Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

• The U.S. Citizenship and Immigration Service (USCIS) is pursuing a regulatory initiative that will provide for visa number lottery selection of H-1B petitions based on electronic registration.
• The USCIS is considering proposing a revised registration process for cap-subject H-1B petitioners. The proposed rule would create a process by which USCIS would randomly select a sufficient number of timely filed registrations to meet the applicable cap. Only those petitioners whose registrations are randomly selected would be eligible to file an H-1B petition for a cap-subject prospective worker. This rule would eliminate the need for petitioning employers to prepare and file complete H-1B petitions before knowing whether a prospective worker has “won” the H-1B lottery. The rule would also reduce the burden on USCIS of entering data and subsequently returning non-selected petitions to employers once the cap is reached.
• The U.S. Immigration and Customs Enforcement (ICE) plans to issue a final rule allowing electronic signature and storage of the I-9 employment eligibility verification form. The rule would essentially update Form I-9 by responding to comments and make minor changes to the interim final rule that was published in 2006.

The USCIS also plans to issue both proposed and final regulations relating to the I-9 form. A proposed rule would remove documents that are not state-issued from the list of documents considered acceptable for proof of identify (List B documents). The USCIS intends to issue a final rule that adopts an interim rule issued last year that removed expired documents from the list of acceptable identification documents. 

This entry was written by Ilyse Schuman.

Arbitration

Senator Russ Feingold (D-WI) has reintroduced the Arbitration Fairness Act (S. 931), a bill that would render unenforceable predispute agreements mandating arbitration of employment, consumer, franchise or civil rights claims.

Business Restructuring

The recently-introduced Alert Laid off Employees in Reasonable Time (ALERT) Act (H.R. 2077) would require employers to provide Worker Adjustment Retraining Notification (WARN) Act notices to employees in the event of mass layoffs that occur at more than one worksite, and would double the penalties for violations.

Congressional Leadership

Senator Arlen Specter (R-Pa) recently announced his intent to run for reelection as a Democratic in the 2010 primary, bringing Democrats closer to a filibuster-proof majority.

Discrimination in the Workplace

The Fair Pay Act (S. 904, H.R. 2151) was reintroduced in both the House and Senate. This bill would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work.

Immigration

Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced the H-1B and L-1 Visa Reform Act (S. 887), legislation that would completely reform the H-1B and L-1 visa guest worker programs.

Labor-Management Relations

The Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) has announced that it plans to issue a notice of proposed rulemaking regarding revisions to the Labor Organization Officer and Employee Report (LM-30) financial disclosure form.

Meanwhile, the U.S. Court of Appeals for the District of Columbia Circuit has held that the National Labor Relations Board acted without authority in entering an order against a company for alleged unfair labor practices, as the two-member panel did not constitute a quorum as required by the National Labor Relations Act.

Work/Family Balance

Two bills were introduced this week that seek to amend the Family and Medical Leave Act (FMLA) and its regulations. The Family and Medical Leave Restoration Act (H.R. 2161) would essentially nullify the new DOL regulations, restore prior ones, and direct the Secretary of Labor to revise additional regulations under this Act. The Family and Medical Leave Inclusion Act (H.R. 2132) would amend the FMLA to permit eligible employees to take up to twelve weeks of unpaid leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling or grandparent who has a serious health condition.

Workplace Safety

Employers are advised to establish a workplace safety plan to specifically address the public health emergency surrounding the swine flu outbreak.  On April 29, 2009 the World Health Organization (WHO) raised the pandemic alert level to Phase 5, with Phase 6 indicating that a global pandemic is under way.

In legislative news, the Protecting America’s Workers Act (PAWA) (H.R. 2067), a bill that would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations, was reintroduced.  Additionally, on April 28, both the House and Senate conducted hearings to address the adequacy of employer incentives for maintaining safe workplaces and penalties for violating OSH laws. Lawmakers in both chambers stressed the need for OSH reform.

EFCA

Andy Stern, head of the Service Employees International Union (SEIU) has acknowledged problems in passing the Employee Free Choice Act (EFCA).

Employee Benefits

The Conflicted Investment Advice Prohibition Act of 2009 (H.R. 1988) would amend ERISA regarding the provision of independent investment advice.

Immigration

The New Employee Verification Act of 2009 (H.R. 2028) would replace E-Verify. Meanwhile, the U.S. Citizenship and Immigration Services announced that the H-1B cap has still not been reached.

Labor/Management Relations

The Patriot Employers Act (S. 829) was reintroduced. This bill would provide a tax credit to employers that create and maintain domestic jobs with specific pay and benefits and maintain neutrality toward union organizing efforts.

The Green Jobs Improvement Act (H.R. 2026) would amend the Workforce Investment Act to make non-union training programs eligible for federal funding under the “Green Jobs” program.
 

Employee Benefits

The Internal Revenue Service has released guidance on the COBRA premium subsidy provided for in the stimulus package.  The Department of Labor (DOL) has likewise issued expanded guidance on the COBRA subsidy notice requirements.

Immigration

The U.S. Citizenship and Immigration Services (USCIS) announced that it will continue to accept applications for initial H-1B status more than a week after the filing season opened.

Workplace Safety

OSHA has released a guidance document on assigned protection factors for respirators.  The agency has also released a revised Field Operations Manual.
 

These new requirements were established by the Employ American Workers Act (EAWA), a component of the American Recovery and Reinvestment Act (ARRA) – otherwise known as the stimulus package – signed into law on February 17, 2009. Under EAWA, companies receiving covered funds must guarantee that they will not displace citizen employees. If they seek to hire employees under the H-1B visa program, they are considered “H-1B dependent employers” that must make the following additional attestations to the U.S. Department of Labor (DOL) when filing a Labor Condition Application (LCA):

• It has taken good faith steps to recruit U.S. workers (defined as U.S. citizens or nationals, lawful permanent resident aliens, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens) using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B nonimmigrant;
• It has offered the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant;
• It has not “displaced” any U.S. worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant is sought; and
• It will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker.

The EAWA applies to any LCA and/or H-1B petition filed on or after February 17, 2009 involving any employment by a new employer. Petitions covered by this Act include those filed for new hires whose petitions were approved before this date, but did not start employment until after February 17. The EAW does not apply to petitions to change the status of a foreign worker already working for the employer in another work-authorized category, nor to those seeking an extension of stay for a current employee for the same employer.

The USCIS is revising Form I-129, Petition for Nonimmigrant Worker to include a question asking whether the petition seeker is a recipient of covered funds. This form will be available prior to April 1, 2009, when the agency will begin accepting H-1B petitions subject to the fiscal year 2010 cap.