As I noted earlier this week, the U.S. Supreme Court has approved of the use of class action waivers in arbitration agreements with employees.

My colleague, Gabe Jiran, has a recap of Epic Systems v. Lewis on my firm’s blog, Employment Law Letter, that you can access here.

So, it’s a foregone conclusion that employers

In an important 5-4 decision, the U.S. Supreme Court this morning held, for the first time, that class or collective action waivers, particularly in wage/hour cases, and contained in arbitration agreements between employers and employees are valid and enforceable.

Because wage and hour class and collective actions are quite costly for employers to defend

So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements.

After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver”

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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GA2It’s been a long-time coming but the General Assembly finally approved of a measure that would allow employers to pay employees on a bi-weekly basis without receiving prior CTDOL approval.

The provision, part of a set of “technical” revisions to various Department of Labor matters, is long overdue.

Several employers had moved to a bi-weekly

While the temperature hasn’t felt like summer in Connecticut the last few days, judging by the traffic this morning, there are lots of you on vacation this week.

If you’re one of the (un)lucky ones working this week, perhaps you have a few extra minutes to tackle some projects that have been on the back

It’s hard to read the Connecticut Law Tribune’s Editorial this week on “The Problem of Workplace Arbitration Clauses” with a straight face. It is dripping with sarcasm, filled with sweeping generalities, and reserves its greatest enmity for employers and the lawyers that represent them.

If the editorial is to be believed, employers and their lawyers apparently routinely use “deceptive” arbitration clauses — often pushed by a “third assistant personnel clerk” — that are hidden until “defense counsel raises the jury waiver or arbitration agreement from its dusty grave in the company’s personnel files.”

But perhaps I’m overreacting. So let’s review the editorial more closely and try to separate fact from fiction.  The editorial, in its full unedited version, is in italics. 

Over the last decade, employers have more and more often incorporated jury waiver or mandatory arbitration clauses into their employment arrangements to avoid the perceived horror of facing jury review of the way they treat their employees. These clauses are often presented in circumstances that many argue are deceptive, if not downright coercive.

On the first premise — that employers are using arbitration agreements more — the editorial doesn’t provide numbers. But I’ll tend to agree with the notion that the use of arbitration agreements are increasing. However, most employers are not concerned with “jury review.”  Just a handful of cases ever see a court room. Only 2.9 percent of federal employment cases even reach trial! The reasons for their use are complicated but part of it is that the cost of defending cases has skyrocketed. Indeed, from 2010 to 2013, the median time from filing to trial of a civil case in federal court in Connecticut has risen from 27.9 months to 35.7 months (nearly three years!).  Arbitration is much quicker and more cost effective for both sides.

As to the second premise — that the clauses are presented in circumstances that are “coercive” — I suppose that is up for debate. But it depends on your definition of “coercion”.  The legal definition of coercion typically means through “force” or “duress”.  The classic law school example of being forced to sign a contract at gunpoint is clearly “coercion.”  But an employee who wants a job and signs an agreement if he wants the job? In my view (and many courts), that is not “coercion.”

But let’s agree to disagree on this point and move on.

Despite the significance of an employee signing away a legal right that lies at the very base of our civil justice system, there is almost never any effort to explain to the employee what the waiver or arbitration agreement means or even that they are giving up any right at all. In fact, quite the reverse is the rule.

“Almost never”?  That statement barely deserves any credence.  There is no evidence to support this statement.  And additionally, what does it mean to “explain to the employee what the waiver” means? Typically, the provisions state that any claim out of an employee’s employment must be submitted to arbitration instead of the courts. Isn’t that enough? (Yes, say the courts.)

Regardless, employers have been advised to make sure that arbitration agreements are highlighted and not merely stuck in page 32 of a handbook.

And the editorial seems to ignore the positive attributes that alternative dispute resolution can bring to the employee as well.  Arbitration has a place in our “civil justice system” too.  (Indeed, in a 2012 editorial, the Law Tribune voiced its support for passage of the Uniform Arbitration Act. The drafters of that act noted that “the enforceability of arbitration agreements cannot be treated any differently from the enforcement of contracts generally under state contract law” and avoided specific references to employment agreements.)


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Sure, the headline is click-bait. Designed to get your attention.

But it’s actually true.  Connecticut law requires employers in Connecticut to pay their employees on a weekly basis.  Conn. Gen. Stat. Sec. 31-71b states it in sorta plain English.

[E]ach employer … shall pay weekly all moneys due each employee on a regular pay

Last week, a story caught my eye and the attention of some of my colleagues.  As reported first by Bloomberg BNA, IBM has stopped providing the comparison information that is typically required in separation agreements for older workers under the Older Workers Benefit Protection Act.

You may be wondering how that is possible.  Robin