Tag Archives: employment

Special Touch Home Care Services, Inc.(29-CA-26661; 357 NLRB No. 2) Brooklyn, NY, June 30, 2011

This case, on remand from the Second Circuit, involved a strike by employees of a home health care provider.  The Board majority, consisting of Chairman Liebman and Member Becker, found that the employer violated the Act by refusing immediate reinstatement to 47 economic strikers.  The Union had provided the employer with timely notice of the strike, as required by the Act when striking a health care institution.  The employer contended, however, that it lawfully denied immediate reinstatement because the 47 employees told the employer during a pre-strike poll that they planned to work during the time period of the strike and because they failed to comply with an employer rule that required them to notify the employer if they would not be reporting to work for any reason.

In rejecting the employer’s arguments, the Board majority noted that employees are not required to give individualized advance notice of their intent to participate in a strike, that there was no evidence that the employees’ conduct created an imminent danger, and that there was no evidence of a concerted effort to mislead the employer in responding to the poll.  Dissenting, Member Hayes found that the employer had shown a sufficiently compelling business justification for enforcing its notification rule, that this justification outweighed the minimal burden imposed on employees’ protected right to strike, and that the majority’s position eviscerated the usefulness of the pre-strike poll.

Chairman Liebman and Members Becker and Hayes participated.  Member Pearce was recused and took no part in consideration of the case. Charge filed by New York’s Health and Human Service Union 1199/SEIU.  Adm. Law Judge Raymond P. Green issued his decision on September 15, 2005.  The Board issued a Decision and Order on September 29, 2007, and the United States Court of Appeals for the Second Circuit remanded the case to the Board on May 12, 2009.

U.S. Supreme Court Extends “Public Concern” Test To Lawsuits Brought By Public Employees Under The First Amendment’s Petition Clause

The U.S. Supreme Court Has provided some much needed guidance on when public employers may violate their employees’ right to petition the government for redress of grievances under the First Amendment.  In order to prove that the government violated his rights under the Petition Clause of the First Amendment, a public employee must now show that his petition related to a matter of “public concern,” as opposed to a private employment grievance.  This standard is substantially the same as the test applied under the Free Speech Clause of the First Amendment.

Writing for six other justices in Borough of Duryea, Pennsylvania v. Guarnieri, Justice Kennedy explained that while courts should not presume that there is always an equivalence between the Speech Clause and the Petition Clause, there is “extensive common ground in the definition and delineation” of the rights protected by the respective clauses justified extending the same “public concern” test to both the exercise of free speech by public employees and their right to petition the government.

The public concern test was first developed to protect the “substantial government interest” in preventing government employees from “constitutionaliz[ing]” the employee grievance process. [and clogging the court system with internal government matters]. Because public employees could readily bring the same claim under either the Speech or Petition Clauses, the Court reasoned that adopting a lower standard for claims brought under the Petition Clause would provide public employees a “ready means…to circumvent the [public concern] test’s protections.” However, the Court explicitly stated that this analysis only applies when a public employee is acting in his capacity as an employee. Rather, “[w]hen a public employee seeks to participate, as a citizen, in the process of deliberative democracy, either though speech or petition, it is necessary to regard the employee as the member of the general public he seeks to be.”

The Court’s full opinion can be found at: http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf  read more

Watch For Vicarious Liability For Employee Negligence

Employers are often liable to third parties for their employees’ wrongful acts. This liability is known as respondeat superior or vicarious liability. An employer can be liable for an employee’s conduct even when the employee’s wrongful conduct violates a work rule or the employee acts on his or her own in violation of supervisory direction.  Rogue employees can be dangerous. An employer can be liable even when an employee injures his or her family member. That was recently addressed in Rahman v. State, 170 Wn.2d 810 (2011).

In Rahman, a Washington state employee drove his wife as an unauthorized passenger in a state vehicle on a business trip to inspect a construction site. During the trip, he failed to negotiate a curve and his car left the roadway and struck a tree, rolling several times. His wife was badly injured. She sued the State for vicarious liability under the doctrine of respondeat superior for her husband’s negligence. The State rejected responsibility because the husband had used the State vehicle to transport an unauthorized passenger outside the scope of his employment. Initially, the trial court agreed with the State, holding that vicarious liability did not apply when the injured party was an unauthorized passenger. The appellate court reversed holding in favor of the wife. The State then appealed to the Washington Supreme Court.

