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Employer Law Report

NLRB issues final rule on “quickie elections”

Posted in Labor Relations

The National Labor Relations Board has issued a final rule making significant changes to the procedures leading up to union representation elections. To secure the right to represent a group of employees, unions must first get a showing of interest among an appropriate group of workers. That is typically done by getting employee signatures on authorization cards. With at least a 30% showing of interest, a union can file a petition with the NLRB requesting a representation election. Once the petition is filed there must be a determination of what is the appropriate group of jobs to be included in the voting. Sometimes that occurs by agreement between the company and the union. Sometimes it requires a hearing in front of an NLRB judge. Also after a petition is filed, there is typically a period of communication by the company to the voters, expressing legal reasons that the company feels that union representation is not in the best interest of the employees or the company.

The new rule takes effect April 14, 2015. Among other things, it paves the way for elections to occur much more quickly after a petition. Under the new rule the expected time to election will be approximately 14-21 days after the petition. Conceivably an election could happen in as few as 10 days. Compare that with the current average time of about 40 days between petition and election even when there is agreement on what jobs are in the voting unit. That means less time for management to communicate effectively to workers before the vote. At the time a union files a petition, it has often already obtained authorization cards from 50% or more of the workers. Obviously, being able to get to election as quickly as possible is in the union’s best interest. That has caused some to refer to the new procedures as “election by ambush.” Another significant change under the new rule is the requirement that the list of eligible voters provided to the union include employee telephone numbers and email addresses. Currently only names and home addresses must be provided. The new rule also restricts the kinds of voter eligibility challenges that can be made in a pre-election hearing, requiring that most of those challenges be raised after the election in an effort to set-aside the results.

In recent months, the NLRB has taken various steps affecting the process for union organizing and many feel the Board is determined to make the process easier for unions. For example, we have pointed out here the Board’s recent cases that support organizing smaller units of employees, which increases a union’s chance of success. More recently, we wrote here about the Board’s Purple Communications case, opening the door for employees to use company email systems for union organizing.

There may be legal challenges to the rule, but it could be difficult to sidetrack. Employers are wise for now to presume that the NLRB will continue to pave a smooth road for union organizing. It is especially important that companies re-evaluate their commitments to the things which make union organizing less likely. Those include fair and consistent treatment for all employees, well-constructed human resources policies and practices, effective communication with all employees, and a management group that is attuned to those commitments and well-trained to spot the early signs of organizing and to respond appropriately.

Obama Board declares 30-year old NLRB deferral standard inadequate

Posted in Labor Relations

On December 15, 2014, the National Labor Relations Board (“NLRB” and “Board”) issued a decision in which the three Democratic-appointed members of the Board struck down the standard that the NLRB has applied for the last 30 years to determine whether to defer to arbitral decisions in cases that also involve alleged violations of Section 8(a)(3) and (1) of the National Labor Relations Act (“NLRA”). The case, Babcock & Wilcox Construction Co., Inc., is broad in scope, because the majority also use it as an opportunity to announce changes to the NLRB’s pre-arbitral deferral standard and to its standard for determining whether to defer to settlement agreements arising from the grievance-arbitration process. Not surprisingly, the two Republican-appointed members of the Board offered sharply worded dissents.

For the past 30 years, the NLRB has followed the deferral standard set forth in Olin Corp., 268 NLRB 573 (1984). Under Olin, deferral to an arbitral decision was deemed appropriate where the contractual issue is “factually parallel” to the unfair labor practice issue, the arbitrator was presented generally with the facts relevant to resolving the issue and the award is not “clearly repugnant” to the Act. Also, under Olin, the burden of proof was placed on the party opposing deferral to demonstrate that the standards for deferral had not been met. For three decades, this standard had been accepted by the Board and by reviewing federal courts of appeals as striking the proper balance between reconciling the Board’s obligation to prevent unfair labor practices with national labor policy encouraging the voluntary settlement of labor disputes through grievance and arbitration procedures.

