As I’ve blogged about numerous times, I-9s are nothing to mess around with. As with other government websites, the U.S. Citizenship and Immigration Services (USCIS) launched a new website yesterday for E-Verify.gov. As most of you know, E-Verify is a voluntary program; however, employers with a federal contract or subcontract that contains the Federal Acquisition Regulation (FAR) E-Verify clause must enroll in E-Verify. E-Verify also allows all employers to use it to confirm the eligibility of employees to work in the United States. Most employers can obtain employees’ work authorizations instantly or within 24 hours by using E-Verify. Employers can visit the new website to obtain more information on E-Verify and Form I-9. Additionally, employers that have a Minnesota state contract for more than $50,000 must E-Verify all new hires who will perform work on behalf of the state.

Employers! It’s almost that time again – Seaton, Peters & Revnew’s 13th Annual Upper Midwest Labor Law Forum is set for May 23, 2018 at…you got it…Target Field! Come hear the latest on what’s happening with the NLRB; regulatory and employment law updates (DOL, MDHR, EEOC, OFCCP, OSHA); and handling discipline, grievance and the arbitration process. The seminar (SHRM credits will be applied for) is from 8:15 am to 11:45 am., then stay for the 12:10 pm Twins v. Detroit Tigers game and enjoy lunch with us in a private suite! Be sure to register early for the discount, and note that tickets to the game are limited to the first 75 to register (the box is only so big…).

Highlights of the program include presentations on:

  •  The “New” NLRB, including a review of the recently confirmed Board members, and major new cases and guidance affecting union and non-union employers.
  • Handling the Discipline, Grievance and Arbitration Process, including a panel discussion of hypothetical arbitration cases by experienced arbitrators; strategies for dealing with employees failing to meet expectations; methods of conducting workplace investigations, imposing discipline, and discharging employees; and interpreting the contract.
  • Regulatory and Employment Law Roundup: An Update on Agency and Caselaw Developments for Employers, covering the ever-changing regulatory and case law landscape, including new or amended regulations, rules, and initiatives from the Department of Labor (DOL), the U.S. Equal Employment Opportunity Commission (EEOC), the Minnesota Department of Human Rights (MDHR), the Office of Federal Contract Compliance Programs (OFCCP), the Occupational Safety and Health Administration (OSHA), and other related agencies and strategies for defense.

Registration will open soon – Go Twins!

Lady LibertyGone are the days of the 15 day wait period for H-1B petitions (both regular and master’s cap)…at least for now. On March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced that, effective April 3, 2017, the USCIS will no longer accept premium processing for H-1B petitions. This means that for those employers waiting to file a new H1B for FY2018 that would normally pursue premium processing (because you know the regular track takes an inordinate amount of time), you will have to get in line with everyone else and wait. And wait. And wait.

According to the USCIS, this suspension is temporary, and does not apply to other nonimmigrant classifications that also use the Form I-129. Also, there are some exceptions to this suspension for several financial loss, emergency situations, humanitarian reasons, etc. – most of which will not apply to a normal business. For more information on the expedited criteria, click here. Unless you truly have a unique situation, I would not count on this exception.

Why is the USCIS temporarily suspending premium processing? It appears they are going to use their resources to work on processing long-pending petitions (with priority to extensions pending for around 240 days). Given the high volume of incoming petitions in the past few years, they have continually been running slow (this is an understatement…which is why I typically suggest to employers, if possible, to use premium processing).

So, what should employers do? Get any H-1B extensions filed NOW. Educate new H-1B beneficiaries about the timing of the process – and that there will be a wait if selected. For extensions that cannot be filed until after April 3, file it as soon as possible due to the long wait for the extension approval. And work with counsel to determine the best strategy for your situation.

American FlagThere is no question that President Trump will have significant impact on various federal labor and employment issues. First, he will be nominating (at least) one individual to the U.S. Supreme Court. That pick could certainly be the deciding vote in a number of issues, and even whether a case is heard. Additionally, President Trump has nominated Andrew Puzder for Secretary of Labor. Puzder is currently the CEO of CKE Restaurants, Inc., which owns and operates Carl’s Jr. and Hardee’s. His confirmation hearing, however, first set for January 11, 2017, has been delayed again to February 2.

There is no doubt that any Trump nominee will run a very different Department of Labor than that under the Obama Administration. Wage and hour laws are not going to magically change overnight, but employers may see operational, investigation, and guidance/opinion letters start to change first. For example, the new DOL Administrator could chose to not pursue the Texas overtime regulation appeal pending before the Fifth Circuit, and then start issuing guidance letters which interpret the rules and regulations differently than the earlier administration.

Additionally, when the Obama administration came to office, the DOL promptly retracted numerous opinion letters which they decided were not mailed in time – “Some of the posted opinion letters, as designated by asterisk, were not mailed before January 21, 2009. While the Wage and Hour Division is making these letters available to the requestor and to the public, the agency has decided to simultaneously withdraw these letters for further consideration. A final response to these opinion letter requests may be provided in the future in an Administrator Interpretation issued in accordance with the guidance provided in the Administrator Interpretations section of the Final Rulings and Opinion Letters Web page.”  No shock here, but the WHD never finalized these responses and they’ve been sitting since 2009.  Accordingly, I would not be surprised if they are promptly finalized now.

