The newly revised FMLA regulations became effective on Friday, January 16, 2009 and the Department of Labor has posted the new FMLA forms on its website at http://www.dol.gov/esa/whd/fmla/finalrule.htm. These new forms include:
• WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)
• WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)
• WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)
• WH-382 Designation Notice (PDF)
• WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)
• WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (PDF)
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Tuesday, January 20, 2009
Thursday, January 15, 2009
Franklin County Ohio Court of Appeals: Inevitable Disclosure Doctrine Is No Substitute for a Non-Compete Agreement.
Just before Christmas, the Franklin County Court of Appeals reversed a six-month injunction precluding an employee from working for the competitor of his former employer when he signed a confidentiality agreement, but was never requested and never signed a non-compete agreement. Hydrofarm, Inc. v. Ordendorff, 2008-Ohio-6819. The Court held that it was an abuse of the trial court’s discretion to enter the injunction because the employer failed to show by clear and convincing evidence that the employee’s working for a competitor – 18 months after he had left his prior job -- would necessarily or inevitably result in the disclosure of the trade secrets of his former employer. Accordingly, the Court held that this situation was distinguishable from other cases when an Ohio appellate court has precluded – in the absence of a non-compete agreement -- an employee from working for a competitor because it would inevitably result in the disclosure of trade secret information.
According to the Court’s opinion, the employee worked for the plaintiff employer for approximately 14 years in the area of sales. During his employment, the employee necessarily became aware of trade secrets, as well as confidential and proprietary information that belonged to the plaintiff employer. The parties executed a Separation Agreement on November 30, 2005 “which, among other things, prohibited [the employee] from disclosing confidential information, unless compelled by legal process, but did not require [the employee] to forego employment with any competitors . . . Approximately one and one-half years later, on May 14, 2007, [the employee] was hired by . . . a direct competitor of [the plaintiff employer], for a position that was substantially similar to his” last position with the plaintiff employer.
The plaintiff employer filed suit for compensatory damages and injunctive relief “[a]lleging, among other things, breach of contract; unfair competition; misappropriation of trade secrets, a violation of the Ohio Uniform Trade Secrets Act, R.C. 1333.61, et seq.; disclosure of confidential information without [the plaintiff employer’s] consent, a violation of R.C. 1333.81; breach of a confidential relationship; breach of fiduciary duty; and conversion.” The employee counterclaimed, “[a]lleging breach of contract; tortious interference with a business relationship; tortious interference with a contract; and malicious prosecution.” Over objections from both parties, the common pleas court accepted the magistrate’s recommendation that the employee be enjoined from working for any competitor for six months. Both parties appealed and the employer was initially required to post a $25,000 bond in the event that the employee prevailed on appeal. However, the trial court reconsidered, stayed in the injunction and required the employee to post a $10,000 bond in the event that the employer prevailed on appeal.
As noted by the Court, different courts have evaluated the inevitable disclosure doctrine differently. “The rule against inevitable disclosure "holds that a threat of harm warranting injunctive relief exists when an employee with specialized knowledge commences employment with a competitor." Berardi's Fresh Roast, Inc. v. PMD Ent., Inc., Cuyahoga App. No. 90822, 2008-Ohio-5470, at ¶27. ‘[T]his doctrine is applied when a former employer seeks `injunctive' relief when a former employee begins work with a competitor while the noncompetition clause has not expired.’ Id. (Emphasis added.) Cf. Dexxon Digital Storage, Inc. v. Haenszel, 161 Ohio App.3d 747, 2005-Ohio-3187, discretionary appeal and cross-appeal not allowed, 107 Ohio St.3d 1682, 2005-Ohio-6480 (applying the "inevitable disclosure" doctrine to enjoin a former employee in the absence of a noncompetition agreement).”
The Court found that the inevitable disclosure doctrine may rarely substitute for a non-compete agreement to preclude an employee from working for a competitor only in different circumstances. “Although in Dexxon, the Fifth District Court of Appeals applied the "inevitable disclosure" doctrine to enjoin a former employee in the absence of a noncompetition agreement, Dexxon is factually distinguishable because in Dexxon both entities were engaged in the highly technical business of large-scale electronic data storage. Moreover, Dexxon does not reveal what sort of trade secrets the former employee possessed, or how these former employees afforded the rival entity an irreparable competitive advantage over the plaintiff.”
“In cases in which courts have enforced the "inevitable disclosure" doctrine in absence of a noncompetition agreement, the former employee possessed timely, sensitive strategic and/or technical, or both, information that, if it was proved, posed a serious threat to his former employer's business, or a specific segment thereof. See PepsiCo, Inc. v. Redmond (C.A.7, 1995), 54 F.3d 1262; Barilla Am., Inc. v. Wright (S.D.Iowa, 2002), No. 4-02-CV-90267; Proctor & Gamble Co. v. Stoneham (2000), 140 Ohio App.3d 260. On the record before us, the present case is distinguishable from those cases.”
Ultimately, the Court held that the employer failed to support its burden of proving entitlement to injunctive relief under its legal theory about the inevitable disclosure doctrine. “When resolving a matter involving trade secrets, "[a] court must balance `* * * the conflicting rights of an employer to enjoy the use of secret processes and devices which were developed through his own initiative and investment and the right of employees to earn a livelihood by utilizing their personal skill, knowledge and experience.' . . . Neither this court nor the Supreme Court of Ohio has applied the "inevitable disclosure" doctrine in a case that did not involve an enforceable noncompetition agreement. An employee possessed of his former employer's trade secrets ‘[has] the right to take employment in a competitive business, and to use his knowledge (other than trade secrets) and experience, for the benefit of the new employer[.]’ . . . . Although Ohio passed its version of the Uniform Trade Secrets Act after B.F. Goodrich, see, generally, R.C. 1333.61 et seq., the Act did not so much alter the common law as codify it. Consistent with common law, Ohio's version of the Uniform Trade Secrets Act provides that threatened misappropriation of trade secrets may be enjoined. See R.C. 1333.62. If the General Assembly had intended to permit injunction of competition or employment under the Act, it easily could have so specified. Instead, it left the law substantially intact; that is, employers or employees are free to, and frequently do, enter into noncompetition agreements, while the state has an interest in promoting morality in business affairs and innovation.”
