US DOS Extends and Expands Visa Interview Waiver Eligibility; President Rescinds Latest Covid Travel Ban (US)

Due to the limited capacity to adjudicate visa applications during the COVID-19 pandemic, the Department of State (DOS) announced the extension and expansion of its nonimmigrant visa interview waiver program through Dec. 31, 2022. Currently, U.S. consular officers may waive the in-person interview requirement for applicants who are renewing any type of nonimmigrant visa in the same visa category within 48 months of its expiration. That authorization has now been extended indefinitely.

On Dec. 23, 2021, DOS, in consultation with the Department of Homeland Security, granted consular officers through the end of 2022, the authority to waive the in-person interview requirement for certain nonimmigrant visa applicants and their qualifying derivatives who have a petition approved by the U.S. Citizenship and Immigration Services (USCIS). The expanded authority applies to H-1, H-3, H-4, L, O, P and Q applicants, provided the applicants meet certain conditions. Continue Reading

State Law Round-Up: Year-End Edition (US) (Part 2 of 2)

social network of the united states of america, abstract image visualWelcome to Part 2 of the 2021 Year-End Edition of the State Law Round-Up, covering states in the second half of the alphabet. Part 1, covering the first part of the alphabet, can be found here.

Maine:  Maine’s “ban-the-box” law, HP 845, went into effect October 18, 2021.  The law prohibits private employers from requesting criminal history record information on an initial application form or stating on an initial application form or advertisement that a person with a criminal history may not apply or will not be considered for a position.  Violators may be subject to a daily penalty per violation of up to $500 per day.  Employers are exempt from these requirements if federal or state law, regulation or rule provides that (i) a criminal conviction disqualifies an applicant, (ii) imposes an obligation on an employer not to hire anyone convicted of a certain offense, or (iii) requires employers to conduct a criminal history record check.  Continue Reading

State Law Round-Up: Year-End Edition (US) (Part 1 of 2)

social network of the united states of america, abstract image visualWelcome to the 2021 Year-End Edition of the State Law Round-Up! Due to the large number of updates, we will be splitting this State Law Round-Up into two parts, with each part organized alphabetically by state; today we will cover the first half of the alphabet, and tomorrow the remainder. Two exceptions:

  • First – Minimum Wage Updates. State and local governments are still leading the charge to higher minimum wage rates. Our updated minimum wage chart, with rates in effect as of January 1, 2022, is available here.
  • Second – Hairstyle Discrimination Prohibitions Continue to Gain Momentum. Dozens of jurisdictions have passed laws prohibiting employers from discriminating against employees based upon traits typically associated with race, including hairstyle and hair texture. In fact, six states and almost twenty municipalities have passed laws that went into effect during 2021 or will become effective by January 1, 2022. These include: Connecticut; Delaware; Nebraska; Nevada; New Mexico; Oregon; Tucson, AZ; Clayton County and East Point, GA; Louisville, KY; Shreveport, LA; Ann Arbor, MI; St. Louis, MO; Durham, Orange County, and Greensboro, NC; Albuquerque, NM; Columbus, OH; Pittsburgh, PA; Dane County, WI; and Beckley, Charleston, Lewiston, and Morgantown, WV.

And now, for the state-by-state updates!

California:

  • For California updates, please see our recent blog post here.

Connecticut:   

