Massachusetts Lawyer for Employment Defense
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H1B Immigration Filings–Employers, Get Them While They’re Hot!

Now is the Time to Act as the April 1st Filing Date is Rapidly Approaching

Despite the economic downturn, companies are still in need of specialized talent. We are aware that employers will continue to require the services of highly skilled foreign nationals to accomplish their business goals and objectives. The timing is dictated largely by the academic calendar, but also by the realities of the H-1B visa. The H-1B visa is the most desired visa for professionals as well as the most common method for many companies to hire foreign nationals.

Therefore, our law office is accepting H1B cap-subject cases for Fiscal Year 2010. Many foreign nationals and their employers have asked when they should start working on H1B cap cases. The sooner the better as the cap filings must be filed as early as April 1, 2009 for an October 1, 2009 start date. It is vital to file on the first day of visa availability. For the past two years, the filings have outweighed the available H1B cap numbers, and a random lottery determined which cases would be eligible. The same pattern is likely to continue.

In order to have a case filed with U.S. Citizenship and Immigration Services (USCIS) on April 1st, please act now. We will make every effort to accommodate any last minute hiring decisions; we encourage your company to examine such hiring decisions as soon as possible as this April 1 deadline is fast approaching.

Those who are ready to start H1B cases, or who may want to have a consultation about the process and H1B issues, please contact me at the above.

For help with your immigration and employment matters, please call our office today. My partner, Michele Vakili, can be reached directly at (617) 330-7119. And for other employment issues, please feel to contact me directly at 617-330-7123.

-Denise Murphy

Massachusetts Supreme Judicial Court Defines Pregnancy Discrimination Rights Against Small Employers

In an important case decided today, the Massachusetts Supreme Court has announced that the Massachusetts Equal Rights Act does allow a plaintiff who works for an employer with fewer than six employees to sue for pregnancy discrimination. The case clearly opens the door for additional pregnancy discrimination claims against Massachusetts employers.

However, preganancy discrimination claims against smaller employers still cannot be brought in the Massachusetts Commission Against Discrimination, which has jurisdiction only over employers with six or more employees. Claims against smaller employers will proceed directly to court.

Prior to this ruling, it was unclear under Massachusetts law whether employers who did not fall within the jurisdictional limitations of the Massachusetts General Laws chapter 151B (requiring 6 or more employees) could be sued for pregnancy discrimination. The SJC made it clear that these employers are not exempt from pregnancy discrimination claims.

Small employers will benefit from the fact that defending the claim will at least be less expensive than the two step process under G.L. c. 151B.

Larger employers are still required to defend pregnancy discrimination claims at the MCAD, where the claimant has the option of maintaining the claim for part of its handling, or all of its determination, as well as the option of removing the case to court. The employer does not have the option of removal.

The MCAD process is very expensive (and distracting) for any employer and the financial and business burden would have greatly impacted employers with fewer than 6 employees. From an economical and business perspective, MERA provides these employers with the right to defend claims just once, rather than duplicating their costs through the MCAD investigation process and then, if removed by the plaintiff, incur those costs and distractions once again in court.

For these smaller employers, one forum is more than enough for them to bear.

The case is THURDIN vs. SEI BOSTON, LLC.

If you would like to discuss the impact of this case on your business, please call me.

Massachusetts Increases Fines for Wage and Hour Violations

An amendment to the Massachusetts Wage Act has businesses–and their lawyers–calling the changes unfair and punitive. What’s the change? Under the amendment passed in April 2008 by the legislature, which went to effect on July 13, 2008, the civil punishment for wage and hour violations is now treble damages, regardless of whether the violation was intentional or not.

Of course every business needs to pay their workers in accordance with the law, which means, among other things, overtime for weeks of over forty hours, with mandatory overtime on Sundays and certain holidays in retail establishments, and vacation and commissions policies that conform with the law. The law already provided for strict damages, including back wages, attorneys’ fees, and sometimes multiple damages for intentional violations. Egregious violations of the law may also lead to criminal penalties.

But multiple damage awards used to vary depending on the culpability of the business. Some violations might result from errors at a payroll processing company or misunderstandings of the law, and a company had the right to plead a good faith defense to charges of violations. The state and federal departments of labor were usually forgiving in such circumstances, giving employers a second chance to mend their ways.

Unfortunately, the law of the land means that every violation will now be treated as a triple damages case.

The lesson for businesses: Time to take a close look at your employment practices. Double check your controls to make sure the wage and hour laws are being followed to the letter! This means double check with payroll companies too.

Contact me if you need to review your compliance with the wage and hour laws.  This is a very important area for all employers, and it is wise to invest in prevention to avoid potentially serious fines down the road.

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