Federal Employment Law Update – February 2019

EEO-1 Survey Opening Postponed

The federal Equal Employment Opportunity Commission (EEOC) announced that due to the recent partial lapse in appropriations, the opening of the EEO-1 has been postponed until early March 2019. The deadline to submit EEO-1 data will be extended to May 31, 2019. Details and instructions for the 2018 EEO-1 Report filers will be forthcoming on the EEO-1 website in the coming weeks for schedule updates.

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E-Verify Resumes Operation

On January 27, 2019, the U.S. Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) announced that E-Verify resumed operation.

Form I-9

Even though Form I-9 support representatives were unavailable during the lapse in government appropriations and E-Verify service was disrupted, employers were still required to complete and retain Form I-9, Employment Eligibility Verification, for every person hired for employment in the U.S. during that time, as long as the person works for wages or other remuneration.

E-Verify

Creating Cases

Now that E-Verify operations have resumed, employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available. Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, then select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.

Tentative Nonconfirmations

For an employee who received a TNC and notified his or her employer of the intention to contest it by February 11, 2019, employers must revise the date by which the employee must contact the Social Security Administration (SSA) or DHS to begin resolving the TNC by adding 10 federal business days to the date on the employee’s “Referral Date Confirmation” notice. Federal business days are Monday through Friday and do not include federal holidays. Then, employers are to give this revised notice to the employee.

Employers may reprint a copy of the employee’s “Referral Date Confirmation” by logging in to E-Verify, selecting the employee’s case and selecting the “Print Confirmation” button. Employers are directed to cross out the old date and insert the new date. Employees have until this new date to contact the SSA or DHS to resolve their cases, as applicable.

For TNC cases that were referred after E-Verify resumed operations, employers are not to add days to the time the employee has to contact either SSA or DHS. If the employee decided to contest the TNC when E-Verify was unavailable, then the employer should refer the employee’s case now, and follow the TNC process.

Federal Contractor Deadlines

During the DHS lapse in appropriations E-Verify was not available for federal contractor enrollment or use. As a result, DHS guidance is that any calendar day during which E-Verify was unavailable due to the lapse in appropriations should not count towards the federal contractor deadlines found in the Employment Eligibility Verification Federal Acquisition Regulation. Federal contractors are directed to contact the applicable contracting officer for more information on federal contractor responsibilities.

Web Service Clients

E-Verify will resume operations following the temporary re-opening of the government. While all E-Verify features and services, including the ability to resolve a Tentative Nonconfirmation (TNC) will be available, web service clients (WSC) may experience longer-than-usual processing times as the system works through a large volume of accumulated cases. WSCs may receive a response that USCIS is working on the submission.

Employees

If the lapse in appropriations prevented an employee from contesting his or her Tentative Nonconfirmation (TNC), the employee will be allowed additional time to contact the Social Security Administration (SSA) or DHS to begin the process of resolving the TNC. If the referral date confirmation was received by February 11, 2019, an employee is directed to:

• Add 10 federal business days to the date printed on the “Referral Date Confirmation” that the employer provided after the employee contested the TNC. Federal business days are Monday through Friday and do not include federal holidays. Employees may also contact their employer if they are unsure of the new date by which they must contact either SSA or DHS to resolve the TNC.
• Contact either SSA or DHS by the new date to begin the process of resolving the TNC.

For more information about contesting the TNC, please refer to E-Verify’s employee page.

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NLRB Decision in SuperShuttle and Common Law Test for Independent Contractors Reinstated

On January 25, 2019, the National Labor Relations Board (NLRB) announced a return to the common-law independent contractor standard in SuperShuttle DFW, Inc. The case involved shuttle-van driver franchisees of SuperShuttle at Dallas-Fort Worth Airport and the NLRB found that franchisees (in this case, the shuttle-van drivers) are not statutory employees under the National Labor Relations Act (NLRA), but rather independent contractors and are excluded from NLRA coverage.

The NLRB found that the franchisees’ leasing or ownership of their work vans, their method of compensation, and their nearly unfettered control over their daily work schedules and working conditions provided the franchisees with significant entrepreneurial opportunity for economic gain. These factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in the NLRB’s finding that the franchisees are not employees under the NLRA. The decision affirms the acting regional director’s finding that the franchisees are independent contractors.

Of note, the common-law test to determine whether a worker is an employee or an independent contractor takes into account all of the following:

• The extent of control which, by the agreement, the master may exercise over the details of the work.
• Whether or not the one employed is engaged in a distinct occupation or business.
• The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
• The skill required in the particular occupation.
• Whether the employer or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work.
• The length of time for which the person is employed.
• The method of payment, whether by the time or by the job.
• Whether or not the work is part of the regular business of the employer.
• Whether or not the parties believe they are creating the relation of master and servant.
• Whether the principal is or is not in business.

The NLRB went on to clarify that, “[i]n applying these factors [above], all the incidents of the relationship must be assessed and weighed with no one factor being decisive. What is important is that the total factual context is assessed in light of the pertinent common-law agency principles.”

This decision overrules FedEx Home Delivery v. NLRB, a 2014 NLRB decision that modified the applicable test for determining independent contractor status.

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OSHA and Final Rule Revising Electronic Recordkeeping Regulations

On January 25, 2019, the federal Occupational Safety and Health Administration’s (OSHA) final rule revising electronic recordkeeping regulations was published in the Federal Register. According to the rule, OSHA amended the recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to maintain those records on-site, and OSHA will continue to obtain them as needed through inspections and enforcement actions. In addition to reporting required after severe injuries, establishments will continue to submit information from their Form 300A.

The recordkeeping regulation amendments also require covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission.

Employers must continue to maintain OSHA Forms 300 and 301 for OSHA inspection.

The final rule is effective February 25, 2019.

Read the final rule

USCIS Resumes Premium Processing for Fiscal Year 2019 H-1B Cap Petitions

On January 25, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it will resume premium processing on Monday, January 28, for all fiscal year (FY) 2019 H-1B cap petitions, including those eligible for the advanced degree exemption (the “master’s cap”). Petitioners who received requests for evidence (RFEs) for pending FY 2019 cap petitions should include their RFE response with any request for premium processing.

H-1B visas provide employers with skilled workers for a wide range of specialty occupations. The USCIS guarantees a 15-day (calendar days, not business days) processing time when a petitioner requests premium processing service; however, if certain adjudicative action is not taken within that 15‑day processing time, then the USCIS will refund the petitioner’s premium processing service fee and then continue with expedited petition processing. The premium process service is only available for pending petitions, not new submissions.

The previously announced temporary suspension of premium processing remains effective for all other categories of H-1B petitions, as applicable. Of note, the USCIS plans to resume premium processing for the remaining categories of H‑1B petitions as agency workloads permit.

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