About Jessica Suotmaa

Jessica Suotmaa is a Freelance Writer, Legal Assistant, and Paralegal Studies student.

By Jessica Suotmaa 0

The H1-B nonimmigration worker application process for each fiscal year (FY), which starts on October 1 of the previous year (FY2022 begins October 1, 2021), consists of registration, a petition, followed by approval. The “Petitioner” is the sponsoring employer company. The “Beneficiary” is the employee.

First, the Petitioner must register with USCIS during the registration period for each beneficiary for whom Petitioner wishes to petition for an H1-B nonimmigrant worker visa. If a registration is accepted for a specific Petitioner and Beneficiary, then the Petitioner may file an H1-B petition on behalf of that Beneficiary.

The period for registration for 2021 petitions for the FY2022 (which begins on October 2021) is March 9, 9:00 a.m. PST to March 25, 9:00 a.m. PST. A separate registration must be completed for each beneficiary for whom a petitioner may apply.

Registrations will then be randomly selected by USCIS between March 25 and March 31. Those H1-B petitioner/beneficiary registrations selected will then be allowed to file their H1-B petition starting April 1, 2021 for the FY2022.

Once the petition is filed, the petition will be examined. Generally cases are decided before October 1, if not earlier.

If you need assistance with your H1-B petition, our office, with over 40 years of experience preparing all types of business and family immigration applications, can help you through the process. We encourage petitioners and beneficiary who have not already started putting together information for registration start to do so before the first day of registration on March.

By Jessica Suotmaa 0
On August 30, 2020, USCIS adopted as practice a AAO decision finding that TPS holders who travel outside of the US on an authorized DHS travel document retain the same status, TPS, upon re-entry.  This means that they cannot use the re-entry as grounds for establishing a right to adjust to permanent residence upon re-entering.
Is my child's pod teacher my employee?

By Jessica Suotmaa 0

As soon as Governor Newsom announced the strict requirements needed to reopen public schools in California for in-person instruction, parents have scrambled to find alternatives.   In addition to the traditional alternatives of withdrawing a child for homeschooling, or hiring a nanny or babysitter to watch their child, some parents have formed learning pods and hired teachers.  But are these teachers and home tutors considered employees under California’s new AB-5 rule?

What’s CA AB-5 again?

California Assembly Bill 5 expands on the Supreme Court decision in Dynamex Operations West Inc. v. Superior Court, where the court ruled that employers have the burden of proof in showing their workers are not employees.

AB-5 went into effect on  January 1, 2020 and is famously affecting gig workers in California. However, the bill actually utilizes a three-prong rule, called the ABC rule, to determine whether a worker is an employee or not. The bill does include exceptions. We’ve previously discussed AB-5 on our blog as well.

How to determine if your worker is an employee:

  • Can the worker control and direct their work freely without your intervention in regards to the performance of the work?
  • Is the worker performing work that is outside the usual course of the your (or your company’s) business?
  • Is the worker usually engaged in a trade, occupation, or business of the same nature as the work they perform for you?

Do tutors and teachers meet the exception?

The statute has a list of exceptions for professions, such as cosmetologists or construction workers, who are exempt from AB-5. Teachers and tutors are not exempt.

Following the above three-pronged test, we can determine that in order for a tutor or teacher to not be an employee and meet these requirements, they would have to be completely in control of…

  • what they teach, e.g., the curriculum/lesson plans
  • how they teach
  • when they teach, e.g., the hours
  • and even where they teach

By now you may have realized that it would be impossible for a tutor or teacher hired to monitor distance learning to meet those requirements. However, a homeschool or preschool teacher/tutor might be able to meet them. It depends on who you hire and for what type of teaching.

Note: AB-5 affects freelancers who were previously paid as independent contractors, not in-home “household employees”, such as nannies.

What are the consequences of violating AB-5?

Under current circumstances, it is unclear what the consequences might be for parents looking to supplement or replace distance learning.  If enforced, the violations are severe, starting at $5,000 to 25,000 for misclassifying an employee as an independent contractor.

What can I do, as a parent, to avoid violating AB-5?

Look for established tutors or teachers who have formed their own company for providing education. Do not hire an “all-in-one” person who performs childcare, tutors, and cleans, for example.

If you do decide you need someone to do more than just provide tutoring or teach a curriculum, then consider hiring them as an employee or household employee (if they qualify).  In doing so, be sure to comply with California wage and hour laws, purchase worker’s compensation insurance, and pay payroll taxes…among other things.

What can I do as a tutor or teacher looking to work?

Generally, if you do not qualify as an independent contractor, you would need to form an entity and purchase liability coverage, etc. If you have questions regarding what type of entity to form, contact us for your free consultation!

So what happened to DACA?

By Jessica Suotmaa 0

The Obama-era Consideration of Deferred Action for Childhood Arrivals (DACA) program has been through a roller-coaster ride of ups and downs recently.  On June 15, 2020, the Department of Homeland Security (DHS) released a memorandum regarding DACA (“first memorandum”). However, when the Supreme Court released its decision in the lawsuit Trump v. NAACP, No. 18-588 on June 18, 2020 to prevent the end of the DACA program, DHS had to update its policy.   The updated memorandum was released on July 28, 2020 (“second memorandum”) abides by the Supreme Courts decision to prevent the end of the DACA program.   At this point, there were still questions on how DACA applications will be handled.

On August 21, 2020, the United States Citizenship and Immigration Services (USCIS) released a policy guidance on how the agency will adjudicate DACA applications and associated work permit applications based on the second memorandum.  In this post, we highlight the key points of the current DACA policy guidance based on commonly asked questions.

Will all DACA applications and work permit applications be denied?

The second memorandum applies to “initial” DACA applications and its associated employment applications (I-765). If you’ve already been granted DACA at some point, then your application is not an “initial” application. If you’ve never been granted DACA, then your DACA application will be automatically rejected.  It does not matter if you filed the application before the release of the first or second memorandum. If you do not have an approval, then your application was “pending”, and thus it will be rejected.

Rejected applications will not be reviewed at all, so USCIS will refund the application fees.

If your application is rejected, it will not affect your chances at reapplying.   If there any changes to the DACA situation, and your able to reapply, the rejected application will not count against you.

What if I had DACA, but I didn’t renew it before it expired?

A key difference between the first memorandum and the second memorandum is how USCIS processes DACA applications with expired status.  Before the memorandum, USCIS allowed reapplications for DACA recipients with expires statuses up to one year.  The first memorandum would have changed this, but the second memorandum upholds the previous adjudication method.

