Business Law
winter 2021

Biden announces plans to change immigration work programs


The Biden administration’s first published regulatory agenda includes plans for significant changes to the H-1B visa program for high-skilled workers.

According to the agenda, U.S. Citizenship and Immigration Services (USCIS) plans to amend the H-1B program by:

  • Redefining the employer/employee relationship;
  • Clarifying when USCIS must be notified about a change in H-1B employment; and
  • Creating rules for employer site visits.

The Department of Labor (DOL) plans to go forward with a proposal to increase prevailing wages for the H-1B and PERM (employment-based green card visa) programs.

In January 2021, before President Donald Trump left office, a final rule was issued that would have increased wages for workers with H-1B visas and employment-based green cards. That rule was set to take effect on Nov. 14, 2022, before it was vacated by a federal court in June.

A new proposed rule on prevailing wages was expected from the DOL in November.

Law proposed to legalize millions of workers

When he took office, President Joe Biden proposed a far-ranging immigration reform measure, “The U.S. Citizenship Act of 2021.”

The bill would make it possible for millions of undocumented workers in the U.S. to become citizens.

It would also provide work authorization for the spouses of H-1B visa holders and incentives to H-1B employers to pay higher wages. The measure includes a provision to remove per-country visa caps for green cards and includes one to clear the employment-based visa backlog.

DACA program in the plans

The Biden administration is also working on a regulation that would put in place a program like DACA (Deferred Action for Childhood Arrivals). A federal court in Texas ruled that program illegal, but Biden has promised to preserve it.

The DACA program ensures that young undocumented immigrants that come to the U.S. as children will not be deported, and it gives them work authorization.

The Texas judge found that the executive branch does not have the power to grant such a widespread reprieve to immigrants in the country without authorization, and that former President Barack Obama exceeded presidential powers when he created the program in 2012 without the approval of Congress.

The Texas court banned approval of any new applications under DACA, but issued a stay to pause any effect on current recipients of the benefits of DACA.

OSHA: More forms
must be submitted electronically again

During the Obama administration, an OSHA rule was created that required employers to submit all OSHA forms through an electronic reporting portal.

The Trump administration changed course, reducing the electronic submission requirement to only OSHA Form 300As for any physical location with 250 or more employees, and any location with 20-249 employees that are in a specified list of industries that tend to have higher rates of injuries and illnesses in the workplace. The full OSHA 300 logs were not required to be submitted electronically.

The Biden administration has drafted a new Executive Order that expands the list of documents employers must submit. It essentially returns to the prior rules.

Under the proposal, OSHA would again require businesses to electronically submit OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for any locations with 250 or more employees that are required to keep injury and illness records annually.

OSHA State Plans, which are OSHA-approved workplace safety and health programs operated by individual states or U.S. territories, will face similar requirements. Under current regulations, establishments covered by these plans are only required to electronically submit information annually from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

If this rule goes into effect, businesses that fail to submit electronically are likely to be cited, as they were during the Obama administration. The data is also likely to be used by OSHA to conduct inspections of businesses with above average rates for injury and illness reports.

It is also important that businesses are aware that the data is available online and can be accessed by others, such as employees and competitors.

Business community wielding its influence over LGBTQ rights

Companies are throwing their weight behind LGBTQ causes. Nearly 500 companies, including Deloitte, Pfizer, Molson Coors, Nestlé, and Amazon, have signed on in support of civil rights legislation that would cover people who identify as LGBTQ.

In February 2021, the House of Representatives passed the Equality Act on a 224-206 vote. The act would amend federal law, including the 1964 Civil Rights Act and the Fair Housing Act, to explicitly include anti-discrimination protections for LGBTQ individuals.

It’s unclear when the Senate will take up the bill and what the outcome might be. Democrats broadly support the bill, so assuming the Senate’s 48 Democrats and two Independents vote in favor, supporters would still need to win over 10 Republicans for passage.

Economic impact. In years past, the business community has successfully influenced state policy changes. Event planners cost the state of Indiana $60 million when 12 national conferences pulled out after a “religious exemption” bill would have allowed businesses to turn away LGBTQ customers and potential hires. (The law was soon amended.)

Likewise, North Carolina lost $630 million in canceled sports events, performances, and conventions in the one year its so-called “bathroom bill” was in effect. In Texas, mere consideration of a similar bill triggered $66 million in cancelled conventions.

Meanwhile, activists are watching and publicly outing corporations that claim to be LGBTQ supporters while simultaneously giving to lawmakers who are thwarting the Equality Act and otherwise voting against LGBTQ interests.

