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October 28, 2024

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

Samantha Wolfe

Samantha Wolfe

By 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.

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 >>

August 21, 2024

The FTC’s Noncompete Ban Is Dead—For Now

Steven Eheart

By Steven Eheart and Mark Wiletsky

Employers finally have the answer they’ve been waiting for: they don’t need to comply with the Federal Trade Commission’s (“FTC”) Rule banning noncompete agreements—for now.

The FTC’s Rule was set to go into effect on September 4, 2024. But, on August 20, 2024, a federal judge from the Northern District of Texas set aside the Rule and barred the FTC from enforcing it. The same judge previously put the Rule on hold as to only the parties who brought the lawsuit, but this new decision applies to all employers.

Mark Wiletsky

Mark Wiletsky

The Court rejected the Rule for two reasons: 1) the Rule exceeded the FTC’s statutory authority, and 2) the Rule is arbitrary and capricious.

The Court found that the plain language of the Federal Trade Commission Act (FTCA) does not expressly give the FTC authority to create substantive rules regarding unfair methods of competition. Additionally, the Court found that even if the FTCA empowers the FTC to create some rules, it only empowers rulemaking related to unfair or deceptive acts or practices—and noncompete agreements are not unfair or deceptive practices. In the end, the Court stated that the “role of an administrative agency is to do as told by Congress, not to do what the agency thinks it should do.” Read more >>

August 7, 2024

A Path Towards Legal Permanent Residency: Applications Open on August 19, 2024 for New DHS Family Unity Program

By Sarah Bileti, Ann Lee, and Chris Thomas

The U.S. Department of Homeland Security (DHS) and the White House recently unveiled a new initiative that promises to transform the lives of undocumented noncitizen spouses of U.S. citizens. Scheduled to start taking applications on August 19, 2024, this groundbreaking program will provide a legal pathway to permanent residence (e.g., Green Card) for eligible individuals residing in the U.S. for over a decade without formal admission or parole.  Initial reports estimate that approximately 500,000 noncitizen spouses of U.S. citizens and 50,000 noncitizen children of these spouses could benefit, marking this initiative as a major step forward in the U.S.’ commitment to family unity and fairness in its immigration policies. Read more >>

July 31, 2024

Second Decision on FTC’s Noncompete Ban Is In

Annie Stuller

Annie Stuller

By Annie Stuller

On July 23, 2024, a federal judge from the Eastern District of Pennsylvania declined to issue a preliminary injunction that would block the Federal Trade Commission’s (“FTC”) rule banning most noncompete agreements, current and future, that is set to take effect on September 4 (“Rule”).

In reaching this decision, the judge concluded that the plaintiff failed to demonstrate a substantial likelihood of success on the merits. First, the judge rejected the plaintiff’s argument that Section 6(g) of the Federal Trade Commission Act (“FTC Act” or “Act”) only authorizes procedural rulemaking, explaining it “is inherently inconsistent and therefore untenable” to read the word “procedural” but not “substantive” into the FTC Act when neither word appears within the Act. She explained, “it [is] clear that the FTC is empowered to make both procedural and substantive rules as is necessary to prevent unfair methods of competition.” Second, unpersuaded by the plaintiff’s supporting reasons, the judge rejected the plaintiff’s alternative argument that—even if the FTC Act empowers the FTC with authority to make substantive rules—the FTC exceeded its authority by banning all noncompete agreements. Read more >>

July 10, 2024

FTC’s Noncompete Ban On Hold…For Parties Involved in Lawsuit

Mark Wiletsky

Mark Wiletsky

By Mark Wiletsky and Annie Stuller

On July 3, 2024, a federal judge from the Northern District of Texas barred the Federal Trade Commission (“FTC”) from enforcing its Rule banning noncompete agreements and paused the Rule’s effective date of September 4, 2024. However, the judge limited the scope of her preliminary order to the plaintiff (Ryan LLC) and plaintiff-intervenors (the U.S. Chamber of Commerce and other business associations), declining to pause the Rule nationwide. As a result, for all other employers, this Rule is still set to take effect on September 4, absent further action by this court or another court in which a challenge to the Rule is pending.

Annie Stuller

Annie Stuller

The challenged Rule broadly bars employers from entering noncompete agreements with employees, invalidates existing agreements except for highly compensated individuals in a policymaking position, and requires employers to provide notice to current and former employees bound by existing agreements that the agreement will not be enforceable once the Rule takes effect.

