Collective Action Cannot Proceed Where Representative Plaintiff’s Claim Rendered Moot

Today, the U.S. Supreme Court issued its ruling in Genesis Healthcare Corp et al v. Symczyk, No. 11-1059 (U.S. Supreme Court, April 16, 2013) , holding that the employee could not maintain a collective action once her individual claims were rendered moot.  More ›

Third Circuit Upholds Termination of Employee for Dishonesty About Drug Addiction on a Post-Offer Medical Questionnaire

A hospital-employer hired the employee as a security guard. On his post-offer medical questionnaire, the employee affirmatively stated that he had never suffered from drug or alcohol addiction in the past nor participated in a drug and alcohol treatment program. Thereafter, the employee suffered an injury at work and reported to the hospital’s emergency department. When discussing his treatment with the physician, the employee indicated that he was a recovering drug addict. The employee’s medical information was then transferred to the hospital’s employee services division. Upon learning that the employee had suffered from past drug addiction, the hospital terminated the employee for dishonestly on his post-offer medical questionnaire. More ›

Additional Reason for Failure to Promote is not Indicative of Pretext for Discrimination

A member of the Air Force was denied four promotions to Battalion Chief and Assistant Chief of Administration during a four-year period and sued his employer fire department alleging that these decisions violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). While there was sufficient evidence that the employee’s military service was a motivating factor in the promotion decisions, the employee’s claims were denied. As a rule, liability will not occur under USERRA if the employer would not have promoted a service member absent the individual’s membership in the military.To this point, the fire department’s decision-maker testified that the employee was trustworthy, made good decisions, exercised good judgment, and could work with others. The employee argued that this additional reason, first offered at litigation, was unbelievable. It was different than the reason offered at the time of the decisions, his skill level was lower than that of the employees selected for promotion. More ›

President Obama to Abandon Recess Appointees to the NLRB

The drama surrounding President Barack Obama’s recess appointments to the National Labor Relations Board (“NLRB”) took an unexpected twist this week as the President announced his intention to nominate three new members.

As we have reported, earlier this year the D.C. Circuit in Canning v. NLRB struck down President Obama’s January 2012 appointment of three members, holding that the President improperly exercised his recess appointments power while Congress was still in session. The ruling has called into question hundreds of decisions rendered when the recess appointees constituted a majority of the board. The Obama Administration has vowed to appeal that ruling to the U.S. Supreme Court. More ›

Federal Court Holds that Hospitals Providing HMO Services to Federal Employees are Federal Contractors at the Same Time the OFCCP Appears to Increase Its Focus on Auditing Health Care Providers

Several years ago, the Federal Office of Contract Compliance Programs (OFCCP) requested that three Pennsylvania hospitals provide copies of affirmative action plans and other materials required of Federal Contractors. Each hospital had a Health Maintenance Organization (HMO) contract with the UPMC Health Plan to provide medical products and services to United States Government employees pursuant to a contract between the Health Plan and the United States Office of Personnel Management (OPM). The hospitals resisted the audits by the OFCCP arguing that their provision of medical care through the HMO plans did not render the hospitals government contractors or subcontractors and that their contracts specifically stated that the hospitals were not to be considered subcontractors. The Department of Labor’s Administrative Review Board ruled in favor of the OFCCP. More ›

USCIS Reports that H-1B "Cap" for FY2014 has been Reached and Exceeded in just one Week

In a development sure to embolden proponents of comprehensive immigrant reform, U.S. Citizenship and Immigration Services (USCIS) has announced that the annual "cap" on H-1B petitions has been reached within just one week of opening the H-1B filing period. Under current U.S. law, USCIS makes 65,000 regular H-1B visas and 20,000 advanced degree H-1B visas available starting April 1st of each year. As a result, in an annual flurry of activity, employers submit their petitions for H-1B workers on or as soon after April 1st as possible. This year, USCIS reports that it had received 124,000 H-1B cap-subject petitions by April 8th. More ›

H-2B Program in Chaos: DOL's Overreach Leads to halt on most Petitions

The H-2B visa program allows U.S. employers to bring foreign workers to the United States to perform temporary, unskilled, and non-agricultural work. Warm-weather employers across the country—including park districts, amusement parks, and landscaping companies—–rely upon the program to fill out their annual workforce. As of March 22, 2013, however, for reasons explained below, the U.S. Citizenship and Immigration Service (USCIS) has completely halted the processing of most new H-2B petitions. More ›

mployment Contract’s Choice-Of-Law Provision Governs Question of Arbitrability, Court of Appeal Rules

In Harris v. Bingham McCutchen, the California Court of Appeal, Second Appellate District held that the drafter of an adhesion contract could not avoid the contract’s choice-of-law provision in determining the enforceability of an arbitration provision.

Harris sued her employer, alleging it had wrongfully terminated her employment after she requested reasonable accommodations for a disabling sleep disorder. More ›

One-Sided Employment Arbitration Agreement Unconscionable, Court of Appeal Rules

In Compton v. Superior Court, the Court of Appeal, Second Appellate District, ruled that an arbitration agreement that the employer required an employee to sign as a condition of employment was unconscionable — and therefore unenforceable — because its terms were asymmetrical in the extreme, favoring the employer over the employee.

Among other things, the arbitration agreement required the parties to arbitrate common law contract and tort claims, statutory discrimination claims, and claims for violation of statutes and/or regulations. However, the arbitration agreement excluded workers compensation and unemployment benefit claims. It also excluded injunctive or equitable claims arising from alleged unfair competition and trade secret or confidential information disclosures. More ›

Customs and Border Patrol Announces New Paperless Form I-94, with Implications for Employers

On March 27, 2013, the Customs and Border Patrol (CBP) issued a final interim rule describing its plans for introduction of a new, electronic Form I-94 Arrival/Departure Record for use at sea and air ports of entry. The Form I-94 is completed by all individuals lawfully entering the United States, and can be used by such individuals as evidence of alien registration, immigration status, and/or employment authorization. The paperless Form I-94 will be phased in at air and sea ports of entry beginning on April 30, 2013; individuals entering by land will continue to utilize paper Forms I-94. More ›