The recent federal Bailout Bill, also known as the Emergency Economic Stabilization Act of 2008 (EESA), contained a number of unrelated pieces of legislation, one of which was the Bicycle Commuters Act.

Starting January 1, 2009, federal law will allow employers to make bicycle commuting expense reimbursements under IRC Section 132(f) up to $20.00 per month to employees who regularly commute to work by bicycle.

- James

The USCIS (United States Citizens and Immigration Services) recently announced the expansion of the Trade NAFTA (TN) Nonimmigrant Visa Program for professional workers from Canada and Mexico, modifying the program to 3 year increments.

Impact to TN Visa Holders & Employers

• Professional workers from Canada or Mexico may now request extensions of their TN Visas with an increment of three years instead of an annual extension.
• Workers/Immigration attorneys and specialists must be advised to request/apply for their three years extension when it is time to renew their TN Nonimmigrant Visa.
• Workers will now enjoy a once in every three years interruption from their job in regards to renewing their TN Visa, allowing them to fully concentrate on their job function for three consecutive three years
• This provides two years of savings of the usual Immigration Counsel’s Fees and TN Application Fee, in addition to the Return on Investment from hiring the workers.
• This supports greater efforts in hiring professionals from Canada and Mexico to augment the shortage of technical and professional workers in the United States. TN visas are simpler than H1’s.

- James

In April 2008, the US DHS (Dept. Homeland Security) published some new guidelines enabling (Technology) employers to hire F1’s on OPT (Optional Practical Training) status.

Previously, the rule has been that OPT is authorized for one year and one year only. During this time the employer had to process an H1B application. The timing window was narrow and basically translated to preferred hiring consideration for qualified STEM (Science, Technology, Engineering & Mathematics) students who graduated in December and March in order to file for and receive an H1 visa. Technically, June graduates could be excluded from consideration, which is a huge problem, since that’s when most of them graduate.

In April, we learned that instead of 12 months, the student OPT authorization could be extended for an additional 17 months for up to a total of 29 months. On the surface, that sounded very good, because it meant that for the most part, we could look at any qualified student, no matter when they graduated, and it would not interfere with the H1 process.

Now, with the additional published guidelines, we understand that in order to qualify for this program… “The student must have a job offer from an employer registered with the E-Verify employment verification system.”

When we go to the USCIS web site, we see that… “As a participant in E-Verify, employers are required to verify all newly hired employees, both U.S. citizens and non-citizens.
Employers may not verify selectively, and must verify all new hires while participating in the program. The program may not be used to prescreen applicants for employment, go back and check employees hired before the company signed the MOU, or re-verify employees who have temporary work authorization.”

This is a problem, because according to the US Chamber of Commerce… “The program is “rife with errors and inaccuracies.” An estimated 0.1% of native-born citizens and 10% of naturalized citizens have incorrect data stored in the Department of Homeland Security or Social Security Administration’s databases — those citizens would likely not be named eligible to work by E-Verify.”

The debate concerning the use of E-Verify goes on. I thought that the 17 month F1 extension for a total of 29 months was a boon to high tech employers, but now I see it as a policing action for an inaccurate system that employers could be saddled with.

jd

A new government policy announced July 16, 2008 allows customs agents to conduct searches at the border of information contained in documents and electronic devices such as laptops and flash drives without suspicion of wrongdoing or unlawful activity. No distinction is made between Americans and foreigners. The policy allows Customs to search, copy, retain, and share information from computers, disks, hard drives, electronic or digital

