Tag Archive for: Electronic Posting

Cora-Ann Pestaina

LCA Posting Requirements at Home During the COVID-19 Pandemic: Do I Post on the Refrigerator or Bathroom Mirror?

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“The LCA is to an H-1B worker like a leash is to a dog.” (Cyrus Mehta and Myriam Jaidi, The LCA in the Age of Telecommuting). In the midst of the global pandemic that is COVID-19, these words have never seemed truer.  Across the US, employers of H-1B workers are understandably very concerned about how to handle forced changes in the employment of their H-1B workers. Employers have had to make the difficult decisions such as to shut down completely, lay off employees, lower salaries, reduce employees’ hours of work, place employees on furlough or have them work from home. In last week’s blog, FAQ on Changes in Salary and Other Working Conditions for H-1B Workers During the COVID-19 Crisis, Cyrus Mehta provided a list of frequently asked questions (FAQ) seeking to provide some guidance to US employers. But one issue keeps on rearing its ugly head, how exactly can an employer ensure compliance with the Labor Condition Application (LCA) posting requirements when the H-1B worker is forced to work from a worksite (such as his/her home) that was not intended at the time the LCA was filed?

As background, the LCA ensures that notice is provided to US workers about the fact that an H-1B worker is being sought, the occupational classification, the wages offered, the period of employment, locations at which the H-1B worker will be employed, and that the LCA and accompanying documents are available for public inspection. See 20 CFR § 655.734. The notice must be posted at the “place of employment”, which means the worksite or physical location where the work actually is performed by the H–1B, H–1B1, or E–3 nonimmigrant. See 20 CFR § 655.715. So one’s home in the age of virtual cloud-based desktops and Zoom video can conceivably constitute “place of employment.”

As explained in the FAQ, if the H-1B worker relocates to the home within the area of commuting distance from the original workplace, a new LCA need not be obtained, but notice must still be given at the new place of employment. If the H-1B worker relocates to a home outside the area of intended employment, a new LCA has to be obtained and the employer must file an amended petition. “Area of intended employment” means the area within normal commuting distance of the place (address) of employment where the H–1B nonimmigrant is or will be employed. See 20 CFR §655.715.

Employers have run into issues due to the fact that employees are hesitant to post LCAs at their home. They are understandably resistant to the idea of broadcasting their yearly salary to everyone currently sheltering in place due to COVID-19 (e.g. in-laws or au pairs) and they may also be unable to even print the LCA at home due to lack of a printer. There is constant pushback from employers and pleas for an alternative. Unfortunately, the Department of Labor (DOL) has not set forth any guidance upon which the employer can confidently rely. In the above referenced blog, The LCA in the Age of Telecommuting, the authors discussed the fact that however absurd it may sound, it might still be advisable to file an LCA for the worker who telecommutes (if the home location was not contemplated when the LCA was filed), and have the worker post the LCA in two conspicuous locations in his or her home or the location from which he or she is telecommuting. In the alternative, the LCA notice provision may be satisfied by an electronic posting directed to employees in the relevant occupation classification. Pursuant to 20 CFR 655.734(a)(ii)(B), such electronic posting may be accomplished:

by any means [the employer] ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its “home page” or “electronic bulletin board” to employees who have, as a practical matter, direct access to these resources; or through e-mail or an actively circulated electronic message such as the employer’s newsletter. Where affected employees at the place of employment are not on the “intranet” which provides direct access to the home page or other electronic site but do have computer access readily available, the employer may provide notice to such workers by direct electronic communication such as e-mail (i.e., a single, personal e-mail message to each such employee) or by arranging to have the notice appear for 10 days on an intranet which includes the affected employees (e.g., contractor arranges to have notice on customer’s intranet accessible to affected employees).

Electronic posting is not foolproof. The rules governing electronic posting do not make clear who has to be notified – all employees everywhere and anywhere who fall within the same “occupational classification” (how narrowly or broadly should that be interpreted?) or only those in the “area of intended employment.” But, on how to effectuate a compliant electronic notification, see Cyrus Mehta’s blog, “Nuts and Bolts of Complying with the H-1B Notice Requirements”. An employer can post notice on its own website or on a web portal of an LCA hosting service, but must still inform affected workers of the existence of this web posting through notification via e-mail, the company intranet, through Slack channels or by providing hard copy notification of the existence of the notice on the website.

