In Sadie, five former Cleveland police officers brought suit under the ADEA and the 14th Amendment against the city of Cleveland and three city officials. Pursuant to a Cleveland local ordinance, the mandatory retirement age of police officers is set at 65. Up until 2010, however, no officer had been denied working beyond the age of 65 upon the passing of a medical exam. Yet, all officers age 65 and over were denied an extension in 2010 and were forced to turn in their badges. The officers argued that the city’s actions showed discriminatory animus and an express preference for younger workers.

Cleveland, as with other state and local governments, utilizes an exception found in 29 U.S.C. § 623(j). This provision specifically allows for a mandatory discharge for police officers over the age of 55 pursuant to a retirement plan “that is not a subterfuge to evade the purposes” of the ADEA. The Cleveland Police Chief’s justification for the denial of extensions was based on a 2010 budget cut of 4.17% and recent layoffs within the force. Instead of providing extensions for those turning 65, the department decided to rehire laid-off police officers. In finding that the actions were not a “subterfuge,” the Court noted that the ADEA expressly allows local governments “to terminate police and fire officers on the basis of their age pursuant to mandatory-retirement provisions.” The officers 14th Amendment claim also failed, as the department’s proffered justification – the budget deficit – was rationally related to a legitimate government interest.

The immediate impact of Sadie is not clear. Cleveland’s official purpose for the mandatory retirement ordinance is based on promoting the efficiency of the local police department. Even though Cleveland expressly favored laid-off workers over those turning 65, the efficiency justification, plus the recent budget deficit and budget cuts within the department, provided a sufficient rationalization to invoke the ADEA exception. It seems that going forward, local governments could feasibly utilize mandatory retirement provisions in the wake of recent budget cuts with no pushback from the ADEA. Here, the fact that the officers had never previously been denied an extension, at the same time the department faced a budget crunch, proved to be sufficient circumstances for the Sixth Circuit to find the city’s decision not to be a subterfuge. Whether or not Cleveland could have invoked the ordinance without evidence of a budget cut – or cuts at a specified percent – is unclear, and could be a unique issue going forward.

Plaintiff Garrison alleged that immediately upon beginning her employment with Defendant Nippert, she was subjected to repeated sexual harassment — lewd sexual remarks and unwanted touching.  Ultimately reaching her “breaking point,” the plaintiff resigned.  However, weeks later, the plaintiff returned to work for Defendant Nippert because she was “desperate for money.”

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In August 2011 the NRLB promulgated a rule requiring all employers subject to the National Labor Relations Act (“NLRA”) to post a prescribed “Notification of Employee Rights under the National Labor Relations Act.” The Notice would have advised employees of their rights to organize a union, form, join or assist a union, bargain collectively through representatives, discuss wages, benefits and union organizing, take action with others regarding working conditions, strike or picket, or choose not to engage in any of these activities. The Notice was widely supported by labor unions and assailed by most employer groups as one-sidedly pro-union. The National Association of Manufacturers and other trade groups brought suit against the NLRB seeking to have the posting requirement vacated. In a unanimous decision, the D.C. Circuit ruled that the Notice posting requirement violated section 8(c) of the NLRA, which protects employers’ free speech rights. In a concurring opinion, two judges of the three judge panel also expressed the view that the rule requiring the Notice posting exceeded the NLRB’s rule making authority under the NLRA.

While the NLRB may attempt to take the matter to the Supreme Court, for now no notice posting requirement exists.

Benesch is proud to have served as lead counsel to the National Association of Manufacturers in this case.

Following a two-week trial before United States District Judge Edward M. Chen in the United States District Court of Northern California, a jury convicted David Nosal, an executive recruiter, of all charges in a six-count indictment including, inter alia, violations of the Computer Fraud and Abuse Act (“CFAA”) and trade secret theft. United States v. Nosal, No. CR-08-0237 EMC (N.D. Cal. Apr. 24, 2013). This case illustrates that despite the Ninth Circuit’s narrow reading of the CFAA, the appropriate scope and interpretation of the terms “without authorization” and “exceeds authorized access” remains unsettled.

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Ayissi-Etoh involved an African-American plaintiff, Placide Ayissi-Etoh, alleging his former employer, Fannie Mae, unlawfully discriminated against him in violation of federal anti-discrimination statute 42 U.S.C. § 1981.