However, the Obama-appointed General Counsel to the NLRB and organized labor attacked the existing standard as inadequately protective of employees’ rights under the NLRA. The three-member majority of the Obama Board agreed. In Babcock & Wilcox, they announced that, going forward, the new standard for post-arbitral deferral cases involving Section 8(a)(3) and (1) cases (i.e., those alleging that employers have retaliated against employees exercising their Section 7 rights) would be as follows:

“If the arbitration procedures appear to have been fair and regular, and if the parties agreed to be bound, the Board will defer to an arbitral decision if the party urging deferral shows that: (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permits the award.”

Although not at issue in this case, the three-member majority also used its decision in Babcock & Wilcox as an opportunity to announce changes in the NLRB’s pre-arbitral deferral standard and its standard for determining whether to defer to settlement agreements arising from the grievance-arbitration process. Regarding the former, the three-member majority announced that the NLRB will no longer defer unfair labor practice allegations to the arbitral process unless the parties have explicitly authorized the arbitrator to decide the unfair labor practice issue, either in the collective bargaining agreement or by agreement of the parties in a particular case. Regarding the latter, under the new standard, a settlement agreement arising from the grievance-arbitration process will not preclude litigation of companion unfair labor practice allegations unless the party seeking deferral can show that the parties intended to settle the unfair labor practice issue; that they addressed it in the settlement agreement; and that Board law reasonably permits the settlement agreement.

The Republican-appointed Board members, Philip Miscimarra and Harry Johnson, wrote separate dissenting opinions, both of which assailed the majority for needlessly overruling over 30 years of accepted Board practice. The decision is clearly another big win on a long list of recent wins for organized labor handed down by the Obama Board.


Doctrine of dual intent/dual purpose does not apply to Ohio workers’ compensation claims

Posted in Workers' Compensation

The Supreme Court of Ohio in Friebel v. Visiting Nurse Association of Mid-Ohio recently determined that an employee who was injured in a car accident while dropping passengers off at a mall on the way to perform her work duties could not use the doctrine of dual intent or dual purpose in support of her request for workers’ compensation benefits.

Home health nurse Tamara Friebel was employed by Visiting Nurse Association of Mid-Ohio (“VNA”) to travel to client’s homes and provide in-home health care services. While working, she was primarily in client’s homes, and not at VNA’s offices, but sometimes she went to the offices to pick up supplies or attend meetings. During the week, VNA paid Freibel for travel time and mileage, but subtracted 24 miles from the mileage and 30 minutes from the travel time each day to account for the time and distance it would take Friebel to travel to and from her home and VNA’s offices, even when she never presented to the offices. On weekends, VNA paid Freibel for travel time and mileage and did not make any deductions.

On Saturday, January 22, 2011, Friebel was scheduled to work at a patient’s home in Ontario, Ohio. On the way to her patient’s home, Friebel chose to take her daughter, her son and two family friends to the Richland Mall in Ontario. Prior to dropping anyone off at the mall, Friebel’s car was hit from behind. Subsequently, Friebel filed an application for a workers’ compensation claim for a neck injury sustained in the car accident.

Administratively, the Industrial Commission of Ohio allowed the claim, finding that because the employer had conceded that Friebel was paid mileage and for her travel time from her home to her patient’s home on the day of injury, that the injuries were sustained in the course and scope of employment. VNA appealed to the Richland County Court of Common Pleas and filed a motion for summary judgment, alleging Friebel was not in the course and scope of her employment at the time of the accident.

The trial court granted judgment in favor of VNA, concluding that Friebel’s action of transporting her children to the mall was a personal errand and that her injury did not arise out of her work duties and did not occur in the course of her employment. The court found that it was immaterial that Friebel was paid for travel time and mileage on the weekends because at the time of the accident, she was travelling to the mall, not to her patient’s home. Friebel appealed and the Fifth District Court of Appeals reversed. In a split decision, the Court of Appeals held that, as a matter of law, Friebel’s injury arose out of her work duties and occurred in the course of her employment. The Appellate Court found that Friebel had the dual intent to travel to her patient’s home and perform her work duties and drop her children off at the mall. Further, the court found that Friebel would not have been at the place of the accident had she not been performing her work duties because she was on route to her patient’s home when the accident occurred. VNA appealed to the Supreme Court of Ohio.

