Update: Michigan Court of Appeals Restores More Employer-Friendly Minimum Wage and Paid Sick Time Laws

On January 26, 2023, the Michigan Court of Appeals reversed the Michigan Court of Claims and held the “adopt-and-amend” strategy the Michigan Legislature used in 2019 to enact minimum wage and paid sick time laws was not unconstitutional. According to the Michigan Court of Appeals, the Michigan Legislature may amend a voter-initiated law just as it may amend any other law. As a result, for the time being, employers may comply with the MPMLA and do not need to start complying with the ESTA effective February 20, 2023, unless a further appeal is filed, and the Michigan Supreme Court reverses the Michigan Court of Appeals or the Michigan Legislature passes new laws similar to the voter-initiated laws.

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OFCCP Releases 2023 Pre-Audit Corporate Scheduling Announcement List

On January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) released its 2023 Corporate Scheduling Announcement List (CSAL), which notifies 500 supply and service establishments (locations) of upcoming audits. Federal contractors should immediately review the 2023 CSAL because it serves as the only advance notification to contractors of upcoming audits.

The CSAL specifies the type of audit the contractor will undergo: Full Compliance Review (Establishment Review), Corporate Management Compliance Evaluation (CMCE) or Functional Affirmative Action Program (FAAP) Review.

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USCIS Announces Expansion of Premium Processing

While U.S. Citizenship and Immigration Services (USCIS) made clear that it would not be increasing the $2,500 premium processing fee in its latest round of proposed fee increases, the agency announced on January 12 its final phase of premium processing expansion for EB-1 and EB-2 Form I-140, Immigrant Petition for Alien Workers.

Beginning January 30, 2023, USCIS will accept Form I-907, Request for Premium Processing Service for all EB-1 multinational executive and manager petitions and all EB-2 national interest waiver (NIW) petitions. Notably, unlike previous phases of premium processing expansion, this phase applies to all petitions, both new (initial) and previously filed (pending) under the EB-1 multinational executive and manager petitions and all EB-2 NIW categories.

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USCIS Proposes Rule to Increase Certain Immigration Fees

Earlier this month, U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking, proposing to increase the filing fees for certain immigration and naturalization benefit requests, with employment-based petitions undoubtedly seeing the greatest increase across the board.

USCIS hosted a public engagement session on the proposed fee rule on January 11, in which Director Ur M. Jaddou emphasized that fees have remained unchanged since 2016 and cited several reasons for the fee increases: covering higher costs due to inflation, avoiding any future backlogs, improving the use of technology, improving customer service, and reducing processing time. She further noted that USCIS is making a conscious decision to limit the naturalization application fee increase to less than 5% in an ongoing effort to encourage legal permanent residents to pursue naturalization and that USCIS intends to expand fee waiver categories. The proposed rule would generate an additional $1.9 billion in fee-based revenue per year for USCIS, with the intended net result of minimally increasing fees for approximately one million filers each year. However, for employers who routinely sponsor nonimmigrant and immigrant workers, the increased fees pose a significant cost.

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Denver Revises Municipal Code to Increase Civil Penalties Related to Wage Theft Violations and Expands “Up the Chain” Liability

On Tuesday, January 10, 2023, Denver Mayor Michael Hancock signed Bill 22-1614 after it passed the Denver City Council the previous day by unanimous vote. With the Bill’s passage comes increased penalties and new requirements related to wage theft, specifically including joint liability for general contractors, effective upon publication.

Denver’s minimum wage ordinance imposes a current minimum wage of $17.29 per hour, and before Bill 22-1614 passed, the ordinance provided certain penalties for employers that did not pay their workers based on the designated minimum wage. Indeed, prior to the bill’s passing, Denver’s minimum wage ordinance allowed employees to file complaints to the City Auditor within one year of a violation and provided a private right of action for three years to employees to seek to recover unpaid wages plus 12% interest, $100 for each day the violation continued, and liquidated damages three times the amount of unpaid wages.

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Paid Leave for Any Reason is Coming to Illinois

On January 10, 2023, the Illinois legislature passed a bill, SB0208, which would require most Illinois employers to provide employees with up to 40 hours of paid leave for any reason on an annual basis. The bill, entitled the “Paid Leave for All Workers Act,” if signed by the Governor (who has already expressed his support) would take effect on January 1, 2024. The bill is expansive in that it would require nearly all employers with one or more employees working in Illinois to provide paid leave. Leave would begin to accrue on January 1, 2024 or upon commencement of employment, whichever is later, but covered employers could impose a 90-day waiting period before leave may be used. With limited exceptions, all employees would be eligible to accrue leave, at a rate of one hour of paid leave for every 40 hours worked, up to 40 hours per 12-month period (e.g., calendar year). Exempt employees are assumed to have worked a 40-hour week unless their regular workweek is less than 40 hours.

Notably, the bill specifically provides that employers who already provide “any type of paid leave policy that satisfies the minimum amount of leave required by subsection (a) of Section 15” (i.e., 40 hours or a pro rata amount based on hours worked) are not required to modify the policy if employees are given the option, at their discretion, to take paid leave for any reason. Given this provision, employers may choose to modify their existing vacation, paid time off, or sick leave policies to satisfy this new leave requirement, rather than create a new leave bank for employees.

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