News, Articles & Updates


Asplundh Tree Expert Co., a national tree-trimming company, will pay a record fine of $95 million after pleading guilty to a scheme involving immigration fraud.  The $95 million payment represents the largest fine ever levied in an immigration case.  In addition to the fine, Asplundh agreed to abide by an Administrative Compliance Agreement as set forth by U.S. Immigration and Customs Enforcement (ICE).

According to court documents, Asplundh hired and rehired employees throughout the United States after accepting identification and work authorization documents it knew to be false. Managers relied on word-of-mouth referrals rather than an established application process in order to avoid having to properly verify employees. An ICE investigation revealed that the company also decentralized its hiring so that higher-level management could remain willfully blind to the company’s unlawful hiring practices.

Since learning of the federal investigation in 2015, Asplundh states it has hired compliance specialists, implemented a photo ID system, investigated every complaint about unauthorized workers, and taken other steps to eliminate its past practices. These additional compliance measures, in addition to the company’s $95 million fine, are sure to weigh heavily on the company as a going concern.

The Asplundh fines and agreement serve as a reminder of all employers to review their hiring practices and remain vigilant against fraudulent employee documents.  Employers should be sure they are aware of I-9 employee verification requirements and ensure their managers and supervisors understand the risks involved in hiring employees without proper work authorization.  To discuss Form I-9 and employee verification requirements in more detail, or to request a Form I-9 training and audit with one of our immigration specialists, please contact The Mitzel Group.




On June 30, 2017, San Francisco enacted the “Lactation in the Workplace Ordinance” to take effect January 1, 2018.  The ordinance applies to all full- and part-time employees working within the geographic boundaries of San Francisco.

Current Requirements Under Federal and State Law
Current federal and California laws require employers to provide a reasonable amount of break time to accommodate employees as they express breast milk, along wih a location, other than a restroom, that is shielded from view and in close proximity to the workplace.

Expanded San Francisco Requirements
The San Francisco ordinance extends federal and California requirements by mandating that the lactation location be safe, clean, and free of toxic or hazardous materials, and contain a surface to place a breast pump, a place to sit, and access to electricity.  The room may be used for other purposes, but employers must notify employees that lactation takes precedence over other uses for the room.   Employers must also provide access to a refrigerator and sink with running water in close proximity to the employee’s worksite.

The San Francisco ordinance imposes an additional notice requirement. Employers must devise a written lactation accommodation policy that includes the following:

  • A statement of the employee’s right to request lactation accommodation;
  • A process for requesting an accommodation that requires the employers to engage in the interactive process and respond to any request in 5 business days;
  • A statement explaining that the employer must provide a written response to the employee if the employee’s accommodation cannot be met that explains the basis for denial of the request; and
  • Notice that retaliation in response to a request is prohibited.

Employers must keep a record of all employee requests for lactation accommodation for three years from the date of the request.

Exemption for Employers
Employers can claim an exemption from the San Francisco ordinance if compliance would pose an “undue hardship” to the employer, such as requiring significant expense, additional construction, or significantly diminishing the employer’s workspace.  Eligibility for this exemption takes into consideration the employer’s size, financial resources, and business structure.

San Francisco employers should be prepared to provide lactation accommodations beginning January 1, 2018.  Please contact your team at the Mitzel Group for additional information.


On Friday, July 21, 2017, the U.S. Department of Labor announced plans to rescind the controversial tip-pooling restrictions imposed on employers in 2011.  The announcement has potential to significantly impact hospitality employers throughout California.


Under the Fair Labor Standards Act, hospitality employers may pay wait staff a lower wage so long as they receive enough tips to bring their hourly rate to the $7.25 federal minimum wage.  While banned in California, this option, known as a “tip credit,” allows employers to pay wages as low as $2.13 per hour so long as the employee receives at least $5.12 in tips.  If the employee does not earn at least $7.25 after factoring tips, the employer must pay the difference; if there are more than enough tips, the employee keeps the excess.

2011 Tip-Pooling Restrictions

The current tip-pooling restrictions were enacted by the Obama administration in 2011.  The rules established that tips are the property of employees and cannot be distributed to other workers or by the employer, even if the employer does not take a tip credit and pays tipped employees the full minimum wage.  Several circuit courts  have struck down these restrictions, holding that they do not apply to employers who pay employees at least the $7.25 minimum wage.  Employers in these circuit jurisdictions have thus been permitted to retain employee tips and distribute them to back-of-house employees who do not otherwise receive tips.  Such tip-pooling arrangements are designed to make pay more equitable throughout a restaurant.

The Ninth Circuit, holding jurisdiction over California, has disagreed; hospitality employers throughout the state have thus remained subject to the tip-pooling restrictions and have had no control over employee tips.  In effect, back-of-house staff have been excluded from tip pooling arrangements.

