Compliance April 5, 2007

Ex-Army Soldier Loses USERRA Holiday Pay Battle

April 5, 2007 (PLANSPONSOR.com) - A federal Bureau of Prisons employee who has been waging his own legal battle over whether the U.S. government owes him holiday pay during his active military service has lost another round in front of a federal appellate court.
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The U.S. Court of Appeals for the Federal Circuit, in an unsigned opinion, rebuffed arguments by Matthew Tully that he should be paid for the holidays during his military leave because the government compensated workers on jury duty and those appearing as court witnesses for holidays.

However, Circuit Judges William Curtis Bryson and Richard Linn and U.S. District Judge Sue L. Robinson of the U.S. District Court for the District of Delaware ruled that the Uniformed Services Employment and Reemployment Rights Act (USERRA) only entitles military service members to the same benefits as the employer already gives for nonmilitary leave of similar length and circumstances.

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Tully, who represented himself before the appellate court, has been seeking pay for 27 holidays which took place while he was on leave without pay as a soldier in the U.S. Army. He was on active service from October 9, 1995, to April 9, 1998.

He initially lost the argument in his presentation to the Merit Systems Protection Board (MSPB) and then, in the latest ruling, before the appellate court which upheld the MSPB.  

Wrote the appellate court: “Accepting (Tully’s) position would mean that the benefits provided in connection with any absence from work, no matter how different in character from the service member’s absence, must be provided for all absences attributable to uniformed service. Presumably, that interpretation would mean, for example, that because the agency pays the salaries of employees who are absent to serve as jurors, it would be required to pay Mr. Tully his full salary for the entire term of his active service in the Army. But Mr. Tully has not shown that if he had taken a leave of absence from the agency for two and a half years for reasons other than military service the (Bureau of Prisons) would have paid his salary for that entire period. To assure equal but not preferential treatment, the benefits sought by a service member must be compared with the benefits associated with absences similar to the service member’s. “

The ruling in Tully v. Justice Dep’t, Fed. Cir., No. 2007-3004, 3/21/07, is  here . 

Compliance April 4, 2007

U.S. Senators Propose High-Skill Worker Visa Reform Measure

April 4, 2007 (PLANSPONSOR.com) - Two prominent U.S. Senators have introduced a bill they say would overhaul specialized visa programs to give priority to highly skilled Americans and battle employers who illegally keep U.S. citizens out of the specialized jobs.
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Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) introduced The H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007, according to a  joint news release from the two lawmakers.

Dating back to 1990, the H-1B program allows foreigners with at least a bachelor’s degree in their area of expertise to be legally employed in U.S. for up to six years with an annual allotment of 100,000 including visas granted to those with advance college degrees from American universities.

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The H-1B visa program applies to those in a job category that is considered by the U.S. Citizenship & Immigration Services to be a “specialty occupation.” The L-1 visa program allows companies to transfer certain employees from their foreign facilities to their U.S. facilities for up to seven years.

“Our immigration policy should seek to complement our U.S. workforce, not replace it,” Durbin said, in the news release. “This bill will set up safeguards for American workers, and provide much-needed oversight and enforcement of employers who fail to abide by the law.”

According to the announcement, the proposal:

  • would require all employers seeking to hire an H-1B visa holder to pledge that they have made a good-faith effort to hire American workers first and that the H-1B visa holder will not displace an American worker. Under current law, only employers that employ H-1B visa holders as a large percentage of their U.S. workforce are required to make that pledge.
  • requires that before an employer may submit an H-1B application, the employer must first advertise the job opening for 30 days on a Department of Labor (DoL) Web site. DoL would also be required to post summaries of all H-1B applications on its Web site.
  • would require that H-1B employers may not advertise a job as available only for H-1B visa holders or recruit only H-1B visa holders for a job.
  • would prohibit employers from hiring H-1B employees who are then outsourced to other companies. This is a method that some companies use to evade restrictions on hiring H-1Bs.
  • would prohibit companies from hiring H-1B employees if they employ more than 50 people and more than 50% of their employees are H-1B visa holders.
  • would give DoL the ability to conduct random audits of any company that uses the H-1B program and would require DoL to conduct annual audits of companies with more than 100 employees that have 15% or more of those workers on H-1B visas.
  • would give DoL authority to review employers’ H-1B applications for “clear indicators of fraud or misrepresentation of material fact.” Currently, DoL is only authorized to review applications for “completeness and obvious inaccuracies.”
  • would strengthen existing whistleblower protections for the H-1B program and establish whistleblower protections for the L-1 program.
  • would require H-1B and L-1 employers to pay employees the prevailing wage to ensure employers are not undercutting American workers by paying substandard wages to foreign workers.

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