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Thursday, December 29, 2011

Capell & Howard Labor & Employment Law Seminar


Top 10 HR Landmines in 2012 and How to Avoid Them




Alabama@Work
By: Tommy Eden, Attorney

1. Not Being Prepared for a Union Campaign or Harassment Allegation. In December 2011 the National Labor Relations Board (NLRB) adopted the “quickie election” regulations. As a result you need to update your no solicitation policy, conduct effective union avoidance supervisor training and let your employees know how you feel about unions. Once your basic harassment policy and forms are in place, keep in mind that recent EEOC decisions have faulted employers for failure to conduct a prompt and proper harassment investigation, which failure may be may be fatal to your bottom line. All harassment and retaliation claims should be taken seriously, regardless of your personal views.

2. Americans with Disabilities Expanded Protections Not Heeded. Drafting or updating ADA-compliant Job Descriptions should be a top priority in 2012. These documents should serve as the foundation for all effective and defensible decisions involving hiring, performance evaluation, discipline, wage and hour status, promotions, return to duty, FMLA, reasonable accommodations and discharge. Not teaching your HR staff how to do the ADA Regulatory Dance is a real landmine mistake.

3. Making the Bad Hire.
Implement an Effective and Defensible Interview and Hiring Process with the correct training, forms and background checks. Dealing with the “bad hire” can be an expensive nightmare, and turnover is an expense you can control. Remember that past behavior is the best indication of future performance. A “gut feeling” is rarely defensible.

4. Social Networking by Employees without Safeguards. Employee Handbooks and Forms should be submitted for a compliance review every two years. Having the right policies and forms (employment application to policies on social networking, union avoidance, separation, drug testing, workplace disclosure of impairing affect medications, FMLA, texting, reduction in staff, etc) to deal with employee misconduct, and provide government-mandated notices, are critical to your overall risk reduction program. PDF technology has made it more cost effective to electronically update and distribute your handbook and forms.

5. Failure to Implement an Effective and Defensible Discipline and Termination Process.
Supervisory coaching on handling difficult employees is a good risk reduction investment. Not using an Alabama termination process checklist is similar to playing Russian roulette where a jury keeps the score. Also, recognize how and when to use staged payment severance agreements to cut off your liability when you smell trouble with a “sacred cow” employee. Documenting your discipline with an eye toward winning the unemployment compensation hearing should be your top priority to avoid this landmine.

6. FSLA Misclassification by the Uninformed. Failing to Audit Wage and Hour Classifications for Legal Compliance is a big mistake. With the new FLSA enforcement initiatives on independent contractors, and the multitude of misclassification lawsuits around the country, this is a wise risk reduction strategy.

7. Failing to Conduct Performance Evaluation Supervisory Training. Grade inflation is a risk that can come back to haunt you when an employee is terminated and the EEOC, or a jury, questions the decision in light of a 5 star evaluation. Train your supervisors how to effectively conduct these evaluations with a human touch.

8. Not Doing Training, Training, and More Training.
Effective supervisory training on hiring, discipline, harassment prevention, diversity, coaching employees, FMLA, litigation prevention, etc., is a must and your best risk reduction. Jury surveys continue to find that a company that fails to train is negligent.

9. EEOC, DOL, OSHA, OFCCP, etc Poorly Done Charge Responses often Leads to Even Greater Liability. Remove from your mind any notion that the government is here to help your business. The number of direct legal actions against employees by various agencies of the federal government over the past 2 years is staggering. Professional guidance when a Charge, or investigator, comes in the door is smart business.

10. Alabama Immigration Non-Compliance. The Alabama Immigration Act can permanently put your business out of business if you do not take timely compliance steps. The compliance webinars, articles and training links at www.immigrationalabamalaw.com will walk you through the process to keep your Alabama Business in Business.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. is a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-241-8030.

Friday, November 18, 2011

VOW To Hire Heroes Act of 2011


By: Tommy Eden, Attorney
Capell & Howard, P.C.

Veterans struggling to find work will have a better chance to land a job under a measure now headed for the President‘s desk for signature. The House passed the “VOW to Hire Heroes Act of 2011” by a vote of 422-0 on Wednesday after Senate passage on November 10. “No veteran who fought for our country should have to fight for a job when they come home,” stated the President after Wednesday’s House vote.

Veterans have had an especially tough time finding work after leaving the military. The latest government data shows unemployment among "Gulf War-era II" veterans at 11.7 percent nationwide, compared to 9.1 percent for the entire country. As many as 1 million veterans are estimated to be unemployed. The measure does the following:

Expanding Education & Training: provides nearly 100,000 unemployed veterans of past eras and wars with up to 1-year of additional Montgomery GI Bill benefits to qualify for jobs in high-demand sectors, from trucking to technology. It also provides disabled veterans who have exhausted their unemployment benefits up to 1-year of additional VA Vocational Rehabilitation and Employment benefits.
Improving the Transition Assistance Program (TAP): will make TAP mandatory for most service members transitioning to civilian status, upgrade career counseling options, and job hunting skills, as well as ensuring the program is tailored to individuals and the 21st Century job market.
Facilitating Seamless Transition: would allow service members to begin the federal employment process by acquiring veterans preference status prior to separation. This would facilitate a more seamless transition to civil service jobs at VA, or the many other federal agencies that would benefit from hiring our veterans.
Translating Military Skills and Training: requires the Department of Labor to take a hard look at how to translate military skills and training to civilian sector jobs, and will work to make it easier to get the licenses and certification our veterans need.
Veterans Tax Credits: The VOW to Hire Heroes Act provides tax credits for hiring veterans and disabled veterans who are out of work. The measure gives $2,400 tax credits to businesses that hire veterans who have been out of work for more than a month; $5,600 if they have been unemployed for more than six months; and rise to $9,600 if the veteran has been out of work for more than six months and was disabled as a result of service in a conflict zone.

Common Sense Counsel: hiring a vet has always been the right thing to do and now your business gets a tax credit. Show a Veteran genuine applause by giving them a job.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540.

