By Tomi Ojo-Ade

 

INTRODUCTION

Many U.S. companies employ workers whose ability to remain lawfully in the U.S. is based on a non-immigrant visa that is tied to their ongoing employment — often at a specific company. With the COVID-19 pandemic causing millions of layoffs and furloughs, possibly including huge cuts at the U.S. Citizenship and Immigration Services (USCIS) itself, the status of many of these workers is already unclear. Since June 22, 2020, when President Trump suspended the entry into the U.S. of certain foreign workers, the issues have become even murkier.

Can foreign workers’ employment be put on hold without jeopardizing their work visas? What legal obligations do employers have toward workers whose visas they have sponsored — or are in the process of sponsoring? If an employer lays off such an employee, what must be reported to the government? What is the status of H-1B visas that are currently in process?

Our law firm helps to resolve immigration problems faced by individual employees. Below are answers to some of the most common questions we are being asked by the employers of such workers, based on our firm’s best knowledge as of June 28, 2020. Please note, however, that nothing is certain in this fast-moving area — and each employee’s situation is different anyhow.

Also note that immigration status is just one factor that businesses must consider when making changes. In general, employers cannot take action against employees based solely on their immigration status. Laying off only foreign workers, for instance, could lead to legal liability.

For advice on an individual situation, please contact our immigration attorneys.

This article concludes with a glossary of the most common non-immigrant work visas, along with a summary of relevant rules for each type.

 

WHAT YOU NEED TO KNOW

IMPORTANT: The following Q+A is intended as a general summary of facts and law and not as legal advice upon which you should rely or act. Every immigration case is unique and fact-specific.

Q: As an employer, I have less work available because of the COVID-19 pandemic. Rather than laying off employees, I would like everyone to work on a part-time basis. Is this an option for my employees on non-immigrant visas?

A: It depends on their visa types. The following categories are generally unproblematic for part-time work: E-1/E-2, L-1, TN, and O-1. In all these cases, however, the holders must remain primarily engaged in the activity for which their visas were approved. A change of duties, therefore, could be more difficult than a plain reduction of hours.

For an F-1 student visa holder with OPT (Optional Practical Training) status, a reduction of hours is also OK, but you will need to report the change to the student’s educational institution.

H-1B workers are more difficult, as they were hired pursuant to a Labor Condition Application (LCA) under which you, the employer, certified the terms and conditions of their employment. Any material changes to these terms and conditions — including a reduction in hours — would require the filing of a new LCA and an accompanying H-1B amendment petition. Such a process isn’t precluded under the current terms of President Trump’s H-1B suspension, since the workers are already lawfully working in the U.S., but approval may be difficult in the current environment.

REMINDER: A glossary of visa types is available at the end of this article.

Q: How about wage cuts? If I am reducing wage rates (not hours) across the board, is there any special consideration for employees on non-immigrant visas?

A: This shouldn’t be a problem as long as non-immigrant workers are not singled out for differential treatment — and as long as the reduction doesn’t result in wages for H-1B employees that fall below the prevailing wage for the occupation.

The rule for H-1B workers is that they must receive the actual wage paid to similarly occupied U.S. workers or the prevailing wage in their area of employment, whichever is higher. An across-the-board salary reduction creates a new “actual wage” for comparators, so the market wage is the remaining consideration.

Q: My business depends on H-1B professionals with skills that aren’t in sufficient supply in my area. How will the June 22 Trump proclamation affect my current and future H-1B employees?

A: As long as your current H-1B employees were in the U.S. on June 24, 2020 their legal status is not affected at the moment. As a practical matter, however, they should avoid travel outside the U.S. until the order expires, since they could be denied reentry under some circumstances. Not being able to visit home is a big hardship for them. Renewal of expiring visas may be a problem, too: Consult an immigration attorney for your best course of action.

If you have current H-1B workers who happened to be outside the U.S. on June 24, consult an immigration attorney about the best way to secure their reentry.

In general, future H-1B employees — those who have not yet secured visas — will not be granted visas or allowed into the U.S. until January 1, 2021 at the earliest. There are limited exceptions, including for services “essential to the United States food supply chain” and for people whose entry would be “in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.”

Q: What other types of visas are temporarily suspended under the June 22 proclamation?

A: H-2B, L-1, and J visas.

H-2B visas are often seasonal and are commonly used for non-agricultural outdoor workers, such as landscapers and groundskeepers; for workers at resorts, such as housekeepers and recreation attendants; for food-processing workers, such as meat and poultry cutters; and for seasonal laborers and construction workers.

L-1 visas are for foreign transferees to affiliated U.S. employers in an executive, managerial, or specialized-knowledge position. J visas are for certain “exchange visitors” and their suspension is limited to foreign nationals in an intern, trainee, teacher, camp counsel, au pair, or summer work travel program.

The same considerations apply for these visas as noted above for H-1B visas.

Q: This seems like an enormous disruption for employers who rely on foreign workers.

A: For sure. While the demand for some of these positions may be lower during the pandemic, other areas are wholly unaffected and U.S. workers are unlikely to fill the gap either way — especially in the H-1B and H-2B economies, for lack of skills and interest, respectively. (A lack of L-1 and J employees may be less mission-critical for employers.)

Q: If I depend on foreign workers, will the June 22 order be my last disruption? Are the workers I have in the U.S. secure, at least?

A: Maybe not. President Trump’s proclamation requires several of his cabinet members to consider further measures — possibly extending even to already-admitted holders of H-1B non-immigrant visas and EB-2 or EB-3 immigrant visas, to ensure that their presence “does not disadvantage United States workers.”

Other possible steps include crackdowns on Labor Condition Application (LCA) violations for H-1B holders; increased barriers for visa applications; and new restrictions on work eligibility for foreign nationals whose immigration status is in dispute — including those who have been arrested on criminal charges but not yet convicted.

It remains unclear whether the Trump Administration is serious about causing further chaos for businesses and employees, but nothing is impossible in an environment that may grow more polarized as national elections approach in November 2020.

Q: I need to furlough some employees, including some workers on non-immigrant visas. What must I consider?

