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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  • 17 Nov 2014 10:35 AM | Anonymous member (Administrator)
    By: Charles Kuck
    Kuck Immigration Partners 

    From FoxNews we learn that President Obama is considering a 10 point Executive Action on immigration. We will walk through each of these 10 items and give you a real life perspective of what they mean, who it would affect, and how "good" it is. But, to note, the most important thing he can do is not on this list--count only principal immigrant applicants, rather than all family members when it comes to family legal immigration quota totals. That appears to be off the table, for now.

    The 10 points of the draft plan, as outlined by FoxNews, are as follows, with my commentary on each item.

    Expand ‘deferred action’ for young illegal immigrants
    This would expand a major step taken by Obama in June 2012. In June 2012, Obama offered a deportation reprieve – a.k.a., deferred action -- for undocumented immigrants who came to the U.S. as children, entered before June 2007 and were under 31 as of June 2012.

    The change would expand that to cover anyone who entered before they were 16, and change the cut-off from June 2007 to Jan. 1, 2010. Obama estimates this would make nearly 300,000 additional undocumented immigrants eligible. I doubt this many more would eligible, and, only a third of those legible under the current deferred action have applied. Look for around 100,000 to apply for this. This seems a likely easy fix for the president, and court has already held that the president has authority to do this.

    Expand ‘deferred action’ for parents of U.S. citizens and legal permanent residents
    This would significantly expand the above program by also giving a reprieve to illegal immigrants who have been in the U.S. for more than five years and have children who are U.S. citizens or legal permanent residents. This is the first of the big three proposals.

    This could allow upwards of 4.5 million illegal immigrant adults to stay, according to estimates. That sounds about right, but could on less than half applying, for a variety of reasons, including costs, proof, and fear.

    Sen. Jeff Sessions, R-Ala., voiced concerns that illegal immigrants could simply fib in order to meet the criteria for this program. Further, he said millions more people would then be “entitled” to U.S. privileges including health care.

    Of course Jeff Sessions is lying, but that does not stop FoxNews from printing it without fact checking him. The immigrants who apply under this proposal do not receive any legal status. They would merely have a stay of deportation, like the kids who have DACA. They would not be eligible for any public benefits, and would lot be eligible for Obamacare, which specifically excludes anyone who is it a permanent resident. Also, USCIS is excellent at detecting fraud in 2014, something that Legacy INS was not so good at in 1986. Will people lie to try to get this benefit, yes, like in all government benefit programs. Will they be successful, not likely.

    Prioritize deportations for serious criminals
    This would be a Department of Homeland Security-wide enforcement policy to prioritize deportations for serious criminals and other individuals deemed a threat – including gang members.

    ICE already does this to a large extent. There is no doubt that the random serious criminal is not deported, but that is infrequent. Spending more money on this type of program because they are not focused on traffic infractions will be a huge success for ICE.

    “Our national security suffers whenever we spend precious enforcement resources on hardworking immigrant families, rather than on criminals and those who mean our communities harm, . . . .”

    End ‘Secure Communities’ and start a new program
    Obama would discontinue the “Secure Communities” program. Under this program, ICE takes fingerprint information that it gets from local jails and checks it against immigration databases. Immigration and Customs Enforcement then places a "Hold" on the immigrant, which frequently leads to deportation, more than 2 million times since Obama has been President, and frequently of non-criminal foreign nationals.

    Hundreds of thousands of “criminal aliens” have been deported this way.

    The plan calls for replacing this with another, unspecified program. Obviously, he will have to replace this with another program, but computer tracking of actual criminals is much easier today than ever before. Look for a "Secure Communities" light.

    Boost pay for ICE officers
    This calls for a pay raise for Immigration and Customs Enforcement officers, to “increase morale.” Earlier this year, the National ICE Council – the union representing ICE workers – called for more funding for the agency. I don't know where Obama is going to get this money, if Congress does not allocate it.

