Foley Hoag LLP

SUMMARY

As we have previously reported, immigration enforcement under the current administration is focused on employers which employ unauthorized aliens rather than the workers themselves. Consistent with that focus, Immigration and Customs Enforcement (“ICE”) recently announced that it has conducted a record number of employer I-9 audits. Since January 2009, ICE has audited more than 3,200 employers and imposed approximately $50 million in fines relating to I-9 forms. [more...]

SUMMARY

Contents

1. Exposure to Liability in the Hiring Process

2. Failure to Adequately Document Terms and Conditions of Employment

3. Misclassification Issues
    - Employee or Independent Contractor
    - Exempt or Non-exempt

4. Failure to Comply with Wage Payment Laws

5. Inadequate Protection of Intellectual Property

SUMMARY

On April 1, 2010, the U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions for employment commencing on October 1, 2010. New H-1B petitions are subject to an annual limit of 65,000 new H-1B visas, plus an additional 20,000 visas for foreign workers with an advanced degree from a U.S. academic institution.

SUMMARY

The US Citizenship and Immigration Services (“USCIS”) has initiated a significantly expanded version of its Site Visit Program in an effort to uncover fraud in the H-1B temporary worker program. Because of a funding increase, USCIS is increasing the number of employer site visits, and, in the coming months, many employers who have sponsored foreign nationals for employment-based nonimmigrant petitions will be the subject of an investigation.

SUMMARY

Yesterday, a new federal rule took effect, which requires many federal contractors to use the E-Verify system to determine their employees’ eligibility to work in the United States.  E-Verify is a free web-based system operated by the Department of Homeland Security, in partnership with the Social Security Administration.  The system compares employee information from the Employment Eligibility Verification Forms (I-9) against federal government databases in order to verify workers’ employment eligibility.  Under the new rule, many companies which are awarded a federal contract after September 8, 2009 will be required to enroll in E-Verify within 30 days of the contract award date.  The contractor will need to use the system to verify employment eligibility for all new hires, regardless of whether the employee will work on the federal contract, and also for all existing employees who perform work on the contracts. 

 

SUMMARY

The compensation practices of nonprofit organizations in Massachusetts just became subject to increased scrutiny. The Non-Profit Organizations/Public Charities Division of the Office of the Attorney General of Massachusetts announced yesterday that it is turning its attention to compensation paid by health care systems and health care insurers to their executives and directors. Depending on the outcome of its investigation and new reporting requirements, the Division may expand its review to other sectors.

SUMMARY

Last year, we reported on a federal court decision, Rodrigues v. The Scotts Co., which suggested that an employer can be liable for terminating an employee for engaging in legal but unhealthy off-duty conduct. In Rodrigues, the employer maintained a “wellness plan”, which prohibited employees from smoking cigarettes both on and off the job in order to reduce anticipated medical insurance costs. The plaintiff was fired after he tested positive for nicotine as part of a drug screen. In its original February 2008 decision, the federal court held that the plaintiff had asserted viable claims for invasion of privacy and under the Employee Retirement Income Security Act (ERISA) for unlawful interference with his right to benefits under Scotts’ health insurance plan.

SUMMARY

This is a reminder that the federal minimum wage increases today to $7.25 per hour. A revised federal minimum wage poster can be obtained from the U.S. Department of Labor’s website. For employers with Massachusetts-based employees, the state minimum wage rate continues to be higher at $8.00 per hour.

SUMMARY

Massachusetts recently joined 39 other states and the District of Columbia by enacting a version of the Uniform Prudent Management of Institutional Funds Act (UPMIFA). Most notably, and in contrast to prior law, UPMIFA permits Massachusetts institutions that hold funds exclusively for charitable purposes to tap into endowment funds whose values have depreciated below their “historic dollar values” (i.e., “underwater” endowment funds). The new law, which is effective as of June 30, 2009, also applies to funds held by a trustee for a charitable community trust.

SUMMARY

The Obama Administration announced earlier this year that U.S. Immigration and Customs Enforcement (ICE) would implement a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce. Moreover, the Administration made it clear that this new enforcement effort would be targeted at employers and ICE is now focusing resources on investigating employers suspected of employing undocumented workers.

