Haynsworth Sinkler Boyd’s Employment Law Group is pleased to announce the schedule for our upcoming Employment Law Seminars. HR professionals are invited to join us for a program that will cover a number of current topics in employment law. These complimentary seminars have been submitted for 3.0 hours of SHRM, HRCI and CLE continuing education credits.

Our speakers will present on the following topics:

  • Tips on Implementing a Different Approach to Harassment & Discrimination in the Workplace
  • Aging Workforce
  • Immigration Law Update
  • Critical Conversations: Employee Assistance Programs
  • Concerted Activity & Other News from the NLRB
  • Key Elements to Creating a “Culture of Safety”
  • Data Theft: What to Do When an Employee Steals Company Information

Join us for a seminar in a location near you:

October 23 – North Charleston
1:00 pm – 5:00 pm
Click here for agenda, details and to register.

October 24 – Columbia
8:30 am – 12:00 pm
Click here for agenda, details and to register.

December 4 – Myrtle Beach
8:30 am – 12:00 pm
Click here for agenda, details and to register.

December 5 – Florence (co-sponsored with Pee Dee SHRM)
8:30 am – 12:00 pm
Click here for agenda, details and to register.

Please contact Keely Yates for additional information.

On July 31, 2018, the Department of Justice (DOJ) and the Department of Labor (DOL) signed an agreement that sets guidelines for inter-agency collaboration to combat suspected employer non-compliance with immigration laws. The agencies have agreed to share resources, including records, and education and training where necessary, and refer cases to one another when an agency learns of employer non-compliance. Continue Reading DOJ and DOL Combine Forces to Combat Employment Discrimination Against U.S. Workers

In a 5-4 decision, the United States Supreme Court reversed the Ninth Circuit’s grant of a preliminary injunction on President Donald Trump’s September 2017 proclamation – Proclamation No. 9645, more commonly known as the “travel ban.” Proclamation 9645 restricted entry into the United States by citizens of Iran, North Korea, Somalia, Syria, Chad (subsequently removed from the list), Libya, Yemen and Venezuela. The majority held that the authority to suspend the entry of aliens into the United States flows from the clear statutory language of §1182(f) of the Immigration and Naturalization Act, which “enables the President to suspend the entry of all aliens or any class of aliens whenever he finds that their entry would be detrimental to the interests of the United States.” Continue Reading Yesterday’s SCOTUS Ruling on the Travel Ban

In May 2018, the United States Citizenship and Immigration Services (USCIS) made two changes affecting foreign students – (1) calculating unlawful presence for students in the U.S. and (2) third-party placements for STEM OPT students.

Calculating Unlawful Presence

“Unlawful presence” in the U.S. is defined as being present in the U.S. after the expiration of a period of stay or any presence without being admitted or paroled into the U.S. However, different rules govern what counts as “unlawful presence.” Recently, USCIS updated its policy on how unlawful presence is calculated for individuals in F (student), J (exchange visitor), and M (vocational student) status. Generally, an individual who “was unlawfully present in the United States for a period of more than 180 days but less than 365 days” may be barred from re-entry for three years; and if an individual has overstayed for more than 365 days, then a ten year bar to re-entry applies. See INA 212(a)(9). In a Policy Memorandum dated May 10, 2018, USCIS set out new rules for calculating unlawful presence for individuals in F, J, and M status. Under the former rule, a student in the U.S. would begin to accrue unlawful presence only after USCIS or an immigration judge made a formal finding of a violation of status, whichever came first. However, under the new rule effective August 9, 2018, unlawful presence is calculated as follows:

F, J, or M individuals who failed to maintain their status before August 9, 2018 will start accruing unlawful presence on August 9, 2018, unless such individual has already started accruing unlawful presence on the earliest of any of the following:

  • The day after Department of Homeland Security (DHS) denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired, if the individual was admitted for a date certain (versus Duration of Status (D/S)); or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

F, J, or M individuals will begin to accrue unlawful presence for a failure to maintain status on or after August 9, 2018 on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires, if the individual was admitted for a date certain (versus D/S); or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

USCIS seeks to implement this updated policy to lower overstay rates for students and exchange visitors. According to the FY 2016 Entry/Exit Overstay Report published by DHS, “the total overstay rate is 6.19 percent for the F visa category, 11.60 percent for the M visa category, and 3.80 percent for the J visa category.” In FY 2016, DHS calculated nearly 1.5 million students and exchange visitors who were expected to change status or depart the U.S.

Restricting Third-Party Placement for STEM OPT

The second policy change is with regard to third-party placements for STEM OPT students. F-1 students may engage in a twelve-month optional practical training (OPT) after completing their studies. Students who receive a science, technology, engineering, or mathematics (STEM) degrees may apply for a twenty-four month extension to their OPT. So far, no regulations or policy memoranda specifically prohibit STEM OPT students from being placed at third-party sites. However, USCIS updated its website to prohibit third-party placements – “a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer).” The website requires that training take place on-site exclusively. USCIS’ stated rationale includes the ability of Immigration and Customs Enforcement, the enforcement arm of the DHS, to conduct site-visits to ensure OPT compliance.

