ELI KANTOR INTERVIEWED IN BUSINESSWEEK
Eli Kantor was recently interviewed and quoted in Business Week in an article regarding the termination of employees for viewing pornography on the internet at work. The links to the article are: http://www.businessweek.com/managing/content/apr2008/ca20080422 537933.htm
and http://www.businessweek.com/managing/content/apr2008/ca20080422 537933 page 2.htm

STARBUCKS $100 MILLION DOLLAR VERDICT LIKELY TO SPUR ADDITIONAL LITIGATION.

The recent $105 million dollar verdict issued by a San Diego Superior Court Judge, will likely spur additional litigation regarding unlawful tip pooling at other restaurants. Employers would be well advised to have competent employment law counsel review their tip pooling policies to make certain that they do not violated California law.

UNLAWFUL PRACTICES AT CARWASHES EXPOSED.

Today's LA Times exposed a pattern of unlawful wage and hour practices at local car washes, including failure to pay minimum wage, overtime pay violations and forcing of some workers to work for tips only.

A San Diego Superior Court Judge ordered Starbucks to pay $105 million dollars to current and foremer baristas for unlawfully splitting their tips with managers and shift supervisors. Statbucks stated that it intends to appeal the Court's ruling.

The California State Supreme Court changed the playing field in artist/manager disputes in its Marathon Entertainment decision. It held that the doctrine of severablity can be applied to artist/manager disputes. Significantly, before this decision if a business manager procured employment even one time for an artist, the artist could void the entire agreement. However, Marathon Entertainment held that the unlawful procurement of employment could be severed from the rest of the agreement. Therefore, the business manager would only be prevented from collecting commissions for that transaction only, while the rest of the agreement would remain valid. It is unclear how the courts and the Labor Commissioner will apply this decision

SEVEN SECRETS FOR KEEPING YOUR COMPANY OUT OF COURT IN 2008 - HOW TO AVOID SEXUAL HARASSMENT LAWSUITS, by Eli M. Kantor

Recently, there has been a huge upsurge in the number of sexual harassment lawsuits. It all started with Anita Hill 's televised testimony at the Clarence Thomas Senate Confirmation hearing to become a Supreme Court Justice in 1991. Then Paula Jones' lawsuit against President Clinton and several multimillion dollar verdicts have caused a wave of litigation.

In 1998 the U.S. Supreme Court handed down two important decisions that put the ball in the employer 's court in sexual harassment cases. Basically, they gave employers an "affirmative defense", provided that they have a policy that makes it clear that the company does not tolerate sexual harassment. This article will briefly summarize 7 secrets to keeping your company out of court in 2008.

#1 Have a Written Sexual Harassment Policy All employers should have a written sexual harassment policy, which at a minimum provides: what sexual harassment is; sets forth a mechanism for reporting it; states that all complaints will be promptly and thoroughly investigated; that there will be no retaliation for making the complaint; and that if a violation is found, that prompt and effective remedial action will be taken.

#2 Communicate Your Sexual Harassment Policy to All of Your Employees It does no good to merely have a sexual harassment policy that is sitting gathering dust in the Human Resources department or in an employee handbook, the policy must be communicated to all of your employees. It should be distributed to employees at the time of hire, explained to them, and have them sign acknowledging receipt and agreeing to abide by it. It should be posted on the wall and where appropriate, translated into Spanish. It should be discussed at employee meetings.

#3 Implement Your Sexual Harassment Policy Most importantly, your policy must be enforced and taken seriously, so that employees feel comfortable using it. It is not enough to have a policy and communicate it, if you don't implement it.

#4 Provide Training for All of Your Supervisors Under a new law, AB 1825, California now requires all employers with 50 or more employees to provide a minimum of 2 hours of training to all of their supervisors. Connecticut has a similar law and other states are expected to follow. While it isn't required for employers with less than 50 employees, it still is an excellent idea, since it improves employee morale by preventing problems in the first place; teaches supervisors how to nip the problem in the bud; and if an employer is ever sued the first question that they will be asked is: "what have you done to train your supervisors about sexual harassment prevention?" The employer can respond by providing the attendance sign-in sheet from the training seminar.

