The Internal Revenue Service recently issued proposed regulations under Section 457 of the Internal Revenue Code (the “Code”) that prescribe rules regarding deferred compensation plans sponsored by state and local governments and tax-exempt organizations.  These regulations relate primarily to the taxes imposed (under Code Section 457(f)) on the organization at the time the individual’s right to compensation vests, without regard to actual time of payment. 

In a reassuring decision for employers, the UK High Court has confirmed that an employer’s use of a contractual provision to claw back an employee’s bonus was lawful. The ruling in Steel v Spencer Road LLP provides helpful guidance on the circumstances in which a bonus clawback will not constitute a restraint of trade, though employers should be mindful that not all such provisions will be enforceable.

Johane Severin discusses the growing practice of “stay-or-pay” contracts, which some argue force workers to pay if they resign ahead of a stipulated date.

International Employment Lawyer

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On January 30, 2024, U.S. Citizenship and Immigration Services (USCIS) announced an increase to its filing fees across the board. The last such increase was in 2016. This change will be effective April 1, 2024. In some cases, increases are minor, but several are substantive.

The Home Office has updated its guide on right to work (work authorization) checks for employers in the UK.

Changes coming into effect this month include a less flexible approach to late applications to the EU Settlement Scheme (EUSS) for Europeans and their families and a hike in penalties for illegal working.

Right to work changes for EEA citizens

April 1, 2024, will mark the beginning of new changes to USCIS form editions, filing fees, and direct filing addresses for many common immigration applications and petitions.

Of particular note are the upcoming changes to the filing requirements for the Form I-129 and Form I-140. With the H-1B lottery filing window set to open on April 1 for those selected in the FY 2025 H-1B lottery, it is imperative for visa petitioners to be mindful of the upcoming changes to avoid any unnecessary rejections of their potentially time-sensitive filings.

Filing Fees

Introducing the latest UK Immigration Rules Statement of Changes, Legal Immigration Minister Tom Pursglove announced that they will “deliver the biggest ever cut to migration over the course of this year.”

The Statement of Changes HC590 will have serious consequences for employers from April 4, 2024, as well as for British citizens and settled residents bringing partners to live with them in the UK from April 11.

To tackle illegal employment through subcontracting more effectively, the Flemish government improved chain liability, and introduced a duty of care. According to this duty of care, companies working with subcontractors in the Flemish Region are obliged to request certain data from these subcontractors (Cf. Decree of 27/10/2023).  

The Flemish Government's Implementing Decree was published in the Belgian Official Gazette on June 4, 2024, containing a checklist of the specific data to be requested. The decision will enter into force on January 1, 2025. 

On August 9, 2024, Illinois Governor JB Pritzker signed Senate Bill 0508 (“SB0508”) into law. This new law provides additional employment protections for individuals flagged by an employment eligibility verification system, including federal E-Verify, as having identification discrepancies. The new rights and protections created by SB0508 will take effect on January 1, 2025. This evaluation does not address whether the state law directly restricts or curtails the use of E Verify.

Deepti Orekondy and Jorge R. Lopez discuss the new rights and protections provided under lllinois’ new Senate Bill 0508, which provides additional employment protections for individuals flagged by an employment eligibility verification system.

SHRM

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Alexander Thomas MacDonald explains how, through a century of trial and error, labor law has been wildly successful in giving us the most peaceful labor market in history. 

The Federalist Society

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Terri M. Solomon talks about Littler’s 2023 Employer Pulse Survey results, which show that employers are rebounding from 2020 as consumer spending on entertainment, travel and sports increases.

Law360 Employment Authority

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Jeff Nowak and Rich Falcone talk through a hypothetical HR dilemma involving a workplace complaint.

SHRM Online

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UPDATE: This law took effect on February 8, 2024.

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On September 1, 2021, the Office of Federal Contract Compliance Programs (OFCCP), the Department of Labor sub-agency charged with enforcing affirmative action and non-discrimination requirements imposed on federal contractors by way of Executive Order 11246, announced that it was reversing

On August 31, 2021, the Office of Management and Budget (OMB) approved the Affirmative Action Program Verification Interface (AAVI) proposed by the Office of Federal Contract Compliance Programs (OFCCP) for the verification and upload of federal contractor affirmative action plans.

It was all very well to say ‘Drink me,’ but the wise little Alice was not going to do that in a hurry. ‘No, I’ll look first,’ she said, ‘and see whether it’s marked “poison” or not’; for […] she had never forgotten that, if you drink much from a bottle marked ‘poison,’ it is almost certain to disagree with you, sooner or later.

                                           —Lewis Carroll, Alice in Wonderland, Chapter 1, Down the Rabbit Hole

On February 1, 2022, the Office of Federal Contract Compliance Programs (OFCCP) presented a webinar on its new contractor portal through which covered contractors are being asked to certify whether they are meeting their requirement to develop and maintain annual affirmative action programs.

On March 31, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued a new Directive 2022-02.  Its stated purpose is to provide “transparency on OFCCP’s compliance evaluation policies and expectations for contractors”—but upon review, it appears to be a retreat from the standards of transparency, certainty, and efficiency that guided OFCCP from 2017 through 2020.  The new directive radically alters OFCCP’s approach toward compliance reviews and removes guardrails that had been put in place t

On May 20, 2022, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2022 Corporate Scheduling Announcement List (CSAL) for supply and service contractors. OFCCP has stated that it will immediately begin to send out scheduling letters to some of the contractors on the new list.  This is a change from the past when OFCCP would wait at least 45 days from publication of the list before beginning audits.  See U.S.

On August 18, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued a revised version of its Directive 2022-01 - Advancing Pay Equity Through Compensation Analysis, which was originally issued on March 15, 2022.

