July Updates

USCIS Updates: L-1B Visas, H-1B Cap Exemptions, and Visa Program Fraud and Abuse

USCIS Adopts “Matter of I-Corp” re: L-1B Visas

The USCIS has adopted the Administrative Appeals Office’s reasoning in Matter of I-Corp.  The USCIS will now deny visa petitions based on illegal, invalid or unenforceable employment agreements.  This arose from an L-1B petitioner who was offered a salary that failed to meet minimum wage standards set by the Fair Labor Standards Act.  The USCIS will not approve employment-based visa petitions that conflict with existing regulations.  Employers can review the USCIS’s policy memorandum here.

USCIS Adopts “Matter of A-T-Inc.” re: H-1B Cap

In addition to the Matter of I-Corp, the USCIS has also adopted the AAO’s decision in the Matter of A-T- Inc.  The matter clarifies that H-1B visa petitioners who apply under the H-1B master’s cap must have obtained the degree while the university or institution they are attending is qualified as a “United States institution of higher education.”  Employers can review the USCIS’s policy memorandum here.

U.S. Secretary of Labor Directs Agencies to Aggressively Confront Visa Program Fraud and Abuse

Secretary of Labor Alexander Acosta has announced new actions to protect American workers and target entities committing visa program fraud and abuse. The Secretary has directed the Department of Labor to vigorously enforce all regulations governing non-immigrant visa programs, including:

• Directing the department’s Wage and Hour Division to use all its tools in conducting civil investigations to enforce labor protections provided by the visa programs.
• Directing the department’s Employment and Training Administration to develop proposed changes to the Labor Condition Application, and for the Division to review their investigatory forms, to better identify systematic violations and potential fraud, and provide greater transparency for agency personnel, U.S. workers, and the general public.
• Directing the Division, ETA and the Office of the Solicitor to coordinate the administration and enforcement activities of the visa programs and make referrals of criminal fraud to the Office of the Inspector General.
• Establishing a working group made up of senior leadership from ETA, the Division and Solicitor’s office to supervise this effort and coordinate enforcement to avoid duplication of efforts and maximize the efficiency of the department’s activities regarding the visa programs. The working group shall invite OIG to send representatives to participate in its efforts.

Employers can read more by viewing the DOL’s news release here.

California: Workers Are Entitled to Wage & Hour Protections, Regardless of Work or Immigration Status

On June 15, 2017, a California Court of Appeal stated that employees are entitled to applicable federal and state wage and hour protections, even if the employee does not have proper immigration or work authorization status.  This decision arose from a claim submitted by a Taiwanese individual on a tourist visa, who performed work for a company while awaiting completion of an H-1B work visa. The plaintiff sued the employer for failure to pay appropriate wages and overtime for the time period he worked prior to obtaining the approved H-1B visa.

The Court of Appeal stated that, although the plaintiff did not have work authorization while waiting for the H-1B visa to be approved, he nevertheless met the definition of “employee” under the federal Fair Labor Standards Act (“FLSA”) and California law, noting that undocumented workers are still protected under the FLSA.  Thus, the lack of an initial work permit was irrelevant to the case.

California: Poster Requirements for Barbers and Cosmetology License Holders

Last year, Governor Brown signed AB 2437, a bill imposing new posting and notice requirements for hair and nail salons.  Effective July 1, 2017, California barbering and cosmetology license holders are required to display a new poster covering workplace rights and wage and hour law.  The poster is available in four languages (English, Spanish, Korean, and Vietnamese) and must be posted in all languages in a conspicuous location.

The posters can be downloaded from the California DIR’s website here.

California: New Notice Employers are Required to Provide at Hire

In 2016, AB 2337 added a notice requirement to the California Domestic Violence Leave law. As of July 1, 2017, all employers with 25 or more California employees are required to provide new hire employees with a copy of the Labor Commissioner’s notice of Rights of Victims of Domestic Violence, Sexual Assault and Stalking. The Labor Commissioner recently issued the required notice, which can be downloaded here.

ManagEase Blue Rock subscribers’ new hire packages have been automatically updated to include this notice.

Louisiana: Court Rejects Whistleblower Complaint from Independent Contractor

In Collins v. State of Louisiana, Through Dep’t of Nat. Res., a Louisiana Court of Appeal stated that the Louisiana environmental whistleblower statute protects employees from retaliation for reporting environmental law violations.  In this case, the independent contractor reported alleged environmental violations to the Department of Natural Resources (“DNR”).  When his contract was not renewed with the DNR for 2010, Collins filed suit, alleging he was retaliated against for his whistleblowing.  Originally, a jury found that Collins and his company were employees of the DNR and delivered a verdict against DNR.

On appeal, the court stated that the plaintiffs were clearly independent contractors, and as such not entitled to whistleblower status. This highlights the importance of properly classifying employees versus independent contractors, as a worker’s classification can determine the applicability of many state and federal statutes.

Missouri: Recent Changes Made to State Anti-Discrimination Statutes

Effective on August 28, 2017, SB 43 amends the Missouri Human Rights Act, in part, to change the causation standard applied to employers, eliminate liability for individual supervisors, lower damages caps, enforce claim timeliness as a prerequisite to a lawsuit, and follow federal burden-shifting rules.

The bill also creates the Whistleblower Protection Act, which protects employees who report an employer’s unlawful acts to the proper authorities, report serious public policy violations to the employer, or refuse to follow an employer’s unlawful instruction. Employers are recommended to review the bill here.

Texas: Texting While Driving Banned

Effective June 6, 2017, Texas enacted a state-wide ban on texting while driving.  HR 62 specifically prohibits drivers from reading, writing, or sending electronic messages, unless the vehicle is stopped.  The first offense is punishable by a fine between $25 and $99; further offenses may carry a fine between $100 and $200.  Fines and additional punitive measures (including confinement in jail) may apply if a texting violation results in the death or serious bodily injury of another individual.

Few exceptions apply, and they are: using a hands-free device with voice-operated technology; reporting illegal activity or summoning emergency help; reading an electronic message reasonably believed to concern an emergency; or relaying information to a dispatcher or digital network through a device affixed to the vehicle as part of the driver’s job duties.

More stringent restrictions on mobile device use while driving are already in place in numerous other cities in Texas, such as Austin, San Antonio, and El Paso.  Employers should review local ordinances and have handbooks or policy documents concerning drivers’ responsibilities revised to include this new ban on texting.

New York City: New Rules Issued to Clarify Freelance Isn’t Free Act

Effective on July 24, 2017, NYC’s Department of Consumer Affairs’ new rules will further define the Freelance Isn’t Free Act. Key changes include prohibiting class action waivers, prohibiting waiver of certain rights, prohibiting restricting statutes of limitations, voiding confidentiality provisions that do not allow communication with the Director of NYC’s Office of Labor Standards, expanding liable parties to agents, clarifying applicability of the Act regardless of immigration or work authorization status, clarifying damages, and establishing a different standard for retaliation claims under the Act.  Employers are encouraged to review the rules here.

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.

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