September 8, 2023

EEOC Proposed Regulations to Implement Pregnant Workers Fairness Act

Laurie Rogers

Pregnant workers have certain protections under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but gaps remain. The Pregnant Workers Fairness Act (PWFA) aims to close the gaps and better protect pregnant employees. To implement the Act, the Equal Employment Opportunity Commission (EEOC) recently proposed regulations that significantly increase employers’ obligations to reasonably accommodate their pregnant employees.

Expanded protections

On August 11, 2023, the EEOC proposed rules to implement the PWFA, a law that took effect on June 27, 2023. Before the PWFA, the PDA (which amended Title VII of the Civil Rights Act of 1964) and the ADA provided pregnant and postpartum applicants and employees with certain limited protections.

Under the PDA, pregnant workers can show a violation only if they can identify similarly situated employees who received an accommodation or if there is direct evidence of disparate treatment. Under the ADA, pregnant employees have a right to an accommodation only if they can demonstrate they have a pregnancy-related disability, which doesn’t include the pregnancy itself. Read more >>

August 16, 2023

Talent Without Borders: Immigration Insights – August-September 2023

Sarah Bileti

By Sarah Bileti and Emma Fahey

Second Round of H-1B Cap Registration Selection – United States Citizenship and Immigration Services (USCIS) conducted a second round of the H-1B cap lottery between July 28th and 31st for Fiscal Year (FY) 2024. The new selections were welcomed by employers and employees alike following extremely low selection rates in the initial round of the lottery, with USCIS reporting 780,884 registrations received for 85,000 available slots. The new selections were drawn from the existing pool of H-1B registrations submitted in March 2023 and did not require any additional action from employers. H-1B petitions for registrations selected in the second round must be filed between August 2, 2023 and October 31, 2023.

August 4, 2023

FMLA and FAMLI Leave

David Law

by David Law

Question: We have an employee in Colorado who is pregnant and was recently approved for 12 weeks of FMLA leave. Her expected due date is August 15, 2023, and we expect her to take the full 12 weeks starting on that date. Will this employee also be eligible to take 12 weeks of FAMLI leave under Colorado’s new FAMLI Act?

August 1, 2023

Big Changes to Colorado’s Pay Transparency Requirements

David Law

by David Law

On June 5, 2023, Colorado Governor Jared Polis signed SB 23-105 into law, significantly changing the rules around job postings and promotional notices. Employers will need to act quickly to prepare for these changes, which take effect January 1, 2024.

Overview of the Changes

Although multiple states have enacted pay transparency laws, Colorado has been the only state to require employers to notify existing employees of all “promotional opportunities” within their companies. SB 23-150 changes this requirement. Now, employers are required to provide notice of (and compensation and benefit information for) all “job opportunities” within their organizations, regardless of whether the opportunities would qualify as promotions, lateral transfers, or demotions for most existing employees. The Act clarifies that “career progression” and “career development” are not job opportunities and do not trigger the opportunity-notice requirements. The Act also provides some relief for employers with physical locations exclusively outside Colorado that have fewer than 15 Colorado-based employees working remotely. Through July 1, 2029, these employers will only be required to provide their Colorado employees notice of remote job opportunities.

To complement these changes to the existing notice provisions, the Act imposes a new (internal) notice requirement: employers must announce to existing employees each time they select a candidate for a job opportunity. Read more >>

July 28, 2023

Form I-9 Update & Remote Verification Procedure for E-Verify Employers

Sarah Bileti

By Sarah Bileti and Emma Fahey

Employers will soon be required to use a new version of Form I-9 for Employment Eligibility Verification, according to a July 2023 announcement by the Department of Homeland Security (DHS). The introduction of the revised form corresponds with the end of temporary COVID-19 flexibilities that allowed employers to remotely examine employee identity and work authorization documents between March 20, 2020 and July 31, 2023. For employers enrolled in E-Verify, the DHS has approved a permanent procedure for the remote verification of employee Form I-9 documents that will take effect on August 1, 2023. Read more >>

June 26, 2023

Religious Accommodation: SCOTUS Approaching Decision on Title VII ‘Undue Hardship’ Standard

Steven Gutierrez

by Steven Gutierrez

On April 18, 2023, the U.S. Supreme Court heard oral arguments in a case involving a former U.S. Postal Service (USPS) worker who was denied a religious accommodation to observe his sabbath. The broad implications of a decision that favors the former worker could change the analysis for employers when assessing employee requests for religious accommodations.

Background

Gerald E. Groff is an evangelical Christian who began working at the USPS in 2012. In 2013, the USPS contracted with Amazon to deliver packages on Sundays. Read more >>

June 23, 2023

Recertifying I-9 Forms Processed Under COVID Flexibilities

Sarah Bileti

By Sarah Bileti

Question: We are recertifying I-9 Forms that were processed under the COVID exception. Since our workforce is primarily remote, can we alter the form to allow for electronic signatures?

Answer: For employers who complete I-9s electronically, it is permissible to alter or create an I-9 form provided that employees are provided instructions for completing the form, the form is legible, there are not changes to the name, content, or sequence of the data elements and instructions, and no additional data elements or language are inserted. An electronic signature may also be used provided that the system for capturing the electronic signatures meets the following criteria: Read more >>

June 22, 2023

Employment Based Green Card Processing: What Employers Should Know Regarding the Importance of Drafting the PERM Notice of Filing

Sarah Bileti

By Sarah Bileti

What is PERM?

To hire a foreign worker on a permanent basis, the most common pathway for employers to sponsor an employee for a Green Card is through obtaining a permanent Labor Certification from the U.S. Department of Labor (DOL). This Labor Certification is the first step in the sponsorship process, and it is obtained by filing an application through the DOL’s Program Electronic Review Management (PERM) process. Read more >>

June 21, 2023

Our Company Is Expecting to Start a New Business Line, Should We Revisit Our Policies and Procedures?

Steven Gutierrez

by Steven Gutierrez

The fact your company is setting up a new business line doesn’t mean you must revisit the company’s policies and procedures, unless the addition of the new line would increase your employee count so much that the company would be obligated to offer new benefits or comply with additional mandates. Read more >>

June 20, 2023

Laying Off An Employee Who Has a Sponsored H-1B Visa

Sarah Bileti

By Sarah Bileti

Question: We’re planning to lay off about 20 employees, and one of the affected workers has a sponsored H-1B visa. Are there specific requirements we need to follow?

Answer: Yes, there are specific obligations employers must adhere to when firing an H-1B nonimmigrant worker. First, you must notify the affected H-1B worker in writing of the termination and offer the reasonable cost of return transportation to the employee’s last place of foreign residence. It’s best for this offer of return transportation to also be communicated to the employee in writing. You aren’t obligated to pay return transportation costs for the employee’s family members or household items, and this obligation doesn’t arise if the employee quits the job. Read more >>