March 7, 2017
March 7, 2017
As Yogi Berra once said: “It’s like déjà vu all over again.” Since mid-February, the Trump Administration promised the imminent release of a revised and improved executive order addressing travel ban and refugee admissions. The wait is over. On Monday, March 6, 2017, President Trump signed a new executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the new EO). The new EO revokes and replaces Executive Order 13769 (EO 13769), which President Trump signed on January 27, 2017. From the get-go, there was significant confusion surrounding the scope and implementation of EO 13769, immediately followed by numerous legal challenges. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit upheld a temporary restraining order issued by a lower court, which prohibited the federal government from enforcing any restrictions contained in EO 13769. Unlike EO 13769, which was effective immediately, the new EO allows for a ten-day grace period and will not become effective until 12:01 a.m. on Thursday, March 16, 2017. Similar to its predecessor, the new EO imposes a 90-day “temporary pause” on the entry into the United States of nationals from the following six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Most notably, Iraq is no longer on the list. Nevertheless, the new EO states that Iraqi nationals will be subject to additional scrutiny where they may “have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” In an effort to avoid the chaos that ensued following EO 13769, the new EO provides greater clarity on the scope of the travel ban. Specifically, the 90-day travel ban will apply only to those foreign nationals from the six enumerated countries of concern if:
- the foreign national is not physically present in the United States on the effective date of the order (March 16, 2017);
- the foreign national did not have a valid visa at 5:00 pm EST on January 27, 2017; and
- the foreign national does not have a valid visa on March 16, 2017.
The new EO order is very clear that it does not apply to green card holders, those with validly issued visas, and dual citizens. In addition, the new EO allows for exceptions and individualized assessments to be made by consular and border immigration officers in certain cases. In addition to implementing a revised travel ban, the new EO also addresses the current refugee program. Specifically, the new EO:
- caps the admission of refugees to no more than 50,000 for fiscal year 2017;
- directs the Secretary of State to suspend refugee travel into the United States for 120 days (beginning on March 16, 2017); and
- directs the Secretary of Homeland Security to suspend decisions on applications for individuals seeking refugee status for 120 days (beginning on March 16, 2017).
Noticeably absent from the new EO is the indefinite ban on the admission of Syrian refugees that appeared in EO 13769. While the headlining topics of the new EO remain focused on travel restrictions and refugee admissions, it is worth noting that the new EO also mandates the following:
- the immediate suspension of the Visa Interview Waiver Program (but for individuals seeking a visa based upon diplomatic or diplomatic-type visa status);
- a review of non-immigrant visa reciprocity agreements currently in place with other countries to ensure that such agreements are “truly reciprocal”;
- the collection and disclosure of certain data to the American people pertaining to foreign nationals and their involvement in or connection to certain nefarious activities (i.e., terrorist-related offenses, acts of gender-based violence against women, etc.).
Despite the Trump Administration’s efforts to narrowly tailor this newest EO, we anticipate that there will be legal challenges filed by various stakeholders in the coming days and weeks.
Albany County Enacts Legislation Prohibiting Inquiries into Criminal Convictions for County Employment
February 24, 2017
February 21, 2017
As we previously reported on this blog, OSHA recently made sweeping changes to its injury and illness reporting rule. The agency delayed enforcement of the rule until December 1, 2016. Many industry advocates were hoping for a reprieve, and several industry groups, including the Associated Builders and Contractors and the National Association of Manufacturers, had filed suit, seeking a preliminary injunction to prevent the rule from going into effect. Unfortunately, the injunction was denied and the rule did go into effect on December 1. However, the rule is still being challenged. Interestingly, the incoming administration recently jointly filed a letter with the court along with the plaintiffs, stating that each side planned to move for summary judgment, strongly suggesting that the incoming administration has no plans to revise or revoke the rule. One of the more troubling aspects of the rule was not in the rule itself, but in the preamble to the rule -- OSHA's stated position that it would consider blanket rules that require drug testing of employees after any accident to be unreasonable, i.e., to discourage the reporting of injuries and illnesses. Without announcement, OSHA issued guidance on its position late last year that should ameliorate employers’ concerns. Simply put, employers do not have to have reasonable suspicion of drug use, but reasonable suspicion that drug use could have led to the accident causing illness or injury. OSHA provides the following examples: "Consider the example of a crane accident that injures several employees working nearby but not the operator. The employer does not know the causes of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight on the root causes of the incident. However, if the employer only tested the injured employees but did not test the operator and other employees whose conduct could have contributed to the incident, such disproportionate testing of reporting employees would likely violate section 1904.35(b)(1)(iv). Furthermore, drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test." So, if an employee on a scaffold dropped a piece of lumber, striking an employee below in an area the employee was allowed to walk, it would not be proper to test the employee below, but it would be proper to test the employee on the scaffold, because operator error -- and possible drug impairment -- could have contributed to the accident. It still remains to be seen whether this rule will be rescinded through the Congressional Review Act or vacated through the lawsuit filed in the Northern District of Texas, but in the meantime, employers should make sure their policies regarding injury and illness reporting comport with the new requirements.
