IN THIS ISSUE:

2007 Section Officers

Chairperson
Amy Yager Jenkins
843-720-4365
amy.jenkins@nelsonmullins.com

Chairperson-Elect
J. Hagood Tighe
803-255-0000
htighe@laborlawyers.com

Vice-Chairperson
Charles E. “Chuck” McDonald III
864-271-1300
charles.mcdonald@ogletreedeakins.com

Secretary
Regina H. Lewis
803-253-8271
rlewis@nexsenpruet.com

Council Members

Section Delegate
L. Gregory Horton
843-722-3400
ghorton@bmsmlaw.com

Immediate Past Chairperson
William H. Floyd III
803-253-8201
wfloyd@nexsenpruet.com

CLE Coordinator
Nekki Shutt
803-256-2371
nekkishutt@ctrlawfirm.com

Newsletter Coordinator
David Rothstein
803-251-0202
derothstein@mindspring.com

Committee Chairpersons

Labor Mgmt Relations Committee
Allan R. Holmes
843-722-0033
aholmes@gibbs-holmes.com

Specialization Committee
Molly Hughes
843-577-9440
mhughes@nexsenpruet.com

Education Committee
Jim O. Stuckey II
803-231-2500
jstuckey@littler.com

Immigration Law Committee
Lawrence J. Needle
803-376-1203
lneedle@lawrencejneedlepa.com

EEO Committee
Kristine L. Cato
803-227-2277
kcato@mgclaw.com

Membership Committee
Debbie Durban
803-255-9465
debbie.durban@nelsonmullins.com

Occupational Safety & Health Committee
Rita M. McKinney
864-271-4940
rmckinney@mcnair.net

Notes from the Chair
By Amy Y. Jenkins, Esquire
Nelson, Mullins, Riley & Scarborough, LLP, Charleston

The Employment and Labor Law Section of the South Carolina Bar hosted the 23rd Annual North Carolina/South Carolina Employment Law Update in Charleston on November 2-3, 2007. Nekki Shutt, as the CLE Coordinator for the Section, did an excellent job arranging topics and speakers of interest. Approximately 200 attendees were treated to Jon Harkavy's annual Supreme Court Update and were scared into action by Sarah Montgomery's update about electronic discovery obligations. In addition to the excellent repeat topics utilized each year, such as the Fourth Circuit Review, and the South Carolina Update, several new topics were included on the agenda, such as a summary of HIPPA non-discrimination requirements and a presentation on school law. Additionally, Council Member Greg Horton, and his Horton & Owens Band, entertained the attendees at a reception on Friday evening, which was sponsored by the Section. Click here to see photos. This year, for the first time, attendees will be asked to rate the seminar via an on-line survey, and the results will help with next year's seminar planning. Next fall the seminar will be back in Asheville, North Carolina but will return to the Charleston area in 2009.

 


Fourth Circuit recognizes different decision maker exception to the requirements for a Prima Facie case of discrimination
By Micheal Pito, Esquire
Nexsen Pruett, Greenville

A plaintiff must ordinarily demonstrate that he or she was replaced by someone outside their protected class to establish a prima facie case of employment discrimination. However, in Lettieri v. Equant, Inc., 478 F.3d 640 (4th Cir. 2007), the Fourth Circuit Court of Appeals recently affirmed an exception to this requirement where the termination and replacement decisions were made by different people.

Case background/alleged facts
Lorraine Lettieri was employed by Equant, Inc., and its predecessor company, Global One, from 1989 until her termination in July 2002. She served as director of the Equant business unit that was the exclusive provider of certain telecommunication services to a large customer, Sprint. After Equant and Global One merged, Equant reorganized Lettieri’s division, in the process creating a new management position called “Head of Sprint Channel.”

Sean Parkinson, the senior vice president responsible for filling this position, interviewed each candidate, including Lettieri and a male co-worker, Michael Taylor. During her interview, Lettieri was asked many personal questions, including whether she had any children, what her childcare responsibilities were, and how her family felt about her weekly commute to Equant’s Virginia headquarters. Afterward, Lettieri expressed concerns to her supervisor about the comments made during the interview. However, no action followed.

Equant awarded the position to the male candidate, Taylor, explaining to Lettieri that he had more experience, had grown children, and had committed to relocating to Virginia. Lettieri related her disappointment to a human resources representative, but said clearly she wanted no action taken. At her request, Equant did nothing at that time.

After Taylor took over, he directly supervised Lettieri and one other female employee. Shortly thereafter, in November 2001, Lettieri again complained to human resources, this time about intolerable treatment from Taylor that allegedly included screaming and cursing at her. Human resources again took no action.

After Global One’s merger with Equant, Sprint’s business declined and in December 2001 Equant was forced to restructure the Sprint Channel unit. The proposed restructuring essentially called for Lettieri’s demotion, and she immediately complained; Taylor did not implement the proposal at that time but, within weeks of the complaint, he took away significant aspects of Lettieri’s job responsibilities.