Then, in the minutes of an October 13, 2017 meeting between the American Immigration Lawyers Association (AILA) and the DOL Wage and Hour Division (WHD) there was this question and answer:

10. Many H-1B workers are now working remotely from their homes, instead of the employer’s office. If the employer has an LCA for its office but then will allow the H-1B worker to work remotely from home in a geographic area of employment that is not covered by the LCA, is the employer required to file a new LCA prior to the H-1B worker being allowed to work from home (assuming that the short-term placement option does not apply)? Is an employer required to complete the LCA notifications for an H-1B worker who will be working from home? If so, how/where should these notifications be posted at the H-1B employee’s home?

WHD Response: WHD does not expect employees to post at their houses. If the worker will be working at HQ and at home, the employer should post at HQ. Unless one of the short-term placement exceptions apply, the employer will need to file a new LCA for the employee’s home location if the employee will be working at a home location that is not within normal commuting distance of the location on the existing LCA covering the employee.

That unclear response provided no comfort that there would be no future penalty for failing to post an LCA at an employee’s home during the COVID-19 pandemic.

Most recently, on March 20, 2020 the DOL’s Office of Foreign Labor Certification answered FAQs that addressed COVID-19 impacts to OFLC operations and employers. The following question and answer was included:

4. I am an employer with an approved Labor Condition Application (LCA). Due to the impact of the COVID-19 pandemic, I may need to move workers on an H-1B, H-1B1, and/or E-3 visa to worksite locations unintended at the time I submitted the LCA for processing by OFLC. Do I need to file a new LCA if the worksites are located in the same area of intended employment? If not, what are my notice obligations for moving the workers to the new worksite locations?

If an employer’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See 20 CFR 655.734. Therefore, provided there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA, employers do not need to file a new LCA. Employers with an approved LCA may move workers to other worksite locations, which were unintended at the time of filing the LCA, without needing to file a new LCA, provided that the worksite locations are within the same area of intended employment covered by the approved LCA. Under 20 CFR 655.734(a)(2), the employer must provide either electronic or hard-copy notice at those worksite locations meeting the content requirements at 20 CFR 655.734(a)(1) and for 10 calendar days total, unless direct notice is provided, such as an email notice. It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended petition with USCIS. Notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E3 visa employed under the approved LCA begins work at the new worksite locations. Because OFLC acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations. Employers with an approved LCA may also move H-1B workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions. As required for all short-term placements, the employer’s placement must meet the requirements of 20 CFR 655.735. The short-term placement provisions only apply to H-1B workers.

Requiring the H-1B worker to post at home makes no sense as there are no other workers in that home. Some of our esteemed colleagues believe that since the H-1B worker is the only worker at the home location, e-mailing the LCA notification to that worker, without requiring a posting in two ridiculous conspicuous locations – such as one on the refrigerator and the other on the bathroom mirror – would be the most appropriate way to handle it.

At the end of the day, the lack of various concessions in the midst of a global pandemic does nothing to ease fears that employers who fail (with good reason) to properly post the LCA for their H-1B workers could be penalized following a DOL audit. Knowing the various issues employers face during the pandemic, will the chances of an audit actually increase once everyone is able to go back to work? Will the DOL seize the opportunity to say “gotcha?” It remains to be seen and of course, the hope is that any DOL auditor will exercise discretion and not impose any penalty against an employer with a history of compliance. But, at this point, it is still a significant risk. Unless and until the DOL says otherwise, the refrigerator and the bathroom mirror may have to come into play.

 

 

 

Cyrus Mehta

The Nuts and Bolts of Complying with the H-1B Notice Requirements

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A US employer has to meet several requirements when filing an H-1B visa petition on behalf of the foreign national employee. One important requirement is for the employer to notify affected US workers regarding its intent to hire a foreign worker in H-1B nonimmigrant status. The notification requirement is considered to be an important protection for US workers as it informs them of the terms of the employment of the nonimmigrant H-1B worker, including the wage being offered, and the right of the US worker to examine documents justifying the wage, as well as the ability of the US worker to file complaints if they believe that violations have occurred.

The Wage and Hour Division of the Department of Labor has issued useful guidance regarding H-1B notice requirements by electronic posting in a Field Assistance Bulletin dated March 15, 2019 (FAB).  The WHD has seen a rise in the use of electronic notification by employers who file H-1B petitions. Employers have the option to notify US workers either through a hard copy notice or through electronic means. In the case of large employers, especially consulting companies who place thousands of H-1B workers at third party worksites of their clients, they have been using their own public website to meet the notification obligation. The FAB clarifies that use of a public website is permissible provided “all affected workers, including those employed by a third party, have access to, and are aware of, the electronic notification.”