In sum, you have one year to renew your DACA after its expired.

Should I file my DACA renewal even though I still have time?

Although the official recommendation has been to file DACA renewals 150 days or less before its due, many have attempted to file early in hopes of extending their DACA before the program ends.  However, the second memorandum states that USCIS has not been processing DACA renewal applications that have more than 150 days left. Instead, USCIS has placed such applications in “pending” status.

From now on, USCIS will reject any DACA renewal application that is filed more than 150 days before its expiration, unless there is a valid reason for the renewal.  In other words, there is no point in submitting an early renewal unless you have a very good reason.

Will my DACA status be shortened from two years to one year?

If you currently have DACA status, the second memorandum will not “shorten” the duration of your status.  However, when you apply to renew your status, you will find that USCIS only grants one year extension at a time.

Employment Authorization Document (EAD), or work permits, will also be renewed for one year at a time.

Will I have to pay more if I renew after October 2nd, 2020?

Recently, USCIS announced it will increase certain application and petition fees starting from October 2nd, 2020.  The EAD renewal and biometrics fees will not increase for DACA renewal applicants.

Can I apply for a Travel Document (Advanced Parole)?

The short answer to this is “no”. However, it can depend on your circumstances.

The second memorandum states that any Advanced Parole (Form I-131) filed before July 24, 2020 will be rejected. USCIS will refund all I-131 application fees. Applicants are allowed to reapply, but the form instructions have changed on the USCIS website.

If you have DACA, but you also have another pending immigration benefit, such as a permanent residence application (Form I-485) pending, then you can apply for advanced parole using the requirements associated with that immigration benefit.

Otherwise, the second memorandum states that DACA holders can only apply for advanced parole under “exceptional circumstances”. It even goes further to specify what is not an exceptional circumstance:

    • Traveling abroad to visit family and friends
    • Going on a vacation
    • Traveling abroad for educational purposes
    • Traveling abroad for work purposes

So what is considered an “exceptional circumstance” that would allow a DACA holder to receive a travel document for traveling out of the country? The second memorandum offers a few examples:

    • Travel to obtain life-sustaining medical treatment that is not available in the U.S.
    • Travel to support the immediate safety, well-being, or care of an immediate relative, such as a minor.
    • Travel in the interest of U.S. national security or interests.

Finally, the memorandum states that if you’ve already been granted advanced parole, it will not be cancelled because of the memorandum.

 

Are you a current DACA holder with questions regarding status renewal or your work permit? Contact us for how we can help you with your situation. Or are there questions that were not answered in this post? Comment them below!

7 Things to Know About USCIS new Fee Rule

By Jessica Suotmaa 0

On July 31, 2020, the United States Citizenship & Immigration Services (USCIS) released the final rule regarding their proposed changes to immigration benefits and their associated fees.  While many news agencies have highlighted the increased costs in fees, and many non-profits have highlighted how asylum applicants would have to pay a fee, the actual rule includes many other provisions that may affect your specific circumstances. Before the rule goes into effect on October 2nd, 2020, find out whether you should begin that application or petition process you’ve been thinking about.  In this article, we highlight the five most important points to know about the new 2020 USCIS benefit and fee changes.

1. Form Fees Will Go Up

USCIS has announced many form fees will increase in order to meet their adjudication costs. Here’s a copy of their published list:

2. Asylum Applications Now Have a Cost

In order to file an asylum application, applicants will have to pay a $50 application fee and a biometrics fee of $30.

Application fees will be waived for initial EAD (Form I-765) and green card application (Form I-485) for those who were granted asylum or admitted as refugees.  In addition, the fee for refugee travel documents will continue to be reduced.

Note that the rule states:

“At the USCIS Director’s discretion, USCIS may waive or exempt the fee for any
form, including those filed by asylees and refugees. See 8 CFR 106.3(b), (e).”

 

3. Fee Waivers May not be Available

Not only does the new rule restrict which forms qualify for a fee waiver, it also adjusts the income restriction from 150 percent of the Federal Poverty Guideline (FPG) to 125 percent of FPG. To see what the federal poverty guideline means in 2020, click here.

USCIS is also changing the language in its fee waivers from “inability to pay” to clearly defined requirements, such as requiring W2 wage statements, federal income returns, or IRS certificate of non-filing to prove income. This removes the “means-tested benefit” as proof of low income, meaning proof of qualifying for benefits intended for low income recipients would not be enough to prove fee waiver eligibility, e.g. submitting Medi-Cal benefit card or food stamps statement.

Here’s a list of forms and their fee waivers for your convenience:

4. Applying Online is $10 Cheaper

To encourage online application filing, USCIS will lower the online application fee by $10.00 compared to the fee for the same paper form.

5. Biometrics Fees Changed

Overall finger print fees are reduced from $85 to $30, except for DACA applicants.

 

6. No Refunds for Fees

While we weren’t aware this was an issue, but the rule clarifies that all USCIS fees are “generally” non-refundable. This includes adjudication fees, H-1B registration, DACA, etc.

 

7. DACA Fees Remain the Same

Contrary to the proposal, USCIS will not be increasing DACA application and renewal fees, but will maintain the fees that were in effect before September 5, 2017 (no change).

 

Do you have questions about USCIS new rule regarding fees and benefits? Was there something specific you had expected to read about, but was not highlighted? We would like to hear from you! Leave us a comment or send us an email.

public charge rule and covid-19

By Jessica Suotmaa 0

The “Public Charge” rule in a nutshell is how new green card applicants will be judged based on how financially self-sufficient they are, and consequently how likely they are to become reliant on welfare.  We have previously covered the new Public Charge Rule that was to be enforced since February 24, 2020:

With our current situation due to COVID-19, at least our home state of California has widened the reach of unemployment benefits and even announced an eviction moratorium until September 30, 2020, it’s hard to imagine the possibility of a long-time awaiting immigrant to lose the opportunity of permanent residence in the United States due to coronavirus induced financial difficulties.

Many have suffered job losses, illness, and other hardships as a result of the COVID-19 pandemic, which was declared a public health emergency on January 31st, 2020.  Here’s what we know:

On July 29th, 2020, a federal judge blocked the “Public Charge” rule from being enforced.  This block also applies to the rules regarding private health insurance for visa applicants.

