Immigration Update

As always, USCIS and DOL continue changing and unchanging rules and regulations. Some important changes of note are the further delay of E-Verify and DOL's lifting of the H-2A suspension. As noted in a previous posting, E-Verify already moved its deadline impacting Federal contractors several times. Recently USCIS announced a further delay and federal contractors will not be required to use E-Verify until September 8, 2009. We will have to wait and see whether this date gets moved once again.

In another change of note, the DOL recently lifted its H-2A visa suspension. Seasonal employers (traditionally farmers) often rely on H-2A visas to staff their temporary and seasonal needs. On December 18, 2008, DOL changed the requirements for employers who sought seasonal workers using the H-2A visa. These new regulations had an effective date of January 17, 2009. DOL, however, on May 28, 2009 announced a nine-month suspension of these regulations. In response to an injunction, DOL lifted the suspension on June 29, 2009. We are now left with the amended regulations posted in the Federal Register on December 18, 2008.

While it is not necessary to discuss the changes in detail, one significant change means employers are required to not only advertise the available position in the area of intended employment, but also advertise in any state which DOL designates as a state of traditional or expected labor supply. This new requirement increases employers' costs as employers must place newspaper advertisements in several states.

Ties That Bind Event a Tremendous Success

Last week The Coles Firm traveled north to the Collin County Adventure Club and led the DAYL Ties That Bind presentation. Over 50 young men from the YMCA sports camp attended the presentation. The crux of the presentation focused on teaching these young men, ages 12 - 17, the importance of dressing professionally and culminated in necktie tying lessons. It was quite an adventure teaching so many young men at one time how to tie a necktie, but by the end of the day everyone had a perfect knot.

DAYL's Ties That Bind committee works with local schools and organizations to teach young men and women ages 12 - 17 the importance of dressing professionally and making positive first impressions. The participants are taught how to tie neckties and scarves in a variety of knots. Ties That Bind seeks to help young men and women begin laying the foundation for a successful career. If you know a school or organization to whom Ties That Bind can present or if you are interested in conducting a tie drive at your office, please contact Paul Simon at PaulS@colesfirm.com. Ties That Bind will present to over 200 kids this year and greatly appreciates all donations.

Rethinking Ricci

On April 22, 2009, we posted here about a race discrimination case pending before the United States Supreme Court called Ricci v. DeStefano. In that case, white and Hispanic firefighters in New Haven, Connecticut sued the city, claiming they were denied promotion because of their race. For those of you who have not heard (this case has been all over the news and now plays a significant role in the Supreme Court confirmation hearings for Judge Sonia Sotomayor), the Supreme Court issued a decision on the case on June 29, 2009.

In a 5-4 decision (written by Justice Kennedy and in which Justices Roberts, Scalia, Alito, and Thomas joined), the Supreme Court decided in favor of the firefighters and held the city's action in discarding the promotion test results violated Title VII.

The city argued they discarded the test results because the results appeared to violate Title VII's disparate impact provisions. Specifically, the city argued the test results favored white and Hispanic firefighters over black firefighters. The white firefighters, however, argued the city engaged in disparate treatment discrimination against them. Justice Kennedy sought to resolve the conflict between disparate impact and disparate treatment provisions in Title VII. In doing so, he adopted the "strong-basis-in-evidence standard" to resolve any conflict between disparate treatment and disparate impact provisions.

Justice Kennedy wrote that before an employer can engage in intentional discrimination, the "employer must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action." Justice Kennedy found the city had no strong basis in evidence that the promotion tests were inadequate or flawed. Justice Kennedy also held fear of litigation alone is not enough.

Moving forward, therefore, employers must remember this strong-basis-in-evidence standard when making race-based decisions in the workplace. Does the employer have a history of racial disparity? Is the employment decision-making process open and fair? What exactly forms the basis for the employer's decision to make a race-conscious decision?

The more interesting (and less discussed) portion of the Court's decision in Ricci is Justice Scalia's concurrence. Justice Scalia argues an inherent conflict between the disparate treatment and disparate impact provisions in Title VII. Justice Scalia argues any race-based decisions made to remedy potential disparate impact are in fact disparate treatment discrimination decisions. Justice Scalia seems to indicate both a willingness and desire to remove disparate impact protection. Although we do not anticipate any such move (based on the Court's current membership), this concurrence may provide support for employers in district and appellate courts as they address lawsuits which invoke the Ricci decision.

