Assuming there is no further stalling or litigation by the government, Employment Authorization Documents (EADs) may finally be on their way to approximately 75,000 foreign nationals who have been waiting for them, in some cases for months, after having approved application notices in hand.

In Subramanya v. USCIS, federal District Judge Algenon L. Marbley issued a temporary order giving USCIS seven days to produce the backlogged cards. Judge Marbley agreed to continue the hearing on the preliminary injunction until August 24, 2020 to allow the parties time to negotiate a consent degree to resolve the claims. Form I-9 rules do not allow many categories of “alien authorized to work” employees to use the petition approval notices to prove authorization to work—the actual EAD is often needed under the rules.

Since deciding to cancel the printing contract with an outside vendor and bring the production of Green Cards and EADs in-house, USCIS has been unable or unwilling to address the demand or eliminate the backlog. The agency’s plan to hire more workers for this task appears to have been put on hold because of financial mismanagement, or political maneuvering, despite being a fee-based service that has had no financial issues until this year.

Plaintiffs in Subramanya argued USCIS abused its power in an egregious and outrageous manner either with the intention of harming the plaintiffs or out of deliberate indifference to the harms caused. Plaintiffs waiting for EADs have lost wages, lost healthcare, lost jobs, lost the ability to support their families and have even been forced into homeless shelters.  Employers have been forced to terminate valuable employees, losing their expertise and talents. Judge Marbley wrote that although there is no statutory time frame for producing EADs, that “does not mean the agency retains unfettered discretion to issue EADs at any time they wish.” 

Since the failure to produce the EADs is a self-inflicted wound, USCIS needs to take responsibility and solve the problem. The solution may come in the form of a consent decree.  If the agency cannot produce the cards, perhaps it should consider a temporary adjustment to Form I-9 List A documents and allow foreign nationals to work on the basis of their EAD approvals alone.  This would help employees and employers who are already dealing with the COVID-19 crisis. Although those waiting for Green Cards are not part of this litigation, they have been similarly hindered by the lack of card production and also need some form of relief.

It is interesting to note that the named plaintiff in the case has received her EAD but Judge Marbley dismissed the agency’s argument that this made the case moot. Among other things, he noted that the agency cannot just pick off one plaintiff and expect that to mean that the proposed class cannot move forward.

Jackson Lewis will provide updates as they become available.

At the end of July, the Department of Industrial Relations (“DIR”) released guidance to assist with the safe reopening of businesses in light of the ongoing COVID-19 pandemic. The guidance covers the following topics:

  • Employer Obligations to Keep the Workplace and Employees Safe
  • Face Coverings
  • Medical Checks
  • Returning to the Worksite
  • Waivers of Liability

The DIR states that employers must follow the California Department of Public Health’s (“CDPH”) Employer Guidelines if an employee tests positive for COVID-19. Employers should also: (1) instruct employees to stay home and notify the employer if they have symptoms of COVID-19, were diagnosed, or are awaiting test results; (2) report to CAL/OSHA any serious injury, illness, and death, including hospitalization from COVID-19 (even if the illness is not work-related); and (3) consider testing employees in the workplace to identify any potential cases. An employee who appears to have COVID-19 symptoms in the workplace must be separated from other employees, customers, and visitors, and sent home.

Employees barred from work or sent home may be eligible for paid leave under any of the following:

  • Federal paid sick leave up to a possible 80 hours under the Families First Coronavirus Response Act (FFCRA)
  • COVID-19 Supplemental Paid Sick Leave Ordinances
  • California Paid Sick Leave under California Labor Code Section 246
  • Local Paid Sick Leave Laws

In addition, employers must require employees to wear face coverings at all times, with limited exceptions. Face coverings must be provided at no cost to employees.