    Expand high-tech visas
    The plan calls for working with the State Department to expand visas for foreign-born workers with high-tech skills, to support U.S. businesses. This is projected to offer another half-million immigrants a path to citizenship.

    This is a little vague. Once way to do this is to not count foreign national family members when the principal is immigrating through employment. This would virtually eliminate the backlog of visas for all nations. Obama could also allow the spouses of H-1B visas to work, he could modify the definition of "extraordinary ability for O-1 visas, and he could expand the ability of a company to obtain cap-exempt H-1B visas for companies at or affiliated with a University. What Obama cannot do is increase the number of H-1B visas subject to the cap each April. Expect continued lotteries for the standard H-1B. This point is very vague.

    Strengthen border security
    The plan would commit additional resources to the U.S.-Mexico border to deal with uncoudme red immigrant traffic, partly in response to the surge over the summer of undocumented children from Central America. Of course these children were applying for asylum, which is a treaty obligation we have. We were and are not allowed to turn these kids away.

    This sounds great in practice, but this is the part of the plan Obama needs to sell and actually perform on to stop what some will say will be another large migration of undocumented people, coming in response to the Executive Action. Clearly putting children in jail is not working as a deterrent. The biggest deterrent would be a functioning legal immigration system that lets family members come quickly, reduces lines and matches willing workers with employers who need their services in a logical functional way. GOP Congress, are you listening?

    Expand provisional waivers to spouses and children of legal permanent residents
    This would be the second of the big three parts of this plan. He would expand a wildly successful provisional waiver program in place since March 2013 for undocumented spouses and children of permanent residents and U.S. citizens. This change is easy, it is simply a one line update to the already existing policy memo. Hundreds of thousands of folks would qualify to finally, safely reunite, without spending more than a year apart waiting for a waiver abroad. They would process the waiver here, travel to the consulate for their interivew with their approved waiver in hand, and reenter the US usually less than 10 days later. Obama cannot eliminate the requirement that the person leave the US to visa process, unless--see below!

    Expand ‘parole’
    The government currently allows “parole in place" for undocumented immigrant parents and spouses of U.S. military members – effectively letting them change to “parole” status in the United States if they are already in the country. This, with what is now a legal entry, they can adjust their status in the U.S. to permanent residence as immediate relatives, if their child is 21 years old.

    Obama is considering expanding the program for undocumented immigrants whose children are citizens. This is the 900 pound gorilla in this proposal. It would allow almost 3 million undocumented immigrants obtain permanent residence through their children, not necessarily right away, but when the child turns 21. This solves a major problem with our waiver law, which requires consular processing for folks who entered undocumented, but who cannot apply for a waiver through the children, as there is no waiver in the law.

    Promote the naturalization process
    Currently, the naturalization fee is $680. To encourage people to begin the citizenship process, DHS would take 50 percent off the fee for the first 10,000 applicants. What can I say besides, it's about time. This fee is far too high for many folks. Obviously it will be tied to income, and justifiably so.

    And, that is it, there are many other things Obama can do, and we have explained how he has this authority. Now we need to see if he has the spine to make it happen, because it will relese a torrent of vitriol from the anti-immigration portion of the GOP.

    Finally, please understand, NOTHING is final. Do not Hire or pay anyone to do anything. But you need to prepare for this, so begin gathering your tax returns for the last 10 years, get evidence of your physical presence, take pictures of yourself i the US today with today's papers, send facebook messages and document where you work, where you go to Church, and who you spend time with. Save your receipts of rent, payments, and money transfers. And, of course, save your money, because this will not be free. Since Congress will likely refuse to fund this, these changes will all need to be self-funded. Expect government filing fees of around $1,000.
  • 06 Nov 2014 2:39 PM | Anonymous member (Administrator)
    By: Bryan A. Stillwagon
    Sherman & Howard L.L.C.

