Articles

Proposed Regulation Addresses Mandatory Use of E-Verify for Federal Contractors — July 2008
A proposed regulation has been published clarifying the Executive Order mandating that all federal contractors enroll in E-Verify. Among other terms, the proposed rule adopts an expansive definition of federal contractor.

High Court Alters Eligibility for Unemployment Insurance in Washington State — July 2008
Washington Supreme Court holds that "good cause" for a voluntary quit is not limited to statutory list previously relied on by Employment Security Department. As a result of the court's decision in Spain v. Employment Security Department, employees will likely argue that they are entitled to unemployment compensation because they left work voluntarily for "good cause."

U.S. Supreme Court Holds that Retaliation Is a Form of Discrimination — June 2008
Two recent U.S. Supreme Court cases bring the ADEA and section 1981 in line with a host of federal and state antidiscrimination statutes that already prohibit retaliation as a form of discrimination.

Court Holds that Workplace Context Is Relevant to Sexual Harassment Claims in the Gaming Industry — June 2008
In Brockington v. Circus Circus Mississippi, a federal district court in Mississippi has held that when determining whether a claim for unlawful harassment is sufficiently severe or pervasive, the court will consider the context of the plaintiff's workplace (in this case a casino bar room), as well as the plaintiff's own conduct in the workplace.

Legislation Proposed to Eliminate Employment Taxes On Employer-Provided Cell Phones — May 2008
As the IRS steps up auditing efforts with respect to the personal use of employer-provided cells phones, new legislation introduced in Congress would eliminate the employment tax consequences of such use of company-provided cell phones.

IRS Changes the Rules for Performance-Based Compensation — April 2008
Revised IRS guidance regarding performance-based compensation could require changes in the financial planning strategies of publicly-traded companies.

California Court of Appeal Affirms Decision Finding No Individual Liability for Supervisors or Managers Under State Wage Laws — April 2008
In a case of first impression, a California Court of Appeal finds that the definition of employer or deemed employer under the California Labor Code and Business and Professions Code does not include individual supervisors, managers or owners unless the statute specifically imposes individual liability.

Unofficial Confirmation from USCIS Indicates both Regular and Advanced U.S. Degree Caps Met — April 2008

Federal Arbitration Act Trumps State Laws Lodging Primary Jurisdiction in State Administrative Forums — March 2008
The U.S. Supreme Court upholds the supremacy of the Federal Arbitration Act and confirms that state laws cannot compel parties to submit claims to a state administrative forum rather than to arbitration under an enforceable arbitration agreement.

Supreme Court Addresses the Remedies Available for Fiduciary Breach Under ERISA — February 2008
In an important legal development in the area of retirement plan fiduciary liability, the U.S. Supreme Court has held that individual participants may sue ERISA fiduciaries for account losses.

IRS Establishes Cross Divisional Team to Combat Improper Tool Reimbursement Plans — February 2008
The IRS recently announced a new cross divisional team aimed at cracking down on tool reimbursement plans marketed to the automotive, construction, aircraft, agriculture and other industries that use hand tools as a way to circumvent employment taxes. Employers should be careful to ensure full compliance with any expense reimbursement plan, particularly those that claim significant tax savings to both the employees and employers.

Coordination of Retiree Health Benefits with Medicare and State Health Benefits — January 2008
Final EEOC rule permits exemption from the ADEA for employers who coordinate retiree health benefits with Medicare.

ICE and Local Police Join Forces to Ramp Up Immigration Enforcement — January 2008
The Department of Homeland Security's Section 287(g) Program, through which local law enforcement teams up with federal immigration authorities to enforce immigration laws, is gaining momentum across the country. Georgia is the latest in a list of more than 12 states to execute a Memorandum of Agreement with DHS to work collectively to investigate and prosecute immigration violators.

California Employers No Longer Holding Their Breath: Applicants Using Medical Marijuana May Be Denied Employment — January 2008
California Supreme Court holds that employers no longer face the Hobson's choice of hiring an applicant who is using "medical marijuana" or refusing to hire that applicant and risking an expensive lawsuit.

