Insights Archive - Ogletree Deakins

ERISA Cybersecurity Lessons for Employers

Retirement plans are increasingly subject to cybersecurity issues, and the U.S. Department of Labor (DOL) is taking notice. On April 14, 2021, the DOL published cybersecurity guidance “for plan sponsors, plan fiduciaries, record keepers and plan participants on best practices for maintaining cybersecurity, including tips” for hiring service providers and online security tips for participants. In recent years, DOL guidance that eased rules related to electronic communications to plan participants might have helped make participants more susceptible to phishing attempts that masquerade as official plan communications.

Stephen A. Riga Indianapolis Author

Hillary M. Sizer Chicago Author

Beltway Buzz, May 14, 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.

James J. Plunkett Washington D.C. Author

Unemployment Insurance System Update, Part II: States Opting Out of Federal Unemployment Benefits

Since the beginning of May 2021, multiple states have announced their intent to opt out of enhanced federal unemployment benefits. To cease participation in enhanced federal unemployment benefit programs, a state must provide at least 30 days’ written notice to the U.S. Department of Labor (DOL). A state may cease participation in one or all of the six programs that allow for enhanced federally funded benefits.

Ashley Prickett Cuttino Greenville Author

Unemployment Insurance System Update, Part I: Is Comprehensive Reform Coming?

On April 28, 2021, President Joe Biden unveiled a proposal to permanently expand unemployment benefits in his most recent economic package, the American Families Plan. The proposed expansion of unemployment benefits is in addition to the $2 billion already allocated to unemployment “system modernization, equitable access and fraud prevention” from the American Rescue Plan Act of 2021. According to the White House, “the [unemployment insurance] system is in desperate need of reform and strengthening.”

Ashley Prickett Cuttino Greenville Author

Montana Enacts New Law Making Vaccination Status a Protected Class and Limiting Inquiries Into Immunization Status

On May 7, 2021, Montana governor Greg Gianforte signed into law Montana House Bill 702, under which Montana became the first jurisdiction to recognize an individual’s vaccination status as a protected category. The law also prohibits employers from requiring employees to disclose their immunization status and bars employers from requiring employees to receive certain types of vaccines or to possess an immunity passport.

Roger G. Trim Denver Author

Raul Chacon, Jr. Denver Author

CDC Updates Guidance for Fully-Vaccinated Individuals: Is it Time to Shed the Face Mask and Relax Social Distancing?

The U.S. Centers for Disease Control and Prevention (CDC) updated its guidance, titled Interim Public Health Recommendations for Fully Vaccinated People, on May 13, 2021, rolling back recommendations for wearing face masks, social distancing, and other protective measures for those who have been fully vaccinated against COVID-19.

Adam T. Pankratz Seattle Author

Michael Oliver Eckard Charleston
Atlanta Author

U.S. Embassy in Moscow Announces Significant Reduction of Consular Services

U.S. Embassy Moscow recently announced plans to reduce its consular workforce by 75 percent and significantly reduce its consular services. The announcement comes in response to the Russian government’s move to ban the U.S. Embassy “from employing foreign nationals in any capacity,” actions taken in retaliation to new U.S. sanctions imposed over Russia’s alleged interference in the 2020 U.S. presidential election, and the country’s involvement in the computer hack of top U.S. government agencies.

James Nicholas Garilas Columbia Author

Bernhard Mueller Columbia Author

Federal Judge Dismisses Wife’s COVID-19 Tort Suit Against Husband’s Employer

On May 10, 2021, a judge for the U.S. District Court for the Northern District of California dismissed a lawsuit filed by the wife of a construction worker against his employer after he allegedly contracted COVID-19 at his workplace and transmitted it to her.

Eric E. Hobbs Milwaukee Author

J. Davis Jenkins Washington D.C. Author

Wisconsin Legislature Expressly Authorizes Electronic Tip Declarations

Like the federal Fair Labor Standards Act, Wisconsin law allows hospitality employers to pay certain tipped employees less than the minimum wage with the understanding that the tips they receive will cover the difference. More specifically, Wisconsin law allows employers to claim a tip credit of up to $4.92 per hour for employees who “customarily and regularly receive tips.” Among other things, Wisconsin law requires employers to have a “signed tip declaration” in order to claim the credit.

Keith E. Kopplin Milwaukee Author

Christina L. Wabiszewski Milwaukee Author

Inspector General’s Findings Introduce New Pressures on MSHA Enforcement

The U.S. Department of Labor’s Office of Inspector General (OIG) found “significant weaknesses” in the Mine Safety and Health Administration’s (MSHA) overall management of the process of issuing, terminating, modifying, and abating violations, according to a recent OIG audit.

