Hiring a foreign worker and embarking upon the world of visa applications and sponsorship can be a daunting task for all employers. The Australian immigration process can seem like a bureaucratic, paper-shuffling nightmare but the truth is it’s simpler than it looks.

The first step to ensuring that you can keep your employee for more than six months is to become a Standard Business Sponsor (SBS). This visa is valid for three years after it is granted and allows you to retain as many foreign employees as you need on Temporary Skilled work permits.

It is important to note that should an organisation choose to nominate and sponsor a foreign employee, it is expected to meet several obligations.

First and foremost, sponsoring companies and organisations need to ensure that a foreign employee is treated as if he or she were an Australian citizen. All working conditions must be the same and all foreign employees must be paid at market rates. The standard rates of salaries for any particular occupation may be found in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) or in line with national job advertising agencies such as SEEK.com.

The cost of the employee’s visa application is covered by the nominating organisation. Employees may also be required to pay for the foreign employee’s travel expenditure.

Furthermore, businesses and organisations sponsoring foreign employees must be sure to inform the Australian Department of Immigration and Citizenship (DIAC) of any alterations of their sponsored employees’ address, changes to corporate structure or cessation or employment.

From time-to-time, DIAC may request further information about your organisation or the employee you have sponsored. It is vital that all organisational records are updated on a regular basis and ordered comprehensively.

Employing the most qualified workers to your staff is the easiest away to support the expansion and profit of any business or organisation. Successfully applying for an SBS can open your company to the world.

Looking to sponsor a foreign employee? Click here to learn more about Australian Standard Business Sponsorship.. Free reprint available from: The Australian Standard Business Sponsorship.

Electronic evidence is quickly evolving into one of the most difficult areas of litigation to navigate.  Hawaii businesses, especially human resource managers in employment disputes, must understand that it is extremely important to work closely with counsel to determine the extent of their discovery obligations.  Once the preservation requirement arises, Hawaii businesses must map out a sensible data gathering plan to minimize business disruptions and to avoid possible sanctions.

1.       Ensure the Company Buys Into What is Needed to Comply With the New Discovery Rules and Allocate Sufficient Resources.

Convince other managers/decisionmakers to make retention policies/electronic discovery planning a key initiative.  Those employees need to understand and appreciate the risks of court-ordered sanctions for the improper destruction of documents or electronically stored information.

2.       Understand Basic Retention/Hold Issues.

Understand that a litigation hold is required when: (1) The Company receives a demand to preserve the record(s); (2) the Company is aware that a lawsuit or administrative action has been filed; (3) the Company receives a preservation order from the Court, OR; (4) litigation is reasonably foreseeable.  Understand that a record is stale and therefore subject to destruction where the record no longer has any operational, business or legal value to the Company, any applicable retention period(s) has expired AND the record is not subject to a litigation hold.

3.       Draft and Review Policies on a Regular Basis.

Draft appropriate policies, such as retention and computer usage policies, and communicate with and train employees on them.

Understand that a retention policy should limit how long information is kept and that “business related” documents generally should be retained at least for the amount of time established by statute.  A document is “business related” when it documents a specific business related event or activity, it demonstrates a specific business transaction, supports facts of a particular business related event, activity or transaction, or it relates to specific legal, accounting, business or compliance issues.

4.       Have a Plan to Preserve Documents.

Understand when preservation obligations are triggered and work with your IT department, Administrative and Executive personnel to formulate a plan. The goal should be to incorporate necessary retention requirements with organizational needs to establish not only a retention policy, but also a policy regarding the manner in which documents will be stored or organized when the hold arises.

Ideally, the Company should have a response team in place when preservation obligations are triggered comprised of individuals from various departments within the organization such as Human Resources, Information and Technology and Administrative.

Fed. R. Civ. P. 26(a)(1)(B) and 26(f)(3) now require parties early on in a case to disclose the category and location of electronically stored information and the forms in which they would be produced as part of the mandatory disclosure process.  Accordingly, it is important to be prepared early on in a case to specifically discuss with your attorney preservation issues, network systems, procedures, storage, and locations of potentially relevant electronically stored information.

5.       Understand that “Electronic Evidence” May Reside Not Only on Computers, But on Other Electronic Devices.

Information Technology (“IT”) professionals need to understand more than the technical side of computer network and Human Resource managers need to know more about the technical side of the computers/devices used by employees. IT should be able to help you determine to what extent “Instant messaging,” home computers, laptops, PDA’s, flashdrives, floppy disks, CD ROM’s, voice mail and similar devices both retain and communicate electronic/digital information.

On the other hand, understand that the IT department might not be aware of every server, hard drive, and file location and the impact the discovery rules may have on IT-driven policies/procedures.

