March Updates

U.S. Supreme Court Declines to Rule on DACA Program

Last year, the Trump Administration announced its intent to rescind the Deferred Action for Childhood Arrivals (“DACA”) program, and in January 2018, a Northern California district court judge issued a nationwide injunction on the program wind-down.  Rather than proceeding through the Ninth Circuit Court of Appeal, the Department of Justice requested that the U.S. Supreme Court hear the case, but as of February 26, 2018, the Supreme Court declined.  For the time being, Judge Alsup’s injunction remains in place, meaning that current DACA recipients may continue to submit renewal applications.

Reminder: 2017 EEO-1 Filing Deadline March 31, 2018

The Equal Employment Opportunity Commission (“EEOC”) has completed mailing notification letters for the 2017 EEO-1 survey.  Private employers of 100+ employees are required to file the federal EEO-1 report by March 31, 2018.  If your organization meets this criteria but did not receive a notification letter, or if your organization filed a 2016 EEO-1 report but did not receive a notification letter, contact the EEOC for additional assistance. Employers can visit the EEO-1 survey website for instructions on filing the forms.

H1-B Visa: Filing Deadlines and New Requirements

Employers who wish to hire foreign nationals for specialized positions can begin filing H1-B visa on April 2, 2018.  In addition to filing the petition, the employer must register with the U.S. Department of Labor and obtain a certified Labor Condition Application issued by the Department of Labor, which may take up to 10 business days to process.  Employers should account for processing time and technical delays when preparing to file an H-1B visa petition.

The number of H-1B visas issued each year is limited.  In 2018, 65,000 visas are available, with an additional 20,000 visas for applicants who meet certain higher education criteria.  In 2017, over 233,000 petitions were received.  Due to the high demand and limited amount of available visas, employers planning to file a petition must be aware of due dates.

Additionally, the Trump Administration issued a policy memo requiring “detailed statements of work or work orders” for H1-B visa workers hired to work at one or more third-party work sites. Employers hiring employees subject to such visa requirements must have specific work assignments for the employee for the entirety of the petitioned time period, and must remain in an employer-employee relationship during such time.

The last possible date to file an H-1B visa petition is April 5, 2018.  Foreign nationals hired with an approved visa can start working October 1, 2018.

Federal Judge Blocks EEOC Enforcement Guidance on Background Checks

On February 1, 2018, a Texas federal district court judge ordered an injunction against the EEOC from enforcing its Enforcement Guidance on Background Checks against the State of Texas because the EEOC’s Guidance was issued without observing proper rule-making procedures associated with promulgating substantive rules.  Specifically, the EEOC failed to provide notice and opportunity for public comment when it issued the 2012 Guidance.  Consequently, the EEOC must comply with the rule-making requirements before it can enforce the Guidance against the State of Texas.  Although limited in scope, the ruling may inspire other similar challenges to the Guidance. It is unclear at this point if the EEOC will reconsider and reissue the 2012 Guidance for public comment; however, it is important to note that this injunction does not affect state requirements for background checks.

Reminder: Massachusetts Pregnant Workers Fairness Act Effective April 1, 2018

We reported previously on Massachusetts employers’ increased responsibilities to accommodate pregnant workers, inclusive of specific notice to employee requirements.  With the upcoming effective date of April 1, 2018, covered employers should be prepared to meet the notice requirements by modifying their handbook and/or preparing a written notice, to be distributed to newly-hired employees and employees who provide notification of their pregnancy to the employer.

Wisconsin’s Non-Compete Rules Apply to Non-Solicitation Agreements

On January 19, 2018, in Manitowoc Company v. Lanning, the Wisconsin Supreme Court stated that the state’s non-compete statute applies to post-employment restrictions on soliciting former employees for employment. Employers must take care to ensure that non-solicitation agreements or clauses meet the same statutory restrictive covenant requirements applied to non-compete agreements. In Manitowoc, following a review of the statutory requirements, the court stated that the agreement at issue was not “reasonably necessary for the protection of the employer.” Employers should have non-solicitation agreements and clauses reviewed by legal counsel for compliance with this new ruling.

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.

© 2018 ManagEase