    Recently, OSHA announced a revision to its recordkeeping requirements that will update the list of industries that are required to keep injury and illness records. The new requirements go into effect on January 1, 2015. Some industries that were previously required to maintain injury and illness records will not be required to do so as of next year. However, many previously exempt industries are now required to keep such records. Below is a list, by NAICS Code, of the industries that will now be required to keep injury and illness records that had not been required to do so previously. Note that the food and beverage industry is affected by several categories.
    • 3118 Bakeries and tortilla manufacturing
    • 4411 Automobile dealers
    • 4413 Automotive parts, accessories, and tire stores
    • 4441 Building material and supplies dealers
    • 4452 Specialty food stores
    • 4453 Beer, wine, and liquor stores
    • 4539 Other miscellaneous store retailers
    • 4543 Direct selling establishments
    • 5311 Lessors of real estate
    • 5313 Activities related to real estate
    • 5322 Consumer goods rental
    • 5324 Commercial and industrial machinery and equipment rental and leasing
    • 5419 Other professional, scientific, and technical services
    • 5612 Facilities support services
    • 5617 Services to buildings and dwellings
    • 5619 Other support services
    • 6219 Other ambulatory health care services
    • 6241 Individual and family services
    • 6242 Community food and housing, and emergency and other relief services
    • 7111 Performing arts companies
    • 7113 Promoters of performing arts, sports, and similar events
    • 7121 Museums, historical sites, and similar institutions
    • 7139 Other amusement and recreation industries
    • 7223 Special food services
    • 8129 Other personal services
    If your business falls under one of these classifications, please consult OSHA’s recordkeeping website (https://www.osha.gov/recordkeeping2014/records.html) for instructions on how to complete and maintain these forms. For employers that have been required to keep injury and illness records in the past, please check this website to determine if your industry is still covered. Please note that establishments with 10 or fewer employees at all times in the previous year continue to be exempt from keeping OSHA records, regardless of their industry classification.

    If you have any questions, feel free to contact Bryan Stillwagon of Sherman & Howard LLC at (404) 567-4372.
  • 03 Nov 2014 2:35 PM | Anonymous member (Administrator)
    Source: Elarbee Thompson

    by Patrick Lail

    [Elarbee Thompson]felt it would be beneficial to share some of the most common questions we are receiving from our clients about Ebola and their employees' fears about it. Although the specific circumstances of each employer may vary and call for a modified response, we hope this general information contributes to a measured and appropriate response to the issues raised by this developing situation.
    • Where can I get information about Ebola?

      We recommend following informed and updated sources for current information about the disease - such as the CDC and the World Health Organization. Such sources, rather than general media, provide a sound basis for managing and addressing employees' worries and concerns. Prudent employers will also monitor the mood and morale of employees with regard to the disease, and craft tailored educational responses to address the specific issues causing concern.

    • Can I place an employee who may have been exposed to Ebola on paid leave for the 21-day incubation period to avoid any risk to other employees and customers?

      Yes, although this approach carries some potential liability. For example, placing an asymptomatic employee on leave could give rise to a claim that the employer has "regarded" the employee as disabled in violation of the Americans with Disabilities Act (ADA). Also, if the employer unilaterally places the employee on leave and the employee is presently asymptomatic, the leave should not be counted against the employee's leave entitlement under the Family and Medical Leave Act (FMLA).
    On the other hand, if an employee displays Ebola symptoms and has traveled to West Africa or has otherwise been exposed to the virus, the employee likely presents an ADA "direct threat" of harm to himself or others, and an employer's action of placing the employee on leave is not likely to give rise to ADA liability. The latter facts would also support the application of FMLA leave. In any event, paying the employee during any such leave makes it less likely the employee would raise a claim and, if a claim were asserted, paid leave may deprive the employee of meaningful damages.
    • What can I do about employees who refuse to work with someone whom they believe has been exposed to Ebola?
    First, we recommend that employers take employees' concerns seriously and respond with education from the sites listed in the first question above. While Ebola is a scary virus, scientists have determined it is transmissible only at certain stages of the disease and only through bodily fluids (i.e., it is not an airborne disease).
    Second, employers should be mindful that employees have rights under the Occupational Safety and Health Act (OSHA) and the National Labor Relations Act to protect themselves from imminent danger and to speak out about potential risks in the workplace. An employee's OSHA right not to work due to an imminent risk must be in good faith and is generally triggered only after asking the employer to eliminate the danger and the employer's refusal to do so. Thus, reluctance to work due to Ebola concerns should be taken seriously, and employers should engage in meaningful, documented dialogue about employees' concerns and the employer's response before resorting to discipline for failure to perform.
    As each situation is unique, we recommend that employers seek advice of counsel before making decisions about placing employees on leave, requiring medical clearance documentation based on Ebola concerns, or disciplining employees for failure to report to work or perform certain tasks. If you have questions about the unique circumstances your workplace or workforce present as they relate to the current Ebola situation, please contact your Elarbee Thompson attorney or respond to this email.
  • 29 Oct 2014 4:38 PM | Anonymous member (Administrator)
    By: Peter Dosik
    Shipe Dosik Law LLC

