Ogletree Deakins

Quick Hits The January 2025 Visa Bulletin shows no change from last month’s bulletin for employment-based categories for dates for filing. Final action dates show slight advancement for EB-2 and EB-3 for some countries/categories. USCIS will honor dates for filing for I-485 adjustment of status applications filed in January 2025. USCIS has announced that it will accept Form I-485, Application to Register Permanent Residence or Adjust Status, from foreign nationals…

Quick Hits On December 9, 2024, the State Department updated the J-1 Exchange Visitor Skills List, revising the countries subject to the two-year foreign residence requirement. J-1 visa holders from China, India, and other countries may see a significant reduction in restrictions depending on the changes in their respective skills lists. The change, which took effect immediately, is retroactive, potentially allowing J-1 visa holders who were previously subject to the…

Quick Hits On November 21, 2024, OFCCP released “A Guide to Combatting Harassment in the Construction Industry,” providing information and resources for federal construction contractors and subcontractors. OFCCP’s guide is prepared in a Q&A chart format detailing the agency’s responsibilities, generally, and discussing harassment examples, obligations related to combatting harassment in the construction industry, worker rights, and best practices for maintaining harassment-free workplaces. OFCCP’s guide follows similar guidance from the…

Quick Hits Generally, under the FLSA, employers must pay exempt employees their guaranteed salary during business closures caused by inclement weather, as deductions for employer-caused absences are not permitted. Employers are typically required to pay nonexempt employees for all hours worked, but if they cannot work remotely due to the nature of their jobs during a weather-related closure, employers are not required to pay them. Connectivity problems during inclement weather…

Quick Hits Ohio has enacted into law SB 104, legislation restricting transgender access to certain school facilities: On November 27, 2024, Governor Mike DeWine signed into law the “Protect All Students Act,” which mandates that Ohio schools designate multi-occupancy restrooms, locker rooms, changing rooms, and shower rooms for exclusive use by male or female students based on their biological sex. Provisions of and exceptions to the new law: The law…

Quick Hits Daniel’s Law in New Jersey allows judges, prosecutors, police officers, correctional officers, and their immediate family members to request in writing that any company or entity not disclose their home addresses or unpublished telephone numbers. On November 26, 2024, the U.S. District Court for the District of New Jersey rejected constitutional challenges to the law. On December 2, 2024, the court allowed the defendants whose constitutional challenge was…

Quick Hits 2024 year-end HDHP plan amendments: Employers that offer HDHPs may need to amend their plans before the end of the year to remove first-dollar telehealth coverage since the regulatory relief allowing this coverage without cost sharing is set to expire at the end of 2024. Impact on HSA contributions: Absent an extension of regulatory relief permitting employers to provide telehealth coverage without cost sharing, starting on January 1,…

Quick Hits OFCCP announced that its new Form CC-257 required monthly employment data reporting for covered federal contractors and subcontractors will launch in March 2025 and be due by April 15, 2025. Reports will cover a calendar month and be due the fifteenth of the following month unless the fifteenth falls on a weekend or holiday, on which the report will be due the next business day. The new reports…

Quick Hits Retail employers face increased risks of workplace violence during the holiday season due to larger crowds, heightened stress, and potential understaffing, among other factors. Retail employers may want to consider steps to mitigate workplace violence risks such as developing a workplace violence prevention plan, training staff, and enhancing security measures during the busy shopping season. The welcome heightened retail activity can lead to increased stress, longer working hours,…

Quick Hits On November 15, 2024, the State of Nevada adopted a regulation to protect workers from heat-related illnesses, requiring covered employers to conduct job hazard analyses, designate employees for emergency response, and implement comprehensive safety programs. The regulation requires employers to implement measures that will “reasonably mitigate the risk of occupational exposure to heat illness for affected employees.” These include the provision of water, rest breaks, cooling methods, and…

One component of this—the so-called “Bureaucracy Reduction Act IV” (BEG IV)—was promulgated in the Federal Law Gazette on October 29, 2024, and it will come into effect on January 1, 2025. Accordingly, it is worthwhile to take a closer look at the changes relevant to employers. Quick Hits Simplifying employment documentation: The Bureaucracy Reduction Act IV (BEG IV) allows essential employment terms and conditions to be transmitted in digital form…

Quick Hits The ESRS reporting standards will be mandatory for all companies covered by the CSRD, which began in January 2024. The CSRD has a broad jurisdictional scope, and for companies operating within the European Union or with substantial business in the EU, understanding and implementing the CSRD’s obligations is crucial. The CSRD goes beyond existing voluntary reporting guidance in the United States to ensure that disclosures are complete and…

Quick Hits Employers that had workers in the areas of New York City impacted by the September 11th attacks may be required to notify those workers of two federal victim compensation funds. The new regulations seek to address the lack of awareness among many individuals who were exposed to harmful conditions following the September 11th attacks that they may be eligible for benefits. On November 7, 2024, the New York…