 6.       Have a Response Team Prepared at all Times.

A response team should be comprised of individuals from various departments within the organization.  The team should also communicate early and often with legal counsel.

7.       Educate/Train Employees on the Importance of E mail.

Electronic mail essentially launched litigation into unknown territory that many employers have still not addressed with policies and/or training.  One of the best steps you can take is to educate and train your employees on the potential that e-mail will be the “smoking gun” or at the very least used against them. 

Employees think that when they delete an e-mail from their computers, it is gone and erased for good.  Of course, that is an incorrect assumption.  Employees need to understand that e-mail is not private, and that the employer reserves the right to inspect and view employees’ e-mail and on-line activities at work.

8.       Understand the Impact Metadata will have on the Production Process.

Fed. Rule Civ. P. 34(b) permits the requesting party to specify the production format for electronic documents. When the production format isn’t specified or if the responding party objects to the requested format, the responding party must state how the information will be produced.  The default production format may be a form (or forms) in which the information is “ordinarily maintained” or in a “reasonably usable” form. 

The federal discovery rule changes may not promote self-regulation.  Courts will likely get involved very quickly in discovery disputes involving electronically stored information.  The issue whether the producing party must allow metadata to be viewed by the requesting party may have to be decided by the Court since the issue is relatively unchartered area.

Roman Amaguin, Esq; romanamaguin@yahoo.com; www.amaguinlaw.com

Roman Amaguin, Esq. is a Hawaii attorney specializing in employment law, labor law, and civil litigation.  His philosophy is to provide practical solutions to both complex and common workplace, employer/employee, and civil disputes.  As a Hawaii attorney, Mr. Amaguin regularly appears before all federal and state courts in Hawaii, as well as state and federal administrative agencies such as the U.S. EEOC and Hawaii Civil Rights Commission.

On March 24, 2009, the Department of Labor (“DOL”) issued a statement making clear that employers, including Hawaii employers, can expect an increase in DOL audits.  The statement, issued through Secretary of Labor, Hilda Solis, can be found at the DOL’s website, http://www.dol.gov/opa/media/press/esa/esa20090324.htm.

Among other things, Ms. Solis stated that she is “committed to ensuring that every worker is paid at least the minimum wage, that those who work overtime are properly compensated, that child labor laws are strictly enforced and that every worker is provided a safe and healthful environment.”

In addition:

The department’s Wage and Hour Division has already begun the process of adding 150 new investigators to its field offices to refocus the agency on these enforcement responsibilities. In addition, under the American Recovery and Reinvestment Act, the agency will hire 100 investigators to ensure that contractors on stimulus projects are in compliance with the applicable laws. The addition of these 250 new field investigators, a staff increase of more than a third, will reinvigorate the work of this important agency, which has suffered a loss of experienced personnel over the last several years.

Finally, Ms. Solis stated that:  “I am dedicated to ensuring compliance with federal labor laws to both strengthen our economy and protect workers in this country.”

Given the expressed intent of DOL, it is critical that Hawaii employers take the necessary steps, now, to both reduce the risk of potential liability connected to a possible audit AND to prepare for audit itself. 

Thus, Hawaii employers should at a minimum take the following steps prior to and during the audit:

After the audit is completed, it is critical that the Company not repeat any errors in policies or procedures identified by DOL.  Accordingly, any necessary revisions should be made promptly with assistance of counsel.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com

Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.

Although the Fair Labor Standards Act sets a minimum standard of protection for employees working in the USA, individual states are permitted to extend the Act to provide a higher degree of protection to employees in that state.  California has taken full advantage of that facility, and there are many aspects of this act that California has applied more liberally than practically any other state.

Take overtime law for example. California law requires an employer to pay an employee overtime after 8 hours work in one day at 1.5 times the normal rate, and after 12 hours work in any one day at twice the standard rate. However, this does not apply to ‘exempt’ employees, such as those involved in managerial or intellectual work. Federal law only requires time and a half to be paid for any time worked over 40 hours in a week.

The California Fair Employment and Housing Act (FEHA) differs profoundly from the federal law, particularly in employment discrimination law where it is much wider reaching and more rigorous than federal law.  A case in point occurred recently, where an employee of a prestigious California hotel filed a discrimination lawsuit against his employer on the basis of sex, and also for retaliation, in violation of the FEHA. 

The act forbids discrimination against an employee on the basis of sex, race, color, age, religion and other grounds, and illegalizes retaliation by the employer against an employee carrying out a ‘protected’ activity such as filing a charge of discrimination.  There are a number of defined protected activities, and this act is likely beyond the capability of the average human resources department of most companies to handle.  This is the sort of case best passed on to a human resources (HR) consulting firm.

