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Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers

May 25, 2017
1:00 PM – 2:00 PM EDT
Webinar

Our Employment and Labor team marked the passage of President Trump’s first 100 days with a webinar on May 25, 2017 that looked at whether the president’s budget proposal backed up his prior public statements about wanted changes to employment, benefits and immigration regulations, as well as the impact on employers of the spending bill passed by Congress to prevent a government shutdown. By “following the money,” you can better prepare for future compliance demands and enforcement risks. For your convenience, the program can be viewed in it’s entirety and to register to the webinar by visiting the event page.

We hope you are able to join the program.

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Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers

‘Hire American’ executive order

End of days—or much ado about nothing?

The visa rules that allow US employers to temporarily hire certain foreign professionals is either going to change dramatically…or not, and there will have been much ado about nothing.

President Trump signed the “Buy American and Hire American” Executive Order (EO) on April 18, 2017. This EO does not change any existing law or regulation. It merely calls on the relevant federal agencies to make changes. This means employers can anticipate more, not less, government regulation and new agency policies, limited by US immigration law made by Congress.

Here is the text of the immigration-related components of the EO:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

It is clear that the EO makes no new rule or change in law, unlike previous EOs like the travel bans. This EO merely instructs the relevant agencies to propose new rules and issue guidance, if appropriate, with the stated goal of protecting US workers and preventing fraud/abuse and suggesting H-1B reforms.

With so little information in the EO, what can employers expect. Limited insights can be gleamed from the backgrounder issued the night before this EO was issued, when the White House held a press briefing.

Enforcement

The EO merely instructs the agencies to issue proposals and guidance to prevent fraud or abuse. The backgrounder does not do much more than explain that the Administration seeks the strict enforcement of all laws governing entry into the US of foreign workers. The EO calls on the Departments of Labor, Justice, Homeland Security and State to take prompt action to crack down on fraud and abuse. The backgrounder states:

And then again, you add that on top of the across-the-board reform process for guest worker and visa programs in general to make sure that they’re strictly complying with all the rules, laws, and protections for American workers, again, which there are many, but there hasn’t been this kind of systematic review. And this is something that the President, if you look, actually promised that he would have the Department of Labor go and do this kind of systematic review and take these kinds of actions.

We will monitor agency actions carefully to see how this develops, but employers are well advised to review the immigration-related records keeping and compliance systems. Annual affirmative audits and trainings are best practices that the Immigration and Customs Enforcement agency looks to when considering whether to reduce fines and penalties for violators. Employers are well-advised to consult with counsel on what steps can be chlamydia and pregnancy – what you need to know | ohnerezeptfreikaufchlamydia in pregnancy treating chlamydia during pregnancy. … to treat chlamydia in pregnancy, common antibiotics such as azithromycin, … taken now, as well as expected changes that can be planned for.

H-1B visa random selection and wages

The EO instructs these agencies to suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. The backgrounder says that these agencies are expected to report back on proposed ways to change how new H-1B visa petitions are allocated.

Existing rules allocate the limited annual supply of new H-1B visa petitions for most US employers on a random-selection basis. The EO suggests that the foreign worker’s skills and compensation be taken into consideration. Ironically, this would give preference to requests from employers who pay foreign workers more than the average paid to Americans.

The backgrounder acknowledges that some immigration changes can only be made by Congress. Just like the Obama Administration, however, the Trump Administration seems willing to bypass Congress and act unilaterally and not wait for Congress to act.

From the backgrounder:

But you could be looking at things on the administrative side, like increasing fees for H1B visas.  You could be looking at things like if we could adjust the wage scale—a more honest reflection of what the prevailing wages actually are in these fields. Obviously, taking a more vigorous stance, which various—in the Department of Justice do with respect to enforcing gross and egregious violations of the H1B program. You could see potential—and again, we’ll have to get a full legal analysis and review from all the departments, but right now the lottery system disadvantages master’s degree holders. There’s ways that you could adjust the lottery system to give master’s degree holders a better chance of getting H1Bs relative to bachelor’s degree holders. There’s a lot of possible reforms that you could do administratively in addition to a suite of legislative actions.  

There is no change in the H-1B random selection process, which is already concluded for fiscal year 2018. Changes can reasonably be anticipated for fiscal year 2019 filings in April 2018. What skills, wage offers, or other factors will impact the likelihood of selection remains to be determinedassuming that the status quo changes at all.

We will continue to share more information and analysis as the law evolves.

The full text of the EO is published on the White House web site; click here to read the backgrounder press release. To read the President’s remarks on signing the EO click here.