In this case, the Court found that the fact that the employee both possessed knowledge of trade secret and confidential information and held substantially similar jobs with the plaintiff employer and, 18 months later, its competitor was insufficient to justify precluding the employee from working for the competitor in the absence of a non-compete agreement. Rather, the plaintiff employer would be required “to demonstrate by clear and convincing evidence not only that [the employee] possesses [plaintiff employer’s] trade secrets, but, also, that [the employee] will inevitably disclose them to [the direct competitor], or will utilize those trade secrets in his competitive work on behalf of [the direct competitor], and that those trade secrets will enable [the competitor] to achieve a substantial competitive advantage over [the plaintiff employer]. In other words, [the plaintiff employer] must demonstrate that the danger of misappropriation in this case threatens irreparable harm. ‘Actual irreparable harm is usually not presumed, but instead must be proved.’ Levine, supra, paragraph four of the syllabus.”
“Although the Ohio Trade Secrets Act permits injunction of threatened misappropriation of trade secrets, the usual elements for an injunction must be proved by clear and convincing evidence, even where the plaintiff seeks to invoke the "inevitable disclosure" doctrine to enjoin a former employee's employment with a competitor.” In this case, the plaintiff employer’s “executive vice president, testified that the information involved includes [the plaintiff employer’s] price lists and sales goals, but these are created annually, and it is unclear how 2-year-old price lists and sales goal information would produce a competitive advantage for [the competitor]. [He] testified that defendant [employee] possesses production information related to [plaintiff employer’s] "private label" sales, but because defendant [employee] was a salesman and not involved in the actual production of such products, it appears that his knowledge was limited to pricing and marketing efforts. Such information is hardly static. “
The executive “also testified that [the employee] possessed consumer research analysis; that is, the results of customer polling conducted in advance of each trade show, which was used to determine the product selection and display for each particular show. According to [the executive], there are numerous trade shows in North America every year. Thus, it is difficult to imagine, and [the executive] did not explain, how two-year-old customer polling results for shows that have already occurred poses the threat of an unfair competitive advantage. [The executive] also testified that [the employee] possessed information about new product concepts. However, he also testified that it was [the employee] who would suggest new products based on his conversations at trade shows and with customers. This information seems more the product of [the employee’s] own 14 years of sales and marketing experience than technical information posing a threat of misappropriation.”
The executive “further testified that [the employee] possessed information about [the plaintiff employer’s] marketing and advertising strategies. More specifically, this meant sales leads, pricing information, decisions as to which trade shows to attend, and information about the way in which [the plaintiff employer’s] products would be displayed and marketed at each trade show. Again, the pricing, sales leads and trade show selection information is out-of-date, and product displays would have been visible to anyone attending the same trade shows attended by [the plaintiff employer]. Finally, the record contains no evidence that the employee has misappropriated or disclosed any of [the plaintiff employer’s] trade secrets or other confidential business information, or that he engaged in any nefarious activities or attempts to circumvent any of the parties' agreements. In fact, [the executive] testified that he has no reason to believe that [the employee] has shared any confidential information with [the competitor].
Insomniacs may read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-6819.pdf
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
According to the Court’s opinion, the employee worked for the plaintiff employer for approximately 14 years in the area of sales. During his employment, the employee necessarily became aware of trade secrets, as well as confidential and proprietary information that belonged to the plaintiff employer. The parties executed a Separation Agreement on November 30, 2005 “which, among other things, prohibited [the employee] from disclosing confidential information, unless compelled by legal process, but did not require [the employee] to forego employment with any competitors . . . Approximately one and one-half years later, on May 14, 2007, [the employee] was hired by . . . a direct competitor of [the plaintiff employer], for a position that was substantially similar to his” last position with the plaintiff employer.
The plaintiff employer filed suit for compensatory damages and injunctive relief “[a]lleging, among other things, breach of contract; unfair competition; misappropriation of trade secrets, a violation of the Ohio Uniform Trade Secrets Act, R.C. 1333.61, et seq.; disclosure of confidential information without [the plaintiff employer’s] consent, a violation of R.C. 1333.81; breach of a confidential relationship; breach of fiduciary duty; and conversion.” The employee counterclaimed, “[a]lleging breach of contract; tortious interference with a business relationship; tortious interference with a contract; and malicious prosecution.” Over objections from both parties, the common pleas court accepted the magistrate’s recommendation that the employee be enjoined from working for any competitor for six months. Both parties appealed and the employer was initially required to post a $25,000 bond in the event that the employee prevailed on appeal. However, the trial court reconsidered, stayed in the injunction and required the employee to post a $10,000 bond in the event that the employer prevailed on appeal.
As noted by the Court, different courts have evaluated the inevitable disclosure doctrine differently. “The rule against inevitable disclosure "holds that a threat of harm warranting injunctive relief exists when an employee with specialized knowledge commences employment with a competitor." Berardi's Fresh Roast, Inc. v. PMD Ent., Inc., Cuyahoga App. No. 90822, 2008-Ohio-5470, at ¶27. ‘[T]his doctrine is applied when a former employer seeks `injunctive' relief when a former employee begins work with a competitor while the noncompetition clause has not expired.’ Id. (Emphasis added.) Cf. Dexxon Digital Storage, Inc. v. Haenszel, 161 Ohio App.3d 747, 2005-Ohio-3187, discretionary appeal and cross-appeal not allowed, 107 Ohio St.3d 1682, 2005-Ohio-6480 (applying the "inevitable disclosure" doctrine to enjoin a former employee in the absence of a noncompetition agreement).”
