Help for H-1B Hopefuls? Changes Coming to the H1-B Visa Cap ProcessEmployers who seek to sponsor foreign workers for cap-subject H-1B visas in 2020 will likely see a big change in the process – the use of an electronic pre-registration system that many believe will improve efficiency and reduce costs.

The Existing H-1B Cap Process 

The H-1B visa program is used by a wide variety of businesses to temporarily employ foreign workers in H-1B “specialty occupations” – generally jobs that require a bachelor’s degree or higher in a specific specialty or its equivalent. Each year, 85,000 new cap-subject H-1B visas become available, but, in recent years, the demand for the coveted visas has far outstripped the supply.

Each year, the annual batch of 85,000 H-1B visas is made available on October 1, the start of the U.S. Government’s fiscal year. However, because of the high demand, employers must file their visa petitions with U.S. Citizenship and Immigration Services (USCIS) months earlier – during the first week in April when the period for filing opens. Wait any longer and the visas are gone.

There’s also no guarantee that the USCIS will adjudicate H-1B petitions filed the first week of April. Each year since 2013, more than 85,000 H-1B applications have been filed during that first week alone, and USCIS has conducted a lottery to pick the petitions to be processed. This past April, over 201,000 petitions were filed for the 85,000 available visas. For employers desperate for H-1B talent, the math is not particularly encouraging.

To make matters worse, an employer seeking to sponsor a foreign worker for a cap-subject H-1B visa has historically been required to file a full-blown petition, complete with documentary evidence, before the lottery is conducted. This petition must demonstrate that the job the employer seeks to fill qualifies as an H-1B “specialty occupation” and that the foreign worker qualifies for the job. Preparing and filing this petition can be time-consuming and expensive. The process is particularly frustrating to the employer when there’s no guarantee that the petition will even be selected for processing.

The Anticipated Change

It appears that a major change – which should be beneficial – is on the way. In January 2019, USCIS announced that it was implementing a new electronic pre-registration system to be used for the cap-subject H-1B process. Under this system, employers who wish to file cap-subject H-1B petitions must first register electronically during a designated period. Next, USCIS will conduct a lottery and notify employers if their registrations have been selected for adjudication. Only if its registration is accepted will an employer be required to file a full-blown petition.

USCIS initially wanted the new electronic pre-registration process to be rolled out in April 2019. However, when the final rule on the process was announced in January, USCIS suspended implementation for a year “to complete user testing and ensure that the system and process [were] fully functional.”

Although another one-year delay is possible, USCIS clearly wants to get the new process in place for the upcoming H-1B cap season. Just last week, USCIS issued another rule that will require employers to pay a non-refundable $10 fee to pre-register under the new electronic system. USCIS has said that it will make an announcement about the implementation time frame and initial registration period once it has made a final decision on whether to move forward with the process in 2020.

Takeaways

Employers interested in filing H-1B cap petitions should stay tuned. While the electronic pre-registration system is likely to present some new challenges, we are optimistic that the process will ultimately provide some needed predictability and help employers save time and money.

Sunday May Still Be Sacred: Texas Jury Sides with Employee Who Chose Church Service Over WorkIf an employee misses work to attend church on Sunday morning and the company subsequently fires her, is that religious discrimination? A jury in Texas recently said yes and awarded the plaintiff close to $350,000. The verdict is a reminder to employers to remember your religious accommodation obligations.

Trouble with supervisor and work scheduled for Sunday

Lois Davis worked in the IT department for Fort Bend County, Texas. Davis had a troubled history with the IT director and IT manager, who were friends. After Davis made allegations of sexual harassment against the IT director, he resigned. Davis alleged that thereafter the IT manager retaliated against her in a number of ways as part of her initial complaint. (Those retaliation claims were later dismissed on summary judgment, which was affirmed by the court of appeals.)

All of that led up to the weekend of July 2-3, 2011. Fort Bend County embarked on a major project to install computers, networks, and audiovisual equipment in the new Fort Bend County Justice Center, which was scheduled to open the following week. In June 2011, the IT manager informed the staff that they would be required to be available to work the weekend of July 2-3.

Davis goes to church and then gets fired

Davis was a devoted attendee of a Christian church in Houston, regularly attending both the 8:00 a.m. and 10:00 a.m. services and was a part of the church’s administration. On June 28, 2011, Davis told the IT manager that she would not be available to work on Sunday morning (July 3) due to a religious obligation at her church, but that she would arrange for a substitute. That Sunday morning her church was having a groundbreaking and community meal to celebrate in addition to the regular services. The IT manager told Davis that she would be disciplined if she did not show up to work on Sunday morning and that her offers to find a substitute would be inadequate.

Davis did not go to work on Sunday morning and her employment was terminated only a few days later on July 6 because of the Sunday absence. Davis alleged that the Justice Center opened on time and that employees were dismissed early that Sunday because all the work was completed.

The case was initially filed in 2012 and had a very convoluted procedural history that traveled up to the Fifth Circuit Court of Appeals twice, only to be remanded back to the trial court before the trial was ultimately held a few weeks ago.

