HR Liaisons Meeting

1. HR Liaisons Meeting September 16, 2010

2. Agenda • Introduction • Homecoming Parade Guidelines • Non-Exempt v. Exempt • In-Unit v. Out-of-Unit • Immigration Basics: Immigrant Visas • Wrap-Up

3. Homecoming Parade Guidelines

4. Non-Exempt v. Exempt

5. Authority – United States Department of Labor • Fair Labor Standards Act of 1938 (FLSA) as amended. • Revised on April 20, 2004; Compliance by August 23, 2004. • The FLSA establishes the minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. • Covered non-exempt workers are entitled to the minimum wage. The federal minimum wage effective July 24, 2009 is $7.25 per hour. • For non-exempt employees, overtime pay at a rate of one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.

6. Non-Exempt Employees • A non-exempt employee is subject to the provisions of the Fair Labor Standards Act (FLSA). • A position is designated non-exempt based on the job duties performed and the salary level. Generally, non-exempt employees’ work is performed with set standards and rules. Examples of non-exempt positions may include: bank teller, bookkeeper, and shipping/receiving clerk. • Other example includes workers who perform work involving repetitive operations with their hands, skill and energy. Skills and knowledge usually gained through apprenticeship or on the job training. Employees in production, construction, maintenance, carpenters, electricians, mechanics, practical engineers, plumbers, and craftsmen are non-exempt regardless of salary.

7. Non-Exempt Employees • Salary Threshold – If an employee earns less than $455 per week ($23,660 per year), the position qualifies for overtime pay (is considered non-exempt), regardless of the duties performed.

8. Overtime for Non-Exempt Employees • Record ALL hours worked in the ADP System including any hours actually worked in excess of 40 hours in a workweek • All overtime (OT) must be authorized by the immediate supervisor prior to working • OT pay is calculated at 1½ times employee’s hourly rate for all hours actually worked in excess of 40 hours in a workweek • Compensatory time may be earned in lieu of OT pay at the rate of 1½ times the number of hours worked • Violation • Not inputting all hours in ADP – instead have separate recordkeeping • Not paying or providing appropriate compensatory time

9. Exempt Employees • Regulation identifies and excludes certain worker from FSLA coverage. To qualify for an exemption, employees must meet tests regarding job duties and be paid on a salary basis not less than $455 per week/$23,660 annual. The exemptions are: • Executive • Administrative • Professional - Learned Professional or Creative Professional • Highly Compensated employees • Employees in exempt positions get paid the same amount every workweek regardless of the hours they work • Required to record leave • Departments should not allow flex hours to compensate for “extra” hours worked

10. Exempt Employees • Exemption from minimum wage and overtime provisions of FLSA are for employees employed as bona-fide executive, administrative, professional and highly compensated employees. • Executive • Primary duty is managing an enterprise, department or division. • Direct the work of 2 or more full time employees. • Authority to hire, fire employees or their recommendations regarding employment status of subordinates are given particular weight. • Administrative • Primary duty must be performance of office or non-manual work directly related to the management or general business operations of the employer or employer’s customer. • Includes the exercise of discretion and independent judgment with respect to matters of significance.

11. Exempt Employees • Professional – Learned • Primary duty is performance of work that requires advance knowledge, intellectual in character requiring exercise of discretion and judgment, acquire through prolonged course of study, • The advance knowledge must be in a field of science and learning, • Must be of a type customarily acquired through a prolonged course of specialized instruction. • Professional – Creative • Primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. • Highly Compensated • Performs office and non-manual work. • Paid $100,000 or more. • Customarily and regularly perform at least one of the duties of an exempt executive, professional, or administrative employee.

12. In-Unit v. Out-of-Unit

13. In-Unit Employees • Various groups of employees at the University are represented for the purpose of collective bargaining by unions with respect to wages, hours, and terms and conditions of employment. Each union has a bargaining agreement that outlines these terms. • Unions that represent groups of faculty and staff at FIU are AFSCME, PBA, PBA Lt., SEIU, and UFF. • Faculty and Staff may be covered by a bargaining unit, even if he/she is not a dues-paying members of the union.

14. Out-of-Unit Employees • Groups of employees at the University not represented for the purpose of collective bargaining by unions with respect to wages, hours, and terms and conditions of employment. • The Public Employee Relations Commission may determine that a position is excluded from a bargaining unit, even if the classification is generally covered by the unit. • Excluded are positions designated as managerial, confidential, or temporary.

