AGC's Human Resource and Labor News - March 21, 2012 / Issue No. 2-12 (Print All Articles)

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First Court to Rule on NLRB Notice Posting Regulation Upholds Posting Requirement

On March 2, 2012, a federal court in Washington, D.C., upheld most of the National Labor Relations Board (NLRB) notice posting rule. The posting rule is described here, here, and here.

On March 2, 2012, a federal court in Washington, D.C., upheld most of the National Labor Relations Board (NLRB) notice posting rule. The posting rule is described here, here, and here.

The court upheld the NLRB’s right to issue the posting requirement but invalidated the remedial portions of the rule. The court ruled that failing to post the notice cannot automatically constitute an unfair labor practice. The NLRB would have to prove each unfair labor practice on a case-by-case basis.  The court likewise invalidated the portion of the rule automatically tolling the statue of limitations in unfair labor practice cases involving a job site where the notice was not posted.  However, the court again left the door open for the NLRB to make such decisions on a case-by-case basis.

The plaintiffs in the case also included a challenge to the president’s right to make recess appointments to the NLRB earlier this year while the Senate was not technically in recess. As expected, the judge refused to consider this challenge, leaving the issue to be decided in a future case.

In essence, the posting requirement stands for now, and penalties may be assessed on a case-by-case basis. Both parties are likely to appeal the decision, and a decision in a separate lawsuit challenging the rule in a South Carolina federal court is still pending.  As a result, the posting requirement might be delayed further or struck down altogether.  Until such a ruling occurs, employers are advised to be prepared to post the notice by the current deadline of April 30, 2012.  Click here for information about obtaining the poster.

Nat’l Ass’n of Mfrs. v. NLRB, Case No. 11-1629 (DC Cir., 3/2/12).

For more information, please contact Denise Gold at (703) 837-5326 or goldd@agc.org.


Construction Industry Experiences Slight Increase in Union Representation in 2011

The percentage of construction workers represented by a union rose very slightly in 2011, to 14.9 percent from 13.7 percent in 2010, according to the latest data released by the Bureau of Labor Statistics (BLS).  The median weekly earnings of workers in the industry also increased over the year, according to BLS – from $735 to $746.

The percentage of construction workers represented by a union rose very slightly in 2011, to 14.9 percent from 13.7 percent in 2010, according to the latest data released by the Bureau of Labor Statistics (BLS).  The median weekly earnings of workers in the industry also increased over the year, according to BLS – from $735 to $746.

BLS reports that the total number of workers in the industry rose from 6.103 million in 2010 to 6.244 million in 2011.  However, the total number of workers employed in construction and extraction occupations (as compared to all types of employees working in the industry) declined in 2011, from 5.579 million workers to 5.575 million.  At the same time, the percentage of workers in such occupations who were represented by a union increased somewhat, from 19.7 percent in 2010 to 20.1 percent in 2011.

Note that BLS data include residential construction, which is historically far less unionized than other sectors of the industry.

Construction continues to have one of the highest union representation rates among private industries, exceeded only by the transportation and utilities industries.  Union representation across all private-sector industries was 7.6 percent in 2011, as compared to 7.7 percent in 2010.

BLS data for the industry further reveal that median weekly earnings of union-represented workers fell from $1,046 in 2010 to $1,037 in 2011, while earnings of those not represented by a union rose from $692 in 2010 to $698 in 2011.


CDW and Chamber Join Lawsuit Challenging NLRB Recess Appointments

The Coalition for a Democratic Workplace (“CDW”) and the U.S. Chamber of Commerce (“Chamber”) have jointly filed a motion to intervene in a case challenging Pres. Obama’s latest appointments to the National Labor Relations Board (“NLRB” or “Board”).  AGC is a member of both organizations.

The Coalition for a Democratic Workplace (“CDW”) and the U.S. Chamber of Commerce (“Chamber”) have jointly filed a motion to intervene in a case challenging Pres. Obama’s latest appointments to the National Labor Relations Board (“NLRB” or “Board”).  AGC is a member of both organizations.