HHS Expanding HIPAA Privacy Enforcement Team — December 2007
Department of Health and Human Services announces the expansion of the agency's privacy enforcement team, which could signal a renewed effort by the agency to follow up on individual complaints and increase HIPAA enforcement.

HIPAA Safe Harbor for Supplemental Health Insurance — December 2007
Government issues bulletin providing a safe harbor for supplemental heath insurance plans and exempting certain plans from the portability provisions of HIPAA.

Another New Headache for Employers: San Francisco's Health Care Security Ordinance — December 2007
For San Francisco employers, another new ordinance imposes challenging health care requirements. The San Francisco Health Care Security Ordinance (HCSO) mandates spending requirements for employee health care. The ordinance is effective January 1, 2008 for employers with 50 or more employees and April 1, 2008 for employers with 20-49 employees.

USCIS Eliminates Requirement that Certain H and L Visa Holders Returning to the U.S. Must Present an AOS Receipt Notice to Avoid AOS Abandonment — November 2007
USCIS rules remove the requirement that H and L visa holders who have an adjustment of status case pending present an original I-485 receipt notice upon entering the United States.

Department of Labor Releases Final Regulations on Defined Contribution Plan Default Investment Vehicles — October 2007
New DOL regulations effective December 24, 2007 provide a safe harbor for qualified plan fiduciaries offering default investment alternatives.

Staph Infections in the Workplace — October 2007
In light of recent news reports, employers face workplace concerns about antibiotic resistant, super-staph MRSA infections spreading among coworkers, contamination risks in the workplace, and the precautions needed for a safe work environment.

Tenth Circuit Finds that the University of Colorado Boulder's Failure to Prevent Alleged Sexual Assaults May Be the Result of Deliberate Indifference — October 2007
A federal appellate court reinstated a sexual harassment lawsuit against the University of Colorado finding sufficient facts that a jury could conclude there was an official policy at the University of showing high school football recruits a "good time." This decision paves the way for a jury to decide whether the University of Colorado was deliberately indifferent to the likelihood of sexual assaults during recruiting visits.

NLRB Modifies "Recognition Bar" Doctrine to Permit Employees and Rival Unions to File Election Petitions — October 2007
In a decision that will have a monumental impact on card-check, neutrality and other organizing agreements, the NLRB modifies its recognition bar doctrine to allow employees and rival unions to file election petitions upon notice that a union has been voluntarily recognized as the employees' bargaining representative.

Better Put that in Writing! New York Updates Its Law on Commission Agreements and Other Wage-Related Statutes — September 2007
On October 16, 2007, employee commission agreements in New York will be subject to new requirements. Employers in New York should pay special attention to this and other upcoming changes to New York's Labor Law to ensure timely compliance.

Balancing Employee Free Choice: Withdrawal of Union Recognition During the Life of the Contract — August 2007
The National Labor Relations Board has issued an opinion in Shaw's Supermarkets Inc. clarifying an employer's right to withdraw recognition from a union during the term of the parties' collective bargaining agreement. The Board held that a collective bargaining agreement exceeding three years in duration does not bar an employer, armed with proof that the union has lost the support of the majority of the bargaining unit employees, from withdrawing recognition prior to the expiration of the contract.

Prachasaisoradej v. Ralphs Grocery Company – Employers and Employees Can Share in Profits — August 2007
In Prachasaisoradej v. Ralphs Grocery Company, No. S128576 (Cal. Aug. 23, 2007), the California Supreme Court ruled that employers may lawfully use net-profit based incentive plans to provide supplemental income to employees. The court leaves in place earlier decisions that found some deductions of expenses from incentive income to be unlawful, leaving unanswered questions about how widely it will apply the principles it announced.

Eleventh Circuit Joins Growing List of Federal Courts to Reject the Medical Staff Peer Review Privilege in Federal Discrimination Cases — August 2007
The Eleventh Circuit Court of Appeals in Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007), held that the medical staff peer review privilege does not apply in federal discrimination cases. As it becomes increasingly clear that federal courts will not recognize this privilege in many cases, healthcare providers should be mindful that peer review records, which were once thought to be confidential, may now be subject to discovery and disclosure in future litigation.