The Court found that the inevitable disclosure doctrine may rarely substitute for a non-compete agreement to preclude an employee from working for a competitor only in different circumstances. “Although in Dexxon, the Fifth District Court of Appeals applied the "inevitable disclosure" doctrine to enjoin a former employee in the absence of a noncompetition agreement, Dexxon is factually distinguishable because in Dexxon both entities were engaged in the highly technical business of large-scale electronic data storage. Moreover, Dexxon does not reveal what sort of trade secrets the former employee possessed, or how these former employees afforded the rival entity an irreparable competitive advantage over the plaintiff.”
“In cases in which courts have enforced the "inevitable disclosure" doctrine in absence of a noncompetition agreement, the former employee possessed timely, sensitive strategic and/or technical, or both, information that, if it was proved, posed a serious threat to his former employer's business, or a specific segment thereof. See PepsiCo, Inc. v. Redmond (C.A.7, 1995), 54 F.3d 1262; Barilla Am., Inc. v. Wright (S.D.Iowa, 2002), No. 4-02-CV-90267; Proctor & Gamble Co. v. Stoneham (2000), 140 Ohio App.3d 260. On the record before us, the present case is distinguishable from those cases.”
Ultimately, the Court held that the employer failed to support its burden of proving entitlement to injunctive relief under its legal theory about the inevitable disclosure doctrine. “When resolving a matter involving trade secrets, "[a] court must balance `* * * the conflicting rights of an employer to enjoy the use of secret processes and devices which were developed through his own initiative and investment and the right of employees to earn a livelihood by utilizing their personal skill, knowledge and experience.' . . . Neither this court nor the Supreme Court of Ohio has applied the "inevitable disclosure" doctrine in a case that did not involve an enforceable noncompetition agreement. An employee possessed of his former employer's trade secrets ‘[has] the right to take employment in a competitive business, and to use his knowledge (other than trade secrets) and experience, for the benefit of the new employer[.]’ . . . . Although Ohio passed its version of the Uniform Trade Secrets Act after B.F. Goodrich, see, generally, R.C. 1333.61 et seq., the Act did not so much alter the common law as codify it. Consistent with common law, Ohio's version of the Uniform Trade Secrets Act provides that threatened misappropriation of trade secrets may be enjoined. See R.C. 1333.62. If the General Assembly had intended to permit injunction of competition or employment under the Act, it easily could have so specified. Instead, it left the law substantially intact; that is, employers or employees are free to, and frequently do, enter into noncompetition agreements, while the state has an interest in promoting morality in business affairs and innovation.”
In this case, the Court found that the fact that the employee both possessed knowledge of trade secret and confidential information and held substantially similar jobs with the plaintiff employer and, 18 months later, its competitor was insufficient to justify precluding the employee from working for the competitor in the absence of a non-compete agreement. Rather, the plaintiff employer would be required “to demonstrate by clear and convincing evidence not only that [the employee] possesses [plaintiff employer’s] trade secrets, but, also, that [the employee] will inevitably disclose them to [the direct competitor], or will utilize those trade secrets in his competitive work on behalf of [the direct competitor], and that those trade secrets will enable [the competitor] to achieve a substantial competitive advantage over [the plaintiff employer]. In other words, [the plaintiff employer] must demonstrate that the danger of misappropriation in this case threatens irreparable harm. ‘Actual irreparable harm is usually not presumed, but instead must be proved.’ Levine, supra, paragraph four of the syllabus.”
“Although the Ohio Trade Secrets Act permits injunction of threatened misappropriation of trade secrets, the usual elements for an injunction must be proved by clear and convincing evidence, even where the plaintiff seeks to invoke the "inevitable disclosure" doctrine to enjoin a former employee's employment with a competitor.” In this case, the plaintiff employer’s “executive vice president, testified that the information involved includes [the plaintiff employer’s] price lists and sales goals, but these are created annually, and it is unclear how 2-year-old price lists and sales goal information would produce a competitive advantage for [the competitor]. [He] testified that defendant [employee] possesses production information related to [plaintiff employer’s] "private label" sales, but because defendant [employee] was a salesman and not involved in the actual production of such products, it appears that his knowledge was limited to pricing and marketing efforts. Such information is hardly static. “
The executive “also testified that [the employee] possessed consumer research analysis; that is, the results of customer polling conducted in advance of each trade show, which was used to determine the product selection and display for each particular show. According to [the executive], there are numerous trade shows in North America every year. Thus, it is difficult to imagine, and [the executive] did not explain, how two-year-old customer polling results for shows that have already occurred poses the threat of an unfair competitive advantage. [The executive] also testified that [the employee] possessed information about new product concepts. However, he also testified that it was [the employee] who would suggest new products based on his conversations at trade shows and with customers. This information seems more the product of [the employee’s] own 14 years of sales and marketing experience than technical information posing a threat of misappropriation.”
The executive “further testified that [the employee] possessed information about [the plaintiff employer’s] marketing and advertising strategies. More specifically, this meant sales leads, pricing information, decisions as to which trade shows to attend, and information about the way in which [the plaintiff employer’s] products would be displayed and marketed at each trade show. Again, the pricing, sales leads and trade show selection information is out-of-date, and product displays would have been visible to anyone attending the same trade shows attended by [the plaintiff employer]. Finally, the record contains no evidence that the employee has misappropriated or disclosed any of [the plaintiff employer’s] trade secrets or other confidential business information, or that he engaged in any nefarious activities or attempts to circumvent any of the parties' agreements. In fact, [the executive] testified that he has no reason to believe that [the employee] has shared any confidential information with [the competitor].
