April 6, 2009 by Yan Bennett.

This year, certain employers may be receiving a boon from the economic downturn.  Each year, employers are permitted to hire temporary foreign workers in specialty occupations under the visa category of H-1B.  The H-1B category is numerically limited to 65,000 (the “cap”), which causes a great deal of anxiety to employers who are seeking to fill needed positions in their companies.  Employers must file beginning on April 1.  In the past, the U.S. Citizenship and Immigration Services (USCIS) would conduct a “lottery” to determine acceptance of applications.  This lottery is conducted by receiving petitions for temporary employees and if the cap is reached within the first five business days, then 65,000 petitions are selected at random for processing. USCIS has confirmed that it will utilize the lottery system this year.  Government regulation also provides that if the cap is not reached in the first five days, USCIS will not conduct a lottery and will process petitions on a first-come, first-serve basis.  While USCIS believes that the cap will be reached before the ultimate deadline of October 1, 2009, it has heard from various stakeholder groups that fewer petitions are expected to be filed during this H-1B season.  The potential here for employers is that the H-1B season will not be conducted by lottery this year, but by first-come, first-serve basis.  In such case, employers should be prepared to file H-1B applications as soon as possible in order to capture this opportunity.  However, it is impossible to accurately predict whether the lottery will be conducted this year because of the difficulty in determining how many applications will be filed.Contact Yan Bennett, Esq. for all your immigration questions and issues.

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April 6, 2009 by Yan Bennett.

After April 3, 2009, employers are required to use a newly revised Form I-9, Employment Eligibility Verification Form, to verify the employment authorization of their new employees. Only the new form, which has “Rev 02/02/09” at the bottom of the page, should be used for all employees hired on or or after April 3, 2009, or for employees whose work authorization needs to be re-verified on or after April 3, 2009.  All previous editions of Form I-9 are no longer valid for use. The government also released a new version of the Employer Handbook (M-274), which provides instructions for completing Form I-9.

The most significant change to the Form I-9 is the requirement that all documents presented during the I-9 verification process must be unexpired.  The government has also added additional documents that may be used for verification.  Human Resource and Personnel departments should carefully review the revisions and ensure that they are compliant with the new rules.  Failure to do so may result in civil fines.

Employers should not require existing employees to complete new Forms I-9 unless re-verification of work authorization is required.  The employer may be subjected to allegations of discrimination under federal law if the employer requests unnecessary documentation or unnecessary completion of new Form I-9s.  If the employer knows or suspects the employee is not authorized to work legally, the employer should seek legal advice in the proper investigation or termination of the employee. 

Employers and employees should feel free to contact Yan Bennett at Maselli Warren, P.C. with any immigration questions.  

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April 6, 2009 by Peter B. Paris, Esq.

The concept of progressive discipline is easy to understand:  when facing discipline for misconduct, a police officer’s past performance record should be considered in determining a fair and appropriate punishment.  Such discipline is “progressive” because the penalties for misconduct should “progressively” increase each time the officer is convicted of misconduct.  On the other hand, progressive discipline in its purest form would preclude severe punishment for a first offense, if that officer’s prior record was spotless. 

 In practice, the notion of progressive discipline is usually discussed when a police officer is fired or severely punished for a single instance of misconduct despite an exemplary prior record of performance.  Courts are more likely to discuss progressive discipline principles when justifying a reduction of punishmnet due to a stellar performance record.  Although courts are not required to adhere strictly to principles of progressive discipline when examining disciplinary actions, it is critical for police officers with good prior disciplinary records to vigorously and persuasively argue for leniency under progressive discipline principles.  It is equally important for officers to fight any disciplinary charge, even for “minor” infractions, because a spotless record will be extremely valuable if something serious happens in the future. 

In a recent unpublished case, Ackermann v. Borough of Glen Rock and Glen Rock Police Department, a sergeant-detective was charged by his Chief with sexually harassing a female colleague.  The Chief recommended a 3-day suspension.  The officer challenged this suspension, and a hearing was held.  The hearing officer concluded that the officer had violated numerous rules and recommended a 10-day suspension without pay, as well as attendance at sensitivity training.  The hearing officer’s conclusions were accepted by the Mayor and Council, except for the degree of discipline.  Substantially increasing the officer’s punishment, the Council suspended the officer for 60 days, demoted him from detective-sergeant to police officer, and required him to attend sensitivity training. 

In response, the officer filed a complaint in lieu of prerogative writs in Superior Court, resulting in a trial de novo.  After hearing the evidence, the trial court found that the demotion was excessive, noting that the officer had not been the subject of any prior disciplinary procedures.  Thus, the trial court found, ”to order [the officer] demoted would not be in accordance with the principles of progressive discipline.” 

The appellate court upheld the trial court’s rejection of the demotion on the basis of progressive discipline, stating, “[i]t is entirely appropriate to discipline an employee with an otherwise blameless record in a manner different than an employee whose record is studded with disciplinary charges.”  In this case, the officer benefitted from the court’s application of progressive discipline principles.

However, in a 2007 case called In Re Carter, the New Jersey Supreme Court upheld the removal of an officer for sleeping on duty, even though the Appellate Division had previously held that removal was too severe under progressive discipline principles.  The New Jersey Supreme Court noted that “we have not regarded the theory of progressive discipline as a fixed and immutable rule to be followed without question.”  According to the Court, “some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished record.” 

 Sleeping on duty, according to the Court, was “so serious” that termination was appropriate.  Unfortunately, the Court left for another day the answer to the most critical question: what other kinds of infractions are so serious to cause an otherwise perfectly behaved police officer to lose his job?  The answer to that question presumably lies somewhere in the thousands of pages of case law on the subject; but, I can tell you, there are no definite answers.

The Supreme Court’s analysis in In Re Carter, as in many other progressive discipline cases, is unsatisfying because it says, essentially, that while certain infractions can result in extreme punishment, only the Court knows those infractions when it sees them.  Because progressive discipline is not a “fixed and immutable rule,” and the jurisprudence surrounding the concept is typically limited to the facts of a particular case, Court precedent offers precious little guidance to police officers in the field who are left to wonder what conduct could get them fired, even if they have a perfect record. 

There are lessons to be learned, however.  First, do not accept any adverse employment actions, like suspensions or reprimands, lying down.  You should fight all such blemishes on your record because you never know if you will be accused of something more serious later.  The cleaner your file, the better your argument for leniency under progressive discipline principles will be.  Second, if you face disciplinary charges, and your prior record is relatively clean, make sure your attorney has carefully analyzed the applicable case law on progressive discipline so that the most potent arguments can be made on your behalf. 

Contact me by telephone or email if you have any questions about progressive discipline or any other issue relating to police-defense.  

Peter B. Paris, Esq. 609-452-8411, ext. 117 or pparis@maselliwarren.com.

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