Tag Archives: executive order

February 1, 2017

Workplace Implications of the President’s Immigration Executive Order

6a013486823d73970c01b8d1be606f970c-120wiBy Roger Tsai

On January 27th, President Trump signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” immediately suspending the entry of citizens from Syria, Iran, Libya, Somalia, Yemen, Iraq, and Sudan, as well as the entry of new refugees. Employers with immigrant employees in the affected countries are encouraged to suspend work-related travel into the U.S. for the time being, as they may be unable to enter the U.S. Where possible, immigrant employees currently in the U.S. from the affected countries, even those with valid immigration documentation, such as H-1B visas, should avoid international travel for the next 90 days unless there is more clear indication of enforcement activities, a change to the Executive Order, or court-related clarity.

Who Does The Executive Order Impact?

  • Foreign nationals from the seven affected countries will likely be temporarily prevented from entry at U.S. airports and ports of entry by U.S. Customs and Border Protection for a 90-day period. Similarly, U.S. Embassies abroad are expected to suspend the issuance of temporary nonimmigrant visas and immigrant visas to foreign nationals of the seven countries. The issuance of visas or entry into the U.S. of dual citizens of affected countries will also likely be temporarily suspended. To prevent unnecessary travel, the Department of Homeland Security (DHS) is working with airlines to prevent the selected travelers from boarding international flights. Because the Executive Order also orders DHS to suspend “visas and other immigration benefits” to the citizens of the affected countries, immigrant employees in the U.S. seeking extensions of existing visas through U.S. Citizenship and Immigration Services may potentially be impacted.
  • U.S. permanent residents who are citizens of the affected countries will be allowed to enter the U.S. based on recent updates issued by White House Chief of Staff Reince Priebus and DHS. Initially, the Executive Order only permitted the entry of U.S. permanent residents “when in the national interest” on a case-by-case basis. On January 29th, DHS clarified that lawful permanent resident status will be a dispositive factor in the case-by-case determinations, absent derogatory information indicating a serious threat to public safety and welfare.
  • Newly admitted refugees from any country will be suspended for a 120-day period under the Executive Order. Current employees under refugee status should be permitted to travel internationally but may face additional scrutiny at Customs if they are from the seven affected countries. The entry of new Syrian refugees is indefinitely suspended.
  • Immigrants seeking renewal of their visas through the Visa Interview Waiver Program (VIWP). Previously, the VIWP allowed visitors and other visa holders to renew visas without a consular interview if the immigrant was applying for the same visa category within 12 months of the initial visa expiration. Applicants could simply drop off their application, passport and payment and obtain a renewed visa stamp without undergoing a visa interview. The Executive Order immediately suspends the VIWP and most nonimmigrant visa applicants will be required to attend an in-person interview to renew their visas. The VIWP is separate from the Visa Waiver Program which allows citizens of 38 countries to enter the U.S. as visitors for 90 days without a visa.

Over the course of the next 30 to 120 days, the Department of State and DHS will provide reports to the President regarding the public-security concerns, and we will provide additional alerts as the policy evolves.

June 18, 2014

Federal Contractors Facing $10.10 Minimum Wage Learn Specifics of Proposed Rule

Hvidston, BrynnBy Brynn Hvidston 

On June 12, 2014, the U.S. Department of Labor (DOL) issued its proposed rule to implement President Obama’s Executive Order 13658 which raises the minimum wage for workers on federal contracts to $10.10 per hour.  The Executive Order applies to new and replacement federal contracts that are awarded based on solicitations issued on or after January 1, 2015.  It also applies to contracts that are awarded on or after January 1, 2015 outside the solicitation process. 

Federal Contractor Minimum Wage Applies to Four Categories of Contracts 

Under the Executive Order, the new minimum wage for federal contractor employees reaches four major categories of federal contracts: 

  1. Procurement contracts for construction covered by the Davis-Bacon Act (DBA);
  2. Service contracts exceeding $2,500 that are subject to the Service Contract Act (SCA);
  3. Concessions contracts where the contractor uses federal property (e.g., land or facilities), such as operating restaurants, lodging and souvenir shops in national parks; and
  4. Contracts in connection with federal property or land and related to offering services for federal employees, their dependents or the general public, such as leasing space in a federal building to operate a child care center. 

