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Employment & Immigration Law

2/11/08

Exposing the company when terminating an employee

While terminating an employee, the employee asked if her termination was performance based. The office manager replied "yes". The employee replied that in fact she had been "commended on work performance since returning from maternity leave" and was confused. At which point the human resource specialist replied it was due to "restructuring." Did this mix-up expose the company in any way?

All of us misspeak at times. But we need to be particularly careful about not misspeaking when we are trying to deal with a circumstance as sensitive as employment termination. This is because exposure generally increases when an employer gives inconsistent reasons for taking an adverse personnel action. The employee (and later the court) might believe that the inadvertent "mix-up" in the explanations is something that is much worse - i.e., evidence that a pretext is being used to cover up what actually is unlawful discrimination.

There should be no increase in exposure if it can be proven that the inconsistency was simply an inadvertent verbal mistake. But your scenario involves "maternity leave." Perhaps the employee already is inclined to believe that her termination is based on her maternity or the leave she took (and therefore is sexually discriminatory). When an employee preliminarily can set forth a claim of unlawful discrimination, the employer generally can rebut such a claim by articulating a legitimate, non-discriminatory reason for the adverse action. But the employee, in turn, can defeat such a defense if he or she can prove that the employer's reason is a pretext, and that the employer's real motivation was unlawful discrimination.

By initially misstating the reason for the termination, the manager in your scenario made it at least arguable that there is a pretext, and thereby put the company at risk.

-- DAVID HENDERSON

Terminating an employee, then hiring to fill the vacancy

Can we lay off an employee and then immediately hire someone else to take their place? We are not sure if we can legally do this and want to know if there are any procedures we should follow.

The phrasing of your question makes me think you may be considering using a particular term to obscure the action you actually are considering taking. If so, then the "pretext" risk explained in the previous answer is raising its head again.

So let's go back to the basics to be clear. First, assuming the employment is "at will," the employer legally can terminate the employment at any time, with or without a reason, as long as the reason is not one that is prohibited by law. And so, in general, there is no law against firing Employee A and then immediately hiring Employee B to take his or her place. The key is making sure that you are taking this action for a reason that is legitimate and non-discriminatory, not for a reason that is prohibited by law.

But as is discussed in the previous question, an employer can create unnecessary exposure by being less than forthright. Why do you want to call this a "lay off" if you want to hire an immediate replacement? The term "lay off" may or may not be a term of precision, but for much of the public it nevertheless implies the outright elimination of a position or an indefinite vacating of a position, not the firing of one person so that he or she can immediately be replaced. To the extent that the actions an employer takes are inconsistent with the words the employer uses to explain them, the employer can be accused of engaging in pretext. And as is explained in response to the previous question, an employee's proof of pretext can be his or her ultimate means of winning an employment discrimination claim.

-- DAVID HENDERSON

Accommodating employee with medical condition

My small office has an administrative professional who has been here for many years and is unfortunately suffering from bone cancer due to an earlier battle with breast cancer. We will try to accommodate her as much as possible; she deserves it. However, paying her for a full week, without her full production, would be a severe hardship for us. Do you have any suggestions on best practices for situations like this?

The requirements related to handicap/disability law and the employer's obligation to provide reasonable accommodation are sufficiently complex that I definitely recommend that you discuss this case in greater detail with your lawyer.

In general, an employer has an obligation to provide reasonable accommodation to a qualified handicapped employee, unless such action would impose undue hardship on the employer. But determining whether reasonable accommodation can be provided is not something that the employer should do unilaterally, without involving the input of the employee. That is why the courts generally say that the employer should engage the employee in an interactive dialogue on this subject. The process of involving the employee can be just as important as the substantive determination actually made.

A particular focus on the essential functions of the employee's particular position also is essential. Your scenario seems to imply that the employee cannot achieve "full production." This may be another way of saying that she cannot perform the essential functions with or without an accommodation. The employer's duty to provide reasonable accommodation generally assumes otherwise, that the employee can perform the essential functions of her position with some reasonable accommodation that is not unduly burdensome. This, too, is something you should discuss with your lawyer.

-- DAVID HENDERSON

Laying off employees upon closing a business

I will either be selling my business or closing it down. Either way, I will likely be laying off my seven employees. What are the legal requirements in Massachusetts in connection with these lay-offs?

Before giving any definitive answer, your lawyer is going to need more information than your question provides. What is the nature of the business? Do you have contracts with any of the employees? Are they all employees at will?

Obviously, if you don't pay the employees all that you owe them, they will have claims on that basis (and possibly could even recover treble damages under the Wage Act). Under the Wage Act, you must pay each of the employees on the day of their termination for all compensation owed them, including compensation for accrued vacation and commissions owed.

