Employment Law

Monday, December 8, 2014

FDNS Administrative Site Visits/ Business Law

In 2009, the Fraud Detection and National Security Directorate (FDNS) of the U.S. Citizenship and Immigration Services (USCIS) launched a program to ensure that employers comply with immigration rules designed to protect public safety and national security.  Under the Administrative Site Visit and Verification Program (ASVVP), FDNS makes surprise site inspections to verify the information that employers provide to the government.

Who Is Inspected?

The FDNS selects sites at random, before or after adjudication of a visa petition.  It focuses on employer fraud in immigration petitions filed on Form I-129 (Petition for a Nonimmigrant Worker), particularly in connection with H-1B, L-1, R-1, and certain other workers.  If it finds fraud, it asks the USCIS to deny or revoke a petition.  An employer could also face fines and penalties.

What Happens During an Inspection?

FDNS Inspectors arrive without notice at a workplace.  They usually interview the employer or a representative, and the foreign worker or "beneficiary" who is the subject of the inquiry.  They may interview each separately to determine whether employer and employee answer the same questions similarly.  They may ask for tax records, employee lists, and payroll information.

ASVVP site inspectors are given five specific tasks to perform at each site visit:

  • Verify that that the employer is not fictitious;
  • Verify the accuracy of information submitted by the employer;
  • Take digital photographs;
  • Review documents on site and make sure they match those submitted to the government; and
  • Confirm the beneficiary's work location, employment, duties, compensation, hours, and other details.

 What Happens Afterwards?

 The site inspectors make a report of their findings to FDNS, which may provide a Summary of Findings to an Immigration Services Officer (ISO).  The ISO decides whether a petitioner organization is entitled to the immigration benefit it seeks.  The ISO may also request further information from the petitioner.  If the FDNS detects signs of criminal immigration fraud, it may refer the matter to Immigration and Customs Enforcement.

 How Should Employers and Employees Prepare?

 Both the employer and the beneficiary worker should be familiar with the information included in the employer's I-129 so they can answer questions accurately and consistently.  Employers should make sure that the information in their petition is up-to-date and amend the petition if there have been changes.  Employers should also designate a representative—an attorney or HR manager—to deal with inspections and make sure that tax documents, employment records, and immigration forms are readily available.

These matters can be complex and time consuming.  It is therefore in your best interest to contact an experienced immigration attorney in the event that you are accused of violating these laws or if would like to ensure that you are in compliance with them.

Wednesday, July 30, 2014

Obtaining Legal Authorization to Work in the US

There are thousands of foreign workers who enter the U.S. each year. Foreign workers must obtain legal permission to work in the U.S. or risk deportation.  There are also possible legal consequences to the employer should they hire an employee who does not have work authorization. There are several employment categories for admission that apply to different types of workers. Each category has different requirements, conditions, and periods of time that the worked may legally stay in the country

Temporary Workers

There are a variety of categories of temporary workers. In order to come to the U.S. for temporary employment, an employer must file an immigration petition on behalf of the immigrant with the U.S. Citizen and Immigration Services Department.

Permanent Workers

There are over 100,000 immigrant visas given each year to aliens who want to come to the U.S. to fill positions that require unique job skills. For some people with the right skills, education, and experience, they may be able to live permanently in the U.S. This usually applies if there is a shortage of experts in the particular field(s) in which the immigrant has expertise.

Students and Exchange Visitors

There are two types of immigration visas for full-time students in the U.S. enrolled in both academic or vocational programs which allow them to work on a limited basis in a position related to their field of study.

Temporary Visitors for Business

Those who wish to come to the U.S. for a short period of time in order to conduct business may be able to obtain a Temporary Visitors for Business Visa.

Each type of visa comes with its own special rules regarding the type of work that the immigrant can perform and includes guidelines on the length of stay, and whether family members can accompany the immigrant as well as tax obligations.