Saturday, October 29, 2011

Texas Roadhouse on EEOC Grill



By: Tommy Eden, Attorney

The EEOC has accused Texas Roadhouse, a national, Kentucky-based restaurant chain, of engaging in a nationwide pattern or practice of age discrimination in hiring hourly, “front of the house” employees in a suit filed on October 3, 2011 in U.S. District Court for the District of Massachusetts. The suit alleges that since at least 2007 Texas Roadhouse has hired significantly fewer “front of the house” employees 40 or older in age. Texas Roadhouse allegedly instructed its managers to hire younger job applicants emphasizing youth when training managers about hiring employees for its restaurants. All of the images of employees in its training and employment manuals are of young people.

Texas Roadhouse’s allegedly told older unsuccessful applicants across the nation that “there are younger people here who can grow with the company;” “you seem older to be applying for this job” and “do you think you would fit in,” that the restaurant was “a younger set environment;” “we are looking for people on the younger side... but you have a lot of experience;” and “how do you feel about working with younger people?”

Age discrimination violates the Age Discrimination in Employment Act. The EEOC seeks monetary relief for all applicants denied employment because of their age, the adoption of strong policies and procedures to remedy and prevent age discrimination by Texas Roadhouse, training on discrimination for its managers and employees, and more.

Not only has the EEOC sued Texas Roadhouse, they have engaged in an aggressive nationwide campaign to solicit plaintiffs for its class action case who believe they may have been denied a position at Texas Roadhouse because of their age or who have any information that would be helpful to the EEOC’s suit against Texas Roadhouse. To help, the EEOC gives its toll-free number, email address and posting an online video from the EEOC General Counsel. The EEOC has also sued Bass Pro Outdoor World for employment discrimination claiming that it did not hire people because of their race (African-American or black) or national origin (Hispanic or Latino) and using the same plaintiff solicitation tactics.

Common Sense Counsel: Do all you can to stay off the EEOC radar. It starts with having a legally compliant handbook, training your managers properly on nondiscrimination in all facets of your business, having the proper procedures in place when allegations of discrimination need to be timely and effectively investigated, and hopefully resolved internally. Making statements such as those allegedly attributed to Texas Roadhouse managers should be avoided. Where there is smoke the EEOC will sometimes fan the flames.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540.

Thursday, September 29, 2011

UPDATE: SUMMARY OF PROVISIONS OF 2011 ALABAMA IMMIGRATION BILL


By: Tommy Eden, Attorney
Will Cunningham, Attorney

   On June 9, 2011, Alabama Governor Robert Bentley signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (the “Act”). Formerly HB 56, the Act is a 70 page document which makes broad changes to the way Alabama deals with illegal immigrants and unauthorized aliens. Several of the new provisions govern private businesses and employers and impose significant new obligations, as detailed below.

   On August 29, 2011, Judge Sharon Blackburn of the United States District Court for the Northern District of Alabama entered an Order temporarily staying enforcement of the Act as part of an action by multiple plaintiffs to overturn the Act. On September 28, 2011, Judge Blackburn entered a 115-page summary opinion regarding Sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28 and 30 of the Act. Of those Sections, Judge Blackburn upheld the temporary injunction staying enforcement of Sections 11(a), 13, 16 and 17 until she renders a final judgment. The remaining portions of the Act, including the major provisions affecting private business and industry and the reporting requirements for public schools, are released from the stay.

   We are pleased to provide this legal update to our clients and friends. At the end of this update, see the Common Sense Counsel which list steps all Alabama employers should consider taking to prepare themselves for these mandated changes. Unless otherwise stated, all citations are to the Act.

GENERAL PROVISIONS FOR PRIVATE BUSINESSES
SECTION 15(a): EMPLOYMENT OF ALIENS
   Section 15 of the Act governs the employment of unauthorized aliens within the State of Alabama. Effective April 1, 2012, “[n]o business entity, employer, or public employer shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama.” SECTION 15(a) (emphasis added). To knowingly employ, hire for employment or continue to employ an unauthorized alien is to do so in violation of the Federal law and procedures set forth in 8 U.S.C. § 1324a(b)(1)-(3) for employee verification.

   An “unauthorized alien” is any person who is not a citizen or national of the United States and who is not authorized to work in the United States pursuant to Federal law. SECTION 3(1), (16). A “business entity” is any person or group of persons “engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.” SECTION 3(2). This includes self-employed persons, as well as traditional business entities. An “employer” encompasses any person or entity that employs another person in the State of Alabama, with the exception of a resident hiring domestic laborers. SECTION 3(5).

   Section 15 expressly does not apply to “the relationship between a party and the employees of an independent contractor performing work for the party and does not apply to casual domestic labor performed within a household.” SECTION 15(l).

SECTION 15(b): E-VERIFY
   Each and every business entity or employer in the State must enroll in the E-Verify system and use that system to verify the employment eligibility of every employee. SECTION 15(b). E-Verify refers to the Federal electronic employment authorization verification system established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1324a, and operated by the United States Department of Homeland Security. SECTION 3(7).

   The Alabama Department of Homeland Security shall create a separate E-Verify “employer agent service” for use by any business entity or employer with 25 or fewer employees to verify employment eligibility on behalf of the employer. SECTION 26(a)(1).

   E-Verify provides a safe harbor so that an employer who uses the E-Verify system for each employee “shall not be deemed to have violated [Section 15] with respect to the employment of that employee.” Id. Furthermore, a business entity or employer that uses E-Verify to verify the status of an employee in good faith “and acts in conformity with all applicable Federal statutes and regulations is immune from liability under Alabama law for any action by an employee for wrongful discharge or retaliation based on a notification from the E-Verify program that the employee is an unauthorized alien.” SECTION 26(d).

SECTION 15(c)-(f): PENALTIES
First Violation
   Upon a finding by a court of the first violation of Section 15(a) by a business entity or employer, a court shall do the following:

(1) order the termination of every unauthorized alien by the business entity or employer;
(2) place the business entity or employer on probation for three years, during which time the entity or employer shall file quarterly reports to the local DA regarding each new employee;
(3) order the business entity or employer file a signed, sworn affidavit with the local DA stating that every unauthorized alien has been terminated and no new unauthorized aliens will be knowingly or intentionally employed in the State of Alabama; and,
(4) direct the appropriate governing body to suspend the business license and permits of the business entity or employer for up to 10 business days in the location where the unauthorized alien worked;
SECTION 15(c). Before the business license or permits may be reinstated, the business entity or employer must submit a signed, sworn affidavit stating that it is in compliance, as well as a copy of its enrollment in the E-Verify program. SECTION 15(d)(1).

