Employers of workers relying on H-2B visas for eligibility to work will need to update their practices to comply with a new Final Rule on the H-2B program issued February 21, 2012 by the Department of Labor’s Employment and Training Administration and Wage and Hour Division.
Effective April 23, 2012, the Final Rule amends Labor Department regulations governing the certification of the employment of nonimmigrant workers performing temporary or seasonal non-agricultural labor or services and the enforcement of the obligations applicable to employers under the H-2B program. Among other things, the Final Rule:
- Revises the process by which employers obtain a temporary labor certification from the Labor Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status;
- Establishes new rules providing increased worker protections for both U.S. and foreign workers;
- Creates a national electronic job registry for all H-2B job orders to improve U.S. worker access to these temporary jobs;
- Contains provisions to enhance recruitment of U.S. workers from across the country;
- Increases the amount of time during which U.S. workers must be recruited and hired; and
- Requires the rehiring of former employees when available.
U.S. employers need to exercise care to properly manage and maintain appropriate documentation showing compliance with applicable Visa, I-9 eligibility to work, and other applicable Immigration and Customs law requirements impacting their recruitment and employment of foreign and other workers. Violation of these requirements can expose employers to substantial civil and even criminal liability. At the same time, all employers also need to tread carefully to manage the significant employment discrimination liabilities that can arise from charges of improper discrimination against workers in violation of national origin, race and other federal and state nondiscrimination laws. See, e.g. Manufacturer’s Excessive I-9 Documentation Triggers Discrimination Liability.
When reviewing the adequacy of existing practices and administering these practices, employers should keep in mind the advisability of ensuring appropriate compliance and risk management of these responsibilities both with regard to workers performing services directly for their organizations in the capacity of employees, as well as workers providing services as independent contractors, leased employees or pursuant to other contracted services arrangements.
When designing and administering these processes, employers also generally should keep in mind that alien workers hired in violation of I-9 eligibility to work requirements generally still continue to enjoy the protection of the employment discrimination, wage and hour, anti-retaliation and other laws that otherwise would apply to other similarly situated employees. Accordingly, employers should exercise care to properly coördinate their responsibilities to promote their ability to demonstrate proper collection of required eligibility to work documentation, proper classification for worker classification, wage and hour and other laws, and appropriate adherence to nondiscrimination and other employment, tax and other applicable laws and regulations.
For Help or More Information
Other Resources
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:
- OSHA $1Million Award Against AirTran Airways Highlights Retaliation Risks
- HHS Chides Trustmark Life Insurance Company For “Excessive” Health Premium Increases After Affordable Care Act Rate Audit
- Labor Department Final Rule Defines Recreation Vehical For Longshore & Harbor Workers’ Compensation Act
- Portion of Health Care Costs Paid By Government Programs Rose As Employer Provided & Other Private Health Care Coverage Declined In 2010
- Stamer Dallas Bar Journal Article Cautions Employers Must Take Holistic Approach To Address Worker Misclassification Risks
- Employers Urged To Strengthen Worker Classification Defenses As Obama Administration Targets Employers Misclassifying Workers
- 2/27 Deadline For Employers To Comment On DOL Proposed Rule Changes Extending Minimum Wage & Overtime Rules To More Home Caregiver Workers
- NLRB Changes Certification Election Case Procedures
- NLRB Delays Deadline For Employee Labor Rights Poster Requirement To April 30
- New Labor Department Retaliation Guidance Reminder Of Retailiation Risks
- HR Key Player In Managing Countrywide & Other US Discrimination Exposures
- Labor Department Proposes Changing Minimum Wage & Overtime Rules For Home Caregivers, Keeps Heat On Health Care Employers
- IRS Urges Preparers to Renew PTINs for 2012
- OFCCP Proposed Increased Disability Hiring Targets, Other Tougher Government Contractor Rules another Sign Of Rising Employment Discrimination Risks
- New Guidance On Fiduciary Duties In Handling ACA Group Health Plan Premium Rebates Highlight Advisability Of Tightening Funding Terms & Fund Handling Practices To Manage Fiduciary Risks
- Mental Health Parity Guidance On Mental Health & Substance Abuse Copays, Utilization Management Limits Released
- Insurer Fights Back To HHS Characterization of its Premium Increases As “Excessive”
- Mental Health Parity Guidance On Mental Health & Substance Abuse Copays, Utilization Management Limits Released
- Group Health Plans & Insurer To Get More Time To Meet Affordable Care Act Summary of Benefits and Coverage Requirements
- CMS Final Medicare Rule Imposes Many Conditions On Access To Medicare Claims Data To Evaluate Providers & Suppliers
- OSHA Updates Safety Resources To Prevent Construction, Other “Top 10″ Exposures
- OSHA Silo Safety Citations Heads Up To Grain Operators To Manage Safety
- OSHA Updates Safety Resources To Prevent Construction, Other “Top 10″ Exposures
- EBSA Releases Collection of New M-1 and Other Guidance Impacting Multiple Employer Welfare Plans
- New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices
- Incentives To Get Employee Into Wellness Education Requires Legal Risk Management
- HR Key Player In Managing Rising Risk of Disability, Other Discrimination Suits Under Obama Administration Justice Department
- HHS Chides Insurer For “Excessive” Premium Increases After Affordable Care Act Rate Audit
- IRS U-Tube Video Discusses 2012 Flexible Benefit Plan Rule Change
- Big Penalty for Lender Shows Risks of Violating Military Service or Vets Rights
- OCR 1st HIPAA Privacy, Security & Breach Notification Compliance Audits Begin
- Employers Face New Labor-Management Exposures Under Activist National Labor Relations Board
- Unions Gaining New Power From National Labor Relations Board’s New Activism
- IRS Exempts Enrolled Retirement Plan Agents From PTIN Requirement
About Solutions Law Press
Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com.
THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS. ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.
©2011 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press. All other rights reserved.