storage devices, as well as documents, books, pamphlets, and other printed materials. Officers may detain documents and electronic devices for as long as they deem necessary and reasonable to perform a thorough search, either on or off site. The border can include the geographic borders as well as international points of entry such as airports and (sea) ports. Despite the new policy, there are some limits on the government’s broad powers at the border and you should know your rights. Customs may detain documents and/or devices for an unspecified “reasonable” amount of time, but permanent seizure requires probable cause of unlawful activity. International business travelers should be aware of the possibility that business confidential information and even documents subject to attorney-client privilege could be subject to border searches. International business travelers should be prepared for searches and should take necessary precautionary measures. Travelers concerned that business-confidential or privileged information could be examined by border officials may want to take precautionary steps to protect such information, including the following: • Establish secure, web-based document repositories that you or your business colleagues can use to access documents remotely. • Send electronic copies of documents prior to meetings, rather than carry them across the border in electronic or digital storage devices. • When information must be carried across the border, rather than storing it on the “desktop” of your computer, store it separately in portable storage devices such as memory sticks or flash drives that are labeled, where appropriate, “business confidential” or “attorney-client privileged.” Customs is authorized to view these documents, but identifying sensitive information may help to alert border officials to any special handling procedures that might be required, reducing the risk of inadvertent exposure of confidential information. Whereas Customs may “routinely” search business confidential information, the examination of “attorney-client” information requires reasonable suspicion and the advice of an Assistant Chief Counsel, thus giving it an extra layer of protection against arbitrary border inspection. • Consider turning off e-mail caching when traveling to other countries. Some programs such as Microsoft Outlook store or “cache” copies of e-mail messages on the laptop so that the e-mail messages are available for review while not connected to a computer network. Note that with caching turned off, you will not be able to read your e-mail without first connecting to the computer network. • Clear or delete web browser cache and delete “cookies” and passwords that may be stored on your laptop.

Here is the actual policy.

jd

Green is Good!

Recently, San Francisco’s mayor, Gavin Newsom, signed an ordinance that requires employers to offer employees at least one of three commuter benefit options.

This is part of an effort to comply with California’s new AB 32 Carbon Emissions regulation act, designed to reduce greenhouse-gas emissions by at least 20 percent from 1990 levels. Under this legislation, employers will have a choice of three transit options:

1. Set up a program under which employees can make pretax contributions to the federal legal limit of $115 a month to pay for mass transit expenses,
2. Employers can directly pay for employees’ transportation expenses, such as buying transit passes for employees.
3. Employers can furnish transportation by setting up van pools for employees.

The ordinance will take effect in December 2008 and will apply to employers with at least 20 employees and will have to be offered to employees who work an average of at least 10 hours per week.

Look to San Francisco to set the trend for things to come.

The California court system recently rejected non-compete clauses.

California (and most other states) has historically had an environment that favors open competition and employee freedom. Non-Competes were just ruled illegal last week. Recruiters have found them problematic, because they have been used by employers, especially high tech companies, to restrict employees from moving to a perceived competitor. That’s no longer a problem. Most other states still allow non-competes, but it’s now expected that federal courts and other states will fall in line.

Confidential Information OK
While enabling the movement of employees between employers, the ruling still protects companies in that trade secrets and confidential information are still protected.

The case that led to this ruling is Edwards vs. Arthur Andersen, S147190, and is available at links.sfgate.com/ZELQ.

jd

The use of Blackberry’s and enabling instant communication technologies such as PTT, email, Twitter, etc. has become ubiquitous.

If we strictly interpret FLSA OT rules its clear that non-exempts warrant compensation for work related use out of normal work hours. In other words, if your non-exempt Scheduler gets a response from a candidate for an interview appointment and answers it via Blackberry email at 7:00 pm tonight or over the weekend, did he/she just put in OT? California and FLSA law says the answer is yes.

How can the employer curb liabilities?
Suggested approaches involve very clear guidelines for employee use of such devices for work related purposes and differentiating use of such devices for personal vs. required and critical business purposes. Clear statements such as non-exempt employees are not authorized to use cell phone or PDA communication technologies for business purposes out of the “normal” 8-5 hours are necessary.

This may be just one more argument to curb the subsidy of cell phones by employers for employee use. The argument would be that if the company does not pay for the phone, they must not be doing company work when looking at their phone or email.

This is not an issue for most exempt employees, because neither FLSA nor California’s stricter additional guidelines apply to exempts. But it may be an issue for some of the marginal exempt non-exempt job categories such as Computer Programmers, Software Engineers, HTML Web Programmers, Gamers and Sys Admins at the lower level.