  • Paid Family and Medical Leave Act. Beginning on January 1, 2022, eligible employees may apply for paid family and medical leave benefits under Connecticut’s Paid Family and Medical Leave Act. The PFMLA provides partial wage replacement to eligible employees who take leave for qualifying events; it does not provide a leave entitlement or job protection.
  • Lactation Accommodation Changes. Currently, under C.G.S. 31-40w, all Connecticut employers must make reasonable efforts to provide a room or other location where employees can express breast milk in private.  Following the lead of New York City and California, Connecticut has amended its law to further specify the nature of the room or other location that an employer must provide.  Effective October 1, 2021, unless it would impose an undue hardship on the employer, the room or other location: must be private; must include or be near a refrigerator or employee-provided portable cold storage device in which the employee can store breast milk; and must have an electrical outlet. 
  • Equal Pay. Under HB 6380, beginning on October 1, 2021, Connecticut employers must: (a) disclose the wage range for a position to an applicant upon the earlier of (i) the applicant’s request or (ii) when the applicant is given an offer of compensation; and (b) must provide the wage range for an employee’s position upon hire, upon a change in position, or upon an employee’s request.  “Wage range” is defined as the “range of wages an employer anticipates relying on when setting wages for a position, and may include reference to any applicable pay scale, previously determined range of wages for the position, actual range of wages for those employees currently holding comparable positions or the employer’s budgeted amount for the position.”  In addition, employers are prohibited from discriminating against employees by paying employees who perform comparable work at different rates.
  • Sexual Harassment Training Requirement Amendments. Under current Connecticut law, employers with three or more employees must provide employees with at least two hours of sexual harassment prevention training at least once every ten years. SB 1023 modifies this requirement.  Effective October 1, 2021, if an employee has received the CHRO in person or online training (not private training) with a different employer within two years of hire, the new employer is not required to provide training upon hire.
  • Employment Application Restrictions. Under SB 56, effective October 1, 2021, Connecticut employers may no longer ask applicants to provide their age, date of birth, or dates of attendance at or graduation from an educational institution on an initial employment application, unless the information is based upon a bona fide occupational qualification or is needed to comply with applicable law.
  • Voting Leave. Effective June 23, 2021, Included in a Connecticut special session bill (SB 1202) is a requirement that employers provide their employees with two hours of unpaid time off to vote in state elections.  The mandate took effect June 23, 2021.
  • Marijuana Testing. While recreational adult use of marijuana was legalized in Connecticut as of July 1, 2021, employers may still prohibit recreational marijuana use in the workplace. However, under SB 1201, employers (with a few exceptions for employers in certain industries) may not take adverse action against applicants for pre-employment marijuana use, and can only take adverse action against a current employee who tests positive for use of marijuana if the testing was based on “reasonable suspicion” of intoxication, part of a “fitness for duty” requirement, or was conducted on a random basis (if the employer has a written random drug testing policy or has a legal requirement to perform random testing).

District of Columbia: As reported in our last State Law Round-Up (here), earlier this year Washington, D.C. banned non-compete agreements, with few exceptions. However, effective date of the non-compete ban has been extended to April 1, 2022, giving employers more time to prepare (and giving the District time to consider changes to the non-compete law).

Florida:  Florida’s Combating Corporate Espionage in Florida Act took effect on October 1, 2021. Among other things, the Act increases the penalties for stealing (or attempting to steal) trade secrets to up to five years in prison and creates a new penalty for someone trafficking (or attempting to traffic) trade secrets they knew or should have known were obtained without authorization.

Illinois:

