Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage

Tue, 31 Aug 2010 23:38:31 GMT

In an important decision that will affect countless numbers of small businesses in Florida, the Eleventh Circuit Court of Appeals today rejected the arguments of several employers that they were not subject to “enterprise coverage” under the Fair Labor Standards Act. The decision, Polycarpe v. E&S Landscaping Services, Inc., is bound to lead to an increase in the number of FLSA cases filed against small businesses in Florida – which are already the frequent target of such claims. I will provide some analysis of the Polycarpe decision in the near future.

Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage

Tue, 31 Aug 2010 23:38:31 GMT

Neufeld "Employer-Employee Relationship" Memorandum Upheld

Thu, 26 Aug 2010 21:40:18 GMT

In a blow to employers, a federal district court has upheld a USCIS memorandum that set out factors to determine whether an employer-employee relationship existed for H-1B nonimmigrant visa petition adjudication purposes.

The case was brought by an IT staffing firm that, along with other IT staffing firms and trade associations, challenged the validity of the USCIS’s January 8, 2010, Memorandum for “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (HQ 70/6.2.8 AD 10-24) (“Neufeld Memo”). The case was dismissed, with prejudice, by the federal district court for the District of Columbia on August 13, 2010. Broadgate Inc. v. U.S. Citizenship and Immigration Services, No. 1:10-cv- 00941-GK, (D. D.C.). The Neufeld Memo set out 11 factors and hypothetical examples for when an employer-employee relationship did and did not exist for H-1B nonimmigrant visa petition adjudication purposes. The plaintiff argued that the Neufeld Memo failed to comply with the Notice of Proposed Rule Making requirements of the Administrative Procedures Act and, therefore, was invalid. Additionally, they argued the memorandum set out new substantive rules that were binding upon USCIS service center adjudicators. Siding with the USCIS, the Court found the Neufeld Memo to be valid as it is “interpretive” in nature and was intended to be used by adjudicators in the application of the five tests set forth in the regulation for determining whether the requisite employer-employee relationship had been satisfied by the petitioner.

It is no secret that with the current recession and corresponding high unemployment rate, there is intense government scrutiny of immigration-related filings by U.S. employers seeking to secure employment work visas for foreign workers. Statutory and regulatory requirements are now being applied strictly, as evidenced by the Neufeld Memo.

What is most troublesome with the Broadgate decision is that the door is now open for the USCIS to create potentially unlawful “interpretive” memorandums for the adjudication of such filings, leaving the employer with the ability to challenge their unlawfulness only when the filing has been erroneously denied. It is not uncommon for 24 or more months to elapse from the time of denial of an application by the Service Center and affirmation by the Administrative Appeals Office before the Petitioner can challenge the legality of the standard in federal district court. In agreeing with the government’s “interpretation defense,” the Court created a Trojan horse for the USCIS and other federal agencies, such as the Office of Foreign Labor Certification at USDOL, to render erroneous decisions that deny immigration benefits to those legally entitled to them.

The Basics of the Labor Condition Application

Wed, 25 Aug 2010 15:21:49 GMT

In very general terms, the Labor Condition Application ("LCA") is a prerequisite process that must be completed and certified by the Department of Labor prior to the submission of a petition to classify a worker in H-1B, H-1B1 or E-3 status. For more on the E-3 classification, see here.

The LCA is basically an attestation by an employer seeing to hire a worker in one of the statuses listed above that four basic conditions of employment have been met: 1) the employer is paying the nonimmigrant at least the higher of the actual wage paid by the employer to others in the same occupation with similar experience and qualifications or the prevailing wage for the occupation in the geographical area of the worksite; 2) that the employment of the nonimmigrant will not adversely affect the working conditions of similarly employed workers; 3) that there is no strike, lockout or work stoppage in the occupation for which the nonimmigrant is being hired; and, 4) that notice of the hiring of the nonimmigrant has been provided.

