Author: Dinse
Don’t forget immigration issues when making employment changes
Immigration
by Leigh Cole
Employment-based immigration status generally is specific to the employer and the position. When employees are terminated or promoted or their job description changes, you should expect their employment-based immigration status to be affected. Tensions can run high when an employee’s personal and family immigration status is put at risk, regardless of whether the change is a termination, a voluntary departure, or even a promotion. Employers should identify employees’ immigration status as an issue with an employment change as early as possible.
Record immigration status in personnel files
When an employment relationship isn’t going well or is in transition, it’s important to identify immigration issues as early as possible as you consider how to proceed. Poor performance, termination, job changes, layoffs, and even promotions can be particularly stressful for employees whose permission to live and work in the United States is based on their employment. Also, it’s possible that an employee’s spouse could lose his right to work in the United States if the employee’s job changes or ends. Employers are not required to base employment decisions on immigration considerations or continue employment because of immigration sponsorship. Even so, the dynamic should be brought into the discussion at the outset so the employer isn’t caught off guard by the employee’s questions and concerns regarding job changes and his immigration status.
It’s not unusual for a manager or supervisor who is dealing with changes or HR issues not to know or to forget that an employee’s immigration status is sponsored by the employer. It’s easy to lose track of the immigration element if there’s no mention of it in an employee’s personnel file. I-9s and other immigration records, such as public access files for H-1B cases, should be kept entirely separate from personnel files so they can be readily shared in accordance with lawful requests from government officials (for I-9s) or inquiring members of the public (for public access files). Personnel files should contain copies of the employer’s immigration applications for the employee, including I-129 petitions for nonimmigrant status, Program Electronic Review Management (PERM) applications for labor certification, I-140 petitions for immigrant status (green card), and TN letters of support. If adding copies of immigration applications to personnel files isn’t feasible or practical considering your record-keeping practices, a reasonable alternative is to at least mention in an employee’s personnel file that he has an employment-based immigration case.
Best practice: Keep files for I-9s and public access files for H-1B cases separate from personnel files. Place copies of immigration applications in the employee’s personnel file for future reference.
Ensure counsel is aware of immigration angle
Be sure to bring the employee’s immigration status to the attention of employment counsel advising you on the situation. Employment lawyers aren’t always given the full personnel file for review, and they won’t necessarily know that you sponsored the employee for immigration status. Even if the same law firm handles your immigration and employment matters, employment counsel initially will focus on the facts you share with them and may not identify immigration status as a key issue for preliminary analysis unless you share it. Employees may react differently to employment actions if they believe their immigration status may be in jeopardy. Employment and immigration are related but separate areas, so employment counsel may need to consult with immigration attorneys about the immigration consequences of an employment action.
Best practice: When consulting with employment counsel about job changes, tell your attorneys if an affected employee has employer-sponsored immigration status at the outset.
Consider whether the job change is ‘material’
For all employment-based immigration categories, a material change in employment will likely require an amendment to the employee’s immigration approval. That general principle applies to all employment-based nonimmigrant categories, including E-1 treaty investor, E-2 treaty trader, E-3 specialty occupation worker from Australia, L-1 multinational transferee, O-1 extraordinary ability, P-1 performer/athlete, TN professional under the North American Free Trade Agreement (NAFTA), and others. It also can apply to permanent residency cases, depending on the facts and the status of the application process. Any job change for sponsored employees must be considered in this light.
Under U.S. Citizenship and Immigration Services (USCIS) guidance issued in May 2015 in light of the Simeio decision, employers are required to file an amended H-1B petition if there is a “material change” in employment (see “DHS clarifies ‘material change’ in work location for H-1B employees” on pg. 3 of our June 2015 newsletter). Filing an H-1B amendment triggers a new prevailing wage analysis (and potentially a higher prevailing wage), a new worksite posting regarding the H-1B sponsorship, and the expense and administrative burden of preparing and filing a new petition. An amended H-1B petition must be filed before the employee moves to a different work location outside the area of intended employment covered by the existing H-1B approval. Filing an H-1B amendment after the location of employment changes is not sufficient. So, to maintain H-1B compliance, employers must be vigilant about even seemingly minor changes in the location of employment.
