Monthly Archives: October 2024

October 28, 2024

Current Issues in Fall 2024 for PERM Labor Certifications: What Employers Need to Know

Samantha Wolfe

As we move through Fall 2024, employers navigating the PERM labor certification process face a range of challenges. The process—essential for sponsoring foreign workers for permanent residency—has become more complex due to funding shortfalls at the Department of Labor’s Office of Foreign Labor Certification (OFLC), increased scrutiny of applications, and longer processing times. If your company sponsors employees for green cards, understanding these issues is crucial to avoid delays and ensure compliance.

Here’s what you need to know and how to manage the most pressing PERM issues facing employers today.

1. OFLC Funding Shortages Are Causing Lengthy Delays

The OFLC, responsible for processing PERM labor certifications, is dealing with budget constraints that have led to significant delays. This means that key parts of the process, like prevailing wage determinations and application reviews, are taking much longer than before.

What this means for your company:

Start early: Begin the labor certification process as soon as possible. These delays can stretch timelines by months, so it’s essential to factor in extra time.
Stay on top of deadlines: Keep a close eye on all deadlines and ensure your HR team understands the timeline for recruitment and filings.

October 25, 2024

Navigating Nevada’s Voter Leave Laws

JT Washington

by JT Washington

Election season is here. In many states, early voting has already started or will soon begin. It is crucial for Nevada employers to understand their obligations regarding employees with Election Day approaching in just a couple weeks.

While federal law may not mandate employers to grant employees time off to cast their votes, several states, including Nevada, insist on such accommodation. These laws are designed to guarantee employees the opportunity to contribute their voices to the electoral process without fear of employer-imposed sanctions.

In Nevada, employees registered to vote may request leave from their employers if it is impracticable for them to vote before or after work. Nevada employers are required to give eligible employees “sufficient time” off to vote*. The amount of voting leave an employee receives is determined by the distance between the employee’s workplace and their polling place – this chart details the amount of voting leave employees are entitled to in Nevada:

Distance between job and polling place	Time Off Allowed for Voting
2 miles or less	1 hour
more than 2 miles but not more than 10 miles	2 hours
more than 10 miles	3 hours

Employees wishing to use leave to vote must request leave before Election Day*. Under Nevada law, employers can designate when an employee may be absent to vote*. Read more >>

October 24, 2024

Work Absences for Fertility Treatments: Does FMLA Cover Them?

Steven Eheart

By Steven Eheart

Question: We have an employee who is undergoing fertility treatments out of town and misses days sporadically. Do these absences fall under the Family and Medical Leave Act (FMLA)?

Answer: Great question; complicated answer.

The answer is complicated because a question about FMLA leave is always the start of a longer conversation about whether other federal, state, and local requirements are triggered. For example, even if the employee’s fertility treatments do not qualify for FMLA leave, the employee may be entitled to unpaid leave as a reasonable accommodation or paid leave under state and/or local sick pay laws. Additionally, any adverse treatment against an employee undergoing fertility treatments could lead to a pregnancy discrimination claim.

The answer is also complicated because FMLA leave always depends on the facts. Further, only a couple federal district courts have addressed this issue, and those district courts came to different conclusions. Read more >>

October 22, 2024

In Colorado, Holiday Incentive Pay Must Be Included When Calculating the Regular Rate of Pay

Steven Eheart

By Steven Eheart

On January 12, 2024, the federal Tenth Circuit Court of Appeals asked the Colorado Supreme Court to clarify whether, under Colorado law, holiday incentive pay must be included when calculating an employee’s regular rate of pay. On September 9, 2024, the Colorado Supreme Court responded: yes, it must be included.

The Regular Rate of Pay

Employees who work more than forty hours per week must receive overtime pay at a rate that is 1.5 times their regular rate of pay. Some states also have daily overtime requirements; for example, in Colorado, employees who work more than 12 hours per workday or 12 consecutive hours must also receive overtime pay at 1.5 times their regular rate of pay.

Importantly, the regular rate of pay is not the same as the base hourly rate. The regular rate of pay is a calculation that incorporates non-overtime compensation received for work performed during a workweek. Read more >>

October 17, 2024

Portugal’s E-2 Treaty Addition: A Gateway for Brazilian Investors to the U.S.

Samantha Wolfe

By Samantha Wolfe

Portugal’s recent addition to the U.S. Department of State’s E-2 Treaty List has created a valuable opportunity for both Portuguese citizens and Brazilians with dual citizenship. For entrepreneurs and investors seeking to expand their business horizons into the United States, this development opens a new, strategic pathway, particularly for Brazilian nationals who hold or can obtain Portuguese citizenship.

With Portugal now part of the U.S. E-2 Treaty program, qualified individuals can leverage this visa to invest in and manage a U.S. business while enjoying a host of benefits that make the E-2 visa an attractive option for foreign investors. This blog will explore what the E-2 visa entails, why this development matters for Brazilian investors, and how Portuguese and Brazilian entrepreneurs can take advantage of this new opportunity. Read more >>

October 15, 2024

EEOC Steps Up Enforcement for Pregnant Workers: What Businesses Need to Know About the Pregnant Workers Fairness Act

Leslie Perkins

by Leslie Perkins and Greg Saylin

The Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing anti-discrimination laws, has been increasingly active in addressing compliance with regulations affecting pregnant workers. This has been particularly evident in fiscal year 2024, as the EEOC has already filed five cases under the Pregnant Workers Fairness Act (PWFA), despite the law being in effect for just over a year. State labor commissions, such as the Utah Antidiscrimination and Labor Division, have likewise seen an increase in charges by pregnant workers.

Greg Saylin

Passed in 2023, the federal PWFA was introduced to combat discrimination and promote workplace equality by requiring employers to provide reasonable accommodations to employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions. Retaliation against such workers is prohibited.

Some employers have been caught off guard since pregnancy-related leave, without extenuating medical complications, has largely been a function of company parental leave policies, particularly where a worker has not been employed long enough to qualify for other leave. Employers need to take note that they are now required to engage in the interactive process to determine whether an employee is entitled to an accommodation for a pregnancy-related condition – even those not associated with complications – such as normal childbirth and recovery time. Read more >>

October 3, 2024

Online Conduct, Offline Impact: Unpacking the Legal Implications of Social Media Harassment in the Workplace

JT Washington

by JT Washington

Today, technology and social media are integral parts of our daily lives. Social media has transformed how we communicate and express ourselves. However, this transformation has brought new challenges, particularly in the workplace, where online behavior can have significant repercussions. Recent legal cases have demonstrated what happens on social media does not always stay online and can contribute to a hostile work environment or harassment if it impacts an employee’s working conditions. This encompasses behavior that may not occur in the physical workplace but still affects the overall work environment. Employers are required to promptly and effectively address harassment, irrespective of where it takes place, including on social media.

A recent ruling by the U.S. Court of Appeals for the Ninth Circuit, in the case of Okonowsky v. Garland, has emphasized this reality. 109 F.4th 1166. The court held that an employer could be held liable for a hostile work environment claim based on harassing content posted on an employee’s personal social media account, even if the conduct occurred outside the physical workplace. This decision builds upon earlier guidance from the Equal Employment Opportunity Commission (“EEOC”), which warned that employers might be liable for non-work-related conduct when it affects the workplace environment. The ruling underscores the growing influence of social media in shaping workplace dynamics and the potential legal ramifications for employers who fail to address harassment that originates online but permeates the workplace. Read more >>