  • Chicago Amends Paid Sick Leave Law. Changes to Chicago’s paid sick leave ordinance went into effect on August 1, 2021.  The amendments include an expansion of the reasons for which an employee may take paid sick leave to include reasons relating to quarantine or isolation.   Additionally, the amendments allow employees to bring wage theft claims against employers for wages due, paid time off required under the paid sick leave law, other laws, or any contract between the employee and the employer, or for employee benefits required by contract.  Finally, the amendments require employers to post and disseminate to employees a revised notice, informing employees of their expanded rights.
  • Illinois Equal Pay Reporting. As anticipated in our last State Law Round-Up, earlier this year, Illinois amended its Equal Pay Act, requiring employers of 100 or more employees in Illinois to obtain an equal pay registration certificate from the Illinois Department of Labor (IDOL) by March 23, 2024 and to renew that certification every two years.  To obtain the certificate, the employer must apply and provide disclosures and affirmations.  Failure to obtain the required certification, or having the certification revoked or suspended, would result in a mandatory civil penalty of one percent of the employer’s gross profits.  On June 25, 2021, Illinois further amended the Equal Pay Act, among other things, changing the initial certification deadline, expanding the employer reporting requirements and doing away with the one percent penalty. Under the amendments, the IDOL will assign individual businesses a deadline by which to apply for certification; the deadline could be as early as March 24, 2022 or as late as March 23, 2024. If the IDOL does not assign a business a deadline, the business is not excused from compliance; rather, it should apply within the above deadlines. The amendments also modified in several aspects the information that employers must compile and submit or attest to as part of the certification process.
  • Illinois Wage Payment and Collection Act Amendment. A recent amendment to the Illinois Wage Payment and Collection Act (IWPCA) (820 ILCS § 115/1 et seq.), effective July 9, 2021, allows employees to recover 5% of the amount of underpayments for each month the amount goes unpaid.  This amounts to a 3% increase to an employer’s monthly liability in the event of a wage violation.
  • Illinois VESSA Amendments. The Victims’ Economic Security and Safety Act (VESSA) ­­­– under which eligible Illinois employees can receive unpaid time off for certain reasons if they (or a “family or household member”) were victims of domestic, sexual or gender violence – was recently amended by House Bill 3582.  Effective January 1, 2022, the definition of “family or household member” is expanded to include grandparents, children, grandchildren, siblings, members of a civil union, or “any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee.”  Moreover, victims of a “crime of violence” (as defined in the law) will now be eligible for VESSA leave.  HB 3582 also sets forth allowable documentation requirements and requires employers to hold all information received in connection with a VESSA request (including the request itself) in strict confidence.
  • Artificial Intelligence Video Interview Act (AIVIA). Employers who rely solely on artificial intelligence to determine an applicant’s qualifications for an in-person interview will – effective January 1, 2022 – be subject to additional collection and reporting requirements.  Under Illinois’ Artificial Intelligence Video Interview Act (AIVIA), as amended by B. 53, employers will be required to collect race and ethnicity information for all applicants and all individuals ultimately hired.  Moreover, starting December 31, 2022, employers must submit annual reports to the Department of Commerce and Economic Opportunity regarding all collected data for the preceding 12-month period ending November 30.

Indiana: Indiana H.B. 1309 went into effect on July 1, 2021; the law merely requires employers with fifteen or more employees to respond to any requests for an accommodation related to pregnancy or childbirth within a reasonable time, and prohibits such employers from retaliating against employees for requesting such accommodations. The Act does not require employers to grant any accommodations.

Kentucky: Amendments to Kentucky’s Adoption Leave Law went into effect on June 28, 2021.  Previously, the law required employers to provide up to six weeks of adoption leave for adoption of children under age seven.  Under the amendments, the leave extends to adoptions of children under age ten; additionally, if an employer provides more than six (6) weeks of leave to employees following the birth of their biological child, then that longer amount of leave must be provided to qualifying adoptive parents as well. The amendments also require employers to provide the same benefits to adoptive parents as they do birth parents. Finally, the amendments include new restrictions, excluding adoptions by relatives and adoptions of foster children already in the foster parent’s care.

Louisiana:

  • Pregnancy Leave and Accommodations. Effective August 1, 2021, Louisiana expanded protections for pregnant employees; employers with 15 or more employees in Louisiana must now provide reasonable accommodations to employees who need such accommodations due to pregnancy, childbirth, lactation, postpartum or related medical conditions, unless it would pose an undue hardship on the employer.  Reasonable accommodation includes up to four months of unpaid leave (limited to six weeks for normal pregnancy, childbirth or related medical conditions) during any period of disability. Examples of other reasonable accommodations include providing more frequent breaks, providing light duty, if available, and modifying work schedules.  Employers are required to notify employees of the new requirements by December 1, 2021, must notify new employees upon commencement of employment, and must post notice of the law’s requirements in a conspicuous place.
  • Louisiana “Ban-the Box” Law. Louisiana has joined a growing list of states enacting “ban-the-box” laws, which limit employers from inquiring into an applicant’s criminal history.  As of August 1, 2021, employers may not, when making a hiring decision, request or consider an applicant’s arrest record or charge that did not result in a conviction if the information was received in the course of a background check. Further, employers may not consider an applicant’s criminal history unless they have made an “individual assessment” (as described in the law) as to whether it “has a direct and adverse relationship” with the specific duties of the job.  Finally, if the applicant submits a written request, employers must provide the applicant with any background check information used during the hiring process.
  • Louisiana Independent Contractor Test.  Effective August 1, 2021, Louisiana adopted a new multi-factor test to determine if a worker is an independent contractor under the state’s unemployment law.  Per HB 705, if an employer fails to properly classify an individual as an employee, they may be assessed an administrative penalty of $500 per individual (although the penalty may be waived if the employer becomes compliant within 60 days of the penalty).  The penalty for misclassification doubles to $1,000 for a second offense.  All penalties thereafter will be $2,500 per offense.