If there is a permanent residency case in process, ultimate approval of the case may be jeopardized if the position changes in material ways and no longer matches the position described in the labor certification or I-140 immigrant petition. For successful approval, the qualifying offer of employment must continue until the employee’s I-485 adjustment application is approved (after labor certification approval, if required, and I-140 approval) or until the I-485 adjustment application has been pending at USCIS for at least six months. The timing of termination or a job change has direct consequences on a pending permanent residency case and should be carefully considered when taking employment actions. Losing the benefit of a permanent residency case in process can have drastic effects for both the employee and the employer, which will have devoted significant time and resources to a case that is no longer viable.
Best practice: Consider potential immigration consequences of any job change for a sponsored employee, and determine whether it’s a material change that will have immigration consequences.
Early termination of H-1B employment has consequences
When H-1B employment ends before H-1B approval expires, the employee’s H-1B status and the H-4 dependent status of her derivative family members are terminated. The employer’s duty to pay the wages set forth in the approved H-1B petition continues until H-1B approval expires or the employer notifies USCIS of the early termination and withdraws the labor condition application approved by the U.S. Department of Labor (DOL). Employers have been held liable for back pay to former H-1B workers for periods beginning with early termination and lasting until the mandated notifications are provided to USCIS and the DOL. Also, if an employer terminates an H-1B employee before her H-1B approval expires, it must offer to pay the costs of return transportation to the worker’s home country and pay the costs if she actually returns to her home country.
Best practice: Identify early H-1B terminations as soon as possible so your required compliance steps can be completed on a timely basis.
USCIS adjudication times for employment authorization
As a general rule, once an employment authorization document (EAD) expires, the person can’t work until a new EAD from USCIS arrives in the mail. On December 31, 2015, USCIS proposed eliminating the requirement that it issue an interim EAD if it takes more than 90 days to approve the I-765 application for employment authorization. For years, employers and employees have been able to count on receiving EADs within 90 days or, if not, obtaining an interim EAD promptly from a local USCIS office.
USCIS hasn’t issued the final rule yet, but employers should expect it soon. I-765 applications for employment authorization should now be filed 120, not 90, days in advance. The change is most relevant to employees who are permanent residency applicants with pending I-485 applications for adjustment of status and beneficiaries of Deferred Action for Childhood Arrivals (DACA). If you have employees who renew their EADs each year, please share this information with them so they will know to apply earlier going forward.
The author can be reached at lcole@dinse.com or 802-859-7035.
Leigh Cole and Jeff Nolan Present at UVM Legal Issues Conference (October 2017)
Each fall the University of Vermont presents a popular national conference on legal issues in higher education, designed for education administrators. This year Leigh Cole and Jeff Nolan participated as speakers on topics including current legal trends in campus threat assessment, sexual assault-related litigation, and emotional support animals (Jeff) and immigration (Leigh).
State employees can’t sue to enforce minimum wage and hour rights
Kendall Hoechst, Amy McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Lauren Sampson
Can a state employee use 21 V.S.A. § 384(b)(7) or Article Four of the Vermont Constitution to sue his employer and enforce his minimum wage and hour rights? The Vermont Supreme Court recently affirmed that state employees are not covered by § 384(b)(7), and Article Four does not create property interests in claimed employment rights.
What the law says
In relevant part, § 384(b) states that an employer “shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek.” The subsection “shall not” apply to “state employees who are covered by the federal Fair Labor Standards Act” (FLSA).
The FLSA did not cover most state government employees when it was passed in 1938. However, when the federal law was amended in 1974, its coverage, including the minimum wage and maximum hour provisions, was “extended . . . to virtually all of the remaining State and local government employees who were not [previously] covered.” There are two key exceptions: elected officials and their appointees, and employees of legislative branches.
