California Labor & Employment Law Blog

CDF LLP has expanded its practice to include advising employers on immigration issues and employment based visas.  We will be hosting a complimentary immigration seminar at our Sacramento office on March 11, 2010 from 11:30 a.m. to 1:00 p.m., and at our Los Angeles office on April 7, 2010 from 11:30 a.m. to 1:00 p.m.  These seminars will cover recent immigration developments and employment-related basics including the following:  Compliance With New I-9 Regulations, E-Verify, ICE Enforcement, and Visa basics for employers.  For more detailed information and to register, please click here for Sacramento registration and here for Los Angeles registration.
 

By Suzanne Brummett

For employers sponsoring a foreign national employee for a green card, the process can take years, even for top talent.  Holding onto these key employees, particularly in the area of research and development, is a priority for companies seeking to maintain their competitive edge.  So what are the alternatives?  For researchers, there is the outstanding researcher category.

So what do you need to prove up such a case to U.S. Citizenship & Immigration Services?  An employer can sponsor an individual who is recognized internationally in a specific academic field, has three years experience in research, and the private employer has at least 3 full-time employees engaged in research activities in the department.

What evidence must be submitted?  The regulations outline specific criteria to be submitted which include at last two of the following (but more is better):  (1) receipt of major prizes or awards for academic achievement; (2) membership in associations requiring outstanding achievements of their members; (3) published material in professional publications written by others about the applicant’s work in the academic field; (4) participation as the judge of the work of others in the same or an allied academic field; (5) original scientific or scholarly research contributions; (6) authorship of scholarly books or articles in scholarly journals with international circulation in the academic field.

Individuals who may qualify for this category include researchers, scientists, or others who conduct research.  For more information, contact Suzanne Brummett, Senior Counsel within the Immigration Practice Group, at sbrummett@cdflaborlaw.com.
 

By Greg Berk

Employers that are sued by an employee sometimes find out during the course of the litigation that the employee is not authorized to work or be in the U.S.  Such discovery will require the employer to terminate the employee.  However, the terminated employee will still have the right to recover on any meritorious claims arising prior to the discovery, subject to certain limitations.

At the federal level, the leading case is the U.S. Supreme Court decision in Hoffman Plastics v. NLRB.  The Court held that federal immigration law trumps any National Labor Relations Act (NLRA) claims for wrongful termination for alleged union activities, since the plaintiff had no legal right to work or be in the U.S. to begin with.

A corollary to Hoffman is that employers can and should terminate employees who have no legal right to work in the U.S.  Any other result would place the employer at odds with federal I-9 rules regarding liability for knowingly hiring or retaining unauthorized workers.  Hoffman Plastics shields employers from wrongful termination claims in this circumstance.  The employer may still be liable for any wage/hour or other meritorious employment claims arising prior to termination.

In California, the leading case is Rodriguez v. Kline, which held that immigration status can only be introduced at trial in regards to the plaintiff's future earnings since the plaintiff has no legal right to be in the U.S.  Immigration status is irrelevant as to any other meritorious claim covering the period while the plaintiff was actually employed.  And as to future earnings, that would be calculated based on the plaintiff's home country wage standards, not California wages. 

Employers are wise to consult with counsel prior to termination of an allegedly undocumented worker in order to thoroughly review the I-9 and to accurately confirm that the employee is in fact not authorized to work in the U.S.

For assistance with employment-related immigration needs, please contact the chair of Carlton DiSante & Freudenberger's immigration practice group, Greg Berk.

By Greg Berk and Suzanne Brummett

The U.S. Attorney in Boulder, Colorado has filed a criminal indictment against the owner of several Thai restaurants for various employment tax and immigration violations.

The owner brought in workers from Thailand on employment visas to work at his restaurants. However, he denied them overtime pay and insisted on paying part of their wages in cash.  He then intentionally under-reported their pay to the IRS to avoid paying increased payroll taxes.  If convicted, he faces up to 20 years in prison and $250,000 in fines for each criminal count.

Foreign nationals working in the U.S. are entitled to the same statutory employment protections as U.S. workers.  Any conduct by an employer to exploit an individual based on immigration status is a violation of both federal and state employment and criminal laws.

Carlton DiSante & Freudenberger's immigration practice group is available to assist employers with questions that may arise regarding the employment of foreign nationals on work visas as well as I-9 compliance.  In addition, our employment law attorneys are available to assist employers in making sure that their compensation practices can withstand state and federal scrutiny.  Employers who are uncertain whether their employment practices are fully compliant with all federal and state laws may want to consider having an audit conducted by counsel.  The consequences of non-compliance can be enormous.

To see the full press release regarding the indictment of the restaurant owner by the U.S. Attorneys Office, click here.
 

By Greg Berk

The Department of Homeland Security (DHS) recently rescinded their proposal to impose a 90-day safe harbor for employers who receive a notice from the Social Security Administration that a social security number being used by their employee does not match the name on file with the Social Security Administration.  Large unions and various business groups feared that work-authorized individuals would accidentally get caught up in the fray and be erroneously terminated.  After protracted litigation, DHS backed down and rescinded the proposed rule.

