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U.S. Immigration Policy and Procedural Changes Impacting Foreign Students (Webinar)

All Resources// HR & Employment// Immigration// International

This presentation is a three-part series on the procedural and policy changes issued by the various U.S. agencies governing legal immigration, and the impact of these changes on foreign students in the U.S. with student, scholar or trainee visas such as F, M or J, as well as their spouses and dependents.

Immigration Senior Counsel Maria Mejia-Opaciuch provides practical tips and insight into how these changes could impact future green card or residence applications via family- or employment-based petitions.

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What will U.S. Business Immigration Look Like Under A Trump Administration?

HR & Employment// Immigration// International

More than 10 days have passed since the election results were revealed, and the United States now has a businessman as its president-elect ready to take office on January 20, 2017. However, despite his business background, it appears that the Trump administration will be equally hard on legal business immigration as on illegal immigration. President-elect Trump’s campaign speeches and his position paper on immigration shed light on how his vision regarding immigration will impact employers with a foreign national workforce. Below are some of the pertinent temporary work visas, inspections procedures and immigration control practices that may be impacted when the Trump administration is in place, as well as a brief discussion about the longer delays expected for foreign workers traveling to the United States for short-term business reasons or to work and study.

F-1 Students and Optional Practical Training (OPT)

President-elect Trump has called for more stringent vetting of foreign nationals seeking to enter on either temporary work or student visas, or those seeking green cards. In addition, he wants to suspend the issuance of visas from countries where there is no screening process until proven and effective vetting mechanisms are implemented, particularly from regions that export terrorism. Given this possible delay or suspension, it is key for foreigners seeking to work or study in the United States to apply for the F-1 student visa before the new administration is in place. Further, there is a strong possibility that the generous regulations extending OPT to students in the STEM (science, technology, engineering and mathematics) disciplines be repealed or scaled back considerably. This is due to the Trump administration’s call for new immigration controls that would boost wages and ensure open jobs are offered to Americans first. The STEM OPT program requires employers to participate in E-Verify, an internet-based system that compares information from an employee’s Form I-9 (Employment Eligibility Verification) to data from the U.S. Department of Homeland Security and Social Security Administration to confirm employment eligibility. President-elect Trump and his key immigration team advisors are proponents of E-Verify and support the program’s expansion to all employers. As such, STEM OPT may remain in effect for some time.

TN, E-3, and H-1B1 Visas – Free Trade Agreement Visas

President-elect Trump has indicated he would seek to renegotiate or withdraw from the North American Free Trade Agreement (NAFTA) and similar trade agreements, many of which include streamlined immigration provisions allowing professionals to work in the United States under visa classifications defined in the agreements. Employers should review their foreign workforce and gather requisite data to possibly convert TNs (Canadian or Mexican), E-3s (Australian) and H-1B1s (Singaporean or Chilean) to either an H-1B visa or commence the permanent residence (green card) process. It is unlikely that the renegotiation of, or withdrawal from, any of the trade agreements will occur immediately after President-elect Trump assumes office. Employers will have time to review their workforce, consult with their immigration lawyers, and take necessary action to maintain their foreign workforce with little to no impact on the business.

H-1B Specialty Occupation Visas

President-elect Trump supports immigrants who are skilled, have merit and will succeed in the United States, and would favor reform of the H-1B program to eliminate “cheap labor.” He may seek, through legislation, a more active recruitment process built into the existing H-1B regulations. He may pursue changing rules on H-1B-dependent employers (those employing 15 percent or more H-1B visa workers) and impose more stringent regulations on wages and salaries paid to H-1B employees, possibly increasing them to as much as $100,000. As part of his vision to protect the American worker, President-elect Trump may also conduct more audits of H-1B employers. Increases in enforcement and H-1B salaries may encourage employers to ship offshore the IT and engineering work currently performed under H-1Bs, which would be counter-productive. H-1B visa reform will, in all likelihood, make certain IT projects too expensive to remain in the United States. If there are no U.S. workers available to handle the projects, the work may be outsourced overseas, or the industry may be forced to automate, as the auto industry did. This is an excellent time for employers to review their H-1B and public access files and ensure all is in order, as more audits of H-1B employers are anticipated.