Effect of the July 21, 2017 Announcement

The announcement by the U.S. Department of Labor on July 21, 2017 to rescind the tip-pooling restrictions thus is significant to California employers and others throughout the Ninth Circuit.  If the Department proceeds as planned, California hospitality employers may exercise control over employee tips and arrange tip pooling that benefits back-of-house staff.

Hospitality employers should understand that the announcement does not have any legal effect; the restrictions remain in place until further action is taken by the U.S. Department of Labor.  Nonetheless, given the split amongst circuit courts, employers should expect the Department to act quickly.

Mitzel Group attorneys will monitor developments in this regard and update employers of any further changes.  Please contact us with any questions.


On Monday, July 17, 2017, U.S. Citizenship and Immigration Services (USCIS) issued a new Form I-9 and accompanying instructions.  The new form replaces the Form I-9 issued on November 14, 2016 and becomes mandatory for all employers on September 18, 2017. 

Employers should note that the fillable portions of the new form have not changed. Rather, the new form differs from the last version in regards to page 3, List C, setting forth documents that establish employment authorization.  The new form has added “Consular Report of Birth Abroad (Form FS-240)” as an additional acceptable document under List C.  All List C documents were thereafter renumbered except for the Social Security Card.

The form instructions have also changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) to the “Immigrant and Employee Rights Section (IER).”  This agency investigates and prosecutes unfair documentary practices and retaliation that may occur during the I-9 completion process.  The agency renamed itself to avoid confusion with another federal government agency.

Employers should complete Form I-9 following the same rules and timelines as before.  For answers to additional questions, or to schedule an I-9 training with one of our immigration experts, please contact the Mitzel Group.


On July 21, 2017, San Francisco Mayor Ed Lee signed an ordinance banning employers from asking job applicants about their salary histories.  The new ordinance is scheduled to take effect on July 1, 2018.

The “Pay in Parity Ordinance” applies to all employers registered to do business in the city. It applies to applicants applying for jobs that will be performed in San Francisco and whose application, in whole or in part, will be solicited, received, processed or considered in the city.  “Applicants” include any individual who applies for temporary, seasonal, part-time work or for work through a temporary agency.

The ordinance prohibits employers from

  • Directly or indirectly inquiring about an applicant’s salary history
  • Considering or relying on an applicant’s salary history when making hiring decisions and salary offers
  • Refusing to hire or retaliating against an applicant for not disclosing his/her salary
  • Releasing the salary of any current or former employee to a prospective employer without the employee’s written authorization.

The ordinance does not prohibit an applicant from “voluntarily and without prompting” disclosing salary history. In such instances, an employer may consider salary information when making employment decisions (while also keeping in mind that, under California’s Equal Pay Act, salary history cannot be used as sole justification for pay differentials amongst genders or races for substantially similar work).

The ordinance is intended to narrow the wage gap between men and women by eliminating consideration of prior salaries that may reflect historical inequities.  In addition to prohibiting salary history questions, the ordinance also requires employers to post a notice advising employees of their rights.  Failure to abide by the ordinance will subject the employer to fines and other penalties.

The ordinance is part of a growing trend across the country and mirrors a current state proposal under consideration by the California legislature. Attorneys at the Mitzel Group will monitor any amendments to the ordinance and statewide trends.  We encourage you to contact us with any questions.


Following a recent announcement from the U.S. Department of Labor, investigations and audits of foreign worker programs such as H-1B and H-2A visas are likely to increase. The announcement states that the Department “will focus on preventing visa program abuse and take every available legal action against those who abuse these programs.”

Expected enforcement measures include:

  • Increased scrutiny by the Department’s Wage and Hour Division
  • Changes to the Labor Condition Application targeted at identifying fraud and abuse
  • Review of investigatory forms to better identify systematic violations and potential fraud
  • Increased coordination between the Employment and Training Division, the Wage and Hour Division, and the Office of the Solicitor to avoid duplication of efforts and maximize the efficiency of the Department’s activities regarding the visa programs.

To protect themselves in the event of an audit or investigation, employers should continue to keep well-organized and thorough records of all foreign worker applications and employment.  Mitzel Group attorneys are available to answer any questions employers have regarding foreign worker visas.



The city of San Francisco and several nearby localities will face a scheduled minimum wage increase on July 1, 2017. Affected employers should ensure their payroll administrators are aware of these increases and amend their payroll schedules accordingly.  Employers should also amend any separate policies or pay scales, such as travel pay, that are based upon the minimum wage.

Below is a table of the expected minimum wage increases.  Please reach out to your Mitzel Group employment expert for additional information.

Locality Current Minimum Wage New Minimum Wage Effective July 1, 2017
San Francisco $13.00 $14.00
Berkeley $12.53 $13.75
Emeryville (employers with 56+ employees) $14.82 $15.20
Emeryville (employers with 55 or fewer employees) $13.00 $12.00
San Jose $10.50 $12.00


On June 13, 2017, a Florida federal district court issued the first verdict of its kind holding that a website that was inaccessible to a blind customer violated Title III of the Americans with Disabilities Act (ADA).  The case, Gil v. Winn-Dixie Stores, Inc.,  concerned a blind man who could not access Winn-Dixie coupons, order prescriptions, or find store locations on the company’s website.  After a full trial, the Court ordered injunctive relief, requiring Winn-Dixie to modify its website and pay the plaintiff’s attorneys fees and costs.

