Employee classification issues have been a recurrent topic of ours, and with all the class action litigation arising from independent contractor and other classifications, we have had no shortage of opportunities to remind companies of the potential risks inherent in other-than-employee classifications. But just in case anyone in the business community has not heeded these warnings, the Department of Labor has just upped the ante on misclassification challenges, sending a shot across the bow of any business using or considering the use of independent contractors to meet its manpower needs. Continue reading this entry
Can businesses use unpaid interns? Over the past few years, this is a frequent question from corporate clients and a mainstay subject in the legal blogosphere (including right here). The heightened interest stemmed from a rash of well-publicized class action lawsuits brought (mostly in New York City) by unpaid interns who claimed that, during their internships with various businesses, they really functioned like employees and thus were entitled to minimum wage and overtime pay for the time served. Many of these lawsuits came on the heels of an intern “win” in 2013, where a federal district court judge ruled that, under federal and New York law, the interns were indeed employees of a film studio and authorized the case to proceed on a class basis under both federal and New York law. The studio appealed that ruling to the United States Court of Appeals for the Second Circuit (covering Connecticut, New York, and Vermont). Continue reading this entry
Employee trade secret theft is a serious problem, and getting worse. According to an analysis of federal court cases filed over a 58-year period, 85 percent of trade secret theft was committed by employees or business partners. In addition, the cases doubled from 1988 to 1995 and again from 1995 to 2004, with a trajectory to double once more by 2017. It was reported in 2013 that suits brought against former employees over restrictive covenant agreements increased 60 percent over the prior decade. Numerous studies, such as this one, peg the annual cost of trade secret theft at hundreds of billions of dollars. Continue reading this entry
In a recent trail blazing move, Boston’s Mayor Martin J. Walsh signed an ordinance establishing paid parental leave for city employees. This ordinance distinguishes Boston — known for some other revolution-inducing tactics — from the United States, most individual states, and nearly every other city nationwide. In fact, in the preamble to the new ordinance, the city council of Boston highlights the fact that the United States is one of only three countries that lacks a law requiring employers to fund parental pay. Only a handful of cities, Seattle among them, have such leave laws and only three states — New Jersey, California, and Rhode Island — currently offer paid family leave. Boston’s new ordinance aligns the city, however, with approximately 178 countries worldwide that offer some form of paid parental leave. Continue reading this entry
A recent binding decision issued by the Administrative Appeals Office (AAO) has complicated even further the confusing rules governing employer obligations in the H-1B nonimmigrant visa program.
Part of U.S. Citizenship and Immigration Services (USCIS), the AAO conducts administrative review of negative agency decisions on certain types of immigration benefits, including denials and revocations of nonimmigrant visa petitions.
The impact of AAO decisions is usually limited because most of its rulings are not binding on future cases and do not change USCIS policy. But a small number of AAO rulings are designated as precedent decisions that become binding. A recent AAO decision affecting H-1B employers is such a decision. Continue reading this entry