by:  Ashik Jahan, Esq. & Carolin Esterl On August 28, 2017, USCIS (United States Citizenship and Immigration Services) made an announcement stating that they will begin to “phase-in” interviews for employment-based cases effective on October 1, 2017. The announcement stated that “adjustment of status applications based on employment”—i.e., categories EB-1 through EB-5—will be affected.  At this time, USCIS has not provided direction on how the “phase-in” process will proceed. Thus, it is unclear whether or not applicants who have already filed for an adjustment of status will be included in the “phase-in” process.  The interview mandate is part of the Trump Administration’s efforts to implement “extreme vetting” of immigrants in accordance with the “Protecting the Nation from Foreign Terrorist Entry into the United States” –  Executive Order, popularly known as the “travel ban,” released earlier this year. Historically, USCIS has waived the interview requirement for most employment-based adjustment of status…       Read More

By Don Benson, Esq. and Eric Hoffman, Esq. When accommodating a deaf patient, what evidence proves effective communication under Title III of the Americans with Disability Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA”) of 1973? A new Eleventh Circuit case [here] declares that the correct standard examines whether the deaf patient experienced an impairment in his or her ability to communicate medically relevant information with hospital staff. This focus is on the effectiveness of the communication, not on the medical success of the outcome. SUCCESSFUL OUTCOME NOT ENOUGH It is not enough for the hospital to point out that the plaintiff patient could not identify instances where he means of communication resulted in actual misdiagnosis, incorrect treatment or adverse medical consequences. It is not enough for the hospital to point out that there was no evidence that Plaintiffs could not communicate their chief medical complaint or understand a…       Read More

By Don Benson, Esq. The Second Circuit issued an opinion on February 16, 2016, holding that “Hispanic” is a race for the purposes of both 42 U.S.C. §1981 and 42 U.S.C. § 2000e, Title VII. Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016). The Court rejected the employer’s argument that promotion of a white Hispanic candidate over a white non-Hispanic candidate cannot be racial discrimination.  The employee could bring a claim  under  § 1981 or Title VII: Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII. Plaintiff sued the Village of Freeport, N. Y., alleging race discrimination under both statutes  because the former mayor failed to…       Read More

Written by: Don Benson, Esq. On December 7, 2016, the Eleventh Circuit Court of Appeals found that a Hospital did not violate the Americans With Disabilities Act when it refused to allow a disabled employee to transfer to another, open position when the Hospital had better qualified candidates. EEOC v. St. Joseph’s Hospital, Inc. The ADA protected employee had to compete with other qualified candidates. The ADA’s duty to reasonably accommodate her request to transfer meant that an employer must allow a disabled person to compete equally with the rest of the workers for a vacant position. The ADA does not require reassignment without competition for, or preferential treatment of, the disabled. A nurse at the hospital developed stenosis and hip problems that required the use of a cane. Because she worked in the psychiatric section of the hospital, she was no longer qualified for her job because there was…       Read More

Written By: Don Benson, Esq. Many employers have been asking what is next step for them in light of the injunction issued 112/22/16 in the U.S.D.C. Texas holding that the DOL may not impose the new higher salary level for jobs exempt from overtime under the executive, administrative or professional exemptions of the federal Fair Labor Standards Act. The preliminary injunction keeps the new higher salary level from going into effect as scheduled on December 1, 2016. There is a two part test for these exemptions: (1) the job must have a minimal salary and (2) specific job duties. The salary portion of the test would have gone up from $23,660 annually to $47,892. The new Regulation would also have adjusted the salary level every three years automatically. The Texas federal court found that the plaintiffs in that case showed a “likelihood of success on the merits” that the new salary…       Read More

Written by: Don Benson, Esq. With every election, employers need to revisit their rules on letting employees off to vote, and whether such leave needs to be paid leave. For the most part, this will be governed by the state law of where the employee votes.  State laws differ significantly and change frequently. In the Southeast, many state laws require unpaid time off that will not be counted against the employee under the company’s attendance policy. Alabama: Each employee in the state shall, upon reasonable notice to his or her employer, be permitted by his or her employer to take necessary time off from his or her employment to vote in any municipal, county, state, or federal political party primary or election for which the employee is qualified and registered to vote on the day on which the primary or election is held. The necessary time off shall not exceed…       Read More

Written by: Don Benson, Esq. Despite the threat of a presidential veto and numerous Democratic objections, the U.S. House of Representatives voted 246-to-177 on September 28, 2016 to delay by an additional six months the U.S. Department of Labor’s Rule raising the threshold for exemption to overtime pay. DOL’s new Rule is set to take effect Dec. 1, 2016. The new DOL Rule would raise the minimum salary threshold required to qualify for the Fair Labor Standards Act’s executive, administrative and professional “white collar” exemptions to $47,476 per year, from the current threshold of $23,660. A similar bill has been introduced in the U.S. Senate. The Hill reports that “Legal challenges against the rule are piling up. On Tuesday of last week, 21 states filed a lawsuit against the Labor Department and more than 55 Texas and national business groups filed a suit of their own on the same day….       Read More

Written by: Don Benson, Esq. Congress enacted legislation in November of 2015 requiring federal agencies to adjust their civil penalties to account for inflation. OSHA’s maximum penalties were last adjusted in 1990. The new penalties will increase by 78%. Effective August 1, 2016, any citations issued by OSHA     after that date will be subject to the new penalties if the alleged violations occurred after November 2, 2015. The penalties will be adjusted for inflation annually based on the Consumer Price Index. State OSH Agencies are required to adopt penalties that are at least as effective [i.e. costly] as the new federal maximum penalties.

Written by: Don Benson, Esq. and Sam Sykes, Esq. OSHA’S NEW ELECTRONIC DATA REPORTING REQUIREMENTS, (29 CFR § 1904.35(b)(1)(i)), effective August 10, 2016,  also restrict an employer’s ability to impose a blanket demand of post-injury drug testing. OSHA considers such a blanket rule to be retaliatory and to discourage employee reporting of workplace injuries. Employers can avoid claims of retaliation by a careful review of their current policies and drug tests. OSHA’s goal is to encourage employers to establish “reasonable procedures” for deciding when to test an employee once they are made aware of a workplace incident. A blanket requirement for drug testing for all reported injuries would require drug testing after injuries such as bee stings, repetitive strain injuries, injuries caused by lack of machine guarding, or a machine or tool malfunction, that may be unrelated to any employee impairment. OSHA is concerned that employees who do not want…       Read More

Written by: Sean Cox, Esq. and Don Benson, Esq. This month the United States Departments of Education and Justice issued Guidelines intended to direct educational institutions in how Title IX requirements apply to transgender students, or students whose sex assigned at birth differs from their gender identity. A copy of the Guidelines and suggested practices can be found here. The DOJ and DOE have also issued a “Dear Colleague Letter” that provides school administrators with instructions and explanations on the subject. Under Title IX, educational institutions, as a condition of receiving federal funds, must agree that they will not discriminate on the basis of the sex of any person in its educational programs or activities. The overriding premise of the new Guidelines is that Title IX’s sex discrimination protections also apply to transgender students. The Guidelines go into detail regarding potential issues and explain various methods for addressing those issues. However,…       Read More