Second and Subsequent Violations
   A second violation requires the immediate revocation of all business licenses and permits for the location where the unauthorized alien performed work. SECTION 15(e). A subsequent violation shall result in the permanent suspension of the business license and permits throughout the state. SECTION 15(f).

Defenses
   By statute, there is an affirmative defense of entrapment by law enforcement officers. See SECTION 15(k). This defense is a last resort and is not recommended.
Note that a business entity or employer that terminates an employee to comply with the requirements of Section 15 is not liable for claims made by the terminated employee, “provided that such termination is made without regard to race, ethnicity, or national origin of the employee and that such termination is consistent with the anti-discrimination laws of this state and the United States.” SECTION 15(i).

SECTION 15(k): WHISTLEBLOWER PROVISION
   Although normally the domain of local district attorneys, the Attorney General may bring a civil complaint for enforcement of the employment laws. SECTION 15(k).
Any resident of the State may petition the Attorney General to bring an enforcement action against a business in any county where it does business. SECTION 15(k)(1). The resident must submit a signed, written petition that alleges the specific violators, the actions constituting the violation, and the date and location of the violation. Id.

PROVISIONS SPECIFIC TO PUBLIC CONTRACTS
SECTION 9(a): AFFIDAVIT OF EMPLOYMENT PRACTICES
   Section 9 of the Act places restrictions on awards of any “contract, grant, or incentive by the state, any political subdivision thereof, or any state-funded entity” to any business entity or employer with one or more employee. SECTION 9(a). As a condition to any such award, the business must not knowingly employ, hire for employment, or continue to employ an unauthorized alien. Id.

   Each business awarded a contract, grant or incentive from the state, or any political subdivision or state-funded entity, must sign a sworn affidavit stating that it has not and will not knowingly employ, hire for employment, or continue to employ an unauthorized alien. Id.

SECTION 9(b): MANDATORY E-VERIFY
   As a second condition to the award of any “contract, grant, or incentive” by the state, a political subdivision or a state-funded entity is that the private business must provide documentation establishing enrollment in the E-Verify program and must participate in the E-Verify program during the performance of the contract. SECTION 9(b).

SECTION 9(c): SUBCONTRACTOR REQUIREMENTS
   Every subcontractor “on a project paid for by contract, grant, or incentive” by the state, a political subdivision or a state-funded entity must provide a sworn affidavit stating that it has not and will not knowingly employ, hire for employment, or continue to employ an unauthorized alien. SECTION 9(c).
Additionally, the subcontractor must also enroll in E-Verify and attach documentation establishing its enrollment to the employment practices affidavit above. Id.

SECTION 9(d): NO LIABILITY FOR SUBCONTRACTORS
   “A contractor of any tier shall not be liable” for a violation of Section 9(c) by its direct subcontractor if the contractor has received a sworn affidavit from the subcontractor stating that the subcontractor has complied with the E-Verify requirements of Section 9(c). SECTION 9(d). There is an exception to this safe harbor if the contractor knows that its direct subcontractor is violating Section 9(c).

SECTION 9(e): PENALTIES
First Violation of Section 9(a)
   A business that violates Section 9(a) of the Act for the first time shall be deemed in breach of contract, and the state, political subdivision or state-funded entity may terminate the contract after notice and an opportunity to be heard. SECTION 9(e)(1).

   In addition, the government entity may then apply to the Attorney General to bring an action to temporarily suspend the business licenses and permits of the business for a period not to exceed sixty (60) days. Id. The court in that action shall then order the business to file a signed, sworn affidavit with the local district attorney within three (3) days after the order suspending its business licenses stating that the business “has terminated the employment of every unauthorized alien and the business entity or employer will not knowingly or intentionally employ an unauthorized alien in this state.” Id. The suspension shall terminate one (1) business day after the submission to the court of an affidavit by the business stating that it is in compliance with the Act. SECTION 9(j).

   Prior to the suspension under Section 9(e)(1) being lifted, the business must file an affidavit stating that it is in compliance with the Act and attaching the documentation establishing its enrollment in E-Verify. Id.

Second Violation of Section 9(a)
   Upon the second violation or subsequent of Section 9(a) by a business, the business shall be deemed in breach of contract, and the state, political subdivision or state-funded entity shall terminate the contract. SECTION 9(e)(2). The state entity may then apply to the Attorney General to bring an action to permanently revoke the business licenses and permits of the business. Id.

First Violation of Section 9(c)
   Upon the first violation by a subcontractor of Section (c), the state entity “may bar the subcontractor from doing business with the state, any political subdivision thereof, any state-funded entity, or with any contractor who contracts with the state, any political subdivision thereof, or any state-funded entity after providing notice and an opportunity to be heard.” SECTION 9(f)(1).

   In addition, the state entity may then apply to the Attorney General to bring an action to temporarily suspend the business licenses and permits of the subcontractor for a period not to exceed sixty (60) days. Id. The court in that action shall then order the subcontractor to file a signed, sworn affidavit with the local district attorney within three (3) days after the order suspending its business licenses stating that the subcontractor “has terminated the employment of every unauthorized alien and the subcontractor will not knowingly or intentionally employ an unauthorized alien in this state.” Id. The suspension shall terminate one (1) business day after the submission to the court of an affidavit by the subcontractor stating that it is in compliance with the Act. SECTION 9(j).

   Prior to the suspension under Section 9(f)(1) being lifted, the subcontractor must file an affidavit stating that it is in compliance with the Act and attaching the documentation establishing its enrollment in E-Verify. Id.
Second Violation of Section 9(c)

   Upon the second violation or subsequent of Section 9(c) by a subcontractor, the state entity may apply to the Attorney General to bring an action to permanently revoke the business licenses and permits of the business. Id.

Safe Harbors
   A business that complies with Section 9(b) shall not be found in violation of Section 9(a), and a subcontractor that is enrolled in E-Verify shall not be found in violation of Section 9(c).

