Friday, December 28, 2012

H-1B Filing Season For FY 2014 Is Almost Upon Us

It’s that time of year again; time for employers to evaluate their H-1B work visa hiring needs in anticipation of H-1B filing season. For those readers who may not be familiar with the H-1B, it is a nonimmigrant visa category that allows employers to hire skilled foreign workers for temporary employment in the U.S. The annual cap for new H-1Bs is 65,000, with an additional 20,000 visa numbers reserved for applicants who possess a Master’s degree or higher from a U.S. institution. Note that only petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap in the last six years are subject to this year's H-1B cap. In addition, foreign nationals employed by institutions of higher education, nonprofit research organizations, or governmental research organizations are not subject to the cap. 

On Monday, April 1, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting cap-subject H-1B petitions for FY 2014 with an employment start date of October 1, 2013. We recommend that all cap-subject petitions be sent to USCIS on Friday, March 29, 2013 for receipt by USCIS on April 1. Although demand for H-1Bs has fluctuated in the past few years, employers are advised to submit their petitions as early as possible. Employers should start now by reviewing the immigration status of their current and prospective foreign national employees and identifying any individuals that they may want to sponsor for H-1B status. This could include, for example, recent graduates employed pursuant to F-1 Optional Practical Training, foreign nationals in TN status that the company may wish to sponsor for permanent residence, and candidates working for another company in L-1 or some other non-immigrant status who would need to change their status to H-1B in order to accept new employment.

Thursday, December 27, 2012

Week in Review

As 2012 draws to a close, we reflect back on all that we have learned this last year. In the modern workplace, both employers and employees learned their fair share of technological dos and don'ts (re-read a few old Weeks in Review, and you'll see what I mean). The most recent lesson? Even "legal" employment actions can cause PR problems.  Just ask the Iowa dentist who fired his assistant for being too attractive. The Iowa Supreme Court ruled that the termination was justified, but individuals from around the country have plastered the dentist's Yelp page with negative reviews, calling for a complete boycott of his services.

Law enforcement has also learned a thing or two from the evolving world of technology. Now, many police departments are harnessing the technological benefits of social media platforms such as Twitter and Nextdoor, in the hope that a more engaged community will lead to more effective police work.

So here's to learning from our past and planning for the future. From everyone here at The Modern Workplace, we wish you a happy and prosperous new year.

Technology and the Workplace
NLRB Slams Facebook Firings, Applying Old Laws to New Tech (Law 360) (Employment Matters blog)
Iowa Dentist Who Fired "Irresistible" Worker Gets Slammed on Yelp (Huffington Post)
Parking Panda: The End of Parking Misery (Slate)
7 Tech Trends That Will Impact Your Business in 2013 (PC World)

Technology and the Law
Congress Defeats E-Mail Privacy Legislation - Again (Wired)
Instagram Furor Triggers First Class Action Lawsuit (Reuters)
Become a Crime-Fighting Superhero in Your Spare Time With Nextdoor (Wired)
Police Using Twitter to Offer Virtual Ridealongs (La Crosse Tribune)
Police Struggle as Twitter Users Reveal Impaired Driving Checkstops (The Globe and Mail)

There's an App for That
Guilt-Free Kid iPad Apps Give Parents a Holiday Break (NBC)
Your Smartphone Will Replace Your Car Keys by 2015 (Wired)
Best Fitness Apps of 2012 (Huffington Post)
Air Pollution App Finds Healthier Route (Tech News Daily)
Flipboard Rolls Out Magazine App for Android Tablets (LA Times)

Thursday, December 20, 2012

Week in Review


Do you remember a few weeks back when Facebook was flooded with statuses claiming "copyrights" to users' content? While this hoax was quickly debunked, it left many concerned about what social media can -- and does -- do with the stuff we put online. This week, Instagram fueled the fire when it announced its new terms of use, which allows the company to sell users' photos and keep the profits. The announcement immediately drew opposition, and a day later, Instragram promised to "modify" some of the terms, which are expected  to take effect January 16th. Whether these modifications will win back lost users remains to be seen.

