NLRB Election Proposal Extended

Public comments in response to the National Labor Relations Board's (NLRB) request for information regarding its 2014 changes to its union election rules were originally due in February. However, the NLRB has since extended the filing deadline twice: first to March 19, and most recently to April 18, 2018. Regardless, the Board will unlikely be able to meaningfully act on comments until its current 2-2 deadlock is broken.

NLRB Returns to "indirect" Joint-Employer standard

In late February, in a stunning development, the NLRB vacated its December 2017 decision in Hy-Brand Industrial Contractors, Ltd., following a determination from the Board's ethics official that Member William Emanuel should not have participated in the case because his previous law firm represented a party in another case (Browning-Ferris Industries) that dealt with the same issue. This means that the amorphous joint-employer standard set forth in Browning-Ferris is once again the law.

USCIS Announces Increased H-1B scrutiny

According to a U.S. Citizenship and Immigration Services (USCIS) memorandum that became effective on February 22, 2018, employers of H-1B workers will be required to disclose even more information to the federal government. More specifically, pursuant to the announced policy change, employers will be required to provide additional documentation in situations where H-1B employees are working at third-party worksites.

H-4 Spouse Proposal Delayed

According to the most recent regulatory agenda, USCIS was scheduled to issue a proposal by February of this year that would eliminate work authorization eligibility for certain H-4 spouses of H-1B nonimmigrants. However, the Department of Homeland Security announced that it needed a few more weeks to complete the economic analysis and now expects to send a proposal to the Office of Management and Budget in June. This means an actual notice of proposed rulemaking on this matter might not be issued until the fall of this year.

Federal Contractor Update

It's scheduling letter season for the Office of Federal Contract Compliance Programs (OFCCP)! On February 1, 2018, OFCCP mailed 1,000 corporate scheduling announcement letters to contractor establishments and announced that the actual scheduling letters started being sent on March 19, 2018.

SCOTUS Hears Union Fees Argument

On February 26, 2018, the Supreme Court of the United States (SCOTUS) heard oral argument in Janus v. American Federation of State, County, and Municipal Employees, Council 31, regarding the constitutionality of public sector agency fee arrangements. Justice Neil Gorsuch, thought to hold the deciding vote on the matter, was reportedly silent throughout the argument. Though the case concerns public sector employees, it could have an enormous impact on labor union coffers. Look for a decision toward the end of the Court's term, likely in June.

"Right to Cure" Bill Passes House

On February 15, 2018, the House of Representatives passed the ADA Education and Reform Act of 2017. The bill seeks to curb purported "drive by" lawsuits filed under Title III of the Americans with Disabilities Act (ADA) by providing businesses with an opportunity to remove barriers to access before being sued. While there is no companion bill currently in the Senate, passage of the bill in the House indicates that policymakers are paying attention to this issue.

AHP Comment Period closes

March 6 marked the close of the public comment period for the Department of Labor's (DOL) proposed rule related to association health plans (AHPs). In January, the DOL's Employee Benefits Security Administration published a proposed rule intended to increase the availability of AHPs by expanding the definition of "employer" to make it easier for smaller employers to band together to sponsor health insurance plans for their employees. Currently, there is no indication when a final rule may be issued.

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