MISCELLANEOUS PROVISIONS AFFECTING EMPLOYERS AND EMPLOYEES
SECTIONS 10, 12 and 18: IDENTIFICATION REQUIREMENTS
   Sections 10, 12 and 18 of the Act deal with the presence of unlawful aliens and the identification requirements for unlawful aliens. Every person licensed to drive a motor vehicle must have a valid driver’s license on his or her person when operating a motor vehicle. SECTION 18 (amending ALA. CODE § 32-6-9(a)). If arrested for failure to produce a valid driver’s license and the arresting office is unable to determine the existence of a valid driver’s license, the officer must transport the person to the most accessible magistrate. Id. (amending ALA. CODE § 23-6-9(b)). The officer must also attempt to determine the citizenship of the person and verify the lawful presence of an alien, with a full inquiry being made to the Homeland Security Law Enforcement Support Center within 48 hours. Id. (amending ALA. CODE §§ 32-6-9(c) & (d)).

   In any situation, including driving, where an officer makes a lawful stop, detention or arrest, where reasonable suspicion exists that the person is an alien, a reasonable attempt shall be made to determine the person’s citizenship. SECTION 12(a). Any alien who is arrested and booked shall have his or her status verified by contacting the Federal government within 24 hours. SECTION 12(b).

   An alien who is not carrying alien registration documentation and who is unlawfully present in the United States shall be guilty of a Class C misdemeanor. SECTIONS 10(a) & (f).

   Importantly, a person is presumed not to be an alien unlawfully present in the United States if he or she can provide any of the following:

(1) A valid, unexpired Alabama driver's license.
(2) A valid, unexpired Alabama nondriver identification card.
(3) A valid tribal enrollment card or other form of tribal identification bearing a photograph or other biometric identifier.
(4) Any valid United States federal or state government issued identification document bearing a photograph or other biometric identifier, if issued by an entity that requires proof of lawful presence in the United States before issuance.
(5) A foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer's admission to the United States.
(6) A foreign passport issued by a visa waiver country with the corresponding entry stamp and unexpired duration of stay annotation or an I-94W form by the United States Department of Homeland Security indicating the bearer's admission to the United States. SECTION 12(d).

SECTION 27: CONTRACTS WITH UNLAWFUL ALIENS
   No court shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if:

(1) the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into; and,
(2) the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining.

   SECTION 27(a). Several exceptions exist to this rule: (a) contracts for lodging for one night; (b) contracts for the purchase of food to be consumed by the alien; (c) contracts for medical services; and (d) contracts for transportation to facilitate the return of the alien back to his or her country of origin. SECTION 27(b).

SECTION 30: BUSINESS TRANSACTIONS WITH THE STATE
   An unlawful alien may not enter into or attempt to enter into a business transaction with the State or a political subdivision, including applying for a license plate, applying for or renewing a driver’s license or nondriver identification card, or applying for or renewing a business license. SECTION 30(a). In addition, it is illegal for another person to enter into or attempt to enter into a business transaction with the State on behalf of an unlawful alien. SECTION 30(b). A violation of this Section is a Class C felony. SECTION 30(d).

   Any person, including citizens and lawful aliens, entering into or attempting to enter into a business transaction with the State must demonstrate his or her United States citizenship or lawful presence in the United States. SECTION 30(c). Lawful presence shall be demonstrated by verification through the Homeland Security Systematic Alien Verification for Entitlements program. Id.

SECTION 27: NO ENFORCEMENT OF MISCELLANEOUS CRIMINAL SECTIONS
   Section 11 of the Act makes it illegal to stop a vehicle on a street, roadway or highway “to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.” SECTION 11(f). Similarly, it will be illegal for a person to enter such a vehicle in order to be hired. SECTION 11(g). Violations shall be a Class C misdemeanor and subject to a fine of not more than $500. SECTION 11(h).

   A solicitation, attempt or conspiracy to violate any criminal provision of the Act shall have the same penalty as a violation of the Act. SECTION 25(a).

Common Sense Counsel: all Alabama Employers should start getting ready today by taking the following steps now:

• Enroll in E-Verify at https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES (E-Verify is an employer’s only get out of jail card under the Alabama Immigration Act and with Immigration Compliance and Enforcement (ICE));
• Provide “Do’s and Don’t Training” on the Alabama Immigration Act for all your supervisors and management level employees;
• Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms;
• Put an E-Verify policy in your employee handbook;
• Make sure you are using the latest version of Form I-9; and
• Have an outside audit done of your Form I-9 and Immigration Practices.
• Alert your employees, especially lawful aliens, to the necessity of carrying at all times identification information, preferably an Alabama driver’s license.

Tommy Eden is an attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance and also to the Governor’s Commission in 2008. He would like to thank Will Cunningham, an Associate at Capell & Howard, for his help in summarizing the Bill.

The following attorneys can be contacted for assistance:
Tommy Eden tme@chlaw.com or 334-501-1540
Richard Allen rha@chlaw.com or 334-241-8019
Will Cunningham wrc@chlaw.com or 334-241-8043

Top 7 DO’S and DON’T for Employers under the Alabama Immigration Act


By: Tommy Eden, Attorney
Capell & Howard, P.C.

On June 9, 2011, Alabama Governor Robert Bentley signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (the “Act”) and on September 28th U.S. Federal District Judge Sharron Blackburn temporally enjoined (stopped from going into effect) certain portions of the Act. The Act is generally effective September 1, 2011 but was enjoined until September 29th, 2011. Almost all of the provisions affecting Alabama employers, including public employers, remained in place and impose significant new obligations. The following list is a Do’s and Don’t summary of the employer obligations updated following Judge Blackburn’s September 28th ruling:

1. DON’T knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama. You must verify the status of every new employee through the federal E-Verify procedures and fire unauthorized aliens.

2. Do enroll in E-Verify. Effective April 1, 2012, each and every business entity or employer must have enrolled in E-Verify to verify the employment eligibility of every new hire in the State of Alabama. E-Verify provides a safe harbor so that an employer who uses the E-Verify system “shall not be deemed to have violated [Section 15 of the Act] with respect to the employment of that employee.” A business entity or employer that uses E-Verify to verify the status of an employee in good faith “and acts in conformity with all applicable federal statutes and regulations is immune from liability under Alabama law for any action by an employee for wrongful discharge or retaliation based on a notification from the E-Verify program that the employee is an unauthorized alien.” Three violations involving employment of unauthorized aliens can result in permanent revocation of all licenses and permits to do business throughout the State of Alabama

3. DO schedule Form I-9 Supervisor Training. E-Verify system is only as accurate as the information collected on form I-9. Also, do put an E-Verify policy in your employee handbook and make sure that you are using the latest version of Form 1-9.