United States Citizenship and Immigration Services (USCIS) announced the following:

  • USCIS will not reject or deny any green card application (form I-485) based on the public charge rule, even if it was filed after February 24, 2020;
  • USCIS will not reject or deny any green card application that is missing the new public charge form (I-944) or includes incomplete information;
  • USCIS will continue to process permanent residence applications according to rules prior to the release of the Public Charge Rule;

In the same announcement, USCIS stated that it would apply the Public Charge Rule to applicants applying from abroad after February 24, 2020.

 

If you have any questions regarding your green card application or the Public Charge Rule, please contact our office to speak with an experienced immigration specialist.

5 Ways to Protect Client Privacy while Working From Home

By Jessica Suotmaa 0

During the COVID-19 global pandemic, many of us have begun working from home.  We have set up makeshift desks and home offices, prepared appropriate backgrounds for video conferences, and tried our best to focus with all the distractions of working from home.  Without giving you a breakdown of the many distractions and issues we face working from home, we want to help you.  We know that it can be difficult to protect the privacy of your customers and clients when at home. In this article, we’re sharing five ways you can better protect your customers’ right to privacy. By protecting their rights, you are also protecting your business.

1. Find a Safe Space

If you have documents with customer names, addresses, credit card numbers, or other private information, you’ll want to store them in a secure place.  It should be a lockable drawer, filing cabinet, or safe. It’s important that there is limited access to this lockable safe space, in that no other person can have access to it.

2. Stick to the Same Electronics

As a small business owner, you might mix business with pleasure when it comes to your electronics. You might use your phone to check emails and text clients, or you use your laptop both for watching videos and completing your work. Now that you’re at home, you might have additional devices at your disposal, such as the home computer with access to your personal printer. It might be tempting to jump around and use each device depending on what’s convenient, but please don’t. The reason is that it can be easy to forget to log out of secure websites with important client information. You might forget to securely remove and delete a document you had scanned to a communal computer, or saved in it for easier printer access.

If you leave client information “in the open” on a shared device, not only can other members of your household have access to it, but you increase the risk of losing that client information with a security breach, such as a virus or hacking.

3. Aim Your Screen

Just as you might guard your laptop screen when working in a public place, like a coffee shop, you should do the same at home.  Aim your screen so that no one can watch over your shoulder, and secure your device when you’re away from your desk.

4. Keep Conversations Between You

If you need to speak to a client via video conference or phone call, try to find a quiet place where you will not be overheard by other members of your household.  It might be tempting the home environment altogether, but then you risk neighbors and a random person overhearing your private conversation.

We find closets and cars safe for private conversations.

5. Hold Your Tongue

When you’re at work, you can talk to other people in your organization, especially team members and other stakeholders regarding your client or customer work.  However, when you’re at home, you might need to schedule a conference call to have that same feedback.  Instead, it might be easier to just turn around and tell your partner or other household member of your issue, but this could be in violation of your customer’s privacy.

Consider using a chat service for your team members so that you can discuss things immediately without having to wait for them to accept your conference call invitation.

 

We hope you’ll find our suggestions regarding privacy useful.  We know small businesses do not always have the resources for a private home office with all the amenities of the workplace. We also recognize that working from home full-time is not the same as taking work home over the weekend, or doing research late into the night.  Working remotely from home is a new normal that requires us to become aware of how we are doing it in order to protect our customers and our businesses.

If you have questions regarding protecting your client’s privacy, feel free to leave a comment or contact us for an email response.

What if I can't afford a lawsuit?

By Jessica Suotmaa 0

Small business owners may encounter hardships that may warrant a lawsuit. Whether it is a contract issue, a supplier issue, or an employee issue, many entrepreneurs seek legal assistance to solve their problem.  Legal advice is one thing, and lawsuits, which are litigated in a court of law, are another.  Most times, we discourage clients from pursuing a lawsuit due to its high costs.  There’s the cost of filing fees, attorney fees, and even jury fees. It doesn’t take long for the costs of a lawsuit to exceed the amount the business owner wishes to retrieve.  In addition to a lawsuit costing too much, it can also take a long time to litigate.  As such, it is wise for small business owners to consider alternatives to a costly lawsuit.

In this article, we introduce alternative dispute resolution (ADR) methods which our experienced business attorneys can still assist.

Negotation

Usually the first step in the process of resolving an issue, negotiation can be initiated without an attorney.  It is the process of meeting with the other party and attempting to reach an agreement as to how to resolve the issue.  Often, when clients come to us to file a lawsuit, they have already tried and failed to negotiate with the other party. However, we have also successfully negotiated on behalf of our clients when we begin the negotiation in the early stages of the disagreement.  Sometimes all it takes is a seasoned negotiator with no emotional attachment to the outcome to reach a low-cost resolution to your business problems.

If you have a business issue that you need to negotiate with the other party, contact one of our business attorneys and find out how we can be of assistance.

Mediation

Mediation has a separate cost that is usually still cheaper than litigation, since it involves a third-party mediator. The mediator assists the parties in reaching an amicable resolution to their problems.  Parties with close ties, relationships they want to preserve, or who genuinely wish to resolve the problem often seek mediation over filing an expensive lawsuit. Some parties take attorneys with them to mediation, and others do not. It is up to you whether you feel comfortable without an attorney present.

The mediator does not make any decisions, but can propose a solution. In the end, it is still up to the parties to decide what the resolution will be.

If you want to resolve an issue without damaging your relationship with the other party, you may want to consider scheduling mediation. An experienced attorney can guide you through the process, and advocate for you at the mediation.

Settlement Conference

Settlement conferences are similar to mediation in that they involve a third-party person who “mediates” and evaluates each side to come to a settlement.  If a case is already in litigation, a judge can require a settlement conference for the parties wherein the judge evaluates each side and recommends a solution. It is still up to the parties to decide whether they can settle outside of court.  When voluntary, a settlement conference is often mediated by a “settlement officer” who reviews each side’s case and makes a recommendation. The goal of a settlement conference is always to settle the case. If the case is already in litigation and no settlement is reached, then it will go to trial.

Neutral Evaluation

A neutral evaluation might be the appropriate solution for parties who disagree on a technicality.  A neutral evaluation is conducted by a neutral third-party, often an expert in the subject matter, who reviews the cases presented by each side and gives his or her opinion on who has a stronger case. The neutral evaluator’s opinion is then used as the foundation for negotiating a resolution.

Arbitration

Many small business owners may have heard of arbitration in a different context. It is often included in employment contracts, vendor contracts, and other company policies. Since arbitration is less costly than litigation, companies often include a “arbitration clause” in contracts to force the other party to arbitrate the issue instead of filing a lawsuit.