The guidance also provides clarity regarding medical checks. Specifically, the DIR confirmed an employee required to undergo medical checks, including on-site temperature checks, must be compensated for the time spent undergoing the check. This is because time spent undergoing temperature checks is “time worked” under the Labor Code, as it is “under the control of the employer.” However, the DIR states that whether medical checks performed at home should be compensated depends on the factual circumstances of each case and should be evaluated by the “level of control exercised by the employer.” In some cases, medical checks may be compensable if “an employer-mandated that workers spend a few minutes before every shift following a set of detailed procedures using a particular cell phone application to take and record their temperature and then fill out a health questionnaire of a non-trivial length.”

The DIR also notes that if an employee is required to use a personal cell phone as part of a medical check, the employer must provide a business reimbursement for cell phone use. Alternatively, if an employer provides a device at no charge to the employee, reimbursement is not required.

The DIR also issued guidance related to returning to the worksite. An employer may require employees who have been working remotely to return to the worksite presuming the employer has reviewed relevant guidance and put into place an action plan to ensure the safety of the workplace.

Lastly, the DIR has provided guidance related to waivers of liability sought by employers. Specifically, employers may not ask employees to waive their rights under the Labor Code. For example, employers must provide employees’ compensation benefits for injuries or illnesses contracted during the course of employment. Employers must also provide safe and healthy workplace conditions. Neither of these requirements can be waived.

If you have questions about return to work issues or ensuring compliance with state or local COVID19 regulations and requirements, contact a Jackson Lewis attorney to discuss.

Employers continue to grapple with an ongoing, unprecedented public health crisis caused by the COVID-19 pandemic and its after-effects, which have profoundly disrupted the nation’s economy and U.S. workplaces. In this issue, attorneys in the Class Actions & Complex Litigation Practice Group discuss the most pressing workplace class action litigation risks arising from the COVID-19 pandemic and how best to minimize them.

Topics addressed in this issue include:

  • Disability leave and related challenges
  • Wage hour pitfalls
  • WARN Act suits
  • COBRA notice actions
  • Other issues related to the pandemic

Click here to download the full report.

To assist with protecting the essential workers who work in the agricultural industry, California’s Department Industrial Relations Division of Occupational Safety and Health (“Cal OSHA”) issued updated guidance on coronavirus (“COVID-19”) infection prevention procedures for employers in the agricultural industry.

While the guidance does not impose new legal obligations on employers, the guidance is meant to assist agricultural employers in their efforts to prevent and minimize the spread of COVID-19. The guidance also provides helpful information on details Cal OSHA expects will be addressed in an employer’s amendments to their Injury Illness Prevention Program (“IIPP”) in response to potential COVID-19 exposures.

Like all employers in California, who are operating under applicable state and local public health orders, agricultural employers must provide training to employees on COVID-19, including symptoms of COVID-19 and potential sources of exposure to the virus, along with methods for preventing and minimizing risks of exposure, including use of cloth face coverings, social distancing measures, and good hygiene practices (e.g. frequent hand washing).

The guidance also recommends that agricultural employers detailing specific procedures to prevent the spread of COVID-19 in their IIPPs including:

  • Sending employees with COVID-19 symptoms home or obtaining medical care for them as needed.
  • Establishing procedures to notify local health officials when someone has a COVID-19 infection.
  • Encouraging sick workers to stay home.
  • Advising employees who stay home with symptoms not to return to work until at least 3 days after recovery and 10 days after the original onset of symptoms, per CDC guidance.
  • Making hand-washing stations more readily available and encouraging frequent hand washing.
  • Establishing enhanced procedures for cleaning and disinfection.

Cal OSHA’s guidance further recommends that agricultural employers establish procedures to ensure that workers can maintain effective social distancing, such as adjusting line speeds, staggering work shifts and breaks, limiting crew sizes, and providing additional seating and shade structures

Finally, the guidance provides additional resources for agricultural employers including state and federal guidelines.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and workplace safety. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

To assist with protecting the essential workers who work in the agricultural industry, California’s Department Industrial Relations Division of Occupational Safety and Health (“Cal OSHA”) issued updated guidance on coronavirus (“COVID-19”) infection prevention procedures for employers in the agricultural industry. Read our full article on the guidance here.