4. DO have an outside audit done of your Form I-9s and Immigration Practices. E-Verify is an employer’s only get out of jail card with Immigration Compliance and Enforcement (ICE) and the only safe harbor under the Alabama Immigration Act. Millions of dollars of ICE fines and prison sentences have been levied against employers that are out of compliance. Effective January 1, 2012 every business entity, employer and subcontractor that contracts with any public entity in the State of Alabama will have to prove by affidavit, under penalty of perjury, that they are enrolled in E-Verify and have a good faith belief that they are currently only employing those legally eligible to work in the United States. [Section 9 of the Act]. Use of E-Verify is a safe harbor in this situation because two employment violations can result in permanent revocation of all licenses and permits to do business throughout the State of Alabama

5. DO properly terminate any employee if you become aware of their illegal status. The employer could face severe business penalties involving probation, suspension and permanent revocation of Alabama business licenses and permits.

6. DON’T enter into contracts with illegal aliens. The Act provides that no court shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States.

7. DO have employees carry ID proving they are lawfully in the U.S. Significantly, Judge Blackburn left in place Section 10 (willful failure to carry an alien registration document-Class C misdemeanor); Section 18 (drivers of motor vehicles to have their drivers licenses in their possession at all times or subject to detention to verify citizenship); and Section 30 (must prove lawful status to enter into any “business transaction” with public entity, i.e. business license, license plate, drivers license renewal, non driver ID card, etc.). An unexpired Alabama Drivers License or Nondrivers Identification Card issued by the Alabama Division of Motor Vehicles is sufficient verification of lawful status to meet all three Sections. Placing in your job description that possession of a valid Alabama drivers license as an essential job qualification is a good way to deal with this issue.

Tommy Eden is a Lee County native and attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance in 2011 and also to the Governor’s Commission in 2008. Tommy can be contacted at tme@chlaw.com or 334-241-8030 and a more detailed summary of the Act is at www.alabamahrlaw.blogspot.com

Friday, August 5, 2011

Legal Challenges to New Immigration Law


Alabama@Work
By Tommy Eden, Attorney


Alabama’s new immigration law passed the Legislature on June 9th and has been described by opponents and supporters as the toughest crackdown on illegal immigration in the country, which has opened the State up to multiple lawsuits. The U.S. Justice Department filed lawsuit filed last week to block some provisions of Alabama’s immigration law has been consolidated with a similar suit filed by the Hispanic Interest Coalition of Alabama, and a third case filed by bishops of three religious denominations. All three suits seek to stop Alabama’s immigration law from taking effect on September 1, 2011, and are set for hearing at 9:00am on August 24, 2011 before U.S. District Judge Sharon Blackburn in Birmingham. Mexico and 15 other Central and South American nations have also filed motions to overturn the state law.

Portions of the Alabama Immigration Act that are not directly challenged in these current lawsuits are those that will most directly affect Alabama employers. In all likelihood these requirement and penalties will stand based upon prior legal precedent in the four other states where this battle has already been fought, and the U.S. Supreme Court.

The Alabama Act mandates that all Alabama employers use the federal E-Verify system and prohibits employers from “knowingly” employing illegal immigrants. “Knowingly” is defined to include both actual knowledge and constructive knowledge. The provisions pertaining to employers set harsh penalties for non compliance.

First, beginning January 1, 2012, any business that “contracts” with the state of Alabama, or any county, city, or political subdivision that sells any product or service will nave to provide evidence it uses E-Verify. If it then knowingly employs an illegal alien its contract can be voided and business license suspended for 60 days after the first violation. After a second violation, a contactor’s business license can be revoked permanently.

Second, beginning April 1, 2012, any Alabama employer who is found to have knowingly employed an illegal alien faces a progressive set of penalties beginning with a 10 day suspension and a 3 year probationary period during which quarterly reports must be filed by the employer with the District Attorney. On the third violation all business licenses and permits in the State can be revoked permanently, barring the employer from ever doing business in Alabama. The employer can also be sued by legal applicants not hired.

Common Sense Counsel:
The new immigration law places an enormous burden on the employers of Alabama to be pro-active in verifying employment status using the E-Verify system and being able to provide written proof that they have done so. Alabama employers should look for their compliance solution today.

Tommy Eden is a Lee County native and attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance and also to the Governor’s Commission in 2008. He can be contacted at tme@chlaw.com or 334-501-1540.

Saturday, July 30, 2011

Auburn University Drug Free


Alabama@Work
By Tommy Eden, Attorney


Auburn University will have a new Drug and Alcohol Testing Program Policy applicable to all staff, faculty and facilities employees beginning Monday August 1, 2011. The AU policy posting reflects it was adopted March 22, 2011. The Policy Statement goals are to create and maintain a safe, drug-free environment for all of its employees while also helping those with drug and alcohol problems, increasing work performance, reducing accidents and damage, complying with federal law and protecting the reputation of the University.

Under the Policy, all University employees must report to work free from the influence of alcohol, and without illegal or mind-altering substances in their system. Employees are not allowed to operate a motor vehicle or hazardous equipment or perform jobs in hazardous environments while under the influence of any controlled substances, including prescription medications and no employee may use alcohol or illegal drugs while on duty. All University employees will need to notify their supervisor of any legally prescribed or OTC medications that may affect their ability to perform in a safe manner.

Certain University employees covered by federal motor safety laws will be subject to scheduled and random drug and alcohol testing. Other University employees subject to Department of Defense regulations will also be subject to random drug testing based on the nature of the position. The University will inform all such employees whether they will be subject to such testing. Some regulated jobs may require post-offer/pre-employment testing as well.

All University employees will be subject to drug and alcohol testing if there is a reasonable suspicion of use and after any on the job accident, as well as those in follow-up testing programs. There will be training and substance abuse help for those who come forward.

University employees who violate the 2009 Drug-Free Campus and Workplace Policy, or this new 2011 Workplace Policy, or who refuse to cooperate will be subject to discipline, including termination. All records related to drug and alcohol testing will remain confidential.

