Florida Employment Law Blog : Florida Employment Lawyer & Attorney : Epstein Becker Green Law Firm : Immigration, Discrimination, Labor, FLSA : Serving Miami, Fort Lauderdale, Florida

Here's the new FMLA poster that the U.S. Department of Labor unveiled today to conform to the new FMLA regulations that go into effect on January 16, 2009.

Every employer covered by the FMLA is required to post on its premises, in a conspicuous location, a notice explaining the FMLA's provisions.  

DOL has also revised its Certification of Health Care Provider form (WH-380), and divided it into two separate forms for an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F). 

DOL has also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381). 

In addition, the DOL has added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

For a primer on the new FMLA regulations, please read this Epstein Becker & Green client alert. 

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U.S. Citizenship and Immigration Services ("USCIS") has increased the maximum period of time a Trade-NAFTA ("TN") professional worker from Canada or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay. According to USCIS' official release this final rule changes "the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission given to H-1B professional workers." The release also points out that eligible TN nonimmigrants "may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year." USCIS's Q&A, issued simultaneously with the official release, also states "[T]his final rule will extend that period to a maximum of three years to be consistent with other nonimmigrant worker categories, such as the H-1B." The new regulation's summary, although not a part of the regulation, states:

 "This final rule increases the maximum allowable period of admission for TN nonimmigrants from one year to three years, and allows otherwise eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years instead of the current maximum of one year. In addition, this rule grants the same periods of admission or extension to TD nonimmigrants, the spouses and unmarried minor children of TN nonimmigrants to run concurrent. The rule also removes the mention of specific petition filing locations from the TN regulations and replaces the outdated term ``TC'' (the previous term given to Canadian workers under the 1989 Canada-United States Free Trade Agreement) with ``TN.''

The new regulation states in appropriate part:

"(e) Procedures for admission. A citizen of Canada or Mexico who qualifies for admission under this section shall be provided confirming documentation and shall be admitted under the classification symbol TN for a period not to exceed three years. The conforming document provided shall bear the legend ``multiple entry.'' The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian Citizens upon admission to the United States pursuant to the terms and conditions of the NAFTA. Upon remittance of the prescribed fee, the TN applicant for admission shall be provided a DHS-issued receipt on the appropriate form...

(g) Readmission. (1) With a Form I-94. An alien may be readmitted to the United States in TN classification for the remainder of the authorized period of TN admission on Form I-94, without presentation of the letter or supporting documentation described in paragraph (d)(3) of this section, and without the prescribed fee set forth in 8 CFR 103.7(b)(1), provided that the original intended professional activities and employer(s) have not changed, and the Form I-94 has not expired.

(2) Without a valid I-94. If the alien seeking readmission to the United States in TN classification is no longer in possession of a valid, unexpired Form I-94, and the period of initial admission in TN classification has not lapsed, then a new Form I-94 may be issued for the period of validity that remains on the TN nonimmigrant's original Form I-94 with the legend ``multiple entry'' and the alien can then be readmitted in TN status if the alien presents alternate evidence as follows:

(i) For Canadian citizens, alternate evidence may include, but is not limited to, a fee receipt for admission as a TN or a previously issued admission stamp as TN in a passport, and a confirming letter from the United States employer(s).

(ii) For Mexican citizens seeking readmission as TN nonimmigrants, alternate evidence shall consist of presentation of a valid unexpired TN visa and evidence of a previous admission.

(h) Extension of stay. (1) Filing. A United States employer of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status, or a United States entity (in the case of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status and is employed by a foreign employer), may request an extension of stay, subject to the following conditions:

(i) An extension of stay must be requested by filing the appropriate form with the fee provided at 8 CFR 103.7(b)(1), in accordance with the form instructions with USCIS.

(ii) The beneficiary must be physically present in the United States at the time of the filing of the appropriate form requesting an extension of stay as a TN nonimmigrant. If the alien is required to leave the United States for any reason while the petition is pending, the petitioner may request that USCIS notify the consular office where the beneficiary is required to apply for a visa or, if visa exempt, a DHS-designated port-of-entry where the beneficiary will apply for admission to the United States, of the approval.

(iii) An extension of stay in TN status may be approved by USCIS for a maximum period of three years.

(iv) There is no specific limit on the total period of time an alien may be in TN status provided the alien continues to be engaged in TN business activities for a U.S. employer or entity at a professional level, and otherwise continues to properly maintain TN nonimmigrant status.

(2) Readmission at the border. Nothing in paragraph (h)(1) of this section shall preclude a citizen of Canada or Mexico who has previously been admitted to the United States in TN status, and who has not violated such status while in the United States, from applying at a DHS-designated port-of-entry, prior to the expiration date of the previous period of admission, for a new three-year period of admission. The application for a new period of admission must be supported by a new letter from the United States employer or the foreign employer, in the case of a citizen of Canada who is providing prearranged services to a United States entity, which meets the requirements of paragraph (d) of this section, together with the appropriate filing fee as noted in 8 CFR 103.7(b)(1). Citizens of Mexico must present a valid passport and a valid, unexpired TN nonimmigrant visa when applying for readmission, as outlined in paragraph (d)(1) of this section."

Although there is no doubt employers welcome USCIS' move, with 74,000 TN visas (counting initial filings and extensions) out there, it appears to me that the motivation behind this move is not to assist the employers but rather to get some relief from the administrative burden of having to process these visas. 

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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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The U.S. Department of Labor proposed revised regulations to the Fair Labor Standards Act of 1938 and the Portal-to-Portal Act of 1947 in today's Federal Register.  According to DOL, the proposed rules would revise regulations that "have become out of date because of subsequent legislation or court decisions." Comments to the proposed rules must be received by DOL on or before September 11, 2008. 

I will comment on the proposed rules in future posts... once I've had a chance to read them.

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