212(n)(1)(C) of the Immigration and Nationality Act (INA) provides the legal basis for employers to provide notification to affected US workers of its intent to hire H-1B nonimmigrant workers. This notification obligation is triggered prior to the employer filing the Labor Condition Application (LCA). It is only after the LCA is certified that an employer may file the Form I-129 petition to classify the foreign worker for an H-1B visa or H-1B status. The DOL is required to certify the LCA within 7 days unless the information provided therein is inaccurate or incomplete. The notice must be given on or within 30 days before the date the LCA is filed with the DOL. It is important to first post and then electronically file the LCA in order to ensure perfect compliance.

20 CFR 655.734 provides further guidance on the employer’s notification obligation. Employers may comply with their notification obligation by posting either a hard copy notice or by electronic notification. Where there is a collective bargaining representative for the occupational classification in which H-1B nonimmigrants will be employed, the employer must provide the notice to the collective bargaining representative on or 30 days before the date the LCA is filed with the DOL.

Regarding who affected workers are, the FAB states:

“Affected workers are those at the same place of employment and in the same occupational classification in which H-1B workers will be or are employed. See 65 FR 80110; 80161. Affected workers need not be employed by the H-1B petitioner to qualify as such: the H-1B petitioner’s notification responsibilities extend to all affected employees, regardless of whether they are employed by the H-1B petitioner or by a third party company. Id.”

The FAB then goes onto discuss hard copy and electronic notification requirements.

Hard Copy Posting Requirements

These requirements are set forth in 20 CFR 655.734(a)(1)(ii). The petitioning employer must post notice in at least two conspicuous places at the place of employment so that affected workers can easily see and read the posted notices. The notice shall indicate that H-1B nonimmigrants are sought; the number of such nonimmigrants the employer is seeking; the occupational classification; the wages offered; the period of employment; the locations at which the H-1B nonimmigrant will be employed, and that the LCA is available for public inspection at the employer’s principal place of business or at the worksite. The notice shall also include the following statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”

There are additional requirements for H-1B dependent employers or willful violators who are not using exempt workers, which are also set forth in the regulation.

A copy of the LCA that is posted at two conspicuous locations also fulfills the notice requirement.  Note, though, that the most recent version of ETA 9035 requires the employer to indicate the business name and address of the entity, if the H-1B worker will be assigned to a third party site. Thus, the information contained in the LCA, if it is used to fulfill the notice requirement, goes beyond what is required in the regulation. 20 CFR 655.734(a)(1)(ii) only requires notification of the “location(s) at which the H-1B nonimmigrants will be employed” and not the business name and address of the entity.

The FAB states that an employer will not be in compliance of its notice obligation if it posts the “hard copy notification, for example, in a custodial closet or little visited basement.” 20 CFR 655.734(a)(1)(ii)(A)(2) suggests that appropriate locations for posting could be in immediate proximity to wage and hour notices or occupational safety and health notices. Still, if the intention of the notice is for workers in the same occupational classification to see them, then the notices could conceivably be posted conspicuously in the place where say software engineers in a large company congregate, such as in their pantry or recreational area. It would, however,  be prudent for the employer to post the hard copy in the vicinity of other notices that the employer is obligated to post under law as that would maximize the ability of affected workers to read it.

The employer who intends to employ H-1B workers at third party worksites also has an obligation to post at the third party site even if that place is not owned by the petitioner. The FAB suggests that the hard copy posting must be placed in a location available to all affected employees. “For example, if the H-1B petitioner posts at a third-party worksite, but in a physical location accessible only to its own employees (such as a private employee lounge or office) affected workers employed by the third-party have not been notified and the employer has not complied with this provision.”

There have been instances of entities that receive H-1B workers who do not cooperate with the posting requirement. The H-1B petitioner, unfortunately, is still liable for violating the notification requirement even if the third party entity refuses to post the notice. See Administrator v. Sirsal, Inc. and Vijay Gunturu, 11-LCA-1 (ALJ July 27, 2012).  There is no legal basis for penalizing the third party that refuses to cooperate.  Some petitioners in a good faith attempt to comply, when the third party refuses to post,  have the H-1B worker post the notice on his or her cubicle, but this  attempt, even if sincere,  may still not be in compliance if the posting is not visible to all affected workers in the occupational classification at the third party worksite.

