Under the Washington COVID-19 Food Production Workers Paid Leave Program, no food production employer in Washington may operate from August 18, 2020, to November 13, 2020, unless the employer provides its workers with paid leave for certain qualifying events.

The Program was created by Governor Jay Inslee under Proclamation 20-67.

Read the full article here. 

Read about a similar leave created in California on Jackson Lewis California Workplace Law Blog

ICE has announced it is extending the remote virtual verification option for completion of I-9 employment verification an additional 30 days, until September 19, 2020, due to continued precautions related to the COVID-19 pandemic.

Pursuant to the original guidelines for virtual verification, eligible employers may continue to inspect Section 2 documents without an actual in-person physical inspection (e.g., over video link, fax, or email). As before, the policy applies only to employers and workplaces that are in fact operating remotely. The latest announcement states that if any employees are physically present at the worksite, in-person physical inspection of the I-9 documentation must occur. In past announcements, however, ICE has indicated that it would use a case-by-case analysis to determine if the virtual I-9 review was reasonable. After all, can the employer do I-9s in person if Human Resources staff are not on site or if the new employees must work remotely because they are high risk for COVID-19? Of course, employers maintain the option of using agents or authorized representatives to review I-9 documentation at remote locations.

Importantly, all employees who were onboarded virtually must report within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) from the date the government policy ends.

Jackson Lewis attorneys are available to assist you in creating “best practices” regarding I-9 compliance.

In March 2020, many employers suddenly found themselves managing a mostly remote workforce due to COVID-19. As the pandemic stretches on, some businesses remain remote because of necessity, while others are considering the many advantages of a remote workforce.

As employees continue teleworking, employers should familiarize themselves with the requirements for reimbursement under California law.

California Labor Code section 2802 requires employers to reimburse employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” Before the pandemic, business expenses were usually limited to costs such as business travel or personal car mileage because workforces were operating within offices. Now, employers must consider an expanded view of business expenses as employees remain at home.

For example, prior California court decisions have concluded employers must reimburse for portions of an employee’s cell phone use when the employee uses their cell phone for work. The Department of Industrial Relations (“DIR”) reiterated this requirement in its recent guidance related to reopening. These types of reimbursements include personal use of devices and even home internet.

However, reimbursement may not be required when an employer provides devices to employees, even if the employee ultimately elects to use their own personal device.

The complicated question is, “how much reimbursement should be provided for the use of home internet or personal cell phones?” Unfortunately, unlike the IRS guidance on mileage, no similar measure exists for the use of technology. The statute and courts only indicate a reasonable reimbursement is required. As a result, employers should assess the amount of time employees will be using personal devices and internet service to determine what is reasonable.

Finally, employers should consider developing policies for the use of personal devices for work and reimbursements.

If you need assistance with ensuring compliance with remote work statutes or developing policies to manage a remote workforce, please contact a Jackson Lewis attorney to discuss.

The “Aligning Federal Contracting and Hiring Practices With the Interests of American Workers” Executive Order directs federal departments and agencies to conduct audits of federal contracts awarded in Fiscal Years 2018 and 2019 to determine if U.S. job opportunities or the economy have been adversely affected by the use of temporary foreign workers in the U.S. or abroad.  See our full update here.

 

The Department of State (DOS) has provided more details to the Consulates on the national interest exemption under President Donald Trump’s June 22, 2020, executive order.

The “Presidential Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” bars holders of certain visas from entering the U.S. not due to concerns about contagion, but ostensibly as a way to preserve jobs for Americans. The order restricts the entry of certain H-1B, H-2B, L-1, and J-1 nonimmigrants, along with their dependents until the end of 2020.

Unemployment has increased dramatically in the United States, from a low of 3.2% in February 2020, to a high of over 14% two months later. Unemployment has continued to decline in the following months as companies bring back employees to get their businesses moving again. Many businesses have been hampered in their efforts to return to full operations by the inability of critical employees, many with very specialized skills and training who are not citizens of the U.S., to enter the country for work.

Several exceptions were listed in the proclamation, but interpretations as to how to qualify varied. DOS has provided the Consulates details on the national interest exceptions for H and L visas. The details are focused on healthcare and medical research needs (both COVID-19 and non-COVID-19), including whether the applicant was facilitating continued economic recovery and doing essential work in critical infrastructure. Longevity with the employer and whether denial of the visa would cause economic hardship for the company also will be considered.

