Has Your Company Been Reimbursing its Employees for Personal Cell Phone Use on the Job?

by Jennifer A. Grady, Esq.

cell phone 2Since January 1, 2016, California employers must reimburse employees for use of their personal cell phones for mandatory business purposes.  (Cochran v. Schwan’s Home Service, Inc). This ruling affects millions of employers who must update their company policies in order to stay compliant with the new law.  While this law has been on the books for over two years now, it appears as though many companies have not addressed this law or made it part of their employee reimbursement practices.  Is your company reimbursing its employees for their cell phone call and data usage?  Read below for policy suggestions.

What does this mean for employers?

According to Cochran, California employers must indemnify employees for all “necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.” Unfortunately, even four years after this case was decided, the exact measure of reimbursement is still somewhat unclear.  While the court in Cochran determined that employers must consistently reimburse employees a “reasonable percentage,” it did not define what is reasonable. Furthermore, the employer must reimburse the employee even if the employee does not incur any additional expense on his or her cell phone/data plan as the result of using the device for work-related purposes (i.e. if the client has unlimited talk, text, and data plans).

This law is now reflected in California Labor Code section 2082: Continue reading

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Must-Read for All Employers: Gov. Brown Further Expands Sexual Harassment Laws in California

Brown lawOn September 30, 2018, California Governor Jerry Brown signed over a dozen bills into law with the intent on making the Golden State the leader in the nation on the much-analyzed and discussed topic of sexual harassment.

Governor Brown signed his last bill on Sunday night.  Over his career, he signed nearly 20,000 bills, including 1,016 this year. The new laws, on a range of issues from climate change to criminal justice to gender issues, place California on the “left coast” politically.  Brown’s ambitions can be summarized by his statement that, “We are going to be the moral compass and the policy trendsetter of the country.”

While these new laws will benefit employees and address serious and relevant issues, they will continue to place more demands on employers across California who attempt to comply with the most legislated corporate territory in the country.

A full list of Governor Browns approvals and vetoes can be found in his Legislative Update.  Of the dozens of bills signed into law on September 30, the most relevant on this topic include the following: Continue reading

California Passes Law Requiring Boards of Publicly-Held Corporations to Include Women by 2019 (SB 826)

woman on boardOn September 30, 2018, California Governor Jerry Brown signed into law a radical initiative to add women to corporate boards of directors for publicly-held corporations headquartered in California.   According to Brown in a letter to the California State Senate, “Given all the special privileges that corporations have enjoyed for so long, it’s high time corporate boards include the people who constitute more than half the ‘persons’ in America.”  The California Senate approved Senate Bill 826 by a vote of 23 to 9 after the State Assembly narrowly passed the proposal with the bare minimum 41 votes a day earlier.  The Bill was then approved by the Governor and filed with the California Secretary of State.

Brown lawIn an effort to “close the gender gap” in business, the new law requires publicly traded corporations whose principal executive offices are headquartered in California to include at least one woman on their boards of directors by the end of 2019.  By December 31, 2021, this requirement will expand to require that a minimum of two women must sit on boards with five (5) members, and there must be at least three women on boards with six or more (6+) members.  The corporations’ SEC 10-K form will be used to determine the location of the principal executive offices.

The bill requires that by July 1, 2019, the Secretary of State publish the number of domestic and foreign corporations whose principal executive offices are located in California and who have at least one female director. The bill also authorizes the Secretary of State to impose fines for violations of the bill, and provides that funds from these fines are to be available, upon appropriation, to offset the cost of administering the bill.

Penalties for non-compliance will be high, including fines of $100,000 for a first violation and $300,000 for a second or subsequent violation.  Companies must demonstrate their compliance by filing their board member information with the Secretary of State by the respective deadlines. Continue reading

USCIS Increases Premium Processing Fee by 15% on October 1, 2018

fee-increaseOn August 31, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that it will adjust the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, beginning on October 1, 2018, to “more effectively adjudicate petitions and maintain effective service to petitioners. ” These forms are typically used for H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 petitions.

The premium processing fee will increase to $1,410.00, a 14.92 percent increase (after rounding) from the current fee of $1,225.00. This increase, which is done in accordance with the Immigration and Nationality Act, represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers. Continue reading

USCIS Temporarily Suspends Premium Processing for Fiscal Year 2019 H-1B Cap Petitions

enter-usa-h1b-visaAs of April 2, 2018, USCIS began accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap.  This cap was reached in just four days, by April 6, 2018.
USCIS has temporarily suspended premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap.
USCIS will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.