The former financial modeling team lead alleged several instances of discrimination in support of his claims. Ayissi-Etoh first pointed to a conversation he had with a supervisor regarding his salary. The plaintiff had recently been promoted along with 11 white co-workers. However, unlike his white peers, Ayissi-Etoh hadn’t received a corresponding pay raise. He inquired as to why this was, and his white supervisor replied “For a young black man smart like you, we are happy to have your expertise; I think I’m already paying you a lot of money.” Ayissi-Etoh also alleged that a different white supervisor yelled “Get out of my office [n-word]” at him during an unrelated heated exchange. The plaintiff responded by filing a discrimination claim with the Equal Employment Opportunity Commission (EEOC), at which point his employer reportedly gave him an ultimatum: drop the complaint or lose your job. Ayissi-Etoh was subsequently fired.

Ayissi-Etoh brought suit against Fannie Mae in a D.C. federal court alleging in relevant part that Fannie Mae unlawfully denied him a pay raise, maintained a hostile work environment, and retaliated against him in contravention of federal anti-discrimination law. The supervisors implicated in the suit both denied making the “young smart black man” and “n-word” statements, and Fannie Mae moved for summary judgment.

The district court granted Fannie Mae’s motion for summary judgment and Ayissi-Etoh appealed. In reversing the lower court’s decision, the D.C. Circuit Court of Appeals first held the “young black man” statement was direct evidence of discrimination, and therefore amounted to a sufficient showing of discrimination to proceed to trial.

The court further held that the single use of the “n-word” constituted an adequate showing that Ayissi-Etoh was subjected to the required “discriminatory intimidation, ridicule, and insult” severe enough to “alter the conditions of the victim’s employment and create an abusive working environment.” The court reasoned that while a hostile work environment claim examines the “totality of the circumstances,” a single instance of the unambiguously racial epithet could change the conditions of employment and thus create a hostile work environment.

Ayissi-Etoh presents a rare case where a single incident of especially offensive contact can result in a hostile work environment. While such cases are rare, Ayissi-Etoh is not unique. The case, therefore, should serve as a reminder to employers to be mindful of their supervisors’ actions. This decision illustrates that a hostile work environment doesn’t necessarily manifest over months, weeks, or even days; instead, even a single instance of discriminatory conduct can be adequate to make such a showing.

A full copy of the decision is available here.

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By law, H-1B visas are limited to 20,000 for those holding a U.S. Master’s degree and approximately 65,000 other individuals of extraordinary ability (those who possess, by education and/or experience, at least the equivalent of a U.S. Bachelor’s Degree).  Each putative nonimmigrant H-1B beneficiary must be sponsored by a petitioning employer, and offered employment into a “specialty occupation” (generally meaning a position that requires at least the equivalent of a U.S. Bachelor’s degree for entry).  A large number of H-1B visas go to those in the science, technology, engineering, and math fields.  The fiscal year for H-1B visas runs from October 1 – September 30, and filings are received by USCIS no earlier than 180 days prior to the start of the fiscal year.  This year’s H-1B filing “season” began on April 1, 2013 for the October 1, 2013 – September 30, 2014 fiscal year (FY2014). 

Because USCIS received more than 20,000 petitions for beneficiaries with a U.S. Master’s Degree and more than 65,000 petitions for others of extraordinary ability during the first five business days of the filing season, two lotteries will be held to determine which beneficiaries will be awarded H-1B visas.  The first lottery will determine which beneficiaries will be awarded one of the 20,000 H-1B visas set aside for those holding a U.S. Master’s degree.  Those who are unsuccessful in the first lottery will then join the remaining putative beneficiaries in the second lottery for the remaining H-1B visas.  This is the first time USCIS has held a lottery since 2008 (FY2009), a sign some observers see of an improving economy.  By comparison, in FY2010, visas remained available until January 2011, in FY2011, visas remained until November 2011, and in FY2012, visas remained available until June 2012.

Proposals to modify the existing H-1B visa program, including increasing the number of available visas, have been discussed among congress as part of Immigration Reform.  We will report back with any developments as information becomes available.  In the meantime, if you have questions about the H-1B program or employment-based immigration, please give Pat Peters a call at (216) 363-4434.

Thanks,

- Pat Peters                           

The revised I-9 was available for use beginning on March 8th, and employers must begin using the revised form immediately. However, the USCIS acknowledged the difficulty employers face in transitioning immediately to the new form and, accordingly, provided a sixty (60) day grace period to phase in use of the revised form. As such, employers have up to and including May 7, 2013 to update their business processes as necessary to accommodate the new form. After this date, employers who fail to use the revised I-9 may be subject to applicable penalties and fines.

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