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Alert: USCIS Corrects Form I-9's Effective Date of Use


By Hector A. Chichoni

On April 9, 2013, USCIS published a notice of correction in the Federal Register to rectify a mistake made in its prior notice of  March 8, 2013 in connection with the new version of Employment Eligibility Verification, Form I-9 (Form I-9).

In the March 8, 2013 notice, USCIS stated incorrectly the effective date as of “After May 7, 2013” in which employers can no longer use prior versions of the Form I-9.

USCIS’s correction notice of April 9, 2013, rectifies the error stating that “prior versions of Form I–9 can no longer be used effective May 7, 2013.”

In other words, employers must use the 03/08/2013 edition date of Form I-9. Employers should begin using the 03/08/13 dated form right away, older forms dated 02/02/09 and 08/07/09 will be accepted until May 6, 2013. Effective May 7, 2013, only the 03/08/13 will be accepted. The revision date is on the lower left corner of the form.

Federal law requires that every employer and agricultural recruiter/referrer-for-a-fee hiring, or recruiting/referring for a fee, an individual for employment in the United States complete a Form I-9.

 
 
 
 

USCIS Provides An Update On The 2014 H-1B Cap


By Hector A. Chichoni

Today, Monday, April 8, 2015, the United States Citizenship and Immigration Service (USCIS), issued an update on the 2014 H-1B cap stating that:

"For the first time since 2008, USCIS, reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period ... USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing." 

The content of this post does not constitute legal advice or establish an attorney-client relationship with the reader. 

If you need further information, please contact Hector A. Chichoni at hachichoni@comcast.net or at 305.960.2277. 

 
 
 
 

USCIS Announces It Has Reached The H-1B Cap


By Hector A. Chichoni

Today, April 5, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) announced that the H-1B Cap for the fiscal year 2014 has been reached. 

USCIS’s alert states that it received a “sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014,” but that it will continue to accept H-1B subject-to-cap filings until the end of the day today. The statutory cap for “regular” H-1B petitions is 65,000. 

USCIS also stated that it had received “more than 20,000 H-1B petition filed on behalf of persons exempt from the cap under the advance degree exemption.”

USCIS’s announcements states that it will implement a so called “lottery”, a computer-generated selection process, for all H-1B cap-subject petitions received between April 1 and April 5 of 2013. 

USCIS, however, did not state the number of H-1B cap-subject petitions it had received or the exact day in which it will implement the lottery or random selection process. It is expected that USCIS will provide more details sometime next week. H-1B petitions selected under the “lottery” for processing will be “receipted”, those that are not accepted for processing, will be returned to the petitioner (or representatives) along with the filing fees.

H-1B petitions, which are not subject to the 65,000 cap, such as “extensions” and “exempted” petitions, will continue to be accepted for processing by USCIS.

Previously USCIS also announced that it expected a delay in processing subject-to-cap H-1B petitions filed under “premium processing” option.  Petitioners filing under the “premium processing” option should receive an adjudication in about 30 calendar day rather than the usual 15 calendar days from filing.

 
 
 
 

Is OCAHO Gone Soft on Fines?


By Hector A. Chichoni

This is a brief report on some of the most recent, and somewhat surprising, decisions issued by the Office of the Chief Administrative Hearing Officer (“OCAHO”)  in connection with the employer sanction provisions of the Immigration and Nationality Act (“INA”), as amended by the Immigration Reform and Control Act of 1986 (“IRCA”).  Although, these decisions do not completely side with employers; they are surprisingly more benign to employers than past decisions. Some of these decisions appear to auger a somewhat “kinder and gentler” course in the application of employer sanction rules and policies with respect to fines. However, the U.S. Immigration and Customs Enforcement (“ICE”)’ continues to initiate high numbers of investigations and audits, and pursue the highest possible fines and penalties available under statute and regulations, regardless of whether such high fines are warranted.

Here are a few examples of recent OCAHO decisions:

In US v. MEMF LLC d/b/a/ Black & Blue Steak & Crab – Buffalo (“MEMF”) (03/01/2013), a case in which a small company had no prior history of violation, no presence of unauthorized workers found at the time of the investigations, ICE determined that the company, although acting in good faith, nonetheless failed to ensure that each of seventy-three hired employees properly completed “section 1 of Form I-9, or failed itself to properly complete section 2.” True to form, ICE sought highest penalties in the amount of $605 for each violation, or a total of $44,165.