    Successful restaurateurs and entrepreneurs make taking care of customers their number one priority. Happy customers become regular customers and they tell others about their positive experience. Unhappy customers don’t come back and spread the word far and wide with their negative reviews.

    In a franchised brand, the franchisee occupies a layer between the franchisor/brand owner and the customer. It’s the franchisee that interacts directly with the customer.

    So the franchisor wonders: how do we force franchisees to take care of customers?

    Actually, that’s the wrong question. If the franchisor has to “force” franchisees to do anything, then the franchisor has already failed. The franchisor needs to reconsider its relationship with franchisees.

    Some franchisors view franchisees as mere revenue streams (or worse, as opponents that must be carefully watched and forced to toe the line). Better franchisors see their franchisees as “partners,” with both sides working together to better the brand.

    However, even those better franchisors are missing a fundamental key to success in franchising: franchisees are also your customers, so treat them like customers. After all, the franchisee is buying something from the franchisor -- the brand, the system, and ongoing support -- and expects to get value from the franchisor in return. More importantly, the logic about taking care of customers applies to franchisees just like it does to guests who come in the door. Happy franchisees build more units and tell prospective new franchisees how happy they are with the brand. Unhappy franchisees will not grow, and they will disparage the franchise system to any prospective franchisee who contacts them about buying a franchise.

    For more information or questions, contact Pete Dosik at (404) 692-3654 or via email at pete@shipedosiklaw.com.

  • 17 Oct 2014 11:39 AM | Anonymous member (Administrator)
    By: Bryan A. Stillwagon
    Sherman & Howard L.L.C.

    Rallies were recently organized across the nation by women’s rights and restaurant worker advocacy groups in response to a published study on sexual harassment in restaurants. According to the study, 90 percent of female employees and 70 percent of male employees reported experiencing sexual harassment by customers. Although managers may be trained on how to respond to an employee’s complaint of harassment by a fellow employee, it is not unusual for managers to brush off complaints of customer misconduct. The customers are, after all, spending money at the restaurant and (hopefully) tipping for the service. What’s the risk of turning a blind eye?

    As federal courts across the country have made clear, the risk of inaction is immense. When the harassment comes from a customer, courts apply a negligence theory of liability. This means employers are liable for the customer’s sexual harassment if the employer knew or should have known of the conduct and failed to respond. Two cases illustrate this well.

    In Lockard v. Pizza Hut, Inc., two male customers regularly made sexually offensive comments to a female waitress. One evening, one of the men told the waitress she “smelled good” and asked what cologne she was wearing. She told him it was none of his business, and he responded by pulling her hair. The waitress immediately reported the incident to her supervisor, said she did not want to continue waiting on the customers, and requested for another employee to serve the customers. Her supervisor denied her request, stating “You wait on them. You were hired to be a waitress. You waitress.” When the waitress returned to the table, the customer “pulled her to him by the hair, grabbed her breast, and put his mouth on her breast.” The waitress immediately told her supervisor she was quitting. Soon thereafter, she filed an EEOC complaint and then sued Pizza Hut and the franchisee. Finding the franchisee vicariously liable for the customers’ conduct, the appellate court upheld a $200,000 jury verdict against the franchisee for putting the waitress in an “abusive and potentially dangerous situation.”