The U.S. Supreme Court ruled in 2010 that Board must have at least three members to issue legally effective decisions.  The Board was down to just two members on Jan. 4 when Pres. Obama bypassed the Senate confirmation process and announced three recess appointments to the Board.  At the time, Congress was holding pro forma sessions and was arguably not in recess.  The three new members took office on Jan. 9 and began issuing decisions.  The CDW and Chamber assert that the recess appointments were unconstitutional, leaving the Board with only two properly appointed members and rendering those decisions invalid.

The case in which the CDW and Chamber have intervened, Noel Canning v. NLRB, is an appeal of a decision issued by the Board on Feb. 8 holding that the employer – a small bottling company in Washington state – unlawfully refused to reduce to writing a verbal collective bargaining agreement with a union.  The appeal is pending at the U.S. Court of Appeals for the District of Columbia.

CDW and various co-plaintiffs lost another challenge to the recess appointments in a separate case recently decided by the U.S. District Court for the District of Columbia. The primary focus of that case was a challenge to the Board’s authority to issue a final rule requiring employers to post notices of employee rights under the National Labor Relations Act.  Click here to read more about that case.


Contractor Must Give Work to Plasterers Even Though Carpenters Won Representation Election

A contractor must comply with an arbitration award assigning work to members of the Plasterers union rather than the Carpenters despite the fact that the contractor’s employees have elected the Carpenters as their exclusive collective bargaining representative, the U.S. District Court for the District of Columbia has held.

A contractor must comply with an arbitration award assigning work to members of the Plasterers union rather than the Carpenters despite the fact that the contractor’s employees have elected the Carpenters as their exclusive collective bargaining representative, the U.S. District Court for the District of Columbia has held.

The case arose out of Frye Construction’s assignment of work at an elementary school project in Los Angeles, CA, to its employees who were represented by the Southwest Regional Council of Carpenters.  At the time, Frye was not signatory to the Los Angeles Unified School District Project Stabilization Agreement (LAUSD Agreement) – an 8(f) project agreement used for such school construction projects – but numerous unions were, including the Southwest Regional Council of Carpenters and Plasterers Local 200.  Plasterers Local 200 disputed Frye’s assignment under the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry, which was incorporated into the LAUSD Agreement.  An arbitrator ruled in favor of the Plasterers Local 200, finding that its members were entitled to the work.  However, just five days prior to the arbitrator’s ruling, the Carpenters council was certified by the National Labor Relations Board as the exclusive bargaining representative for Frye’s employees following a unanimous vote by the workers.  One month after the arbitrator’s ruling, Frye signed a letter of assent binding itself to the LAUSD Agreement.  Still, Frye refused to comply with the arbitrator’s decision.  The Carpenters filed a petition with the court to vacate the arbitration award, and the Plasters filed a motion to enforce the award.

The court held that the arbitration award is enforceable.  The Carpenters argued that the arbitration award directly conflicts with its election and certification as Frye’s employee’s exclusive bargaining representative.  While the court noted that such a certification nullifies any conflicting contractual obligations arising out of a pre-existing 8(f) agreements with another union, the court rejected the Carpenters’ argument for several reasons.

First, the court said, the LAUSD Agreement did not require Frye's employees to recognize another union as their bargaining representative.  Frye's adoption of the agreement was therefore valid and requires its adherence to jurisdictional decisions made in accordance with the Plan.  Second, the Carpenters' argument overlooks the differences between a jurisdictional dispute and a representational dispute.  The Carpenters’ certification as the exclusive bargaining representative of Frye’s employees “pertains only to the representation of those employees, and not to the work assigned to those employees by the employer,” the court explained.  Third, the arbitration award can be enforced in a manner that does not violate the National Relations Labor Act and that requires Frye to fulfill the obligations it assumed with its letter of assent.  The court agreed with the Plasterers that Frye could comply with the award without interfering with Frye’s employees’ choice of representation by subcontracting the work to a subcontractor that uses employees represented by Plasterers Local 200.  Requiring Frye to subcontract the disputed work would hold it to its contractual obligations, the court said.