A: A furlough is a temporary layoff from work. In general, workers will return to work after a furlough; they usually won’t get paid during the furlough but they’ll generally keep other benefits, such as health insurance.

Employers may not furlough H-1B workers. Even during the pandemic this likely counts as “benching” and can result in stiff penalties.

Employers can furlough F-1 OPT workers, but by doing so may jeopardize a student’s lawful status. F-1 OPT student workers can remain unemployed only for a cumulative period of 90 days before losing their status; to avoid harm, please confer closely with each individual worker before taking action.

For other common types of non-immigrant visa, including E-1, E-2, L-1, TN, and O-1, a furlough is generally allowed.

Q: If I furlough my non-immigrant workers for up to 90 days, can they claim unemployment insurance?

A: A non-immigrant worker must be authorized to work in the U.S. without restriction in order to be eligible for unemployment insurance, including the enhanced benefits provided by federal and local pandemic legislation — so your workers likely can’t receive the money if their visa is tied to employment at your particular company — as it will be for E-2, E-2, H-1B, L-1, and O-1 employees, for example.

Even theoretically eligible workers still must meet all the regular requirements, of course, and they will need to provide their Alien Registration Number (“A Number”) and a valid Employment Authorization Card issued by USCIS before approval.

Q: What happens if I must terminate a worker on a non-immigrant visa because of the pandemic?

A: In general, employers should inform USCIS whenever they fire a non-immigrant worker.

Employers have additional obligations if they fire sponsored H-1B and O-1 workers: They must offer to pay the reasonable cost of transportation back to the worker’s home country and, for H-1B workers, must withdraw their visa petition at the USCIS or face penalties for their failure.

For F-1 OPT workers, employers must inform the student’s sponsoring academic institution.

As a matter of humanity, please think twice before firing a non-immigrant worker for whom a new petition will not be considered under the Trump Administration’s moratorium.

Q: My company is sponsoring a current non-immigrant worker for permanent residency. Is this process affected by either the pandemic or the president’s June 22 proclamation?

A: If you’re in the middle of this process, you have filed a Permanent Employment Certification Application, or “PERM,” that requires certification by the U.S. Department of Labor. The PERM process involves showing that no U.S. worker is qualified and available for the position you want your foreign worker to fill.

Because the PERM process is based on market conditions that have changed radically — and because of the president’s rhetoric, and because of pandemic-related delays in government processing — employers should expect slow-walking and heightened scrutiny from the DOL.

Q: This isn’t specific to non-immigrant workers, but it’s about immigration-related paperwork. My company is strict about complying with I-9 verification requirements. Now that everyone is working from home, however, it’s hard for our H.R. people to examine original documents when they onboard new employees. Is it OK for them to look at documents electronically?

A: Form I-9 requires new employees to certify their eligibility to work in the U.S. It also requires employers to state under penalty of perjury that they have physically examined a new hire’s identification and work authorization documents, in the presence of the employee, in order to confirm that they appear genuine and entitle the employee to work in the U.S. This is supposed to happen within three days of hiring.

In light of the COVID-19 pandemic, U.S. Immigration and Customs Enforcement (ICE) has relaxed its I-9 requirements. Employers whose entire workforce is operating remotely can inspect the original documents over video link, fax, or e-mail, and obtain copies of those documents within three business days. Once the employer resumes regular operations, a representative must inspect the original documents as usual and fill out Section 2 of the I-9 form, citing COVID-19 as the reason for delay in the form’s “Additional Information” field.

Note that this policy applies only where zero employees are working at the company’s workplace, or where the new hire is personally subject to a COVID-19 lockdown. If neither condition applies, the normal I-9 process is supposed to go ahead.

ICE originally said its temporary I-9 policy would last at least 60 days, and so far has extended it for two additional 30-day periods. The current extension expires on July 19, 2020; after that date employers should check with ICE for updates.

Q: Anything else should I bear in mind about my employees on non-immigrant visas during this period of pandemic and upheaval?

A: Foreign workers in the U.S. are uniquely vulnerable to negative actions by their employers, as they have less time and fewer options to adapt to a change in employment. For many visa holders, termination means the end of their ability to work in the U.S. Some visas allow a 60-day grace period during which the employee can switch to a different sponsoring employer or a different visa type — but such a switch may be difficult or impossible right now.

In addition, President Trump’s recent proclamations will force many non-immigrant workers to abandon any hope of visiting their home country at least until 2021, including for family deaths or other emergencies, since it’s possible they won’t be readmitted and would lose their livelihood.

The COVID-19 pandemic is difficult for everyone, of course — including for employers who must make difficult choices. In making such choices, however, please bear in mind the special circumstances of your foreign workers.

 

GLOSSARY

What follows is a list of common types of non-immigrant work visas. It is not exhaustive.

E-1 / E-2

The E non-immigrant visa is generally used by business owners, managers, and employees who must remain in the U.S. for an extended period in order to help operate an enterprise that is engaged in foreign trade with the U.S. or that represents a major investment in the U.S.

E visas are available only where a “treaty of commerce and navigation” or a “bilateral investment treaty” allows a foreign country’s nationals to enter the U.S., and only to nationals of that country. As a result, these are sometimes called “treaty trader” or “treaty investor” visas.

F-1 student visas with Optional Practical Training (OPT)

Under an F-1 OPT visa, foreign students can seek U.S. employment on a temporary basis as long as it amounts to practical training in their main area of study. Such students usually must complete a certain amount of classwork before becoming eligible to work.

H-1B

The H-1B non-immigrant visa is available to college-educated professionals in specialty fields such as medicine, law, architecture, I.T., and education. In order to hire a foreign worker on an H-1B, an employer must post the position’s availability to U.S. workers and then must file a Labor Condition Application (LCA) that attests to the need to reach outside the U.S. for employees and states the terms and conditions that will apply to the new employee. The U.S. Department of Labor must certify each LCA, and there is an annual quota for H-1B admissions.

H-2B

H-2B non-immigrant visas are often seasonal and are commonly used for non-agricultural outdoor workers, such as landscapers and groundskeepers; for workers at resorts, such as housekeepers and recreation attendants; for food-processing workers, such as meat and poultry cutters; and for seasonal laborers and construction workers.

