Subject: Special Newsletter 98 October 27, 2021 - Employment News and Training Updates

Newsletter #98. October 27, 2021

TRAINING UPDATES

DID COVID 19 IMPACT YOUR BUSINESS?

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Recently, we discovered significant changes to the CARES Act pertaining to the Employee Retention Tax Credit (ERTC) for 2020 and 2021. These changes allow organizations to receive refundable tax credits for retaining employees during the pandemic.

Here are some of the main points:

You may be eligible to receive a tax credit of up to $33,000 per employee.
There are ways to qualify for the ERTC other than using revenue reduction tests.
Regardless of receiving PPP loans, organizations may still be able to receive a sizable tax credit.

Join us for this Free Webinar

INFORMATION ON THE RECENTLY CHANGED EMPLOYEE RETENTION TAX CREDIT(ERTC)

Date - October 28, 2021 10:00AM EST

EMPLOYMENT LAW NEWS

HrDIVE.com BRIEF

Disagreements over flexibility cause 'massive, growing divide' in 2021's final months

Published Oct. 19, 2021

Ryan Golden

Dive Brief:

The divide between executives and staff over flexible work still has not been bridged entering the final months of 2021, creating two competing visions of the office's future, according to a recent multinational survey of executives and employees by Slack-owned think tank Future Forum.
Future Forum's survey of more than 10,000 knowledge workers in the U.S., U.K., Australia, France, Germany and Japan found 76% did not want to return to office work full time. However, 68% of executive respondents wanted to work in the office all or most of the time, and 59% of this contingent said their companies planned to adopt policies requiring employees to return to the office for most or all of the workweek.
Most executives in the survey said they were designing their post-pandemic work policies with little to no direct input from employees, a finding that should “raise alarm,” Future Forum said. The divide is also significant given that executives reported higher job satisfaction than non-executives while fewer than half of employee respondents said executives were being transparent about post-pandemic remote work policies.

Click to Continue Reading >>

Constangy.com Article

Zoom sued for (allegedly) mishandling recruitment of DACA recipient

By Will Krasnow / Boston Office

Zoom Video Communications, Inc., has been sued for alleged hiring discrimination against a DACA recipient.

According to the lawsuit filed by Royer Ramirez Ruiz, Zoom or a recruiter for Zoom made improper pre-employment inquiries and ultimately rejected him for employment “due to immigration,” even though he was authorized to work in the United States under the Deferred Action for Childhood Arrivals program.

Under DACA, protection from deportation and work authorization are available for qualifying individuals, typically those who came to the United States illegally as children and stayed here.

The lawsuit, filed in federal court in Seattle, is being brought under the Washington (State) Law Against Discrimination and 42 U.S.C. Section 1981, alleging discrimination based on alienage. (Because it predates DACA, the Immigration Reform and Control Act of 1986 does not provide a remedy for DACA recipients who are denied employment because of their citizenship status.)

The mere filing of a lawsuit does not mean that Zoom has done anything wrong. Zoom has not even had an opportunity to respond. However, the allegations in the lawsuit serve as a useful reminder how not to handle immigration status in the hiring process.

Allegations

According to the lawsuit, Mr. Ramirez Ruiz was born in Mexico in 1995. He was brought to the United States in 2001 by his parents and has remained in the United States since then. In 2012, when DACA was first established by President Obama’s Executive Order, Mr. Ramirez Ruiz applied. He was granted DACA status that same year and has been authorized to work in the United States since his initial approval.

After obtaining a bachelor’s degree in applied mathematics and a minor in physics, Mr. Ramirez Ruiz worked as a software developer and data engineer. In July 2021, a “Technical Sourcer” contacted him to discuss an open engineering position at Zoom. According to the allegations in the lawsuit, Mr. Ramirez Ruiz was asked whether he required sponsorship, and he replied that he did not. During a subsequent job interview with a recruiter, Mr. Ramirez Ruiz confirmed that he was legally authorized to work in the United States.

