Special thanks to our guest contributor Daniel Urdiain.

In this Mobility Minute, Daniel Urdiain of our Mexico Global Immigration and Mobility practice explores the continuing challenges for those submitting immigration filings in Mexico City, as well as the current alternatives to conclude the process in the shortest amount of time.

Click here to listen to the Mobility Minute on demand.

Special thanks to our guest contributors Anne Batter, Alexandra Minkovich, Joshua Odintz, Christopher Hanna, Etienne Couret and Derek Gumm.

After months of partisan bickering and Senate inaction, Congress finally passed another round of COVID-19 relief legislation as part of the Consolidated Appropriations Act, 2021, P.L. 116-260, (“CAA”), which was signed into law on December 27, 2020. We provide a summary of the tax-related CAA provisions and key modifications to the Paycheck Protection Program (“PPP”), before discussing President Biden’s tax agenda for 2021. The CAA’s tax provisions focus primarily on providing economic relief to taxpayers by expanding provisions of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) and renewing extenders.

Employee Retention Credit Update

Under the CAA, the Employee Retention Credit (“ERC”) was updated to provide enhanced and extended benefits and to expand those employers that would qualify for the credit, beyond what was provided in the CARES Act.

Click here to continue reading.

The US Department of Labor is developing a new regulation on joint employment under the FLSA, a possible first step towards reversing the Trump administration’s business-friendly rule on the joint employer standard.

First Public Notice of Possible New Regulation

On February 23, the White House Office of Information and Regulatory Affairs (OIRA) posted on its website that the proposed rule, Joint Employer Status Under the Fair Labor Standards Act, is pending regulatory review.

The proposed rule must receive sign-off from OIRA before it is released, so we don’t know the substance of the rule for certain. However, as we blogged about in November, we expect the Biden administration to reverse the Trump administration’s March 2020 final rule on joint employment under the FLSA. That rule incorporated a narrow definition of “joint employer,” limiting the circumstances under which multiple companies could be deemed to “employ” the same workers (and consequently minimizing companies’ joint employer liability).

The Previous Administration’s Business-Friendly Rule

The Trump DOL’s rule ran into trouble in September 2020, when a New York federal district judge struck down much of the rule (see our blog, here). The DOJ appealed the decision to the Second Circuit and filed a brief supporting the legality of the rule on January 15, 2021-less than a week before Biden’s inauguration-creating an obstacle for the Biden administration to walk away from defending the regulation by way of litigation.

However, the rule can be rescinded through rulemaking, and it appears the Biden DOJ is beginning down that path. Whether the new proposed rule will seek to fully rescind the Trump administration’s rule, to replace it with an interpretation widening the scope of when multiple businesses are jointly liable under the FLSA, or to promote another approach, remains to be seen.

Check back for updates as the Biden administration continues to move forward with what we expect to be widespread change in the labor and employment landscape. For help navigating the latest developments or for a joint employment audit to understand your company’s level of risk, contact your Baker McKenzie employment attorney.

As predicted here, on February 19, the DOL formally withdrew gig-worker guidance from the Trump administration. The DOL’s Wage and Hour Administration ditched a pair of interpretative letters from 2019, including one that platform-based companies could have used as a legal defense against claims that their drivers are employees subject to the Fair Labor Standards Act’s minimum wage and overtime provisions. The classification rules issued under the Trump DOL were widely viewed as business-friendly.

We will likely see more worker-protective interpretations of employee status during the Biden era (see more here). As such, we recommend working with counsel to perform a classification audit to review service provider agreements and ensure compliance.

 

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Colorado, Hawaii, Iowa, Louisiana and Vermont.
  • The Governor of Alaska decided not to renew the state’s COVID-19 disaster declaration following its expiration on February 14, while the Governor of Oklahoma signed an executive order that removes nearly all restrictions on businesses.
  • Maine, Minnesota and New York eased restrictions including capacity limitations for certain businesses, indoor gatherings and/or restaurants, while five more regions within Washington moved to the next phase of the state’s reopening plan.

For more information, please contact your Baker McKenzie attorney.

Special thanks to our guest contributors Ginger Partee and John Foerster.

In this Mobility Minute our Global Immigration and Mobility attorneys discuss changes to the H-1B program under the Biden Administration. We will quickly review what was the final rule under the Trump Administration and provide insight on the new final rule, including practical considerations for in-house counsel and HR executives preparing for this year’s H-1B lottery.

Click here to listen to the Mobility Minute on demand.

