Legal Knowledge Center

The Georgia Restaurant Association’s top-notch team of member attorneys take the guesswork out of the multitude of laws and regulations affecting restaurants. Many resources, including a library of articles on legal issues are available to members only

Also, the National Restaurant Association offers a Legal Problem Solver with easy-to-understand summaries of key federal laws and regulations available to GRA/NRA members for free online.
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  • 21 Jul 2014 9:05 AM | Anonymous member (Administrator)

    By: Evan M. Rosen, Esq.
    Jackson Lewis P.C.

    Restaurant companies that conduct criminal background checks on prospective employees should audit their practices to ensure they are complying with the Fair Credit Reporting Act (“FCRA”). Failure to do so can lead to class action litigation, with damages ranging from $100 - $1,000 per applicant over a 2-5 year period, plus attorneys’ fees and potentially punitive damages. Indeed, it is not uncommon to see judgments or settlements in the millions for these types of cases. With the potential for such high amounts, it is not surprisingly that plaintiffs’ lawyers are increasingly focusing their attention on FCRA lawsuits, including here in Georgia.

    FCRA Requirements

    Employers who collect consumer reports from third-party vendors, called consumer reporting agencies (“CRA”), must implement certain safeguards under the FCRA.

    First, the employer should not run a background check unless the applicant has signed an authorization form permitting the employer and CRA to do so. The authorization form must be a separate and distinct document. Therefore, it should not be part of an employment application or other document. As one example of how plaintiffs have creatively interpreted this provision, they have argued that a release of claims invalidates the authorization form because it is extraneous information that renders the document not separate and distinct. At least two district courts have agreed with the plaintiffs in this regard.

    Second, if an employer wants to deny employment based in whole or in part because of the results of the background check, the employer must provide three things to the applicant: (a) a copy of the consumer report; (b) a summary of rights form ; and (c) an explanation to the applicant that the employer may make a hiring decision based in whole or in part because of the consumer report and provide the applicant with at least five business days to contest the results of the consumer report. This is generally referred to as a pre-adverse action letter. The purpose for it is that an alarming number of consumer reports are erroneous, and the law wants applicants to be given an opportunity to prove that the crime indicated on the report relates to a different person, not them.

    Third, if the employer ultimately decides not to hire an applicant in whole or in part because of the consumer report, the employer must send an additional letter to the applicant, which informs the applicant of the employer’s decision. This communication is known as the adverse action letter and should be sent at least five business days after the pre-adverse action letter.

    Note that these are just the basic requirements of the FCRA. There are other requirements that also apply to employers. For example, the use of a consumer report must be limited to a permissible purpose, as defined by the FCRA, and if employers are running investigative reports, there are additional disclosures that need to be made. Likewise, if your company operates in states outside of Georgia, there may be state laws governing background checks and credit reports. Therefore, it is important that you consult with experienced employment counsel to ensure compliance with the myriad of laws that pertain to background checks.

    The Perils of Litigation

    Under the FCRA, a plaintiff can sue for actual damages for negligent violations or statutory damages for wilful damages. Typically, these lawsuits arise in one of two scenarios. In the first scenario, an applicant is denied employment based on an incorrect consumer report and the employer fails to follow the procedures required by the FCRA. In such instances, the applicant may sue for actual damages he or she suffered as well as reasonable attorneys’ fees and costs. Because these cases require an individualized analysis for each applicant, they do not lend themselves to class action allegations as easily as claims for statutory damages.

    The second type of case is one for statutory damages. These cases are based on technical violations of the statute and usually apply to many applicants, thus making these claims ideal for class action litigation. For example, if an employer’s authorization form is incorrect, arguably all applicants who signed the form and had a background check run could be potential class members. Similarly, if an employer failed to send the pre-adverse action letter or provide an applicant with a copy of the consumer report or summary of rights, a plaintiff could argue that those individuals may be part of a class.

    In order for liability to attach to the employer for a statutory violation, however, the plaintiffs must establish that the employer acted wilfully. Much of the litigation in this area surrounds what the word “willful” means. Courts and parties differ on this issue, but suffice to say that it is not as difficult a standard as a restaurateur might imagine. Unfortunately, some courts view the willfulness requirement as more of a “reckless” standard to suggest that employers should knew or should have known of its obligations under the FCRA, and therefore may be held liable.

    While employers have some defenses to these types of allegations, if a violation is found under a statutory theory, the potential liability is $100 to $1,000 per class member, plus reasonable attorneys’ fees and potentially punitive damages. The more class members, the higher the damages a plaintiff may collect. The class size is dependent, in part, on the statute of limitations, which is the earlier of two years after the date of discovery by the plaintiff of a violation or five years after the date on which the violating that is the basis of the alleged liability occurred.

    How to Avoid Liability

    Employers should audit and revise their hiring procedures and background check policies to ensure compliance with the FCRA. Ideally, the audit should be conducted by counsel to preserve the attorney-client privilege. In addition, employers should review their service agreements with its credit reporting agencies to analyze issues like indemnification, assumption of risk, notification of rights, and responsibility for complying with the FCRA. Finally, employers should train their hiring managers on proper procedures for complying with the FCRA.

