hiring, firing & business immigration...designated countries to stay in the u.s. for a limited...

Nikole Setzler Mergo David Garrett

HIRING, FIRING & BUSINESSIMMIGRATION

DECEMBER 9, 2015

AGENDA

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‣ Employees with new identities

‣ Latest updates in work authorization

‣ TPS and auto-extension of work authorization

‣ FLSA, FMLA and immigration status

‣ Pros and Cons of electronic Form I-9 systems

‣ Preparing for the end by starting off right

‣ Exceptions to at-will employment

‣ Top 10 best practices for terminating at-will employees

EMPLOYEES WITH NEW IDENTITIES

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‣ How does this happen?‣ Typical Scenarios: DACA or “getting legal”

‣ Is it legal?

‣ What is the employer supposed to do?

‣ OSC Guidance

‣ Honesty Policies

EMPLOYEES WITH NEW IDENTITIES

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‣ Important to get this right… and be consistent:

‣ Lots of press from DOJ to immigrant community

‣ Telephone Hot Lines to the DOJ in ethnic press, acceptsanonymous complaints against employers

WORK AUTHORIZATION UPDATES

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Typical Scenarios

‣ Work Authorization Basics

‣ Work-Authorized Non-Immigrant Visas

‣ Green Cards

Two Recent Favorite Flavors of Work Authorization

‣ Refugees and Asylees

‣ TPS and Auto-Extension of Work Authorization

WORK AUTHORIZATION

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‣ What is this concept of work authorization all about?‣ Genesis in 1986

‣ Diaspora From Reason Issues for Employers after 9/11

‣ Becoming increasingly complex for Employers

‣ Form I-9 and E-Verify are the battlefield

‣ SAVE – Real ID Implementation Hurdles for Employees on work visas

‣ Government Databases being linked together – errors abound

WORK-AUTHORIZED NON-IMMIGRANT VISAS

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‣ What’s a quick take-away on these visas?

‣ Employers who need certain specialized knowledgeemployees are having to become much more creative‣ Practical reality: The most useful/common visa type (H-1B) isn’t

readily available.

‣ Talk with an immigration attorney about company structures andjoint ventures with overseas companies – changing ownershipstructures and forming “qualifying relationships” with overseascompanies can create new opportunities

REFUGEES AND ASYLEES

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‣ Lots of news about refugees and asylum lately. Can thisaffect me?‣ Refugee and Asylum status is granted to people who have been

persecuted or fear persecution on account of race, religion,nationality, membership in a particular social group or politicalopinion.

‣ Refugee status is granted to persons located outside the U.S.

‣ Asylum status is granted to persons already in the U.S.

‣ Both Refugees and Asylees are authorized to work in the U.S.


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‣ Complex work authorization Form I-9 rules

‣ Authorized to work indefinitely because of their status BUT:

‣ Categorized as “aliens authorized to work” but are eligible to receive anunrestricted Social Security Card

‣ These new employees may be confused about their status – and have ordon’t have certain documents that are usually used to show workauthorization

‣ On Section 1 of Form I-9, they do not need to indicate an expiration date –they can put N/A or leave it blank

‣ They may not always have a Passport either. If they don’t have one, they canuse their I-94 number instead of an A number and put N/A in the space forpassport information

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‣ Example of Section 1 for a Refugee/Asylee without aPassport


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‣ Form I-9’s Section 2 documents are even more complex‣ They may possess a variety of documents to prove employment

authorization

‣ Some must be treated under the Receipt Rule

‣ Like all employees, Refugees and Asylees must be allowed tochoose which documents to present to show work authorizationfor Form I-9 purposes, but this can be a practical challenge ifthey do not know what these documents are.

TPS AND DED

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‣ What is TPS and DED?‣ Temporary Protected Status is a temporary humanitarian

program administered by the DHS allowing qualified people fromdesignated countries to stay in the U.S. for a limited time perioddue to certain conditions in their home countries

‣ Deferred Enforced Departure is an order designated by thePresident for groups of people to be protected from enforcedremoval from the U.S. for a limited period of time. ThePresidential Order states whether employment authorization ispermitted

FLSA, FMLA AND IMMIGRATION STATUS

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‣ Use caution with many, but not all, employees with visasworking for the company:‣ Some categories (H-1B, H-2A/B, E-3, etc.) must pay the

“prevailing wage” or the “required wage,” or the “offered wage,”depending on the requirements of the visa.

‣ It’s a FLSA violation to cause the employee’s pay to drop belowthe required wage for any workweek

‣ Benching – employers are prohibited from “benching” an H-1Bworker (i.e., not paying H-1B workers when there is no specificjob available). If the employer is the driving force behind theemployee’s nonproductive status, the employee must be paidthe stated full-time wages even if he or she does not work.