During this temporary suspension, USCIS will reject any Form I-907, Request for Premium Processing Service, filed with an FY 2019 cap-subject H-1B petition. If a petitioner submits one combined check for the fees for Form I-907 and Form I-129, Petition for a Nonimmigrant Worker, both forms will be rejected.

Once USCIS resumes premium processing, petitioners may file a Form I-907 for FY 2019 cap-subject H-1B petitions that remain pending.

Requesting Expedited Processing

While premium processing is suspended, a petitioner may submit a request to expedite an FY 2019 cap-subject H-1B petition if it meets the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and USCIS encourages petitioners to submit documentary evidence to support their expedite request. USCIS reviews all expedite requests on a case-by-case basis and will grant requests at the discretion of its office leadership.

The Reason for Temporary Suspension of Premium Processing for H-1B Petitions

This temporary suspension will help USCIS reduce overall H-1B processing times. By temporarily suspending premium processing, USCIS will:

  • Process long-pending petitions, which it has currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

Look for USCIS’ updates on the H-1B FY 2019 Cap Season webpage.

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Updates to California Labor Law Posters

CapitolStay up to date with recent changes to California labor law posters!  In order for your business to stay in compliance with these recent changes, the updated posting(s) must be downloaded, printed, and then posted next to your current labor law poster. Remember, labor law posters must be posted in a conspicuous location so that all employees may see them.

1. EDD- Unemployment Insurance, Disability Insurance, Paid Family Leave:

The California Employment Development Department (EDD) has updated its EDD notice regarding Unemployment Insurance, Disability Insurance, and Paid Family Leave. The updated notice reflects a change to the online application platform, as well as formatting changes. The department recommends maintaining updated information, however, this update will not be mandatory until January 1, 2019. The poster revision date is August 8, 2018.

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Clarification of STEM OPT Extension Reporting Responsibilities and Training Obligations

STEM guysCertain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees may apply for a 24-month extension of their post-completion optional practical training (OPT).  On August 17, 2018, USCIS updated the Optional Practical Training Extension for STEM Students (STEM OPT) page of its website to clarify the reporting responsibilities for participation in the STEM OPT program. Students and employers must report material changes to the Designated School Official (DSO) at the earliest opportunity by submitting a modified Form I-983. Employers must report the STEM OPT student’s termination of employment or departure to the DSO within five business days.  As previously indicated on the webpage, students must report certain changes, such as changes to their employer’s name and address, to their DSO within 10 business days. Prompt reporting ensures that Department of Homeland Security (DHS) is able to exercise effective oversight of the program.

Additionally, DHS is clarified that STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business, as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student. DHS will review on a cSTEM OPTase-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience. Continue reading

Conduct Your Own I-9 Audit Before ICE Does: 6 Tips for Avoiding Costly Mistakes

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U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) conducted a two-phase nationwide operation in which I-9 audit notices were served to more than 5,200 businesses around the country since January 2018. A notice of inspection (NOI) informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law.

During the second phase of the operation from July 16 to 20, 2018, HSI served 2,738 NOIs and made 32 arrests. During the first phase of the operation, Jan. 29 to March 30, HSI served 2,540 NOIs and made 61 arrests.

ICE 2While the agency routinely conducts worksite investigations to uphold federal law, HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. The seriousness of these investigations is described by Mr. Benner: “This is not a victimless crime.  Unauthorized workers often use stolen identities of legal U.S. workers, which can significantly impact the identity theft victim’s credit, medical records and other aspects of their everyday life.

HSI uses a three-pronged approach to worksite enforcement: (1) compliance, from I-9 inspections, civil fines, and referrals for debarment; (2) enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and (3) outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.

From Oct. 1, 2017, through July 20, 2018, HSI opened 6,093 worksite investigations and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017 (October 2016 to September 2017), HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

What is the I-9 Form?

The I-9 Form is an instrumental part of the new employee on boarding process, and should be completed within the first 3 days of hire.  This form is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including both citizens and non-citizens.

To many employers and HR professionals, an I-9 form may appear to be a simple piece of hiring paperwork. However, the one page I-9 form comes with enough rules and regulations to fill a 69-page how-to manual, the M-274 Handbook for Employers.