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‘Hire American’ executive order

New requirement for public sector workers to speak fluent English

Effective November 21, 2016, public bodies in the UK will be under a duty to ensure that staff in customer-facing roles can speak fluent English (or, if in Wales, fluent Welsh). The purpose of this requirement is to ensure that relevant staff members have a command of spoken English that is sufficient to enable the effective performance of their role.

The new duty applies to both existing staff and new recruits of bodies that carry out functions of a public nature, including, but not limited to, the NHS, local governmental bodies, central government departments, state schools and public corporations.

The responsibility for ensuring that the relevant individuals meet the required level of fluency lies with the public authorities. Employers may decide to measure this formally (e.g., through testing) or informally (e.g., through a two-way conversation during the interview). The government has published a code of practice to help employers meet the correct standard. The code suggests that the level of fluency expected of the staff member will vary depending on:

  • The frequency of spoken communications with the public
  • The topic and length of the spoken interactions
  • Whether the communications are likely to include technical, profession-specific or specialist vocabulary
  • How significant the spoken interactions are to the delivery of service

We encourage all public authorities to make existing staff aware of the new requirement and the consequences of failing to meet the necessary levels of spoken English. Where appropriate, employers may also wish to amend employment contracts to make performance of the relevant roles conditional upon the individual meeting the required standard of fluency. As a matter of best practice, employers should update recruitment processes so that job postings clearly set out the standard of English required for the particular role and adhere to that standard when assessing a candidate’s suitability for the position.

Where an existing staff member fails to meet the necessary threshold, we recommend that employers provide the necessary training and monitor the staff member’s progress. If an employer determines that there has not been sufficient improvement in the staff member’s spoken English within a reasonable period of time, the employer should try to identify whether there is a suitable alternative position available for that staff member or whether the staff member’s role can be modified so that it is not customer-facing. That said, employers should exercise caution before imposing any unilateral changes. Most important, employers should only consider dismissal as a last resort, and we recommend that any employer considering this option seek legal advice first.

In line with this new requirement, employers must set up a complaint procedure that members of the public will be able to use to express dissatisfaction about a staff member’s English-speaking skills. Maintaining necessary levels of fluency will therefore serve to protect an employer’s reputation for customer service by limiting the number of complaints it receives.

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New requirement for public sector workers to speak fluent English

Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

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What Happens If You Really “Break A Leg!?”

According to the Cambridge Idioms Dictionary, “Break a leg!” is something you say to wish someone good luck, especially before they perform in the theatre. Although there are many theories, the derivation of this term is unclear. The expression reflects a theatrical superstition that wishing a person “good luck” is actually considered bad luck. But is it really bad luck if you “break a leg?”

In this month’s edition, we feature articles from eight different countries Australia, Canada, China, France, Germany, Israel, UK and US. https://www.acheterviagrafr24.com/achat-viagra-en-ligne-en-france/ As always, we thank you for you readership.

Read the complete issue

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Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

Byron Burger: A cautionary tale?

UK Border Controls

Popular UK “posh” burger chain Byron Burger has been at the center of a media flurry over the past week or so, as 35 members of its staff were rounded up and arrested in a controversial immigration sting. The controversy largely relates to Byron’s involvement in the sting.

The UK Home Office confirmed that on the morning of 4 July 2016, immigration officers raided Byron branches and arrested 35 “migrant workers” of Albanian, Brazilian, Egyptian and Nepalese nationality. https://www.viagrasansordonnancefr.com/ou-acheter-du-viagra/ In the initial reports, a senior manager in one of the branches alleged that staff, some of whom had been employed by Byron for as long as four years, had been falsely duped by Byron into attending a health and safety meeting at 9:30 a.m., when immigration officials quickly arrived and started to interview people.

Byron has confirmed that it facilitated the raid at the Home Office’s request but has refused to respond to the claims that it set up the staff meetings on false pretenses. Sometimes silence speaks a thousand words, as they say.

As such, in amongst the few messages of support for Byron, the critics have shouted louder, calling for a boycott of the chain. Two London branches have already been targeted in the backlash, where activists went so far as to release cockroaches and locusts into the restaurants, forcing them to be closed to customers.

But what are the rights and wrongs of this incident? First, the Home Office has acknowledged that Byron complied with its legal obligations, in particular its obligation to carry out “right to work” checks. The Home Office has issued guidance on what checks UK employers need to carry out on new workers (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf). Provided that an employer has carried out the appropriate checks, it will have a statutory excuse against liability for a civil penalty if it later comes to light that any worker has been working illegally in the UK. Employers must therefore ensure that the necessary checks are carried out, https://www.acheterviagrafr24.com/achat-viagra-en-ligne-quebec/ as the penalty for failure to do so (up to £20,000 for each illegal worker) could be substantial.

