Tuesday, December 18, 2007

The Sky IS Falling

I was stunned to read the following in an article on the current Social Security “no match” notifications mess.  The quote, published in the October issue of Inside Counsel Magazine, reads as follows:

“You can fix a false negative if the agency has enough staffing to deal with it… It’s a logistical issue, not a legal issue.”

This assessment, attributed to the former General Counsel of the Dept. of Homeland Security, absolutely knocked me back in my chair. The gentleman, now in private practice, was discounting the potential impact of the proposed sanctions and fines targeting employers who do not act when notified by the Social Security Administration that some of their employees may not have matching numbers.



This advice is anathema not only to the letter of the law but to the over all enforcement-based philosophy of the Bush administration in its sunset year and it is truly an amazing statement coming from someone who has presided over immigration enforcement in the aftermath of September 11th.



Here’s what’s really going on, folks:



  • In August, the US Dept. of Homeland Security gave specific instructions to employers on what they need to do to respond to “no match” letters received from the SSA.


  • The regulations carried both a benefit and a threat: Those who followed the letter of the new rules were granted safe harbor; those who did not do so could face an increase risk of civil and criminal penalties, including fines and even jail time.


  • The AFL-CIO, the ACLU, and a variety of other labor and civil rights groups-- as well as diverse business interest groups -- challenged these regulations in federal court, securing a reprieve from employers who were fearing the worst.  Some industries, such as the roofing sector, essentially advised an enforcement of “no match” letters would shut down their entire industry.


All of these facts suggest that quote, which casually suggests that fear over the enforcement of the “no match” letters is essentially unfounded, is truly dangerous counsel, and it troubles me that it appeared in the most reputable magazine aimed at in-house corporate counsel.  The position is predicated on an erroneous and naive notion, namely that the SSA has the necessary staffing to distinguish between those incorrectly identified as working illegally and those truly in violation of the US law.



In reality, the Social Security Administration has not been properly staffed in decades and it is certainly not in a position to respond on a real-time basis to these inquiries.   The enforcement efforts by HSA have been entirely that -- enforcement.  No concurrent meaningful staff development to prevent and correct enforcement errors has EVER been considered by this administration...not with SSA, not with USCIS, not with DOL.  The philosophy of the Bush administration, documented time and time again and repeatedly ruled unlawful by federal courts and the U.S. Supreme court, has been as blunt as our international diplomacy:

Sanction first, fine, arrest shut down the suspected violator... and worry about the rule of law when the civil libertarians pitch a fit.

Invariably, in any enforcement action by the Executive targeting corporations, we are operating in a climate of "guilty until proven innocent by a federal court".  Innocent people lose jobs.  Companies lose productivity.  The economy continues to slide.  Moreover, the consolidation of multiple enforcement functions which were previously independant but are now within the absolute jurisdiction of the HSA, combined with the current Executive contempt for the rule of law all but eliminating independant federal agency decision-making, means something even worse that few have noted:



If an enforcement effort under one law is stayed by a federal court, nothing stops the Executive branch from using another enforcement tool to effect the same result.



Translation: if they can't fine employers for SSA "no match" violations, send out the I-9 audit teams.  If the I-9 audit teams can't get it done, send out the health inspectors, etc. 



I have never been in a role of Chicken Little, but that’s how I stand on this one: This is not alogistical issue”, folks.  This is a legal issue with profound implications and ramifications for corporations which choose to keep their guard down in 2008.



Tuesday, December 4, 2007

A New I-9 in Your Christmas Stocking

With their characteristic sense of humor, U.S. Citizenship and Immigration Services (USCIS) merrily announced a Christmas present for U.S. employers: based up the rule issued late last month in the Federal Register, employers will be required to use the new Employment Eligibility Verification Form I-9 starting Dec. 26, 2007, or risk fines and penalties.



Why, you ask, do we need a new form I-9? Because the government has changed the list of documents upon which an employer can rely in determining U.S. employment eligibility. Specifically, one document has been added and five have been removed from the category lists. As so often happens with hastily issued regulations, instructions are convoluted and have been reported in various ways. First, on the 11/8 notice, employers were informed they could use the new Form I-9, but were not required to do so. But the latest Federal Register notice says that the USCIS will allow a 30-day transition period before use of the new Form I-9 becomes mandatory, but once the transition period ends, employers who do not use the new Form I-9 could face fines or other penalties. I reread all of this and the best I can advise you is:



Start using the new I-9 NOW.



Since it’s unclear to me, it will probably be equally unclear to those tasked with I-9 audit and enforcement, so I suggest you play it safe and just begin to use the new one immediately. The documents employers can accept under List A on the new form I-9 are:



• U.S. passport.



• Permanent Resident Card or Alien Registration Receipt Card (Form I-551).



• Unexpired foreign passport with a temporary I-551 stamp.



• Unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A or I-688B).



• Unexpired foreign passport with an unexpired “Arrival-Departure Record,” Form I-94, bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status, if that status authorizes the alien to work for the employer. The documents removed from List A and no longer acceptable as proof of U.S. employment authorization are:



• Certificate of U.S. Citizenship (Form N-560 or N-561).



• Certificate of Naturalization (Form N-550 or N-570).



• Alien Registration Receipt Card (I-151).



• Unexpired Reentry Permit (Form I-327).



• Unexpired Refugee Travel Document (Form I-571).



Folks, I-9 enforcement will hit a new stride in 2008 and that's why the Administration is eager to ram this new form down the throat of Corporate America. The reasons is quite clear: with a lame duck administration, a wide-open presidential election, and a Republican party severely weakened by war-weary voters, what better way to swing voters to the right than to publicize "immigration enforcement"? Remember: Mssrs. Bush and Chertoff are operating under the Executive Branch of our government, meaning these I-9 changes and enforcement actions are immune from Congressional intervention. What more powerful tool to swing undecided voters back toward a Republican presidential candidate than to dedicate the remaining year of this administration to dramatic enforcement targeting unauthorized workers and, by implication, their employers?



Making migrants scapegoats for political purposes is nothing new, but never before have the politics meant a wholesale assault on American competitiveness. Given the current economic and political climate, the GOP views immigration enforcement as one of the few remaining tools in its political arsenal which has both a widespread public awareness factor AND the opportunity to shift their core supporters one hard step further to the right.



U.S. employers would be wise to begin 2008 with a full scale I-9 internal audit and comprehensive systemization of the I-9 process, because the ax isn't aimed exclusively at undocumented workers this time around.



Sunday, December 2, 2007

Listen up USG Contractors: Time to Comply

The pressure to comply with employment verification requirements may soon hit companies which contract with the U.S. governement.  This is from SHRM:



"The House has already included language in four appropriations bills that would require all federal contractors to participate in the government's voluntary electronic employment verification system known as "Basic Pilot." SHRM has advocated the removal of these provisions because the Society believes the "Basic Pilot" system is unreliable and unable to verify accurately the legal status of employees at nearly 200,000 federal contractors - more than ten times the number of employers that currently use the "Basic Pilot" system. As the result of SHRM's efforts, the language requiring federal contractors to use the Basic Pilot system has been removed from two of the four appropriations bills sent to the President for his consideration and we are diligently working on the removal of the other two provisions from the remaining bills."



Translation for HR folks with big USG contractors: time to hunker down and get those I-9s under control.  This is the hot topic du jour as far as my inbox for the last few weeks and let me tell you:  it's got the attention of some pretty big players.



Email me at  jlatour@i9advantage.com for information on how we can help you protect your government business from this latest enforcement effort.  Jose



Sunday, November 25, 2007

Things are Tough All Over...But Needn't Be

This Thanksgiving weekend I did something I'm a bit embarrassed to admit:  I caught up on all the business magazines and WSJs sitting in my "to read" pile.  It's Sunday and the workweek begins tomorrow, but I wanted to make this comment based on a consistent underlying theme I found weaving through much of what I read.



The theme: until Americans become fiscally responsible, we will continue to sink economically.



Yesterday, the WSJ explained that as far as the subprime mess, we ain't seen nothing yet.  Turns out that all the headline grabbing foreclosures have NOT been the result of the ramping up of adjustable rates but, rather, first year foreclosures by those would couldn't make the bills with the ORIGINAL, subprime rate which enticed them into the purchase in the first place.  In the first part of next year, when the rates jump on maturing adjustable mortgages, it will get much uglier.



As the credit market continues to tighten, we are seeing it starting to impact the commercial real estate market.  Meanwhile, important heads are rolling on Wall Street and we are days or weeks away from the once inconceivable $100 oil barrel...as both U.S. and foreign car dealers continue to push mega-SUVs on an increasingly fiscally reckless American public.  Economic indicators suggested a bleak holiday sales season, but Black Friday saw unfazed Americans whipping out the plastic and the credit purchases will continue on Monday when the big Web retailers pull out the stops and discount their own stuff.