#5 Investigate All Complaints Promptly and Thoroughly As soon as an employer receives a complaint, it must immediately start investigating, even if it isn't a formal written complaint. Remember, there is no such thing as an "off the record complaint". Once a supervisor finds out about a complaint, the employer is deemed to be put on notice and must start its investigation. All relevant witnesses should be interviewed and the alleged harasser should be given an opportunity to respond to the allegations made Action.

#6 Take Prompt and Effective Remedial Once the employer completes its investigation, it should take prompt and effective remedial action. What that is depends upon the facts of the specific case and could range from a written warning, to a suspension, to termination, depending upon the circumstances. In making its determination, the employer should consider the severity of the alleged conduct, and the prior work history of the alleged harasser. The results of the investigation should always be well documented and communicated to both the complaining party and to the alleged harasser.

#7 Follow-up with the Complainant

After the investigation has been completed and remedial action, if any, taken, the employer should always follow-up with the complainant within two weeks, to make sure that the situation has been satisfactorily resolved. Don't wait for the employee to come to you to tell you that the problem has not gone away or that they are now being retaliated against for complaining, by then you may already have been sued.

SPONSOR YOUR EMPLOYEES FOR H-1B VISAS BY APRIL 1, 2008!, Feb. 28, 2008
By Eli M. Kantor

The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Fiscal Year, which begins on October 1. Applications for the upcoming Fiscal Year are accepted beginning on the preceding April 1 (or the first working day after that date).

All employers who are thinking about filing for an H-1B visa, for fiscal year 2009, must do so as early as April 1, 2008; otherwise, they are taking the chance that the quota will run out for 2009. In 2007, The U.S. Citizenship and Immigration Services ("USCIS") received approximately 120,000 petitions, and the quota of 65,000 petitions (which were randomly selected) was filled on the first date filing was permitted, April 1.

In addition to the 65,000 quota, there is a separate allocation of 20,000 additional H-1B visas for those with a Masters degree or higher, earned at a U.S. university. For the fiscal year 2007, this allocation was filled approximately four weeks after the first permissible date of filing.

The H-1B is the most frequently obtained temporary work visa under the non-immigrant visa category in the United States under the Immigration & Nationality Act, section 101(a)(15)(H), and is available for full-time employment.

The H-1B classification is for "specialty occupations" only, which requires theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum.

If the occupation requires a license to perform the duties of the job, the alien must have that license prior to the approval of the H-1B petition. H-1B work-authorization is strictly limited to employment by the sponsoring employer.

Only "new employment" is covered under the 65,000 H-1B quota. Someone who has received an H-1B within the last six years and applies for another H-1B with a different employer is not subject to the quota. H-1B extensions as well as H-1B petitions by institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations are also not counted against the quota.

Below is a list of common errors that cause an H-1B petition to be rejected:

1. Incorrect fees: It is suggested to submit fees in separate checks. This lessens the likelihood of unintentional math errors when calculating the total fees due.

2. Inconsistent and incorrect answers on form I-129 and supplements. Double check the petition for consistency.

3. If your worker is or has been a J-1 worker, note that Part C, #4 of I-129 H-1B Data collection Supplement does not refer to all Js with a waiver of 2 year foreign residency rule (212e). Do not check "yes" unless your worker is a doctor who has been granted a Conrade 30 waiver to work in a medically underserved area.

So, if you're an employer looking to sponsor an employee for an H-1B visa, do not delay! Contact experienced legal counsel immediately, since it takes several weeks to translate transcripts and have an equivalency evaluation for college and work experience and to prepare all necessary forms.

File the petition by April 1, 2008, and file it correctly. Incorrect applications will not be accepted, and this may prevent or slow down the process of obtaining the H-1B process considerably.

MINIMUM WAGES ON THE RISE IN CALIFORNIA, Jan. 21, 2008
by Eli M. Kantor

Attention California Employers: On January 1, 2008, the Minimum Wage rises to $8 per hour from $7.50. So, you will need to make appropriate adjustments to your payroll systems. Further, many employers also are raising their employee's wages that are above the minimum wage in order to retain them.