February 17, 2017
February 10, 2017
After hearing oral arguments earlier this week from attorneys representing the White House and the states of Washington and Minnesota, last night, the U.S. Court of Appeals for the Ninth Circuit unanimously upheld the U.S. District Court for the Western District of Washington’s February 3, 2017 issuance of a temporary restraining order prohibiting the federal government from enforcing President Trump’s Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13769). As you know from our previous blog posts, EO 13769 suspends the entire refugee admission program for 120 days, the Syrian refugee program indefinitely and the entry of immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period. For now, as a result of the Ninth Circuit’s decision, citizens from the seven restricted countries will be able to travel to the U.S. Despite the fact that the Ninth Circuit’s ruling refuses to reinstate EO 13769’s travel ban, it is important to note that this situation will continue to be fluid, and the Trump administration will very likely seek to appeal this latest decision. As such, we continue to advise that individuals from the seven restricted countries who are presently in the U.S. forego unnecessary international travel at this time. In addition, for those individuals from the restricted countries who have valid U.S. visas, who are presently outside the U.S. and who have the intent to return to the U.S., we recommend that they consider traveling to the U.S. while there remains an opportunity to do so.
Update on Executive Order 13769: "Protecting the Nation From Foreign Terrorist Entry Into the United States"
February 5, 2017
We previously reported that on January 27, 2017, the Trump administration issued Executive Order 13769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” EO 13769 suspends the entire U.S. refugee admission system for 120 days, the Syrian refugee program indefinitely, and the entry of immigrants and non-immigrants from seven designated countries of concern for an initial period of 90 days. Exactly one week later, on February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order that prohibits the federal government from enforcing EO 13769 on a nationwide basis. On February 4, 2017, the Department of Homeland Security ("DHS") issued a statement announcing that "in accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order . . .” and that “DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.” In addition, all airlines and terminal operators have been notified to permit the boarding of all passengers without regard to nationality. Similarly, the Department of State (“DOS”) confirmed that all visas that had been provisionally revoked pursuant to EO 13769 have now been reinstated and are valid once again. In response to these developments, the Trump administration announced that it would file an emergency stay of the order “at the earliest possible time.” Late in the day on February 4, the Department of Justice (“DOJ”) filed a formal notice of appeal with the United States Court of Appeals for the Ninth Circuit. The appeal sought to resume the travel ban by requesting an emergency stay of the decision issued by the U.S. District Court for the Western District of Washington. Early this morning (Sunday, February 5), the Ninth Circuit Court of Appeals issued an initial decision denying the DOJ’s emergency request. However, the federal appeals court has also asked both parties to brief their respective legal arguments before rendering its final decision. For now, the travel ban remains suspended. Developments from this past week have demonstrated that the interpretations and implementation of EO 13769 continue to fluctuate and evolve. Accordingly, individuals from the seven designated countries of concern who are currently in the United States would be well-advised not to travel outside of the United States until the issues surrounding EO 13769 have been clearly settled by the judicial system.
