H-4 Visa-Holders’ Eligibility for Employment Authorization Announced

Posted in Immigration Planning & Compliance

Effective May 2015, certain spouses of H-1B visa-holders who are present under H-4 status will be eligible to apply for an employment authorization document, or EAD. Currently, those in H-4 status—the category assigned to spouses and children of H-1B visa-holders—are not authorized to work in the States, creating economic and personal hardship for these families during lengthy wait periods for green cards. This much-anticipated change in immigration law benefits an estimated 179,600 H-4 visa-holders who may be eligible to apply for employment authorization this year alone.

The new regulation allows H-4 spouses to apply for employment authorization if the H-1B spouse is either (1) the principal beneficiary of an approved immigrant visa (I-140) petition, or (2) was granted an extension of H-1B status beyond the six-year limit based on a PERM application for labor certification that has been pending for more than 365 days. Absent any federal litigation or program delays, H-4 visa-holders may apply for an EAD beginning May 26, 2015. The current estimated case processing time is 90 days, so an H-4 visa-holder with an approved EAD may accept employment no sooner than August 26, 2015. Additionally, spouses present under other visa categories may also consider filing a change to H-4 status if work authorization is desired.

Employees who are sponsored for employment-based green cards are classified into certain categories based on the terms of their employment, as well as their educational qualifications and professional experience. All immigrant visa categories are limited by annual and per-country caps, causing long delays before employees in those categories are permitted to apply for a green card. As an example of this backlog, certain Indian employees whose immigrant visa petition was approved in August 2005 were only permitted to apply for a green card beginning March 2015, nearly 10 years later.

An approved EAD will likely have the same validity period of the applicant’s H-4 visa, which is up to three years. Applicants who receive EADs may also apply for a Social Security number.

EEOC Will Now Process Sexual Orientation Discrimination Claims

Posted in Employment Discrimination Harassment & Retaliation

On February 3rd, the Equal Employment Opportunity Commission released an internal memorandum stating that the EEOC will now process and investigate claims of discrimination based on sexual orientation, transgender status, and gender identity. The EEOC will treat such claims as charges of sex discrimination under Title VII.

Of course, the EEOC does not have the authority to amend Title VII, so its memorandum does not change the substantive law. The memorandum does, however, reflect the EEOC’s current view that discrimination based on sexual orientation may be grounded in sex-based stereotypes and thus violate Title VII’s prohibition on sex discrimination. For example, the EEOC believes that discrimination against a gay man because he’s not attracted to women, or discrimination against a lesbian because she’s viewed as insufficiently feminine, are based on impermissible sex-based norms and expectations in violation of Title VII.

Similarly, the EEOC takes the position that complaints of sexual orientation discrimination can constitute “protected activity” for purposes of a retaliation claim. The EEOC reasons that in light of its own enforcement efforts and several recent court decisions, a belief that Title VII prohibits sexual orientation discrimination is “objectively reasonable,” even if the presiding court rules that Title VII contains no such prohibition.

Several federal courts have ruled that Title VII does not prohibit sexual orientation discrimination, while other courts take a more expansive view of the statute. The proposed Employment Non-Discrimination Act would clarify this issue by amending Title VII to expressly prohibit discrimination based on sexual orientation and gender identity. But ENDA has been kicking around Congress since 1994, and its chances of passing in a Republican-controlled Congress seem slim.

If the EEOC has its way, ENDA won’t be necessary. Title VII will evolve through EEOC enforcement efforts and private litigation until sexual orientation, transgender status, and gender identity discrimination claims are all considered forms of sex discrimination. Another possibility is that the Supreme Court will rule that these forms of discrimination are not prohibited by Title VII. That would clarify the issue in the courts, but spur the call for ENDA’s passage.

For now, employers would do well to err on the side of caution and strictly prohibit sexual orientation discrimination in the workplace. Depending on the location of the workplace, state laws or local ordinances may already impose this obligation.

