H Visa Cap Exemption Would Boost Guam Military Buildup [April 2008]

By David B. Cohen

The author, as Deputy Assistant Secretary of the Interior from 2002 until 2008, headed the office that administers the U.S. relationship with its territories. He was also the founding Co-Chair of the Federal Interagency Task Force on the Guam Military Buildup.

The U.S. Senate recently passed legislation that would exempt Guam and the Commonwealth of the Northern Mariana Islands from immigration law caps on temporary workers through 2014. The legislation, which is expected to be signed by the president after receiving the concurrence of the U.S. House of Representatives, would help ensure that sufficient skilled and unskilled labor is available for Guam's planned military buildup and could open up numerous business opportunities in both Guam and the Northern Marianas.

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California Supreme Court Clarifies California Family Rights Act [April 2008]

By Judith Droz Keyes

On April 7, 2008, in Lonicki v. Sutter Health Central, the California Supreme Court answered two previously unanswered questions about the California Family Rights Act (CFRA). Employers won one, and lost one. First, the Court held that the CFRA permits employers to defend litigation by challenging an employee's need for a leave of absence without having first resorted to the "third opinion" option (i.e., obtained a binding third opinion, where the first two opinions differed). Second, the fact that the employee is working elsewhere, even in a substantially similar job, does not necessarily mean that the employee is disqualified from obtaining CFRA leave.

The Court's ruling underscores the importance of some basic principles: employers must deal with leave of absence requests on a case-by-case basis, consider carefully their legal options for challenging a questionable request, and make unemotional decisions based on the provable facts.

California Supreme Court: Individuals Protected in Retaliation Claims under FEHA [Mar. 2008]

By Frank Birchfield and April L. Weaver

In a much-anticipated decision interpreting California's Fair Employment and Housing Act (FEHA), the California Supreme Court announced on Monday that individual managers and supervisors cannot be held personally liable for retaliation against employees who complain of employment discrimination (Jones v. The Lodge at Torrey Pines Partnership, et al, Dkt. No. S151022, ___ Cal. 4th ___ March 3, 2008). While California law was already consistent with federal law, in that individuals cannot be liable for job discrimination, some California courts had held that FEHA did impose personal liability on supervisors and managers for retaliation. Monday's decision reverses those decisions.

401(k) Participant Entitled to Sue for Investment Losses [Feb. 2008]

By Greg K. Hitchcock

The U.S. Supreme Court ruled last week that a participant may sue for losses to his 401(k) account caused by the employer's failure to carry out investment instructions. Based on prior court rulings, many practitioners thought participants had no cash remedy for such breaches by plan fiduciaries and could only force fiduciaries to carry out the terms of the plan. The ruling in LaRue v. Dewolff, Boberg & Associates, Inc. clarifies that an individual participant may bring a claim for money damages for breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA), though several key questions remain unanswered.

U.S. Immigration Update: Revised I-9 Forms; H-1B reminder; new U.S. entry requirements
[Feb. 2008]

By Christopher R. Helm

Revised I-9 Verification Forms now required

Effective Dec. 26, 2007, employers are now required to use the revised Employment Eligibility Verification Form (I-9) for new employees or to re-verify an existing employee's identity and employment eligibility. Along with the I-9 form, USCIS has also revised the list of acceptable documents to show identity, employment authorization, or both. For more information, please see our prior advisory on this subject. In addition, you are advised to conduct periodic self-audits to ensure that your I-9 documentation is in good order. U.S. Immigration and Customs Enforcement (USICE) is expected to heighten its enforcement efforts, particularly against those employers it suspects of knowingly hiring workers with improper documents.

FMLA Expansion Introduces Two Important Amendments: Caregiver and active duty leave provided for eligible military family members [Feb. 2008]

By Amy Pannoni and Courtney Mertes

On Jan. 28, 2008, President Bush signed into law the first expansion of the Family Medical Leave Act (FMLA) since its enactment in 1993. The National Defense Authorization Act (H.R. 4986) concerns injured members of the armed forces and provides leave for military families. Section 585 of the bill creates FMLA-qualifying events for eligible members of military families and applies to service members in both Reserve and National Guard duty as well. Even though the Department of Labor has not finalized regulatory guidance for employers under the new Act, eligible employers should be prepared to comply fully with the law's intent.

San Francisco's Health Care Security Ordinance: A Step-By-Step Approach to Compliance [Feb. 2008]

By Aaron A. Roblan and Judith Droz Keyes

On Jan. 9, 2008, the Ninth Circuit Court of Appeals issued its decision in Golden Gate Restaurant Association v. City of San Francisco, permitting implementation of San Francisco's Health Care Security Ordinance (the“HCSO”). While aspects of the ordinance will continue to be challenged, it is now in effect and all companies with employees in San Francisco must comply.

EEOC Issues Guidance on Employment Testing [Feb. 2008]

By Weldon H. Latham and Jennifer K. Scheessele

In the wake of an increase in discrimination charges arising from the use of employment tests and other selection procedures, the U.S. Equal Employment Opportunity Commission ("EEOC") has issued a fact sheet warning against the pitfalls of some tests. The “Fact Sheet on Employment Tests and Selection Procedures” clarifies obligations under Title VII of the Civil Rights Act of 1964 (“Title VII”) and provides employers with best practices for the use of testing and selection procedures.