The difference between arbitration and the other alternative dispute resolution methods above is that the third-party arbitrator decides on the issue. The arbitrator can be a single person, or an entire panel of people. The arbitration can be “binding”, meaning its resolution is legally enforceable, or “nonbinding”, meaning it’s an optional solution on which the parties can decide. Either way, arbitration takes the form of a hearing, where parties argue their cases and present evidence. Arbitration does not require an attorney, but if you are required to arbitrate your issue, you may want to consider consulting an attorney first.

 

Hopefully this overview gives an idea of what alternatives a small business owner can rely on instead of litigation. Alternative dispute resolution methods can cost money as well, but its costs are often much less than a full-blown lawsuit. If you have further questions or would like discuss which resolution method may apply to your unique situation the best, feel free to contact one of our experienced attorneys today.

How can I safeguard my small business during coronavirus?

By Jessica Suotmaa 0

As the coronavirus pandemic continues to affect small businesses post-lockdown, many small business owners might wonder what can be done to safeguard the future of their business.  With new regulations for reopening during the COVID-19 pandemic (and the recent protests), you might question whether it is enough to continue the status quo.  If you’ve come to determine that business cannot continue as usual, then this article is for you. Here, we list six ways you can safeguard your small business during difficult times.

1. Business Strategy

When the economy is not doing well, it is a good time to review your current and past business strategies.  See how your business has grown, why you made the changes you made, and whether you need to make additional changes. Try to predict what the future will look like as a result of the pandemic, and simulate your business model–does it work? Is your business profitable? Or maybe you need to make adjustments.

Economic downturn can change the outlook of supply and demand, inventory, and prices. Make sure you leave nothing out of your review.

2. Regulations and Compliance

As conditions change, be sure to remain to up-to-date on business regulations, employment regulations, and any other regulations that require compliance.  This is also a good time to review tax compliance, and how you can minimize your end-of-your business taxes.

3. Contractual Obligations

If you have obligations to vendors, suppliers, or clients, ensure that you are able to meet your contractual obligations. Try to negotiate whenever possible if the reason you’re unable to meet requirements is due to circumstances out of your control, e.g. pandemic. If you need assistance with negotiations, feel free to consult a qualified business attorney.

In addition, it’s a good time to evaluate the relationships you have with vendors, suppliers, or clients, and prioritize those of more importance.  Add value to the important relationships by communicating more with them and finding out how they are also affected by current circumstances. You might discover new ways to serve your clients through these discussions.

4. Business Insurance

If you have a current policy, review the relevant insurance policies regarding business interruption and event cancellation.  If you do not have insurance policies for your business, this is a good time to consider adding a good insurance policy to your business arsenal.

5. Commercial Real Estate

If you have a mortgage, or commercial lease, identify and review updated policies. Remember to ask about repercussions on non-payment of rent due to impact on the business.

6. Employment

If your business has employees, be sure to remain up-to-date on current employment policies and benefits. Review your employee handbooks for policies on sick and family leave to ensure compliance with local regulations.

 

While we try to suggest what we can in our articles, we realize that every small business is different.  We welcome you to contact our office to discuss your business’ unique needs during these challenging times.

how do I change my business model?

By Jessica Suotmaa 0

As California businesses have slowly been allowed to reopen, many business owners are not sure if they can continue as they have. Whether it’s due to the new COVID-19 restrictions for their industry, or fears as to whether customers consumption appetite has changed, business owners are now taking time to analyze how the pandemic will continue to affect their business. If you are a business owner concerned with whether you can continue your existing business model under the “new normal”, we can help. Not only are we able to advise you on your business and the possible implications of reopening, but we have also compiled a list of points to consider if you want to change your business model.

1. Legal Entity Type

If you’ve already determined that your current business model will not be sustainable in the long run, and have already decided to change it, then there are legal issues to consider.  The first is whether you can continue to operate the business with its current legal entity type. An experienced business attorney can be of help in making this decision, for if your current legal entity type is unsuitable for your new business model, you will need to establish a new business entity.

If you do need to establish a new business entity, you’ll have to figure out what type of business entity is more suitable than your existing one (and why!) Finally, you’ll have to decide on the relationship between your existing business entity and the new one, for example, it could be a subsidiary, or “sister”, company.

2. Employment Law Compliance

Once you’ve outlined your new business model, the type of legal entity it requires, you’ll need to see whether there are additional labor laws associated with this new model.  If, for example, you’ll be hiring remote workers instead of in-office workers, you may need to consult state and federal employment laws regarding the physical location of your employees. Don’t make drastic changes without verifying your business is in compliance with existing laws.

Be sure to update your human resources department, or employee guides to reflect changes required by your new business model.

During the COVID-19 pandemic, you also want to keep up-to-date with current and upcoming changes to pandemic-related employment laws, such as the Family First Coronavirus Response Act.

3. Contracts

Before making a pivot, see that the change in business model and activities do not break any existing contracts you have that may limit competition (e.g. non-competition clauses in certain industries). Have a contract attorney check your existing contracts before making the final leap.

Finally, before executing new contracts, consider adding provisions that may help with the COVID-19 situation, such as termination clauses.

4. Permits

When planning your business pivot, verify that you have all the permits necessary for the new business model to operate.  Also, consider if there are any regulations that may now affect your business due to the change, such as online marketing restrictions (FTC regulations).

5. Data Privacy

If your business is going online for the first time, it might be important to familiarize with data privacy laws, especially regarding the safety of your website and regulations regarding personal identifiable information (PII).

6. Intellectual Property

Generally there are two types of intellectual property issues a new business model may trigger, the first is licensing for music or other property used in media (e.g. podcasts, videos), and the second is trademarks for your new logo, etc. Read on for why you need to protect your intellectual property. 

 

As we gradually transition from quarantine to the new post-coronavirus “normal”, we all have to consider new ways of doing things for our small businesses. If we, at Lum Law Group, can be of any assistance in helping your business survive the pandemic, please contact us and we would be happy to be of assistance.

attending and scheduling an immigration appointment during COVID19

By Jessica Suotmaa 0

During the novel COVID-19 pandemic, we are all trying our best to stay safe, stay home, and keep our distances.  However, with United States Citizenship and Immigration (USCIS) offices opening up starting June 4, 2020, some of us may need to make a visit.

A few reasons why you may need to visit USCIS include:

Generally, if your appointment was cancelled due to office closures, you do not need to do anything. You will receive a new appointment notice in the mail.  This also applies to biometrics appointments for finger printing.