The Government was also concerned with policies regulating online activity this week. Yesterday, the FTC announced new online child privacy laws, which are designed to keep anonymous advertisers and marketers from collecting information about children based on cellphone usage.

Technology and the Workplace
TV Meteorologist Fired After Defending Hairstyle on Facebook (AOL)
Missing Social Media Photos Spook Employers (Yahoo)
9 Things Businesses Should Not Do on Social Media (Forbes)
Facebook Fail? Bistro Fights Discrimination Accusations Online (Sacramento Press)
Are Online Degrees as Valuable as Traditional College Diplomas? (Yahoo)

Technology and the Law
Government Issues New Online Child Privacy Rules (CBS)
As Freaked-Out Social Media Users Exit, Instagram Says Newest Service Terms Will End "Confusion" (ABA Journal) (CNN)
US Census Will Offer Online Options (CBS)
Hackers Target Westboro Church After Newton Threats (CNET)

There's an App for That
Windows 8's Coolest App: Fresh Paint (CNN)
10 Tech Tips for Holiday Travel (CBS)
12 Apps You Need to Survive the Holidays (Mashable)
Holiday Stress? The Shrink is Always in Your iPad (Wired)

EEOC Roadmaps Future Enforcement Focus

While employers should take steps to comply with all applicable legal obligations, it doesn’t hurt to know those areas of compliance that are going to be given particular attention by enforcement agencies. Earlier this week, the EEOC announced its Strategic Enforcement Plan  (“SEP”) for Fiscal Years 2013 – 2016. The SEP gives employers a peek at the measures the EEOC believes are needed to achieve its goal of deterring discriminatory practices in the workplace.

The SEP identifies the following six enforcement priorities:
  1. Eliminating Barriers in Recruitment and Hiring. The Commission will target not only intentional discrimination in the workplace, but disparate impact discrimination (i.e., facially neutral practices that adversely impact particular groups). These include exclusionary policies and practices, the steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools such as pre-employment tests and background checks.
  2. Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC intends to focus enforcement efforts on protecting vulnerable employees, including immigrant and migrant workers, who are often unaware of their rights under anti-discrimination laws, and/or reluctant or unable to exercise them.
  3. Addressing Emerging and Developing Issues.  The EEOC seeks to monitor trends and keep ahead of the curve on emerging discrimination issues. The SEP identifies the aging of the workforce and the likely increase in age discrimination claims as one such likely trend. In addition to ensuring adequate enforcement resources, the EEOC seeks to promote greater awareness and other preventative measures.
  4. Enforcing Equal Pay Laws. Targeting compensation systems and addressing inequities based on gender continues to be a focus of the EEOC’s compliance efforts.
  5. Preserving Access to the Legal System.  The EEOC will also continue to focus on employer practices that interfere with the Commission’s ability to enforce anti-discrimination laws. Examples include over-reaching release agreements (often included in severance or settlement agreements) that prohibit filing charges with the EEOC and/or interfere with providing information to the agency. Enforcing anti-retaliation requirements will also be a major focus.
  6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.  The SEP notes that harassment continues to be one of the most frequent complaints raised in the workplace. While much attention is focused on sexual harassment, such claims are significantly outnumbered by harassment claims based on other protected characteristics like race, ethnicity, religion, age and disability. The Commission believes a more targeted approach that focuses on systemic enforcement and an outreach campaign aimed at educating employers and employees will help deter future violations.
The SEP provides a useful preview of issues that will guide the EEOC’s enforcement efforts in the coming years. Employers would be wise to review their policies relating to these issues to confirm compliance and avoid becoming a target of agency action.

Thursday, December 13, 2012

Week in Review

Do you have a lot of travel plans for this holiday season? Whether it is for work or play, new developments on the technology front may make your trip more enjoyable -- and productive too, if you'd like. The FAA is in the process of updating its policies on in-flight gadget use. With encouragement from the FCC and many frequent fliers, it is possible the FAA will expand when and what devices may be used during air travel.