In March 2002, Taylor recommended that Lettieri be terminated as the quickest way to reduce costs, and the decision to do so was made in June of 2002. After the decision was made to terminate Lettieri, Taylor sent an internal e-mail recommending a male candidate to fill her position. Taylor was informed Lettieri could not be replaced for at least 6 months under company policy. Lettieri was notified that her position was being eliminated in July 2002.

New management subsequently came on board and realigned the Sprint Channel business unit. As part of the realignment, Taylor was effectively demoted to Lettieri’s former position and later asked to resign. New management replaced Taylor with Gregory DeMarco, who called Lettieri shortly thereafter to ask for help and guidance on how to do the job. Although Equant had maintained that Lettieri’s job had been eliminated, two Sprint Channel business unit organizational charts showed she had occupied the same position DeMarco currently held.

Procedural posture of the case
After filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), Lettieri sued Equant alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, retaliation, and breach of contract. The district court granted summary judgment in favor of Equant, finding Lettieri failed to make out a prima facie case of employment discrimination because she could not demonstrate she was replaced by someone outside the protected class. Similarly, the district court found her retaliation claim defective because Lettieri’s complaints of discrimination and her ultimate termination were more than seven months apart.

The Fourth Circuit’s ruling
The Fourth Circuit disagreed, analyzing Lettieri’s Title VII claim under the well-established, three-step burden-shifting paradigm first recognized by the U.S. Supreme Court in McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973). Under McDonnell Douglas a plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate business reason for the challenged employment decision. If the employer does so, the burden then returns to the plaintiff to establish that the employer’s stated reason is false.

To establish a prima facie case, the Fourth Circuit had long required that a terminated employee show she was replaced by someone outside of the protected class. Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d. 277 (4th Cir. 2004). Equant successfully argued before the lower court that Lettieri was not replaced, but that her position was eliminated. Bolstering the lower court’s conclusion was the fact that a completely different management team hired DeMarco, Lettieri’s replacement, than the person who terminated her, Taylor. Accordingly, the district court reasoned there could be no discriminatory animus imputed to Equant.

The Fourth Circuit found error. Not only did the Court determine Lettieri had been replaced, it also confirmed that the requirement of a replacement outside the protected category in this instance had no bearing on Lettieri’s case. Specifically, the court recognized where the firing and replacement hiring are made by different decision makers, the plaintiff need not establish replacement outside the protected class. Because the second hiring decision had no probative value on whether the employment act being challenged – i.e., Lettieri’s firing – was motivated by her protected status, the Fourth Circuit concluded the solution was simply to relieve the plaintiff of her burden to establish replacement outside the protected class.

The analysis did not end there, however, because Equant articulated a legitimate non-discriminatory reason for its actions – namely, that Lettieri was terminated to provide a quick antidote for revenue shortfalls from the declining Sprint business. The burden then shifted back to Lettieri to show that the articulated reason was pre-textual in nature.

The Fourth Circuit determined Lettieri showed pre-text because 1) immediately after deciding to eliminate her position, Taylor, her boss, had sent the internal e-mail asking for approval to replace her with a male; and 2) Lettieri’s job duties were essentially reassigned to her replacement, DeMarco, who according to the organizational charts occupied the identical position she had held.

Perhaps most fatal to the employer’s summary judgment motion was Lettieri’s testimony concerning the sexist and degrading remarks made by Taylor, as well as the questions about her family situation posed during the interview process. Under these circumstances, the court determined Lettieri had raised a triable issue concerning the legitimacy of any contention that her position had simply been eliminated.

The district court also dismissed Lettieri’s retaliation claim, finding no retaliation where over seven months had passed between her first complaint to the human resources department and her termination. The Fourth Circuit disagreed, finding that Lettieri’s job duties and authority began to be reduced in a significant way shortly after she voiced her concerns to the company.

What does this case mean for employers?
Any termination involving the elimination of a position will be subject to higher scrutiny, particularly in situations where the person making the firing decision and subsequent hiring decision are not the same. With respect to claims of retaliation, the Lettieri decision also signals that courts will examine all aspects of an individual’s employment that might be impacted when an employee complains of discrimination.

Moreover, this decision and the U.S. Supreme Court’s recent decision in Burlington Northern & Sante Fe Railroad Company v. White, ___ U.S. ___, 126 Sup. Ct. 2045, 165 L. Ed. 2d 345 (2006) – which was discussed in detail in the August 2006 newsletter, (http://www.nexsenpruet.com/assets/attachments/289.pdf) – highlight that employment decisions short of termination can give rise to a claim of retaliation.

Accordingly, employers should proceed carefully when making any decision to eliminate a particular position and must be cautious in reassigning any of the terminated employee’s job duties. Courts are increasingly willing to look beyond superficial items like job titles and generic business justifications that a position was “eliminated” as a cost-saving function.

