Timing Is Everything: NLRB Officially Adopts New Rules on "Quickie" Elections

When it comes to union elections: time is of the essence. Unfortunately now, there’s not going to be much of it.

Yesterday—only ten calendar days away from the end-of-December deadline—the NLRB raced to adopt organized labor’s controversial election rules. The new rules will be published into the Federal Register today, and are due to take effect on April 30, 2012.

Unfortunately for employers, the new rules will cut the average election time down substantially—shortening the time period between when the employee election is requested and when the actual election takes place.

How will this hurt? It will give employers much less time to react to union organizing efforts; thereby, making it easier for the union to secure its footing in your workplace.

Four Quick Tips for Employers:

1. Communication Is Key: Establish Dialogue with Employees

Employers should, in lawful messages, educate employees. Make sure they know their right to elect a union or remain union-free. Explain the positive aspects of working for your organization and the disadvantages of becoming unionized (dues, strikes, assessments, etc.). Also, compare the wages and benefits of union competitors because often, union wages are lower or the same as what a non-union company offers. Not to mention the fact that non-union workers save on dues. These are points that workers will appreciate.

2. Evaluate Employee Satisfaction

Festering workplace issues and unhappy employees create a fertile climate for unions. Engage your workers in an objective workplace audit. Zero in on their views of management’s responsiveness, compensation levels and workplace safety. Employers need to understand their workforce if they are to maintain a union-free workplace. Do not let workplace issues simmer.

3. Engage a Law Firm or Labor Consultant Now (and Pay Attention to Cultural Factors!)

With the new “quickie” election, engaging a law firm or labor consultant cannot wait. A law firm or consultant, with a successful labor background, can get you back to where you need to be with your workforce. The attorney or consultant will establish lawful communications and understand the intricacies involved when pro-union inclinations have already seeped in. And do not forget: Pay attention to cultural factors!

With the ever-growing Hispanic workforce population, as well as other diverse cultures within today’s workforce—be mindful of culture. When employers are not sensitive to their employees’ culture(s), communication efforts get lost in translation, and unions are often misperceived due to legal differences between countries. An understanding of immigration laws is also important. Engage a law firm or consultant with cultural competency and understanding of immigration laws.

4. Analyze Policies

Certain employer policies can help prevent the circumstances which typically lead to unionization. To be effective, however, policies must be in place before any organizing activity takes place. Such policies include open-door policies, visitors at work, translations for non-native English employees, solicitation of fellow employee policies, dispute and problem-solving options and/or distribution of literature policies.

Jacob M. Monty is the founding partner of Monty & Ramirez LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.

Contact information:
Email: jmonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

Supreme Court Takes on Arizona Immigration Law

The U.S. Supreme Court announced on December 12, 2011 that it would decide whether Arizona's "heightened" immigration law will be upheld.  If you recall, Arizona enacted anti-immigration law provisions in 2010 that:

(1) required state law enforcement officials determine the immigration status of anyone they stop or arrest if officials have reason to believe that the individual might be an illegal immigrant;

(2) required that the immigration status of people who are arrested be determined before they are released;

(3)  made it a crime under state law for immigrants to fail to register under a federal law;

(4) made it illegal immigrants to work or to try find work; and 

(5) allowed the police to arrest people without warrants if they have probable cause to believe that they have done things that would make them deportable under federal law. 

Although President Obama's Administration filed suit challenging these laws and the Ninth Circuit in California ultimately blocked these provisions, the U.S. Supreme Court will review Arizona's immigration law and make their own decision about whether such a law  is permissible. If the U.S. Supreme Court upholds Arizona's immigration law (or any of its provisions), I foresee other conservative Republican states following Arizona's lead and implementing similar heightened immigration laws. 

Daniel N. Ramirez is a named partner at Monty & Ramirez LLP.  He is also board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Daniel's Contact Information:

Email: dramirez@montyramirezlaw.com

Telephone: 281.493.5529

Website: http://www.montyramirezlaw.com

New Higher Fees for Some Consular Services

On December 6, 2011, the Department of State (“DOS”) adopted as final a new schedule of fees for consular services. Specifically, the DOS is increasing fees for consular services for nonimmigrant visas and border crossing cards.

The final rule establishes that nonimmigrant visa and border crossing card (“BCC”) application processing fees will be increased from $131 to $140. The new rule also provides for new tiers of application fees for certain categories of petition-based nonimmigrant visas and treaty trader visas. For example, H, L, O, P, Q, and R visas will be processed for $150.00. E visas will now be processed for $390.00. K visas will now be processed for $350.00. Finally, the rule adopts the increase in BCC fees charged to Mexican citizens under 15 from $13.00 to $14.00 so long as he or she applies in Mexico and their parent or guardian already possesses a BCC or is applying for one. The DOS has stated that the purpose of the increase is to ensure that sufficient resources are available to meet the cost of providing consular services.