United Bhd. of Carpenters v. Operative Plasterers & Cement Masons, Case No. 11-353 (D.D.C., 12/1/11).


AGC Urges OFCCP to Exempt Construction Industry from Section 503 Disabilities Regulations

On Feb. 21, 2012, AGC submitted comments on the Dec. 9, 2011, Office of Federal Contract Compliance Program’s (OFCCP) notice of proposed rulemaking, which would implement significant revisions of the regulations governing affirmative action requirements for direct federal contractors and their subcontractors with respect to individuals with disabilities as required by Section 503 of the Rehabilitation Act.

On Feb. 21, 2012, AGC submitted comments on the Dec. 9, 2011, Office of Federal Contract Compliance Program’s (OFCCP) notice of proposed rulemaking, which would implement significant revisions of the regulations governing affirmative action requirements for direct federal contractors and their subcontractors with respect to individuals with disabilities as required by Section 503 of the Rehabilitation Act.  AGC fully supports OFCCP’s stated overall goal of increasing employment opportunities for individuals with disabilities; however, AGC believes the requirements of complying with this rule, if implemented, would be extremely burdensome on construction contractors due to the unique nature of the construction industry.  As a result, AGC’s comments ask OFCCP to exempt the construction industry from the requirements of the proposed rule, with 125 AGC member-companies requesting the same via comments submitted through AGC’s online Action Center.

If implemented, the proposed rule would impact all stages of direct federal contracting and subcontracting for employers.  Specifically, the proposed rule would require covered employers to:

  • Meet a national utilization goal of 7% per job category of individuals with disabilities and a sub-goal of 2% for individuals with severe disabilities;
  • extend an offer to self-identify as an individual with a disability pre-hire, post-hire and annually;
  • track and maintain several new data points on disabled referrals, applicants, and hires, and maintain the data for five years;
  • sign written linkage agreements with a minimum of three employment sources for individuals with disabilities, per establishment and perform a self-critical analysis of the effectives of each;
  • create a file for every known disabled applicant and employee, to include every opportunity for which he or she was considered (vacancy, training and promotion), and a statement outlining the reason for rejection if not selected;
  • conduct annual meeting and training programs for all employees and management;
  • perform and document annual reviews of job descriptions listing the physical and mental job qualifications for all job openings and provide an explanation regarding why each requirement is related to the job;
  • develop internal procedures to further inform employees about the affirmative action plan; and
  • develop extensive specified written procedures for processing requests for reasonable accommodation.

To read more about the proposed rule, click here.

Originally, OFCCP issued a comment deadline of Feb. 7.  Given the importance of the proposal and feedback received from an AGC-hosted a conference call with its HR Forum Federal Subforum to discuss the implications of the proposed rule, AGC submitted a letter to OFCCP requesting an additional 60 days to more thoroughly review and comment on the newly proposed requirements.  The request was denied.  In a second attempt, AGC submitted a follow-up letter to U.S. Department of Labor Secretary Hilda Solis regarding AGC’s disappointment with the denial of the original request, asking again for a 60-day extension of the comment period.  While a 60-day extension was not approved, OFCCP extended the comment deadline by 14 days.

For additional information, contact Tamika C. Carter, PHR at cartert@agc.org or 703-837-5382.


EEOC Clarifies Hiring Guidance on High School Diploma Requirements, Disabled Veterans

The Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing the federal laws that make it illegal to discriminate against a job applicant or an employee, has recently issued two guidance documents for employers, one on employer requirements that applicants have a high school diploma and the other on the employment of veterans with disabilities.  The guidance addresses the effect that the Americans with Disabilities Act (ADA) has on each hiring issue.

The Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing the federal laws that make it illegal to discriminate against a job applicant or an employee, has recently issued two guidance documents for employers, one on employer requirements that applicants have a high school diploma and the other on the employment of veterans with disabilities.  The guidance addresses the effect that the Americans with Disabilities Act (ADA) has on each hiring issue.