In this particular case, OCAHO reduced the fine, finding that:

"MEMF’s point is well taken that most of the statutory factors weigh in its favor. First, the record does not support the government’s finding that the restaurant is a large employer. The memorandum accompanying the government’s submission states unequivocally that the number of employees was 234, but the record makes clear that MEMF never had that many employees during a single time period. Our case law has previously noted the high turnover inherent in the restaurant industry, and in assessing the number of employees has focused on the number that were actually working at a particular time rather than on the aggregate number of total employees and former employees. Cf. United States v. Pegasus Rest., 10 OCAHO no. 1143, 6-7 (2012) (also considering the Small Business Administration standards for code 5812, noninstitutional “eating and drinking places”);United States v. Snack Attack Deli, Inc., 10 OCAHO no. 1137, 7 (2010)." [Emphasis added.]

In other words, the number of employees who must be considered for purposes of calculating fines is the number of employee that actually worked at a particular time rather than “the aggregate number of total employees and former employees.”

OCAHO reduced the fine, concluding that:

"Apart from seriousness, all the other factors are favorable to the employer. The company is small, it acted in good faith, and it had no unauthorized workers or previous history of noncompliance. MEMF did not argue an inability to pay the amount requested but invoked a different nonstatutory factor of equity, and said that the proposed penalty would create an undue hardship for the business and was disproportionate in light of all the favorable factors. Considering the record as a whole in light of all the facts and circumstances, the penalties will be adjusted as a matter of discretion to $450 each or a total of $32,850." [Emphasis added].

In U.S. v. El Azteca Dunkirk, Inc. (“El Azteca”)(03/13/2013), which also involved a small restaurant with no history of prior violations, ICE sought high penalties of $11,000 for twenty violations (substantive violations of failure to enter proper List A, B, or C documents in section 2 and bad faith), for all past and present employees. Moreover, ICE alleged that illegal conduct on the part of the owners had taken place, but offered no evidence.

In this particular case OCAHO stated that “the facts recited in the memorandum may support an assertion that the violations are serious, but they do not support a finding of bad faith.” Moreover, OCAHO further explained that “the government has the burden of proof to demonstrate the existence of any aggravating factor by a preponderance of the evidence, see United States v. Carter, 7 OCAHO no. 931, 121, 159 (1997), and that burden has not been met with respect to the assertion of bad faith.”

OCAHO concluded that:

"The record here does not support enhancement of the government’s baseline penalties on the bases requested. Were I approaching the question de novo, a somewhat higher penalty would be assessed, but here there is no compelling reason not to give the company the benefit of the government’s original baseline penalty without the enhancements. In view of the minimal fine assessed no payment schedule will be established … El Azteca Dunkirk is liable for twenty violations of 8 U.S.C. § 1324a(b) and is directed to pay penalties in the amount of $2200." [Emphasis added.]

In US v. Seven Elephants Distributing Corp. (“Elephant”)(03/18/2013), a case in which OCAHO found that an employer’s copying of documents and attaching them to a form I-9, cannot “substitute for properly completing section 2 of an I-9 form.” Elephant’s failure to complete section 2 of the I-9s, a substantive violation, was aggravated by the fact that seven unauthorized workers were found in connection with the inspection. Yet, OCAHO reduced the fines in its decision stating that:

"The penalties the government requested are very near the maximum permissible, and appear disproportionate to the current size and status of the employer. As explained in United States v. Pegasus Restaurant., Inc., 10 OCAHO no. 1143, 7 (2012), proportionality is critical to setting penalties, and penalties so close to the maximum should be reserved for more egregious violations than are shown here, United States v. Fowler Equipment Co., 10 OCAHO no. 1169, 6 (2013). They will accordingly be adjusted to an amount closer to the mid-range of permissible penalties. For the most serious violation, that in Count I, the penalty will be assessed at $600. For the seven violations in Count II that involve the I-9s of unauthorized workers, the penalties will be assessed at $500 each. For the remaining twenty-six violations in Count II the penalties will be assessed at $400 each. The total penalty is $14,500." [Emphasis added].