Recently, the DOL centralized the LCA process through the iCert web portal. The relatively new on-line submission process is governed by a "first-in-first-out" rule. However, processing times have varied. Based on a recent experience, it appears that LCA applications are taking 7 days to process.

Major filing fee increases for employers who use substantial H-1B and L-1 visas

Sun, 22 Aug 2010 15:56:22 GMT

Implementing a portion of the Border Security funding bill (Public Law 111-230) signed by President Barack Obama on August 13, USCIS has announced a new fee, in addition to existing fees, for certain H-1B and L-1 petitions. The new fee is $2,000 for certain H-1B and $2,250 for certain L-1 petitions.

The fee applies to petitioners who employ more than 50 workers in the U.S., with more than 50% of them in H-1B or L-1 status. The fee must be paid when an employer seeks an initial grant of H-1B or L-1 status, and when an existing H-1B or L-1 worker is seeking a change of employer.

USCIS notes that Form I-129, and accompanying instructions, will be modified to comply with the new law. In the interim, employers should address the fee requirement with a notation on their H-1B or L-1 applications.

See the USCIS announcement here:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=27eac9514bb8a210VgnVCM100000082ca60aRCRD&vgnextchannel=5b33aca797e63110VgnVCM1000004718190aRCRD

Fee Increases for H-1B or L-1 Reliant Employers

Fri, 20 Aug 2010 14:12:58 GMT

President Obama recently signed a new law containing provisions which increase certain H-1B and L-1 petition fees. The new law adds an additional fee of $2,000.00 for certain H-1B petitions and $2,250.00 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.

The additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50% of its employees in the United States in H-1B or L status. The additional fees apply when the employer is petitioning to initially grant the non-immigrant status to the alien OR to obtain authorization for an alien in H-1B or L status to change employers.

The new fee is in addition to the base processing fee, the existing Fraud Prevention and Detention Fee, any applicable ACWIA fee and any premium processing fees.

A Statistical Overview of Immigration Enforcement Actions in 2009

Thu, 19 Aug 2010 18:28:29 GMT

The Office of Immigration Statistics recently released its Annual Report presenting information on the apprehension, detention, return and removal of foreign nationals in the United States during 2009. The report is illuminating and helpful because it uses specific numbers to describe a concept (immigration enforcement) that is all-too-often described with a blur of heated generalities. The report's key findings demonstrate that the following immigration enforcement activities took place in 2009:

Department of Homeland Security (DHS) apprehended 613,000 foreign nationals, 86% of whom were natives of Mexico;
The number of foreign nationals apprehended by Border Patrol decreased by 23% between 2008 and 2009;
ICE detained approximately 383,000 foreign nationals;
393,000 foreign nationals were removed from the United States--the seventh consecutive record high. The leading countries of origin of those removed were Mexico (72%), Guatemala (7%), and Honduras (7 percent);
DHS removed 128,000 known criminal aliens (i.e., those who have a criminal conviction) from the United States; and
580,000 foreign nationals were returned to their home countries without a removal order.

I'm definitely interested to see the details of 2010's Annual Report. Contrary to what is commonly perceived, in many ways the Obama Administration has really ratcheted up immigration enforcement, though they've commonly used enforcement methods that don't generate the attention-grabbing 'RAID' headlines we saw so much of in 2008-2009.

DHS Broadens Definition of Foreign Officials' Dependents

Thu, 19 Aug 2010 16:50:24 GMT

On August 9, 2010, the U.S. Department of Homeland Security (DHS) amended its regulatory definition of “dependents” for A or G principal aliens to include, in addition to spouses and unmarried sons and daughters, those who are not related to the principal alien by blood, marriage or adoption.
Previously, DHS regulations allowed only the following dependents habitually residing with the A or G principal to apply for employment authorization:

• Spouse;
• Unmarried children under the age of 21;
• Unmarried sons or daughters under the age of 23 who are full-time post-secondary school students;
• Unmarried sons and daughters under the age of 25 who are full-time secondary school students if a formal bilateral agreement permitting their employment in the U.S. was signed prior to November 21, 1988, and if such bilateral agreement does not specify 23 as the maximum age for employment of such sons and daughters; and
• Unmarried sons or daughters who are physically or mentally disabled to the extent that they cannot adequately care for themselves or cannot establish, maintain or re-establish their own households.

