On September 18, 2019, California Governor Gavin Newsom signed into law A.B. 5, solidifying a tighter standard of rules for classifying a worker as an independent contractor. The new standard, known as the Dynamex standard, codifies and expands the earlier California Supreme Court decision, Dynamex Operations West, Inc. v. Superior Court of Los Angeles. It replaces the former Borello test, and puts in place a more simple three-pronged ABC test. The significant effect is that many workers in California will now be classified as employees instead of independent contractors (also informally known as “1099” workers). This change is one of the most significant disruptions to California employment law in decades. The law will take effect on January 1, 2020.Continue reading
As companies grow and evolve over time, it soon becomes clear that they will outgrow their employee and operations policies–that is, if they even had any in the first place! The best time for a CEO, COO, CFO, and Human Resources Department is to reassess these policies is at the end of the year, and to roll out new policies at the start of a new year. Every January, there are changes that will take place anyway (such as updated IRS mileage reimbursement rates and local minimum wage rates), so it’s a good time to include policy updates when you provide this information to employees all at once. There are numerous policies you can begin revising now to issue to your staff in January. Read further to begin your end of year action plan:
1. Employee Handbook
The first item that should be addressed is the company Employee Handbook. If your company does not have one, or has not updated an existing one in more than a year, it’s time to speak with an attorney about creating or updating your Handbook. In fact, for companies that have more than 5 employees, a Handbook is a no-brainer because it will have clauses in it that you are required to provide to employees (for example, Pregnancy Disability Leave is available for employees at companies with 5 or more employees, and the Employee Handbook is the best place to provide this information to employees). Besides using the Handbook as the opportunity to explain all of the California mandatory leave-laws, paid sick leave time, and cell phone reimbursement policy, you can use this as a forum to explain the company’s social media, use of technology, dress code, tardiness, absentee, and drug/alcohol use policies. You can also outline which behaviors will result in discipline or termination. Continue reading
If you are coming to the United States to establish a U.S. presence of your foreign business; investigate whether you want to open a business in the U.S.; or attend conferences, look for commercial space, or interview potential investors or employees; you may be eligible for the B-1 Temporary Business Visitor Visa.
I. B-1 Temporary Business Visitor Visa
1. Real Examples of When to Use the B-1 Visa
For example, if you own a business abroad but want to come to the United States to speak at conferences, meet potential clients, and conduct marketing activities, but have no plans to live or work in the U.S., the B-1 visa would be a good option for you.
In addition, if you have a business abroad and are looking to open an office in the United States, you can come to the US for several months to look for an office or warehouse space, interview potential employees, meet with investors, and do research for the business. Continue reading
On 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
On 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.
In 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
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.
While 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).
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.
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.
This 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.
This 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?
Ten cities and counties across California increased their minimum wages again on July 1, 2018, including the following:
- El Cerrito
- City of Los Angeles
- County of Los Angeles (unincorporated areas)
- San Francisco City and County
- San Leandro; and
- Santa Monica.
Employers should examine the rules for every jurisdiction in which they operate, not just the one or more where they might have offices. As different municipalities have different definitions of “covered employer” and/or “covered employee,” employers may be faced with different rules for the various jurisdictions in which they do business. When there are conflicting requirements in the laws, the employer must follow the stricter standard – the one that is the most generous to the employee.
For example, a delivery company with drivers routinely working in multiple cities or counties each week may well have separate minimum wage compliance issues simultaneously. For some cities, these rates apply when an employee works just two or more hours per week in the jurisdiction. It is therefore imperative that you check the requirements for each city in which your employees work.
A covered employer must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction. Click the above city/county link(s) to download the most current notice.
As of January 1, 2018, the California minimum wage is $11.00 for employers with 26 or more employees, and $10.50 for employers with 25 or fewer employees. This will increase to $12.00/ $11.00 respectively on January 1, 2019.
In addition, the cities below have their own minimum wage ordinances that go into effect on January or July each year (with the exception of Berkeley). See the chart below for more details: Continue reading
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.
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
In California, employees can apply for paid family leave (PFL) benefits administered through the California’s Employment Development Department (EDD). These PFL benefits are funded through employee-paid payroll taxes, and provide eligible employees with six (6) weeks of partial wage replacement. No state-wide law requires that employers offer paid parental leave.
San Francisco, however, has enacted a local ordinance, the San Francisco Paid Parental Leave Ordinance (SFPPLO), which requires that covered employers supplement an employee’s PFL benefits. As of January 1, 2018, the SFPPLO applies to any San Francisco-based employer with 20 or more employees worldwide. Thus, any employer with more than 20 employees would need to offer eligible employees who work in San Francisco with fully paid leave that complies with the SFPPLO and would need to revise its parental policy accordingly. Continue reading
WASHINGTON, D.C. – On April 6, 2018, U.S. Citizenship and Immigration Services (USCIS) reached the congressionally-mandated 65,000 visa H-1B cap for fiscal year 2019. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the “Master’s cap.”
USCIS began accepting applications on Monday, April 2, and reached its cap within just four days. It will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.
As of May 15, USCIS completed data entry for all fiscal year 2019 H-1B cap-subject petitions selected in its computer-generated random selection process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS asks petitioners not to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.
Based on last year’s applications, receipt notices were sent out around May for cases that were accepted in the lottery, and applications that did not pass the lottery were returned (along with the original application and filing fees), by July.
Additionally, USCIS may transfer some Form I-129 H-1B cap subject petitions between the Vermont Service Center and the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally-mandated FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position.
On Wednesday, February 7, 2018, Jennifer Grady, Esq. will host the 2018 Labor Law Update, sponsored by The Grady Firm, P.C. and the California Employers Association (CEA) in Beverly Hills, California. This event will cover recent, drastic changes to employment law and how such changes may impact California employers. There will be time for Questions and Answers at the end of the presentation, and the opportunity to network with other business owners.
Late last year, Governor Jerry Brown signed more than 800 new bills into law. Many new laws significantly impact employers, including: Continue reading
Beginning January 1, 2018, the standard mileage rates designated by the Internal Revenue Service (IRS) are the following:
- 54.5 cents per mile for the use of a car, van, pickup or panel truck for business miles driven (up 1 cent from 2017).
- 18 cents per mile driven for medical or moving purposes (up 1 cent from 2017).
- 14 cents per mile driven in service of charitable organizations (unchanged).
The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The rate for medical and moving purposes is based on the variable costs.
Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates. Continue reading
Great 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