In U.S. v. Siam Thai Sushi restaurant, d/b/a Four Siamese Company, Inc. (“Siam”)(03/27/2013), a case in which ICE found the employer had committed serious violations (made substantive errors) and lacked good faith for failing to complete a Form I-9 for each employee, OCAHO decided that “neither the fact that an employer’s I-9s are missing nor that they are defective is sufficient to show a lack of good faith.” And that:

"[The] penalty should be sufficiently meaningful to accomplish the purpose of deterring future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), without being “unduly punitive” in light of the respondent’s resources, United States v. Minaco Fashions, Inc., 3 OCAHO no. 587, 1900, 1909 (1993). Here, while Siam Thai’s violations are considered serious, most of the statutory factors weigh in its favor. Yet ICE’s proposed penalty of $935 per violation is close to the maximum permissible fine. Based on the totality of the circumstances reflected in the record as a whole and, in particular, on the respondent’s circumstances and resources, the proposed penalty will be modified to an amount closer to the mid-range of possibilities. The penalties will be set at $500 each for the eleven I-9s prepared in March and April of 2009, $450 for the I-9 prepared in September of 2009, and $400 each for the six I-9s prepared in June and July of 2010, resulting in a total of $8350." [Emphasis added].

In other words, although the government was seeking high fines for “serious violations” due to  incomplete and missing I-9s forms, because Siam is a “mom and pop” operation, OCAHO reduced the fines in accordance to Siam’s “circumstances and resources” to an “amount closer to the mid-range of possibilities.”

Although many employers may be relieved at the OCAHO’s recent willingness to be measured in its application of fines and penalties, or gone soft on fines, it still remains true that compliance is always better.  ICE can be expected to persist in its effort to extract the highest possible penalties.

 
 
 
 

CBP Publishes Interim Rule on Automation of Form I-94 Arrival/Departure Record - Eliminates Paper Forms, Streamlines Admission Process


U.S. Customs and Border Protection (CBP) today published an interim final rule in the Federal Register to automate Form I-94, Arrival/Departure Record. Effective on April 26, 2013, the rule streamlines the admissions process for individuals lawfully visiting the United States.

Readers of our alerts would recall that CBP had announced on 03/21/2013 that it has submitted to the Federal Register a rule that would automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting the United States.

Form I-94 provides international visitors evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization. The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs.

It is expected that once the process is fully implemented, it will facilitate security and travel while saving CBP an estimated $15.5 million a year.

Travelers wanting a hard copy or other evidence of admission will be directed to www.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

CBP’s technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler.

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

 
 
 
 

The U.S. Customs and Border Protection Announced that Has Submitted to the Federal Register a Rule that Will Automate Form I-94 Arrival/Departure Record


On March 21, 2013, the U.S. Customs and Border Protection (USCBP) announced that it submitted to the Federal Register a rule that will automate Form I-94 Arrival/Departure Record. 

Form I-94 provides foreign national visitors and workers entering the U.S. evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization.

 The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs. The change will go into effect 30 days after the rule is published in the Federal Register. 

 Travelers wanting a hard copy or other evidence of admission (which is important to have for those authorized for employment for purposes of Form I-9) will be directed to ww.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

As part of CBP’s work to bring advances in technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler and will allow CBP to better optimize its resources.

For more information about this post, pleae contact Hector A. Chichoni at: 305.960.2277 or hachichoni@duanemorris.com.

This post does not constitute legal advice and does not establish an attorneyclient relationship.

This rule should streamline the admissions process for individuals lawfully entering the U.S.  Many readers of this blog would recall that CBP has already eliminated the use of Form I-94 for visitors entering the U.S. under the Visa Waiver Program (ESTA).
 
 
 
 

H-1B Cap-subject Petitions Likely To Be Subject To A Lottery


On March 18, 2013, the U.S. Citizenship and Immigration Services (“USCIS” or “the Service”) announced, based  on feedback received from “stakeholders,” that it anticipates receiving “more petitions than the H-1B cap between April 1, 2013 and April 5, 2013," and that it may receive “more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master's degree or higher between April 1, 2013, and April 5, 2013.” USCIS also stated that “this could be the first time since April 2008 that the H-1B cap will require a lottery.” 

So, what does USCIS mean by the H-1B cap requiring a lottery? It means, nothing less, that USCIS will conduct a random lottery for all H-1B cap-subject petitions, which have been accepted for processing, if the number of petitions received is significantly higher than there are numbers available under the cap.