The recent DHS change was meant to correspond to last year’s regulatory expansion of the definition of “immediate family” by the U.S. Department of State (DOS) which include those who:

• Are not members of some other household;
• Will reside regularly in the household of the principal alien;
• Are recognized as immediate family members of the principal alien by the sending Government as demonstrated by eligibility for rights and benefits, such as the issuance of a diplomatic or official passport, or travel or other allowances; and
• Are individually authorized by the Department of State.

The regulations controlling the employment of aliens has also been amended to allow these dependents to now file an I-765 Application for Employment Authorization Document (EAD Card) pursuant to 8 CFR 274a.12(c)(1) and (4). Specifically, the amendments replace references to the “spouses” and “children” of A and G principal aliens with “dependent.”

Video Showing Step-by-Step Visa Application Process at Ciudad Juarez Consulate

Thu, 19 Aug 2010 14:12:32 GMT

It is very common for clients to be quite nervous about attending their visa interview abroad. In this step-by-step video, the visa application process is demystified a bit, at least as it occurs at the U.S. consulate in Ciudad Juarez, which also happens to be one of the most heavily utilized consulates in the world. Watching the video may help an applicant visualize the process, and hopefully be calm and confident as they experience the interview process. Plus, for what it's worth, the video is accompanied by a funky musical backdrop.

Congratulations to Juan Manuel Santos Calderón new President of Colombia

mario@mrvisa.com (Mario Ramos) — Tue, 10 Aug 2010 15:25:41 GMT

One of my cousins Juan Manuel Santos Calderón became the new President of Colombia on August 7, 2010. We are related on my mother's side of the family. Like myself President Santos obtained a master's degree from the London School...

Immigration Policy Aims to Help Military Families

mario@mrvisa.com (Mario Ramos) — Tue, 03 Aug 2010 15:40:45 GMT

http://www.nytimes.com/2010/08/01/us/01immig.html?_r=1&ref=julia_preston July 31, 2010 By JULIA PRESTON "The Obama administration, responding to requests from Democratic and Republican lawmakers, has taken steps to make it easier for illegal immigrants who are spouses and family members of Americans serving in the military...

http://www.nytimes.com/2010/08/01/us/01immig.html?_r=1&ref=julia_preston
July 31, 2010

By JULIA PRESTON

"The Obama administration, responding to requests from Democratic and Republican lawmakers, has taken steps to make it easier for illegal immigrants who are spouses and family members of Americans serving in the military to gain legal status.

The new policy was described in an internal memorandum from Citizenship and Immigration Services that was released last week by SenatorCharles E. Grassley, Republican of Iowa, and caused a furor in Washington on Friday.

The memo outlined measures that the agency could take under existing laws to “reduce the threat of removal for certain individuals present in the United States without authorization,” instead of waiting for Congress to pass an immigration overhaul to give legal status to millions of illegal immigrants.

With the title “Administrative Alternatives to Comprehensive Immigration Reform,” the memo prompted protests from Mr. Grassley and other Republicans that the Obama administration was trying an end run around Congress, rather than confronting a divisive debate on immigration legislation during an election season. The memo was first reported on the Web site of The National Review, a conservative magazine.

Officials of the immigration agency denied on Friday that they were pursuing any plan to legalize millions of illegal immigrants by fiat.

Aside from a title that administration officials acknowledged was provocative, the memo describes possible changes to the immigration agency’s interpretation of immigration law, including several that have been recommended by lawmakers from both parties to make it easier for immigrants who are trying to work within the system to gain legal status.