    Contrast that scenario with Hallberg v. Eat’n Park, where a waitress alleged she was sexually harassed by a regular customer who made sexual propositions to her. The waitress reported the incident, and the restaurant manager promptly informed the customer he would be barred from the establishment if there were any more sexually explicit incidents. The court ruled in favor of the restaurant because it took prompt, remedial action in response to the harassment.

    As with other areas of harassment, training is vital. A harassment policy must prohibit misconduct by customers and vendors in addition to that by employees, and employees must be trained on the policy. Instruct all employees to report harassment, and ensure they know to whom they should report. Finally, train managers and supervisors how to react to harassment complaints, and remind employees that there will be no retaliation for making such complaints.

    Losing one harassing customer’s business is not worth the enormous liability that can attach if the restaurant chooses to look the other way.

    For questions, contact Bryan A. Stillwagon at (404) 567-4372 or via email.

  • 17 Sep 2014 8:35 AM | Anonymous member (Administrator)

    By: Kuck Immigration Partners 

    Whenever new immigration changes are talked about, those that prey on immigrants come out of the dark corners like cockroaches. That is exactly what is happening now! Be on the lookout, be warned, and warn others to avoid immigration-related scams. Several different types of scams reported recently include:

    • Scammers are targeting people based on foreign-sounding names or based on information gathered about companies hiring many H-1Bs. The scammers can get a lot of information from various websites, labor condition application listings from the Department of Labor, LinkedIn, social media and other sources. Scammers are able to collect information in a variety of ways and use it to convince unwitting victims of their purported authenticity.
    • Scammers claiming to be from the Department of Homeland Security or U.S. Citizenship and Immigration Services. They call and state that the victim's paperwork has problems and threaten to deport the victim or to send authorities to the person's home if he or she does not cooperate. They then order the person to go to the nearest convenience store, obtain merchant cards or vouchers for a certain amount of money, and provide the voucher numbers over the phone. Once the scammers obtain the voucher numbers, they disconnect the call and disappear with the victim's money.
    • Scammers claiming to be from the Internal Revenue Service, who state that the victim owes back taxes and ordering them to provide merchant card or voucher numbers, then disappearing with the victim's money.
    • Scammers who use "Caller ID spoofing" to display a telephone number that is not really their own, and that may appear to be from a legitimate government agency.
    • Scammers who send e-mails claiming that the recipient is a Diversity Visa lottery winner and must send in a fee. The Department of State does not send e-mails to applicants.
    • Scammers who claim faster processing times or guarantee visas, work authorizations, or green cards, for a fee.
    Government agencies never conduct business in this manner. A call demanding money and threatening negative consequences if it's not paid immediately is a scam, and those receiving such calls should hang up immediately and not provide any information. USCIS notes: "USCIS will not call you to ask for any form of payment over the phone. Don’t give payment over the phone to anyone who claims to be a USCIS official."

    Scams can be reported to the Federal Trade Commission at https://www.ftccomplaintassistant.gov. See also USCIS's scam information page at http://www.uscis.gov/avoidscams to learn where to report scams. USCIS lists common immigration-related scams at http://www.uscis.gov/avoid-scams/common-scams

    Contact us if you need more information or help in particular cases at (404) 816-8611 or at www.immigration.net.

  • 07 Aug 2014 10:42 AM | Anonymous member (Administrator)
    By: Ed Cherof & Evan Rosen of Jackson Lewis, P.C.

    According to the general counsel of the National Labor Relations Board (the “Board”), franchisors may now be held jointly liable for the unfair labor practices of its franchisees. This decision, which was issued on Tuesday of last week, flies in the face of decades of established law and creates a considerable liability risk for restaurant franchisors that may not have much control over the employment practices of its franchisees.