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A broadside1 from the employer's perspective
By Allan R. Holmes, Esquire
Gibbs & Holmes, Charleston

The Rule Requiring Only Reasonable Good Faith Belief in Cause for Termination Should Apply to All Employment Contracts Which Abrogate the At-Will Doctrine — Not Just Unilateral Contracts of the Type Recognized by Small v. Springs Industries.

The South Carolina appellate courts have recognized that an employer may successfully defend an employee’s claim that his employment was terminated in violation of a contract requiring cause for termination without actually proving good cause for termination. It is enough if the employer held a reasonable good faith belief that cause for termination existed. See, i.e., Conner v. City of Forest Acres, 348 S.C. 454, 464-65, 560 S.E.2d 606, 611 (2002)2:

The appropriate test on the issue of breach is as follows: “If the fact finder finds a contract to terminate only for cause, he must determine whether the employer had a reasonable good faith belief that sufficient cause existed for termination.” Prescott v. Farmers Telephone Co-op., Inc., 328 S.C. 379, 393, 491 S.E.2d 698, 705 (Ct.App.1997), rev'd on other grounds, 335 S.C. 330, 516 S.E.2d 923 (1999). We note that the fact finder must not focus on whether the employee actually committed misconduct; instead, the focus must be on whether the employer reasonably determined it had cause to terminate

Read literally, this test states that the employer — as long as it is acting in good faith — is entitled to be mistaken about either, or both, of two assessments: 1) The employer may be mistaken as to whether the employee did what the employer thought the employee did; 2) The employer may be mistaken as to whether what it thought the employee did furnished a legal ground for termination. In either situation, a reasonable good faith belief serves as a defense to an employee’s claim that his employment was wrongfully terminated.

For purposes of applying the “good faith” termination rule, there is no logical distinction between the unilateral employment contracts placed at issue in Prescott and Connor and bilateral employment contracts. Indeed, the cases which establish the rule say nothing about why such a rule applies more appropriately to a unilateral contract than to any other employment agreement. Indeed, in a case which post-dates Connor and Prescott, a literal reading of the court’s opinion authorizes application of the rule to every employment contract: “When an employment contract only permits termination for cause, the appropriate test on the issue of breach focuses on whether the employer had a ‘reasonable good faith belief that sufficient cause existed for termination.’.” Nelson v. Charleston County Parks & Recreation Com’n, 362 S.C. 1, 11, 605 S.E.2d 744, 749 (Ct. App. 2004).

Prescott provides the best expression of the reasoning underlying the rule:

“Employers cannot be expected to act as judges, so the test is not whether the employee actually committed misconduct, but whether the employer had a reasonable good faith belief that it had cause to terminate.” 328 S.C. at 393, 491 S.E.2d at 705 (emphasis added). Thus, the rule is explicitly tied to the employment relationship, and we may surmise that the rule has been formulated in consideration of the special nature and needs of that relationship. The Court has tacitly recognized that the economic benefits provided by a healthy economy will be compromised if anything more than a reasonable good faith belief is required of an employer who seeks to terminate an employment relationship for cause. An employer who is a party to an employment agreement for a definite term is no more capable of acting as a judge under that contract than he is under any other type of employment agreement requiring cause for termination.

Thus, the “reasonable good faith belief in cause for termination” rule should apply to all employment agreements, which require cause for termination.

Even though there is no logical reason why this rule shouldn’t apply to all such employment agreements,3 the rule seems especially appropriate where the employment agreement is one for a specific term but does not include a definition of cause. As the Supreme Court held in Cape v. Greenville County School Dist., 365 S.C. 316, 618 S.E.2d 881 (2005), such a contract creates a “mere presumption” that cause is required for its termination. Such a presumption should be considered in the context of controlling legal authorities. Those authorities hold that a good faith belief in cause for termination is sufficient cause for termination, and there is no reason not to include this definition of cause when applying the presumption.

Conclusion
The South Carolina appellate courts have created a special rule for determining whether or not cause exists for termination of a unilateral employment agreement. The rule only requires that an employer have a “reasonable good faith belief” that cause exists for termination of employment. The rule should be applied to all employment agreements, which require cause for termination, and, in particular, to employment agreements for a specific term but which do not include a definition of “cause.”

Allan R. Holmes, Gibbs & Holmes © 2007.


Footnotes

1This memo is not intended to provide a balanced analysis of the legal issue presented, but to provide an argument favoring one position in the hope that it will produce an argument to the contrary.

2Notes in text are omitted.

3One might argue that where “cause” is specifically defined by the agreement, the parties have fully addressed the issue of “cause.” As they had the opportunity to include the “good faith belief rule” in their definition, but chose not to include it, it may be contended that parties intended to exclude the rule. Of course, such an argument could be made in the context of a unilateral employment contract, but Connor, Prescott and Nelson tacitly reject it.