In order to ensure compliance with the I-9 requirements, it is recommend that employers conduct and audit of their files to ensure that there is a signed I-9 form on file for each employee.  These forms should be stored together in a separate I-9 file, rather than each employee’s personnel file.  This way, in the event USCIS conducts an audit, the employer only has to turn over the I-9 file, as opposed to information about the employee that is outside the scope of the agency’s audit.  Read below for an explanation of the I-9 audits and tips to be prepared in the event you receive a visit from US Immigration and Customs Enforcement (ICE).
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Jennifer Grady, Esq. Speaks at San Diego Global Investment Forum on Immigration Options for Investors, Entrepreneurs, and Global Employees

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Ms. Grady speaking on the FDI panel about immigration in the Trump Era (09/20/18)

Jennifer Grady, Esq. has been invited to appear as a panelist at the San Diego Global Investment Forum in sunny San Diego, California.  This event, which will took place on September 19-20, 2018, is hosted by the San Diego Global Partnership.  As part of the panel on “Foreign Direct Investment,” Ms. Grady shared her expertise on immigration options and trends for investors and employees who are relocating to Southern California.

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FDI panel of attorneys, tax advisors, and US-bound entrepreneurs

Other panels focused on real estate development and investment, technology and innovation, domestic funding and alternative investment, and city collaboration.  Speakers and attendees had the opportunity to network at the welcome cocktail reception on the evening of September 19, and the finale networking reception on September 20.  In addition, there was a Development & Innovation tour of San Diego on September 21 for investors interested in an overview of San Diego.

DSC07082This unique investment-focused event drew attendees from around the globe who recognize San Diego and the greater Southern California region’s incredible growth opportunities over the next ten years. For example, CBRE’s “Americas Investor Intentions Survey” for 2018 recognizes the up-and-coming nature of the region by recognizing that, “the Southern California market ranked number 11 for investment in the US, up from number 17 last year.”

This was the first year for the Forum, which is open to any individual, developer, institution, company, fund, or organization that wants to learn why San Diego is rapidly climbing the economic changes and why they should be looking at San Diego and Southern California as their next investment opportunity.

Coronado bridgeThis two-day forum offers a unique platform to learn from and meet San Diego’s Mega Region innovation, development, business, municipality, political, and thought leaders in one room.
Who should attend?

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The Grady Firm Will be Meeting with Clients and Local Business Owners in Berlin and Munich in June

Berlin

Berlin, Germany

The Grady Firm,P.C. will be meeting with German clients abroad in June as a way to share accurate information about the realities of doing business in the United States and will provide tips for applying for a visa or Green Card during the current political climate.  As a truly cross-border firm, The Grady Firm’s global expansion and relocation Department advises foreign entrepreneurs on the best practices to establish a new business in the United States and transfer their employees to US offices. The Firm also assists German citizens with their citizenship retention application to retain German citizenship before they acquire US citizenship (“Beibehaltungsgenehmigung).  In line with these professional services,  Jennifer Grady, Esq. will be meeting with clients in Berlin from June 20-22, and Munich from June 28 to 28, 2018.

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Munich, Germany

Click here to schedule a complimentary 15-minute consultation with Jennifer while she is in Germany, call +1 (323) 450-9010; or fill out a Contact Request Form. Continue reading

DHS Proposes Removal of the Entrepreneur Parole Rule- Comment period ends June 28

international-movers-and-packersAccording to a post on the uscis.gov website dated May 25, 2018, the Department of Homeland Security (DHS) proposes an end the International Entrepreneur Rule (IE Final Rule), a program that allows certain foreign entrepreneurs to be considered for parole to temporarily come to the United States to develop and build start-up businesses here.  After review of all DHS parole programs in accordance with an Executive Order (E.O.) titled, “Border Security and Immigration Enforcement Improvements,” issued on January 25, 2017, the DHS is proposing to end the IE parole program, and remove or revise the related regulations, because it alleges that this program is not the appropriate vehicle for attracting and retaining international entrepreneurs, and does not adequately protect U.S. investors and U.S. workers employed by or seeking employment with the start-up.  Interested parties will have until June 28 to make their opinions heard by DHS.

Backstory

In July 2017, DHS published a final rule to delay the implementation date of the IE Final Rule to March 14, 2018, to give the Department time to draft a rescission of the IE Final Rule. However, in December 2017, a federal court vacated the delay rule, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE Final Rule.
However, DHS is now proposing to eliminate the IE Final Rule because the department believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs.