    Evan Rosen is a Shareholder in the Atlanta, GA office of Jackson Lewis P.C. Mr. Rosen defends employers against litigation based on allegations of discrimination, harassment, wage and hour and the Fair Credit Reporting Act. He regularly counsels employers on a wide variety of workplace issues.
  • 16 Jul 2014 11:07 AM | Anonymous member (Administrator)

    By: Kuck Immigration Parnters

    There are numerous changes that President Obama could do to "fix" some of the problems in our broken immigration system, without congressional intervention. These changes involve mostly policy change, not a lengthy regulatory fix.

    The nightmare scenario for many immigrants dealing with our current immigration system is not always caused by the laws enacted by Congress (some are). Rather, these are problems either created by current administration policy, or by policies adopted by prior administrations. The President can change no laws. But, he can change regulations and policies. And, while our laws are indeed "broken" in many ways, the regulations and policies themselves are the source of many of the issues current plaguing our legal immigration system, and straining our resources as we combat undocumented immigration and deal with a non-functioning legal immigration system.

    President Obama can do a LOT to change, modify, and update these regulations and policies. There are at least 14 things President Obama can do that would resolve a lot of immigration challenges, ranging from business immigration visas, deportation backlogs and family immigration, and priority for removal of undocumented immigrants. The saying is "go big, or go home." Here are some of the 14 changes President Obama can make to temporarily fix the current broken system. The good news, if he does it, is that MANY of these folks work in the restaurant industry.

    Fixes for those who are eligible for a visa, but for being subject to the bars upon departure
    • “Parole-in-Place” for immediate relatives of USC who are beneficiaries of approved visa petitions. There is precedent for this remedy as the administration already uses parole-in-place for Cuban entrants and family members of former and current US military personnel. Section 212(d)(5) of the INA provides the Attorney General (now DHS), the authority to parole into the U.S. temporarily under such conditions as he may prescribe on a case-by case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the U.S. Section 235(a)(1) of the INA sets out that aliens present in the U.S. who have not been admitted are treated as applicants for admission to the U.S. Thus, these aliens can lawfully be paroled.
    • The administration can deem extreme hardship as in special rule cancellation (there is historical precedent for this in special rule cancellation for NACARA). In order to be eligible for a waiver of the unlawful presence bars under § 212(a)(9) of the INA, a foreign national subject to those bars must demonstrate that a qualifying relative will suffer extreme hardship if he/she is not allowed to return to the U.S. This same requirement existed under the former § 244(a) of the INA (suspension of deportation). In order to facilitate the adjudication of suspension applications in the past under NACARA, the administration, at the time, deemed the existence of extreme hardship for those with qualifying relatives. See Limited Presumption of Extreme Hardship under Section 203 of NACARA, HQCOU 90/16.11-C, Feb. 12, 1999, by Paul Virtue. There are times that the administration has elevated the hardship requirement for a waiver. For example, though the statute requires a foreign national to demonstrate extreme hardship when applying for a waiver under § 212(h) of the INA when convicted of certain criminal acts, the administration elevated the requirement to exceptional and extremely unusual hardship for those convicted of violent or dangerous crimes. Under 8 C.F.R. § 1212.7(d), the Attorney General will not favorably exercise discretion in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the alien clearly demonstrates that a denial of the waiver would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under INA § 212(h). 8 C.F.R. § 1212.7(d). Matter of Jean, 23 I&N Dec. 373, 383 (BIA 2002).
    • The administration can enable those granted TPS to adjust status to lawful residence if otherwise qualified through an approved visa petition. Currently, but for those living within the jurisdiction of the U.S. Court of Appeals for the 6th Circuit, the administration will not allow a foreign national granted TPS to adjust status, finding that TPS is not a lawful status from which one can adjust status. The 6th Circuit, in sound reasoning, found that TPS is a lawful status from which foreign nationals can adjust status. This decision should be adopted nationally.
    • The administration can expand the 601A waiver process stateside to all foreign nationals who are the beneficiaries of approved visa petitions. This administration currently allows beneficiaries of approved immediate relative petitions, who require unlawful presence waivers, to apply for those waivers while physically present in the U.S. Foreign nationals who are not the beneficiaries of immediate relative petitions, but who nonetheless qualify for residence and who are eligible for waivers have to apply for waivers after being denied visas abroad. These waivers take many months to adjudicate. Fearful of not being granted the waivers, these foreign nationals do not proceed abroad, even though many of these waivers would be favorably adjudicated. By moving the entire process stateside, many more foreign nationals would pursue the currently available immigrant visa process.
    • The administration could also include the ability to process waivers of deportation (I-212), or other waivers, along with unlawful presence waivers while the applicants are in the US. As many aliens subject the unlawful presence bar also require deportation waivers or other waivers, they are not eligible to take advantage of the I-601A waiver process, which has effectively rendered the existing policy useless for a large segment of the immigrant population.
    • The administration can relax interpretations of those deemed unlawfully present under § 212(a)(9) of the INA. The administration has never enacted any regulations on unlawful presence. A foreign national who is in a period of stay authorized by the Attorney General is not unlawfully present. The administration has latitude in determining what foreign nationals are present in a period of stay authorized by the Attorney General. Moreover, section 212(a)(9)(B)(iii) of the INA provides exceptions for period for unlawful presence, i.e., for minors, those that have filed for asylum etc. Section 212(a)(9)(B)(iv) provides for tolling of unlawful presence. These exceptions and tolling have only been applied to the 10 year bar to admissibility. The administration can apply these to all periods of unlawful presence, including the permanent bar to admission under § 212(a)(9)(c).
    • Section 245(i) of the INA provides that certain foreign nationals and their spouses and children who commenced the residence process on or before April 30, 2001 and were physically present on December 20, 2000 can seek residence in the U.S. upon payment of a fine of $1000, if otherwise eligible for residence. At one time, the administration interpreted the relatives covered by section 245(i) broadly (i.e. as covering after-acquired spouses). More recently, the Board of Immigration Appeals found that after -acquired spouses of beneficiaries covered by §245(i) would not benefit from this provisions. This is a reversal in policy. National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005), allows the administration to rethink prior interpretations of law. The administration should use the Brand X decision to broaden its interpretation of 245(i),.
    • The administration can use greater prosecutorial discretion (stop trying to deport immediate relatives). The administration should formalize a policy of not putting certain foreign nationals in removal proceedings and target border enforcement.
    Administrative Fixes for lack of family and employment immigrant visas
    • There is no legal support in the Immigration Act for charging worldwide visa quotas against all immigrating family members, as opposed to the legally support use of one (1) visa as per family unit. This would essentially solve most family and employment quota backlogs.
    Allow U.S. companies to attract global talent and compete with E and L companies and deal with severe H-1B shortage
    • The administration can grant employment authorization for spouses of foreign nationals allowed to work in the U.S. on H1B, TN, E3 and H1B1, O and P visas. This will lessen the demand on the H1B professional visa. The demand is so great for the H-1B professional visa that the visas are exhausted the first day they are available. In fact, this year, a foreign national applicant for an H-1B visa, with a U.S. bachelor’s degree, had about a 43% chance of getting selected for the H-1B. The administration has already granted work permission to spouses of L and E visa holders. It is a logical extension for the administration to extend work permission to spouses of other visas.
    •  The administration can grant longer periods of optional practical training for students. The administration already extended the practical training granted to STEM majors in U.S. universities from 12 months to 29 months, as long as the STEM’s employer participates in E-verify. Why not extend this to all foreign graduates of U.S. universities? This would help alleviate the H-1B crisis and encourage more employers to use E-verify.
    Let’s see if the President will “go big” on these immigration fixes, or if he simply “go home.”
  • 23 May 2014 8:11 AM | Anonymous member (Administrator)
    By: Eric Magnus, Shareholder
    Jackson Lewis P.C.