Deeply held belief and no accommodation

At the trial for Davis’ religious discrimination claims, the jury found that Davis had shown that she held a sincere, bona fide religious belief that conflicted with a requirement of Fort Bend County — her work schedule. The jury further found that she informed Fort Bend County about her religious belief and ultimately suffered an adverse employment action for failing to comply with the conflicting employment requirement. At trial, Davis’ direct supervisor testified that he was not aware that Title VII existed or required the county to offer Davis a religious accommodation.

The jury also found that Fort Bend County was able to reasonably accommodate Davis’ religious observance without undue hardship but failed to do so. The jury awarded Davis $50,000 in mental anguish damages, over $103,000 in back pay, and approximately $196,000 in accrued benefits. In so doing, the jury also concluded that Davis did not fail to mitigate her damages by not diligently seeking substantially similar employment.

Takeaway

Sometimes companies need to schedule work on Sundays or on religious holidays. The law permits those schedules, but employers need to be aware that if an employee has a conflict based on a deeply held religious belief they should seriously consider if they can accommodate the employee’s request. Here’s what to look for when presented with a religious accommodation request:

  • Is the belief sincere? This is different than mainstream. Make sure your supervisors don’t dismiss a belief because it is unfamiliar to them. Also, make sure your supervisors know that they need to get guidance about scheduling or other conflicts that raise any religious issues. Rejecting a request based on the employer’s skepticism about the sincerity of the belief is risky.
  • Is the employer aware of the religious belief and that the religious obligations conflict with a work requirement? Be careful about taking the position that an employee having to be in church all morning or twice in one day is excessive and doesn’t appear necessary to you. You can probe into the details of the religious obligation but be careful about making a decision based on your assessment of its necessity.
  • Does accommodating the religious belief impose an undue hardship on the employer? Accommodation of a religious belief is a different standard than accommodation of a disability but you still need to be careful.

The jury clearly concluded that Fort Bend County could have found a viable workaround for that one Sunday morning that Davis wanted to go to the church’s service and groundbreaking event.  Instead, they faced years of litigation and a substantial jury verdict.

Is everything covered by the Americans with Disabilities Act (ADA)? Although we all know the ADA broadly defines the conditions that are protected disabilities, the Seventh Circuit Court What Does the Future Hold and Does It Really Matter? 7th Circuit Holds ADA Doesn’t Necessarily Cover Future Impairmentsof Appeals’ decision in Shell v. Burlington Northern Santa Fe Railway Company, shows that there are limits. Earlier this year, the Seventh Circuit held that obesity alone, without another physiological condition, is not a protected disability. And with the Shell decision last week, the Seventh Circuit held that the ADA does not reach discrimination based on an employer’s belief that an employee is likely to develop a disability in the future.

THE UNDERLYING FACTS

Ronald Shell was a rail yard employee for 33 years. His job included work as a heavy machine operator. When BNSF bought his former employer, he and all other employees had to re-apply for their jobs. BNSF made Shell a conditional offer of employment, subject to a medical examination. Shell’s medical examination showed that he suffered from no current health conditions.  However, his body mass index (BMI) was 47.5, and he was considered obese.

Pursuant to company policy, BNSF does not hire applicants for safety-sensitive positions, such as the heavy machine operator position Shell applied for, if their BMI is 40 or above. BNSF justifies this rule because a person with a BMI over 40 is at risk for developing health conditions that could result in a sudden loss of consciousness, such as sleep apnea, diabetes, and heart disease, and the unexpected onset of those conditions poses a safety hazard. Because Shell’s BMI exceeded 40, BNSF withdrew its offer of employment.

Shell claimed that BNSF’s refusal to hire him violated the ADA because it was based on BNSF’s perception that he had a disability. The district court sided with Shell and denied BNSF’s motion for summary judgment. The Seventh Circuit granted an interlocutory appeal to decide the following issue: “whether the ADA’s regarded-as provision encompasses conduct motivated by the likelihood that an employee will develop a future disability within the scope of the ADA.” The Court also invited the EEOC to weigh in with its position.

Shell argued that, because BNSF refused to hire him because it feared he would develop a future impairment, the company essentially treated him as if he currently suffered from an impairment. The EEOC supported Shell’s position by arguing that the purpose of the ADA is to “combat society’s accumulated myths and fears about disability and disease” and by pointing to guidance in the EEOC Compliance Manual that indicates future impairments are covered by the ADA.

THE SHELL HOLDING

The Seventh Circuit sided with BNSF, relying on the plain language of the statute. The ADA states that it protects people who are regarded as having an impairment. In this case, BNSF regarded Shell as likely to develop an impairment, but it did not regard him as having one. The Court held the ADA only protects a person who currently has a disability or is perceived to currently have a disability. Under this ruling, an employer’s fear that a person will develop a disability in the future is not a basis for an ADA claim.

TAKEAWAYS

This case shows that the ADA’s scope of protected disabilities, while broad, is not unlimited. But employers should still use caution when making decisions based on an employee’s likelihood of developing future conditions. While obesity, standing alone, is not a disability, many employees who are likely to develop future medical conditions may already have some other underlying condition that entitles them to ADA protection.