H1B: One More Hurdle to Creating Your Dream Team

This past Tuesday thousands of applications were submitted for coveted H1B visas. These visas are necessary for U.S. employers who want to hire high-skilled foreign workers. The majority of these applications are for workers with advanced degrees and many have graduated from United States’ universities.

Unfortunately, even if you believe you have the best candidate for your company IN THE WORLD, there is still no guarantee they will be awarded the visa you spent hours filling out. Approximately half of all H1B visas will be rejected randomly by a computer-generated lottery. More unfortunately, this percentage of rejections will likely only increase in the future as the baseline annual limit remains at the same level set by Congress in 1990 but the demand for H1B visas is increasing.

Even with this difficult obstacle to hurdle, employers should still apply for a visa for the excellent candidate from a foreign country. To give your company the greatest chance of approval for an H1B visa, make sure you get it in on time and it is correctly filled out. The next deadline for H1B visas is April 1, 2015. These applications are complex and complicated and it would be wise to consult with employment counsel during this process.

If you have any questions regarding foreign employees, please contact any of the attorneys at Royal LLP at (413) 586-2288.

Posted in Labor and Employment, Uncategorized | Leave a comment

A Whole New Game: College Athletes Are Employees

The National Labor Relations Board (NLRB) has decided that Northwestern University athletes are employees of the University and, as such, are allowed to form a union. The athletes claim they just want a seat at the table to discuss issues. However, the NLRB only allows employees to form unions; therefore, it was imperative that the “student-athletes” were deemed employees.

The NLRB defines an “employee” as “a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.” The athletes are compensated with scholarship packages worth over a quarter-of-a-million dollars during their time at the university, Northwestern earned about $235 million in revenue from the athletes’ efforts between 2003 and 2012, and the athletes are subject to complete control in their duties as football players. For these reasons, the NLRB regional office determined these athletes were employees.

This decision will likely have widespread consequences on and off the field. Now athletes may be eligible for worker’s compensation for injuries from training or a game, may be entitled to wages under the Fair Labor Standards Act, or the University could become subject to unemployment insurance laws. As the first quarter ends the crowd is left to wonder “who else might be an employee?”

But these players shouldn’t plan their touchdown dance yet. This game is going into overtime as Northwestern plans to appeal this decision.

If you have any questions regarding employee classifications, please contact any of the attorneys at Royal LLP at (413) 586-2288.

Posted in FLSA, Independent Contractor, Labor and Employment, NLRB, Wage and Hour | Leave a comment

New Northampton Smoking Restrictions Affect Employers

Yesterday, the Northampton Board of Health met to discuss amendments to the town smoking regulations.  These amendments renewed a complete prohibition of smoking in workplaces and other areas.  Notably, unlike other regulations, to be a “workplace” under this restriction there need be as few as one employee.  As we previously discussed here, e-cigarettes are not exempt and will be subject to the same restrictions.

These regulations will go into effect June 1, 2014.  Consequently, now is a great time to make sure your smoking and e-cigarette policies are in place and up-to-date.

If you have any questions regarding laws restricting smoking and e-cigarettes in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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If You Can’t Beat Them, Join Them

Amherst held a Town Meeting on Wednesday night, March 19, to discuss the possibility of increasing the minimum wage in Amherst to $15 per hour. If the referendum was approved or rejected by the Town Counsel then a call for a town-wide vote could be initiated. However, the article was dismissed. This means a $15 per hour minimum wage will not happen in the near future, at least not through this article. So for now, Amherst will have to be like all other towns and follow the state and federal minimum wages.

Posted in Labor and Employment, Wage and Hour | Leave a comment

When Your Workers Go Into Extra Innings: New Overtime Regulations May Be Coming

President Obama has asked the Department of Labor (DOL) to update the current overtime regulations to expand the number of workers who are eligible for overtime pay. While the actual details have not been released and may not be for some time, it is likely the DOL will focus on increasing the salary threshold. This threshold is currently $455 a week. This means that all employees who make more than $455 per week may be eligible for exemption from overtime pay.

If the threshold does increase businesses will have a few options to control their costs. Employers may:

  1.   Pay newly non-exempt employees more in overtime;
  2. Closely monitor hours employees work to avoid overtime;
  3. Decrease hourly rates to pay employees the same with overtime pay included;
  4. Convert all employees to part time status to avoid overtime; or
  5. A combination of the previous four options.