In Ohio, an injury is compensable when the injury occurred in the course of and arising out of the injured worker’s employment. In general, for employees with a fixed place of employment, injuries sustained while traveling to and from their place of employment are not compensable.

In this case, the Supreme Court focused its analysis on whether the doctrine of dual intent or dual purpose is applicable when determining whether a request for a workers’ compensation claim is compensable. Other states have created this doctrine to permit a claim to be recognized when an employee is travelling for both business and personal purposes.

In New York, a court defined the test for determining when a travelling employee is acting in the course of his employment as: “[i]f the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. . . If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had dropped, and would have been cancelled upon the failure of its private purpose, though the business errand was undone, the travel is then personal and personal the risk.” In re Marks v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929).

Here, the Supreme Court soundly rejected the dual intent or dual purpose doctrine and held the doctrine is not applicable in determining the compensability of a claim. Instead, the Supreme Court stated that the proper way to analyze a workers’ compensation claim in Ohio is to apply tests to determine whether the injury occurred ‘in the course of’ employment and ‘arose out of’ an employee’s work duties. Ultimately, the Supreme Court reversed the Court of Appeals decision and remanded the matter back to the trial court to determine whether Friebel was injured in the course and scope of her employment with VNA.

Potentially, this fact pattern was not an ideal set of facts for the Court to evaluate whether this doctrine should be applicable in Ohio. In other states, the doctrine applies when an employee was performing a personal task at the same time as a business task. For example, in the New York case, the employee was asked by his employer to perform a task in a different city only because the employee was already planning to travel to that city to meet his wife. In this case, if Friebel was going to meet a patient at the mall as well as drop her children off at the mall, the facts may have been more applicable to address this doctrine. As the Court was explicit in its conclusion that the doctrine is not applicable in Ohio and did not address the underlying facts in this particular case, it appears the Court’s approach to the doctrine will remain intact. However, it is likely another employee with a more applicable fact pattern may ask the Court to revisit this issue down the road. For now, employers will have a solid defense to any claim in which an injured employee alleges dual intent or dual purpose in pursuit of a workers’ compensation claim.

Congressional Action Is Required to Modernize Employment Based Immigration

Posted in Immigration

President Obama’s announcement on November 20, 2014 regarding his planned Executive Action to improve the immigration system was accompanied by several administrative memorandums, including several that addressed the business community’s frustration with a system that has been cumbersome, lengthy, and unpredictable. One memo included a promise to review the PERM process with an effort to modernize and improve it. (For a general description of the PERM process, please see our previous post). The Department of Labor (DOL) issued a brief Fact Sheet explaining their concept of what it will mean to modernize this program.

While an effort to modernize the program, which will observe the 10th anniversary of the publication of the PERM regulations later this month, is appreciated, the tension between the statutory mandate of the labor certification requirement and the needs of the employers using this system must be addressed in a more comprehensive fashion. An Executive Order may be able to improve the current process, but a serious and sophisticated review of the goals and the processing of the program can only be completed through statutory reform.

The labor force and the needs of employers who need high skilled immigrant labor change at a pace that can only be described as dizzying. Many of the technologies we use and depend upon today were developed only within the last 10 years. We need review only a short list of these technologies, all of which were developed after 2005, to get a perspective on how our world has changed.

  • iPhone – debuted on June 29, 2007
  • Twitter – founded on March 21, 2006
  • Google Calendar – launched April 2006
  • Google Map Street View – launched May 2007
  • Chase Quick Deposit, launched in 2010

Incidentally, the iPhone and other smartphones that followed made it possible for mobile transactions like Chase Quick Deposit and Apple Pay.

