Provide the individual with a “Disclosure & Authorization” form. [Version 1] [Version 2]
Obtain his/her signature (electronic signature is OK)
Provide the individual with “A Summary of Your Rights Under the Fair Credit Reporting Act”
(Extra) Provide any required state-specific disclosures
It’s time to begin preparing H-1B petitions for an early April filing and October 1, 2016 effective date.
What is H-1B Classification?
The H-1B classification provides work authorization to foreign nationals seeking long-term, but temporary, positions in “specialty occupations” with U.S. employers. A specialty occupation is one which requires theoretical or technical expertise in specialized fields including, but not limited to, architecture, engineering, business, mathematics, science, arts, law and medicine, and which require a bachelor’s degree or higher.
On December 17, 2015, the U.S. Department of Justice (DOJ) announced that its Environmental and Natural Resources Division (ENRD) will increase efforts to work with the U.S. Department of Labor (DOL) to investigate and prosecute crimes related to workplace violations. According to the DOJ’s Deputy Attorney General Sally Quillian Yates, “On an average day in America, 13 workers die on the job, thousands are injured and 150 succumb to diseases they obtained from exposure to carcinogens and other toxic and hazardous substances while they worked.” As such, Ms. Yates said the DOJ is “redoubling its efforts to hold accountable those who unlawfully jeopardize workers’ health and safety.”
The Federal Aviation Administration (FAA) and the Occupational Safety and Health Administration (OSHA) have once again teamed up to coordinate efforts in enforcing a federal air carrier safety law. These agencies recently released a Memorandum of Understanding (MOU), the purpose of which “is to facilitate coordination and cooperation concerning the protection of employees who provide air safety information under . . . 49 U.S.C. § 42121,” the whistleblower protection provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21). This agreement replaces a previous MOU between the agencies dated March 22, 2002, but the agencies’ other previous MOU, from August 26, 2014, remains intact.
Congress has agreed to an omnibus appropriations bill, which contains a number of immigration-related provisions. Though the vote on the bill is set for December 18, it is widely expected to pass. In it, Congress has agreed to extend the EB-5 Regional Center program without change until September 30, 2016. The EB-5 Regional Center program permits foreign nationals to obtain a green card if they invest at least $1,000,000 ($500,000 if invested in a targeted employment area) in a U.S. business that creates at least 10 jobs for U.S. workers. Several bills have been introduced over the past year to reform the EB-5 program; however, House and Senate leaders were unable to agree on the changes to the program before it was to expire on December 16. Look for changes to the program in upcoming months.
On November 30, 2015 the DOT issued its final rule prohibiting coercion of commercial drivers, which expands the current whistle-blowing provisions jointly administered by the Department of Labor and the Department of Transportation via a Memo of Understanding issued last year. The main point of expansion is that now a covered driver is protected not only from discharge, discipline or discrimination for engaging in certain protected activities (focusing on safety regulations issued for this industry), but it now includes “coercion” of such drivers not only as to safety violations, but also as to any violations of commercial regulations that would apply to “motor carriers, shippers, receivers or transportation intermediaries.” The regulations are quite vague regarding what “coercion” shall consist of, stating the DOT will investigate any “non-frivolous” claim that a motor carrier, shipper, receiver or transportation intermediary, or their respective agents, officers, or representatives, have threatened to or actually withheld business, employment or work opportunities from, or taken any adverse employment action against, a driver in order to induce the driver to operate a commercial motor vehicle under conditions in which the driver would be required to violate one or more of the regulations that are codified within the Federal Motor Carrier Safety Regulations.
Employment litigation is one of the fastest growing sectors of litigation. Employers have done a good deed by educating workers about their rights; unfortunately, this can sometimes result in more claims. Approximately one out of five lawsuits nationwide is filed by a current or former employee. Among the employment cases, retaliation claims specifically continue to grow. In a retaliation claim, the focus shifts to how the company reacted to the original employee complaint, and away from the original complaint.
So, if you are terminating an employee, make sure you follow some basic points:
Hidden away in the Bipartisan Budget Act of 2015 (2015 Budget), signed by President Obama on November 2, 2015, is an obscure provision that will raise the maximum penalties for Occupational Safety and Health Administration (OSHA) violations for the first time since 1990. The financial ramifications of the significantly higher penalties may change how employers evaluate whether to contest OSHA citations.
This week, the Illinois Supreme Court enforced the exclusive remedy provisions of the Illinois Worker’s Compensation Act and the Worker’s Occupational Disease Act (“the Statutes”) for latent diseases, including asbestos-related diseases that fall outside the 25-year limit of the statute of repose. The Court’s 4-2 decision in Folta v. Ferro Engineering, No. 118070 (Ill. Sup. Ct.) means plaintiffs can no longer successfully argue that the long latency period for mesothelioma renders their asbestos claims “non-compensable” as to their employers. Thus, their claims no longer meet that exception of the Statutes’ exclusive remedy bar.
The Department of Homeland Security (DHS) released proposed regulations Oct. 19, 2015, on optional practical training (OPT) for F-1 students with STEM (Science, Technology, Engineering, and Mathematics) degrees enrolled at accredited U.S. colleges and universities. The new regulations propose several changes to the existing regulations, including new burdens on colleges and universities with F-1 students and on employers who employ F-1 students working pursuant to OPT.
