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IMPORTANT! Continue Using Expired Form I-9, For Now
On October 11, 2022, U.S. Citizenship and Immigration Services posted a notice saying that employers should continue using the current Form I-9, Employment Eligibility Verification, after its expiration date of October 31, 2022 until further notice. The Department of Homeland Security will publish a Federal Register notice to announce the new version of the Form I-9 once it becomes available.
USCIS Extends Green Card Validity Extension
On September 28, 2022, U.S. Citizenship and Immigration Services (USCIS) automatically extended the validity of Permanent Resident Cards (i.e., Green Cards) to 24 months for lawful permanent residents who file Form I-90 (Application to Replace Permanent Resident Card). Form I-90 receipt notices may be presented with an expired Green Card as evidence of continued status.
Department of Homeland Security Considering Form I-9 Remote Document Review
On August 18, 2022, the Department of Homeland Security (DHS) published a proposed rule which could provide alternative options for Form I-9 document examination, including a remote option. While the rules were relaxed to allow review by video chat, fax, or other electronic means during the COVID-19 pandemic, they eventually still required in-person review of the documents. The proposed rule would allow DHS to create pilot programs to test potential alternative remote examination procedures. If adopted, HR professionals could handle Form I-9 document review compliance remotely. DHS could also require sign-up to E-Verify and impose other IT requirements in order to take advantage of this potential rules change. While this proposed rule is not yet in effect and needs to go through the standard notice-and-comment period, employers should continue to watch for updates through the DHS website.
OFCCP Plans to Disclose Employer EEO-1 Data
The Office of Federal Contract Compliance Programs (OFCCP) is planning to produce confidential data, including EEO-1 data, in response to a Freedom of Information Act (FOIA) request. Federal law prohibits the EEOC from disclosing an employer’s EEO-1 data and this extends to requests made under FOIA. The OFCCP however is relying on a decision from the D.C. Circuit Court stating that EEO-1 reports are not subject to that prohibition. The FOIA request at issue seeks Type 2 Consolidated Employer Information Reports filed by federal contractors from 2016 through 2020. Employers who selected “Yes” to question 3 in Section C of their EEO-1 Reports are at risk for having these reports made public. Employers who are concerned that their data will be made public should contact the OFCCP to ask whether its data is being included in the FOIA production and to request a copy of what is going to be produced. Employers may request an extension to file an objection after receipt of a copy of the production.
Second Circuit: Retaliatory Intent Required in Whistleblower Retaliation Claim
On August 5, 2022, in Murray v. UBS Securities, LLC, the Second Circuit Court of Appeals clarified the elements required for an employee to prove retaliation based on whistleblowing activity under the Sarbanes-Oxley Act of 2022 (SOX). To make a SOX claim, a plaintiff must show that they engaged in protected activity, the employer knew that the plaintiff engaged in a protected activity, the plaintiff suffered an unfavorable personnel action, and the protected activity was a contributing factor in the unfavorable action. The Second Circuit stated that because adverse action is prohibited “because of whistleblowing,” the “contributing factor” element includes a requirement to show that the employer acted with an intent to discriminate because of the lawful whistleblowing activity.
Seventh Circuit: FMLA Allows Plaintiffs to Recover Attorneys’ Fees
On August 16, 2022, in Simon v. Cooperative Educational Service Agency #5, the Seventh Circuit Court of Appeals stated that the remedy of “equitable relief” under the Family and Medical Leave Act (FMLA) includes obtaining a declaratory judgment, which is a legal determination by a court. The definition of equitable relief is significant because plaintiffs are eligible to receive attorneys’ fees when succeeding on a declaratory judgment. This was a matter of first impression to the court, but the court found it was supported by federal law’s general interpretation of “equitable relief.”
Ninth Circuit: NLRB May Order Union Attorneys’ Fees for Employer’s Bad Faith Negotiating
On August 11, 2022, in NLRB v. Ampersand Publishing, LLC, the Ninth Circuit stated that the NLRB has the power to issue a remedial order requiring an employer to reimburse a union for legal fees incurred during the collective bargaining process. The award is part of reimbursable bargaining expenses primarily aimed at restoring the economic status quo that would have existed but for the employer’s bad faith bargaining and other unfair labor practices.
11th Circuit: Federal Contractor Vaccine Mandate Extended
On August 26, 2022, the 11th Circuit Court of Appeals revised a previously existing injunction against the federal contractor COVID-19 vaccine mandate to only apply to the plaintiffs in that case, which includes Alabama, Georgia, Idaho, Kansas, South Carolina, and West Virginia. Other states not involved in the litigation also have injunctions in place. For those states not subject to an injunction order, the federal government appears to be maintaining its non-enforcement policy for the time being. Federal contractors should continue to monitor the status of the mandate for compliance.
California: AB 51 Prohibiting Mandatory Arbitration Agreements on Hold Again!