Insomniacs may read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-6819.pdf
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Wednesday, January 14, 2009
Chicago Dentist to Pay $462,500 in Consent Decree to Settle EEOC Harassment and Retaliation Lawsuit
Yesterday, the EEOC announced that a “Chicago dental practice will pay $462,500 to settle a class sexual and religious harassment and retaliation lawsuit” it filed in September 2007 in federal court which alleged that “James L. Orrington, D.M.D., Ltd. discriminated against 18 employees by subjecting them to sexual harassment, including sexual propositions, comments and touching; forcing them to engage in Scientology religious practices and learn about Scientology as conditions of their employment; and/or retaliating against employees who complained about the sexual or religious harassment.” EEOC et al. v. James L. Orrington D.M.D., Ltd., No. 07 C 5317. “The consent decree resolving the case was entered by the court [yesterday] morning.”
The EEOC also announced that “[i]n addition to requiring that Orrington pay monetary relief, the three-year consent decree resolving the case enjoins Orrington from engaging in sexual or religious discrimination and prohibits the firm from conditioning any terms or conditions of employment on complying with the religious teachings or practices of Scientology or attending seminars regarding Scientology. The consent decree also requires that Orrington contract with an outside representative to receive and investigate complaints of sexual discrimination and religious discrimination; adopt and distribute a policy against sexual harassment, religious discrimination and harassment, and retaliation; provide training to employees; submit periodic reports to the EEOC about any complaints of sexual harassment, religious discrimination or harassment, or retaliation; and post a notice at its facility regarding the outcome of this lawsuit.
Insomniacs can read the full press release at
The EEOC also announced that “[i]n addition to requiring that Orrington pay monetary relief, the three-year consent decree resolving the case enjoins Orrington from engaging in sexual or religious discrimination and prohibits the firm from conditioning any terms or conditions of employment on complying with the religious teachings or practices of Scientology or attending seminars regarding Scientology. The consent decree also requires that Orrington contract with an outside representative to receive and investigate complaints of sexual discrimination and religious discrimination; adopt and distribute a policy against sexual harassment, religious discrimination and harassment, and retaliation; provide training to employees; submit periodic reports to the EEOC about any complaints of sexual harassment, religious discrimination or harassment, or retaliation; and post a notice at its facility regarding the outcome of this lawsuit.
Insomniacs can read the full press release at
Tuesday, January 13, 2009
Sixth Circuit: Employee Whose Reputation Was Damaged By Publicizing Investigation Report Gets Chance To Clear Name Through a Public Hearing.
Last Thursday, the Sixth Circuit reversed the dismissal of a complaint brought in a Columbus federal court by an state engineering college department chair whose reputation had been damaged after the university, among other things, held a press conference publicizing certain investigations into plagiarism allegations in his department, blaming him and others for some of the lapses and then suspending him from advising graduate faculty students for three years. Gunasekera v. Irwin , No. 07-4303 (6th Cir. 1/8/09). The Court held that the Plaintiff had been deprived of constitutional due process when his graduate student advising status was suspended without a pre- or post deprivation hearing (which need not be public). However, the novel holding of the case is that the Plaintiff was entitled to a public name-clearing hearing in that his reputation had been damaged through a press conference publicizing a report which never contained his denials of the allegations.
According to the Court’s opinion, “[i]n 2004, [the Plaintiff] was the Moss Professor of Mechanical Engineering at the Russ College of Engineering and Technology of Ohio University (“Russ College”) and had been Chair of the Department of Mechanical Engineering for fifteen years. He had worked at Ohio University (“the University”) for more than two decades and had Graduate Faculty status at Russ College which enabled him to supervise graduate students’ thesis work. That year, a student alleged widespread plagiarism in mechanical engineering graduate-student theses. Two internal investigations uncovered plagiarism in collateral areas rather than in the analysis or conclusions. Following these probes, . . . the Provost of Ohio University, instructed . . the Dean of Russ College, to take further action. In response, [the Dean] asked an administrator and a retired faculty member to investigate the alleged plagiarism. These men prepared a report known as the Meyer/Bloemer Report and submitted it to [the Dean] and [the Provost] on May 30, 2006.”
“On May 31, 2006, [the Provost] held a press conference to publicize the Meyer/Bloemer Report. As the district court explained, the report found “rampant and flagrant plagiarism in theses” and “singled out three faculty members, including [the Plaintiff], for ignoring their ethical responsibilities and contributing to an atmosphere of negligence toward issues of academic misconduct.” Gunasekera v. Irwin, 517 F. Supp. 2d 999, 1002 (S.D. Ohio 2007). In response to this report, the University suspended [the Plaintiff’s] Graduate Faculty status for three years and prohibited him from advising graduate students.” Plaintiff filed suit a few months later alleging deprivations of his property interests in his employment and liberty interests in his reputation without due process.
Constitutional Liberty Interests and Name Clearing Hearings.
The Supreme Court has previously explained that the fourteenth amendment to the constitution protects the property and liberty interests of citizens:
In a 1972 case where the one-year employment contract of a non-tenured state college instructor was not renewed without any reason being given, the Supreme Court held that the instructor’s liberty interest in his reputation was not implicated. “The State, in declining to rehire the [instructor], did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573-74 (1972) (citing Wisconsin v. Constantineau, 400 U.S. 433, 437). “The State, for example, did not invoke any regulations to bar the [instructor] from all other public employment in state universities. Had it done so, this, again, would be a different case. For "[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury.” Indeed, “[i]n such a case, due process would accord an opportunity to refute the charge before University officials.” Roth, supra. “The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.” Id. at n. 12.
In Gunasekera, the Defendants conceded that the Plaintiff possessed a liberty interest. “Given this concession, [the Court did] not need to apply [its] five-factor test used to decide whether someone is entitled to a name clearing hearing due to a deprivation of his or her liberty interest” Nonetheless, the Court indicated that it would likely have done so because “[t]he accusations regarding plagiarism were connected to his suspension (and as discussed above, [the Plaintiff’s] suspension deprived him of benefits and pay); the University alleged more than simple incompetence; the allegations were public; [the Plaintiff] claims that the statements were false; and the University called a press conference to publicize its charges.” Notably, there is no indication in the Court’s opinion that the Plaintiff had ever been interviewed as part of the investigation process or that his denials or version of events was included in the publicized reports. Thus, there seems to have been no public airing or publicization of his version of events or denials when the allegations against him were publicized.