The problem is this:  the people buying these SUVs and charging up their credit cards for Christmas are, for the most part, the same across-the-board Americans who (at best) irresponsibly or (at worst) fraudulently provided the so-called "stated income" which qualified them (with the help of unscrupulous brokers) for the mortgages which are now triggering this somewhat slo-mo version of fiscal Armageddon.  This perpetually-abused Canadian dollar is eye-level with its U.S. counterpart and the Euro towers condescendingly down upon the once-almighty greenback.  U.S. supermodels are demanding contract renewals in Euros, not dollars, and it takes a sub-prime U.S. mortgage to spend a week on the French Riviera.



As America's might languishes, business -- global business -- explodes around the world, which has the very embraced economic efficiencies the U.S. has preached since the WWII...and forgotten since September 11th.



Ask yourself these questions:



1-What does the U.S. economy look like if we subtract the people employed by the military, its contractors, and the Homeland Security "army" resulting from September 11th?



2- Optimistically assuming that the U.S. can win this war and reduce the terrorist threat to America, how will the U.S. private sector absorb these good people once this war ends and, hopefully, once the terrorist threat is minimized?



3- After years of the government hitting U.S. H-1B employers with massive "U.S. Training Fees" to subsidize the training of U.S. students, why are U.S. colleges STILL not graduating even a fraction of the technology, science, and allied health graduates U.S. employers need?



Right now, the answer is simple: because as a nation we are talking globally but operating xenophobically, and it is really not working very well at all.  In addition to the staggering cost of this war and its aftermath, the integration of this massive government workforce into private sector can ONLY happen in a growth-driven economy where Americans understand that if we do not embrace global economic truths, we will be left out of the benefits of the global economy.  And the sheer idiocy of the notion that U.S. kids could effectively be bribed into careers which are of absolutely no interest to them is now a historically proven fact.



One simple act of Congress can begin the changes necessary to put us back on track.   Bipartisan legislation eliminating bogus training fees and giving the U.S. IT, healthcare, and pharmaceutical industries the number of H-1B visa they need to staff, build, and grow -- with a valid H alternative for registered nurses -- would be signed by President Bush and would trigger:



1- the end of the exodus U.S. companies like Microsoft were forced to begin earlier this year when the proposed immigration reform failed.



2- the ability for U.S. employers who rely upon foreign talent to fill job vacancies to plan future plants, R&D, and growth in the U.S., just as they did when the temporary increase of H-1B numbers, leading to steady U.S. job growth for AMERICANS;



3- a proactive response by U.S. healthcare providers to establish excellence in geriatric care for the legions of Baby Boomers headed into their Golden Years.



4- American's rightful restoration as an industrial innovator and leader properly able to care for the health of its population.



Fat chance anything like this will happen before the election, and even then, in this "blame the immigrants" climate which fails to distinguish illegal aliens from desperately needed skilled foreign workers, It won't be an easy thing to do.



But at least there will be some real deals on Hummers, right?



Tuesday, November 20, 2007

Why GCs are Embracing Workforce Compliance

InsideCounsel magazine recently reported the results of an innovative study undertaken by another publication, Corporate Board Member magazine and FTI Consulting.  In the survey/study, over 1000 General Counsels and board directors were asked about the steps they are taking to mitigate risk within their organizations.  The eye-opening results suggest that the "ostrich head in the sand" approach to compliance is being rapidly replaced by a growing awareness of the risks of federal and state enforcement and the catastrophic damage enterprises face when they do not take broad scope compliance seriously.



The catchword du jour is "Enterprise Risk Management", or ERM, and it's actually the latest incarnation of something that's been around for over a decade.  In 2002, the Sarbanes-Oxley Act turbocharged the need for internal controls, and public companies scrambled to comply.  Here's what how Wikipedia defines ERM:



  • "In business, Enterprise Risk Management (ERM) refers to the methods and processes used by organizations to manage risks (or seize opportunities) related to the achievement of their objectives. ERM provides a framework for risk management, which typically involves identifying particular events or circumstances relevant to the organization's objectives (risks and opportunities), assessing them in terms of likelihood and magnitude of impact, determining a response strategy, and monitoring progress. By identifying and proactively addressing risks and opportunities, business enterprises protect and create value for their stakeholders, including owners, employees, customers, regulators, and society overall.


But Sarbanes-Oxley didn't really address the more mundane aspects of corporate governance and risk reduction dealing with operational compliance issues.  Instead, the Bush Administration, through the aggressive effort at enforcing laws already on the books, has prompted this new push toward comprehensive, enterprise-wide risk reduction.  Consider the findings of the aforementioned survey:



  • 75%= GCss who spent more time on compliance in 2006 than in 2005


  • 48%= GCs who spent more time on ERM in 2006 than in previous years


  • 35%= GCs who said that governance changes are the focus of their ERM Assessments


  • 57%= GCs who would seek personal ERM advice from outside counsel [emphasis supplied]


That last statistic is the -- hang on, another French term coming, I'm on a roll today -- raison d'être for the cost of most risk management today: utilization of outside counsel for the implementation of operational methodologies designed for daily use.  The facts are:



-Most attorneys -- no mattar how high their hourly fee -- are about as qualified to design a company-wide regulatory compliance implementation scheme as they are to command the Space Shuttle.  It takes a combination of legal expertise, intimate understanding of client IT and administrative processes already in place, and process management wizards to establish a viable ERM suitable for daily use by all employees.



-The new ERM focus goes far beyond the technicalities of Sarbanes-Oxley to address everything from Social Security "no match" letters to I-9 compliance to EEO, ADA, and other federal, state, and sector-specific requirements which can cripple a company during one swift inspection or audit.



Which brings me to my point:  yes, it takes top tier legal expertise to define the requirments of ERM and distill them into a distinct series of client tasks.  But the difference between a visually impressive compliance plan which no one understands and therefore cannot implement and a practical, usable compliance plan embraced throughout the organization for its ease of use and simplicity is one thing: process integration. 



Email me to discuss what we can do establish a bullet-proof Workforce Compliance Manangement plan for your company.



Thursday, November 1, 2007

Workforce Compliance: Outside Counsel vs. Outside SOLUTION

Counsel to Counsel magazine ran an interesting article in its October 2007 issue entitled "Choosing the Right Outside Counsel"  The article is a helpful analysis of what GCs should look for when reaching outside of their own corporate resources for the solution of a legal matter.



The article begins with an astute analysis of the increasing focus on corporate ethics and the need for transparency.  Among the suggestions the writer mentions to assist in house attorneys in finding outside counsel are networking forums, law firm networks, and, of course...peer review ratings.  (Double disclosure before I continue:  1- Martindale, the benchmark for attorney peer rating co-publishes the magazine along with InsideCounsel; 2- My Martindale A/V rating is a badge I've worn proudly for a decade and half and despite where I'm going today in this article, I still believe Martindale Hubbell to be the single best identifier of excellence in attorneys.)



The article, in and of itself, is great; the underlying premise -- that GCs must go to "outside counsel" for legal solutioning, is what is flawed.  Agreed: the vast majority of corporations are not quite at an aggressive "think outside the box" stage of legal evolution.  Still, the notion that outside law firms are the ONLY option is terribly mistaken.  A new generation of solutions is here for large corporations, and some of the mightiest have been blazing the path toward outside legal solutioning.



Consider James Buda, vice president and general counsel for Caterpillar.  Five years ago, at the 2002 Law Vegas, Mr. Buda met the attorneys of 10 law firms and told them in no undercertain terms that the party was over and the rules were changing.  When Mr. Buda headed Cat's litigation department in the 90's, the company relied on over 400 outside law firms for litigation; he trimmed that down to 20. And these 10 in Vegas were the half which remained after he became GC in January 2002.



You can read the full article here (in fact it is from Corporate Counsel magazine, Inside Counsel's predecessor) but the bottom line is that Mr. Buda totally reinvented Caterpillar's litigation solution to save the company a great deal of money while consolidating control and making the firms accountable for performance via a grading system. 



GCs like Mr. Buda are few and far between and bucking the trend of historical outside firm outsourcing is no small feat.  But in areas LIKE litigation support, intellectual property, contract management and my own area of immigration and labor law compliance, smarter alternatives continue to evolve for folks who, like Mr. Buda, want a better SOLUTION, not just another firm letterhead.



Compliance needs to be integral.  Talk to me and let me show how our solutions can affordably and seamlessly infuse bulletproof workforce compliance into your company.  Think outside the box and your company too can walk the way of the Buda.



Tuesday, October 30, 2007

Reinventing Lawyers

I've noticed that as one grays around the temples, some sort of phenomenon gives others the impression that you know more than you knew before.  Suddenly, people who might never have listened to a word you had to say consider you a "resource" or, even worse, a "mentor".



In the case of my two sons --16 and 19 -- the phenomenon has eluded them; polite and wonderful as they are, it is clear from the rolling eyes that I've not much new to say.  Perhaps their epiphany of my wisdom will be manifested by some other physical change, perhaps false teeth, the continuing gravitational pull on my chin, or perhaps a prop (cane, walker, etc.).



In any event, the children of OTHER people seem to think I have something to say...and they are not shy about asking.  I probably have two or three conversations a month with someone considering law school.  I read them the Riot Act, explain market supply and demand, why associate attorneys are, in the vast majority of cases, today's version of galley slaves, killing themselves to enrich the fat coffers of their fat bosses, etc.  I tell them of the rewards of law, of the extraordinary buzz I get out of seeing the face of someone whose potential disaster I averted through my legal training and skills.  We discuss areas of practice (they ALL want to be international or immigration lawyers, poor souls) and they are always excited about our banter.



