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This Short List addresses the following topics:
  1. H-2B Visa Numerical Limit Increased for FY2017
  2. Employers Can Pay a Premium to Expedite H-1B Visa Processing Once More
  3. 2017 Veterans’ Employment and Training Service Filing Season Began August 1
  4. U.S. Department of Justice Files Brief Stating Title VII Does Not Protect Sexual Orientation
  5. First Circuit: Parts of the Massachusetts Earned Sick Time Law Do Not Apply to Railroad Workers
  6. Ninth Circuit: Mortgage Underwriters Are Not Exempt Under the FLSA Administrative Exemption
  7. California: DFEH Modifies Gender-Neutral Restroom Signage Rule for Non-Flushing Toilets
  8. Pennsylvania: Former Employees Are Not Entitled to Inspect Personnel Files
  9. Minneapolis, MN: Minimum Wage Will Increase to $15/hr by 2024
  10. St. Louis, MO: Minimum Wage Ordinance Nullified
  11. Rhode Island: Non-Competes Must Have Assignability Clauses to be Effective for New Owners
  12. Wisconsin: Revised Language, Requirements Regarding Employing Minors


H-2B Visa Numerical Limit Increased for FY2017

The Department of Homeland Security and the Department of Labor recently published a temporary rule that increases the number of H-2B visas that can be issued in FY2017.  H2-B visas authorize temporary, non-agricultural workers to be employed in the U.S.

Typically, only 66,000 H-2B visas are permitted each year, split evenly between the first and second half of the fiscal year.  The new Rule increases the numerical limit for FY2017 by an additional 15,000 visas. However, employers seeking to hire additional H-2B workers must comply with additional requirements:

  • Submit to the U.S. Citizenship and Immigration Services (“USCIS”) a nonimmigrant petition, an approved temporary labor certification (“TLC”), and an attestation the employer is likely to suffer irreparable harm if not permitted to hire the petitioning H-2B workers. Employers may use the Form ETA-9142-B-CAA for this purpose.
  • Retain additional documents evidencing the employer’s need to hire the petitioning workers.

These documents must be maintained for three years from the date that the supporting TLC was approved.  Employers with valid TLCs with a work start date prior to June 1, 2017 must comply with the additional requirements.


Employers Can Pay a Premium to Expedite H-1B Visa Processing Once More

In March, the USCIS had suspended premium processing for all H-1B visa applications.  On July 24, 2017, the ability to pay for expedited processing was partially restored for certain cap-exempt H-1B petitions.  “Cap-exempt” refers to petitions that are exempt from the annual numerical limit of 65,000 visas each fiscal year.

To be eligible for premium processing, the H-1B petitioner must be:

  • An institute of higher education;
  • A nonprofit related to or affiliated with an institution of higher learning;
  • A nonprofit research or governmental research organization; or
  • Petitions where the beneficiary will be employed at a qualifying cap-exempt institution, organization, or entity.

Eligible petitioners may now submit specific forms for premium processing, available through the USCIS website.  The USCIS also plans to gradually resume premium processing of other H-1B visas.


2017 Veterans’ Employment and Training Service Filing Season Began August 1

Certain federal contractors and subcontractors must comply with certain reporting requirements for affirmative action regarding veteran workers.  Non-exempt federal contractors/subcontractors with a contract or subcontract under $150,000 must submit the VETS-4212 report.  Filing season begins on August 1, 2017; the deadline for filing is September 30, 2017. Reports submitted prior to August 1, 2017 will be considered part of the 2016 cycle.  Applicable contractors can learn more about the VETS-4212 reporting requirements on the DOL website.


U.S. Department of Justice Files Brief Stating Title VII Does Not Protect Sexual Orientation

The U.S. Department of Justice (“DOJ”) recently filed an amicus brief in Zarda V. Altitude Express, a Second Circuit case in which the now-deceased plaintiff Donald Zarda alleged that he was fired from his role as a skydiving instructor after disclosing his sexual orientation to a customer.  The DOJ’s brief states that sexual orientation is not protected under the anti-discrimination regulations of Title VII of the 1964 Civil Rights Act.

The brief runs counter to a 2015 EEOC ruling that found workplace discrimination on the basis of sexual orientation illegal.  Though non-binding for federal courts, courts often defer to guidance issued by federal agencies on interpreting regulations under that agency’s guidance. In the brief, the DOJ under the Trump Administration stated that the EEOC was “not speaking for the United States.”

In May, the Seventh Circuit was the first federal court of appeals to recognize sexual orientation as a federally protected class, another decision contrary to this new brief.  It remains to be seen how the DOJ’s brief may affect ongoing or future cases involving LGBTQ rights.


First Circuit: Parts of the Massachusetts Earned Sick Time Law Do Not Apply to Railroad Workers

On June 23, 2017, the First Circuit stated that certain provisions in Massachusetts’s Earned Sick Time Law (the “ESTL”) do not apply to railroad workers.  The circuit court stated that the federal Railroad Unemployment Insurance Act (the “RUIA”), a federal statute that requires interstate rail carriers to provide certain sick time benefits, preempts the ESTL in its entirety.


Ninth Circuit: Mortgage Underwriters Are Not Exempt Under the FLSA Administrative Exemption

On July 5, 2017, the Ninth Circuit stated that mortgage underwriters do not qualify under the administrative exemption of the Fair Labor Standards Act (“FLSA”) because their job duties did not meet one of the requirements of the exemption.