According to the memo, one of those changes has been quietly put into practice since May. The new policy allows illegal immigrants who are spouses, parents and children of American citizens serving in the military to complete the process of becoming legal residents without having to leave the United States — a procedure that is known in immigration law terms as granting parole. The memo says agency officials approved the new parole approach “to preserve family unity and address Department of Defense concerns regarding soldier safety and readiness for duty.”...".

Due Process For Deported Immigrants: The Right To Reopen Proceedings Under Carachuri-Rosendo

Thu, 29 Jul 2010 17:36:38 GMT

Due process, a cornerstone of American jurisprudence, cannot be applied selectively. Even if the beneficiaries are immigrants who have already been deported.

Aggravated Felonies Under IIRAIRA

Until 1996, most lawful permanent residents (LPRs) facing deportation due to criminal convictions were entitled to a merits hearing at immigration court. An immigrant's positive equities were balanced against the nature of an immigrant's convictions. It was possible to win judicial forgiveness and a second chance to remain lawfully in the United States.

This changed when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). Many minor non-violent offenses, deemed misdemeanors in state court, were designated as aggravated felonies for immigration purposes. And aggravated felonies lead to automatic deportation orders.

The Supreme Court Clarifies The Misdemeanor-Felony Distinction

In Carachuri-Rosendo v. Holder, the Supreme Court slammed the government's blurring of the misdemeanor-felony distinction.

A lawful permanent resident, Carachuri-Rosendo had lived legally in the U.S. since he was five years old. He had committed two misdemeanor drug possession offenses. For the first, possession of less than two ounces of marijuana, he spent 20 days in jail. For the second, he pleaded nolo contendre to possession without a prescription of one tablet of Xanax, a common anti-anxiety medication, and received 10 days in jail.

After the second conviction, he was deported for having committed the aggravated felony of "illicit trafficking in a controlled sentence."

A unanimous Supreme Court held the government's interpretation that minor drug possession offenses constitute aggravated felonies was counter-intuitive.

"Congress," wrote Justice Stevens, "like Humpty Dumpty, has the power to give words unorthodox meanings."

But the English language, he added, "tells us that most aggravated felonies are punishable by sentences far longer than 10 days, and that the mere possession of one tablet of Xanax does not constitute trafficking."

The Impact Of Flawed Deportations

Following the Carachuri-Rosendo decision, 26 legal rights organizations have asked the government to implement procedures allowing immigrants - improperly denied the opportunity to defend themselves at court and sent back to their countries of origin - to reopen their cases.

If successful, they would be able to return and live legally in the U.S.

Recently, in "For Those Deported, Court Rulings Come Too Late", New York Times reporter Nina Bernstein shared the plights of three former LPRs, also convicted of minor drug offenses, who might benefit from new reopening procedures:

Vincenzo Donnoli, 51, had lived in the U.S. since the age of nine. He ran a landscaping business and had five children. He was deported to Italy after two misdemeanor convictions, one in 1988 and the other in 2006.
Seweryn Smieciuch, 27, was a bricklayer deported to Poland. He had entered the U.S. at the age of ten, when his parents won the green card lottery and moved to Brooklyn in 1993. He spent two days in jail.
Damon Franklin Spence, 35, had lived in the U.S. since he was 11 years old. He left behind four kids and was running a sneaker store when he was deported to Jamaica. He had been convicted of two possession of marijuana misdemeanors.

In my view, since their deportations were based on misguided interpretations of law, the right to new hearings seems to logically flow from the Court's reasoning in Carachuri-Rosendo.

Otherwise, the Court's bark far exceeds its bite.

Reopening Misguided Deportations As A Principle Of Fairness

Family unity has long been a fundamental tenet of immigration law. Conversely, the effect of family separation is a major issue of deportation defense.