As our expectations grow for better iPhone versions, more interactive Google Maps, and more efficient ways to pay merchants, employers struggle to fill the growing list of jobs to develop, leverage, design, and integrate various technologies in innovative ways. During the past fiscal year, the majority of over 70,000 PERM applications submitted by U.S. employers were for professional occupations in the Information Technology and Science fields.

The Labor Certification process is based upon a statute first incorporated into the Hart-Celler Immigration Act of 1965. This Act eliminated the national origin quotas that had guided immigration policy since 1924, and created immigration opportunities based upon offers of employment and separate categories to foster family reunification. This remains the basic framework of the law today. The employment categories included important provisions to protect American workers from employers who would seize the opportunity to hire immigrant labor at lower wages. Thus was born the concept of labor certification and the requirement to prove a shortage of U.S. workers “ready, willing, able, and qualified’ to fill the open position. In 1965, however, the workforce and the needs of employers were very different. Positions were easily defined and the requirements for any specific position could be simply stated.

The PERM process continues to provide an avenue for employers to seek qualified individuals in cutting edge fields of technology, science and business. However, the positions which are often the subjects of PERM applications do not fit into the neat categories of historical labor classifications.

Employers need people with superior mathematical, technical or engineering skills, and this may mean hiring the best and brightest foreign students who have completed their education in the United States. It is no longer sufficient in the whirling world of technology innovation to be skilled in technology as the focus has now turned from developing technology to using it in new and creative ways. Successful businesses have learned to assess large storehouses of data, and pull information from them that can now be applied to business models in ways that were inconceivable just a few years ago.

Thus, the PERM program exemplifies the conundrum of immigration policy. The law must encourage economic development by enabling employers to find and retain superior talent with the skills needed for cutting edge business and scientific innovation, and at the same time, protect American workers from losing their jobs or employment opportunities to foreign workers. Studies have demonstrated that at current immigration levels, immigrant labor expands the need for the labor pool, but of course, examination at the macro level does not always explain every individual’s experience. The difficult task for the Administration is to “modernize and update” this program while it seeks a balance between these competing concerns. While providing new ways to advertise for positions may be important, it is merely tinkering around the edges. The problem demands global revision, one that can reconcile the needs of the 21st century employer and the policy imperative to train and meet that demand with as much local talent as possible but to supplement the availability of the talent by enabling employers to recruit globally for the best and the brightest workers.

While the Administration has only modest goals in its quest for modernization of the PERM program, the attention to the issue should engender more serious study of the way in which these competing goals can be met to enhance our economy and make the immigration system work for us. It should be possible to benefit businesses, workers and the society and economy generally with an enlightened and modern policy. That will require Congressional action following a serious examination of the real issues, uncluttered with trite political rhetoric. We hope that the Administration’s actions start the conversation.

NLRB begins its “purple” reign: Board holds employers must permit employee use of company email systems for union organizing

Posted in Labor Relations, Other Articles

In a decision issued yesterday, the National Labor Relations Board opened the door for employees to use company email to send messages encouraging co-workers to unionize. In Purple Communications, Inc., the Board reversed what had been the law for the past 7 years. In its 2007 Register Guard decision, the Board had allowed companies to prohibit employee use of company email to solicit support for any cause, including union organizing. Reversing course in Purple Communications, the Board now holds that companies must permit the use of company email for solicitation, at least during non-working time, which is generally defined to mean anytime while on break, including meal time, and anytime before work begins and after work ends for the day.

The Purple Communications decision likely foretells what the next two years will be like under the currently constructed Board. In Purple Communications, the Board held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The Board held that Register Guard was “clearly incorrect” in its focus on employer property rights and failure to recognize the importance of email as a means of workplace communication.