J

“Exchange Visitor Visas” (J visas) are available to foreign citizens who get approval to participate in certain exchange visitor programs, including scholars and students, au pairs, camp counselors, interns, and trainees.

L-1

These “intracompany transferee” visas are available to foreign workers who are transferred from a qualifying foreign company to its U.S. affiliate in an executive, managerial, or specialized knowledge position.

O-1

The so-called “genius visa” is reserved for people with “extraordinary ability” in athletics, science, education, or business (O-1A), or in the arts (O-1B), or who have been recognized for a record of “extraordinary achievement” in movies or TV (O-1B).

TN

This visa category was created under the North American Free Trade Agreement, or NAFTA. It allows qualified Canadian and Mexican professionals — including accountants, engineers, lawyers, pharmacists, scientists, and teachers — to work temporarily in the U.S.

 

SUMMARY OF RULES

What follows is a highly simplified summary; for further details and explanation, consult an immigration attorney.

 

Visa category	Employer may reduce wages?	Employer may reduce hours?	Employer may furlough?	Consequence of termination?
E-1 / E-2	Generally yes	Generally yes	Generally yes	Notification of USCIS is advised but not required; visa becomes invalid after grace period
F-1 OPT	Generally yes	Generally yes, but must be 20+ hours per week to count for OPT	Generally yes, but visa holder cannot be unemployed for more than 90 days cumulatively	Employer must notify sponsoring academic institution
H-1B	Generally yes, as long as part of an across-board reduction and does not undercut prevailing wage	Generally yes, but requires paperwork and federal approval	No, could result in penalties	Employer must notify USCIS and offer employee cost of return to home country
H-2B	Generally no	Generally no, must remain at 35+ hours per week	No, only option is to terminate contract based on narrow standards (which could include COVID)	Employer must notify DHS and offer employee cost of return to home country
J	Generally yes, but sponsor may need to notify U.S. Department of State (DOS) if it is a material change	Generally yes, but sponsor may need to notify DOS if it is a material change	Generally yes, but sponsor may need to notify DOS if it is a material change	Sponsor must notify DOS
L-1	Generally yes	Generally yes	Generally yes	Notification of USCIS is advised but not required; visa becomes invalid after grace period
O-1	Generally yes	Generally yes	Generally yes	Notification of USCIS is advised but not required; employer must offer employee cost of return to home country
TN	Generally yes	Generally yes, but employer could need to explain how visa holder will support self if visa was originally granted for full-time work	Generally yes, but employer could need to explain how visa holder will support self if visa was originally granted for full-time work	Notification of USCIS is advised but not required; visa becomes invalid after grace period

 

———-

Tomi Ojo-Ade is a former associate of The Employment Law Group, P.C.

 

By R. Scott Oswald and Andrew D. Howell

 

IMPORTANT: The employee-protections laws described below become effective in Virginia on July 1, 2020, except as noted. The laws have no retroactive effect. This article provides a top-level summary but is not legal advice upon which you should rely or act. Every case is unique and fact-specific.

 

 

WHAT’S IN THIS ARTICLE

 
1. Introduction · Jump to section

2. Powerful New Anti-Discrimination Measures · Jump to section

A. Previous Landscape

B. What Has Changed

• Virginia Values Act
• Ban on Hair Discrimination
• Expanded Ban on Pregnancy Discrimination

3. Powerful New Protections for Whistleblowers · Jump to section

A. Previous Landscape

B. What Has Changed

4. Powerful New Wage-and-Hour Measures · Jump to section

A. Previous Landscape

B. What Has Changed

• Private Right of Action on Wages
• Anti-Retaliation Provision for Wage Claims
• Private Right of Action on Misclassification
• Anti-Retaliation Provision for Misclassification Claims
• Other Misclassification Enforcement
• Minimum Wage Provisions

5. Why Virginia’s Courts Now Look Attractive for Employees · Jump to section

 

 

1. INTRODUCTION

It’s a new day for employees in the Old Dominion. Long a state that offered its workers few protections and limited remedies, as of July 2020 Virginia transforms into one of the more progressive jurisdictions in the nation.

While the U.S. Supreme Court just banned workplace discrimination based on sexual orientation and gender identity as a matter of federal law, Virginia already was set to become the first state in the South to do so under state law — and its courts offer several advantages over federal venues.

The Commonwealth, meanwhile, joins a vanguard of states that are banning so-called “hair discrimination” as a flavor of race bias, and Virginia’s women now have additional protections for discrimination related to pregnancy, childbirth, and related medical conditions.

Virginia law now offers powerful protections for whistleblowers, too. A new statute solidifies many claims that employees previously struggled to fit into the narrow rubric of wrongful termination under Virginia common law.

And Virginia has enacted private rights of action for wage payment issues and for misclassification as an independent contractor, along with a minimum hourly wage that will rise in stages to $15 over the coming years.

All of these changes combine with favorable litigation rules to make Virginia’s circuit courts a welcoming environment for employees — a major turnaround from the past.

 

2. POWERFUL NEW ANTI-DISCRIMINATION MEASURES

A. Previous Landscape

Historically, Virginia’s Human Rights Act has provided only the barest of protections to employees who faced discrimination.

Under previous law, employees had a private right of action against employers of 15 or more only for “discharge” on the basis of “race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, including lactation.” Based on case law, the prohibition on sex discrimination did not encompass firings on the basis of sexual orientation or gender identity. For age discrimination (40 or older), employees had a right of action against employers of 20 or more — again limited to discharge.

Even when a plaintiff prevailed, the old statute severely limited remedies. Back pay was capped at 12 months, plus interest. Compensatory damages and punitive damages were not allowed. The law did not allow for job reinstatement as an equitable remedy. And it capped attorney fees at 25 percent of the awarded back pay.

B. What Has Changed

As of July 1, 2020, just about all of these limitations are changed dramatically. The biggest differences arrive via the Virginia Values Act, but some separate legislation also has an effect. What follows is a summary of the major measures.

The Virginia Values Act

Effective on July 1, the Virginia Values Act (VVA) amends the Virginia Human Rights Act (VHRA) and makes it illegal for an employer to:

Fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to such individual’s compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, status as a veteran, or national origin.

