Publications
Jess Phelps Publishes Second Article, Defining the Role of Agriculture in Agricultural Conservation Easements, in Ecology Law Quarterly
Jess Phelps of Dinse’s Real Estate and Environmental practice groups recently published a second article, Defining the Role of Agriculture in Agricultural Conservation Easements, in Ecology Law Quarterly, the environmental law review published by the University of California- Berkeley. This article builds upon his earlier article, Defining the Role of Conservation in Agricultural Conservation Easements, recent winner of the American Agricultural Law Association’s 2017 professional scholarship award, also published by ELQ. This article specifically discusses the unique challenges that the tax code presents for securing working lands through conservation easements (which require careful balancing of the conservation and agricultural characteristics of these properties). This article is available for download, here.
Audio of discussion regarding OCR Proposed Title IX Regulations Available for Download
On November 16, 2018, the U.S. Department of Education Office for Civil Rights’ (“OCR”) posted on its web site proposed Title IX regulations. The proposed regulations are available here: https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf. The proposed regulations, if adopted as proposed, would include many potential changes in how OCR will enforce Title IX, including changes to the definition of sexual harassment, the scope of institutional obligations to address sexual harassment, how institutions should respond to sexual harassment, and dramatically different procedural requirements for Title IX-related investigations and adjudications.
On November 19, 2018, Jeffrey J. Nolan, Chair of Dinse’s Education Practice Group, presented a webinar regarding the proposed regulations. The discussion included:
- A brief summary of the major differences between OCR’s currently-applicable guidance and regulatory approach and the approach outlined in the proposed regulations;Significant differences between the proposed regulations and the draft regulations that were “leaked” in August, 2018;
- Very significant substantive and procedural changes that colleges and universities would have to consider and/or make if the regulations are finalized in the form proposed;
- Preliminary thoughts on how colleges and universities could effectively navigate the new proposed regulatory landscape; and
- Next steps in the regulatory notice and comment process (and how members of the public and colleges and universities can participate in that process).
A recording of that webinar is available here: Part 1; Part 2; Part 3. A .pdf of the PowerPoint referred to during the webinar is available here.
Please contact Jeff Nolan at jnolan@dinse.com if you have any follow-up questions. Thank you.
Don’t forget immigration issues when making employment changes
Immigration
by Leigh Cole
Employment-based immigration status generally is specific to the employer and the position. When employees are terminated or promoted or their job description changes, you should expect their employment-based immigration status to be affected. Tensions can run high when an employee’s personal and family immigration status is put at risk, regardless of whether the change is a termination, a voluntary departure, or even a promotion. Employers should identify employees’ immigration status as an issue with an employment change as early as possible.
Record immigration status in personnel files
When an employment relationship isn’t going well or is in transition, it’s important to identify immigration issues as early as possible as you consider how to proceed. Poor performance, termination, job changes, layoffs, and even promotions can be particularly stressful for employees whose permission to live and work in the United States is based on their employment. Also, it’s possible that an employee’s spouse could lose his right to work in the United States if the employee’s job changes or ends. Employers are not required to base employment decisions on immigration considerations or continue employment because of immigration sponsorship. Even so, the dynamic should be brought into the discussion at the outset so the employer isn’t caught off guard by the employee’s questions and concerns regarding job changes and his immigration status.
It’s not unusual for a manager or supervisor who is dealing with changes or HR issues not to know or to forget that an employee’s immigration status is sponsored by the employer. It’s easy to lose track of the immigration element if there’s no mention of it in an employee’s personnel file. I-9s and other immigration records, such as public access files for H-1B cases, should be kept entirely separate from personnel files so they can be readily shared in accordance with lawful requests from government officials (for I-9s) or inquiring members of the public (for public access files). Personnel files should contain copies of the employer’s immigration applications for the employee, including I-129 petitions for nonimmigrant status, Program Electronic Review Management (PERM) applications for labor certification, I-140 petitions for immigrant status (green card), and TN letters of support. If adding copies of immigration applications to personnel files isn’t feasible or practical considering your record-keeping practices, a reasonable alternative is to at least mention in an employee’s personnel file that he has an employment-based immigration case.