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Social Security Administration issues "No Match" rule
By Lawrence J. Needle, Esquire
Lawrence J. Needle, P.A., Columbia

The Social Security Administration (SSA) issued a final rule effective September 14, 2007 regarding I-9 employment verification and the receipt of "no match" letters from the SSA. The employer sanctions provisions of the 1986 Immigration Reform and Control Act of 1986 (IRCA) govern the manner in which employers may be held liable for failing to complete, or improperly completing, an I-9 form for each employee hired. Similarly, employers may be held liable if the employer has either actual or constructive knowledge that a worker is not authorized for employment in the United States. In addition, however, IRCA includes penalties for citizenship and national origin discrimination and for those employers committing document abuse.

Most violations prosecuted by the government in the past have concerned paperwork violations. For example, an employer has always been required to accept documents such as driver’s licenses and social security cards at face value if those documents appeared genuine on their face. In other words, an employer could not refuse one of those documents if they appeared authentic without subjecting itself to potential claims of national origin or citizenship discrimination. Very few employers were ever subject to fines for actual knowledge that an employee was unauthorized to work.

Under the new regulations, however, the government now has an additional weapon at its disposal to demonstrate that an employer has “constructive knowledge” that an employee is not authorized to work in the United States. If an employer follows guidelines in the regulations, however, after receiving a “no match” letter from the SSA, the employer is provided a “safe harbor” defense should the government later seek to charge the employer with constructive knowledge that an employee has no valid working status in the United States.

According to the government’s website, an employer must take a number of steps in the event it receives a "no match" letter and apply all such steps equally with respect to any of its employees. Because the government recognizes that the social security records are not infallible, the immigration service first requires an employer to check for clerical errors within 30 days to ensure that the no match result was not the fault of a clerical error on the part of the employer. If this does not resolve the problem, the employer must then request the employee to confirm whether or not the employer’s records are accurate. An employer may ask the employee to resolve any discrepancy with the Social Security Administration, but in no event may the employee fail to resolve the matter with the SSA within 90 days of the employer’s receipt of the SSA letter.

If an employer is actually able to successfully resolve the “no match” within 90 days, the employer should ensure that the Social Security Administration has corrected its own records by using the social security number verification service and also keep a copy of the date and time of verification. The verification service can be found at www.socialsecurity.gov/employer. The telephone number is 1-800-772-6270.

The Department of Homeland Security indicates that, if none of these measures resolve the issue within 90 days of receipt of the "no match" letter, the employee must complete within three days a new I-9 form with additional documentation verifying the employee’s work authorization. However, the employee may not utilize any document containing the prior social security number in dispute. Furthermore, the employee is required to provide a photograph establishing his/her identity.

If the new I-9 cannot be completed within three days after 90 days of receipt of the no match letter, the employer must terminate the employee. Otherwise, the employer risks civil, and even potential criminal, liability for continuing to hire an unlawful worker. If the employer continues to hire such workers, the employer will be deemed to have constructive knowledge of an employee’s unauthorized status. However, employers should not terminate employees without first attempting to resolve the "no match" letter, or treat certain employees differently from other employees, in order to avoid any potential charge of employment discrimination.

As a result of these regulations, there has been a genuine uproar from the business community, as well as the AFL-CIO, other unions, etc. complaining that enforcement of these regulations could be tremendously disruptive to the economy and could easily lead to the termination of employees who actually do have appropriate work authorization but which cannot be verified due to inadequate or incomplete records from the SSA. Just recently, a federal district court judge in California issued a preliminary injunction enjoining the Department of Homeland Security from enforcing regulations at least until October 1, 2007, when a separate federal judge will consider whether or not to grant a permanent injunction.

Advocates for different groups have argued, among other things, that the no-match rules could be used as a pretext to fire employees if they report a wage claim, or workplace hazard, or if they get injured on the job. Others have claimed that both the DHS and SSA have overstepped their constitutional bounds in issuing the regulations, claiming that the DHS and SSA cannot use wage and tax data in order to enforce immigration law. Others have taken a more practical approach in arguing that SSA records are sometimes incomplete or plain inaccurate which could lead to employers dismissing employees who actually have appropriate work authorization. These scenarios could potentially lead to discrimination against those employees who are terminated because they appear to be foreign if employers otherwise fear being slapped with civil, or even potential criminal, sanctions. Unfortunately, in the absence of comprehensive immigration reform, businesses face heightened scrutiny and even greater responsibilities each time they receive a "no match" letter.

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Supreme Court slams door on “outrage” claim and stresses Circuit Court’s “gatekeeping” function at summary judgment stage
By Jim O. Stuckey II, Esquire
Littler Mendelson, P.C., Columbia


The South Carolina Supreme Court recently gave employers in South Carolina hope that courts will be more receptive to summary judgment motions in employment cases – at least as to claims of intentional infliction of emotional distress.