 

US Supreme Court to Hear Vaccine Mandate Appeals

In a pair of orders consolidating several pending cases, on December 22, 2021, the US Supreme Court agreed to hear emergency appeals from orders from multiple federal appellate courts relating to two of the pending COVID-19 vaccine mandates – the Emergency Temporary Standard (ETS) issued by the US Occupational Safety and Health Administration (OSHA) and the Executive Order issued by President Biden requiring vaccination for certain health care workers. As we’ve extensively covered in prior blog posts, both measures were initially enjoined by lower federal courts. The health care worker mandate remains blocked, but following the Sixth Circuit Court of Appeals’ dissolution of the Fifth Circuit’s order enjoining the ETS, that requirement, applicable to all US private employers with 100 or more employees, was cleared to move forward, with initial compliance required by January 10, 2022.

The Court set the cases for oral argument on January 7, 2022, but did not stay the lower courts’’ decisions pending its hearing. Employers impacted by the ETS and health care worker mandate therefore should strongly consider continuing preparations for compliance in the event the Court decides that these measures can be enforced.

Looking into workplace investigations, Part 5 – seeking truth, justice or resolution? (UK)

Workplace Investigation

Decades of presenting employment law training have taught me that if you ask seasoned HR audiences what they think employees usually want from a grievance, they will generally lie.  “Justice“, someone will mutter uncomfortably, or “for the truth to come out”, “a better relationship with their manager” or “to correct a wrong“, all straining every sinew not to say what they actually believe. Eventually someone’s self-control will break — “Money“, one will suddenly blurt, “money and revenge“. Then the tension in the room disappears and we can all stop pretending because everyone knows, surely, that you wouldn’t bring a grievance unless you wanted cash and someone else to suffer.

Pre-empting that expectation, employers sometimes a closed and defensive posture on receipt of a grievance, determined to batter flat any allegation they think might cost them.  However, that is not always the reality, at least not until lawyers and unions become involved.  Prior to that there may well be a brief point where a more constructive approach may pay dividends, a point before the formal grievance and investigation machinery has groaned into motion and developed a momentum it can be hard to stop.

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New York Latest State to Provide Additional Employee Privacy Protections With Electronic Monitoring Law (US)

From Labor & Employment Partner Katharine Liao and our Data Privacy & Cybersecurity colleague Kristin Bryan, below is a post from Squire Patton Boggs’  Consumer Privacy World blog covering recent legal developments involving electronic monitoring of employees in New York State.

Beginning on May 7, 2022, employers in New York State who engage in electronic monitoring of employee communications will be required to notify their workers of such monitoring.

S2628, signed into law on November 8, 2021, requires all employers in the state of New York to provide prior written notice to newly hired employees if they intend to monitor or otherwise intercept telephone conversations or transmissions, email, or internet access or usage of or by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio, or electromagnetic, photoelectronic or photo-optical systems.  This likely includes videoconferencing platforms such as Zoom or Teams.  Notice must be: Continue Reading

Looking into workplace investigations, part 4 – respecting the rights of bullies and harrassers (UK)

Workplace InvestigationWhen drawing up your preliminary note of what you need to know as the product of your investigation, remember that the people being investigated have rights too.  Some we will come to later in this series, including confidentiality and a fair process, but the first and most fundamental part of a fair “trial” is knowing what you are accused of.  Of course, the investigation is not a trial as such, but since it may lead on to relatively public steps such as suspension or disciplinary procedures, that right should be treated as engaged from the start.