Truck Driver With “Current” Diagnosis of Alcoholism Is Not Qualified Under the ADA

Posted in Disability

An alcoholic is a person with a disability and is protected by the Americans with Disabilities Act if he is qualified to perform the essential functions of the job. But what if one of the essential functions of the job is not having a current diagnosis of alcoholism? That was the question posed recently by Jarvela v. Crete Carrier Corp., Case No. 13-11601 (11th Cir., January 28, 2015). The Eleventh Circuit Court of Appeals ruled that the employee was not qualified for the job and could be lawfully terminated – yet the decision leaves a key question unanswered.

Sakari Jarvela was a commercial motor vehicle driver employed by Crete Carrier Corporation. Crete terminated Jarvela one week after a substance abuse treatment center had discharged Jarvela with a diagnosis of alcohol dependence and cleared him to return to work. Crete concluded that Jarvela was not qualified for the job because U.S. Department of Transportation regulations forbid motor carriers to allow someone who has a “current clinical diagnosis of alcoholism” to drive a CMV. Crete’s job description for CMV drivers incorporates this standard.

Jarvela sued Crete, claiming that Crete discriminated against him in violation of the ADA. The district court granted Crete’s motion for summary judgment.

On appeal, the Eleventh Circuit affirmed, noting that under the ADA, employers subject to DOT qualification standards may require their employees to comply with those standards. Because one of those standards was that Jarvela have “no current clinical diagnosis of alcoholism,” the court reasoned that “Jarvela could not perform an essential function of Crete’s job description (and, indeed, Crete could not allow him to drive a commercial motor vehicle), unless he had ‘no current clinical diagnosis of alcoholism.’”

The court’s decision seems quite straightforward until you ask, what is a “current clinical diagnosis of alcoholism”? Jarvela presented testimony from two physicians, his mental health counselor, and a colleague that being an alcoholic is a permanent condition. That’s why, according to Jarvela’s colleague, recovering alcoholics in Alcoholics Anonymous introduce themselves as “alcoholic” for as long as they live. But the DOT’s regulations can’t mean that because alcoholism is permanent, a diagnosis of alcoholism will always be “current.” Following this logic, Jarvela argued that his diagnosis was not current when he was terminated because according to one of his doctors, “he was doing what was necessary to stay dry… and that means currently he’s not having a problem with alcoholism.”

The Eleventh Circuit rejected Jarvela’s argument, holding that “a seven-day-old diagnosis is ‘current’ … Jarvela did not ‘lose’ his clinical diagnosis between his discharge [from the treatment center] on April 20 and his termination by Crete one week later.”

But the court declined to say how long an employee must stay dry before a diagnosis of alcoholism is no longer “current” under DOT regulations. “We are not prepared to draw a bright line as to how much time must pass before a diagnosis of alcoholism is no longer ‘current,’” the court wrote. That question may be answered in future cases. Until then, motor carriers subject to DOT regulations are left with little guidance on the issue.

Florida Whistleblower Act Objector Must Prove an Actual Violation of Law, Says Second DCA

Posted in Whistleblower & Retaliation Claims

The Florida private sector Whistleblower’s Act protects employees who object or refuse to participate in a violation of a law, rule or regulation by their employer. But an employee’s “reasonable belief” of a violation is insufficient – the employee must prove an actual violation to state a claim under the FWA, according to a recent decision by Florida’s Second District Court of Appeal, Kearns v. Farmer Acquisition Co., Case No. 2d12-6388 (February 11, 2015).

