Jan 3, 2014 - Toll Free: (877) 234-1863 ext. 6717. Fax: (877) 584-2176. Manager · Trevilynn ... Global Fund for Women &
The Legal Issue Six Labor and Employment Cases Slated for Supreme Court Decisions in 2014
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Sticky Background Check Situations Facing California Employers
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January 2014
Executive Letter . . . . . . . . . . . . . . . . . . . . . . . 4 Member Profile . . . . . . . . . . . . . . . . . . . . . . . .5 Christine M. Pallatto Director of Human Resources and Organizational Development, Global Fund for Women & Incoming NCHRA Board President
Continuing Education Calendar . . . . . . . . . . 6 5 Sticky Background Check Situations Facing California Employers . . . . . . . . . . . . 9 By Lester Rosen
Independent Contractors: 10 Best Practices to Mitigate Risk . . . . . . 12 By Maria Goyer
Immigration in 2014: Strap on Your Seat Belts! . . . . . . . . . . . . . . 15
Your 2014 Board of Directors (list printed prior to elections) Christine M. Pallatto Board President – Executive Committee Director of Human Resources and Organizational Development Global Fund for Women May Speck, SPHR Past President – Executive Committee Senior Vice President of Human Resources Wageworks, Inc. Tony Deblauwe Board of Directors Senior HR Business Partner Hortonworks, Inc.
Rosella Giannella Derickson Board of Directors Performance and Culture Strategist Stanford University Dr. Salvatore V. Falletta, GPHR Board of Directors Associate Professor and Program Director, Human Resource Development Drexel University Paul A. Vagadori Board of Directors Vice President, Human Resources Lahlouh, Inc.
By Sameer Khedekar and Addie Hogan
Six Labor & Employment Cases Slated for Supreme Court Decisions in 2014 . . . . 17 By Gwen Morales, Sally Scott, Lindsey Marcus
Employee Leaves In California: Your To-Do Checklist . . . . . . . . . . . . . . . . . . 20 By James J. McDonald, Jr.
New Member Welcome . . . . . . . . . . . . . . . 22 Index to Advertisers . . . . . . . . . . . . . . . . . . 23
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January 2014
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“At the time of this article, the immigration reform roller coaster continues.”
Immigration in 2014
Strap on Your Seat Belts! 2 By Sameer Khedekar and Addie Hogan
014 promises to bring some excitement in the immigration world. Here is a step-by-step guide to help your company prepare for the H-1B rush and for a possible immigration overhaul (at the time of this article, immigration reform remains a very real possibility).
any talent that you source after March 31 will likely not obtain an H-1B, the most versatile of work visas. In times like this, it pays to start thinking about alternatives your company can take advantage of post-March 31. Here is a rundown of options:
Black Monday – The Race for H-1B’s
Alternatives to the H-1B
In your company’s recruiting and mobility groups, the last few days of March will be a mad rush, as we anticipate 2014’s H-1B season to look much like last year’s. Sadly,
E-Verify your company: Signing up for this electronic form of employment eligibility verification will allow candidates to extend their student visa-based work authorization (OPT) for seventeen months, assuming the candidate has a STEM degree. It is believed that the U.S. will require companies to sign up at some point in the future anyway – see the next section for more on E-Verify and immigration reform. Note also that your multi-state company may already be signed up - see http://www. trackercorp.com/everify-legislation-map.php for a current map of states that require E-verify registration.
Monday, March 31, is the day that your company will send all of its H-1B visa petitions to the government, in hopes of securing one of the coveted numbers for 2014. How much has this day come to resemble Black Friday? In 2013, over 120,000 petitions for about 85,000 spots were received on the first week of filing in April. By comparison, in 2012, the 85,000 spots weren’t filled until June. In 2011, they weren’t filled until December!
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Where is the employee from? There are some visas that will always be available to nationals of certain countries. Look for candidates that are from Canada or Mexico (TN Visa), Australia (E-3 visa), or Chile and Singapore (H-1B1 visa). Use your international locations: Companies with locations abroad may transfer their employees to U.S. locations on L-1 visas assuming that they have been working abroad for at least one year, and have acquired advanced specialized company knowledge or will be managers here in the U.S. Take advantage of your training programs: Many companies have already set up robust training programs for interns, new hires and for knowledge transfer to other locations. Look to the J-1 and H-3 visas, which allow for onthe-job training if training is a legitimate need. “We can’t find anyone like this candidate!”: If that is the case, then there may be a good chance that the employee qualifies for an extraordinary ability O-1 visa, on the grounds that her unique skills or area of expertise make her one of the best in a very narrow field. University/nonprofit/government affiliation?: Your company may then be able to argue for an exemption to the H-1B quota if the candidate’s work is in furtherance of work being conducted by these quota-exempt organizations. You can now see why the Bill Gates and Mark Zuckerbergs of the world have been pleading for some relief. Enter immigration reform, which has the potential of changing everything we know about corporate immigration. Immigration Reform Update: At the time of this article, the immigration reform roller coaster continues. We have experienced several periods over the last few presidents when our ears were ringing with immigration reform, but new policy just could not make it over the edge. Apparently our leaders can only agree on one thing, that the system is broken. In June 2013 we were energized by the passing of Senate Bill S.744, which passed with overwhelming bipartisan support, and was introduced by a team of both Democrats and Republicans. Our anticipation, however, was short-lived when the bill was tabled in the House of Representatives. California, however, never afraid to be at the forefront in progressive policies, has wearied with federal policymakers pushing ahead its own immigration reforms. The reforms reflect support of undocumented immigrants, realizing their importance in California industries and in the state economy as a whole.
Federal Update
Most recently, House Democrats have introduced H.R. 15, a bill largely based on S.744, taking into account several amendments and replacing some of the largely controversial border security provisions. Some notable highlights include:
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• E-verify will be expanded and made mandatory for all employers over a period of five years. The bill requires identity verification through the use of enhanced fraudproof documents and the use of a photo tool to allow employers to verify an individual’s identity. • Some estimate the current green card backlog to stretch for more than 20 years. The bill will provide sufficient visas to erase that backlog. • Replace the unworkable labor market test process with a new merit system based on points. The systems will consider a combination of factors, including education, employment, occupation, civic involvement, English language proficiency, family ties, age, and nationality; but prioritizes immigrants who are young, educated, experienced, skilled, and fluent in English.
California Update
While we hold our breath for immigration reform on the federal level, California has given up waiting and has passed several new immigration related bills this year. Most notable are the following; • Significant expansion of driver's licenses for immigrants without documents. The law also allows those in the U.S. illegally, permission to be lawyers, as well as protection from employers who threaten to report their status. • The Trust Act, limits the state's cooperation with Secure Communities, a federal program that allows DHS to access fingerprints taken by local police, to screen detained individuals for immigration status and to request that law enforcement agencies hold them if they're found to be undocumented. For those who work in immigration every day, it’s never a dull moment. 2014 promises to help everyone share in that HR excitement.
Sameer Khedekar and Addie Hogan are Partners at Pearl Law Group (www. immigrationlaw.com). Pearl Law Group has pioneered approaches and technology in business immigration for nearly twenty years. The firm recently received a Stevie Award for “Most Innovative Company” and was the only law firm nationwide honored with the Super Lawyers Pro Bono Award. In 2013, Pearl Law Group was ranked as one of the Fastest Growing Private Companies and Largest Women-Owned Businesses in the Bay Area. Get more on this topic at HR West® 2014.
