May Updates

H-1B Visa Petition Cap Reached; New Program Focuses on Targeting H-1B Fraud

The congressionally mandated cap for H-1B visa petitions for 2018 was met just one week after the filing period opened on April 3, 2017.  Certain H1-B visa petitions exempt from the cap will be accepted and processed, although the U.S. Citizenship and Immigration Services (USCIS) is no longer accepting premium processing fees.

The USCIS also announced a new program intended to combat H-1B visa fraud. This system will continue randomized, unannounced site visits to H-1B petitioners and worksites, but will take a “more targeted approach.”  The current White House Administration has also launched a campaign encouraging employers to “#HireAmerican.”

For more information on H-1B filing for fiscal year 2018, visit the USCIS website.

OSHA Delays Effective Date of Final Rule on Beryllium Exposure Again

OSHA’s Final Rule regarding occupational exposure to beryllium, originally set to become effective February 1, 2017 and delayed once to March 21, 2017, has been delayed a second time.  The new effective date of the Rule is May 20, 2017.

Employers can review the Final Rule here.

Updated Pay Transparency Poster for Federal Contractors

The Office of Federal Contract Compliance Programs has revised its Pay Transparency Nondiscrimination Provision poster to include a citation to the applicable regulations. Federal contractors can download the updated copy of the form from the Department of Labor’s website.

Federal OSHA Releases Preliminary Top 10 Workplace Safety Citations

The Department of Industrial Relations (DIR) recently updated Wage Orders 1-13, and 15-16, to reflect (1) the state minimum wage increases for 2017 and 2018, and (2) the updated meal and lodging credit amounts.  Currently, only the English versions of the Wage Orders have been updated.  Note that although the Wage Orders were just updated, the revision date on the documents is listed as “12/2016.”

All employers must post the current versions of the Wage Order(s) that are applicable to their industry, where employees can easily read them in the workplace. The updated Wage Orders can be obtained from the DIR’s website.

California: Wage Orders Have Been Updated and Must be Posted by Employers

The Department of Industrial Relations (DIR) recently updated Wage Orders 1-13, and 15-16, to reflect (1) the state minimum wage increases for 2017 and 2018, and (2) the updated meal and lodging credit amounts.  Currently, only the English versions of the Wage Orders have been updated.  Note that although the Wage Orders were just updated, the revision date on the documents is listed as “12/2016.”

All employers must post the current versions of the Wage Order(s) that are applicable to their industry, where employees can easily read them in the workplace. The updated Wage Orders can be obtained from the DIR’s website.

Connecticut: Restaurants Cannot Use Tip Credits for Delivery Drivers

A Connecticut business filed a petition with the Connecticut Department of Labor to confirm that the company could pay their pizza delivery drivers below the minimum wage by using tip credit. Tip credits refer to the practice of paying service employees less than minimum wage because the employee receives tips or gratuities that supplement their income. Service employees typically include roles like bartenders or wait staff in the hotel and restaurant industries.

In reviewing the state’s legislative history, the Connecticut Supreme Court confirmed that delivery drivers did not qualify as “service employees” who are permitted to receive tip credits. Organizations that employ delivery drivers should review their pay practices to ensure tip credits are offered to applicable employees only.

North Carolina: Controversial “Bathroom Bill” Repealed, New Bill Introduced

On March 23, 2016, HB2—also known as the “bathroom bill”—went into effect. HB2, in part, limited local governments within North Carolina from passing their own ordinances that expand upon statewide antidiscrimination protections. HB2 went as far as dictating that public agencies and education boards require multiple-occupant restrooms to be designated for the use of individuals based on their biological sex, rather than the sex with which an individual identifies. HB2 drew criticism, resulting in some companies and other state governments vowing to withdraw their presence from North Carolina.

HB142, enacted on March 29, 2017, repeals HB2 and puts the power of regulating access to restrooms, lockers rooms and public showers solely in the hands of the General Assembly. However, HB142 still effectively limits the ability of local jurisdictions to implement greater rights for transgender individuals. In all, HB142 results in the state of North Carolina neither mandating nor prohibiting workplace protections for transgendered individuals.

New York: 24-Hour, Non-Residential Home Care Workers Must be Paid for All 24 Hours

Effective April 11, 2017, the First Department of the Appellate Division of the New York Supreme Court stated that 24-hour home care workers who do not reside in the patient’s home must be paid for all 24 hours.  This is a departure from the New York State Department of Labor (“DOL”) guidance dictating that such home care workers could be paid for only 13 hours provided the workers are provided sleep and meal breaks.  The appellate division stated that the guidance fails to distinguish between “residential” and “non-residential” employees.

This decision arose from Andryeyeva v. New York Health Care and is currently on appeal.  If upheld, employers could potentially owe such home care workers substantial back pay for any 24-hour shift worked in the past six years.  ManagEase will continue to report on this matter as new developments occur.

New York City, NY: Inquiries into Prior Salary History Prohibited for City Agencies

In November 2016, an NYC executive order banned city agencies from making inquiries into job applicants’ prior salary history.  In April 2017, the New York City Council approved a similar bill that will prohibit inquiries into prior salary history of all job applicants during the hiring process.  Mayor de Blasio is expected to sign the bill shortly.  The bill becomes effective 180 days after Mayor de Blasio signs it.

The new bill, intended to curb gender pay disparity, would implement the following provisions:

• Employers cannot inquire about prior salary history from an applicant, applicant’s current or former employer, or agent or employee of the applicant’s current or former employer. This prohibition extends to searching for public information about the salary history.
• Prior salary history cannot be considered when determining salary, benefits or other compensation for the applicant, unless the salary history is voluntarily shared by the applicant.

REMINDER: Washington, DC’s Universal Paid Leave Act Became Effective on April 7, 2017

Employers with Washington, DC employees are now required to comply with the newly enacted Universal Paid Leave Act.  For details on the Act, including notice requirements, see our recent post 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.

© 2017 ManagEase, Incorporated.