Other big changes effecting California Employers in 2008 are:

New I-9 Forms, employment verification forms will be required effective December 26, 2007, for all new hires. Expect an increase in work place raids. So, do preventative audits now, and make contingency plans for what to do if you are raided.

Expect a tidal wave of class action wage and hour lawsuits for unpaid overtime, missed meal and rest periods, and working off the clock. The California State Supreme Court ruled this year that the remedy for a missed meal or break period is considered to be a "wage" and not a "penalty".

Therefore, the statute of limitations is now 4 years and not 1 year, creating a huge incentive for class action lawsuits. Accordingly, do a preventative audit now to determine whether you have misclassified any exempt employees or independent contractors. Be sure that employees are taking their 30 minute unpaid meal periods and there 10 minute paid rest breaks and, most importantly, that they are documented.

Expect a flood of Sexual Harassment Lawsuits. Therefore, it is imperative that all employers who have 50 or more employees provide their supervisors with a minimum of 2 hours of sexual harassment prevention training to be in compliance with the law. Further, employers must have written Sexual Harassment Policies. It is not enough just to have them; you must implement them and effectively communicate them to your supervisors and employees.

In addition there are a number of minor changes that are more of a paperwork nuisance for small businesses, such as, AB 650, which requires all employers to notify workers about eligibility requirements to receive the Earned Income Tax Credit, a federal program to aid low-income workers. The notices must go out at the same time or within a week of the IRS W-2 form or 1099 form used for independent contractors.

AB 338, which extends the eligibility time for temporary disability payments.

AB392, which requires employers with at least 25 employees to give workers as many as 10 unpaid days off when a spouse is on leave from military deployment.AB 869, which requires state labor code enforcers to cross-check with payroll records to make sure all employers are providing workers compensation insurance.

2008 is sure to be a busy year on the employment front for California employers. In order to comply with the ever changing requirements of California law, and to stay out of court, you need to consult with competent employment law counsel.

CALIFORNIA SUPREME COURT ALLOWS EMPLOYERS TO FIRE "AT-WILL" EMPLOYEES WITHOUT REASON. In Dore v. Arnold Worldwide, Inc., the California State Supreme Court held that an employer doesn't need to give a reason for firing an "at-will" employee. In this case, the employee, Dore, had signed an "at-will" employment agreement giving the employer or Dore the right to terminate the relationship at any time. This agreement set forth the presumption that is contained in California Labor Code Section 2922 which presumes that employment is at-will unless otherwise specified, and parties may terminate by giving each other notice. The Court rejected Dore's argument that pre-contract discusssions with his employer reasonably led him to believe that his employment was long-term and that he would be terminated only if he performed poorly. However, the Court refused to allow extrinsic evidence of the alleged verbal assurances of continued employment, since the express written contract was not ambiguous. Accordingly, employers should be certain to include unambiguous "at-will employment" language in their employment applications and in their employee handbooks, and be certain that all employees sign acknowledging receipt.

ELI KANTOR INTERVIEWED. Employment Law expert, Eli Kantor, was interviewed and quoted by Todd Henneman in the 07/31/2006 issue of Workforce Management (www.workforce.com) in an article entitled: "After High Court Ruling Firms may want to take a long look at Anti-Harassment Strategies." For further information about Sexual Harassment Prevention Training, see www.sexualharassmentprevention.net

CALIFORNIA FAIR EMPLOYMENT AND HOUSING COMMISSION ADPOTS MODIFICATIONS TO REGULATIONS FOR SEXUAL HARASSMENT PREVENTION TRAINING. On June 20, 2006, the commission adopted proposed modifications to the regualtions regarding sexual harassment prevention training. Employers wishing to submit comments on the proposed regulations may obtain further information from the commission's Web site, www.fehc.ca.gov.
For further information about the Sexual Harassment Prevention Training Law, see Eli Kantor's web site, www.sexualharassmentprevention.net