William K. Doran Washington D.C. Author

Margaret S. Lopez Washington D.C. Author

Mexico’s COVID-19 Traffic Light Monitoring System: News for May 10–23, 2021

For the sixth consecutive two-week COVID-19 reporting period, none of Mexico’s 32 states are in red traffic light status, the most stringent of the nation’s four-tiered monitoring system designed to prevent the spread of the COVID-19 pandemic.

Pietro Straulino-Rodriguez Mexico City Author

Preparing to Comply With the NCAA’s New Sexual Violence Policy

It has been nearly one full year since the National Collegiate Athletic Association (NCAA) expanded its campus sexual violence policy, placing additional obligations on member institutions. While many stakeholders were hoping for additional guidance from the NCAA to address some of the questions left unanswered, the only additional communication from the NCAA so far has been to delay the effective date from the 2021-2022 academic year to the 2022-2023 academic year.

Bethany S. Wagner Pittsburgh Author

James C. Pennington Birmingham Author

Biden Administration Extends U.S.-Mexico and U.S.-Canada COVID-19 Border Restrictions Through May 21, 2021

On April 19, 2021, the Biden administration extended travel restrictions along the land ports of entry between the United States and Canada and the United States and Mexico through May 21, 2021. The border restrictions were set to expire on April 21, 2021. The restrictions, which have been in effect since March 21, 2020, specifically prohibit all “non-essential” travel at these land ports of entry to prevent the spread of COVID-19.

Nathan P. Roy Denver Author

Samantha D. Wolfe Denver Author

Delays Persist at U.S. Consulates Worldwide, Even in Wake of Biden Administration’s Lifting of Various Visa Suspensions

On March 31, 2021, the Trump administration’s Proclamation 10052, which had suspended the entry of certain H-1B, H-2B, J, and L nonimmigrant visa holders and their dependents to the United States, expired. In addition, on February 24, 2021, the Biden administration lifted Proclamation 10014, which had suspended the entry of certain immigrant visa holders through March 31, 2021. Despite these policy developments, applicants for nonimmigrant work visas and immigrant visas can still expect continued delays in obtaining visas due to COVID-19–related issues.

Nathan P. Roy Denver Author

Samantha D. Wolfe Denver Author

Alabama Legislature Approves Medical Marijuana: Roll Tide! (and a Joint?)

On May 6, 2021, the Alabama legislature approved a medical marijuana legalization bill. Senate Bill (SB) 46, more commonly known as the Darren Wesley ‘Ato’ Hall Compassion Act, will now go to Governor Kay Ivey for final approval. Governor Ivey has not indicated that she will veto the bill, although a spokesperson for Governor Ivey has stated that she “look[s] forward to thoroughly reviewing it.”

M. Tae Phillips Birmingham Author

USCIS to Suspend Biometrics Requirement for Certain Nonimmigrant Dependent Applications

On May 3, 2021, U.S. Citizenship and Immigration Services’ (USCIS) acting associate director of the Service Center Operations Directorate, Connie L. Nolan, indicated in a court filing that USCIS is finalizing a policy that will temporarily suspend the requirement to submit biometrics for certain individuals filing Form I-539, Application to Extend/Change Nonimmigrant Status.

Ayumary M. Fitzgerald Raleigh Author

Cal/OSHA Proposes Sweeping Changes to Its COVID-19 Prevention Emergency Temporary Standards

On November 30, 2020, California’s Division of Occupational Safety and Health, more commonly known as Cal/OSHA, adopted COVID-19 Prevention Emergency Temporary Standards (ETS) for California. Among other topics, the ETS required that employers develop a written COVID-19 Prevention Program and provided guidance on how employers should address COVID-19 cases and outbreaks in the workplace. Since Cal/OSHA issued its ETS, the California workplace landscape has changed dramatically, with large-scale vaccinations for all ages and employees returning to work across the state.

Karen F. Tynan Sacramento Author

Charles L. Thompson, IV San Francisco Author

Kevin D. Bland Orange County Author

Alabama Becomes 10th State to Enact Name, Image, and Likeness Legislation for Student Athletes

On April 20, 2021, Alabama governor Kay Ivey signed into law a name, image, and likeness (NIL) bill, making Alabama the tenth state to enact such legislation.

Bethany S. Wagner Pittsburgh Author

Beltway Buzz, May 7, 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.

James J. Plunkett Washington D.C. Author

COVID-19 and the Form I-9: Preparing for the End of Remote Document Verification

Early in the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) authorized U.S. employers with employees who are taking physical proximity precautions to remotely inspect identity and work authorization documents when completing Form I-9, Employment Eligibility Verification, rather than review original documents in person.

