Beltway Buzz, January 15, 2021
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
Blog
Can Employers Fire Rioters? Employers’ Rights in Policing Employee Off-Duty Conduct and Employment Law Consequences of the Capitol Riots
Within days of the January 6, 2021, riot at the U.S. Capitol, employees who were observed as part of the mob entering the Capitol were discharged by their employers. Some of the individuals involved in the events at the Capitol were knowingly filmed as part of the insurrection (and many were seen posing for selfies).
EEO-1 Filers Must Wait a Little Longer—EEOC Announces Filing Platform Will Not Open Until April 2021
The U.S. Equal Employment Opportunity Commission (EEOC) issued a press release on January 12, 2021, notifying EEO-1 filers that the EEO-1 filing platform will not open until April 2021. This is of particular interest for employers because the EEOC delayed the 2019 EEO-1 filings, which would normally have been due in March 2020, due to the COVID-19 pandemic—meaning that both the 2019 and 2020 EEO-1 filings will be due this year.
Rulingmaking Redux: DOL Issues Updated Final Rule Adjusting Wage- Level Calculations for H-1B, H-1B1, and E-3 Visa and PERM Cases
On January 12, 2021, the U.S. Department of Labor (DOL) announced an updated final rule designed to increase prevailing wages required for certain visa processes. The updated rule, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” is the DOL’s second attempt in recent months to revise how the existing four-tiered wage structure of the Occupational Employment Statistics (OES) wage survey is calculated for purposes of determining prevailing wages.
CROWN Act Ordinance: New Orleans Enacts Law to Prohibit Hairstyle Discrimination
On December 22, 2020, New Orleans Mayor LaToya Cantrell signed into law the CROWN Act (Calendar No. 33,184). The new law prohibits employment discrimination in the City of New Orleans based on hairstyles. The law is modeled after federal legislation introduced in January 2020—the Creating a Respectful and Open World for Natural Hair Act (CROWN Act)—designed to correct racial and cultural inequities by making hair discrimination illegal in the United States.
EEOC Issues Long-Awaited Proposed Wellness Program Rules
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued its revamped proposed rules governing employer-sponsored wellness programs. These proposed rules have been a long time coming, with the EEOC’s prior rules on the topic having been invalidated by a court and then partially revoked. In this current proposal, the EEOC has issued two separate sets of regulations: one under the Americans with Disabilities Act (ADA) and one under the Genetic Information Nondiscrimination Act of 2008 (GINA).
Fifth Circuit Sets New Standard for Certifying FLSA Collective Actions
On January 12, 2021, the Fifth Circuit Court of Appeals issued a landmark decision rewriting the rules for obtaining certification in collective actions under the Fair Labor Standards Act (FLSA).
Consolidated Appropriations Act of 2021: Updates to Paycheck Protection Program
On December 27, 2020, President Trump signed into law Congress’s spending bill, the Consolidated Appropriations Act (CAA), 2021, which included the Additional Coronavirus Response and Relief (ACRR) provisions that modified the Small Business Administration’s (SBA) Paycheck Protection Program (PPP). The PPP, a loan program designed to provide a direct incentive to businesses to retain their employees, was enacted under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. PPP borrowers are eligible for loan forgiveness if the funds are used for eligible payroll and non-payroll costs.
Anticipating a COVID-19 Emergency Temporary Standard in 2021
A contentious issue during the recent presidential campaign was the Trump administration’s handling of the COVID-19 pandemic. No matter where one fell along the spectrum of supporters and critics, there was no denying the wide gulf of positions on the topic.
Ontario’s New State of Emergency, Stay-at-Home Order, and Rules for Employers and Businesses
With daily COVID-19 case counts approaching 4,000 in Ontario, the Ontario provincial government announced on January 12, 2021, a state of emergency and a return to stricter lockdown measures that will take effect at 12:01 a.m. on January 14, 2021.