Deferred Action on Childhood Arrival (DACA)

While the 725,000 or so DACA registrants in the United States may not be affected immediately when President-elect Trump takes office, it seems certain that the executive order implementing DACA will be terminated, and those with employment authorization document (EAD) cards will not have an opportunity to renew their work permits, which would impact employers. It is a good time for employers to review their foreign workforce and I-9 records to review who has time-limited EAD cards, and be prepared for the possibility that some EAD cards will not be renewed if DACA is terminated. Revocation of this program will likely take some time, but preparation is key to minimizing the disruption of the employer’s workflow.

Travel to the United States: A Fully Operational Biometric Entry-Exit Visa Tracking System

The Trump administration will implement a biometric entry and exit system at all land, air and sea ports. This system is No. eight on the president-elect’s 10-Point Plan to Put America First. Statistics show that approximately half of the new illegal immigrants enter the United States on a valid visa and then overstay. President-elect Trump plans to combat that practice by strictly enforcing visa expiration dates. It remains to be seen how this priority will be implemented (by legislation or regulation), but strict oversight on visa expirations are anticipated, given the advisors President-elect Trump has enlisted to develop his administration’s immigration policy.

Increased Worksite Enforcement, Mandatory E-Verify and Visa Compliance

President-elect Trump has clearly stated that his top priority is to build a wall on the southern border and keep illegal immigration to a minimum by immediately removing those who enter illegally or detaining them until removed. He wants to end the existing “catch and release” program in existence today. Such enforcement-centric policies may result in tangential worksite initiatives by the U.S. Immigration and Customs (ICE) resulting in increased onsite inspections of I-9 forms. President-elect Trump’s promise to deport millions suggests that employers should be proactive and review existing I-9 and E-Verify compliance programs, or implement I-9 and visa-related compliance initiatives, to ensure they are ready for any possible ICE investigations or audits. Further, it is likely that mandatory E-Verify participation by all employers will be proposed. Employers should consider conducting voluntary internal audits now to limit or eliminate potential fines in the event of an ICE investigation or audit.

It is important to note that the president-elect cannot change the existing immigration laws found in the Immigration and Nationality Act (INA) unless Congress amends the INA, and President-elect Trump signs it. This will take a considerable amount of time and cooperation between Congress and the president. He can, however, change policies or executive orders, such as the DACA program, without the involvement of Congress.

Many of these changes are speculative and yet, it is clear that changes in the above visa classes will take effect in 2017. Carlton Fields’ immigration practice group will monitor these upcoming changes. Please contact Maria Mejia-Opaciuch at mmejia-opaciuch@carltonfields.com or 305.539.7319 with any questions on the anticipated changes or other immigration-related inquiries.

How to Choose the Right Entertainment Industry Work Visa

All Resources// HR & Employment// Immigration// International// Media & Entertainment

As smartphone recording capabilities and the popularity of social media help entertainers reach wider audiences around the world, entertainers who wish to come to the United States to perform are, paradoxically, finding it increasingly difficult to meet stringent U.S. immigration requirements for temporary work visas. This makes it more important than ever to review the varied U.S. work visas in place for foreign talent, including crew members, writers, producers, editors, directors, makeup artists and costumers. It is also critical to understand the visa-approval process of the United States Citizenship and Immigration Services, the government agency responsible for reviewing work visa petitions; and the visa-stamping procedures of the overseas U.S. consulates, which dictate when visas will be issued to foreign entertainers seeking to enter the United States to entertain.

First, note that U.S. immigration rules make distinctions based on the media industry professional’s work purpose for entering the United States and the nature of their employer’s business. So, as discussed below, it is important to review the activities to be performed in the United States and assess the applicant’s employer or sponsor before applying for the work visa.

