H-1B Lottery Should Serve as a Reminder of the Need to Increase the Annual Cap

As we previously predicted, the United States Citizenship and Immigration Services (“USCIS”) received more new H-1B petitions during the first week of April 2014 than there are visa numbers available for Fiscal Year (FY) 2015. USCIS received approximately 172,500 petitions for FY 2015, which is more than double the annual limit of 65,000 “regular” H-1B visas and the additional 20,000 visa numbers reserved for individuals who hold advanced degrees from U.S. institutions.

USCIS has already conducted a random computer-generated lottery of all of those petitions to determine which petitions will be selected for processing.  The petitions that were not selected in the lottery process will be returned, along with the filing fees, to the petitioning employer or its attorney representative in the coming days.  USCIS has already begun issuing receipts for premium processing petitions that have been selected for review and will begin premium processing of FY 2015 H-1B petitions by April 28th.

As long as the demand for skilled foreign professionals remains high, we will likely continue to see the H-1B cap exhausted within the first week of filing.  Although the Senate’s June 2013 Immigration Bill and a bill approved by the House Judiciary Committee around the same time both contained provisions to increase the annual H-1B cap, the H-1B cap issues have not yet been considered apart from the controversial issue of comprehensive immigration reform.  Who knows, though, maybe this year’s lottery experience will prompt lawmakers to finally move forward with H-1B reform.

French Approach to After Hours Work Unlikely to Catch On

A new labor agreement reached in France requires employers in certain technology and consultancy sectors to take steps to ensure employees are not plugging into work on their free time. France has had a 35-hour workweek for several years, and many believed it was being intruded upon by frequent out of office distractions caused by email and other technology. To combat this, French employers in these sectors are required to take steps to make certain that employees completely disconnect outside of their working hours. 

The invasion of work into personal lives is an international phenomenon, but prohibiting after-hours emails is about as likely in the U.S. as a 35-hour workweek. While the French labor agreement is unlikely to find traction here, we are certain to continue seeing claims for overtime pay by employees who stay connected to work through smartphones and other devices. Employees who are “suffered or permitted to work” are entitled to compensation even when the work is not authorized by the employer. With today’s technology, and the ability to remain at work virtually at all hours, employers need to have policies that clearly spell out the company’s expectations, especially with employees who are not exempt from wage and hour laws.  These employees need clear and lawful direction on when working away from the office is authorized and how it needs to be recorded. When an employee violates the policy and performs unauthorized services, disciplinary action may be taken but should not include any docking of pay.

In addition to adopting a policy on remote access, employers should review employees’ actual after-hours work practices. Where technology creates problems it often also provides solutions. Because employees are linking into work after hours electronically, it is easier for employers to determine when and what work is being done, and for how long. It is also possible to electronically limit access to email and other resources when access is unnecessary. 

Week in Review

With technological innovations appearing daily in the workplace, employers must continually evaluate how best to proactively prepare for and respond to these changes. As you do your planning, you might want to check out the article below on how companies can learn from Google's example when it comes to humanizing technology in the workplace. This week's headlines also discuss wearable technology and how businesses can prepare for this new workplace phenomenon, including by revising their BYOD policies. 

Technology and the Workplace
How Google Humanizes Technology in the Workplace and You Can, Too (Fast Company)
At Google, Bid to Put Its Glasses to Work (NY Times)
How To Prepare Your Business For Wearable Technology (Forbes)
Laptops on ward rounds 'could save doctors an hour a day (Health Service Journal)
Covert Cellular: Enough Protection for Trade Secrets? (Trading Secrets)

Technology and the Law
EU court ruling boosts privacy rights of citizens (boston.com)
U.S. Says It Tried to Build a Social Media Site in Cuba, but Failed (NY Times)
Who Owns Data 8: Trouble With Linkedin's Lawsuit (HR Examiner)
New Regulatory Guidance on Use of Social Media by Investment Advisers (Socially Aware)
Viral video of laptop being stolen from coffee shop leads to arrest of suspect (ABA Journal)
Attendees' smartphones cause courtroom chaos at latest Apple-Samsung patent trial (ABA Journal)

There's an App for That
8 Personal Fitness Tools to Get You Ready for Beach Season (Mashable)
Hand On With Carousel: Dropbox's New Photo-Organization App (Mashable)
Washio App Aims to be Uber for Laundry (NBC)
Want to Message on Facebook? Soon You'll Need a Separate App (NBC)
Billionaire Mark Cuban Launched A New App Described As 'WhatsApp Meets Snapchat' (Business Insider)