    Background for the Decision
    Over the past two years there has been a concerted effort on behalf of some fast food workers, spearheaded by the Service Employees International Union, to take collective action to push for a $15 minimum wage. As part of that effort, fast food workers, including those at McDonald’s franchisees, have engaged in one day strikes, picketing, and other related activities. Similar one-day strikes took place in Atlanta, Georgia in August 2013 and May 2014. As an outgrowth of these activities, 181 unfair labor practice charges were filed against McDonald’s and its franchisees alleging violations of the National Labor Relations Act (the “Act”) for illegally terminating, threatening, penalizing or otherwise coercing employees and unlawfully restraining their ability to engage in protected concerted activity.

    The Board’s general counsel, Richard Griffin, found merit to 43 of these claims and specifically stated that he would include McDonald’s, the franchisor, liable as a joint employer. In doing so, the Board is indicating its intent to make it significantly easier to find joint employer liability. The upshot of this ruling is that the franchisor may be responsible, and held liable, for its franchisees employment decisions, even though the franchisor did not have any role in the personnel decisions at issue.

    Unfair Labor Practices in the Southeast
    The general counsel’s ruling is particularly concerning for restaurant franchisors in the southeast for at least two reasons. First, it comes on the heels of a significant and noticeable uptick in unfair labor practice charges filed against local restaurant groups. Over the past eight months, at least 54 unfair labor practice charges have been filed about restaurant chains in the southeast, including many in Georgia. Typically in these cases, the restaurant chain did not have employees represented by a union. Instead, these cases generally involve non-union employees who file a charge (often with the assistance of a union) against their employer for allegedly restraining their right to engage in protected concerted activity.

    Under Section 7 of the Act, employees have the right to engage in collective action to improve their wages, hours or working conditions. Some examples of protected concerted activity include one day strikes; group meetings with a supervisor to complain about wages, hours, or working conditions; groups complaints to the media; Facebook or Twitter posts about working conditions that are collective in nature, etc. Except in very limited circumstances, an employer may not discipline, discharge or threaten employees with discipline for engaging in such activities. Employers who violate the Act may have to pay employees back pay, reinstate the employee, expunge any discipline from the employee’s record, post a notice about the company’s unlawful actions in a visible location, and spend the time and expense of defending against these cases. In addition, the Board may determine that the company’s policy is unlawful and require the company to rescind or rewrite it.

    Unions are using these unfair labor practices as a means to attract support for their organizing efforts. If, as expected, the Board modifies its union election rules in the coming months, it will be significantly easier for unions to organize employees and it will create an added incentive for unions to tap into new markets that have traditionally remained union-free, like the southeast.

    Setting a Precedent for Franchisor Liability
    The second issue that is concerning for restaurant franchisors about this decision is the precedent it may set for other government agencies. If the Board is willing to hold franchisors liable for its franchisees actions, it is certainly possible, that other government agencies, such as the Equal Employment Opportunity Commission, Department of Labor, and other organizations will follow suit. This could create a firestorm of potential liability for franchisors because it would require franchisors to defend against individual and collective claims brought against its franchisees for harassment, discrimination, retaliation, wage-hour violations and other similar allegations. Even if the franchisor ultimately prevails, the time and expense of defending against these actions will impact profitability and serve as a nuisance.

    What to Do Now
    As a consequence of this ruling, Georgia restaurant franchisors should:
    1. Consult with experienced employment counsel to assess the possible risks this decision has on the franchisor’s operations;
    2. Review and revise company policies to ensure compliance with Section 7 of the Act and other applicable employment laws;
    3. Consider whether it is appropriate to increase management training on compliance of employment laws and on effective labor relations not just for corporate staff, but also for owners/managers of franchisees;
    4. Review their franchise agreements; and
    5. Audit the level of control the franchisor has over its franchisees and determine whether more or less control is warranted.
    Jackson Lewis attorneys are available to discuss the general counsel’s decision and the impact it will have on your business, as well as other workplace law issues. Please contact Ed Cherof (CherofE@jacksonlewis.com or 404.586.1851), Evan Rosen (evan.rosen@jacksonlewis.com or 404.586.1837), or the Jackson Lewis attorney with whom you regularly work with.