The new fees are effective as of Dec. 6, 2011.

Sarah D. Monty is a partner and the lead immigration attorney for the immigration section at Monty & Ramirez LLP.

Contact Information:
Email: smonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

DHS Expects “IMAGE Certified” Program to Become Industry Standard

United States Immigration and Customs Enforcement announced the introduction of a new business certification program aimed at developing a more secure workforce for employers. The ICE Mutual Agreement Between Government and Employers (IMAGE) offers employers a formal membership certification program that plans to reduce unlawful hiring practices and the use of fraudulent identification documents.

To participate in IMAGE, ICE announced an employer must meet the following requirements:

• Complete the IMAGE Application Form


• Enroll in the E-Verify program within 60 days


• Establish a written hiring and employment eligibility verification policy that includes an internal Form I-9 audits at least once a year


• Submit to a Form I-9 Inspection


• Review and sign an official IMAGE partnership agreement with ICE

Enrolled program participants who maintain the Department of Homeland Security’s best practices for maintaining legal workforces will be “IMAGE Certified,” a standard DHS expects to become an industry standard.
However, employers can also incorporate ICE’s Best Practices without enrolling in IMAGE with the following:

• Use the Social Security Number Verification Service (SSNVS) for wage reporting purposes. Make a good faith effort to correct and verify the names and Social Security numbers of the current workforce and work with employees to resolve any discrepancies. Remember that SSNVS is for tax purposes only and does not verify an immigrant’s employment eligibility.


• Establish a written hiring and employment eligibility verification policy.


• Establish an internal compliance and training program related to the hiring and employment verification process, including completion of Form I-9, how to detect fraudulent use of documents in the verification process, and how to use E-Verify and SSNVS.


• Require the Form I-9 and E-Verify process to be conducted only by individuals who have received appropriate training and include a secondary review as part of each employee's verification to minimize the potential for a single individual to subvert the process.


• Arrange for annual Form I-9 audits by an external auditing firm or a trained employee not otherwise involved in the Form I-9 process.


• Ensure that contractors and/or subcontractors establish procedures to comply with employment eligibility verification requirements.


• Establish a protocol for responding to letters or other information received from federal and state government agencies indicating that there is a discrepancy between the agency's information and the information provided by the employer or employee (for example, "no match" letters received from the Social Security Administration) and provide employees with an opportunity to make a good faith effort to resolve the discrepancy when it is not due to employer error.


• Establish a tip line mechanism (inbox, email, etc.) for employees to report activity relating to the employment of unauthorized workers, and a protocol for responding to credible employee tips.


• Establish and maintain appropriate policies, practices and safeguards to ensure that authorized workers are not treated differently with respect to hiring, firing, or recruitment or referral for a fee or during the Form I-9, E-Verify or SSNVS processes because of citizenship status or national origin.


• Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires.

If you have any questions regarding the IMAGE program, ICE’s Best Employment Practices or to schedule an I-9 audit, please contact your Monty & Ramirez Labor & Employment counsel.

Jacob M. Monty is the founding and managing partner of Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.

Contact Information:
Email: jmonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

WSJ's Letters to the Editor: Gingrich and Getting Real About Immgiration

Published in The Wall Street Journal's Letters to the Editor - Friday, December 9, 2011.

Regarding your editorial "To Err Is 'Humane'" (Nov. 25): If Newt Gingrich actually believes that the GOP mob response to our illegal immigration problem, which is currently "deport them all," is not the answer, and if he is ready to have an adult conversation about immigration and is prepared to ruffle the feathers of many in his party just by suggesting that deporting 12 million people is not the only answer, then maybe all hope is not dead.

I want to hear more from any candidate who is ready to take an unpopular stance in order to come up with a practical plan to help create enforceable laws and help propose a sensible, equitable plan for dealing with 12 million undocumented individuals, many of whom are part of American families.

Sarah Monty

Houston

Sarah D. Monty is a partner and the lead immigration attorney for the immigration section at Monty & Ramirez LLP.

Contact Information:
Email: smonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

USCIS Announces Consideration of Bundle L-1 Petitions

The United States Citizenship and Immigration Services (USCIS) announced to its stakeholders last month that it will begin considering bundle L-1 petitions. In particular, USCIS will consider a bundle of more than one L-1B petition where the specialized knowledge employees will be performing the specialized knowledge duties on the same project at the same location. L-1A managers who would be managing the specialized knowledge employees could also be considered in the bundle. In addition, qualifying dependents will also considered in such a bundle. However, it is important to note that each petition in the bundle will be considered on its own merits. If you have any questions to how your business can bundle their L-1 petitions for submission, please contact your Monty & Ramirez immigration counsel.

Sarah D. Monty is a partner and the lead immigration attorney for the immigration section at Monty & Ramirez LLP.

Contact Information:
Email: smonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/