Updated Guidance for Employers About the Massachusetts Health Care Reform Law — August 2007
All Massachusetts employers, including employers with ERISA plans, have obligations under the state's new health care reform law. The state continues to issue new regulations and forms, with more deadlines on the horizon.

Corporate Liability for Human Rights Abuses Goes on Trial — July 2007
An ongoing trial in the Northern District of Alabama may provide some needed guidance on the extent of corporations' liability for the conduct of foreign subsidiaries under the centuries-old Alien Tort Claims Act. The case, Estate of Rodriquez v. Drummond Company, Inc., is set to determine whether Alabama mining company Drummond, Ltd. can be held liable under the Alien Tort Claims Act for the murders of three union leaders at its facility in Colombia.

New Employment Contracts Law Adopted in China — July 2007
On June 29, 2007, China enacted a new comprehensive employment contracts law. The new employment contracts law is designed to settle employment disputes and fix the ambiguities found in China's Labor Law 1995. Since employment relationships in China are often very detailed, and subject to many legal requirements, the impact of the new law will be substantial.

New Jersey Supreme Court Clarifies that Essential Job Functions Shape the Duty of Reasonable Accommodation, and that Light Duty Need Not Be Made Permanent — July 2007
New Jersey Supreme Court holds that an employee's ability to perform essential job functions shapes the employer's duty of reasonable accommodation.

Comprehensive Immigration Reform Effort Dead for Now — June 2007
The Senate held a procedural vote this morning on a motion to invoke cloture on the Senate's review of the immigration reform act. The motion failed and the bill has been withdrawn from the Senate floor.

Indiana's Military Family Leave Act Takes Effect July 1 — June 2007
Indiana's Family Military Leave Act, which will take effect July 1, 2007, requires employers with at least 50 employees to permit employees who are related to military personnel to take up to 10 days of unpaid leave when a relative is ordered to active duty.

Court of Appeals Clears Way for Retiree Benefits to Coordinate with Medicare — June 2007
In a widely anticipated decision, a federal appeals court has allowed the EEOC to finalize a regulation that will permit an employer's retiree medical plan to coordinate with Medicare or terminate upon Medicare eligibility.

DOS Publishes Interim Final Rule Regarding J-1 Trainees and Interns — June 2007
The Department of State has published a final rule governing J-1 trainees and interns.

"Controlling Employer" No Longer Liable Under Multi-Employer Worksite Doctrine — June 2007
After over 30 years of enforcing OSHA's policy of citing general contractors on multi-employer construction worksites when a subcontractor creates a safety or health hazard, the OSHA Review Commission abolishes "controlling employer" liability when the general contractor neither created nor exposed its employees to the hazard.

USCIS Publishes Final Rules Increasing Many Filing Fees — May 2007
USCIS publishes final rules increasing many filing fees.

Impact Analysis of Comprehensive Immigration Reform Senate Bill — May 2007
Comprehensive immigration reform bill proposes sweeping changes that would impact U.S. companies.

The Real Lessons of Ledbetter v. Goodyear Tire & Rubber Co., Inc. — May 2007
U.S. Supreme Court holds that neutral pay practices are not actionable under Title VII even if they perpetuate pay disparities resulting from earlier discriminatory pay decisions that were made before the limitations period.

No Smoking Please: Smoke Free Arizona Act - Action Items for Employers — April 2007
Arizona's new law prohibiting smoking in most public places, including workplaces, becomes effective May 1, 2007. The law imposes new obligations on employers, and this ASAP provides tips for employers in implementing these new rules.

Same Time This Year: The May 1 Immigration Demonstrations - What Can an Employer Do? — April 2007
Some activist groups have repeated the call for a national day of action for immigrants' rights on May 1. To provide guidance to employers in addressing employee absences, we have updated and re-issued our 2006 ASAP "May 1 Immigration Demonstrations - What Can an Employer Do?"

International Labor Organization Weighs in on Dispute over Labor Rights at the British Embassy — April 2007
Unionized staff at the British embassy in Washington, D.C. are claiming a victory following a recent ruling by the International Labor Organization. The ruling, which calls upon the embassy to bargain collectively with the employees' designated representative, looks to have quelled a labor rights dispute that has gripped the embassy for the past two years.