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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.

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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.

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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.

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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.

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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.

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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.

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Special thanks to guest contributors Alessandra Faso, John Foerster and Matthew Gorman.

In Brief

Now is the time to start preparing H-1B petitions for consideration in the 2021 H-1B lottery. As background, the demand for new H-1Bs always exceeds the limited supply. Since 2014, the quota has been filled within the first week and an H-1B lottery established. In recent years, more than 200,000 petitions were received for the 85,000 H-1B visas available.

Key takeaways

Here are a few key takeaways regarding proposed changes and the likely timing for USCIS’ H-1B Cap protocol:

  • The initial H-1B petition registration period will likely begin in early March, and will close later on in the month. We expect USCIS to issue more specific guidance in the coming weeks. For reference, last year’s registration was open from 1 March to 20 March.
  • Employers (or authorized representatives) must register using an online account. Information regarding how to register will be provided by USCIS on its website.
  • A separate registration request must be made for each individual for whom H-1B status is sought.
  • USCIS will send notices to all registrants with selected registrations who are eligible to file an H-1B Cap Petition. The petitioning employer will then have a 60-day window to submit the H-1B Petition.
  • A pending Trump-era regulation would change the “randomized” nature of the H-1B lottery and replace it with one that selects based on wage level. Under this model, higher “level” wages would receive priority over lower “level” wages. This rule is currently under review by the Biden Administration and it is not clear whether it will be invalidated or delayed.

Actions to take

While there is currently uncertainty regarding whether the new lottery selection criteria will be in effect for the upcoming H-1B Cap season, one thing is clear: all potential H-1B cap beneficiaries should be identified as early as possible to ensure participation in the electronic preregistration lottery. Now is the time to:

  • Identify the potential H-1B beneficiaries within your company.
  • Prepare job descriptions.
  • Organize wage and compensation information.
  • Collect academic documents and, where appropriate, secure translations and evaluations of education/experience.
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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:

  • President Biden signed a proclamation on January 25, 2021, which restricts and suspends the entry into the United States of noncitizens of the United States who were physically present within the Schengen Area, the United Kingdom (excluding overseas territories outside of Europe), the Republic of Ireland, the Federative Republic of Brazil, and the Republic of South Africa during the 14-day period preceding their entry or attempted entry into the United States
  • The following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Colorado, Connecticut, Georgia, Indiana, New Mexico, South Carolina, Virginia and Washington, D.C.
  • Oregon modified the guidance to its public health framework with respect to indoor activities, while Washington changed the evaluation criteria and timeframe for regions to progress to the next phase of the state’s reopening plan.
  • Nebraska moved to the next phase of its reopening plan, while in Michigan restaurants are now permitted to reopen for in-person dining subject to capacity restrictions, in Maryland bars and restaurants are no longer required to close at 10 p.m., and in Maine businesses are no longer required to close at 9 p.m.

For more information, please contact your Baker McKenzie attorney.

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This webinar recording takes a look back at 2020 and prepares employers for what’s on the horizon in 2021. Our presenters review COVID-19 and its continued impact on the workforce, diversity and inclusion considerations, what to expect under the Biden Administration, and a update on recent New York laws.

Please click here to view this informative recording.

This webinar was in partnership with the New York ACC.

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The DOL’s just-issued final rule on employee vs. independent contractor classifications under the FLSA seems likely to be reversed. On January 20, the White House issued a memorandum to the heads of all executive departments and agencies ordering them to halt all non-emergency rulemaking and regulatory activity issued under the previous administration pending review by the new administration.

Regulatory Freeze Chills the Trump DOL’s Independent Contractor Rules

The memorandum instructs the executive agencies, which include the U.S. Department of Labor, to immediately:

  • Halt the proposal or issuance of any rule until a department or agency head appointed or designated by President Biden reviews and approves the rule;
  • Withdraw any rules already sent to the Office of the Federal Register (OFR) for publication but which have not yet been published; and
  • Consider postponing by 60 days the effective date of any such rules already sent to OFR for publication (or otherwise issued) but which have not yet taken effect, “for the purpose of reviewing any questions of fact, law, and policy the rules may raise.”

Accordingly, the DOL’s final rules issued on January 7, including those regarding independent contractor classification, are effectively withdrawn.

The classification rules issued under the Trump DOL took a business-friendly approach. They focused on whether workers are economically dependent on another business–making them more likely to be an employee of that business, and entitled to the minimum wage and overtime under the Fair Labor Standards Act (FLSA)–or are economically independent, making them true independent contractors. (For more on the January 7 final rules, click here.) By adopting an “economic reality” test, the January 7 rules effectively simplified the classification test used  by the DOL to determine whether a worker is an independent contractor or an employee to two “core factors”—the nature and degree of control over the work and the worker’s opportunity for profit or loss based on initiative and/or investment. DOL’s January 7 final rule was widely viewed as including more workers in the independent contractor side of the equation.

A Federal ABC Test?

However, this reversal comes as no surprise given Biden’s stated priorities to protect workers in the gig economy. In his “Plan for Strengthening Worker Organizing, Collective Bargaining and Unions,” Biden promises to “work with Congress to establish a federal standard modeled on the ABC test for all labor, employment, and tax laws.” The ABC test (used in California and several other states, more here) is a more rigid test for determining worker status. Under the ABC test, a worker is presumed to be an employee unless a hiring entity can establish all three of the following conditions:

  1. That the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  2. That the worker performs work that is outside the usual course of the hiring entity’s business; and
  3. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

It’s safe to say we will 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.