Mark Miller to Present How to Properly Conduct an Internal Investigation

On April 16, 2015, Bowers Harrison attorney, Mark E. Miller, will present on How to Properly Conduct an Internal Investigation. The seminar is sponsored by the Evansville-Area Human Resource Association and will provide employers with information on relevant issues and practical tips on how to investigate complaints of discrimination, harassment, and requests for accommodation.

 

For registration information, please contact Mark E. Miller or visit the Evansville-Area Human Resource Association website.

Are LinkedIn Contacts Protectable Trade Secrets?

Many professionals maintain robust social media accounts to raise their public profile and generate business – often at the encouragement of their employers. As just one example, LinkedIn, with its more than 347 million users, proclaims itself as the “World’s Largest Professional Network” and the leader among those social networks aimed at professionals. However, an employee’s LinkedIn contact list can be a valuable asset generated while on the job, from which competitors can gave insider information. Protecting that information is now the subject of a federal court case in Los Angeles, California.

In Cellular Accessories for Less, Inc. v. Trinitas LLC, No. 12-06736 DDP SHX, 2014 WL 4627090, (C.D. Cal., Sept. 16, 2014), Cellular Accessories for Less, Inc. (“Cellular”) sued its former employee and his new employer in California federal court, alleging that they violated various trade secret protections, including by continuing to use the former employee’s LinkedIn contacts and related data developed while he was an employee of Cellular. Cellular argued that the former employee had signed agreements that contained nondisclosure, noncompetition, and confidentiality provisions protecting “proprietary information” and trade secrets of Cellular, including the LinkedIn contacts and related data. The former employee argued that the LinkedIn contacts were not trade secrets, because they could be viewable by the public.

In its opinion, the court stated it could not decide the issue without a trial for two reasons. First, the court needed to know “to what degree the former employee’s LinkedIn contacts were indeed made public”, acknowledging that different LinkedIn users have different privacy settings managing what is “public”. Second, the court needed to know that if the former employee’s contacts were in fact public, “whether it was done with Cellular’s explicit or implicit permission.”

Commentary:

When a business is asked about protecting its proprietary and trade secret information, it often is quick to point to its “blackbook” of existing client/customer and potential leads as information that must be protected. However, businesses should understand that their employees’ LinkedIn profiles often provide the same information to competitors. Just as businesses adapt, the legal system must recognize those changes and allow businesses to protect the electronic age’s version of the blackbook (i.e., social media contact lists). The California federal court’s ruling suggests a business may claim its employees’ LinkedIn contact lists are proprietary information and trade secrets and forbid the use of those lists by a former employee and/or competitor if the employer 1) explicitly forbids its employees from allowing the public to view those LinkedIn contacts and 2) has a strong nondisclosure, noncompetition, and confidentiality agreement with employees.

For information on protecting your business’ proprietary and trade secret information, including client and pricing lists, please contact us.

Executive Action on Immigration Part 10: What Businesses Can Do to Start Preparing

The changes to the immigrant and nonimmigrant visa programs discussed in prior posts offer potentially huge benefits to businesses, employees, and foreign investors. However, the programs and initiatives proposed in the President’s executive actions are not yet effective, and will begin to be implemented in the near future. That being said, businesses can use this time to prepare themselves and their employees to be able to quickly benefit from the executive actions as soon as they are made available. Obviously, each business is different and has their own specific needs, concerns, and objectives in the realm of immigration.

During this time, businesses and employers should address and analyze their business’ specific needs and costs in regards to immigration issues and foreign workers. Businesses should begin by asking themselves what are their coming needs are in regards to labor and immigration. Could your business benefit from bringing in skilled foreign workers? How much is your company paying to renew visas and work authorizations for your current employees? Are you possibly employing undocumented workers? If so, can you reduce your liability by helping your undocumented workers obtain legal status? For foreign investors, do you currently qualify for a national interest waiver, and if not will you be able to qualify for parole when available? It is advisable that you discuss your situation with a skilled immigration attorney who can help you come up with a comprehensive plan to address the immigration needs specific to your business and employees to take full advantage of the upcoming initiatives.

Most importantly, your business should be proactive in educating your employees as to the availability of the upcoming programs and initiatives so that they can personally begin to take steps to determine their eligibility, and prepare themselves to take advantage of the programs as soon as they become available. The more educated and proactive your employees are in dealing with their own immigration issues, the less complications your business will face in the future. It is important to recognize that even with these executive actions the immigration process for individuals and businesses is incredibly complicated, and even the smallest errors in the process can have drastic consequences. Having an immigration attorney come to your facility and inform your employees of their immigration options in regards to the new initiatives is a great cost-effective way to begin positioning your company to take full advantage of the President’s executive actions regarding immigration.

