Update 2: On March 12, 2021, in Mikelsteins v.

Updates: On November 12, 2020, in James Anthony Manastersky v.

Canada saw significant developments in labour and employment law in 2019.  As we embark on a new decade, we will undoubtedly see the landscape in this ever-changing area of law continue to evolve.   Here is our Littler LLP overview of 15 key developments in 2019 with links to more detailed articles and commentary:

Enacted on Friday, March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748, the “CARES Act” or the “Act”) is intended to stimulate the U.S. economy in light of the COVID-19 pandemic. The CARES Act contains a number of provisions relating to employee benefits and executive compensation, which are summarized below.

Retirement Plan Provisions

As many employers are on the way to normalizing their business practices and re-engaging their employees, they should not overlook the many potential pitfalls in the administration of their retirement, health and welfare plans and their executive compensation arrangements. The risks of missteps are high, and include loss of tax-qualification of retirement plans, penalty taxes in connection with the Affordable Care Act’s (ACA) employer mandate rules, other IRS penalties, employee lawsuits and Department of Labor enforcement actions.

Financial services firms regulated in the UK by both the Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) have long caused confusion, particularly in international financial services groups, with their complex regulatory pay structures and infamous bonus cap.

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.

Laura Jousselin, Raoul Parekh and Stephan Swinkels discuss how European employers are responding to workplace changes, including AI and remote workplace demands from employees.

International Employment Lawyer

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The current administration and multiple members of Congress seek to grant protections to H-2B non-agricultural temporary workers who are employed in the United States to fill temporary labor shortages in the U.S. market. Multiple bills have been introduced in both the Senate and House of Representatives calling for protection against exploitation and abuse, including for employer violations of wage and hour laws and retaliation.

Alexander MacDonald weighs in on the effects of U.S. DOL regulations that seek to expand organizing protections for farmworkers on temporary visas.

Bloomberg Law

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Alexander Thomas MacDonald provides insight into the new regulations under theH-2A visa program. 

The Federalist Society

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The U.S. Department of Labor (DOL) published its new immigration-related fines/penalties, effective January 15, 2024. Immigration-related violations before the DOL involve these visas: H-1B, H-2A, and H-2B. These increases are pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015. Since that time, penalties have been adjusted yearly based on the rate of inflation.

Below are the offenses, including regulation citations, with the old and new penalties:

The Department of Homeland Security (DHS) has recently announced a streamlined process for foreign workers to request deferred action. Deferred action is a type of prosecutorial discretion to defer removal action (deportation) for a noncitizen for a certain time period.  The new process will apply where these workers are participating in or otherwise involved an investigation or enforcement action by a federal, state, or local labor and employment agency.    

As required under the Federal Civil Penalties Inflation Adjustment Act of 2015, the Department of Justice (DOJ) announced, through the Federal Register, increases for penalties under the Immigration Reform & Control Act (IRCA), effective February 13, 2024. Interestingly, the Federal Register announcement for DOJ increases also included penalties for sections of IRCA administered by the Department of Homeland Security (DHS), Immigration & Customs Enforcement (ICE).

In the Chancellor of the Exchequer’s Autumn Statement, Jeremy Hunt promised that “the government will expand the business Visitor rules to allow businesspeople to engage in a wider range of permitted activities and paid engagements, to take effect from January 2024. The government will also explore further reforms to the business visitor rules during 2024.”

The first of these changes took effect from January 31, 2024. They were not a major reform of the business and other permitted activities that can be carried out on a visit visa, but there are some important changes.

In just two weeks, on April 1, 2024, U.S. Citizenship and Immigration Services (USCIS) will implement its new filing fee structure. The new fees will vary by visa type with exceptions for small employers and non-profit entities. A new Asylum Program Fee will also be added to certain petitions.

As an example of the upcoming changes, the following chart covers a comparison of the most common visa types:

UPDATE: Since publication, we made a clarifying edit concerning the reasons an employee will be able to use paid sick leave under the amended law.

The Washington state legislature and certain localities recently passed several bills affecting employers, some of which have already been signed into law. These measures address non-compete agreements, mandatory employer-sponsored meetings, immigration reporting, paid leave, and the minimum wage. Each new bill or ordinance is discussed below. 

New Law Expands and Clarifies Non-Compete Statute

Immigration associates George Thompson and Deepti Orekondy discuss the nuances and intricacies of filing of an H-1B visa application, including H-1B Cap petitions, and how to help employers maintain H-1B compliance. This podcast delves into common pitfalls and strategic considerations for an employer filing an H-1B petition.
   

The Department of Homeland Security (DHS) announced that the agency will establish a new process to consider, on a case-by-case basis, requests from eligible noncitizen spouses of U.S. citizens for parole-in-place status.  Parole-in-place allows noncitizens who entered the United States without the authorization of an immigration officer to remain in the United States for a certain period.  If paroled, eligible noncitizen spouses will be able to apply for permanent residence without having to leave the United States to be processed for an Immigrant Visa at a U.S.

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.

Under the previous UK Home Secretary, James Cleverly, minimum salary thresholds for Skilled Worker visas were raised significantly and the 20% discount for shortage occupations were eliminated.

Both the Conservative and Labour manifestos vowed to lower immigration each year, leaving employers wondering what changes are on the horizon.

Review of IT and engineering roles

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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Michael Lotito said labor policy changes could be delayed in a second Trump administration depending on the shifting makeup at the NLRB.

Law360 Employment Authority

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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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Alexander T. MacDonald says predistributional labor policies do none of the things they’re supposed to do and, in fact, amplify the problems they’re supposed to solve.

The Federalist Society

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Counsel representing banks in employment litigation need to understand the special privileges and rules regarding access to bank records and disclosures to regulators.

By Philip M. Berkowitz | July 13, 2022

Joy Rosenquist talks about some of the 30 new California laws she thinks are particularly significant for employers, including rules addressing pay transparency and off-duty cannabis use.

Law360 Employment Authority

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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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Jesús Lahera offers a detailed analysis of Spain’s Whistleblowing Directive and its impact on employers and employees.

Observatorio de RRHH

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In this article, we share a round-up of the key developments from a regulatory perspective for HR Professionals in UK financial services firms. This covers expected changes to the SMCR regime, regulatory remuneration requirements and whistleblowing framework. We also look at the increasing focus of the regulator on culture and conduct within financial services firms in the wake of recent sexual harassment allegations within a UK asset manager. 

SMCR

Protection of whistleblowers has been on the EU’s agenda for quite some time. Four years ago the EU issued the EU Whistleblowing Directive throughout its Member States.

In the first major action of 2024, the Department of Justice (DOJ) announced it had entered into a three-year deferred prosecution agreement (DPA) with a publicly traded global software company for alleged violations of the Foreign Corrupt Practices Act (FCPA). The January 10, 2024 announcement described the company’s agreement to pay more than $220 million in connection with the investigation, consisting of just under $120 million in criminal penalties.  While significant, these fines were reduced based on the pilot program announced by the DOJ last spring, as described below.

D. Porpoise Evans examines a new DOJ whistleblower program that will complement last year’s focus on corporate voluntary disclosure programs and offers whistleblower awards to motivate employees to report misconduct.

HR Daily Advisor

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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.