It is unknown how many lawful permanent residents (LPRs) were sent back to their home country as a result of the mistaken aggravated felony rules. However, a recent University of California study estimates the magnitude of family separation on LPR families caused by deportations for minor crimes during the period of 1997 to 2007:

87,884 LPRs were deported during the ten year period
68% of these LPRs were deported for minor non-violent crimes
The deported LPRs had lived in the U.S. an average of ten years
The deported LPRs had a total of 103,000 children
88,000 children of deported LPRs were U.S. citizens
44,000 children of deported LPRs were under 5 years old

In addition, there were 217,000 other family members (including U.S. spouses, parents, brothers and sisters) affected by the deportation of LPRs.

"American principles of justice," noted the legal rights groups In their joint letter to Attorney General Eric Holder and DHS Secretary Janet Napolitano (PDF), "require that these immigrants now receive their day in court."

They're right.

After more than a decade of flawed deportations, due process demands nothing less.

Federal Judge Hears Challenges to Arizona Immigration Law

Tue, 27 Jul 2010 00:05:51 GMT

On July 22, Judge Susan Bolton of the U.S. District Court in Phoenix heard arguments in two of the most highly publicized challenges to Arizona Senate Bill 1070: (1) the lawsuit filed by a coalition of civil rights groups and labor unions; and (2) the lawsuit filed by the U.S. Department of Justice (“DOJ”). The plaintiffs in both seek to enjoin SB 1070 from taking effect on July 29, 2010.

Judge Bolton does not intend to enjoin SB 1070 in its entirety. Stating that she considers SB 1070 to be an “enactment,” combining new laws and amending existing laws, rather than a “statute,” Bolton indicated she was considering whether to block all or parts of certain key provisions of SB 1070 and steered attorneys toward the more questionable portions of those provisions.

Judge Bolton voiced concerns regarding portions of SB 1070, including a provision that allows law enforcement officers to make warrantless arrests of people suspected of committing offenses that make them “removable from the United States.” At the hearing, Judge Bolton asked: “How can a police officer make a determination that a person has committed a removable offense when that decision can only be made by a federal judge?”

Attorneys for the DOJ argued that the provisions of SB 1070 are pre-empted by federal law. The agency’s lawsuit alleges that SB 1070 “will conflict and undermine the federal government’s care balance of immigration-enforcement priorities and objectives.”

Judge Bolton did not make any rulings at the hearings and has not said when she will issue a ruling. With the statute set to take effect in days, it is anticipated that she will rule quickly. Jackson Lewis will continue to monitor the legal developments surrounding SB 1070.

Department of Homeland Security Issues long awaited final Electronic I-9 rules

Mon, 26 Jul 2010 17:57:38 GMT

In April 2005 when Public Law 108-390 went into effect allowing for employers to sign and retain I-9 employment eligibility verification forms electronically, employers and immigration practitioners alike may have been justifiably confused as provisional guidance from the Department of Homeland Security’s ICE (Immigration Customs and Enforcement) division on their web page http://www.ice.gov/pi/news/factsheets/i-9employment.htm was introduced. ICE guided employers to “interpret the law”(!), and advised employers to “note that there is no single government-wide electronic signature or record-keeping standard. However, some federal agencies have provided electronic record-keeping standards for their own transactions with the public…[which] may serve as a helpful reference for employers until DHS issues regulations to govern the storage of Forms I-9.” For over a year, employers and their counsel had to guess about what standards would comply with the law and fit within the enforcement agency’s vague guidance. Despite tangible benefits in terms of paperwork reduction, many employers opted to wait for something more concrete before investing in an electronic I-9 program and institutional training.

In June 2006, ICE issued an interim rule which provisionally codified standards that employers wishing to use electronic I-9 completion and storage systems should observe. Building on their initial guidance, most of the standards outlined in the provisional rule reflected IRS electronic recordkeeping guidelines, and covered criteria such as accessibility, accuracy, security, and quality of data being captured and systems being used for electronic storage. http://edocket.access.gpo.gov/2006/E6-9283.htm.

