Author Archives: bozell

What Businesses Need to Know About Immigration Law

There are two facets of immigration law that all businesses should be aware of. The first is the obligation to document the work authorization and identity of all employees, regardless of whether they appear to be foreign born. The second is the related process of seeking work authorization from the Department of Homeland Security (DHS) suitable for your particular organization for those persons who are neither citizens or green card holders.

Obviously, the process starts with the employment application. Employers may ask, on the application, whether the employee is authorized to work in the United States. It should be noted that if the company does not want to go through the process of petitioning for work authorization for employees not already authorized, it is not required to do so.

Form I-9, a new version of which went into effect May 7, 2013, must be completed for all incoming employees if you have four or more employees working for your company. Section 1 has to be filled out completely by the employee, although a translator box is available should they need help. Section 2 should be filled out by the employer using documents of the employee’s choice. Although Section 1 should be filled out the first day of employment, Section 3 must be filled out within the first three days of employment, and a good rule of thumb is to fill out the entire document the first day. Review all the boxes to make sure the form is completely filled out, and never back date!

Employers should investigate whether they wish to take part in the E-Verify program operated by the Department of Homeland Security. It provides employers a presumption that they were acting in good faith to verify employees’ status should a DHS investigator appear on your doorstep.

The process of obtaining employment authorization for employees should be the subject of an entirely separate article. Suffice it to say, many types of employment authorizations are specific to the company which filed the petition only, and there may be pitfalls associated with bringing in an employee who may be authorized to work for another company without filing a separation petition for your company. Legal advice should be sought on that topic as soon as possible since the employer’s course of action will vary according to the type of work performed and the type of work authorization necessary.

For more information on the legal rights of employers and employees, visit www.mcgrathnorth.com, or you can call their offices at 402-341-3070.

 

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IRS Promises No More Warrantless Searches

In response to a recent Freedom of Information request, the IRS recently released a memorandum issued by an IRS staff attorney to a revenue officer (in reply to a question) which states that the IRS believes it has the authority to subpoena and review taxpayer emails which are more than 180 days old without a warrant. Under the federal Stored Communications Act, the IRS acknowledged that it cannot review taxpayer emails or stored voice mails which are less than 180 days old without a warrant.

This release predictably concerned several members of Congress. In response to their questioning of the then acting IRS commissioner, the commissioner stated that, in spite of the prior memorandum, the IRS would no longer pursue warrantless searches of Americans’ emails and other digital communications.

The IRS followed up this statement by the acting IRS commissioner with a formal policy statement confirming that the IRS will now obtain a search warrant in all cases when seeking from an internet service provider (ISP) the content of email communications stored by the ISP. In addition, the IRS confirmed that such information will not be sought from an ISP in any civil administrative proceeding and that the IRS will update its existing guidance to revenue officers and agents to comply with this policy.

While this is a victory for privacy advocates (and we would argue taxpayers), this change in policy should be viewed in its proper context. The IRS has not acknowledged that it is forbidden from reviewing old emails – just that it voluntarily will not do so. We don’t see that the IRS is forbidden from changing its policy and later choosing to conduct warrantless searches of older emails.  So this area may still call for guidance from Congress.

 

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Motion Denied

Nebraska Supreme Court Denies Motion For Rehearing In PTO Payment Case

On May 3, 2013, in the Fisher and Norton cases, the Nebraska Supreme Court decided that earned but unused paid time off (“PTO”) constituted “vacation” under the Nebraska Wage Payment and Collection Act, and that Nebraska employers were obligated to pay PTO to departing employees, even though a part of PTO was designed to replace sick leave. The decision came in a spirited 4 – 3 decision, with a vigorous dissent by three of the Justices.

Today, the Supreme Court denied a Motion for Rehearing regarding this decision. It had been hoped that the Supreme Court would examine the legislative history upon rehearing, as both the majority and the dissent decided that the language of the statute was perfectly clear, but then came to diametrically opposed conclusions.

The majority opinion held that while there was a condition precedent for the use of such leave as sick leave (and, presumably bereavement leave), there was no condition precedent for the use of PTO and it could be used at the will of the employee. Therefore, the majority found that it must be paid to employees upon their separation from employment under the statute as it was more akin to vacation leave. The majority also concluded that if it held otherwise, Nebraska employers would be allowed to circumvent the statutory requirements that it pay a separated employee for vacation leave. The dissent pointed out that the statute did not define “vacation leave.” It concluded that “vacation leave” should be narrowly defined to mean only that leave which is used for vacation and defined PTO to mean a much broader form of paid leave, which provides an employee with flexibility to use PTO for any purpose. It concluded that the employer had provided a different type of paid leave which falls within the general rule of the statute that all other types of paid leave should not be paid upon separation. It concluded “[a] herd of elephants cannot be fairly characterized as a herd of zebras simply because one zebra is traveling with the elephants. By treating multi-purpose PTO as defined in the [employer’s] policy as the equivalent of vacation leave simply because vacation leave is one of the purposes for which it can be used, the majority’s reasoning permits the exception to swallow the rule.”

Obviously, by the denial of the Motion for Rehearing, the original decision of May 3, 2013 stands. Although the dissent invited further legislative action, it is not known whether such action will be taken.

The essence of the majority opinion is that paid leave can be divided into two categories: (1) leave which requires a specific act or condition as a condition precedent, such as injury and illness for use of sick leave, and the death of a relative or of a person within a defined group to qualify for bereavement leave; and (2) most, if not all other types of leave, which can be used at will, including PTO. It appears that with this second category, the rule in Fisher and Norton will be that payment of earned but unused leave will be required to be paid to employees upon separation from employment.

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