Federal Employment Law Update – February 2019
New DOL Guidance: Payment of Subminimum Wages Under FLSA
On February 15, 2019, the U.S. Department of Labor (DOL) release three documents providing guidance on the payment of subminimum wages under § 14(c) of the Fair Labor Standards Act (FLSA). The first two are related to the impact of Rehabilitation Act (§ 511) and the third provides general guidance on the administration of § 14(c).
- Field Assistance Bulletin (FAB) No. 2019-1 covers the definition of subminimum wages under 511 and the Wage and Hour Division’s enforcement of the limitations on the payment of those wages under § 14(c).
- Revised Fact Sheet #39H: The Workforce Innovation and Opportunity Act and Limitations on Payment of Subminimum Wages under Section 14(c) of the Fair Labor Standards Act includes information on the definition of subminimum wages and timing requirements under 511, as well as two charts for determining when and to whom the specific § 511 requirements apply. The Fact Sheet also cross-references readers to the related regulations issued by the U.S. Department of Education.
- Fact Sheet #39I: Adjusting Commensurate Wage Rates under a Section 14(c) Certificate After a Change in the Minimum Wage provides guidance on taking appropriate action to ensure prevailing wage rates are timely examined and adjusted, and the workers’ commensurate wage rates correspondingly adjusted, as needed, when there is an increase in the federal, state, or a locality’s minimum wage requirements.
For more info about the § 14(c) program, see Subminimum Wage Employment for Workers with Disabilities.
EEOC Proposes Change to Complaint Processing
On February 13, 2019, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it issued a technical Notice of Proposed Rulemaking (NPRM) that proposes a limited procedural change to the federal sector processing regulations. This NPRM would change the rule for when a federal sector complainant may choose to withdraw an EEOC administrative appeal (that is, an administrative appeal to the EEOC from the employing department’s or agency’s final action) and instead file a lawsuit in federal court.
Federal complainants are not required by statute to appeal to the EEOC before going to court; they simply have that option under the EEOC’s regulation. Under the statute, however, complainants may go directly to court within 90 days of the employing agency’s final action. Because an EEOC administrative appeal is an optional step in the administrative process, this NPRM proposes to permit complainants to change their minds, withdraw an EEOC administrative appeal, and file in court within 90 days of the final agency action. This specific issue was the focus of Bullock v. Berrien, 688 F.3d 613 (9th Cir. 2012), where the Ninth Circuit allowed such a change of course because an EEOC appeal is optional. This NPRM would also propose a parallel change to the procedures governing a complainant’s optional request for administrative reconsideration of an EEOC administrative appeal decision. No other substantive changes are proposed in the NPRM.
The EEOC enforces federal laws prohibiting employment discrimination.
Revised Application to Extend/Change Nonimmigration Status (Form I-539)
On February 11, 2019, the U.S. Citizenship and Immigration Services (USCIS)announced that Form I-539, Application to Extend/Change Nonimmigrant Status, was revised and will be published on the USCIS website March 11, 2019. Starting on that date, USCIS will only accept the revised Form I-539 with an edition date of 02/04/19. USCIS will reject any Form I-539 with an edition date of 12/23/16 or earlier.
USCIS also announced that it will be publishing a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, on the Form I-539 webpage on March 11. Form I-539A replaces the Supplement A provided in previous versions of Form I-539. Form I-539A can only be submitted with Form I-539; it cannot be filed as a standalone form.
The revised Form I-539 includes the following significant changes:
- Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A, which will be available on the Form I-539 webpage on March 11. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
- Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 Instructions to be published on March 11.
- Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.
USCIS will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.
DOL Releases FLSA Compliance Videos
In February 2019, the U.S. Department of Labor (DOL) released the following compliance videos to help employers comply with federal Fair Labor Standards Act (FLSA) requirements:
- Topic 1: Coverage — Does the Fair Labor Standards Act (FLSA) apply to my business?
- Topic 2: Minimum Wage — What minimum wage requirements apply to my business?