I Visa for Foreign Media Representatives

Permissible Activities for I Visa Applicants

The I visa is a temporary, nonimmigrant visa for print, radio, Internet and television journalists coming to the United States solely to work on news-gathering processes, (i.e., news shoots, informational or educational documentaries) with no intention of remaining indefinitely in the United States. Members of foreign production teams essential to the foreign media function, such as photojournalists, reporters, editors, film or technical crew, directors, producers and presenters also qualify for the I visa. Those indirectly involved in the news gathering function, like proofreaders, librarians or set designers, do not qualify for the I visa.

Typically, the I visa applicant must be engaged to work for a media organization based in a foreign country. Reporting on sports events qualifies as a “news gathering” activity pursuant to the I visa rules. Independent journalists under contract with a foreign media outlet coming to the United States to work on informational or news activities qualify for the I visa, as do foreign journalists of an American network, newspaper or other media outlet coming to the United States to report on news for a foreign audience.

Additionally, accredited representatives of tourist bureaus that are controlled, operated or subsidized completely or partly by a foreign government who come to the United States to disseminate factual tourist information about that country qualify for an I visa. Employees or accredited representatives of foreign trade promotional missions are not engaged in news reporting functions and so are not qualified for an I visa.

Finally, freelance media workers with a credential issued by a professional journalism organization who also have a contract with that organization to report on news abroad qualify for an I visa. In addition, I visas are available to employees in the U.S. offices of organizations that distribute technical industrial information.

I visas are issued for as little as six months, or for as long as the foreign media outlet can provide evidence of the news project’s duration. I visas cannot be used to take up U.S. residency. Further, I visas are company-specific, and do not allow their holders to perform freelance work while in the United States.

Impermissible Activities for I Visa Applicants

The I visa should not be used for those entering the United States to produce, make or report on commercial or entertainment programming that includes reality entertainment shows, scripted or contrived programs, the filming of staged or recreated events or documentary dramas. Foreign nationals coming to film or produce events for advertising purposes cannot use the I visa. Quiz show production crews are not entitled to the I visa either. Producing artistic media content will not qualify as I visa work and as such, the I visa is unavailable to those engaged in such productions.

O and P Visas for Entertainers or Personnel Associated with Entertainers

The USCIS has several different nonimmigrant visas available to entertainers, production team members, and those considered “essential support” for film or television productions.

O Visa for Entertainers in the Television and Film Industry

U.S. immigration rules allow foreign nationals to come to the United States under an O-1 temporary nonimmigrant work visa if they do so to work in motion picture and television productions; can demonstrate a record of “extraordinary achievement;” have a U.S. employer or sponsor; and if the length of the artistic event (i.e., the film or television production) can be verified. To meet the standard of “extraordinary achievement” in film or television, the person must be outstanding or noted. Typically, the O-1 is issued to accomplished members of a production team, such as the executive producer, lead actor or director. The threshold is high, requiring the applicant to show evidence such as newspaper clippings, awards, major award nominations (e.g., an Emmy or Academy Award), and a work history of prominent productions, commercial success, high salaries and testimonials of their achievements.

An O-2 visa is available to those in motion picture or television production who come to the United States to accompany and assist the O-1, and who are integral parts of the O-1’s actual performance. The O-2 must have skills and experience with the O-1 that are not general in nature and that are critical to the production’s successful completion. Their continuing participation must be essential. U.S. immigration rules recognize that the O-2 is critical because of a pre-existing, long-standing working relationship or, as to the specific production, because significant production (including pre- and post- production work) will occur both inside and outside the United States. As such, O-2 visas are issued to such television or motion picture production crew members. O-2s need not show a supporting role, but must prove they are an essential team member.

Both the O-1 and O-2 must include an advisory opinion from the appropriate union representing either the O-1’s or O-2’s occupational peers and a management organization in the area of either the O-1’s or O-2’s field.

P Visa for Individual Entertainers or Entertainment Groups

The P visa is for internationally recognized nonimmigrants seeking to enter the United States to perform either individually or as part of an entertainment group. Like the O visa, it requires a showing of a U.S. employer or sponsor. Further, the P visa applicant requires a contract detailing the length of the performance or entertainment event. For example, an entertainment event could include an entire performance season. A group of related activities will also be considered an event. The P-1 visa is for performers. The P-2 visa is for individuals who provide essential support — those who are highly skilled, essential personnel; and an integral part of the P-1’s performance because their support services cannot be readily performed by a U.S. worker and are essential to the P-1’s successful performance of services.