(Emphasis added)

Put simply, the VVA expands the scope of prohibited adverse employment actions and the covered bases of discrimination. The law generally still limits its private causes of action to employers with 15 or more employees — except for cases of discriminatory firing, which can be brought against employers with as few as six employees.

That’s not all. The VVA demands only that employees show discrimination to be a “motivating factor” in the employment decision, rather than the sole or determinative factor. And the remedies available to prevailing employees now include:

• Uncapped compensatory damages;
• Punitive damages up to $350,000;
• Uncapped reasonable attorneys’ fees and costs; and
• “Any permanent or temporary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in such practice, or order such affirmative action as may be appropriate.”

To launch an action under the VHRA, employees must file a complaint with the Virginia Division of Human Rights. Notably, under the modified law,

Upon receipt of a written request from the complainant, the Division shall promptly issue a notice of the right to file a civil action to the complainant after (i) 180 days have passed from the date the complaint was filed or (ii) the Division determines that it will be unable to complete its investigation within 180 days from the date the complaint was filed.

This is similar to 29 C.F.R. § 1601.28(a)(2), the federal regulation that allows employees to request a Right to Sue Notice from the U.S. Equal Employment Opportunity Commission. Upon receiving such a notice from the Division of Human Rights, aggrieved employees may bring suit directly in Virginia’s court system and request a jury trial.

Ban on Hair Discrimination

Under House Bill 1514, Virginia has also amended the definition of race discrimination as follows:

The terms “because of race” or “on the basis of race” or terms of similar import when used in reference to discrimination in the Code and acts of the General Assembly include because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.

With this law, Virginia is preceded only by California, New York, and New Jersey in banning hair discrimination as a form of race discrimination.

Expanded Ban on Pregnancy Discrimination

House Bill 827 broadened the definition of pregnancy discrimination under the Virginia Human Rights Act. The amended VHRA allows a cause of action against an employer who “refuse[s] to make reasonable accommodation to the known limitations of a person related to pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer.”

The law’s definition of reasonable accommodation includes:

more frequent or longer bathroom breaks, breaks to express breast milk, access to a private location other than a bathroom for the expression of breast milk, acquisition or modification of equipment or access to or modification of employee seating, a temporary transfer to a less strenuous or hazardous position, assistance with manual labor, job restructuring, a modified work schedule, light duty assignments, and leave to recover from childbirth.

In short, working mothers are entitled to any reasonable help they might need to carry out their duties before or after a birth. Moreover, the amended VHRA forbids employers from retaliating against workers for requesting such help.

 

3. POWERFUL NEW PROTECTIONS FOR WHISTLEBLOWERS

A. Previous Landscape

Like 48 other states, Virginia is an “at-will” employment state. This means an employer may fire an employee for any reason at all, so long as it is not a reason forbidden by law.

As in most other at-will states, Virginia’s courts recognize a modest exception to this doctrine in cases where the employee “claim[s] to have been discharged in violation of an established public policy.” Bowman v. State Bank of Keysville, 331 S.E.2d 797, 801 (Va. 1985). In the absence of a robust whistleblower protection statute — something Virginia never had until now — this “public policy” exception is often an employee’s only protection against being fired for blowing the whistle on wrongdoing.

In Virginia, Bowman claims are available to whistleblowers only after they are fired, and only in narrow circumstances. The Supreme Court of Virginia recognizes them only where:

• An employer has violated the employee’s statutory rights;
• A termination violates a public policy expressed in a statute and the employee falls within a class protected under that statute; or
• The employee is fired for refusing to engage in illegal or criminal behavior.

Rowan v. Tractor Supply Co., 559 S.E.2d 709, 711 (Va. 2002).

Beyond Bowman claims — and the protections of federal laws — a limited number of Virginia whistleblowers also could seek protection via the Virginia Fraud Against Taxpayers Act (VFATA), which forbids retaliation against employees who take actions “in furtherance of an action under [the VFATA] or other efforts to stop one or more violations of [the VFATA].” The VFATA deals with fraud against the Virginia government.

B. What Has Changed

House Bill 798 codified and broadened the common-law exceptions found in Bowman and its progeny, offering employees statutory protection against a range of punishment that now goes far beyond firing. Specifically, as of July 1, 2020:

An employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment, because the employee:

1. Or a person acting on behalf of the employee in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
2. Is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
3. Refuses to engage in a criminal act that would subject the employee to criminal liability;
4. Refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or
5. Provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation.

Retaliation for some of these whistleblowing actions was already actionable under Bowman if it included firing — but for other situations a claim would have been difficult or impossible to pursue. Now whistleblowers have a clearer path and may bring a civil action within one year of a violation. Remedies include:

• An injunction to stop continued retaliation;
• Reinstatement to the same position held before the retaliatory action, or to its equivalent;
• Lost pay, including benefits and other remuneration, plus interest; and
• Reasonable attorney fees and costs

Though not as comprehensive as general-purpose whistleblower provisions in states such as New Jersey and California, the new law is a major upgrade for Virginia employees.

 

4. POWERFUL NEW WAGE-AND-HOUR MEASURES

A. Previous Landscape

Among other things, Virginia law already required all employers to “pay salaried employees at least once each month and employees paid on an hourly rate once every two weeks or twice in each month.” Va. Code § 40.1-29(A)(1).

For a worker whose employer violated such wage-and-hour laws, however, there was no private right of action — meaning that, instead of filing suit, employees were forced to rely on government agencies to vindicate their rights. And until now, employees had no direct protection against retaliation for questioning their employer’s compliance with the law.

B. What Has Changed

Private Right of Action on Wages

House Bill 123 grants employees a private right of action for non-payment of wages, either individually or collectively, and calls for doubled damages along with reasonable attorney fees and costs if the plaintiff prevails. What’s more, a knowing violation of the new law will result in trebled damages, which is better than the federal Fair Labor Standards Act. The new statute calls a violation knowing when:

the person, with respect to information, (i) has actual knowledge of the information, (ii) acts in deliberate ignorance of the truth or falsity of the information, or (iii) acts in reckless disregard of the truth or falsity of the information. Establishing that a person acted knowingly shall not require proof of specific intent to defraud.