It is expected that USCIS will issue a policy memorandum addressing this issue in the near future, as the enforceability of publishing material on the website could be challenged. Therefore, students and employers are well-advised to consult immigration counsel in considering a third-party placement and the associated risks in light of these developments.

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credits available.

Continue Reading Join us for our upcoming Employment Law Seminars

Perry MacLennan, Chris Gantt-Sorenson and Denny Major
Perry MacLennan, Chris Gantt-Sorenson and Denny Major

Haynsworth Sinkler Boyd recently hosted our annual Employment Law Seminars across South Carolina. These complimentary seminars educated Human Resource professionals on recent employment law updates and changes.

Here is a brief summary of the presentations from our seminars.

LGBTQIA: What Human Resource Professionals Need to Know by Chris Gantt-Sorenson

  • The 4th Circuit Court of Appeals has already stated in dicta that it would recognize a claim alleging gender discrimination or harassment under Title VII for any employee who has been discriminated against on the basis of their gender identity, gender expression, sexual orientation or sexual preference.
  • OSHA states, “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”
  • OSHA reports 22% of 700,000 transgender employees surveyed indicated they were denied access to gender appropriate restrooms.
  • OSHA’s Sanitation Standard 1910.141(c)(1)(ii) requires employers to provide toilet facilities that are close to their workspace for each gender. OSHA also issued guidance recommending that employers offer single occupancy, gender neutral facilities rather than gender specific. However, if an employer could not do so, OSHA advised employers should provide lockable stalls in each restroom.

Wage and Hour Update by Denny Major

  • The Department of Labor has issued a request for information to solicit input on the salary level test used to help determine if an employee meets the executive, administrative, or professional exemption for the FLSA’s overtime requirement. The DOL has indicated that it intends to use the comments to develop a new proposed regulation regarding this exemption. For now, the 2004 salary level test ($455/week) remains in effect.
  • In recent opinions, the Fourth Circuit Court of Appeals, which is the federal court of appeals that covers South Carolina, has taken a fairly broad view of who is an employee versus an independent contractor and who constitutes joint employers under the FLSA. In a recent case, the Fourth Circuit, after examining several fact specific factors, determined that an exotic dancer was an employee of an exotic dance club rather than an independent contractor. In another recent case, it held that a general contractor was a joint employer over the employees of the contractor’s drywall subcontractor. While these are very fact specific inquiries, it suggests a trend in the way the Fourth Circuit is treating these cases.

Politics in the Workplace by Perry MacLennan

  • The Problem: According to a recent survey from BetterWorks, 50% of respondents have witnessed a political conversation turn into an argument at work (63% of millennials say the same). Thirty percent of respondents say they are less productive since the election due to the political environment. Employees are increasingly taking to social media to express their political beliefs and opinions, sometimes crossing the line into harassment and discrimination, or embarrassing the company and creating a public relations nightmare.
  • The Challenge: Foster a cooperative, productive, inclusive work environment that does not discourage workers from having their own opinions and does not create a workplace that feels more like a dictatorship than a democracy. Develop policies and procedures that strike a balance between being strong enough to justify discipline in certain situations, while not being overly broad, which are tough to enforce and could be illegal.
  • The Solution: Review your current policies and procedures (Social Media Policy, Code of Conduct Policy, etc.) to determine if your organization is compliant with the National Labor Relations Act and other laws governing the regulation of employee speech in the workplace. Make sure the policies emphasize mutual respect, civility, and productivity at work. Finally, include a reminder that anti-discrimination and other company policies apply to an employee’s outside activities, including social media posts.

Immigration Law Update by Garrett Steck and Suyash Raiborde

  • Immigration is seeing and will likely continue to see major changes under the current Administration.
  • Internal immigration compliance enforcement has increased in recent months.
  • The government may eliminate several visa programs, and significantly alter existing visa programs.

Recent Trends with the ADA

  • Both the EEOC and the US District Court of South Carolina have taken the position that an employee’s request for a service animal may be a reasonable accommodation under the ADA even though Title III of the ADA which governs employers does not specifically address service animals.
  • The failure to engage in the interactive process with the employee once a request for a service animal as a reasonable accommodation is made will most likely result in a violation of the ADA and subject the employer to liability for failing to engage in the interactive process.
  • The EEOC’s recent position on service animals as well as recent court decisions do not foreclose the possibility that the EEOC or the courts would find that an emotional support animal may be a reasonable accommodation under the ADA. If a request for an emotional support animal as a reasonable accommodation is made, employers should engage in the interactive process to determine whether the animal is reasonable under the circumstances.
  • Both the EEOC and the courts take the position that leave may be a form of reasonable accommodation under the ADA. Employer’s may have to modify existing leave policies to accommodate an employee’s request for accommodation.

DOR and the Unemployment Insurance Tax Rate by Demetrius Pyburn

  • Respond timely, adequately and effectively to SCDEW’s request for information regarding the reason the employee no longer works for the company.
  • Implement clear employee policies and keep records of any trainings, orientation and counseling.
  • Understand the Unemployment eligibility and appeals process to prevent improper payment and higher tax rates.

