USA – NORTH CAROLINA Law and Practice Contributed by: Phillip Strach, Alyssa Riggins, Nathaniel Pencook and Cassie Holt, Nelson Mullins Riley & Scarborough LLP
State Law Considerations for Employers If the GDPR is considered the benchmark for interna - tional privacy laws, then California and the California Consumer Privacy Act (CCPA) can rightfully be seen as the domestic guidepost not only for states looking to enact their own privacy laws, but also for employ - ers seeking to be proactive in their compliance and policies. California was the first state to enact com - prehensive data privacy legislation, signing the CCPA into law on 8 June 2018 (effective 1 January 2020). Since then, 18 other states have followed suit, signing into law their own comprehensive data privacy laws – many of which are modelled on the CCPA. Included in this list are states such as Delaware, with its repu - tation for attracting foreign and domestic companies alike. Proposed bills in six additional states – North Carolina, Illinois, Massachusetts, Michigan, Ohio and Pennsylvania – would grant rights similar to those found in existing data privacy legislation. Global employers operating in the USA are well- advised to stay abreast of all evolving data privacy regulations and laws. Failure to comply has and may continue to result in serious fines and penalties, in addition to loss of customer and employee trust and goodwill. Employment of foreign workers in the USA is strictly controlled, with clearly outlined categories of tempo - rary work visas. Unless a person is a “US worker”, which for the most part includes US citizens, nationals or permanent resident card (“Green Card” holders), as well as a much smaller group granted temporary protected status, refugee status or political asylum, a foreign worker must generally have either a valid work-authorised visa or anemployment authorisation document (EAD) to engage in productive employment in the USA. The term “work permit” is used globally and suggests an ability to gain generalised employment authorisa - tion. This is not a term found in the US immigration system, which is much more discerning and limited. Under the Immigration and National Act (INA), Con - 4. Foreign Workers 4.1 Limitations on Foreign Workers
gress and the responsible agency (the legacy Immi - gration and Naturalization Service (INS), now known as the United States Immigration and Naturalization Services (USCIS)) delineate very specific categories of temporary visas that generally favour professional- level positions, with candidates who have traditional post-secondary educational credentials (namely, a bachelor’s degree or higher). As a result, not every foreign worker can be employed in the USA. The alphabet soup of visa categories attempts to cover a range of potential activities in the USA by the global community, and it extends beyond just work visas to include students, diplomats and religious workers (among others). The list of work visas (eg, E-3, H-1B, L-1 and TN) falls far short of US employer needs, particularly today in an economy where the USA continues to have low rates of unemployment, resulting in a shortage of available workers. The work visa categories themselves are also limited in terms of what positions can be sponsored. There is no solution to fill the ranks for occupations across a broad spectrum of industries, including science, technology, engineering and mathematics (STEM)-related occupations, to fill much-needed soft - ware engineering, IT and data analytics-related roles (to name a few). It is fair to say that virtually every company in the USA has needs in these areas and for years many have had to look to non-US workers to fill their ranks. Many times, these individuals are already in the USA, often as F-1 students who are identified as top job candidates through standard on-campus recruiting efforts and the like. Beyond these professional-level roles, other sectors of the economy – for example, construction, farm - ing, manufacturing and the meat and poultry industry – have significant needs for workers. The USA pro - vides only a couple of solutions for these types of roles, including the H-2A and H-2B visas, which are for temporary peak and seasonal positions. The only long-term solution in these areas is to sponsor a for - eign worker for a Green Card, which is not terribly practical as it could take between two and three years to obtain and the candidate may not be able to work for the company in the USA in the interim.
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