Author Archives: BurnsWhite

By: Francis D. Wymard, Esq.

About 36% of all criminal cases filed in federal district courts in late 2009 and early 2010 involved immigration-related offenses, the Administrative Office of the U.S. Courts reported in March. Of 78,013 criminal cases filed in the twelve months ending September 30, 2010, 28,046 (35.9%) involved an immigration crime. This is an 8.7% increase from the prior year. Immigration-related offenses constitute the single largest category of federal crime lodged by prosecutors (drug offenses came in second with 15,785). This data is consistent with a recent U.S. Sentencing Commission report stating that immigration offenses resulting in a sentence in 2009 are now the largest category of federal crime (32.2%) – the first in the Commission’s 20 years of data gathering for which this is true.

Click here to read the Administrative Office of the U.S. Courts report.

Click here to read the U.S. Sentencing Commission report.

If you have a question for Francis or would like to make a comment on the issues discussed in this update, please email SocialMedia@burnswhite.com.

By: Dean F. Falavolito, Esq.

Last week, the Supreme Court issued its ruling in Staub v. Proctor Hospital, a much-anticipated decision that will greatly expand the scope of employee discrimination cases. The case was decided under the Uniformed Services Employment and Reemployment Rights Act (USERRA), but because USERRA uses the same discrimination standard as Title VII and the Age Discrimination in Employment Act (ADEA), this decision could potentially have far-reaching consequences in all discrimination cases.

The issue at hand was whether an employee could state a case for discrimination if the person with the discriminatory motive was not the person who actually made the adverse employment decision against the employee (this is sometimes referred to as a “cat’s paw” case). Specifically, the employee was able to prove that his immediate supervisors were hostile towards him as a result of his military service. The employee was later terminated, but by a superior higher up the corporate ladder who (admittedly) had not been hostile or discriminatory toward the plaintiff because of the plaintiff’s military service.

The Supreme Court held that even if the decision-maker did not have any discriminatory motives toward the employee, the employee can sustain a discrimination claim if the decision maker was even slightly motivated by or relied on any information from the discriminating supervisor. This decision has a far reaching effect on employers, as it potentially makes the employers more likely to be liable for “mid-level” managers’ conduct and makes it far more difficult for an employer to defend a case by claiming that a discriminating employee played no role in the plaintiff’s termination.

By: Dean F. Falavolito, Esq.

When the National Labor Relations Board (NLRB) filed suit against an employer in November of 2010 for terminating an employee as a result of her complaints about the employer on Facebook, other employers around the country took notice. The NLRB’s position was that her comments were “protected concerted activity,” which(under the National Labor Relations Act) allows employees to discuss the terms and conditions of their employment with co-workers and others.

Therefore, this firing had the potential to affect all employers, whether or not they had unions in the workplace. The fact that this case quickly settled without leading to any binding precedent can be seen as a positive for employers, but it still serves as a word of caution to any employer considering taking action against an employee for postings on social media.

Click here for the Feb. 8 Wall Street Journal article detailing the settlement.

If you have a question for Dean or would like to make a comment on the issues discussed in this update, please email SocialMedia@burnswhite.com.