The law has a three-year statute of limitations and is operative “without regard to any exhaustion of alternative administrative remedies.”

Anti-Retaliation Provision for Wage Claims

House Bill 337 forbids employers from retaliating against employees who file a wage claim, or who testify in a wage proceeding, under Va. Code § 40.1-29. This new law doesn’t directly authorize a private right of action — instead it calls for a complaint to the Virginia Department of Labor — but it’s arguable that Virginia’s new whistleblower protection law (see above) may expose violators of H.B. 337 to private civil action. The viability of such an approach will need to be tested in litigation.

Private Right of Action on Misclassification

House Bill 984 provides a private right of action for misclassification — an incorrect portrayal of an employee as an independent contractor, most often for the purpose of avoiding the payment of proper wages or benefits. The new law creates a presumption of an employer-employee relationship between a person who pays remuneration to another for services, unless it can be shown that the putative employee actually is an independent contractor as defined by the Internal Revenue Service.

Available remedies include “damages in the amount of any wages, salary, employment benefits, including expenses incurred by the employee that would otherwise have been covered by insurance, or other compensation lost to the individual, a reasonable attorney fee, and the costs incurred by the individual in bringing the action.”

Anti-Retaliation Provision for Misclassification Claims

Meanwhile, House Bill 1199 makes it unlawful for employers to:

discharge, discipline, threaten, discriminate against, or penalize an employee or independent contractor, or take other retaliatory action regarding an employee or independent contractor’s compensation, terms, conditions, location, or privileges of employment, because the employee or independent contractor:

1. Has reported or plans to report to an appropriate authority that an employer, or any officer or agent of the employer, has failed to properly classify an individual as an employee and failed to pay required benefits or other contributions; or
2. Is requested or subpoenaed by an appropriate authority to participate in an investigation, hearing, or inquiry by an appropriate authority or in a court action.

Again, there is no direct private right of action. An employee may file a complaint with the Virginia Department of Labor, which may bring an action on the employee’s behalf to recover lost wages, possibly order reinstatement, and possibly assess a civil penalty against an offending employer.

Other Misclassification Enforcement

Effective on January 1, 2021, two additional measures will provide the government with new powers against employers who seek to misclassify their workers:

• Senate Bill 744 provides for civil penalties for misclassification and allows debarment from public contracts for repeat offenders. This bill also has an anti-retaliation provision.
• House Bill 1407 empowers the Department of Taxation to investigate misclassification.

Minimum Wage Provisions

Under House Bill 395, Virginia’s minimum wage will increase to $9.50 per hour effective January 1, 2021, a 31 percent jump from the current level. The wage floor will then rise each following year until January 2026, when it is slated to reach $15.00 per hour.

Because Governor Ralph Northam has recommended some changes on effective dates, however, the bill will be returning to the legislature for further approval. See Va. Const. art. 5, § 6(b)(iii).

 

5. WHY VIRGINIA’S COURTS NOW LOOK ATTRACTIVE FOR EMPLOYEES

In the past many Virginia employees have looked to vindicate their complaints in the federal court system, rather than in state courts, simply because the Commonwealth’s statutes and common law were unsympathetic to their cause. Now that the legal balance has been reset by Democratic legislators in Richmond, some procedural mechanisms that favor plaintiffs will come to the fore. As a result, Virginia’s circuit courts are likely to see an influx of employment disputes.

In particular, state judges are loath to cut a case short at summary judgment, since the Supreme Court of Virginia has described such an outcome as a “drastic remedy.” Shevel’s, Inc.-Chesterfield v. Southeastern Associates, Inc., 320 S.E.2d 339, 342 (Va. 1984). Recall that Virginia has a unique rule: In most cases, a party cannot obtain summary judgment if the motion is “based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the suit or action shall agree that such deposition may be so used.” Va. S. Ct. R. 3:20; see also Va. Code § 8.01-420(A). Meanwhile there’s no prohibition against using depositions to oppose a motion for summary judgment. Lloyd v. Kime, 654 S.E.2d 563, 568-69 (Va. 2008).

Since employers usually are the party seeking to avoid a trial, while many employees are happy to reach a jury, this procedural advantage is attractive to plaintiff’s attorneys.

In addition, unlike in federal court, employees in Virginia state court have a right to voir dire their jurors directly at the start of a trial — and to excuse jurors with harmful biases who cannot “stand indifferent.” Va. Code § 8.01-358.

Viewed alongside a set of statutes that now offers protection that’s similar to — or better than — their federal analogues, Virginia’s court system suddenly looks like a genuinely attractive venue for employees. For workers in the Old Dominion, it truly is a new day.

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R. Scott Oswald is the managing principal at The Employment Law Group, P.C. Andrew D. Howell is a former TELG associate.

 

By Adam Augustine Carter

Note: This article is focused on employees with workplaces in Washington, D.C. For a look at COVID-19 leave laws that apply nationwide, click here.

 

INTRODUCTION

Starting in March 2020, the Council of the District of Columbia passed several emergency bills that expanded the rights of D.C. employees to take job-protected leave — including paid leave — during the COVID-19 pandemic, while also relaxing the rules for receiving unemployment payments.

As emergency legislation, each bill was slated to expire 90 days after taking effect. However, the council recently combined and re-passed all the measures — meaning that all the emergency provisions now remain valid at least through late August, a date that could be pushed back again by a further bill.

Meanwhile the Council is working on a “temporary” version of the same bill, which is a step up from emergency legislation and could extend the measures even longer.

This article answers some common questions about the new employee rights and protections that are included in the Coronavirus Support Emergency Amendment Act of 2020 (CSEAA), which gathers four previously effective emergency bills into a single measure. It is based on our firm’s best knowledge as of June 7, 2020.

Bear in mind that the CSEAA supplements and interacts with existing D.C. and federal laws, as well as employer policies that may, in some cases, be more generous than the law requires. To understand your individual situation fully, please consult an employment attorney.