Special thanks to presenters Melissa Allchin, Matthew Gorman, Christopher Guldberg, Scott McMillen, Betsy Morgan, Michael Poland, Sandhya Sharma, Aimee Soodan, Brian Wydajewski.

In these recordings of our two-part webinar series, our presenters take a look back at 2020 and forecast what is likely to have the most significant impact on Illinois employers in 2021.

Part 1 of the Illinois Employer Update focuses on Labor & Employment developments. Our presenters discuss the continued impact of COVID-19 on the workforce, diversity and inclusion considerations, what to expect under the Biden Administration, and Illinois law updates. Please click here to view a recording of Part 1.

Part 2 of the Illinois Employer Update covers developments in both Compensation & Benefits and Global Immigration & Mobility. Among other topics, presenters explore pandemic-related travel updates, expected change under the Biden Administration including an expansion of H-1B visas, new post-Brexit UK immigration rules and key developments impacting global equity plans. Please click here to view a recording of Part 2.

These webinars were in partnership with the ACC – Chicago Chapter.

On February 4, 2021, House Democrats reintroduced the Protecting the Right to Organize Act of 2019 (PRO Act). The sweeping labor legislation, which would return many provisions of current labor laws to their pre-1947 status, would create new claims and impose punitive penalties and strengthen a number of union and employee rights. The legislation has a checkered past: it passed in the House in early 2020, but stalled in the then Republican-controlled Senate. Now, under President Biden, who promised during his campaign to work toward the passage of certain provisions in the PRO Act, the PRO Act is taking another turn at becoming law.

The PRO Act is unabashedly pro-employee, and if passed, will radically transform the labor landscape. Among other provisions:

  • Certain pro-employee NLRB decisions handed down from the Obama-appointed Board will be codified, including Browning-Ferris Industries (which expanded the joint employer rule, meaning employers would be more likely to be deemed “joint employers” with increased liability) and Purple Communications (allowing workplace email access for organizing purposes).
  • The “ABC” test–which requires employers to meet strict requirements before they can classify workers as contractors instead of employees–will become the federal standard, leading to a higher likelihood that workers will be classified as employees and having tremendous implications on gig economy workers.
  • All Right-to-Work laws, which prohibit employers and unions from requiring employees to join or pay fees to the union as a condition of employment, will be banned.
  • “Ambush” election rules will be codified, which would drastically reduce the time period between the filing of a petition for election and the election-effectively providing employers with less time to communicate with employees about unionization.
  • Employers and unions negotiating a first contract will have to engage in lengthy (and costly) binding interest arbitration for a contract with a term lasting a minimum of two years, if a first contract is not reached in 90 days.

In addition, the PRO Act would create a private cause of action for unfair labor practices outside of the NLRB’s jurisdiction; give the NLRB the right to award liquidated damages in amounts up to two times the amount of damages (on top of traditional back pay, front pay, and consequential damages) for labor law violations; make terminating an employee for engaging in strike activity an unfair labor practice; ban employers from permanently replacing strikers; legalize partial and intermittent strikes; and ban offensive lockouts (see our prior blogs here and here).

Though it has the support of unions, President Biden, Democrats and some House Republicans, it is expected to face opposition from Senate Republicans and the business lobby, who argue it would harm business. To pass during this session of Congress, the PRO Act would need the backing of 10 Republicans in the Senate–or Senate Democrats would need to end the filibuster–neither of which is reportedly likely to happen.

However, union leaders have reportedly called the unions’ approach to passage of the PRO Act a “long haul.” Though the fate of the PRO Act remains to be seen, we do not expect unions to walk away from efforts to have union-friendly reform inked into law, especially with a union-friendly president in the White House.

Follow us as we continue to follow the PRO Act. For help navigating labor and employment law developments, contact your Baker McKenzie employment attorney.

Special thanks to guest contributors Alessandra Faso, Tony Haque and Daniel Urdiain-Dector.

In this global video our immigration attorneys discuss the continuing challenges of employee travel between Europe, Mexico, and the United States given the myriad of issues including travel restrictions, flight restrictions, and consular closures.

Click here to listen to the video chat on demand.

Special thanks to our guest contributors Matthew Gorman and Sandhya Sharma.

Our Global Immigration and Mobility attorneys discuss how travel restrictions are changing under the Biden Administration, and the practical impact of those changes on employers and employees. We present what was the law under the Trump Administration and what is the current legal framework.

Click here to the Mobility Minute on demand.