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Posts Tagged ‘employers’

H-1B Visa Lottery: More Than One Ticket to the Jackpot?

Posted on: April 5th, 2018

By: Layli Eskandari Deal

The answer is No.  U.S. Citizenship & Immigration Services (USCIS) has adopted a ruling made by the Administrative Appeals Office (AAO) to prohibit multiple H-1B visa request by related entities on behalf of the same beneficiary for the same fiscal year.

Under the H-1B visa cap, employers are only allowed to submit one visa petition on behalf of a beneficiary.  Multiple filings are prohibited. The underlying case arose from USCIS revoking an approved visa petition reasoning that that the employer and a “related entity” had filed for the same beneficiary under the visa cap.

Matter of S-, Inc. (AAO March 23, 2018) clarifies that that the term “related entities” includes “employers, whether or not related through corporate ownership and control, that file cap-subject H-1B visa petitions for the same beneficiary for substantially the same job.  Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, U.S. Citizenship & Immigration Services will deny or revoke the approval of all H-1B cap-subject petitions filed by related entities for that beneficiary.”

In making its decision, the Administrative Appeals Office points to regulation and ultimately fairness in the visa number allocation process.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Expect Increased Worksite Inspections by ICE in 2018

Posted on: November 15th, 2017

By: Melissa M. Whitehead

One can barely turn on the news (or look at Twitter) without hearing about the current Administration’s immigration views and policies. The topic has become so highly politicized that it can be easy to miss the actual details of new rules and regulations. Employers must pay close attention, though, and be sure they are staying current with the changing regulations. At a recent event titled “Enforcing U.S. Immigration Laws: A Top Priority for the Trump Administration,” keynote speaker and Acting Director of the U.S. Immigration and Customs Enforcement (“ICE”) said that his agency will be cracking down on employers who hire undocumented immigrants. He recently instructed Homeland Security Investigation to increase the amount of time spent on work site enforcement “by four to five times.” He also promised that the number of worksite inspections would significantly increase “in the next fiscal year.” Why? According to Homan, “unless you remove the magnets… they’re gonna keep coming… . As long as they’re coming to get a job, they’ll try to come. So we are stepping up work site enforcement…”

What does this mean for employers?

Employers should expect an increased likelihood of employment immigrant audits, with or without advanced notice. This is likely to come in the form of I-9 audits. For this reason, employers are encouraged to periodically conduct internal Form I-9 audits with the assistance of counsel, to ensure that I-9 forms are being correctly completed and appropriate records are being maintained. Employers must also ensure that the correct Form I-9 is being used, as the approved form frequently changes. The most recent version was released in July 2017 and became mandatory on September 18, 2017. Any errors discovered in the audit should be immediately remedied. Employers should also consider providing training to their HR professionals in I-9 compliance and policies. Both substantive and technical violations alike will result in penalties anywhere from $220 to $2,156 per employee’s I-9.

Employers in states or cities that have declared as “sanctuary cities/states” have an even more complicated burden. For example, California’s “sanctuary state” legislation will go into effect on January 1, 2018. California employers, then, will be prohibited from voluntarily allowing federal immigration enforcement agents into non-public work areas or access to employee records without a warrant. The legislation also places specific requirements for both pre-inspection and post-inspection notice to employees. Failure to comply with sanctuary state legislation will subject California employers to civil penalties between $2,000 to $5,000 per employee for the first violation, and $5,000 to $10,000 for each subsequent violation.

Conclusion

Employers are encouraged to perform internal audits of their policies and practices before or around the start of 2018, and to seek the advice of counsel well-versed in both employment and immigration regulations, for assistance in navigating these tricky waters.

If you have any questions or would like more information, please contact Melissa M. Whitehead at [email protected] or (916) 472-3306.

Beware If You Have Commissioned Employees in California – New Law Takes Effect in 2013

Posted on: December 27th, 2012

By: Brad Adler

For those employers that have operations in California, remember that California’s new commission contract law takes effect January 1, 2013.  Under State Law 1396, employers who pay commissions to their employees are required to enter into written commission agreements with them.  The agreement must describe the terms of the commission structure, including the method by which commissions will be calculated.  Employers must have employees sign the agreement and then provide a copy to each employee.  Employers also should note that, when a commission agreement expires for a current employee without being replaced by another agreement, the terms of the expired agreement will control.