 

WHAT YOU NEED TO KNOW

IMPORTANT: The following Q+A is intended as a general summary of facts and law and not as legal advice upon which you should rely or act. Every case is unique and fact-specific.

Q: How will these measures help me to cope with this pandemic?

A: For most D.C. employees, the top three work-related changes are:

• Expanded access to paid leave if you are unable to work for COVID-related reasons — with terms that may improve on federal law;
• Expanded access to unpaid leave if you are unable to work for COVID-related reasons — again, on better terms than federal law; and
• Expanded access to D.C.’s unemployment insurance program.

For more detail on these three changes, read on.

The CSEAA also makes some adjustments to D.C.’s “shared work” program, which some employers may use as an alternative to layoffs. This article won’t address that program, as it is quite complex.

Q: Paid COVID leave sounds sensible. How does that work?

A: The CSEAA extends the duration of an emergency law that became effective on April 10, 2020, amending D.C.’s Accrued Sick and Safe Leave Act of 2008. It basically provides two weeks of paid leave for anyone who must take sick leave for themselves or to take care of a family member for specified coronavirus-related reasons — including the closure of a minor child’s school or daycare. (Your child need not be sick, in other words.) You need give only 48 hours’ notice before using this leave, or possibly less in an emergency situation.

Q: Isn’t that roughly what federal law now provides? How does that help me?

A: It’s true that the federal Emergency Paid Sick Leave Act (EPSLA), which we discuss here, also provides two weeks of paid leave — at prorated pay if you work part-time — and that the D.C. law matches the EPSLA’s allowable reasons for such paid leave.

However, D.C.’s law provides full regular pay for the duration of the leave, whereas federal law has a cap of $200 per day if you take the leave to care for someone else. (The daily cap is $511 if you’re sick yourself.) You can’t combine D.C. and federal leave — or your employer’s policies — to get paid for longer than two weeks, but you can use the D.C. leave to get paid at your regular rate if you normally earn above the relevant federal cap.

Q: Any limitations I should know about?

A: Under the CSEAA, you must take paid leave along with or after exhausting any other paid leave to which you’re entitled — and your employer can reduce your CSEAA pay by the amount you get paid under federal law or its own policy. In effect, then, this law “tops up” your pay for two weeks if you can’t get fully paid by other means.

Also, the law applies only to non-healthcare employers with 50-499 employees, and you must have worked for your employer for at least 15 days before requesting leave. The law is effective only for the duration of the COVID-19 emergency as declared by Mayor Muriel Bowser.

Q: I’m still working, but my hours have been reduced so I’ve been earning less lately. If I were to qualify for paid leave under the CSEAA, would I get paid at my pre-pandemic rate?

A: It’s not clear. The CSEAA says you must be paid your “regular rate of pay.” For an employee “who does not have a regular rate of pay,” the law makes a per-hour calculation based on the most recent two weeks. It may be worth your while to consult an employment lawyer.

Q: I’m on an unpaid furlough due to the pandemic, but I’m still getting benefits like health insurance. Can I claim paid leave under the CSEAA?

A: Again, it’s not entirely clear and may depend on your specific circumstances. You may want to consult an employment lawyer.

Q: I was laid off due to the pandemic, but my employer continues to operate with a smaller staff. Can I claim paid leave?

A: No. You must be employed in order to claim leave, whether paid or unpaid.

Q: OK, let’s move on. How about unpaid leave?

A: The D.C. Family and Medical Leave Act of 1990 (DCFMLA) is more generous than its federal equivalent, protecting employees’ jobs for 16 weeks of unpaid leave rather than the 12 weeks mandated by federal law. Under the CSEAA and a predecessor law, which has been in effect since March 17, a new category of “COVID-19 leave” is available for up to 16 weeks under the DCFMLA — and it’s available to more people than regular DCFMLA leave.

Specifically, to qualify for unpaid COVID-19 leave you need to have worked for your employer for only 30 days before requesting leave. That’s a big change from the regular DCFMLA, which requires at least a year of service. Also, the new law covers all D.C. employers regardless of size; the regular DCFMLA covers only employers with more than 20 employees.

Unpaid COVID-19 leave is available for the duration of the emergency declared by Mayor Bowser. You may claim it if you can’t work for one of these reasons:

• You’ve been told to isolate or quarantine because you or someone in your home is at high risk for serious illness from COVID-19;
• You need to care for a household member who is under orders to isolate or quarantine; or
• You need to care for a child for whom school or daycare is unavailable.

So, as with paid leave, no one needs to be sick in order to claim unpaid leave — losing childcare is a sufficient reason as long as it makes you unable to work, and so is having a high-risk family member as long as a doctor has said that your continuing to work would be dangerous.

Your employer may ask you for “reasonable certification” of your need for leave; the law includes a list of acceptable proof.

Q: Wait, remind me: If I’m not getting paid, what’s the point of DCFMLA (or FMLA) leave?

A: You should continue to get benefits, and your job is legally protected while you take time to care for yourself or your family. In particular, your employer can’t penalize or fire you for taking this leave — or even for asking for it. And when your leave is over, your employer must re-employ you in the same position or its equivalent.

Q: Is that the same for paid leave also?

A: Yes.

Q: Do I need to take paid leave and unpaid leave in any particular order?

A: No, the order is up to you. Most people will choose to take paid leave first, but it’s not required — and your employer can’t tell you otherwise. Paid leave will get counted against the unpaid leave that you have available under DCFMLA, however.

Q: I was on DCFMLA leave when my employer stopped operations and fired everyone because of the pandemic — including me. I thought my job was protected?

A: It’s illegal to fire someone for taking protected leave, but it sounds like that’s not the case here. And while normally you’d be entitled to return to an equivalent job, the law can’t make that happen if your employer has gone out of business. Still, it may be worth discussing your situation with an employment lawyer — especially if there’s a chance your employer will restart operations.

And in the meantime, of course, you are likely to be eligible for unemployment insurance under D.C.’s expanded program.

Q: Right. So how has unemployment insurance been expanded to deal with COVID-19?

