Tuesday, October 22, 2019 | 8:00 am – 3:00 pm | Atlanta, GA

Please join AGG for our annual Employment Law Seminar on Tuesday, October 22, 2019 at the Cobb Energy Performing Arts Centre. Our attorneys—who have been recognized by Chambers USA: America’s Leading Lawyers for Business and Super Lawyers—will help you navigate today’s harrowing employment adventures, from the application process to termination and beyond.

Topics Include:

  • An Interactive Discussion – Part One:
    • Employees or Independent Contractors?
    • Qualifying your Employees (or Contractors): Background Screening
    • Documenting the Employment Relationship
    • Benefits Pitfalls (with or without the ACA)
    • Classifying and Paying your Employees Correctly
  • An Interactive Discussion – Part Two:
    • Employment Policies and Handbooks
    • Performance Management both Good and Bad
    • Dealing with the Difficult Employee
    • Effectively Terminating the Difficult Employee
    • Managing Post-Employment Disputes
  • Paying More? At Long Last, the New White Collar Exemptions
  • Riding High? Marijuana and other Drugs in the Workplace
  • Raids Coming? Immigration Update
  • Firing the Squeaky Wheel? How to Deal with a Whistleblower

Registration and Location:

  • Sign up early, as space is limited. Please click here to register by Thursday, October 17. 
  • The event has been approved for 6 hours of CLE credit by the State Bar of Georgia CLE credit. Society for Human Resource Management HRCI recertification credit and CPE credit hours have been applied for.
  • Complimentary breakfast and lunch will be provided.

Cobb Energy Performing Arts Centre
2800 Cobb Galleria Parkway
Atlanta, GA 30339

As we march toward January 1, 2020 I want to briefly discuss data brokers, registration by data brokers and the California Consumer Privacy Act (CCPA).

In the flurry of activity by the California legislature one bill that came out of the hopper was AB 1202, which will require data brokers to register with the California Attorney General (AG).  AB 1202 is required reading as organizations work toward compliance with the CCPA to determine if it applies.

The basics:

  • A “data broker” is defined as “a business that knowingly collects and sells to third parties the personal information of a consumer with whom the business does not have a direct relationship.”
  • The stated purpose of the bill is to “create a registry of data brokers so that California consumers may better know what businesses to contact in order to opt-out of the sale of their personal information.”
  • The data broker will need to pay a registration fee (not yet known) and provide basic information about itself.
  • Failure to register with the AG can lead to fines of $100/day for each day the data broker fails to register and payment of the expense incurred by the AG’s office to investigate/enforce the violation.
  • The AG will create a webpage where data broker information will be accessible to the public.
  • AB 1202, like the amendments to the CCPA, is pending on the Governor’s desk for signature.

For those entities in the background screening industry note two things. One, there is a general exception under the CCPA for activities under the Fair Credit Reporting Act (FCRA).  Two, AB 1202 states that a data broker does NOT include a consumer reporting agency to the extent that it is covered by the FCRA.

Check out the current edition of the Compliance News Flash (click here).  Here are the stories we are flagging for you this week:

  • Data breach litigation — breach of contract, negligence, invasion of privacy.
  • STEM OPT worksite visits by Homeland Security related to F-1 students working for a company.
  • $1.2 million civil fine levied against a cleaning company for Form I-9 violations.
  • The “right to be forgotten,” the European Court of Justice and the GDPR.
  • The Fairness for High Skilled Immigrants Act may not address immigration concerns and employers should review the legislation carefully to determine if it helps or hurts.

The Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) will host a workshop on December 10, 2019 to discuss issues related to the accuracy of credit and background screening reports.

Consumer advocates, industry representatives, and regulators will be in attendance. A list of discussion topics has been posted online and public comments will be accepted until January 10, 2020. The workshop is free and open to the public and will take place at the FTC’s Constitution Center conference facility in Washington, D.C. with a live webcast streaming on the Commission’s event page. Click here for more details.

The FTC and CFPB are inviting interested individuals to submit comments recommending topics that should be addressed or specific information on the following potential topics for discussion:

  • What are the lessons from the CFPB’s supervisory reviews of CRAs and furnishers on accuracy and dispute obligations?
  • What are the lessons from CFPB and FTC enforcement cases on furnisher and CRA accuracy obligations?
  • How do furnishing practices differ based on the types of furnishers and the information they furnish to CRAs, and how does that impact accuracy?
  • What has been the effect of the removal of most civil judgments and tax liens from credit reports and recent changes in the reporting of medical debt?
  • How do background screening CRAs address accuracy in light of the limited personal identifying information included in public records?
  • What opportunities or challenges does inclusion of non-traditional data in credit reports, credit scoring models, or background screening reports present for accuracy?
  • Can new technologies and data management practices be used to improve accuracy?
  • How do consumers learn about inaccuracies on their consumer reports and navigate the current dispute process? What are the experiences of victims of identity theft in the dispute process?
  • How have the changes to the dispute process contained in the National Consumer Assistance Plan, which evolved out of the 2015 multi-state settlement, impacted the consumer experience?
  • Once consumers get erroneous information removed from their credit files through the dispute process, do they still have difficulties getting loans or other credit?
  • What government measures (including changes in the law) and private sector measures could improve accuracy? What are the costs and benefits of these possible measures?

