Orr & Reno Blog

When Constructive Discharge Claims Accrue

Early last week, in Jeffery v. City of Nashua, the Supreme Court resolved an issue of first impression in New Hampshire – when an action for constructive discharge accrues.

Constructive discharge occurs when an employee can show “that her employer rendered her working conditions so difficult and intolerable that a reasonable person would feel forced to resign.”

In Jeffery, the plaintiff had, by mid 2006, grown uncomfortable in her working relationship with her boss. She received a series of negative reviews and was denied a raise in the early summer. Then, as a result of a violation of the City’s cash handling policies (some $1 million in checks were left unsecured in her department), she was demoted and placed on a one week unpaid disciplinary leave. She immediately took an FMLA leave to consider her situation. Evidently deciding that she couldn’t stick it out any longer, plaintiff submitted a resignation letter while still on leave. The letter was dated December 21, 2006, and it indicated that her resignation would be effective December 31.

The accrual/statute of limitations issue arose because the plaintiff didn’t file her claim until December 29, 2009 – three years and eight days after the date of her resignation letter.

The plaintiff argued that her action was timely because her claims were brought within three years of the effective date of her resignation – December 31. The Court disagreed. “Though of first impression in New Hampshire, several other jurisdictions have addressed this legal issue.” After reviewing these authorities the Court concluded:

Whereas in a wrongful discharge action, the action triggering the limitations period is the separation from work, here, the retaliatory action is the creation of intolerable conditions which a reasonable employee cannot accept. Thus, once a reasonable employee is compelled to resign due to the employer’s action, a constructive discharge has occurred, and the act of discrimination cannot occur any later than the date of resignation. We conclude, therefore, that an action for constructive discharge accrues when the employee tenders the resignation or retirement notice.

It’s always best to file claims well before the applicable limitations period expires to avoid just this type of problem. But if a last minute filing of a constructive discharge claim can’t be avoided, make sure it happens within three years of the date the notice of resignation is given. The effective date is irrelevant.

Apply for naturalization in time to vote in the election!

Can you name three of the thirteen original states? Do you know one thing Benjamin Franklin is famous for? These are just a few of the 100 possible history and government questions on the naturalization test to become a US citizen. The exam itself requires you to get 6 out of 10 questions correct. In addition to the civics questions, there is also a written and oral section to test your English. According to US Citizenship and Immigration Service’s website, the average processing time for a naturalization application is five months. In NH it takes about four months. This means if you file soon you might get naturalized in time to vote in this year’s election in November!

So, why not start now? Take the self-test on USCIS’s website.

Additional study materials can be found here.

We can assist with the N-400 Application for Naturalization. Contact me at 603-223-9186 or bcontreras@orr-reno.com.

H-1B Cap Reached

As we forecasted last week, the USCIS reports that the H-1B cap was reached as of June 11, 2012. Any cap-subject applications received after that date will be rejected.

Summer Travel in and out of the U.S.

With the onset of summer vacations, U.S. Customs and Border Protection issued a great news release to travelers entering and leaving the U.S. with important tips. Be sure you have everything you need to make for smooth travel!

If you need to apply for or renew your U.S. passport, the U.S. Department of State’s website is here.

Think that you waited too long to get your passport on time? You can expedite the process here – for an extra fee of course.

Bon voyage!

USCIS Audits Employers Who Hire H-1B Employees

The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) conducts random on-site inspections of H-1B sponsoring companies. The number of random audits for H-1B cases has increased throughout theU.S.particularly for H-1B extensions. The objective of these unannounced on-site visits is to detect fraud and abuses of the H-1B visa program and to ensure the integrity of the program. These voluntary investigations are conducted by FDNS officers who will confirm the identity of the petitioning employer and visa beneficiary, and verify compliance with the terms and conditions of the H-1B visa program.

The Officer will usually ask to speak to the company representative – typically the person who signed the Form I-129 (H-1B) Petition or the listed contact person. The Officer will verify the bona fides of the petitioning employer – business location, record keeping, employee’s job duties, compensation, hours, work site, supervision. The Officer will always ask to meet the employee to verify the employer/employee relationship and pay rate, confirm the job sites as listed in the H-1B petition, and may ask who paid for the H-1B petition. The Officer will note any discrepancies in the employment details. If possible, the person who signed the I-129 petition should accompany the Officer on the visit to the employee. If the employee is at a different job site than where signatory is located, be sure that personnel at that facility are aware of the protocol.

Companies should cooperate with FDNS Officers but company representatives may reasonably request additional time to provide the documents or other information requested. Your front-line personnel should be made aware of the appropriate protocol to follow during a government audit and they should direct any inquiries immediately to the proper H-1B employer representative.

Offices that file H-1B petitions are required to maintain Public Access Files and should review all files for accuracy and perform periodic internal audits. Members of our Immigration Team can assist with internal audits.

H-1B Fiscal Year (FY) 2013 Cap Soon To Be Reached

As of June 1, 2012, approximately 55,600 H-1B cap-subject petitions have been received by USCIS. In addition, there have been 18,700 H-1B petitions for aliens with advanced degrees (master’s or higher from U.S. colleges and universities):

Right-to-Know – When Are Records Compiled for Law Enforcement Purposes?