There is one subject, however, that takes them ALL by surprise:  it is when I tell them that while the tradition for lawyers is to graduate, get hired, and move up the food chain, the world of legal practice is changing dramatically and their reality will most likely be considerably different.  They must, I tell them, forget about that tradition and instead look ahead toward the practice of law as a tool with which they can find a meaningful, satisfying,  and financially rewarding career in the global economy.  I usually get the same response.



A blank stare.



The mythology of entitlement and order is being dashed to the ground by the global economy, and it stuns me that no one is really talking about its impact on the legal profession.  Law schools -- indeed ALL forms of higher education -- are one of the largest business sectors in the U.S.  Big money is spent on tuitions, on designer label visiting professors, and on the buildings which they call home.  So we look at little Joey, all grown up, talking about going to law school, isn't that wonderful...but we do not analyze the statistics which suggest that Joey might be better off starting his own web publishing business or taking that little eBay site he's done so well with up to the next level.  There is a considerable vested interest in our society in keeping those law schools full, and so Joey goes to law school.



In contrast, MBAs graduate with no uniform expectation of career path; the degree is viewed as a useful business tool preparing them for an infinite number of commercial possibilities, defined by their abilities, passions, and creativity.  A business partner of mine got his MBA and has spent his entire life in the non-profit sector.  Not so with a law degree, at least for the majority who seek it. I knew from day one of law school that I was not of the personality type which considers litigation "fun";  I knew I would not follow the "normal" career path most of my colleagues expected.  But today's prospective lawyers, despite the way the global economy is unfolding, remain oblivious to this new reality.  Instead of understanding the need to match their personal abilities and interests to what the economy demands, furious young law graduates ranting about their $150,000 in student loans and $8/hour clerkship are front page news in the Wall Street Journal.



Whoosh, just goes right over their brilliant little heads.



While we make a fine distinction -- sometimes passionately -- between "professions" and other industries, the truth is that, advanced degrees notwithstanding, doctors need patients every bit as much as plumbers need clogged pipes.  (Oh, the self discipline I am invoking to not inject a barrage of plumber/doctor wordplay at this point.)



The predictable career path of attorney lore is no more, but there is nothing to grieve about...change for improvement is always good.



Consider my very good friend, Casey.  Our family doctor for many years, he had a wonderful family practice.  We could drop by on a moment's notice if a kid got sick.  As is the case with so many physicians, after many years he came to the conclusion that there had to be a better way to practice.  He was tired of spending half his time running the business of being a physician, which only took away time from his passion...taking care of patients.



I would not describe Casey as anything other than smart and steady, but when the opportunity to join a large practice group materialized, he made the changes; going from a lovingly built private medical practice to a great big corporation was no minor event in his life.  Today, his time is spent on patients and he doesn't spend weekends paying bills and figuring out payroll.  Okay, so I don't know the receptionist anymore and I can't swing by to shoot the breeze because he is working very hard all day, but he is taking care of more people, has a great support system, owns his time and is very happy with the transition.



Change for improvement is ALWAYS good. 



Just as Casey found a new way of looking at his long-established medical practice, prospective and practicing lawyers would do well to similarly analyze the incredible inefficiencies which continue to characterize the U.S. legal system, depriving clients of the attention and service they deserve, and further eroding the reputation of our noble profession which is, after all, about helping other people.



Friday, October 26, 2007

Unions in Check: NLRB Permits Faster Challenges by Members

As the National Labor Relations Board hustles to clear its docket, corporations are being pleasantly surprised...while unions cry "foul".



Dozens of recent case decisions show a definitive intent by the Board to further limit organized labor. The Bush administration has long been the target of union criticism; after years of pro-union decisions during the Clinton years, the about-face created tremendous issues for unions. Setting aside their own well-document issues -- for example, the ongoing corruption probes, their pragmatic, practically-overnight embracing of migrant workers into union membership after years of ruthlessly demonizing them, etc. -- organized labor has decided that the current Board simply isn't playing fair. But are they correct?



It depends how you view it. The five appointed members of the NLRB inlcude three Republicans and two Democrats. Two of the Republicans' and one of the Democrats' terms are due to expire soon. A 3/2 split is hardly outrageous for political appointees and the NLRB Chairman, Republican Robert Battista, says the claims of the unions are horse-hooey: they are clearing the docket because the docket needs to be cleared and there is nothing partisan whatsoever going on. But the nature of the beast itself IS political, as can be documented by the consistently pro-union votes of the Democrats and the consistently anti-union votes of the Republicans.



But one decision in particular is relevant to large employers: limitations in "card checks". Basically, when a union attempts to organize within an employer, the employer may agree to recognize the union as a majority if the majority of workers in the company have signed cards showing their support for unionization. Obviously, unions love this because it is easy to get a signature for a generic endorsement...and much harder to wage war via a voting campaign.



Because unions are in the business of generating revenues for unions, the more members, the better. Duh. But in doing so, many make a lot of promises which soon vaporize, leaving the new members with only union dues as a reminder of their union membership. Accordingly, many who sign a card check soon change their minds. Under federal labor laws, once a union is recognized via card check, disgruntled members can't force an actual vote for 3 years or the length of the initial contract, whichever is less.



Accordingly, the you-know-what hit the fan when the Board recently decided that a minority of workers can seek an election within 45 days of a card-check driven formation.



This means two things:



-false promises are no longer a viable means of inducing card check support and



-employees affected by unionization will be for the first time ever empowered to challenge deceptive union formation practices.



As we learned through the elections we forced upon Iraq, democracy may not make everyone happy, but that's precisely what democracy is..



Thursday, October 25, 2007

Metagaming, Economics, and Global HR Compliance

Today I am going to talk about the LEAST talked about 2007 Nobel Prize, the one in Economics, awarded to three U.S.-based economists - game theory pioneer Leo Hurwicz, Eric Maskin and Roger Myerson. After half a century of work in a little-known but massively cool area of game theory, it’s about time.



Before I get into explaining their area – known as mechanism design theory (MDT) – I must explain that as a person who barely squeaked by with a “B” in Dave Denslow’s Economics class some 30 years ago at the University of Florida, I am hardly in a position to analyze, much less pontificate, over a heady topic such as this. Still, it is the Blessing of the Blog that its author can spout forth in both wisdom and ignorance, and the reader can read or roll his/her eyes and move on. Motivated by the early watchers of the night sky who were able to connect the dots and assign meaning and function to what appeared to be chaos, suffer my ramblings as I cobble together my theory on how MDT can transform your business. Perhaps I can shed a ray of light or two on the gloomy night sky of global workforce compliance in the process.



A recent economist described MDT as exploring “the gap in knowledge between buyers and sellers, and the costs and consequences for the efficient operation of a market.” Wikipedia describes it this way:



“Mechanism design is the art and science of designing rules of a game to achieve a specific outcome”



It is a form of “Metagaming”, which Wikipedia describes as:



“...a broad term usually used to define any strategy, action or method used in a game which transcends a prescribed ruleset, uses external factors to affect the game, or goes beyond the supposed limits or environment set by the game.”



Getting creative within a hornet’s nest of federal and state HR bureaucracy presents a number of challenges; this is precisely the story behind the success of I-9 Advantage and our evolving suite of workforce compliance services and products..



Here’s a beautiful example of metagaming at its core, also from Wikipedia:



“There is a special set of moves in chess which allows a player to win in four moves. Competitor A has been watching Competitor B play chess, and the past five games in a row Competitor B has attempted to use this four-move win. When Competitor A sits down to play against Competitor B, Competitor A will be metagaming if he/she plays in a way that will easily thwart the four-move checkmate before Competitor B makes it obvious that this is what he/she is doing.”



That, dear reader, is why I get so stoked about what we are doing. In a world where government regulations continue to hammer industrial clients with potentially collossal fines and sanctions, I-9 Advantage is thinking several moves ahead and guiding our clients through these murky times.  I-9 Advantage has quietly become the leading provider of I-9 and workforce compliance solutions because we have, quite simply, shattered the box.



Rooted in Total Quality Management, infused with Design for Six Sigma, and encrusted with the desire to shake up the legal status quo and give U.S. and global employers a smarter solution, the attorneys and experts at I-9 Advantage are all driven by a common vision of excellence.  It is our curiousity, our willingness to take things apart, analyze them, and reinvent them, that has led to the industry revolution we have triggered.  As we disrupt, those disrupted are grumbling, but that’s part of the process. 



Just like the guy whose four-move checkmate no longer works.   Talk to me if you need to no more about what we can do for your corporate peace of mind.



Wednesday, October 24, 2007

As if Compliance isn't a Big Enough Headache...

The EEOC is reporting that HR departments are being targeted for bogus emails containing a Trojan Horse virus.  According to the department, the email's subject matter features precisely the kind of wording that makes the heart of an HR Director or GC leap:



"Harassment Complaint Update For"



Pass this information on to your recruitment, HR, and legal folks.  Although most of us have virus detection software protecting us, a lot of folks don't run such protection at home, on mobile devices, etc.  Let them know NOT to open any attachments or click on any links if they receive what appears to be an EEOC email.