In Garcia v. San Antonio Metro. Transit Authority, the U.S. Supreme Court affirmed in 1985 that the FLSA generally covers state employees. In Alden v. Maine, however, the Court concluded in 1999 that state employees do not have a private right of action to enforce the FLSA’s provisions because Article I of the U.S. Constitution doesn’t permit individuals to sue nonconsenting states for damages in state courts.
Chapter I, Article Four, of the Vermont Constitution provides:
Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property, or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; conformably to the laws.
The Vermont Supreme Court has ruled that Article Four is “equivalent to the federal Due Process Clause.” The court has also emphasized that Article Four “does not create substantive rights,” but rather is intended to “ensure access to the judicial process.”
Facts and procedural history
An employee worked for the Vermont Department of Labor (VDOL) from 2010 to 2014. After he was terminated, he sued the VDOL, claiming he had worked 704 hours of overtime over the course of his employment but hadn’t been paid time and a half. He brought claims under 21 V.S.A. § 384(b)(7) and the FLSA, but withdrew the FLSA claim when the state filed a motion arguing it was protected against the federal claim by sovereign immunity. The state then filed a motion asking the court to dismiss the state-law claim. The trial court granted the motion, finding that § 384(b)(7) “plainly exempts State employees” and that Article Four does not give state employees a private right of action to seek damages for unpaid overtime. The former employee appealed to the Vermont Supreme Court.
The employee argued that before 1994, when § 384 was amended, state employees were “statutorily excluded” from coverage under Vermont’s minimum wage and overtime law. He suggested that the fact that § 384 was amended in 1994 demonstrated that the legislature “intended for the State to be accountable to its employees for minimum wage and overtime wages.” That intent, according to the employee, was thwarted by the U.S. Supreme Court’s decision in Alden. He further argued that the FLSA is insufficient as a remedy because “for wronged state employees seeking the wages to which they are entitled by state statute, [the] FLSA effectively does not exist.” To that end, he maintained that despite its plain language, § 384( b)(7) provides state employees a private right of action to enforce the minimum wage and overtime law.
Second, the former employee argued that he could enforce his rights against the state through Article Four of the Vermont Constitution because it provides due process relief for plaintiffs with statutory rights, and state employees have a statutory property right to payment under the minimum wage and overtime law. Further, he stressed that he has no private right of action under the FLSA, and the “only other remedy”—that is, the wage complaint process through the U.S. Department of Labor (DOL)—is insufficient and doesn’t meet Article Four standards for due-process protection. In other words, there must be an Article Four right of action because he has a property right under the minimum wage and overtime law, but no adequate means of enforcing it.
Decision of the Vermont Supreme Court
In a unanimous decision, the Vermont Supreme Court rejected the former employee’s arguments for three reasons. First, the court declined to interpret § 384(b)(7) in a way that would contravene its plain language. The court noted that it’s illogical to convert an express exemption of state employees to an implied waiver of sovereign immunity, particularly since waivers of sovereign immunity must be express.
Second, the court disputed the former employee’s interpretation of the legislature’s intent in 1994, concluding that if lawmakers wanted to ensure state employees had a private right of action to enforce minimum wage and hour rights, they could have explicitly included language to that effect in the law. The court also noted that the legislature could have added such language following the U.S. Supreme Court’s decision in Alden or after Vermont federal courts concluded that § 384(b)(7) doesn’t waive the state’s sovereign immunity. Indeed, the U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) has determined that although the exception for state employees “implicitly acknowledges” a legal obligation to follow the FLSA, § 384 “says nothing about how that obligation may be enforced.”
Third, the court concluded that the former employee’s characterization of the FLSA as “insufficient” without a private right of action doesn’t provide a legal basis to supplement § 384. The court observed that supplementing or creating a new remedy for the former employee would “infringe on the lawmaking responsibilities” granted to the Vermont Legislature.
