Legal Analysis

ASA Files Comments With USCIS on Proposed Changes to Form I-9

May 14, 2012

ASA has filed comments with U.S. Citizenship and Immigration Services addressing proposed changes to the Form I-9. ASA comments are intended to confirm that staffing firms can continue to complete the Form I-9 at the time a candidate consents to be included in the staffing firm's roster of temporary employees irrespective of the time the individual actually begins work. Full story.

ASA Files Comments With USCIS on Proposed Changes to Form I-9

May 14, 2012

On May 10, ASA filed comments with U.S. Citizenship and Immigration Services addressing proposed changes to the Form I-9, which employers must use to verify an employee's identity and to establish that the employee is eligible to work in the U.S. The current iteration of the form is set to expire Aug. 31, and final revisions to the form are expected to be issued this fall. Full story.

ASA Publishes Issue Paper on California Meal Break and Rest Period Case

May 3, 2012

The California Supreme Court, in Brinker Restaurant Corp. v. Superior Court, held that employers must provide their nonexempt employees with 30-minute meal breaks but need not ensure that the employees actually stop working during those breaks. ASA has published an issue paper discussing the case and analyzing the effect of the ruling on staffing firms. Full story.

Administration Requests Comments on Employer Requirements Under Health Care Law

April 30, 2012

The U.S. Internal Revenue Service and the U.S. Department of Health and Human Services have issued formal requests for comment on certain employer requirements under the Affordable Care Act. In this round of requests, the government is asking for input on several issues, including the process for verifying an individual's eligibility for tax credits to purchase insurance coverage through state-based health insurance exchanges, and employers' obligation to provide an annual report to the IRS on the employees covered under their health plans and the details of such coverage. Comments are due June 11. Full story.

California Issues Revised Wage Theft FAQs

April 23, 2012

The California Division of Labor Standards Enforcement has issued revised answers to frequently asked questions about, and a revised model wage notice form for complying with, a law that requires employers to provide certain wage and other information to employees at the time of hire. The new law took effect Jan. 1. It's the second time the state DLSE has revised the FAQs and notice form. Full story.

Appeals Court: No Criminal Prosecution for Recruiter's Breach of Computer Network

April 16, 2012

The U.S. Court of Appeals for the Ninth Circuit, in California, has ruled that a former employee of a search and placement firm, who persuaded the firm's current employees to access its computer data for the purpose of helping him set up a competing business, could not be criminally prosecuted under the federal Computer Fraud and Abuse Act. Full story.

USCIS Seeks Comments on Proposed Revisions to Form I-9

April 13, 2012

U.S. Citizenship and Immigration Services is seeking public comments on proposed revisions to its Form I-9. Because of ambiguity with respect to several proposed language changes, ASA will submit comments to confirm that staffing firms can continue to complete the Form I-9 at the time a candidate consents to be included in the staffing firm’s roster of temporary employees, irrespective of the time the individual actually begins work. Public comments are due May 29. Full story.

Oregon; Washington, DC, Ban Discrimination Against the Unemployed

April 13, 2012

The city of Washington, DC, and the state of Oregon recently enacted laws that prohibit employers and employment agencies from discriminating against job applicants based on their status as unemployed. New Jersey had previously enacted such a law, and similar legislation is pending in Arizona, Illinois, Nebraska, New York, and Michigan. Full story.

Revised MA Antistaffing Bill Passes Out of Committee; Advocacy Efforts Continue

March 20, 2012

Late last week, a revised version of House Bill 1393 was passed out of the Massachusetts Joint Committee on Labor and Work Force Development. As originally drafted, HB 1393 would have prohibited staffing firms from charging permanent placement and conversion fees with respect to certain employees, potentially required in-state offices, and potentially prohibited staffing firms from sending candidate résumés to clients for purposes of generating client interest and job orders. Full story.

Appeals Court Denies Class Action Recruiter Overtime Case

March 16, 2012

In an unpublished opinion issued March 15, the U.S. Court of Appeals for the Ninth Circuit denied class certification in a case brought on behalf of Aerotek recruiters who claimed that they were misclassified as exempt administrative employees and thus entitled to overtime pay under California wage and hour law, Delodder, et al, v. Aerotek, Case 10-56755. The court upheld the district court’s ruling that the recruiters were not similarly situated and thus could not comprise a proper class for the class action. Full story.

USCIS Affirms Staffing Firms’ Ability to Obtain H1-B Visas

March 15, 2012

On March 12, the U.S. Citizenship and Immigration Services, an agency of the U.S. Department of Homeland Security, issued guidance stating that staffing firms can sponsor H1-B workers if they can establish a valid employer relationship with the assigned worker, or “beneficiary.” The H-1B program is used by U.S. businesses to employ college-educated foreign workers with highly specialized knowledge, such as engineers and computer programmers. Full story.