This is the final post of a ten part series focusing on the President’s new executive actions regarding immigration. Prior posts have addressed the new executive actions’ impact on individuals and families, and on U.S. businesses and foreign investors.

If you have questions on this issue or any other immigration law issue, please contact us at (812) 426-1231.

Executive Action on Immigration Part 8: Specific Changes to Visa Procedures Affecting U.S. Businesses Cont’d.

Today’s post continues the prior discussion of specific changes to immigrant and nonimmigrant visa procedures and their effect on U.S. businesses. In addition to the changes addressed in the prior post, in accordance with the President’s announcement on his executive actions on immigration, USCIS will also begin to implement the following changes.

Expansion of OPT program for STEM graduates. USCIS will work with ICE to develop regulations to expand and extend the use of optional practical training (OPT) for foreign students that graduate from U.S. universities with a degree in science, technology, engineering, and mathematics to improve their ability to remain in the country in a work-authorized status.

Clarification and improvement of the L-1 visa process. USCIS will provide guidance on the L-1B visa program for foreign workers with “specialized knowledge” who transfer from a company’s foreign office to its office in the United States. USCIS will also work to improve the adjudicative process to improve consistency and enhance companies’ confidence in the program.

As with the changes addressed in the prior post, the timing of the implementation of these specific changes are subject to the issuance of necessary guidance and regulation from USCIS, which can take upwards of a year to be issued.

This is part eight of a ten part series focusing on the President’s new executive actions regarding immigration. Tomorrow’s post will discuss the changes specifically impacting foreign investors and entrepreneurs.

If you have questions on this issue or any other immigration law issue, please contact us at (812) 426-1231.

Executive Action on Immigration Part 7: Specific Changes to Visa Procedures Affecting U.S. Businesses

Yesterday’s post focused on the proposed general changes by USCIS to the immigration regime as a whole and their effect on U.S. businesses and employees. Today’s post will briefly begin to discuss the changes to specific immigrant and nonimmigrant programs that businesses, employees, and foreign investors will be able to take direct advantage of and benefit from. This topic will continue to be discussed in subsequent posts. Specifically, today’s post will address changes to increase portability for skilled workers and to the H1-B visa program.

Portability for Skilled Workers. USCIS will work on regulatory changes to provide clarity on adjustment portability and to remove restrictions on natural career progression and job mobility. Currently, employees with approved employment-based I-140 petitions often are forced to wait years for their immigrant visa to become available so that they and their family members can obtain lawful permanent residence. These changes will allow workers with approved employment-based petitions to change jobs more easily and avoid the lengthy adjustment delays that workers currently face.

Work Authorization for Spouses of H-1B Visa Holders. USCIS will finalize a rule to allow certain spouses of H-1B visa holders to obtain work authorization. This is relief for many families of individuals that are forced to wait lengthy periods to adjust status in the United States, and during this time are forced to rely on solely one income. When effective, certain spouses of H1-B visa holders can seek work authorization and help support their families.

As with the general changes to the immigration regime as a whole, the timing of the implementation of these specific changes are subject to the issuance of necessary guidance and regulation from USCIS and the Department of State, which can take upwards of a year to be issued.

This is part seven of a ten part series focusing on the President’s new executive actions regarding immigration. Tomorrow’s post will continue the discussion of the changes to specific immigrant and nonimmigrant programs that businesses, employees, and foreign investors will be able to take direct advantage of and benefit from.

If you have questions on this issue or any other immigration law issue, please contact us at (812) 426-1231.

Executive Action on Immigration Part 6 – General Changes Affecting U.S. Businesses

My previous posts on the President’s executive actions regarding immigration have focused on the new opportunities that will be available to individuals to remain in the country and work here legally. However, the proposed executive actions will also have a substantial impact on U.S. businesses and foreign investors. One of the primary goals of the executive actions is to modernize, improve, and clarify immigrant and nonimmigrant programs to grow the economy and create jobs, which will be accomplished through regulatory changes and corroboration between USCIS and the Department of State. This post highlights a couple of the broader changes to the immigrant and nonimmigrant visa procedures that will have more a general and indirect effect on businesses. These general changes include:

Allocation of immigrant visas to match demand. USCIS will work with the Department of State to more effectively allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals based on demand. When the government is unable to issue the allocated immigrant visas for preference immigrants in a fiscal year for which there is a demand, the Department of State will apply those unused immigrant visas in subsequent years. This will reduce backlog for those seeking a permanent resident visa, and should reduce the cost to employers who often are financially responsible for the cost of renewing temporary work visas and work authorization documents during the often lengthy time an employee’s LPR visa is being processed.