Finally, the court rejected the former employee’s contention that state employees have a statutory property right to compensation under the minimum wage and overtime law. To that end, the court emphasized that Article Four doesn’t “create” property interests in alleged employment rights; instead, it affords an employee a remedy only if he “can show that he has a pre-existing property interest in those employment rights.” Because the court concluded that § 384 provides no such right, the former employee had no recourse under Article Four.
Significance for employers
There are a couple of important takeaways from the Vermont Supreme Court’s opinion in this case:
(1) The court unequivocally held that state employees are generally “covered by” the FLSA and that § 384(b)(7) doesn’t provide employees any minimum wage and hour rights or a statutory private right of action to enforce those rights. The court specifically noted the distinction between being covered by the FLSA and having the right to sue the state as an employer under the FLSA. In other words, although the state has a legal obligation to abide by the FLSA, it’s insulated from being sued for alleged violations under § 384. Instead, an FLSA-protected employee may file a complaint with the DOL, which has the discretion to investigate the complaint and bring an enforcement action against the state. To that end, an employee cannot simply resort to citing coverage by or inclusion in a federal or state statute when challenging an employer; he must also show that the legislature intended to afford him a private right of action.
(2) The court clarified that an employee cannot use Article Four to create a property interest or remedy based on an alleged employment right. There must be a stand-alone statutory or common-law cause of action enabling him to bring a claim.
Lauren Sampson can be reached at lsampson@dinse.com or 802-864-5751.
Leigh Cole co-presents second NACUA Briefing on the Phasing-out of DACA
On September 6, 2017 Leigh Cole presented a telephone Briefing for the membership of the National Association of College and University Attorneys (NACUA) regarding the announced phasing-out of the Deferred Action for Childhood Arrivals (DACA) program. She co-presented with Steven Bloom, Director, Government Relations, of the American Council of Education. NACUA Briefings are a new service of NACUA offering timely education on breaking legal developments. Briefings are short, audio-only presentations that are free of charge for NACUA members. Ms. Cole also presented NACUA’s debut Briefing in March 2017 on President Trump’s Executive Orders on immigration, co-presenting with Terry Hartle, Senior Vice President, American Council on Education.
Leigh Cole serves as instructor for NACUA’s online course on Immigration
Leigh Cole once again is serving as an instructor for an online course for the National Association of College and University Attorneys (NACUA). Since 2011 Ms. Cole has co-instructed NACUA’s course “Immigration Basics for Colleges and Universities” with Michael Pfahl, Associate Counsel, Kent State University. NACUA’s online courses offer in-depth coverage of important issues in the practice of higher education law, featuring pre-recorded webinars narrated by leading higher education law experts, extensive course materials, self-assessments and instructor-led conference calls.
Leigh Cole elected to Board of Directors of the National Association of College and University Attorneys (NACUA)
Leigh Cole has been elected to the Board of Directors of the National Association of College and University Attorneys (NACUA). NACUA is the premier organization in the field of higher education law and a primary source of information on legal developments facing colleges and universities.
Leigh Cole represents the firm at the annual meeting of the Employment Law Alliance in Shanghai
The Employment Law Alliance (ELA) held its 2017 annual meeting in Shanghai, bringing together representatives of ELA member firms from jurisdictions around the world. The ELA provides multi-state and multi-national companies seamless and cost-effective services worldwide. ELA membership is driven by quality – both as professionals and individuals. The ELA boasts more Chambers-ranked firms than any other law firm alliance. Firms are invited to become ELA members only after a rigorous due-diligence process, including consultation with experienced in-house counsel, judges, current members, and industry leaders. ELA leadership works hard to maintain a network of legal practitioners who are not just knowledgeable, but also genuinely dedicated to exceptional client service.