Claiming that its decision is “carefully limited,” the Board stated that it seeks to accommodate employees’ Section 7 rights to communicate and the legitimate interests of their employers. First, the Board stated that its decision applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Therefore, employers can ban employee access to email altogether. But that will not be a workable solution for many workplaces. Second, an employer may justify a total ban on nonwork use of email. That will not be a desirable move for many employers because occasional nonwork use of email is engrained in the culture at many workplaces. Also, uniform enforcement of a ban on all non-work email could be a real challenge. Even if an employer chooses to take this path, the Board will require it to show “special circumstances” that make the ban on non-work email necessary to maintain production or discipline. The decision does leave open the possibility for the employer to “apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.” From this language it would appear the employer can still enforce a no-solicitation policy that limits email solicitation to non-working time as described above. Finally, the Board stated that it does not address email access by nonemployees, nor any other type of electronic communications systems, as neither issue was before it in Purple Communications.

Not surprisingly, the Board’s decision fell upon party lines with the three Democrat appointees in the majority and the two Republican appointees dissenting. Citing to national uprisings around the world that have been propagated by social media campaigns, Member Miscimarra in his dissent noted that “the majority decision improperly presumes that limiting an employer’s email system to business purposes constitutes ‘an unreasonable impediment to self-organization.” These facts , as well as the constantly evolving nature of social media and other electronic communication tools “render implausible any suggestion that employees are unreasonably prevented from engaging in NLRA-protected communications absent a statutory right to conduct such activities on the employer’s business email system.”

Member Johnson, another Republican appointee, argued that the majority decision “create[s] a sweeping new rule that interferes with an employer’s well-established right to restrict employee use of its property based on convenience” and violates employers’ First Amendment rights by requiring them to pay for speech they do not support.

Responding to the Purple Communications decision, employers should review their electronic communications and non-solicitation policies to confirm that they are compliant. Employers are cautioned, however, that if they already provide email access to their employees, that access should not be eliminated or curtailed without first discussing it with their labor attorneys, as such action easily could be viewed by the Board as a violation of either Section 8(a)(1) or 8(a)(3) of the NLRA.

This figures to be a wild and wooly next few weeks as the Board is expected to roll out more controversial decisions before year end. In fact, the Board has just issued its “quickie” election final rule, which you can read about here. Our analysis will follow shortly…


Sony Data Hack: “You Can’t Lose What You Ain’t Never Had”

Posted in Workplace Privacy

Back in the 1960’s, legendary bluesman Muddy Waters wrote a song called “You Can’t Lose What You Ain’t Never Had.”

Now, it is Sony Pictures that is singing the blues, as damages continue to mount following the cyber attack on its data networks just before Thanksgiving. A shadowy group with possible connections to the North Korean government has claimed responsibility for the hack, which, to date, has resulted in exposure of Sony intellectual property (e.g., movie scripts), trade secrets (e.g., film budgets), employee personal information (e.g., employee and former employee home addresses and social security numbers) and other sensitive information (e.g., actor travel aliases and phone numbers).

I’m no cybersecurity expert, but I’m at the point where I seriously doubt any currently available data security technology is totally hack-proof. Who knows, there may have been precious little that Sony could have done to prevent the loss of its intellectual property and trade secret information to determined hackers. Let’s face it, some of the most highly sophisticated corporations and government agencies have been victimized by cyber attacks in the last year. But the same really can’t be said for their employee data. News reports have consistently stated that the Sony hacking exposed a total of 47,000 employee and former employee social security numbers to public viewing. At present, Sony only has approximately 6,500 employees, so that means that more than 40,000 of the people whose information was exposed no longer work there. Incredibly, according to the Wall Street Journal, the data exposed included the social security numbers of former employees who had left Sony’s employ 14 years ago.

So, while I’m sure there will be many lessons for employers (and businesses in general) to learn from this episode, The following takeaways focus on the 47,000 employees and former employees whose personal information now resides on the Internet.

  • Employers should limit their collection of applicant and employee personal information to only that which is absolutely needed and limit the use of that personal data for the necessary purpose for which it was requested (typically for background checks, employment eligibility verification, and to report earnings and payroll taxes).
  • Employee personal information should be stored securely and with limited access rights (i.e., don’t make it easy for the hacker to steal).
  • Once the information is no longer needed, dispose of it in a secure manner.

