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Employment Law and Immigration Law

08/11/08

Determining short-term disability terms

One of my employees is scheduling surgery for June, and she has some vacation time earned. Can I force her to use the vacation time and any sick time prior to receiving short-term disability (STD) benefits?

It depends. STD programs are not uniform. Your answer depends on your employer's particular STD program.

Here's what you need to know to get a better answer. Somewhere there is a legal document that describes how your STD program works. It may be referred to as "the plan document," "the summary plan description," or "the insurance policy." It should explain the circumstances in which benefits are provided. You therefore need to refer to that document to determine whether, under your particular program, STD benefits can be withheld until vacation time and sick leave are exhausted.

David Henderson

Including medical questions on applications

We are a transportation contractor and we hire mostly retirees to drive for us. Because of the rigid guidelines in transporting children, our hires must have a physical and TB test. We have run into problems when an applicant does not inform us of a medical condition such as diabetes, high blood pressure or dependence of a hearing aid. We pay for all the physicals, background checks etc., sometimes to find out that because of a medical problem we can't hire them. Can we include on our application questions about the applicant's medical issues so we know right away they are not qualified?

No. It sounds as if your company already has taken necessary care to ensure that it does not overreach in this area. Asking the wrong kinds of questions on an employment application can raise issues of unlawful discrimination or retaliation. In this situation, the concern is about possible unlawful discrimination on the basis of disability/handicap. Both federal and state laws apply.

For example, the Massachusetts Commission Against Discrimination's Guidelines for Employment Discrimination on the Basis of Handicap answer your question in this way:

"Employers many not ask applicants about handicaps or disabilities until after the applicant has been given a conditional job offer. The purpose of this restriction is to isolate consideration of an applicant's job qualifications from any consideration of his/her medical or disability-related condition . . . . A disability-related question is any question that is likely to elicit information about a handicap or disability of the job applicant. Employers may not ask disability questions during the preemployment process, whether on a job application form, in a job interview, or in the employer's background or reference checks."

The answer to your question is essentially the same under federal law. The Interpretative Guidance on Title I of the Americans With Disabilities Act (ADA) states that "an employer may not use an application form that lists a number of potential disabling impairments and ask the applicant to check any of the impairments he or she may have."

Even if the applicant is disabled, the employer still has an obligation to determine whether some reasonable accommodation will allow the applicant to work.

David Henderson

Understanding the new E-Verfy law

What is the new law requiring employers who are federal contractors to use E-Verify to electronically check employment eligibility?

More than 168,000 employers will be affected by a new law, starting in 2009, that requires all federal contractors (and sub-contractors) who provide supplies or services (including construction), to add E-Verify to their I-9 process. E-Verify electronically compares the I-9 data with Social Security Administration (SSA) and Department of Homeland Security (DHS) databases to assure that the employee is authorized to work.

Once the law becomes effective, new or renewed federal contracts will require that E-Verify is used. However, it does not apply to all employees. It is required only for all new hires and only existing employees directly engaged in work under a federal contract that is covered by the new law. Since it appears that not all contracts will be covered, the first step is to identify current federal contracts which are covered and to set-up a system to alert HR when existing employees are assigned to work on new/renewed federal contracts. Using E-Verify on an existing employee where not required may expose the employer to either employee or government liability.

Employers cannot use E-Verify before completing the I-9 and must also comply with all the laws surrounding the I-9 process. All new employees must still complete the I-9 process within 3 days of hire. Existing employees working directly under a federal contract must be verified within 30 days of the contract start date.In order to utilize E-Verify, employers must register by creating an online account.

Detailed information and instructions for registration can be found at http://www.uscis.gov, and click on the e-verify icon.

Carolyn Fuchs

Transporting H-1B employees back to their country

What are the reasonable costs regarding transporting an H-1B Employee back to their country if they are terminated prior to end of their visa expiration date. Also, are their special rules or forms for compliance?