If you need an appointment for some other purpose, e.g. an INFOPASS, then you can make one through the USCIS contact center if your local office is open. Not all offices will be open, so check the USCIS office closures page to see if your nearest office is on the list. If it is, it’s closed.

If you need assistance with an application or petition, scheduling an appointment, or cancelling a scheduled appointment, feel free to contact our office for support.

When visiting USCIS offices, be sure to be prepared in the following ways:

Remember to follow the general coronavirus guidelines in moving outdoors, which is to stay home if you’re feeling unwell.  If you are sick, have symptoms, or have been in contact with someone who is sick, please cancel your appointment immediately according to the instructions on your appointment notice.  Your appointment will be rescheduled without penalty.

 

How to request extension of stay due to coronavirus

By Jessica Suotmaa 0

Our office has received numerous inquiries on extensions of stays for those who are in the country on non-immigrant visas.  For some, flights were cancelled by the airline, by their home country, or by other restrictions on travel.  For others, it could be an illness, an imposed quarantine, or a sick family member. Regardless of what the reasons behind the need for extension, the procedure for visa extension is the same for non-immigrant visa holders during the COVID-19 global pandemic.

Non-immigrant Visa

Non-immigrant visa holders needing to extend their stays can apply online on the United States Citizenship and Immigration Services (USCIS) website or by filing a paper copy of the form I-539 Application to Extend/Change Nonimmigrant Status.

Note: The form I-539 now includes questions related to the Public Charge rule as announced on the USCIS alert:

“The final rule requires certain applicants and petitioners seeking extension of stay and change of status to report certain information related to public benefits. Due to litigation-related delays in the final rule’s implementation, USCIS is applying this requirement as though it refers to Feb. 24, 2020, rather than Oct. 15, 2019. Please read all references to Oct. 15, 2019 as though they refer to Feb. 24, 2020.

USCIS will not consider, and applicants and petitioners submitting applications and petitions for extension of stay and change of status do not need to report the receipt of any public benefits received before Feb. 24, 2020.

Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the final rule.”

If you have further questions or are in need of assistance with extending your non-immigrant visa stay, feel free to contact our experienced immigration attorneys.

Visa Waiver Program (ESTA)

If you did not enter the U.S. on a non-immigrant visa, but are nonetheless stuck here due to the coronavirus, we’ll explain the process of how to request an extension of stay.

U.S. visitors who entered through the Visa Waiver Program (ESTA) have ninety days to leave the country. However, if your flight was cancelled due to COVID-19, or if you have other circumstances that require you to extend your stay, you can request approval for Satisfactory Departure through U.S. Customs and Border Protection (CBP).

On April 17, 2020, CBP announced it is offering flexibility for ESTA holders to return home past the initial 90-days if their travel is affected by COVID-19.  ESTA holders can request up to 30-day extensions by either:

  1. Contacting the CBP office at the Port of Entry or Deferred Inspection Site
  2. Contacting USCIS Contact Center (1-800-375-5283)

The “port of entry” refers to where you entered the United States, e.g. Los Angeles International Airport (LAX). The deferred inspection site is usually at an airport or U.S. border as well.

We contacted LAX CBP to determine how to apply for an Extension of Stay and here’s the response we received:

  • You must apply within 14 days of your visa expiration (not earlier)
  • Your extension must be based on a “serious emergency“, such as hospitalization, conditions that require flights to be delayed or cancelled for more than 24 hours
  • If your extension of stay request is based on COVID-19, you’ll have to attach relevant documentation such as flight cancellation notices, positive test results, medical records
  • For ESTA holders, you must include a Extension of Stay request form, signed Affidavit (form), copy of passport biographical page, copy of U.S. nonimmigrant visa (ESTA), and copy of admission stamp in passport

Please note that if you emailed your submission without all necessary documents, your request will be ignored (not denied). You will have to resubmit a new request.

Others who may use this method to request an extension of stay include:

    • F-1 Visa International Students
    • J-1 Visa Exchange Visitors
    • Work visa holders
    • L-1 Visa Holders
    • Adjustment of Status Applicants
    • Refugees

The Extension of Stay request can be completed by an attorney as well. Please contact our office if you would like a consultation, guidance, or assistance with your Request for Extension of Stay.

employer responsibilities during covid-19

By Jessica Suotmaa 0

While some employers are subjected to the higher Aerosol Transmissible Diseases (ATD) Standard (California Code of Regulations, title 8, section 5199) in order to protect employees from airborne infectious diseases such as COVID-19, most employers are not. If you are not in healthcare, funeral, or drug-related industries, you will not be subjected to the ATD Occupational Safety and Health Administration (OSHA) standard. You can find the list of workplaces subject to the ATD standard here.

Please note that even if your business is not subject to the high standards of ATD, it is still required to follow the latest COVID-19 OSHA guidance for workplace safety. We all know we should wash our hands (yes, with soap), but this post will highlight some of the other key points small business owners and employers must follow in order to safely reopen during the pandemic.

1. Provide Washing Facilities

Every workplace should have “washing facilities”, or a place for workers to wash their hands.  This could be a sink, or anywhere with water, soap (“washing agent”), and towels for drying.

See Title 8 sections 1527, 3366, 3457 and 8397.4

2. Disinfect and Clean Routinely

Perhaps your workplace already has cough and sneeze policies and a robust cleaning schedule, but in times of a pandemic, you should set higher standards for your workplace cleanliness.  You can do so by:

  • Reducing shared workplace areas
  • If employees must share certain equipment or space, provide disinfectant sprays or wipes so that they can clean before and after each use
  • Provide face coverings or encourage employees to use their own while in the workplace
  • Provide disposable paper towels/tissues for employees
  • Provide trash cans in convenient locations
  • Provide hand-sanitizer for employee use
  • Purchase EPA-approved disinfectants and cleaning supplies
  • Re-train cleaning staff to follow cleaning supply manufacturer’s guidelines for usage
  • Provide necessary Personal Protective Equipment (PPE), such as face masks, gloves, disinfectant wipes for employees to use freely

3. Establish Sick Leave Policies

Employers should establish sick leave policies for all employees for their safety.  This does not just include allowing for sick leave, paying for sick leave, or establishing how an employee qualifies for sick leave, but also includes the reasons why an employee should not come to work. Here’s a list of what every employer should do during the coronavirus pandemic:

  • Require sick employees to remain home.
  • Send sick employees home if they exhibit any of the following symptoms:
    • cough
    • fever
    • difficulty breathing
    • chills
    • muscle pain
    • headache
    • sore throat
    • or recent loss of taste or smell.
  • Prevent sick employees from returning to work until:
    • they have been fever-free for at least three days without taking fever reducer medication and
    • they have been symptom-free for at least ten days since their first symptoms appeared
  • Provide employees with paid sick leave if required (Families First Coronavirus Response Act)

If one of your employees is tested positive for COVID-19, be sure to keep the information private per the Americans with Disabilities Act (ADA).

