Labor & Employment Law Update

In the past several months there has been a flurry of Executive Orders and other legally binding rules regarding vaccine mandates. Standing first and above the rest are the Executive Order by the Biden Administration mandating federal contractors have a vaccinated workforce without the option for testing (we previously blogged on this topic on September 13, 2021 and on September 27, 2021), and the imminent Emergency Temporary Standard (ETS) to be issued by the Occupational Safety and Health Administration (OSHA). 

In the wake of those federal mandates many states have ...

In September, the Biden Administration directed OSHA to issue an Emergency Temporary Standard (“ETS”) requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis.  That promised ETS was published on November 5, 2021, and linked here are OSHA’s summary of the ETS and the FAQ’s relating to the ETS.   

One week later, on November 12, 2021, the 5^th Circuit Court of Appeals issuing a scathing opinion staying the enforcement of the ETS.  In the week that followed, legal challenges were ...

In December 2018, I got an unpleasant surprise: My first – and only – H-1B petition denial in my over 20+ years of practicing immigration law.

The petition was on behalf of an operations research analyst. I had done the same petition for other operations research analysts at this company. USCIS had approved them all, some all the way to green cards.

In this case I prepped the client, submitted a thorough petition, and responded to all requests for evidence. Unfortunately, this unpleasant surprise was not a shock. USCIS’s scrutiny had intensified and as many thought it was ...

Today the Centers for Medicare & Medicaid Services (CMS) released its interim final rule requiring all employees and certain suppliers of most Medicare and Medicaid certified providers to be fully vaccinated against COVID-19 unless they receive an exemption due to a disability, medical condition or sincerely held religious belief (the “Rule”) (the text of the regulations starts on page 171 of the CMS publication). The Rule is effective upon official publication, which is targeted as November 5.

Covered Health Care Entities

The Rule applies to the following types of CMS ...

The United States Department of Labor released a long-awaited Emergency Temporary Standard (“ETS”) for private employers with over 100 employees. The 490 page interim final rule answers a number of questions employers have had since the Biden Administration announced its plan in September, including:

What is the application to employers?

The ETS applies to employers with 100 or more employees as of November 5, 2021, regardless of the number of employees working at a specific location. The ETS does not, however, apply to employers covered by the CMS rule or federal ...

The executive compensation clawback rule mandated by Congress in Section 954 of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), is back.  In the event of corporate misconduct, it will enable the SEC to recoup executive compensation (i.e., bonuses or other incentive-based pay), regardless of whether the executive was directly involved in or accused of any wrongdoing.

Section 954 of the Dodd-Frank Act

The U.S. Securities and Exchange Commission (SEC) proposed an initial draft of Section 954 in 2015. Under Section 954, the SEC was to issue rules ...

On October 29, 2021, the U.S. Department of Labor published its final rule regarding tipped employees with dual jobs (i.e., employees who perform both tipped and non-tipped work), rejecting the Trump-era approach to determining when tipped employees may be paid subminimum wages. The final rule reinstates the dreaded “80/20” rule that employers with tipped employees are likely familiar with, and adds a new “substantial amount of time” component to the determination. If you are an employer covered by the Fair Labor Standards Act, listen up!

The 80/20 Rule

Under the ...

As many employers begin implementing COVID-19 vaccine mandates, they are receiving a large number of employee requests for exemption from the vaccine for religious reasons. Before this week there was no direct guidance from the EEOC on this point, but that changed when the EEOC added this topic to its COVID-19 guidance. The following summarizes key points from that guidance.

An employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, the employer may ask for an explanation of how the employee’s religious belief ...

Good, bad or otherwise… no matter your own personal or professional viewpoint, the fact is the National Labor Relations Board (NLRB) is poised to usher in new reforms and implement pro-labor priorities with the intent of reversing the modern-day trend of unions losing members in the private sector and penalizing employers under the National Labor Relations Act (NLRA) who attempt to push back against labor unions and related union organizing.  While Big Labor continues to push the PRO-Act in Washington, D.C., there are many changes being implemented at the NLRB by recently ...

As discussed in our September 9, 2021 blog, the Biden administration has directed OSHA to implement an Emergency Temporary Standard that will require employers with 100 or more employees to ensure their employees are either fully vaccinated or tested weekly for COVID-19. While employers anxiously await OSHA’s Emergency Temporary Standard and guidance on who it applies to and what it entails, federal courts are upholding vaccine mandates that employers have chosen to voluntarily implement.

In August, New York City announced it was implementing a vaccine mandate requiring ...