There are no special rules that the DHS has provided for employer guidance. Instead, it has taken the position that it will not generally enforce this requirement and leave it to the parties to resort to state court. An employer is advised to have legal counsel provide a standard form giving the employee notice of this law and requesting that the employee state whether they intend to leave the U.S. or not. If the employee does not plan to leave, no further action should be taken. Otherwise, different types of arrangements can be made; the employer could purchase the ticket or provide the employee with funds or reimbursement after he/she submits a copy of a reservation or ticket. It is generally agreed that only the H-1B worker is covered and not the family of the worker.

Carolyn Fuchs

G-4 visas and green cards

3. We are hiring a foreign worker and sponsoring him. He is waiting for his green card and the priority date is far away — it will be a while before it comes through. Meanwhile, he has an opportunity to do some work for an international firm and is thinking about getting his G-4. We want to know if getting a G-4 invalidates his current green card process or would it continue; in short, is G-4 dual intent/quasi dual intent? - I have seen cases where a person with G-4 has applied for a green card after submitting waivers (I-508)... this is in a way a reverse of it. Please let me know. We do not want him to do anything to jeopardize his long term goal to work for us.

Since this is an employer-based case, many issues may arise about the intent of the employee to work for the employer who sponsored him. Even if this can be resolved, it is unclear whether a G-4 visa would be appropriate. The G-4 visa is for a foreign representative to an U.S. based international organization and must be recognized by our Secretary of State as such. It is issued to diplomats and other government officials who will work for an international organization such as the United Nations.

"Dual Intent," the ability of an individual holding a visa to either wish to remain in the U.S. or intend to return to a foreign residence does not specifically apply to G-4's. However, they are not required to maintain a foreign residence. It would be difficult to predict the outcome, since we do not have enough facts, and the final decision would rest in the discretionary judgment of the immigration officer. In any case, the waiver you mention is required of diplomats who apply for U.S. permanent residency since they must renounce their diplomatic privileges. It would be needed if your employee was able to secure a G-4 and continue to pursue his permanent residency.

Carolyn Fuchs

Questioning immigration status

While conducting an interview with a foreign candidate (e.g. a student in his final year of study), is it legal to ask him what visa he is on? The hiring decision will not be affected by his visa status, as the company is willing to sponsor an H1B visa for the right candidate. However, it is helpful to know if sponsorship is required for the candidate during the interview process. ?

Employers may lawfully ask only the following two questions regarding immigration status in an interview setting:

1. Are you legally authorized to work in the U.S.? Yes or No.

2. Do you now or will you in the future require sponsorship for employment visa status (e.g. H-1B visa status)? Yes or No.

Susan Cohen

Volunteer positions for foreign nationals

Recently we have had a number of folks from Canada and Europe requesting us to put them in volunteer positions. Somewhere I have heard that it is not permissible and that the person wishing to volunteer is in jeopardy of losing their right to work in the USA simply by performing volunteer services while on a work visa. I've been trying to research this on the internet but can not find any helpful sites. Can you offer any advice and also any websites I can refer to for future reference? Thanks in advance for your assistance!

Employers in Massachusetts, and especially for profit business entities, should be careful not to violate state and/or federal payment of wage, minimum wage, employment tax, workers compensation, benefits and other statutes. Independent of the exposure, a foreign national may have for improperly "working" in the U.S. without a proper work visa, the employer may face significant exposure for nonpayment of wages and failure to meet related requirements by having volunteers performing work for them. Both Massachusetts and federal law are strict regarding volunteers. Only employers that have established training programs meeting detailed criteria may take advantage of having unpaid personnel legitimately receiving such training in their workforce. If the criteria are not met, the employer and certain responsible executives could be sued or prosecuted and possibly held liable for fines, back wages, liquidated damages, attorneys fees and perhaps other damages. The federal Fair Labor Standards Act, 20 USC Section 203(g) is the principal federal statute in the area, though not the only source of potential liability.

Susan Cohen

Compensation for weekend events

We currently utilize our salaried employees to attend weekend events which often require the employees to leave on a Friday afternoon and work on Saturday. Our non-exempt employees want to participate in these events. What is the legal way to compensate a non-exempt employee for the travel time? It is voluntary, but it doesn't meet all the other requirements for an unpaid instance. The voluntary part is a big issue because the reason they want to go is because it is fun. Thanks for your help in figuring this out.