Monday, June 30, 2014

Questions You Shouldn't Ask or Answer During an Interview

Job-seekers have to be ready to respond to any interview question asked of them, but not every question has to be answered. 

To ensure that employers do not discriminate against candidates based on age, gender, race, health and family arrangements, there are certain regulations which restrict the type of questions which are permissible during an interview. Below, we explore several topics that may be problematic and should not be asked of potential employees: 

Questionable Questions

Let’s take a look at a few topics that may be problematic. 

  • Age: Does anyone like to be asked their age unless just turning 21? Probably not. While an interviewer may ask whether a candidate is over the age of 18 or 21, he or she may not ask for a specific age.  
  • Nationality: An interviewer can ask whether a candidate is legally allowed to work in the U.S., but he or she can’t ask about the applicant’s nationality or status as a citizen. 
  • Religious beliefs: Same goes for questions that ask about religious beliefs. The interviewer may be in the right if he or she needs to know if the interviewee can work on certain holidays, but otherwise, this topic should be off limits.
  • Health: While in many states an interviewer cannot ask if a candidate smokes, he or she may inquire as to whether the applicant has ever violated any corporate policies on alcohol or tobacco. Furthermore, an employer may ask whether the person being interviewed uses illegal drugs, is able to lift a given weight, or can reach items at a specific height. They also can ask if the individual is capable of completing certain tasks associated with the job and if any reasonable accommodations might be needed.
  • Family status: Employers want to know about an applicant’s availability which may sound like a legitimate concern.   They cross the red line, however, when they try to determine if a candidate has children or plans to have children in the future. An interviewer also cannot ask about an applicant’s maiden name or marital status.
  • Criminal record: A prospective employer is allowed to ask the applicant whether or not he or she has ever been convicted of a crime that relates to the job, but may be restricted from asking whether the candidate has ever been arrested.
  • Military service: An interviewer cannot discriminate against a member of the National Guard or Reserves. He or she can, however, ask if a candidate will anticipate any extended time away from work. 

Acing the Interview Process

The interview process can be a stressful time for employers and employees alike, but it will be a smoother process if you have a basic understanding of what can and can’t be asked during these initial meetings. 

As a candidate being interviewed, remember that if you’re asked a question which you’re not comfortable answering, or you think may be illegal, be sure to keep a positive attitude and try not to focus on the negative and instead deliver an answer which showcases your ability to fulfill the requirements of the job. For example, you may be asked if you can have a babysitter in a moment’s notice if an unexpected work emergency pops up. In answering this question, you may be concerned that you will be divulging too much information about your family life and, like many mothers, you may fear that they may not hire you because of the responsibilities that come along with motherhood. Rather than answering the specific question about a babysitter, you may instead wish to say “I am very flexible and am able to travel or work late when the need arises.” This answer addresses the interviewer’s question while preserving your privacy and also keeps the conversation going in a positive direction-one which showcases why you are the best candidate for the job. 

As an employer looking to hire a new employee, it’s important that everyone in your organization from the receptionist to the hiring manager who might come in contact with the candidates have a basic understanding of what topics and questions are off limits. You might even consider having a list of approved questions and a list of questions which are prohibited, regardless of the position being filled. These procedures should be a matter of strict company policy and should be reviewed each year to ensure compliance with all discrimination laws. 

Wednesday, April 30, 2014

Protecting Your Business through Tactical Electronic Evidence Management

Email, intra-office messaging and digital image transference are hardly new concepts, however few business owners realize the long-term implications of this style of free-flowing communication, particularly in light of litigation and e-discovery requests. If you are a business owner either engaged in litigation or preparing for possible conflict in the future, one of the best strategies for your company is to implement and maintain an electronic evidence policy for employees. Too often, damaging information, accidental concessions or discriminatory language is casually exchanged between two employees -- believing to be engaged in a private chat -- only to be uncovered by a sweeping e-discovery request from opposing counsel. To avoid this result and protect your business from unnecessary exposure to liability, consider meeting with a business litigation lawyer about your company’s electronic information policies.