SUMMARY

Two recent laws, the American Recovery and Reinvestment Act of 2009 (“ARRA,” commonly known as the stimulus package) and the Edward M. Kennedy Serve America Act, provide funding opportunities for nonprofits and social entrepreneurs to expand their services and accommodate additional volunteers. Organizations can apply for ARRA funds immediately. While funding for the Serve America Act will depend upon the 2010 federal budget, organizations may wish to assess their needs now in anticipation of the Act going into effect on October 1, 2009.

SUMMARY

As a result of a new requirement first implemented in 2008, tax-exempt organizations with gross receipts of $25,000 or less may be required to file IRS Form 990-N, the “e-Postcard.” The e-Postcard must be filed no later than the 15th day of the fifth month following the end of the organization's tax year. For example, an organization whose tax year ends December 31 must submit the e-Postcard by the following May 15.

SUMMARY

The recent outbreak of H1N1 influenza virus, or swine flu, in the United States and across the world has prompted the United States government to respond in several ways, including through the use of some of the post-9/11 statutory enactments. It is possible that the HHS Secretary will invoke additional waivers available to her as a result of this outbreak. This memorandum analyzes the statutory authorities available to the Secretary, the means by which they can be triggered, and historical precedent.

SUMMARY

Yesterday, the U.S. Citizenship and Immigration Services (“USCIS”) announced that the annual cap of 65,000 new H-1B visas has not yet been met and that it is continuing to accept new H-1B petitions. To date, USCIS has only received approximately 42,000 petitions to be processed under the new H-1B cap, plus approximately 20,000 additional petitions filed under the special cap for foreign workers with an advanced degree from a U.S. academic institution.

SUMMARY

An increasingly common practice among employers, particularly start-ups, is to enter into agreements with senior managers to defer salary payments until certain financial targets are reached. The employees typically welcome these arrangements because they often own a portion of the business. However, a recent decision by the federal court in Massachusetts warns that these types of arrangements may be unlawful. In Stanton v. Lighthouse Financial Services, Inc., the court held that an agreement to defer the payment of salary violated the Massachusetts Payment of Wages statute and was therefore void.

SUMMARY

The revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. This form must be used for all new hires and for existing employees who require re-verification. Employers are not otherwise required to replace completed I-9 forms with the revised form.

SUMMARY

The Employee Free Choice Act is proposed federal legislation that would greatly improve union chances of winning certification elections and would increase union membership throughout the country. Businesses have identified the EFCA as a serious threat and one that has a good chance of becoming law.

At this point, no one can predict whether the EFCA will pass as proposed, whether it will pass in an amended form, or whether it will pass at all. But, regardless, union organizing activity will likely increase in coming years due to the changed political environment, and employers need to be prepared.

I hope that you find the information in this booklet helpful, and please feel free to contact me if you have any questions.

Sincerely,

Jonathan A. Keselenko
Partner, Labor and Employment Department

Partner, Labor and Employment Department

SUMMARY

Yesterday, the Department of Labor (“DOL”) issued model notices in connection with the recent changes to health insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Under the stimulus law, the American Recovery and Reinvestment Act of 2009, employees who lost their jobs since September 1, 2008 may be eligible for a government subsidy of 65% of the premium cost for COBRA continuation coverage. Employers that sponsor their own group health care plans are required to send updated COBRA notices about these changes. The new model notices from the DOL will satisfy these requirements, and the DOL has created four different models to be used depending on the circumstances.

SUMMARY

A recent decision by the Court of Appeals for the First Circuit is a reminder that employers should think twice before making an example of an employee who engaged in misconduct.  In Noonan v. Staples, Inc., the Court held that a former employer could sue his employer for libel after it sent a truthful e-mail to the workforce about his termination.

SUMMARY

On April 1, 2009, the U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions for employment commencing on October 1, 2009. For most employers, new H-1B petitions are subject to an annual limit of 65,000 new H-1B visas. An additional 20,000 visas are available each year to foreign workers with an advanced degree from a U.S. academic institution. The annual quota only applies to new H-1B visas, not to individuals who already hold H-1B status. Foreign nationals who work at universities and non-profit research organization are also excluded from the numerical cap.