    Many organizations use interns, especially student interns, during the summer months. While interns often are excited for the opportunity and agree to provide services for no pay, businesses must consider the wage and hour risks of such arrangements. Simply put, an individual’s agreement to work in an unpaid position now does not prevent him or her from seeking alleged unpaid wages later. Unless specific conditions are met, a business usually is expected to provide an intern with at least minimum wage for all hours worked and overtime pay, if applicable. Federal and state departments of labor and private attorneys have become more aggressive in pursuing pay for interns in recent years, with several well-publicized collective/class actions filed during the past year. Employers with internship programs must analyze carefully the structure of their programs and the work performed by interns if they want to ensure such positions are unpaid.

    The federal Fair Labor Standards Act (FLSA) defines an employee broadly as “any individual employed by an employer.” The U.S. Department of Labor, consistent with U.S. Supreme Court precedent, recognizes that the FLSA payment obligations do not apply to individuals who are part of programs that provide training for their own educational benefit if the training meets the following six criteria (see U.S. Department of Labor Fact Sheet #71, available at
    • The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
    • The internship is for the benefit of the intern;
    • The intern does not displace a regular employee, but works under close observation of existing staff;
    • The employer that provides the training derives no immediate advantage from the activities of the intern and, on occasion, the employer’s operations may actually be impeded;
    • The intern is not necessarily entitled to a job at the completion of the internship; and
    • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
    State departments of labor standards often are similar, but not necessarily identical. For example, in some cases, school credit for an internship is a defense to wage and hour claims.
    While courts have not universally adopted the USDOL’s standard and have focused their analysis in some cases on the “primary benefit” of the internship, the USDOL standard is a good reference for internal reviews.