    4841-0805-1484, v. 2
  • 06 Aug 2014 8:22 AM | Anonymous member (Administrator)
    By: Kuck Immigration Parnters

    Immigration is a key component of many companies forward-looking strategy for workplace competitiveness. American employers who currently hired foreign national workers, and those who plan to do so in the future, need to have a formal corporate immigration policy to ensure that they are competitive in the marketplace and can attract and hold top foreign talent.

    A US employer can legally hire foreign nationals under a variety of visa categories, but each visa category has one commonality--many of these foreign national employees want to remain permanently in the United States. Just as important, given training and lost opportunity costs associated with departing "star" employees, most companies want to keep the foreign talent they have already sponsored for a work visa.

    Give the lengthy waiting period for so many immigrant visa categories, many employees want to start as soon as possible on their "green card" process. At the same time, before a company spends a considerable amount of money on that same process they want to be sure that the employee is one worth keeping! These competing interests are the primary reason why having a corporate immigration policy is necessary. This policy puts every potential employee (and their managers and recruiters) on notice of what it will take to be "sponsored" and how long an employee needs to be employed before that process starts.

    In order to be competitive in their industry, many companies want to know the immigration policies of their competitors and their industry. The Alliance of Business Immigration Lawyers (“ABIL), of which Kuck Immigration Partners is a member, conducted a survey of our members' experience with corporate immigration policies to try to provide a better outlook of where corporate immigration policies lay in 2014.

    The survey requested information from ABIL member firms regarding their corporate clients’ policies on such topics as: (1) how long a foreign national employee would have to work for the company before sponsorship would be started; (2) whether that timing has changed since the height of the financial crisis; and (3) whether there are contingencies on initiating/continuing the green card sponsorship process.
    Here is a summary of our Corporate Immigration Policy Survey:
    • The majority of ABIL members that responded to the survey (66%) reported that their client companies wait one year before starting the green card process. The next highest percentage responded that their clients wait more than 1 year; the third highest reported a wait of six months.
    • When asked whether this time frame changed since the height of the financial crisis, an equal percentage of respondents reported that the wait time had shortened, as those responding that there was no change to the wait time.
    • When asked about contingencies on starting (or continuing) the process, over 80% of respondents stated that the employee’s manager must “sign off” to have the process initiated. One-half of respondents stated that an employee on a performance plan or under some other “disciplinary action” would cause the process to be delayed of stopped.
    • One member reported that some client companies have “nomination periods” when managers can nominate certain employees deserving of green card sponsorship.
    • When asked about the payment of green card sponsorship, most members (over 80%) reported that the employer pays all fees and expenses in connection with sponsorship. The next highest percentage reported that the employer pays all fees for the employee, but requires the FN employee to pay costs related to family members. The smallest percentage reported a policy whereby the employer would pay up to a certain amount towards the process and the employee would cover the balance.
    • When asked about the source of immigration-related costs, the largest percentage (over 90%) reported that the business unit hiring the employee pays for the process. A few respondents reported situations where the Legal or HR Department would pay.
    • Responses were varied when asked about reimbursement policy. An equal number of ABIL members reported that their corporate clients had no reimbursement policy as those who reported that their clients had such a policy (where the employee agrees to repay a portion of the costs of sponsorship if the employee leaves the company within a certain time frame after receiving the green card).
    A company must also need to take into account that federal regulations make the employer responsible for all fees and costs associated with the PERM labor certification process - the first step in the majority of employment-based green card cases – and such fees may not be reimbursed by the employee, ever.

    We strongly suggest that our clients create a corporate immigration policy to ensure consistency across the company in sponsoring employees, and, especially given the metrics captured by USCIS during the immigration process, to ensure that the company is providing consistent information to USCIS and the DOL as it sponsors employees. An upfront corporate policy will also diminish the threat of key employees resigning to take up employment with more foreign national "friendly” employers.

