H-2B Visa Rule Halted

A federal district court ruled that the Department of Labor (DOL) may not implement a final rule relating to H-2B visas. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals into the U.S. to fill temporary non-agricultural jobs.

HRWatchdog previously reported on the DOL’s controversial final rule that revised the processes that employers must follow when obtaining a temporary labor certification from the DOL and when petitioning the Department of Homeland Security to employ a non-immigrant worker in H-2B status.

Many employers argued that the new rule was cumbersome, would increase costs and would decrease business competitiveness. Bayou Lawn and Landscaping Services, as well as professional associations, including the U.S. Chamber of Commerce, challenged the final rule in court.

A federal district court in Florida ruled there was a substantial likelihood that the plaintiffs would succeed on the merits of their claim that the DOL lacked authority to promulgate the rule, and issued a preliminary injunction to halt the DOL from going forward with the final rule.

The court noted that the DOL “acknowledges that it has no express congressional grant of authority to engage in legislative rule-making under the H-2B program and that such authority was vested instead in the secretary of the Department of Homeland Security.”

The DOL stated that, due to the preliminary injunction, employers should file labor certifications under the 2008 H-2B rule. The case still must be decided by the federal courts. For more information, visit the DOL’s final rule website.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

‘Work for Warriors’ Program Links National Guard Members With Jobs

The California Chamber of Commerce is supporting a pilot employment program from the California National Guard. The “Work for Warriors” program matches the skills of unemployed and underemployed members of the California National Guard with the hiring needs of employers.

The program’s immediate goal is to reduce unemployment and underemployment among California National Guard members by 25 percent within one year, with a longer-term goal of lowering unemployment to less than 5 percent.

California’s National Guard force is the largest and most frequently deployed in the country, deploying more than 37,000 times to countries worldwide since September 11, 2001.

Employers wishing to partner with the California National Guard can:

• Email or call (916) 854-4426
• Register at the California National Guard website
• Or visit the program's Facebook page

Final Rule on Employing H-2B Workers

The federal Department of Labor (DOL) issued a final rule on the H-2B non-agricultural temporary worker program. This program allows U.S. employers to bring foreign nationals into the U.S. to fill temporary non-agricultural jobs.

The final rule revises the processes for employers to follow when obtaining a temporary labor certification from the DOL and when petitioning the Department of Homeland security to employ a non-immigrant worker in H-2B status. Major revisions include creating a national electronic job registry where employers must post all jobs they seek to fill with H-2B workers.

There has been division surrounding the new rules: Some employers see the new rules as cumbersome for their seasonal businesses, but other employers praise the rules as protecting American jobs.

The final rule also increases the length of time during which employers must first recruit U.S. workers. Employers must continue to recruit and accept U.S. applicants until 21 days before the date of need. Employers can no longer simply assert that they searched for U.S. workers, but now must submit a recruitment report that demonstrates that they were unable to locate a sufficient number of U.S. workers for the job.

More information on the final rule is available on DOL’s final rule website.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Hiring Veterans Is Good Business Sense

Earlier, HR Watchdog blogged about how employers and the California Department of Veterans Affairs (CalVet) are working together to educate eligible employees about the federal and state benefits available to military veterans.

CalVet is reminding business owners that they may be eligible for thousands of dollars in state and federal tax benefits and other incentives for hiring qualified veterans.

California is currently home to 1.9 million veterans. Another 30,000 men and women separate from military service and return to the state every year. With the withdrawal of troops from Iraq and Afghanistan, an additional 6,000–10,000 veterans are expected to return to California by the end of 2012.

Tax Benefits and Other Incentives

At the federal level, the Work Opportunity Tax Credit is based on a percentage of qualified first-year wages, ranging from 25 percent to 40 percent. Maximum eligible credits may be as high as $2,400 for hiring a qualified veteran and up to $9,600 for hiring a veteran with service-connected disabilities. 

Employers interested in more information about how to apply for the Work Opportunity Tax Credit can visit the IRS for additional details. Also, the IRS announced that employers will have more time to file the required certification form for employees hired on or after November 22, 2011, and before May 22, 2012.

At the state level, employers could be eligible for a tax credit from the California Enterprise Zone; up to $37,000 over five years for employers hiring certain economically challenged employees, including veterans. 

The process for documenting these state and federal tax benefits is fairly straightforward for the certified public accountant or taxpayer, according to  Corporate Taxation Insider. In addition, systems can be set up to allow the employer to pre-screen employees before they are hired to streamline the documentation process and maximize the hiring credit. 

CalVet also would like to remind employers that depending on the nature of their service, veterans who separated from military service after 9/11 may be entitled to five years of free health care through the U.S. Department of Veterans Affairs.

Please visit CalChamber’s website for the full story.

Grocery Store Workers Protected

On Tuesday, the U.S. Supreme Court rejected an appeal by California grocery store owners, who challenged the authority of cities to enact ordinances that protect workers from being immediately fired when a grocery store changes ownership.

Last summer, HR Watchdog blogged on the California Supreme Court’s decision to uphold a Los Angeles ordinance that forbids new owners of large grocery stores from laying off non-managerial employees for 90 days after the new ownership takes over.

After the California Supreme Court decision, the California Grocers Association (CGA) appealed to the nation’s high court to review the case. The CGA argued, in part, that the National Labor Relations Act pre-empts cities from enacting these ordinances. The CGA also argued that the ordinance violates owners' negotiating rights by forcing them take on workers that they did not choose and grant benefits and terms of employment that the employer did not agree to. 

The U.S. Supreme Court rejected the plea for review. This was the final avenue for appeal, and grocery store owners in Los Angeles must follow the ordinance.

The Los Angeles ordinance requires:

• The prior owner to prepare a list of non-managerial employees with at least six months employment.
• The new owner to hire from that list during the 90-day transition period.
  The new owner to only discharge the hired employees “for cause” during the transition period.
• The new owner to prepare a written evaluation of each employee’s performance at the end of the transition period.  
• The new owner to consider offering continued employment if the employee’s performance is satisfactory.

The ordinance does provide that if the workforce is unionized, the union and the employer can agree on alternative hiring arrangements.

Similar ordinances for grocery workers and other fields of employment, such as hotel workers, are in effect in other California cities.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

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