hartfordYears ago, I recall having a friendly conversation with another attorney in Connecticut where the topic turned to the notion of “At Will” employment.

When we couldn’t settle on an answer, we moved on to talking about whether the Hartford Whalers would ever come back.

I think we had a better answer for that question:

MTMMary Richards’ job interview with Lou Grant is, perhaps one of the most famous job interviews ever. So says Time magazine.

Before I go on, though, there are probably more than a few of you who don’t know what I’m talking about.

But with the passing of Mary Tyler Moore earlier today here in Connecticut

hermanMy 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

monkeyIn 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?


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ashleymendoza1eckertToday, I’m delighted to bring you what I hope will be the first of several updates for employers from the immigration law perspective.  One of my newest colleagues, Ashley Mendoza, along with my law partner Brenda Eckert, have been tracking some of the newest rules for employers coming out of the Department of Homeland Security.  These rules will have a particular impact to employers who recruit from the STEM (science, technology, engineering, and math) areas.  For employers that rely on foreign workers to help supplement their ranks, this is crucial to understand.

But a cautionary note: It’s a bit technical. There’s really no way around that. Immigration laws are just filled with technical requirements. Indeed, that’s one reason why a qualified immigration lawyer is often needed to help employers navigate these rules. Brenda and Ashley are leading the way here at my firm and I thank them for this detailed update.

Yesterday (May 10, 2016), the U.S. Department of Homeland Security (“DHS”) implemented major modifications to Optional Practical Training (“OPT”) extensions for students on F-1 visas enrolled in science, technology, engineering, and mathematics (“STEM”) degree programs.

IMG_7083The new regulations, published at 8 CFR Parts 214.2(f) and 274a, authorize a 24-month STEM OPT extension period, replacing the previous 17-month STEM OPT extension period.

While at first glance, the new STEM OPT extension regulations may seem a cause for celebration, there are a number of added requirements and oversight provisions and, for some U.S. employers, the benefits may not outweigh the burdens.

What is OPT?

OPT is a form of temporary employment available to students holding F-1 visas that directly relates to a student’s program of study. The employment is often paid, and may take place during and/or after completion of the degree program.

The overarching idea is that OPT will afford eligible international students and new graduates the opportunity to gain hands-on practical experience to supplement what they learned during their degree program. Students may be authorized for a total of 12 months of full-time OPT at each educational level (e.g., undergraduate, graduate and post-graduate).

The application process is relatively straight forward. The student must first request approval from his or her designated school official (“DSO”), who will then make a recommendation to the electronic Student and Exchange Visitor and Information System (“SEVIS”) by endorsing a Form I-20.

Thereafter, the student must file the Form I-765, Application for Employment Authorization, supporting documentation, and a filing fee of $380.00 with the U.S. Citizenship and Immigration Services (“USCIS”).

The extension & the changes to it

Since 2008, eligible students who graduate with a qualified STEM degree and are presently engaged in a period of approved post-completion OPT may have the option to extend their OPT for a period of 17 months.

This is the existing STEM OPT extension, and this is what the new regulations modify. These changes will affect all parties involved in the STEM OPT extension process. This includes the students and the U.S. employers with whom the students will train during the course of the approved period of STEM OPT.

Not to be forgotten, however, are the DSO’s who perform pivotal work with students behind-the-scenes to recommend them for OPT and extensions and maintain student records in SEVIS.

So, what’s new?

The better question, really, is what isn’t new.

The new regulations provide a comprehensive overhaul to the STEM OPT program.


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