In reaching this holding, the court acknowledged a split of authority on this issue: Numerous federal trial courts have held that proof of an actual violation is required, while at least two federal courts as well as Florida’s Fourth District Court of Appeal have held that an employee’s reasonable belief is sufficient. In Kearns, the Second DCA was persuaded by the reasoning of the decision in White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335,1336 (M.D. Fla. 2005), in which the court stated that requiring a plaintiff to prove an actual violation promoted the FWA’s policies “while adequately protecting the legitimate interests of private employers.” The White court explained:

Allowing for the expanded reading of the statute Plaintiff proposes would place an onerous burden on the employer to anticipate all of its conduct that an employee may reasonably believe is proscribed by a law, rule or regulation. Even if the employer knows the conduct is perfectly legitimate, it would be left with the Hobson’s choice of terminating the employee and defending suit against the employee’s reasonable belief or allow[ing] the employee to refuse to meet the requirements of the job with no consequence. In apparent recognition of this dilemma the legislature declined to include in the relevant section of the Act this protection for employees.

The Second DCA in Kearns therefore concluded that “Kearns must prove that he objected to an actual violation of law or that he refused to participate in activity that would have been an actual violation of law.”

Despite this favorable holding for employers, the Second DCA went on to reverse the trial court’s decision in favor of the employer. The court ruled that Kearns, a former employee of the defendant’s automobile dealership, had sufficiently alleged that his employer violated a Florida statute by making false statements about its vehicles to assist purchasers in obtaining credit to purchase the vehicles. The Second DCA therefore ordered a new trial.

As we reported in 2013 when Aery was decided, the conflict among the courts on the proper legal standard under the FWA ultimately will have to be resolved by the Florida Supreme Court, or by an amendment to the FWA. For now, the legal standard that applies will be determined by the court in which the parties find themselves.

Employers Cannot Rely on Timekeeping Policies as a Defense to FLSA Claims

Posted in Wage & Hour

An employee’s violation of timekeeping policies is not a defense to a Fair Labor Standards Act claim, if the employer knows or has reason to know that an employee underreported his hours, according to a recent decision by the Eleventh Circuit Court of Appeals, Bailey v. TitleMax of Georgia, Case No. 14-11747 (11th Cir., January 15, 2015).

Santonia Bailey worked at a TitleMax store in Jonesboro, Georgia for about a year. He claimed that he worked overtime hours for which he was not paid. But his time records did not reflect overtime hours, in part because he underreported his own hours by working off the clock, and in part because his supervisor edited his time records. Bailey resigned from TitleMax and then filed suit for unpaid overtime under the FLSA.

In defense of Bailey’s claim, TitleMax asserted that Bailey violated the company’s policies that required employees to: (1) accurately report their hours; (2) regularly verify the time shown on their timecards; and (3) report any work-related problems to a supervisor, a higher-level manager, or an anonymous employee hotline. The company argued that Bailey’s violation of its policies made him responsible for any unpaid overtime and barred his claim under the equitable defenses of “unclean hands” and “in pari delicto” (Latin for “in equal fault”). The district court agreed and granted summary judgment to TitleMax.

The Eleventh Circuit reversed the case on appeal. The court noted that “the goal of the FLSA is to counteract the inequality of bargaining power between employees and employers.” This principle, according to the court, compelled a rejection of TitleMax’s defense:

If an employer knew or had reason to know that its employee underreported his hours, it cannot escape FLSA liability by asserting equitable defenses based on that underreporting. To hold otherwise would allow an employer to wield its superior bargaining power to pressure or even compel its employees to underreport their work hours, thus neutering the FLSA’s purposeful reallocation of that power.

The usual rules for FLSA overtime liability therefore applied to Bailey’s claim. First, an employee must show that he worked unpaid overtime. Second, the employee must show that the employer knew or should have known of the overtime work. Bailey met both elements. There was no dispute that Bailey worked overtime hours for which he was not paid. And there was no dispute that his supervisor knew of his overtime work. “The supervisor’s knowledge,” the court noted, “may be imputed to TitleMax, making it liable for the FLSA violation.”

TitleMax does not represent a change in the law. To the contrary, the Eleventh Circuit noted that TitleMax failed to identify any case in which the U.S. Supreme Court or any federal circuit court approved the use of equitable defenses to bar an employee’s FLSA claim when the employer knew the employee underreported his hours. But TitleMax should serve as a reminder to employers that adopting rigorous timekeeping and pay policies is insufficient to avoid FLSA liability. Employers must ensure that their timekeeping and pay practices are also compliant with the FLSA. Pointing the finger at non-compliant employees is not a sound legal strategy.