Regarding high school diplomas, the EEOC’s most recent guidance is a response to feedback regarding an informal discussion letter posted by the EEOC in 2011, which stated that requiring applicants to have a high school diploma may violate the ADA if it screens out individuals who cannot obtain a diploma because of a learning disability, unless the employer can demonstrate that the requirement is job-related and consistent with business necessity.

In question-and-answer format, the new guidance explains that the previous guidance does not make it illegal for a business to require that applicants have a high school diploma.  However, an employer may be required to permit someone who claims to have a disability that prevented him or her from getting a high school diploma show by other means that he or she is qualified for the job.  For example, the employer may consider work experience in the same or similar jobs, or permit the applicant to demonstrate performance of the essential functions of the job.  The employer can also require the applicant to show proof of a disability and that the disability actually prevents the applicant from meeting the diploma requirement. 

The guidance also clarifies that “the ADA only protects someone whose disability makes it impossible for him or her to get a diploma.”  The statute does not protect an individual who simply decided not to get a high school diploma.  In addition, the guidance explains that employers do not have to give preference to an individual with a disability over an individual without a disability, but may still choose the candidate who is best able to perform the essential duties of the job.

Regarding the employment of veterans with disabilities, the EEOC’s Guide for Employers explains protections for veterans with service-connected disabilities under the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

The guide describes how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities, and briefly explains how protections for veterans with disabilities differ under USERRA and the ADA.  The guide also provides information on laws and regulations that employers may find helpful when recruiting and hiring veterans with disabilities is a company priority.  

Specifically, the guide addresses the following questions:

  • What protections does the ADA provide to veterans with disabilities;
  • When is a veteran with a service-connected disability protected by the ADA;
  • May an employer ask if an applicant is a “disabled veteran” if it is seeking to hire someone with a disability;
  • What steps should an employer take if it asks an applicant to self-identify as a “disabled veteran” for affirmative action purposes;
  • Are there any laws that allow agencies to give special considerations to veterans with disabilities who are looking for jobs with the federal government;
  • May a private employer give preference in hiring to a veteran with a disability over other applicants;
  • What are some specific steps employers may take to recruit and hiring veterans with disabilities;
  • What types of reasonable accommodations may veterans with disabilities need for the application process or during employment;
  • How does an employer know when a veteran with a disability needs and accommodation;
  • May an employer ask a veteran with a disability whether a reasonable accommodation is needed if none has been requested; and
  • How does USERRA differ from the ADA?

For additional information on the ADA and the laws enforced by the EEOC, visit AGC’s Labor and HR Topical Resources webpage or the EEOC website.


IRS Issues Guidance for Employers on Tax Credit for Hiring Veterans

On Feb. 9, 2012, the IRS released guidance and forms that employers may use to claim the newly-expanded tax credit for hiring veterans as outlined in the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011.

On Feb. 9, 2012, the IRS released guidance and forms that employers may use to claim the newly-expanded tax credit for hiring veterans as outlined in the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011.

Enacted Nov. 21, 2011, the VOW Act provides an expanded Work Opportunity Tax Credit to businesses that hire eligible unemployed veterans, and for the first time, also makes the credit available to certain tax-exempt organizations.  While the VOW Act offers many direct benefits to personally assist the nation’s veterans, such as education and training programs, for employers, the law provides tax incentives when qualifying unemployed veterans are hired and begin work between Nov. 22, 2011, and Dec. 31, 2012.

Up to $2,400 in tax credits are available for employers who hire veterans who have been unemployed at least four weeks; up to $5,600 for hiring veterans who have been unemployed longer than six months; and up to $9,600 for employers that hire veterans who have service-connected disabilities and have been unemployed longer than six months.

For additional information on the VOW Act, click here.  For details on claiming the credit, click here.