Mr. Ramirez Ruiz alleges that he participated in a video call with another recruiter on or about July 26, and that the recruiter indicated he was an ideal candidate. However, he alleges that as the call was ending, the recruiter again asked about his need for sponsorship. Mr. Ramirez Ruiz again confirmed that he did not require sponsorship. According to the lawsuit, instead of dropping the matter, the recruiter asked Mr. Ramirez Ruiz whether he was a citizen of the United States. When he answered no, the recruiter allegedly asked whether he was a permanent resident.

The lawsuit contends that the recruiter continued to pressure Mr. Ramirez Ruiz to disclose the program that granted him work authorization. According to the lawsuit, “Plaintiff tried to dodge the question multiple times, not wanting to share his specific immigration status and knowing that at this point in the hiring process he was not required to share anything other than that he was legally authorized to work in the U.S.” However, he finally disclosed that he was a DACA recipient.

The recruiter allegedly responded, “ooh, that might be an issue.” He allegedly told Mr. Ramirez Ruiz that he would check out the issue internally before sending Mr. Ramirez Ruiz’s resume to a hiring manager.

Two days later, he alleges, he received an email from the recruiter saying, “[It] does not look like we can move forward due to immigration.”

Mr. Ramirez Ruiz sought a further explanation from the recruiter because his DACA status had never been an issue in other employment, but he did not receive a response. (It is important to note that the lawsuit does not specifically allege that the recruiters were Zoom employees, as opposed to employees of a third-party recruiter doing work for Zoom, or employees of a third-party recruiter making “cold referrals” to Zoom. If they were employees of a recruiting company, the lawsuit does not allege any specifics about the recruiting entity’s business relationship with Zoom. Nor does it allege that Zoom even knew about, much less authorized, the alleged questions about immigration status.)

Cautionary tale for employers

Whether the lawsuit is ultimately found to have merit or not, the allegations provide helpful guidance to employers as to how not to handle a candidate’s immigration status during the hiring process.

Although the IRCA allows employers to ask whether an applicant is legally authorized to work in the United States and whether sponsorship is required, the recruiters in this case allegedly went far beyond that. They asked whether Mr. Ramirez Ruiz was a U.S. citizen, asked whether he was a permanent resident, and asked about the program under which he was authorized to work. Then, when he disclosed under pressure that he was a DACA recipient, he was told, “ooh, that might be an issue” and was ultimately denied employment because of his immigration status.

There is another problem, assuming the allegations in this lawsuit are true. Under the IRCA, an employer may not question an employee’s documents or responses if they meet I-9 requirements.

According to Mr. Ramirez Ruiz, he said that he was legally authorized to work in the United States and did not require sponsorship. If that is true, and assuming he really was the most qualified candidate for the position, he should have been hired and should have been allowed to choose the documents to submit to prove his identity and employment authorization in accordance with the IRCA. His Employment Authorization Document would have proven both.

Constangy’s Immigration Practice Group is available to provide training to your recruiters and hiring staff, and can also provide preventive advice and representation in the event of a legal challenge to your hiring practices.

Go to Constangy.com>>

SHRM.com Article

How to Approach Federal and State Conflicts on Workplace Vaccine Mandates

By Lisa Nagele-Piazza, J.D., SHRM-SCP

October 21, 2021

When the White House announced COVID-19 vaccination requirements for federal employees and contractors—and a pending vaccine-or-testing rule for certain private employers—several states responded by initiating their own rules that allow for more exemptions than the federal requirements. This has caused confusion for many business leaders and HR professionals.

How should businesses approach their workplace vaccination policies in light of conflicting directives? "Employers should analyze the nature of their business, the federal rules that most impact their operations and their tolerance for risk before making any decisions regarding these ever-evolving issues," said Jacqueline Del Villar, an attorney with Fisher Phillips in Houston.

In the meantime, said Mini Kapoor, an attorney with Haynes Boone in Houston, employers should continue to strongly encourage vaccination in the workplace and follow all feasible COVID-19 safety recommendations in accordance with current guidance from the U.S. Centers for Disease Control and Prevention.......Read More >>

Time and Dates
All workshops will be held from 9:30 am – 4:30 pm.
Printed materials will be provided the day of class.