In other words, as Muddy Waters sang: “You can’t lose what you ain’t never had.”

Texas Federal Court decision illustrates need for BYOD policies

Posted in Workplace Privacy

Saman Rajaee was a salesman for Design Tech Homes. He used his personal iPhone to connect to his employer’s Microsoft Exchange Server, which allowed him to access his work-related email, contacts and calendar from his phone. Design Tech did not have a BYOD policy. When Rajaee’s employment terminated, Design Tech remotely wiped his phone, which deleted all of his data, including personal emails, texts, photos, personal contacts, etc.

Rajaee sued under the federal Stored Communications (“SCA”) and Computer Fraud and Abuse Acts (“CFAA”) as well as raising various state law claims. Design Tech moved for summary judgment on the federal claims. On the SCA claim, the court held, based on Fifth Circuit precedent, that information an individual stores to his hard drive or cell phone is not in electronic storage within the meaning of the statute.

Design Tech was successful on the CFAA claim as well, but was forced to take a much riskier path than would have been necessary had it simply had a BYOD policy. Generally speaking, the CFAA prohibits accessing a protected computer without authority or in excess of authority, but requires a showing that the computer owner sustained at least $5000 in losses specifically due to either the cost of investigating and responding to an offense or the costs incurred because of a “service interruption.” In Rajaee, the court held that the value of the data wiped from Rajaee’s phone was not the type of loss or cost contemplated as being recoverable under the CFAA. In addition, the court held that the deletion of Rajaee’s data did not constitute a “service interruption.” As a result, his claim under the CFAA failed.

Takeaway for Employers:

Employers using a BYOD environment really need to put a BYOD policy in place. Had Design Tech had such a policy, it could have – and indeed, should have told its employees, including Rajaee, that upon separation of employment (or, for instance, also if the device is lost or stolen), any device used to access the employer’s network would be wiped. This would enable the employees to preserve any important personal data on their devices. In addition, using containerization software would permit the employer to segregate business data from personal data on the phone, which also would permit the employer to wipe only the business data upon separation from employment.

Business implications of the President’s Executive Action on immigration reform measures

Posted in Immigration

Last night President Obama addressed the nation and outlined his long awaited Executive Order to begin the process of immigration reform. His speech emphasized the policy imperative to improve the system, and encourage economic growth consistent with our values respecting and protecting individual rights. The President, anticipating the Republican response, reiterated that it is the role of Congress to make substantive changes in the laws, but that in the absence of Congressional action, he noted several steps that he can take as President to make the immigration system work a little better. Setting aside this constitutional controversy for the moment, the most dramatic, and controversial announcement established criteria for approximately 4.5 million undocumented immigrants who are parents of U.S. citizens or permanent residents to apply for “deferred action,” including employment authorization and the security of deferred deportation proceedings. There are also several items of interest to the business community.

Following the President’s speech, the Department of Homeland Security issued a series of memoranda that provided more insight into the nature of the executive orders. While more specific than the speech, the memos signed by the Secretary of Homeland Security still provide only broad outlines of policy initiatives. Some of the items are purely administrative, but most will require a change in federal regulations. Thus, the process to implement the regulatory reform will include publication in the Federal Register, public comment, and additional time for the respective agencies to finalize the new regulations. This process will take several months, and possibly longer, potentially giving Congress an opportunity to act in the interim.

The reforms most important to the business community and employers were set forth in a memorandum addressing the need for high skilled business and workers. This memo identified several areas where administrative reform can make the process easier for employers and their high skilled workers.