Affordable Care Act Questions Answered

With several agencies sharing the task of issuing regulations and guidance regarding the Patient Protection and Affordable Care Act (PPACA), many questions are finally being answered about how the requirements of the 2010 law will actually be administered.

With several agencies sharing the task of issuing regulations and guidance regarding the Patient Protection and Affordable Care Act (PPACA), many questions are finally being answered about how the requirements of the 2010 law will actually be administered.

On January 23, 2012, the Internal Revenue Service (IRS) issued Notice 2012-9, guidance for employers on reporting the cost of group health insurance to employees on Forms W-2.  In a question-and-answer format, the guidance addresses issues such as cost of coverage under an employee assistance program, cost of coverage under health reimbursement plans, and the application of after-tax benefits for employees.   The reporting requirement is applicable to Forms W-2 issued to workers at the conclusion of the 2012 tax year; however, employers who are required to file fewer than 250 2011 Forms W-2 will not be subject to the reporting requirement for 2012 Forms W-2.

On February 9, the U.S. Department of Labor (DOL) issued a notice answering employers’ frequently asked questions regarding automatic enrollments, employer shared responsibility payments, and waiting periods under PPACA.  Topics covered include the status of future guidance on: automatic enrollments; using an employee’s W-2 wages as a safe harbor in determining the affordability of employer coverage; shared responsibility provisions; look-back/stability period safe harbors; determining whether a newly-hired employee is a full-time employee; coverage of part-time employees; and the 90-day waiting period.

Additionally on February 2, DOL, along with the IRS and the Department of Health and Human Services (HHS), determined that health insurers must provide a standardized, easy-to-understand summary of benefits and coverage (SBC) for health plans as well as a uniform glossary of coverage terms for plan years beginning on or after September 23, 2012.  The final rule and related guidance was published in the Federal Register on February 14.

According to the rule, employers are allowed to provide the SBC as part of a summary plan description or other summary document, rather than only as a stand-alone document.  They are also permitted to provide the documents electronically, as long as the standard Employee Retirement Income Security Act (ERISA) rules on electronic disclosure are met.  In addition to the SBC requirements, plan sponsors must make available to employees (upon request) a uniform glossary of commonly used health coverage and medical terms, such co-payment, deductible, and in-network. 

On March 12, HHS released another long-awaited final rule implementing the new health insurance exchanges established by PPACA.  The exchanges, set to become operational as of January 1, 2014, are designed to work as state-based virtual health insurance marketplaces where individuals and small businesses can evaluate and purchase health insurance.  The final rule establishes the minimum standards that states must meet to create and operate an exchange, sets forth individual and employer eligibility and enrollment standards for the exchange, outlines minimum standards that health insurance providers must meet to participate in an exchange, and creates an online application and enrollment process for consumers.   The rule also provides basic standards that must be met in order for employers to participate in the Small Business Health Options Program (SHOP), a program designed to enable small employers to enhance their purchasing power within the exchanges. 

In order to be eligible to participate in the SHOP, businesses must have fewer than 100 employees, although states can limit participation to businesses with up to 50 employees until 2016.  Beginning in 2017, states will be able to allow businesses with more than 100 employees to participate.  Employers with 25 or fewer employees who are paid an average of less than $50,000 per year will be eligible for a small business tax credit for up to 50% of the employer’s premium contributions toward employee coverage, provided the employers offer all full-time employees coverage and pay at least 50% of their health premiums.  The SHOP will allow employers to choose the level of coverage they will provide and offer employees a choice among all qualified health plans within that level of coverage.  According to the fact sheet, employers can offer coverage from multiple insurers but get a single bill and write a single check.  SHOP Exchanges can also allow employers to select a single plan to offer its employees.

For additional information, guidance and fact sheets, visit the PPACA page of the DOL website, the IRS website, and the HHS website.


Labor Department Updates FMLA E-Laws Advisor

The U. S. Department of Labor’s Wage and Hour Division (WHD) recently released an updated version of its elaws Advisor regarding the Family and Medical Leave Act (FMLA), a federal law that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified reasons.   The FMLA elaws Advisor was revised to reflect recent statutory changes to the FMLA and corresponding regulatory changes that became effective in January  2009.