    If you are considering creating and adopting a corporate immigration policy, call the experts at Kuck Immigration Partners for assistance, suggestions and review to ensure that the policy meets all legal standards, and more importantly, in good for business.
  • 30 Jul 2014 3:18 PM | Anonymous member (Administrator)

    By Dion Y. Kohler, shareholder with Jackson Lewis P.C.

    Restaurants and other eating and drinking establishments are not commonly thought of by employers as a hazardous place of employment and compared to manufacturing, and other industrial work environments, they are not. But, 11.6 million people in the U.S. work in such businesses and nearly 30 percent are under 20 years-old and for many, it is their first work experience. This makes it particularly important for employers in the food service industry to place adequate emphasis on workplace safety through hazard analysis, familiarity with applicable Occupational Safety and Health Administration (OSHA) regulations, proper employee training and mandatory record keeping.

    In addition to the human and societal costs associated with workplace injuries, an employer who is found to have violated an OSHA standard, whether or not an injury occurs, can be subjected to fines as high as $70,000 per violation. In addition, workplace injuries and illnesses result in increased workers’ compensation claims and premium costs.

    An effective workplace safety program begins with an analysis of the hazards to which employees may be exposed when performing their job duties. Once these hazards are identified, the appropriate method of eliminating the hazard should be selected and implemented.

    The following are common hazards to which restaurant workers are exposed:
    • Strains and Sprains – Employees may be called upon to lift heavy boxes of product, stacks of dishes, trays, tables, chairs and similar items. An employer should provide training on proper lifting and carrying techniques to avoid injury. If employees who do loading or stocking could have their feet crushed, proper foot protection must be provided.
    • Slips, Trips and Falls – Spills should be promptly cleaned up and employees should wear non-slip shoes. Aisles and other paths of travel should be free of debris and tripping hazards.
    • Burns and Scalds – Burns can occur while cooking food and serving hot food or beverages. Proper training on the use of cooking equipment and personal protective equipment such as protective cloth or mitts, aprons and long sleeves can reduce these hazards.
    • Knives and Cuts – Training employees on safe cutting and storage procedures and the use of heavy duty gloves when washing knives are recognized as effective precautions.
    • Workplace Violence – Employers are required to provide for exit route doors at all time. Preparing a violence prevention program including training employees in dealing with potential threatening situations including robberies is recommended.
    • Hazardous Chemicals – Some cleaners are considered hazardous chemicals covered by OSHA’s Hazcom standard. This requires employers to provide information and training to employees regarding the hazards of such chemicals and proper protective measures, such as the use of gloves and goggles. including car exhaust
    • Electrical Hazards – Regularly inspect and remove damaged electrical equipment, cords and outlets. Ensure employees do not use electrical cords in damp or wet areas unless approved for such use. Properly label fuse box switches.
    • Noise, Heat and Cold Exposure – Drive thru employees may be exposed to excessive noise in headsets, car exhaust and heat or cold. Basic common sense protective measures can reduce this exposure and minimize the risk of injury.
    OSHA standards which apply to an employer’s workplace should also be reviewed to ensure compliance. Many employers prepare a checklist of applicable standards and conduct periodic self- inspections. Be aware though that OSHA can obtain copies of these inspection results and will investigate whether adequate corrective measures were taken.

    Annual safety training for all employees and initial training for new hires is required and an important accident prevention tool. When new hazards are introduced into the workplace, additional training is usually required.

    Should OSHA conduct an inspection (no advance notice will given), proper legal advice should be obtained to protect the employer’s rights and minimize exposure to liability.

    Dion Y. Kohler is a shareholder with Jackson Lewis P.C. and has 30 years of experience assisting employers solve a wide range of employment related problems including workplace safety and OSHA matters. He can reached at kohlerd@jacksonlewis.com or (404) 525-8200.
  • 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.
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