An Extended Pause: New Presidential Proclamation Halts US Entry for Thousands of Workers

As expected, President Trump signed a presidential proclamation (“Suspension of Entry of Immigrants and Nonimmigrants who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak” hereafter “Nonimmigrant Proclamation”) extending the duration of his prior suspension of immigrant visas (for those entering the U.S. permanently) and creating a new suspension for those seeking entry across a broad swath of nonimmigrant visas (those entering temporarily, particularly for employment). Continue Reading

DHS Extends Flexibility Relating to I-9 Execution for Remote Workers While Increasing Civil Penalties for Violations (US)

By Gregory A. Wald on June 22, 2020 Posted in Business Immigration, Compliance, Department of Labor

The Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) recently announced another extension, through July 19, 2020, of its COVID-19 temporary policy of deferring the physical presence requirements associated with Form I-9 compliance in relation to hiring and re-verifying certain remote employees. However, within days of announcing this reprieve for employers, DHS and the Department of Justice (DOJ) published their annual, Civil Monetary Penalty Adjustments for Inflation rules increasing penalties against employers found in violation of immigration-related employment practices including I-9 paperwork deficiencies, unauthorized employment violations, and unfair, discriminatory employment practices. Continue Reading

Dreamer Deferred: The Supreme Court DACA Ruling’s Effect on Employers (US)

By Samuel Mudrick on June 20, 2020 Posted in Business Immigration, News

On June 18, 2020, the U.S. Supreme Court ruled that the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (DACA) fell short of the legal requirements for ending such a broad executive program. The Court held that the U.S. Department of Homeland Security’s (DHS) effort to terminate DACA was “arbitrary and capricious” and remanded the case for further consideration, leaving the program intact. The Trump administration had argued that DACA was an unconstitutional overreach of executive authority since it began in 2012.

The 5 to 4 opinion, written by Chief Justice John Roberts, only addressed DHS’ “procedural requirement that it provide a reasoned explanation for its action” and made no official determination regarding DACA’s legality or political merits. Chief Justice Roberts explained: “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

The technical nature of the decision allows DACA to continue, but leaves the door open to a more detailed and measured attempt to end the program by the Trump administration. Continue Reading

New Corona measures support Belgian employers well into the Autumn

By Marga Caproni on June 18, 2020 Posted in Parental leave

Coronavirus themed Belgium Flag The Belgian government is acutely aware that businesses will feel the impact of the Covid-19 crisis well beyond the summer months. To that end, a new set of measures was decided during the Inner Cabinet meeting of 12 June. Information on these measures is still scarce, but we thought we’d share the highlights with you now (and of course will update you when we can).

COVID-19 Temperature Testing? Yes. Viral Testing? Yes. Antibody Testing? No! (US)

By Daniel Pasternak on June 17, 2020 Posted in Americans with Disability Act, Coronavirus, COVID-19, EEOC, Employment Law, Employment Policies, Health & Safety, News, Regulation

Employers undertaking the reopening process following COVID-19-related shutdown orders are grappling with what measures they can implement to reduce the potential for transmission of the SARS-CoV-2 virus in their workplace. In addition to requiring face masks, mandating physical distancing, and encouraging regular handwashing, some employers also are requiring employees to submit to medical testing as a condition of coming back to work.

Early on in this public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) gave the green-light for employers to require that employees submit to non-invasive temperature testing without running afoul of the Americans with Disabilities Act (ADA) (see our prior post here). The EEOC subsequently updated its guidance to clarify that employers also may require that employees submit to viral testing to confirm the absence of an active COVID-19 infection (see our prior post here). Continue Reading

Landmark U.S. Supreme Court Ruling Prohibits Sexual Orientation And Gender Identity-Based Discrimination In Employment (US)

By Melissa Legault, Daniel Pasternak, Laura Lawless and Lew Clark on June 15, 2020 Posted in Discrimination, Employment Law, Employment Policies, Litigation, News, Recent Cases, Sex Discrimination, Sexual Orientation

