Posted on April 25, 2009 by Hector Chichoni

Important Immigration Legislative Announcement Made By Senators Richard Durbin (D-IL) and Charles Grassley (R-IA)

 

As stated on April 23, 2009 by Senators Richard Durbin (D-IL) and Charles Grassley (R-IA), they will soon introduce a new immigration bill that, if signed into law, will have far reaching consequences for employers of H-1B and L-1 workers.

 

The H-1B and L-1 Visa Reform Act is expected not only to create new obligations and requirements for U.S. employers, but also to give the government additional authority to audit and investigate them. The bill will require employers to make a good faith effort to recruit and prohibit the displacement of U.S. workers before hiring H-1B and L-1 workers. Moreover, the bill will require USDOL to conduct annual audits of companies who employ large numbers of H-1B workers. The bill will also institute a number of reforms to the L-1 visa program, including establishing for the first time a process to investigate, audit and penalize L-1 visa abuses.

 

The content of the bill has not yet been released. It is possible that the bill may also include some of the relief promised by the Obama administration, as Senator Grassley has been cooperating with President Obama in this area.  However, if this bill is signed into law with the stated requirements and obligations without providing any relief, it could have serious negative consequences not only for employers but also for our economy.  H-1B and L-1 visa holders provide a great deal of the technical knowledge and skills our country requires to compete in the global arena.

 

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Posted on August 14, 2008 by Richard Tuschman

DOL Proposes Revised Wage-Hour Regulations (Part II)

A few weeks go I reported on proposed revisions to regulations under the Fair Labor Standards Act and the Portal-to-Portal Act of 1947.  The regulations promise to revise rules that "have become out of date because of subsequent legislation or court decisions."

Now, having had a chance to review the proposed regulations, my colleague Mark Beutler and I have prepared a client alert that summarizes the proposed changes. 

For the most part, the proposed revisions are unremarkable.  Two changes to the "tip credit" rules caught my eye, however.  First, a proposed regulation, 29 C.F.R. § 531.59(b), would provide that an employer is ineligible to take the tip credit unless it has informed its employees that it "intends to treat tips as satisfying part of the employer’s minimum wage obligation", and that the notice need not be in writing. While the FLSA requires that tipped employees be informed of the provisions of 29 U.S.C. § 203(m) before the employer can pay the reduced tipped wage, there are currently no regulations prescribing the content of the tip credit notice.  The proposed rule would seem to mean that hanging a standard FLSA poster that contains an explanation of the tip credit rule would not suffice unless the employer has separately informed employees of its intention to treat tips as satisfying part of its obligation to pay the minimum wage. This proposed rule seems silly -- employees are smart enough to read a poster and figure out that their employer is taking a tip credit even if their employers haven't expressly informed them of this.

Second, the proposed regulation amends 29 C.F.R. § 531.54 to clarify that section 3(m) of the FLSA does not impose a maximum tip pool contribution percentage.  Currently, Wage and Hour opinion letters and its Field Operations Handbook provide that a tip pooling arrangement cannot require employees to contribute a greater percentage of their tips to the tip pool than is "customary and reasonable." The Department took the position that "customary and reasonable" equates to fifteen percent (15%) of an employee’s tips or two percent (2%) of daily gross sales. See, e.g., Wage and Hour Opinion Letter WH-468 (Sept. 5, 1978). Several courts rejected the Department’s maximum contribution percentages on the ground that "neither the statute nor the regulations mention [the ceiling on the tip pool contribution stated in the Department’s interpretation] and the opinion letters do not explain the statutory source for the limitation that they create." E.g., Kilgore v. Outback Steakhouse of Fla., Inc., 160 F.3d 294, 302-03 (6th Cir. 1998).  Indeed, the 15% rule makes little sense when the tipped employee receives substantial assistance from other employees in the tip pool.  For example, in a restaurant in which the servers take the food orders, but the food is delivered by runners, and the tables are cleaned by bussers, there is no logical reason why servers cannot be required to share more than 15% of their tips with others in the tip pool.  On this point, the revised regulations make sense.

 Comments to the proposed regulations must be received by DOL by September 11, 2008.

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Posted on July 2, 2008 by Hector Chichoni

USCIS Launches Online Service to Check Status of FOIA Requests

U.S. Citizenship and Immigration Services (“USCIS”) recently launched the online FOIA Request Status Check service providing customers a quick and secure way to check the status of requests they have made under the Freedom of Information Act (“FOIA”). Customers can use the online service anytime by entering their assigned control number to receive an immediate response on the status of their FOIA request. The customer will then receive either a ‘pending’ or ‘processed’ response. A pending response indicates to the customer the position of their request relative to all other requests in the same processing track. A ‘processed’ request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates to the status information. Customers without Internet access can still obtain information on their FOIA requests by calling the USCIS FOIA Requester Service Center at (816) 350-5785 from 7 a.m. to 2:15 p.m. (Central Time). As USCIS receives more than 110,000 requests annually for access to immigration records, the agency continues to improve its FOIA procedures and enhance processing times. For example, last year USCIS launched a new ‘Notice to Appear’ track that provides accelerated access of a large portion of FOIA requests from individuals, or their representatives, who have been notified to appear before an immigration court. That new track provides those customers quicker access to their Alien-File (‘A’-File) when it is requested through the FOIA process.
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