This does not mean just understanding the allegations in generic terms – harassment, bullying, failure to comply with a legal obligation, but very specifically.  That means the detail that you would want to know if it were you under the microscope, granular enough to give you a reasonable opportunity to admit, deny or explain specific instances.  The sort of detail which allows you a reasonable chance to recall particular incidents or to justify or mitigate particular words or decisions by reference to other circumstances at the time.  The sort of detail you would be entitled to if the position had gone beyond investigation and was now a full-blown disciplinary.

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DOL Extends ETS Compliance Deadline to January 10, 2022 (US)

As we reported previously, the Sixth Circuit Court of Appeals lifted the stay of enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard, which requires employers with 100 or more U.S. employees to ensure by January 4, 2022 that their workforces are fully vaccinated or ensure they test negative at least weekly for COVID-19 as a condition of reporting to the workplace or working with customers or coworkers. The decision left many U.S. employers scrambling to ensure compliance just as they head into their holiday vacations. In a welcome announcement early on December 18, 2021, the Department of Labor announced that, in light of the timing of the decision, it would not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the ETS’s testing requirements before February 9, 2022, as long as an employer is exercising reasonable, good faith efforts to come into compliance with the ETS. Therefore, although employers covered by the OSHA ETS are urged to do as much as possible to gather information regarding their workforces’ vaccination rates, comply with recordkeeping requirements, and distribute OSHA-compliant policies by the January 4 deadline, evidence of good faith attempts to comply with the ETS will grant employers a brief reprieve until January 10, 2022 to come into full compliance. The added time also allows for the possibility that one of the many applications filed with the Supreme Court of the United States to grant an emergency stay of the Sixth Circuit’s decision may be granted.

Sixth Circuit Lifts Stay of OSHA Vaccine Mandate – ETS In Effect Starting January 4, 2022 (For Now) (US)

COVID-19 VaccineIn the latest chapter in the dizzying fight over private employer vaccine mandates, on December 17, 2021, the Sixth Circuit Court of Appeals lifted a sister appellate court’s stay of the Occupational Safety and Health Administration’s (OSHA) requirement that employers with 100 or more U.S. employees require vaccination or weekly testing and face coverings as part of a comprehensive COVID-19 mitigation strategy. As we previously reported, President Biden announced in September 2021 that he would be directing OSHA to adopt rules that require vaccination or testing, which rule (the OSHA Emergency Temporary Standard, or ETS) was published in early November, to mixed reviews. So mixed, in fact, that nearly three dozen lawsuits were filed to permanently stay or invalidate the ETS. The first to result in a decision was heard by the Fifth Circuit Court of Appeals, a panel of which concluded in a 2-1 decision that implementation of the ETS should be stayed as the measure was not required and exceeded the scope of OSHA’s authority. From there, the various suits filed across the country seeking to invalidate the ETS were consolidated for review by a single court, the Sixth Circuit Court of Appeals. A historically conservative jurisdiction, many assumed that the Sixth Circuit Court of Appeals would follow the Fifth Circuit and deem the ETS unconstitutional, or at least improvidently issued. Even OSHA appeared skeptical that the ETS would survive the Sixth Circuit’s review, as the agency published a statement on its website staying its own rule pending judicial review. Continue Reading

Implementation of EU Whistleblowing Directive: Where are we now?

Whistleblowing Directive - Where are we now?Answer – for the most part, roughly where we were three months ago.

In September, we produced a short note setting out the state of play in the EU concerning implementation of the new Directive on the protection of persons who report breaches of EU law (the Whistleblowing Directive). Very little has changed since then, perhaps unsurprisingly given the emergence of Omicron in the meantime, and it now seems that the vast majority of EU countries will miss this Friday’s 17 December deadline, with any relevant local legislation slipping into 2022. See below our “at a glance” table showing the current status of implementation in certain key European countries.

As the UK has already left the EU, it will not be required to implement the Directive. To the extent UK companies have operations in continental Europe, however, it will of course still be relevant and changes to UK whistleblowing policies and procedures may still be necessary if they are part of a European/global framework.

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