LEGAL VIEW: Missed these important HR updates? I've got your back

By Frank A. Cania
BridgeTower Media Newswires

Back in the day (my children cringe when I start a sentence with that), things slowed down in the summer. Somewhere around mid- to late June, the pace at work was more relaxed, there weren’t as many places to go on the weekends, and even the “honey-do” list seemed a little shorter. Today, the pace is faster and the lists longer. Instead of easing back into things after a week’s vacation, I find myself asking, “What happened while I was at lunch?”

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Form I-9 updated ... again!


U.S. Citizenship and Immigration Services (USCIS) will issue a revised I-9 form sometime this month. Wait, didn’t USCIS just issue a new I-9 form a few months ago? Yes. The version currently in use (Form I-9 11/14/2016 N) became mandatory Jan. 21, 2017. However, changes are necessary because of requirements contained in the International Entrepreneur Rule, effective July 17, 2017.

Not familiar with the International Entrepreneur Rule published by the Department of Homeland Security (DHS) this past January? Neither was I. According to the USCIS website, “Under this final rule, DHS may use its ‘parole’ authority to grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation.” USCIS further states, the International Entrepreneur Rule will “improve the ability of certain promising start-up founders to begin growing their companies within the United States and help improve our nation’s economy through increased capital spending, innovation, and job creation.”

With approximately 2,940 entrepreneurs expected to be eligible under this rule annually, the key point for most employers to remember is, use of the revised version of the I-9 form (Form I-9 07/17/2017 N) will become mandatory Sept. 17, 2017.

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The overtime rule—will the sequel be as exciting?

Do you remember the 2016 overtime rule that would have increased the minimum salary for exempt employee to $913 per week? Set to be effective on Dec. 1, 2016, the 5th U.S. Circuit Court of Appeals stepped in to temporarily block the rule on Nov. 22, 2016. With its ruling, the court consolidated two lawsuits. The first, filed by 21 states, claimed that the Department of Labor (DOL) exceeded its authority by raising the salary threshold too high, and by setting automatic adjustments to the threshold every three years. The second, filed by the U.S. Chamber of Commerce and other business groups, objected to the rule on similar grounds.

In limbo for more than six months, the case was addressed recently. In a brief filed on June 30, 2017, the Department of Justice (DOJ) informed the court that the DOL intends to revisit the overtime issue through new rulemaking. However, the DOJ will defend the DOL’s right to set and revise salary-level thresholds for the exemptions. Based on its brief, the DOJ appears to be walking a fine line by asserting the DOL has the authority to set salary thresholds, while at the same time asking the court to prevent the 2016 overtime rule from going into effect.

The DOL took the first step in revisiting the overtime rule in late June, by filing a formal request for information to the Office of Management and Budget for approval.

According to Secretary of Labor, Alex Acosta, “Once approved by OMB that request would ask the public to comment on a number of questions that would inform our thinking.” With almost 300,000 comments sent to the DOL regarding the 2016 overtime rule, Secretary Acosta and his team should expect a similar response once the upcoming request for information is published. I’m already keeping notes on what I plan to say!

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Back to the way things were

On June 7, 2017, Secretary Acosta announced that he would immediately withdraw two Wage and Hour Division, Administrator’s Interpretations (AIs) issued under the Obama administration, regarding joint employment and independent contractor status.

Administrator’s Interpretation No. 2016-01, expanded the definition of joint employment under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Administrator’s Interpretation No. 2015-1, further narrowed the definition of independent contractors under the FLSA. In its statement, the DOL clarified that the withdrawal of the two AIs “does not change the legal responsibilities of employers under the Fair Labor Standards Act or Migrant Seasonal Agricultural Worker Protection Act, as reflected in the Department’s long-standing regulations and case law.” However, these actions likely signal a shift in how Secretary Acosta plans to interpret and enforce regulations related to joint employment and independent contractor status.

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Welcoming back an old friend


After being eliminated in 2010, in favor of much broader and infrequent Administrator’s Interpretations, the DOL’s Wage and Hour Division (WHD) announced it will once again issue opinion letters regarding its application of the FLSA, Davis-Bacon Act, and other laws under its jurisdiction. A WHD mainstay for more than 70 years, opinion letters are an official, written opinion on how the FLSA applies under specific circumstances submitted by an employer, employee, or other third party.

What’s the big deal, you ask? There are several reasons to celebrate the return of WHD opinion letters. For example, according to Alexander Passantino, former acting WHD Administrator, “Opinion letters allow WHD to provide needed clarity on how a 1938 law implemented by—in some cases—regulations [or] interpretive bulletins from 1961 applies in a workplace in 2017.” Further, opinion letters provide a valuable and safe channel for two-way communication between a regulatory body (WHD) and the community it regulates. The process of issuing opinion letters allows WHD to better understand which issues are causing the most trouble in the employment relationship. At the same time, employers gain important insights into WHD’s thinking on a broad range of issues. By addressing some of the more specific, often nuanced issues, opinion letters provide reliable guidance to employers in making a good faith effort to comply. In fact, if an employer can show it relied on an opinion letter, and a court later decides the WHD did not accurately apply the law, employer liability may be avoided under the “good faith” defense established by the FLSA.

Obviously, there is no summer slowdown in the business world anymore. But, don’t worry, take a few days off: I’ve got your back.

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Frank A. Cania, M.S.Emp.L., SPHR, SHRM-SCP, is president of driven HR – A USA Payroll Company. Located in Pittsford, NY, driven HR provides human resource consulting services including HR audits, outsourced HR management, employee handbooks, and a variety of other services. Frank concentrates on wage-and-hour, FMLA, ADA, Title VII, and Form I-9 compliance, as well as workplace investigations. This article is brought to you by the Rochester affiliate of the National HR Association, a local professional HR organization focused on advancing the career development, planning, and leadership skills of HR professionals.

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