Must your website be ADA-compliant? Trump administration remains mum
Kendall Hoechst, Amy McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Kendall Hoechst
Title III of the Americans with Disabilities Act (ADA) requires most businesses that offer goods or services to the public to make those goods and services equally available to disabled consumers. Plaintiffs’ lawyers, lured by the availability of attorneys’ fees under the statute, have begun sending demand letters and initiating ADA lawsuits in droves, claiming a variety of businesses’ websites are insufficiently accessible and are therefore discriminatory. The courts are split on how far Title III extends, resulting in a confusing legal landscape of conflicting guidance.
The U.S. Department of Justice (DOJ) has maintained for years that Title III applies to websites and has promised regulations to provide standards for evaluating website accessibility under Title III. However, the Trump administration recently put those long-overdue regulations on hold—indefinitely. Now, getting answers on this confusing issue will be more difficult than ever, but there are steps you can take to reduce your potential risk.
Title III of the ADA
Title III of the ADA requires all places of “public accommodation” (which includes most businesses that provide goods or services to the public) to ensure that consumers with disabilities are able to participate in the “full and equal enjoyment” of the goods or services they provide. Places of public accommodation may be required to make reasonable modifications to their practices or procedures, provide auxiliary aids and services, and remove architectural and communication barriers in their existing facilities.
The ADA was the most sweeping civil rights legislation passed by Congress since Title VII of the Civil Rights Act of 1964, but the Internet didn’t exist when it was drafted. Lawmakers had no conception of how the World Wide Web would change global commerce or affect our daily lives. Now that the Internet’s central role in modern life is unassailable, determining how Title III’s general prohibition on discrimination translates in the digital age has been a challenge for employers and for the courts. What a business should be required to do to ensure its website doesn’t discriminate against visitors with disabilities is the subject of much debate.
Title III provides for a private right of action for injunctive relief and an award of attorneys’ fees and costs. However, no monetary damages are available. The incentive of attorneys’ fees has led to a recent glut of demand letters by plaintiffs’ lawyers and a corresponding increase in ADA lawsuits filed in the federal courts. The same small groups of lawyers have sent hundreds, if not thousands, of demand letters to businesses all over the country, and they show no signs of slowing down.
Split over applicability to nonphysical access
The federal circuit courts of appeal are split on whether Title III applies only to discrimination occurring at a physical place. Courts on the narrow end, including the 3rd, 6th, and 9th Circuits, have concluded that public accommodations must be physical spaces or the goods and services provided must have a sufficient nexus to a physical place in order to be covered by Title III. A brick-and-mortar store that has an online shopping function on its website might be a public accommodation under this analysis, but an online-only retailer would not.
Courts on the broad end, including the 1st, 2nd, and 7th Circuits, have read Title III to encompass more than physical access to particular types of businesses. (The 2nd Circuit’s rulings apply to all Vermont employers.) These courts have concluded that discrimination may occur when goods or services of a public accommodation are enjoyed by customers who never visit a physical location.
Federal district courts applying and interpreting Title III in cases where the business’s website has no connection to a physical place open to the public have reached results on both ends of the spectrum and in between. The best indication of how a Vermont court would apply Title III is a 2015 case from the U.S. District Court for the District of Vermont that suggests the ADA will be interpreted broadly here. In National Federation of the Blind v. Scribd Inc., the court held that a digital library’s website and mobile applications were public accommodations under Title III even though the website operator had no goods or services available at a physical location open to the public. That suggests that even businesses that don’t have any physical offices or facilities open to the public may nevertheless be required to make their websites accessible.
So far, most of the cases that have been brought before the courts have settled. No court has provided a clear indication of what would be required to demonstrate that a website is appropriately accessible or that modifications are not necessary.
DOJ’s interpretation of Title III
As early as 1996, the DOJ took the position that Title III applies to websites and Web-based goods and service providers. In 2010, the DOJ maintained that position in an Advanced Notice of Proposed Rulemaking in which it considered revising the regulations implementing Title III to establish requirements for making the goods and services offered by public accommodations accessible to individuals with disabilities. The DOJ sought comments from the public on issues such as how much time businesses should have to comply and the standard that should be adopted to define an accessible website.