The State Supreme Court began its analysis, reaffirming the rule that an employer is liable for the negligent acts of its employees that are within the scope or course of employment. The Rahman court noted that the husband was engaged within the scope of his employment when driving to the construction site and had not departed on a “frolic or detour.” The Rahman court concluded that, although the husband had combined his own business [i.e., giving his wife an unauthorized ride] with the State’s business, his trip and route taken were dictated by official State business and that the State would therefore be liable under the doctrine of respondeat superior. While the employer may impose workplace rules and standards, vicarious liability may be found even where the employee acts in a forbidden way. The fact that the husband acted against policy by inviting his wife to ride with him in a State car did not defeat the State’s vicarious liability for the accident because his conduct was in the service of the State’s business at the time of the accident.

The takeaways from Rahman can be chilling for employers. Even if you have a workplace safety rule which the employee violates, you may be responsible for harm caused by that employee’s negligence, even while violating the rule including in lawsuits filed by family members against your employees. An employer’s best defense is to train and educate its employees on work rules, discipline employees for violation of those rules, and if necessary, terminate the employees when they violate them. Such conduct will have the salutary effect of warning other employees to comply with work rules and potentially avoid the incident that leads to vicarious liability for the employer under respondeat superior. Nonetheless, as the Rahman court underscored, the fact that an employee’s conduct which leads to the harm is in violating workplace rules, is not necessarily or even probably a defense to employer’s liability for its employee’s wrongful conduct.

Visa Bulletin – July 2011

Number 34
Volume IX
Washington, D.C.

A. STATUTORY NUMBERS
1. This bulletin summarizes the availability of immigrant numbers during July. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by June 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First (F1): Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third (F3): Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth (F4): Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family- Sponsored All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
F1 01MAY04 01MAY04 01MAY04 08MAR93 15APR96
F2A 22MAR08 22MAR08 22MAR08 15FEB08 22MAR08
F2B 01JUL03 01JUL03 01JUL03 22SEP92 22SEP00
F3 15JUL01 15JUL01 15JUL01 15NOV92 22MAR92
F4 08MAR00 08MAR00 08MAR00 01MAR96 15MAY88

*NOTE: For July, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15FEB08. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15FEB08 and earlier than 22MAR08. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)
5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 08MAR07 08MAR07 C C
3rd 08OCT05 01JUL04 01MAY02 01JUL05 08OCT05
Other Workers 22NOV04 22APR03 01MAY02 22NOV04 22NOV04
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted Employment Areas/ Regional Centers and Pilot Programs		 C C C C C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6. The Department of State has a recorded message with visa availability information which can be heard at:             (202) 663-1541      . This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2011 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For July, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas
Except Those Listed Separately		 Except
AFRICA 57,600 Egypt 35,000
Ethiopia 30,650
Nigeria 18,500
ASIA 33,775
EUROPE 33,000 Uzbekistan 28,200
NORTH AMERICA
(BAHAMAS)		 12
OCEANIA 1,400
SOUTH AMERICA,
and the CARIBBEAN		 1,400

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2011 program ends as of September 30, 2011. DV visas may not be issued to DV-2011 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2011 principals are only entitled to derivative DV status until September 30, 2011. DV visa availability through the very end of FY-2011 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN AUGUST

For August, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas
Except Those Listed Separately		 Except
AFRICA 71,800 Ethiopia 32,400
ASIA 39,750
EUROPE CURRENT Uzbekistan UNAVAILABLE
NORTH AMERICA
(BAHAMAS)		 CURRENT
OCEANIA CURRENT
SOUTH AMERICA,
and the CARIBBEAN		 CURRENT

D. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs publishes the monthly Visa Bulletin on their website at www.travel.state.gov under the Visas section. Alternatively, visitors may access the Visa Bulletin directly by going to:

http://www.travel.state.gov/visa/bulletin/bulletin_1360.html.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin First name/Last name
(example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at:             (202) 663-1541      . The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by e-mail at the following address:

visabulletin@state.gov

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514

CA/VO: June 8, 2011