Trust me, if there's been a complaint, the EEOC won't by shy about relaying the info to you via a legitimate email without infected attachments.



Monday, October 22, 2007

2007 in Enforcement: Business in the Bullseye

Back on August 9th, ICE -- U.S. Customs and Immigration and Customs Enforcement -- released a five page memo euphamistacally entitled "Protecting National Security and Upholding Public Safety".  The memo, signed off by Asst. Secretary of Homeland Security Julie L. Myers, attempts to stamp the administration's current employer-sanctions initiative with the seal of "national security" and "Public safety".  Consider the proud list of raids detailed within and see how much safer you feel from Al Qaeda:



-Fresh Del Monte Produce 160 farmer workers rounded up with fake social security and other documents; each faces, according to the memo, up to 15 years imprisonment and a $500,000 fine...roughly one fruit picker's earnings over 112 years the GNP of his village in Sonora (when combined with the next 15 villages in the vicinity.)



-George's Processing Plant- 136 southwest Mississippi chicken-pluckers/gutters/cleaners/packagers.  Of those, one was charged with "being an illegal alien in possession of a firearm".   Sounds like Al Qaeda to me.



I could go on and enumerate the other 10 raids proudly hailed as "protecting our national security" , but it doesn't seem worth the tedious effort:  the dining room wait staff, landscapers, pork processors, sweatshop seamstresses, cleaning crews, hotel maids, etc. which make up the balance of those arrested and placed in criminal proceedings didn't really sound like, uh, terrorists.



Should U.S. immigration laws be enforced?  Absolutely!  Should employers who willfully violate such laws be sanctioned?  By all means.



Should the administration take a deep breath, regroup, and rethink its policy of linking chicken pluckers with national security in its wholly incredulous attempt to justify its heavy-handed intrusion on private sector employers while offering them no viable means of legalizing their workforces, made up of mostly decent foreigners willing to do the work you and I prefer not to do?



I think so.  The whole WMD fiction that got us into Iraq is now hitting even closer to home, and no lawn, hotel room, or unpicked tomato in America will be safe until someone slaps this sadly chaotic administration upside the head with a wake up call for sane solution which doesn't villanize employers of low-skill laborers and the workforces upon which the depend.



Wednesday, October 17, 2007

The Fear Factor Hits HR

Why, oh why, am I always right?



Like some latter day Nosferatu infused with the wisdom of the immigration elders, I've been calling this whole "Attack on U.S. Employers" deal for about four years...and once again my voice calling in the regulatory wilderness proves prophetic.



The call came yesterday: an old friend/client whom I'd transitioned to U.S. permanent residency several years back was in a panic.  It seems an audit letter requesting an I-9 review of his employer, a substantial South Florida enterprise with several hundred workers, had landed on the boss's desk a few weeks ago and the boss bellowed for the usual suspect: the Director of Human resources...my friend's new position.



"What do we do, Jose?  I've looked through the files and it's a mess!   It was all before I was in the job and most of the I-9s are incomplete or don't have copies of the proof of work.  I already have called in about 50 Latin employees to update their files and bring in their proof of permission to work. You have to help me!"



Here we go again, I thought to myself.  After explaining the concept of "Privacy Act" and advising him to revisit his approach as far as correcting the problematic I-9s, I gave him a few suggestions as to how to assemble the documentation for the site visit...which is tomorrow.  I could hear the gnashing of his teeth as I said goodbye.



They're in big trouble.



Experiencing a bit of a deja vu, I dug deep into my archives and tracked down an email I'd sent my friend's boss about two years ago, advising them that given their industry sector (can't say) and profile, it was essential to conduct an internal I-9 audit to remedy any issues since the company was a prime target for workforce audit.  I read the email history and saw it was my second such email to the company's owner, and that he had responded to neither.



No prophet is welcome in his hometown.  Perhaps those of you reading will heed the Book of Workforce Compliance Revelations and get thee to I-9 Advantage before the fire and brimstone hits your HR team.



Tuesday, October 16, 2007

Simplifying Workforce Compliance for Inside Counsel

Political tides shift, and the historical benevolence extended to corporate America by Republican administrations has given way to an enforcement-driven policy designed to salvage conservative voter discontent.  The losers, of course, are not just the corporations suddenly facing a barrage of potential fines and sanctions.  Both undocumented AND lawful workers are being caught in the fine bureaucratic net intended to enforce existing -- and often conflicting -- Social Security, labor, and immigration laws.   And while they will not receive much sympathy from either the U.S. government or the public, corporate legal departments are in the front line of the current battle.



The October 2007 issue of Inside Counsel magazine features an excellent discussion of this phenomenon by Charles James, Chevron's General Counsel and Vice President.  Mr. James astutely points out that the days of "innocent until proven guilty" are long past for U.S. companies, and GCs must carefully determine how best to deal with this reality:



"In today’s world, law enforcement personnel expect that a mere government letter questioning company behavior will prompt the company to launch a comprehensive investigation and deliver the results to government enforcers. The government also expects that a company of any significant size will maintain its own internal police force—not just a passive organization that comes when called, but rather one that aggressively patrols, monitors, detects and investigates all aspects of legal compliance."



The question suggests, he says, is clear: "Should corporate legal departments also act as the corporate police or, more politely, the corporate compliance group?"



Mr. James argues that the GC is ill-equipped to serve as that "internal police force", and here's why:



"First and foremost, there’s the question of resources. A corporate compliance scheme that meets current government expectations must involve ongoing monitoring, testing and auditing programs. These activities, which must be integrated into daily business operations, are more in line with what auditors and accountants typically do. If the corporation is going to task its legal department with performing such duties, it must be prepared to provide the expertise and resources necessary and to deploy those resources in a manner that provides a clear line of sight to potential problem areas."



You can read Mr. James' article in its entirety here.  He goes on to explain that in Chevron, they keep compliance distinct from the law function, but acknowledges that there are a number of ways to "skin the cat".



Staying on top of workforce regulatory issues which can damage a company is what I-9 Advantage group does 24/7.  Email me at j.latour@i9advantage.com to see if our version of cat-skinning is what the doctor ordered for your enterprise.



Thursday, October 11, 2007

SS Enforcement/I-9 Battle Win for Employers...as War Looms

A collective sigh of relief could be heard across the U.S. this morning as General Counsels, immigration attorneys, and labor organizations heard the good news:  the U.S. District Court for the Northern District of California granted a temporary injunction keeping the federal government from initiating its aggressive new enforcement of so-called “no match” Social Security letters.  Under long-existing regulations, the Social Security Administration issues notifications to employers when an employee’s SSN information does not match government record. 



The new policy, abruptly announced this summer and immediately stayed temporarily until this federal court could review it, manifested the administration’s jaw-dropping about-face in its approach to the problem of illegal workers: after the President’s plan to legalize the U.S.’ 12 million+ undocumented aliens collapsed, the White House immediately announced aggressive new enforcement rules aimed at prosecuting those very undocumented workers, while simultaneously threatening to cripple those industries which rely upon migrants to fill jobs American’s don’t want to fill.



What does this temporary injunction mean?  Well, for starters, it means you have a little longer to get your leaky roof fixed before Mr. Chertoff and crew shut down the roofing industry, where the overwhelming majority of workers are not lawful U.S. workers.  The parties were ordered  by the court to “meet and confer on the form of the injunction, and submit a proposed order by October 12, 2007.”



Here’s how the court summarized its decision:



On August 15, 2007, the Department of Homeland Security (DHS) promulgated a final rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” See 72 Fed. Reg. 45611 (Aug. 15, 2007). Plaintiffs, a consortium of unions and business groups, filed a motion for preliminary injunction, arguing that injunctive relief is appropriatebecause they have demonstrated a high probability of success on four theories: that the rule…



(1) contravenes the governing statute;



(2) is arbitrary and capricious under the AdministrativeProcedure Act;



(3) is an exercise of ultra vires authority by DHS and the Social Security
Administration (SSA); and



(4) was promulgated in violation of the Regulatory Flexibility Act.



The balance of hardships tips sharply in plaintiffs’ favor and plaintiffs have raised
serious questions going to the merits. Accordingly, the motion for a preliminary injunction is GRANTED.



Now, nice as that sounds, here’s the problem:  looking back at the last few years, it’s pretty clear that when courts have tried to limit the power of the executive branch, things haven’t always turned out the way the court intended them to turn out.  Consider Guantanamo.  Or maybe the whole wire/phone tapping stuff.  And then there was Valerie Plame incident.
It’s pretty clear that the relationship between this administration and the courts attempting to enforce our Constitution is not exactly cordial.  This most recent temporary victory – and I stress the former…temporary  -- does not mean employers are by ANY means out of the woods.  In fact, if history is to be considered, it is almost certain that the federal government will continue to pursue whatever enforcement is possible so long as it does not fall specifically with in the letter of the law, i.e., the ultimate language of the injunction.  If history is to be considered, forget about the “spirit of the law”…if the injunction doesn’t spell it out, it will be fair game for Mr. Chertoff.