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

In a landmark ruling issued on June 15, 2020, the U.S. Supreme Court held that an employer who fires or otherwise discriminates against an individual simply for being gay or transgender does so “because of . . . sex,” in violation of Title VII of the Civil Rights Act of 1964. Writing for the majority, Justice Gorsuch, joined by Chief Justice John Roberts and the Court’s four liberal Justices, ruled that it is unlawful under federal law for employers to discriminate against employees based on sexual orientation or gender identity. Continue Reading

BREAKING: US Supreme Court – Title VII Prohibits Discrimination In Employment Based On Sexual Orientation And Gender Identity

By Daniel Pasternak on June 15, 2020 Posted in Discrimination, Employment Law, Gender Discrimination, Litigation, News, Recent Cases, Sex Discrimination, Sexual Orientation

Supreme Court Sunrise Resolving a question that previously had vexed lower courts and resulted in inconsistent rulings across the country, on Monday, June 15, 2020, the United States Supreme Court ruled that the prohibition against sex-based discrimination in employment set forth in Title VII of the Civil Rights Act of 1964 includes claims of sexual orientation and gender identity-based discrimination.

In a 6-3 decision authored by Justice Gorsuch, the Court stated that Title VII’s prohibition on discrimination “because of” “sex” means that “[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex,” explaining that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” The majority’s opinion is rooted in what Justice Gorsuch said are the express terms of Title VII, noting that although the drafters of that law may not have foreseen that it be applied to sexual orientation or gender-identity discrimination claims, “[w]hen the express terms of the statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is law, and all persons are entitled to its benefit.”

We are analyzing the Court’s lengthy (172 page) decision and will post an update soon with a comprehensive in-depth analysis.

Major miscalculation in guidance to flexible furlough pay scheme (UK)

By David Whincup on June 15, 2020 Posted in Guidance, Wage and Hour

At the start of the Coronavirus Job Retention Scheme (CJRS) I wrote that if the Government’s political legacy through the pandemic were to have any chance of surviving intact in the eyes of employers, the Scheme would have to be above all clear and easy for employers to use. Even though parts of the guidance around it were late, unclear or contradictory, that objective was largely achieved. Most employers were in a position to have a reasonable stab at a claim when the Scheme opened for business.

It was unfortunately too good to last, as proven beyond reasonable argument by the Guidance issued on Friday night on how as employer you calculate of the support available to you under the new Flexible Furlough Scheme. For a Scheme designed to last only from 1 July to the end of October, it is quite grotesquely over-engineered. Never was a piece of regulation more deserving of its acronym.

Post-lockdown flexible working, Part 3 — the big questions (UK)

By David Whincup on June 12, 2020 Posted in Disability, Discrimination, Flexible Working, Homeworking

If we are right to think that the unravelling of lockdown will be accompanied by a sharp increase in the number of employees requesting to work from home, then many employers will shortly start to face some serious posers in relation to the flexible working scheme. These are not new questions, but will be thrown into starker prominence by the sheer number of requests you may have to deal with at the same time. Of course you should grant them where you can, but what if you are unsure?

EEOC Updates COVID-19 Guidance With Answers To More Return-To-Work Questions (US)

By Daniel Pasternak on June 11, 2020 Posted in Accommodation, Age Discrimination, Coronavirus, COVID-19, Disability, Disability Discrimination, Discrimination, EEOC, Employment Law, Health & Safety, News, Policies, Regulation, Religious Discrimination, Sex Discrimination, Time Off

eeoc Throughout the current public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) has been providing regular updates to its guidance on COVID-19 and compliance with the Americans with Disabilities Act (ADA) and other federal employment statutes (see our prior posts here). On June 11, 2020, the EEOC provided answers to approximately 10 new questions, most addressing COVID-19 return-to-work issues. Among those, several have broad application to nearly every private sector employer.

The EEOC clarified that although the ADA forbids discrimination against employees who are associated with persons with disabilities, the law does not require that employers provide an accommodation to a non-disabled employee based on the disability-related needs of a family member or other person with whom the employee is associated. This suggests therefore, for example, that an employer need not accommodate a non-disabled employee who requests to work from home because he or she lives with someone who is at a greater risk of severe illness from COVID-19 due to an underlying medical condition (but the employer can do so if it so chooses).