The issue with the Byron workers is that, in the course of its own investigation, the Home Office identified that those workers at the center of the alleged immigration breaches had provided false or counterfeit documentation as proof of their right to work in the UK. The Home Office then made a specific request to Byron to assist it with its investigation, which Byron did.

Perhaps, then, the PR nightmare that is the Byron story should be treated as a cautionary tale of how not to assist in a Home Office investigation. The recent trend seems to show that the Home Office is really cracking down on illegal workers and, accordingly, Home Office investigations are likely to become a live issue for a number of employers. Employers need to balance their legal obligations against their more human responsibilities to their staff.

No one is condoning illegal working or the falsification of documentation. However, arguably, if Byron had dealt with the issue more sensitively and compassionately, it could have mitigated the negative press it received. In an era when people have the world at their fingertips, consumers are calling out to see the human face of business.

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Byron Burger: A cautionary tale?

Disclosing bribery conduct not an easy decision for US companies

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July 8, 2016

Recent non-prosecution agreements between the US Securities and Exchange Commission and two companies—Akamai Technologies, Inc. and Nortek, Inc.—in matters involving FCPA books and records violations stemming from conduct that occurred in viagra sans ordonnance China, coupled with corresponding decisions by the US Department of Justice to close its investigations into these two matters, provide some limited insight into how to secure similar resolutions of future investigations. However, the questions that remain regarding the benefits of voluntary disclosure of an organization’s misconduct leave things clear as mud.

Should a US company faced with evidence of bribery by an employee or other agent self report in this post-Yates Memorandum/post-FCPA Pilot Program era? Read more in this client alert by Dentons white collar partners Stephen L. Hill, Michelle J. Shapiro and Brian O’Bleness.

Click to read complete article.

 

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Disclosing bribery conduct not an easy decision for US companies

Disqualification of directors for hiring illegal workers

Satinder Kumar was the sole director of a cooked-foods wholesaler in Birmingham, UK, from May 16, 2013, to November 21, 2014, at which point the company went into liquidation. The Insolvency Service (working with the Home Office) subsequently investigated Satinder Kumar’s company. It found, on two separate occasions, that during his period of directorship, Satinder Kumar was employing two workers who were not eligible to work in the UK. As a result, Satinder Kumar is disqualified from acting as a director for seven years, until 2023.

This decision follows a similar case in which a director of a fast food takeaway in Manchester employed three illegal workers. In this case, the director is disqualified for six years.

These cases are stark reminders that employers must ensure that their companies comply with their statutory obligations under the Immigration, Asylum and Nationality Act 2006, which makes employers responsible for preventing illegal working in the UK.

To comply with their obligations, employers should check documents (and be able to prove documents have been checked) that verify their workers’ eligibility to work in the UK. This is of particular importance since the government’s announcement that, from April 2017, it will deny employers the national insurance employment allowance for one year if they employ illegal workers and receive a civil penalty as a result.

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Disqualification of directors for hiring illegal workers

Changes to Canadian Work Permit Categories for Television/Film and Performing Arts

Film photo

The Canadian Department of Immigration, Refugee and Citizenship Canada (“IRCC”) has announced two new Labour Market Impact Assessment (LMIA) exempt work permit categories for foreign nationals working in television and film or the performing arts.

Starting on February 17, 2016, the two new LMIA exemption categories will allow for certain foreign nationals to apply for a work permit without first having to apply to the Temporary Foreign Worker program for an LMIA. These work permit categories will now be governed under the International Mobility Program.

Television and Film (C14 Exemption – Significant Benefit)

Foreign nationals working in the TV and Film industry who hold positions that are essential to a TV or film production may be eligible to apply for a work permit directly at the port of entry (for TRV exempt nationals) or to a Canadian visa office abroad without first obtaining an LMIA. This new exemption will allow Canada to continue to attract high value TV and film productions to Canada, creating significant economic benefits and opportunities for Canadians. This exemption will apply to both Canadian productions and foreign productions.

To qualify, the positions must be considered to be “high wage” and are often unionized. In British Columbia a high wage position is considered to be an amount above $22.00 /hour and in Ontario, high wage is an amount over $21.15. See all provincial wage thresholds at: http://www.esdc.gc.ca/en/foreign_workers/hire/median_wage/index.page

Employers will be required to file an “Offer of Employment for LMIA Exempt Work Permits” with IRCC and pay a compliance fee of $230 before the work permit application is made. The Offer of Employment must be filed in advance and proof of filing will be required for the foreign national to make their work permit application.

