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Recent Updates

Mandatory E-Verify for Contractors In Effect. On September 9, 2009, the Fourth Circuit issued a per curiam order denying the Chamber of Commerce’s request to delay the effective date of Executive Order 12989 pending an appeal of the August 25, 2008, ruling by U.S. District Judge Alexander Williams, Jr.  Judge Williams ruled that, notwithstanding the many and varied arguments to the contrary, the government can in fact mandate participation in E-Verify for federal contractors. See Chamber of Commerce, et al. v. Napolitano, et al., Civil Action No. AW-08-3444, in the United States District Court for Maryland, Southern Division. <More>

The EFCA ”Compromise.” On July 16, 2009, the New York Times reported that several Democratic Senators were considering dropping the highly controversial “card check” provision of the Employee Free Choice Act (“EFCA”)--which effectively eliminates the right to a secret ballot for purposes of determining whether a union represents a bargaining unit of employees--and inserting in its place a series of “compromise” provisions designed to make it easier for unions to organize employers. <More>

DHS Abandons No-Match Rule. On July 8, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that DHS was rescinding its hotly contested “No-Match” regulation and instead throwing its support behind mandatory E-Verify participation for federal contractors. “E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. <More>

No Mixed-Motive Under the ADEA. On June 18, 2009, the United States Supreme Court issued its decision in Gross v. FBL Financial Services, Inc., holding that the Age Discrimination in Employment Act (“ADEA”) does not permit a plaintiff to proceed under the “mixed-motive” theory available in Title VII cases. Rather, an ADEA plaintiff must show that age was a “but for” reason for the challenged employment decision. <More>

Texas Covenants Easier to Enforce - Again. On April 20, 2009, the Texas Supreme Court waded into the field of covenants not to compete yet again. In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, the court held that an explicit promise to provide confidential information is not required for a covenant not to compete to be enforceable, provided the nature of the employment for which the employee is hired will reasonably require the employer to provide confidential information to the employee for the employee to accomplish the contemplated job duties. <More>

The New Form I-9. On August 7, 2009, U.S. Citizenship and Immigration Services (USCIS) issued an updated copy of the revised April 3, 2009, Form I-9. The August 3, 2009, form is substantively the same as the April 3, 2009, Form I-9, which, among other things, made several changes to the list of documents acceptable as “List A” documents (i.e., those that establish both identity and authorization to work) and required that all documents be unexpired when presented. Employers may no longer use prior versions of the Form I-9. The most current version of Form I-9 is available here, and the final rule is available here. <More>

New FMLA Rules. On November 17, 2008, the Department of Labor issued a final rule implementing two new military family leave entitlements under the Family and Medical Leave Act (“FMLA”): (1) military caregiver leave (a.k.a., covered servicemember leave); and (2) qualified exignecy leave. The final rule also overhauls several of the now 15-year-old “core” provisions of the FMLA. The new rules went into effect on January 16, 2009. <More>

ADA Radically Expanded. On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (“ADAAA”), amending the Americans with Disabilities Act of 1990 (“ADA”). The ADAAA significantly expands the number of people protected under the ADA, effective January 1, 2009. Of particular note is the ADAAA’s radical change to the “regarded as” prong of the ADA. <More>

Three Year TNs. Effective October 16, 2008, U.S. Citizenship and Immigration Services (“USCIS”) has issued a Final Rule extending the maximum length of admission of a foreign national TN professional to three years. The previous maximum length was one year. The text of the Final Rule is available in the Federal Register here. The new rule means fewer extensions, less cost, and greater stability for TN professional workers and their employers. <More>

E-Verify + STEM = 29 Months OPT. On April 8, 2008, the Department of Homeland Security issued a regulation that enables an F-1 foreign national student to apply for an additional 17 months of Optional Practical Training (“OPT”), if: (1) the student graduates with a bachelor’s, master’s, or doctoral degree in a designated science, technology, engineering, or mathematics (“STEM”) degree programs; and (2) the student’s employer participates in USCIS’s e-Verify program. 8 C.F.R. § 214.2(f)(10)(ii)(C). Combined with the 12 months of OPT typically available to F-1 students, the new rule enables qualifying students to receive up to 29 months of post-graduation OPT.  See id. <More>

EEO-1 Report Revised. Effective September 30, 2007, all employers with 100 or more employees and all employers with federal government contracts of $50,000 or more and 50 or more employees are required to file the revised EEO-1 Report, which introduced new racial and ethnic groups and new job classifications. In addition, employers are now discouraged from using visual identification to determine race and ethnicity for employees who do not voluntarily self identify. General information regarding the new Form EEO1 is available here. <More>

Questions

The foregoing is not intended as legal advice. If you would like guidance on any matter related to labor, employment, or corporate immigration law, please contact one of our attorneys.