  • USCIS published a proposed regulation in June, 2014 that would permit spouses of certain H-1B employees who have applied for permanent resident status to be granted work authorization while the application is stalled awaiting an available visa number. The Secretary’s memo instructs USCIS to publish this final regulation “in a timely manner.”
  • Optional Practical Training (OPT) is granted to foreign students for one year following graduation. Because the H-1B lottery each April leaves many students without the ability to transition to H-1B status, USCIS in 2007provided for an additional 17 month extension for graduates in STEM occupations. The Administration has proposed a broader definition of STEM occupations and to extend OPT for an additional period. This will provide E-Verify employers the opportunity to hedge their bets on the H-1B lottery, and to enter as many as 3 or 4 times until the individual is selected.
  • The Immigration Act of 1990 created a national interest waiver of the labor certification requirement to attract individuals with advanced degrees or exceptional ability where the work or skills of the individual created a “significant public benefit.” However, the INS, and now the USCIS, have narrowly interpreted this exception in a manner that makes it mostly unavailable. The Secretary’s memo recognizes that the national interest waiver is underutilized and directs USCIS to issue either guidance or new regulations that will expand the ability of highly qualified individuals to apply for the national interest waiver.
  • Many employers have struggled with the increasingly limited interpretation of specialized knowledge for international transfers in the L-1B context. The Administration has promised that it will release guidance clarifying, and hopefully, relaxing the stringent standards that have made it difficult to transfer individuals from overseas to U.S. operations.
  • One of the most innovative provisions of the Senate bill passed last summer, and never considered by the House, was the ability of certain foreign entrepreneurs to apply for green cards based upon their ability to start new businesses. While the President does not have the authority to create new visa categories, he has promised to use his discretionary parole authority to permit certain investors to come to the United States and begin or expand their business. These new business owners will be able to start and expand their business, but the ability to complete the process and become permanent residents will need to wait for Congressional action.
  • The current limited number of immigrant visas has created a significant backlog for many employees whose PERM applications and visa petitions have been approved. In many instances, this backlog is measured in years and in some cases, decades. The Administration plans to publish a regulation that will permit applicants to pre-register applications to adjust status to permanent resident. While this will not be an actual application, and permanent resident status cannot be approved until there is an available visa number, pre-registered applicants will have many of the benefits of a pending application, including work authorization and advance parole (a document that permits a foreign national to return to the United States following temporary travel abroad). The proposal will also include increased job mobility and provide applicants the right to change jobs without abandoning the application. This will be a mixed blessing for employers as employees are no longer limited to the petitioning employer, but it will also expand the applicant pool for employers seeking talent. The Secretary’s memo notes the increase in economic benefits from eliminating barriers to job mobility, both within a particular company and among different employers.

Many of these reforms can only be implemented by changes in the regulation, and will therefore take time before the specifics are finalized and can be implemented. The President very carefully crafted his list of reforms to limit steps that can be taken by executive action. It is a call to Congress to pass a comprehensive reform package, a step that has thus far been resisted. We look forward to the implementation of these steps, and hope that the provisions will ease some of the burden on employers and employees seeking to comply with the increasingly complex and dysfunctional immigration system.

State Department announces a change in visa reciprocity agreement with China

Posted in Immigration

This past weekend President Obama, while in China, announced changes in the reciprocity agreement for visas for Chinese citizens. The reciprocity agreement, which becomes effective on November 12, 2014, governs the period of validity for different kinds of visas which permit Chinese citizens to travel to the United States for different purposes. The agreement provides for the same provisions relating to U.S. citizens travelling to China in similar visa categories. The State Department issued a press release and announced the specific changes, together with a series of frequently asked questions with regard to the impact of this announcement for the different visa categories. The change in the reciprocity agreement permits the State Department to issue longer-term visas for students, business visitors, tourists and exchange visitors. However, it is important to note that the new reciprocity schedule does not apply to H-1B or L-1B visas. While many in China look forward to the ability to apply for Treaty Trader or Treaty Investor visas (E-1 and E-2, respectively), this announcement will not provide any assistance.