Best practice: Keep files for I-9s and public access files for H-1B cases separate from personnel files. Place copies of immigration applications in the employee’s personnel file for future reference.
Ensure counsel is aware of immigration angle
Be sure to bring the employee’s immigration status to the attention of employment counsel advising you on the situation. Employment lawyers aren’t always given the full personnel file for review, and they won’t necessarily know that you sponsored the employee for immigration status. Even if the same law firm handles your immigration and employment matters, employment counsel initially will focus on the facts you share with them and may not identify immigration status as a key issue for preliminary analysis unless you share it. Employees may react differently to employment actions if they believe their immigration status may be in jeopardy. Employment and immigration are related but separate areas, so employment counsel may need to consult with immigration attorneys about the immigration consequences of an employment action.
Best practice: When consulting with employment counsel about job changes, tell your attorneys if an affected employee has employer-sponsored immigration status at the outset.
Consider whether the job change is ‘material’
For all employment-based immigration categories, a material change in employment will likely require an amendment to the employee’s immigration approval. That general principle applies to all employment-based nonimmigrant categories, including E-1 treaty investor, E-2 treaty trader, E-3 specialty occupation worker from Australia, L-1 multinational transferee, O-1 extraordinary ability, P-1 performer/athlete, TN professional under the North American Free Trade Agreement (NAFTA), and others. It also can apply to permanent residency cases, depending on the facts and the status of the application process. Any job change for sponsored employees must be considered in this light.
Under U.S. Citizenship and Immigration Services (USCIS) guidance issued in May 2015 in light of the Simeio decision, employers are required to file an amended H-1B petition if there is a “material change” in employment (see “DHS clarifies ‘material change’ in work location for H-1B employees” on pg. 3 of our June 2015 newsletter). Filing an H-1B amendment triggers a new prevailing wage analysis (and potentially a higher prevailing wage), a new worksite posting regarding the H-1B sponsorship, and the expense and administrative burden of preparing and filing a new petition. An amended H-1B petition must be filed before the employee moves to a different work location outside the area of intended employment covered by the existing H-1B approval. Filing an H-1B amendment after the location of employment changes is not sufficient. So, to maintain H-1B compliance, employers must be vigilant about even seemingly minor changes in the location of employment.
If there is a permanent residency case in process, ultimate approval of the case may be jeopardized if the position changes in material ways and no longer matches the position described in the labor certification or I-140 immigrant petition. For successful approval, the qualifying offer of employment must continue until the employee’s I-485 adjustment application is approved (after labor certification approval, if required, and I-140 approval) or until the I-485 adjustment application has been pending at USCIS for at least six months. The timing of termination or a job change has direct consequences on a pending permanent residency case and should be carefully considered when taking employment actions. Losing the benefit of a permanent residency case in process can have drastic effects for both the employee and the employer, which will have devoted significant time and resources to a case that is no longer viable.
Best practice: Consider potential immigration consequences of any job change for a sponsored employee, and determine whether it’s a material change that will have immigration consequences.
Early termination of H-1B employment has consequences
When H-1B employment ends before H-1B approval expires, the employee’s H-1B status and the H-4 dependent status of her derivative family members are terminated. The employer’s duty to pay the wages set forth in the approved H-1B petition continues until H-1B approval expires or the employer notifies USCIS of the early termination and withdraws the labor condition application approved by the U.S. Department of Labor (DOL). Employers have been held liable for back pay to former H-1B workers for periods beginning with early termination and lasting until the mandated notifications are provided to USCIS and the DOL. Also, if an employer terminates an H-1B employee before her H-1B approval expires, it must offer to pay the costs of return transportation to the worker’s home country and pay the costs if she actually returns to her home country.
Best practice: Identify early H-1B terminations as soon as possible so your required compliance steps can be completed on a timely basis.
