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Summer, 2008 Employment and Labor Law Update

by David S. Feather


The U.S. Department of Homeland Security has issued a final rule which increases, by twenty-five (25%) percent, the civil penalties imposed on employers for violations of the Immigration and Nationality Act (INA). The fines have been increased for such things as knowingly employing unauthorized workers, failing to comply with the Form I-9, and immigration-related document fraud.

In addition, the fines, which will be adjusted for inflation, are levied on a per-alien basis. Thus, for example, if an employer knowingly employs five unauthorized aliens, five fines would be assessed.


A federal court in New York recently dismissed a pregnancy discrimination claim, despite the close proximity in time between the pregnancy and the employee’s termination.

In the case, the employee, the office manager of a medical center, was hired in February, 2005. In July, 2005, she learned she was pregnant, and informed her employer on July 28, 2005. Only a week later, she was terminated, due, the employer stated, to work performance issues.

Despite the close proximity of the termination to the announcement of the employee’s pregnancy, the court dismissed the lawsuit. While the employee argued that the criticism of her work performance only began after she made the announcement of her pregnancy, the employer was able to produce pre-pregnancy e-mails from her supervisors to her and others, criticizing her work performance. The employer was also able to produce pre-pregnancy complaints from patients and others. Further, the employer submitted multiple affidavits from other employees regarding deficiencies in the employee’s work performance, both before and after the announcement of her pregnancy.

The lesson to be learned from this case is that employers should always document serious performance deficiencies in writing, especially if they are not remedied. Do not simply speak to the employee regarding his/her performance deficiencies, and do not wait until the employee’s yearly performance evaluation. Documenting and attempting to remedy performance issues as they occur is not only a good employee practice, but can also limit your exposure to future litigation.


The United States Equal Employment Opportunity Commission (EEOC), the federal agency in charge of employment discrimination and harassment claims, reported that it received a total of 82,792 private-sector discrimination charge filings last year, the highest number since 2002, and the largest annual increase since the early 1990s.

According to the EEOC, allegations of race, retaliation and sex were the most frequently filed charges.



Whether an employer must pay for time spent by an employee in training is an extremely important one. Much time spent training, whether in lectures, seminars, meetings or other training programs, is either before or after regular business hours, and thus, many times overtime pay (that is, time-and-a-half), must be paid. If all of the following four factors are met, employers need not pay an employee for the time the employee spent in training:

1. Attendance is outside of the employee’s regular working hours.

If the training is held during regular working hours, the employee must be paid for this time;

2. Attendance is voluntary.

If the employee has a reasonable belief that his present working conditions or his continued employment with the company is premised upon his attendance at the training, then the training is not truly “voluntary”, and an employer must compensate the employee for the time spent in training.

An exception exists when an employer makes training a precondition of employment but allows the applicant to complete the training after he is hired. In this scenario, and if the employee spends no time doing his actual job duties, he need not be compensated for time spent in training during that time period.

In addition, when a governmental authority, whether federal, state or local, imposes a training requirement, the training need not be compensated.

For example, if a company mandates that its employees take a “safe driving course” after work in order to remain employed, then that time must be compensated. However, if there is a government requirement that all employees in a job category take a “safe driving course”, the employer need not compensate the employee for the time spent in training.

3. The training is not directly related to the employee’s job

If the training is designed to make the employee handle his/her job more effectively, then it is directly related to his job and he must be paid for the time spent in training. However, if the purpose is to train the employee for another job, or to give him a new or additional skill, then the training is not directly related to his job and the time need not be compensated. This is true even if the course incidentally improves his skill in doing his regular job.

4. The employee does not perform any productive work during such attendance.

If the employee performs any productive work during the training session, his time will be considered “working time” and he must be compensated for the entire time.

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