Modification and modernization of the labor market test. USCIS will work with the Department of State and the Department of Labor to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability. This includes modernizing recruitment and application requirements for its 10-year-old PERM program, which will come as a relief to many employers who for years have been forced to comply with an antiquated recruitment system with no relation to industry recruitment practices. The Department of Labor is also entertaining the idea of premium processing for PERM applications, which could be an immense benefit for foreign nationals whose nonimmigrant visas are running out of time.

These general changes are designed to modernize and improve efficiency and effectiveness of the immigration regime as a whole, which can reduce costs and confusion for businesses and employees that have immigration needs. The timing of the implementation of these changes is subject to the issuance of necessary guidance and regulation from USCIS and the Department of State, which can take upwards of a year to be issued.

This is part six of a ten part series focusing on the President’s new executive actions regarding immigration. Tomorrow’s post will focus on the changes to specific immigrant and nonimmigrant programs that businesses, employees, and foreign investors will be able to take direct advantage of and benefit from.

If you have questions on this issue or any other immigration law issue, please contact us at (812) 426-1231.

Executive Action on Immigration Part 2: The Expansion of the DACA Program

The new executive actions regarding immigration will, among other changes, expand the Deferred Action program to allow many more individuals to be able to take advantage of the program’s benefits. Specifically, the Deferred Action for Childhood Arrivals program (DACA), will be modified to remove the upper age restriction on eligibility for the program. Previously, individuals must have been born after June 15, 1981 to be eligible. The removal of the age restriction allows individuals born prior to this date to also qualify for the program, provided that they meet the other eligibility requirements. Additionally, the continuous residency requirement will be changed to require continuous residence in the United States since January 1, 2010 instead of the prior requirement of June 15, 2007.

These changes are planned to be implemented within approximately 90 days of President Obama’s announcement on November 20, 2014, and will open up eligibility for the program to millions of individuals. The benefits of participating in the Deferred Action program is that individuals will be able to remain in the United States without fear of deportation, and, significant to both individuals and employers, be able to obtain a social security card and work authorization to work legally here in the U.S. Please remember that these changes are not effective yet, so you should NOT pay anyone to fill out or submit an application for you. USCIS will announce then the changes will be effective and release the forms on its website when available.

This is part two of a ten part series focusing on the President’s new executive actions regarding immigration. Check back in tomorrow for a discussion of the new Deferred Action for Parental Accountability program (DAPA) that will allow certain parents of U.S. citizens and lawful permanent residents to remain in the United States.

If you have questions on this issue or any other immigration law issue, please contact us at (812) 426-1231.

Executive Action on Immigration – What it Means for Individuals and Businesses, Part 1

On November 20, 2014, President Obama announced a series of executive actions aimed at alleviating the growing and complicated issue of immigration here in the United States. The primary goal of these executive actions are to strengthen protection against illegal immigration at our borders, prioritize enforcement resources to focus on deporting criminals, offer certain qualified undocumented immigrants an opportunity to remain in the United States without fear of deportation, and streamline immigration procedures to boost the economy and promote naturalization. It is important to note that President Obama’s initiatives are not effective yet, but are planned to be implemented in the coming months. These initiatives, when effective, will undoubtedly have a significant impact on individuals and families who will be given new opportunities to obtain legal status in the United States, as well as U.S. businesses and foreign investors who stand to benefit from proposed changes regarding immigrant and nonimmigrant visas. While nothing can actually be done until the initiatives are implemented, there is plenty that both individuals and businesses can begin doing in order to prepare for the coming changes and new opportunities.

This post is the first in an ten part series dedicated to dissecting and explaining the programs and initiatives set forth in the President’s announcement of his executive actions regarding immigration, and what they mean for both individuals and businesses that stand to benefit from their implementation. Over the next couple of weeks, I will be explaining the new opportunities that individuals and family members of U.S. citizens and lawful permanent residents will have to remain in the United States and to work legally while here, including the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of the Deferred Action for Parental Accountability (DAPA) program. I will also be explaining the administrative guidance and regulatory changes regarding immigrant and nonimmigrant visa procedures that will have a significant impact on U.S. businesses and foreign investors, including the expansion of work and training visa programs and the new opportunities for foreign entrepreneurs and skilled workers to come and remain in the United States. I also hope to provide some guidance to both individuals and businesses on how they should begin preparing for the executive actions so that they are in the best position possible to benefit from the new programs and initiatives as soon as they become available.