USCIS has conducted similar random lotteries for past fiscal years. In FY2008, for example, USCIS conducted a random lottery for H-1B petitions subject to cap received for processing from April 1 to April 5, because it had received a significantly higher number of petitions, almost twice as many, for the number of available spots under he cap. USCIS, however, can implement a random lottery at any time if it begins to receive a large number of petitions for a fewer number of available spots. A good example of this type of H-1B lottery is the one USCIS conducted at the end of January 2011.

However, if an employer submits an H-1B petition to USCIS on April 1, 2013 and the petition is accepted for processing; and spots are still available under the cap, then the petition will not be subject to a lottery.

No one knows exactly how quickly the H-1B cap will be reached, but our advice to petitioners is to file the H-1B petitions by April 1, 2013 to ensure that they do not miss the FY 2014 cap, or the lottery, if one is implemented.

For Further Information If you have any questions about this posting, please contact Hector A. Chichoni at hachichoni@duanemorris.com or 305.960.2277.

 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship. 

 

 

 

 

 

 

 
 
 
 

The H-1B Visa Filing Deadline Is Almost Upon Us


The H-1B cap for Fiscal Year 2014 consists of only 65,000 regular visas, and an additional 20,000 are available to only individuals with advanced degrees from American universities.

 H-1B petitions for the 2013 to 2014 Fiscal Year (FY 13-14) must be received by the U.S. Citizenship and Immigration Services (USCIS) on April 1, 2013.

The April 1, 2013, deadline for the filing for new H-1B visas is approaching, and the time for employers needing to hire foreign nationals in specialty occupations in H-1B status is now. If employers do not act, they will be unable to secure an H-1B (subject to the cap) for the October 1, 2013, start date and will have to wait another year until they are able to file for H-1Bs again.

There are many reasons why employers do not meet the H-1B filing deadline. Sometimes employers simply are not acquainted with immigration law intricacies. For example, an employer may be relying on the fact that a foreign national employee in F-1 status working pursuant to Optional Practical Training (OPT) still has “plenty” of time left on his or her employment authorization. Employment authorization under OPT is only good for 12 months (or 29 months if the foreign national has a STEM degree and his or her employer is using E-Verify). Depending on when the 12 (or 29) months of OPT employment authorization cycle ends, the foreign national employee may have to stop working because he or she is unable to continue being authorized for employment until the next fiscal year’s start date. Thus, it is vital for an employer to file the H-1B visa petition under the fiscal year prior to the OPT’s expiration, even though there still may be plenty of time left of employment authorization.

Furthermore, employers often hire foreign nationals in other nonimmigrant classifications whose status may also be soon expiring and whose only option to continue working for that same employer is to file for a change of status to H-1B, subject to the cap now.

Likewise, last year during the “crazy” H-1B filing season, many applicants did not get an H-1B visa because the petitions were not filed in a timely manner. In addition, many H-1B cases failed to make the deadline because they were not “properly filed.”

Every year, many employers experience economic hardship as a direct result of failing to meet the H-1B cap filing deadline. It is impossible to predict when the new FY 13-14 H-1B cap will be exhausted, but it is anticipated to be exhausted very quickly.

The U.S. Department of State’s April 2013 Visa Bulletin provides additional information on the availability of immigrant numbers during April 2013.

For Further Information If you have any questions about this Alert, please contact any Hector A. Chichoni at hachichoni@duanemorris.com or 305.960.2277.

 
 
 
 

Revised Handbook for Employers: Instructions for Completing Form I-9 (M-274)


The newly revised Employment Eligibility Verification Form I-9 (Rev. 03/08/13 N) is now available for immediate use by all employers. To help inform employers of the revisions, the United States Citizenship and Immigration Services (USCIS)  is also  offering free educational webinars that highlight the new features and changes made to Form I-9, which includes fields and format, and expanded and clearer instructions. The webinars offered by USCIS also include an overview of how to use Form I-9.

USCIS has also published a revised version of the Handbook for Employers (M-274).  The M-274 contains not only the instructions to complete the newly revised Form I-9, but also answers to substantive and procedural Form I-9 questions. The M-274 is available at USCIS’s I-9 Central website (www.uscis.gov). The updated revision of the M-274 is dated: January 5, 2011. The prior M-274 revision was July 31, 2009.

Director Alejandro Mayorkas has stated that the M-274 has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions.

Some of the many improvements, new sections, and tools included in the M-274 are:

New visual aids for completing Form I-9

Examples of new relevant USCIS documents

Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students

Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status

Expanded guidance on extensions of stay for employees with temporary employment authorization

The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.

