Federal Employment Law Update – June 2017

Federal Employment Law Update

Wage and Hour Opinion Letters

On June 27, 2017, Secretary of Labor Alexander Acosta announced that the U.S. Department of Labor’s Wage and Hour Division (WHD) is reinstating its practice of issuing Opinion Letters to help employers and employees understand their responsibilities under federal wage and hour law.

According to the WHD, as part of the administration of the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA), interested parties may seek and WHD officials may provide official written explanations of what these laws require in response to their specific inquiry. At the department’s discretion, opinion letters may be signed by the WHD Administrator or a lower level official. Opinion letters issued by the Administrator may be relied upon as a good faith defense to FLSA wage claims.

The WHD may also issue opinion letters addressing fact-specific questions under other federal wage and hour laws enforced by the agency, including the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the wage garnishment provisions of the Consumer Credit Protection Act (CCPA).

Read about opinion letters

OSHA Proposes to Delay Compliance Date for Electronically Submitting Injury, Illness Reports

On June 27, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) proposed another delay in the electronic reporting compliance date of the rule, Improve Tracking of Workplace Injuries and Illnesses, from July 1, 2017, to December 1, 2017. The final rule was first published on May 12, 2016; however, OSHA announced that another delay of the compliance date is necessary for additional review into questions of law and policy. The delay also allows OSHA to provide employers the same four-month window for submitting data that the original rule would have provided. OSHA invites the public to comment on the proposed deadline extension electronically at www.regulations.gov or by mail or facsimile. The deadline for submitting comments is July 13, 2017.

Read the press release

President Signs the VA Accountability and Whistleblower Act of 2017

On June 23, 2017, President Trump signed the Department of Veterans Affairs Accountability and Whistleblower Act of 2017 (S.B. 1094). Under the act, the new federal Office of Accountability and Whistleblower Protection was created to investigate whistleblower and retaliation claims. The act also shortens the employee appeal process in disciplinary actions and mandates that an administrative law judge uphold the decision of the Secretary of VA to remove, demote, or suspend an employee if the decision is supported by substantial evidence. The law eliminates senior executives’ right to appeal to the Merit Systems Protection Board. Instead, senior executives must “grieve the action” in accordance with an internal VA grievance procedure that the secretary will establish. The law also allows the VA to recoup bonuses, awards, and relocation expenses paid to departmental employees found to have engaged in misconduct or poor performance and prohibits employees who are appealing discipline from being placed on paid administrative leave.

The law became effective on June 23, 2017.

Read US S.B. 1094

Senate Drafts Health Care Bill

On June 23, 2017, a discussion draft of the U.S. Senate Republican Health Care Bill was released. Per the discussion draft, the amended law would potentially:

  • Attempt to stabilize insurance markets.
  • Remove current healthcare mandates requiring healthcare purchase by individuals.
  • Assist with health insurance affordability.
  • Preserve access to care for individuals with preexisting conditions, and allow children to stay on their parents’ health insurance through age 26.
  • Reinforce Medicaid by granting flexibility to states.

View a section by section summary of the discussion draft here.

USCIS to Resume H-1B Premium Processing for Physicians under the Conrad 30 Waiver Program

On June 23, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced that starting Monday, June 26, 2017, the agency resumed premium processing for all H-1B petitions filed for medical doctors under the Conrad 30 Waiver program, as well as interested government agency waivers. The Conrad 30 Waiver program allows certain medical doctors to stay in the United States on a temporary visa after completing their medical training to work in rural and urban areas that have shortage of physicians. As of June 26, 2017, eligible petitioners for medical doctors seeking H-1B status under the Conrad 30 program, or through an interested government agency waiver, could file Form I-907, Request for Premium Processing Service for Form I-129, Petition for a Nonimmigrant Worker. Form I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition.

USCIS plans to resume premium processing of other H-1B petitions as workloads permit and will make additional announcements with specific details when it begins accepting premium processing for those petitions. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS will reject any Form I-907 filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I‑129 fees, USCIS will reject both forms.