    Recommended Employer Actions
    Employers considering using interns must review carefully each aspect of the internship program and apply the DOL’s factors and any applicable state factors to the contemplated program, as well as considering the primary benefit of the internship. If interns perform productive work, especially if such work is not akin to the work product generated in an educational setting, the safest course is to pay minimum wage (and overtime, as required) for all hours worked. If the program's goal is educational, businesses should ensure that line managers understand the rules and manage the relationship consistent with educational goals and the above six factors. Actions such as rotating interns from department to department can help demonstrate an educational goal. Similarly, a business should not decrease regular staffing during periods of internships as such reduced staffing can support an argument the interns are doing the work normally performed by regular employees. Further, if the program is unpaid, the business should strongly consider asking interns to sign an agreement acknowledging the educational nature of the program, the program is unpaid, and the internship is not a direct route to employment. Additionally, if the employer provides a stipend, the business should ensure the stipend covers or comes close to covering minimum wage obligations and the phrasing of the stipend does not preclude the employer from defending a claim for alleged unpaid wages. Finally, if the employer decides after legal analysis to treat interns as unpaid, a best practice is to limit hours to reduce potential liabilities and help dispel any notion that the intern is being taken advantage of by the business.
    A determination of employee status has many implications. In addition to being entitled to withheld minimum wage and overtime pay, an intern found to be misclassified could be entitled to other damages, including “lost” employee benefits, meal and rest periods, and penalties.
    Even longstanding employment practices can have significant wage and hour considerations. Unpaid internships are just one example. Jackson Lewis attorneys are available to discuss this and other workplace law issues. 

    Please contact Eric Magnus at 404-525-8200 for advice on particular situations.
  • 09 May 2014 9:57 AM | Anonymous member (Administrator)

    A new law in Georgia protects employers from negligent hiring and retention claims by creating a presumption of “due care” for hiring and employing individuals with criminal backgrounds who have received a Program and Treatment Completion Certificate from the Department of Corrections or a grant of pardon from the State Board of Pardons and Parole. Governor Nathan Deal signed Senate Bill 365 on April 13, 2014. The law is due to take effect on July 1, 2014, however, no timeline has been released for the Department of Corrections to implement the new certificate program.

    While a presumption of “due care” is established if the individual meets the requirements described above, the presumption may be rebutted by evidence demonstrating the employer knew or should have known relevant information to rebut the presumption that extended beyond the scope of the certificate or pardon. Because of this exception, Employers should continue to assess applicants carefully.

    This law is the third part of Deal’s criminal justice reform he has been working on since 2012 with the General Assembly and the Criminal Justice Reform Council. Deal said in a statement, “[t]he incentives and re-entry programs included in this legislation are cost-effective strategies that will increase the number of former offenders returning to the workforce and supporting their families."

    If you have any questions about the Georgia law, please contact the Jackson Lewis attorney with whom you regularly work or Erin Krinsky, at or (404) 525-8200, in our Atlanta office.

  • 02 May 2014 1:47 PM | Anonymous member (Administrator)

    By: Alisa P. Cleek and Douglas J. Miller
    Elarbee, Thompson, Sapp & Wilson

    It is no secret that today’s restaurants face stiff competition.  New chefs, constantly-changing dining trends, a “foodie” culture, and rising costs all threaten the long-term success and viability of virtually every dining establishment.  What if we told you, however, that one of the biggest risks facing your restaurant does not relate to these issues, but instead to the possible departure of your restaurant’s employees and confidential information?

    Imagine this scenario: your top chef, who you have groomed for years, to whom you have given your every secret recipe, and who has a meaningful relationship with all of your regular diners, tells you out of the blue that he is leaving your kitchen.  Not only that, you soon hear rumors that he is opening his own restaurant down the street, is taking several of your best employees with him, and will be serving a similar style of cuisine and beverage menu.  Your mind races and your heart skips a beat, as you are clearly (and understandably) concerned about the continued viability and success of your restaurant.  STOP.  Before additional panic sets in, you can be comforted by the fact that there are proactive and protective measures that you and your restaurant can take right now to help guard against this uncomfortable and frightening situation, several of which are outlined below.

    One of the best tools that your restaurant can utilize to protect itself against the unnerving situation described above is to have your key employees sign a restrictive covenant agreement, which is an agreement that places certain limitations on an employee both during and for a period after his/her employment ends.  One of the benefits of a well-drafted restrictive covenant agreement is that, if it is abided by the parties that sign it, the agreement can prevent potentially costly, time-consuming, and distracting litigation.  If, however, litigation does become necessary to enforce the restrictive covenant agreement, the outcome of winning the subsequent unfair competition lawsuit can include the following: (1) you may receive restitution for the money you lost due to your former employee’s unfair competition activities, and you may also be awarded any of his/her illegal profits; and (2) if your restaurant presents sufficient evidence showing a probability that your former employee will commit future violations of the unfair competition laws and/or his/her restrictive covenant agreement, an injunction may be issued ordering your former employee to curtail his/her unfair competition activities.


    Approximately three years ago, the State of Georgia substantially altered its public policy on restrictive covenants, and its new Restrictive Covenants Act (O.C.G.A §§ 13-8-50 et seq.) makes it significantly easier for employers to enforce restrictive covenants against former employees than was permitted by prior Georgia law.  While some may reasonably argue that requiring creativity-driven employees like chefs to sign such agreements will drive key talent to other establishments, some restaurants are in fact beginning to take advantage of Georgia’s new stance on restrictive covenants.