If you need assistance with Form I-9, we would be happy to assist you.  Please contact Hector A. Chichoni at hachichoni@duanemorris.com or at 305.960.2277. 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship. 

 
 
 
 

USCIS Announces The Release of a New and Revised Form I-9


On Thursday, March 7, 2013, the U.S. Citizenship and Immigration Services (USCIS) announced that it will release today a new and revised version of Form I-9.  After several rounds of revisions and changes, the new and revised Form I-9 will be made officially available through the Federal Register. As required by the Immigration Reform and Control Act of 1986 (IRCA), the Form I-9 is used by employers to verify a new employee’s identity and to establish and employee’s employment eligibility in the United States. According to USCIS, the new Form I-9 contains formatting changes and the inclusion of additional data fields, including employee’s foreign passport information, telephone number, and email address.  Moreover, the new Form I-9 has been expanded from one to two pages and the form’s instructions provide additional clarifications. USCIS’s notice states that:  

 Employers must use the new Form I-9 immediately; however, USCIS recognizes that some employers may need additional time in order to make necessary updates to their business processes to allow for use of the new Form I-9. USCIS recognizes that modifications to electronic systems may be particularly necessary for employers utilizing electronic Forms I-9.  For these reasons, USCIS is providing employers 60-days to make necessary changes. USCIS believes that the 60-day period will help alleviate the burden that immediate implementation of the newly revised Form I-9 would have imposed on employers. Note that employers do not need to complete the new Form I-9 “(Rev. 03/08/13)N” for current employees for whom there is already a properly completed Form I-9 on file, unless re-verification applies. Unnecessary verification may violate the anti-discrimination provision at section 274B of the INA, 8 U.S.C. 1324b, which is enforced by DOJ’s Office of Special Counsel for Immigration Related Unfair Employment.

USCIS’s notice also contains the dates that employers should begin using the newly revised Form I-9 and announces the date that employers can no longer use prior versions of the form.  The new Form I-9 with a revision date of “(Rev. 03/08/13) N” is available for use beginning from the date of its publication in the Federal Register.  Prior versions of Form I-9 “(Rev. 08/07/09) Y” and “(Rev. 02/02/2009) N” can no longer be used by the public effective 60 days from the publication date of the new Form I-9 in the Federal Register. Failure to use the new and revised Form I-9 can result in the imposition of penalties under the Immigration and Nationality Act.  U.S. Immigration Customs Enforcement will be responsible for enforcing compliance with the new and revised Form I-9.

Employers can obtain the new Form I-9 by calling USCIS’ National Customer Service Center at 1-800-375-5283 or by visiting USCIS’s I-9 Central web page at www.uscis.gov/I-9Central. A Spanish-language version of the new Form I-9 is available at www.uscis.gov for use in Puerto Rico only.

If you need assistance with Form I-9, we would be happy to assist you.  Please contact Hector A. Chichoni at hachichoni@duanemorris.com or at 305.960.2277. 

 This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

 

 

 

 
 
 
 

Eleventh Circuit Finds Liquidated Damages Discretionary in FLSA Retaliation Cases


The Eleventh Circuit decided an interesting FLSA retaliation case this week, Moore v. Appliance Direct, Inc.  I have noticed an uptick in the filing of those kinds of suits in recent months/years, so this decision is significant.  The facts are basic - the three employee plaintiffs were delivery drivers for Appliance Direct, and filed an FLSA overtime suit while they were still employed.  During the pendency of the case, Appliance Direct fired the three drivers.  The company claimed that it had outsourced those jobs.  The drivers, as you might expect, filed an FLSA retaliation suit against the company and its CEO.  After some procedural machinations, the retaliation case against the CEO went to jury trial.  The jury found in favor of the drivers, and awarded each $30,000 in damages.  The Court declined to award plaintiffs an additional amount in liquidated damages.

Under the FLSA's overtime and minimum wage provisions, a plaintiff's entitlement to liquidated damages - or, double damages - is a question for the judge, and it depends on whether the defendant company acted in good faith.  For example, a jury may award an FLSA overtime plaintiff a certain sum in unpaid overtime, say $10,000.  If the judge determines that the defendant failed to prove that it acted in "reasonable good faith" with respect to the pay decisions, then an award of liquidated damages (an additional $10,000 in this example) is mandatory.