The answer depends on the type of event, what the employee does at the event, and whether it is truly voluntary. If the weekend event is a meeting, a seminar, or an otherwise work-related activity, the time must be compensated, unless four criteria are met: (a) attendance is outside the employee's regular work hours; (b) attendance is voluntary; (c) the event is not directly related to the employee's job duties; and (d) the employee does not perform productive work during the event.

Assuming the non-exempt employees in your question do not generally work on Saturday and attendance at the weekend event is voluntary, you still will need to determine whether the employees perform work at the event or whether the event is related to the employees' jobs. If either is the case, the employees must be paid for all hours at the event. Also, to the extent that the event overlaps with the employees' regular work hours (you mentioned they often leave on Friday afternoon), the time is compensable. Although the event may be a fun one that employees want to attend, unless all four criteria stated here are met, you must pay the employees for all the event time, including overtime if their total hours worked in the week exceed forty (and perhaps travel time, as discussed below).

Since your question does not reveal the type of weekend events, there is another issue to consider. If your employees attend a charitable or community-oriented event, the time they voluntarily spend participating outside of normal working hours is not compensable. However, they must be paid for the charitable or public work if it is performed at the employer's request or under company direction or control. In general, whenever your employees are required to be on work premises or at any event, they must be compensated for their time.

Keep in mind that if the time at an event is compensable, you may also need to include travel time to and from the event. With overnight travel, employees must be compensated for all time that corresponds to their normal working hours, including travel on weekends and holidays when the hours correspond to the regular weekday hours (e.g., if an employee works Monday through Friday from 9 a.m. to 5 p.m., then travel on Sunday between 10 a.m. and 1 p.m. would be compensable time worked).

The law in this area can be confusing. Remember you always have the option to be more generous and may choose to pay employees for their time at the weekend events even if the law does not require it.

Krista Pratt

Returning from short-term disbility

I have an employee that is out on short-term disability. I understand that I am required to keep a job open for her, but am I required to keep open the same job she left at the same pay? Thanks.

Your question touches on a number of overlapping employment laws which protect employees who are unable to work for medical reasons. The answer requires coordination between various federal laws, as well as any applicable state laws and your company's leave of absence policies. For example, the federal Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of job-protected medical leave in a 12-month period. The FMLA mandates that employees (except for designated "key employees") returning from leave must be reinstated to the same or an "equivalent" position - meaning one that is "virtually identical" to the employee's former position that carries the same pay, benefits, status, responsibility, and authority.

Pursuant to another federal statute, the Americans with Disabilities Act (ADA), which protects disabled employees, employers must provide reasonable accommodations upon request, which may include an unpaid medical leave of absence. If the employee in your question qualifies as a "disabled" employee under the ADA or state law, then you may need to extend the leave beyond the 12 weeks allotted by the FMLA as a reasonable accommodation, unless doing so would constitute an "undue hardship" (a term of art corresponding to a higher threshold than many employers realize). Although the ADA is not as clear as the FMLA regarding reinstatement rights, the Equal Employment Opportunity Commission (the agency responsible for enforcement of federal discrimination laws) takes the position that the employer must hold an employee's job open during an ADA leave and must return that employee to his or her former job at the end of the leave. In addition, if the employee you mention was disabled from an on-the-job injury, then workers' compensation law may impact her right to reinstatement.

Finally, your question refers to short-term disability (STD) benefits, which typically provide an employee with partial income replacement while he or she is unable to work for medical reasons. With some exceptions, STD benefits are not mandatory and may be offered at the employer's discretion. A company's written policies and plan documents typically will govern employee eligibility for STD benefits. Although many employers confuse STD leave with legal protections offered by the FMLA and the ADA, it is important to consider these concepts separately. Thus, regardless of whether or not an employee on a medical leave of absence qualifies for STD benefits pursuant to an employer's plan, the employee's entitlement to reinstatement will depend on his or her protection under the FMLA, the ADA, workers' compensation laws, or other state leave or anti-discrimination laws. To determine whether you need to reinstate your employee to the same job, you first must assess whether the leave is covered by any state or federal leave laws, and if so, what reinstatement protections apply.

Krista Pratt


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