On August 22, 2022, the Ninth Circuit Court of Appeals vacated its ruling in Chamber of Commerce v. Bonta in favor of rehearing the case. Previously, the Ninth Circuit’s opinion interpreted AB 51’s prohibition on employer mandatory arbitration agreements to only apply before such an agreement is signed. While the rehearing is pending, AB 51 continues to be unenforceable. Employers should review the current and expected arbitration agreement landscape with legal counsel before making any changes to arbitration agreements.
Colorado: State Workers’ Compensation Act Clarified for Mental Health Records
As of June 9, 2022, HB 22-1354 requires mental health providers to give mental health records to self-insured employers for workers’ compensation purposes. Employers must keep mental health records separate from personnel files, and may not disclose the records to any person “who is not reasonably necessary for the medical evaluation, adjustment, or adjudication of claims involving psychological or psychiatric issues.” The bill also permits release of a claimant’s mental health information to their employer related to work restrictions and their claim, but prohibits disclosure of actual mental health records to third parties that don’t need the information.
Louisiana: Protections from Workplace Violence in the Healthcare Industry
Effective August 1, 2022, Louisiana adopted two bills that protect the healthcare industry from workplace violence. Act No. 461 requires healthcare facilities to: 1) post signage explaining that violence against healthcare staff will not be tolerated and can result in a felony conviction; 2) develop and maintain a comprehensive workplace violence prevention plan; and 3) report all instances of workplace violence that occur at the healthcare facility to appropriate authorities. Employers should also check the Louisiana Department of Health’s website for additional information regarding the above requirements including copies of signage and a checklist for the violence prevention plan. Act No. 129 adds enhanced penalties for those who commit assault or battery towards emergency room personnel, emergency services personnel, or a healthcare professional. Such an assault or battery is now a felony. A new criminal offense of unlawful disruption of the operation of a healthcare facility has also been created. Employers should review both acts, as well as the Louisiana Department of Health’s website.
Massachusetts: Still No Paid Leave Top-Off with PFML
On August 9, 2022, the Department of Family and Medical Leave confirmed on its website that employees are not permitted to use their accrued sick or vacation leave to “top off” their weekly Paid Family and Medical Leave (PFML) benefit in weeks that they are receiving benefits from the FML. Despite recent attempts by the legislature, there has been no change to the DFML law.
Michigan: Paid Medical Leave and Minimum Wage Laws in Effect Through February 19, 2023
The Michigan Court of Claims issued a stay of the Mothering Justice v. Nessel decision through February 19, 2023. In that case, the court had originally reinstated ballot initiatives that made significant changes to the state’s paid medical leave and minimum wage laws. Those laws were subsequently amended by the state legislature and those amendments were legally challenged. However, the amended versions of those laws will remain in place until the stay ends. It remains to be seen what may happen with the ballot initiatives on appeal.
Minnesota: Approval of Recreational Marijuana Use Creates New Issues for Employers
As of July 1, 2022, anyone over 21 years old can legally purchase and consume edible and drinkable products containing hemp-derived THC. While this new law does not explicitly protect applicants or employees who choose to consume now-legal THC products, employers should be aware of Minnesota’s “lawful consumable products” law in the event of a THC-positive test result. Minnesota protects employees from discipline based on participating in lawful activities outside of work. Whether the lawful consumable products law includes THC food products has not yet been determined. However, employers may restrict the use of lawful consumable products during nonworking hours if the restriction relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities of a particular employee or group of employees or is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer. Employers can still enforce policies prohibiting employees from possessing, using, and being under the influence of THC during work hours and on work property. With uncertainty on how exactly this law will be applied, employers should consult with legal counsel before disciplining or terminating an employee with a THC-positive test result.
New Jersey: New Posting Requirements Under the NJLAD and NFLA
As of August 1, 2022, regulations went into effect regarding poster and notice requirements under the New Jersey Law Against Discrimination (NJLAD) and Family Leave Act (NJFLA). Specifically, employers may electronically post NJLAD and NJFLA required posters to their internet or intranet site used by employees. If employers choose to electronically post, they must also annually provide copies of those posters to every employee, either through email, printed material, or an internet or intranet website.
New Jersey: Non-Disparagement Provisions Soon to be Barred by NJLAD?
As a result of the #MeToo movement, New Jersey amended the Law Against Discrimination (NJLAD) to prohibit nondisclosure or confidentiality clauses in employment or settlement agreements which have the purpose or effect of concealing details related to a claim of discrimination or harassment. In Savage v. Township of Neptune, the Appellate Division stated the NJLAD does not prohibit nondisparagement clauses. This ruling may not stand for long. On June 27, 2022, the New Jersey State Senate introduced S2930 to expressly include non-disparagement in the NJLAD in response to the Savage ruling. Continue to look for updates on this developing issue.
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. © 2022 ManagEase