USCIS adjudication times for employment authorization
As a general rule, once an employment authorization document (EAD) expires, the person can’t work until a new EAD from USCIS arrives in the mail. On December 31, 2015, USCIS proposed eliminating the requirement that it issue an interim EAD if it takes more than 90 days to approve the I-765 application for employment authorization. For years, employers and employees have been able to count on receiving EADs within 90 days or, if not, obtaining an interim EAD promptly from a local USCIS office.
USCIS hasn’t issued the final rule yet, but employers should expect it soon. I-765 applications for employment authorization should now be filed 120, not 90, days in advance. The change is most relevant to employees who are permanent residency applicants with pending I-485 applications for adjustment of status and beneficiaries of Deferred Action for Childhood Arrivals (DACA). If you have employees who renew their EADs each year, please share this information with them so they will know to apply earlier going forward.
The author can be reached at lcole@dinse.com or 802-859-7035.
Supervisors, beware: VT court allows minefield of claims to proceed
Wage and Hour Law
Many employers struggle with determining whether certain activities constitute hours worked for which employees should be paid. If an employer gets it wrong, it can be a costly mistake. Therefore, employers must pay careful attention to the issue. Luckily, the U.S. Court of Appeals for the 2nd Circuit (whose rulings apply to all Vermont employers) recently issued a decision that provides helpful guidance in answering the perpetual “to pay or not to pay” question.
Facts
Assistant urban park rangers (AUPRs) are employed by New York City to perform a range of public services in its parks, including providing directions and other information to individuals using the parks; helping individuals involved in accidents or victims of unlawful activity; investigating accidents and illegal activity; implementing crowd control procedures at special events; providing safety and educational information to the public; and issuing summonses to and making arrests of persons suspected of unlawful conduct. AUPRs are required to wear uniforms and carry specific equipment. The city requires them to wear an “olive drab” jacket and matching pants, a “Smokey Bear”-style hat, and various park department insignia. As for their equipment, AUPRs wear a bulletproof vest and a utility belt equipped with handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder.
A group of AUPRs brought a collective action against the city arguing they were inadequately compensated under the Fair Labor Standards Act (FLSA). In particular, the AUPRs argued that the city improperly failed to pay them for compensable work activities performed immediately before and after their regularly scheduled shifts—namely, the time they spent putting on and taking off their uniforms and equipment (otherwise known as “donning” and “doffing”). The AUPRs estimated that the time needed to don and doff their uniforms each day ranged from approximately five to 30 minutes.
The city asked the court to dismiss the AUPRs’ FLSA claim, maintaining, in part, that the time they spent changing into and out of their uniforms was not integral and indispensable to their principal activities during their shifts and was therefore noncompensable. The court agreed with the city, concluded that the AUPRs’ donning and doffing of uniforms were not compensable activities, and ordered the case closed. The AUPRs appealed the court’s decision to the 2nd Circuit.
Legal framework The FLSA regulates the manner in which employees must be paid and requires payment of wages for the principal activities that employees are employed to perform, including tasks that are an integral and indispensable part of their principal activities, even if those tasks are completed outside regularly scheduled shifts. Conversely, the FLSA does not require payment for time spent on activities that are preliminary or postliminary to employees’ principal activities.
For an activity to be integral, it must be intrinsically connected to a principal activity that employees were hired to perform. An activity is indispensable if it is necessary to the performance of a principal activity. Combining the two requirements, an activity is integral and indispensable—and therefore compensable—if it is an intrinsic element of employees’ principal activities and one the employee cannot do away with if he is to perform his job.
2nd Circuit’s decision
On appeal, the 2nd Circuit began its analysis of the AUPRs’ claim by noting that a robust, fact-dependent inquiry is required before reaching a conclusion on whether performing a specific activity qualifies as an integral and indispensable job duty or whether the activity is more appropriately described as a noncompensable preliminary or postliminary task. The court explained that several factors are evaluated in determining whether an activity is an integral and indispensable part of employees’ principal activities, including:
- Is the activity undertaken for the employer’s benefit?