Some four years later, an advance copy of final rules modifying 8 CFR 274a.2 has been issued http://www.ofr.gov/OFRUpload/OFRData/2010-17806_PI.pdf, so presumably interested parties have had sufficient time to comment on the interim rules prior to finalization, unlike some notorious instances of agency “legislation by decree” in which policy “clarifications” were later deemed to have unlawfully omitted the normal public comment period. http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1579.

The final version of the rule contains standards which will be familiar to employers who currently use electronic I-9 systems and the vendors who market such systems. As before, the final rule “permits employers to complete, sign, scan, and store the Form I-9 electronically, as long as certain performance standards… are met.” Changes in the final rule are relatively minor, amounting in most instances to clarifications:
-employers must complete a Form I-9 within three business (not calendar) days;
-employers may use paper, electronic systems, or a combination of paper and electronic systems;
-employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
-employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected; and
-employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.

This rule does not include any changes to I-9 form content or acceptable documents, but an acceptable document change did occur in 2008 (73 FR 76505) and 2009 (72 FR 2838 - correction). Therefore, while there was nothing dramatic or surprising in the final rule, employers can now rest assured that electronic I-9 completion and storage standards appear to be final.

Employers Feeling Heat from ICE

Fri, 23 Jul 2010 22:55:43 GMT

The scorching Texas summer is not the only heat Texas employers are feeling these days. According to a recent article in the Houston Chronicle, the United States Immigration and Customs Enforcement (ICE) has hit 23 Texas companies with civil fines exceeding $600,000 for hiring unauthorized workers, failing to comply with regulatory employment verification requirements, or both. Some of these employers are also facing criminal prosecutions.

It is no secret that the current administration has placed heavy emphasis on enforcing workplace laws and numerous employers have felt the brunt of it. Enforcing immigration laws that prohibit employers from hiring unauthorized workers and that require all employers to verify each new hire for work authorization and completion of the I-9 Employment Eligibility Verification Form is a part of the overall scheme. And, since there are budget deficits that must be made up, hefty fines for violations help.

Under this enforcement regime, employers are cast as the villains of the piece and the cause for the massive influx of illegal workers into this country. Rather than deporting apprehended illegal workers, the government now allows many to remain in the United States, where they are given employment authorization in return for their assistance in the investigation and prosecution of employers.

Understanding the New DOL Breastfeeding Break Guidelines

Fri, 23 Jul 2010 18:39:27 GMT

Just yesterday the U.S. Department of Labor released a Fact Sheet explaining the March, 2010 amendment to the Fair Labor Standards Act that requires employers to provide breaks for nursing mothers. The DOL's guidance is helpful because I have had several clients ask me about this law in recent months. Some states already had laws like this, but Florida was not one of them.

The law requires employers to provide "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk." Employers must provide the breaks "as frequently as needed", and must give the employee a private place, other than a bathroom, to take the breaks. The breaks need to be of "reasonable" length. The employer does not have to pay the employee for the break time, unless the employer already provides compensated breaks, and the employee uses one of those breaks to express breast milk.

A couple of interesting points: (1) the law applies only to non-exempt employees, and not to exempt employees; and, (2) employers with under 50 employees are not subject to the law "if compliance with the provision would impose an undue hardship."

This amendment will probably not lead to much litigation, but employers need to be aware that it is out there.

Understanding the New DOL Breastfeeding Break Guidelines

Fri, 23 Jul 2010 18:39:27 GMT

This amendment will probably not lead to much litigation, but employers need to be aware that it is out there.

Who is an illegal alien?

mario@mrvisa.com (Mario Ramos) — Tue, 20 Jul 2010 16:11:35 GMT

US citizens heading to Canada to escape global warming....

US citizens heading to Canada to escape global warming.