- Topic 3: Deductions — Can I charge my employees for uniforms or other business expenses?
- Topic 4: Hours Worked — Do I have to pay for that time?
- Topic 5: Overtime — When do I owe overtime compensation, and how do I pay it correctly?
According to the DOL, “these brief, plain-language explanations of FLSA requirements strip away the ‘legalese’ and provide employers the basic information they need to understand their obligations and to comply with the law.” The DOL will add videos covering other FLSA topics to its web page in the future.
See the page
EEOC Guidance About Shutdown and Filing Deadlines
In February 2019, the U.S. Equal Employment Opportunity Commission (EEOC) released questions and answers to address concerns regarding filing deadlines and matters that were scheduled during the partial government shutdown (although charges were accepted during this time to preserve individual’s rights under the law). The EEOC was subject to the lapse in appropriations that occurred from December 22, 2018 to January 26, 2019, which required it to shut down most operations and services.
Read these questions and answers
IRS Releases 2018 Versions of Publication 502 and 503
In January 2019, the Internal Revenue Service (IRS) released the following for use in preparing 2018 returns:
- Publication 502, Medical and Dental Expenses (Including the Health Coverage Tax Credit).
- Publication 503, Child and Dependent Care Expenses.
EEO-1 Survey Opening Postponed
The federal Equal Employment Opportunity Commission (EEOC) announced that due to the recent partial lapse in appropriations, the opening of the EEO-1 has been postponed until early March 2019. The deadline to submit EEO-1 data will be extended to May 31, 2019. Details and instructions for the 2018 EEO-1 Report filers will be forthcoming on the EEO-1 website in the coming weeks for schedule updates.
Read the announcement
E-Verify Resumes Operation
On January 27, 2019, the U.S. Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) announced that E-Verify resumed operation.
Even though Form I-9 support representatives were unavailable during the lapse in government appropriations and E-Verify service was disrupted, employers were still required to complete and retain Form I-9, Employment Eligibility Verification, for every person hired for employment in the U.S. during that time, as long as the person works for wages or other remuneration.
Now that E-Verify operations have resumed, employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, then select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.
For an employee who received a TNC and notified his or her employer of the intention to contest it by February 11, 2019, employers must revise the date by which the employee must contact the Social Security Administration (SSA) or DHS to begin resolving the TNC by adding 10 federal business days to the date on the employee’s “Referral Date Confirmation” notice. Federal business days are Monday through Friday and do not include federal holidays. Then, employers are to give this revised notice to the employee.
Employers may reprint a copy of the employee’s “Referral Date Confirmation” by logging in to E-Verify, selecting the employee’s case and selecting the “Print Confirmation” button. Employers are directed to cross out the old date and insert the new date. Employees have until this new date to contact the SSA or DHS to resolve their cases, as applicable.
For TNC cases that were referred after E-Verify resumed operations, employers are not to add days to the time the employee has to contact either SSA or DHS. If the employee decided to contest the TNC when E-Verify was unavailable, then the employer should refer the employee’s case now, and follow the TNC process.
Federal Contractor Deadlines
During the DHS lapse in appropriations E-Verify was not available for federal contractor enrollment or use. As a result, DHS guidance is that any calendar day during which E-Verify was unavailable due to the lapse in appropriations should not count towards the federal contractor deadlines found in the Employment Eligibility Verification Federal Acquisition Regulation. Federal contractors are directed to contact the applicable contracting officer for more information on federal contractor responsibilities.
Web Service Clients
E-Verify will resume operations following the temporary re-opening of the government. While all E-Verify features and services, including the ability to resolve a Tentative Nonconfirmation (TNC) will be available, web service clients (WSC) may experience longer-than-usual processing times as the system works through a large volume of accumulated cases. WSCs may receive a response that USCIS is working on the submission.