Leadership III 10/27/2021
Leadership IV 11/17/2021
Leadership V 12/01/2021
Leadership VI. 12/15/2021

Location
Fickling Building
577 Mulberry Street, Macon, GA 31201
16th Floor Cherry Blossom Suite

Visit Website for Overview and Pricing

https://georgiaemployers.org/2021-leadership-training-series/

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Constangy.com News & Analysis

Biden Administration ends workplace immigration raids, will focus on employers instead

By Willard Krasnow
PARTNER / BOSTON

10.18.21

The Biden Administration is ending worksite raids to catch unauthorized workers, according to a memorandum issued last week by Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security.

In doing so, the Biden Administration is reversing a Trump Administration practice, which often resulted in the arrests of large numbers of unauthorized workers. The Biden Administration policy will focus on “exploitative employers” who hire unauthorized workers and who fail to comply with labor standards, such as the wage and hour laws. In a memorandum to the U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and U.S. Customs and Border Protection, Secretary Mayorkas said, “We can most effectively protect the American labor market, the conditions of the American worksite, and the dignity of the individual by focusing our worksite enforcement efforts on unscrupulous employers.” He also said that raids “misallocated enforcement resources” and were sometimes used for retaliatory purposes, such as when workers “cooperat[ed] in workplace standards investigations.”

Secretary Mayorkas indicated that policies will be adopted to achieve the following goals:

Reduce the demand for “illegal employment” by placing more harsh penalties on employers and their agents.
Encourage workers to report their employers’ violations of the law and workplace standards.
Create more effective coordination between the DHS and other agencies, including the U.S. Department of Labor, the U.S. Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies.

The checkered history of immigration raids

On March 6, 2007, under the George W. Bush Administration, ICE conducted a raid on a leather factory in Massachusetts. The raid was criticized for disrupting families and separating parents from their children. As a result of the criticism, the Bush Administration backed away from using immigration raids as an enforcement tool. Under the Obama Administration, ICE focused on I-9 audits and penalizing employers rather than arresting unauthorized workers. However, the Trump Administration did use raids, including one in 2018, when ICE inspected 100 7-Eleven stores and arrested 21 unauthorized workers. The Biden Administration is expected to take immigration enforcement back to the pre-Trump approach.

Impact on employers

Clearly, employers who violate labor standards as well as immigration law by hiring unauthorized workers are going to be targets under the new policies. However, it is unclear what violations will cause an employer to be considered “exploitative.” Thus, the best advice for all employers is to comply with the immigration laws and with applicable labor standards. Because the new policy and strategy are aimed at employers who hire unauthorized workers, employers must ensure that they are complying with their obligations under the Immigration Reform and Control Act of 1986.

Under the IRCA, an employer is prohibited from doing any of the following:

Hiring, employing, or continuing to employ an individual, knowing that the individual is not authorized to work in the United States.
Hiring any individual, including a U.S. citizen, for employment in the United States without verifying his or her identity and employment authorization on Form I-9.

The IRCA imposes significant civil penalties for each person and for each violation and, potentially, criminal penalties where an employer engages in a “pattern or practice” of hiring or recruiting, or where an agent refers for a fee individuals who are not authorized to work in the United States. Criminal penalties can include fines of up to $3,000 for each unauthorized alien with respect to whom such a violation occurs, or up to six months in prison for the entire pattern or practice, or both.

Other non-IRCA provisions of immigration law provide more serious criminal penalties for egregious conduct often found during raids, such as evidence of trafficking, smuggling, harboring illegal aliens, document and visa fraud, and money laundering. Penalties include significant jail time, fines, and property forfeitures from the gains of the illegal behavior. An employer facing such charges would need the counsel not only of an immigration lawyer, but also of a criminal defense lawyer.

In addition to providing general advice about immigration matters, Constangy’s Immigration Practice Group conducts preventive I-9 audits, and represents employers in connection with IRCA or other immigration-related investigations.