Quick Hits On November 20, 2024, OFCCP published a CSAL that identified 2,000 establishments of federal supply and service contractors and subcontractors for compliance reviews. The CSAL operates as a “courtesy notification” to a contractor that an OFCCP compliance review will be undertaken; the compliance review process begins when the company establishment receives a scheduling letter from OFCCP. OFCCP published the methodology it used for developing the November 2024 CSAL,…

Quick Hits Value of closeout conferences: Close-out conferences provide valuable insights into the basis for the violations and gravity cited, which are crucial for preparation and decision-making regarding future actions. Preparation and participation: Management may want to discuss observed conditions and issued citations, before and during the conference, and focus on listening, asking questions, and providing accurate facts to challenge allegations without antagonizing the inspector. Effective strategy: Focusing on well-supported…

Quick Hits The New Jersey governor signed legislation that will require employers to provide the “hourly wage or salary, or a range of the hourly wage or salary” in postings for new jobs or transfer opportunities. The law will also require employers to make “reasonable efforts” to advertise promotion opportunities to all current employees “in the affected department or departments of the employer’s business.” The law is set to take…

Quick Hits A federal judge in Texas struck down the DOL’s April 2024 overtime rule that sought to raise the minimum salary levels for the FLSA’s white-collar overtime exemption. The ruling comes in a challenge by the state of Texas and a group of more than a dozen business organizations. The DOL rule had raised the minimum salary level on July 1, 2024, to the equivalent of $43,888 per year,…

Quick Hits The Mexican government is eliminating the National Institute for Transparency, Access to Information and Protection of Personal Data (INAI). The access to public information and the protection of personal data will no longer be overseen by an autonomous institution but by an agency within the executive branch of the federal government. There are many uncertainties that the government has not addressed, including how a ministry of the executive…

Quick Hits The New York governor’s office is discussing with the state legislature a possible amendment to the New York Retail Worker Safety Act, and it is anticipated that the legislature will vote on potential amendments in January 2025. Anticipated amendments include reducing the frequency of workplace violence training for employers with fewer than fifty employees, issuing training templates in English and the twelve most common non-English languages in New…

Quick Hits In 2022, the U.S. Court of Appeals for the Fifth Circuit in Rouses Enterprises, L.L.C. v. Clapp, held that Louisiana law does not allow an employer to enforce a noncompete agreement signed by a prospective employee. In Gallagher & Co. v. Annison, the Louisiana Court of Appeal, First Circuit, distinguished Rouses and held that noncompete agreements signed by prospective employees are enforceable where the agreements contain an effective…

Quick Hits Nebraska voters approved marijuana use for medical purposes, but legal challenges remain. Ballot measures to legalize recreational marijuana failed in Florida, North Dakota, and South Dakota. A ballot measure to legalize psychedelic drugs was defeated in Massachusetts. On November 5, 2024, voters in Nebraska approved a ballot measure to legalize medical marijuana use, while voters in Florida, North Dakota, and South Dakota rejected measures to legalize recreational marijuana…

Quick Hits Missouri voters approved a ballot measure to enact a law that will require employers to allow employees to use up to fifty-six (56) or forty (40) hours of earned paid sick time per year depending on the size of the employer. Employees will be entitled to start accruing paid sick time on May 1, 2025, and employers must provide written notice of the paid sick time by April…

Quick Hits The Working for Workers Five Act, 2024 amended the Occupational Health and Safety Act’s definition of “industrial establishment” to exclude any office in a private residence, and the definitions of “workplace harassment” and “workplace sexual harassment” to include virtual activities. Under the Employment Standards Act, 2000, as amended, employers can require evidence for sick leave, but cannot demand a certificate from a qualified health practitioner. Key provisions of…

Quick Hits The Colorado Attorney General’s Office recently proposed draft amendments to the Colorado Privacy Act (CPA) Rules. The draft amendments are largely focused on consumer data and implement recent changes to the CPA that reflect increased regulation of entities that collect and use biometric information and personal information relating to children under the age of eighteen. The amendments also include a new process for entities and individuals to request,…

Quick Hits Two German federal ministries have drafted legislation that would provide more legal certainty for employers regarding how to handle employee data. The legislature also wants to allow the use of AI applications, but within certain limits. The draft legislation would provide a detailed regulation on the basics of employee data processing. The aim of the legislation is to provide more legal certainty for employers. They inevitably collect and…

Quick Hits The NJDPA goes into effect on January 15, 2025, with its opportunity to cure provision sunsetting six months later on July 15, 2025. The NJDPA’s “sensitive data” definition encompasses more than is typical in comparable laws. The NJDPA applies to non-profit organizations and institutions of higher education in addition to for-profit businesses. Scope The NJDPA applies to companies that: conduct business in New Jersey OR produce products or…