In this case, the mortgage underwriters employed by a bank were responsible for reviewing mortgage loan applications using guidelines established by their employer and its investors.  The underwriters would determine whether or not their employer would accept the loan.  The circuit court stated that since the underwriters’ responsibilities were driven by the Bank’s marketplace offerings, and not related to the internal administration of their employer’s business, the underwriters did not meet the administrative exemption. Further, the underwriters assessed the viability of a loan based on a set of provided guidelines, rather than making assessments based on their employer’s business interests.

Employers must be careful when determining an employee’s FLSA classification. If unsure whether or not an employee falls under certain exemptions under the FLSA, best practice is to consult legal counsel.


California: DFEH Modifies Gender-Neutral Restroom Signage Rule for Non-Flushing Toilets

On July 25, 2017, the California Department of Fair Employment and Housing (“DFEH”) announced that it would implement emergency regulations modifying the recently effective rule requiring all places of public accommodation to use gender-neutral restroom signage.  The emergency regulations specify that the requirements to use gender-neutral restroom signage does not apply to employers in specific industries (construction, general industry, agriculture, hazardous waste, and emergency response industries) with non-flushing toilets.  This change was implemented to address health-related reasons for these industries.


Pennsylvania: Former Employees Are Not Entitled to Inspect Personnel Files

On June 20, 2017, Thomas Jefferson University Hospital, Inc. v. Pennsylvania Department of Labor and Industry reversed a previous ruling regarding recently exited employees’ ability to review personnel files.  In this case, the Pennsylvania Supreme Court stated that former employees who are not on a leave of absence or laid off with re-hire rights are no longer “employees” and therefore not entitled to inspection of their own personnel files.


Minneapolis, MN: Minimum Wage Will Increase to $15/hr by 2024

On June 30, 2017, the Minneapolis City Council approved an ordinance that will gradually raise the minimum wage each year, ending at $15 per hour by 2024.  The first increase goes into effect on January 1, 2018 for “large employers,” with a staggered effective date for “small” employers, as described in the table below.

Date Large Business (100+ Employees) Small Business (99 or Fewer Employees)
Jan 1, 2018 $10.00/hr N/A
Jul 1, 2018 $11.25/hr $10.25/hr
Jul 1, 2019 $12.25/hr $11.00/hr
Jul 1, 2020 $13.25/hr $11.75/hr
Jul 1, 2021 $14.25/hr $12.50/hr
Jul 1, 2022 $15.00/hr $13.50/hr
Jul 1, 2023 $15.00/hr plus adjustment for inflation $14.50/hr
Jul 1, 2024 onward $15.00/hr plus adjustment for inflation $15.00/hr plus adjustment for inflation

Although employee headcount is determined by counting all employees working for the same employer, whether or not they work within the city of Minneapolis, a covered employee entitled to the minimum wages as set forth in the ordinance is defined as any employee who works within the geographic boundaries of Minneapolis, or who works at least 2 hours in the city of Minneapolis in a given workweek.


St. Louis, MO: Minimum Wage Ordinance Nullified

HB 1194, a bill that rolls back St. Louis’s recent minimum wage ordinance, will go into effect on August 28, 2017.  The ordinance recently required private sector employers to pay at least $10.00/hr as of May 5, 2017.  With HB 1194 going into effect, private employers may roll back wage rates to their pre-May 5, 2017 rates, but must give affected employees at least 30 days’ notice of the rollback.

HB 1194 also limits political subdivisions throughout the state of Missouri from (1) enacting local minimum wage ordinances that exceed the statewide minimum wage (currently $7.70/hr), or (2) enacting employment benefits for private sector workplaces that exceed any “state laws, rules, or regulations.”


Rhode Island: Non-Competes Must Have Assignability Clauses to be Effective for New Owners

On June 13, 2017, a Rhode Island trial court stated that a non-compete agreement signed with one company was not transferable to a successor company if it did not contain an assignability clause.  The decision arose from BlueZ4 Corp. dba Blue Sky Spaworks v. Rebecca Macari, et al.  In this case, a hairdresser employed with Blue Sky Spaworks signed a non-compete that restricted her from competing with Blue Sky for one year after separation of employment within a three-mile range of a specific company location.  Blue Sky later sold company assets to BlueZ4, and the employee ultimately was hired by BlueZ4. When she later accepted employment at a competing salon, BlueZ4 sued.

As a matter of first impression, the court stated that employees must give express, written consent before their restrictive covenants can be transferred from a known, current employer to an unfamiliar successor; covenants do not simply transfer as part of the sale of a seller-employer’s business.

Employers engaging in the purchase or sale of business in Rhode Island may need to review with legal counsel all agreements with current or prospective employees for compliance.


Wisconsin: Revised Language, Requirements Regarding Employing Minors

On June 23, 2017, the 2017 Wisconsin Act 11 went into effect amending existing law, including revising the language used in the statute to refer to “employment of minors” rather than “child labor,” as well as repeal of the prior requirement for 16- and 17-year-old minors to obtain a state-issued permit before beginning work activities, which will ease some of the administrative burden for Wisconsin employers.


Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2017 ManagEase, Incorporated.

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