Minnesota Legislature Expected to Pass Minimum Wage Increase

The Star Tribune is reporting that Minnesota legislators have reached a deal that will increase Minnesota’s minimum wage for most employers to $9.50 per hour by 2016. When the proposed law is passed and signed by Governor Dayton, Minnesota will join 21 other states and the District of Columbia in having a minimum wage that exceeds the current federal law minimum of $7.25 per hour. Currently, the state of Washington has the highest minimum wage, coming in at $9.32 per hour.  The U.S. Department of Labor provides a summary of state minimum wage rates on its website: 

Source: U.S Department of Labor 

In addition to state wage rates that exceed the federal minimum, a number of local municipalities have enacted minimum wage ordinances setting rates that exceed federal minimum wage. The federal wage and hour law permits states and local governments to impose higher wage rates than federal law, and employers subject to varying laws typically must comply with the law most generous to an employee. As such, employers that operate in multiple locations must continue to be mindful of the special wage rules and other location-specific requirements that apply where they operate. 

Minnesota’s minimum wage action comes on the heels of other impending changes to wage and hour requirements. President Obama has taken executive action to increase the minimum wage paid by federal contractors and, as we previously reported, to increase the minimum weekly salary needed for an employee to be exempt from overtime pay requirements. We will be continuing to watch and advise you of these wage and hour developments.

Week in Review

Not all technology-based changes in the workplace involve social media and smartphones. This week's headlines and blog posts highlight other ways in which technology is changing the way we work.  For example, employers are currently facing the decision of how to approach e-cigarettes in the workplace, and some employers are skipping the booth-filled convention centers and instead opting for virtual career fairs to find top candidates.  We also have linked to an article below about employees who put your cybersecurity at risk and how to deal with them.  Finally, learn how to craft email subject lines that will grab the attention of your busy colleagues and customers.

Technology and the Workplace
In The Haze of E-Cigarette Popularity and Regulation, What's an Employer to Do? (Employment Law Lookout)
So Long, Interview Suit: Here Comes the Virtual Career Fair (WSJ)
4 types of employees who put your cybersecurity at risk (ABA Journal)
The New Science of Email Subject Lines (WSJ)
Employer Access to Employee Social Media: Applicant Screening, 'Friend' Requests and Workplace Investigations (Socially Aware)

Technology and the Law
U.S. Judge Dismisses Lawsuit Against Chinese Search Engine (NY Times)
EU Parliament votes to end roaming, protect 'net neutrality' (Reuters)
Did law enforcement comment online about grand jury matter? Judge orders newspaper to reveal ID info (ABA Journal)
Turkey to Unblock Twitter (Mashable)
Apple v. Samsung Trial: 5 Things You Need to Know (Mashable)
U.S. Courts' Evolving Approaches to Social Media E-Discovery (Socially Aware)

There's an App for That
The 10 Most Popular Smartphone Apps in the U.S. (Mashable)
Text Smarter With This All-Knowing App (Wired)
Samsung launches "Smart Home" Android app and two compatible appliances (ars technica)
Amazon unveils video-streaming device Fire TV (CBS)
Microsoft Offers Windows for Free on Phones and Small Tablets (NBC)

GAME ON, WILDCATS! LABOR BOARD ORDERS UNION ELECTION FOR NORTHWESTERN FOOTBALL PLAYERS

There has been a storm of comment and controversy since the National Labor Relations Board ruled last week that scholarship football players at Northwestern University are “employees” of the school who have the right to unionize under the federal labor law governing private sector employers. The College Athletes Players Association (CAPA), the union seeking to represent the players, is moving ahead full-steam with a vigorous persuasive campaign to convince the 87 Northwestern football players to vote for union representation when the NLRB conducts its election soon. On its website CAPA speaks to why college athletes need a union, calling this a “fight for justice.” Criticism has come from many corners, not excluding politicians such as Sen. Lamar Alexander (R-Tenn.) who commented, “[i]magine a university’s basketball players striking before a Sweet Sixteen game demanding shorter practices, bigger dorm rooms, better food and no classes before 11 a.m. This is an absurd decision that will destroy intercollegiate athletics as we know it.”

 

We first blogged about the players’ effort to unionize in February. Some of the fundamentals we set out there are worth reiterating now that the NLRB has ruled that a union election can go forward:

 

The critical question in the football players’ organizing effort is whether the athletes will be afforded the protections of the National Labor Relations Act (NLRA), meaning whether the universities could take action against them, such as revoking scholarships or enforcing penalties, because of their engaging in such activity, or would the federal labor law protect them against such a response? 