If your trip involves leaving the country, you're likely to appreciate the more permissive policies, especially now that three of the United States' largest airlines will be offering Wi-Fi on their international flights. Prices for the internet access have yet to be determined, but will likely vary based on flight length and other factors.

If that flight happens to be taking you to London, you're in luck. London taxi cabs are now being turned into Wi-Fi hotspots, so you can continue that email -- or Netflix movie -- without ever missing a beat. With the help of the apps below, you may even be able to finish all of your holiday shopping, update your Christmas card list, and plan you holiday party, all before reaching your final destination.

Technology and the Workplace
Checking Facebook at Work Could Become Illegal (Tech Daily News) (ABA Journal)
FAA to Review Electronics Bans on Planes (CNN)
US Airlines Adding Internet to Overseas Flights (NBC)
London Taxi Cabs to Offer Free Wi-Fi (WSJ)
Bad Santa Fired From Mall Gig After Parents Complain on Facebook (Mashable) (Employer Handbook)
Advertising on LinkedIn: Your Guide for 2013 (Mashable)
Court: Stored Text Messages Aren't Protected (WSJ) (Law 360)

Technology and the Law
Sen. Franken's "Stalking Apps" Bill Scheduled for Vote (KSTP)
FBI, Facebook Take Down $850M Crime Ring (Tech News Daily)
911 Text Messaging Services Coming in 2014 (CNN)
Hackers Steal Data from Pentagon, NASA, Federal Reserve (Tech News Daily)
Police Push for Cell Phone Providers to Store Text Messages (WKRG News)
CA Sues Delta Air Lines Over Mobile App Privacy Policy (LA Times)

There's an App for That
New Address? Addappt Lets Friends Follow All Your Moves (WSJ)
New Spoil Me! App Helps Track Down the Perfect Gift (Yahoo)
Apps to Plan Your Party (Tech2)
Manage All Your Expenses With One Updated App (Mashable)
How to Give Apps for the Holidays (Tech News Daily)

Employees Traveling Over the Holidays? Pandemic Panic May Be OK

Employers have been justifiably concerned about the recent significant expansion of employee’s rights under the Americans with Disabilities Act (See EEOC fact sheet here). However, all hope may not be lost. As employees return from their exotic holiday travel, firing them based on pandemic flu panic may yet be legal.
This week, a Minnesota Federal Judge issued an order considering:
the interesting question of whether someone who is regarded as having an impairment that in fact is no more serious than seasonal flu — but that, for a period of time, is  widely (although mistakenly) perceived as being far more dangerous — is “disabled” for purposes of the ADA….     

According to Judge Patrick Schiltz’s opinion, in 2009 the plaintiff had traveled to Mexico because of a family emergency. Upon his return, he was informed by his employer that he was fired because he had not reported his absence properly and because of possible health issues related to his return to work. The employer was concerned about the H1N1 “Swine Flu” because of media reports and a CDC recommendation that Americans avoid travel to Mexico.

The subsequent lawsuit claimed that the employer regarded the plaintiff as disabled, even though he wasn’t. To prove such a “regarded as” claim under the ADA, the plaintiff must show that the employer mistakenly believed he had an impairment, but, importantly, this belief may not relate to an impairment that is “transitory and minor.”  The employer ultimately prevailed because:

whether an impairment is transitory and minor is an objective inquiry. The subjective beliefs of the employer are irrelevant… swine flu as it is now understood is…“minor” for purposes of the ADA, in the sense that it has not turned out to be more serious than seasonal flu, and seasonal flu is undoubtedly “transitory and minor” for purposes of the ADA.

While we can’t suggest that all actions based on rational or irrational pandemic fears are lawful, the decision may be a small measure of solace for employers this holiday season.

It’s important to remember, though, that however great is to win in litigation, it’s even better to avoid the lawsuit in the first place. While not all lawsuits are preventable, clear, appropriate and lawful communication is the best preventive medicine for “regarded as” claims. As with many employment situations, and particularly those relating to illness and injuries, an ounce of prevention is worth a pound of cure.