New Yorkers can once again register for Trusted Traveler Programs.

However, registrants should note that, due to COVID-19, Trusted Traveler Enrollment Centers are closed until at least September 8, 2020.

In early February 2020, the Department of Homeland Security (DHS) prohibited New Yorkers from registering or re-registering for Trusted Traveler Programs, including Global Entry, SENTI, NEXUS, and FAST (Free and Secure Trade). New Yorkers were singled out for this treatment because New York’s Driver’s License Access and Privacy Act, also known as the “Green Light Law,” gave undocumented residents the right to apply for driver’s licenses and prevented the Department of Motor Vehicles (DMV) from releasing their database information to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) absent a court order. At that time, the New York Attorney General sued DHS over New Yorkers’ exclusion from the Trusted Traveler Programs.

In court, the government argued that New York’s Green Light Law prevented CBP from accessing records they needed to vet applicants for Trusted Traveler Programs. In April 2020, New York amended the Green Light Law to allow the DMV to share records “as necessary for an individual seeking acceptance into a trusted traveler program, or to facilitate vehicle imports and/or exports.” Notably, the case revealed that other states had similar laws to New York’s Green Light Law, that DHS was able to vet program applicants in those states, and that none of those states were “punished” with exclusion from the programs. As a result, the government asked to withdraw their motions for summary judgment and to dismiss, and DHS lifted the suspension on New Yorkers.

New York Governor Andrew Cuomo stated he was “glad that this issue has finally been resolved for all New Yorkers.” But, in a press release, Acting Secretary of the DHS Chad Wolf said he appreciated the information sharing regarding the Trusted Traveler Programs, but chastised New York for continuing to block federal access to DMV records, which he believes “creates a significant threat to both public safety and officer safety.”

Please contact a Jackson Lewis if you have any questions.

New USCIS filing fees will go into effect on October 2, 2020, under a new final rule published by the Department of Homeland Security (DHS) in the Federal Register on August 3, 2020. This rule raises fees by a weighted average of 20% and changes the current fee structure to impose specific fees per visa category.

USCIS, a fee-based agency, has stated the increase in fees was required to avoid a DHS projected deficit of $1 billion per year. Some fees will decrease, but others will increase dramatically – such as a more than 80% increase for citizenship applications. Other larger percentage increases include popular business-related petitions:

  • 51% increase for TN and E petitions to $695
  • 75% increase for L petitions to $805
  • 53% increase for O petitions to $705
  • 34% increase for I-765 Employment Authorization Documents to $550 (excluding DACA)

Employers whose workforce is comprised of at least 50% H-1B or L-1 workers will see even bigger increases. Already paying an additional $4,000 for a new H-1B visa and an additional $4,500 for a new L-1 visa, those companies will be required to pay the additional fees for renewals as well. It is reported that this alone will bring in $200 million per year in fees to USCIS.

Employers filing H-2A and H-2B petitions for temporary, seasonal agricultural and non-agricultural workers also will see an increase, from $460 to $850 (85%) and $715 (55%), respectively. This comes despite the Administration’s recognition of the essential nature of workers involved in the food supply chain during the COVID-19 pandemic national emergency.

The USCIS Premium Processing fee, which brought in $2.39 billion in fees to USCIS between 2014 and 2019, will not increase, but the processing time has changed from 15 calendar days to 15 business days, up from two weeks to three weeks.