Quick Hits A recent GAO report includes several recommendations for how OSHA should evaluate its national emphasis program on warehousing and distribution centers to “more fully protect workers” from ergonomic hazards. The GAO found that three major hazards—falls, slips, and trips; objects and equipment; and overexertion/bodily reaction—were the leading causes of most injuries and illnesses in general warehousing and last-mile delivery services. The GAO recommendations include revising the OSHA Form…

Quick Hits Under SB 729, effective July 1, 2025, certain health insurance policies in California will be required to cover the diagnosis and treatment of infertility. Insured health plans with at least 101 participants will be required to provide coverage for the diagnosis and treatment of infertility; insured plans with up to 100 participants will be required to offer coverage. SB 729 does not affect employers that “self-fund” their health…

Quick Hits Voters in three states—Alaska, Missouri, and Nebraska—will have a chance to vote on establishing paid sick leave in their states. The states could join the eighteen states and Washington, D.C., that already have paid sick leave laws. Election day is Tuesday, November 5, 2024. Each state has proposed measures to ensure workers have access to paid time off for health-related needs, reflecting a growing national trend toward expanding…

Quick Hits A group of H-4 and L-2 visa holders filed a lawsuit against the secretary of homeland security in April 2021, alleging that USCIS unlawfully delayed adjudicating their I-539 and I-765 applications, resulting in loss of employment. A settlement was reached in January 2023 in which USCIS agreed to return to its pre-March 2019 practice of simultaneously adjudicating bundled I-539 and I-765 applications after approving the principal’s I-129 petition,…

Quick Hits New FOIA request noticed: A new FOIA request has been filed with OFCCP, seeking the release of federal contractors’ 2021 Type 2 Consolidated EEO-1 Reports in OFCCP’s possession. Deadline for objections: Contractors have forty days from the date of publication of OFCCP’s notice to object to the disclosure of their 2021 EEO-1 data. Separate from previous request: This is a new request for 2021 Consolidated EEO-1s; the most…

Quick Hits A Massachusetts appellate court found that a retention bonus did not constitute “wages” within the definition of that term set forth in the Massachusetts Wage Act. The court acknowledged that there are no Massachusetts cases that have held that a retention bonus is a “wage” within the meaning of the Massachusetts Wage Act. The court noted that the Massachusetts Supreme Judicial Court has not construed the Wage Act…

Quick Hits OFCCP recently released a new construction scheduling letter and itemized listing, corresponding frequently asked questions (FAQs), and a renewed and revised Form CC-314, for covered construction contractors to notify OFCCP of new federal or federally assisted contracts or subcontracts in excess of $10,000, also known as the Notification of Construction Contract Award Portal (NCAP). But the agency has more in store for construction contractors. On September 30, 2024,…

Quick Hits Employers may not inquire about an applicant’s conviction history before the applicant is determined to be otherwise qualified for a position, except when required by local and federal law. Employers are barred from asking, seeking from any source, or using as a factor in determining any condition of employment information regarding an applicant’s criminal record until the applicant has been given a conditional offer of employment. In the…

Quick Hits Documenting both the business reasons for a RIF and the objective criteria used to select employees for termination is crucial to mitigating the risk of discrimination claims and other legal challenges. Employers may want to note the various federal and state legal requirements, such as the WARN Act and any applicable mini-WARN acts when planning and executing a RIF. According to recent figures released by the U.S. Bureau…

Quick Hits A female employee was not entitled to an “all the way to the top” compensation adjustment in a gender discrimination case, where the comparator was the highest-paid colleague worldwide, a German Regional Labor Court ruled. However, the female employee was awarded higher remuneration in accordance with the discrepancy between the medians of the comparison groups of men and women. The court determined that the discrepancy between the employer’s…

Quick Hits As Election Day—Tuesday, November 5, 2024—draws near, employers are considering their leave obligations. Various state, local, and municipal election-related laws have implications for multistate employers’ compliance plans. Notice posting and political speech laws also have implications for employers’ compliance plans. Leave Obligations There are three key issues employers may need to address when considering voting and election leave—posting notices, types of leave, and requests for leave. Posted Notices…

Quick Hits On November 1 and November 2, Mexico celebrates Día de Muertos, but this festivity is not considered under the FLL as a mandatory holiday. Under certain circumstances, November 1 and/or November 2 can be deemed as mandatory rest days. Día de Muertos Is Not a Mandatory Holiday As mentioned above, November 1 and/or November 2 are not established in Article 74 of the FLL as mandatory holidays that…

Quick Hits Key steps for managing a data breach incident include understanding what constitutes an incident, applying the organization’s framework and policies, and effectively communicating with the organization’s privacy officer and employees. Additional measures include promptly and proactively managing data breaches and reviewing and updating policies. The effectiveness of HR’s response to a breach of employee data can greatly influence employees’ confidence in the organization’s commitment to data privacy. 1.…