The standard of proof is lower than the one used in the O-1 context. Internationally recognized means a high level of achievement in a field as evidenced by a degree of skill and recognition substantially above what is ordinarily encountered, to the extent such achievement is renowned, leading or well-known in more than one country.

All the visas discussed above allow the spouse and children under 21 to come to the United States as dependents of the principal visa holder. The dependents cannot work in the United States, but they are allowed to study.

All these visas require advance planning, sound contracts showing how long the applicants are needed in the United States, and significant patience to gather the evidence needed to meet the visas’ standards. This is especially true for the O and P visas. Also, note that having the O and P visa petitions approved by the USCIS in the United States, will not always guarantee that the O and P visas will be issued by the U.S. Consulate officers. For this reason, it is critical to understand the process, find a sponsor or employer, and file the O and P petitions early, before arriving in the United States on the performance or production start date. Four months ahead of the event is recommended. The I visa is the only visa that can be presented directly at the U.S. Consulate without having a petition approval issued by the USCIS in the United States. However, the I visa application must be complete with evidence noted above.

To ensure a timely and successful outcome, it is always wise to consult an immigration attorney experienced in working with these visa types.

Republished with permission by Law360 (subscription required).

Immigration Law for Startups: Best Practices, Prime Options, and Common Pitfalls

All Resources// Immigration// International

This article provides guidance to new or foreign companies that are entering the U.S. market and seeking to employ either foreign nationals already in the United States on non-working visas, or foreign nationals overseas who wish to enter the United States with a work visa. The discussion is meant to raise important issues, provide best practices, and explain how startups can avoid common pitfalls and meet key deadlines critical to hiring foreign nationals—and maintaining them in legal status. It also includes a brief discussion that aims to help startups remain compliant with the labyrinth of complex immigration rules.

Best Practices

…startups should have strong business plans with five- year staffing and revenue growth projections.

Startups must have evidence of their corporate existence and financial viability in order to seek temporary work visas, which allow foreign nationals to work and live in the United States. Once that evidence is readily available, startups should have strong business plans with five- year staffing and revenue growth projections. These business plans are required for the nonimmigrant visa petitions that must be filed with the appropriate U.S. immigration authorities, whether in the United States or at U.S. consulates overseas.

Startups seeking to hire foreign nationals should begin the interview process early to determine which of the various nonimmigrant (temporary) work visas would be best to seek from the U.S. immigration authorities. Nonimmigrant visas allow the foreign national to live and work in the United States for a fixed length of time. Although they do not lead to permanent residence (a “green card”), some nonimmigrant visas can be renewed indefinitely. It’s best to start the interview process four months before the foreign national’s anticipated start date at the company to provide a cushion. The U.S. immigration authorities will want to see a detailed job description of the position sought to be filled, its education and experience requirements, and the foreign national’s qualifications. Collecting education and experience documentation from the foreign national is a time-intensive process. For some types of work visas, it requires translations and educational evaluations of the documents. Work visa application processing times at the U.S. immigration offices vary from as short as 15 business days, if a premium processing fee is paid, to as long as five months with regular processing. Planning ahead and reviewing the start date is critical.

…authorities will want to see a detailed job description of the position sought to be filled, its education and experience requirements, and the foreign national’s qualifications.

Startups should understand that the U.S. immigration authorities are wary of new corporate entities. They should document as much as possible regarding the corporate existence, including operating licenses, corporate bank accounts, and signed and dated corporate leases.

Foreign-owned companies starting up in the United States are advised to have the business plans described above, showing corporate existence and financial viability, plus evidence of ownership of the foreign-owned and U.S. startup to meet certain visa requirements to transfer foreign personnel to the United States.

Startups should determine the length of time a foreign national will be needed and whether the employment will be short- or long-term as this may determine the type of nonimmigrant temporary work visa sought. Some short-term visas can be converted to long-term, indefinite visas. These are immigrant visas, commonly known as “green cards,” and permit the individual to remain in the United States as a permanent resident. Early planning and review of the position is critical for the startup seeking a foreign national to work in the United States.