Although the decision is non-binding, it has significant implications.  First, it is the first case of its kind concluding that an inaccessible website violated Title III of the ADA.  Businesses should carefully consider whether to litigate or settle these forms of cases, as the possibility of an adverse verdict – once thought unlikely amongst business and legal communities – has now become a reality.   Second, the draft injunction adopts the Web Content Accessibility Guidelines (WCAG) 2.0 as the applicable standard in determining a website’s accessibility.  These guidelines were developed by a private group of  experts and have been incorporated into many consent decrees and settlement agreements. The guidelines have not been adopted as the legal standard for public accommodation websites, but businesses should remain aware of their increasing relevance, especially in light of this decision. Third, the Court did not consider the $250,000 cost of updating the website to be an undue burden to Winn-Dixie, considering that the company had previously invested $9 million to create and remake its website. This cost comparison is likely to be emulated in later cases.

Of particular note, the Court held Winn-Dixie responsible for the entire website’s lack of accessibility, even though parts of the website are operated by third party vendors.  This implication bears particular relevance to businesses who extensively rely on outside vendors to provide services offered through their website.

Although there are not yet any federal regulations setting forth requirements for a website accessibility program, businesses should remind mindful of judicial decisions such as this one because they provide potential frameworks for Title III compliance.  For additional questions regarding this case or compliance with Title III of the ADA, please contact a Mitzel Group specialist.


A recent decision from the California Court of Appeal provides considerable protection to certain joint employers seeking to arbitrate claims.  In Garcia v. Pexco, LLC, the Court held that a company hiring temporary workers from a staffing agency can enforce the arbitration agreement entered into between the staffing agency and its workers, even if the company did not sign the arbitration agreement itself.

Garcia v. Pexco, LLC

In Garcia, the plaintiff, Narciso Garcia, sued a staffing agency for alleged wage and hour violations.  He included Pexco LLC, the company that had hired him through the staffing agency, as joint defendant, alleging that Pexco was also liable as a joint employer.  The trial court compelled arbitration for all parties, including Pexco, according to an arbitration agreement signed by Garcia and the staffing agency. Garcia appealed this decision on the grounds that Pexco could not invoke an arbitration agreement it had not signed.

The Court of Appeal disagreed, stating that two exceptions – equitable estoppel and agency – warranted application of the agreement to Pexco.  First, under the doctrine of equitable estoppel, it would be unfair for Garcia to allege that Pexco was as a joint employer  – and therefore liable for the staffing agency’s wage and hour violations – while excluding the company from applicable employment agreements.  Second, under the agency exception, the Court held that Garcia’s allegations that Pexco was an agent of the staffing agency did not stop at the offense; rather, as an agent, Pexco could enforce the arbitration agreement as an agent of the staffing agency that had signed it.

Implications for Employers

The Garcia decision is especially important for employers who rely on temporary staffing agencies to meet their business needs.  Although limited to those instances where the plaintiff’s claims against both defendants are “inherently inseparable” and “intimately founded in … the underlying contract obligations,” the decision, when applicable, provides employers significant protection against claims brought by temporary employees.  Employers should review the staffing companies’ employment agreements to determine the protections such agreements may afford.

For more information, please contact your employment attorney at the Mitzel Group, LLP.


On March 6, 2017, President Donald Trump issued a new Executive Order temporarily banning the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who are outside of the United States, do not hold a valid visa on March 6, 2017, and did not hold a valid visa at 5:pm EST on January 25, 2017.

The new Executive Order follows – and revokes – an Executive Order issued on January 25, 2017 that immediately banned nationals from the above-mentioned six countries and Iraq. The prior Executive Order generated significant controversy due to its application to legal permanent residents and valid visa holders, along with the immediate effect of the order. The Executive Order was reviewed and halted by federal courts in February 2017.

The Executive Order issued on March 6, 2017 is more limited in scope than its predecessor. Notable differences include exemptions for legal permanent residents, dual nationals from non-designated countries, foreign nationals holding a valid visa on the effective date of the order, and individuals already granted asylum or refugee status in the United States before the effective date of the order. The new Executive Order also fails to exempt religious minorities from the ban and imposes a 120-day – rather than indefinite – ban on Syrian nationals.  The Trump administration cited concerns for the stability for the United States-allied Iraqi government as justification for excluding Iraqi nationals from the new ban.

Attorneys at the Mitzel Group recommend that all foreign nationals consult with their immigration attorneys before any international travel. As always, please contact our immigration attorneys, Lisa Liu and Amelia Lancaster, with additional questions.