DOS also has provided a non-exclusive list of examples, leaving open more possibilities. Following are some examples of exceptions for H-1B employees (comparable examples apply to H-2B and L-1 visas):

  • Healthcare professionals working on COVID-19 or in other important medical areas, such as cancer or communicable diseases.
  • Healthcare professionals working in areas that have been adversely affected by COVID-19 – perhaps providing medical services that have had to be curtailed due to COVID-19, such as providing rehabilitation services or other services deemed “non-essential” due to COVID-19.
  • Applicants seeking to resume ongoing employment in the same position, in the same visa classification, with the same employer because having to replace such an individual might cause the company financial hardship.
  • Travel by technical specialists, senior level managers, and others whose travel is necessary to the economic recovery of the U.S. by showing two of five factors:
    • The continuing need for the employee, including a showing that the essential functions cannot be accomplished remotely
    • The employee will provide unique contributions in critical infrastructure sectors: chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems
    • The employees’ wage exceeds the prevailing wage by at least 15%
    • The employee has unusual expertise demonstrated by their background
    • Denial of the visa will cause financial hardship to the company, as shown by:
      • Employer will not be able to meet financial or contractual obligations
      • Employer will not be able to continue its business
      • Employer will not be able to return to pre-COVID-19 level of operation

As to J-1 visas, there are exceptions for au pairs for children with special needs or whose parents do COVID-19-related work.

The initial hurdle to convincing a Consulate to grant a waiver is getting an appointment, which may itself require proving national interest.

Jackson Lewis attorneys are available to assist employers navigate this process. We are helping U.S. businesses get back to full operation by evaluating and developing arguments for employees in H, L, and J status who may qualify for an exception to the employment-based visa restrictions, as well as the Schengen and other COVID-19-related travel restrictions.

 

With a breakdown in talks on the latest COVID-19 stimulus package and with most senators and representatives out of town (though the House has been recalled from vacation to address the U.S. Postal Service crisis), USCIS has not received the $1.2 billion that it wants and says it needs to avoid furloughing two-thirds of its workforce. Unless talks pick up again, USCIS plans to furlough 13,400 of its 20,000 workers as of August 30, 2020.

The agency, which is already plagued by long processing delays and ever-increasing backlogs, would be severely hampered, if not effectively shut down, by the furlough.

In the background, Congressional staffers have indicated that, at this point, there is “no Plan B,” but that a break may come in terms of appropriations when Congress gathers again in September.

In the meantime, the hope is that USCIS will again push the furlough down the road. This should be possible since it was discovered that, in July, USCIS actually had a surplus of approximately $121 million and that it needs the bailout for FY 2021, which does not begin until October 1, 2020.

Not only would the furlough devastate USCIS and possibly irreparably harm foreign nationals and the businesses that rely on its services, but it would also harm local economies and create even more unemployment during the COVID-19 national crisis.

Jackson Lewis attorneys will continue to follow the progress of any negotiations and provide updates as they become available.

There have been rumors floating that USCIS might be selecting more H-1B cap registrations for the FY 2021 cap.  Those rumors appear to be true.  As of August 14, 2020, registrants have received emails with notifications of further selections.  A USCIS spokesperson said, “that full visa petitions for those selected in the second round this month will be due between August 17, 2020 and November 16, 2020.”  It is possible that the COVID-19 crisis, which has occasioned high unemployment and business closures, is at least in part responsible for a shortage of H-1B petitions having been filed to date.

We do not have any additional information at this time about how many more will be selected or how long this new selection process may or is expected to continue.  As soon as more details become available, we will provide updates.  In the meantime, if you were a registrant, check your email for any notifications of additional selections.

On August 12, 2020, the U.S. Court of Appeals for the Second Circuit limited the nationwide injunction on the Department of Homeland Security’s Public Charge Rule to three states: Connecticut, New York, and Vermont.

Since August 14, 2019, exactly one year ago today, when DHS published the final version of the new Public Charge Rule in the Federal Register, there have been multiple court challenges and the Rule has been widely criticized. With the new Rule, the Trump Administration is imposing additional requirements and background screening for foreign nationals who hope to obtain green cards or secure temporary non-immigrant status.

Due to the litigation, it is still not clear how the agencies will enforce this rule. The following recaps the twists and turns of the litigation:

  • The Rule was supposed to go into effect on October 15, 2019, but just before that could happen, several courts issued injunctions.
  • By February 21, 2020, the U.S. Supreme Court had lifted the last remaining injunction and the Rule went into effect on February 24, 2020.
  • The COVID-19 pandemic crisis began and, on July 29, 2020, the Rule was once again enjoined nationwide by a federal district court in New York because it impeded efforts to combat the disease – immigrants, many of whom are essential workers, were afraid to seek testing and this was detrimental to efforts to combat the disease.
  • USCIS issued guidance that, while the injunction was in effect, petitions and applications would be accepted without public charge information.
  • On August 12, 2020, in response to a request from the Administration, the Second Circuit limited the nationwide injunction to Connecticut, New York, and Vermont.