Therein lies the bedeviling problem:  since the Homeland Security Adminstration was created in response to the horrible events of September 11th, the already convoluted and overlapping laws and regulations addressing illegal employment have become a kaleidoscope of bureaucratic chaos.  At the helm of all of this is an agency which, despite its noble purpose, is tasked with the enforcement of an encyclopedic collection of complex and contradictory statutes and policies which it fails to fully comprehend.  This is nothing new: the fact is that the Privacy Act clearly prohibits a number of requirements imposed in long-existing employer enforcement provisions, and the fact is that probably 100% of U.S. employers are in one or another form of non-compliance with one law or another.



Worst of all, beleaguered GC’s and Directors of HR have not been able to count on outside counsel for a solution.  Sure, there’s software to input I-9s, but who’s keeping a current, real-time audit of workers’ employment status?  And how many of those hiring managers, recruiters, and HR teams have been trained – as they are required by law – to properly collect, monitor, and archive I-9 information?



To hear more about our lean, mean, bullet-proof I-9 solution and the protection it offers against federal fines and share-busting headlines, email me at J.Latour@I9advantage.com .   When I explain what we can do to manage your company’s I-9 compliance, you’ll breathe your own sigh of relief.



Wednesday, October 10, 2007

CAFTA Update- Costa Rica (Probably) Comes Aboard

Well, I've been checking online to confirm the facts but I still can't find definitive confirmation on Sunday's CAFTA vote in Costa Rica.  It APPEARS that voters approved it by a narrow (52%) margin.



Good for them if they did.  The call centers will remain open.  The export opportunities to the U.S. will expand for Costa Rican businesses.  The business centers and corporate affiliates will arrive in greater numbers, creating more jobs and stimulating the economy of this stunningly magnificent yet bureaucracy-ridden paradise.



Maybe my friend will get even get the dial up Internet access for which he's waited six months.



The lesson in Costa Rica is not so much about what Costa Rica WILL accomplish by becoming a participant in the Central American Free Trade Agreement.  The lesson, I believe, is about what they ALMOST didn't approve, and the economic decimation which faces economies which reject globalism for illusions of a world economy long dead and buried.



In today's economy, to the victor comes the spoils.  And so India booms and China explodes, and Brazil trots along, all via their homegrown workforces meeting global market demands.  Meanwhile. the U.S. endlessly debates whether our economy needs to increase the woefully inadequate 65,000 annual visa limit for H-1Bs and -- forgive me for repeating this yet AGAIN -- Bill Gates has no choice but to take his business -- and the thousands of jobs it creates --to Canada.  Unlike the legion of quality schools in India and China cranking out IT, technology, medical, and other professionals in high demand, the U.S. continues to graduate art history majors (no disrespect, I love art...but we just don't need that many, okay?)



Here are the facts about the H-1B workforce in the U.S.:



  • H-1B visa holders represented only 1.2 percent of professionals employed in colleges and universities in 2001 and 1.4 percent in 2002.


  • Even in the field of computer systems design, long stereotyped as the domain of foreign professionals, the share of H-1B visa holders dropped from 10.9 percent in 2001 to 4.4 percent in 2002.


Costa Ricans are divided as well, but the majority are smart enough to understand the consequences of burying their heads in the economic sand.  What about us?



Monday, October 8, 2007

CAFTA and Costa Rica: A Diorama of Globalism vs. Nationalism

Yesterday's referendum in Costa Rica on the proposed free trade on a free trade pact appears to be headed toward approval.  My Tico friends -- Costa Ricans refer to themselves as "Ticos" -- are pretty solidly divided on the issue: half believe that approval of the treaty is an indispensible part of Costa Rica's future, citing the fact that Costa Rica is the only remaining holdback (the Dominican Republic, Guatemala, Honduras, Nicaragua and El Salvador have already approved their participation.)  But a growing number of Ticos -- now about half -- are skeptical of the benefits of free trade, arguing that it could adversely affect Costa Rica's farmers and traditionally "sovereign" sectors such as telecommunications.



While I can't speak on the impact on farming, I can think of nothing better for Costa Rica and its people than to have direct competition leveled against its woefully inept telecommunications system.  The entry of U.S. providers would mean the end of the ICE (national phone company) monopoly, and that would be a good thing.



Jealously guarding a national industrial sector is anathema to a free market, and BOY does Costa Rica serve as living proof.  Recently , faced with dramatic losses from international long distance revenues, ICE demanded that VOIP - voice over internet -- be deemed an illegal infringement on the soveriegn control of telephony.  The lines of patient Ticos filling ICE offices speaks volumes about the reality of the situation:  getting a home internet line can take months, getting a cell phone can take even longer.



It's easier to get a cell phone in Equatorial Guinea, West Africa, an isolated island ruled by an authoritarian leader, than it is to get one in Costa Rica, where Oscar Arias is again at the helm. The same Oscar Arias who won the Nobel peace prize is now being called a "traitor" on his way into the CAFTA voting booth for supporting the free trade agreement.



Whether or not CAFTA passes in Costa Rica -- and it looks like it will -- the lessons from all the bruhaha leading up to the election are very telling for those of us involved in global business.  In the past, this kind of debate about entrenched national "rights" was limited to the Castros, Kims, and the uber-hystrionic Chavez...dictator/demagogues disguised as nationalists.  True leadership seeks market efficiencies; even the Chinese leadership, as control-driven as ever, has implemented broad reforms designed to improve the lives of the population.  So you would think that in a service and tourism driven economy such as Costa Rica, the current national division on free trade is a true aberration.



It isn't.  What it IS is a reflection of the nationlistic reflex we will increasingly see in a global economy, both in developed nations and in those less developed.  The reason is simple: human beings don't like change.  They are threatened by it. It is the tragic reason why so many choose to remain in an abusive relationship because they fear living alone.  It is why the majority of Americans, regardless of their political persuasion, are unable to deviate from the dogma of their respective political party and concede points to the opposing party.



Consider the BPO's (business process outsourcers) which have permeated Costa Rica's economy for the past decade.  Long hailed as a favorite call center location for both its political stability and educated workforce, thousands of Ticos work for leading U.S. and international companies, servicing calls throughout the English and Spanish speaking world.  The failure of Costa Ricans to approve CAFTA will surely mean the end of this industry and the loss of thousands of jobs, much as U.S. legislation against online gambling forced thousands of Ticos out of their online casino jobs.



Just as Bill Gates moved a major operation north to Canada the day after U.S. immigration reform fell apart earlier this year, the many Fortune 500 companies with call centers in Costa Rica will find more favorable conditions elsewhere...and more Tico jobs will disappear.



From my perspective, this phenomenon is like the diorama of a great war within each nation, where those seeking entitlement via national ownership of industries are up against the pragmatists who believe that the only possible way forward is through increased utilization of technologies and relationships which improve efficiencies and costs across the board.  Here in the U.S., when the bipartisan immigration reform bill was slayed, the "nationalists" won.  And the next day Microsoft had no choice but to head to Canada.



If you root out the emotional stuff -- that indignant demand that, darn it, this is OURS and we MUST own it -- invariably nationalism as applied to economic considerations is a folly, leading to some pretty dumb stuff.  I think Costa Rica has better things to do than arrest folks for using Skype.



The truth about this whole "Globalism vs. Nationalism" debate boils down to intelligent analysis.  To paraphrase Jeff Goldblum's character in Jurassic Park,  explaining how it was possible to have dinosaur eggs hatching when all the genetically-engineered dinosaurs were of one gender: Business will find a way. 



VIsionary leaders will understand that fact and steer their economies with that in mind, expending energy to define the highest value in workforce ability instead of digging in their heals to keep foreigners out.  Keeping a watchful eye on how this unfolds is critical for companies with global workforces.  Today's dream offshore location might be tomorrow's hyper-regulated backwater, and tomorrow we might be staffing places we can't even pronounce today.



Monday, October 1, 2007

Faulty Logic

Today a U.S. District Court in San Francisco begins examining the legality of a planned U.S. government crackdown which, if implemented, will, among other things:



  1. make the cost of your produce skyrocket


  2. paralyze the few remaining active sectors of the U.S. construction industry


  3. shut down restaurants and make the cost of your next roof repair triple


At issue is the recently announced plan to step up enforcement by the Social Security Administration of so-called "no match" letters, the process by which the SSA notifies an employer when the Social Security information submitted by an employee does not match federal records.   Essentially, employers have now been placed in the position of "immigration police", and the crackdown will devastate sectors of the economy historically dependent upon foreign labor.   This morning's Wall Street Journal succintly reveals the administration's oxymoronic policy shift:



"The Bush administration prepared the crackdown after Congress failed to pass an immigration bill that would have legalized the nation's 12 million illegal immigrants."



Whatever side of the immigration debate you fall into -- and after 20+ years of living and breathing immigration I myself am still somewhat undecided on the best solution -- one must admit that the 180 degree turn from supporting a resolution intended legalize migrants to target enforcement directed at U.S. enterprises reliant upon them is a bit perplexing.