In Hansson v. Scalise Builders (Opinion No. 26369), which was decided August 13, 2007, a construction worker sued his employer and his supervisor, alleging that the supervisor and co-workers had constantly derided him with callous and sexually offensive remarks and gestures. The employee pursued several claims that were all dismissed by the trial court at the summary judgment stage, but when the employee appealed, the Court of Appeals reinstated his claim for intentional infliction of emotional distress. The Court of Appeals reasoned that because reasonable minds could disagree as to whether the conduct at issue had been sufficiently outrageous, the claim of intentional infliction of emotional distress should have survived summary judgment.

However, the Supreme Court granted certiorari and reversed the Court of Appeals, holding that the trial court had properly dismissed the claim on the employer’s summary judgment motion. The Supreme Court ruled unanimously that because the employee had not come forward with evidence of “severe” emotional distress, the claim had to be dismissed as a matter of law. The Court stressed that a circuit court must consider all four of the elements in a claim for intentional infliction of emotional distress when ruling on a summary judgment. A court cannot simply find a genuine factual dispute exists on one element of the claim and then stop the analysis at that point. The absence of a genuine issue of material fact on any of the elements of the claim is fatal to that claim at the summary judgment stage. Consequently, the Court ruled that even though reasonable minds might disagree about whether the slurs and gestures allegedly lodged at the employee were outrageous, there was no credible evidence that the employee had suffered severe emotional distress as a result of those insults.

Even more significantly for employers in South Carolina, the Supreme Court emphasized – at least as to claims of intentional infliction of emotional distress -- that trial courts have a “significant gatekeeping role in analyzing a defendant’s motion for summary judgment.” It remains to be seen whether the Supreme Court will emphasize the importance of that gatekeeping role as to other types of claims in the employment context.

In the Hansson case, the supervisor who had allegedly participated in the intentional conduct directed toward the employee happened to be the owner of the company. In cases in which employees file claims of intentional infliction of emotional distress against employers based solely on the actions of supervisors and co-employees who are not the owner or “alter ego” of the company, such claims likely will be barred by the exclusivity provisions of the South Carolina Workers Compensation Act. See, e.g., McClain v. Pactiv Corp., 360 S.C. 480, 602 S.E.2d 87 (Ct. App. 2004). Thus, despite the Court’s emphasis in Hansson on the trial court’s “gatekeeping” function to make sure employees do not use claims of intentional infliction of emotional distress as “a panacea for wounded feelings rather than reprehensible conduct,” it remains to be seen whether the South Carolina courts will extend this type of rigorous analysis to other types of employment claims.

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Self-employment under U.S. Immigration law
By Allen C. Ladd, Esquire
Allen C. Ladd, P.C., Greenville

Introduction
Many immigration practitioners will tell you that U.S. immigration law is not receptive to self-employment: As a rule, it is up to a U.S. employer to sponsor you.

After nearly twenty years of handling work visa cases in this field, I have to say I find little room for argument.

But let’s “think outside the box” for a moment. While the general rule holds true, there are a handful of visa categories that do allow entrepreneurs and business executives – that is, the real actors in a business – to qualify for visas. These individuals will be expected to sow the seeds and help the business grow over time. As a rule they must also employ American workers, and manage at least an essential part of the business operation. But the point is, they can do it -- and make their own kind of music.1

When will this be possible?

In this newsletter, I’m going to review several work visa categories that might allow for self-employment, or “employment autonomy” as we might call it. In the next newsletter, we’ll look at several options to taking it to the next step -- getting a “green card” (that is, permanent residence).

Work Visas
What is a “visa?" Foreign nationals must get the permission of the Federal government in order to visit, study, receive medical care, solicit business, and engage in employment in the United States. This permission often is in the form of a visa.2

What is a “work visa?" By this I mean a temporary authorization to work in the United States. As a starting point, only U.S. citizens and permanent residents – no one else –
can work without having to get a work visa or work permit.3

What work visas are available for self-employment and employment autonomy, then?

1. Management Consultant under NAFTA (TN visa or status)
NAFTA (the North American Free Trade Agreement) offers a path – albeit a very narrow, winding path – to short-term self-employment. Access is limited to Canadian and Mexican citizens only, and to a very, very small number of these.

To be more precise, admission as a “Management Consultant” under NAFTA is available, if the individual can demonstrate that:

• He or she has either a baccalaureate degree in a field related to the consulting, or five years' experience in consulting or a related field.
• He or she intends to come only for a short period (generally no more than one year), and has no intention in applying for permanent residence.
• The purpose is to advise a U.S. corporate management on solving a particular problem or set of problems, or improving a particular area of the company’s business.
• The individual will not be part of the regular work force but will either be an independent contractor or will be a “supernumerary” employee.
• Once the assignment is over, he or she will move on (either back to the home country or to another assignment as management consultant).