When Plaintiff's Lawyers Go Too Far

Thu, 15 Jul 2010 11:07:52 GMT

My partner Richard Tuschman has blogged extensively on this site about the unusually high number of Fair Labor Standards Act lawsuits Florida employers face. The state leads the nation in these suits. Clients often ask why that is so, and in response I usually give credit to the enterprising plaintiff's bar here, especially in South Florida. Disgruntled ex-employees often consult with plaintiff's employment lawyers about bringing some type of wrongful termination suit, but the lawyers often end up advising that the clients file FLSA overtime suits instead, because the lawyers know that employers often settle these cases early to avoid mounting legal fees.

Of course, that is not the only way plaintiff's employment lawyers get FLSA cases. Some rely upon their contacts within the bar and local community to investigate and build cases against large employers. Because these cases can be filed as "collective actions", with numerous plaintiffs in one case, large employers are especially vulnerable to these suits.

A recent case out of a federal court in Minnesota illustrates the lengths that plaintiff's employment attorneys will go to build their cases, and the trouble they can get into by going too far. The plaintiff's law firm at issue there, Halunen and Associates, sued Target Corporation for allegedly misclassifying some of its executives as exempt. One of the named plaintiffs, Linda Gifford, had come to the law firm with complaints of employment discrimination and retaliation, but the lawyers thought that an FLSA claim had more merit.

The lawyers investigated the claim for several months before bringing suit. During that investigatory period, the firm was approached by another employee of the same company, this time an executive that the Court refers to as "Jane Doe". Doe worked in a sensitive position with the company, and was privy to confidential and attorney-client privileged information. Like Gifford, Doe came to the firm with questions related to the potential termination of her employment. The firm, however, was also interested in Doe's knowledge of the issues relating to the potential FLSA suit it was investigating, and obtained information from Doe to use to support that suit.

After the firm filed the FLSA suit, the company got wind of the conversations between the firm and Doe about the FLSA issues, and moved to disqualify the firm from representing the FLSA plaintiffs. The Court granted the motion because the firm had "pushed ethical boundaries when it chose to represent Doe while simultaneously investigating" the FLSA suit. The Court reasoned that Doe had disclosed confidential and attorney-client privileged information to the firm, and that allowing the firm to continue litigating the case "potentially undermines public confidence in the legal profession."

I, of course, have no information about this case other than what is contained in the Court's Order. But, I think the lesson here for employers (and their attorneys) is to think long and hard about how the plaintiff's employment firms they are litigating against obtained the case in the first place. If you do a little bit of digging, you might learn that the plaintiff's firm knows a lot more about your operation than you think, or than they should.

When Plaintiff's Lawyers Go Too Far

Thu, 15 Jul 2010 11:07:52 GMT

Recent Articles in Immigration Law from LexMonitor

Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage

Eleventh Circuit Rules for Employees on FLSA Enterprise Coverage

Neufeld "Employer-Employee Relationship" Memorandum Upheld

The Basics of the Labor Condition Application

Major filing fee increases for employers who use substantial H-1B and L-1 visas

Fee Increases for H-1B or L-1 Reliant Employers

A Statistical Overview of Immigration Enforcement Actions in 2009

DHS Broadens Definition of Foreign Officials' Dependents

Video Showing Step-by-Step Visa Application Process at Ciudad Juarez Consulate

Congratulations to Juan Manuel Santos Calderón new President of Colombia

Immigration Policy Aims to Help Military Families

Due Process For Deported Immigrants: The Right To Reopen Proceedings Under Carachuri-Rosendo

Federal Judge Hears Challenges to Arizona Immigration Law

Department of Homeland Security Issues long awaited final Electronic I-9 rules

Employers Feeling Heat from ICE

Understanding the New DOL Breastfeeding Break Guidelines

Understanding the New DOL Breastfeeding Break Guidelines

Who is an illegal alien?

When Plaintiff's Lawyers Go Too Far

When Plaintiff's Lawyers Go Too Far