Signing Client Contracts Can Be Costly

March 9, 2012

Staffing firm clients increasingly demand to be indemnified against a broad range of potential liabilities, and there is intense competitive pressure for staffing firms to agree to these demands. But doing so could result in a nasty surprise and significant liability. A 2002 appellate court decision involving a temporary employee on a construction assignment, who caused an explosion while moving propane tanks, illustrates this danger. Full story.

ASA Supports Efforts to Promote Employers' Use of Criminal Background Checks

March 2, 2012

Employers' ability to perform criminal background checks during the hiring process is essential to ensure safety in the workplace. Recent activity at the U.S. Equal Employment Opportunity Commission suggests that the manner in which employers access and use criminal background checks may be limited through forthcoming agency guidance. Full story.

ASA Urges Pennsylvania Insurance Commissioner to End Unfair Workers' Compensation Rates

Feb. 29, 2012

ASA has been waging a two-year battle with the state workers' compensation rating agency in Pennsylvania to allow staffing firms that operate in the state to use their clients' classification codes to workers' compensation insurance determine rates. Yesterday, ASA and the Mid-Atlantic Staffing Association, an ASA-affiliated chapter, filed an appeal urging the state insurance commissioner to direct the agency to change the system and requesting a hearing for the purpose of presenting the industry's arguments. Full story.

ASA Explains Proposed Employer Rules Under Affordable Care Act

Feb. 27, 2012

The U.S. Department of Labor has issued answers to frequently asked questions outlining the guidance expected to be issued by the U.S. Internal Revenue Service and the U.S. Department of the Treasury for defining who is a "full-time employee" for purposes of an employer's obligation to offer health insurance coverage or pay penalties under the Affordable Care Act. ASA prepared an analysis of the FAQs to help ASA members determine the likely effect of the guidance on staffing firms. Full story.

Legislative Watch: Federal UI Changes and State Sales Tax Proposals

Feb. 24, 2012

President Obama signed a payroll tax cut extension into law that includes some significant unemployment insurance reforms that were strongly supported by ASA. Meanwhile, as states continue to battle budget shortfalls, some have started to look at tax increases as a way to raise more revenue. Full story.

ASA Releases Medical Marijuana Issue Paper

Feb. 13, 2012

Sixteen states and the District of Columbia have enacted laws decriminalizing the use of marijuana for medicinal purposes, raising questions about whether staffing firms doing business in these jurisdictions must accommodate medicinal use of marijuana or can refuse to hire or can terminate individuals because of their marijuana use. To help ASA members navigate these issues, ASA has published an issue paper. Full story.

Lawmakers Move to Ban Discrimination Against Unemployed Individuals in Hiring

Feb. 8, 2012

Spurred by media reports that revealed a pattern of job advertisements stating that only "currently employed" candidates are eligible to apply, federal and state lawmakers continue to pursue legislation that would declare this practice as unlawful discrimination and ban it in the workplace. Full story.

Staffing Industry Scores Big Win Before Texas Supreme Court

Feb. 2, 2012

On Friday, the Texas Supreme Court issued an important ruling that preserves workers' compensation protection for staffing firm clients in Texas. The American Staffing Association and the Texas Association of Staffing, an ASA-affiliated chapter, filed an amicus brief in the case. Full story.

NY State Department of Labor Grants Extension on Annual Notice Requirement to Staffing Industry

Jan. 31, 2012

Last week, members of the New York Staffing Association, an ASA-affiliated chapter, and NYSA's lobbyist Peter Crouse met with officials from the New York State Department of Labor to discuss the request that the staffing industry be exempted from the Wage Theft Prevention Act's annual notice requirement. Full story.

MA Staffing Firm Enters Into Deal With Immigrant Rights Group

Jan. 19, 2012

A Massachusetts staffing firm, EDA Staffing, reportedly has entered into an agreement with immigrant rights group Centro Comunitario de Trabajadores that would improve working conditions for EAD's temporary workers. According to CCT, EAD's workers were subjected to unsafe conditions while on assignments. The Massachusetts Staffing Association, an ASA-affiliated chapter, has repeatedly attempted to contact EAD but has not received a response. Full story.

Congress, White House, Supreme Court Weigh In on Health Care Reform

Jan. 5, 2012

The Patient Protection and Affordable Care Act was passed more than a year ago, and although the law had not fully taken effect, it was one of the dominant issues in the Capitol and the White House in 2011. Full story.

New Employer Health Care Provisions Take Effect in San Francisco

Jan. 5, 2012

The San Francisco Office of Labor Standards Enforcement announced key changes in the city's health care security ordinance (HCSO), which took effect Jan. 1. The new provisions are summarized here. Full story.

Congress and Administration Busy Before Election Year Starts

Jan. 4, 2012

Faced with an angry electorate and uncertain political futures, the Obama administration and Congress worked to score political points before a crucial election year—in 2012, control of the U.S. House of Representatives, the Senate, and the presidency will all be up for grabs. Full story.