I still remain amazed at the sold-out crowd we had at last week’s Labor & Employment Law seminar. Well over 250 people registered for the program and I kind of wanted to whisper to people: “You know this is just a LEGAL seminar, right?”
But no matter. Employment law issues are as popular as ever
My colleague Gary Starr sits next to my office and sometimes we bounce ideas off each other. One of the things we were talking about recently was a new case that discussed an employer’s obligations to enter into the interactive process.
This often comes up in ADA cases where the employee may need a reasonable
I’ve always tried for this blog to be apolitical. That doesn’t mean I don’t have political views — I obviously do — but I don’t think that they should play into how we look at certain legal issues.
But we need to talk about the recorded comments from Donald Trump because I think employers need
My colleague Marc Herman returns today to bring back the story of wellness programs and whether they will continue to pass legal muster. In the first post of a two-parter, Marc updates us on some litigation. Read on.
Here’s one for you: Did you hear the one about the employee that turned down the
In yesterday’s post, I talked about some of the reasons why an employee’s lawsuit against his or her employer was destined for failure.
But employers, I’m afraid you’re not off the hook that easily. This post is for any employer that just got sued or threatened with suit.
Maybe that lawsuit isn’t so frivolous after all.
Wait a second! You said yesterday that ‘Odds are, you probably weren’t discriminated against’!”
Ah, but isn’t that rub? Odds. Statistics. Yes, some (many?) lawsuits brought by employees are losing propositions. But some are not.
Here are some things I tell clients or prospective clients when I see a lawsuit filed or threatened as to why they should take the lawsuit seriously.
1. That frivolous lawsuit is still going to cost you thousands (if not tens of thousands) to defend. But I thought you said this post was about non-frivolous lawsuits? True. But for my first point, that’s beside the point entirely. Whether a lawsuit is frivolous or not, the system of justice through our courts and administrative agencies moves slowly and with some cautiousness. Even the frivolous ones need to be defended. Court filings need to be, well, filed. And court conferences need to be attended. So your first point always is to recognize that all employment law cases have a cost associated with them.
And as such, all cases have what we call a “nuisance” value as well. That is — you are going to spend X amount of dollars defending the lawsuit. It may be cheaper to just pay a certain amount to avoid the cost of defense. Now, there are business reasons why you won’t want to do so in all or even many cases, but the employer who fails to recognize the nuisance value of the case is destined to be disappointed in the long run.
It’s a bit of hyperbole to say that any person can sue anyone at any time for any reason. But not that much. Lawsuits are a part of doing business. Frivolous or not, you will still have spend money to defend your decision. Be prepared for this eventuality when making your employment decisions and deciding whether or not to offer severance in exchange for a release.
2. “At Will” Employment Is a Misnomer. In Connecticut, the default employment relationship between an employer and employee is “at-will”. As many offer letters suggest, that means either the employer or employee can terminate the employment relationship at any time for any reason or no reason at all. And so, I sometimes hear employers exclaiming “Connecticut is at-will! We should be able to just fire them for any reason! How can they still sue?”Continue Reading Maybe That Lawsuit Brought By Your Employee Isn’t So Frivolous
As I approach the ninth anniversary of this blog this week (watch for that anniversary post soon), I’ve gotten a bit more reflective as well. Some of that is personal circumstances I’ve mentioned before; perhaps some of
$20,000,000.00.
That, as they say in the legal parlance, is a crooked number with a LOT of zeros behind it.
And that is also the reported amount of settlement between Gretchen Carlson and Fox News over her sexual harassment lawsuit. Plus an unprecedented apology. And it doesn’t take into account other cases of harassment that
Welcome back from summer! Today, my colleague Gary Starr and I bring you the story of an employer that thought that it had done everything right — only to see it all go wrong.
Imagine this scenario: You, the employer, think you’ve taken all the right steps when hearing about a harassment complaint. You encourage
My colleagues, Ashley Mendoza and Alfredo Fernandez, return today for a guest post today that shows that employment law issues can sometimes present themselves in different formats. My thanks to the both of them in presenting a fairly advanced topic in a form that will hopefully be of interest to a few of you out there.
Imagine your company has employed a research scientist to support your technology programs. The scientist is a citizen of the People’s Republic of China and holds an H-1B visa, but is not authorized to view certain export-controlled technical data. Unclear of the restrictions in place, other company employees provide the foreign scientist with technical data related to a military program in the course of his job duties. This real life scenario recently resulted in a $100,000 settlement penalty with the U.S. State Department this summer.
It appears that a company policy to screen out foreign candidates for job openings of this sensitive nature would have prevented this violation and penalty, but a company also faces the challenge of avoiding discrimination in its hiring practices. Is this a lose-lose scenario? Not quite, but companies must pay close attention to recent guidance and regulatory revisions to understand their compliance obligations.
The Tricky Intersection of Legal Obligations
On March 31, 2016, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (the “OSC”) released its most recent guidance to employers to aid them in navigating the murky waters where export regulations meet immigration antidiscrimination regulations.
These two regulated areas may contradict each other when it comes to the hiring practices of U.S. companies soliciting candidates for a position where the job duties impose compliance with export control laws. Unfortunately, the limited governmental guidance confounds some employers when it comes to complying with both sets of regulations in certain scenarios. The OSC’s recent guidance and upcoming definitional changes within the export control laws do provide some general direction for employers; however several ambiguous issues remain unresolved.
What We Know About the Export Regulations in this Context
Exports are commonly associated with the shipment of a tangible item to a foreign country, but the U.S. export regulations have a much broader application. An export also includes the transfer of controlled technical data or technology to foreign persons, even when the transfer takes place within the geographic territory of the United States. Such a transfer is “deemed” to be an export to the country of the foreign person and is referred to as a “deemed export.”
Although not the only federal agencies administering export control laws, the U.S. State and Commerce Departments manage the two broadest export control systems. The U.S. State Department’s Directorate of Defense Trade Controls administers the International Traffic in Arms Regulations (“ITAR”), found at 22 C.F.R. §§ 120-130, which control defense articles and services. The U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) administers the Export Administration Regulations (“EAR”), found at 15 C.F.R. §§ 730-774, which control commercial and dual-use items, as well as limited low-sensitivity military items. Generally speaking, all articles controlled under the ITAR and many articles controlled under the EAR require an export license before the export, including a deemed export, occurs.
Each set of regulations accounts for deemed exports but have slightly different definitions of key terms. In fact, new and revised definitions under both regulations become effective September 1, 2016. One primary intention of the definitional changes is to better harmonize the analogous definitions in both systems. Under both regulations, the deemed export rule applies only to foreign persons and, by definition, does not apply to U.S. citizens, persons lawfully admitted for permanent residence in the United States (e.g., green card holders) or to persons who are protected individuals under the Immigration and Nationality Act (“INA”)(e.g., certain refugees and asylees).
The below table showcases a few of the new definitions, including the improved harmonization for key terms such as export and release.
Continue Reading How to Avoid Discrimination in Hiring, While Complying with Export Laws
As I have for over a decade now, I attended the American Bar Association’s Annual Meeting last week serving on the ABA’s House of Delegates – the organization’s main governing body. My exact position is actually State Delegate — a position that nominally makes the lead delegate of Connecticut’s delegation, though in practice it’s much