The Government advises its border inspectors that a management consultant is someone who “provides services which are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals, objectives, policies, strategies, administration, organization, and operation. Management Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities.”4

What makes the Management Consultant occupation so difficult to obtain? It is because US immigration personnel have developed a healthy suspicion, over the years, of applicants’ credentials, and of the nature, and duration, of intended consulting assignments. It is best to approach this classification very carefully indeed, or risk stranding the applicant at the border.

Entry under NAFTA is absolutely not appropriate for permanent residence. Note the baseline requirements of temporary assignment, temporary intent.

2. Treaty Trader or Treaty Investor (E-1 and E-2 visas)
The United States has entered into treaties with several dozen foreign nations5, that allow their nationals to obtain renewable work visas, as principals, either in:

(a) Established and sufficiently capitalized businesses that will employ U.S. citizens (hence the notion of “treaty investment”); or
(b) businesses which will trade in goods or services (hence, “treaty trading”).

To qualify for the E-1 visa, the applicant must show that he or she has established a business that will engage in “substantial” trade with the home country. “Trade” can be in goods or services. An importer of Iranian or Pakistani rugs, a German engineering consultant, a French accounting firm, might conceivably qualify.

To qualify for the E-2 visa, the applicant must have invested, or be irrevocably committed to investing, a “substantial” amount of at-risk capital into a “real and operating commercial enterprise.” He or she must also prove that the investment is more than a “marginal” one solely for earning a living, and that he or she is in a position to "develop and direct" the enterprise.

In both of the “E” classifications, the applicant must persuade the immigration authorities that he or she has a firm intention to depart from the United States when (and if) the E-1 or E-2 status terminates. For this and other reasons it is rarely compatible with a plan to move up to permanent residence.

There is no minimum investment amount, provided the amount invested is “substantial” enough, roughly speaking, to generate a sufficient return on the investment to provide for employment of U.S. workers. The E-2 principal must also develop and direct the operation. The E-1 principal will probably do this as a matter of course.

In sum, U.S. immigration law may favor an applicant from a “treaty country” if he or she is a principal in a qualifying, ongoing and active business.

3. Multinational Executive-Level Transferee (L-1A visa)
Principals may qualify for work visas to direct the operations of new or existing U.S. companies, if they have overseas affiliates, subsidiaries or parent companies. They must have been employed by the overseas organization for at least 12 continuous months prior to the transfer. This option is open to nationals of any foreign country.

Unlike the “E” and “TN” classifications, the L-1A visa allows for an individual to move up to permanent residence. In fact, it offers a relatively streamlined permanent residence procedure. In all, it is an excellent planning tool in this respect.

In the next newsletter, I will discuss this and several other options for the self-employed, and business principals, for permanent residence.


Footnotes

1Or, if you will, they can sing along with Sinatra, “I did it my way.”

2 There are a few exceptions to the form that the permission takes. For example, Canadian citizens in most instances do not actually require a visa but still need a permit issued by the U.S. immigration authorities. In any event, the distinction is not important for us. The point is, that prior clearance by the Department of Homeland Security and often the Department of State, is mandatory before one may come to the United States from a foreign country, whether to visit or to work. Any foreign country.

3There’s a misconception that visitors from certain other countries … Canada among them … do not need work authorization, that somehow they can drive across and get a job. Not true. Canadian visitors are often exempt from paperwork requirements, but the same rules apply when it comes to getting work permission.

4INS Inspector’s Field Manual, sec. 15.5(f)(2)(G) at 15-59.

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Fourth Circuit reaffirms prohibition on private releases on FMLA claims
By David Dubberly, Esquire
Molly Hughes, Esquire
John Emerson, Esquire
Nexsen Pruet LLC

On July 3, 2007, a divided panel of the U.S. Court of Appeals for the Fourth Circuit reinstated a decision it rendered in 2005, but later vacated, that employers cannot enforce a release of claims under the Family and Medical Leave Act (FMLA) unless the release has been approved by a court or the U.S. Department of Labor (DOL).

The court’s original opinion, discussed in our Employment Law Update for September 2005 (http://www.nexsenpruet.com/assets/attachments/249.pdf), interpreted an FMLA regulation written by the DOL, 29 C.F.R. § 825.220(d). The court ruled that based on the regulation, the plaintiff Barbara Taylor’s post-dispute waiver of her FMLA claims contained in a severance agreement was invalid because it was not supervised by a court or the DOL. The regulation provides that “employees cannot waive, nor may employers induce employees to waive, their rights under [the] FMLA.”

Response to original decision
Following the Fourth Circuit’s 2005 ruling, Progress Energy petitioned for reconsideration, arguing that 29 C.F.R. § 825.220(d) barred only prospective releases of FMLA claims. The Secretary of Labor filed an amicus curiae (friend of the court) brief in support of Progress Energy’s petition, asserting that the Fourth Circuit had misread the regulation.