    By having your key employees (chefs, bartenders, managers, etc.) sign a well-drafted restrictive covenant agreement, you can, for example, prohibit them from opening a competing restaurant within a certain geographic region and for a specific period of time, restrict them from recruiting and hiring away your other employees to their new venture, keep them from soliciting business from your regular customers, and forbid them from disclosing or using your restaurant’s most secret and confidential information.  Importantly, these agreements can be hand-tailored to match a wide variety of restaurants and staff, including your own.

    Restrictive covenant agreements are not the only way to protect your restaurant from unfair competition, however.  With respect to your restaurant’s confidential information, which may include recipes, cooking techniques, food and alcohol sources, customer lists, and financial information, your restaurant must take internal measures to protect the confidentiality of this information.  These measures may include, for example, only granting access to this information to those employees with a need to know it and for the sole purpose of conducting the business of your restaurant.  Computer passwords, locked office spaces, and even combination safes should also be deployed, as necessary, to safeguard these secrets.  Additionally, when your employees leave your restaurant’s employment, you should take steps to make sure that they are not taking any of this confidential information with them, whether in hard-copy or electronic form.

    Evidencing the growing impact of this issue, some restaurants have sought relief after losing their key chefs or other employees, accusing them of leaving to create competitive dining establishments founded on their prior restaurants’ recipes.  Recent cases include 50 Eggs Rest. Co., LLC v. Chef Bee et al., No. 13-027964-CA-01 (Fla. Cir. Ct. Aug. 27, 2013) and Torchy’s Tacos v. Mario DeJesus et al., No. 2013-34135 (Tex. Dist. Ct. Aug. 19, 2013).  In each of these cases, the restaurant proprietor claimed that departing employees ransacked the restaurant’s recipe boxes, thereby engaging in trade secret misappropriation and unfair competition by using the recipes to establish new, competitive restaurants.  In Torchy’s Tacos, for example, the restaurant claimed that a former employee stole its “Taco Bible” – a document containing a start-to-finish recipe and process guide for each of its food items – and used it to start his own taqueria.

    If not handled properly, unfair competition issues can have a devastating impact on your restaurant; thus, time spent reviewing how to protect your restaurant, customers, employees, and confidential information from unfair competition is time well spent.  If you want to know more about how to protect your restaurant from these and other unfair competition issues, please contact Alisa Cleek or Douglas Miller at or

  • 09 Apr 2014 8:07 AM | Anonymous member (Administrator)
    By Charles H. Kuck, Managing Partner
    Kuck Immigration Partners LLC

    Although we are in the midst of H-1B hiring season, not all of these H-1B workers will be successful in their new jobs. We are frequently asked what obligation does an employer have when it terminates a foreign national employee like an H-1B visa holder, and what options are available to the foreign national employee if he is terminated. While this is general guidance to employers in dealing with immigration matters during the downsizing process, employers terminating foreign employees should also consider arranging for immigration counsel to advise foreign employees on the consequences of termination as one of the services provided to workers being terminated. There are many myths surrounding the termination of H-1B and other non-immigrant workers, and it is very important to understand the employers obligation, and to dispel the myths for the now former foreign worker employee.

    The foreign national employees referred to here do not include lawful permanent residents or U.S. citizens. Foreign national non-immigrant workers usually fall under the H-1B, L, E, O, and TN temporary work visa categories. The most common non-immigrant work visa, H-1B, is used for an “alien who is coming to perform services in a specialty occupation”. L visas are used for intra-company transferees that enter the U.S. to render services “in a capacity that is managerial, executive, or involves specialized knowledge. E visas are used for “treaty traders and investors” as well as Australian specialty occupation workers. O-1 visas are used for foreign nationals who can demonstrate the sustained national or international acclaim and recognition for achievements in the science, education, business or athletics. TN visas are used for Canadian and Mexican citizens to engage in business activities at a professional level as listed in the North American Free Trade Agreement.

    Non-immigrant work visas are generally issued for the specific employment with a particular employer. A foreign employee is authorized to remain in the United States as long as they are employed with the particular employer noted in the visa application. If the foreign employees are laid off, they immediately lose their visa status, and must immediately pursue one of four options outlined below.

    The immigration laws define a “lay off” as an action taken by an employer to cause the loss of a worker’s employment. A lay off does not include:
    • Loss of employment for inadequate performance;
    • A loss of employment for violation of workplace rules;
    • Voluntary departure or retirement;
    • The expiration of an employment grant or contract.
    But, a "termination" can include all of these things, and other reasons for terminating an employee.

    In case of either a "lay off" or a "termination" the employer must comply with the affirmative duties under immigration law with respect to those foreign workers. For most employment-related visa types, the employer has an affirmative responsibility to notify the U.S. Citizenship and Immigration Service (USCIS) Service Center which approved the petition underlying the foreign national’s visa, when terminating a foreign worker’s employment. The employer’s salary payment obligation for H-1B visa holders under the immigration law ONLY ends when there is a bona-fide termination of employment AND the employer also notifies the USCIS. The confirmed written notice to the USICS fulfills the requirements for bona-fide termination of employment.