In siding with the plaintiff and plaintiff-intervenors, the judge reasoned that the FTC lacked statutory authority under Section 6(g) of the Federal Trade Commission Act (“FTC Act”) because it is a “housekeeping statute” that only authorizes procedural—not substantive—rulemaking. She reached this conclusion by looking to “the text, structure, and history of the FTC Act.” The judge further concluded that the Rule violates the Administrative Procedure Act’s prohibition against arbitrary and capricious rules “because it is unreasonably overbroad without a reasonable explanation.” Employers should keep in mind that these conclusions were based on a “substantial likelihood” of success on the merits, signaling the judge will likely (but not certainly) rule in favor of the plaintiff and plaintiff-intervenors. Read more >>

June 28, 2024

IRS Issues Final Prevailing Wage and Apprenticeship Regulations

By Adam Cohen, Colin J.A. Oldberg, and Melissa Braun

On June 25, 2024, the Internal Revenue Service and U.S. Department of Treasury published final Treasury Regulations (“Final Regulations”) in the Federal Register on the prevailing wage and registered apprenticeship requirements (“PW&A Requirements”) under Sections 30C, 45, 45L, 45Q, 45U, 45V, 45Y, 45Z, 48C, and 179D of the Internal Revenue Code of 1986 (the “Code”). The PW&A Requirements provide rules for taxpayers intending to claim increased amounts of Federal income tax credits or an increased deduction as well as certain recordkeeping and reporting requirements and are comprised of prevailing wage requirements (“Prevailing Wage Requirements”) and apprenticeship requirements (“Apprenticeship Requirements”).

Adam Cohen

Colin J.A. Oldberg

Melissa Braun

Read more >>

June 18, 2024

A Tale Of Two Rulings: This Week’s Conflicting Decisions On The Pregnant Worker’s Fairness Act

by Kody Condos and Leslie Perkins

Today, June 18, 2024, marks the effective date of the Pregnant Worker’s Fairness Act (“PWFA”) Final Rule, which is now effective in 48 states. The path to implementing the PWFA has been fraught with lawsuits, culminating in this week’s starkly opposing court decisions.

Leslie Perkins

Kody Condos

First, U.S. District Judge D. P. Marshall Jr. (Arkansas) dismissed a motion for preliminary injunction filed in April by attorneys general from 18 states against the Equal Employment Opportunity Commission challenging the provisions of the PWFA related to employers being required to provide reasonable accommodations for employees seeking elective abortions. Judge Marshall held the attorneys general lacked standing to sue and that the states could not show a likelihood of irreparable harm, an element required for a preliminary injunction to be successful. Because of the lack of standing and failure to meet a required element of a preliminary injunction, the Court denied the preliminary injunction as moot and ordered dismissal of the Complaint without prejudice. Read more >>

June 18, 2024

Looming Deadline For California Employers To Implement A Workplace Violence Prevention Program

By Robert Ayers and Erik Adams

Starting July 1, 2024, California will begin requiring employers to implement a workplace violence prevention program.

What are the New Requirements?

Erik Adams

Robert Ayers

California already requires nearly all employers to implement an Injury & Illness Prevention Plan (“IIPP”) that promotes “safe and healthy work practices.” The new mandate compels California businesses to also create a “workplace violence program” addressing “any act of violence or threat of violence that occurs in a place of employment… that results in, or has a high likelihood of resulting in, injury, psychological trauma or stress.” Employers must adhere to certain recording, recordkeeping, and training requirements related to their workplace violence prevention plan. The plan need not address remote workers, as long as they are “working from a location of the employee’s choice” that “is not under the control of the employer.” Read more >>

June 4, 2024

The Pregnant Workers Fairness Act aka the EEOC’s New Baby

Kody Condos

by Kody Condos and JT Washington

The Pregnant Workers Fairness Act (PWFA), the newest member of the family of federal anti-discrimination laws, is almost one year old! Instead of inviting employers over for cake and photo ops, after one year of accepting charges of discrimination under the law, the U.S. Equal Employment Opportunity Commission’s (EEOC) has gifted employers with its interpretive guidelines instead. If you do not know them already, keep reading. The PWFA differs from other anti-discrimination laws in some very important ways that employers will want, and need to understand.

JT Washington

The PWFA went into effect on June 27, 2023. The EEOC’s regulations governing the PWFA go into effect on June 18, 2024. Like the Americans with Disability Act (ADA), the PWFA requires covered employers to provide qualifying employees and applicants accommodations to perform their work duties safely and without discrimination or retaliation.

This post covers key provisions of the PWFA and the EEOC’s regulations governing the law. Read more >>