According to the Secretary, the DOL has never interpreted the regulation to apply to a private settlement of FMLA claims arising from past alleged violations. The Secretary expressed concern that the result of the opinion would be to increase the burden on the DOL in supervising FMLA settlements and to harm employees by delaying resolution of disputes. The U.S. Chamber of Commerce and the Society for Human Resource Management also filed briefs in support of Progress Energy’s position.

Court disagrees with Department of Labor
The Fourth Circuit granted Progress Energy’s motion, vacated its previous decision, and ordered a panel rehearing to consider the arguments raised by the DOL. The Fourth Circuit, however, rejected the DOL’s argument that the regulation prohibits only the prospective waiver of FMLA rights, noting that the word “waive” has a retrospective connotation.

Rejecting the DOL’s comparison of the FMLA to federal anti-discrimination laws that permit waiver of claims, the Fourth Circuit held that the FMLA is more like the Fair Labor Standards Act (FLSA), which does not allow private settlements of claims to be enforceable without court or DOL approval. According to the Court, the FMLA is a labor standards law that provides minimum protection for employees by guaranteeing leave rights.

The Court reasoned that private settlements of FMLA claims undermine the purpose for providing minimum protection because employers would “have an incentive to deny FMLA benefits if they could settle violation claims for less than the costs of complying with the [FMLA].” Deciding that it was right the first time, the Fourth Circuit reinstated its 2005 opinion.

Meaning for employers in the Carolinas
Progress Energy has petitioned the full Fourth Circuit to rehear the case. However, for the time being, to obtain an enforceable release of an employee’s FMLA claims, an employer must have court or DOL approval.

In light of Progress Energy’s petition, the DOL has taken the position that its officers will not review or approve releases. There is much speculation that the case will be appealed to the U.S. Supreme Court because courts in other parts of the country have come to different conclusions regarding the meaning of 29 C.F.R. § 825.220(d).

Under these circumstances, Carolinas employers have limited options if they want to use severance agreements that address actual or potential FMLA claims. An employer may consider including in its release an acknowledgment from the departing employee that she has received all of the rights and benefits under the FMLA to which she is entitled and that she is not aware of any FMLA claims. Although this language would not bar the employee from filing an FMLA claim, it may enable the employer to argue effectively that the employee has received all benefits due.

In the meantime, until a final decision is issued in Taylor—or until the regulations are revised by the DOL—employers in the Fourth Circuit must recognize that they may not be able to obtain an enforceable release of FMLA claims from employees separating employment.

Checklist of other issues in releases and serverance agreements
In addition to the rules relating to private releases of FMLA and FLSA claims discussed above, employers should keep in mind that:

  • Most states prohibit the release by private agreement of workers' compensation and unemployment compensation claims.
  • According to the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB), a release cannot include language that prohibits an employee from filing a charge of discrimination or participating in an investigation or proceeding before the EEOC or the NLRB.
  • A release of claims under the Age Discrimination in Employment Act (ADEA) must, among other things: advise the individual in writing to consult with an attorney; give the individual at least 21 days to consider the agreement (at least 45 days if a group is involved); and provide for a seven-day revocation period.

Severance agreements usually address more than the release of actual or potential claims. Below is a partial listing of additional issues that should be considered in severance agreements:

  • Severance pay, business expenses, accrued vacation, and health insurance, and outplacement support;
  • Cooperation during severance period;
  • Restrictions on reapplying with the employer and prohibition on disparaging the employer;
  • Return of company property;
  • Non-disclosure, non-solicitation, and non-compete clauses, and injunctive relief;
  • Whether disputes will be resolved by arbitration or litigation;
  • Governing law;
  • No admission of liability; and
  • Assignment clauses.

Dubberly, Hughes, and Emerson are Certified Specialists in Employment and Labor Law with Nexsen Pruet.

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Mark your calendars

Please make plans to attend the Employment & Labor Law Section CLE in conjunction with the 2008 Bar Convention, January 24-27, at the Charleston Place Hotel in Charleston. The “Employment & Labor Law Specialist Update”, is scheduled for Friday, January 25, from 8:30 until 11:45 a.m. For additional information and to register, click here.

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2008 Section Council nominations

The following nominations were made and approved by the Employment & Labor Law at its annual meeting held on Nov. 2, 2007 in Charleston.

