DOL publishes NPRM to update the Davis-Bacon and Related Acts

On March 18, 2022, the Department published a notice of proposed rulemaking (NPRM), Updating the Davis-Bacon and Related Acts Regulations in the Federal Register. 

Publication of the NPRM in the Federal Register begins the comment period that will be open for 60 days and closes on May 17, 2022.

DHS To End COVID 19 Temporary Policy for Expired List B Identity Documents

Beginning May 1, Employers will no longer be able to accept expired List B documents.

DHS adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID 19 pandemic. Now that document issuing authorities have reopened and/or provided alternatives to in person renewals, DHS will end this flexibility. Starting May 1, 2022, employers must only accept unexpired List B documents.

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022. See table below for update requirements.

If the employee’s Form I‑9 was completed between May 1, 2020 and April 30, 2022 with an expired List B document and that document expired on or after March 1, 2020, and the employee:  Then: Is still employed.  Have the employee provide an unexpired document that establishes identity. Employees may present the renewed List B document, a different List B document or a document from List A. In the “Additional Information” field of Section 2, the employer enters the document:  Title;  Issuing authority;   Number; and  Expiration date.  The employer initials and dates the change. See Form I‑9 example. Is no longer employed.  No action is required.  The List B document was auto extended by the issuing authority, so it was unexpired when presented.  No action is required because the document was unexpired when presented. 

EEOC Guidance on Caregivers

On March 14, 2022, the EEOC released a technical assistance entitled  “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law”, which reminds employers of caregiver obligations. Although COVID conditions may be improving, many employers, schools, and daycare providers continue to operate on hybrid schedules or may close with little advance notice. These conditions continue to place greater burdens on employees who take care of children, spouses, partners, older relatives, and individuals with disabilities or who are immunocompromised.

Is US DOL Ready to Increase Audits?

The US DOL announced that it is hiring 100 new investigators in its Wage and Hour Division, which could mean an uptick in enforcement, including more employer audits. Since DOL audits include nonexempt/exempt employee classification, independent contractor classification and FMLA compliance, now may be a good time to do a self-audit.

No Vacation Forfeitures in CO

The Colorado Department of Labor and Employment’s issued Notice & Formal Opinion (INFO) #14 on vacation pay, which confirms that: 

  1. Employees must be paid all earned vacation pay when their job ends.
  2. No employment policy or agreement can waive or forfeit earned vacation at any time.
  3. All paid leave which can be used at the discretion of the employee is considered “vacation pay” subject to the non-forfeiture rules.

Written by: M. Berger, Partner 

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