Electronically Stored Information and Litigation Holds

Once a civil complaint is filed, both parties are entitled to request and receive evidence from the opponent in a process known as discovery. Requests for information need not be necessarily admissible at a subsequent trial, however any non-privileged information that may be relevant to a party’s claim or defense is discoverable. In the context of electronic discovery, it is considered routine discovery practice to require opponents to place a “litigation hold” on electronically stored information, thereby preventing companies from destroying or erasing data. These holds generally include all emails, voicemails or electronically stored documents. In fact, various software companies have developed products to help organizations manage and store data pursuant to a litigation hold.

Disastrous Consequences for Employers

In preparation for possible litigation, it is vital for your employees to carefully consider all electronic communication, as one pejorative email could bring your case to a screeching halt. In the context of employment litigation, a plaintiff claiming workplace discrimination could prevail, thereby costing your company thousands of dollars, all due to the discovery of derogatory jokes uncovered by electronic discovery. The same is true in the context of any other area of business law wherein one employee admits wrongdoing, breach or fraud in a casual email to a colleague. Once the litigation hold is in place, there is no telling what the opponent could uncover, thereby placing your business at an increased risk of liability.

Speak with a Reputable Business Litigation Attorney Today

E-discovery is a complex area of the law. However, with the proper workplace policies, businesses like yours can work to minimize the potential consequences of the vast, boundless litigation hold and can rest assured that office emails do not contain inadvertent confessions, admissions or disclosures. If you are facing upcoming litigation and are seeking counsel on these issues, it’s important that you contact an experienced attorney with extensive knowledge on electronic evidence and information policies.


Saturday, January 25, 2014

Are Job Applicant Criminal Background Checks Legal?

Are Job Applicant Criminal Background Checks Legal?

“You can never be too cautious.”

“An ounce of prevention is better than a pound of cure.”

These and other common sayings may make it seem like a smart business move to conduct criminal background checks of all job applicants and exclude any applicant who has ever been arrested for, or convicted of, any crime in the past.  Why hire a person with a criminal record when, surely, there are applicants out there with unblemished records?

In reality, however, the issue of job applicant criminal background checks is a complicated one.  It is not illegal to conduct a criminal background check, but employers must be careful about how they use the results of these background checks to exclude applicants.  

In some cases, it may be illegal discrimination for an employer to exclude an applicant because of the results of the background check.  For example, in January 2012, the U.S. Equal Employment Opportunity Commission (EEOC) reached a settlement with Pepsi Beverages regarding this precise issue.  Pepsi had a policy and practice of excluding job applicants who had arrest records but no convictions, as well as excluding applicants with convictions for minor crimes along with applicants convicted of more serious offenses.  The EEOC’s investigation determined that Pepsi’s policy unfairly excluded a higher number of African Americans from the job applicant pool.  Pepsi reached a settlement with the EEOC – making financial payments to affected job applicants, offering jobs to qualified applicants who had previously been excluded, and changing its background check policy.

The EEOC’s guidance on criminal background checks for job applicants is as follows:  Generally, any criterion used to screen job applicants must be relevant to the applicant’s ability to perform the job in question.

  • An arrest record is rarely, if ever, relevant because under American law, everyone is innocent until proven guilty.
  • Convictions for minor crimes may also be irrelevant and should not be considered.  As an example, a conviction for underage drinking may not be relevant, unless the person is applying for a bartender job where he or she has the responsibility to check identification.
  • Convictions in the distant past are rarely, if ever, relevant to an applicant’s ability to perform a job unless the conviction relates to the job in question.  For example, a conviction 20 years ago for writing one bad check may not be relevant to a job as a lifeguard.  However, if the job is for a position in a bank, then the conviction may still be relevant to the applicant’s ability to perform that job honestly.

Business owners and hiring managers are to be credited for wanting their workplaces to be safe and staffed by honest, trustworthy employees.  It is important, however, for employers to make sure that it uses the results of job applicant background checks in a fair manner to prevent illegal discrimination.  