Jeffrey R. Thomas Austin Author

James K. Larsen Austin Author

The New York HERO Act: What Employers Need to Know

Echoing his mantra of building back better, on May 5, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic.

Melissa A. Bailey Washington D.C. Author

Simone R.D. Francis St. Thomas
New York Author

Jamie Haar New York Author

California Public Health Department Does Away With Quarantine for Fully Vaccinated and Asymptomatic Workers

On May 3, 2021, the California Department of Public Health (CDPH) released updated public health recommendations advising that fully vaccinated non-healthcare workers can refrain from quarantining after a known workplace exposure to COVID-19, but only if they are asymptomatic.

Karen F. Tynan Sacramento Author

Robert C. Rodriguez Sacramento Author

Mexican Labor Law Amendment Abolishes Outsourcing of Personnel

On April 23, 2021, an amendment to the Mexican Labor Law was published in the Official Gazette of the Federation. Below are the key points about the amendment and how they will affect employers that outsource or subcontract work.

Pietro Straulino-Rodriguez Mexico City Author

Oscar Margáin Vega Mexico City Author

Rodrigo de la Concha Alvarez Mexico City Author

Ana Paula Delsol Espada Mexico City Author

Nora M. Villalpando Badillo Mexico City Author

Pennsylvania Supreme Court Invalidates No-Hire Provision in Service Contract

The Supreme Court of Pennsylvania recently held unenforceable a no-hire provision in a service contract between a logistics company and a trucking firm. In Pittsburgh Logistics Systems, Inc. v. Beemac Trucking LLC, et. al., the court reasoned that the no-hire provision at issue was overly broad and undermined fair competition for employees in the shipping and logistics industry.

Daniel P. O’Meara Philadelphia Author

Vik C. Jaitly Philadelphia Author

South Carolina Governor Signs Liability Shield Legislation Into Law

As expected, on April 28, 2021, Governor Henry McMaster signed the “South Carolina COVID-19 Liability Immunity Act” (Senate Bill 147) into law. The act, which provides protection from “coronavirus claims” to a broad class of covered entities and covered individuals, went into effect immediately and “appl[ies] to all civil and administrative causes of action that arise between March 13, 2020, and June 30, 2021, or [180] days after the final state of emergency is lifted for COVID-19 in [South Carolina], whichever is later, and that are based upon facts occurring during this time period.”

Phillip A. Kilgore Greenville Author

S. Michael Nail Greenville Author

Biden Administration Issues Restrictions on Travel From India

On April 30, 2021, the Biden administration issued a proclamation that implements restrictions for travelers from India, due to concerns regarding COVID-19. Pursuant to the proclamation, noncitizens who have been physically present in India within 14 days of travel to the United States will be barred entry, unless eligible for an exception. The restrictions are scheduled to take effect on May 4, 2021, at 12:01 am eastern daylight time.

Andrea C. Davis Atlanta Author

Marijuana Laws Affecting the Workplace: Tools Employers Can Use to Stay Ahead During High Times

States have been busy when it comes to marijuana laws. Before the mid-2010s, employers tended not to worry about state marijuana laws because of marijuana’s illegal status under federal law. However, those days are over, and state marijuana legalization laws continue to affect how employers can run their workplaces.

M. Tae Phillips Birmingham Author

Beltway Buzz, April 30, 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.

James J. Plunkett Washington D.C. Author

Twisting Arms to Get Jabbed, White House Says: ‘Vaccination Incentives All Around!’

On April 21, 2021, in a further push to encourage COVID-19 vaccinations for those individuals who have been hesitant, the White House issued a fact sheet titled, “President Biden to Call on All Employers to Provide Paid Time Off for Employees to Get Vaccinated After Meeting Goal of 200 Million Shots in the First 100 Days.” This announcement further signals the administration’s dedication to vaccinating the U.S. population and its willingness to offer incentives to employers that support their employees in becoming vaccinated. Employers that have remained neutral on this issue could be persuaded to “take up arms” and join the fight against COVID-19.

Michael K. Mahoney Morristown Author

James M. Paul St. Louis Author

Colin H. Hargreaves Minneapolis Author

Mexico’s COVID-19 Traffic Light Monitoring System: News for April 26–May 9, 2021

After weeks of improving pandemic conditions in Mexico—since March 2021, none of Mexico’s 32 states has been classified in red status, the strictest tier of the federal government’s four-tiered COVID-19 traffic light monitoring system—there has been a slight regression in the epidemiological trend.

Pietro Straulino-Rodriguez Mexico City Author

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