    These affirmative responsibilities are particularly important because employers that do not comply with these obligations violate the immigration rules and are subject to various penalties, including back wages, even if the employee is no longer working for the company under a voluntary separation.. We include some brief explanations of the affirmative responsibilities employers incur when laying off foreign national employees:

    Laying off H-1B visa holders

    The employer must offer to provide the H-1B workers return transportation to their home country at the employer’s expense. This is an airfare cost only, and only for the foreign national employee. It is not for his spouse, children, home furnishing or dog.

    The employer must notify the USCIS of the termination of foreign workers’ employment

    Laying off other non immigrant foreign workers

    The employer must notify the USCIS of the termination of foreign workers’ employment

    Options for Terminated Employees

    The employer should also ensure that the foreign national worker understands his or her options upon termination. Essentially, there exist four options in most cases for the foreign national employee:
    • The employee can leave the United States immediately. Remember, there is no grace period currently in place for any non-immigrant work visa (H, L, E, O, TN) unless the employee has completed the fully authorized term of employment;
    • The employee can file for a change of status to visitor visa status (B-2), with proof of intended departure date, verification of support pending departure, and a valid reason for remaining (e.g., packing household goods, etc.). This application for change of status to visitor should occur prior to the expiration of any time period of severance, and is best filed while the employee is still employed. This request to remain in the U.S. as a Visitor can be for up to six (6) months;
    • The employee can file to change employers and remain in that visa status. This means, obviously, that the employee must already have an offer of employment from another employer. The same process is in place that obtained the current non-immigrant status for the employee. The employee must also file this change of employer petition while still in lawful status (e.g. during a severance period or while still employed); and
    • The employee can enroll in or return to school as an F-1 Visa holder. This means the employee enrolls in a university to seek a degree, typically a higher degree, and seeks to change status to that of a student visa holder (F-1). Obviously, there are serious costs associated with this option, as the employee must pay tuition and related expenses, and typically will not be allowed to work, unless the employee enrolls in a degree program that allows Curricular Practical Training (CPT). Again, this change of status petition must be filed while the employee is still “in status,” as noted above.
    Layoffs and terminations are difficult for all parties involved. Properly managed, both the employer and employee can come through this situation fully protected and compliant with all federal immigration laws. If you would like further information about specific case scenarios or situations, please call our office or email us at to speak to one of experienced immigration attorneys.
  • 28 Mar 2014 11:08 AM | Anonymous member (Administrator)
    By: Justin R. Barnes
    Jackson Lewis P.C.

    What do you do when a patron walks into your restaurant with a 150 pound dog in tow? Do you automatically point to the sign in your window that says “NO DOGS ALLOWED” and politely escort them and their furry friend out the door? The short answer is no, you should not have a blanket policy that prohibits all animals in your restaurant regardless of circumstances. Federal regulations under the Americans with Disabilities Act (“ADA”) require all public accommodations (including restaurants) to modify their policies to permit the use of a service animal by an individual with a disability. Restaurants must permit individuals with disabilities to be accompanied by their service animals in all areas of the restaurant where other patrons are allowed to go.*

    That being said, federal regulations do not require you to turn your restaurant into an off leash dog park. There are limits to the access that is required by the ADA regulations governing service animals. For example, public accommodations can refuse access to a service animal when the service animal poses a direct threat to the health or safety of others. In addition, regulations permit accommodations to ask an individual with a disability to remove a service animal from the premises if the animal is out of control or if the animal is not housebroken. If you do ask the individual to remove the service animal from the premises for a lawful reason, you should nevertheless give the individual the option to obtain services without having the service animal on the premises.

    Here are some practical tips you can follow to comply with federal regulations while balancing the interests of maintaining a clean, safe, and controlled restaurant:
    1. You can prohibit barking or aggressive behavior.
    2. Train your staff to properly deal with patrons with service animals.
    3. You can require individuals using service animals to use a harness or leash on the service animal, unless the handler is unable because of a disability to use a harness or leash, or if use of a harness or leash would interfere with the service animal's safe, effective performance.
    4. You should not ask about the nature or extent of a person's disability or demand documentation that the animal is qualified as a service animal, but you may ask if the animal is required because of a disability and what task the animal has been trained to perform (unless it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability).
    5. You should not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. You may, however, charge an individual with a disability for damage caused by his or her service animal if you normally charge other patrons for the damage they cause to the premises.
    *Georgia law also provides that individuals with disabilities have the right to be accompanied by a service dog in any public accommodation. Because Georgia courts have held that this law does not provide a private cause of action, however, Georgia restaurants should focus primarily on ensuring compliance with the federal requirements under the ADA.
  • 24 Mar 2014 9:41 AM | Anonymous member (Administrator)
    By Bryan A. Stillwagon | Attorney