Saturday, October 5, 2013

Eight Common Mistakes Employers Make

Eight Common Mistakes Employers Make

American employers are subject to countless federal, state and local laws, imposing various requirements, including wage and hour and anti-discrimination laws. Unfortunately, many employers – particularly small businesses – are unaware of their obligations and violate various worker protection laws, often resulting in expensive lawsuits, civil settlements and criminal fines. Here are some common, costly mistakes employers make:

Misclassifying Non-Exempt Workers as Exempt
Generally, all workers are entitled to overtime pay and subject to minimum wage requirements. However, some employees – typically executive, managerial or professional employees – are “exempt” and receive a flat salary without overtime pay. The exemption only applies in certain situations, however, and many employees have improperly classified workers as “exempt” when they are legally entitled to overtime wages and minimum wage requirements.

Misclassifying Employees as Independent Contractors
Determining whether a worker is an employee or independent contractor depends on the level of independence or control the worker has in completing his or her tasks; the less control exercised by the worker, the more likely he or she will be classified as an employee. Factors to consider include how the worker is compensated, whether the worker faces any risk of loss in the transaction, whether the company pays the worker’s business expenses, whether the company can withhold payment for non-performance, and whether your industry as a whole considers workers in similar positions as employees or independent contractors.

Failing to Train Supervisors Regarding Employment and Labor Laws
Employment laws prohibit employers from taking action against an employee for certain reasons, including discrimination on the basis of a protected characteristic such as race, religion, etc. Employees are also protected from retaliation for complaints of discrimination or illegal activity. It is vital that supervisors be trained to manage their employees in accordance with all applicable laws.

Failing to Use an Employee Handbook
An employee handbook informs employees about the employer’s values and policies, and facilitates compliance with employment and labor laws.

Failing to Properly Document Employee Job Performance
Proper documentation clearly establishes the employer’s expectations and where the employee failed to reach them. Written job descriptions and employee evaluations serve as training tools, performance measures and critical evidence in the event you have to terminate an employee.

Failing to Accommodate Disabled Workers
The law not only prohibits employers from discriminating against those with disabilities, it also imposes a duty on employers to “reasonably accommodate” their disabled employees, so they can perform essential job functions. Accommodations may include assistive devices, a modified work schedule or a restructuring of job duties.

Failing to Comply with Wage Payment and Notification Requirements
Many states require employers to pay their employees in a certain manner, and provide written notice of pay periods and amounts. Failure to comply can subject the company to penalties.

Failing to Obtain Releases from Terminated Employees
When firing an employee, companies should obtain a signed release from the employee, waiving the employee’s right to pursue a legal claim against the employer. Often, this release is signed in exchange for a severance payment.

Thursday, September 5, 2013

Eligibility to Work in the United States

Eligibility to Work in the United States

The United States government offers a number of work visas, enabling foreign-born nationals to legally enter and work in the U.S. These visas are non-immigrant visas, meaning they are issued for a specific period of time, but most work visas can be renewed, enabling the worker to remain in the U.S. for a longer period of time. Each work visa imposes different requirements on the applicant, and there are work visas available for a variety of jobs.

Work visas include the H-1B and H-2 Work Visas, the H-3 Trainee Work Visa, the O-1 Extraordinary Ability Work Visa, the P Athlete/Entertainer Work Visa, the E-1 Treaty Trader Work Visa, the E-2 Treaty Investor Work Visa, and the R-1 Religious Work Visa. Additionally, students in the U.S. on a student visa may be authorized to work on Curricular Practical Training or Optional Practical Training.  Citizens of Mexico or Canada may qualify for the North American Free Trade Agreement (NAFTA) Work Visa, provided the applicant meets all of the requirements and his or her profession is on the NAFTA list.

The most common work visas are the H-1B Work Visa for Persons in Specialty Occupations, the H-2AWork Visa for Seasonal Agricultural Workers, and the H-2B Work Visa for Temporary or Seasonal Non-Agricultural Workers.