The Supreme Court issued a decision recently that further elucidates the exemption to the Right-to-Know Law (Chapter 91-A) for records compiled for law enforcement purposes.

Chapter 91-A is an expansive law that allows citizens of the state broad rights of access to documents and proceedings of public bodies. To further this purpose, the Court has stated repeatedly that the statute must be applied liberally, and that exemptions and exceptions must be construed narrowly.

Some of the exemptions are spelled out in the statute itself, while others the Court has grafted in from analogous federal law (the Freedom of Information Act, or “FOIA”). One of these exemptions, known as the Murray exemption, protects from disclosure “records or information compiled for law enforcement purposes” under several specific sets of circumstances.

At issue in 38 Endicott Street North, LLC v. State Fire Marshal was whether the “law enforcement purpose” should be determined by the nature of the materials themselves, or by the nature of the agency that gathers or prepares them (or some combination of both factors). The petitioner, 38 Endicott, had sought information gathered by the State Fire Marshal’s Office (“FMO”) regarding a fire that occurred at its restaurant in Laconia. The FMO refused, relying on the Murray exemption. 38 Endicott argued in its suit that the Murray exemption did not apply because the FMO was not a law enforcement official. Continue reading →

SB 406 Update

SB 406, the “early offer” legislation we mentioned earlier this month, is still in play as the legislative session winds down.  The Senate agreed to enter a committee of conference with the House to work out the details of the bill (as it bounced between Senate and House, the bill acquired several additional – and unrelated – provisions that the Senate had earlier rejected), and the committee has been meeting this week.  We’ll comment on the outcome when the committee finishes its work.

The Importance of Documenting Rights to Copyrighted Works

The United States District Court for the Northern District of Georgia decided an interesting fair use case earlier this month – Cambridge University Press, et al. v. Becker. 

(By way of quick background, “fair use” is a doctrine that deems certain uses of copyrighted work — for purposes such as criticism, comment, news reporting, teaching, scholarship, or research — to be non-infringing. In making this determination, courts consider the: ‘(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.’ 17 U.S.C. §107.)

At issue in Becker were a number of scholarly texts of which electronic excerpts had been posted in Georgia State University’s e-reserve system (“ERes”) for review by students. The excerpts were not available to the entire student body; only students in particular classes could access the materials, using a specific code provided by their professors. The plaintiff publishers sued, claiming that the excerpts infringed their copyright interests in the works, and the University raised a ‘fair use’ defense.

There are two particularly interesting aspects to the (350 page) opinion. First, the Court took great effort to define a relatively bright-line rule for applying factor 3 of the statutory fair use analysis – i.e., how much of a work could be copied without giving rise to infringement – when the use is made in a controlled academic context. Continue reading →

Privacy Concerns over Apple’s Siri Service

Many of you are familiar with Siri, the hands-free voice recognition technology used by the iphone 4s to process information requests. Apple has blanketed the airwaves with commercials showing Siri in use, and a cottage industry has arisen poking fun at Siri’s responses to off-the-wall questions (and its inability to recognize certain regional accents).

For all of its quirks, Siri is a powerful service – too powerful to be implemented entirely through device-based software. That’s why an internet connection is necessary for Siri to operate. Whenever you ask Siri a question, it is transmitted to Apple’s servers, which do the heavy lifting required to generate the response that Siri provides.

If every question asked of Siri is processed by Apple, that means that every question is stored, and available to be used, by Apple for other purposes. Indeed, Apple’s terms of use state that “by using Siri or Dictation, you agree and consent to Apple’s and its subsidiaries’ and agents’ transmission, collection, maintenance, processing, and use of this information, including your voice input and User Data, to provide and improve Siri, Dictation, and other Apple products and services.”

Most inquiries are unlikely to give rise to serious concerns. But there is a subset of questions that might include embarrassing personal details, or disclose trade secret or other commercially sensitive information. Would Apple use that information for nefarious purposes? It seems unlikely. But there is one sense in which it doesn’t matter what Apple’s motives might be. Trade secret law imposes requirements on owners of commercially sensitive and proprietary information to take reasonable steps to keep that information secure and secret. In a hard copy world, that meant safes and locked rooms and file cabinets.

A cloud-based system like Siri doesn’t fit comfortably into that paradigm, because the nature of the service makes it impossible to exercise full custodial control over the information. IBM, for one, evidently felt uncomfortable with work-related information zipping to and from (and through) Apple’s servers, and it has prohibited its employees from using Siri on business-related iPhones. (It also extended that decision to other cloud-based services like Dropbox, which work on similar principles.)

IBM’s approach could certainly be viewed as extreme, but given the logistics of Siri and the legal landscape the decision isn’t unjustified. Whether efforts to keep information secret are “reasonable,” as the law requires, is a fact-based question, and only IBM knows how frequently its employees deal with trade secret or other commercially sensitive information, and/or how likely that information is to make it into verbal questions posed to Siri.  Even if the frequency is low, and the risk minimal, IBM is entitled to consider the impact on its business and information security practices.