On December 22, 2009, the United States Citizenship and Immigration Services (USCIS) announced it has reached the H-1B statutory cap for Fiscal Year 2010 as of December 21, 2009. A lottery will be held for all cap-subject petitions received on December 21, 2009, and the USCIS will reject all petitions subject to the statutory cap not randomly selected by the USCIS’ computer generated program or received after December 21, 2009.
Current H-1B visa holders will not be affected by the statutory cap and the USCIS will continue processing petitions to: extend stays of current H-1B holders; modify and/or change the terms of employment of current H-1B holders; allow current H-1B holders to change employers unless the change involves a switch from a cap-exempt to a non-exempt employer; allow current H-1B holders to obtain concurrent employment authorization with another employer; and work at exempt entities such as institutions of higher education and related/affiliated organizations.
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On Monday December 21, 2009, President Obama signed legislation extending the government’s subsidy of COBRA benefits. The subsidies were due to expire on December 31, 2009.
Under the new law, the maximum subsidy period is increased from 9 months to 15 months and includes individuals currently receiving the subsidy, which was set to expire at the end of this calendar year. Moreover, the COBRA subsidy, originally available only to those employees who lost their jobs as a result of a termination/lay-off through December 31, 2009, has been extended to employees who have been laid-off prior to February 28, 2010.
On November 23, 2009, the New Jersey Legislature introduced identical bills (A4198/S12) that would prohibit employers from discriminating (denying employment) against persons who have been convicted of a criminal offense or because the applicant lacks “good moral character” based upon a prior conviction. Employers would be exempt from the proposed prohibition if (i) there is a direct relationship between a previous criminal offense and the specific employment sought; or (ii) hiring the individual would pose an unreasonable risk to property or to the safety/welfare of specific persons or the general public. The proposed legislation would require employers to assess the following factors to determine if the exceptions apply: (1) public policy of encouraging employment of persons who have been convicted of crimes; (2) duties and responsibilities directly related to the position; (3) the individual’s fitness and ability to perform the job duties given the prior criminal offense; (4) the amount of time that has elapsed since the offense was committed; (5) the individual’s age when the crime/offense was committed; (6) the seriousness of the offense; (7) evidence of rehabilitation and good conduct; and (8) the legitimate interest of the employer in protecting property and the safety/welfare of specific individuals or the general public. Similar laws in other states have created much litigation for employers.
The proposed litigation also seeks to preclude employers from asking applicants whether they have ever been arrested, charged with a crime, convicted of a sealed non-criminal offense, or offenses committed as a juvenile.
Employers who perform background checks would be required to (i) advise applicants a background check may be required with the application; (ii) within 30 days of requesting a background report, advise the applicant of same and the name and address of the reporting agency; and (iii) advise applicants they may review the background report. The employer would also be required to provide the applicant with a copy of the law. Under the proposed legislation, employers would also be required to provide any applicant who has been denied employment with a written statement as to the basis for denying employment within 30 days of the applicant’s request for the statement.
In July 2009, the United States Immigration and Customs Enforcement agency (“ICE”) announced that approximately 650 businesses nationwide were targeted for in-person audits of I-9 employment eligibility verification forms.
In November 2009, ICE announced that it issued I-9 audit notices to an additional 1,000 businesses relating to the “critical infrastructure” and “public safety and national security” industries.
These sudden announcements were the result of leads and information obtained by the ICE relating to violations of the law. Businesses in various industries including restaurants, construction and trucking, and manufacturing have already been affected by the audits.
Employers are required to complete and retain a proper Form I-9 for each and every employee hired after November 6, 1986 to show that the employee is authorized to work in the United States. The employer must continue to ensure employees are eligible to work as authorization documents expire. Additionally, employers are requested to submit Form I-9s, payroll records, payroll tax filings, W-2s and 1099s, Social Security “no-match” letters and other documentation in order for ICE to determine whether an employer is in compliance with employment eligibility laws. A finding of noncompliance may lead to fines and/or criminal penalties if ICE determines there is a “pattern and practice” of violations.
Upon notification, businesses are given limited time to prepare for the audit by federal representatives. For more information on an employer’s requirements contact Robert A. Tandy, Esq. at (201) 474-7103.
Employers may be liable for sexual harassment committed by non-supervisory employees against co-workers even where the employer is unaware of the alleged conduct.
In Cerdeira v. Martindale-Hubbell, Docket No. A-5855-06T1, the New Jersey Appellate Division held an employer may be liable under the New Jersey Law Against Discrimination (“NJLAD”) for the harassing conduct committed by a non-supervisory employee against another rank-and-file employee if the employer fails to establish and enforce effective policies against sexual harassment in the workplace.
In early 2001, Ms. Cerdeira, an employee of Martindale-Hubbell, began experiencing sexual harassment by a non-supervisory co-worker in the form of sexually explicit photographs; inappropriate, offensive and sexually charged language; and was the recipient of offensive items including a bra and thong underwear. Although she advised another co-worker of the incidents, Ms. Cerdeira did not complain to a supervisor until 2003, approximately 2 years after the harassment began.
Although the Company’s Human Resources Department immediately investigated the complaints and the harasser was subsequently terminated, Ms. Cerdeira filed an action for hostile work environment sexual harassment in violation of the “NJLAD.” The trial court granted summary judgment to Martindale-Hubbell and Ms. Cerdeira appealed contending Martindale-Hubbell demonstrated it negligence in failing to have an effective sexual harassment policy in place.
The Appellate Division held the trial court should have determined whether Martindale-Hubbell’s policy provided a ‘reasonable avenue’ through which plaintiff could have complained. If the Company did not have such ‘reasonable avenues,’ the Appellate Division opined the trial court should determine whether the absence of a reasonable policy was causally related to any harm alleged by the plaintiff. The Appellate Division held the trial court erred in its decision by deciding plaintiff’s claims lacked legal merit.
To permit offending co-workers to engage in this conduct, the Appellate Division cautioned could “discourage employers from adopting proactive sexual harassment policies that are well-publicized and directed to all employees.”
Because of the widespread impact of this decision, employers are urged to revisit their own policies and provide mandatory training for all employees, not just supervisors and managers so that all employees are aware of the procedure for filing a complaint and supervisors are aware of their obligations if a complaint is filed.
For more information or to inquire about providing training to your Company’s employees contact Robert A. Tandy, Esq. at (201) 474-7103.