HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

Employer Alert – The Fiscal Year 2019 H-1B Visa Season is Almost Here

Posted in H-1B, Immigration

Employers who hire foreign workers may already be familiar with U.S. Citizenship and Immigration Services (USCIS), the government agency that oversees lawful immigration to the United States. USCIS is also responsible for determining which foreign workers will be approved for the highly coveted H-1B skilled worker visa. Among all categories of temporary working visas, the H-1B is the most common.  However, in the past decade, H-1B visas have become increasingly difficult to obtain because of the strict annual cap on the number of visas issued. Continue Reading

New Tax Act Bars Deductions for Settlements Related to Certain Sexual Harassment Claims

Posted in Harassment

The recently enacted Tax Cuts and Jobs Act (the Act) has been touted as the largest tax reform since 1986. Among its many provisions, the Act adds a new section to the Internal Revenue Code (Section 162(q)) targeting confidentiality agreements in sexual harassment cases. The new section is in response to a realization, in the wake of the #MeToo movement and recent high-profile sexual harassment allegations, that these agreements can silence harassment victims and enable perpetrators to continue their abusive behavior. Continue Reading

Department of Labor Adopts More Employer-Friendly Standard for Unpaid Internships

Posted in Unpaid Interns, Wage & Hour

The Fair Labor Standards Act (“FLSA”) mandates the payment of minimum wage and overtime to employees in most US workplaces.  However, when it comes to unpaid educational internships, the FLSA does not include a helpful definition or standard to determine when an employer is excused from paying wages.  In the absence of guidance from Congress, the task has fallen to the Department of Labor (“DOL”) and the courts to determine when interns must be paid. Continue Reading

Department of Homeland Security Plans to End Employment Eligibility of Spouses of Highly Skilled Foreign Workers

Posted in Immigration

For years, the spouses of highly skilled foreign workers holding visas under the H-1B program weren’t authorized to work in the United States, absent separate approval through a separate program. However, in 2015, the Department of Homeland Security (DHS) published a final rule extending eligibility for employment authorization to certain spouses of H-1B visa holders seeking employment-based lawful permanent resident (LPR) status (commonly referred to as green card holders).  Under the Obama-era rule, intended to encourage H-1B workers to remain in the US during the lengthy green card approval process, these spouses (also known as H-4 dependent spouses) could legally work in the US.  Now, the Trump Administration is considering ending that rule. Continue Reading

The New NLRB Gets to Work: GOP-Majority Board Overturns Browning-Ferris, Changes the Law on Joint Employment and Micro-Unit Organizing

Posted in NLRB

As predicted by HR Legalist earlier this year, the new Republican-majority National Labor Relations Board (NLRB) has begun to reverse key labor rulings established during the Obama administration.  On December 14, 2017, the Board’s decision in Hy-Brand Industrial Contractors overturned the 2015 Browning-Ferris ruling regarding joint employment.  The next day, the Board’s decision in PCC Structurals, Inc. overturned the 2011 Specialty Healthcare ruling regarding the appropriate unit for collective bargaining.  Both decisions wipe away the more employee-friendly standards set forth in Browning-Ferris and Specialty Healthcare and restore the law that existed prior to those decisions. Continue Reading

Avoid Doubling FLSA Overtime Damages with Proper Analysis and Documentation

Posted in Fair Labor Standards Act, Overtime, Wage & Hour

Benjamin Franklin once advised that an ounce of prevention is worth a pound of cure. This axiom is still relevant today, especially in the context of the Fair Labor Standards Act (FLSA). As originally written, the FLSA mandated that employees prevailing in minimum wage or overtime lawsuits were automatically entitled liquidated damages equal to their unpaid minimum wages or overtime compensation, thereby doubling any such award. With the subsequent passage of the Portal-to-Portal Act, Congress gave employers a way to avoid liquidated damages if the employer acted in good faith and had reasonable grounds for believing they were in compliance with the FLSA. Thus, with a little preventative pay classification analysis and documentation, an employer may be able to reduce its potential FLSA liability by half.

Continue Reading

Confidentiality and Sexual Harassment Claims – Will New Laws Limit Settlement Agreement Language?

Posted in General Labor and Employment News and Updates, Harassment

 

In the recent wave of sexual harassment cases against public figures, it has come to light that women were paid large sums of money to keep their harassment allegations private, thus allowing their harassers to continue their inappropriate behavior.  Prominent recent examples of harassers protected by confidentiality clauses include Harvey Weinstein, Bill O’Reilly, and Bill Cosby.  This has caused some commentators to question whether confidentiality provisions should be enforceable in sexual harassment cases.  Legislators in the states of Pennsylvania, New Jersey, and New York have introduced or are discussing the possibility of introducing legislation that would prevent the enforcement of such provisions. Continue Reading

Labor Law Update: Will Employers be Thankful for the NLRB’s new General Counsel?

Posted in General Labor and Employment News and Updates, Labor Relations, NLRB

The National Labor Relations Board (NLRB) enforces and interprets the National Labor Relations Act (NLRA), which ensures the rights of employees to engage in collective bargaining and other union-related activities.  During the Obama administration, NLRB General Counsel Richard F. Griffin, Jr. aggressively advocated for labor-friendly positions, and the Democratic-majority Board often agreed.  But this Thanksgiving season, two new board members and a new General Counsel have set the table for changes that could make things a little easier for employers. Continue Reading