Millennial and Gen Z workforce. The opinions of workers may also be influencing growing corporate support for LGBTQ rights. According to a study from PRRI (Public Religion Research Institute), 67% of young adults in the U.S. do not believe that small business owners should be allowed to refuse service to LGBTQ people for religious reasons. That’s compared to 60% of Americans overall and 53% of senior citizens.

As the largest group in the U.S. workforce, Millennials are critical to recruitment and brand strategies. But they’re not the only influencers. Polls show a growing number of U.S. adults identify as LGBTQ. Gallup recently reported a jump from 4.5% to 5.6% since its last poll in 2017, with Gen Z leading the way. In press reports, one leading LGBTQ advocate suggested the growth had less to do with an increase in people identifying as LGBTQ and more to do with declining stigma, meaning more people felt safe to identify as such.

committee approves
higher OSHA penalties


A U.S. House of Representatives committee has approved a five-fold increase in the maximum penalties per item for violations of Occupational Safety and Health Administration (OSHA) standards.

If this change is finalized by Congress, the penalties for maximum “willful,” “repeated,” and “failure-to-abate” violations would rise from $136,532 to $700,000.

For such violations, the minimum penalty would rise from $9,753 to $50,000.

Penalties for violations defined as “serious” would increase from a current maximum level of $13,653 to $70,000.

These increases were approved by the House Committee on Education and Labor as part of a plan to “invest in increased enforcement of labor law … and set meaningful civil monetary penalties for violations of wage and hour, worker safety and labor laws.”

The plan also includes a $707 million budget for OSHA, indicating a further intention to step up enforcement.

The increases in this bill have been proposed in Congress in the past but were never approved. The House is expected to vote on the measure and send it to the Senate.

The last time significant OSHA penalty increases were enacted was in 2016. Since then, annual penalty increases have been tied to the Consumer Price Index, leading to gradual increases every year. At that time, Congress also increased “willful” and “repeated” violations from $70,000 per item to $124,709.

If the increased penalties go into effect, they are so steep that they could make it impossible for some companies to remain in business. Such an increase will also cause a likely increase in legal costs due to increased appeals of penalty citations.

Back in 2006, a similar penalty hike under the Mine Safety and Health Act led the Mine Safety and Health Administration (MSHA) to experience a major backlog in cases.

Be ready for
a wage-and-
hour audit


Over the past year and a half many businesses have adjusted the way they operate, including a host of changes to who does what job and where people spend their workday.

That means it’s a good time for employers to ensure that they are in compliance with all state and federal wage-and-hour laws, including the federal Fair Labor Standards Act (FLSA), and ready for a potential audit from the federal Department of Labor (DOL).

It’s essential to know that DOL investigators don’t always give advance notice of an audit.

For starters, it’s essential to know that DOL investigators don’t always give advance notice of an audit. As a result, conducting an audit internally now will help ensure you are prepared if the DOL’s Wage and Hour Division comes knocking.

Often these investigations begin with a complaint from a worker or workers. These complaints are confidential, so you won’t be able to find out who complained. Also, businesses with lower wage workers are more likely to be checked for compliance.

The DOL will review all payroll and time-keeping records and interview employees. The better your records, the easier it is likely to be. An investigation could result in a requirement to pay backpay for certain workers.

You are entitled to have an accountant or attorney represent the company during the investigation. Having an attorney involved ensures that the results of your internal investigation are protected by the attorney-client privilege.

You also have the opportunity to provide additional information if violations are found.

State and federal requirements

There are several key areas to check in conducting an internal audit:

Minimum wage: First, ensure you are paying all workers at least the minimum wage required in your state.

Overtime pay: Mistakes in overtime pay calculations, including failure to pay overtime, are a focus for the DOL.

For employees who are due bonuses, be sure to pay attention to whether overtime is due for the bonus calculation.

Overtime must also apply to a shift premium, when additional pay is due to a worker who worked a split shift or night shift, for example.

Meal breaks: Any unpaid meal breaks are required to be uninterrupted and last at least 30 minutes under federal law.

Be sure to check your state’s law to ensure compliance with its meal break requirements. It is important that nonexempt employees do not work during unpaid meal breaks or any other time they are not on the clock.

Employee classification: Ensure that all employees are properly classified.

Employees who fall under certain exemptions, including the executive, professional, administrative and outside sales exemptions, do not have to be paid overtime. There are some jobs that obviously fall in these categories, but it might be more of a gray area for others.

Pay special attention to independent contractors. President Joe Biden has indicated that he supports a stricter test for independent contractor classifications, but as of now the DOL is using the multi-factor test established under the prior administration.

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