The Court found that the parties’ dispute “boils down to what process is due and whether such a hearing must be public.” Procedurally, the Court was compelled to accept the Plaintiff’s allegations as true at this stage of the litigation. This is important because there was “some dispute as to whether the hearing offered by the University was public or not. . . The University asserted, and the district court agreed, that the proposed hearing was public because [the Plaintiff] would have been allowed to bring anyone, including members of the press, to his hearing. Gunasekera, 517 F. Supp. 2d at 1014 & n.9. [The Plaintiff] counters that the hearing offered was not public because the University specifically denied his request for a hearing publicized in the same way the Meyer/Bloemer report had been. Id. However, this dispute is contained in documents outside the pleadings which we cannot properly consider on a Rule 12(b)(6) motion. Taking the allegations in the complaint in the light most favorable to [the Plaintiff] , [the Court] assume[d] that he was not offered a public opportunity to clear his name.”
In the past, the Court had held that “a name-clearing hearing need only provide an opportunity to clear one’s name and need not comply with formal procedures to be valid.” Chilingirian v. Boris, 882 F.2d 200, 206 (6th Cir. 1989).” Nonetheless, the Court had not addressed “whether a name-clearing hearing must include a public opportunity clear one’s name.” For instance, “a university disciplinary hearing need not be public.” Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 (6th Cir. 2005). However, “a disciplinary hearing is very different from a name-clearing hearing. A name-clearing hearing is not a venue for an employer to determine the proper punishment, but rather an opportunity for an individual to confront a public stigma that has already been imposed by an employer.”
Entitlement to a name clearing hearing depends on “(1) the nature of the private interest affected—that is, the seriousness of the charge and potential sanctions, (2) the danger of error and the benefit of additional or alternate procedures, and (3) the public or governmental burden were additional procedures mandated. Flaim, 418 F.3d at 635 (describing test instituted by Supreme Court in Mathews).” In considering the first prong of this test, the Court found it to be “clear that where, as here, the employer has inflicted a public stigma on an employee, the only way that an employee can clear his name of the public stigma is through publicity. The injury of which [the Plaintiff] complains is the fact that he was publicly associated with and perhaps partially blamed for a plagiarism scandal. As to the second prong of Mathews, publicity adds a significant benefit to the hearing, and without publicity the hearing cannot perform its name-clearing function. A name-clearing hearing with no public component would not address this harm because it would not alert members of the public who read the first report that [the Plaintiff] challenged the allegations. Similarly, if [the Plaintiff’s] name was cleared at an unpublicized hearing, members of the public who had seen only the stories accusing him would not know that this stigma was undeserved. . . . Following this conclusion [in a similar case], the Second Circuit held that: ‘Requiring the [employer] to address such risk by offering plaintiff the opportunity to publicly refute the charges made against him or publicising his refutations itself, does not place an undue burden upon the government’s interest in terminating [employees] who either are not performing to expected standards or are behaving in an unacceptable fashion.’ Id. [The Court] agreed with the Second Circuit that requiring that name-clearing hearings involve some form of publicity would not necessarily put an undue burden on the government.” (emphasis added).
“In order to determine what the name-clearing hearing should entail and what its limits might be in each case, courts should again turn to the Mathews balancing test. . . By applying this test to the facts of the case before it, a court can tailor a name-clearing hearing which allows the employee to challenge directly any public stigma while also accounting for any legitimate concerns of the employer. . . . Requiring that a name clearing hearing include a public component may be the only way to make such a hearing effective. If a name-clearing hearing has no public component, it may not be able to serve its function of curing the public stigma that necessitated the hearing. With respect to the third prong, government interests will shape the nature of the publicity required. For example, privacy concerns within the university setting might dictate the form of the publicity. Cf. Flaim, 418 F.3d at 637 n.2 (noting that the publicity attending a “full-dress judicial hearing” “might be detrimental to the college’s educational atmosphere”). Though [the Court had] few facts before [it] on this Rule 12(b)(6) motion, . . . it is possible that concerns for the privacy of students [under FERPA, etc.] implicated in plagiarism would impact the precise nature of the publicity required.”
The Court held that the university would be ”required to offer [the Plaintiff] a name-clearing hearing that is adequately publicized to address the stigma the university inflicted on him. The exact nature of that publicity depends on a fact-intensive review of the circumstances attending his case,” which was left “to the district court . . . regarding the exact parameters of the name-clearing hearing.” Considering that the defendants had prematurely presented some evidence that a public hearing had already been offered to the Plaintiff, it remains to be seen whether the district court will find the prior offer to be sufficient on summary judgment or at trial. Because this was a new issue for the Court and the right to a public hearing was not established law in this Circuit, it found that the defendants were entitled to qualified immunity on this allegation.
Property Interest in Advising Graduate Students.
The Plaintiff also alleged that he had been denied property interests without due process of law in that his graduate student advising status had been suspended for three years without a pre or post deprivation hearing.
The Supreme Court has previously explained in Roth that “the Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests -- property interests -- may take many forms.” Among other things, these property interests extend to “a person receiving welfare benefits under statutory and administrative standards defining eligibility for them, ” to “a public college professor dismissed from an office held under tenure provisions, to “college professors and staff members dismissed during the terms of their contracts,” and “to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment.” Roth, supra. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.”
