Labor and Employment Law Weekly Update

19 April 2010 Publication

Legal News: Employment Law Update

Make Sure Your FMLA Procedures Do Not Create Unforeseen Problems

With the revised federal FMLA regulations in effect for more than a year, employers should ensure their procedures are up to date.

First, the current regulations are much more specific regarding the contents of an employer’s FMLA policy. The regulations require covered employers to include in their employee handbook an FMLA policy that includes all of the information contained in the FMLA general notice poster. If your handbook policy has not been updated to reflect the revised regulations, it is very likely your policy does not meet this requirement. There are several ways to ensure that your policy includes all mandated language. One way is to use the U.S. Department of Labor (DOL) general notice poster as your FMLA policy. This might be the best option for small employers, but does not allow for customization. Another option is to incorporate all of the FMLA general notice language into your FMLA policy. A third way to comply with this requirement is to provide a hyperlink from your policy to the DOL notice.

Second, if your organization intends to exclude from FMLA coverage employees at worksites having fewer than 50 employees within 75 miles, be sure that such intent is clearly stated in your FMLA policy. A number of courts have ruled that employers who intend to apply this coverage exclusion must clearly state so in their policy.

Finally, double-check that your FMLA notice requirements are up to date. The revised regulations require employees to be informed about whether or not they are FMLA-eligible and to be informed regarding their obligations during their leave and upon return from leave. If an employee’s eligibility for FMLA leave cannot be determined at the time he or she first requests FMLA, the employer must follow up with the designation notice once the relevant information has been received. Not providing the employee with the proper notices and FMLA leave information is more than a simple technical violation. The regulations explicitly state that failing to comply with the regulatory notice obligations may form the basis for a claim that an employer has unlawfully interfered with an employee’s federal FMLA rights.

Take a moment to review your federal FMLA policy and process and confirm that your organization is up to date and in compliance with the current FMLA obligations.

As You Rightsize and Reshape Your Workforce, Do Not Forget Your Foreign H-1B Visa Workers

Your company might be undergoing a number of workforce changes during the tough economy, and it is important to keep in mind that these changes could affect your compliance with immigration laws pertaining to your foreign guest workers. Failure to comply with these regulations could subject you to penalties and sanctions.

The H-1B Visa
The Immigration Nationality Act (INA) permits U.S. employers to employ high-skilled foreign employees using a temporary work visa, the H-1B visa. To obtain an H-1B visa, the employer must apply to the DOL for a certification to employ a foreign worker in a “specialty occupation,” defined as an occupation that requires “theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent).”

What Happens When an H-1B Employee Transfers to a New Job or a New Location?
The H-1B application is specific to a particular employer; thus if an H-1B employee changes jobs, the new employer must file an application for an H-1B visa. A person in H-1B status may accept new employment upon the filing of a new petition by the prospective employer. If an employee is transferred to a new permanent location that was not listed in the application, or if an employee changes his or her occupational classification, the employer must file a new application.

What Happens When an H-1B Employee Is Laid Off?
Likewise, because the H-1B application is specific to a particular employer, if an H-1B employee is terminated from employment, the worker must find a new sponsoring employer, apply for a change of status to another non-immigrant status, or must leave the United States. Also, if the company has a reduction in force (RIF) policy but gives the H-1B employee several months of severance after the RIF, the H-1B employee ceases status from the day he stops employment, not the day his severance ends.

The sponsoring employer’s duty, however, does not end with the termination of the employment. If an H-1B employee is dismissed before the end of his or her period for admission, the employer must pay “the reasonable costs of return transportation of the alien abroad” and must notify U.S. Citizenship and Immigration Services (USCIS) of the termination. The enforcement of this provision is regarded as a private contractual matter. However, failure to comply with this provision could subject the employer to continued accrual of front and back pay because there is no bona fide termination until these steps are taken. 


Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or any of the following individuals:

Authors

Ann Mennell
Milwaukee, Wisconsin
414.297.5813
amennell@foley.com

Donna Bucella
Washington, D.C.
202.672.5370
dbucella@foley.com  

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