New York Trial Court Provides Guidance on Application of Corrections Law Factors

Posted in Employment Discrimination Harassment & Retaliation

It should come as no surprise to New York employers that making an employment decision based on an applicant or employee’s criminal background can be unlawful.See N.Y. Corr. Law § 752; see also N.Y. Exec. Law § 296 (15).  Despite this general prohibition, there are two statutory carve outs which permit employers to make such a decision: (1) when the employee’s or applicant’s criminal offense(s) bear a “direct relationship” to the employment sought; or (2) when such individual’s employment poses “an unreasonable risk to the property or to the safety or welfare of specific individuals or the general public.”  Moreover, N.Y. Corr. Law § 753 provides a list of factors for employers to consider when deciding whether an individual falls into one of these  exceptions.  Until recently, however, there was little court-provided guidance on how employers should implement these statutory provisions.  In a recent decision, Matter of Thomas v. New York City Dept. of Educ., Judge Peter H. Moulton of the New York Supreme Court offered some much-needed clarification on how employers should implement these exceptions.

In Matter of Thomas, the petitioner – a former paraprofessional for special needs students who was fired from the Department of Education (“DOE”) after pleading guilty to a drunk driving offense in which he seriously injured a pedestrian – argued that his application for reemployment had been improperly denied in violation of New York’s ban on criminal convictions discrimination.  The DOE, in turn, argued that its decision was justified because it had considered the proper statutory factors when evaluating his application and the petitioner “denied responsibility for hitting the pedestrian and denied having an alcohol problem” during his interview.

Judge Moulton found that the DOE’s decision to deny a former employee’s application to return to work was “arbitrary and capricious” (a more employer-friendly standard than a typical civil action applied in Article 78 proceedings involving judicial review of governmental agency administrative decisions).  In so holding, Judge Moulton noted that “DOE considered all the requisite elements” in concluding that the petitioner’s prior acts directly related to his prior convictions and/or employing him posed an unreasonable risk to the welfare and safety of children.  Yet, despite making the proper legal considerations, the Court found, with respect to the “directly relates” exception, the DOE never expressly connected the how the petitioner’s former crime or acts related to his official job duties.  Nor could the Court find any record evidence concerning a direct relationship between the two.  As such, the Court concluded that the denial was based “simply on supposition unsupported by facts.”

As to whether petitioner qualified for the “unreasonable risk” exception, Judge Moulton observed that the DOE failed, pursuant to N.Y. Corr. Law §753(2), to afford petitioner the proper presumption of rehabilitation with regard to his prior offense, as he had obtained a certificate of relief from disabilities as proof that he was rehabilitated.  The Court, therefore, found that the DOE, in concluding that petitioner posed a risk to children “because he would relapse or because he is in denial,” simply failed to trust that the petitioner had, in fact, been rehabilitated without any legitimate basis for doing so.

The lesson of this opinion for New York employers is that merely considering the statutory factors set forth in the New York Corrections Law may not be enough to take action based on an employee’s or applicant’s criminal history.  Accordingly, when making such decisions, employers should make specific and well-founded determinations: (a) connecting the individual’s crime to his or her ability to perform the job duties in question; or (b) articulating the specific reasons the individual may pose an unreasonable risk to property or safety.  These findings should also take into account all of the factors set forth in  N.Y. Corr. Law §753.

Home Health Care Remains Affordable: New Companionship Exemption Rules Overturned

Posted in Wage & Hour

A federal court has invalidated the U.S. Department of Labor’s (“DOL”) amended rule that would have extended minimum wage and overtime protections to nearly two million home health care workers and affected the cost and availability of those services to the millions of patients under their care. The ruling represents a significant victory for the home health care industry, though it remains to be seen if the court’s ruling will be appealed.