- Does the employer require the employees to perform the activity?
- Are the employees required to perform the activity at the workplace?
- Can the activity be characterized as a legitimate effort to protect against heightened workplace dangers that transcend ordinary risks?
The court explained that affirmative responses to those questions indicate that, more likely than not, the activity will be viewed as integral and indispensable to employees’ work duties and therefore will be deemed work time for which they should be compensated.
The court then carefully evaluated each of the relevant factors in light of the facts pertinent to the donning and doffing of the AUPRs’ uniforms and equipment. In doing so, the court noted that the AUPRs wear the uniforms for the city’s benefit and lack any choice in the matter. Indeed, the city prescribed the components of the uniform in detail, and the AUPRs could be disciplined for noncompliance. The court also observed that the city required the AUPRs to don and doff their uniforms at the workplace rather than allowing them to report to work already dressed.
Even more significant, the court noted that the uniform seemed vital to the primary goal of the AUPRs’ work. The court elaborated by stating that the AUPRs’ utility belts held items used to perform their essential law enforcement duties, such as a summons book, a baton, mace, and handcuffs. Likewise, the court remarked that the AUPRs’ flashlights and radios could provide crucial help in tracking suspects and coordinating with other municipal employees. The 2nd Circuit classified the utility belt equipment as tools of the AUPRs’ trade, drawing an analogy to a butcher’s knife, a K-9 officer’s dog, and a radiologic technician’s X-ray machine.
The court also focused on the AUPRs’ bulletproof vests, stating that although they closely resemble other necessary protective equipment such as helmets, safety glasses, and metal mesh, the vests truly function solely to protect against risks unique to law enforcement (i.e., sustaining gunfire). Therefore, the act of putting on and taking off the vests was clearly collateral to the AUPRs’ principal activities.
Finally, the court observed that the professional clothing required by the city also appeared to be essential to the AUPRs’ work. The uniforms serve to identify AUPRs to the public, an objective that is fundamentally intertwined with the purpose of the AUPRs’ employment. The court stated that the clothing, “with its recognizable color scheme and insignias, not only attracts citizens in need of assistance but also establishes an AUPR’s authority to investigate violations, issue summonses, make arrests, and otherwise intervene in emergency situations.” The court focused on the fact that the AUPRs’ uniforms served as a visible signal of authority that effectuated their efforts to instruct the public and enforce park rules.
After considering the pertinent facts, the 2nd Circuit ultimately concluded that the donning and doffing of uniforms and equipment constituted activities that were integral and indispensable to the principal job functions of the AUPRs. The court noted that the uniforms and equipment were essentially tools of the trade for the AUPRs to use in the performance of their workrelated tasks. Thus, the 2nd Circuit threw out the opinion of the lower court and sent the case back for further proceedings.
Significance for Vermont employers
While each situation depends on the unique set of facts presented, this case serves as a useful guide for employers that have employees who spend time putting on or taking off uniforms or protective equipment before or after their scheduled shifts. The key for employers is closely and carefully examining the uniform or gear at issue, employees’ specific principal activities, and the relationship between them.
Amy McLaughlin can be reached at amclaughlin@dinse.com or 802-859-7031.
Nolan Book Chapter Available for Download
In August, 2015, Thomson Reuters/Aspatore published Emerging Issues in College and University Campus Security. Jeff Nolan of Dinse’s Higher Education Practice Group wrote a chapter of the book, titled: “Addressing Intimate Partner Violence and Stalking on Campus: Going Beyond Legal Compliance to Enhance Campus Safety.” The 50-page chapter outlines the legal obligations of colleges and universities to address dating violence, domestic violence, sexual assault and stalking given the VAWA amendments to the Clery Act, then explains how institutions can go beyond compliance to enhance safety by engaging their campus threat assessment teams where appropriate to assess and manage related threats. Click here to view or download this chapter, free of charge.