FMLA AND IMMIGRATION STATUS

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‣ The worker on an non-immigrant visa must have accessto the same benefits of all similarly situated U.S. workers.

‣ Cannot be benched, furloughed or otherwise placed in anon-productive state by a decision of the employer.

‣ HOWEVER, the immigration regulations do not limit theemployee’s ability to voluntarily place him/herself in anon-productive state through use of vacation time, sicktime, FLMA or other voluntary leave time.

PROS AND CONS OF ELECTRONIC FORM I-9

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‣ Pros:‣ Can reduce costly errors on Form I-9s

‣ Can streamline employee onboarding

‣ Cons:‣ MOST vendor’s electronic I-9 systems are not fully compliant

with the requirements

‣ The Company is liable, not the vendor.

‣ Many vendor’s agreements are worthless to protect you.

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YOU’RE HIRED. . .NOW WHAT?

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1. On day one, new employees should receive an accurate, up-to-date job description with defined goals and expectations.

‣ Description is important – but more important is what theemployee actually does.

‣ Determine exempt/non-exempt status – be consistent across theCompany.

2. Provide a copy of handbook/work rules.

‣ Ensure signature acknowledgment of same.

PREPARING FOR THE END BY STARTING OFF RIGHT

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3. Adhere to SC Payment of Wages Act/NC Wage and Hour Act:Every new employee must receive “Terms of Employment” form.Retained signed copy in personnel file:

‣ Normal wages agreed upon

‣ Normal hours of work

‣ Time and place wages will be paid

‣ Deductions to be made from wages, including insurance.


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Any changes to these terms must be given in writing at least 7calendar days before they become effective/24 hours for NC.

Must pay all wages due each pay period.

Must give employees an itemized statement showing gross payand all deductions each pay period.


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4. Throughout the employment relationship employees shouldreceive and participate in regularly scheduled performancereviews.

5. If there is an area where improvement is needed, it should bedocumented, documented, documented. Openly discuss issueand determine future course of action, if applicable.

6. Confidentiality Agreement in place in order to enforce return ofconfidential information/consider offset provision.

PREPARING FOR THE END BYSTARTING OFF RIGHT (AND CONTINUING) RIGHT

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“Hello, Nikole . . . Yes, we want to let Wanda go. ..and we want to do it today. Do you have anyproblem with that?

TERMINATION OF AN AT-WILL EMPLOYEE

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The Rule:

Employees at-will may quit or be fired atany time, with or without notice, and with orwithout cause. Either party may terminate at anytime for any reason, or no reason at all.


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But not so fast ...

Or

“It can’t just be right, it has to look right”


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The Exceptions:

1. The Public Policy Exception

‣ Where retaliatory discharge of an at-will employee is a violationof a clear mandate of public policy, a cause of action forwrongful discharge exists.

‣ Arises when employer, as a condition of retaining employment,causes an employee to violate the law.

‣ Criminal law, statutes.

TERMINATON OF AN AT-WILL EMPLOYEE

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The Exceptions:

2. Statutory Exception e.g. --

‣ Non-discrimination

‣ Jury duty

‣ Filing or “initiation” of worker’s comp claim

‣ Disability claim

‣ FMLA retaliation

‣ Political views

‣ Tobacco use outside of work

TERMINATON OF AN AT-WILL EMPLOYEE

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1. Organize your “Paper Trail.”

‣ Ideally, termination should never come as a surprise to theemployee if you have previously communicated properly.

‣ Pre-termination documentation is key

‣ What is in your files?

‣ How confident are you that you have accurately documented the groundsfor termination?

‣ Anything in the files may end up as an exhibit if the employee sues.

‣ E-mail means “Evidence-mail.”

TERMINATION OF AN AT-WILL EMPLOYEE: TOP 10 BESTPRACTICES

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‣ Consult your handbook when considering termination.

‣ Follow to the letter any procedures stated in your handbook relative totermination

‣ At-will disclaimer?

‣ Progressive discipline?

HANDBOOK PITFALLS IN TERMINATION

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2. Seek clearance from legal counsel, as necessary.

‣ Need to ensure no potential retaliation claims.

‣ Have we treated similarly situated employees more favorably?

‣ Did we consider any ADA limitations?

3. Prepare for the termination meeting

‣ Review documentation

‣ Outline what will be said.

‣ Consider who else will be present at the meeting.

‣ Have a witness present to document and observe.


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4. Remember the eyes of other employees are on you. Morale/precedent.5. Communicate clearly.‣ Don’t be distracted from your script.‣ Know the real reason and stick to it.‣ Confusion = litigation.