Comments on the new rule include a suggestion that USCIS increase its own efficiency instead of “charging more and providing less service.” Others noted the Administration’s own policy failings created the need for increased fees, citing the following as areas of concern:

  • Frivolous Requests for Evidence
  • “Extreme vetting”
  • Long suspensions of premium processing
  • Unnecessary in-person interviews
  • Increased denaturalization efforts
  • Litigation of improperly denied applications

In addition, commentators complained of the negative impact the increased fees would have on potential immigrants, the businesses that need to employ them, and the economy. To these and other comments submitted, DHS responded that it understands immigrants make significant contributions to the United States economy, but this final rule is not intended to impede or limit naturalization or legal immigration. Other commentators suggest the Administration’s policies have already impeded immigration and fee increases are not likely to help alleviate that.

USCIS also plans to publish updated forms before the new fees go into effect, including a new Form I-129 and a new Form I-765.

If you have any questions about the new fees or the new forms, please reach out to your Jackson Lewis attorney.

Despite several attempts, Congress has struggled to push forward a federal consumer privacy law over the past few years. But the COVID-19 pandemic, which has raised concerns regarding location monitoring, GPS tracking and use of health data, has heightened the urgency for federal consumer privacy legislation. In May, a group of Democrats from the U.S. Senate and House of Representatives introduced the Public Health Emergency Privacy Act (“the Act”), aimed to protect health information during the pandemic and regulate the use of that data with contact tracing technologies.

In late July, the Senate Committee of Appropriations introduced an Emergency Coronavirus Stimulus Package (“the Stimulus Package”) which would allocate $53 million of the $306 million package, to the Department of Homeland Security Cybersecurity and Infrastructure Security Agency for the protection of Coronavirus research data and related data. In addition, a group of 13 senators including Kamala Harris, D-California, Elizabeth Warren, D-Massachusetts, and Mark Warner, D-Virginia, sent a letter to Senate and Congressional leadership, asking for the Act to be included in the passage of the Stimulus Package.

“Health data is among the most sensitive data imaginable and even before this public health emergency, there has been increasing bipartisan concern with gaps in our nation’s health privacy laws,” the Senators stated in their letter.

“While a comprehensive update of health privacy protections is unrealistic at this time, targeted reforms to protect health data – particularly with clear evidence that a lack of privacy protections has inhibited public participation in screening activities – is both appropriate and necessary,” they added.

Under the Act, “Covered Organizations” is defined as “any person that collects, uses, or discloses  emergency health data electronically or  through communication by wire or radio; OR that develops or operates a website, web application, mobile application, mobile operating system feature, or smart device application for the purpose of tracking, screening, monitoring, contact tracing, or mitigation, or otherwise responding to the COVID–19 public health emergency.” NOTE:  Covered Organizations do not include: a health care provider; a person engaged in a de minimis collection or processing of emergency health data; a service provider; a person acting in their individual or household capacity; or a public health authority.

The Act would protect “emergency health data” which means “data linked or reasonably linkable to an individual or device, including data inferred or derived about the individual or device from other collected data provided such data is still linked or reasonably linkable to the individual or device, that concerns the public COVID–19 health emergency.” Examples of such data include:

  • information that reveals the past, present, or future physical or behavioral health or condition of, or provision of healthcare to, an individual, including data derived from testing an individual. This likely would include COVID-19 viral or serological test results, along with genetic data, biological samples, and biometrics;
  • other data collected in conjunction with other emergency health data or for the purpose of tracking, screening, monitoring, contact tracing, or mitigation, or otherwise responding to the COVID–19 public health emergency, such as (i) geolocation and similar information for determining the past or present precise physical location of an individual at a specific point in time, (ii) proximity data that identifies or estimates the past or present physical proximity of one individual or device to another, including information derived from Bluetooth, audio signatures, nearby wireless networks, and near-field communications; and (iii) any other data collected from a personal device.