February 3, 2017
- harassment based on protected characteristics (race, color, national origin, religion, sex, age, disability, and genetic information);
- establishing causation;
- harassment resulting in discrimination based on a term, condition, or privilege of employment;
- defining hostile work environment claims;
- employer liability standards; and
- systemic harassment.
- committed and engaged leadership;
- strong and comprehensive harassment policies;
- trusted and accessible complaint procedures; and
- regular and interactive anti-harassment trainings.
January 30, 2017
On January 27, 2017, President Trump signed an Executive Order ("EO") entitled "Protecting the Nation from Foreign Terrorist Entry Into the United States." The EO suspends the entire U.S. refugee admission system for 120 days and the Syrian refugee program indefinitely. In addition, the EO suspends the entry of immigrants and non-immigrants from certain designated countries of concern for an initial period of 90 days. It should be noted that after 90 days, travel is not automatically reinstated for foreign nationals from these countries of concern. Instead, the EO has mandated that the United States Department of Homeland Security (“DHS”) be required to report whether countries have provided information "needed . . . for the adjudication of any . . . benefit under the INA . . . to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat." If a country refuses to provide the requested information regarding its nationals to enable the United States to adjudicate visas, admissions, or other benefits provided under the INA, the EO states that foreign nationals from that country will be prohibited from entering the United States until compliance has been achieved. The EO currently applies to individuals from seven designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. There has been significant confusion regarding the scope and implementation of the EO’s travel ban. Currently, it appears that the travel ban includes and applies to the following groups of individuals: non-immigrant visa holders, immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), etc. Moreover, any foreign national holding a passport from one of the seven designated countries is considered to be "from" the designated country. Accordingly, dual citizens who hold passports issued by both a designated country and non-designated country may also be subject to the travel ban. Further adding to the confusion regarding the scope of this EO, the DHS Secretary John Kelly issued a clarification statement late yesterday which noted that status as a lawful U.S. permanent resident (a.k.a. “green card holder”) “will be a dispositive factor” used in the case-by-case analysis for determining re-entry and/or admission into the United States. Based on the information set forth in the EO, employers would be well-served to advise employees who are from any of these seven designated countries to refrain from traveling outside of the United States until further notice. While the EO has specifically identified seven countries of concern, there is speculation that this list may evolve and expand in the future. Therefore, foreign nationals who hold immigrant and/or non-immigrant visas and who are presently in the United States from other Middle Eastern countries should strongly consider avoiding any international travel, where possible. Legal challenges to this EO have already been filed on constitutional grounds. We anticipate that more lawsuits by various stakeholders will be initiated in the coming days and weeks. On Saturday, January 28, 2017, a federal judge in New York granted an emergency stay for citizens of 7 Muslim-majority countries who have already arrived in the United States and those foreign nationals who are already in transit (with valid visas). The court ruled that these foreign nationals cannot be removed from the United States. In addition, on January 29, 2017, two district court judges in Massachusetts issued a 7-day restraining order on the enforcement of the EO. The restraining order permits individuals traveling to Boston from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen who are legally authorized to enter the United States to do so -- at least for the next seven days. Even though these court decisions do not overrule or invalidate the EO on its face, they do send two messages: (1) the subject matter contained in the EO will be subject to legal challenges; and (2) given the gravity of the situation, the courts will likely address any such legal challenges in an expeditious manner. As suggested above, until more practical guidance is issued from the courts, the DHS, and/or the White House, employers should advise their foreign national employees who could potentially be impacted by this EO not to travel abroad.
January 24, 2017
January 23, 2017
- Embedded prompts in the online Form I-9 which provide instructions on how to properly complete that particular question.
- Drop down lists for certain questions (e.g., citizenship/immigration status, number of preparers/translators, state, document title, issuing authority, etc.) and calendar entries for requested dates (e.g., date of birth, document expiration dates, etc.).
- The opportunity to list/enter information for more than one preparer and/or translator (if applicable).
- Auto-population of “N/A” in certain blank fields (where applicable).
- Auto-population of the employee’s name and citizenship/immigration status into Section 2 based upon responses provided in Section 1.
