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Showing 31 posts from October 2013.

Employer Prevails Against FMLA Interference Claim but Sixth Circuit Declines to Apply Directly the “Honest Belief” Defense

A telephone repair technician employee diagnosed with severe back pain was terminated by his employer for allegedly fraudulently requesting leave under the Family and Medical Leave Act (FMLA). The employee shortly thereafter sued claiming the employer interfered with his right to FMLA leave and terminated him in retaliation for requesting leave. The trial court granted the employer's motion for summary judgment on the basis of the "honest belief" defense and the appellate court affirmed. More ›

Outsourcing Firm Pays $34 Million Penalty to Settle U.S. Prosecutors’ Allegations of Visa Fraud

To B-1 or not to B-1? According to U.S. prosecutors, one company is learning the hard way that it made the wrong choice.

In a record-setting penalty, Indian outsourcing firm Infosys agreed yesterday to a $34 million settlement resulting from what federal prosecutors called “systemic visa fraud and abuse" intended "to deceive" U.S. authorities. By making it appear as if individuals were coming to the U.S. for business meetings when, in reality, they were coming to provide work for U.S. companies, Infosys could use simple B-1 "business visitor" visas for its workers rather than more expensive and time-consuming H-1B "temporary worker" visas. Although Infosys continues to deny any wrongdoing, employers should definitely view this as a symbolic victory for U.S. officials -- visa abuse is being taken seriously and the government wants you to know it. More ›

Pro-Union Attorney to Head NLRB

The U.S. Senate has confirmed union lawyer Richard Griffin to serve as general counsel for the National Labor Relations Board (“NLRB”).

The board’s general counsel is instrumental in determining when and how actively to pursue claims against employers. Mr. Griffin’s appointment, which passed on a near-party-line vote, assures that the NLRB will continue its recent aggressive enforcement and expansion of labor rules. More ›

The Affordable Care Act’s Contraceptive Care Mandate Applies to Covered For-Profit Corporate Employers

On October 24, 2013, the U.S. Court of Appeals, Sixth Circuit, held that a for-profit natural foods corporation could not establish that it can exercise religion, and therefore could not use the Religious Freedom Restoration Act, (RFRA), as a vehicle to challenge the contraceptive care requirements created by the Affordable Care Act. Eden Foods, Inc. v. Sebelius, No. 13-1677 (6th Cir. Oct. 24, 2013). In addition, the Sixth Circuit held that the plaintiff corporation's chairman, president and sole shareholder lacked standing to challenge the obligations solely imposed upon the corporate employer. The framing of the issues by the Court points out that what tripped up plaintiffs' attempt to obtain a court order exempting the employer from the contraceptive care requirements did not arise from the U.S. Constitution. More ›

Arbitration Clause in Collective Bargaining Agreement Doesn’t Cover Statutory Claims, Court of Appeal Rules

In Mendez v. Mid-Wilshire Health Care Center, the California Court of Appeal for the Second Appellate District held that the arbitration provision in a collective bargaining agreement governing a plaintiff’s employment did not apply to statutory discrimination claims.

Plaintiff, Mendez, was a nurse’s assistant who filed a lawsuit against her employer, Mid-Wilshire, alleging several causes of action, including three statutory causes of action based on the California Fair Employment and Housing Act (FEHA). Mid-Wilshire filed a motion to compel arbitration and stay the action, arguing that all of Mendez’s claims were subject to the grievance and arbitration procedure set forth in the collective bargaining agreement between Mid-Wilshire and the union to which she was a member. More ›

Employee’s Facebook Venting not Protected Speech

A police officer had a Facebook page which was set to "private," but was viewable to any of her numerous Facebook "friends," who could then potentially distribute material on her page more broadly. On her page, she had posted a comment criticizing an investigator in her department. The department had a work rule requiring that any criticism of a fellow officer be directed through official department channels, and should not be used to to the disadvantage of the reputation or operation of the department or employees. More ›

Jersey City Passes paid sick Leave Legislation

Cities like San Francisco, Portland, Seattle, Washington D.C., and New York City have already passed, and in many cases, implemented, laws which allow eligible employees to have paid time off of work to address illnesses or medical conditions. Jersey City, New Jersey is the latest city to pass such legislation. The new Paid Sick Time Ordinance will go into effect on January 24, 2014. Employers in the private sector who have 10 or more Jersey City employees will be required to provide eligible employees with at least one hour of paid sick leave for each thirty hours worked, up to 40 hours of maximum paid sick leave per year. Employers who have less than 10 employees aren't off the hook entirely. Those employers must still provide eligible employees with sick leave, only it can be unpaid instead of paid. Eligible employees are any full-time or part-time employees (including temporary employees) who work in Jersey City for at least 80 hours per year.

The Ordinance contains other important information for employers, and can be viewed in its entirety here.

Eighth Circuit Rules Employer paid Disability Payments Constitute Earnings for Purposes of Wage Garnishment

An employee was injured on the job and as a result could no longer work for her employer and began receiving payments under a disability insurance program paid for by the employer. Sometime after the employee began receiving disability payments, the employee was incarcerated and upon her release, was forced to pay restitution. The Internal Revenue Service sought to garnish these disability payments pursuant to her restitution sentence. The employee challenged this garnishment claiming that the disability payments constituted earnings under the Consumer Credit Protection Act (“Act”) and thus were subject to the limitations that the Act places on the amount of earnings subject to garnishment. More ›

When Employer Errs, Foreign National may Challenge Denial of Immigrant Visa Petition

In a significant decision for workers currently in the U.S. in an employment-based non-immigrant  status (e.g., H-1B, L), the Sixth Circuit Court of Appeals held earlier this month that a foreign national may individually seek review of a denial of a green card petition filed on his behalf by his employer. The decision, Patel v. USCIS, No. 12-1962 (6th Cir. Oct. 11, 2013), suggests a new opportunity for employment-based immigrant visa applicants -- if an immigrant visa petition is denied, the alien may request review in federal court even if the employer (or, more likely, former employer) no longer wishes to pursue the visa. Perhaps more importantly, though, the case demonstrates the serious problems that can and often do result from an incorrectly filed immigrant petition. More ›

Courts may Certify Class Claims Where Damages Differ

In Benton v. Telecom Network Specialists, Inc., the California Court of Appeal for the Second Appellate District affirmed that employee wage and hour and meal break cases may be suitable for class certification even where employees experience diverse damages.

The case supports the proposition that courts considering whether common issues predominate for class certification purposes must focus on plaintiffs’ theory of liability and not on whether class members will have to prove their damages individually. More ›