4. Create a Workplace Injury and Illness Protection Program (IIPP)

California employers are required to create and set up a program to protect employees from injury and illness, which includes infectious diseases such as COVID-19.  As an employer, you must follow the following steps:

  1. Determine if your workplace could be a COVID-19 hazard. For example, if there has been exposure to someone who has tested positive for the virus, or if it’s a high-traffic area, etc.
  2. Evaluate the risk of exposure to COVID-19
  3. Prevent infection in the place by:
    1. creating physical barriers to control the spread of virus, such as the plastic screens at checkout counters,
    2. social distancing,
    3. providing appropriate personal protective equipment (PPE), hygiene, and cleaning supplies.
  4. If concerned, practice infection control measures provided by the Centers for Disease Control and Prevention (CDC):

See Title 8 section 3203

5. Encourage Social Distancing

By now, we are all familiar with the term: “social distancing” where we are encouraged to stay several feet away from any other person at all times.  As an employer, this could mean several things for you:

6. Provide Employee Training

As an employer, you should train your employees so that they are aware of how to protect themselves from COVID-19 both in the workplace and outside of it. By teaching your employees how to protect themselves, you will ultimately protect all of your workforce, you, and your customers.

Be sure all your employees are aware of the following:

 

For additional guidance on how to provide a safe workplace for your employees during this COVID-19 pandemic, please visit the California website. Your specific industry might require additional steps not listed in this article. The website is also a good resource for downloadable documents to print and post for your employees’ education.

If you have questions regarding employer liability, or even a wishlist of topics we could cover, please comment below or send us a message.

when small business owners need to lawyer up

By Jessica Suotmaa 0

If you’re thinking about starting a small business, or perhaps you’re already the owner of one, hiring an attorney may not have crossed your mind. Perhaps you’re worried about the stereotype of how expensive attorneys can be, or maybe you’re a capable do-it-yourself person who doesn’t need help. Either way, this article will give a brief introduction on when and why small business owners may want to hire a lawyer.

1. Forming a Company

When thinking about forming a company, the best time to consult an attorney is before you register it. You don’t necessarily need a lawyer to fill out and file the paperwork for you, but for the tax and legal purposes, you would want to consult an attorney about which type of company structure will fit your business best.  An experienced attorney can tell you whether that non-profit organization designation is possible. A lawyer can help you review your business plan to determine whether you should form a limited liability company or corporation.  If you’re not sure what the differences and legal consequences for the different types of entities are, you may want to ask a lawyer.

We can tell you if that partnership should be a limited liability partnership. We can also tell you if you should continue with your sole proprietorship, or if you should file for s-corporation status.  Having an experienced attorney assess your business plan before you start your business can save you many headaches later down the road.

2. Drafting Contracts

Written contracts clarify what you’re agreeing on and with whom. Since contracts are legally binding, they offer guarantees to small business owners that will prevent future losses. As such, every small business owner should either hire an attorney to draft clear and concise contracts for their business partners, vendors, employees etc.

At the very least, every small business owner should hire an attorney to review a contract that has been offered to you.  There are many benefits to hiring an attorney to review your contract.  Firstly, it is usually less costly than hiring an attorney to draft a contract on your behalf as it often takes less time.  Secondly, the attorney may come up with questions that you will need to ask the other party, thus improving your contract.  Finally, the attorney can make additions or point out weaknesses that you may or may not want to address with the other party.

3. Handling Employee Issues

Assuming you heeded our contract advice and properly executed contracts for any and all business partners and employees, you shouldn’t have too many issues regarding termination. However, there could still be issues regarding payments, unlawful termination, discrimination, or harassment.  Consulting with an attorney can prevent further losses, and ensure that you are aware of the current employee rights.

4. Licensing

No matter the size of your business, you must follow government licensing regulations.  Depending on your location and industry, you may have to adhere to city, county, state, or federal regulations. By consulting an attorney experienced in your industry and located in your area, you can be prepare in advance for the paperwork and fee requirements for your business license.

5. Registering Intellectual Property

If your business has a special name or logo, you may want to register a trademark to protect your brand. If you don’t, you may find that similar business open with similar names or familiar colors and logos as yours, stealing your customers. Or perhaps you are creative and have creations that need to copyright protection. A good intellectual property attorney will assess your business plan, goods, and branding to determine what is the best strategy for protecting your intellectual property, brand, and business.

 

The issues listed above are just the top five issues on which small business owners should consult an attorney. You may have an issue that has not been listed, or a question you’re not sure needs an attorney. Feel free to comment below, or contact one of our experienced business attorneys for further assistance.

Do I need proof of residence/citizenship to get tested for COVID-19?

By Jessica Suotmaa 0

If you think about the documents you need to obtain healthcare in the U.S., you might wonder if you need the same set of documents to get tested for the new coronavirus.  Any trip to the doctor would require filling out forms, some sort of identification, and a health insurance card (if you have one).  The forms will often request a social security number or other questions regarding your citizenship.  As such, it’s natural to wonder what forms (if any) you would have to fill out to obtain free COVID-19 testing in Los Angeles county.

It doesn’t hurt to try. We put it to the test, and made an appointment through the local Los Angeles county website. We read the FAQs, just to be sure, and we scheduled an appointment for a drive-through appointment not too far from where we’re located in Pasadena.

To be clear, there is a requirement that you are resident of Los Angeles county for Los Angeles county testing.  Each county will require an address that is within the county. Certain cities have their own tests, such as Alhambra city’s recent announcement, which would require you to be a resident of their cities.

However, you are not required to show proof that you are a resident, like an utility bill or lease.

As far as we know, all free testing sites currently require an appointment.

You fill out the form online and it requires:

  • your name
  • your date of birth
  • your home address
  • your phone number
  • your email (optional for results)

Note: It asks for your email so it can provide you negative test results via email and your phone number for positive test results. If you do not have an email, either will be provided via phone. 

Then, you choose a testing location closest to you. Site locations range from Los Angeles city to Long Beach to Pacoima.

Available testing dates depend on the location. For example, in San Gabriel Valley, the soonest appointment was four days away, but in Los Angeles city we were able to find a next day appointment.

After you schedule the appointment, there webpage provides a confirmation number which you should copy, print, or note down for your visit.