Observers have speculated that the regulations might require websites to conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA. Those voluntary guidelines, issued by the World Wide Web Consortium (W3C), have been cited with approval by the DOJ in public settlement agreements of Title III lawsuits. The WCAG ensure that websites have features that people with disabilities need for accessibility, such as compatibility with screen readers for users who are blind or have visual impairments and captions for audio content for users who are deaf or hard of hearing. The WCAG have been adopted as the standard for federal agency websites and are considered the gold standard by private- sector experts.
While the DOJ has insisted that websites need to be accessible, it hasn’t provided any guidance in the form of regulations after 2010 to enable businesses to determine whether their websites meet the standard. The DOJ has nevertheless pressured businesses to make their websites more accessible.
Without clear standards, confusion has reigned, and it’s now likely to continue indefinitely. Federal agencies periodically provide notice in the Unified Regulatory Agenda about the regulations that are under development. The Trump administration’s first agenda, published on July 20, 2017, lists the website accessibility regulations on its “inactive” list. This appears to be part of the administration’s larger effort to reduce the number of regulations that are in development and signals that the website accessibility regulations have been shelved for now.
What does this mean for employers?
Despite the lack of regulatory assistance, the leading Vermont case on the issue suggests that Vermont courts will apply Title III to employers’ websites. Assuming there’s a duty to make websites accessible, Title III doesn’t provide for monetary damages. However, given the lack of clear standards, it could be expensive to make a website compliant, and a lawsuit might result in an award of attorneys’ fees to a successful plaintiff.
Some cases suggest that an effective alternative to website accessibility could be acceptable. For example, if it’s possible to staff an alternative means of access, such as a 24-hour toll-free phone number listed on the website, that may be enough to accommodate disabled visitors.
You may wish to consider proactively ensuring your website is accessible. For example, you could hire an expert familiar with the technical requirements of WCAG 2.0 AA to scan your website and provide recommendations. You may also want to keep accessibility issues in mind the next time your website is redesigned.
Kendall Hoechst can be reached at khoechst@dinse.com or 802-859-7042.
Best Lawyers Recognizes Twelve Dinse Attorneys
Dinse, Knapp & McAndrew announces that twelve of its attorneys were recently selected by their peers for inclusion in the The Best Lawyers in America® 2015 (Copyright 2012 by Woodward/White, Inc., of Aiken, S.C.) in eighteen different practice areas. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
The practice areas and the attorney(s) listed in each area are as follows:
Commercial Litigation: Ritchie E. Berger, Karen McAndrew
Corporate Compliance: David Gurtman
Corporate Governance Law: Brian Murphy
Corporate Law: Jeffrey J. McMahan, Brian R. Murphy
Employment Law – Management: Amy M. McLaughlin, Jeffrey J. Nolan
Immigration Law: Leigh Polk Cole
Litigation – Construction: Karen McAndrew
Litigation – Intellectual Property: Shapleigh Smith, Jr.
Litigation – Labor & Employment: Amy M. McLaughlin
Medical Malpractice Law – Defendants: Ritchie E. Berger
Mergers & Acquisitions Law: Brian R. Murphy
Non-Profit / Charities Law: Brian R. Murphy
Personal Injury Litigation – Defendants: Ritchie E. Berger, Karen McAndrew
Product Liability Litigation – Defendants: Shapleigh Smith, Jr.
Real Estate Law: Austin D. Hart, Molly K. Lebowitz
Tax Law: Mark A. Langan
Technology Law: Jeffrey J. McMahan
Trusts and Estates: Mark A. Langan
Dinse, Knapp & McAndrew is one of the largest and most respected law firms in Vermont and northern New York. At Dinse, client service is our highest priority. For more information, please visit our website at www.dinse.com.