|Feb. 1, 2010 | www.fisherphillips.com|
It will be no surprise if employees approach this year's office Super Bowl or NCAA Tournament pools with a little more trepidation. Last month, Fidelity Investments made national headlines when it fired four employees for participating in a fantasy football league. For those unfamiliar with it, fantasy football is a game in which participants are organized in a competitive league, earning "fantasy points" by using the statistics of real professional football players. Surprisingly, Fidelity's rationale for the firing was not so much that the employees were using company time and resources to participate in the league, but rather the company's designation of fantasy football as a form of gambling.
The number of H-1B audits will continue to rise in 2010, so H-1B employers should be prepared for unannounced site visits from U.S. Citizenship and Immigration Services (USCIS) to confirm the information submitted in H-1B filings. The USCIS Office of Fraud Detection and National Security (FDNS) has recently commenced an audit of the H-1B program. Under H-1B regulations, FDNS does not need a subpoena to investigate H-1B employers. One of the USCIS Service Centers has already transferred approximately 20,000 cases to FDNS as part of the H-1B assessment program. As a result, it's clear that site visits will continue and all H-1B employers must be prepared for an unannounced site visit at anytime.
Over the past year, federal and state governmental agencies have signaled their intent to more seriously investigate the misclassification of employees as independent contractors. For various reasons, employers often find it desirable to classify certain workers as independent contractors, but state and federal agencies often look at classification decisions very closely. While there are instances where individuals are legitimately classified as independent contractors, such individuals are often in fact misclassified employees – and penalties can be severe.