The U. S. Department of Labor’s Wage and Hour Division (WHD) recently released an updated version of its elaws Advisor regarding the Family and Medical Leave Act (FMLA), a federal law that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified reasons.   The FMLA elaws Advisor was revised to reflect recent statutory changes to the FMLA and corresponding regulatory changes that became effective in January  2009.

The Labor Department’s elaws Advisors are interactive online tools intended to provide easy-to-understand information about federal employment laws by simulating interaction with an employment law expert through a series of questions and answers.  The FMLA eLaws advisor helps to clarify which employers are required to provide FMLA leave as well as which employees are eligible to take such leave.  In addition, it outlines valid reasons for leave, employer and employee notice requirements, entitlements and benefits provided under the law, and situations for which FMLA leave may be used.    

This resource should only be used for general guidance regarding the application of the FMLA.  For specific guidance, contact an employment law attorney familiar with FMLA issues in your state.   For more information about the FMLA, click here to access AGC’s Labor & HR Topical Resources library, and select the main category “Leave” and the subcategory “Family and Medical Leave Act.”  Click here to access the Labor Department’s other elaws Advisors, which cover the Fair Labor Standards Act, Drug-Free Workplace Act, Uniformed Services Employment & Reemployment Rights Act, and several other employment law matters.


Justice Department Issues Guidance for Employers on I-9 Audits

An increase in I-9 audits over the past few years has spurred the Civil Rights Division of the U.S. Department of Justice (DOJ) to issue guidance for employers that are the subject of an I-9 audit.  DOJ’s guidance shares best practices and steps employers should take to avoid charges of discrimination when faced with an Immigration and Customs Enforcement (ICE) I-9 audit.

An increase in I-9 audits over the past few years has spurred the Civil Rights Division of the U.S. Department of Justice (DOJ) to issue guidance for employers that are the subject of an I-9 audit.  DOJ’s guidance shares best practices and steps employers should take to avoid charges of discrimination when faced with an Immigration and Customs Enforcement (ICE) I-9 audit.

DOJ suggests that employers do:

  • Develop a transparent process for interacting with employees during an ICE audit, including communicating with employees that the employer is subject to an ICE audit;
  • Provide workers with a reasonable amount of time to correct discrepancies in their records identified by ICE;
  • Treat all workers in the same manner during the audit, without regard to national origin or citizenship status;
  • Inform unions (if applicable) of the ICE audit and determine whether a collective bargaining agreement triggers any obligations;
  • Inform employees from whom they seek information that they are seeing this information in response to an ICE audit;
  • Communicate in writing with employees, describing the specific basis for the discrepancy and/or what information is needed from them; and
  • Follow the instructions on the ICE notice and the instructions on Form I-9 when correcting errors on the forms.

In addition, DOJ suggests that employers do not:

  • Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status;
  • Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I-9 documents;
  • Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain;
  • Limit the range of documents that employees are allowed to present for purposes of the Form I-9; or
  • Treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.

Because I-9 audits no longer involve multiple ICE agents arriving with guns, as was common during worksite raids in previous eras, some companies may assume that a notice of inspection (NOI) received from ICE is merely a formality and is not taken seriously, until it is too late.  AGC has several resources that will provide guidance to employers who receive NOIs, including AGC’s Seven Critical Steps for Surviving an I-9 Audit, which outlines what to do when a NOI is received.

For additional resources and guidance on I-9 audits, visit the Labor and HR Topical Resources section of the AGC website.  The primary category is “Other Legal Issues” and the secondary category is “Immigration and Employment Eligibility.”


DOL Issues Final Rule on Temporary Foreign Workers

On Feb. 21, 2012, the U.S. Department of Labor’s Wage and Hour Division and Employment and Training Administration issued a final rule implementing stricter guidelines regarding the H-2B temporary nonagricultural worker program, a program that allows foreign workers to enter the U.S. on a temporary basis when qualified U.S. workers are not available and when employment of those workers will not adversely affect the wages and working conditions of U.S. workers.  The rule will affect H-2B applications filed on or after April 23, 2012.