The notice shall be posted on or within 30 days before the date LCA is filed, and shall remain posted for a total of 10 days.

Electronic Notification

In cases where the third party entity refuses to cooperate, electronic notification may be a way for the employer to be in compliance, especially those who place large number of H-1B workers at many worksites throughout the country. Electronic notification is as effective as hard copy notification under 20 CFR 655.734(a)(1)(ii)(B). The employer, according to the FAB, “must make the notification readily available, as a practical matter, to all affected employees.” Thus, the affected worker must be capable of accessing the electronic notification. The employer may e mail or actively circulate electronic messages such as through an employer newsletter.

Such notification shall be given on or within 30 days before the date the LCA is filed, and shall be available to the affected employees for a total of 10 days, except that if employees are provided individual, direct notice (as by e-mail), notification only need to be given once during the required time period. The notification must contain the same language as a hard copy posting.

With respect to notification to affected workers employed at a third party worksite, when the petitioner places its employees there, electronic notification must be given to “both employees of the H-1B petitioner and employees of another person or entity which owns or operates the place of employment.” 20 CFR 655.734(a)(ii)(B). The FAB still warns that some electronic resources used by H-1B petitioners may not be accessible to affected workers at a third party. Even if employees of the third party site can visit the electronic resource, “if they do not know to visit the electronic resource, the notification is not readily accessible, to affected workers employed by the third party.” And if affected employees have access to the electronic notice, but they cannot determine which notice is applicable to their worksite, the notice is insufficient and the employer will not be in compliance.

Electronic Notification on Public Websites

H-1B petitioners may provide electronic notification on their public websites, so long as the affected workers at the third-party worksite are aware of the notice and are able to determine which notice is applicable to their worksite. A number of large employers post the LCAs on their website and indicate the work locations.

Take for example PwC. PwC’s website has a link to Careers. From the Careers page, one scrolls down to Labor Condition Applications, which in turn takes you to a link to the work location such as San Antonio, TX, which opens up the actual LCA for that location.

Similarly, with respect to Cognizant, one has to go to Careers, and then scroll quite a way down to LCA Notices, which then links to a location, which further links to the LCA notice rather than the actual LCA.

Both PwC and Cognizant are compliant relating to a website posting as the affected workers are able to determine which electronic notice applies to their worksite. However, the FAB indicates that employers may need to do more than just posting the links with the work locations on their websites, and may have to make affected workers aware that the petitioner has posted on its website. This is not to suggest that these companies are not taking additional steps to notify affected workers, but the point being made is that posting the worksite by any employer on its public website may not be enough.  The FAB suggests posting a link to the electronic notice for a particular third-party employer’s intranet site or emailing the link to all affected employees at that worksite. The FAB also suggests that the H-1B petitioner complies, after electronic notification, by posting a hard copy message in a conspicuous site or directing affected workers to the website where the notice is posted for that particular website.

According to Roman Zelichenko, CEO and Co-Founder of LaborLess, the “DOL has allowed for some flexibility.” In the penultimate paragraph, the FAB states that, “an H-1B petitioner may provide this notification using whatever method, or combination of methods, it deems most prudent for its businesses.”  Zelichenko, whose company automates LCA posting for employers and attorneys, adds: “And this makes sense – small companies who hire H-1B workers through a consulting company or staffing firm might use Slack, Microsoft Teams, etc. to communicate with their staff, making that potentially the “most prudent” means of notifying their employees of an LCA posting. For other employers, the easiest way to comply would be to post a notice where they traditionally posted hard copy LCAs, except now it would direct employees to a URL. Ultimately, the memo’s language allows companies to decide for themselves how best to comply, while outlining the basic guidelines those companies should follow if they want to remain compliant.”

Even if an H-1B employer posts electronically, the DOL may still find that the employer is non-compliant if affected workers are not notified about the existence of the electronic posting. The guidance thus suggests that “[a]n H-1B petitioner may default to posting of a hard copy if it cannot ensure that all affected employers have ready access, as a practical matter, to the electronic notice.” The lesson to be learned from this is that electronic notification may not be the ultimate solution, especially to get around a recalcitrant third party entity that refuses to cooperate, and H-1B employers may still have to resort to a paper posting to ensure that all affected workers  have been notified.  And if the third party refuses to post, the H-1B employer is caught in a classic Catch -22!