| Special #74 - November 6, 2020 |
| HR and Employment Law News |
| - Constangy.com Podcast - News & Analysis: Politics in the workplace: A volatile combination! 10.30.20- Constangy.com News & Analysis: The H-1B cap lottery may change to favor the highest paid foreign nationals 11.4.20- Constangy.com Blog: Age case of "dirty old man" will go to a jury 10.23.20- HRDive.com BRIEF: Employee fired for asking out younger woman gets trial on age bias claim PUBLISHED Nov. 4, 2020- USDOL News Release: UNEMPLOYMENT INSURANCE WEEKLY CLAIMS SEASONALLY ADJUSTED DATA 8:30 A.M. (Eastern) Thursday, November 5, 2020- Georgia Department of Public Health COVID-19 Daily Status Report
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| | | | | | Constangy.com Podcast - News & Analysis: Politics in the workplace: A volatile combination! By Susan Bassford Wilson Partner/St. Louis & Cherie Silberman Partner / Tampa 10.30.20
On the eve of Election Day, what can employers do to keep their workplaces from exploding? What workplace speech is protected by the First Amendment or the National Labor Relations Act? When do political social media posts or comments cross the line? Is buying voters booze a valid campaign strategy? Join us for a discussion of these burning questions!
This podcast is made available for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This podcast should not be used as a substitute for competent legal advice from a licensed attorney in your state.
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| | | Constangy.com News & Analysis: The H-1B cap lottery may change to favor the highest paid foreign nationals
By Will Krasnow and Punam Rogers / Boston Office 11.4.20
On Monday, the U.S. Department of Homeland Security issued proposed regulations that would amend the H-1B cap registration selection process by replacing the current random process with one based on wage levels.
The proposed regulations would apply only to registrations for H-1B petitions that are subject to a cap, and only if the number of registrations exceeds the applicable cap. Registrations offering the highest wage level (Occupational Employment Statistics wage level IV) would be selected first. Registrations with lower wage levels would be selected in descending order until the applicable H-1B cap was reached.
The preamble to the proposed regulations says that the purpose is to encourage the selection of registrations with higher wage levels, consistent with the hiring of higher-skilled aliens. That purpose was expressed in President Trump’s Executive Order 13788, “Buy American and Hire American.” According to the preamble, E.O. 13788 “specifically mentioned the H-1B program and directed DHS and other agencies to ‘suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.’” According to the preamble, the proposed regulations would also create a disincentive for “abuse of the H-1B program to fill lower-paid, lower-skilled positions....” The Trump Administration contends that abuse of the H-1B program “is a significant problem under the present selection system.”
Background to the H-1B cap and registration process
All H-1B petitions require the petitioner/employer to file a Labor Condition Application specifying the wage amount and, except where a private survey is used, one of four Occupational Employment Statistics wage levels. For many years, H-1B petitions have been subject to an annual cap of about 85,000, consisting of 20,000 for individuals with advanced degrees from U.S. institutions and about 65,000 for those with bachelor’s degrees. Because there are more than 85,000 petitioners each year, the U.S. Citizenship and Immigration Services conducts selections by lottery.
Beginning in March 2020, two important changes to the cap selection process took effect:
- The USCIS instituted a registration system that required employers to get pre-approval before they even had the right to file H-1B cap petitions. An annual registration period of at least 14 days was established. (In 2020, the registration period was from March 1 to March 20.)
- The USCIS switched the order of the lottery process, so that the regular cap lottery would take place first, followed by the U.S. advanced degree lottery. That change was made to increase the likelihood that individuals with advanced degrees from U.S. institutions would be selected. Although advanced degree candidates had “two bites at the apple” under the prior process, the first “bite” under the new process is from a pool of about 65,000, not 20,000.
The proposed regulations
The proposed regulations would apply only to
- H-1B registrations,
- Submitted by prospective petitioners seeking to file H-1B cap-subject petitions,
- Where the number of registrations exceeds the applicable numerical cap.