Check back in tomorrow for a discussion of the changes to the Deferred Action for Childhood Arrivals (DACA) program that will increase eligibility in the program for millions of individuals.

If you have questions on this issue or any other immigration law issue, please contact us at (812) 426-1231.

Mark Miller to Present on Diversity, LGBT, and Religious Issues Affecting Employers

On November 13, 2014, Bowers Harrison, LLP attorney Mark E. Miller will give presentations on New HR Developments for Diversity, Religion, and LGBT matters. The seminar is sponsored by the Evansville-Area Human Resource Association and will provide employers with information on relevant issues and practical tips on how to promote diversity and handle common questions relating to accommodating religion and LGBT matters in the workplace.

Please contact Mark E. Miller or visit New HR Developments for Diversity, Religion, and LGBT matters for registration information.

Does An Employer Have to Give Light-Duty Jobs To A Disabled Worker As A Reasonable Accommodation?

On June 27, 2014 a Federal District Court Judge, Catherine C. Eagles, in Greensboro North Carolina, granted summary judgment for the employer in the case of EEOC v Womble Carlyle Sandridge & Rice, LLP (M.D.N.C, June 26, 2014) holding that the employer did not have to create a light-duty job as a reasonable accommodation in an Americans With Disabilities Act (ADA) case. Thereby, the judge rejected the Equal Employment Opportunity Commission’s (EEOC) claims.

Facts

Ms. Jennings was an office support services assistant (“SSA) for the law firm of Womble Carlyle located in Winston-Salem, North Carolina.  She was diagnosed with breast cancer during her employment. Her job description required her to lift or move items weighing up to seventy-five (75) pounds.  After a number of years, in 2008, Ms. Jennings developed a cancer-related condition that impaired her circulatory and immune systems.  As a result she was unable to lift more than ten (10) pounds at first.  Later a medical restriction prohibited her from lifting more than twenty (20) pounds.  However her job required her, as a condition of employment, to lift up to at least seventy-five (75) pounds.

After a number of layoffs, the SSA staff was light, requiring the remaining employees who were SSA’s to work independently.  For a time, Ms. Jennings was able to perform some of her duties, while avoiding the really heavy lifting and by modifying her lifting techniques. However, she could not perform many of her SSA job duties, as she simply could not work alone. The problem was that many of her job duties required the lifting of heavy files.

In February, 2011, Womble Carlyle placed Ms. Jennings on medical leave, as “she could not lift seventy-five pounds.”  After six months with no improvement, the law firm terminated Jennings’ employment.

The EEOC brought a lawsuit for Ms. Jennings claiming that the law firm failed to accommodate her disability in violation of the ADA.

Summary Judgment Decision

Womble, Carlyle moved for summary judgment asking the Court to dismiss the case on the basis that the employee could not perform the essential functions of her job without a reasonable accommodation and that she was not a qualified individual under the ADA..  The Court agreed.

The Court reached its decision concerning whether Ms. Jennings was a “qualified individual” under the ADA by engaging in a two-part analysis:

1. Was lifting twenty (20) pounds an essential job function?

2. Can the employer reasonably accommodate this employee with regard to her lifting restrictions?

First, the Court found that lifting more than twenty (20) pounds was, in fact, an essential function of the SSA job based, in part, on the job description.

Second, the Court found that certain accommodations for Ms. Jennings would substantially modify and alter the job function to the extent that it was not reasonable for the employer as it would fundamentally change the SSA position. Specifically, the EEOC’s proposed solutions were contrary to the well-established principle that the ADA does not require an employer to either create a “modified light duty position” or “relocate essential functions” to another employee. The Court, therefore, held that the employer was not required to make such accommodations by modifying her job to create a light-duty job.

Editorial Comment:   This Court decision emphasizes the importance of creating job descriptions that are accurate and detailed in setting forth the essential functions of a job, especially in the areas of lifting, standing, every day attendance, shifts and other essential job functions needed to perform the job.

Also, in cases involving disabilities, an employer must be careful to have medical restrictions documented, while engaging in an “interactive process” to show that it determined if there were any reasonable, legally necessary accommodations that it did not consider.