Common Sense Counsel: Auburn University is doing what thousands of Alabama employers have already done: try to minimize the adverse effects substance abuse has on the workplace. In Alabama, it also gets you a 5% premium discount on Workers Compensation Insurance. It is well documented that those engaged in substance abuse have higher incidents of accidents, absenteeism, misconduct, turnover and a non caring uncommitted attitude. Think Professor Donald Sutherland in Animal House. In times like these, where every institution has to do more with less, an effective substance abuse program with testing accountability is the right thing to do.

Reading this comprehensive 22 page policy is just common sense counsel. Policy at: https://sites.auburn.edu/admin/universitypolicies/Policies/DrugandAlcoholTestingProgramPolicy.pdf

Tommy Eden is a Lee County native, an attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and on the EASHRM Board of Directors. He can be contacted at tme@chlaw.com or 334-501-1540.

Monday, July 18, 2011

Muslim Head Scarf not “the look” for Abercrombie Kids


By Tommy Eden, Attorney
Alabama@Work

Abercrombie Kids, a division of national clothing retail giant Abercrombie & Fitch, refused to hire Samantha Elauf, a 17-year-old Muslim girl, in June 2008 for a position at its store in Woodland Hills Mall in Tulsa, Okla., because she was wearing the hijab when she was interviewed and this violated the company’s “look policy.” The “look policy” prohibited the wearing of any head coverings. Abercrombie claimed that allowing Samantha to wear a hijab would cause an undue burden on the conduct of its business. Samantha claimed to be a typical American teenager who has a sincere religious belief that she must wear a head scarf.

The U.S. Equal Employment Opportunity Commission (EEOC) then gave Abercrombie Kids policy “the look” and charged that it failed to hire Samantha for a sales position because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs. Abercrombie Kids had previously allowed numerous exceptions to its “look policy,” including eight or nine head scarf exceptions. Suit was filed in EEOC v. Abercrombie & Fitch Stores, Inc under Title VII of the Civil Rights Act of 1964, as amended, which protects workers from discrimination based upon religion. Title VII requires employers to provide reasonable accommodations for the religious practices of its applicants and employees when to do so would not be an undue hardship.

On July 15, a Tulsa federal judge agreed with the EEOC on its Motion for Summary Judgment that Abercrombie Kids committed religious discrimination finding that it failed to produce sufficient evidence to dispute the EEOC’s sworn evidence. Damages will be determined by a jury at a later date. The Court's ruling made it clear that an employer's "corporate image" policy does not relieve an employer of the obligation to provide a reasonable religious accommodation.

Common Sense Counsel: Employers need to understand their obligation to balance employees’ needs and rights to practice their religion with the conduct of their business. Where there is a minimal impact on the business, those religious needs must be accommodated. The denial of a request for a reasonable accommodation of an employee’s or applicant’s religious beliefs must be based on demonstrated facts, not guesswork or speculation.

A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion. An employer might accommodate an employee's religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, or modification of grooming requirements.

Religious discrimination is a hot button issue for the EEOC. Have a well drafted handbook policy and be in an “accommodating” mood when approached by your scarf wearing employee or an applicant.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540.

Monday, July 11, 2011

No Fault Attendance Policy Costs Verizon Millions


Alabama@Work
By: Tommy Eden, Attorney

In the largest ADA settlement in EEOC history, a class of hundreds of Verizon Communications employees terminated or disciplined based on a rigid attendance policy, will receive $20 million to resolve a nationwide class disability discrimination settled on July 6 by the U.S. Equal Employment Opportunity Commission (EEOC). The Maryland suit, filed against 24 named subsidiaries of Verizon Communications, said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans.

The EEOC charged that Verizon violated the Americans with Disabilities Act (ADA) by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.

The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.

The ADA prohibits discrimination based on disability. The law also requires an employer to provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer. The EEOC contended that Verizon’s inflexible leave policy denied workers with disabilities a reasonable accommodation to which they’re entitled by law.

The three year consent decree resolves the EEOC’s lawsuit, an EEOC Commissioner charge, a charge filed by the Communications Workers of America, AFL-CIO, and over 40 individual charges filed with the EEOC. In addition to the $20 million in monetary relief, the three-year decree includes injunctions, requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences. Verizon will provide mandatory periodic training on the ADA to employees primarily responsible for administering Verizon’s attendance plans.

Common Sense Counsel: Can your no fault attendance policy stand up to the new ADAA Regulations? This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities. The importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA is the key principle on which the case turned. Time to put your attendance policy to the ADAA Stress Test.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540.

Thursday, July 7, 2011

Texting While Driving Rule for Federal Contractors Effective July 5th


Alabama@Work
By Tommy Eden, Attorney

Federal contractors are strongly encouraged under a July 5 final rule issued by multiple Federal Agencies to prohibit their employees from texting while driving government vehicles or driving on government business. Federal contractors are also encouraged to conduct programs to educate employees about the hazards of texting while driving. The final rule stems from a 2009 presidential executive order, which strictly prohibited federal employees from texting while driving government vehicles, driving privately owned vehicles on government business, or driving any vehicle for any reason if the device used for texting is supplied by the government.

Common Sense Counsel: with this latest action by the federal government, and the numerous states that have text messaging while driving bans, it is more critical than ever that all Alabama employers consider implementing in their Employee Handbooks a Driver Safety Policy including a wireless communication device policy like this:

Wireless Communications Devices Use
Employees cannot use wireless communications devices, including cell phones and text massagers, when driving on Company business. Drivers who need to use a wireless communications device must pull over to a safe location before using the device.

Failing to take such preventative steps now can make you an easy litigation target when your employee is involved in a serious rear end accident while texting.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, PC and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540.

Tuesday, July 5, 2011

Delaware General Assembly Waiting to Inhale


Alabama@Work
By Tommy Eden

The Delaware General Assembly began experimenting with marijuana legislation with the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011. The law signed by Governor Markell without ceremony. Delaware is the 16th state, with the District of Columbia, that has laws legalizing marijuana for medicinal purposes.

There are some key differences in the Delaware law that could have a major impact on Delaware employers. As with the other states, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delaware residents with certain specific debilitating medical conditions and who have received certification of a physician may apply for a state-issued medical marijuana card. Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.