Perhaps you are asking your question simply with a concern about the advance notification requirements governing certain layoffs under both federal and state law. Neither of those laws would apply to you, given that you have only seven employees. The federal Worker Adjustment and Retraining Notification (WARN) Act requires advance notification when employers plan to close a facility of 100 or more employees or lay off at least one-third of employees at a facility that has at least 50 employees. The analogous state law (Massachusetts General Laws, chapter 151A, §§71A-71G) applies to closings or partial closings of facilities with 50 or more employees.

-- DAVID HENDERSON

Non-profits and green cards

Can a non-profit organization process a green card for an employee? In addition, should we be aware of any special requirements for non-profits? Finally, how long does it take to process such a request?

A non-profit organization may sponsor an employee for a green card. There are no special requirements or procedures for non-profit employers. However, a sponsoring employer must show that it has the ability to pay the employee's wage.

Showing the ability to pay will require evidence of the non-profit employer's financial status. Generally, the U.S. Citizenship and Immigration Services (USCIS) will accept a letter from the financial officer at a well-established non-profit organization. However, the USCIS may require additional documentary evidence from a smaller, less established non-profit organization. Annual reports or audited financial statements as well as tax returns can be submitted.

There may be another issue which would affect a non-profit's ability to sponsor an employee for a green card. Many employer-sponsored green card cases require the employer to file a multi-stage application. The first step is PERM where the employer, under the regulations of the Department of Labor ("DOL") must show unavailability of "U.S. workers," defined as U.S. citizens or green card holders.

The PERM Labor Certification process requires the employer to pay the prevailing wage for the position. Essentially, the DOL establishes the wage for the position based on the job description and minimum requirements for the position. There are only four salary levels for each job. View the DOL's Online Wage Library.

On the other hand, there are categories which are exempt from the PERM process, including persons of extraordinary ability; outstanding researchers and professors; managerial or executive intra-company transferees; and those whose work is in the national interest. The exemption is determined by USCIS so not every employee may avoid the PERM Labor Certification process.

-- CAROLYN FUCHS
with Molly Carey

Asking candidates if they can work in the U.S.

Are we now legally obliged to ask each and every candidate if they are legally entitled to work in this country? Is this a new Federal or state law, or just recommended practice?

Employers are not legally obligated to ask every job candidate whether they are legally entitled to work in the U.S. An employer is permitted to ask this of job candidates but should take care to avoid charges of discrimination by not asking candidates about their race, religion, or national origin. If the employer asks if a candidate is authorized to work in the U.S., whether on an application or in the interview process, the employer must ask all job applicants the same question to avoid discriminatory claims.

Within three days of an employee's hire, however, the employer is required to review the employee's work authorization documents and must complete an I-9 Form attesting to that work authorization. Proper completion of the I-9 Form is extremely important, especially given the recent increase in the number of government audits. There is a new I-9 Form which has eliminated some of the documents an employee could use. You can find the form on the USCIS site under Immigration Forms.

-- CAROLYN FUCHS
with Molly Carey

H1-B visas for new employees

When should we begin preparing an H-1B visa petition for a new employee?

Under the H-1B quota rules, employers may file H-1B visa petitions for new employees beginning on April 1, 2008. There is an annual quota of 65,000 H-1B visas in the U.S., and an additional 20,000 for persons who have advanced U.S. degrees may be allocated. It is important to note that certain non-profit and government employers are exempt from the quota system and may file H-1B petitions at any time. However, this exemption is very limited and does not apply to private employers at all.

Also, if a job applicant has an H-1B visa for another employer, the quota does not apply since he/she already has a quota number. A new employer may file an H-1B petition so long as the applicant has not reached the 6-year limit on this type of visa. Similarly, the quota does not apply to your own employees who need to file for an extension of H-1B status to continue their employment with your organization.

It is important to note that even though the H-1B petition may be filed and approved during the spring -- whether an employer is applying on behalf of a new employee outside of the U.S. or a current employee who is in the U.S. on another work status -- if successful, the H-1B visa will only permit the employee to begin working in H-1B status on October 1, 2008. The employer should carefully note whether there is a gap between the expiration of the employee's current work authorization and October 1, 2008. Depending on the circumstances, the employee will have to cease working and may have to depart the U.S. to await the October 1 start date.

Given the annual quota of H-1B visas, employers should be prepared to mail petitions for receipt by USCIS on April 1, 2008. Based on the tremendous number of applications received by USCIS last year, it is speculated that USCIS will likely receive more applications on April 1, 2008 than there are available H-1B visas. Like last year, it is expected that the petitions received by USCIS on April 1, 2008 will be subject to a lottery in order to determine who will be granted an H-1B visa. If all the quota numbers are exhausted by the April 1 filings, the lottery will also include those petitions received on April 2.

