Companies that employ foreign nationals may have additional obligations when terminating or reducing hours for employees from other countries. Many companies employee highly educated foreign nationals in H-1B (Specialty Occupation) visa status. The regulations require that the employer compensate the H-1B employee at the prevailing wage until there is a “bona fide” termination of employment. A bona fide termination does not occur until the employer has advised the Department of Homeland Security and Department of Labor that the employment relationship has been terminated and has provided the employee with payment for his or her travel home. A recent court decision highlights an enforcement trend in this area.

The state of New York recently passed legislation funding the Metropolitan Transportation Authority, which serves the 12-county region of New York City. The legislation includes a new payroll tax on wages and compensation paid to employees who are employed within the New York Metropolitan Commuter Transportation District (MCTD).

REMINDER: On July 24, 2009, the federal minimum wage will be increased to $7.25 per hour from the current level of $6.55, according to the U.S. Department of Labor.

The increase is the final one mandated by the Fair Minimum Wage Act of 2007, which boosted the federal minimum wage to $5.85 on July 24,2007, then to $6.55 on July 24, 2008, and now, finally, to $7.25 on July 24, 2009.

Earlier this year, the Obama administration broke with a previous policy that targeted undocumented workers for deportation, and implemented instead a strategy to go after U.S. employers hiring illegal immigrants. In keeping with this new focus, the US Immigration and Customs Enforcement (”ICE”) announced on July 1, 2009 that is has issued 652 Notices of Inspection to businesses that it suspects of violating immigration laws. In 2008, only 503 Notices of Inspection were issued for the entire year! ICE will inspect hiring records to determine whether these businesses are in compliance with Form I-9 and other employment eligibility verification requirements.

In April 2009, the Equal Employment Opportunity Commission (”EEOC”) published its Best Practices to assist employers in complying with federal anti-discrimination laws as they relate to workers with caregiving responsibilities. The Best Practices are not binding on employers and do not make caregivers a newly protected category under federal law. Rather, these are suggestions from the EEOC to encourage employers to consider “the ways in which family-friendly workplace policies can improve workers’ ability to balance caregiving responsibilities with work.”

In light of recent events in the financial markets, employers are exploring the use of “clawbacks” to recover bonus compensation payable to employees. Clawbacks are contractual provisions that allow employers to recoup compensation paid to employees in the event of an employee’s misconduct and/or termination of employment, or voluntary departure to go and work for a competitor. There are special legal issues that may arise in drafting, negotiating and enforcing such clawbacks that employers need to be aware of to ensure compliance.

A California appeals court has reversed an $87 million award in a tip-pooling class action lawsuit brought against Starbuck’s on behalf of the retail chain’s baristas (coffee servers). The reversal is a stunning victory for Starbucks and the hospitality industry overall. At issue was the sharing of a collective tip pool with shift supervisors.

The updated I9 Form has been released and must be used to document the identity and work authorization of new employees effective as of Friday, April 3, 2009. The Instant HR Solutions I9 Compliance Kit includes the newest forms, along with valuable information to protect your business.

The ADA Amendments Act went into effect on January 1, 2009, expanding the list of conditions that are considered disabilities. The ADA protects people with impairments that substantially limit a major life activity who can perform the essential functions of a job with or without reasonable accommodation.

In January 2009, the U.S. Supreme Court expanded the scope of the protection provided by Title VII of the Civil Rights Act of 1964, which forbids retaliation by employers against employees who report workplace race or gender discrimination. The Court held that the retaliation provision of Title VII protects an employee who speaks out about unlawful discrimination when answering questions during an employer’s internal investigation. What this means for employers is that, while investigating any claims of unlawful discriminatory conduct, any additional claims revealed by employees must be investigated fully and the employer must take steps to protect those employees who answer questions during an internal investigation from retaliation.