As background, since 1974 the Fair Labor Standards Act (“FLSA”) has covered workers who perform a “domestic service” – i.e., services of a household nature performed by a worker in a private home. This term includes services performed by babysitters, housekeepers, nannies, nurses, handymen, gardeners, home health aides, and family chauffeurs, among others.  However, the FLSA also provides for a “companionship services” exemption, exempting from minimum wage and overtime protection certain domestic service workers employed to provide “companionship services” for an elderly person or a person with an illness, injury, or disability.

On September 17, 2013, the DOL announced an amended rule that narrowed the companionship services exemption in two ways. First, it narrowed the definition of “companionship services.” Second, it provided that the exemption could only be claimed by the individual, family, or household using the services, not by a third party such as a home health care agency.

The new rule was to take effect January 1, 2015. However, health care industry groups challenged the amended rule in court, and thus far their challenge has been successful.

On December 22, 2014, the court in Home Care Association of America v. Weil, et al.invalidated the third-party agency portion of the new rule. The court ruled that the DOL had no authority to narrow the exemption to apply only to those caregivers who are employed by the individuals for whom the caregivers provide their services.  Under the new rule, most home health care agencies would not have been able to claim the exemption, even if the work performed would otherwise be exempt. However, the court found that it was Congress’ intent that the companionship services exemption apply to any employee, regardless of who “writes the check” for the employee’s compensation.

The new rule also narrowed the definition of the word “care” as it related to “companionship services,” such that much of the work performed by home health aides (such as feeding, dressing, bathing, etc.) would no longer qualify for the exemption. On January 14, 2015, the court invalidated that portion of the new rule as well. The court held that the DOL exceeded its authority to redefine, after more than 40 years, what constitutes the provision of “companionship services.” The court found that the DOL’s regulation impermissibly conflicted with the plain language of the FLSA.

Had the new rule taken effect, all those who either provided or received companionship services would have been significantly impacted. Since payment for companionship services is mostly self-funded by elderly patients and their families, they would either have had to pay more for services (assuming they could afford the additional cost) or limit the amount of care they received. In turn, home health aides currently providing care in excess of 40 hours per week, would likely have had their work hours reduced so that patients and their families could avoid the additional cost.

Because the third-party employer exemption had already been vacated on December 22, 2014, the entire regulation has now been invalidated, and the DOL is without authority to enforce the new rule. The DOL has not yet indicated whether it intends to appeal the court’s ruling.

U.S. Labor Department and Florida Department of Revenue Team Up to Prevent Worker Misclassification

Posted in Wage & Hour

Now more than ever, Florida employers should ensure they are properly classifying their workers.

The U.S. Department of Labor and the Florida Department of Revenue have announced an agreement between the two agencies to prevent the misclassification of workers as independent contractors rather than employees.

The DOL’s January 13th press release explains the significance of proper classification:

Business models that attempt to change or obscure the employment relationship through the use of independent contractors are not inherently illegal, but they may not be used to evade compliance with federal labor law. Although legitimate independent contractors are an important part of our economy, the misclassification of employees presents a serious problem. Independent contractors are often denied access to critical benefits and protections, such as family and medical leave, overtime compensation, minimum wage pay and unemployment insurance, to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.

So how will the agencies’ collaboration prevent worker misclassification?  By sharing information and coordinating enforcement efforts, according to the DOL’s “Employee Misclassification” web page.  This dual-agency enforcement approach is likely to increase the risk and potential cost of misclassifying employees.   Employers that misclassify employees may be liable not only for overtime compensation, but also FICA and unemployment insurance taxes, and workers’ compensation premiums.

Employers that are uncertain about the proper classification of their workers should consult the DOL’s guidance and the Florida Department of Revenue’s guidance on the issue.  Employers that remain uncertain about the classification of their workers should consider consulting a qualified employment lawyer.

