New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

U.S. employers continue to rely upon the H-1 B Specialty Occupation Worker category to facilitate the temporary employment of foreign nationals in professional positions.  In 2010, the U.S. Citizenship and Immigration Services ("USCIS") is authorized to issue 65,000 H-1 B approvals for those beneficiaries who possess at least a bachelor's degree, and an additional 20,000 approvals for those beneficiaries who have obtained a master's or higher degree from a college or university in the United States. These limits are often referred to as the "H-1B cap." These approvals authorize employment beginning October 1, 2010 (the beginning of the federal government's fiscal year).

Pursuant to federal regulations, interested U.S. employers may file H-1 B petitions six months in advance of the start of the fiscal year. This means that the earliest that a U.S. employer may submit a petition for a new H-1B worker, who has not already been counted against the H-1B cap, is April 1, 2010.
 

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We previously reported on President Obama’s nomination of three individuals, Democrats Craig Becker and Mark Pearce, and Republican Brian Hayes, to the National Labor Relation Board (“NLRB”). The most controversial nominee, AFL-CIO Associate General Counsel Becker, has come under criticism from lawmakers and employers for his well-documented pro-union views. Becker’s nomination has been blocked by Republican senators in light of these concerns, as well as concerns that he would have to recuse himself from a great number of cases for up to two years after his confirmation in light of his current employment with the AFL-CIO and the Service Employees International Union.

Department of Labor Secretary Hilda Solis, speaking at the AFL-CIO’s Executive Council meeting on March 3, indicated that unions would be very pleased with how Becker’s nomination gets resolved. This implies that Becker will be appointed to the NLRB as a recess appointment later this month, which does not require Senate approval, for a term of up to 20 months.

If Becker and fellow Democratic nominee Pearce, a former NLRB Regional Attorney from Buffalo, are appointed, they would join current NLRB Chair Wilma Liebman to form a three person Democratic majority on the NLRB. There is concern that Becker, and this new found majority, might attempt to implement some parts of the Employee Free Choice Act via administrative rule making or by means of NLRB decisions and case law. Possible changes could include more expeditious representation elections and/or the use of card check for recognition in some situations.

This development bears watching. The potential for change in a number of areas with a change in the composition of the Board is great. This includes a number of Bush-Board NLRB decisions about which we have previously reported.
 

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At a time when many companies are owned or heavily leveraged by private equity firms, a decision by the District Court for the District of Connecticut in Austen v. Catterton Partners V, LP serves as a warning that such entities may be held liable for WARN Act violations by companies in which they have invested. The Federal WARN Act generally requires at least 60 days’ notice prior to a mass layoff or plant closing.  In New York, the state WARN Act requires 90 days’ notice of such events.

Catterton Partners V, LP, a Greenwich, Connecticut-based private equity firm, with over $2.0 billion in holdings such as Outback Steakhouse, Breyers Yogurt and Restoration Hardware, also owned Archway & Mother’s Cookies, Inc., (“Archway”) whose companies produced various brands of cookies, including cookies sold under private label programs for national retailers such as Target and Kroger.

Archway filed for bankruptcy protection in October 2008, shortly after it closed its factories and laid off hundreds of workers without notice. In a class action WARN Act complaint filed in August 2009, plaintiffs, who are former Archway employees, alleged that Catterton was an “employer” for WARN Act purposes and should be held liable for the failure to provide workers with notice prior to shutdown of the factories and termination of their employment.
 

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This morning, President Obama signed the Temporary Extension Act of 2010 (H.R. 4691) after Senator Jim Bunning of Kentucky agreed to end his filibuster and the Senate voted Tuesday night to pass the measure.

The Act, generally referred to as an extension of unemployment benefits, also extends eligibility for the 65% COBRA subsidy to individuals who have involuntary terminations through March 31, 2010. Eligibility had expired for terminations after February 28, 2010. The law is retroactive, so that persons who were involuntarily terminated on March 1st and 2nd are eligible for the subsidy. No other changes in the terms of the COBRA subsidy were made.

Employers and other health plan sponsors should adjust their COBRA notices to reflect the new March 31, 2010 subsidy eligibility expiration date.
 

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Social networking and blogging sites, such as Facebook and Twitter, continue to grow in popularity. The number of participants is staggering. Facebook alone recently reported that it now has more than 400 million active users.

Given the rise in use of social networking sites, employers should consider implementing  a policy governing employee use of such sites. A well-drafted social networking policy is essential because an employer’s existing policies, such as those governing confidentiality or the use of the employer’s computer systems, may not be broad enough to protect against employee misuse of these sites. This post covers some of the issues to consider in drafting an effective social networking policy, and also discusses the practicalities of investigating alleged violations of such a policy.
 

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On February 12, 2010, the New York State Department of Labor issued revised, emergency regulations concerning the New York State Worker Adjustment and Retraining Notification Act (“NY WARN Act”), Section 860 of the New York Labor Law. The revised regulations are effective immediately and replace the regulations first published by the agency in January 2009. The NY WARN Act requires 90 days advance notice to employees and other designated officials prior to a mass layoff, plant closing, relocation or covered reduction in hours, which, in general, affects 25 or more employees.

Employers considering upcoming employee layoffs or plant shutdowns should review closely the revised regulations. Included among the many changes made by the revised regulations are the following:

• use of email to notify employees; 
•  a requirement that the notice from the employer be signed by an individual who can bind the employer and that the individual attest to the truthfulness of all information contained in the notice;
• an expansion of the types of information that must be included on the various notice forms; and
• a specification that an employer’s violation of NY WARN may be shared with other public entities in New York.
   

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The U.S. Occupational Safety & Health Administration (“OSHA”) recently launched an enforcement initiative focused on identifying employers who underreport workplace injuries and illnesses. This initiative—which OSHA has classified as a National Emphasis Program (“NEP”)—was prompted by recent government reports which found that a high percentage of workplace injuries and illnesses are not being reported by employers. Accordingly, employers should be mindful of the NEP, and that OSHA has made clear that its investigators will be paying particularly close attention to workplace policies and practices which have the effect of discouraging employees from reporting their job-related injuries and illnesses.

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A model notice that informs employees of the availability of premium assistance for employer-provided group health plan coverage was published in the Federal Register on February 4, 2010, one year after President Obama signed the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA). Employers who offer group health plan coverage must provide this notice to employees before the beginning of the next plan year, and annually thereafter. CHIPRA’s impact on employer health plans and the notice requirements are described below.

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The Office of Fraud Detection and National Security (“FDNS”) is part of the United States Citizenship and Immigration Services. FDNS’s mission is to detect, deter, and combat immigration benefit fraud. FDNS consists of approximately 650 Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. In addition, FDNS has contracted with multiple private investigation firms to conduct site visits on its behalf. In 2010, FDNS intends to increase its H-1B site audits to 25,000 – a fivefold increase. If you are unlucky enough to be chosen for one of those 25,000 site audits, what should you do? The American Immigration Lawyers Association has provided suggestions.  This post contains some of those site audit basics and recommendations for preparation.

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