Labor Employment Law Blog

By Dawn Lurie and Catherine Risoleo 

In the summer of 2011, the Georgia and North Carolina legislatures each passed laws mandating the use of E-Verify for private companies. Employers were phased over time to the U.S. Citizenship and Immigration Services’ (USCIS’) online electronic employment eligibility program based on the size of the company. On July 1, 2013, the final phase of the states’ programs take effect, requiring Georgia employers with over ten (10) employees and North Carolina employers with over twenty-five (25) employees to begin using the E-Verify system. The mandatory usage of E-Verify for private and public employers is expanding with nine (9) states mandating use of the system for new hires. With a patchwork quilt of E-Verify state laws, national employers must be vigilant in keeping up with laws and regulations in different states.

By Dawn Lurie, Catherine Risoleo & Jennifer Blloshmi

This spring U.S. Customs and Border Protection (CBP) began implementation of a phased in Form I-94, Arrival/Departure Record, automation process. The Form I-94 is issued to all visitors entering the U.S. and assists CBP in tracking temporary non-immigrants, visa overstays, and other relevant information concerning foreign nationals entering the U.S. The new program created a paperless admission process with the ultimate goal of eliminating the paper I-94 card for foreign travelers. The automation enables CBP to organize admission data for sea and air entries easily and accessibly, saving an estimated $15.5 million per year in related costs (not from a reduction in paper). While the effort to move to an electronic system should be commended, the new system may make life a bit more complicated for employers sponsoring foreign workers due to the requirements of the Form I-9, Employment Eligibility Verification Form process. Travelers, with the exception of asylees and refugees who will continue to receive paper Form I-94 cards, will now receive an admission stamp together with a tear sheet providing instructions on how they may access and print their electronic Form I-94 by visiting www.cbp.gov/I94.

By Lisa Lewis and Ryan Duffy

As we detailed in a previous blog post (available here), in September 2012, Governor Cuomo signed into law new legislation which permits employers to make additional deductions from employees’ paychecks. Among other things, the bill amended Section 193 of the New York Labor Law to authorize employers to make deductions from an employee’s wages to recover accidental wage overpayments, or to make deductions in connection with repayment of a salary/wage advance. Although the statute became effective on November 6, 2012, under the law, such deductions could only be made subject to regulations to be promulgated by the New York Department of Labor. This guidance came on May 22, 2013, when the Department of Labor published its proposed regulations for wage deductions under Section 193. In addition to addressing the procedures for deductions for overpayments and advances, the proposed regulations also provide clarification on deductions that may be taken “for the benefit of the employee.” The proposed regulations (available here) are currently open for public comment until July 6, 2013, meaning the Department of Labor will likely finalize and then codify its regulations later this summer.

By Dawn Lurie and Catherine Risoleo

On May 30, 2013, the Department of Homeland Security (DHS) extended Temporary Protected Status (TPS) for El Salvadorians for an additional 18 months beginning September 10, 2013, and ending March 9, 2015.

What does this mean for employers?

For companies whose workforce may include individuals with TPS from El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria, is critical to be familiar with the work authorization benefits of TPS to avoid issues in the Form I-9 employment eligibility verification process.

By Dawn Lurie 

“Yes, we use E-Verify.” “Of course, our company is in compliance, we did an I-9 audit a few years ago – isn’t that the same as E-Verify?” “I know this is not an issue, because I remember being told we addressed all I-9 and E-Verify issues.” “No, the General Counsel’s office doesn’t handle immigration issues.”

You get the picture. Many companies simply do not take immigration compliance seriously. This failing usually does not come from a disinterest in compliance, but rather from a threshold failure to understand the intricacies involved in immigration issues or the potential exposure that could result from noncompliance. Only when faced with government investigations, public scrutiny, or other negative impacts on the business do the right people in the right places start to pay attention. When they learn that federal contractors can be suspended or debarred for failing to adhere to immigration and E-Verify related issues that attention is heightened.