Employers Should Begin Preparation for Opening of FY 2016 H-1B Cap

Posted in Immigration Planning & Compliance

The beginning of the calendar year is the perfect time for employers to begin planning for the FY 2016 H-1B cap filing season, which will begin on Wednesday, April 1, 2015.

Commensurate with the nation’s economic growth, the demand for H-1B visas is expected to surpass years past. The H-1B quotas for FY 2016 are again capped at 65,000 petitions in addition to 20,000 petitions for those beneficiaries with advanced degrees from a U.S. college or university.

As in the past few years, H-1B cases received during the first week of filing (beginning April 1) are expected to be treated equally for cap purposes. If USCIS receives petitions in excess of the aforementioned quotas during this filing period, it will implement a computerized lottery system to randomly select cases for processing. It is imperative that employers file petitions within this window—ideally on March 31, 2015 via overnight delivery—to maximize their chances of selection. In FY 2015, the USCIS received approximately 172,500 petitions during the same time frame. Effectively, that means that approximately 87,500 petitions were not even selected for processing.

The H-1B classification is reserved for “specialty occupations.” Immigration regulations allow for an individual to remain in the United States in this status for a total of six years. To qualify for H-1B classification, the foreign worker must possess a bachelor’s degree in a field related to the position offered from a U.S. college/university, or an equivalent degree from a foreign school. In addition, the U.S. position offered must require a bachelor’s degree in the related field as the minimum educational requirement. Persons with degrees from foreign universities may qualify for H-1B classification if a certified evaluation agency determines that the degree is equivalent to a bachelor’s degree conferred by an accredited school in the United States. Individuals who have not completed a college degree may substitute three years of professional-level experience as the equivalent of one year of a baccalaureate degree. Additionally, a key prerequisite to the filing of the H-1B petition is obtaining an approved Labor Condition Application (LCA) from the U.S. Department of Labor. The LCA serves as an attestation that, among other things, the employer will remunerate the foreign worker at or above the ‘prevailing wage’ for the occupation in the location of intended employment.

Certain H-1B cases may not be subject to the lottery system, depending on whether the employer is a private or government research organization, a nonprofit institution of higher education, or a for-profit entity related to or affiliated with an institution of higher education. Such qualifying employers may be able to file an H-1B petition at any point during the year, and would not be subject to the lottery system described above. Moreover, a worker’s second application for an H-1B visa, as well as H-1B extension petitions, applications for an H-1B to transfer employers, and petitions to amend already-approved H-1B status are also exempt from the numerical cap limitations.

Employers should immediately identify individuals who would benefit from H-1B status anytime within the next 12 – 14 months. These can include any new hires, or current employees working on OPT (optional practical training following graduation), STEM OPT, or interns or trainees.

New OSHA Recordkeeping Rule Goes into Effect on January 1, 2015

Posted in Workplace Safety & OSHA

The Occupational Safety and Health Administration’s revised recordkeeping rule goes into effect on January 1, 2015. OSHA’s recordkeeping rule requires covered employers to prepare and maintain records of serious occupational injuries and illnesses, using the OSHA 300 Log.

The revised rule includes two key changes: First, the rule revises the list of low-hazard industries that are exempt from the requirement to routinely keep OSHA injury and illness records. To determine whether your business is exempt under the new rule, visit OSHA’s website here. Employers with ten or fewer employees at all times during the previous calendar year remain exempt from routinely keeping OSHA injury and illness records.

Second, the rule expands the list of severe work-related injuries that all covered employers must report to OSHA. The previous rule required employers to report to OSHA within 24 hours all work-related in-patient hospitalizations of three or more employees. The revised rule applies to work-related in-patient hospitalizations of one or more employees and adds the requirement to report to OSHA any work-related amputation or loss of an eye within 24 hours. The revised rule retains the current requirement to report all work-related fatalities within eight hours. These rules apply to all employers under OSHA’s jurisdiction (most private sector employers are covered), including those that are exempt from the routine record-keeping rules.

For additional details, see OSHA’s fact sheet on the new recordkeeping requirements.

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