The impact of these changes is limited. It will not expand the number of individuals who can apply for visas, nor will have any impact on the eligibility of any individual for a visa. It does not extend the ability of anybody to stay longer in the United States. However, it will permit some individuals to avoid the need to apply frequently for a visa. It is important to note the distinction between the issuance of the visa and the right to stay in the United States. The visa is issued by the State Department and grants the right to enter the United States for a specific purpose and a specific time. The visa governs the period in which the holder of the visa can present himself for admission at the border, it does not govern how long he is permitted to stay. Thus, for individuals who wish to travel between the United States and China, it will reduce the number of visits to the American Consulate to apply for a new visa in the three designated categories. Student and exchange visitor visas will be valid for the duration of the educational program that supports the visa application up to a maximum of five years. Visitor visas, for both tourists and business visitors, will be valid for 10 years.

The State Department announcement notes that the governments of China and the United States continue to negotiate regarding the terms of other visas, presumably H-1B and L-1 visas, but at this time, only the visitor, student, exchange visitor visas will have extended periods of validity.

Ohio Appellate Court upholds employee termination for Facebook threats

Posted in EEO, Workforce Strategies

A recent Ohio appellate court decision highlights how an employer’s response to employee threats of violence made on social media sites can impact a court’s decision when the employee challenges their termination. In Ames v. Ohio Dept. of Rehabilitation and Correction, the plaintiff was employed by ODRC as a Senior Parole Officer. In 2009, after the plaintiff returned from a medical leave of absence due to depression and anxiety, her co-workers and supervisors began noticing what they described as a pattern of interpersonal conflicts, erratic behavior, and emotional outbursts at work. Later that year, while discussing her work situation on Facebook, she wrote a post that included the following “I’ll gimp into work tomorrow. I guess I could just shoot them all.” ODRC scheduled her for an IME to assess her mental health and her ability to perform her job duties. The psychologist who conducted the examination found no evidence of depression or anxiety and concluded that she is capable of employment consistent with her skills and capacities.

Beginning in 2010, plaintiff was involved in a series of incidents with a co-worker who was then in a relationship with plaintiff’s former partner. Ultimately, plaintiff’s former partner sought an order of protection against plaintiff, which prompted ODRC to schedule a second IME to determine if the plaintiff had a propensity for violence. Because that IME was inconclusive, ODRC scheduled a third IME, which resulted in a finding that there was insufficient evidence that the plaintiff was “dangerous.” Approximately three months later, however, the plaintiff posted an apparent threat against the co-worker on Yahoo! Messenger, which included the following: “Feeling the heat yet? It’s coming. I promise. You fucked with the wrong person…, your ass is mine!”

Plaintiff denied sending the message, but also resisted ODRC’s efforts to determine if her account had been hacked. She was then terminated for violating policies against “threatening, intimidating, or coercing another employee” and “interfering with, failing to cooperate in, or lying in an official investigation or inquiry.”

Plaintiff filed suit against ODRC in the Ohio Court of Claims alleging that she was discriminated against on the basis of a perceived disability. The plaintiff contended that ODRC perceived her as having a disability based on the fact that the agency had scheduled the plaintiff for three mental health IME before ultimately terminating her employment. The court rejected this argument because the IME’s were reasonably sought to determine whether she potentially was a danger in the workplace based on evidence that reasonably suggested the potential for violence. Furthermore, none of the IME’s resulted in any conclusion suggesting that the plaintiff had a disability. Even assuming that the plaintiff could demonstrate a perceived disability, the court found that ODRC properly terminated her for the last threatening social media posting, which occurred after the final IME.

Takeaway: Ohio and federal law holds that an employer does not perceive an employee as having a disability simply by seeking an independent medical examination. But here, the employer definitely opened itself up to such a lawsuit by initially seeking an IME after the plaintiff first suggested on Facebook that she “could just shoot them all.” But for the fact that the employer had not terminated another employee who made a similar comment, a termination decision easily could have been justified after that initial comment. Either way, the employer here properly took the plaintiff’s comments seriously. One question that the employer should always consider when faced with threats of violence: Which lawsuit would you rather defend – the perceived disability discrimination lawsuit or the lawsuit alleging that you had information regarding a potentially violent employee and did nothing?