The proposed rule makes clear that certain contractual arrangements are excluded from the new minimum wage requirement, namely (a) grants; (b) contracts with or grants to an Indian Tribe; (c) procurement contracts for construction that are not subject to the DBA (i.e., for less than $2,000); (d) any contract for services that are exempted from coverage under the SCA (e.g., contracts for public utility services); and (e) employment contracts providing direct services to a federal agency by an individual. 

Workers Entitled to the Federal Contractor Minimum Wage 

Federal contractors need to know which employees are entitled to the new $10.10 per hour minimum wage.  The proposed rule provides that workers who perform work on covered federal contracts will be entitled to the federal contractor minimum wage for all time spent working on covered contract work, provided their wages are governed by the Fair Labor Standards Act (FLSA), the DBA or the SCA.  In other words, it applies to employees who are entitled to either the FLSA minimum wage or prevailing wages under the DBA or SCA for all hours worked on covered federal contract projects.  The proposed rule also clarifies that the new minimum wage applies to FLSA-covered employees who provide support on DBA and SCA-covered contracts when such support is necessary to the performance of the contract.  

Contract Clauses, Annual Wage Setting Process and Enforcement 

The proposed rule sets forth the obligations that covered contractors and subcontractors will need to fulfill, such as including the minimum wage contract clause in lower-tiered subcontracts and required recordkeeping.  The rule also prohibits employers from retaliating against employees who exercise their rights to receive the federal contractor minimum wage and prohibits taking kickbacks from wages paid to employees on covered contract work.  

Each year, beginning January 1, 2016, the Secretary of Labor will evaluate whether the $10.10 per hour minimum wage rate for federal contract work should be revised.  Any new rate is to be published at least 90 days before it is to take effect. 

The DOL’s Wage and Hour Division (WHD) will utilize its enforcement mechanisms to handle any complaints of a violation of the Executive Order or its implementing regulations.  The WHD may conduct an investigation and pursue an informal complaint resolution.  It may also seek remedies for a violation, such as payment of back wages, as well as sanctions, such as debarment.  Administrative hearings may be used to resolve disputed cases. 

Interested Parties May Submit Comments 

Anyone interested in submitting comments to the DOL related to its proposed rule implementing the Executive Order establishing a federal contractor minimum wage may do so at http://www.regulations.gov.  Comments must be received on or before July 17, 2014.  The DOL states it will review the comments received and issue a final rule by October 1 of this year.  More information may be found at http://www.dol.gov/whd/flsa/nprm-eo13658.  We will keep you posted on any developments and the final rule as they become available.

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June 16, 2014

Sexual Orientation Discrimination By Federal Contractors To Be Prohibited, According to News Reports

Cave_BradBy Brad Cave 

Major news sources are reporting that President Barack Obama plans to issue an executive order prohibiting federal contractors from discriminating against employees based on sexual orientation and gender identity.  The specific details of the executive order have not been finalized and the signing date is not yet known.  The planned order was revealed by administration officials on Monday, June 16, 2014, just before the President attends a lesbian, gay, bisexual and transgender (LGBT) event sponsored by the Democratic National Committee in New York City on Tuesday. 

For twenty years, various federal lawmakers have introduced and tried to pass ENDA, the Employment Non-Discrimination Act, which would prohibit employment discrimination on the basis of sexual orientation by all employers with 15 or more employees.  The most recent ENDA bill passed in the Senate but is dead in the House, as House Speaker John Boehner reportedly has said he will not allow the bill to come to a vote.  Like it has done with its minimum wage and other pay initiatives that stalled in Congress, the White House is furthering its goals for U.S. workers outside the legislative process by issuing an executive order.  Although the executive order applies only to federal contractors, many of whom already have policies prohibiting discrimination based on sexual orientation, the prohibition for contractors on this basis is seen as a step toward protection for LGBT workers in all work contexts. 

Hearing word of the impending executive order, lawmakers and various groups appear to be urging the administration to include an exemption for religious reasons.  That is unlikely to happen with the executive order but until we see the final order, it is unclear if any federal contractors and subcontractors will be exempt.  We will keep you posted as this unfolds.

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