In Gunasekera, the Sixth Circuit noted that “[t]o prevail on the claim that he was unconstitutionally deprived of his property when his Graduate Faculty status was suspended, [the Plaintiff] must “‘establish three elements; (1) that [he] ha[s] a life, liberty, or property interest protected by the Due Process Clause of the Fourteenth Amendment . . . , (2) that [he] w[as] deprived of this protected interest within the meaning of the Due Process Clause, and (3) that the state did not afford [him] adequate procedural rights prior to depriving [him] of [his] protected interest.’” The Defendants denied that the Plaintiff had any property interest in his graduate student advising status because they retained the discretion to suspend him under the circumstances and he suffered no decrease in his salary or benefits.
Plaintiff “alleges that Graduate Faculty status is ‘a right intrinsic’ that a professor maintains so long as he or she satisfies the four criteria the University requires of its Graduate Faculty. Id. He argues that because these criteria limit the University’s discretion to name Graduate Faculty and because ‘[i]n actual practice . . . professors retain their appointment so long as they satisfy those criteria,” he has a property interest in his Graduate Faculty status.’” The Plaintiff’s “argument does not turn on the language of the [university] regulations, but rather on his ability to show that a common practice and understanding had developed which gave him a legitimate claim to Graduate Faculty status so long as he met the stated [four] conditions. At oral argument, the University admitted that there is no precedent regarding when Graduate Faculty status is retained, because it has never been revoked or suspended [before Plaintiff’s status was revoked]. Viewing the allegations in the complaint in the light most favorable to” the Plaintiff, the Court found that “he has alleged that University custom gives him a property interest in his Graduate Faculty status.”
Moreover, because Plaintiff lost some income “(including “a summer salary research stipend that complements annual salary” for Graduate Faculty) and benefits (such as a reduced teaching load), his suspension “alter[ed] his employment enough to make Graduate Faculty status a property interest.” See also “Newman v. Commonwealth, 884 F.2d 19, 25 n.6 (1st Cir. 1989) (“In this case, plaintiff was barred from voting on degrees and from serving on important university committees or as chair of her department. A letter of censure for an act of ‘objective plagiarism’ and ‘seriously negligent scholarship’ was placed in her permanent file, an action that undoubtedly affects her ability to secure other employment in the future. We think it obvious that this severe sanction substantially damaged plaintiff’s property interest in her position.” (emphasis added)).”
Having shown that he suffered a property loss when his graduate student advising status was suspended, the Plaintiff was then required to show that he was deprived of his property interest without due process (i.e., a pre- or post- termination hearing). In this case, the Plaintiff alleged that “he was not given notice or an opportunity to be heard regarding “his satisfaction of the criteria for appointment to Graduate Faculty status” before or after his suspension. Moreover, “[a]t oral argument, [Defendants’] lawyer conceded that [the Plaintiff] had not been offered either a pre- or a post-deprivation hearing.” The Sixth Circuit has already “held that prior to termination of a public employee who has a property interest in his employment, the due process clause requires that the employee be given ‘oral or written notice of the charges against him or her, an explanation of the employer’s evidence, and an opportunity to present his or her side of the story to the employer.’” . . . Because [the Plaintiff] asserts that he was never given any opportunity to be heard either before or after he was deprived of his property interest in his Graduate Faculty status, the district court’s dismissal of [the Plaintiff’s] property-interest claim must be reversed.”
Insomniacs can read the full court decision at http://www.ca6.usc.ourtsgov/opinions.pdf/09a0005p-06.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
According to the Court’s opinion, “[i]n 2004, [the Plaintiff] was the Moss Professor of Mechanical Engineering at the Russ College of Engineering and Technology of Ohio University (“Russ College”) and had been Chair of the Department of Mechanical Engineering for fifteen years. He had worked at Ohio University (“the University”) for more than two decades and had Graduate Faculty status at Russ College which enabled him to supervise graduate students’ thesis work. That year, a student alleged widespread plagiarism in mechanical engineering graduate-student theses. Two internal investigations uncovered plagiarism in collateral areas rather than in the analysis or conclusions. Following these probes, . . . the Provost of Ohio University, instructed . . the Dean of Russ College, to take further action. In response, [the Dean] asked an administrator and a retired faculty member to investigate the alleged plagiarism. These men prepared a report known as the Meyer/Bloemer Report and submitted it to [the Dean] and [the Provost] on May 30, 2006.”
“On May 31, 2006, [the Provost] held a press conference to publicize the Meyer/Bloemer Report. As the district court explained, the report found “rampant and flagrant plagiarism in theses” and “singled out three faculty members, including [the Plaintiff], for ignoring their ethical responsibilities and contributing to an atmosphere of negligence toward issues of academic misconduct.” Gunasekera v. Irwin, 517 F. Supp. 2d 999, 1002 (S.D. Ohio 2007). In response to this report, the University suspended [the Plaintiff’s] Graduate Faculty status for three years and prohibited him from advising graduate students.” Plaintiff filed suit a few months later alleging deprivations of his property interests in his employment and liberty interests in his reputation without due process.
Constitutional Liberty Interests and Name Clearing Hearings.
The Supreme Court has previously explained that the fourteenth amendment to the constitution protects the property and liberty interests of citizens:
While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], . . . [w]ithout doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.Meyer v. Nebraska, 262 U.S. 390, 399.
In a 1972 case where the one-year employment contract of a non-tenured state college instructor was not renewed without any reason being given, the Supreme Court held that the instructor’s liberty interest in his reputation was not implicated. “The State, in declining to rehire the [instructor], did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573-74 (1972) (citing Wisconsin v. Constantineau, 400 U.S. 433, 437). “The State, for example, did not invoke any regulations to bar the [instructor] from all other public employment in state universities. Had it done so, this, again, would be a different case. For "[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury.” Indeed, “[i]n such a case, due process would accord an opportunity to refute the charge before University officials.” Roth, supra. “The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.” Id. at n. 12.