That being said…forget not, we are in Minnesota. In the world of wage and hour law (or even employment law for that matter), the more employee-friendly rules and laws apply. Thus, Minnesota employers will see far less local impact than a more employer-friendly state.

fireworksI realize I am late to this blog party, but as they say, better late than never, right?! As I was starting a new post today, I realized I had 99, which meant my next would be 100. It kind of feels like earning your first $1 on a new business (okay, I haven’t had that experience, but it’s in all the movies). In any event, I wanted to pause and say thanks to all my readers for your support – and my friends and colleagues early on who helped me develop this idea (Emily, Brittany, Caitlin, and anyone else who would listen). Here’s to another 100 – and 1,000!

FBAThe National Labor & Employment Law Section is proud to sponsor its third-annual
Minneapolis seminar, “Employment Law in a Nutshell.” This seminar is being cosponsored by the Younger Lawyers Division (YLD), the Law Students Division (LSD), and the Minnesota Chapter of the FBA. The seminar is a live, half-day CLE and will take place on the afternoon of Wednesday, August 31, 2016 at the University of St. Thomas School of Law in Minneapolis (Room 321), 1000 Lasalle Ave., Minneapolis, MN 55403.

The event will focus on the basics of labor and employment law, featuring three hour-long presentations: Continue Reading Join Me for the Employment Law in a Nutshell CLE – St. Thomas August 31st!

USDOL_Seal_circa_blue_2015On June 30, 2016, the U.S. Department of Labor issued two interim final rules to adjust penalties for inflation (one relating to H-2B workers and the other regarding all others). The DOL will accept comments on these rules for 45 days before it finalizes the rules.

Important to my wage and hour followers, the Wage & Hour Division’s penalty for willful violations of the minimum wage and overtime provisions of the Fair Labor Standards Act will increase from $1,100 to $1,894. In addition, OSHA’s maximum penalties will increase by 78% – the top penalty for serious OSHA violations will rise from $7,000 to $12,471, and the maximum penalty for willful or repeated OSHA violations will increase from $70,000 to $124,709.

These penalties will apply to civil penalties assessed by the DOL after August 1, 2016, for violations occurring after November 2, 2015.  A chart of all the penalty adjustments made under the Inflation Adjustment Act can be found here. Further, keep in mind that, pursuant to the Act, these penalties will, moving forward, be adjusted each year for inflation.

US-CourtOfAppeals-8thCircuit-SealI recognize this is a Minnesota wage and hour blog, but I would be remiss to not blog about the decision stemming from Minnesota today – Ventura v. Kyle. The Eighth Circuit Court of Appeals issued its opinion today, throwing out former Minnesota Governor, Jesse Ventura’s, $1.3 million unjust-enrichment judgment; vacating his $500,000 defamation judgment; and remanding the defamation claim for a new trial.

What happened? On January 3, 2014, Chris Kyle (now deceased), released a book he wrote titled, American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History. In the book, Kyle stated he punched a “celebrity”, who he referred to as “Scruff Face”, after that celebrity supposedly made anti-American statements. Thereafter, in interviews, Kyle identified “Scruff Face” as Ventura. Ventura denied the altercation, claiming it was all a fabrication. Ventura sued Kyle under Minnesota law for defamation, misappropriation, and unjust enrichment. Kyle won the misappropriation claim, but lost the others at trial. The jury awarded Ventura $1.3 million in damages for the unjust enrichment claim, and $500,000 for the defamation claim.

So what went wrong for Ventura? The Court held that during the course of the trial, Ventura’s counsel improperly cross-examined two witnesses regarding Kyle’s insurance coverage, and again noted the insurance coverage in closing remarks (stating, the “insurer is on the hook if you find that Jesse Ventura was defamed”). The Court held that these statements, heard by the jury, prevented Kyle from a fair trial as to the defamation claim. Rule 411 of the Federal Rules of Evidence (the Rules lawyers have to play by in a Federal lawsuit), prohibits the use of insurance evidence to prove whether a person acted wrongfully –  but can be used for other reasons – not applicable here. The reasoning is not a shocker. Economic ties to insurance coverage may skew a jury, believing there is a deep, uninterested pocket.

As for the unjust-enrichment judgment, the Court held it is inconsistent with Minnesota law, as there was no pre-existing contractual or quasi-contractual relationship between Kyle and Ventura, and in any event, other remedies were available (i.e. the defamation monies). Accordingly, that judgment was reversed (Kyle wins, no retrial).

So what’s next? Well, Ventura may indeed retry the defamation claim, or may decide to call it what it is, and move on.  Or, the parties may decide to settle it, agreeing on an “amicable resolution” short of additional litigation. That’s lawyer speak for – settle the case before more attorneys’ fees and costs are incurred and disruption to the parties’ lives. Only time will tell…let the speculation begin.

As promised in my post yesterday, the DOL has made its Overtime Final Rule public:

PART 541–DEFINING AND DELIMITING THE EXEMPTIONS FOR EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, COMPUTER AND OUTSIDE SALES EMPLOYEES

You can access its 508 pages by clicking here, or here is the link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-11754.pdf

To get to the actual new rules/amendments – go to page 497.

For those that read my blog late last night – I was so excited, I did mistype 2017 instead of 2016! Sorry for any confusion, though I’m sure you all figured it out quickly.