Stay on top of all employment law issues and subscribe to our SC Employers’ Blog.

And don’t miss next year’s seminar. Sign up for HSB emails and be the first to know about upcoming events.

As many mourn the loss of the victims of the October 31st NYC attack, a parallel conversation surrounding immigration reform has emerged. Immigration reform has been President Trump’s long-standing campaign promise, but has found fierce judicial opposition since January. We have covered these developments in prior posts.

As details emerged regarding the suspect in the NYC attack, the Administration directly attacked the rarely-discussed Diversity Immigrant Visa Program, or the “diversity lottery.” Based on available information, the suspect in the NYC attack entered the United States from Uzbekistan on a diversity visa in 2010, and subsequently became a permanent resident, i.e., green card holder.

The diversity lottery was created in 1990, and issues up to 50,000 visas each year from a specified list of countries that are traditionally underrepresented in the United States. Applicants from these specified countries may register for the lottery at no cost. Thereafter, the Department of State randomly selects applicants from the pool based on the allocations of available visas in each region and country.

The Department of State has published its 2015 statistics for the selected entrants under the lottery. Some of the most represented countries under this program by region include Egypt, Cameroon, Cambodia, Iran, Russia, Turkey, Uzbekistan, Ukraine, Australia, Fiji, Cuba and Paraguay. The complete data set may be accessed here.

The unique aspect of this program is that unlike DACA, which was a result of executive action by President Obama, the diversity lottery is legislation passed by Congress, and therefore, Congress will have to act to amend or eliminate the program. Republican Senators Tom Cotton and David Perdue have introduced a bill that would eliminate the diversity lottery.

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.
Our attorneys will present on the following topics:
  • LGBTQIA: What Human Resource Professionals Need to Know
  • Immigration Law Update
  • Politics in the Workplace
  • Wage & Hour update
  • Recent Trends with the ADA
  • DOR & the Unemployment Insurance Tax Rate
Join us for one of our seminars in a location near you:
November 30 – Hood Center, Rock Hill
8:30 am – 12:00 pm
Click here for details and to register.
December 5 – Marina Inn Grande Dunes Myrtle Beach
8:30 am – 12:00 pm
Click here for details and to register.
December 6 – SiMT Florence 
8:30 am – 12:00 pm
Click here for details and to register.
Please contact Keely Yates for additional information.

In a one page opinion, the United States Supreme Court remanded one of the two “travel ban” cases pending SCOTUS review. The Order remanded Trump v. International Refugee Assistance Project back to the 4th Circuit Court of Appeals because the case is now “moot” – the Court found no controversy because the challenged Executive Order 13780 “expired on its own terms.” The Court provided no opinion on the merits of the case.

In earlier posts, we also covered Trump v. Hawaii, another challenge to President Trump’s “travel bans.” This case remains pending because the challenged provisions of the March 6th Executive Order have not expired, unlike Executive Order 13780. Specifically, the March 6th Executive Order placed restrictions on the refugee program that remain in effect. The expiration date for this Executive Order is October 24th. We expect to see another iteration of the refugee restrictions or other immigration-related restrictions by October 24th.

More recently on September 24, 2017, President Trump also issued a Proclamation limiting entry into the United States from individuals from six countries – Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela. Unlike prior Executive Orders, this Proclamation is relatively more nuanced and does not contain a blanket ban on all travelers from the listed nations.

Shifting gears to the Deferred Action for Childhood Arrivals (DACA) controversy: Attorney General Jeff Sessions’ announcement last month ending DACA was followed by multiple lawsuits against the Administration. Several states including New York, Massachusetts, Washington, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, California, Maine, Maryland, and Minnesota, and D.C all filed suits against the Administration citing Constitutional challenges, among others.

An estimated 800,000 individuals relying on DACA will face uncertainty as a result of DACA’s termination. The deadlines for first time and renewal applications have passed. Therefore, barring Congressional or Executive action on the matter, no individual currently working as a result of DACA may be permitted to legally work in the United States once their work permit expires.

Independent of the legal and political debate, ending DACA is likely to have an enormous economic impact on both DACA-authorized employees and their employers. Employers are called to maintain contingency plans should those working under DACA lose their work permits, and ensure continued compliance with immigration laws.

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.
Our attorneys will present on the following topics:
  • LGBTQ: What Human Resource Professionals Need to Know
  • Immigration Law Update
  • Politics in the Workplace
  • Wage & Hour update
  • Recent Trends with the ADA
  • DOR & the Unemployment Insurance Tax Rate
Join us for one of our seminars in a location near you:
October 24 – North Charleston DoubleTree Hotel
1:00 – 5:00 pm
Click here for details and to register.
October 25 – HSB Columbia Conference Center
8:30 am – 12:00 pm
Click here for details and to register.
November 30 – Hood Center, Rock Hill
8:30 am – 12:00 pm
Click here for details and to register.
December 5 – Marina Inn Grande Dunes Myrtle Beach
8:30 am – 12:00 pm
Click here for details and to register.
December 6 – SiMT Florence 
8:30 am – 12:00 pm
Click here for details and to register.
Please contact Keely Yates for additional information.