Click here to read more about the workshop.

Oregon joins California in requiring employers notify employees of any government investigation into a company’s Form I-9 practices.  What triggers such a government investigation? An investigation is triggered by receipt of a Notice of Inspection (NOI), issued by Immigration and Customs Enforcement (ICE or HSI), which is part of the Department of Homeland Security.

ICE is the federal agency that enforces our country’s immigration laws.  The Immigration Reform and Control Act (IRCA) of 1986 requires employers to verify the identity and work eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification form (the “Form I-9″_  Employers must complete the the Form I-9 within three business days of hire and maintain such form for the duration of an individual’s employment. ICE also combats against “knowing hires” and “continuing to employ” violations, where an employer knowingly hires an individual knowing they are not authorized to work or continues to employ an individual after learning they are not authorized to work or where the totality of the circumstances is such that they should know the individual is not authorized to work.

According to ICE, “in fiscal year 2018, HSI opened 6,848 worksite investigations compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively; all of these categories surged by 300 to 750 percent over the previous fiscal year.”  Audits of employers’ Forms I-9 increased 340%!  Click here to read more.

Back to Oregon.  The governor signed Senate Bill (SB) 370 on June 6, 2019 and the law is effective as of that date.  In a nutshell the bill requires Oregon employers notify employees of any ICE investigation within three business days of receipt of an NOI and also attempt individual employee notification of receipt of the NOI. This notice must be provided regarding the upcoming inspection by ICE of the Forms I-9.  Click here and here to read the text of the bill.  Therefore, HR professionals need to add this to the checklist of items an Oregon employer must complete upon receipt of an  NOI.  Two noteworthy items about the Oregon law.  First, there are no penalties for non-compliance.  Second, on or before January 1, 2020 the Oregon Bureau of Labor and Industries is required to provide employers with a template notification which will satisfy the requirement of SB 370. Such template must be made available in English and in each of the five most widely used non-English languages in the state.

Oregon’s law is similar to California’s law, which also requires employee notice whenever ICE seeks to review a company’s Forms I-9 pursuant to an NOI.  Read more about California’s law by clicking here.

Finally, ICE recently went through another nationwide wave of issuing NOIs to employers, including here in Atlanta.  Employers should be prepared to address any visit by ICE agents seeking to serve an NOI, vector them to the correct individual within your organization, and call immigration counsel (click here).

Join me this week for a free, one-hour Lunchbox Learning webinar hosted by AmericanChecked where I’ll discuss trends impacting human resources professionals related to employment screening.

Time: July 18, 2019 at 12:00 pm Central Time.

Topics covered:

  • Disclosure & Authorization Forms – are your background screening forms compliant based on recent court decisions?
  • Adverse Action process – does your process comply with federal requirements under the Fair Credit Reporting Act?
  • Ban-the-Box – what should you focus on?
  • Use of credit information in a background check for employment purposes – is it legal?
  • How to avoid common pitfalls and reduce your exposure to litigation.

To register click here.

This week’s edition of the Compliance News Flash (click here) includes blurbs about:

  • Portugal’s GDPR-implementing legislation.
  • Increased and new fees for international students and colleges/universities related to international students.
  • Salary history ban in Kansas City applicable to private employers.
  • The Federal Trade Commission rescinds certain model forms and disclosures.
  • Data breaches.

Have a great week and thanks for reading!

Department of Homeland Security Acting Secretary Kevin McAleenan announced that Kenneth T. (Ken) Cuccinelli will serve as the new acting director of U.S. Citizenship and Immigration Services (USCIS), effective June 10, 2019.  Former USCIS Director Francis Cissna stepped down earlier this month.

It is unclear if Mr. Cuccinelli will be confirmed by the U.S. Senate given his hardline views on immigration as well as opposition from top Republicans (click here and here).  It is also unclear how he was named “acting” director of USCIS under the Federal Vacancies Reform Act. It appears that possibly the role Mr. Cuccinelli will take is that of “principal deputy director” instead of “acting director,” and that the “principal” role will in fact be the top role at USCIS. This in an effort to bypass sending Mr. Cuccinelli’s name to the U.S. Senate for confirmation.