Officers

Chairperson: J. Hagood Tighe, Columbia
Chairperson-Elect:
Charles E. “Chuck” McDonald, III, Greenville
Vice-Chairperson:
Regina H. Lewis, Columbia
Secretary:
Nekki Shutt, Columbia

Council Members

Section Delegate: William H. Floyd, III, Columbia
Immediate Past Chairperson:
Amy Yager Jenkins, Charleston
CLE Coordinator
: David Rothstein, Columbia
Newsletter Coordinator:
Molly Hughes, Charleston

Committee Charipersons

Labor Mgmt Relations Committee: Allan R. Holmes, Charleston
EEO Committee:
Kristine L. Cato Columbia
Specialization Committee:
Al Phinney, Greenville
Membership Committee:
Debbie Durban, Columbia
Occupational Safety & Health Committee:
Rita M. McKinney, Greenville
Immigration Committee:
Fred Manning, Columbia

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Employment & Labor Law Section committee descriptions

Labor Management Relations Committee
The Labor Management Relations Committee informs its members of developing laws and policies under the National Labor Relations Act and deals with issues germane to union campaigns, elections, and union administration and procedure. For additional information or to join this Committee, please contact Allan R. Holmes at (843) 722-0033 or at aholmes@gibbs-holmes.com.

Equal Employment Opportunity Committee
The Equal Employment Opportunity Committee concentrates on all aspects of equal employment opportunity under federal and state law in both private and public employment, including: employment discrimination on the basis of race, color, national origin, religion, sex, age and disability; the interface of equal employment opportunity issues with collective bargaining situations under the National Labor Relations Act; use and validation of selection devices; affirmative action under Executive Orders 11246 and 11375; procedures and remedies in class action employment discrimination suits; and liaison with the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs and the Department of Justice. For additional information or to join this Committee, please contact Kristine L. Cato at (803) 227-2277 or at kcato@mgclaw.com.

Specialization Committee
The Specialization Committee addresses a variety of specialization issues from providing suggestions to the board regarding the written examination and other specialization requirements to notifying individuals of specialization deadlines and requirements. For additional information or to join this Committee, please contact Molly Hughes at (843) 577-9440 or at mhughes@nexsenpruet.com.

Membership Committee
The Membership Committee concentrates on membership development within the Section. The Committee’s goal is to increase membership, determine what benefits members most want, maintain a strong Section, and to provide quality support. For additional information or to join this Committee, please contact Debbie Durban at (803) 255-9465 or at debbie.durban@nelsonmullins.com.

Occupational Safety & Health Committee
The Occupational Safety & Health Committee follows developments under the Federal Occupational Safety and Health Act and the Federal Mine Safety and Health Act, as well as various state plans through which occupational safety and health laws and regulations are enforced. The Committee provides members with updates on developments and trends in the occupational, safety and health area. For additional information or to join this Committee, please contact Rita M. McKinney at (864) 271-4940 or at rmckinney@mcnair.net.

Immigration Law Committee
The purpose of the Immigration Law Committee is to keep readers up to date with the latest developments in immigration law and related issues such as I-9 employment verifications. There are numerous agencies involved in or impacted by various aspects of immigration law, including the Department of Homeland Security, the U.S. State Department, the Social Security Administration, the U.S Department of Labor, and even the IRS. Together with the provisions of the Internal Revenue Code, immigration laws and regulations are perhaps the most complex, and certainly more in flux, than any other body of federal law and regulatory provisions. Certainly few other issues arouse political passions more than immigration both at the federal, state, and local levels. Indeed, in the absence of comprehensive immigration reform encompassing illegal immigration, many states and local municipalities have waded into the immigration arena on issues as diverse as driver’s licenses, business licenses, and the award of government contracts. The Committee will strive to inform our readers of key issues relating to immigration as they affect businesses and employees on the international, national, and local levels. For additional information or to join this Committee, please contact Lawrence J. Needle at (803) 376-1203 or at lneedle@lawrencejneedlepa.com.

Each Committee contributes relevant updates to the Section's quarterly newsletter.


Get Published

If you are interested in submitting an article for the next issue of the section newsletter, please forward your submission(s) to:

Molly Hughes, Esquire
Nexsen Pruet, LLC
Box 486
Charleston, SC 29401
(843) 577-9440
mhughes@nexsenpruet.com

In addition to your proposed article, please include your name, your firm name and your e-mail address so this information can be included in the newsletter. This newsletter is published quarterly.

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Disclaimer

This is a newsletter for the South Carolina Bar’s Employment and Labor Law Section. The South Carolina Bar and the Section council members reserve the right to refuse to publish any submission which is not consistent with their goals and standards. Articles that are published reflect only the opinions of their authors; they do not represent or reflect any positions held by the South Carolina Bar or the Section officers and council members. It is the policy of this newsletter that on all submissions of original articles, the authors assign their copyright in the work to the South Carolina Bar. Publisher may reprint, or authorize other entities to reprint, the material as deemed appropriate. The publisher has the right to authorize the reproduction, adaptation, public distribution and public display of the article as a contribution to this newsletter in electronic media, computerized retrieval systems and similar forms; such authorization includes use of the article anywhere in the world by means of public display, conversion to machine readable form and reproduction and distribution of copies. The South Carolina Bar is not required to secure the consent of the author before exercising the above named rights. In addition, the Bar has no duty or responsibility to negotiate, collect or distribute any royalties in connection therewith.

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