The case, Jones v. The Lodge at Torrey Pines Partnership, had originally been heard in front of a jury, and debated whether or not an individual could be held personally responsible for proceedings relating to retaliation against an employee.  The jury decided for the plaintiff and awarded compensation against the Lodge and the supervisor accused of the retaliation. However, their verdict was overruled by the judge who stated that there was insufficient evidence to prove the case against the supervisor that an adverse reaction had been carried out for reasons of discrimination or retaliation for the sexual orientation of the plaintiff.

The judge stated that individuals (the supervisor) cannot be held liable for retaliation in the same way that they can be for harassment.  The case went to the Court of Appeal, which disagreed with the judge, and stated that individuals can be held responsible for retaliation.  The case ultimately reached the California Supreme Court which disagreed, stating that the individual cannot be held responsible..

What chance does company human resource personnel have in correctly interpreting law if even the law courts disagree?  It is next to impossible for a company in California to apply company policy when the law itself is so difficult to interpret that judges, Courts of Appeal, and the Supreme Court disagree. The labor laws of California are too difficult to understand for a company to rely on non-specialized personnel to manage their labor relations policies.  The consequences of getting it wrong could be catastrophic. Many employers are feeling frustrated with this lack of clarity and constant risk of violating the law, and are turning to experts in the Human Resources Outsourcing industry for help.

While many businesses employ highly educated staff, most do not have the experience to understand the finer points of law.  It is not just the understanding that matters here, it is knowing the right course of action to take in such circumstances.  Perhaps things could have been done differently in the Jones v. The Lodge case to prevent it from reaching court, or perhaps the supervisor could have been better trained by the company.

Whatever the answer, you are more likely to come to the right solution with the help of professionals who manage these complex issues on a daily basis. California labor law is sufficiently complex for your company to turn to the professionalism and expertise of a Human Resources Outsourcing firm to keep you out of trouble. HR outsourcing is not as expensive as you might believe, especially when you consider the alternative.

Suggested resource:

California labor law is very complex, and ignorance can cost you plenty. If you are considering Human Resources Outsourcing as part of your HR satrategy, and want to reduce your California employment risks, check out http://www.cpehr.com for a free HR analysis.  It costs nothing to investigate.

If you run a business and have employees, there are a slew of federal and state labor law notices you’re required to post where employees can see them each day. These are often called labor law posters, or compliance posters. They include things like minimum wage laws, the federal USERRA, non-discrimination notices, and more.

Keeping up with everything that ought to be posted and making sure that the most current notices are posted in the workplace can be a real chore for big and small businesses alike. What’s more, posting a collection of paper notices can make your office look messy.

To solve the problem, a number of companies sell labor law posters that combine all the state and federal regulations on one or two posters. The posters, in general, are a good thing. They tidy up offices and help businesses stay in compliance with labor laws.But unfortunately, some of the companies that market labor law posters by mail use hard-sell marketing tactics to get you to replace your labor law posters before you really need to. In fact, some of the marketing materials that get sent in mail seem somewhat misleading and deceptive.

One ploy that’s been used in various parts of the country is a mailing that has the word FINAL NOTICE in all capital letters on the top of the page of an official-looking document. Below the “Final Notice” headline was text stating that the employer must comply with the new labor posting requirements and that failure to do so could lead to government fines of up to $17,000 and other possible dire consequences.

Other tactics include mail-merging the name of the recipient company into the letter and using text in the letter such as a Notice Number, Reference Number, and a Reply By date designed to make recipients think the mail is somehow an official warning.

If your business gets a notice like that, take the time to look at who it really comes from. If you see the words poster service, or compliance service, or if you see an out-of-state address, you can be sure the official-looking “Notice” is just a sales letter. Another dead giveaway: the letter will tell you how to order labor law posters from a private company.

If you’re unsure when labor law notices you need to post were last changed, check with the US Department of Labor and your state labor department to find out if there have been any changes in required postings. Remember, too, that no matter what the labor law poster companies tell you, you don’t need to buy a new poster just because it’s a new year. You only need to replace your posters when the state or federal laws listed on them change. For a list of the latest changes in state and federal labor law posters see http://www.businessknowhow.net/posters/updates.asp.

© 2008 Attard Communications, Inc. Janet Attard is the founder and CEO of Business Know-How, a popular small business website that has been providing information and resources to businesses for 20 years. BusinessKnowHow.com is a source for labor law posters and safety posters. The website also provides a wealth of ideas, tips and hints for marketing and managing small businesses. Subscribe to the Business Know-How newsletter at http://www.businessknowhow.com/newsletter/subscribe.htm

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