Theories abound: some believe that in the wake of his failure to pass immigration reform, Mr. Bush sees his legacy inextricably linked to the neoconservative crowd.  If you can't legalize 'em, shut 'em down...even if "'em" means lawful U.S. enterprises and even if the U.S. consumer feels the brunt of the enforcement in his/her bank account.  Others believe that the pragmatic-sounding-but-economically-unfeasible approach -- "let's just enforce the laws we already have on the books" -- is a politically more neutral manner of showing that, well, the government is at least doing something...



Whatever the reasons behind the crackdown, a number U.S. industries are in a near-panic, and the legal review which begins today will determine the fate of many U.S. businesses.  Initiated by the AFL-CIO (another oxymoronic reality for an old-timer who remembers when unions were vehemently anti-immigrant) and later joined by the U.S. Chamber of Commerce, the United Fresh Produce Association, the National Roofing Contractors Association and the Association of Nursery and Landscapers, the legal challenge is based upon the argument that the enforcement could lead to discrimination against of firing of U.S. born workers or legal immigrants.  The argument convinced a federal judge in August, and the enforcement effort was stayed pending the result of the proceedings which begin today.



If the challenge proves unsuccessful and the administration initiates the strict enforcement policy , employers of some 7.3 million workers in the food service, construction, housekeeping, agricultural and numerous other sectors will face fines in excess of the current $2200 per-worker limit.  The roofers told the WSJ that their 4300 members have "no way to run [their] business if this goes forward." In U.S. agriculture, an estimated 70% of workers are illegal immigrants.



You can see where this is going.



This is not a political question because everyone on ALL sides of the fence agrees that the U.S. must both control its borders AND remain economically strong.  And we all agree that, well, picking tomotoes is just not something we really have time to do.  It is, instead, a complex question which integrates our nation's economic need to fill jobs Americans will simply not take,  our commitment to an already-battered  U.S. consumer economy, and our belief in our nation's history of wisdom, generosity, and decency  in dealing with uninvited migrants over the centuries.



Left to the reasoning in Washington, the Melting Pot will soon contain nothing but hot water.



Monday, September 24, 2007

"Astronomical" Bonuses, Marble Lobbies and Other Legal Fictions

The headline with the biggest font on the front page of this morning's WSJ is captioned: "A Stingier Job Market Awaits New Attorneys."  The piece is pretty significant and well researched, attributing the glut in lawyers to a variety of factors. The critical component is demand: more young Americans want to become attorneys in the U.S., and in response more universities opening new law schools, which are big money-makers.  After giving us a couple of colorful examples (including a recent Seton Law grad earning $50K in Manhattan who calls his law degree "a waste"), the article then moves on to discuss the economic climate in the big law firms, concluding that "the prospects for big-firm lawyers are growing richer".  My favorite line in the article:



"While offering robust minimum salaries, those firms are paying astronomical amounts to their stars."



And therein, precisely, lies a key problem afflicting the U.S. legal sector.  I recently wrote the "$1000/hr." attorneys who made ANOTHER cover of the WSJ not too long ago.  In that article, one senior in-house counsel didn't think it unreasonable to pay that kind of money for a true expert.  Perhaps not, but the question for corporate decision-makers responsible for legal budgets is quite simple: "Do I need a megafirm attorney with a megafirm hourly rate to deal with routine legal processes?"  I venture to guess that 95% of the legal work outsourced by the Fortune 500 is neither esoteric nor sufficiently complex to warrant that kind of pricing.  And right there is both the waste and the smug entitlement plaguing our distinguised profession.



The truth is that our culture has taken the vile reality of the Gordon Geckos of law and deified them.  We joke about them, but we sure we like to be in on that joke.  We listen to a pompous Donald Trump as if he actually has something to contribute to our knowledge and his seminars are packed with wannabe billionaires.  We read the articles about the PI attorney with his three jets and think "man, just ONE jet..."



But the truth is obvious to all of us, smacking with resonance of your grandfathers' pragmatic response to this phenomenon:  It's all bullfeathers.



Gordon Gecko was a bad person.  He was a caricature of unethical, ruthless greed gone wild in our culture, the same greed plaguing the legal profession every bit as much as it has Wall Street.   



Ironically, young legal grads like the $50k-per-year Manhattan attorney -- I'm still trying to imagine how he can survive on that in the city -- are the ones graduating with hefty six figure student loans...loans which will increasingly end in default.  For reasons which continue to escape me, we have turned a generation of Mr. Rogers-driven "I am special"/"I can be anything" and somehow left them with the notion that all that adds up to the right to great financial success irrespective of the realities of the economy in which they intend to exist within.  They believe they are immune from market forces.  Moreover, for those of us who became attorneys for reasons beyond our potential income, hearing a new grad call his law degree a "waste" saddens us; the article goes on to mention a Texas law grad oozing with compassion in his criminal practice, saying that it's sad to find himself "thinking it's a great day when a crackhead brings me $500."



Honestly, it just makes me feel old.



Sigh.



We who practice law -- old timers or new grads -- are no more entitled to a fat paycheck than anyone else.  With increased globalization -- hate it or love it -- it is the responsibility of every player in a free market economy to A) Identify his/her part in the marketplace, B) Reconcile their skill set with their areas of personal interest and C) Undertake the training/education/personal growth needed to harmonize A and B and create for themselves a marketable position in the economy which will meet their personal and financial goals, subject to their limitations and strengths.



To paraphrase Jay Foonberg, author of "How to Start and Build a Law Practice": set out to become a rich lawyer, you'll get nowhere fast; set out to become a great lawyer...and you can't help but make a lot of money.  It is innovation, not entitlement, which shall drive the success of tomorrow's "player" attorneys, and the times are indeed "a-changin".



As the Fortune 1000 awaken from their dogmatic slumber and realize that the best interests of their companies are not being met by their current outside counsel, the trend will shift toward more cost-effective legal solutions better integrated into existing internal processes.  Shareholders will applaud, the delivery of legal services will change...



...and that jet you wanted will be available at a very attractive price...



"Astronomical" Bonuses, Marble Lobbies and Other Legal Fictions

The headline with the biggest font on the front page of this morning's WSJ is captioned: "A Stingier Job Market Awaits New Attorneys."  The piece is pretty significant and well researched, attributing the glut in lawyers to a variety of factors. The critical component is demand: more young Americans want to become attorneys in the U.S., and in response more universities opening new law schools, which are big money-makers.  After giving us a couple of colorful examples (including a recent Seton Law grad earning $50K in Manhattan who calls his law degree "a waste"), the article then moves on to discuss the economic climate in the big law firms, concluding that "the prospects for big-firm lawyers are growing richer".  My favorite line in the article:



"While offering robust minimum salaries, those forms are paying astronomical amounts to their stars."



And therein, precisely, lies a key problem afflicting the U.S. legal sector.  I recently wrote the "$1000/hr." attorneys who made ANOTHER cover of the WSJ not too long ago.  In that article, one senior in-house counsel didn't think it unreasonable to pay that kind of money for a true expert.  Perhaps not, but the question for corporate decision-makers responsible for legal budgets is quite simple: "Do I need a megafirm attorney with a megafirm hourly rate to deal with routine legal processes?"  I venture to guess that 95% of the legal work outsourced by the Fortune 500 is neither esoteric nor sufficiently complex to warrant that kind of pricing.  And right there is both the waste and the smug entitlement plaguing our distinguised profession.



The truth is that our culture has taken the vile reality of the Gordon Geckos of law and deified them.  We joke about them, but we sure we like to be in on that joke.  We listen to a pompous Donald Trump as if he actually has something to contribute to our knowledge and his seminars are packed with wannabe billionaires.  We read the articles about the PI attorney with his three jets and think "man, just ONE jet..."



But the truth is obvious to all of us, smacking with resonance of your grandfathers' pragmatic response to this phenomenon:  It's all bullfeathers.



Gordon Gecko was a bad person.  He was a caricature of unethical, ruthless greed gone wild in our culture, the same greed plaguing the legal profession every bit as much as it has Wall Street.   



Ironically, young legal grads like the $50k-per-year Manhattan attorney -- I'm still trying to imagine how he can survive on that in the city -- are the ones graduating with hefty six figure student loans...loans which will increasingly end in default.  For reasons which continue to escape me, we have turned a generation of Mr. Rogers-driven "I am special"/"I can be anything" and somehow left them with the notion that all that adds up to the right to great financial success irrespective of the realities of the economy in which they intend to exist within.  They believe they are immune from market forces.  Moreover, for those of us who became attorneys for reasons beyond our potential income, hearing a new grad call his law degree a "waste" saddens us; the article goes on to mention a Texas law grad oozing with compassion in his criminal practice, saying that it's sad to find himself "thinking it's a great day when a crackhead brings me $500."



Honestly, it just makes me feel old.



Sigh.



We who practice law -- old timers or new grads -- are no more entitled to a fat paycheck than anyone else.  With increased globalization -- hate it or love it -- it is the responsibility of every player in a free market economy to A) Identify his/her part in the marketplace, B) Reconcile their skill set with their areas of personal interest and C) Undertake the training/education/personal growth needed to harmonize A and B and create for themselves a marketable position in the economy which will meet their personal and financial goals, subject to their limitations and strengths.



