“Go back to work or risk losing your job” – fact and fiction in the return to the workplace (UK)

Return to workFriday’s headline in The Telegraph above heralds the launch of a new Government campaign to encourage those currently working from home back into their physical offices.  A series of noticeably unnamed Government Ministers and “sources” told the paper that “bosses at struggling firms will find it easier to hand out P45s to people they never see than to those who have been at their desks during the pandemic” and separately, “People need to understand that WFH is not the benign option it seems…suddenly the word “restructure” is bandied about and people who have been working from home find themselves in the most vulnerable position“.  One Cabinet Minister went further – though seemingly unencumbered by the need for any actual evidence – and boldly asserted that “Companies will realise some people weren’t working as hard as they thought…there is going to be a review of how productive people are”.

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IRS Guidance on the Payroll Tax Executive Order (US)

On 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 directs the Secretary of the Treasury to permit deferral of employee Old Age, Survivors and Disability Insurance (“OASDI”) taxes for payroll dates on and after September 1, 2020 through December 31, 2020.

The Order was the subject of a prior Blogpost on August 11, 2020.[2] That Post reviewed many legal and practical concerns associated with attempting to implement the Order. It also emphasized that the Secretary of Treasury was to issue guidance on how to implement the Order.

On August 28, 2020, the IRS issued Notice 2020-65 to provide long awaited guidance in relation to the Order. This Post summarizes the guidance in Notice 2020-65, and remaining legal and practical issues pertaining to the Order. Continue Reading

Department of Labor Schools Parents On Leave Options During Virtual Learning (US)

We previously blogged on the myriad challenges faced by workers whose children are returning to school this fall: some online, some in-person, and some a combination of both. As we noted in our prior post, the Families First Coronavirus Response Act (FFCRA), which is effective through December 31, 2020, provides up to eighty (80) hours of emergency paid sick leave (EPSL) to care for a minor son or daughter whose school, daycare, or regular daycare provider has closed or become unavailable due to COVID-19 related reasons. The FFCRA also provides up to twelve (12) weeks of job-protected expanded emergency family medical leave (EFML) to employees who have worked at least thirty (30) days and who require extended time-off due to school, daycare, or daycare provider closures or unavailability caused by COVID-19. For EPSL taken for childcare reasons and for EFML, employers must pay their employees at least two-thirds (2/3) their regular rate of pay, up to $200/day; however, the first two weeks of EFML may be unpaid. As with other aspects of the FFCRA, the Act only applies to employees of public employers and private employers with fewer than 500 employees.

But the FFCRA and its implementing guidelines did not fully address how the FFCRA could be utilized by parents facing virtual or hybrid educational options for their school-age children this fall. Trying to fill that gap, on August 27, 2020, the U.S. Department of Labor (DOL) updated its informal FFCRA guidance (which it provides in the form of FAQs on its website) to address virtual learning arrangements. Continue Reading

FLSA Compliance Update: Employers Must Exercise Reasonable Diligence In Tracking Hours Worked By Remote Workers (US)  

Due to the COVID-19 pandemic, many employers have implemented teleworking and other remote work arrangements for their employees. Because these employees are not physically present in the workplace, there has been some uncertainty surrounding what obligations employers have to under the Fair Labor Standards Act (“FLSA”) to monitor and track hours worked by non-exempt, hourly paid, remote employees. To address this uncertainty, on August 24, 2020, U.S. Department of Labor’s (“DOL”) Wage and Hour Division (“WHD”) issued a Field Assistance Bulletin providing guidance to employers on how to, consistent with the FLSA, track the number of hours of compensable work performed by non-exempt employees who are teleworking or otherwise working remotely, away from any employer-controlled worksite or premises. Although the guidance responds directly to needs created by new telework arrangements that have arisen as a result of COVID-19, it also applies to other telework or remote work arrangements more generally. Continue Reading

DHS Finalizes a New Fee Schedule to Take Effect on October 2, 2020 (US)

The Final Rule  

A final rule was published in the Federal Register on August 3, 2020, which considerably increases USCIS’ fees and makes other changes to immigration benefits. DHS originally announced a proposed rule in November 2019; however, the final rule differs in certain aspects from the original proposal. Under the final rule, the fee increases and other changes most significantly affect the applications/petitions for naturalization and adjustment of status, as well as some of the most heavily utilized I-129 employment-based petitions for nonimmigrant workers.

Impact on Immigrant Visa and Adjustment of Status Applications

While most fees for employment-based processes will increase under the final rule, the fees for employment-based I-140 immigrant visa petitions will decrease by 21%.

Additionally, while the I-485 filing fee would marginally decrease for all applicants, USCIS would reinstate a filing fee for each of the Employment Authorization Document (EAD) and Advance Parole (AP) applications, which USCIS had previously done until 2007 when it began waiving the fees for those applications when filed together with Form I-485. Currently, adjustment applicants do not need to pay separately for their initial EAD and AP, or a renewal application, while their adjustment application is pending. Additionally, children under 14 will be required to pay the full amount of the I-485 filing fee instead of the current reduced amount. Continue Reading

When dinner parties go bad – fun furlough facts released by HMRC (UK)

Your social gathering is going to have to be in real trouble before you resort to this, but if you have exhausted the A Level fiasco and lack the strength to move on to Brexit, how about regaling your companions with some furlough facts for their amusement and delectation, courtesy of HMRC’s August 2020 report on take-up of the Coronavirus Job Retention Scheme up to 30 June?

The report begins with the cautionary note that the statistics in it are “experimental”. It is not immediately clear whether that means politically, mathematically or methodologically, but in any case, while subject to rounding and revision, they are unlikely to be wildly off the mark.

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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

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