In Gunasekera, the Defendants conceded that the Plaintiff possessed a liberty interest. “Given this concession, [the Court did] not need to apply [its] five-factor test used to decide whether someone is entitled to a name clearing hearing due to a deprivation of his or her liberty interest” Nonetheless, the Court indicated that it would likely have done so because “[t]he accusations regarding plagiarism were connected to his suspension (and as discussed above, [the Plaintiff’s] suspension deprived him of benefits and pay); the University alleged more than simple incompetence; the allegations were public; [the Plaintiff] claims that the statements were false; and the University called a press conference to publicize its charges.” Notably, there is no indication in the Court’s opinion that the Plaintiff had ever been interviewed as part of the investigation process or that his denials or version of events was included in the publicized reports. Thus, there seems to have been no public airing or publicization of his version of events or denials when the allegations against him were publicized.
The Court found that the parties’ dispute “boils down to what process is due and whether such a hearing must be public.” Procedurally, the Court was compelled to accept the Plaintiff’s allegations as true at this stage of the litigation. This is important because there was “some dispute as to whether the hearing offered by the University was public or not. . . The University asserted, and the district court agreed, that the proposed hearing was public because [the Plaintiff] would have been allowed to bring anyone, including members of the press, to his hearing. Gunasekera, 517 F. Supp. 2d at 1014 & n.9. [The Plaintiff] counters that the hearing offered was not public because the University specifically denied his request for a hearing publicized in the same way the Meyer/Bloemer report had been. Id. However, this dispute is contained in documents outside the pleadings which we cannot properly consider on a Rule 12(b)(6) motion. Taking the allegations in the complaint in the light most favorable to [the Plaintiff] , [the Court] assume[d] that he was not offered a public opportunity to clear his name.”
In the past, the Court had held that “a name-clearing hearing need only provide an opportunity to clear one’s name and need not comply with formal procedures to be valid.” Chilingirian v. Boris, 882 F.2d 200, 206 (6th Cir. 1989).” Nonetheless, the Court had not addressed “whether a name-clearing hearing must include a public opportunity clear one’s name.” For instance, “a university disciplinary hearing need not be public.” Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 (6th Cir. 2005). However, “a disciplinary hearing is very different from a name-clearing hearing. A name-clearing hearing is not a venue for an employer to determine the proper punishment, but rather an opportunity for an individual to confront a public stigma that has already been imposed by an employer.”
Entitlement to a name clearing hearing depends on “(1) the nature of the private interest affected—that is, the seriousness of the charge and potential sanctions, (2) the danger of error and the benefit of additional or alternate procedures, and (3) the public or governmental burden were additional procedures mandated. Flaim, 418 F.3d at 635 (describing test instituted by Supreme Court in Mathews).” In considering the first prong of this test, the Court found it to be “clear that where, as here, the employer has inflicted a public stigma on an employee, the only way that an employee can clear his name of the public stigma is through publicity. The injury of which [the Plaintiff] complains is the fact that he was publicly associated with and perhaps partially blamed for a plagiarism scandal. As to the second prong of Mathews, publicity adds a significant benefit to the hearing, and without publicity the hearing cannot perform its name-clearing function. A name-clearing hearing with no public component would not address this harm because it would not alert members of the public who read the first report that [the Plaintiff] challenged the allegations. Similarly, if [the Plaintiff’s] name was cleared at an unpublicized hearing, members of the public who had seen only the stories accusing him would not know that this stigma was undeserved. . . . Following this conclusion [in a similar case], the Second Circuit held that: ‘Requiring the [employer] to address such risk by offering plaintiff the opportunity to publicly refute the charges made against him or publicising his refutations itself, does not place an undue burden upon the government’s interest in terminating [employees] who either are not performing to expected standards or are behaving in an unacceptable fashion.’ Id. [The Court] agreed with the Second Circuit that requiring that name-clearing hearings involve some form of publicity would not necessarily put an undue burden on the government.” (emphasis added).
“In order to determine what the name-clearing hearing should entail and what its limits might be in each case, courts should again turn to the Mathews balancing test. . . By applying this test to the facts of the case before it, a court can tailor a name-clearing hearing which allows the employee to challenge directly any public stigma while also accounting for any legitimate concerns of the employer. . . . Requiring that a name clearing hearing include a public component may be the only way to make such a hearing effective. If a name-clearing hearing has no public component, it may not be able to serve its function of curing the public stigma that necessitated the hearing. With respect to the third prong, government interests will shape the nature of the publicity required. For example, privacy concerns within the university setting might dictate the form of the publicity. Cf. Flaim, 418 F.3d at 637 n.2 (noting that the publicity attending a “full-dress judicial hearing” “might be detrimental to the college’s educational atmosphere”). Though [the Court had] few facts before [it] on this Rule 12(b)(6) motion, . . . it is possible that concerns for the privacy of students [under FERPA, etc.] implicated in plagiarism would impact the precise nature of the publicity required.”
The Court held that the university would be ”required to offer [the Plaintiff] a name-clearing hearing that is adequately publicized to address the stigma the university inflicted on him. The exact nature of that publicity depends on a fact-intensive review of the circumstances attending his case,” which was left “to the district court . . . regarding the exact parameters of the name-clearing hearing.” Considering that the defendants had prematurely presented some evidence that a public hearing had already been offered to the Plaintiff, it remains to be seen whether the district court will find the prior offer to be sufficient on summary judgment or at trial. Because this was a new issue for the Court and the right to a public hearing was not established law in this Circuit, it found that the defendants were entitled to qualified immunity on this allegation.
Property Interest in Advising Graduate Students.
The Plaintiff also alleged that he had been denied property interests without due process of law in that his graduate student advising status had been suspended for three years without a pre or post deprivation hearing.
The Supreme Court has previously explained in Roth that “the Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests -- property interests -- may take many forms.” Among other things, these property interests extend to “a person receiving welfare benefits under statutory and administrative standards defining eligibility for them, ” to “a public college professor dismissed from an office held under tenure provisions, to “college professors and staff members dismissed during the terms of their contracts,” and “to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment.” Roth, supra. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.”
