HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

More than Just a Fable – Why the “Cat’s Paw” Matters for Employers

Posted in Americans with Disabilities Act, Cat's Paw Liability, Discrimination, Retaliation, Terminations, Workplace Policies

La Fontaine's Fables - Monkey and the Cat

The Fable

“The Monkey and the Cat” is a fable (dating back to the 17th century or perhaps earlier) about a monkey who persuades a cat to pull chestnuts from the embers of a fire, only to take the reward for himself and leave the cat nursing a burnt paw.  The fable is the source of the English idiom “cat’s paw” – essentially, one who does another’s dirty work.  The story of the clever monkey and the unsuspecting cat has also worked its way into modern employment discrimination law.  “Cat’s paw liability” describes a scenario when an employee or supervisor, motivated by discriminatory intent, influences an otherwise unbiased decision-maker to take an adverse employment action against another employee.  In the end, the employer is still held responsible.  Employers should heed the moral of the story and take steps to avoid the fate of the duped feline. Continue Reading

USCIS Offers Additional Guidance on the L-1B Specialized Knowledge Visa Program

Posted in Immigration

Shakespeare using laptop.Tomorrow, Friday, April 3, 2015, is Good Friday on the Christian calendar (except for Orthodox believers), and sundown marks the beginning of the Jewish feast of Passover.  This rare coincidence of religious celebrations brings to mind Shakespeare’s observation that, “Ignorance is the curse of God; knowledge is the wing wherewith we fly to heaven.”  And though it may well be true that knowledge is a means to immortality, it might not be sufficient for a foreign worker to obtain an L-1B visa, reserved for individuals with “specialized knowledge” of a company’s products, policy’s or procedures.  The L-1B visa has been mired in confusion, high denial rates, and inconsistent application for years, due in part to a lack of clarity as to what counts as “specialized knowledge.” The bard, and our readers, can now take some comfort in the fact that on March 24, 2015 USCIS released its draft Policy Memorandum (“L-1B Memo” or “Memo”) offering clarification on the definition of “specialized knowledge.”  The long awaited L-1B Memo is welcome news for employers and immigration practitioners who have seen an increase in the denial rates of L-1B petitions, an increase in the numbers of Requests for Additional Evidence (RFEs), and a lack of clarity and consistency on the part of USCIS adjudicators in reviewing L-1B petitions. Continue Reading

Supreme Court Sets New Standard for Pregnancy Discrimination Claims

Posted in Pregnancy Discrimination

stock-photo-56688182-pregnant-businesswoman-using-digital-tablet-in-office[2]In a 6-3 decision, the United States Supreme Court gave new life yesterday to former UPS driver Peggy Young’s claim of unlawful pregnancy discrimination when it vacated the Fourth Circuit Court of Appeals’ decision affirming the dismissal of Ms. Young’s claim against her former employer.  The high court sent the case back to the court of appeals with the instruction that it should apply a new standard to determine whether or not Ms. Young has set forth a valid claim against UPS under the Pregnancy Discrimination Act of 1978 (PDA). Continue Reading

Reminder: New Jersey “Ban the Box” is Now in Effect

Posted in Hiring

Reviewing a Criminal RecordOn March 1, 2015, the Opportunity to Compete Act (the “Act”) went into effect in New Jersey.

Governor Chris Christie signed the Act into law last year in an effort to preclude public and private employers with 15 or more employees from asking about a job applicant’s criminal record until after the first job interview, unless the applicant voluntarily discloses such information. Continue Reading

DOL Expands FMLA Rights to Same-Sex Marriages: Are You Prepared for the March 27, 2015 Rollout?

Posted in Family Medical Leave Act

Same Sex marriageOn February 25, 2015, the Department of Labor (DOL) announced its intention to make a critical modification to the regulations implementing the Family and Medical Leave Act (FMLA) by expanding FMLA rights to employees in legally recognized same-sex marriages regardless of where the employees live. Continue Reading

Restrictive Covenants in the Construction Industry: An Often Overlooked and Underutilized Source of Protection

Posted in Restrictive Covenants

Constructin handshake15624575 Restrictive covenants come in many forms; they can be stand-alone agreements, such as a confidentiality agreement, or they can be included in various types of contracts, such as noncompete or nonsolicitation provisions in employment contracts, asset purchase agreements or stock purchase agreements. Continue Reading

Federal Judge Enjoins President’s Immigration Action

Posted in Immigration

Male Judge In CourtroomOn Monday, February 16th, a federal judge in Texas ruled in favor of the state of Texas and 25 other states to halt President Obama’s executive action on immigration, which was announced in November 2014.   HRLegalist previously noted that the U.S. Citizenship and Immigration Service would begin accepting applications for the expanded version of the Deferred Action for Childhood Arrivals (DACA) initiative as of February 18, 2015.  However, the administration has temporarily suspended this program in order to comply with the federal injunction.

The Texas judge found that the administration’s programs would impose major burdens on states, straining state budgets, and that the administration had not followed required procedures for changing federal rules as mandated by the Administrative Procedures Act.   The judge stated that the Government has “clearly legislated a substantive rule without complying with the procedural requirements under the Administrative Procedures Act.”

Although the Obama Administration is appealing the order, USCIS will not begin accepting requests for the expanded program.  However, the court’s injunction does not affect the existing DACA program currently in place. Individuals may continue to come forward and request an initial grant of DACA or renewal of DACA under the guidelines established in 2012. Check back with HRLegalist for additional updates.

Paid Sick Leave Is a Reality In Philadelphia: How Will It Affect Your Business?

Posted in Paid Sick Leave

paid sick leave (2)Philadelphia has joined the 16 cities and three states that require private employers to provide employees with mandatory paid sick leave. The city ordinance, which was signed into law by Mayor Nutter on February 12, 2015, affects employers that employ at least 10 employees for 40 or more weeks in a calendar year. Mayor Nutter vetoed similar legislation in 2011 and 2013 based upon concerns that employers had yet to recover from the recession. The ordinance takes effect on May 13, 2015. Continue Reading

Managing Workplace Romances to Minimize the Perils of Valentine’s Day

Posted in Workplace Policies

With love in the air and Cupid circling the office, employers should be wary of sexual harassment lawsuits this Valentine’s Day. A 2013 survey conducted by the Society for Human Resource Management (SHRM) found that 43% of employers struggled with managing office romances, especially those that have gone awry. There are several cases over the years where an employee has received unwanted affection on Valentine’s Day from co-workers or supervisors, and employers have been ill-equipped to handle the fall-out. Continue Reading

Illegal Immigrants and DACA: What Is It and Why Is It Important?

Posted in Immigration

In our blog post on November 17, 2014,  we summarized the substance of the White House announcement laying out a number of executive actions that President Obama is taking to address the fact that nearly twelve million illegal immigrants currently reside in the United States.  Among those actions is an expansion of the DACA program.  But, what is DACA and why is it important for employers? Continue Reading