Remind Us Not to Post On Moving Targets!

By Glenn Rissman on March 19, 2015 Posted in Immigration, Legislation & Regulations

The latest development in the H-2B saga came yesterday. The federal district court at the heart of the controversy decided to temporarily stay its order that had vacated the U.S. Department of Labor’s 2008 H-2B regulations. The court stayed its decision through April 15. The court did not have much sympathy for the DOL’s lack of a contingency plan but stated, “given that there are numerous United States employers who rely on the H-2B program to fill their temporary labor needs, the Court agrees that the requested temporary relief is warranted.”

According to its website, the DOL will begin processing H-2B applications under the 2008 rule and will continue to do so through April 15, 2015. Under the terms of the district court’s order, any application for certification or prevailing wage determination that has not completed DOL processing by the time the stay ends on April 16, 2015, may no longer be processed under the 2008 H-2B rule.

As we previously posted, the DOL and U.S. Citizenship and Immigration Services intend to issue an Interim Final Rule on the H-2B program by April 30.

H-2B Update

By Glenn Rissman on March 18, 2015 Posted in Immigration

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Yesterday, we posted about the current suspension of the H-2B temporary, unskilled worker program. After we posted, the Department of Homeland Security (DHS) announced that it will resume adjudications of H-2B petitions, but will continue to suspend premium processing on H-2B petitions until further notice. DHS will resume adjudicating H-2B petitions based on temporary labor certifications already issued by the Department of Labor.

On March 16, 2015, the Department of Labor (DOL) filed an unopposed motion to stay the March 4 order of the U.S. District Court for the Northern District of Florida in Perez v. Perez until April 15. That order vacated DOL’s H-2B regulations on the grounds that DOL had no authority under the Immigration and Nationality Act to issue the regulations. The district court’s decision on the DOL motion will determine whether the DOL can resume issuing prevailing wage determinations and processing temporary labor certification applications under the H-2B program.

Unskilled, Temporary Worker Program Suspended: Seasonal Employment At Risk

By Glenn Rissman on March 17, 2015 Posted in Immigration

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Both the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) have suspended all processing under the H-2B program, which many employers use to hire seasonal workers. The decision may impact staffing at hotels and country clubs that often use temporary, unskilled workers during their busy seasons from October to May.

On March 4, a federal district court in Florida found that the Department of Labor did not have authority to issue regulations governing the H-2B program and vacated the DOL’s 2008 regulations. Shortly thereafter, the DOL announced that it would stop processing applications for prevailing wage determinations under the H-2B program and processing the temporary labor certification applications required under the H-2B program. On March 5, the USCIS announced that it would suspend processing on pending H-2B petitions, effectively shutting down the H-2B program.

Same-Sex FMLA Coverage: Where You Were Married, Not Where You Live

By Andrew Rodman on March 10, 2015 Posted in Disability & Leave, Legislation & Regulations

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Effective March 27, 2015, the FMLA’s definition of “spouse” will expand to include an FMLA-eligible employee in a lawful same-sex or common law marriage, even if the marriage is not recognized in the state in which the employee lives or works. This change will provide all legally married couples (opposite-sex, same-sex, or married under common law) with consistent federal leave rights throughout the country (though states may provide greater protection than federal law).

In the case of a marriage entered into outside of the United States, if the marriage is valid in the place in which it was entered, and could have been entered in at least one state in the United States, then it will be recognized for FMLA purposes.

Under the prior rule, which remains in effect until March 27, an employee could only take FMLA leave to care for a same-sex spouse if the employee resided in a state that recognized same-sex marriage.

REGISTRATION OPEN! 25th Annual Labor & Employment Law Seminar

By Robert Turk on February 19, 2015 Posted in Employee Benefits & Compensation, Employment Contracts & Corporate Issues, Labor Law

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Wow, how time flies! We are quickly approaching our 25th Annual Labor & Employment Law Seminar this Spring. Mark your calendars now because this year’s seminar is not to be missed! Join us on Friday, May 8th from 8 am-4:00 pm at the InterContinental Miami hotel as we reveal top tips and advice from “Our Book of Secrets!”

Your mission, should you choose to accept it:

Step 1: Register here.

Step 2: Attend seminar.

Step 3: Learn about: Continue Reading

6 Words That Cost an NBA Star $25,000

By Andrew Rodman on February 9, 2015 Posted in Discrimination & Harassment

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Another sports blunder creates another blogging opportunity.

