Unpacking National Interest Exception Requirements to Recent Presidential Proclamations Suspending Entry of Immigrants and Nonimmigrants: Hoops and Hurdles Remain (US)

On August 12, 2020, the U.S. State Department issued new guidance (“State Department Guidance”) on parameters for National Interest Exceptions to Presidential Proclamation 10052. As our previous post outlined, Proclamation 10052 suspended U.S. entry for certain nonimmigrants on H-1B (specialty occupation), H-2B (temporary workers), L-1 (intracompany transferees), and J-1 (exchange visitors participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs) visas through the end of 2020, along with their dependent spouses or children on H-4, L-2, or J-2 visas.  It also extended Proclamation 10014, suspending U.S. entry for certain immigrant visa applicants (would be lawful permanent residents), through December 31, 2020.

This post analyzes the new State Department Guidance and its potential effect on visa applicants and those seeking a National Interest Exception (NIE) to Presidential Proclamation 10052. Continue Reading

Procedure-free dismissal found fair – don’t try this at home (UK)

“Loss of trust and confidence” is often pleaded as a basis for a fair dismissal, but rarely successfully.  Employment Tribunals are astute to employers using it as a short cut to address performance or conduct issues without going through a proper procedure.  After all, a dismissal without a fair procedure is going to be unfair anyway, yes?

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EEOC Issues Guidance Clarifying When Opioid Users are Protected From Disability Discrimination Under the ADA (US)

Opioid abuse is widespread in America and the opioid epidemic impacts people from all walks of life, which presents unique challenges for employers who want to limit the potentially adverse effects opioid use may have on their employees and their workplaces. Given the severity of the crisis, it is tempting for employers to want to implement strict policies that discourage and/or punish opioid use or to refuse to accommodate certain opioid dependency-related requests in an attempt to eliminate the perceived risks associated with opioid use from their work environment. However, it is important for employers to be aware of and adhere to their obligations under the law. The U.S. Equal Employment Opportunity Commission (“EEOC”) recently provided some insight regarding federal employment protections related to opioid use, and clarified employers’ obligations to accommodate an employee’s opioid use and treatment for opioid addiction under federal law. Continue Reading

Executive Order Regarding Payroll Taxes (US)

On Saturday, August 8, 2020, President Trump issued an executive order titled “Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster” (the “Order”)[1]. The Order provides for the deferral of certain payroll taxes. The Order will be effective for wages paid on or after September 1, 2020 and will have to be implemented pursuant to Guidance issued by the Treasury Department. Thus, this blogpost provides some initial information and thoughts about the Order. We expect that more details will become available soon. Continue Reading

Correcting errors in furlough claims: the clock is ticking (UK)

Ticking Clock

The period of time in which employers can correct any errors and amend claims under the Coronavirus Job Retention Scheme without incurring penalties has been extended to:

  • 90 days after the day on which the Finance Act 2020 was passed (22 July 2020); or
  • 90 days after the day on which the income tax on the payment made becomes chargeable,

whichever is the later. The previous period was 30 days.

We are seeing increasing concern amongst employers, given the complexity of the rules around the Scheme (particularly in relation to flexible furlough), that they may have unwittingly over-claimed under the Scheme – which could result in a clawback of funds from HMRC.

We are supporting a number of employers in conducting “Furlough Audits” to provide comfort that they have calculated their claims correctly and to give them the opportunity to amend any errors without penalty during the legal time limit. Learn more about our Furlough Audits here.

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Executive Order Sets Stage for Restrictions on Government Contractor Visas and Offshoring (US)

On August 3, 2020, President Trump signed an Executive Order (“Aligning Federal Contracting and Hiring Practices With the Interests of American Workers” hereafter “Executive Order”) calling for a broad review of the government’s use of visa holders and outsourcing across its extensive government contracting networks.

The White House announced that the Executive Order is, at least in part, a response to the federally-owned Tennessee Valley Authority’s decision to begin outsourcing overseas one-fifth of its U.S.-based technology jobs. Outsourcing has become a more popular option for U.S. employers seeking a way to cut costs and in response to increasingly difficult visa adjudications created by president Trump’s restrictive immigration policies. Continue Reading

New “week’s pay” regulations get an A for aspiration, E for execution (UK)

Meet E.  He is the poor soul at the heart of this week’s new statutory instrument concerning the rights of employees who are dismissed on or after furlough.

E is anxious that if he is dismissed while on furlough or soon after he comes off it, then his reduced earnings over that period will prejudice his statutory entitlements.  So he should be grateful for the new Regulations issued today, the does-what-it-says-on-the-tin Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020.  These provide at considerable length and complexity that where the calculation of E’s “week’s pay” for statutory purposes is dented by his reduced earnings through being on furlough, that calculation is to be re-done based on his pre-furlough remuneration.  This is obviously primarily relevant to those whose weekly earnings while on furlough were less than the current statutory cap of £538 per week and were not topped up by the employer to their usual rate.  All quite sensible in principle, preventing employers from making redundancies on the cheap by taking advantage of the furlough scheme.

But this very worthy objective is then tragically holed below the waterline by the drafting of the new Regulations.  Reg 3(1)(b) includes in that protection any sums paid to E in respect of his statutory minimum notice entitlement under Sections 88 and 89 ERA 1996, while Reg 3(1)(e) says that it also includes an award of compensation for unfair dismissal “calculated in accordance with Sections 118 to 126 ERA”.  If you are not squeamish about close-ups of open wounds, these two repay a closer look.

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Federal Appeals Court Allows Title VII “Sex-Plus-Age” Claims (US)

Courthouse close with Justice inscribedThe Tenth Circuit – covering Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming – just became the first federal appellate court to explicitly rule that employees can bring “sex-plus-age” claims against employers under Title VII of the Civil Rights Act of 1964—a claim alleging discrimination on the basis of gender against individuals over the age of 40. Relying heavily on the landmark U.S. Supreme Court decision from earlier this year in Bostock v. Clayton Cnty., Ga. protecting employees from sexual orientation-based discrimination (see our post here), the Court’s ruling sets the stage for additional federal appeals courts to follow suit.

In Frappied v. Affinity Gaming Black Hawk, LLC, female employees, each of whom was age 40 or older when they were terminated by their employer, brought “sex-plus-age” disparate impact and disparate treatment claims under Title VII, as well as separate age-based claims under the Age Discrimination in Employment Act (“ADEA”). The Title VII claims were distinctive in the sense that they alleged a combination of discriminatory motives, not all of which are covered by Title VII. Title VII protects against race, color, religion, sex and national origin discrimination, but not age.     Continue Reading

Post-lockdown working, Part 5 – doing your homework (UK)

The logical extension from the discovery that all or most or your staff can work from home without anything catastrophic happening is to ask yourself whether you actually need an office in the first place.  Obviously it has potential advantages in terms of staff cohesion and corporate identity, but decisions are being made across the country right now about whether full-size physical offices are worth the cost.  An increasing number of employers are making homeworking for those staff not just an option but compulsory, a whole new way of working.  If this is or might be you, what are the employment considerations?

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Pennsylvania Hazard Pay for COVID-19 Frontline Workers (US)

On July 16, 2020, Pennsylvania Governor Tom Wolf announced a hazard pay grant program to help employers provide additional pay for employees engaged in life-sustaining occupations during the COVID-19 pandemic.  This hazard pay is funded by $50 million from the CARES Act and is intended to recognize and reward frontline workers and to help eligible employers retain employees. Continue Reading