DOL Announces Final Rule on H-2B Certification Program
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- Published on Saturday, 11 February 2012 06:04
The U.S. Department of Labor's (DOL) Employment and Training Administration and its Wage and Hour Division announced a final rule to improve the H-2B temporary nonagricultural worker program. The rule, to be published in the February 21, 2012 edition of the Federal Register, includes changes to the program intended to ensure that U.S. workers receive greater access to jobs. The H-2B program permits the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available, and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year. The DOL had responded to comments received from employers and worker advocates in drafting the final rule which creates a national registry for all H-2B job postings and increases the amount of time during which U.S. workers must be recruited. The rule also requires the rehiring of former employees when available. In addition, H-2B program benefits such as transportation costs and wages will be extended to U.S. workers performing substantially the same work as H-2B workers. Worker protections also will be strengthened by enhanced transparency throughout the employment process. The rule will be effective on April 23. It can be viewed at http://s.dol.gov/MZ. Additional materials, such as fact sheets, are available at http://www.foreignlaborcert.doleta.gov/h-2b.cfm and http://www.dol.gov/whd/immigration/H2BFinalRule/index.htm. Secretary of Labor Hilda L. Solis commented on the final rule, observing that "The H-2B program is designed to help businesses when there is a temporary shortage of U.S. workers…The rule announced today will ensure that the program is used as intended by making these jobs more accessible to U.S. workers and providing stronger protections for every worker." Read More.
10 Steps Employers Should Take To Avoid Immigration-Related Employment Discrimination
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- Published on Tuesday, 27 December 2011 06:08
The Office of Special Counsel (OSC) for Immigration-related Unfair Employment Practices enforces the laws that prohibit discriminatory workplace practices in the recruitment, hiring, employment eligibility verification (“Form I-9”) process or dismissal of persons authorized to work in the United States. The OSC has provided a list of 10 steps an employer should take to avoid discriminatory practices, which are as follows: “(1) Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing; (2) Examine and accept original documents that reasonably appear genuine and relate to the employee; (3) Do not demand different or additional documents as long as the documents presented prove identity and work authorization, are listed on the back of Form I-9, and appear genuine; (4) So long as the job applicants are authorized to work in the United States, avoid requiring job applicants to have a particular citizenship status, such as U.S. citizenship or permanent residence, unless mandated by law or federal contract; (5) Give out the same job information over the telephone to all callers, and use the same application form for all applicants; (6) Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees; (7) Complete the I-9 form and keep it on file for at least 3 years from the date of employment or for one year after the employee leaves the job, whichever is later; (8) On the I-9 form, verify that you have seen documents establishing identity and work authorization for all your new employees—U.S. citizens and noncitizens alike—hired after November 6, 1986; (9) If reverification of employment eligibility becomes necessary, accept any valid documents your employee chooses to present—whether or not they are the same documents the employee provided initially. For reverification, employees need only present either a List A document or a List C document; (10) Be aware that U.S. citizenship, or nationality, belongs not only to persons born within the fifty states, but may belong to persons born to a U.S. citizen outside the United States. Persons born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, or Swains Island also are U.S. citizens or nationals. Finally, an immigrant may become a U.S. citizen by completing the naturalization process.” Read More.
Undocumented Worker Cannot Pursue Refusal To Rehire Claim
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- Published on Monday, 15 August 2011 08:10
In recent case likely to generate a lot of discussion, the California Court of Appeals, 3rd District, decided the significant question of whether an undocumented worker is entitled to pursue a refusal to rehire claim based on disability discrimination under the Fair Employment and Housing Act (FEHA). The case involves Vicente Salas who worked for Sierra Chemical as a seasonal worker. Sierra Chemical is in the pool chemical business. While working for Sierra Chemical, Salas sustained several injuries to his back and ultimately filed a workers' compensation claim. Salas alleges that when Sierra Chemical recalled him back after a layoff, he was advised that he would have to produce a full release (no restrictions) to work from his physician as Sierra Chemical had a "100% healed policy." Subsequently, Salas filed suit alleging that Sierra Chemical discriminated against him because of his disability; specifically, the company allegedly failed to engage in the interactive process and to consider a reasonable accommodation, and then retaliated against him for filing a workers' compensation claim. However, subsequent to Salas filing the lawsuit, Sierra Chemical discovered that Salas was using a Social Security number that belonged to a North Carolina resident, and he used the Social Security number on the I-9 and W-4 documents he completed. As part of its defense, Sierra Chemical argued that the company would not have hired Salas if it had known about his undocumented status. The lower court granted a motion for summary judgment filed by the employer, holding that Salas' refusal to hire/disability discrimination lawsuit was barred for two reasons: (1) The "after-acquired evidence" doctrine barred his claim since he had no right to be rehired since Sierra Chemical had a policy of refusing to hire applicants who provided false Social Security numbers; and, (2) the "unclean hands" doctrine because Salas knowingly presented false information about his immigration status in order to secure the job (the case might have been decided differently if Sierra Chemical knew that Salas was an undocumented worker). Salas argued that SB 1818, barred application of after-acquired evidence and the unclean hands doctrine based on his immigration status. SB 1818 provides that undocumented workers are entitled to "all protections, rights, and remedies available under state law." However, on appeal, the court analyzed the facts within the framework of a refusal to hire case, distinguishing it from situations involving harassing or discriminatory conduct that occurs during the course of employment. Significantly, the court held that SB 1818 does not protect undocumented workers who are pursuing a refusal to rehire claim in situations where the worker is undocumented and the employer has a policy of refusing to hire undocumented workers. Interestingly, the case was settled via a compromise and release and it does not appear that a 132a claim was filed. The case may provide a defense to some 132a claims and alleged discriminatory hiring cases, if the employer has a policy of refusing to hire undocumented workers and the employee provided false information about his or her immigration status. It is likely that the case will be appealed to the California Supreme Court. Read More.
