Friday, March 30, 2007

Week In Review (March 30, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9617”>Beware: Your Employee Handbook May Be Hazardous Under the NLRA.</A>
Non-Union employees are also protected by the NLRA and employers must ensure that, even in non-union workplaces, their employee handbook isn’t violating the National Labor Relations Act.
Located On: Nixon Peabody LLP.

Most Popular State Law Article

<a >“Exempt” Status Under California Law: Avoid the Pitfalls.</A>
It’s been difficult for California employers to determine who is and who isn’t exempt from overtime and minimum wage requirements; this article helps you sort it all out.
Located On: Shaw Valenza LLP

Most Popular Headlines

<a TARGET=“_blank”]Secretary shouldbe paid for her OT[/url]
The Post and Courier - March 26, 2007

Friday, March 23, 2007

Immigration Law and California Employment Law

Two recent cases examine the intersection of immigration law and employment litigation and both decisions are in favor of the immigrants.

First, California employment law does not make distinctions between employees working lawfully or illegally.  Labor Code 1171.5 plainly declares:

(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals
regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.  (b) For purposes of enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.

In Reyes v. Van Elk, the California Court of Appeal held that section 1171.5 is not preempted by federal immigration laws.  Reyes and others accused Van Elk of failing to pay the “prevailing wage.”  The Superior Court held that federal immigration law preempted section 1171.5 and that Reyes could not seek unpaid prevailing wages because he was an illegal immigrant. The court of appeal reversed, holding that federal law (IRCA) does not preempt section 1171.5, and that Reyes had standing to sue for unpaid wages.

Second, in a case having broad implications for employers hiring workers under immigration visas such as H1-B’s, the Ninth Circuit Court of Appeals held that an employer could be held liable for wrongfully discharging an employee who was not authorized to work in the U.S.  The case is Incalza v. Fendi N. Am. Incalza worked for Fendi under an E-1 visa. When a French company bought Fendi, the E-1 visa no longer was valid.  Fendi, which did apparently not want to retain Incalza anyway, discharged him because he was not lawfully working in the U.S.  Incalza asked for a leave of absence to obtain a visa or to marry his fiance, a U.S. citizen. 

Incalza sued for breach of contract not to terminate without good cause, among other things.  Fendi argued that “good cause” was established because Incalza was not lawfully allowed to work, and Fendi was not obligated to wait until Incalza became authorized to work.  A jury found in favor of Incalza.  Fendi appealed and ran right into Stephen Reinhardt. 

The Court of Appeals said that IRCA does not require employers to terminate workers who may resolve immigration status if they are granted a leave of absence. Does the law require granting a leave of absence? No, but this did not stop the Court of Appeals.  The Court said that an employee on leave is not actually “employed” under IRCA. (This is news to employers who must provide all sorts of leaves with guaranteed reinstatement.)  Because the employee is not really “employed” while on leave, the court reasoned, the employer can comply with IRCA and not discharge the worker. 

Distinguishing Supreme Court authority and the IRCA statute itself, the Court announced this rule:  “as a general rule, individuals who are indisputably not authorized to work must be discharged immediately. An individual who has the opportunity to switch from an E-1 to an H1-B . . . is, however, another matter.”

Incidentally, the court also held that IRCA does not conflict with Lab. Code section 1171.5, just as the state court in Van Elk did.  So, that issue is settled unless the Supremes take up Fendi.

In light of this case, employers seeking to discharge employees must carefully examine whether to use the expiration of a visa as the sole justification for termination.  The courts may well say that it was not “necessary” to discharge the worker merely because he or she no longer was authorized to work in the U.S. 

Stay tuned.

Friday, March 16, 2007

Week In Review (March 16, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9513”>Latest Developments in I-9 Compliance: What Every Employer Needs to Know.</A>
What Obligations Do Employers Have Relating to Verifying the Employment Eligibility of All Employees?
Located On: Buchanan Ingersoll & Rooney

Most Popular State Law Article

<a >The Risks of Hiring Someone Bound by a Noncompetition Agreement.</A>
You are about to hire a new employee when you learn that she signed a noncompetition agreement with her current employer. “No problem,” you think, “courts never enforce those things. Besides, even if a court does enforce the noncompetition agreement, it will not affect me as the new employer because I did not sign the agreement.”
Located On: Fredrikson & Byron, P.A.

