Who: All employers

When: Effective immediately

The U.S. Department of Labor (DOL) Wage and Hour Division released Field Assistance Bulletin 2023-1 on February 9, 2023. It explains how employers can:

• Pay teleworkers properly under the Fair Labor Standards Act (FLSA);
• Under the Fair Labor Standards Act (FLSA), provide reasonable break time for nursing employees to express milk while teleworking; and
• Properly apply eligibility rules under the Family and Medical Leave Act (FMLA) to teleworking employees.

The guidance states that rest breaks of 20 minutes or less are considered compensable time under the FLSA, whether the employee is working remotely or in the office. Off-duty periods of more than 20 minutes are not compensable times. To be considered a true break, the employee must be completely relieved of duty during that time. Otherwise, the time must be considered compensable.

Under the FLSA, employers must allow an employee a reasonable break time to express breast milk while working from home. An employee that expresses milk at home must be free from observation by a work-related computer camera, security camera, or web conferencing while expressing breast milk. Lactation breaks are compensable only if that employer provides compensated breaks to all employees as a matter of course. If an employee is expressing milk off-camera and completing other duties, such as attending a web conference, the employer must compensate that employee for that time.

Teleworking employees are eligible for FMLA leave on the same basis as employees at the worksite. Therefore, a remote employee is considered eligible for the leave when the employer has 50 or more employees employed within 75 miles of the worksite AND the employee has worked 1,250 hours in the previous 12 months. For this purpose, the worksite is not the employee’s home or other remote location; rather, it’s the worksite they report to or from which their assignments are made.  Accordingly, an employee is FMLA eligible as long as 50 or more employees are employed within 75 miles of the location to which they report or from which their assignments are made, including telework employees who report to that worksite.

The DOL also released Opinion Letter FMLA2023-1-A, which explains that an eligible employee with a serious health condition that requires them to work limited hours may use FMLA leave to work “a reduced number of hours per day (or week) for an indefinite period of time” until such time the employee exhausts their FMLA leave entitlement. If they do not exhaust their leave, they can work the reduced schedule indefinitely. Voluntary overtime hours not worked may not be counted against the employee’s FMLA entitlement.

How:

• Review all federal, state, and local laws regarding paid and unpaid leave, compensable break times, and lactation accommodation. Update your policies as needed to comply with all applicable laws and the new guidance.

Additional Resources:

Field Assistance Bulletin No. 2023-1

Opinion Letter FMLA2023-1-A

Who: California employers

When: Effective immediately

On February 15, 2023, the 9^th U.S. Circuit Court of Appeals blocked California AB 51, which bans the use of mandatory arbitration agreements with employees and applicants. In its opinion on the U.S. Chamber of Commerce v. Bonta case, the court said AB 51 is preempted by the Federal Arbitration Act.

For now, California employers can require new hires to sign arbitration agreements as a condition of employment, including clauses related to claims for unpaid wages and discrimination, and causes of action under the Labor Code and the Fair Employment and Housing Act. However, the State of California can still appeal this decision.

How:

• Consult with legal counsel to review your arbitration agreements and ensure compliance with the law.
• Continue to monitor for possible legal appeals.

Additional Resources:

Federal Arbitration Act

U.S. Chamber of Commerce v. Bonta

Assembly Bill No. 51

Who: All employers

When: Effective immediately

On January 24, 2023, the Equal Employment Opportunity Commission (EEOC) released updated guidance that explains how the Americans with Disabilities Act (ADA) impacts applicants and employees with hearing disabilities, including:

• Easy-to-access technologies that help accommodate those with hearing disabilities;
• Workplace safety;
• Disability-related questions that can violate the Americans with Disabilities Act (ADA); and
• Examples of workplace discrimination.

The document helps educate employers about their responsibilities and employees about their rights.

How:

• Review your hiring and accommodation practices and policies to ensure compliance with the guidance.

Additional Resources:

Hearing Disabilities in the Workplace and the Americans with Disabilities Act

EEOC Disability-Related Resources

Office of Disability Employment Policy – Accommodations

Job Accommodation Network

Who: All employers

When: Effective immediately

February 21, 2023, the National Labor Relations Board (NLRB) issued a decision in McLaren Macomb. In the case, an employer offered severance agreements to furloughed employees that contained confidentiality and nondisparagement provisions as follows:

Confidentiality Agreement. The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction.

Non-Disclosure. At all times hereafter, the Employee promises and agrees not to disclose information, knowledge or materials of a confidential, privileged, or proprietary nature of which the Employee has or had knowledge of, or involvement with, by reason of the Employee’s employment. At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agents and representatives.

The NLRB held that employers may not offer severance agreements with broad confidentiality or nondisparagement clauses to union and non-union employees who are not supervisors, managers, or otherwise exempt from the NLRA. The NLRB found that the mere offer of severance agreements to employees containing these provisions violated the NLRA, regardless of whether the employees agreed to sign the agreements.

How:

• Review your separation agreements and seek legal counsel to ensure compliance with the law.

Additional Resources:

McLaren Macomb

Who: Employers with new prospective H-1B–status employees

When: Register by noon on March 17, 2023

The U.S. Citizenship and Immigration Services (USCIS) announced that the registration period for the fiscal year 2024 H-1B lottery opens on March 1, 2023, and the deadline is noon on March 17, 2023. Unless an exception applies, employers must complete their registrations for brand-new prospective H-1B employees on the USCIS online H-1B registration system, myUSCIS. Employers do not need to register foreign workers already in H-1B status.

H-1B employees are temporary workers from a foreign country who have highly specialized knowledge in certain occupations, and a bachelor’s degree or higher in that specific specialty. There are 65,000 H-1B visas available for those workers with a bachelor’s degree and 20,000 H-1B visas available for those workers with a U.S.-based master’s degree. Because registrations typically vastly outnumber the number of available visas, the USCIS established a lottery system.

The USCIS will notify myUSCIS account holders of the status of their registrations by March 31, 2023. Employers then have 90 days to file H-1B petitions for selected registrations for a visa start date of October 1, 2023.

How:

• Register for H-1B visas by noon on March 17, 2023.

Additional Resources:

my.USCIS.gov

H-1B Electronic Registration Process

Who: All employers

When: Effective immediately

The U.S. Citizenship and Immigration Services (USCIS) announced that it will issue redesigned Permanent Resident Cards (also known as Green Cards) and Employment Authorization Documents beginning January 30, 2023. The agency stated that the new designs contain state-of-the-art technology that continues to safeguard national security. Current Permanent Resident Cards are valid until their expiration date.

How:

• Familiarize all hiring managers and HR personnel with the design changes so that you can accurately review and verify employment authorization.

Additional Resources:

12.1 List A Documents That Establish Identity and Employment Authorization

Redesigned Green Card 2023