On August 19, 2022, OFCCP published a notice in the Federal Register for the stated purpose of advising employers that in response to a Freedom of Information Act (FOIA) request, it is planning to produce confidential information that is protected from disclosure pursuant to a statutory exemption.

As outlined in our August 22 Insight, OFCCP announced an intention to produce federal contractors’ Type 2 EEO-1 data in response to a FOIA request from the Center for Investigative Reporting (CIR).  Employers were given until September 19, 2022, to file their objections. On September 15, 2022, OFCCP extended the deadline for filing objections to October 19, 2022.

Alecia Winfield explains what diversity means in corporate America and says the ‘Black Lives Matter’ protests fueled a drive for change in corporate America, similar to that of the #MeToo movement. 

Apparel Resources

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Readers will recall that in August 2022, OFCCP published a notice in the Federal Register advising employers that it was the subject of a Freedom of Information Act (FOIA) request seeking EEO-1 data from all federal contractors, including first-tier subcontractors, for the period 2016-2020.

On January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2023 Corporate Scheduling Announcement List (CSAL) for supply and service contractors. The CSAL includes 452 establishment reviews, 24 Corporate Management Compliance Evaluation reviews, and 24 Functional Affirmative Action Program (FAAP) reviews.

OFCCP issued yet another notice today regarding its handling of a FOIA request for production of all federal contractors’ EEO-1 Type 2 data from 2016 through 2020.

The request keeps in place a February 17, 2023, deadline for submitting objections, but expands the grounds upon which employers may object, but only if the contractor includes an explanation as to why it did not object “in response to previous notices that we have issued, and why there is good cause for us to accept the objection at this point.”

On February 14, 2023, OFCCP announced that it was again extending the deadline for employers to file objections to the disclosure of their EEO-1 data in response to a FOIA request from the Center for Investigative Reporting. The deadline for submitting objections is now March 3, 2023. 

Last August OFCCP published a notice in the Federal Register advising employers that in response to a Freedom of Information Act (FOIA) request, the agency was planning to produce confidential information that is ordinarily protected from dis

In December 2021, the Office of Federal Contract Compliance Programs (OFCCP) implemented a new requirement that all covered federal contractors and subcontractors annually certify that they have current affirmative action plans in place for each of their establishments or functional units as applicable.  The Process for Certification, which was to be made through a new Contractor Portal, was rolled out over a five-month period beginning on February

On April 25, 2023, the Office of Management and Budget approved the Office of Federal Contract Compliance Programs’ (OFCCP) updated form prospective and current employees must use to voluntarily self-identify as an individual with a disability.  The form is applicable to federal contractors and subcontractors subject to Section 503 of the Rehabilitation Act, which requires contractors to invite applicants to self-identify as disabled at the pre-offer stage, and to invi

On June 5, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2023 Construction Corporate Scheduling Announcement List (CSAL). The CSAL includes 250 employers that OFCCP has identified as federal or federally assisted construction contractors.

Alyesha Dotson and David Goldstein said the U.S. Supreme Court's ruling striking down affirmative action admissions policies at Harvard and the University of North Carolina offers an opportunity for employers to review their DEI programs and possibly establish more robust ones to help offset any effects of the ruling.

Law360

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On August 24, 2023, the Office of Management and Budget approved a request from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to revise the “Itemized Listing” that OFCCP uses to collect information from federal contractors that are selected for supply or service audits. Among the changes that have been approved is a new requirement that audited contractors:

On December 14, 2023, the U.S. Department of Labor issued final regulations requiring the so-called “nondisplacement” of workers performing work on contracts for the federal government under the Service Contract Act (SCA). These regulations implement Executive Order 14055, “Nondisplacement of Qualified Workers Under Service Contracts,” President Biden signed on November 18, 2021.

In 2022 the Office of Federal Contract Compliance Programs (OFCCP) began requiring that federal contractors and subcontractors subject to the affirmative action requirements of Executive Order 11246 annually certify that they are meeting their requirement to develop and maintain annual affirmative plans (AAPs).  In rolling out this program, OFCCP warned that covered contractors that failed to certify by a deadline would be at a higher risk for audit.  OFCCP made good on this warning when it published its 2023 Corporate Scheduling Announcement List (CSAL), which is a courtesy notice of cont

On June 7, 2024, the Office of Federal Contract Compliance Programs (OFCCP) published its FY 2024 Corporate Scheduling Announcement List (CSAL) for Supply and Service Contractors. The CSAL is a courtesy notification, and the review will start once the establishment receives OFCCP’s Office of Management and Budget (OMB) approved scheduling letter.

Alexander MacDonald says that in the wake of Chevron, existing regulations will not be thrown out, but there will be closer scrutiny over regulations, and there may be fewer of them to come.

HR Dive

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Ben Sandahl discusses a Minnesota case that raises several issues for companies working with independent contractors.

Westlaw Today

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The Connecticut Supreme Court recently adopted the U.S. Supreme Court's relatively narrow definition of “supervisor” for use in determining when employers are liable under the Connecticut Fair Employment Practices Act (CFEPA) for creating or failing to remedy a hostile work environment. The decision provides employers with clarity as the term is not defined by the CFEPA.

In July, the Third Circuit upheld a District of New Jersey decision to throw out a withdrawal liability assessment, finding the multiemployer pension fund was barred from pursuing its claim because the fund unreasonably delayed notification of a withdrawal liability assessment for 12 years.

Withdrawal Liability Assessments Under ERISA

Kerry Notestine, Chad Kaldor, Shawn Matthew Clark and Garrick Josephs discuss a court’s decision that the Maryland WARN Act does not give individuals the right to file suit in their personal capacity to enforce a legal claim under the Act.

Wolters Kluwer

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