- A mechanism which prompts an individual about missing information and/or incomplete fields -- highlighted in red -- before moving from one section to another within the form.
- An “error-checking mechanism” which provides prompts and error messages where there may be potential response inconsistencies between citizenship/immigration status and proffered I-9 supporting documentation.
- A “Start Over” option that enables an individual to clear the Form I-9 and start anew, if necessary.
- A “Print” option that enables an individual to print the Form I-9 once data has been entered.
- An “Instructions” option which automatically links an online user to a separate copy of the Form I-9 instructions.
- Automatic generation of a quick response (QR) code.
- The “Other Names Used” field has been renamed to “Other Last Names Used (if any).” This field has changed to require only last name changes in an effort to protect the privacy of individuals (transgendered and others) who have changed their first names, as well as to avoid potential discrimination issues.
- Foreign national employees are no longer required to provide both their Form I-94 number and foreign passport information in Section 1. Instead, the updated form requires foreign national workers to supply one response from the following three options: (i) an Alien Registration Number; or (ii) a Form I-94 Admission Number; or (iii) a foreign passport number.
- The employer must now affirmatively answer whether he/she has used a preparer/translator for completion of Section 1 of the Form I-9. If a preparer/translator has been used, the updated form now provides additional spaces to enter multiple preparers/translators.
- Addition of the employee’s “Citizenship/Immigration” status at the beginning of Section 2. (This information should be consistent with what the employee has listed in Section 1.)
- A new dedicated box/blank section where employer representatives may enter additional information/notes previously written in the margins (e.g., annotations for OPT extensions, receipts, Temporary Protected Status, etc.).
It's Official -- New York's Salary Threshold for the Executive and Administrative Exemptions Is Increasing -- THIS WEEK
December 28, 2016
As expected, this morning, the New York State Department of Labor published its final rule increasing the salary threshold applicable to exempt executive and administrative employees in New York State. While the ultimate fate of the USDOL’s regulations remains unclear, New York employers now know that the salary threshold applicable to exempt executive and administrative employees will increase effective December 31st. As previously reported, under New York’s Labor Law, the salary threshold for executive and administrative employees (NY law does not set a salary threshold for professional employees and thus the federal salary of $455 applies) is currently $675 per week -- 75 times the current minimum wage of $9.00 per hour. With the minimum wage set to gradually increase in coming years (at different rates depending on geography), the New York State Department of Labor has implemented corresponding increases in the applicable salary threshold. The first of these increases will take effect in just three days. Specifically, the increases to New York's salary threshold for executive and administrative employees are as follows: Employers Outside of New York City, Nassau, Suffolk, and Westchester Counties
- $727.50 per week on and after 12/31/16;
- $780.00 per week on and after 12/31/17;
- $832.50 per week on and after 12/31/18;
- $885.00 per week on and after 12/31/19;
- $937.50 per week on and after 12/31/20
Employers in New York City "Large" employers (11 or more employees)
- $825.00 per week on and after 12/31/16;
- $975.00 per week on and after 12/31/17;
- $1,125.00 per week on and after 12/31/18
"Small" employers (10 or fewer employees)
- $787.50 per week on and after 12/31/16;
- $900.00 per week on and after 12/31/17;
- $1,012.50 per week on and after 12/31/18;
- $1,125.00 per week on and after 12/31/19
Employers in Nassau, Suffolk, and Westchester Counties
- $750.00 per week on and after 12/31/16;
- $825.00 per week on and after 12/31/17;
- $900.00 per week on and after 12/31/18;
- $975.00 per week on and after 12/31/19;
- $1,050.00 per week on and after 12/31/20
- $1,125.00 per week on and after 12/31/21
A chart summarizing these thresholds is available on the NYS DOL website. What does this mean? It means that if you have any exempt executive or administrative employees who are currently paid less than the applicable salary threshold set forth above, you must increase their salary to at or above that threshold or reclassify them as nonexempt. But fear not -- you have three days. What a perfect way to end the year -- a significant change imposed on New York employers with virtually no notice. Happy New Year everyone!