Other H-1B petitions do not have a registration system, so the proposed regulations do not apply to them.
According to the proposed regulations, the USCIS would rank the submitted registrations based on the OES wage level, the relevant Standard Occupational Classification code, and the area of intended employment. If the number of registrations at a particular wage level exceed the cap, then random selections will be from all registrations within that wage level.
If OES prevailing wage information is not available, then petitions will be selected “based on the appropriate wage level that corresponds to the requirements of the proffered position.”
How it would work
If the number of valid OES wage level IV registrations were less than the cap amount, all of the employers filing level IV registrations would be allowed to file petitions, followed by levels III, II, and I, in descending order until the cap was satisfied.
If the valid registrations at level IV were equal to the cap amount, then all of the employers filing level IV registrations would be allowed to file petitions, and there would be no need to go to lower wage levels.
If the number of valid level IV registrations were greater than the cap amount, then the employers who would be allowed to file H-1B petitions would be selected at random.
The selections would begin with the regular H-1B cap, followed by the same ranking and selection process for the U.S. advanced degree cap. The latter, of course, would include any registrants who were not selected under the regular cap.
In cases where the H-1B beneficiary will work in multiple locations, the USCIS would rank and select the registration based on the lowest corresponding OES wage level that the proffered wage will equal or exceed.
The electronic registration form (and H-1B petition) would be amended to require inclusion of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment.
The proposed regulations anticipate that some registrants may try to circumvent the new system by listing a higher wage on the registration to increase the odds of selection, but later filing directly, or through a related entity, a new or amended H-1B petition for the same beneficiary at a lower wage. If the USCIS determines that the petitioner has done this, it may deny or revoke approval of the petition. On the other hand, the USCIS will not deny an amended or new petition solely on the basis of a different proffered wage.
DHS requests comments
The DHS has specifically requested comments regarding the following:
- Alternatives to the proposed ranking and selection of registrations where there is no current OES prevailing wage information.
- A system based on “ranking and selecting all registrations or petitions according to the actual OES prevailing wage level that the position would be rated at rather than the wage level that the proffered wage equals or exceeds.”
- A process by which all registrations or petitions, while still randomly selected, would be weighted according to their OES prevailing wage level.
Challenges to the proposed regulations
Jennifer Minear, President of the American Immigration Lawyers Association, criticized the proposed regulations, saying that they are “based on the false premise that how much money you make is the only measure of how much you contribute to the economy or society. What about the doctor practicing primary care in a rural area? The teacher working in the inner city? Or the H-1B worker who is not earning six figures but is creating jobs for U.S. workers?”
Moreover, the proposed regulations may be vulnerable to challenge in the courts. The DHS has previously said that a selection process based on factors other than degree level -- including salary -- would require a change to the enabling statute. In other words, Congress would have to act. In the preamble to the proposed regulations, the DHS acknowledges that it has changed its position, but its prior position may provide a basis for a lawsuit seeking to enjoin the regulations.
What is next?
The proposed regulations are scheduled to be finalized after January 4. Whether they take effect or remain in effect may depend on the outcome of yesterday’s election.
Comments on the substance of the proposed rule must be submitted on or before December 2. Comments about the portion of the proposed regulations relating to collection of information (including the H-1B Registration Tool and H-1B petition) must be submitted by January 4.
We will be glad to assist your company in drafting and submitting comments.
For a printer-friendly copy, click here.
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| | | Constangy.com Blog: Age case of "dirty old man" will go to a jury
BY ROBIN SHEA ON 10.23.20 POSTED IN DISCRIMINATION, SEXUAL HARASSMENT
Read Blog Online>>Better not criticize an employee for "robbing the cradle."
Wow.
It sounds like Brett Granet was not a stellar account manager. Shortly after he started work, he allegedly "spoke incoherently" at a client lunch and had to apologize for his behavior. (He said it was his medications.)