Startups can take advantage of certain nonimmigrant visa options … in some cases without having to first apply through the U.S. immigration authorities…

Prime Options

Startups can take advantage of certain nonimmigrant visa options that can help them to hire foreign nationals expediently, cost-effectively and, in some cases, without having to first apply through the immigration authorities in the United States. The following temporary work visas require no application through the U.S. immigration authorities in the United States and can be presented either at the U.S. consulate overseas, or at the U.S./Canadian or U.S./Mexican border:

TN Visa for professionals coming to the United States pursuant to the NAFTA agreement. They can present their TN application at the U.S./Canadian border and be admitted for up to three years. Mexicans can present their TN application at the U.S. consulate in Mexico and will obtain a one-, two- or three-year TN visa stamp to enter the United States;
E-3 visa for Australian nationals coming to work as professionals. They can apply for the E-3 stamp at a U.S. consulate and enter to work in the United States;
H-1B1s for Singaporean or Chilean nationals coming to work as professionals pursuant to free trade agreements between the United States and Chile, and the United States and Singapore. They can apply for the H-1B1 visa at the U.S. consulate overseas and enter to work in the United States;
Canadian nationals can enter the United States as L-1 intracompany transferees by processing at the U.S./Canadian border, or at an international airport by processing directly at these ports of entry without a formal work visa petition approval issued by the U.S. immigration authorities; and
E-1 or E-2 treaty trader or investor visas can be processed directly by U.S. consulate officials overseas for certain nationalities without a formal work visa petition approval. Such work visa classifications are governed by rules. When used, they can save startups money, time, and effort.

Common Pitfalls for Startups

Startups often unknowingly hire foreign nationals in the United States to work for them under the B-1 business visa. This visa is not a temporary work visa and does not allow foreign nationals to work in the United States. Further, certain nationalities are allowed to enter the United States without a formal B-1 visa stamp. This visa waiver program is reserved solely for short-term business trips. It is not to be used to circumvent U.S. immigration work visas.

All employers in all states must complete and maintain a Form I-9 employment verification form for each employee hired after November 6, 1986…

Startups also often hire foreign nationals without completing the mandatory I-9 employment verification form. All employers in all states must complete and maintain a Form I-9 employment verification form for each employee hired after November 6, 1986, the date the Immigration Reform and Control Act of 1986 was enacted. This applies regardless of the startup’s size. Employers must complete the Form I-9 in a timely manner, usually within three days of hire; have the employee complete and sign the appropriate Form I-9 section (section 1); review the acceptable documents presented by the employee; and complete section 2 of the Form I-9. Employers cannot, in the process of completing the Form I-9 discriminate or retaliate by actions, remarks, threats, over-documenting or requesting specific documents. Employees must be given the list of acceptable documents, found on page nine of the form. As companies grow, it is critical to establish and maintain a formal I-9 policy and conduct regular internal I-9 audits to be compliant and avoid heavy monetary fines resulting from U.S. government audits.

Startups often fail to record the work visa expiration dates, fail to timely commence an extension process, or fail to convert to an immigrant visa far enough in advance. Failure to do timely extensions or processing of an immigrant visa (the “green card”) can lead to gaps of employment between the expiration date of the temporary w. ork visa and the approval of the extension or an effective date of the immigrant visa (the “green card”). Such gaps can lead to employees NOT being able to work for periods of time. Startups should use case management systems to track work visa dates, ensuring compliance and timely extensions. All nonimmigrant visas are valid for only limited periods of time, which vary from one to three years. Extensions should be commenced within four to six months of the expiration date. Determinations to proceed with a green card process should be made within four years of the expiration date of the nonimmigrant work visa.

As companies grow, it is critical to establish and maintain a formal I-9 policy…

Startups often lack written immigration policies that include provisions for hiring foreign nationals, an I-9 completion and maintenance policy, and an E-Verify policy. As your company (and workforce) grows, development and implementation of immigration policies and practices will facilitate compliance with applicable U.S. immigration laws and minimize exposure to serious civil and criminal penalties. A single employee can trigger liability for violation of I-9 violations.