EEOC to Continue Focus on Systemic Discrimination

Posted on: November 5th, 2012

By: Ben Mathis

Over the last few years, in both formal policy statements and in many public presentations, the EEOC has emphasized that it’s investigative and litigation focus is on cases involving “systemic discrimination.” In other words, the EEOC has focused on cases where there are “widespread” or “institutional” discriminatory practices. Most often, the EEOC has been very aggressive in cases concerning facially neutral policies which it believes have a discriminatory effect on minorities and individuals in protected classes or in cases where statistical evidence shows that the outcome in hiring or termination cases suggests a practice and pattern of discriminatory decisions. In this regard, the EEOC’s recent interpretive guidance regarding the use of background checks in hiring, released last April, is a concrete example of its efforts to address common employer practices which the EEOC contends lead to a “systemic” discriminatory hiring practice.

The EEOC now has taken another significant step toward implementing its systemic initiative with release of a new “Draft Strategic Enforcement Plan.” The SEP reemphasizes that the EEOC’s “number one” priority will be on systemic recruiting and hiring discrimination. The SEP notes that the EEOC believes it is better positioned to bring claims alleging systemic discrimination than private attorneys because of the EEOC’s access to data and documents regarding hiring and recruiting throughout the country. The EEOC says that it will be taking particular interest in common hiring and recruiting tools such as pre-employment tests, background screens and date of birth screens in online applications.

This renewed emphasis on systemic hiring, and the EEOC’s clear directive that it will devote significant resources to the effort, is clearly a reaction to last year’s Supreme Court decision of Wal-Mart v. Dukes, which ruled that class action bars in arbitration agreements may be enforceable. Many employers following Dukes have instituted arbitration provisions which require all employees to forego civil lawsuits and bring any claims, including class claims, in arbitration instead of court. Thus, the SEP recognizes that the Plaintiff’s attorney bar may well lessen, or in many instances, abandon systemic class claims because they may be subject to a class action bar.

The practical effect of the SEP is that employers can expect to see even more requests from the EEOC for additional information that focus on overall hiring and termination practices. These requests often include statistical information that seems far broader than might be expected in a single employee case and are being seen in many cases where a charging party does not even make such a “class” allegation. In addition, the EEOC expressly has stated that it will begin opening nationwide investigations, with offices from Georgia and the southeast cooperating with other offices in an effort to identify what it believes is systemic discrimination. There is little doubt that the EEOC will continue to increase its “company-wide” investigations.

The SEP also provides for new and additional areas of focus of the EEOC in the coming years, including protecting immigrant and migrant workers in disparate pay, segregation and discriminatory practice claims, and “emerging issues” including ADA issues and coverage of lesbians, gays, bisexuals and transgender individuals under Title VII’s sex discrimination provisions. The EEOC also will increase focus on pregnancy related issues, including refusing accommodations to pregnant women that may be offered to other employees.

Overall, the SEP provides a road map for what employers can expect in the near future with respect to both investigation and litigation. The SEP also likely will result in even bigger changes on the local level for your area EEOC office, because it directs all district offices to develop their own plans by March 31, 2013, identifying their own enforcement priorities. Charges that fall within the national and district plans will then be given “priority” and will be investigated with more emphasis and resources.

 

Employers Beware: Florida’s Minimum Wage Set to Increase by 1.5 Percent

Posted on: October 17th, 2012

By: Jonathan Kandel

The Florida Department of Economic Opportunity recently announced that the Florida minimum wage will be $7.79 per hour beginning January 1, 2013.  This represents an increase of 1.5 percent (or $0.12) from the state’s current minimum wage of $7.67 per hour.

The increase is due to a change in the Federal Consumer Price Index.  In 2004, Florida voters approved a constitutional amendment that established a state minimum wage.  The state minimum wage is recalculated on September 30 each year, based on the Federal Consumer Price Index.

Florida’s minimum wage applies to all employees in Florida that are covered by the federal minimum wage under the Fair Labor Standards Act (FLSA).  Pursuant to the FLSA, a state minimum wage that is higher than the federal minimum wage, which is currently $7.25 per hour, prevails.  Therefore, all employees in Florida must be paid at least $7.79 per hour beginning January 1, 2013.

The increase also affects how much “tipped employees” must be paid.  If an employee meets the requirements for the tip credit under the FLSA, the employer may count tips actually received as wages under the Florida minimum wage.  However, employers must pay “tipped employees” a direct hourly wage, which is calculated by subtracting the 2003 tip credit ($3.02) from the state minimum wage ($7.79).  Accordingly, the direct hourly wage for “tipped employees” will be $4.77 as of January 1, 2013.

Due to the increase, employers in Florida must update their state minimum wage posters.  In addition to the federal posting requirements, Florida requires employers to post a minimum wage notice in a conspicuous and accessible place in each establishment where employees work.  The updated state minimum wage posters can be downloaded in English and Spanish at http://floridajobs.org/business-growth-and-partnerships/for-employers/display-posters-and-required-notices.