Bustos Law Firm

BROWNING-FERRIS JOINT EMPLOYER TEST

In Employment on January 10, 2018 at 9:48 AM

In a recent 3-2 vote, the National Labor Relations Board overturned the Browning-Ferris Test, a commonly known test whereby a company and its contractors or franchisees could be deemed a single joint employer, even if the company has not exerted overt control over the workers’ terms and conditions. In the Browning-Ferris case, the board determined that Browning Ferris was a joint employer of recycling workers provided by a staffing agency at a Browning Ferris owned recycling facility. In Browning-Ferris, the board revised the standard to include “indirect control” or the ability to exert such control.

The board’s latest ruling now returns the test back to a “direct and immediate” control standard analysis. Commenting upon their ruling, the board’s majority stated: “[a] finding of joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine.’”

The significance of this result is that an employer is less likely to be held liable as a joint employer under the NLRB, because indirect control alone is no longer sufficient to establish liability.  Thus, in the event an entity works with and supervises employees who are construed as part of a collective-bargaining organization, and those employees are employed by another entity, so long as the “non-employer” entity does not exercise “direct and immediate” control over the terms and conditions of the employees of other entity, such as hiring and firing, then the “non-employer” entity is unlikely to be considered a joint employer for purposes of liability under the National Labor Relations Act.

This standard is similar to standards for determining joint-employer liability under the Fair Labor Standards Act, as demonstrated in the Tenth Circuit, “(1) whether the alleged employer has the power to hire and fire employees, (2) supervises and controls employee work schedules or conditions of employment, (3) determines the rate and method of payment, and (4) maintains employment records.”  See Jensen v. Redcliff Ascent, Inc., No. 2:13-CV-00275-TC-EJF, 2014 U.S. Dist. LEXIS 82478 at *6-8 (D. Utah June 17, 2014) (discussing tests applied by various circuits); Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1440-41 (10th Cir. 1998).  And Fifth Circuit, “whether an individual or entity is an employer, the court considers whether the alleged employer: ‘(1) possessed the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.’”  Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010).

Thus, the takeaway for employers to remember is that under the NLRB and FLSA, liability typically attaches to any entity, regardless of whether it is the “hiring-employer,” when that entity exercises control over determining the terms and conditions of employees’ employment.

New Public Charge Rule—What USCIS Will Review

In Uncategorized on June 12, 2020 at 2:41 PM

The definition of public charge has recently changed in a way that could pose a challenge to certain immigrants. Being a public charge has always been a ground of inadmissibility under Section 212(a)(4) of the INA. However, U.S. Citizenship and Immigration Services (USCIS) is now making this determination based on the additional following criteria on the new Form I-944.

When making this determination, USCIS will be using a “totality of the circumstances,” standard, meaning both positive and negative factors will be considered.

PERSONAL

Public Benefits: Receiving, or even applying for public benefits, will be viewed in a negative light, and will likely count against you as an extremely negative factor in the totality of circumstances.

However, because most nonimmigrants usually are not eligible for these types of benefits, it will not be a factor to worry about for most people. Also, under the new rule, receipt of public benefits by the financial sponsor, or the applicant’s family members, should not be construed as a negative factor.

Health: Significant health issues will likely be viewed as a negative factor because medical expenses can easily rack up during a protracted illness. They are a leading cause of bankruptcy for a reason.  As a result, having private health insurance coverage is a definite positive factor in your favor. Lack of health insurance, however, is a strong negative factor that will weigh heavily in favor of you being deemed a likely public charge.

Family Status: USCIS will review the size of your household in relation to your income, assets, and resources.

It’s a positive factor if you and your household members have an income at or above 125 percent of the Federal Poverty Guidelines (FPG). If not, this will be a definite negative strike against you.

Age: If you are between the ages of 18 and 61, this is a positive factor because it puts you firmly within working age range.  However, if you are under the age of 18, this will be deemed a negative factor against you, unless other financial resources are available for your support.

