Legislative Updates

On January 30th, the U.S. Citizenship and Immigration Services (USCIS) announced the publication of two final rules regarding H-1B Registrations.  The H1-B process is used by employers wanting to hire nonimmigrant workers in specialty occupations.  United States employers must first electronically register for each prospective visa recipient they would like to hire.  Those selected in the H1-B "lottery" may then file the paperwork to obtain the visa.  

The H-1B Registration Final Rule should take effect 30 days from February 2nd.  Under the Final Rule, USCIS will:

1. Implement a Beneficiary-Centric Selection Process for H-1B Registrants.  Registrants will be selected by unique beneficiary instead of by registration reducing the risk for fraud.

2. Implement integrity measures for the H-1B Process.  

3. Provide start date flexibility for certain H-1B cap-subject petitions.  

In addition, the USCIS Fee Final Rule will take effect on April 1st which will increase fees.  The H-1B Pre-Registration Fee will increase from $10 to $215.  However, this will not be applicable until fiscal year 2025 for the H-1B registration.  The final rule will also provide discounts for nonprofits and small businesses.  

The Department of Labor released updated versions of the Notice to Employees of Coverage Options last month as their current notice had expired.  There are two model notices - one for employers who offer coverage to some or all employees and one for employers that do not offer a health plan.  You can find the updated notices on the DOL's website at: 

Notice to Employees of Coverage Options | U.S. Department of Labor (dol.gov)   

On January 9th, the US Department of Labor released a final rule which changes the criteria for classifying independent contractors which will take effect on March 11th.  Employers will use a new test which includes six factors:   

1. The degree to which the employer controls how the work is done.
2. The worker’s opportunity for profit or loss.
3. The amount of skill and initiative required for the work.
4. The degree of permanence of the working relationship.
5. The worker’s investment in equipment or materials required for the task.
6. The extent to which the service rendered is an integral part of the employer’s business.

Each factor carries the same amount of weight as the others.  The new rule rescinds a 2021 rule in which 2 core factors (control over the work & opportunity for profit/loss) were used to determine the status of independent contractor.  The DOL will be releasing more guidance to assist with the final rule.    

The IRS released 2024 mileage rates for 2024.  The standard mileage rate will increase from 65.5 cents for 2023 to 67 cents for 2024.  Mileage for charitable organizations remains the same at 14 cents per mile.  

The IRS announced that the Patient-Centered Outcomes Research Institute (PCORI) Fee will be increasing from $3.00 to $3.22 per covered member for all plans with plan years that end on or after October 1, 2023 and before October 1, 2024.  

Self-Insured employers pay the fee directly to the IRS and report the number of covered members on Form 720 by July 31, 2024.  For fully insured employers, the fee is paid by the insurance provider.  

The IRS announced that health flexible spending account limits will increase by $150 for a total of $3,200 in 2024.  For employers who utilize the carry-over provisions, employees will be able to carry over an additional $30 for a total of $640 in 2024.

The IRS announced 2024 contributions rates will increase by $500 for an annual election of $23,000 for 401(k), 403(b), or 457 plans.  The age 50 catch-up contribution limit will remain the same at $7,500.    

On October 27, the NLRB published a notice of final rule titled, "Standard for Determining Joint Employer Status."  Under the new rule, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share one or more of the essential terms and conditions of employment.  Some examples would be wages and benefits, hours of work/schedules, duties performed, supervision, work rules and discipline, tenure and working conditions.  

The final rule rescinds the 2020 final rule from the prior board.  The new rule provides vast guidance to parties about their rights and responsibilities of joint-employer establishments.  

Read the final notice at: 2023-23573.pdf (federalregister.gov)

Earlier this month, the EEOC issued the proposed Updated Workplace Harassment Guidance to Protect Workers by a vote of 3 to 2.  The proposed guidance provides updated examples on a wide range of scenarios and case law on workplace harassment.  The EEOC welcomes public comment until November 1st when they plan to issue final guidance. 

EEOC Guidance: PROPOSED Enforcement Guidance on Harassment in the Workplace | U.S. Equal Employment Opportunity Commission (eeoc.gov) 

The US Equal Employment Opportunity Commission announced an updated deadline for employers to submit their EEO-1 reports which is December 5, 2023.  All private employers with at least 100 employees as well as federal contractors and first--tier subcontractors with at least 50 employees and $50,000 in contracts are required to submit the EEO-1 report on an annual basis.  State and local governments and public-school systems are not required to submit the EEO-1 report.