WASHINGTON -- U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee. These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions. H-1B Visas: USCIS Announces Interim Rule on H-1B Visas
Wednesday, March 19, 2008
H-1B Visas: USCIS Announces Interim Rule on H-1B Visas
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Hearing USCIS DHS Form I-90 Form I-797C L02773316 L01432062 L24033516
USCIS DHS Form I-90 Form I-797C L02773316 L01432062 L24033516
The American Bar Association Section of Public Utility, Communications and Transportation Law 321 North Clark Street Chicago IL 60610-4714 The United States of America
The United States of America Labor Committee’s report reviews important developments in the past year under the federal labor and employee benefit laws. In the employment law section, a decision of the U.S. Supreme Court that expands Title VII's definition of retaliation is of particular interest. This section of the report also addresses significant lower court decisions, including many of first impression, under the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and Title VII. Finally, it analyses several National Labor Relations Board (NLRB) decisions and a recent division on whistleblower activity protected by the Sarbanes-Oxley Act.
Turning to employee benefits, the report addresses a Supreme Court decision, which again reviews the scope of equitable relief available under ERISA and, in particular, where a welfare plan seeks to enforce its subrogation rights. This section of the report also calls attention to new pension legislation and reviews a number of important decisions in two areas of continued significance to litigators: cash balance plans and so-called employer stock drop cases.
The tenth Circuit Reverses Verdict , Finds Older Discharged Employees' Testimony Not Outweighed by Danger of Prejudice
The Tenth Circuit ruled in Mendelsohn vs. Sprint / United States Management Co. that the probative value of the testimony of other older employees terminated in a reduction in force (RIF) was not outweighed by the danger of undue prejudice to the employer. There, the plaintiff, who was the oldest member of her unit at the time of the RIF, brought an ADEA action alleging that she had been terminated because of age. She intended to use the testimony of five other discharged employees over the age of forty to demonstrate a "pervasive atmosphere" of age discrimination. The district court found the testimony inadmissible because the employees were not "similarly situated" to the plaintiff, i.e., under the same manager. After an eight-day trial, the jury found for the employer.
On appeal, the Tenth Circuit ruled that the district court abused its discretion in excluding such testimony, finding " that the evidence [plaintiff]sought to introduce is relevant to [the employer's] discriminatory animus toward older workers, and the exclusion of that evidence unfairly inhibited [plaintiff] from presenting her case to the jury". As the court explained: "because direct testimony as to the employer's mental processes seldom exists,...evidence of the employer's general discriminatory propensities may be relevant and admissible to prove discrimination."
In Syverson v. International Business Machines Corp., the Ninth Circuit held that IBM failed to comply with the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. 626(f)(1), because the language in a waiver given to employees terminated in a RIF was not "written in a manner calculated to the understood" by the average employee. The waiver included a release and a covenant not to sue that, according to the court, engendered confusion over whether employees could pursue ADEA claims. Thus, the employees did not "knowingly and voluntarily" waive claims under ADEA, as required by the OWBPA.
The waiver stated that the employee released all claims, including "claims arising from the [ADEA]," and contained a "covenant not to sue" under which the employee "agreed ... to never institute a claim at any kind against IBM...related to...employment with IBM" other than an "action based solely under the [ADEA]." The court found that to a law reader, and even to attorneys unfamiliar with the technical distinction between a release and a covenant not to sue, the waiver's language could seem contradictory and imply retention rather than a release of ADEA claims. The court noted that the distinction between a release and a covenant not to sue is particularly murky when both are included in a single document. It thus held that the waiver did not satisfy the OWBPA's requirement that waivers be written in a "manner calculated" to be understood by the average affected employee.
In Timmons v. General Motors Corp., plaintiff brought an action against his employer for involuntarily placing him on disability leave. Plaintiff was diagnosed with multiple sclerosis in 1992, eighteen years after he had started employment. By 1999, he was promoted to a manager position that required driving and the ability to travel as much as 50 percent of the time. As his condition worsened, his employer accommodated him by providing a motorized scooter, renting scooters for him while on business trips, allowing him to work from home, providing with modified computer equipment, and installing automatic door openers. However, in 2003, he was placed in disability leave after his examination by a company occupational environmental medicine specialist. Plaintiff then brought suit under the ADA on a disparate treatment theory. After the district court granted summary judgment against him, plaintiff appealed.
On appeal , the Seventh Circuit affirmed. The court held that plaintiff failed to carry the burden of showing that his employer took adverse action against him because of his disability. The court determined that even assuming plaintiff was a qualified individual with a disability , he did not show he was "meeting [his employer] 's expectations, nor is there any evidence suggesting that [his employer] put him in a leave because of his disability rather than his inability to perform certain critical aspects of his job.
In Burlington Northern & Santa Fe Railway Co. v. White, a unanimous Supreme Court expanded Tile VII' s definition of retaliation, thereby resolving a long-standing circuit split. The court held that an employer's action is retaliatory if a reasonable employee or applicant would find the challenged actions to be "materially adverse," it would [dissuade] a reasonable worker from making or supporting a charge of discrimination."
Plaintiff alleged that the defendant changed her job responsibilities and suspended her after she complained that her supervisor made insulting and inappropriate remarks about women. The plaintiff's supervisor was disciplined and the plaintiff's pay or benefits but was considered "dirtier" and less prestigious. The plaintiff later was suspended without pay for thirty seven days for alleged insubordination but was reinstated with back pay. Thereafter she brought retaliation claims regarding both the job change and suspension and ultimately prevailed on both claims before a jury. The Sixth Circuit affirmed, but the en banc court differed as to the proper standard to apply in Title VII retaliation claims.
The Supreme Court of the United States of America affirmed the judgment, concluding that both the reassignment and suspension constituted retaliation in violation of Title VII. In so doing, the Court explained the difference between Title VII's anti retaliation and anti discrimination provisions. The antidiscrimination provision explicitly limits its scope to actions that affect employment or alter the conditions of the workplace, while the ant retaliation provision does not contain such limiting words. Thus, the Court held that "the scope of the anti-retaliatory acts and harm". In holding that actionable retaliation occurs if a reasonable employee would find the challenged action to be "materially" adverse, the Court explained that is was important to separate significant from trivial harms and further that retaliation determinations must be based in the perspective of a reasonable employee in order to be objective and judicially administrable.
Applying this standard, the Court found that the jury could reasonably conclude that the plaintiff s reassignment of responsibilities would be materially adverse to a reasonable employee because the new job was dirties and more arduous. The court also found that he plaintiff's suspension would be materially adverse to a reasonable employee because the new job was dirtier and more arduous. The Court also found that the plaintiff's suspension would be materially adverse to a reasonable employee, even though she was ultimately reinstated with back pay, because many reasonable employees would find a month without a pay check to be a serious hardship.
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Christian Milan (jurisdoctorstud@aol.com) L02773316 L01432062 L24033516 is the author of many books on legal writing and employment authorizations in the United States of America including Legal Writing in Plain English and The Elements of Legal Style. He is also editor chief of all current editions of Caucasian's Law Dictionary. To see video clips from his interviews with judges, visit http//journals.aol.com/jurisdoctorstud.
Tags: USCIS DHS Form I-90 Form I-797C L02773316 L01432062 L24033516 jurisdoctorstud Christian Milan
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