 

To have such NLRA protection, the athletes must show that they are employees. This is where the controversy lies. The NCAA has stated its position is an emphatic no. 

 

And now the NLRB has said yes. This ruling hardly ends the matter; it merely engages the battle.  As I explained in an interview published in Sunday’s Star Tribune Sports Q&A section:

 

Although Northwestern has indicated it will seek review [from] the full board in Washington, that will not have the effect of putting a hold on the election. … That union election should go forward shortly. And the football players will vote. Those ballots are secret, and they’re sealed. They’ll be impounded by the board until the review is complete, and that could take a year. … The whole process could take a couple of years. 

 

One indicator [of what might result from bargaining between the players and the school] is what the union has said it wants to bargain for, and the number one thing I’ve seen is lifetime coverage of medical expenses resulting from football-related injuries or conditions. … But all that’s just a wish list. It’s all subject to bargaining.  

 

The implications of this decision are much debated but undoubtedly far-ranging. The New York Times ran a very interesting piece immediately after the ruling on “Putting a Price on Priceless.” and Wednesday this week the paper offered a “primer” on the subject. Our friends from the New York Employment Law Alliance firm at Bond Schoeneck & King in New York have blogged about a range of unintended consequences to which the NLRB ruling could lead. CAPA attempts to refute the likelihood of many such consequences on its website.

On Wednesday, CAPA headed to Capitol Hill for scheduled meetings with lawmakers as the union braces for an appeal of the ruling. These meetings were expected to provide a chance for former Northwestern quarterback Kain Colter — the face of the college athletes labor movement — and Ramogi Huma, the founder and president of CAPA, to spell out one of their chief concerns, which is providing for the medical needs of athletes. Huma said the group also was concerned that the NCAA would lobby Congress to prohibit unionizing by college athletes. In a statement, Stacey Osburn, director of public and media relations for the NCAA, said Huma's concern was "unwarranted." A Northwestern official has said that the students were not employees and that unionization and collective bargaining were not the appropriate methods to address their concerns.

Not least among the issues raised by the NLRB ruling last week is what the proper analysis is, or should be, when deciding which members of a higher education community are employees with protected rights to unionize, bargain, and strike under the federal labor law. The NLRB is currently considering that question in a variety of contexts. In its 2004 Brown University decision, the labor board held that graduate students, research assistants, and proctors were not employees, but primarily students and thus were not afforded the protection of the labor law. There are many gray areas in this context.  There is at least one that is more black and white, though:  adjunct faculty clearly has a protected right to unionize; and with active support from SEIU’s Adjunct Action program they are aggressively doing that in a number of markets nationwide, including Minneapolis Saint Paul, as reported in the Star Tribune and the Twin Cities Daily Planet. Most employers in higher education should be taking action now to consider and plan for how they could be affected by this increasing and wide-ranging union activity on campus. 

Week in Review

This week’s news included advice to employers on tackling mobile device issues in the workplace while, on other fronts, Division I football players tackled labor laws. On Wednesday, the Chicago regional office of the National Labor Relations Board ruled that Northwestern University football players are employees under federal labor law and, therefore, can unionize. Northwestern University has announced plans to appeal, and we’ll be monitoring this legal development and its implications closely. Meanwhile, employers continue to struggle with employees using mobile devices to check and respond to work emails after hours and the potential wage and hour issues this may create. Finally, we provide a link below to an article on best practices for employers with BYOD (aka bring your own device) technology policies.

Technology and the Workplace
Labor board: Northwestern University football players can unionize (CNN) (Connecticut Employment Law Blog)
"Wireless Ball and Chain" FLSA Working Time Cases Are Here To Stay! (Wage & Hour - Development & Highlights)
BYOD tips for employers (BlandsLaw Blog)
Lack of social media archiving creates legal minefield (ComputerWeekly)
Plaintiff-employee destroys Facebook posts about her case; court destroys her (Employer Handbook)

Technology and the Law
Twitter challenges Turkey ban, Erdogan holds fast (Reuters)
China demands answers from US over spying claims (boston.com)
IRS answers bitcoin tax questions, says virtual currency is property, not money (ABA Journal)
ACLU wins settlement for sixth-grader's Facebook posting (StarTribune)
Does Fourth Amendment protect computer data? (ABA Journal)

There's an App for That
6 Apps That Make It Simple to Split Expenses With Friends (Wired)
Web Fiction, Serialized and Social (NY Times)
Optimize Your Social Presence With These App-on-App Strategies (Mashable)
Enlisting a Computer to Battle Cancers, One by One (NY Times)
NYT Bringing Paid Subscription to New Mobile App (Wireless Week)