal threat actors know millions are clamoring for information about the vaccine and are working to meet that demand with false information, largely through phishing attacks.

According to an alert from the New Jersey Cybersecurity & Communications Integration Cell (NJCCIC):

COVID-19 vaccine-themed phishing emails may include subject lines that make reference to vaccine registration, information about vaccine coverage, locations to receive the vaccine, ways to reserve a vaccine, and vaccine requirements.

For business and/or personal reasons, millions are clamoring for vaccination information and may let their guard down when they see it. In the process, they may divulge sensitive or financial information, or open malicious links or attachments. Phishing campaigns may employ brand spoofing and impersonate well-known and trusted entities, such as government agencies playing a central and critical role in the response to COVID-19 and the vaccination rollout. Messages such as the one below, for example, can lure an individual to want to participate and provide helpful information.

Other forms of attack target individuals who want a vaccine with advertisements for supposed “legitimate” vaccines, but which are nothing of the sort.  Organizations such as New Jersey’s Office of Homeland Security and Preparedness are working to get accurate information about COVID-19 to the public, such as through its Rumor Control and Disinformation web page. However, having accurate information available may not do enough to foil these attacks.

Organizations may not be able to prevent all attacks, but there are steps they could take to minimize the chance and impact of a successful attack, and to be prepared to respond. Among those steps is the critical need to maintain a level of security awareness, in addition to training. Annual trainings are a start, but may not be enough to keep up with nimble threat actors who deftly reshape their messaging and methods to improve their chances of success. They take in developments around the world and adapting on a far more frequent basis than annually.

Employees should be trained to recognize phishing attacks and dangerous sites, and instructed not to reveal personal, financial or other confidential information about themselves, other employees, customers, and the company. However, ongoing reminders about the morphing nature of these kinds of attacks can be instrumental in preventing them. Considering the past year and the more recent rise in COVID-19 cases, it is easy to understand how compelling information about a vaccine can be, so much so that it may be easy to forget the warnings given during that annual training on an early Monday morning in February.

On July 15, 2020, Virginia became the first state in the nation to promulgate an Emergency Temporary Standard to address COVID-19 in workplaces. Even with vaccine deliveries on the way, Virginia has proposed a Permanent Standard for consideration by the Virginia Safety and Health Codes Board (which includes author Courtney Malveaux).

To read the article in its entirety, click here.