Mark Wiletsky by Mark Wiletsky Question: When crafting a severance agreement, should you follow the guidelines of the state the employee resides/works in or the state where the company is incorporated?  Answer: The answer depends on a number of factors.  Often, companies are incorporated in a state in which they have no presence or operations, e.g., Delaware.  Although courts will sometimes allow parties to select a law to govern agreements, including severance agreements, the employee may be able to challenge the agreement if it does not comply with the state in which he ..read more

Mark Wiletsky by Mark Wiletsky Can an employee sue under Title VII to challenge a lateral transfer, even if the transfer does not result in a loss of pay?  According to a recent U.S. Supreme Court decision, the answer is: Yes. Employers transfer employees, or take other actions, for a variety of reasons.  Until recently, so long as those decisions did not significantly or materially impact the employee’s terms and conditions of employment, the employee did not have a viable discrimination claim.  That standard is no longer the law of the land.  Now, if there was “som ..read more

Little V. West By Little V. West The Federal Trade Commission (FTC) has issued a new rule broadly banning noncompete agreements, marking a sea change in their regulation, which previously has been primarily governed by state law. Once effective, existing noncompete agreements will generally become unenforceable, except for certain highly compensated senior executives. Future noncompete agreements will not be allowed.  (See § 910.2). An exception to the rule may apply if the restricted party is selling a business entity, its ownership interests, or operating assets as part of a ..read more

Brad Cave by Brad Cave Can an employer’s diversity, equity, and inclusion (DEI) program create liability for the discriminatory harassment of white employees? The U.S. 10th Circuit Court of Appeals (whose rulings apply to employers in Wyoming, Colorado, New Mexico, and Utah) recently warned that the training required by a Colorado state agency included some content that could constitute unwelcome race-based harassment. While the court ultimately rejected the employee’s harassment claim, the opinion serves as a good reminder that negative race-based messaging may be illegal no matter whi ..read more

Samantha Wolfe By Samantha Wolfe In the pursuit of U.S. permanent residency, employers often turn to the PERM labor certification process to sponsor employees. However, there exist alternative pathways to obtaining a green card, one of which is the National Interest Waiver (NIW). In this article, we’ll explore the NIW option in detail, highlighting its benefits, eligibility criteria, and the application process. The National Interest Waiver (NIW) Option The NIW offers qualified individuals a pathway to bypass the labor certification process typically required for employment-based green cards ..read more

Ann Lee by Ann Lee The U.S. Citizenship and Immigration Services (USCIS) has recently announced a significant update regarding Form I-693, Report of Immigration Medical Examination and Vaccination Record. Effective immediately, any Form I-693 that has been properly completed and signed by a civil surgeon on or after November 1, 2023, will no longer have an expiration date. This means that such forms can now be used indefinitely as evidence to demonstrate that the applicant is not inadmissible on health-related grounds. This decision by USCIS follows careful consultation with the Centers ..read more

Dana Dobbins By Dana Dobbins Question: We have an employee whose essential functions require the use of their hands. They have requested an accommodation, and their physician has recommended time off until specific medical restrictions can be determined. What is our obligation to pay this employee during this doctor-recommended leave of absence? Answer: Depending on your policies, you may allow or require the employee to use accrued paid vacation or sick leave towards their absence. Beyond paying appropriate sick leave and perhaps applying paid vacation leave, an employer is not otherwi ..read more

Dana Dobbins By Dana Dobbins Artificial intelligence (AI) is becoming increasingly prevalent in workplaces, providing new opportunities as well as new challenges for employers and employees. While AI has the potential to improve efficiency and productivity, its use also raises important questions around issues like privacy, discrimination, and job displacement. Employers who choose to implement AI should consider including a provision in their employee handbook, or a separate policy, specifically addressing its use. Such a provision or policy can help mitigate risks, provide clarity for ..read more

Leslie Perkins by Leslie Perkins When you think of protections against discrimination in the workplace, the first things that come to mind are traditional characteristics such as race, color, religion, sex, national origin, age, and disability. However, in the coming years we could see discrimination based on weight added to that list. Current Measures Against Body Discrimination Currently, there is no federal law protecting employees from discrimination based on weight. However, one state (and a handful of cities) have implemented statutes that ban discrimination based on weight to ens ..read more

Sarah Bileti By Sarah Bileti and Samantha Wolfe As we delve into the February 2024 Visa Bulletin, it’s evident that the priority dates for employer-based immigrant petitions continue to face minimal advancement, contributing to prolonged wait times for immigrant visas throughout fiscal year 2024. Let’s examine the key highlights and implications of this latest update. Key Highlights: Samantha Wolfe Limited Movement in EB-2 and EB-3 Categories: USCIS and the State Department have reported minimal progress in the EB-2 and EB-3 categories for various regions, with exceptions ..read more