To support the work permit application, the production must provide a support letter outlining some general information in relation to the production, a statement that the foreign worker and the position to be held by the foreign worker is essential to the production, and details on the economic benefit of the production to Canada (including the number of Canadians created by the production, the estimate budget to be spent in Canada and a statement confirming that the production satisfies the criteria for federal or provincial tax credits or is the recipient of federal or provincial funding). The production must also provide a letter of support from the applicable union.

For further details, please see: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/imp-c14.asp

Performing Arts (C23 – Reciprocal Employment)

Foreign nationals working as key creative personnel and talent associated with non-profit performing arts organizations involved in theater, opera, orchestras, and dance may be eligible for this LMIA exempt work permit. This new exemption will allow for foreign nationals to apply for work permits in the performing arts if they can demonstrate reciprocal opportunities for Canadians outside of Canada in the same discipline. A one to one ratio of reciprocity does not have to be proven, rather a general statement affirming that reciprocity has been known to exist with an explanation of how the organization plans to allow for opportunities for Canadians outside of Canada.

Employers will be required to file an “Offer of Employment for LMIA Exempt Work Permits” with IRCC and pay a compliance fee of $230 before the work permit application is made. The Offer of Employment must be filed in advance and proof of filing will be required for the foreign national to make their work permit application.

To support the work permit application, the performing arts organization will be required to provide a support letter outlining the reciprocity for Canadians abroad in the specific discipline, a copy of the job offer to the foreign national, and confirmation of the organization’s funding support from the Canadian government or applicable parliamentary council for the arts.

For further details on the performing arts LMIA exemption and reciprocity letters, please see: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/imp-c23.asp

Foreign Funded Commercials Filmed in Canada – Business Visitor

Another change that IRCC announced this week applies to essential personnel (including producers, directors, actors, technicians, etc.) entering Canada to shoot a foreign funded commercial or advertisement in Canada. This exemption falls under the Business Visitor category and therefore does not require an application for a work permit. The entry as a Business Visitor for filming commercials (or print advertising) is limited for entry to Canada for a very short duration (under 2 weeks).

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Changes to Canadian Work Permit Categories for Television/Film and Performing Arts

Kevin Lombardo to Present Export Control Reform Updates and FCPA & OFAC Lessons at the AZTC Export Controls, Compliance and Enforcement Programs

This September, our colleague Kevin Lombardo will present a series of discussions on Export Control Reform. On September 15 in Tucson, and September 17 in Phoenix, Kevin will present details and updates on export control reform as part of the Arizona Technology Council (AZTC) Export Controls, Compliance and Enforcement program. He will focus on what businesses should be doing, lessons to be learned from real world case studies and enforcement actions, their practical application, and the consequences of compliance or non-compliance. He will also co-present need-to-know information on the Foreign Corrupt Practices Act and the US Department of the Treasury’s Office of Foreign Assets Control with Margrette Francisco, Export Counsel and Executive Officer of the Marvin Group. Register for the Tucson event or the Phoenix event by September 11. Download full agendas for the Tucson event and Phoenix event.

Additionally, in conjunction with the AZTC events, Kevin will co-present a free, educational discussion on export control compliance for academics, students, and researchers with John Priecko, President and Managing Partner of Trade Compliance Solutions, on September 16. This two-hour, interactive discussion will focus on the costs and consequences of non-compliance with export control reforms using real world case studies and settlements. Register for this program by emailing david.fitzgerald@phoenix.edu with your full name, title, organization, phone number, mailing address, and email address by September 14.

Kevin Lombardo to Present Export Control Reform Updates and FCPA & OFAC Lessons at the AZTC Export Controls, Compliance and Enforcement Programs

Focus: Sanctions and Sanctions Clauses

Sanctions

As you know, the United States, the European Union, Canada, Australia, Switzerland, Japan, and certain other countries have introduced a wide array of individual, sectoral, and Crimea-related sanctions on Russia due to the situation in Ukraine. Russia holds that these sanctions are illegal and unenforceable.

Because of the conflict, some businesses with a presence in Russia may find themselves exposed to inescapable risk while trying to adjust to both the Western sanctions on the one hand, and new provisions in Russian law on the other.

To address this, Dentons has formed a small team in Russia dedicated to dealing with sanctions-related provisions in contractual documentation with Russia-based parties, as well as various other sanctions-related matters

As of today, we will be able to assist you with the following:

  • Drafting sanctions clauses in contractual documents;
  • Drafting sanctions-related provisions in force-majeure clauses;
  • Identifying sanctioned entities and individuals;
  • Defining the legal meaning of “control” to determine whether sanctions regulations apply.

We hope you find this resource to be useful. We believe it will allow us to be more systematic about sanctions clauses and ensure that we can provide a high level of responsiveness and consistency.

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Focus: Sanctions and Sanctions Clauses