In Moore, the Eleventh Circuit considered whether the same is true in an FLSA retaliation case, and decided that it is not.  The Court noted that the text of the anti-retaliation provision differs from the text of the unpaid wages provisions, and determined that liquidated damages are discretionary in retaliation cases, even where the defendant has failed to prove it acted in good faith with respect to the alleged retaliatory conduct.  The Court stated that the FLSA "gives the district court discretion to award, or not award, liquidated damages, after determining whether doing so would be appropriate under the facts of the case."

The Court did not explain when it would be appropriate to award liquidated damages in a retaliation case, but it is safe to say that it depends on whether the company has any explanation (other than a retaliatory one) as to why it fired (or took other adverse action) against the employee.  An employer who has no explanation for the employment decision will probably be assessed liquidated damages.  On the other hand, an employer who has a reasonable, non-retaliatory explanation (with contemporaneous written documentation of the decision) may be able to avoid liquidated damages, even when that explanation was insufficient to convince the jury to find in its favor.  The real takeaway from this case is that it is more important than ever for employers to do their duty and document the reasons for terminations.

 
 
 
 

Lady Gaga's Wage and Hour Deposition - A Lesson in How Not to Testify


Any litigator knows that a client can torpedo his/her own case at a deposition.  And, sometimes it's not what the client says substantively, it's how they behave that gets them in trouble. 

In my experience, the richer or more "powerful" the deponent, the more likely they are to treat the proceeding as an opportunity for them to show how smart/witty/tough they are.  That rarely goes over well.  For example, I once represented a rich and powerful businessman who, in the process of inappropriately storming out of a deposition, called the female attorney who was asking the questions a "f...ing b....".  Luckily the court reporter did not record that epithet. Still, it was no fun to have to explain my client's behavior to the judge, and it certainly did not help our case.

A newsworthy example of this is Lady Gaga's recent deposition in a wage and hour case.  Lady Gaga's former personal assistant is suing Lady Gaga and her touring company for some $400,000 in unpaid overtime.  The assistant claims that she worked nearly round the clock because she was constantly at Lady Gaga's beck and call.  The case appears to raise a number of interesting legal issues, and is worth following.

But the real news this week is Lady Gaga's behavior at her deposition in that case.  As reported by the NY Post, she used the "f word" numerous times, including calling the plaintiff a "f...ing hood rat".  She referred to herself as "the queen of the universe", and was combative with the plaintiff's lawyer.  Lady Gaga directed the following to the Plaintiff - “I’m quite wonderful to everybody that works for me, and I am completely aghast to what a disgusting human being that you have become to sue me like this.”  She went on to recount some of the perks of the assistant job - caviar, partying, and high-quality bedclothing chief among them.

It goes without saying that such behavior can only hurt, not help, a case.   I am sure her lawyers prepped her well for the deposition, but sometimes clients have a mind of their own.  As a general rule, it is never a good idea at a deposition to use profanity or to disparage the lawyer asking the questions.  Those who take a "just the facts" approach usually do better than those who do not.  Lady Gaga unwittingly has given the plaintiff fodder for numerous briefs, and has almost certainly damaged her case.  If you ever have to sit for a deposition, don't let the same thing happen to you.  Pay attention to your lawyer when he/she prepares you.

 
 
 
 

Florida state senator proposes public sector workplace civility law


Florida has always been regarded as a "pro-business" state.  We have very few employment laws here, and that's the way employers like it.  I doubt that will change any time soon, as Republicans still dominate our legislature.  But, nationally these are "progressive" times (did you listen to the President's inaugural address?), and there have already been some pro-employee bills introduced in the state legislature this year.  One such bill is the "Abusive Workplace Environment Act", which was introduced earlier this month by Sen. Oscar Braynon, who represents Miami Gardens.

The bill applies only to governmental employers, and seeks to prohibit abusive work environments, defined as those "in which an employee is subject to abusive conduct that is so severe that it causes physical or psychological harm to the employee."  The bill includes a lengthy definition of  "abusive conduct", but the gist is that the law would prohibit the repeated use of "derogatory remarks, insults, and epithets", or any other type of "threatening, intimidating, or humiliating" conduct.  The introduction to the bill claims that this is necessary because "[a]pproximately one-half of all employees directly experience health-endangering workplace bullying, abuse, and harassment, and this mistreatment is approximately four times more prevalent than sexual harassment".

