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 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.
  • 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 http://www.dol.gov/whd/regs/compliance/whdfs71.pdf:
    • 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 erin.krinsky@jacksonlewis.com 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 cleek@elarbeethompson.com or miller@elarbeethompson.com.

  • 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 ckuck@immigration.net to speak to one of experienced immigration attorneys.
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