A: Starting on March 17, 2020 it became easier for anyone affected by COVID-19 to claim unemployment insurance in D.C. — and a further “clarification” law on April 10, 2020 expanded eligibility further. The CSEAA will extend these measures at least through late August or until Mayor Bowser rescinds the current public health emergency. The CSEAA works in conjunction with new unemployment benefits required by the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) that became law on March 27, 2020. The CARES Act isn’t addressed by this article.

For most people the two key changes in D.C. are:

• Unemployment benefits may be claimed by people who become unemployed or “partially unemployed” due to the pandemic, regardless of whether the layoff, furlough, or work reduction is supposed to be temporary — and even where their employer already has announced a back-to-normal date.
• Unemployment benefits may be granted to people who “otherwise would not qualify” under regular rules, including individuals who are “self-employed, seeking part-time employment, [or] do not have sufficient work history.”

Newly valid reasons for claiming unemployment are:

• Your employer has stopped or reduced its operations based on a government COVID order or because of reduced business during the pandemic; or
• You are in quarantine or isolation based on a government order or “in a manner consistent with the recommendations or guidance of [government agencies] or a medical professional”; or
• You decline to work because your employer has failed to follow government health and safety orders or to honor your valid quarantine or isolation as described above.

Taken together, these changes should grant eligibility to most people who have lost work due to COVID-19. Note that you may need to provide “reasonable documentation” of your stated reason.

Q: Any other unemployment changes I should be aware of?

A: Normally D.C. claimants have a one-week waiting period before they are eligible for benefits; must actively search for work while they receive payments; and can’t make a claim based on employment when they lacked legal documentation (like a green card, for non-citizens). Under the CSEAA, such requirements may be waived with “broad discretion” while the public health emergency is in effect.

Note: D.C.’s original COVID emergency measure, which became law on March 17 and expires on June 15, absolutely waived the work-search requirement. That language doesn’t reappear in the CSEAA, however — so presumably an ongoing waiver will depend on the judgment of Unique N. Morris-Hughes, director of the D.C. Department of Employment Services (DOES).

D.C.’s unemployment system is complex, and many rules will continue to apply even under the CSEAA. For information that’s fully up-to-date, rely on the DOES Web site.

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Adam Augustine Carter is a principal of The Employment Law Group, P.C.

 

By Tomi Ojo-Ade

 

INTRODUCTION

Hundreds of millions of people across the United States have been thrown into turmoil by the COVID-19 pandemic. Aspiring immigrants face an extra layer of uncertainty, however, as the status of their cases becomes murky and they hesitate to interact with U.S. authorities — even to protect their own health — for fear of jeopardizing their legal standing.

Below are answers to some of the most common questions we are being asked by our law firm’s immigration clients, based on our firm’s best knowledge as of April 24, 2020. Please note, however, that nothing is certain in this fast-moving crisis — and everyone’s circumstances are different anyhow. For advice on an individual situation, please contact our immigration attorneys.

This article has been revised from its original version to include questions about President Trump’s April 22 proclamation suspending the entry of certain aliens into the U.S.

 

WHAT YOU NEED TO KNOW

IMPORTANT: The following Q+A is intended as a general summary of facts and law and not as legal advice upon which you should rely or act. Every immigration case is unique and fact-specific.

Q: My application for a green card is currently pending. I live in the U.S. Will President Trump’s April 22 proclamation stop my application from moving forward or being approved?

A: It should not. The proclamation affects only applicants who were outside the U.S. without a valid immigration visa or official travel document as of April 23, 2020, the effective date of the proclamation.

Q: I am a non-immigrant worker who is employed in the U.S. on an H-1B visa. Does the April 22 proclamation change my status?

A: As of April 24, 2020, neither current H-1B holders nor employer-sponsored applicants are affected by the proclamation. However, the proclamation does require a high-level review of all temporary visa programs (which includes the H-1B) and the recommendation of “measures appropriate to … ensure the prioritization, hiring, and employment of United States workers.” No one yet knows what such measures might include.

Q: I am a U.S. resident who has filed an immigrant petition on behalf of my spouse, who lives outside the U.S. Does the April 22 proclamation suspend that application?

A: It depends. If you are a U.S. citizen or a member of the U.S. Armed Forces, your spouse and any of your children under the age of 21 are exempt from the proclamation. If your spouse falls into certain other categories, he or she also may be exempt: Healthcare professionals, for instance, or others with skills needed to help in the COVID-19 pandemic; immigrant investors under the EB-5 program; Afghan or Iraqi nationals who worked for the U.S. government; or others whose entry is deemed to be in the U.S. national interest. For a full list, see the proclamation itself. Some of its exempted categories are clearly defined but others depend on the judgment of government officials. If you think your spouse might be exempt, ask an immigration attorney about the best next step.

Q: I don’t yet have a green card. If I lose my job because of the pandemic, can I safely apply for unemployment insurance?

A: Receiving unemployment benefits shouldn’t count against you under the so-called “public charge” doctrine, since these benefits are deemed to be “earned” and therefore are excluded from the rule as implemented.

(As a general matter, the public charge doctrine says that individuals may be barred from the U.S. if they’re likely to depend on taxpayers for their support. Before the pandemic, the Trump administration began enforcing this rule more aggressively than in the past.)

It’s important to note that a non-permanent resident must be authorized to work in the U.S. without restriction in order to be eligible for unemployment insurance, including the enhanced benefits provided by federal and local pandemic legislation — so you can’t receive the money if your employment is limited to a particular employer, as an example.

More broadly, your eligibility for unemployment insurance will depend on the following:

1. Whether you have worked long enough for a covered employer — rules vary by state, and may have been loosened in some cases via short-term pandemic relief measures;
2. Whether you were fired for cause, which generally is a disqualifier; and
3. Whether you remain able and available to work.

As a non-immigrant applying for unemployment benefits, you must be able to provide your Alien Registration Number (“A Number”) and a valid Employment Authorization Card issued by U.S. Citizenship and Immigration Services (USCIS). When you apply, your state will check your eligibility with USCIS.

Q: I’ve lost my income due to the pandemic. Can I apply for benefits such as Medicaid, the Supplemental Nutrition Assistance Program (“SNAP,” formerly known as food stamps), or housing assistance during this crisis?

