HR Compliance Questions of the Week

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H-1B Versus At-Will Employment

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Question:

We’re considering hiring an individual who needs sponsorship to work in the U.S. Do we need to be concerned that sponsoring an employee will alter the “at will” employment agreement?

Answer:

We asked immigration expert Christopher M. Pogue, Esq. with the Hammond Law Group, LLC to assist us with this question:

The holding in the case below re-affirms that sponsoring an H-1B employee alone does not change the nature of an employment agreement that is otherwise considered “at will.” The bottom line is that employer’s are not tying themselves to foreign national workers they employ simply by sponsoring the foreign national’s H-1B work visa.

On January 23, 2012, the United States Court of Appeals for the Third Circuit issued a decision in Edwards v. Geisinger Clinic. In this case, Dr. Philip Edwards, a licensed physician from the United Kingdom, argued that the at-will employment clause in his employment agreement with Geisinger Clinic was not valid. Instead, he stated that this contract guaranteed that he would remain employed by the Geisinger Clinic for at least three years because this was the time requested by the Geisinger Clinic when it petitioned for his H-1B. The Third Circuit rejected this argument. It noted that “sponsorship of an H-1B visa alone does not imply that the employer-sponsor has guaranteed employment for the visa’s duration.” Thus, an organization that sponsors an employee for an H-1B does not have a duty to employ the beneficiary throughout the duration of the H-1B validity period. Dr. Edwards’ other arguments also failed and the Third Circuit dismissed this appeal. The immigration effects of having an at-will employment agreement versus an express employment agreement can be crucial.

Our thanks to Christopher for providing a succinct response.

Don’t let immigration law worries keep you from hiring the most qualified individuals for your company. Sponsoring a foreign national worker can be easy with the right guidance. Let Strategic HR help you navigate the employment law minefield. Visit our Compliance page for more information on how we can assist you with Human Resource compliance issues.

 

Clark Schaefer Strategic HR's wheel of HR Services, including HR Strategy, Recruitment, Training & Development, Benefits & Compensation, Communications, Employee Relations, Recordkeeping, and Health, Safety & Security

Return To Work / Fit for Duty

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Question:

We have an employee out on family medical leave (FMLA) for a serious health condition. If he provides medical certification from his physician that he can return to work with no limitations, can we require the employee to submit to further examination to see if he is fit for duty under the ADA? The employee is not claiming any disability and has requested no consideration under ADA, but we believe he might be unable to perform the job duties.

Answer:

Although the employee has provided medical certification that he is fit to return to work with no limitations, employers can request 2nd and 3rd opinions on FMLA issues.  Generally, we recommend that employers require everyone returning from FMLA to have an employer paid fit for duty physical by occupational health. To accomplish this, you would provide a job description to the physician and they physician reviews the employee based on the job requirements. From there you could pursue the ADA issue if necessary, but don’t be premature since no disability has been claimed yet.

FMLA, the ADAAA and other labor laws can be difficult to understand, let alone enforce. That’s where Strategic HR has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

Clark Schaefer Strategic HR's wheel of HR Services, including HR Strategy, Recruitment, Training & Development, Benefits & Compensation, Communications, Employee Relations, Recordkeeping, and Health, Safety & Security

H-1B Termination

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Question:

What is an employer’s obligation when terminating an H-1B employee?

Answer:

Terminating an H-1B employee doesn’t have to be hard as long as you follow the rules.  An interesting case came out this year on this very topic. It was in regards to a company that sponsored an H-1B professional. The petition was approved, but the company chose not to hire the foreign worker after all and terminated him. Unfortunately the employer did not offer to pay for the employee’s travel home. The foreign national paid their own way home and left the country.

Two years later USCIS learned of the termination and canceled the H-1B. USCIS then found the company liable for back wages for the entire period, despite the fact that the employee had found another job.

Had the original company:

  1. Provided written notice to the foreign national of termination,
  2. Provided written notice to USCIS of the termination as soon as possible after the termination stating the date of termination, and
  3. Provided a letter of termination to the foreign national (preferably to sign) offering to pay for the cheapest flight back to the foreign national’s home country within a reasonable amount of time…

The company would have been on the hook for nothing if they had provided these things (instead of two years worth of wages).

All three elements must be met in order for the employer to get off the hook for back wages.  Just as a point of clarification, in point 3, an employer’s obligation is to pay for a flight for the foreign national employee within a “reasonable” amount off-time, not necessarily the next flight out to their home country. This will allow the employer to save money on the ticket and the foreign national time to pack and settle issues such as lease agreements or car payments.

An important side note is that the offer of payment for travel does not extend to the family of the employee. Also, the offer of travel expenses need not be accepted by the foreign national. Therefore it is best to have them sign a letter of termination that notes whether the foreign national accepts or rejects the offer to pay for travel. This is the safest course given this decision.

Thank you to Christopher Pogue with Hammond Law Group for this response.  This advice is intended for general information purposes, and should not be relied upon in individual cases. Please contact attorney Christopher Pogue with the Hammond Law Group at (513) 549-4420 or cmp@hammondlawgroup.com for legal analysis of specific situations.

NOTE:  There is no charge for an initial consultation with Christopher Pogue if you reference that you were referred by Strategic HR

Strategic HR knows that keeping abreast of HR Compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues, such as our HR Audit which helps identify trouble spots in your HR function.