You will need to bring an ID to verify, but it can be a passport, or any form of identification that will allow the medical staff to ensure you are given the correct test results.  Your information is kept private and is protected.

Do you have other questions about COVID-19 and your immigration status? Contact Lum Law Group today. We’re here to help!

Can I get a covid-19 stimulus check if I'm undocumented?

By Jessica Suotmaa 0

On April 15, 2020, California Governor Newsom announced that undocumented adult immigrants will receive a $500 stimulus cash payment from the State. As previously discussed, many undocumented immigrants do not qualify for the federal CARES ACT stimulus check.  Undocumented immigrants also do not qualify for unemployment insurance benefits.  As a result, California will distribute $500 dollar stimulus checks, up to $1000 per household, to undocumented Californian immigrants.  This money will come from the state’s 75 million dollar disaster fund and supplemented by a 50 million dollar donation by philanthropists for a total of 125 million dollars.

The announcement states that the fund will begin accepting applications in May 2020, and approximately 150,000 undocumented immigrants will receive the cash payment.

It was not clear to us exactly how these 500 dollar cash payments will be distributed, but with some digging, we found a list of “relief funds” for undocumented immigrants. The list is in English, Spanish, and Chinese.  According to the list, there are national relief funds and local relief funds available to undocumented immigrants who meet the listed requirements. We are not sure at this time if these funds are one of the avenues for the California relief payments, but they may be worth checking out regardless.

If you have questions about California’s guidelines and regulations on shelter-in-place, essential work, staying safe, etc., you can refer to California’s Immigrant Guide.  The guide includes information on the public charge determination, which has been translated into several languages, including Chinese, Korean, and Tagalog.

Some key notes we identified from the California immigration guide include:

If you need COVID-19 testing but don’t have private health insurance…

“Even if you are undocumented and/or don’t have insurance, you can get necessary testing and treatment for COVID-19 through Medi-Cal emergency services, even at a local clinic.”

If you have Medi-Cal, but aren’t sure what’s covered…

“Emergency services are free for enrolled Medi-Cal beneficiaries which includes COVID-19 testing, evaluation and treatment services.”

If you don’t qualify for unemployment insurance benefits because you’re undocumented but you tested positive for COVID-19, are caring for a family member who is sick, and so forth…

“Undocumented immigrants may be eligible for State Disability Insurance (SDI) and Paid Family Leave.”

If you cannot afford to pay rent due to the COVID-19 pandemic…

“Under the Executive Order, you are still required to eventually make up rental payments you miss, but you will not be evicted for nonpayment of rent until at least June.

In order to qualify for the eviction protections, you must notify your landlord in writing within 7 days of your nonpayment that you cannot pay all or part of your rent due to COVID-19. For example, if your rent is due April 1st, then by April 8th.”

How has COVID-19 affected U.S. immigration? Are you a small business owner with questions on how to manage it during the pandemic? Do you have other questions regarding COVID-19 and how we can assist you? Contact us today. We’re here to help.

How has COVID-19 affected U.S. Immigration?

By Jessica Suotmaa 0

The COVID-19 pandemic has resulted in a halt in our daily lives, and significant (temporary) changes to the U.S. immigration system.  In this article, we have compiled coronavirus related immigration changes by category, or circumstance.  However, we do not go into specifics as it would depend on your individual situation and would require our attorneys’ review.  Please contact our office if you’d like an experienced immigration attorney to review your specific circumstance.

COVID-19 Testing & Public Charge Rule

On March 13, 2020, the United States Citizenship & Immigration Services (USCIS) announced the “testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” does not fall under the public charge condition. Therefore, certain nonimmigrants seeking an to adjust status or to extend stay can still test and treat COVID-19 via publically funded programs such as Medicaid or Medi-Cal. In fact, USCIS encourages anyone with coronavirus symptoms to seek medical treatment or preventative services, promising it will not negatively affect a foreign national as a part of its future public charge analysis.

To read more about public charge, and what it usually entails, click here.

COVID-19 Caused Unemployment & Public Charge Rule

In the same breath, USCIS has confirmed that it generally does not consider unemployment insurance receipt as part of the public charge determination.  Department of Homeland Security (DHS) stated it does not consider federal and state retirement, social security retirement benefits, social security disability, post-secondary education, and unemployment benefits as public benefits under the public charge inadmissibility rule. The reason is that these benefits are “earned” and to qualify for them one must have contributed via employment and specific tax deductions.

The USCIS policy manual for public charge inadmissibility determination also clearly states that unemployment benefits are an “earned” benefit are are not considered under this rule.

USCIS Office Closures

Since March 18, 2020, USCIS announced the cancellation of in-person visits until at least May 3, 2020. Check with your local office to see if they’re up and running, and whether you can reschedule your appointment, schedule a new appointment, and how to go about rescheduling.

Although in-person services with USCIS are halted, their lockbox is still open for receipt of applications and petitions.  Unfortunately biometrics and medical exams cannot be scheduled at this time, which may delay the processing of any application or petition that requires finger printing or interviews.  For example, the I-765 Employment Authorization renewal can still be mailed for processing, and USCIS has indicated it would process work permit renewals using previously taken finger prints.

On March 27, 2020, USCIS announced it will extend the deadlines to any Requests for Evidence (RFE) or Notice of Intent to Deny (NOID) dated between March 1st and May 1st, 2020 by sixty (60) days. This automatic extension also applies to Notices of Intent to Terminate (NOIT) and Notices of Intent to Revoke (NOIR). Certain field offices may have additional extensions that apply to even earlier notices. Check with your field office website or call the office for confirmation.

To contact USCIS, click here, or call (800) 375-5283. If you’d like assistance in the scheduling or rescheduling of your appointment, contact our office for advice.

ICE Office Closures

Immigration and Customs Enforcement (ICE) has announced that it will not be searching medical facilities, such as hospitals, for illegal immigrants.

Due to COVID-19, detention centers no longer allow “social” visitors to visit detainees.

Whether or not your specific field office is open, and whether you need to check-in depends on the location and your individual situation. If you have questions, please contact your designated office. If you need assistance in determining whether you need to make the visit, or someone to accompany you, please contact our office.

Immigration Court Closures

The Executive Office of Immigration Review (EOIR), or immigration court, in Los Angeles is currently only open for detainee hearings and filings.   If you have a pending case with the immigration court, and are not sure where you stand, you can contact the court or our office for additional support.