On Feb. 21, 2012, the U.S. Department of Labor’s Wage and Hour Division and Employment and Training Administration issued a final rule implementing stricter guidelines regarding the H-2B temporary nonagricultural worker program, a program that allows foreign workers to enter the U.S. on a temporary basis when qualified U.S. workers are not available and when employment of those workers will not adversely affect the wages and working conditions of U.S. workers.  The rule will affect H-2B applications filed on or after April 23, 2012.

The final rule includes modifications to several aspects of the program in an effort to increase work opportunities for U.S. workers and strengthen worker protections.  Modifications include:  the creation of a national registry for all H-2B job postings; an increase in the amount of time during which U.S. workers must be recruited; the requirement to rehire former employees when they are available; the extension of H-2B program benefits to U.S workers performing substantially the same work as H-2B workers; and an increase in transparency throughout the employment process. 

Modifications to worker protections include:  the prohibition of employer requirements regarding restrictions or obligations on U.S. workers that are not imposed on H-2B workers; the requirement that employers contractually prohibit agents and recruiters from charging fees to prospective H-2B workers; a prohibition on employer and recruiter retaliation against workers who file a complaint, exercise their rights, or help other workers to do so; a requirement that employers provide at least 75 percent of the hours promised; and the prohibiting of temporary staffing agencies and job contractors from participating in the program, except in narrow circumstances.

To prepare for these new requirements, employers should develop a uniform H-2B policy that takes into account all of the financial arrangements with H-2B workers, such as employee relocation expenses and deductions for housing, and allow additional time overall for the application process.

A side-by-side comparison of the old and new regulations, several fact sheets and a summary of the final rule can be found here.  For additional guidance, contact an employment immigration attorney familiar with H-2B issues.


E-Verify “Self-Check” Available Nationwide

On Feb. 17, 2012, the U.S. Citizenship and Immigration Services (USCIS) announced that “Self Check,” a free online service of E-Verify that allows individuals to check their own employment eligibility status, is now available nationwide. This announcement expands on the initial launch of Self Check in March 2011, and an expansion to 16 additional states in September of the same year.

On Feb. 17, 2012, the U.S. Citizenship and Immigration Services (USCIS) announced that “Self Check,” a free online service of E-Verify that allows individuals to check their own employment eligibility status, is now available nationwide. This announcement expands on the initial launch of Self Check in March 2011, and an expansion to 16 additional states in September of the same year.  

E-Verify Self Check was developed to address employer concerns regarding the inaccuracy of information in the E-Verify system that led to an increased number of tentative nonconfirmations.  As explained in a Feb. 16 Federal Register notice, E-Verify Self Check enables individuals to check their work authorization status prior to employment and facilitate correction of potential errors in federal databases that provide input into the E-Verify process.  If the information provided by the individual matches the information contained in federal databases, a result of “work authorization confirmed” is displayed to the individual.  If the information is a mismatch, E-Verify Self Check will provide the individual a result of “Possible mismatch with SSA” or “Possible mismatch with immigration information.”  It also provides instructions on how to request correction of these potential errors in records contained in these federal databases should the individual choose to do so before any formal, employer run E-Verify query process.

While E-Verify Self Check has the potential to reduce the number of tentative nonconfirmations, employers are reminded and cautioned not to require applicants to self-check prior to applying for a job, as such a practice could violate the anti-discrimination provisions of E-Verify.  It is also important for employers to remember that the E-Verify system itself may be used only for new hires (or certain existing employees pursuant to the Federal Acquisition Regulation rule covering federal contractors) once an offer has been extended and accepted, and an I-9 form has been completed.

For an interactive self-guided tour of the E-Verify Self Check system, click here.  Individuals can use a live version of E-Verify Self Check now in English by clicking here or in Spanish by clicking here.


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