Cardholders may then legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers." Only one state licensed dispensary in each county. The Delaware Department of Health and Social Services which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.

However, S.B. 17 differs from most states in that it contains provisions that apply directly to employers. Although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. S.B. 17 makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.

Further, the law states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test.

Across the nation, courts have held that employers have no duty to accommodate medical marijuana use, under either state law or the federal Americans with Disabilities Act. The ADA, does not protect individuals who are currently using illegal drugs and under federal law marijuana is still an illegal drug.

Common Sense Counsel: Delaware employers should review and revise their drug testing policies in light of S.B. 17. Specifically, the employer should address the employee's use of medical marijuana as a safety issue, as you would with any impairing affect medication. Some jobs are subject to federal regulations prohibiting drug use and imposing testing requirements that cannot be overridden or abrogated by state law.

Tommy Eden is a Lee County native, an attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and on the EASHRM Board of Directors. He can be contacted at tme@chlaw.com or 334-501-1540.

Functional Affirmative Action Program Process For Federal Contractors And Subcontractors Is Back


Alabama@ Work
By Tommy Eden, Attorney

On June 28 The U.S. Department of Labor's Office of Federal Contract Compliance Programs has released a new directive to outline the process by which federal supply and service contractors can apply for Functional Affirmative Action Program agreements, which can be viewed at http://www.dol.gov/ofccp/regs/compliance/directives/dir296.htm.

Under Executive Order 11246, any company with 50 or more employees and a federal contract of $50,000 or more is required to develop a written affirmative action program for each of its establishments. An AAP helps contractors identify and analyze potential disparities related to the employment of women and minorities.

Where disparities exist, contractors can use AAPs to articulate specific procedures they will follow and good faith efforts they will make to provide equal employment opportunities. FAAP agreements allow large contractors the flexibility to create AAPs by functional or business units rather than by individual establishments. For example, a company could develop an affirmative action program for all sales associates across multiple offices in different states as opposed to creating one for each work site.

OFCCP reviewed its policies regarding the FAAP process and made significant changes, including the requirement of written approval by the OFCCP director before contractors can begin developing FAAPs, thereby eliminating the provision for automatic approval if OFCCP failed to act upon the request within 120 days; shorter terms for FAAP agreements which will now expire after three years, instead of five, at which point a renewal will have to be approved; and the possibility of a compliance evaluation by OFCCP should contractors fail to submit the required annual updates to their FAAP agreements.

All contractors who currently have an approved FAAP agreement will be required to renew it in accordance with the new guidance. Contractors without these agreements should continue to maintain and develop establishment-based AAPs. Answers to frequently asked questions about the FAAP can be found at http://www.dol.gov/ofccp/regs/compliance/faqs/faapfaqs.htm.

The new guidance rescinds a previous directive, Administrative Notice/Functional AAP, issued March 21, 2002, and ends a yearlong suspension in the acceptance of requests to develop or renew FAAP agreements while the program was under review.

In addition to Executive Order 11246, OFCCP's legal authority exists under Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. As amended, these three laws hold those who do business with the federal government, both contractors and subcontractors, to the fair and reasonable standard that they not discriminate in employment on the basis of gender, race, color, religion, national origin, disability or status as a protected veteran. For more information visit http://www.dol.gov/ofccp/.

Common Sense Counsel: with great opportunity to contract with the federal government, also come great obligations. A Governmental contractor must maintain an approved written affirmative action plan, post appropriate notices on bulletin boards, training its supervisory workforce, self monitor its own compliance, establish goals and other related program requirements. Fair warning: this agency aggressively audits and investigates. Dealing with the government is clearly not a do-it-yourself program.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, PC and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540.

Mandatory Arbitration Prohibited for Department of Defense Contractors


Alabama@ Work
By Tommy Eden, Attorney

On June 29 the Department of Defense issued a final rule restricting DOD contractors' use of mandatory arbitration for claims under Title VII of the Civil Rights Act of 1964 and other claims related to sexual assault or harassment, intentional infliction of emotional distress, false imprisonment, and negligent hiring, supervision, or retention. DOD contracted employers receiving contracts of more than $1 million funded by the fiscal year 2011 DOD appropriations measure, are prohibited from entering into or enforcing agreements requiring employees or independent contractors to resolve the specified types of claims through arbitration. See Section 8012 of the “DOD and Full-Year Continuing Appropriations Act of 2011.”

Common Sense Counsel: with great opportunity to contract with the federal government, also come great obligations. A Governmental contractor must maintain an approved written affirmative action plan, post appropriate notices on bulletin boards, training its supervisory workforce, self monitor its own compliance, establish goals and other related program requirements. Fair warning: this agency aggressively audits and investigates. Dealing with the government is clearly not a do-it-yourself program.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, PC and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540

Alabama Immigration Act Complicated for Churches


Church Attorney at the Southeast Law Institute, A. Eric Johnson, wrote an excellent article published in the Sunday July 3rd Birmingham News concerning the dangers churches in Alabama will face transporting and supporting programs for illegal aliens. It is a must read for every Alabama church leader.

Friday, July 1, 2011

Landscaping Contractors pays $18,000 fine following H-2B temporary nonimmigrant worker program inspection





Alabama@Work




By: Tommy Eden, Attorney







Vanderbilt Landscaping of Nashville, TN has agreed to pay $18,000 in civil money penalties to resolve violations of the federal H-2B temporary nonimmigrant worker program following investigations by the U.S. Department of Labor’s Wage and Hour Division and its Employment and Training Administration. The company also agreed not to participate in the department’s foreign labor certification program for a period of three years under terms of a settlement entered with the department’s Office of Administrative Law Judges.




The Employment and Training Administration of the DOL is charged with administering the H-2B program nationwide. The Wage and Hour Division ensures that all H-2B workers are paid the wages they have earned under federal law.




In its application for H-2B workers, Vanderbilt Landscaping had agreed to comply with all aspects of the program, but a team of Wage and Hour Division investigators found that the company willfully violated some provisions by placing workers outside the approved area of intended employment, not conducting required recruitment of U.S. citizens and misrepresenting the company’s reason for the temporary need for H-2B workers. The company agreed to the settlement without admitting to any violations.




In a separate case, Vanderbilt Landscaping recently agreed to pay $18,496 to 42 workers after an Wage and Hour Division investigation found workers were not compensated for visa and transportation costs that reduced their wages below the federal minimum wage. The company also failed to compensate workers for all hours spent on job duties, resulting in them not receiving overtime pay when hours worked exceeded 40 hours in a week. Back wages in that case have been paid to all workers who could be located.




The H-2B program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature for a limited period of time, such as a one-time occurrence or for seasonal, peak load and intermittent needs. The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the following: the prevailing wage, the applicable federal minimum wage, the state minimum wage or the local minimum wage. That wage must be paid to the H-2B nonimmigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. The H-2B program also establishes certain recruitment and displacement standards in order to protect similarly employed U.S. workers.




The Fair Labor Standards Act requires that covered employees be paid at least the federal minimum wage of $7.25 per hour as well as time and one-half their regular hourly rates for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law.





Common Sense Counsel: if you are going to use these visa program to bring in foreign workers know and follow the rules. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf.




To qualify for H-2B nonimmigrant classification:



· The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need


· The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work


· The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers


· Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)



H-2B Cap


There is a statutory numerical limit, or “cap,” on the total number aliens who may be provided H-2B nonimmigrant classification during a fiscal year.



Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap. For additional information on the current H-2B cap, see the “Cap Count for H-2B Nonimmigrants” link at http://www.blogger.com/www.uscis.gov/h-2b_count.





H-2B Program Process


· Step 1: Employer Submits Temporary Labor Certification Application to the Department of Labor. Prior to requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam Department of Labor if the employment will be in Guam).


· Step 2: Employer Submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either the U.S. Department of Labor or Guam Department of Labor (if applicable), the employer should file a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting H-2B workers. The approved temporary labor certification must be submitted with the Form I-129. (See the instructions to the Form I-129 for additional filing requirements.)


·Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. After an employer’s Form I-129 is approved by USCIS, prospective H-2B workers who are outside the United States may apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-2B visa (if a visa is required) and, regardless of whether a visa is required, apply to U.S. Customs and Border Protection for admission to the United States in H-2B classification.


* Note: Employers requesting employment in a position that is exempt from the U.S. Department of Labor’s temporary labor certification application filing requirement may skip Step 1 in the H-2B process.



H-2B Eligible Countries List


H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program*.


The list of H-2B eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2B list of eligible countries will be valid for one year from publication.


Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.



* A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition. [See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(i)(E)(2) for additional evidentiary requirements.]



Period of Stay


Generally, USCIS may grant H-2B classification for the period of time authorized on the temporary labor certification (usually authorized for no longer than one (1) year). H-2B classification may be extended for qualifying employment in increments of up to one (1) year. The maximum period of stay in H-2B classification is three (3) years.


An individual who has held H-2B nonimmigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H-2B nonimmigrant. See 8 CFR 214.2(h)(13)(iv) for further details on departure requirements.



Family of H-2B Workers


Any spouse and unmarried children under 21 years of age of an H-2B worker may seek admission in H-4 nonimmigrant classification. Family members in H-4 nonimmigrant classification may not engage in employment in the United States.



Employment-Related Notifications to USCIS


Petitioners of H-2B workers must notify USCIS within 2 workdays if an H-2B worker is a:


· No show: an alien who fails to report to work within 5 work days of the employment start date on the H–2B petition


· Absconder: an alien who fails to report for work for a period of 5 consecutive workdays without the consent of the employer


· Termination: an alien who was terminated prior to the completion of agricultural labor or services for which he/she was hired; or


· Early Completion: an alien who completes the H-2B labor or services for which he/she was hired more than 30 days early.



As stated in a notice published by DHS in the federal register on December 19, 2008, petitioners must include the following information in their Employment-Related notification:


1. The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion)”


2. The reason for untimely notification and evidence for good cause, if applicable


3. The USCIS receipt number of the approved H–2B petition


4. The petitioner’s information


o Name


o Address


o Telephone number


o Employer identification number (EIN)


5. The employer’s information (if different from that of the petitioner):


o Name


o Address


o Telephone number


6. The H-2B worker’s information:


o Full Name


oDate of birth


o Place of birth


o Last known physical address & telephone number



Additionally to assist USCIS with identification of the H-2B worker, USCIS requests that, if available, petitioners also submit each H-2B worker’s:


· Social Security Number, and


· Visa Number





Tommy Eden is a Lee County native and attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance and also to the Governor’s Commission in 2008. Tommy can be contacted atmailto:tme@chlaw.com or 334-501-1540

OSHA cites Alabama lumber mill in Vance $121,400 following worker fatality


Alabama@Work

Tommy Eden, Attorney


The U.S. Department of Labor's Occupational Safety and Health Administration has cited KyKenKee Inc. in Vance, Ala for 15 safety and health violations after a worker was killed in December 2010 when a log fell 13 feet from a debarker conveyor, striking him in the head.

OSHA cited the lumber mill for one willful safety violation related to the incident for failing to fence the area to prevent access and post warning signs. Employees interviewed indicated that logs rolling off the conveyor were an ongoing hazard, but the company had chosen not to address the problem. A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.

Ten serious safety and health violations include allowing employees to use stairs that lacked standard rails, using platforms that lacked standard rails; allowing a portable fire extinguisher to be blocked by materials; allowing employees to work on a floor that was cracked and uneven; using light switch receptacles that lacked cover plates; not having machine guards on equipment; not guarding sprockets and chains on conveyors; exposing employees to noise hazards; and failing to develop lockout/tagout procedures to prevent unexpected startups of the machinery when workers serviced equipment. Additionally, a 2-inch diameter shaft on a piece of equipment projected 6 inches and was not guarded by nonrotating caps or safety sleeves. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

Four other-than-serious violations include not recording a 2010 injury in the required OSHA log; having a poorly maintained, dirty bathroom with trash on the floor; not posting a copy of the noise standard in the workplace; and not conducting a noise monitoring program for those employees exposed to noise exceeding 85 decibels. Another-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.

Penalties for the citations total $121,400. The company has 15 business days from receipt of the citations and proposed penalties to comply, request an informal conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.

Common Sense Counsel: It is advised that you have a comprehensive safety audit conducted ASAP. The next time OSHA “comes to help you” the cost of being in the wrong just went up.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at tme@chlaw.com or 334-501-1540.