Then he accidentally emailed confidential and proprietary pricing information to a major account. According to his boss, it was one of a "string" of errors.
He "made inappropriate comments to a colleague at a professional dinner" and had to send another written apology. With this history, it's not surprising that other employees became concerned when he asked about his access to the office when no one else was there. He also made a poor presentation for which he apologized to his boss by text, inaccurately forecast his expected business, and (allegedly) failed to meet his sales goals. (He says that the goals were exceeded, based on his efforts, shortly after his termination.)
"I think this may have been a bad hire."
Which brings us to the "dirty old man" part. There was a young woman working in the consulting office next door to Mr. Granet's office. Mr. Granet visited the office frequently because someone there had connections with a customer whose business Mr. Granet was trying to get. But the "connection" may not have been the only reason Mr. Granet spent a lot of time at the office next door. One day, about eight months after he'd been hired, Mr. Granet sent the young woman a text on LinkedIn, saying,
"I love chatting with you and I like you. Maybe we could grab dinner sometime or do you think I might be too young for you? :)"
The young woman replied no, and said that he was making her "very uncomfortable." She reported the overture to her HR manager, who told Mr. Granet's employer.
(One request for a date, assuming Mr. Granet did not bother the woman again, would generally not be enough for a sexual harassment claim on her part.)
Mr. Granet's boss called him in and bawled him out. According to Mr. Granet, much of the bawling out pertained to the age difference between Mr. Granet, who was in his mid-50s, and the woman, who was 21. It is undisputed that when the boss reported the situation in an email to HR, he included the age of the woman.
The company decided to let Mr. Granet resign. He was replaced by a 30-year-old, who took over Mr. Granet's only account that generated revenue, plus a few that did not. Mr. Granet's other accounts were distributed among his boss and two other account managers who were in their 50s.
Mr. Granet sued for age discrimination -- even though he was hired at age 54, had a lot of problems on the job, and was "allowed to resign" only about eight months later.
Oh, yeah. And the boss was about the same age as Mr. Granet.
With these facts, it is no surprise that the company moved for summary judgment.
But the judge has decided to let the case go to trial because of the references to the age difference between Mr. Granet and the 21-year-old woman he asked out. According to the court, which seemed generally sympathetic to the employer's position, it appeared that the age difference between Mr. Granet and the woman was what riled up the boss so much. Presumably, if Mr. Granet had hit on a 50-year-old woman instead of a 21-year-old, he would not have been terminated. In other words, this would have been fine?
I really doubt that it would have been fine, if the hypothetical 50-year-old had complained to HR and said that he made her feel uncomfortable. But, anyway, the boss's reference to the age gap will get Mr. Granet a jury trial.
So, employers, here is one more thing to watch out for. According to at least this one court, age gaps cannot be taken into consideration when assessing whether an employee's behavior violates company policies. Exceptions, of course, could apply if one of the individuals is a minor.
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| | | This series is designed for HR Professionals New to the Field & Experienced HR Professionals |
| Strategic HR Leadership Series (Registration is available for these in-person workshops)
HR leaders make a significant impact on their organizations’ success. But in our rapidly changing business environment – whether you’re new to human resources or an HR veteran – it’s important to be up to date with best practices, innovative strategies and proven techniques....Read More>>
This Workshop Series will: - Introduce multiple HR ‘best practice’ initiatives within the six core disciplines of HR
- Provide you with employment law updates
- Allow you to interact with and learn from other HR professionals
- Place an emphasis on and assist you in developing a personal follow through action plan that you can apply on the job
Schedule - Practical Techniques to Enhance Your Training
& Facilitation Skills
November 17, 2020 9:00 AM – 12:00 PM
- Positively Impacting Employee Behavior through Performance Appraisals, Coaching & Counseling
Changed Date! December 04, 2020 9:00 AM – 12:00 PM
- Utilizing HR Metrics to Illustrate & Improve HR's
December 15, 2020 9:00 AM – 12:00 PM
- Employment Law Essentials with Constangy, Brooks, Smith & Prophete Attorneys
Date TBD 9:00 AM – 12:00 PM
Visit our website to view the overview of workshops
Location of Workshops, unless otherwise noted, to be conducted at: Cherry Blossom Room (16th Floor) Fickling & Company Building 577 Mulberry St , Macon, GA 31201
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| | HRDive.com BRIEF: Employee fired for asking out younger woman gets trial on age bias claim
AUTHOR Lisa Burden PUBLISHED Nov. 4, 2020
Dive Brief: - A 54-year-old employee allegedly fired for asking out a 21-year-old woman can take his age bias claim to trial, a federal district court has determined (Granet v. Presidio, Inc., No. 3:19-cv-821 (E.D. Pa., Oct. 20, 2020)).