To paraphrase Jay Foonberg, author of "How to Start and Build a Law Practice": set out to become a rich lawyer, you'll get nowhere fast; set out to become a great lawyer...and you can't help but make a lot of money.  It is innovation, not entitlement, which shall drive the success of tomorrow's "player" attorneys, and the times are indeed "a-changin".



As the Fortune 1000 awaken from their dogmatic slumber and realize that the best interests of their companies are not being met by their current outside counsel, the trend will shift toward more cost-effective legal solutions better integrated into existing internal processes.  Shareholders will applaud, the delivery of legal services will change...



...and that jet you wanted will be available at a very attractive price...



Thursday, September 6, 2007

(Starship) Enterprise Management

Whether you are an in-house attorney at a busy corporation or in private practice, you can probably relate to this scenario:  your paralegal -- with whom you have a codepenency rivaling that of the most dysfunctional sitcom couple -- is finally off for a week-long vacation he/she planned a year ago.  Your desk is full of sticky reminders and your Outlook calender is peppered with a rainbow of conference calls, kid's soccer practice, cases due, and client follow-up calls.  You arrive Monday morning, optimistic but wary...and then all hell breaks loose.



By the time you are able to track the overnight you sent for the last minute filing (not your fault but the client's fault), you have 12 half-intelligible messages from the new receptionist, who isn't quite as detail-oriented as she presented herself to be when interviewed by your HR Director.  The school calls because your son is sick, you call your spouse, and when you get their voicemail, you remember that he/she is handling a big site visit today...and can't be interrupted.



By the time you have managed to pickup your son and take him home and arranged to have your daughter's friend's mom to drive her home after soccer practice, it is 5 p.m. and you've had to cancel two calls and two filings due tomorrow sit staring at you on your desk.



How the best laid plans so easily go awry, eh?



Now, compare your reality to Captain James Tiberius Kirk, he of the Starship Enterprise.  Your missing paralegal is his damaged deflector shield.  Your failing receptionist is his unstable dylithium crystal down in Engineering.  Your unattended and overdue casework is the humanoid planet relying on the Enterprise for protection from an imminant Klingon attack, and Scotty can't get the big girl up to light speed with the dylithium crystals acting up.



But note the difference between your enterprise and Kirk's Enterprise:  while all this is going on, Kirk stays on the bridge.  As Atticus' Mark Powers would say, he stays at his "dashboard".  His control center is built to preserve his stability and steadiness when the you-know-what hits the fan.  Kirk pesters Scotty, who's always "givin' her all she can take, Captain, she can't take much more".  He doesn't go through the sliding doors, get in the elevator, and get in Scotty's face to micromanage because he's not an engineer!  Kirk knows what his team is doing and knows what they can deliver.  He knows that the resolution of the problem is in the most competent hands and that's what makes him Captain: he's assembled a team of professionals upon which he can rely and for which the idea of micromanagement is unthinkable.



That, my friends, is what hybrid outsourcing operations can do for your in-house immigration department or private immigration  practice.  I sold my law practice four years ago; in the five preciding years, the crew of MY enterprise -- attorneys, paralegals, and other personnel -- did not need to be micromanaged.  While my life wasn't exactly a Corona commercial, I really did spend a great deal of time on the beach, laptop in hand, thousands of miles from where my team was making it happen.  Through scaling, we were able to handle international accounts firms our size would never dream of approaching; through systems engineering, training, and an unwavering commitment to client service, the firm continues to grow.



You went to law school to practice law, yet the delivery of legal expertise takes up perhaps 10% of your day; the other 90% is spent on things best handled by the Scottys and Uhuras of the world, not by you.  Simple as that.  And whether your ambition is to work less hours or to make more money, enterprise management is the key, and our profession is as adaptable to efficiency as any other.



Email me your questions and I'll show you how, using today's technologies and intelligent resource partnering, you really can transform your business immigration practice into a Corona commercial.



Wednesday, September 5, 2007

Okay, I really HAVE to get a new photo on this...

Went to visit my 85 year old mother for lunch and when I showed her the new blog, she said (translated from Spanish):



"Wow, that looks very interesting...and complicated...and who's the young man in the picture, your boss?..."



As Hootie and the Blowfish complained..."Time...why you punish me...?"





"Compassless" Colleges: Why America Will Increasingly Rely on Imported Talent

This morning's Wall Street Journal features a provocative editorial by Peter Berkowitz, a professor at George Mason University's School of Law.  Berkowitz, a senior fellow with the Hoover Institution, is an astute observer of trends in American education.



The editorial piece, entitled "Our Compassless Colleges" asks a simple but important question: is it unreasonable to expect U.S. colleges to define curricula intended to produce "educated human beings?"  Mr. Berkowitz specifically analyzes what we know as "liberal" education, as in the general education requirements college students must work their way through before focusing on their major.  He delves into this pretty profoundly, but he sums up his point like this:



"A university that fails to teach students sound mental habits and to acquaint them with enduring ideas handicaps its graduates for public and private life".



Here, here.  Speaking as the father of a very bright sophomore at one of the nation's "Top Ten Party Schools" (my beloved alma mater, the University of Florida), I can attest to the validity of Mr. Berkowitz's point: Alex and I spend infinitely more time discussing his fraternity, his ponderous consideration of changing majors, etc. than we do in discussing these very cornerstones of education, "sound mental habits" and "enduring ideas".



I submit that the problem is not so much with an educational system gone soft but, rather, with a society gone soft.  Visit any major university with high admission standards and you will find a student parking lot crammed with new BMWs, tangible realization of the "Do well in school and we'll pay for everything" mentality prevalent in the middle America value system.  The kid's got a four point bazillion GPA, what's another car payment, we rationalize.



In doing so, we have inadvertently spawned a nation of Art History majors (and the like) with the economic appetite of a multi-platinum rapper, aspirations of Bill-Gates-ness, and the inability to fix a simple Windows error.



In the Philippines, where I had an office for a few years, churning out medical graduates for "export" is part of the economy; money arriving from abroad is a pivotal economic force for the nation.  In India, hundreds of colleges churn out thousands of IT graduates who have spent years laboriously toiling over the very programming codes Mr. Gates toiled over when this whole computing thing was just getting rolling.



Meanwhile, back at the ranch we have...Art History majors.



The U.S. remains the most powerful economy on the planet, but it isn't thanks to the workforce our educational system is producing.  The government can tax employers who need foreign hires and make the money available to U.S. students willing to study these "high demand" professions, but the government can't instill the culture of compassion and respect for the elderly fostered by Filipino society upon a young American who has systematically been taught that the elderly are to be quietly tucked out of site and forgotten.  Similarly, school counselors can hammer away to demonstrate to students that the future for them lies not in some vague pursuit of a nebulous dream -- be honest, how many of us really know what we want out of our lives in our teens and early twenties? -- but in an earnest attempt to develop skills which will both fulfill their interests and establish them as a marketable resource in a changing economy.



We are the privileged and we are the blessed, but until American society replaces the myth of economic entitlement with the instilled understanding that globalism means meritocracy, PERIOD, our youth will falter and our need for skilled offshore labor will continue to expand.



Tuesday, September 4, 2007

The Immigration Crackdown: the End of Corporate Complicity

Today's Miami Herald screams the main front page article loud and clear:



"IMMIGRATION CRACKDOWN"



Drive through the urban portions of Miami, my de facto hometown (well, since I left Cuba at the age of four) and you will see them, lunch buckets in hand and hard hats perched on their noggins.  An army of undocumented aliens has built this city these past few years, obvious yet invisible, critical yet irrelevant (to many), as essential as they are collectively incognito.



Along Miami Beach, they wait on tables, clean hotel rooms, and manicure lawns.  Entire teams of indocumentados descend upon our golf courses and corporate parks, neighborhoods and public property to mow, trim, and clean up what the rest of us take for granted.  They make up an invisible underclass, the big pink elephant in the room no one down here really wants to mention.



Like so many individuals, the companies which employ these folks -- both small and global -- preserve the historical ostrich-like poise: head buried in the sand in denial of the obvious legal violations around them, well-feathered company butt sticking up in the air, obvious to anyone who bothers to look.



Well, this administration is looking:  faced with a resounding defeat of the immigration reform he'd hoped to leave as his legacy,and stinging from criticism of the war and a cabinet all too contentious, President Bush has but one weapon in his arsenal with which to appease his remaining conservative base: enforcement.  And nowhere is that more visible than in immigration.



With Americans demanding enforcement of existing laws, the Bush Administration has reached deep into existing rules and, all of the sudden, the ostrich isn't safe.  As the Herald reports, since August 10 the Homeland Security Administration has launched a 17 point initiative including everything from Social Security's so-called "no match" letters, advising employers of possible enforcement due to SSN irregularities in their employees' records to increased bed numbers in detention centers to new pre-clearance rules for federal contractors.  Fines have gone up, people are scared, share value will drop and corporate heads will invariably roll when the selected enforcement targets are made public.