 

Finally, refugee entries have been restricted, and the asylum agreement with Guatemala has been stopped for the time being. If you have questions regarding how COVID-19 has affected your particular circumstances, do contact our office to speak with an experienced immigration professional.

COVID-19 Relief for Small Business Owners and Employers

By Jessica Suotmaa 0

With the current COVID-19 pandemic, the closing of non-essential businesses, and the fears for an upcoming recession, many small business owners are either suffering, or preparing to suffer. We, at Lum Law Group, are in the same boat. We are also a family-owned small business with few employees that, for the most part, caters to our local community.  While we are still answering calls and helping existing and potential clients, we share the same concerns as our clients, our employees, and our fellow small business owners.

In this article, we have outlined relief and resources that may assist small business owners during these difficult times. We would like to remind you that you can call us if you need assistance with vendors, landlords, or any other COVID-19 related issue. We are here to help!

Payroll: Paycheck Protection Program

Part of the CARES Act was to fund the Small Business Administration (SBA) to provide assistance to small business to continue to make payroll.  The SBA’s Paycheck Protection Program (PPP) allows businesses with fewer than 500 employees to borrow money specifically for payroll.  Less than twenty five percent of the borrowed amount can be used for other things, such as mortgage interest, rent, and utilities. You can borrow enough to cover an eight week period, which must be used within eight weeks after receiving the funds.  Loan repayments are deferred for six months.

While applications opened today (April 3, 2020), SBA announced that self-employed individuals and independent contractors will not be able to apply until April 10, 2020.

Payroll: Defer Paying Social Security

If you are self-employed, or have employees, you can defer making the social security portion of employment taxes for the time being.  This would mean a reduction of 6.2 percent tax paid on wages. The deferral allows you to pay the deferred amount over a two and a half year period, where half of it would have to be paid by December 31, 2021 and the second half by December 31, 2022.

Payroll: Keep Paying Your Employees

As part of the new economic stimulus plan, if you can prove that your business has lost fifty percent or more in profits due to coronavirus, your business can qualify for a “prize” for retaining your employees. Even if your business is closed, if you keep your employees on payroll, you can qualify for up to fifty percent of your employee’s wages.  This “prize” for keeping payroll not only helps your employees who may not be able to work from home, or may not have much to do.

As an employer, you will receive the prize in the form of a tax credit on your business tax return.

Note: Businesses that receive a SBA loan will not qualify for this tax credit.

Tax Deduction: Restaurant, Retail, Hotel

If you are a restaurant, hotel, or retail store owner, you can prepare and file amended tax returns to deduct the cost of property improvements. This deduction was supposed to be part of the 2017 tax overhaul anyway.

 

As you can tell, most of the available relief is for employers.  If you have questions about California unemployment benefits for independent contractors and self-employed individuals, please visit the EDD website. If you would like to learn more about the “stimulus check”, please read our post here.  If you have issues with vendors, landlords, business partners, etc. please contact us for how we can help you. Together, we can get through the crisis!

Coronavirus Economic Stimulus Relief Check

By Jessica Suotmaa 0

Are you wondering if you qualify for the stimulus check from the new COVID-19 stimulus bill that was signed on March 23, 2020? The economic stimulus increased unemployment benefits and provides a round of payments to qualified Americans and their children, among other things.

In this article, we will answer the most common questions our readership may have related to the stimulus bill.

Q: Who qualifies for the relief?

In most articles, the wording is left at “Americans”, as in “Americans” earning a certain amount of money (below a threshold) qualify for the stimulus check.  But, what does “Americans” breakdown to mean? Does it include permanent residents? Or is it for citizens only?

A: Any U.S. resident who pays taxes and qualifies based on income restrictions will receive the relief check, including retirees and people on disability.

(more…)

Coronavirus: Can I be fired?

By Jessica Suotmaa 0

Due to the coronavirus pandemic, companies have lost business, sales have gone down, and profits have plummeted. As a result, many are cutting costs by reducing work hours, or even their workforce. Here in Southern California, we have encountered questions from you regarding job loss, such as:

“Can my company let me go for no reason?”
“Can I be fired because of the coronavirus / COVID-19?”
“Can I fight back if my company lays me off for no reason?”

Also, on March 17th, 2020, Governor Gavin Newsom signed an executive order regarding this issue. If you’re working in California, please continue reading as we explain the ordinary situation, and the current situation.

California is “at will”

Unless you have an employment contract specifying employment terms, such as the length of employment, or specific dates of employment, you are subject to the “at will” employment terms in California state.  What “at will” means is that you can be let go at any time, for any reason–or alternatively, no reason at all, at the employer’s will.

Given this, the short answer to all of the questions above is: “yes”. You can be let go, for no reason at all, by your employer due to the coronavirus.

If you do have an employment contract, be sure to see what the terms state regarding breach of contract or early termination.

What is Cal-WARN Act?

If you’re an employer, the executive order signed on March 17th, 2020 will help you.  The order modifies the existing Cal-WARN act to cover COVID-19 (coronavirus).  California Worker’s Adjustment and Retraining Notification (Cal-WARN) originally applies to California employers with more than 75 employees, including part-timers.  Under the act, qualified employers must provide 60-day notice to its employees prior to closing the business operations at the employee’s location, relocating operations to a location more than 100 miles away, or terminating more than 50 employees in a 30-day period.

However, the Cal-WARN act does not cover physical calamities or acts of war, which could be an exception the COVID-19 pandemic falls under.

Violation of the Cal-WARN Act could entitle employees to back pay and cash equivalent to benefits for up to a 60-days or one half of the employee’s employment period (whichever is shorter).

Relief for Employers

The executive order signed by Governor Newsom went into effect on March 4th, 2020, when California officially declared a state of emergency.  Most notably, the order suspends the 60-day notification requirement to employers who meet certain requirements, such as:

  • Prior to termination, relocation, or mass layoffs, the employer notifies affected employees, Employment Development Department (EDD), the local workforce investment board, and the chief elected official of each city and county government.
  • If the employer cannot give 60-day notice, it is required to provide notice as soon as possible, with a brief explanation as to why it cannot adhere to the 60-day requirement.
  • The employer is terminating, relocating, or laying off employees due to circumstances caused by COVID-19, that were not reasonably foreseeable.
  • If the employer is providing notice after March 17, 2020, the employer must include the following statement in the notice:

“If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UY and other resources available for workers is available at labor.ca.gov/coronavirus2019.“

If you have any questions regarding unlawful termination, how to handle mass layoffs, or just questions regarding the legal aspects of covid-19 and how it may affect your employment or employees, contact us today!