In Gunasekera, the Sixth Circuit noted that “[t]o prevail on the claim that he was unconstitutionally deprived of his property when his Graduate Faculty status was suspended, [the Plaintiff] must “‘establish three elements; (1) that [he] ha[s] a life, liberty, or property interest protected by the Due Process Clause of the Fourteenth Amendment . . . , (2) that [he] w[as] deprived of this protected interest within the meaning of the Due Process Clause, and (3) that the state did not afford [him] adequate procedural rights prior to depriving [him] of [his] protected interest.’” The Defendants denied that the Plaintiff had any property interest in his graduate student advising status because they retained the discretion to suspend him under the circumstances and he suffered no decrease in his salary or benefits.
Plaintiff “alleges that Graduate Faculty status is ‘a right intrinsic’ that a professor maintains so long as he or she satisfies the four criteria the University requires of its Graduate Faculty. Id. He argues that because these criteria limit the University’s discretion to name Graduate Faculty and because ‘[i]n actual practice . . . professors retain their appointment so long as they satisfy those criteria,” he has a property interest in his Graduate Faculty status.’” The Plaintiff’s “argument does not turn on the language of the [university] regulations, but rather on his ability to show that a common practice and understanding had developed which gave him a legitimate claim to Graduate Faculty status so long as he met the stated [four] conditions. At oral argument, the University admitted that there is no precedent regarding when Graduate Faculty status is retained, because it has never been revoked or suspended [before Plaintiff’s status was revoked]. Viewing the allegations in the complaint in the light most favorable to” the Plaintiff, the Court found that “he has alleged that University custom gives him a property interest in his Graduate Faculty status.”
Moreover, because Plaintiff lost some income “(including “a summer salary research stipend that complements annual salary” for Graduate Faculty) and benefits (such as a reduced teaching load), his suspension “alter[ed] his employment enough to make Graduate Faculty status a property interest.” See also “Newman v. Commonwealth, 884 F.2d 19, 25 n.6 (1st Cir. 1989) (“In this case, plaintiff was barred from voting on degrees and from serving on important university committees or as chair of her department. A letter of censure for an act of ‘objective plagiarism’ and ‘seriously negligent scholarship’ was placed in her permanent file, an action that undoubtedly affects her ability to secure other employment in the future. We think it obvious that this severe sanction substantially damaged plaintiff’s property interest in her position.” (emphasis added)).”
Having shown that he suffered a property loss when his graduate student advising status was suspended, the Plaintiff was then required to show that he was deprived of his property interest without due process (i.e., a pre- or post- termination hearing). In this case, the Plaintiff alleged that “he was not given notice or an opportunity to be heard regarding “his satisfaction of the criteria for appointment to Graduate Faculty status” before or after his suspension. Moreover, “[a]t oral argument, [Defendants’] lawyer conceded that [the Plaintiff] had not been offered either a pre- or a post-deprivation hearing.” The Sixth Circuit has already “held that prior to termination of a public employee who has a property interest in his employment, the due process clause requires that the employee be given ‘oral or written notice of the charges against him or her, an explanation of the employer’s evidence, and an opportunity to present his or her side of the story to the employer.’” . . . Because [the Plaintiff] asserts that he was never given any opportunity to be heard either before or after he was deprived of his property interest in his Graduate Faculty status, the district court’s dismissal of [the Plaintiff’s] property-interest claim must be reversed.”
Insomniacs can read the full court decision at http://www.ca6.usc.ourtsgov/opinions.pdf/09a0005p-06.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Monday, January 12, 2009
USCIS Agrees with Chamber of Commerce to Delay Mandatory E-Verify Implementation For Federal Contractors Until February 20, 2009
As summarized here on December 9, 2008, the federal government published its final regulation in November which will require many federal contractors and subcontractors to begin using the e-verify program to confirm the employment eligibility of many existing and newly-hired employees as federal service and construction contracts and solicitations are issued or amended after January 15, 2009 (i.e., this Friday). In other words, federal agencies have been directed to insert a new clause into procurement contracts and solicitations requiring contractors and subcontractors to enroll and utilize the e-verify program. This regulation implements Executive Order 12989 which was amended in June 2008.
The U.S. Chamber of Commerce filed a federal lawsuit in December 2008 seeking to invalidate the new federal regulation. In the meantime, on Friday, January 9, 2009, the Chamber of Commerce announced that USCIS had agreed in the interim to delay mandatory implementation of the e-verify system for federal contractors until February 20, 2009. (This information is similarly, but less overtly, confirmed on the USCIS website). Contractors remain free to utilize the e-verify system and USCIS points out that more than 100,000 employers have registered for the program. In response to the Chamber’s protests about e-verify, USCIS contends that e-verify is not mandatory because employers are not mandated to become federal contractors.
Insomniacs can read the Chamber’s full press release at http://www.uschamber.com/press/releases/2009/january/090109_everify.htm and confirm USCIS’s agreement to the postponement at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
The U.S. Chamber of Commerce filed a federal lawsuit in December 2008 seeking to invalidate the new federal regulation. In the meantime, on Friday, January 9, 2009, the Chamber of Commerce announced that USCIS had agreed in the interim to delay mandatory implementation of the e-verify system for federal contractors until February 20, 2009. (This information is similarly, but less overtly, confirmed on the USCIS website). Contractors remain free to utilize the e-verify system and USCIS points out that more than 100,000 employers have registered for the program. In response to the Chamber’s protests about e-verify, USCIS contends that e-verify is not mandatory because employers are not mandated to become federal contractors.
Insomniacs can read the Chamber’s full press release at http://www.uschamber.com/press/releases/2009/january/090109_everify.htm and confirm USCIS’s agreement to the postponement at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
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