Regardless of how your business decides to handle this change, it is still important to anticipate that employees may lose flexibility in their schedules, there will be administrative burdens to track hours employees work, and there will likely be an increase in wage and hour litigation.

Although this process will likely take quite a while, we are unlikely to see the final product before the end of 2015, employers are not doomed to sit and wait. If you would like to participate by commenting on any proposed regulations you can go here to see how.

If you have any questions regarding Wage and Hour laws, please contact any of the attorneys at Royal LLP at (413) 586-2288.

Posted in Labor and Employment, Uncategorized, Wage and Hour | Leave a comment

Anything You Can Do We Can Do Better! Amherst Discusses Raising Town Minimum Wage to $15

While Massachusetts has been working on a bill to raise the state minimum wage to $11 an hour gradually over the next three years, Amherst is considering implementing a town minimum wage of $15 an hour. Tomorrow, March 19, 2014, there will be a Town Meeting to discuss whether to support raising the town minimum wage to $15 an hour. Even if the town decides to support this increase, it will still need to go through the Senate and House of Representatives. Even if the proposal gets the necessary support it will still need to ensure there are no contrary laws. Although this is not the first time a municipality has tried to set its own minimum wage, it is certainly a rare occurrence.

Posted in Labor and Employment, Uncategorized, Wage and Hour | Leave a comment

SURPRISE! OSHA Inspection!

Under the Occupational Safety and Health Act (OSHA), inspectors are authorized to “inspect and investigate during regular working hours, and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee” without notice.

While it is sometimes impossible to anticipate an OSHA investigation, employers can still be prepared.

  • Employers should have a video or still camera available to use during an OSHA inspection. The investigator’s word will carry a lot of weight. By having a recording or photographs of what the investigator observed you can prepare a defense. Even if a defense isn’t available, the photos or video may be helpful training tools.
  • Employers should appoint a specific leader to be responsible for an OSHA site visit. This will prevent some last minute shuffling when an investigator arrives unannounced. It is also important to ensure that the point person is prepared to show the investigator around the site and to answer any questions the investigator may have. Also, make sure the receptionist knows who the OSHA point person is so the investigator is not kept waiting long.
  • Employers should have a route through the workplace planned to highlight the safety procedures and strengths of the site. While an investigator has broad discretion to choose how to explore the workplace, you want to be prepared to show your best side if you have the opportunity.
  • Employers should decide if they want to press the investigator for a warrant. An OSHA investigator may inspect premises based on consent or a warrant. However, if an employer requires a warrant for the inspection, the inspector will likely be much more thorough and critical.

The best way to handle a surprise OSHA inspection is to be a good boy scout: BE PREPARED.

If you have any questions regarding Occupational Safety and Health laws, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Where Does the Workday End?

The time for which an employee must be compensated isn’t simply the time they spend working. Among other requirements, the Fair Labor and Standards Act (FLSA) demands that employees are paid for all time during which they are required to be on the premises, on duty, or at a prescribed workplace. Among this non-work time that must be paid may include trainings, orientations, donning protective gear, washing hands, and other activities that do not directly benefit the employer. Soon, we will know if time spent being screened by security falls in the must-be-compensated category or not.

Currently courts have decided both ways on the issue of if time going through security is time working. Recently, a staffing company serving clients such as Amazon.com had a lawsuit filed against it by employees for alleged violations of the FLSA by not compensating employees for the time they are required to spend going through a security screening at the end of each shift. The Court of Appeals held that since these security screenings were being done as employees left work they were clearly designed to prevent theft and as such they were “integral and indispensable” to the company’s principle activities. The Appeals’ Court further held that such “integral and indispensable” activities are compensable.

As other courts have found very differently on this issue a Supreme Court decision will be welcomed as clarifying a currently uncertain issue. Unfortunately, this company is facing a large penalty for possibly violating an undecided rule. For this reason, it is very important to seek advice from employment counsel if there is any question about if an employee should be paid for certain time he or she is required to be on the premises.

If you have any questions regarding the Fair Labor and Standards Act, please contact any of the attorneys at Royal LLP at (413) 586-2288.