- In defending the suit, the employer, Presidio Inc., offered detailed evidence of the former employee's "unprofessionalism and poor performance," the court said. But, the "last straw," according to the court, was when he asked out a 21-year-old employee of a neighboring business. The business' president complained to a Presidio VP about the employee's frequent visits and request; the VP then allegedly called the plaintiff into his office and said "why are you asking a woman much younger than yourself out to dinner?" He added: "You're probably going to lose your job." Two days later Presidio allowed the plaintiff to choose between resignation and termination.
- Those alleged comments, the court said, amounted to direct evidence of discrimination, declining to dismiss the suit. A reasonable jury could find for the plaintiff, it continued.
Dive Insight:
Statements by supervisors can serve as evidence of discrimination, numerous judicial decisions illustrate.
The 6th U.S. Circuit Court of Appeals, for example, held in August that a supervisor's comments — including an observation that an employee was "getting up there in years" — were direct evidence of age discrimination. That same court the year before revived a lawsuit in which a supervisor allegedly called an employee "grandma" and "little old lady."
Managers and supervisors often say things that lead to lawsuits, employment law experts have said. Compliance training can help to avoid such litigation: Discussing the Family and Medical Leave Act at a 2018 conference, Jeff Nowak, a shareholder at Littler, and Matt Morris, VP of FMLASource at ComPsych, said courts are asking employers why managers lack training and, sometimes in those instances, awarding double damages.
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| | | News Release
Connect with DOL at https://blog.dol.gov
TRANSMISSION OF MATERIALS IN THIS RELEASE IS EMBARGOED UNTIL 8:30 A.M. (Eastern) Thursday, November 5, 2020
UNEMPLOYMENT INSURANCE WEEKLY CLAIMS SEASONALLY ADJUSTED DATA
In the week ending October 31, the advance figure for seasonally adjusted initial claims was 751,000, a decrease of 7,000 from the previous week's revised level. The previous week's level was revised up by 7,000 from 751,000 to 758,000. The 4-week moving average was 787,000, a decrease of 4,000 from the previous week's revised average. The previous week's average was revised up by 3,250 from 787,750 to 791,000.
The advance seasonally adjusted insured unemployment rate was 5.0 percent for the week ending October 24, a decrease of 0.3 percentage point from the previous week's unrevised rate. The advance number for seasonally adjusted insured unemployment during the week ending October 24 was 7,285,000, a decrease of 538,000 from the previous week's revised level. The previous week's level was revised up 67,000 from 7,756,000 to 7,823,000. The 4-week moving average was 8,244,500, a decrease of 827,250 from the previous week's revised average. The previous week's average was revised up by 18,500 from 9,053,250 to 9,071,750. Read more>>
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Update from 11/05/2020 (State of Georgia)
Confirmed Cases 368,368
Confirmed Deaths 8,126
Hospitalizations 32,217
ICU Admissions 6,058
Visit Georgia Department of Health website for more information:
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Georgia Employers' Association |
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