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?


Continue Reading Maybe That Lawsuit Brought By Your Employee Isn’t So Frivolous

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.


Continue Reading Major Modifications to Immigration Programs May Cause Major Headaches

locplane[1]My colleague Chris Engler returns today with a recap of a new case in Connecticut that is of particular interest to employers who provide (or don’t provide) employment references.

We have all heard the admonition that “less is more.”

In an opinion that will be released next week, the Connecticut Appellate Court reminds us just how true that admonition is.  In fact, the court’s decision gave one employer more than 400,000 reasons to heed the adage in the future.

The case, Nelson v. Tradewind Aviation, LLC, arose from a defamation lawsuit.  According to the court’s opinion, the plaintiff had worked as a pilot for Tradewind Aviation for a summer back in 2007.  At the end of the season, the company needed to downsize for the winter.  The plaintiff and others were laid off.  His termination paperwork indicated that he had been laid off due to lack of work.

A few months later, the plaintiff was offered a job by another aviation company.  In accordance with federal regulations, this company had the plaintiff request his employment records and other forms from Tradewind Aviation.  Unlike the termination paperwork provided to him when he was laid off, on the new forms Tradewind Aviation’s representatives wrote that the plaintiff was involuntarily terminated and had had performance issues.

Tradewind Aviation then sent a letter to the prospective employer elaborating on these performance issues.  The next day, it faxed over a copy of a drug test report (which concluded that plaintiff had not taken any drugs) along with a note that allegedly tied the supposed performance issues to drug use.

When the prospective employee rescinded its job offer to the plaintiff, he filed suit against Tradewind Aviation.  He claimed that his former employer had engaged in defamation with malice.  A few years later, a jury wholeheartedly agreed, to the tune of over $407,000 in damages.

Not surprisingly, the employer quickly appealed the verdict.


Continue Reading Less May Be More When It Comes To Job References

Back in June, I talked about the standard that courts will follow in deciding whether or not to enforce a non-compete agreement between an employer and an employee.  (Go read it here first.)

But many employers want to know something more straightforward: How long can I make the restrictive covenant in my agreement; in

You just finished interviewing a great candidate for a manager-level position at your company.  She looks great on paper and interviewed well.

But you’re wondering: What dark secrets about her loom on Facebook? After all, you did see that tattoo on her arm and she mentioned a fun time at Bonnaroo 2013.

“Maybe there

Late Friday, you might have (ok, I’m sure you did) missed a press release from the United States Department of Justice announcing a settlement with a staffing agency in California.

The charge? That a staffing company “discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).”

Now, I’m sure you all

Over the past month, after the Supreme Court’s Hobby Lobby decision, much has been made in the press about how it is unprecedented for the court to consider a company’s religious beliefs in making its decisions.

The issue of taking into account a corporation’s religious belief in the workplace has been also catapulted to