Read the press release

Trump Nominees to Administration Posts

On June 19, 2017, President Trump announced the following nominees to positions in his Administration:

  • Anna Maria Farias to be an Assistant Secretary, Fair Housing and Equal Opportunity, of the Department of Housing and Urban Development.
  • Patrick Pizzella to be Deputy Secretary of Labor.
  • Marvin Kaplan to be a Member of the National Labor Relations Board for the remainder of a five-year term expiring August 27, 2020.
  • Michael Platt Jr. to be an Assistant Secretary of Commerce, Legislative, and Intergovernmental Affairs.
  • Lance Allen Robertson to be Assistant Secretary for Aging, Department of Health and Human Services.

Eating Disorder is Mental Health Condition Subject to Parity Rules

On June 16, 2017, the federal Department of Labor, the federal Health and Human Services , and the U.S. Treasury released a frequently asked question stating that the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) applies to the benefits a plan or issuer may offer for treatment of an eating disorder.

Read the FAQ

Supreme Court, DOL, NLRB, and Arbitration Agreements

On June 16, 2017, the U.S. Department of Labor (DOL) filed a brief with the U.S. Supreme Court in support of employers, opposing the National Labor Relations Board (NLRB) stance in cases that challenge arbitration agreements with class or collective action waivers. This brief demonstrates a shift in the DOL’s position on the issue by supporting employers rather than the NLRB. According to the NLRB, class or collective action waivers in arbitration agreements unlawfully interfere with employees’ right to engage in “concerted activity” under the Nation Labor Relations Act (NLRA). The current DOL believes otherwise.

Read the brief

DAPA Program and DACA Expansion Rescinded

On June 15, 2017, the U.S. Department of Homeland Security Secretary, John F. Kelly, announced the repeal of the federal Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program as established under a June 15, 2012 memorandum. Under DAPA, the undocumented parents of Americans or lawful permanent residents (green card holders) who have lived in the U.S. since January 1, 2010 could apply for permission to work and stay in the U.S. for three years.

According to Secretary Kelly, the reason for DACA’s repeal was that “there is no credible path forward to litigate the currently enjoined policy.” Additionally, per a federal district court injunction, the program never took effect. However, the Deferred Action for Childhood Arrivals (DACA) program will remain in effect

DACA was part of the same memorandum that created DAPA. Under DACA, certain people who came to the U.S. as children and who meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization.

DACA recipients will continue to be eligible as outlined in the memorandum and recipients who were issued three-year work authorization extensions before the federal injunction will not be affected. This means that DACA recipients will be eligible to seek a two-year extension upon their expiration. No work permits will be terminated prior to their current expiration dates.

Read the press release, DHS fact sheet, and DACA program overview

Whistleblower Protections

On June 14, 2017, President Trump signed legislation (H.R. 657) to provide clarification under the federal Whistleblower Protection Act, located at 5 U.S.C. 2302(b)(9)(D), that an employee who refuses to obey an order that would require him or her to violate a law, rule, or regulation is protected from retaliation. The law is in response to a decision by the U.S. Circuit Court of Appeals for the Federal Circuit, in Rainey v. Merit Systems Protection Board, where the court recommended that the federal Whistleblower statute be amended to include rules, regulations, and other sources of legal authority rather than just the violation of a law. In response to the court’s recommendation, H.R. 657 was introduced, passed by both the House and Senate, and signed into law.

The law became effective June 14, 2017.

Read U.S. H.R. 657 and Rainey v. Merit Systems Protection Board

Immigration

On June 13, 2017, the federal Department of Justice (DOJ) updated its E-Verify Right to Work posters website. E-Verify Participation and DOJ, Immigrant and Employee Rights Section (IER) Right to Work posters must be displayed in English and Spanish by participating employers to inform their current and prospective employees of their legal rights and protections.

Review the updated posters

HHS Cyber-Attack Checklist for HIPAA Covered Entities

In June 2017, the federal Department of Health and Human Services (HHS), Office for Civil Rights released a quick-response checklist to assist federal Health Insurance Portability and Accountability Act (HIPAA) covered entities, or their business associates, in responding to a cyber-related security incident or similar emergency.

Read the checklist

USERRA Poster Updated

In April 2017, the U.S. Department of Labor updated its Uniformed Services Employment and Reemployment Rights Act (USERRA) poster. Federal law requires employers to notify employees of their rights under USERRA. Employers may meet this requirement by displaying the text of this notice where they customarily place notices for employees.

See the poster