Original published by JD Supra Perspectives.

7 Step Labor Law Roadmap for Companies Entering the U.S. Market

All Resources// HR & Employment// Immigration// International

Foreign companies and investors that enter the U.S. market will be governed by numerous state and federal labor and employment laws. When opening a business in the United States, it is therefore critical to work with experienced lawyers who can guide you through the following steps.

Step 1: Hiring and Recruitment

An employer may not discriminate against candidates based on their age, race, sex, national origin, disability, or other protected status under governing local, state, and federal laws. It is crucial to follow appropriate hiring practices to comply with the laws of the jurisdictions in which you operate—and to avoid potential litigation.

The Job Description

When advertising the position or posting it on your website, job search engine, social media, or elsewhere in writing, be specific about the job requirements and the skills and experience the applicant must possess.

Employment Applications and the Interview Process

Federal and state laws govern what can be asked on employment applications and in interviews. Generally, employers cannot ask about or seek to identify an applicant’s race; sex; age; disability; religion; national origin; marital status; union membership; HIV/AIDS, or sickle cell trait status. Notations on the employment application indicating any of these characteristics should be avoided, as should any questions regarding criminal history or convictions. Also, pose no medical questions or questions about prior workers’ compensation cases on an employment application or during an interview.

Adopt employment applications for all positions and use them uniformly. Keep the application simple, focused on education, employment history, and attestations regarding consent to conduct certain drug tests, background checks, credit checks (where permitted by state law), employment verification, and to seek employment references.

Depending on the company’s location, employers may see applicants who are foreign nationals with work time-limited permits who will inquire about visa sponsorship. Employers must decide whether to adopt a policy of sponsoring such applicants and to what extent. Employers should implement an immigration sponsorship policy that simply states the parameters of employment and sponsorship. Having such a policy will ensure hiring and retaining the most talented workforce and minimize liability if the employer is audited or litigation ensues.

Step 2: Offer Letters

Offer letters serve to document the employment relationship and can also be the basis for termination.

Short-form letters can be used for non-executive employees. These should include the following information about the position: job title; whether it is exempt or non-exempt; location; hours; pay and frequency of pay; start date; benefits, eligibility, and date of eligibility; contingency clauses; whether employment is at-will or may be terminated for-cause; and the time frame to accept the offer. The letter should be on employer company letterhead and executed by an authorized employee.

Offer letters for executives will be more detailed and can include non-compete provisions; severance language; bonus information; restrictive covenants; and provisions regarding confidentiality and trade secrets.

Employment arrangements regarding contract employees, remote employees, part time employees, or other unique situations should also be detailed in a written document spelling out the arrangement.

Step 3: Acceptance and I-9 Compliance

All employers in all states must complete and maintain a Form I-9 employment verification form for each employee hired after November 6, 1986, the date the Immigration Reform and Control Act of 1986 (IRCA) was enacted. Employers must complete the Form I-9 in a timely manner, usually within three days of hire; have the employee complete and sign the appropriate section, (Section 1); review the acceptable documents presented by the employee; and complete Section 2. Employers cannot, in the process of completing the Form I-9, discriminate or retaliate by actions, remarks, threats, over-documenting, or requesting specific documents. Employees must be given the list of acceptable documents found on the last page of the Form I-9. As companies grow, it is critical to establish and maintain a formal I-9 policy and conduct regular internal I-9 audits to be compliant and avoid heavy monetary fines resulting from U.S. government audits.

