Labor and Employment Law Weekly Update

04 April 2011 Publication
Authors: Roy J. Barquet

Legal News: Employment Law Update

USCIS’ VIBE of Your Company
By Roy Barquet

In late January 2011, U.S. Citizenship and Immigration Services (USCIS) announced (http://tinyurl.com/4yjo5ev) the implementation of a long anticipated information validation tool that USCIS will rely upon in its adjudication of employment-based visa petitions submitted by U.S. companies to the benefit of foreign national workers.

The newly implemented tool — Validation Instrument for Business Enterprises (VIBE) — reflects USCIS’ new-found reliance on Web-based information drawn from independent providers to verify visa petition information from employment visa sponsors for individual foreign workers.

VIBE allows USCIS to electronically receive commercially available information about a petitioning company or organization, including:

  • Business activities (e.g., type of business)
  • Trade payment information and status (active or inactive)
  • Financial standing, including sales volume and credit standing
  • Number of employees, including onsite and globally
  • Relationships with other entities, including foreign affiliates
  • Status (e.g., single entity, branch, subsidiary, or headquarters)
  • Ownership and legal status (e.g., LLC, partnership, or corporation)
  • Company executives
  • Date of establishment as a business entity
  • Current physical address

In practice, USCIS officers will review all information received through VIBE along with the evidence submitted by the petitioner in its employment visa petition for a foreign worker. Adjudicators will then use the information provided from VIBE to verify the petitioner’s qualifications. For example, according to USCIS, if a petitioner is seeking an L-1 employment visa (http://tinyurl.com/3ecgwyk) for an employee of a multinational company, VIBE will purportedly help adjudicators confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status. Furthermore, USCIS argues, in cases when petitioners must establish the company’s ability to pay an alien’s proffered wages, the information gleaned from VIBE will assist in confirming the petitioner’s financial viability.

VIBE reflects USCIS’ suspicion that visa-sponsoring enterprises commonly provide misinformation in their employment-based petitions. Most commonly, USCIS is relying on information received from Dun and Bradstreet (D&B), a publicly traded New Jersey company that provides information on businesses and corporations. D&B’s information reports cover more than 150 million companies worldwide and include any information that can be verified through the company’s patented DUNSRIGHT process that accesses information using a variety of sources, including public records, trade references, newspapers, publications, telephone interviews, and others. Because the information collected in D&B reports typically is information made publicly available, D&B reports are more accurate with larger-scale enterprises than with privately held companies whose mere public formation documents provide no information regarding ownership and financial performance.

USCIS states that it will not deny a petition based upon information from VIBE without first giving a petitioner the opportunity to respond to USCIS’ concerns. Instead, USCIS will issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of information supplied by VIBE that are material to the benefit requested. The USCIS officer will make a final decision based on the totality of the circumstances.

In practical terms, an RFE or NOID from USCIS is triggered if your company’s D&B report has limited publicly available information. Under such circumstances, your company must amend or correct the D&B report by following the instructions on the D&B site. Once amended or corrected, D&B must utilize the DUNSRIGHT reporting program to verify the new information within 72 hours and thereby produce a new D&B report that — in theory — will now properly coincide with information in a submitted visa petition.

Employers should, therefore, add a step in the pre-filing stage of an employment-based visa requiring a review of their D&B reports and confirmation that the reports include the most accurate and updated company information available.

Can Employers in an FLSA Overtime Case Issue Subpoenas Concerning an Employee’s Social Media, Banking, and Texting Activities?
By Yonaton Aronoff

Increasingly, employers are wrestling with how best to monitor and limit employees’ use of the Internet to conduct non-work-related activities. The issue may become more pressing in an FLSA overtime case (http://www.dol.gov/whd/flsa/), when an employer suspects (or an employee admits) that he or she spent a considerable amount of time during the work day using the Internet to conduct non-work-related activities. In such instances, the employer must decide how best to obtain proof of the employee’s conduct. One option may be issuing third-party subpoenas to the various Web sites and online services utilized by the employee, but that path is not without difficulty.

A recent decision by the United States District Court for the Southern District of Florida involved precisely this issue. In Mancuso v. Florida Metropolitan University, Inc., an employee commenced an FLSA case seeking back overtime wages against his employer, a university system. During his deposition, the employee was asked questions concerning his work-day usage of social media sites (Facebook and MySpace), online banking (through Bank of America), and text messaging (through AT&T Wireless). After the deposition, the school issued subpoenas to all four entities. The employee moved to quash the subpoenas, arguing that they were overbroad and improper.

As a threshold matter, the Court held that the employee had standing to contest the subpoenas to the third parties because the request for his personal financial and telephone records implicated the employee’s personal rights and privileges. The Court also relied on a recent California case holding that personal information posted to a social networking site implicated personal rights and privileges. However, because Facebook and MySpace are not located in Florida, the Court held that it lacked the authority to quash the subpoenas issued to those sites.

Turning to the subpoena issued to AT&T Wireless, the Court considered the employee’s argument that the definition of “documents” contained in that subpoena would require the production of the content of his text messages. The employee contended that only the timing and amounts of his text messages were relevant to his FLSA claim, not the content of the messages. The Court agreed, and modified the subpoena to exclude such information.

With respect to the Bank of America subpoena, the Court declined to hold that the information sought — records reflecting the dates and times the employee conducted ATM or other banking transactions — was beyond the proper scope of discovery. Instead, the Court allowed the requested records to be produced first to the employee’s counsel, so that his counsel could redact the employee’s financial information from the records, and then to the employer.

As the Mancuso case illustrates, employers facing FLSA claims may wish to resort to third-party subpoenas to obtain discovery concerning claimants’ non-work-related Internet activities. Moreover, the vigor with which the employee in Mancuso sought to prevent such discovery suggests that, at the very least, such tactics may provide a useful pressure point in defending FLSA claims. 


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 the authors of this week’s issue.

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