Many social security mis-match letters are created as a result of women being married and changing their name to something different than what is on file at the Social Security Administration.  Other reasons include typographical errors at the time of hire, individuals who naturalize and change their name, or individuals using a false name that does not match the social security number. 

The rule would have given employers 90 days to resolve the matter without incurring any liability for employing an individual who may lack work authorization.  The rule would have also required that if you and the employee cannot resolve the discrepancy, then it would have required that you fill out a new I-9 for the employee using documents other than a “List C” social security card.  If you failed to do so, you and your company could have been held liable for civil and criminal penalties.  Now that the proposed rule has been rescinded, the key question is where does that leave you, the Employer?

The Social Security Administration is quick to point out that their agency’s authorization to send out a mis-match letter was never dependent on the outcome of the DHS safe harbor proposal.

This area of the law is in flux and there are few “mile markers” on the employment trail.  Nonetheless, one long-standing bright-line rule is that if you receive a letter from social security or otherwise become aware that an employee’s social security number may not be valid, then the law still requires that you take affirmative steps to try to resolve the discrepancy.  This duty existed before the proposed safe harbor rule and still exists today.

Under these facts, if you receive a social security mis-match letter today, you will still be deemed to have “constructive knowledge” that the employee may possibly not be work authorized.  Once you have constructive knowledge, U.S. Immigration & Customs Enforcement (ICE) will expect you to take remedial steps to resolve the discrepancy. 

Although the proposed 90-day safe harbor has been rescinded, it is the opinion of this author that using a self imposed “90 day clock” to resolve these issues is still a good benchmark to utilize for existing employees in the absence of any other government bench mark.  Accordingly, you should make every effort to resolve the discrepancy within 90 days by advising the existing employee to go to social security and obtain proof of having a valid social security number.  If there is no resolution, you should I-9 the individual again using documents other than their social security card.  If they cannot produce valid I-9 documentation, then termination is likely in order.  However, you should first contact counsel to discuss the issues.   

It is interesting to note that employers who use E-Verify only have 10 days to resolve       

a discrepancy for a new hire that receives a tentative non-confirmation (TNC) through the E-Verify system.  One may ask why “new hires” only receive a few days to resolve the matter while it was proposed that “existing employees” receive up to 90 days.  The answer probably lies in the fact that DHS feels that existing employees have a quasi-pre-existing property right (their job) and therefore are entitled to more procedural “due process” before they would be terminated due to discrepancies in their social security number.  New hires on the other hand arguably have a diminished expectation since they just began employment with the employer.

This area of the law is clearly in flux.  For example, federal contractors must now use E-Verify for all new hires, as well as for existing employees working on a covered contract.  As such, in this case, the 90-day benchmark would not even be applicable to existing employees since the E-Verify system only gives the employer 10 days to resolve a tentative non confirmation of work authorization.

In conclusion, Employers should continue to take social security mis-match letters seriously, whether they are issued from the Social Security Administration, Internal Revenue Service, or any other federal agency.  Although the proposed “90 day safe harbor” is gone, the underlying duty to act and resolve the discrepancy remains.  Ignoring these letters or any other evidence which raise questions about an employee’s authorization to work in the U.S. can create civil and criminal liability to you and your company.

While some I-9 and social security number issues can be easily resolved, some are quite complex and require consultation with counsel.  For case specific questions, please contact attorney Greg Berk, Chair of the firm's Immigration Practice Group, at 949-387-6999 or gberk@cdflaborlaw.com.

By Greg Berk

Some employees frequently need to travel abroad.  Managing that process can be important, particularly for those who are working for your company pursuant to visa sponsorship and require a valid visa to re-enter the United States.  Failure to follow proper protocols can result in the employee being refused a new visa or being denied admission at the U.S. port of entry.

For visa purposes, your workforce can be divided up into four categories:  U.S. Citizens, lawful permanent residents (also known as green card holders), foreign nationals who are working for you pursuant to company sponsorship, and foreign nationals that have work authorization independent from your company.

U.S. Citizens do not need a visa to travel temporarily abroad for business or pleasure to many countries – including most of Western Europe, Canada, Mexico, and many other countries.  However, it is very important to check before sending that U.S. Citizen employee abroad.  

Lawful permanent residents (green card holders) would need a visa to visit most countries, but would not need one to return to the U.S.

Foreign nationals that are employed pursuant to sponsorship by your company will frequently need a visa to visit countries abroad other than their home country.  And in most instances, they would require a visa to return to the U.S.  The most common visa categories your foreign national employees may need to obtain at a U.S. Consulate abroad include H-1B professionals, L-1 managers, L-1 specialized knowledge workers, F-1 university graduates working on optional practical training (OPT), and E investors. 

Whether your employee will require a visa to travel abroad or to re-enter the U.S. can be a complex question.  And if they do need a visa from a U.S. Consulate abroad, strict documentation requirements apply as well.

We therefore suggest that prior to any overseas travel by potentially impacted employees, you contact the CDF Immigration Practice Group to make sure "all the ducks are in a row."  For more information, contact attorney Greg Berk, Chair of the Practice Group, at gberk@cdflaborlaw.com or (949) 387-6999.