15. Immigration Basics:Overview of Procedures and Obligations for EmployersPart 2: Immigrant Visas Fragomen, Del Rey, Bernsen & Loewy, LLP

16. Aaron M. BlumbergAssociateFragomen, Del Rey, Bernsen & Loewy, LLPOne Alhambra PlazaSuite 600Miami, Florida 33134Telephone: (305) 774-5800Fax: (305) 774-5800E-Mail: ablumberg@fragomen.com

17. Immigration Overview

18. 3 Categories of People in the U.S. - Citizens - Immigrants - Nonimmigrants

19. Nonimmigrants • Coming to the U.S. temporarily • Retain residence abroad • Dual intent - only for H’s and L’s • “Alphabet Soup” - A-V • Important Visas to Know: H-1B, TN, E-3, F-1, J-1 • Immigrants vs. nonimmigrants

20. Immigrants • “Green card holders” = “permanent residents” = “immigrants” • Coming to U.S. permanently • Numerically limited - Visa bulletin - Priority date • Can become U.S. citizens after 3 - 5 years

21. Understanding the Documents

22. Visa Stamp

23. I-94 (D/S)

24. I-94 (Expiration Date)

25. I-797 Approval Notice & I-94 Card

26. I-20 (F)

27. DS-2019 (J)

28. Form I-9

29. Permanent Residence Overview

30. How to Get a Green Card • Family • Work • Diversity Lottery • Asylum • Special Legislation

31. Employment-Based Permanent Residence: 2/3-Step Process • Labor certification (where required) • filed by employer on behalf of foreign national • processed under PERM system • Immigrant preference petition • filed by employer • processed by USCIS • Adjustment of status or consular processing • filed by the foreign national & family members

32. Employment-Based Categories • EB-1: Priority workers • EB-2: Advance-degree professionals & aliens of exceptional ability* • EB-3: Professional, skilled & unskilled workers* (* labor certification required)

33. EB-1: Priority Workers • Persons of extraordinary ability (similar to the O-1 nonimmigrant category) • Outstanding professors & researchers • Multinational executives/managers • Labor certification not required

34. EB-2: Advanced-Degree Professionals & Persons of Exceptional Ability • Job requires advanced degree (Master’s & above) or Bachelor’s degree + 5 years progressive professional experience • Labor certification required • Waiver of labor certification when employment is in the “National Interest”

35. EB-3: Professionals, Skilled Workers, Other Workers • Most commonly used, historically highest demand • Professionals: position requires bachelor’s degree or foreign equivalent degree • Skilled workers: position requires minimum 2 years experience and/or training • Other workers: limited to 10,000 • Labor certification required in all cases

36. March 2010 Employment Bulletin

37. PERM Labor Certifications

38. PERM - New Labor Certification Process • Program Electronic Review Management • PERM does not stand for permanent residence • One standardized system • Electronic application process • New advertising, recruitment and posting requirements • Must obtain prevailing wage determination from National Prevailing Wage and Helpdesk Center (NPWHC) before filing

39. Key Aspects of PERM (cont’d) • Processing times vary widely; cases selected for audit experience lengthier processing time • Some changes to eligibility standards for foreign nationals • New recordkeeping and documentation requirements • Applications subject to DOL audits based on predetermined factors or at random

40. What Is Labor Certification? • Test of job market to make sure minimally qualified U.S. workers get available jobs before any foreign worker. • Affected by the economy • Search for able, willing, qualified and available U.S. Workers. • Can’t make a company hire U.S. worker, but can’t submit case for foreign worker if a minimally qualified U.S. worker found.

41. When Is Labor Certification Needed? • First Stage of Permanent Residence Process for most employer-sponsored applications. • Is needed by most EB-2 and all EB-3 • Who doesn’t need it: • EB-1 cases: • Multi-national Executive or Manager • Outstanding Researcher • Individual of Extraordinary Ability • EB-2 IF National Interest is served by what they’re doing

42. 2 Types of Labor Certifications • Regular PERM: For all professional positions other than teachers • Special Handling PERM: Only for college/university teaching positions

43. Special Handling PERM Processing

44. Purpose • To test the U.S. labor market – employer must document a good faith recruitment was made and that no U.S. worker was found more qualified than the foreign national

45. Basic Requirements • The position must include classroom teaching duties at a college/university • Application must be filed within 18 months from the date of the job offer letter, not the date of hire • At least one printed advertisement placed at least one time in a national professional journal, which clearly states the position title, duties, and minimum job requirements. • (The advertisement must include the entire title page, showing the journal name and publication date, as well as the entire page on which the ad appeared)

46. Basic Requirements (cont’d) • Wage offered meets the higher of the prevailing wage or actual wage • DOL Posting Notice posted at job worksite for 10 consecutive business days • Competitive recruitment and selection was conducted – final written report • Foreign national was the most qualified applicant

47. Less-Stringent Standard • Must show that applicant is “more qualified” than any other US applicant • Can use subjective factors to show that the FN is more qualified • Much easier than showing that there are no qualified US workers available • Must document this through the Recruitment Statement

48. Benefits • Fewer advertising costs • Quicker processing times • Lower audit rates • Easier standard, especially with our current high unemployment rate

49. Regular PERM Processing

50. Required Labor Certification Paperwork • Prevailing Wage Determination • Audit File • Recruitment Report • Advertising and Recruitment • 30-day job order • Sunday Newspaper ads (or prof. journal if applicable) • Additional recruitment for professional positions • Notice & Posting (Bargaining Rep) • 10-consecutive business days • In-house media (where required) • See sample posting (Handout 2)