Monday, December 10, 2012

FOCUS ON BENEFITS: What? You want your 2012 bonus before the end of the year?

Usually, come year-end, you’re hearing all kinds of suggestions about how to delay income until next year, so as to reduce the tax burden this year. This year is different. Yes, as the “fiscal cliff” talk reminds us daily—income tax rates for those with high incomes may go up. But there’s more, and it’s not dependent on what Congress does about the fiscal cliff or the deficit .... Starting in 2013, highly compensated employees have to pay an additional Medicare tax.
Wages over $200,000 will be subject to an additional 0.9% Medicare tax. In addition, unearned income (such as capital gains, dividends, interest) of high income individuals will, for the first time ever, be subject to a Medicare tax of 3.8%. (This applies only to individuals with adjusted gross income (AGI) over $200,000, and married couples with AGI over $250,000.)
Even though it may be unpleasant to think about paying taxes any earlier than necessary, high earners may want to do just that. Your highly compensated employees may be interested in the strategies listed below. They should keep in mind that these strategies may affect their alternative minimum tax liability, and both employers and employees should seek advice from competent tax professionals.
What can the employer do?
·        Pay bonuses in 2012, rather than 2013.
·        Accelerate vesting (not payment) of deferred compensation in a nonqualified plan subject to Section 409A of the Code.This would trigger the requirement to pay FICA in 2012 before the additional Medicare tax applies. (If a tax-exempt entity sponsors the plan, this may trigger income tax liability as well.
·        Vest restricted stock, unvested stock options, or stock appreciation rights.
·        Consider plan amendments that would permit employees to take tax acceleration strategies.
What can the employee do?
·        If you reached the age of 70½ in 2012, take your first Required Minimum Distribution from your retirement plan in 2012, rather than delaying to April of 2013.
·        Realize capital gains income, for example on stock held pursuant to an option exercise, or make an 83(b) election for restricted stock.
·        Take an in-service distribution from your 401(k) plan. (May require amending the plan)
·        Complete an in-plan Roth conversion in your 401(k) plan, or roll over an in-service distribution to a Roth IRA. (May require amending the plan)
Whatever you decide, be very careful when attempting to accelerate income in any plan that is subject to Section 409A of the Code. And, as always, seek legal advice before making changes to any employee benefit plan.

Friday, December 7, 2012

Week in Review

This week, there were a number of interesting developments in the world of employment labor law. A NLRB judge ruled that a union's Facebook page is not an extension of the picket line. The case involved striking workers' threatening comments on the union's Facebook page. The NLRB Acting General Counsel initiated the complaint against the union, arguing that the union, which did nothing to disavow the comments, should be held responsible for them, just like it would be if they were made out on the picket line. The NLRB judge disagreed and dismissed the complaint.

The other two noteworthy cases this week involve suits against ex-employees for social media usage relating to their departures. In Invidia, LLC v. DiFonzo, a hairdresser was sued for violating a non-solicitation agreement because she made a Facebook announcement about her new employment arrangements. The employer pointed to the number of clients the ex-employee was Facebook friends with, client comments on the post and the loss of 90 clients, to support its argument that the Facebook announcement amounted to prohibited solicitation. A Massachusetts Superior Court judge disagreed, finding the Facebook announcement was a general type of announcement common in service industries.

The other former-employee suit this week revolved around the question of how much a Twitter follower is worth. Internet company PhoneDog, believing that each of its Twitter followers is worth $2.50 a month, sued an ex-employee for $340,000 after he took 17,000 of the company's Twitter followers with him when he left. The suit settled this week. If you're curious about how much a Twitter follower really is worth, you'll have to keep guessing, because neither side is disclosing the amount.