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Jennifer Grady, Esq. Speaks to Canadian Entrepreneurs at SelectUSA Canada

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Ms. Grady on a panel about US immigration considerations for Canadian entrepreneurs, along with US Customs and Border protection officers

On April 12, 2018, cross-border attorney Jennifer Grady, Esq. spoke to a group of 100 Canadian entrepreneurs and US Economic Development Organizations (EDOs) at SelectUSA Canada.  SelectUSA is a U.S. government-wide program led by the U.S. Department of Commerce. Since its inception, SelectUSA has facilitated more than US $25 billion in investment, creating and/or retaining tens of thousands of U.S. jobs. In addition to the annual Summit in Washington, D.C., it puts on local roadshows and events in countries around the world.

DSC03023Ms. Grady’s topic, “Moving people across the border: Immigration considerations for investors“, provided an overview of considerations and options for moving key personnel to the United States.  In addition, she provided tips on applying for visas and Green Cards based on investment, employment, and temporary business visits.  She was joined as a panelist by executives from the U.S. Consulate in Calgary, and Custom and Border Protection (CBP). Continue reading

Jennifer Grady, Esq. to Speak on Immigration Tips for Investors at SelectUSA Canada in Calgary

Calgary

Calgary, Canada

On April 12, 2018, Jennifer A. Grady, Esq. will speak to a group of over 100 Canadian business owners at SelectUSA Canada, which will take place this year in Calgary.  Her topic, “Moving people across the border: Immigration considerations for investors“, will provide an overview of considerations and options for moving key personnel to the United States.  She will be joined as a panelist by executives from the U.S. Consulate in Calgary, and Custom and Border Protection (CBP).

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Ms. Grady speaking to international entrepreneurs at SelectUSA in Washington, D.C.

This will be Ms. Grady’s third time as a SelectUSA speaker–for the past two years, she was a panelist on hot topics in immigration and employment law at the flagship SelectUSA summit in Washington, D.C., which was attended by President Obama and John Kerry in 2016, and U.S. Secretary of Commerce Wilbur Ross in 2017. Continue reading

The Grady Firm, P.C. celebrates its Sixth Anniversary

JGrady Firm-Logo-2016On March 19, 2018, The Grady Firm, P.C. celebrated its sixth anniversary.  Founded in 2012, the firm has evolved from assisting startups in the Silicon Beach area of Los Angeles, to adding immigration, employment, and intellectual property law departments with a network of twelve of-counsel attorneys in offices in Beverly Hills, Irvine, and San Diego, California.  Moreover, the firm partners with attorneys licensed in Texas, Louisiana, Washington, Canada, Italy, and Germany to assist its international clientele with their matters in those jurisdictions.

In addition to assisting individuals, the firm acts as the outside legal counsel for rapidly expanding companies that add employees to its offices across California and the United States by providing on-demand employment and immigration counsel.  For its international clients, the firm is the main point of contact for successful entrepreneurs who bring their ideas and business acumen to the United States.

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The Grady Firm’s Fifth Anniversary party in April 2017

 

The Grady Firm thanks its attorneys, clients, and referral partners for their support and confidence over the years.

 

 

 

 

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Exciting News for Foreign Entrepreneurs: The International Entrepreneur Rule Is Back!

international-movers-and-packersGreat news for foreign  entrepreneurs looking for a way to pursue startup opportunities in the United States! A Federal Judge has blocked an effort by the Trump Administration to delay implementation of the International Entrepreneur Rule (IER), also known as the Entrepreneur Parole Rule, an Obama-era program that would give international entrepreneurs the opportunity to come to the United States to develop and operate start-up businesses.  Although the IER was published during the previous administration with an effective date of July 17, 2017, it did not take effect because the Department of Homeland Security (DHS) issued a final rule on July 11, 2017, delaying the IER’s effective date until March 14, 2018.  This delay rule was meant to give USCIS time to review the IER and, if necessary, to issue a rule proposing to remove the IER program regulations.

However, on December 1, Judge James Boasberg of the U.S. District Court for the District of Columbia ordered the Department of Homeland Security (DHS) to begin accepting applications for the program in his decision in National Venture Capital Association v. Duke. Prior to Judge Boasberg’s decision, DHS attempted to delay implementation of the rule by postponing its implementation until March of 2018 so it could gather public comments on a proposal to rescind the rule altogether.

The main issue that led to Judge Boasberg’s decision arose when DHS delayed implementation of the rule without first holding a public notice and comment period on whether to institute the delay. According to the plaintiffs who filed the suit, including the National Venture Capital Association and other plaintiffs representing foreign entrepreneurs, DHS violated administrative procedures by delaying implementation of the rule, six days before it was to go into effect, without first soliciting public comment on whether to implement the delay. Continue reading