Posted in FLSA, Labor and Employment, Wage and Hour | Leave a comment

The $80,000 Secret – The Importance of Confidentiality Clauses

When a 69 year old former school headmaster’s contract wasn’t renewed he filed a claim for age discrimination. The school, Gulliver Preparatory School, decided to settle this lawsuit and in the settlement included a confidentiality agreement.

While there are several reasons that may be factored into deciding to settle a lawsuit (cost of trial, affect on reputation of ongoing lawsuit, successful litigation breeding further litigation, etc.), many of those reasons focus on keeping the case away from the public. Therefore, confidentiality clauses are common and a important for all parties in settlement agreements.

These confidentiality agreements are normally more of a deterrent than anything else because enforcement may require the parties to return to court. Nonetheless, to avoid the facts surrounding a case from becoming public knowledge, it is important to have a carefully drafted confidentiality agreement in place. An effective confidentiality clause will make clear specifically what information is confidential, will specify exclusions to the agreement under law, and will state that a breach of confidentiality may void the settlement agreement.

Therefore, when the daughter of the former headmaster whispered about the settlement in her Facebook status, to all of her 1200 “friends,” by writing, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” This started a series of court proceedings leading to “Mama and Papa Snay” not getting any of that money.

The settlement agreement specifically stated that neither Snay nor his wife could mention the settlement to anyone other than attorneys or professional advisors. Therefore, when Snay’s daughter boasted on her Facebook with information she only could have gotten from her parents, she essentially boasted her family out of $80,000. While his daughter wasn’t subject to the settlement and therefore wasn’t bound by it, her Facebook post made it clear that Snay had not kept the settlement confidential as he promised.

Even though the confidentiality agreement in this case was well drafted, the trial court originally intended to enforce the settlement agreement despite Snay’s disclosure to his daughter. While the appeals court ruled that the settlement was voided by this disclosure, this does highlight the importance of having a carefully worded confidentiality clause.

If your company is negotiating a settlement, it would behoove you to consult an attorney to ensure confidentiality will be maintained.

If you have any questions regarding confidentiality agreements, please contact any of the attorneys at Royal LLP at (413) 586-2288.

Posted in Age, Discrimination, Labor and Employment, Termination | Leave a comment

GINA’s First Victim

This past month the Equal Opportunity Employment Commission (EEOC) saw its first systematic outcome in a case alleging violations of the Genetic Information Nondisclosure Act (GINA). A former New York nursing and rehabilitation center will pay $370,000 to settle a discrimination lawsuit filed by the EEOC in the Second Circuit Federal Court. The EEOC alleges that this employer requested family medical history as part of its post-offer pre-employment medical examinations of applicants. While this seems innocent enough, the EEOC claims this was a violation of GINA.

Congress passed GINA in 2008 to prevent employers from requesting genetic information or making employment decisions based on genetic information. Under this act, genetic information is deemed to include family medical histories, information about genetic tests an individual or family member may have taken, and whether an individual or family member has sought genetic counseling or participated in a clinical research study that includes genetic testing. This is an easy trap to fall into if a business requires employees or applicants to get medical examinations, as it is common for medical providers to ask about medical histories.

To prevent an expensive claim similar to the one in New York, employers should not only avoid requesting, requiring, or purchasing an applicant’s or employee’s genetic information, an employer should also instruct their health care providers to avoid asking about family medical histories during examinations.

The Act does recognize that there are certain situations where an employer may inadvertently obtain an employee’s medical information. The recognized exceptions to this rule are if an employer gets the information unintentionally pursuant to the Family and Medical Leave Act (FMLA), when an employee receives voluntary health or genetic services that an employer offers, or when an employer discovers genetic information from commercially or publicly available sources such as newspapers, books, or websites. However, even in these situations employers should still not be basing employment decisions on such information and should still be careful to keep such information confidential and separate from the employee’s personnel file.

As this is such an easy oversight to make, employers should be aware of the risks, have procedures in place to safeguard themselves, and have staff involved with hiring and interviewing employees trained to recognize questions that may violate GINA.

If you have any questions regarding GINA, please contact any of the attorneys at Royal LLP at (413) 586-2288

Posted in Discrimination, GINA, Health Care, Labor and Employment | Leave a comment