Step 4: Wage and Hour Laws

The vast majority of legal disputes faced by many small and emerging companies result from claims that employees were inadequately compensated for overtime work. Failure to properly classify and compensate employees may lead to significant legal problems. Federal minimum wage and hour standards are governed by the Fair Labor Standards Act (FLSA), which also governs overtime compensation for hours worked in excess of 40 per week; record-keeping requirements; and pay equality between men and women. Many states have state wage and hour statutes that set higher minimum wage standards or that contain special provisions for rest and meal breaks. In those states, the employer must follow the wage and hour laws that are more generous or favorable to the employee. Employers should also know they cannot avoid minimum wage or overtime requirements by merely calling an employee an “independent contractor,” labeling a position “exempt,” or paying the employee a salary. The FLSA (and emerging judicial decisions) look to several factors to determine whether an employee or a certain position (e.g., executive, administrative, professional) is properly classified as exempt.

Step 5: Employee Benefits and Incentive Competition

Since cash flow may be limited in the early days of a startup or small company, employers may offer other forms of incentive compensation to their executives and to attract talent. Examples may include restricted stocks, stock options, restricted stock units, or stock appreciation rights. Other types of compensation may include incentive bonus plans, severance benefits, health plans that are available under the 2014 health care reform law, and retirement benefits (e.g. a 401(k) plan). Any alternative compensation plan should be structured with the advice of an employee benefits expert, and detailed in the offer letter.

Step 6: Drafting and Maintaining Employment Policies

As your company and workforce grow, developing and implementing employment policies and practices will facilitate compliance with applicable employment laws and minimize workplace disputes. To benefit the employer and foster employee morale, clearly establish policies regarding vacation, sickness, Family Medical Leave Act (FMLA) rights, harassment, discrimination, and prohibited conduct and consequences. Take care, however, to avoid overly restrictive social media policies, or policies that afford greater protection to employees than the employment laws require. Update your policies regularly to ensure compliance with changing laws. Although employee manuals, policies or handbooks are not viewed as enforceable contracts in most states, it is good practice to clearly state so in the handbook or manual itself. Finally, the keys to ensuring that an employment manual is effective are consistent application and enforcement of its policies; and adequate, regular harassment and discrimination prevention training for employees at all levels including supervisors.

Step 7: Employee Evaluation and Discipline

Employee performance evaluations are critical to a company’s personnel practices. Honest and effective evaluations can gauge whether employees are performing in accordance with expectations, identify areas for improvement, and serve as valuable tools when an employment decision is questioned or challenged in court. Evaluations should be conducted at least annually. But if performance issues are identified, mid-year reviews are often advisable. If discipline or termination appears warranted, the reason for those decisions should be clearly documented. Termination further requires compliance with wage laws and, if applicable, proper notification for continuation of insurance and benefits pursuant to the Consolidated Omnibus Budget Reconciliation Act and the Employee Retirement Income Security Act.

Other Considerations

Depending on the company’s size, it may be subject to several state and federal employment laws. For example, the IRCA, the FLSA, the Uniformed Services Employment Reemployment Rights Act of 1994, and many state workers’ compensation laws apply regardless of the size of your workforce. A single employee can trigger liability for violation of these laws.

By contrast, other federal employment legislation requires a minimum number of employees before the statutes apply: Title VII of the Civil Rights Act of 1964, as amended (Title VII), and the Americans with Disabilities Act each require a minimum of 15 employees; the Age Discrimination in Employment Act (20 employees); the FMLA (50 employees); and the Worker Adjustment Retraining Notification Act (100 employees). Many local and state laws have lower workforce thresholds, so it is important to understand which laws apply to your company.

Small or startup companies should have written agreements with all service providers detailing the exact terms and conditions of the services (e.g., payroll, benefits administration, or other human resources services) to be provided to the company.

Using social media to recruit and hire is a developing legal area. So employers should be extremely cautious to avoid possible claims of discrimination or invasion of privacy, and to avoid gathering information not otherwise permissible in the hiring process.

Because startups may have intangible assets to protect, intellectual property concerns should be addressed early, ownership and value well-documented, and the company should ensure that employees sign confidentiality agreements before commencing employment.

Conclusion

When opening a company in the United States, it is best to use reputable and trustworthy counsel to help develop employment programs that will be compliant, efficient, and cost-effective. Opening a new company and becoming operational as quickly as possible is a difficult process. So, early counsel and guidance from experts in the area of labor and employment law is vital to address the considerations raised here, and to avoid expensive headaches.