If the lapse in appropriations prevented an employee from contesting his or her Tentative Nonconfirmation (TNC), the employee will be allowed additional time to contact the Social Security Administration (SSA) or DHS to begin the process of resolving the TNC. If the referral date confirmation was received by February 11, 2019, an employee is directed to:
- Add 10 federal business days to the date printed on the “Referral Date Confirmation” that the employer provided after the employee contested the TNC. Federal business days are Monday through Friday and do not include federal holidays. Employees may also contact their employer if they are unsure of the new date by which they must contact either SSA or DHS to resolve the TNC.
- Contact either SSA or DHS by the new date to begin the process of resolving the TNC.
For more information about contesting the TNC, please refer to E-Verify’s employee page.
Read the announcement
NLRB Decision in SuperShuttle and Common Law Test for Independent Contractors Reinstated
On January 25, 2019, the National Labor Relations Board (NLRB) announced a return to the common-law independent contractor standard in SuperShuttle DFW, Inc. The case involved shuttle-van driver franchisees of SuperShuttle at Dallas-Fort Worth Airport and the NLRB found that franchisees (in this case, the shuttle-van drivers) are not statutory employees under the National Labor Relations Act (NLRA), but rather independent contractors and are excluded from NLRA coverage.
The NLRB found that the franchisees’ leasing or ownership of their work vans, their method of compensation, and their nearly unfettered control over their daily work schedules and working conditions provided the franchisees with significant entrepreneurial opportunity for economic gain. These factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in the NLRB’s finding that the franchisees are not employees under the NLRA. The decision affirms the acting regional director’s finding that the franchisees are independent contractors.
Of note, the common-law test to determine whether a worker is an employee or an independent contractor takes into account all of the following:
- The extent of control which, by the agreement, the master may exercise over the details of the work.
- Whether or not the one employed is engaged in a distinct occupation or business.
- The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
- The skill required in the particular occupation.
- Whether the employer or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work.
- The length of time for which the person is employed.
- The method of payment, whether by the time or by the job.
- Whether or not the work is part of the regular business of the employer.
- Whether or not the parties believe they are creating the relation of master and servant.
- Whether the principal is or is not in business.
The NLRB went on to clarify that, “[i]n applying these factors [above], all the incidents of the relationship must be assessed and weighed with no one factor being decisive. What is important is that the total factual context is assessed in light of the pertinent common-law agency principles.”
This decision overrules FedEx Home Delivery v. NLRB, a 2014 NLRB decision that modified the applicable test for determining independent contractor status.
Read the press release
OSHA and Final Rule Revising Electronic Recordkeeping Regulations
On January 25, 2019, the federal Occupational Safety and Health Administration’s (OSHA) final rule revising electronic recordkeeping regulations was published in the Federal Register. According to the rule, OSHA amended the recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to maintain those records on-site, and OSHA will continue to obtain them as needed through inspections and enforcement actions. In addition to reporting required after severe injuries, establishments will continue to submit information from their Form 300A.
The recordkeeping regulation amendments also require covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission.
Employers must continue to maintain OSHA Forms 300 and 301 for OSHA inspection.
The final rule is effective February 25, 2019.
Read the final rule
USCIS Resumes Premium Processing for Fiscal Year 2019 H-1B Cap Petitions
On January 25, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it will resume premium processing on Monday, January 28, for all fiscal year (FY) 2019 H-1B cap petitions, including those eligible for the advanced degree exemption (the “master’s cap”). Petitioners who received requests for evidence (RFEs) for pending FY 2019 cap petitions should include their RFE response with any request for premium processing.
H-1B visas provide employers with skilled workers for a wide range of specialty occupations. The USCIS guarantees a 15-day (calendar days, not business days) processing time when a petitioner requests premium processing service; however, if certain adjudicative action is not taken within that 15‑day processing time, then the USCIS will refund the petitioner’s premium processing service fee and then continue with expedited petition processing. The premium process service is only available for pending petitions, not new submissions.
The previously announced temporary suspension of premium processing remains effective for all other categories of H-1B petitions, as applicable. Of note, the USCIS plans to resume premium processing for the remaining categories of H‑1B petitions as agency workloads permit.
Read the announcement