Federal Employment Law Update – July 2018

Federal Employment Law Update

VETS Celebrates National Hire a Veteran Day

On July 25, 2018, the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) announced its annual celebration of National Hire a Veteran Day with a message for employers: America’s veterans are ready to work. VETS reminds employers of the importance of ensuring that veterans can successfully transition to the civilian workforce by recognizing their valuable skills thereby facilitating America’s servicemembers and veterans access to good, family-sustaining jobs.

VETS works to connect employers with talented veterans who can bring their proven skills, experiences, and leadership to the workplace. VETS can also help employers develop or enhance a veteran hiring programrecruit a veteran from their community, upskill or reskill a veteran who has already been hired, and even provide one-on-one assistance when needed.

VETS also reminds employers about another veteran-based program that begins in January 2019 – HIRE Vets Medallion Program. This program will recognize employers for their investments in recruiting, employing, and retaining America’s veterans.

Read the press release 

Bulletin Addresses Employment Relationship for Caregiver Registry Industry

On July 13, 2018, the U.S. Department of Labor, Wage and Hour Division (WHD) released field assistance bulletin (FAB) No. 2018-4 to help WHD field staff determine whether home care, nurse, or caregiver registries (registries) are employers under the Fair Labor Standards Act (FLSA). A registry is an entity that matches individuals needing caregiving services with nurses, home health aides, personal care attendants, or home care workers (caregivers) with other titles.

According to the bulletin, a registry that simply facilitates matches between clients and caregivers — even if the registry also provides certain other services, such as payroll services — is not an employer under the FLSA. Alternatively, a registry that controls the terms and conditions of the caregiver’s employment activities may be an employer of the caregiver and therefore subject to the requirements of the FLSA.

The WHD will consider the totality of the circumstances to evaluate whether an employment relationship exists between a registry and a caregiver. Because the analysis does not depend on any single factor, and because caregiver registries operate in a variety of ways, the WHD will evaluate all factors to reach appropriate conclusions in each case. To ensure consistent enforcement, the bulletin provides specific examples of common registry business practices.

The bulletin became effective July 13, 2018.

Read FAB No. 2018-4

Immigration Forms Updated

The U.S. Citizenship and Immigration Services (USCIS) updated the following forms:

  • Form I-140, Immigrant Petition for Alien Worker (new edition, dated May 9, 2018). Starting August 17, 2018, the USCIS will only accept the May 9, 2018 edition. Until then, the January 17, 2017 edition may be used. The Form I-140 is used to petition for an alien worker to become a permanent resident in the United States.
  • Form I-765, Application for Employment Authorization (new edition, dated May 31, 2018). Starting August 17, 2018, the USCIS will only accept the May 31, 2018 edition. Until then, the July 17, 2017 edition may be used. Certain foreign nationals who are in the United States may file Form I-765 to request employment authorization and an employment authorization document (EAD). Other foreign nationals whose immigration status authorizes them to work in the United States without restrictions may also use Form I-765 to apply to the USCIS for an EAD that shows such authorization.

The edition date is located at the bottom of the page on the form and instructions.

WHD Releases Memorandum about Seasonal Services and Federal Lands

On July 13, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) released an all agency memorandum (AAM No. 228) addressing the president’s May 25, 2018 Executive Order (EO) 13838, Exemption from Executive Order 13658 for Recreational Services on Federal Lands. EO 13838 exempts contracts with the federal government in connection with seasonal recreational services or seasonal recreational equipment rental on federal lands from the requirements of EO 13658, under which workers performing work on or in connection with covered contracts must be paid a minimum wage rate of at least $10.35 per hour ($7.25 for tipped employees) effective as of January 1, 2018.

The WHD issued AAM No. 228 to confirm that the minimum wage requirements of EO 13658 do not apply to contracts or contract-like instruments with the federal government for seasonal recreational equipment rental and seasonal recreational services on federal lands, including river running, hunting, fishing, horseback riding, camping, mountaineering activities, recreational ski services, and youth camps. However, the WHD will continue to administer and enforce EO 13658 as it applies to contracts that remain covered in whole or in part by it, including those that offer lodging and food services associated with seasonal recreational services.

Read AAM No. 228

Workplace Safety

The Occupational Safety and Health Administration (OSHA) has released new temporary worker bulletins relating to respiratory protection, noise exposure, and hearing conservation: