Category Archives: Employment Law

A newer I-9

This firm continues to monitoring the status of executive actions and will publish updates  on federal immigration issues.

On July 17, 2017 the United States Citizenship and Immigration Services (USCIS) released an updated I-9 form.  Employers will need to adapt to the change and use the new form by no later than September 18, 2017 or face the possibility of large fines.

Just last year, Immigration and Customs Enforcement (ICE) announced increases in fines for Form I-9 violations to account for inflation. Increases are retroactive to cover any violations that took place after November 2, 2015.

These increases are for:

  1. Simple Form I-9 violations: The minimum fine has increased from $110 to $216 per Form I-9 violation, while the maximum fine increases from $1,100 to $2,156 per Form I-9 violation. Fines for second and third offenses have also increased to a similar degree.
  2. Unlawful Employment of Unauthorized Workers: For the first offense, the minimum fine has increased from $375 to $539, while the maximum fine increased from $3,200 to $4,313 per worker (fines for second and third offenses also increased).
  3. Unfair Immigration-Related Employment Practices: The minimum penalty has increased from $375 to $445, while the maximum penalty increased from $3,200 to $3,563 per charge. Repeat offenders now face a new maximum penalty of $21,563.

On September 18, 2017, all employers will be required to use the revised form, so it makes sense to avoid any delay and begin use of the new version immediately.

 

Changing Non-Compete Landscape and the DTSA

In 2016, the Defend Trade Secrets Act of 2016 (DTSA) was passed and a new federal civil remedy for the misappropriation of trade secrets was created.  This new law grants litigants access to federal courts in any case involving alleged theft of trade secrets.

The DTSA allows employers to protect their trade secrets in federal court, bringing their rights into alignment with owners of other forms of intellectual property.

Agreements that may be subject to this new rule are:

  • Employment agreements
  • Non-compete and non-solicitation agreements.
  • Confidentiality and proprietary rights agreements.

The purpose of the DTSA is to provide uniformity among states although an important intent is that it not preempt existing federal or state laws.  State legislators continue to hold the power to adopt non-compete reform.

The DTSA includes protections for whistleblowers who disclose trade secrets under certain circumstances.  Employers are required give employees notice of DTSA potential immunity in any contract or agreement that governs the use of a trade secret or other confidential information.

DISCLAIMER:  The information conveyed through this article is not intended to give legal advice, but instead to communicate information to help readers understand the basics of the topic presented.

Training HR Staff

Many routine employment applications are completed by non-attorneys and HR professionals have the ability to fill out these forms with minimal training.  For foreign employees, these applications include:

    • TPS
    • NAFTA Canada/Mexico TN Visa
    • Employment Authorization

Simply request an assessment of your issue by completing the contact form on this website.  This office is happy to set up a conference call with your staff!

Non-compete Agreements

By Dena Wurman, MPA, JD

A non-compete agreement is a contract. The purpose is to prevent an employee from working for a competitor and exploiting information derived from the employer. Most courts have found these agreements to be legally binding as long as there are reasonable limitations as to the geographical area and time period.

In a case well-known in the tech industry, Amazon.com Inc. v. Zoltan Szabadi, Amazon went to court in Seattle to enforce their non-compete agreement. They sued a former employee when he went to work for competitor Google, after signing a non-compete. The employee then filed a Motion for Summary Judgment, to nullify the agreement. Court denied in part, granted in part so the employee got out of some of his obligations to Amazon.  But not all of them.

Seattle courts have generally permitted reasonable non-compete agreements. In Washington, a court will enforce a reasonable non-compete if:

1) The restraint is reasonably necessary to protect the business or goodwill of a

party;

2) The restraint does not impose upon the individual any greater restraint than is reasonably necessary to protect the business or goodwill; and

3) The public is not injured as a result of the loss of service and skill of the individual.

Legislators in Washington are trying to change the law now. According to proponents of a house bill, non-competition agreements are used too often. They cause waste. They inhibit individuals from moving between jobs. They are oppressive. The agreements are expensive to challenge in court. Why not just use a nondisclosure agreement instead?

According to opponents of the proposed bill, nondisclosure agreements are insufficient to protect an employer’s investment. Employers provide employee training. Departing employees can steal business. An employee could go to court to get the agreement invalidated, or an employer may not attempt to enforce the agreement if they believe it is unenforceable.

In my own practice, I have had experience with non-competes in the health care and aviation industries. In both cases, there was no litigation. In one health care case, the employer waived the non-compete clause when the employee agreed to voluntary termination. In another, it was modified to a more reasonable geographic region from a worldwide restriction, before it was signed.

Attorney Dena Wurman has helped individuals, business owners, organizations and attorneys in employment matters, most recently as Outside Counsel to the University of New Mexico.

Checking Documents as an Employer

immigration pencil

Screening what appear to be legitimate working documents presents a real problem for U.S. employers. Usually, the employee has been on board and fully trained before any fraud is discovered. Terminating an employee at this point becomes burdensome.

In one case, an employer client was presented with two different Social Security numbers, after the first didn’t seem to be legitimate. The second one was a real number.

There are nuances in prosecuting document fraud.  For example, in California, using a false name on a Motor Vehicles application would trigger a referral for criminal prosecution only if the MV Department believes the false information would cause harm. In the case of identity theft, the original owner may be harmed.

Here is a simple way to check whether an immigration document presented by an employee is authentic.

If the employee is the brother or sister of a US Citizen, they may be entitled to a work permit because their relative will sponsor them. The citizen relative will file an I-130 form, and after it is approved and a visa becomes available, file the remaining paperwork in order to get authorization to work. Until the I-485 is approved, this I-797 receipt is not a document that authorizes work in the US.

While a receipt may look legitimate at first glance, and there could be a problem with the receipt dates. Any form filed will generate a receipt. A receipt from the Immigration Service will have a receipt number on it. For example, a WAC receipt number relates to when a form is filed.

If typing this WAC number in the www.uscis.gov system results in two different receipt dates, the form is fraudulent. It is not possible to have one WAC number and two different receipt dates.

This would indicate the document is not legitimate.

For a CONFIDENTIAL consultation on whether a document is real or fake, send a note with your problem.

Please complete the contact form below.

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Paying H-1B Fees

Employers often ask about sharing some of the cost for submitting an H-1B petition with a foreign worker .

One way of accomplishing this is to have the employee sign an agreement.  An employment agreement generally might include the following:

  • Which costs and fees will be paid by the company and which will be the responsibility of the employee
  • A  requirement that the employee reimburse the company for certain costs and fees if he or she leaves employment before a certain date and what circumstances would constitute such termination of employment

Employers of H-1B workers must be very careful when drafting reimbursement agreements.  Here are a few issues to keep in mind.

There are federal laws that strictly prohibit passing through costs to the employee or seeking reimbursement.  One example of a mandatory H-1B fee that cannot be passed on to the employee is the American Competitiveness and Workforce Improvement Act (ACWIA) fee.

There are other deductions that are prohibited such as:

•tools and equipment;

•transportation costs where such transportation is an incident of, and necessary to, employment;

•living expenses when the employee is traveling on employer business; and

•attorney fees and other costs connected to the performance of the H-1B program functions that the employer must perform, such as preparation and filing of the LCA and H-1B petition.

Under ACWIA, employers may not impose an early resignation penalty on H1B employees who cease employment prior to an agreed date.  However, in limited circumstances, an employer may receive bona fide liquidated damages from an H-1B nonimmigrant. These circumstances depend not only on how the damages are characterized in the immigration context (e.g. attorneys’ fees or filing fees) but also on whether state law deems the damages permissible.

Before making any payroll deductions from an employee to recoup expenses, a company should obtain written authorization from the employee.  If the company uses an employment agreement,  the authorization can be included in the agreement.

Attorney Dena Wurman has helped business clients navigate the complicated federal U.S. immigration system. For a consultation call (505) 506-9434.

Immigration Forms are Tricky

If a U.S. immigration form is in English it should be easy, right? After printing out immigration forms, many clients still have issues.

To include or not include.

It is not uncommon to skim through a form and fill in the blanks quickly.  For example, in one case the client’s father checked a box that he did not plan to have any of his children included in the application.

When it came time for the consular interview he told the interviewer he did want to include his daughter.  The interviewer asked, where was she…why wasn’t she in the interview?

Is a form appropriate under the circumstances?

For example, in one case a well-meaning mother filled out a number of B visa forms for her daughter so that she could visit her boyfriend.  When the visitor B visa expired, while in the US, the couple was told by the USCIS agent to simply cross the border and have her passport stamped .

She had spent most of the entire year in the US on a visitor visa, which is restricted to under six months.

It wasn’t until she attempted to entered the US again that the complete time period she spent here was evident.  She tried to re-enter,  was detained at the airport and returned to her country of origin.  She was very upset.  That is all part of her immigration record now.

Where do I file my forms.

Immigration application processing is redistributed frequently based on the number of people sending in forms.  Various service centers throughout the U.S. accept forms.  These locations change. The new mailing addresses are updated on the USCIS website.   When a form is “expedited” it’s mailed to a different address for premium processing, not the regular address.

Here are three more tips:

TIP 1:  Fees are usually required with a form. When the filing fees change, if the new fee is not mailed with the form, everything will be returned to the applicant.

TIP 2:  Immigration law changes every day. When submitting a form with a letter or a legal brief, understanding the twists and turns in the law and hitting all the required, legal elements is important.

TIP 3: A petition needs a “wow” factor. There is a short time to make a big impact. A government reviewer will set aside a confusing, large petition for a smaller well-crafted one.  If there isn’t a persuasive reason why the evidence is included and how it proves the case, it should be left out.

It is best to work with an experienced attorney.

Attorney Dena Wurman has helped clients navigate the complicated federal U.S. immigration system. Through her efforts, new immigrants are awarded visas, green cards and U.S. citizenship. For a consultation call (505) 506-9434,  email dena@wurmanlegal.com or fill out the contact form on this website.

Hospital Physician Qui Tam Case

Qui tam law was created during the Lincoln administration to protect the government purse from theft by private citizens.   As an incentive, a percent of the money refunded the government is paid to the whistle-blower if they win the case.

Here is a short summary of a 2014 qui tam case in Florida (United States ex rel. Baklid-Kunz v. Halifax Hospital Med. Ctr. et al.) where the government alleged that “prohibited” referrals from oncologists to a hospital resulted in the submission of 74,838 (false) claims.

The government alleged the claims were prohibited because the doctors signed agreements with the hospital to receive incentive payments to deliver oncology services, paid for by Medicare. A share of a bonus pool, drawn from profits received by the hospital, was part of the doctors compensation.

Here, the hospital was accused of violating Stark (commonly known as the “Stark Statute”). Stark prohibits a hospital from submitting Medicare claims for referrals from physicians who have a financial relationship with the hospital. Halifax’s arrangements with medical oncologists and neurosurgeons working at the hospital violated Stark, and Medicare claims submitted by Halifax based upon referrals from these physicians violated the federal False Claims Act.

The hospital’s director of physician services reported this problem to the hospital and when the hospital did not correct the problem (their legal counsel approved the agreements) the director then went to a private attorney, who joined with the government in a qui tam action.

Accused of over-charging Medicare $105,366,000, the Florida hospital settled with the federal government for $84 million.

Important points about this case are:

  • a violation of the Stark Law can lead to False Claims Act liability for claims covered by Medicare and Medicaid
  • damages can be proved through healthcare providers’ own claim forms

Litigation tip:

Planning to file a qui tam claim? Remember to write any legally collected notes as a memorandum to your attorney so that they will be protected by the attorney-client privilege.

By,

Dena Wurman, Attorney at Law

H-1B’s and the Prevailing Wage

What is a prevailing wage?

Congress has mandated that the Department of Labor (DOL) monitor the H1B program with regard to any adverse impact on wages and working conditions for the U.S. workforce. The employer must file with the DOL an “application” affirming that the employer will pay the required wage rate to H1B workers.

The “prevailing wage” is defined by the DOL rules as the average rate of wages paid to workers similarly employed in the area of intended employment. Similarly employed is defined in this context as workers having substantially comparable jobs in the occupational classification in the area of intended employment. The employer must determine the prevailing wage rate before filing the labor condition application, in order to affirm that it is paying the higher of the actual wage or prevailing wage rate.

Before 2010 state workforce agencies processed prevailing wage requests for H-1B visa applicants. A relatively simple process, requests were faxed and a response came within a few business days. In 2010 these requests were centralized to an online filing system with the Department of Labor.

Attorney Dena Wurman has successfully litigated cases for clients in ICE custody and has appeared at numerous hearings in Immigration Court. She has experience with consular issues and cross-border travel, particularly through the Canadian border. For a complimentary consultation call (505) 506-9434

Student Denied Green Card for Fraudulent I-9

There was an interesting case decided in October 2014 by the Federal Board of Immigration Appeals (BIA) that applies generally to all cases in immigration court. (Matter of Ezra Kibichii Bett)

In that case, an immigrant student from Kenya — on an F non-immigrant visa — filed a Form I-9 (Employment Eligibility Verification) with two different employers on October 9, 2009, and October 27, 2009. On each form, a box was checked signifying that the applicant was a United States citizen. He acknowledged that the signature on both forms resembled his own.  Later, when he tried to get a green card by marriage to a US Citizen wife, the court said no, because he falsified the I-9 forms. The court said, any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States, should be denied a green card (permanent residency.)

Just to keep things interesting the government regularly issues new I-9 forms.  There is also a new version in Spanish.

Ms. Wurman represents clients in court and administrative proceedings and helps clients on their legal matters. She has represented non-profit entities, schools, businesses, individuals and international companies.  For a consultation, e-mail dwlegal@comcast.net or call (505)506-9434.