FINANCIAL

USCIS will review your assets, resources, and financial status. The more assets and resources you have, the better. A lack of assets and income, however, is a definite negative factor.

Credit Report: USCIS will review your financial liabilities and U.S. credit history if you have one.  However, most new immigrants will not have a U.S. credit report or score. Therefore, USCIS is not supposed to consider the lack of a credit report as a negative factor against you.  However, even if you do not have one, you will need to at least document your unsuccessful attempt to request your credit report from one of the three major credit reporting agencies.

Affidavit of Support

An Affidavit of Support on Form I-864, where your sponsor’s income and assets are at or above 125% of the Federal Poverty Guidelines is a positive consideration. It is even better if the income and assets are above the minimum threshold. If they are not, this will definitely be considered a negative factor against you in the totality of circumstances.

EDUCATION AND SKILLS

Not surprisingly, educated people earn more money and have an easier time finding a job. Therefore, if you do not have a high school diploma, or equivalency, this will be a strike against you.  However, being enrolled as a full-time student is a positive factor in your favor.

For those who are unemployed, being enrolled as a full-time student can also lessen the negative impact of not being employed, especially for younger applicants.

If you have a work permit and are authorized to work in the U.S., being employed is a definite positive factor. If not, recent employment in a previous country will usually be considered a positive factor in your favor.

Skills and Certifications

If you have verifiable occupational skills and certifications, you will be more employable.  As a result, this will be considered a positive factor in your favor. If your certification or license has been successfully maintained for several years, this will also be a positive factor as it will make you more employable.

English Proficiency

Being able to speak English, even basic English, is a positive factor in your favor as it will make you more employable.

On the other hand, lack of English proficiency will be viewed as a definite negative factor in the totality of circumstances as it will make it harder for you to find a good job.

F2A CATEGORY IS CURRENT FOR JULY BUT YOU HAVE TO ACT NOW!

In Immigration on July 17, 2019 at 9:42 AM

After a three year wait, the F2A Preference Category for Spouses and Unmarried Children of Permanent Residents is finally current for all countries during the month of July 2019. Accordingly, spouses and minor children (under 21) of Legal Permanent Residents, who are currently in the U.S., and in lawful immigration status, may apply for Adjustment of Status concurrently by filing Form I-130 together with Form I-485. F2A beneficiaries with pending I-130 Petitions may also file Form I-485 when their priority date is current according to the Final Action Dates on the USCIS website.

The long and short of it is that F2A will be “current” for everyone in July, pursuant to the July 2019 Visa Bulletin. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-july-2019.html. Other family-based categories must use the Dates for Filing table.  https://www.uscis.gov/visabulletininfo.

Thus, if you are a green card holder, you should sponsor your spouse and children as soon as you can. Or, if you have already sponsored them, make sure they apply for their green cards immediately. Also, if you’re a legal permanent resident who has been thinking about getting married, this may be an ideal time to move forward with those plans.

It’s important to note, however, that the F2A category receives a higher level of scrutiny compared to the immediate relative category. Accordingly, it’s very important that you properly determine your eligibility to adjust status. An experienced immigration attorney can help assist you with this process.

The F2A category should remain current through September.

Great News for Filipinos!

The Employment-Based 3rd category for Filipinos is also current for the first time in many years.  You can qualify for an EB-3 visa if you’re a skilled worker, an experienced professional, or an unskilled worker whose job isn’t seasonal or temporary. If you fall under one of these categories, and have been sponsored by a U.S. employer, you can file your I-485 Application to Adjust Status this month.

Also, if you’re in the U.S. on a temporary work visa, and your employer has filed an I-140 visa petition for you, you should file your I-485 application for adjustment of status this month.  However, if you’re outside the U.S., you should have your employer file your I-140 via USCIS’s premium processing option in order to expedite your application. Once it gets approved, you should send your paperwork to the National Visa Center as soon as possible in order to expedite your green card interview.