By Brian Murphy and Jonathan Sokolowski

On May 29, 2013, the United States Court of Appeals for the Second Circuit issued its opinion in Cuevas v. Citizens Financial Group, Inc. and RBS Citizens, N.A., Case No. 12-2832, reversing the Eastern District of New York’s grant of Rule 23 class certification to a putative class of Assistant Branch Managers (“ABMs”) alleging that they were denied overtime. In a summary order, the Court held that the District Court failed to resolve factual disputes concerning the duties performed by putative class members, which were material to its ability to issue a ruling concerning commonality under Rule 23(a) and predominance under Rule 23(b)(3).

By Marlene Nicolas, Tina Rad, and Gregg Fisch

An employer’s reluctance in hiring an applicant with a criminal history is understandable and sensible. Employers have an obligation to ensure a safe workplace, can be fined for failing to enact safeguards against workplace violence, and face liability for negligent hiring and retention of employees who commit violence in the workplace. Furthermore, a job applicant’s honesty and judgment are relevant factors to consider in assessing an applicant’s suitability for a job. For these reasons, employers frequently feel the need to inquire about an applicant’s criminal conviction history and use criminal background checks when making hiring decisions. However, a recent increase in laws banning, or significantly limiting, an employer’s ability to inquire about an applicant’s criminal history, requires that all employers examine their current criminal background check policies and practices to ensure compliance with applicable laws.

By Thomas Kaufman

On Tuesday, the Ninth Circuit decided Leyva v. Medline Industries, Inc., reversing an order denying class certification in a wage and hour case.  The decision represents the first interpretation from the Ninth Circuit of the scope of the Supreme Court’s decision in Comcast Corp. v. Behrend that addressed the requirements for class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure.   As discussed below, the Ninth Circuit squarely rejected the interpretation of Comcast that some commentators had advanced that the requirement to individually calculate damages for each class member generally should preclude class certification.  Beyond that, the decision does not break substantial new ground.

By Brian Arbetter and Terese Connolly 

China has a new employment law. This new law significantly impacts an employer who does not directly employ its own workers, but instead uses agencies such as FESCO or third party staffing companies, also known as labor dispatching agencies. At the end of 2012, the Standing Committee of the National People’s Congress adopted the Decision on the Revision of the Labor Contract Law of the People’s Republic of China (“Amendment”). The Amendment will take effect July 1st of this year. The intent of the Amendment is to offer better protection to workers employed by labor dispatching agencies.

Labor dispatching is a common method of employment where a worker enters into an employment contract with a labor dispatch agency and is then dispatched to work in another company – commonly referred to as the “host company”. This type of employment arrangement has proved problematic because many of the dispatched workers are not paid wages commensurate with their work as compared to their direct hire, permanent employee counterparts. Additionally, the dispatched workers’ health and safety rights are not well protected. The Amendment tackles this problem by requiring employers to hire the majority of their workforce directly and by strictly controlling the number of dispatched laborers. Moreover, the Amendment clearly states that all employers shall stick to the principle of “equal pay for equal work”.

By Brian Arbetter and Terese Connolly

Mexico’s new Federal Labor Law (FLL) took effect on December 1, 2012. The reform seeks to modernize Mexico’s labor law. The new FLL’s major, employment related amendments include increased regulation of outsourcing jobs, increased flexibility in hiring and payment of wages, the addition of the concepts of diversity, nondiscrimination and anti-harassment, and parental leave rights.

Previously, companies entering Mexico would set up two entities, one of which would be used to outsource employment to avoid paying worker benefits, including avoiding Mexico’s mandatory 10% employee profiting sharing requirement. Now, among other requirements, employers may only outsource employees if the outsourced employees perform work of a specialized character. In other words, under the new FLL, companies will need to evaluate the way they are structured or risk paying all employees (outsourced or otherwise) all employment related liabilities (such as notice requirements, severance payments, profit-sharing and social security).