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MANAGEMENT
MOXIE Nimble News
Immigration Overhaul: Progress on 5 Key Areas
The Senate bill, passed with bipartisan support, now goes to the House where it faces stiff opposition.
Below are five major issues addressed by the Senate bill:
- Temporary Visas -
Limits for temporary high skilled H-1B visas increased to 115,000 per year rising to a maximum of 180,000 from the current 65,000 per year. A new temporary "W" visa for low skilled workers of 20,000 visas in the first year, up to 75,000 annually and possibly higher depending on labor market. Separate "W" visa program for agricultural guest workers. New three year visa for entrepreneurs who start companies in the US.
- Interior Enforcement - Within five years, all employers must use a federal electronic verification system to determine that all newly hired employees, including American citizens, are authorized to work.
- Border Security - Spending increased by almost $40 billion over the next 10 years, adding 20,000 new Border Patrol personnel and 700 miles of fencing. An Exit System would be created to confirm the departure of foreigners at airports and seaports.
- Legalization - Path to citizenship would take minimum of 13 years for the 11 million undocumented immigrants. Passing background checks, and the paying of back taxes and fees could lead to provisional legal status. After 10 years application for green cards may be made. After three years with green cards, application for citizenship is allowed.
Faster track for young illegal immigrants who came as children and for agricultural workers.
- Legal Immigration - A new merit-based point system would replace the current system, making more family and employment-based visas available to reduce the current backlog. A new merit-based point system would be used for future immigration, based on education, current employment, job skills and family ties. Immediate immigration for spouses and children of green card holders would be allowed. Diversity visa lottery and the current green card category for siblings of citizens eliminated and married sons and daughters of citizens seeking green cards must be under 31 years old.
We will keep you updated as this bill makes its way through the House.
Health Care Law Delay - What does it mean for Massachusetts employers?
The latest snag in the federal health care law delays the mandate for employers of more than 50 employees (working 30 hours per week or more) to offer suitable health coverage or pay a fine. The new deadline is January 1, 2015. For Massachusetts employers, the obligation to provide coverage or make a fair share assessment was changed on July 1, 2013, from a threshold of 11 full time equivalent employees (FTE) to 21 FTEs. Massachusetts employers' obligations remain in force and are not affected by the federal law delay.
Recent Developments:
Misclassification/Independent Contractors:
Plaintiffs in the long running Fed Ex driver misclassification lawsuit have prevailed. The drivers alleged that they were improperly misclassified as independent contractors when they were in fact working as direct Fed Ex employees. The court found that Fed Ex could not prove that the service the drivers performed was outside the usual course of its business and that the drivers were not otherwise engaged as drivers independently of Fed Ex. - two out of three prongs of the Massachusetts independent contractor law.
Interest rate on verdicts unreasonable:
Massachusetts has an unusually high 12 percent interest rate on plaintiffs' damages - which adds up quickly. The defense bar has raised the issue in recent cases and urges all members to do so. The current rate was established in 1982 and reflects the times of higher Treasury yield.
Sales reps barred from suing for overtime pay
Where plaintiffs - four months after their former employer instituted a related action against them in state court for breaching a noncompetition agreement - filed a complaint in federal court alleging that they are owed overtime pay, sales commissions and bonuses, each of the plaintiffs' claims is precluded either by the doctrine of collateral estoppel or based on the Massachusetts state-court rule regarding compulsory counterclaims. The plaintiff sales reps failed to raise the overtime issue in the state court action and were therefore stopped from doing so in the federal court case. Brennan, et al. v. Sentient Jet, LLC (Lawyers Weekly No. 02-234-13) (15 pages) (Sorokin, Ch. U.S.M.J.) (Civil No. 12-cv-11519-LTS) (May 21, 2013).
NY Workers can sue Mass employer to enforce Mass wage laws, including independent contractor provision
Workers living and working in NY for a Massachusetts based company may bring an action in a Massachusetts court to enforce certain Massachusetts independent contractor, wage, and overtime pay statutes. Insofar as the written contract between the parties contains an enforceable clause requiring both that actions be brought in Massachusetts and that the "Contract and all rights and obligations of the parties" be determined under Massachusetts law, and where application of Massachusetts law is not contrary to a fundamental policy of the jurisdiction where the individuals live and work, the employer motion to dismiss failed. Taylor, et al. v. Eastern Connection Operating, Inc. (Lawyers Weekly No. 10-088-13)
Failure to compensate for unused vacation time
Where an employee did not receive vacation pay owed to him in a timely manner after separation, the court found against the employer, dismissing the defense of absence of work and the mailbox rule that the payment was sent by a date certain. Under Massachusetts law, employees discharged for any reason must be paid their final check for time owed on the employee's last day of work. Moreover, employees cannot be paid wages outside the time limits proscribed by law even if they are no longer employed. Packard v. Killeen Machine Tool Company, Inc., et al. (Lawyers Weekly No. 16-002-12) (1 page) (Thomas, J.) (Clinton District Court) (C.A. Nos. 1268CV0010 and 1262CV1067) (Oct. 28, 2012).
As always, you can contact us if you have any questions. We can help. 508-548-4888 or info@foleylawpractice.com
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