A USCIS spokesperson reported that the agency is reviewing the Court’s Order and “will determine the administrative viability of reimplementing the Inadmissibility on Public Charge Grounds Final Rule where applicable.”

If you have questions about the applicability to the Public Charge Rule, especially if you live or work outside of Connecticut, New York, or Vermont, Jackson Lewis attorneys are available to assist you.

In July, San Francisco’s Back to Work ordinance went into effect.  The ordinance requires employers operating in San Francisco to offer reemployment to eligible employees laid off as a result of the COVID-19 pandemic and the related stay at home and shelter in place orders issued by the City of San Francisco when they are rehiring for the same or similar classifications.

Recently, the Office of Economic and Workforce Development, the agency charged with enforcement of the ordinance has published a webpage for the ordinance, which includes model notices as well as a Frequently Asked Questions page.

The FAQ page clarifies several areas of the ordinance.

Covered Employees

The FAQ states that eligible workers are those who were employed at a worksite located in San Francisco for at least 90 days during the prior calendar year and who were laid off due to the COVID-19 emergency on or after February 25, 2020.

 Employer Obligations

The FAQs provide the following detailed information about employer obligations under the ordinance:

  1. Provide notice to eligible employees including those laid off between February 25, 2020, and the effective date of the ordinance. The FAQ provides for an unofficial safe harbor, which indicates that notice must be sent no later than September 6, 2020, for those layoffs that occurred prior to the effective date of the ordinance.
  2. Make reemployment offers to laid-off workers in order of seniority if the employer is hiring for the same or similar position.
  3. Provide notice to the Office of Economic and Workforce Development of layoffs of 10 or more employees within 30 days of when the layoffs begin. As with notice to employees, this notice includes layoffs that occurred prior to the effective date of the ordinance. Similarly, there is an extended period until September 6, 2020, to provide notice to the City.
  4. Retain records of all information e.g., layoffs and offers of rehire for two years.
  5. Reasonably accommodate and not discriminate against a worker with a family care hardship as defined in the ordinance.

Offers of Reemployment

The FAQs state an employer is not required to offer reemployment to a laid-off eligible worker if:

  1. The employer learns after the lay-off that the eligible worker engaged in any act of dishonesty, violation of the law, violation of a policy or rule of the employer, or other misconduct while employed.
  2. The employer and the worker executed a severance agreement due to a lay off between February 25, 2020, and July 3, 2020.
  3. The employer laid off an eligible worker between February 25, 2020, and July 3, 2020, and hired another person for the laid-off worker’s position prior to July 3rd.

Jackson Lewis continues to track state and local regulations pertaining to COVID19. If you need assistance in compliance with this ordinance or other COVID19 issues, contact a Jackson Lewis attorney to discuss.

A 401(k) plan and its administrators are defending the administrator’s decision to require a special valuation of former employees’ account values, given extraordinary market changes due to the COVID-19 pandemic.  Under the terms of the plan at issue, when a former employee seeks a distribution of his or her plan account, the account is typically valued as of December 31 of the prior year.  The plan invests in a pooled investment account so the money paid in distributions lessens the funds available to pay the remaining participants.  Plaintiffs are former employees who were eligible for a full distribution of their accounts in 2019 but, because the market was rising in 2019, delayed their distribution requests until January 2020, after the December 31, 2019 valuation.  While the 2019 valuation occurred, the plan administrator set a special valuation date of April  30, 2020, given the extraordinary market volatility in the first quarter of 2020.

Plaintiffs filed an ERISA claim for benefits and breach of fiduciary duties arguing that the administrator’s decision improperly locked them into the market’s 2020 losses.  The plan and administrator are defending their decision arguing that the suit should be dismissed because the plan provides discretion to set a special valuation date under extraordinary circumstances such as a major change in economic conditions and because allowing plaintiffs to rely on a pre-pandemic valuation would cause a windfall for plaintiffs at the expense of current participants.  The case is Lipshires, et al. v. Behan Bros., et al., No. 20-cv-252 (D.R.I.).

Implications

This is necessarily a new type of case with case-specific facts.  That said, many plan administrators – and not just 401(k) administrators – may face similar issues as the pandemic persists and the market reacts.  It is too soon to know whether defendants will succeed in having the case dismissed on the pleadings but this case shines a light on some best practices for a fiduciary considering an interim valuation to reflect subsequent material adverse events like the COVID-19 pandemic, including: (1) working with the plan sponsor and plan counsel to make sure the plan documents permit this or are revised to permit this, before proceeding, and (2) considering whether not setting a special valuation increases the risk of loss for the plan trust so failing to conduct interim valuations could be a fiduciary breach in itself.

We are available to advise plan administrators about the implications of this case on their plans.  Please contact a team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.