In the 3rd quarter of the Los Angeles Clippers/Cleveland Cavaliers NBA game last Thursday night, the Clippers’ All-Star guard, Chris Paul, received a technical foul after he questioned a rookie referee.

The referee happened to be a female, Lauren Holtkamp.

Do you see where this is headed?

In a post-game interview, Chris Paul voiced his frustration:

I think we have to show better composure, but at the same time, some of [the technical fouls] were ridiculous . . . The tech that I get right there was ridiculous. I don’t care what nobody says. I don’t care what she says. That’s terrible. There’s no way that can be a tech. We try to get the ball out fast every time down the court, and when we did that, she said ‘Uh-uh.’ I said, ‘Why, uh-uh?’ And she gave me a tech. That’s ridiculous. If that’s the case, then this might not be for her.

EEOC Decides to Peel the “Onionhead” on Religious Discrimination

By Stearns Weaver Miller on February 4, 2015 Posted in Discrimination & Harassment, Employment Litigation

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Why would an employer force its employees to tell each other “I love you” or require employees to “thank God for their employment”?

According to a lawsuit filed by the EEOC in New York federal court, the owners of United Health Programs of America and Cost Containment Group subscribe to the belief system of “Harnessing Happiness,” more commonly known as “Onionhead” for the character that represents the system’s tenets. The Onionhead belief system is based on, among other things, the notion that love is what is most important and apparently the employer wanted its employees to also feel that love and share it with each other.

We know we can part the sea and make one fish into five thousand

Forms Over Substance – Fair Credit Reporting Act Authorization Form Litigation

By Stearns Weaver Miller on January 30, 2015 Posted in Employment Litigation, Hiring/Termination

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Employers rely on background screening as part of the hiring process. Recently, numerous large, well-known employers have been accused of failing to comply with the Fair Credit Reporting Act (“FCRA”). Why is this happening? The issue is the legality of the forms these employers may be using to obtain applicants’ authorizations to collect background information.

An employer using a third party consumer reporting agency to collect background information on a prospective employee must follow several steps:

The 24 Year Journey – Did Absence Make the Heart Grow Fonder?

By Stearns Weaver Miller on January 21, 2015 Posted in Disability & Leave, Hiring/Termination, Legislation & Regulations

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How’s this for news? A.K. Verma, an engineer for the Central Public Works Department (CPWD) in India, was recently fired after last showing up for work in December 1990.

Verma left work sick one morning in 1990. He requested leave and then sought an extension of his initial leave. Though the request for an extension was denied, Verma refused to return. In 1992, an inquiry was launched finding Verma guilty of “willful absence from duty,” but not much else happened. Verma was considered to be “on furlough.” In 2007, charges were brought against Verma by the then-Minister of Urban Development. Still, not much else happened.

It was only after the new Minister of Urban Development took office in March 2014 that Verma’s file — which had been sitting idle since 2007 — was reviewed. Though government jobs in India are considered by some to be “for life,” Verma finally pushed his luck a little too far. He was terminated this month, more than 24 years after he left work that morning. The CPWD’s reasoning – the termination was required to “streamline the functioning of the CPWD and to ensure accountability.” Especially since Verma was getting paid, it is difficult to argue with that logic.

USCIS Extends Temporary Protected Status for El Salvador

By Glenn Rissman on January 16, 2015 Posted in Immigration

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Employment Authorization Documents Automatically Extended

The U.S. Citizenship and Immigration Services (USCIS) recently extended the Temporary Protected Status designation for El Salvador for a period of eighteen (18) months, until September 9, 2016. Temporary Protected Status (TPS) is a temporary immigration status granted to eligible nationals of designated countries because the country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of that country from returning safely or prevent the country from handling their return adequately. There are currently several countries designated for TPS, including Nicaragua, Honduras, and Haiti.

Qualifying individuals from El Salvador may re-register for TPS status by filing Form I-821. Applicants can also apply for a new Employment Authorization Document (EAD) by submitting Form I-765. The EADs of El Salvadorans currently in TPS status will be automatically extended for a period of six months, through September 9, 2015. The automatic extension is limited to EADs with an expiration date of March 9, 2015. The EADs must also bear the designation “A-12” or “C-19” on the face of the card under “Category” to qualify for the six month extension. Eventually, qualified individuals will receive new EADs valid to September 9, 2016.