Florida High Court Adopts the Federal Standard for Summary Judgment
On December 31, 2020, the Florida Supreme Court rendered an opinion in In Re: Amendments to Florida Rule of Civil Procedure 1.1510, No. SC20-1490, aligning Florida’s rules of civil procedure with the supermajority of U.S. states and formally adopting the federal standard for summary judgment motions.
DHS Announces Significant Changes to H-1B Cap Selection Process
On January 8, 2021, the U.S. Department of Homeland Security (DHS) published a final rule that significantly alters the longstanding randomized lottery process that U.S. Citizenship and Immigration Services (USCIS) has utilized to select H-1B cap-based petitions.
Use It, but Don’t Lose It: New Stimulus Law Extends Time to Spend Down 2020 Health FSA and Dependent Care Balances
Employers will now have additional options to address participants’ unspent contributions to dependent care or health flexible spending accounts (FSAs) resulting from the COVID-19 pandemic. The Consolidated Appropriations Act, 2021 (H.R. 133, P.L. 116-260), signed into law on December 27, 2020, provides temporary relief for employees that were unable to spend down their dependent care and health FSAs by the end of the plan year and may otherwise forfeit these contributions.
Cal/OSHA Clarifies COVID-19–Related Paid Time Off Requirements
On January 8, 2021, the California Division of Occupational Safety and Health (Cal/OSHA) issued an updated version of its frequently asked questions (FAQs) guidance, “COVID-19 Emergency Temporary Standards Frequently Asked Questions,” about COVID-19 Emergency Temporary Standards. The FAQs address many issues about which employers had questions, including paid time off and exclusion pay.
New York City Says Goodbye to At-Will Employment for the Fast Food Industry
On January 5, 2021, New York City Mayor Bill de Blasio signed legislation that effectively ends at-will employment for fast food employees in New York City. The new law takes effect on July 4, 2021, and would make New York City the nation’s first jurisdiction to create job protections for a particular industry. However, at least some portions of the new law may be ripe to challenge on federal preemption and other grounds.
England Enters Third National Lockdown—What Are the New Rules?
On 4 January 2021, Prime Minister Boris Johnson announced a third national lockdown in England. The regulations allow the lockdown to continue until 31 March 2021, although the restrictions are expected to be reviewed in mid-February to allow for the possible reopening of schools. All of the United Kingdom is now under strict measures to curb the spread of the new fast-spreading COVID-19 variant—with Wales, Northern Ireland and most of Scotland also in lockdown (although these countries are governed by separate rules).
Québec Imposes Strict COVID-19 Lockdown Measures and an Overnight Curfew Through February 8, 2021
On January 6, 2021, the Québec government announced new COVID-19 restrictions that will take effect from January 9, 2021, through February 8, 2021.
California Court of Appeal Analyzes ‘Salary’ Test Under Administrative Exemption
Under California law, an employee is exempt from California’s overtime requirements and other wage and hour laws if the person is employed in an administrative capacity. To meet this exemption, California’s wage orders and the California Labor Code provide that an employee must perform certain job duties and be paid a monthly salary equivalent to at least twice the state minimum wage for full-time employment. Neither the Labor Code nor the wage orders define what constitutes a “salary” or what it means for an employee to be paid on a salary basis for the purposes of the exemption. A recent California Court of Appeal decision, however, sheds some light on the issue.
Toronto Employers Face New COVID-19 Reporting Requirements
On January 4, 2021, the City of Toronto announced that employers and workplaces operating in Toronto’s public health unit will be subject to new reporting requirements regarding positive COVID-19 cases. In addition, Toronto Public Health announced that it will begin reporting data on workplace outbreaks effective January 7, 2021.
Beltway Buzz, January 8, 2021
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
DOL Publishes Final Rule for Determining Who Is an Independent Contractor
On January 7, 2021, the U.S. Department of Labor (DOL) published a final rule in the Federal Register that clarifies how to determine who is an independent contractor and who is an employee for purposes of the Fair Labor Standards Act (FLSA).
The Ogletree OFCCP Bulletin: December 2020
Here are the latest developments from the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP).