Technology and the Workplace
Contractor Suing Homeowner Over Negative Yelp, Angie's List Review (CBS) (FOX)
South Carolina Firm Settles Suit of Value of Twitter Followers (Insurance Journal) (CNET)
MA Judge: Facebook Announcement Was Not a Solicitation (Mondaq) (Inside Counsel)
Flight Attendant Out of Job After Facebook Remark (La Crosse Tribune)
Union Facebook Page Not Picket Line Extension: NLRB Judge (Law 360) (JD Supra)
Top Overused Buzzwords in LinkedIn Profiles (Wired)

Technology and the Law
Prosecutors Target Drowsy Drivers; Cellphone Usage Provides Evidence of Sleep Deprivation (ABA Journal)
Online Ad Firm Agrees to Stop "History Sniffing" in Web Browsers (LA Times)
Students Take Facebook to Court Over Privacy Policy (NBC)
Cops to Congress: We Need Logs of Americans' Text Messages (CBS)
Appeals Court Sides With Bush Wiretapping (Wired)
Red-Light Traffic Cameras Have Drivers Seeing Red (FOX)

There's an App for That
Apps That Help With Holiday Stress (Huffington Post)
New App Can Identify Human Emotions? (WHEC TV-10)
New App Aims to Make Resolutions, Goals More Achievable (Reuters)
Verizon Patenting DVR That Monitors for Cuddling (NBC)

Wednesday, December 5, 2012

‘Tis the Season …

Perhaps you think this is the most wonderful time of the year, or perhaps you think it’s the most stressful.  Either way, it’s here, and our workplaces aren’t immune from the impact of the holidays.  It can sometimes be tricky for employers to allow goodwill and celebration without offending those who do not celebrate Christmas. 
The topics of religious accommodation and religious discrimination have been touched on in previous posts.  This post is focused on the specific issues that arise during the holiday season.  Note that these comments are intended for secular employers only.  Employers that qualify as religious institutions are not subject to the same constraints.
Here are a few quick tips for the next several weeks:

·       Tip #1:“Happy Holidays” vs. “Merry Christmas”:  There’s a difference between a secular celebration of the holidays and the celebration of Christmas, which is a central event in the Christian calendar. The line here can be difficult to draw, since so many symbols of the season are used as non-religious decoration (think decorated trees, wreaths, and Santa) even though they may have religious origins. A private employer does have the right to express the religious beliefs of its owners in the workplace, but it may not cross the line and require its employees to accept those beliefs in order to obtain career advancement or avoid discipline. If an employer allows expression of particular religious beliefs of its employees in the workplace, it must ensure that there is similar freedom of expression for all religious beliefs and views. Given all that, the safest course is to steer clear of “Christmas” celebrations and decorations and choose a more neutral “happy holidays” approach. At a minimum, an employer should take seriously any religion-based objections its employees may raise to the employer’s holiday observations, and may not retaliate for the expression of those objections.

·       Tip #2:  Voluntary Participation vs. Forced Proselytizing:  Employers should not force employees to participate in religion-based activities. If, for example, company management conducts activities that include overtly religious speech, music, or messages, and attendance at such activities is mandatory, a judge or agency (such as the EEOC) could find that the activity is improper religious proselytizing. Indeed, in one case, the EEOC pursued a discrimination charge against a company that fired an employee who refused to wear a Santa hat and apron while performing her job duties in the gift wrapping department of a retail store. The employee refused based on her religious beliefs as a Jehovah’s Witness, which prohibited her from celebrating Christmas. The EEOC has stated that it believes an employer is not required to, and should not strive to, forbid the expression of all religious expression in the workplace but may restrict the expression of religious beliefs if there are complaints from co-workers or  a legitimate disruption of the employer’s business.

      Employers’ risks aren’t limited to religious discrimination.  The holidays are no excuse for allowing employee conduct that would not be tolerated at other times of the year.  That leads us to:

·       Tip #3:  Bad Behavior at Company Celebrations: As any employment lawyer can tell you, January can be a busy time for outside counsel as employers deal with complaints arising from behavior at company holiday parties.  Nothing fuels potential sexual harassment, racially offensive speech, and other unguarded comments like a little alcohol. If your company insists on serving alcohol at company gatherings, consider limiting the amount and controlling the duration and location of the gathering.  The presence of sober managers and supervisors can also serve as a deterrent to bad behavior.  If problems occur or complaints are made, the employer needs to be prompt, serious, and consistent in its reaction.