6. Be professional.‣ Keeping the tone of meeting positive can avoid creating a tense

atmosphere that may make employee more resentful and more likelyto resort to litigation.‣ Be humane, but don’t “sugar coat”.‣ Consider the employee’s reaction and be sensitive to potential

“shock.”


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‣ Be accurate. Make sure all dates and facts are correct.

‣ Be fair. Do not exaggerate.

‣ Be kind; only include what is necessary to justify the decision.

‣ Ask the employee to sign the documentation.

‣ Note if the employee refuses to sign.

‣ Put any documentation relating to the termination in theemployee’s file.

‣ DON’T BACKDATE OR CREATE AFTER-THE-FACTDOCUMENTATION.

GUIDELINES FOR TERMINATION DOCUMENTATION

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‣ If termination documentation is prepared significantly after thefact, you may be handing the terminated employee a factualbasis for “pretext.”

‣ Giving varying reasons for termination also may create aquestion of fact as to pretext.

DOCUMENTATION DYNAMITE

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7. Have all paperwork ready to sign.‣ Release and severance agreement‣ Do we have to have one?

‣ Why would we want to have one?

‣ When to use a release‣ Is the termination one that may result in litigation?

‣ Are you prepared to offer the employee something to which he/shewould not otherwise be entitled?


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‣ How can we be sure the Release Agreement is valid?‣ Must Haves for Enforceability:‣ Reason for termination and effective date

‣ Knowing, voluntary, supported by valuable consideration

‣ State What is Being Released‣ General Claims‣ Specific Statutes – ADEA, Titlle VII, ADA, etc.

‣ If claim under ADEA is being included, the release must:‣ Specifically mention that ADEA claim is being released

‣ Advise employee in writing to consult with counsel

‣ Allow employee 21 days to consider

‣ Allow employer 7 days to revoke.


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8. Post termination obligations?‣ Remind of any non-compete/non-solicitation and confidentiality

agreements‣ Return property? Right to off-set from final paycheck?

9. Document the termination conference. Attempt to obtain employeeacknowledgment signature.

10. Don’t discuss the termination with anyone other than the employee,legal, and those directly involved.


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DEALING WITH THE AFTERMATH

OF TERMINATION

WHY DOES IT MATTER, ANYWAY?

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1. “You owe me unemployment.”‣ Claimant must provide information related to the termination of

employment, including the Claimant’s belief regarding why he/shewas terminated.‣ Where Employer contends the claimant was discharged for

cause, Employer has the burden of proof to establish Claimantwas discharged for cause.‣ Must have witnesses with first hand knowledge testify

POTENTIAL CLAIMS TO DEFEND AND IMPLICATIONS

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2. “You didn’t give me notice when you changed my pay” or“you withheld my money from my final paycheck”‣ Employers who violate the SC Payment of Wages Act/NC Wage

and Hour Act are subject to civil penalties of $100 for eachviolation (SC)/2x(NC) plus 3x the full amount of unpaid wages,costs and attorneys fees in a civil action.‣ All wages due and owing within 48 hours (SC) or next regular pay

period.‣ Disputed wages?‣ Cannot offset unless you gave 7 days prior written notice.

POTENTIAL CLAIMS TO DEFEND AND IMPLICATIONS

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3. “You discriminated and retaliated against me because I am[African American] [pregnant] [disabled] [a woman] [over 40][filed workers’ compensation]”‣ Compensation for lost wages – backpay, front pay.‣ Reinstatement of benefits and position.‣ Compensation for pain and suffering.‣ Attorneys fees and court costs.‣ Punitive Damages.‣ Responding to the charge process: Where’s the proof to demonstrate

employee wasn’t meeting reasonable performance expectations?Where’s the proof that you had a legitimate, non-discriminatoryreason to terminate?‣ Do any emails give rise to a pretext argument?

POTENTIAL CLAIMS TO DEFEND AND RAMIFICATIONS

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4. “You misclassified me as an exempt employee and now youowe me overtime going back two years. And by the way, I’mbringing a class action.”‣ Includes everyone in the same position across the company.‣ Must calculate the overtime due as compensatory damages for

unpaid wages.‣ Going back 2 years (3 years if willful)‣ Liquidated damages – double the award of unpaid wages.

POTENTIAL CLAIMS TO DEFEND AND RAMIFICATIONS

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NEXSEN PRUET

Nikole Setzler MergoNexsen Pruet1230 Main StreetSuite 700P.O. Drawer 2426 (29202)Columbia, SC 29201Phone: 803-540-2042Fax: [email protected]

Dave GarrettNexsen Pruet4141 Parklake AvenueSuite 200P.O. Box 30188 (27622)Raleigh, NC 27612Phone: 919-755-1800Fax: [email protected]

hiring, firing & business immigration...designated countries to stay in the u.s. for a limited...

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