The Wage and Hour division of the US Department of Labor announced earlier this month that it was planning a campaign of inspections and investigations targeting employers who use the H-2B seasonal guest worker visa program to hire temporary employees from other countries. Billed as an “education and enforcement initiative,” the campaign will target hotels and landscapers, the two industries that rely most heavily on the H-2B visa, “providing compliance assistance tools and information to employers and stakeholders, as well as conducting investigations of employers using this program,” according to the Labor Department’s statement:
A key component of the investigations is ensuring that employers recruit U.S. workers before applying for permission to employ temporary nonimmigrant workers. “Any employer seeking workers under this program must be ready and willing to hire qualified U.S. applicants first,” said Bryan Jarrett, Wage and Hour Division Acting Administrator. “This initiative demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed or otherwise working under substandard conditions.”
Last year, WHD investigations found more than $105 million in back wages for more than 97,000 workers in industries with a high prevalence of H-2B workers, including the hotel industry.
The H-2B is a six-month visa that allows foreigners to work for a US employer temporarily and is most commonly used in the hospitality and landscaping industries to fill labor shortages in the high-demand summer season. In a historically tight market for American workers, employers in these industries have grown more dependent on the H-2B program to keep up with seasonal demand and grow their businesses. The policies of President Donald Trump, who has tasked his administration with reducing the number of both legal and undocumented immigrants entering the US, have exacerbated the labor market challenges of many employers who rely on guest worker visa programs like the H-1B and H-2B.
Wayne Hochwarter, a professor at Florida State University’s College of Business who specializes in organization behavior, conducted a field study this summer as part of an ongoing project on the anxiety-inducing effects of political conflict, in which he surveyed 550 full-time workers across the US about a variety of work-related issues, how politics are affecting their day-to-day interactions in the workplace. Discussing his findings at the Conversation, Hochwarter reports that he found evidence of heightened political stress, which correlated with negative workplace outcomes:
Twenty-seven percent of the participants agreed or strongly agreed that work had become more tense as a result of political discussions, while about a third said such talk about the “ups and downs” of politicians is a “common distraction.” One in 4 indicated they actively avoid certain people at work who try to convince them that their views are right, while 1 in 5 said they had actually lost friendships as a result. And all this has serious consequences for worker health and productivity.
Over a quarter said political divisions have increased their stress levels, making it harder to get things done. Almost a third of this group said they called in sick on days when they didn’t feel like working, compared with 17 percent among those who didn’t report feeling stressed about politics. A quarter also reported putting in less effort than expected, versus 12 percent. And those who reported being more stressed were 50 percent more likely to distrust colleagues.
Hochwarter’s field study relied on student-recruited sampling, so he acknowledges that his respondents may not be representative of the entire country; his findings are consistent with what other surveys have found over the past two years, as well as with the widely-recognized atmosphere of heightened division and polarization in American politics today, and particularly since the 2016 presidential election.
The US National Labor Relations Board announced on Thursday that it would publish a Notice of Proposed Rulemaking in the Federal Register today proposing a new version of the rule governing joint employer liability under the National Labor Relations Act:
Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.
As explained in the Notice, rulemaking in this important area of the law would foster predictability, consistency and stability in the determination of joint-employer status. The proposed rule reflects the Board majority’s initial view, subject to potential revision in response to public comments, that the National Labor Relations Act’s intent is best supported by a joint-employer doctrine that does not draw third parties, who have not played an active role in deciding wages, benefits, or other essential terms and conditions of employment, into a collective-bargaining relationship for another employer’s employees.
Since regaining a Republican majority under President Donald Trump, the NLRB has sought to overturn a decision made during the Obama administration in 2015 that defined “joint employer” to include entities with which a business has indirect control, or a “horizontal” relationship, making them responsible for franchisees’ or contractors’ compliance with the Fair Labor Standards Act and other employee protection laws. Previously, organizations were only considered joint employers in the case of a “vertical” relationship, wherein an organization exerted direct control over its subordinate entity’s employees or the terms of their employment. Critics of the expanded definition say it creates too much uncertainty for businesses involved in subcontracting and franchise relationships about their employment liability.
Under a new policy that came into effect on Tuesday, visa adjudicators at US Citizenship and Immigration Services are now allowed to deny visa applications or petitions without first issuing a notice of intent to deny or a request for additional evidence. In announcing the policy in July, the agency said the policy was “intended to discourage frivolous or substantially incomplete filings used as ‘placeholder’ filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.”
