APPLIES TO All Employers with H-1B Visa Employees

EFFECTIVE As Indicated

QUESTIONS? Contact HR On-Call (888) 378-2456

The current administration recently issued two interim final rules (IFR) largely impacting H-1B nonimmigrant visas, making it more difficult for individuals to obtain them.

Effective December 7, 2020, the Department of Homeland Security’s (DHS) IFR revises certain definitions, updates application requirements, and provides USCIS with broader authority to verify an application. In part, it lists specific factors USCIS will consider when determining whether a valid employment relationship exists, including supervision, location of supervision, right to control work on a day-to-day basis, provision of tools/instrumentalities, hire/pay/fire relationship, evaluation of work product, provision of employee benefits, use of proprietary information to perform work, end product linked to line of business, and control of manner and means in which work is performed. It also narrowed the definitions of specialty occupation and third-party worksite. Notably, a third-party worksite cannot be a residence, and visas for workers at third-party worksites are only valid for one year at a time. The IFR also provides specific instructions for documentation that must be submitted with the visa application.

Effective October 8, 2020, the U.S. Department of Labor’s (DOL) IFR increased required wage levels for labor condition applications (LCAs) for H-1B, H-1B1, and E-3 visas, and PERM labor certifications as follows:

• Level 1 wages from the 17th percentile to the 45th percentile.
• Level 2 wages from the 34th percentile to the 62nd percentile.
• Level 3 wages from the 50th percentile to the 78th percentile.
• Level 4 wages from the 67th percentile to the 95th percentile.

These rules apply to petitions and LCAs filed on or after their effective dates, so they will impact 2022 visas since the deadline for 2021 visa applications passed earlier this year. However, there is already pending litigation challenging these IFR’s. Continue to look for updates on this changing subject.

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APPLIES TO All Employers with CT, NY, and VT Employees

EFFECTIVE September 22, 2020

QUESTIONS? Contact HR On-Call (888) 378-2456

In Aleutian Capital Partners, LLC v. Scalia, the Second Circuit Court of Appeal stated that even though an employer of an H-1B visa employee paid more income than promised in the Labor Condition Application (LCA), the employer violated U.S. Department of Labor (DOL) regulations requiring wage payments that were predictive in amount and timing. The court also said that the DOL was authorized to investigate the terms of employment even though the employee did not file a complaint with the DOL.

There, the employer paid a monthly salary amount below H-1B Program standards in some months and overpaid the employee in other months, resulting in overall wages that were higher than promised. Nonetheless, the employer was obligated to pay back wages for those months that were underpaid, regardless of any bonuses or overpayments that it made in other months. DOL regulations require H-1B employers to make wage payments “when due” in “prorated installments,” “no less often than monthly.”

In the course of a DOL investigation into one employee’s claim, the DOL investigated treatment of another H-1B employee finding wage and hour errors. The court said that “where an investigation into a timely filed complaint reveals that an employer’s failure to conform to an LCA has resulted in a pattern of underpayment that extends earlier than the statute of limitations cut-off, DOL may assess back wages that remedy the full scope of that failure.” More specifically, “it is reasonable … for DOL to seek information from the employer to ensure that it is not applying the same unlawful practices to other H-1B Program employees.” Ultimately, employers risk greater exposure than the claim at issue for failing to follow statutory requirements.

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APPLIES TO All Employers with CA-Based Computer Professionals and Licensed Physician/Surgeons

EFFECTIVE January 1, 2021

QUESTIONS? Contact HR On-Call (888) 378-2456

The California Department of Industrial Relations (DIR) announced the 2021 exemption rates for certain types of employees.  To qualify as exempt from minimum wage and overtime requirements, employees in these professions must meet certain requirements, one of which includes a compensation threshold.

For computer software employees, the compensation threshold is as follows:

• Minimum hourly rate of $47.48 (increased from $46.55);
• Minimum monthly salary increased to $8,242.32 (increased from $8,080.71); and
• Minimum annual salary increased to $98,907.70 (increased from $96,968.33).

In addition to the compensation threshold, computer software employees must also perform certain job duties to be considered exempt, such as applying highly specialized information to computer analysis, programming, and software engineering.

For licensed physicians and surgeons, the 2021 compensation threshold is a minimum of $86.49 per hour (increased from $84.79).

California’s statewide minimum wage will also increase on January 1, 2021, impacting the compensation threshold for the more general professional, executive, and administrative exemptions.  Employees in these categories must be paid at least two times the state minimum wage, in addition to other requirements.

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APPLIES TO All Employers with CO Employees

EFFECTIVE Upon Governor Declaration

QUESTIONS? Contact HR On-Call (888) 378-2456

On November 3, 2020, Colorado voters approved Prop. 118 which permits employees to take up to 12 weeks of paid family and medical leave within a 12-month period. Qualifying reasons include:

• caring for their own serious health condition;
• caring for a new child during the first year after the birth or adoption or for foster care of a new child;
• caring for a family member with a serious health condition;
• when a family member is on active duty military service or is called for active-duty military service; and
• when the individual or the individual’s family member is a victim of domestic violence, stalking, or sexual assault.

An additional four weeks of leave are allowed for pregnancy or childbirth complications. Individuals are eligible to receive benefits after they have earned $2,500 in wages that were subject to the paid family and medical leave (PFML) premiums and have been employed by the employer for at least 180 days. Leave may be taken intermittently.

The program will be funded through a payroll tax paid for by employers and employees in a 50/50 split. The first premiums will be paid beginning on January 1, 2023, and benefits will begin to be available on January 1, 2024. The maximum benefit is capped at $1,100 per week for 2024. Businesses with less than 10 employees are exempt from paying the premium. Sole proprietors can opt in to the program.

Employers cannot take disciplinary or retaliatory actions against employees for requesting or using paid leave. Employees who take PFML leave are entitled to return to the same position or a position with the same pay, benefits, and seniority or status. Employees cannot lose their health benefits during their leave and are still be required to pay their health insurance premiums while on leave.

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