Given that the vast majority of the Fortune 500 have SOME kind of federal contracting relationship, the stakes are high.  The tools for compliance are there:



-internal I-9 audits



-HR/Immigration compliance database liaising



-HR training and hiring protocols which establish real time compliance from point of hire



And yet the majority of heads remain firmly stuck in the sand.  I encourage counsel for these corporations to consider the historical fact that when it comes to enforcement, the bigger the USG's catch, the better.  Mr. Bush is scrambling to leave a positive legacy; Congress is tangled up over the chronic need to address the high skill worker shortage with the need to secure our borders.  The new enforcement directives will define the President's final period in Washington and if he cannot be remembered as the President who fixed the broken U.S. immigration system, he'll settle for "the President who enforced our immigration laws".   



Drop me a line if you think it's time to cover your company's well-feathered yet pretty obvious liabilities...



Saturday, September 1, 2007

How much is TOO much? Attorneys fees are out of control

From the August 22, 2007 Wall Street Journal:



"The hourly rates of the country's top lawyers are increasingly coming with something new -- a comma"



Quietly and without much fanfare, leading law firms have been steadily increasing their hour billing rates and the WSJ's timely article broke the silence, creating an online avalanche of outrage and disbelief via blogs and editorials from diverse sources.  Everyone seems to be asking: "How on earth can attorneys possibly justify $1000+/hour billing rates??"



Well, Microsoft may have perhaps put it most succinctly:



“This is grossly excessive by any measure, and truly proves the maxim that human greed has no bounds..."



That comment, triggered by $4702.50/hour billing rates from plaintiffs' counsel in a Wisconsin antitrust class action suit against Microsoft, was included in court pleadings after Microsoft -- which admitted no wrongdoing -- decided to settle the case via the payment of plaintiff counsel fees.  Lead plaintiffs' counsel Richard Hagstrom was apparently perplexed by the defendant's comment and is quoted as saying that he "can’t figure out what they are talking about".  He patiently explained to the newspaper that  in contingent fee cases like the one in Wisconsin, plaintiffs lawyers deserve a premium. Okaaaaay...



What Mr. Hagstrom describes as an entitlement befitting the heroic defenders of the hapless general public sounds a lot more like greed to the rest of us...even those of us not known for our low hourly fees.  Look at it this way: broken down into a 40 hour work week, that hourly fee adds up to $188,100 per week.



That's some premium.  But it's downright reasonable compared to what high flying Willie Gary, the flashy Florida plaintiff's attorney, bills per hour: $11,000.  Quoted last April in the WSJ online, Gary had this to say about a settlement agreement wherein he asked for hourly compensation in that amount:  “Look, had we won the case, we would have gotten $4 billion in fees.”  The poor guy was getting stiffed!



As egregious as these rationales sound to the rest of us, they are but the tip of an iceberg of legal billing practices and philosophies that corporate America and its shareholders are increasingly unable to choke down.  The reason: a fundamentally ineffecient business model which the U.S. bar continues to perpetuate despite global economic realities and pressure from its corporate client base. 



As early as the mid-90s, other service sectors -- most notably the accounting sector -- realized that without intelligent evolution responsive to client needs, they would become dinosaurs.  In contrast, our increasingly litigious society has deified those who milk the system's inefficiencies.  The bar members most recognized in our communities can be gauged not by their published articles or A/V ratings but by their advertising budgets.   And let's be honest: behind the barrage of advertising that the plaintiff's bar has deluged upon the U.S. for the past few decades is a population which, more often than not, views any minor fender bender as a potential lottery winning ticket.  By no means is the greed we witness limited to those of us with law degrees.



One sector of the population which can and is doing something about this is corporate America, which has had enough of the nonsense, and general counsels are leading the way.  Thomas Sager, assistant general counsel of DuPont Co., told the WSJ in that same article that he recently balked when a New York lawyer cited $1,000 as his hourly rate. Instead, Mr. Sager says, he agreed to pay the attorney a flat monthly fee. "One-thousand dollars may be someone's choke point, but mine is actually a lot lower," he says.   Others like legal maverick James Buda, vice president and general counsel for Caterpillar, have decided that enough is enough and created competetive bidding processes and other mechanisms to keep outside counsel fees under control.  Mssrs. Sager and Buda are representative of a growing number of inside counsel who realize that while law is far from a commodity, neither is it some sort of mystical force immune from the rules of the market economy.



Recently we presented an immigration services proposal to a significant international client.  The client, which is growing very rapidly, has about a dozen folks in its internal immigration team, operating in an offshore jurisdiction favored for high workforce ability and low cost.  The team could not keep up with volume and outside counsel was relied upon more and more for immigration solutioning.  Given that the outside firm was billing the client about 300% the going per-visa rate for large-volume clients, we were fishing in a barrel.  But imagine our surprise when, after crunching the numbers, we realized that our per-visa delivery cost was lower than their in-house offshore per-visa cost...even though we were doing 100% of the work inside the U.S.!  Wherever it is being deployed, the efficient delivery of legal services is what corporations and their shareholders demand, and intelligent process workflow is what leads to cost control.



Law is anything but a commodity and skilled legal practitioners are entitled to the economic benefits associated with expertise.  But we are also ethically bound to our clients, and protecting their financial interests is an inherent part of that.  In these Dylan-esque changing times, law firms will increasingly fall into two camps: those who respond to their clients needs and those with nostalgic memories of "how great things used to be..."



Tuesday, August 28, 2007

The Perils of Thinking Inside the Visa Box

The Wall Street Journal reported yesterday on companies which are "getting creative" to deal with U.S. visa bottlenecks.  I eagerly started reading to see what creative juices were flowing in the pretty uninspired world of immigration compliance.  I was disappointed to see that, in reality, it was nothing more than the "same old, same old":



  1. "parking" employees in overseas jurisdiction at great expense while their skills are desperately needed by the U.S. enterprise.


  2. encouraging critical technical professionals to pursue unneeded advanced degrees to "buy time" in F-1 student status till H-1B visa numbers become available.


  3. Rescinding job offers (and leaving critical positions unfilled) until visas became unavailable.


As the WSJ concludes, all of these "creative" solutions face a "big flaw": they assume that next year the H-1B shortage will be resolved.



It won't be.  With a lame duck president and the final shot at meaningful immigration reform squandered over bipartisan bickering, Corporate America seems to be in a serious skilled-worker-shortage quagmire for the next couple of years.  In fact, the only player with the energy and initiative to demand a response from Washington -- Microsoft, which quickly snuffed former Sen. Alan Simpson's ill-conceived elimination of the H-1B category a few years back -- has smelled the coffee...and headed north.



Pragmatically aware of the fact that current U.S. employment visa policy is decimating the human resources so desperately needed in the technology sector, Microsoft is going from Redmond to Richmond, British Columbia, some 133 miles away in a country far more savvy about its business migration policy.  The net result: entire U.S. divisions are forced to move abroad, eliminating countless U.S. positions, just to address the high tech worker shortage.



Instead of "parking" employees -- a leading immigration law firm quoted in the article cites a client spending $30,000 per employee to do just this -- real creativity is the solution to this fine mess:



1- Establishing short and long term intracompany (L-1A and L-1B) visa strategies to train and polish qualified specialty and managerial employees offshore to provide a steady, non-quota pool of U.S. nonimmigrant workers deployed on an as-needed basis and guided by market conditions, not by governmental bureaucracy.



2- Strategic alliances, mergers, and acquisitions which establish de facto qualifying intracompany relationships facilitating blanket L visas.



3- Intelligent process restructuring which divides core technical needs from all other functions for which there are NOT U.S. worker shortages to create offshore/onshore delivery platforms maximizing workforce skills.



Creative solutions exist to the current tech worker visa crunch, but spending big corporate dollars on international furlows is hardly creative, and certainly NOT the stuff of which shareholder dreams are made.



Monday, August 27, 2007

Hello, Everyone!

Welcome to Immigration Insider.  After almost two decades of looking out for the interests of leading corporations and the tremendous compliance problems they face with governmental regulations relating to immigration and labor laws, I've decided to launch a blog written for the HR and Legal representatives who these issues most affect.



For years -- in fact, before "blog" was a word -- I published a column called "Port of Entry", which grew to have thousands of daily readers. While "Port of Entry" was directed at the general business immigration market (i.e., both employers and visa beneficiaries), this column is going to focus specifically on the issues affecting U.S. corporations which must depend upon international workers in the course of their business.



Two phenomena are shaping the current climate for business immigration: first, both parties in Congress and President Bush are clear on the public's loud and clear mandate: "enforce existing laws before adding new ones."  Second, if U.S. industries and the people who work in this country intend to continue as leaders in the global economy, fundamental changes responsive to the reality of globalism must shape continued U.S. economic growth.  I believe that the U.S. workforce is the most talented, nimble, and empowered workforce on the planet; the solution lies in redefining our role in the global economy to capitalize upon that talent and skill set, not only increasing the availability of U.S. jobs, but the availability of GREAT U.S. jobs which best make use of our leadership role in the world marketplace.



I hope you find my observations useful.  UnitedLex intends to bring forth a new era of responsiveness, efficiency, and intelligence to the corporate legal services sector, and we intend Immigration Insider to keep your HR and Legal departments one step ahead of the changes which will affect your enterprise.



Jose Latour, Executive VP, UnitedLex Corp.