Below are key requirements of the Act for Covered Organizations:

  • Only collect, use or disclose data that is necessary, proportionate and limited for a good-faith health purpose;
  • Take reasonable measures, where possible, to ensure the accuracy of data and provide a mechanism for individuals to correct inaccuracies;
  • Adopt reasonable safeguards to prevent unlawful discrimination on the basis of emergency health data;
  • Only disclose data to a government entity if it is to a public health authority and is solely for good faith public health purposes;
  • Establish and implement reasonable data security policies, practices and procedures;
  • Obtain affirmative express consent before collecting, using or disclosing emergency health data, and provide individuals with an effective mechanism to revoke that consent. NOTE: There are limited exceptions where consent is not required including to protect from fraud/malicious activity, to prevent a security incident, or if otherwise required by law;
  • Provide notice in the form of a privacy policy prior to collection that describes how and for what purposes the data will be used (including categories of recipients), the organization’s data security policies and practices, and how individuals may exercise their rights.

If enacted, the Federal Trade Commission (FTC) would be required to promulgate rules regarding data collection, use and disclosure under the Act. In addition, both the FTC and state attorneys general would have enforcement authority over the Act.

The Act, if passed, would be a temporary measure that would be terminate once COVID-19 was no longer deemed a public emergency. Covered organizations would be required to not use or maintain emergency health data 60 days after the termination of the public health emergency, and destroy or render not linkable such data.

With no comprehensive Federal privacy framework in place, the Senators are urging Congressional leadership to allow for a measure that provides “Americans with assurance that their sensitive health data will not be misused will give Americans more confidence to participate in COVID screening efforts, strengthening our common mission in containing and eradicating COVID-19”.

We will continue to update on the status of the Act and other related developments.

Employers need to ready themselves for investigations from the Department of Labor (DOL) into the use of H-1B visas.

Without Congressional oversight or legislative changes, the Trump Administration has changed the policies for H-1Bs, resulting in the highest denial rate in history of this legal immigration program. During the ongoing COVID-19 pandemic national emergency, the Administration has issued a number of executive changes further restricting immigration, including a Presidential Proclamation restricting the entry of foreign nationals in H-1B status (among others) until at least the end of 2020.

Most recently, in conjunction with that Presidential Proclamation, USCIS and DOL have entered into an agreement to further share data so that DOL can conduct “more robust examinations” of employers’ H-1B usage. According to a DOL press release, “No previous Secretary of Labor has ever exercised this authority.”

In the past, USCIS has conducted unannounced worksite visits to ensure H-1B compliance. With DOL stepping into this new role, employers likely will see additional investigations and penalties for violations, including awards of back pay for wage errors. The added risks for businesses come as many of them continue to argue that making it harder to hire H-1B workers only harms the economy and does nothing to promote economic recovery.

Jackson Lewis attorneys are available to help you prepare for these new enforcement efforts by advising on auditing your H-1B petition processes and your H-1B public access files.

Shortly after the Department of Labor issued its FFCRA regulations, the state of New York filed a lawsuit challenging some of the provisions.  Today (four months after the regulations went into effect, and just five months before the FFCRA is set to expire), the federal district court in New York struck down four provisions in the regulations.  The four provisions struck down include:

  • the definition of who qualifies for the healthcare provider exemption;
  • the exclusion from benefits of employees whose employers do not have work for them;
  • the requirement that employees secure consent for intermittent leave for certain qualifying reasons; and
  • the requirement that documentation be provided before taking leave.

The court let stand the remaining provisions of the DOL’s regulations.

The court’s decision leaves open a lot of questions for employers who are trying to comply with the law (and also demonstrates the inherent issues when congress and federal agencies try to rush something through).  Employers who have been following the regulations, may now find themselves at risk.   And the decision leaves employers left to surmise important questions such as what definition of healthcare provider should be used under the FFCRA, and whether employees on furlough or who otherwise do not have work available (regardless of whether the employee is unable to work due to a COVID issue) are eligible for pay.

The court’s decision creates new risks for employers trying to comply.  For public employers and employers with less than 500 employees, the rules have changed.  Contact your Jackson Lewis attorney for assistance in developing an approach that helps minimize the risk for your organization.