New Alberta Law Makes Sweeping Changes to Occupational Health and Safety Act, Amends Workers’ Compensation Act
On December 9, 2020, Alberta’s Bill 47, the Ensuring Safety and Cutting Red Tape Act, 2020, received Royal Assent. The legislation replaces Alberta’s current Occupational Health and Safety Act in its entirety, and makes significant amendments to the Alberta Workers’ Compensation Act.
DOL Closes Out 2020 by Issuing Travel Time and Live-In Home Health Care Worker Opinion Letters
The U.S. Department of Labor (DOL) issued two Fair Labor Standards Act (FLSA) opinion letters on December 31, 2020. One of those letters addresses travel time that occurs when employees schedule personal appointments during the workday and perform portions of their work remotely. The other addresses compensation arrangements for live-in home health care workers whose shifts may extend beyond 24 hours.
Mexico’s COVID-19 Traffic Light Monitoring System: News for January 4–17, 2021
Cases of COVID-19 are continuing to rise in Mexico, with more than 1.45 million positive cases as of January 4, 2021, according to the Ministry of Health, and hospital occupancy rates still climbing. The worsening spread of COVID-19 has prompted the federal government to impose greater restrictions on activities in more states throughout the country according to the nation’s four-tiered “traffic light” pandemic monitoring system.
Trump Administration Extends Visa Bans to March 31, 2021
On December 31, 2020, the Trump administration issued a presidential proclamation extending the ban of entry for certain nonimmigrant and immigrant visas as outlined in its April 22, 2020, and June 22, 2020, proclamations. The ban includes certain applications for H-1B, H-2B, J-1, and L-1 visas for persons who were not present in the United States as of the effective date of the proclamation, as well as all applications for immigrant visa holders.
Canada Announces New COVID-19 Travel Requirements for International Air Passengers
On December 31, 2020, the Government of Canada announced new restrictions that will apply to all airline passengers entering Canada.
Race and Sex Stereotyping Executive Order Subject to Preliminary Injunction
Some anticipate that President-elect Joseph Biden will revoke the Trump administration’s Executive Order (EO) 13950 that restricts the content of certain diversity-related workplace trainings. On December 22, 2020, the United States District Court for the Northern District of California issued a nationwide preliminary injunction in the case of Santa Cruz Lesbian and Gay Community Center d/b/a The Diversity Center of Santa Cruz v. Trump, holding that the plaintiffs had demonstrated (among other things) a sufficient likelihood of success on their claims that EO 13950 is unconstitutional on its face. The order, which went into effect immediately and on a nationwide basis, allows private federal contractors and federal grant recipients to conduct workplace training programs and related activities without facing penalties for “stereotyping” or “scapegoating” under EO 13950. While the injunction does not impact trainings provided to federal employees, on December 22, 2020, a group of U.S. Department of Justice (DOJ) employees circulated a letter calling for an official investigation into EO 13950 and related executive branch actions targeting diversity-and-inclusion programs.
San Francisco Issues Mandatory Travel Quarantine Due to ‘Rapid Increase’ in COVID-19 Cases
On December 16, 2020, the San Francisco Department of Public Health (SFDPH) issued Order of the Health Officer No. C19-17 due to a surge in COVID-19 cases that the department said could quickly “overwhelm hospitals” in the county, as well as the rest of California, unless the City took measures to try to control the virus’ spread. With some exceptions, the order requires “every person who travels to, moves to, or returns to the County [of San Francisco] after having been in any location outside of the Bay Area” to quarantine for a period of 10 days (240 hours) from a person’s time of arrival in the county.
District Court Invalidates New DOL Wage Regulations for a Third Time in December 2020
On December 14, 2020, the U.S. District Court for the District of Columbia granted a motion for partial summary judgment in favor of the plaintiffs to invalidate recent regulations from the U.S. Department of Labor (DOL), which dramatically increased the prevailing wage methodology that is commonly used for various types of immigration applications. This ruling is the third such loss for the agency in December 2020.