In sum, this bill seeks to make being a jerk or bully illegal in the public workplace.  The bill also includes an anti-retaliation provision, which makes it illegal to fire anyone in retaliation for their making a complaint about workplace abuse.

There will be some who see some merit to this effort.  I have never been the victim of currently illegal forms of harassment (harassment based on sex, race, age, religion, etc...), but I know that a dificult boss can make anyone's life miserable. 

On the other hand, personality conflicts are part of every workplace, and life in general.  Employers, especially public employers, are already hesitant to discipline and terminate employees.  A law such as this would make it more difficult for public agencies to manage their employees, and run their businesses. 

I have no information about this bill's likelihood of passage.  I would guess that it is slim, but we will have to wait and see.

 
 
 
 

Eleventh Circuit Interprets FLSA Breastfeeding Provision


You may recall that Congress amended the FLSA back in 2010 to require employers to provide time and private space for employees to express breast milk.  The FLSA's anti-retaliation provision applies to this new requirement.  That provision states that it is unlawful for an employer "to discharge...any employee because such employee has filed any complaint...related to this chapter".

The Eleventh Circuit has now become the first appellate court to interpret the new breastfeeding provision in Miller v. Roche Surety and Casualty Co., Inc.  Danielle Miller was employed by Roche.  In her lawsuit, she alleged that Roche violated the breastfeeding provision by failing to provide her time and space to use a breast pump, that she complained about this, and that Roche fired her in retaliation for her complaint.  The case went to trial.  At trial, the district court (Judge Richard Lazzara of the M.D. Fla.) granted Roche's motion for judgment as a matter of law, and found for Roche.

The Eleventh Circuit affirmed.  Miller had admitted in her trial testimony that she had sufficient time and private space to express breast milk, so there was little question that Roche had complied with the FLSA breastfeeding provision. 

The more interesting question was whether Miller had engaged in "protected activity" sufficient to create a jury question as to whether Roche had terminated Miller's employment in connection with a "complaint" about the breastfeeding issue.  Miller's evidence that she had made a "complaint" about that topic was limited to: (1) an email she had sent her supervisor requesting a time and space to use her breast pump; and, (2) emails she had sent friends and family (but not anyone at Roche) from her Roche email account complaining about Roche's alleged failure to comply with the breastfeeding provision.

The Eleventh Circuit concluded that Miller's email to others, even from her Roche email account, did not constitute a formal "complaint" under the FLSA retaliation provision.  The Eleventh Circuit also found that Miller's mere request that Roche provide her time and space to use her breast pump did not constitute a formal complaint.  The court stated "...[f]ar from notifying Roche that a grievance had been lodged, this email does not allege or even intimate that Roche violated the law."  This makes sense, considering there is a clear distinction between a request for a particular accommodation, and a "complaint" that the accommodation was not provided.

This decision could be useful for employers, because its clarification as to what constitutes an FLSA complaint will have application outside of the FLSA breastfeeding provision context.  I have seen a number of FLSA cases where employees claim that some discussion with a supervisor about overtime pay obligations is enough to constitute a complaint.  But, it is clear from the Supreme Court's decision two years ago in Kasten, and from this decision, that more is required.

 

 

 

 

 

 
 
 
 

Broward County Wage Theft Ordinance in Effect January 2


The new Broward County "wage theft" law went into effect last week.  Miami-Dade County enacted a similar ordinance a couple of years ago.  The Broward County ordinance establishes an administrative scheme for employees (defined as any employee working in Broward County other than federal and state employees, or employees of Indian tribes) to bring claims for unpaid wages.  The threshold amount to bring a claim is $60.  The administrative scheme allows for discovery, and mini-trials before hearing officers.  The hearing officer can award back wages, an equal amount of liquidated damages, and attorneys' fees.  There is no private right of action in court under this ordinance.  The ordinance requires Broward County employers to pay earned wages within 14 days. 

I have not seen very many claims filed under the Miami-Dade ordinance, and doubt that there will be many filed pursuant to the Broward County one.  If an employer fails to pay earned wages - overtime or otherwise - there is no shortage of lawyers in our community who specialize in representing employees in unpaid wages suits in court.  Indeed, South Florida leads the nation in overtime lawsuits filed under the Fair Labor Standards Act.  In my opinion, this new ordinance is unnecessary, because it largely duplicates existing remedies.  Only time will tell whether employees take advantage of this new remedy, but all businesses with employees in Broward should be aware of this new law.

 
 
 
 
 

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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.