The bottom line
You should take a look at your policies and ask yourself, how well has the company guarded the purse strings in the area of Blackberry use and overtime? There’s a need to revise our overtime laws in the State and Country to recognize the prevalence of these communication technologies, and to allow for some employer flexibility so they don’t get charged to death every time the employee does something work related for two seconds out of the normal work hours.

The reality is work life balance in the Silicon Valley is a myth. It’s not that we are killing ourselves by working 24/7, but instead the recognition that things have changed in both how and when we work. 50 years ago when my dad worked in the factory for 8 hours that’s what he did. Today, many of our factories are cubes, workspaces, and many of us spend time surfing the net, replying to personal calls and emails in the same mix as all the work related business. I don’t see anybody passing legislation saying we can deduct the time when people are not applying themselves to work for the 8+ hours they spend at the office. It’s time for new legislation in this space to recognize the new way of working

jd

Information on Legislation and Public Policy Impacting Employees Employers

This bill was originally proposed by Assembly Member Fiona Ma of San Francisco. It recently passed through the California State Assembly and is on its way to the Senate where it is also expected to pass. It is expected that it will be vetoed by Governor Schwarzenegger, but there is some chance it may get passed in some form as a bargaining chip to get the state budget approved.

The City and County of San Francisco has enacted a similar city wide ordinance and Assembly member Ma has decided that if it’s good enough for San Francisco, it’s good enough for the rest of the State. Many small employers already provide paid sick leave, and we laud employers who provide this benefit. Mandating this benefit however may have severe consequences on small business, small employers, especially in their early years when money to fund a business tends to be more scarce.

This bill would require small employers to provide at least 5 days paid sick leave per year and larger employers, a minimum of 9 paid sick days per year. If an employee is making $20/hr and gets 9 days paid sick leave per year, this is equivalent to $1440/year. If the employer has 10 employees, then that is about 15K/ year. If the employer has to replace the employee due to sick leave, then that is an additional 15K. Further the employer is still responsible to pay the employer taxes in addition to the above wages. Many small businesses operate on a very thin profit margin. This legislation will reduce the profit or create a loss for many of those businesses.

No other state in the USA mandates paid sick leave. California is notorious for being a very expensive state in which to operate a business, large or small. There is no question that the economy is slower today. If this bill is passes, it will exacerbate conditions for employers by increasing costs. This bill will ultimately result in greater costs to the employer, which the employer will have to recoup through higher costs, layoffs, cutbacks, smaller or no raises, etc. Most employees would like to see none of these consequences happen to them.

Call to Action

As we say in the employment business, the recession is when your neighbor is laid off. The depression is when you are. To prevent an employer depression resulting in layoffs, and keep California competitive, write to your state legislators, both your Assembly and Senate representatives and let them know you oppose this bill. If you are not sure who they are, then go here to find out. To find your local reps, enter your zip code or address. You can send your letters to them and the author of the bill.

I am providing a sample letter you can send them. You can send it by email or fax to make it easy…

jd

Date

Name of Legislator

Subject: Opposition to AB 2716

Dear ______________:

I am opposed to AB 2716, a new Bill requesting protected paid sick leave plan for employees. This Bill would unreasonably expand employer costs and liability.

Most California employers participate in the California State Disability Insurance Program (SDI) which is paid for through payroll deductions and provides temporary disability benefits for employees who are disabled by a non-work related illness or injury. The employer is not required by law to offer paid sick leave to employees in addition to mandated SDI benefits. In fact, payment of sick leave may reduce the SDI benefits to which an individual is entitled.

Many California employers provide paid sick leave and or paid vacation time even though current law does not require it. Under current law, unlike vacation days, sick leave does not accrue or vest. Therefore, any unused sick leave may be forfeited at the end of a designated period of time. AB 2716 proposes to require unused paid sick time to carry over from year to year.

The ever increasing burden of costly mandates on employers can cumulatively result in lower wages, reducing available health insurance, limiting training programs and in some cases, job loss or reduced work hours. In an already troubled California economy, California should be seeking ways to stimulate job growth and avoid costly mandates on employers.

Thank you for considering my position on this bill.


Sincerely,

Your Name