Most Popular Headlines

<a TARGET=“_blank”]Former ‘American Idol’ employee sues for sexual harassment[/url]
Orlando Sentinel - March 13, 2007

Friday, March 09, 2007

Week In Review (March 9, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9460”>Top Ten Labor and Employment Events and Trends of 2006 (pdf).</A>
This issue highlights the Top Ten Labor & Employment Events and Trends of 2006. Included on this list are: Change In Congressional Leadership May Lead To Profound Shift In The Congressional Legislative Agenda, NLRB Clarifies The Definition of “Supervisor”; Supreme Court Expands Protections Against Employer Retaliation; Targeting Hidden Bias: EEOC Revises Compliance Manual To Address Implicit Discrimination; Davids 1 through 100 v. Goliath: FLSA Collective Actions Target High Profile Companies; Pandemic Fever: Employers Confront Need For Contingencies To Counter Potential Pandemic Illnesses; “Change To Win” Coalition Initiates Aggressive Plans to Organize “Millions of Workers”; New E-Discovery Rules Will Require Comprehensive Document Retention Programs; Congress Enacts Sweeping New Pension Legislation; Support Our Troops! The DOL Implements New Military Leave Act Regulations.
Located On: Ford & Harrison LLP

Most Popular State Law Article

<a >California Management Update (pdf).</A>
Highlights: New Employment Laws for 2007 and Beyond; Finally Some Clarity - California Department of Fair Employment and Housing Approves Sexual Harassment Training Regulations; Companies Must “Shine the Light” on their Security Breaches; Prior Periods of Employment Must be Considered When Determining an Employee’s Eligibility for FMLA Leave; California Supreme Court To Review Whether Noncompetition Agreements Are Invalid Even If Narrowly Tailored; Employers May Recover Commissions Advanced To Employees But Never Earned.
Located On: Ford & Harrison LLP

Most Popular Headlines

<a TARGET=“_blank”]Young manager harassing Baby Boomer leads to EEOC fine[/url]
OregonLive - March 06, 2007

Sunday, March 04, 2007

In Arbitration, Focus on Pre-Hearing Conference

Some of the nation’s most experienced arbitrators recently conducted the Third Annual ABA Section of Dispute Resolution Arbitration Training Institute in New York. The arbitrators stressed that one of the most important phases of arbitration takes place well-before the hearings themselves: the initial pre-hearing planning conference. In that initial call or conference with the arbitrators, advocates should be prepared to address arbitrability, discovery, including e-discovery, substantive motions, the potential length of the hearing, attendance of witnesses, submission of briefs, and even whether the parties will prefer a brief or detailed award. As the courts continue to defer to arbitration, counsel should play an active role in streamlining the process and resist the tendency to make arbitration as complicated, expensive, and drawn out as litigation.

Friday, March 02, 2007

Week In Review (March 2, 2007)

Most Popular Federal Law Article

[url=“http://www.elinfonet.com/headcount.php?ID=9388”>A Checklist For Preventing Human Resources Problems.</A>
Management concerned with employment law liability should be focused on prevention: preventing lawsuits, preventing employee morale problems, and preventing the day-to-day hassles personnel issues can create. The road to success in this area is not paved with good intentions, however. Employers must understand basic human resources principles to avoid the employment law pitfalls that await.
Located On: Shaw Valenza LLP

Most Popular State Law Article

<a >U.S. Data Protection Laws, With a Focus on California.</A>
In the U.S., no comprehensive national law yet exists, which generally requires notification of security breaches involving personal information. California passed the first data breach notification statute in 20032 and over 30 states have since enacted similar laws. The California law, commonly referred to as “SB 1386”, requires owners, licensors, or custodians of personal information to notify data subjects whose information was (or is reasonably believed to have been) acquired in an unauthorized fashion. California laws also include proactive obligations related to data destruction and maintaining reasonable security measures.
Located On: Cooley Godward Kronish LLP.

Most Popular Headlines

<a TARGET=“_blank”]Job separation agreements don’t eliminate right to sue[/url]
Charleston Post & Courier - February 27, 2007