A: In general, non-permanent residents — including applicants for adjustment, change, or extension of status — are not eligible for these benefits. As noted above, receiving certain government benefits (or even just applying for them) can trigger the public charge rule and endanger the applicant’s eligibility for permanent resident status.

However, USCIS doesn’t apply the public charge doctrine in some specific situations that might broadly be described as compassionate, such as:

• Medicaid payment for the treatment of an emergency medical condition;
• Medicaid benefits received by an alien under 21 years of age;
• Medicaid-funded services provided under the Individuals with Disabilities Education Act;
• School-based services or benefits provided to eligible children; or
• Medicaid benefits received by a woman during and for 60 days after a pregnancy.

If you’re considering applying for a government benefit and are unclear whether it’ll trigger the public charge rule, ask an attorney before proceeding.

Q: I might have COVID-19. Will getting a coronavirus test, a positive diagnosis, or treatment endanger my immigration status?

A: No — so please go ahead and consult a doctor.

To address the health emergency and to reassure understandably nervous aliens, USCIS has stated clearly that it will not consider COVID-19 testing, treatment, or preventative care — including vaccines, if a vaccine becomes available — in its determination of public charge inadmissibility, nor in any consideration of extension of stay or change of status applications, even if such care is provided or paid for by a public benefit such as Medicaid.

More generally, the public charge rule does not restrict your access to testing or treatment of other communicable diseases beyond COVID-19 — and it does not restrict your access to vaccines.

Also, with regard to medical necessity overall, it’s worth knowing that even a public charge “violation” is only one among many factors considered by USCIS when it determines an alien’s admissibility. Circumstances matter, and there is no firm “one strike and you’re out” policy. Put your health first and consult with an attorney as needed.

Q: Is my household eligible for a stimulus check under the CARES Act?

A: So-called stimulus checks — direct payments under the law known as CARES (Coronavirus Aid, Relief, and Economic Security) — are generally available to anyone who has a legitimate “work-eligible” Social Security Number and meets the law’s income requirements. This may include undocumented immigrants if they filed a tax return for 2018 or 2019.

If you (or your spouse or dependent) use an Individual Taxpayer Identification Number rather than an SSN, however, you won’t receive a stimulus payment. Also, if you’re a non-citizen who doesn’t hold a green card and hasn’t spent much time in the U.S. in the past three years, you may be ineligible for a payment.

Q: I have an interview/ceremony coming up in a couple of weeks at a USCIS field office. Will it be cancelled?

A: USCIS has suspended most in-person services and won’t start reopening its shuttered domestic offices until May 4, 2020 at the earliest — a date that may be extended, depending on conditions. If your interview (or naturalization ceremony) is scheduled for a time when your field office is closed, you should receive a rescheduling notice.

If you are in doubt about the status of an appointment, ask your attorney — or, if you are handling your own case, use the USCIS’ online tools or try calling USCIS at +1-800-375-5283.

Q: I have a court hearing coming up. Will it still happen?

A: Most immigration courts are closed except for filings and hearings for applicants who are in detention. You or your attorney should contact the court clerk for clarification, but unless you get a rescheduling notice you must be ready to show up. Failure to appear at a scheduled hearing can result in an order of removal being entered against you: Even if you end up knocking on a locked door because of a communication failure, it is better to err on the side of caution.

Q: I am under an order of supervision and have been reporting to the ICE office monthly. Must I keep showing up?

A: U.S. Immigration and Customs Enforcement (ICE) has suspended in-person check-ins until further notice. However, you still must stay in contact with your local field office and follow its direction; ICE recommends using the phone. If you already have missed an appointment, reestablish contact with your case specialist immediately.

Q: My case/application is currently pending at USCIS. Is it still proceeding at the regular pace during this pandemic?

A: So far the only delays that USCIS has acknowledged are in cases that require an in-person appointment. The agency continues to accept and process immigration applications, except that it has suspended “premium” (paid expedited) processing for I-129 and I-140 visa petitions. If your case is already pending, it’s likely progressing at a normal rate — although as most immigration attorneys will tell you, “normal” varies widely even outside a pandemic.

Q: I arrived in the U.S. on a valid non-immigrant visa. My authorized stay is about to expire but I can’t return to my home country, which has banned arrivals from the U.S. and transit countries. How can I avoid being in the U.S. unlawfully?

A: Non-immigrants who must unexpectedly remain in the U.S. can apply to extend their visa stay based on the COVID-19 pandemic — and if you already have overstayed, a belated application may be excused by “extraordinary circumstances,” which should be a relatively easy case to make.

If you entered the U.S. under the Visa Waiver Program (VWP) — if you’re a citizen of a Western European country, for example — you can ask USCIS to give you a 30-day extension via a “grant of satisfactory departure.” If you’re unable to leave within this extra 30 days for pandemic-related reasons, USCIS has the flexibility to grant you an additional 30 days.

Q: My case is based on a showing of hardship to my family members, who are U.S. citizens. If I apply for government benefits on behalf of my children during this emergency, will that hurt my immigration case?

A: Receiving lawful aid on behalf of a U.S. citizen isn’t a violation of the public charge rule: USCIS considers only government benefits received for your benefit. Nonetheless, a hardship application generally requires you to show that you’re the primary source of support for your U.S. family members. If your family gets government assistance, that may undercut your argument to remain in the country. You should consult an immigration attorney to weigh your options.

Q: I’m trying to gather papers to comply with a request for additional evidence, but the pandemic has restricted my travel — and the responsiveness of my document sources. Can I get an extension?

A: If the underlying request was issued between March 1, 2020 and May 1, 2020, USCIS will consider your response if it arrives up to 60 days after the due date. This applies to responses to official notices such as Requests for Evidence, Notices of Intend to Deny, Notices of Intent to Revoke, and Notices of Intent to Terminate. If your notice was issued prior to March 1, 2020, however, you must meet the deadline set in the notice.

If even if you have some leeway under the March 1 rule, it’s still a good idea to respond as quickly as you can — without sacrificing the quality of your response, of course.

If you would like to discuss your individual circumstances, our attorneys are available to you.

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Tomi Ojo-Ade is a former associate of The Employment Law Group, P.C.