    Restaurants across the country are facing class or “collective actions” brought by disgruntled delivery workers claiming their current and former employers underpaid them. Delivery workers fall into a murky - and potentially risky - area of the Fair Labor Standards Act (“FLSA”), which establishes the rules employers must follow when paying employees. Due to the nature of the job, delivery workers present unique management challenges for employers. The following suggestions are intended to help minimize legal risk if your company uses delivery workers.
    • Maintain accurate records of employees’ hours and tips. Keeping track of employees’ wage and hour data is the employer’s responsibility. Failing to do so can put the employer at a great disadvantage in the event of an employee lawsuit. If an employee claims that s/he worked a certain number of hours for which s/he was not paid, the burden falls on the employer to refute those claims with its own data. Employers must ensure they not only have, but enforce, time-keeping policies that include reliable methods of tracking tips earned and hours worked. If the delivery workers are tipped employees, the employer may pay them less than minimum wage in anticipation of their receiving tips. Before taking the “tip credit,” however, employers must track the employee’s tips to ensure s/he is earning enough to meet or exceed the minimum wage. It is the employer’s responsibility to obtain this detailed information from the delivery workers.
    • Limit non-tipped activities. Employers may take a tip credit for time in which tipped employees perform duties related to the tipped occupation, even though those duties (e.g., a waiter rolling silverware) are not directed toward producing tips. The Department of Labor states, however, that where tipped employees spend more than 20% of their time performing non-tipped work, such as general preparation or maintenance, the employer may not take a tip credit for such duties. For example, a pizza delivery driver should not spend more than 20% of his time folding pizza boxes or preparing other delivery materials, or the employer will not be able to take a tip credit for the employee’s additional, non-tipped work.
    • Ensure proper reimbursement for expenses. Expenditures for delivery workers are different than those for in-restaurant employees. Whether the expense is for a company uniform, gas and mileage for a personal vehicle, use of a personal bicycle, or special clothing required for working in the elements, an employee risks falling below minimum wage if s/he is not properly reimbursed for those expenses.
  • 12 Mar 2014 12:57 PM | Anonymous member (Administrator)
    Source: Law360, New York
    By Ben James

    (March 12, 2014, 7:54 PM ET) -- The Obama administration's anticipated efforts to change U.S. Department of Labor regulations to extend overtime pay rules to millions of workers currently considered exempt will face a groundswell of opposition from employers, management-side lawyers say, calling the potential changes an “ambush” and warning that they could be devastating for some restaurants and retailers.

    On Thursday, President Barack Obama will direct the Department of Labor undefined which has the authority to define the exceptions to federal overtime requirements through regulation undefined to strengthen overtime pay protections, a White House official announced Wednesday. Lawyers say this could be a harbinger of a lengthy rulemaking process that brings a slew of workers currently considered exempt within the scope of the FLSA's overtime requirements.

    Worker advocates saw benefits in potential changes to overtime regulations, but employer-side attorneys warned the move could increase litigation and hurt businesses, particularly in the restaurant and retail sectors, without conferring much of a benefit to workers.

    If the push to expand the Fair Labor Standards Act's overtime protections proceeds as anticipated, it will generate impassioned opposition from employers and potential congressional action aimed at thwarting the changes, lawyers said.

    “This tees up a pretty significant political battle because of what they appear to be trying to do. It sounds like the changes are designed to reduce the number of employees who have exempt status. That's a big deal,” said Paul DeCamp, former head of the DOL's Wage and Hour Division and leader of Jackson Lewis PC's wage and hour practice.

    “In the abstract, it sounds great to say: Hey, why don't we give all these people overtime so they can make more money? But the reality is that there's no free lunch,” he said.

    A push to change overtime regulations wouldn't be unprecedented. The DOL changed FLSA overtime rules in 2004 undefined a “tough job” that took more than two years, noted Tammy McCutchen, a Littler Mendelson PC shareholder who served as administrator of the DOL Wage and Hour Division from 2001-04.

    Even if the DOL begins revisiting the overtime regulations immediately, it could take a year undefined and probably longer undefined for changes to wind their way through its rulemaking process and take final effect, lawyers said.

    Recently, the conventional wisdom has been that the DOL was focused primarily on independent contractor versus employee misclassification, according to McCutchen, who said changes to the overtime regulations hadn't been listed on the DOL's agenda.

    “Its an ambush,” McCutchen said. “This is a surprise to everybody, at least on the employer side.”

    Specific changes that might be on the table include raising the threshold for invoking white collar exemptions under the FLSA, which currently require a worker to be paid a salary of at least $455 per week.

    Higher figures might make sense in places such as New York and California, which already have their own elevated thresholds of $640 and $600 per week, but they would threaten jobs and the viability of businesses if implemented in rural areas in the Midwest or the South, said McCutchen.

    Another change lawyers said might be in the cards concerns the executive employee exemption, which requires that the exempt employee's “primary duty” be managing.

    Setting a fixed percentage of an employee's work that has to be devoted to managerial tasks undefined like California's rule that more than one-half of an exempt employee's time has to be devoted to exempt work undefined could have a “devastating” impact in the retail and restaurant sectors, where managers frequently step in and handle nonexempt tasks when needed, said McCutchen.