Are you ready for the new minimum wage?

On Friday, July 24, 2009, the federal minimum wage will increase to $7.25/hour. Are you ready? Take this simple quiz:

1. Do you have proper posters that detail the new minimum wage for all your work locations? The same poster for all locations may not be sufficient.

2. Are you prepared for the overtime consequences of a mid-week and/or mid-pay period change in hourly rates? Calculating overtime when the hourly rate changes during the relevant period can be difficult. The money you save by not changing the hourly rate at the beginning of the pay period may be insignificant when compared to the cost of administering payroll for that same period.

3. If you have tipped employees subject to the "Tip Credit," do you have sufficient employee notices posted to qualify for the Tip Credit? A failure to post sufficient notices regarding the Tip Credit could make an employer ineligible for the Tip Credit.

4. Are you monitoring state minimum wage increases? Nearly half of all states have a minimum wage increase scheduled for July 2009, including some states whose increase already became effective on July 1, 2009.

If you cannot answer "Yes!" to each of these questions, we suggest you get started because July 24 will be here before you know it.

Coles Corner Winning Wine: June 2009 (Archive)

June 2009: August Briggs' 2006 Charbono is an uncommon grape that is easily accessible. The wine brings the earthiness of a Malbec but delivers without overpowering. The tannins are light and the flavor is bold yet smooth with a hint of smokiness and spice.

Big Win for Employers

On June 18, 2009, the United States Supreme Court issued a decision which gave employers a big win in the employment litigation arena. In Gross v. FBL Financial Services, Inc., No. 08-441, the Supreme Court addressed mixed-motive cases of age discrimination under the Age Discrimination in Employment Act ("ADEA").

Mixed-motive employment cases are cases in which an employee alleges he suffered an adverse employment action because of both permissible and impermissible considerations. In the Gross case, the Plaintiff alleged at trial that he was reassigned and demoted at least in part on his age. The trial court instructed the jury that it must return a verdict for the Plaintiff if the Plaintiff proved that age was a motivating factor in the Defendant's decision to demote the Plaintiff. The jury then found for the Plaintiff. After the Eighth Circuit Court of Appeals reversed the decision (requiring the Plaintiff prove age was the motivating factor), the Supreme Court granted review.

The Supreme Court, in a majority opinion authored by Justice Clarence Thomas and in which Chief Justice John Roberts, Justice Antonin Scalia, Justice Samuel Alito, and Justice Anthony Kennedy joined, vacated the Court of Appeals decision and held a plaintiff bringing an ADEA disparate treatment claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challeneged adverse employment action.

You may be asking why the Supreme Court vacated the Court of Appeals decision when it appears the two were in agreement. Why not simply affirm the Court of Appeals decision? The Court of Appeals decision held the trial court incorrectly instructed the jury under the standard established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In a move sharply criticized by Justice John Paul Stevens in his dissent, Justice Thomas' opinion held the Court of Appeals was in error because a Price Waterhouse jury instruction is never proper in an ADEA case.

In the majority opinion, the Supreme Court held interpretation of the ADEA is not governed by Title VII decisions such as Price Waterhouse because Title VII is materially different with respect to the relevant burden of persuasion. Specifically, Justice Thomas stated "[u]nlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." Justice Thomas also pointed out Congress never added such a provision to the ADEA when it amended Title VII, "even though [Congress] contemporaneously amended the ADEA in several ways..."

Moving forward, therefore, "[t]o establish a disparate-treatment claim under the plain language of the ADEA...a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision." Furthermore, "the plaintiff retains the burden of persuasion to establish that age was the 'but-for' cause of the employer's adverse action."

Whatever your belief regarding the soundness of this opinion, employers certainly benefit greatly. This decision also firmly settles the law regarding mixed-motive analysis in ADEA cases (joining the previously-settled law in Title VII cases). The unanswered areas, though, are ADA cases, as well as state discrimination claims and Section 1981 race discrimination and retaliation claims. It looks like we just may be headed to overtime...