Employers should be sure to note that filing an H-1B petition, even if received by USCIS on April 1, 2008, will not guarantee that the employee will receive an H-1B visa. Employers should therefore consult with immigration counsel to assess viability as well as determine if there are any other visa options.

-- CAROLYN FUCHS
with Molly Carey

Foreign nationals and H1-B visas

Our management and technology consulting firm needs to hire foreign consultants (engineers, scientists, etc.) for some of the contracts we accept. A small portion of our consultants resides internationally and does not wish to relocate to the U.S. On the contrary, most of the work is being done where they reside, so there is usually no need for them to travel to the U.S. If a foreign consultant is not in need of an H1-B visa to reside on a temporary basis, and if the work is being conducted internationally, do we still need the H1-B visa to pay them? We are of the understanding that for those whose contract does require them to enter the U.S. for a month or more on a project, they would need the H1-B. With the limited number of H1-B visas available, how do we still legally pay for work we wish to have completed when the work does not require them to enter the U.S.?

If you have foreign employees who work for your company outside the U.S. but you wish to pay them on your U.S. payroll, you do not have to obtain H-1B visas for them. You should consult with payroll and tax professionals to ensure you are complying with applicable tax and withholding requirements and the employees should consult with tax professionals to ensure they are properly reporting their income. You should also consider paying these consultants outside of the U.S. by depositing their payroll in a foreign bank account. If you pay them overseas, and they need to come to the U.S. for business meetings, that fact will help you and the consultants prove to the USCIS that they are in fact employed abroad, not in the U.S.

If these foreign consultants must come to the U.S. from time to time for meetings or to conduct after-sales service for your customers or clients, they may be able to enter the U.S. as visitors for business on a B-1 visa or pursuant to the Visa Waiver Program. If they are coming as visitors, they must take pains to ensure they do not cross the line from "visiting" to "working" in the U.S. as it is not proper for someone to "work" in the U.S. in a visitor visa status. This may become difficult to explain if they are being paid in the U.S. as the source of the remuneration is one factor out of several taken into consideration by the USCIS in determining whether someone is working (improperly) in the U.S. Other factors include the nature of the services being performed in the U.S., which entity will benefit financially from the services, where and how "control" is being exercised over the employee/service provider, etc.

If these foreign consultants are employed by one of your overseas entities (if you have overseas offices) and you wish to bring them here to perform work that would otherwise normally require an H-1B temporary work visa, they may qualify for a "B-1 in lieu of H-1B visa" if they are coming to perform work contemplated by an agreement entered into between their overseas employer (your affiliate overseas) and a U.S. customer or client, or between your company in the U.S. and your affiliate overseas. However, in such a case their work must be supervised by the overseas entity, they must be paid abroad, and other conditions must be met to determine whether the B-1 in lieu of H-1B visa is an option.

In general, if you are considering bringing foreign-based consultants to the U.S., even if for a very short period of time, it is prudent to consult with immigration counsel in advance of finalizing your plans to ensure that the proposed actions are lawful and that your consultants will not encounter difficulties entering the U.S.

-- SUSAN COHEN

TN visas

Can a Canadian citizen hold multiple TN visas and work for more than one employer at a time? Is it legal for a Canadian citizen to apply for a green card while holding a TN visa or does the "temporary" nature of the TN visa preclude application for permanent resident status?

A Canadian citizen may hold multiple TN visas and may work for more than one employer at a time, but each employer must seek approval of its TN application on the employee's behalf and must have its TN petition (form I-129) approved by United States Citizenship and Immigration Service (USCIS) before the employee may legally work for it in TN visa status.

While it is technically legal for someone on TN visa status to apply for permanent residence status, it is a much better and safer practice for the individual to change status to H-1B visa status first. TN status does not allow for "dual intent" which is a legal doctrine embedded in the immigration law which allows a person to have two intentions simultaneously: the intention to be in the U.S. in a temporary work visa status and the intention to immigrate and obtain a permanent immigration status in the U.S. The H-1B visa does allow for dual intent but the TN visa status does not. If someone holds TN visa status and begins the permanent residence status process and that person needs to travel while their permanent residence application is pending, when they attempt to return to the United States they could potentially be prevented from re-entering the country. That risk is eliminated if the person holds H-1B visa status or if they have progressed far enough along in the permanent residence process that they have been issued an Advance Parole travel document and can travel in that status rather than in TN visa status.

-- SUSAN COHEN


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