Immigration lawyers, however, tell ProPublica that the policy will effectively make it much harder for visa applications to succeed, adding to the various procedural barriers the Trump administration has erected to slow down legal immigration to the US. The attorneys expressed concern that “there is not enough oversight or clear standards to ensure fair handling”:
One reason the lawyers are worried is that they’ve seen a barrage of scrutiny directed at once-standard immigration applications since Trump took office. ProPublica spoke with a dozen lawyers and reviewed documentation for several of these cases.
Many responses cited technicalities: One application was not accepted because the seventh page, usually left blank, was not attached. Another was rejected because it did not have a table of contents and exhibit numbers, even though it had other forms of organization. “It seems like they are just making every single submission difficult,” Bonnefil said. “Even the most standard, run-of-the-mill” application.
The US Department of Homeland Security is close to approving a policy that will remove the right of at least some H-1B visa holders’ spouses to work in the US, the Mercury News reported last week, based on a new court filing:
Those affected hold the H-4 visa, a work permit for spouses and under-21 children of H-1B workers. It remains unclear if all spouses of H-1B holders will be banned from working, as Homeland Security has only said “certain H-4 spouses” will be targeted by the new rule. Because not all H-4 holders are allowed to work, it appears that “certain H-4 spouses” may refer to all who are work-eligible.
Controversy over the H-4 has spun off from the furor over the H-1B, which is relied upon heavily by Silicon Valley technology companies but attacked by critics over reported abuses. Homeland Security, which had earlier said it would make the change in February, filed an update in a federal court case on Monday to inform the court that the new rule was in the final “clearance review” and that the department’s intention to impose the ban was unchanged.
H-4 visa holders were granted the right to work under a policy change made by the Obama administration in 2014. The Trump administration began considering a reversal of this policy in April 2017 and it became part of the regulatory changes the government developed in response to President Donald Trump’s “Buy American, Hire American” executive order issued that month, which called for a crackdown on guest worker programs like the H-1B visa and stricter enforcement against allegedly widespread fraud and abuse in these programs. The Department of Homeland Security formally proposed ending work authorization for H-4 visa holders last December.
The Occupational Safety and Health Administration of the US Department of Labor has issued a Notice of Proposed Rulemaking that “would amend OSHA’s recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301”:
OSHA is amending its recordkeeping regulations to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA). OSHA has preliminarily determined that the risk of disclosure of this information, the costs to OSHA of collecting and using the information, and the reporting burden on employers are unjustified given the uncertain benefits of collecting the information. OSHA believes that this proposal maintains safety and health protections for workers while also reducing the burden to employers of complying with the current rule.
OSHA illness, injury, and fatality reporting rules was introduced under the Obama administration in 2014 and 2016, requiring employers to report work-related fatalities and severe injuries to the administration and later to electronically submit injury and illness information to OSHA annually. The new administration’s rationale for the regulatory change is that “the electronic collection of case-specific forms … adds uncertain enforcement value, but poses a potential privacy risk under FOIA,” the notice states.
The US National Labor Relations Board intends to take the first step toward creating a new regulation regarding the definition of “joint employers” for federal regulatory purposes by the end of this summer, NLRB Chairman John F. Ring wrote in a letter to three Senators this week. The letter to Democrats Elizabeth Warren and Kirsten Gillibrand, and Independent Senator Bernie Sanders, was in response to a letter the legislators had sent to the board chairman expressing their concerns about the board’s intent to introduce a new joint employer standard through the federal rulemaking process.
“A majority of the Board is committed to engage in rulemaking,” Ring wrote in the letter dated June 5, “and the NLRB will do so. Internal preparations are underway, and we are working toward issuance of a Notice of Proposed Rulemaking (NPRM) as soon as possible, but certainly by this summer.”
The joint employer standard, which refers to an organization’s liability for the work conditions of individuals employed by its contractors or subcontractors, was expanded considerably during the Obama administration, when the NLRB ruled in a 2015 case called Browning-Ferris that a company was to be considered a joint employer if it had “indirect” control over the subcontractor’s terms and conditions of employment or “reserved authority” to exercise such control. The board reversed that decision in the Hy-Brand case decided late last year, but vacated its Hy-Brand ruling in February after one member of the board who participated in that decision, William Emanuel, was found to have a conflict of interest.