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 ›

Employer not Required to Provide Religious Accommodation; Undue Hardship Proven

In what seems to be a rather rare result these days, an employer facing religious discrimination claims actually prevailed on its undue hardship defense!

In Equal Employment Opportunity Commission v. JBS USA, LLC, No. 10-318 (Dist. Nebraska, October 11, 2013), though the court found that the refusal to accommodate employees' religious prayer practices constituted religious discrimination, the court found that the employer proved its affirmative defense that it could not accommodate the requests because it would cause undue hardship. More ›

California Supreme Court Issues key Arbitration Ruling

Today, the California Supreme Court issued its opinion in Sonic-Calabasas A, Inc. v. Moreno, No. S174475 (October 17, 2013), holding that the Federal Arbitration Act preempts California's rule categorically prohibiting waiver of a Berman hearing in a pre-dispute arbitration agreement imposed on an employee as a condition of employment. More ›

EEOC Ordered To Pay Attorney’s Fees and Costs After Bogus Discrimination Case

The Sixth Circuit has ordered the Equal Employment Opportunity Commission (“EEOC”) to pay more than $750,000 in attorney’s fees and costs for pursuing a frivolous employment discrimination case.

The case, EEOC v. Peoplemark, is the latest in a cluster of judicial reproaches to the EEOC’s policy of aggressively targeting employers for conducting criminal background checks and allegedly declining to hire felons, practices the Commission believes disproportionately impact minorities. More ›

“Locker Room” talk in All-Male Workplace Sexual Harassment, Fifth Circuit Rules

In this space, we have reported recently on the series of rebuffs that the EEOC has received from various courts in recent months. But in EEOC v. Boh Brothers Construction Company, the Fifth Circuit Court of Appeals handed the EEOC a victory that serves to expand the meaning of what constitutes sexual harassment under Title VII of the Civil Rights Act of 1964. In the September 27, 2013, en banc ruling, a 10-6 majority held that the crude sexual banter and ribbing of a heterosexual male worker by a heterosexual male supervisor could constitute sexual harassment under Title VII. More ›

Unpaid Intern is not an Employee, Cannot Maintain Hostile Work Environment Claim

A broadcast and digital journalism student began working at a Chinese-language news station as an unpaid intern. As an intern, she reported directly to the bureau chief, assisted the bureau’s reporters with shooting news footage, drafted scripts, edited videos, and appeared on camera to present certain stories. The intern sought a full-time position and was told that she may be able to obtain a permanent position later if she could obtain a work visa. More ›

Federal Court: Teacher’s Anxiety About Losing her job was an ADA Disability

Could an employee’s anxiety over the possibility of being fired be a disability under federal law?  Yes it can, according to one federal court in South Dakota. More ›

Court Denies Employee’s Request to Revoke Settlement Agreement due to Invalid OWBPA Release

The chemical company worker was terminated in March 2009 due to an industrial accident. The worker challenged the termination through his union, and the union filed a grievance on his behalf. The employer denied the grievance, which prompted the union to file for arbitration under the collective bargaining agreement. The parties were ultimately able to reach a resolution prior to the arbitration. The worker and the employer entered into a settlement agreement and release of claims related to his termination.  More ›

EEOC Fails to Establish Employer’s Alleged Religious Discrimination

An applicant sought a position with a retail clothing company that had a "Look Policy," which required employees to dress in clothing that was consistent with the type of clothing sold in the stores. The policy precluded the wearing of caps, though the term was not defined. If, during the interview process, there is an issue about the application of the Look Policy, or if there's a request for a deviation from the policy due to religious practices, the manager is to contact a supervisor or human resources to determine how to proceed. More ›