    “I think the Obama administration wants federal law to look like California law, which is the law most favoring employees,” McCutchen said.

    Relatively low profit margins for retailers and restaurants, combined with the way those establishments are typically staffed, means those businesses could bear the brunt of the economic impact of changes to overtime regulations, DeCamp said.

    And according to DeCamp, expanded overtime protections are unlikely to put more money in workers' pockets, because employers will either lower base salaries to adjust for anticipated overtime or strictly limit work time to no more than 40 hours per week to avoid triggering overtime requirements.

    “The unintended consequences are going to be more severe than any benefit overall,” he said.

    But while the changes to the overtime regulations that could be on the horizon have their critics, they also have vocal supporters who say it's time workers got their due.

    “President Obama’s anticipated proposal to expand overtime protection for hardworking families is an important step towards raising wages, creating jobs and lifting the economic tide for millions,” AFL-CIO President Richard Trumka said in a statement Wednesday. “This will help to build an economy that honors work, not one that steals from workers,”

    A substantial group of workers are labeled as overtime-exempt managers but perform a lot of nonmanagerial work, and they deserve to earn overtime when they put in long hours, according to Kim Bobo, founder of the advocacy group Interfaith Worker Justice.

    “The basic thrust of the proposal makes absolute sense and is certainly in line with the direction and the goals of the FLSA,” Bobo told Law360 on Wednesday.

    Wigdor LLP's Douglas Wigdor said that clarity from the DOL could end up benefiting both workers and businesses.

    “I think that the guidance will be useful not only only to plaintiffs lawyers, but also the companies, which will have a clear picture of how they should be compensating their employees,” Wigdor said.

    So while question remain about exactly what the expected regulatory push will look like, a pitched battle appears to be looming. Some observers are already expressing concern about the use of regulation to achieve what they say is an end-run around an intractable Congress.

    “It's a bit startling to use the administrative rulemaking process to greatly expand coverage. Typically, this is something you would expect from congressional action. It should be a significant concern to employers,” said Kevin Hyde, chair of Foley & Lardner LLP's labor and employment practice. “This is a labor issue, but really, it is a political issue.”

    How November's midterm elections will impact the House and Senate is still unclear, and those elections may be a big factor in determining whether Republican lawmakers will be able to muster an effective challenge, said Seyfarth Shaw LLP's Alexander Passantino, a former acting administrator of the DOL's Wage and Hour Division.

    But it's a safe bet that stakeholders on both sides of the issue will stand up and make vociferous cases for themselves at the DOL, Passantino added.

    “This is going to be a significant rulemaking where there will be a lot of of activity on both sides undefined the employer and employee side undefined in an effort to move the needle on whatever proposal comes out,” he said.

    --Editing by Kat Laskowski and Chris Yates.

  • 07 Mar 2014 4:44 PM | Anonymous member (Administrator)
    By: Kuck Immigration Partners

    Many restaurant owners and employees have “green cards” or lawful permanent residence in the United States. Most have worked VERY hard to get that coveted green card. Sometimes though it’s not getting the green card that’s the hard part, it’s keeping it. Lawful permanent resident (LPR) status implies in its name “residency”. However many green card holders still maintain ties to their home countries and travel for family or business. It’s extremely important to be aware of what you need to do to maintain your LPR status. According to the USCIS, you may be found to have abandoned you permanent residency status if you:
    1. Move to another country intending to live there permanently;
    2. Remain outside the U.S. for more than 1 year without obtaining a reentry permit or returning residency visa. However you may also be deemed to have abandoned your residency even if absent from the U.S. for less than one year;
    3. Remain outside the U.S. for more than 2 years after issuance of a reentry permit without obtaining a returning residency visa;
    4. Remain outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. However, in determining whether your status has been abandoned any length of absence from the United States may be considered, even if less than 1 year;
    5. Fail to file income tax returns while living outside of the United States for any period;
    6. Declare yourself a “nonimmigrant” on your tax returns;
    If you are a permanent resident and plan to travel abroad for over 180 days in any given year period, consult an immigration attorney to be sure you are taking the proper steps to maintain your residency status. Also, if you ever travel back to the United States and are pressured by Customs and Border Patrol (CBP) to sign a form in order for you to voluntarily abandon your Permanent Residency Status, simply refuse to do it. Tell the CBP officer that you do not wish to abandon your green card and that you would like to exercise your right to contest a finding of abandonment of residence before an Immigration Judge. You will be scheduled for a hearing where you will have the opportunity to convince an Immigration Judge that you did in fact maintain permanent residency status. The best way to avoid any potential issues with abandoning your green card is to apply for citizenship as soon as you are eligible. Keep in mind that extended time out of the U.S. as a permanent resident may also delay your eligibility for naturalization.

    Often it takes a lot of time and effort to obtain permanent residency status in the United States. As with anything in life, the benefits of having LPR status do not come without responsibilities to keep and maintain it. Educate yourself about your responsibilities as an LPR so you will best enjoy its benefits.
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