The H-1B Specialty Occupation Visa can be issued to workers in positions which require the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education. This visa can also apply to other professionals, including fashion models, those working on government-to-government research and development, and those working on projects administered by the Department of Defense.

H-2A Seasonal Agricultural Visas allow U.S. employers to bring foreign nationals into the country to perform temporary agricultural jobs for which U.S. workers are not available. In addition to demonstrating that U.S. workers are not available, employers must also show that employment of these workers will not have adverse effects on the working conditions and wages of similarly employed U.S. workers.

The H-2B Seasonal Non-Agricultural Visa is similar to the H-1B in that the employer must show that the employment is temporary, that there are insufficient U.S. workers to perform the job, and that there will be no adverse effects on U.S. workers. The H-2B differs, however, in that there is a statutory maximum, or cap, on the total number of aliens who may be granted the H-2B visa in any given fiscal year. Once that cap has been reached, visa petitions may only be accepted for H-2B workers who are exempt from the cap.

Once granted a work visa, the holder is entitled to obtain a drivers license or state-issued ID in the United States, open bank and credit accounts, and travel in and out of the U.S. A visa holder’s spouse and children may be granted visas, as well, but they will not be permitted to work in the United States. When in the U.S. on a work visa, the foreign national retains his or her passport, and is only issued a United States passport upon naturalization as a U.S. citizen.

Thursday, August 15, 2013

Employers and Immigration Compliance

Employers and Immigration Compliance: What You Need to Know

The Immigration and Nationality Act (INA) makes it illegal for employers to knowingly hire undocumented workers and requires employers to verify each worker’s identity and eligibility by completing the I-9 Form. An employer’s failure to complete the I-9 Form can result in criminal and civil penalties.

The INA also protects individuals from employment discrimination based upon national origin, citizenship or immigration status. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) enforces the INA’s anti-discrimination provisions.  Victims of discrimination may file a complaint with the OSC to seek back pay, reinstatement and other remedies.

With so much at stake and so many potential pitfalls, it is important for all employers to familiarize themselves with the requirements and implement policies and procedures to ensure compliance.

Employers are prohibited from:

  • Discriminating on the basis of citizenship or immigration status, with respect to hiring, firing, recruitment or referral. This rule applies to employers of four or more employees.
  • Discriminating on the basis of national origin, with respect to hiring, firing, recruitment or referral. This rule applies to employers of between three and 15 employees. Employers may not extend different treatment to different individuals based on their birth place, country of origin, native language, ancestry or because they may look or sound “foreign.”
  • Requesting more or different documents to verify a worker’s employment eligibility. An employer may not request different or additional documents for determination of citizenship or national origin than those documents specified on the I-9 Form.  Furthermore, an employer is not permitted to reject genuine-looking documents.
  • Retaliating against an individual who files charges with the OSC, cooperates with an investigation or contests an action that may be considered discriminatory or in violation of the INA.

To improve compliance in your employment procedures, consider implementing the following practices:

  • Refrain from using discriminatory language in job postings, such as “green card only” or “U.S. citizen only,” unless it is required by law or by a government contract.
  • In completing the I-9 Form, do not request specific documents over other permitted documents. Each employee is permitted to present any document from the list of acceptable documents stated on the form.
  • Refrain from selectively verifying work eligibility for only certain employees based on their citizenship status or national origin; whatever your policy, make sure it is applied consistently to all employees.
  • Avoid the appearance of discriminatory practices by verifying employment eligibility only after you have made a hiring decision, and give the employee three days to provide the required documentation.
  • Do not immediately terminate an employee if you receive a “no match” letter from the Social Security Administration. While such a letter may mean the individual is not authorized to work in the United States, it is also possible that there is a discrepancy in the record due to a clerical error or legal name change.
  • If you suspect that an employee is not legally eligible to work in this country, notify the employee and request valid employment eligibility documents before terminating or suspending employment.

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