Clearly this is a developing story, although the announcement does signal a hardline on immigration at the highest levels within USCIS.

 

Employers are again receiving “no-match letters” from the Social Security Administration (SSA) . No-match letters—called Employer Correction Requests—will be sent when SSA discovers a mismatch between information provided by employers for wage reporting purposes and SSA’s records. A “no-match” relates to employee names and social security numbers (SSNs).

In March 2019 SSA began mailing notifications to employers identified as having at least one employee name and SSN combination submitted on their W-2s that do not match SSA’s records. The purpose of the letter is to advise employers that corrections are needed in order for SSA to properly post employees’ earnings to the correct record.  The no-match letter will tell the employer how many employee names they provided in a particular tax year which do not match their records.

According to SSA, there are a number of reasons why reported names and SSNs may not agree with their records.  This includes typographical errors, unreported name changes, and inaccurate or incomplete employer records. On the flip side, the discrepancy may be the result of fraud by the employee.

In order for employers to view and correct name and SSNs errors they must register through Business Services Online (BSO) and use the Employer Report Status service.  Instructions to find and resolve errors are found on SSA’s website (click here). This is different than in the past, when employees’ names and SSNs were identified on the no-match letter.

Importance of this announcement by SSA and takeaways for employers:

  • If an employer receives a “no match letter,” it does need to be promptly addressed. However, employers should not automatically assume that it relates to the individual’s immigration status or the employment eligibility verification form (the “Form I-9”). In fact, the Employer Correction Request (ECR) specifically states, “this letter does not address your employee’s work authorization or immigration status.” Furthermore, the ECR specifically cautions an employer from taking any “adverse action against an employee…just because his or her number does not match our records.”
  • Prior to submitting the W-2, employers can use the Social Security Number Verification Service (SSNVS) to verify employees’ names and SSNs. However, this tool is only to be used for wage reporting purposes and not for pre-screening of job applicants or for immigration purposes.
  • Employers should check their records to confirm they have accurately entered the information provided to SSA. Then, address the discrepancy with the employee by asking them to verify their SSN and, as necessary, provide them with a period of time to address the issue with SSA.  The letter itself states that employers must provide necessary corrections to SSA within 60 days of receipt of the letter.  Some would argue that up to 90 or 120 days is a reasonable period of time. A sample letter employers can provide employees is found on SSA’s website by clicking here.
  • Note, employees are not required to physically show employers their SSN card for wage reporting purposes. Alert employees that discrepancies can occur due to name changes because of marriage, divorce, or other valid reasons an individual may legally change their name.

To learn more, see SSA’s sample Educational Correspondence (EDCOR) Announcement which employers may receive (click here).

Separately, and now from an immigration perspective, one question is how Immigration and Customs Enforcement (ICE) will treat employers receipt of no-match letters. No-match letters have a long and tortured history, dating back to the early 1990s, and litigation ultimately led to no-match letters not being issued by SSA for a period of time.  The litigation stemmed from issuance of a regulation by the Bush Administration that was intended to provide employers with guidance on how to address no-match letters. One controversial part of the proposed regulation (which was ultimately rescinded by the Obama Administration) involved Homeland Security potentially considering receipt of such letters as evidence of an employer’s “constructive knowledge” that they were employing individuals not authorized to work.  And therefore, full circle to above question as to how ICE will treat receipt of no-match letters during an investigation or audit of an employer’s Forms I-9 as ICE can and does ask for such forms with the Notice of Inspection.

U.S. Citizenship and Immigration Services (USCIS) reached the FY2020 H-1B visa cap.

For FY2020, Congress mandated a regular cap of 65,000 H-1B visas, plus an additional 20,000 H-1B visas for those with advanced degrees from U.S. institutions of higher education (i.e., the master’s cap). Last Friday, USCIS announced that they reached the H-1B general visa cap, and then reached the master’s cap later on Wednesday. Read the announcements from USCIS by clicking here and clicking here.

What’s next? USCIS will process those petitions which were selected using a computer-generated random selection process and reject and return all unselected petitions along with their filing fees. According to USCIS, they received 201,011 H-1B petitions during the filing period which started April 1st and ended April 10th, which is about 15% less than last year.

Notwithstanding the H-1B cap, USCIS will continue to accept and process H-1B petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2020 H-1B cap. USCIS will continue to accept and process petitions filed to (i) extend the amount of time a current H-1B worker may remain in the United States; (ii) change the terms of employment for current H-1B workers; (iii) allow current H-1B workers to change employers; and (iv) allow current H-1B workers to work concurrently in a second H-1B position.