As a recent decision by the Department of Labor's Wage and Hour Division illustrates, employers of H-1B nonimmigrant workers continue to face intense scrutiny from government agencies.
Under the H-1B program (http://tinyurl.com/4aepb5v), employers may temporarily hire foreign workers in professional occupations if certain conditions are met, including paying H-1B workers the same wages as U.S. workers for the same job, or the prevailing wage for the position in the area of intended employment, whichever is higher. The Department of Labor's Wage and Hour Division (http://www.dol.gov/whd/) is responsible for enforcing the H-1B worker protections, as well as other labor laws including minimum wage, overtime pay, recordkeeping, child labor, family and medical leave, and migrant workers.
In Case No. 2010-LCA-00010 (http://tinyurl.com/4vbm9l2), the Wage and Hour Division found that a New Jersey employer had taken advantage of H-1B workers by failing to compensate them properly. In addition, the employer failed to post notices that H-1B workers were being hired, thus preventing U.S. workers who might have been qualified for the jobs from applying for them because they were unaware the opportunities existed. The employer agreed to pay $638,449 in back wages and interest to 67 workers, as well as $126,778 in civil money penalties and interest for failing to provide proper notice and for filing lawsuits against H-1B workers who quit their jobs, which also is prohibited by the H-1B regulations. The employer also was barred from participating in the H-1B program for a period of one year.
In commenting on the case (http://tinyurl.com/689ao5q), the Wage and Hour Division stated that since 2005 its investigations have resulted in the payment of more than $5.6 million in back wages and $300,000 in civil money penalties in New Jersey alone. It cited the most common employer violations as failing to post the required notice at every worksite where an H-1B employee may work and failing to pay the required wage.
Determining E-Mail Privilege From an Employer's
Computer
The privilege implications of employees e-mailing their attorneys from an employer's computer have been addressed by a number of courts. (See also Foley's Employment Law Update for the Week of July 13, 2010 (http://tinyurl.com/488m5sp)). In one of the first reported decisions on this issue, a bankruptcy court addressed the application of the attorney-client privilege to an employee who uses a corporate network to communicate with his personal attorney. (See In re Asia Global Crossing, Ltd. (http://tinyurl.com/4gelz5m)). New York has a specific statute on the issue. N.Y. C.P.L.R. § 4548.
The Court noted that it is generally accepted that attorneys can communicate with their clients, without fear of disclosure, via unencrypted e-mail. The Court considered four factors when formulating its test to determine whether e-mails were privileged:
- Does the company maintain a policy banning personal or other objectionable use?
- Does the company monitor the use of the employee's computer or e-mail?
- Do third parties have a right of access to the computer or e-mails?
- Did the company notify the employee, or was the employee aware, of the use and monitoring policies?
In this case, while the court found that third parties could review the e-mails because they were sent over the network and stored on the company's servers (a fact that is true in virtually all cases), the remaining factors were not met because the evidence was "equivocal" regarding the existence or notice of monitoring policies. Thus, the court concluded that the privilege was applicable.
New York courts have reached different conclusions, at least when personal use is banned. (See, Scott v. Beth Israel Medical Center Inc. (http://tinyurl.com/4jftklo)). The Scott court applied In re Asia Global Crossing, Ltd. but, in this case, Beth Israel had a computer use policy that disclosed its right to monitor and explicitly stated that the computer systems could not be used for personal use. The court concluded that the ban on personal use supported a finding that the e-mails were not privileged.
California courts first addressed a related issue — protection of electronic files on a work computer in People v. Jiang (http://tinyurl.com/4wa8gge), 131 Cal. App. 4th 1027 (2005). In Jiang, the defendant used his work computer to create electronic files that were communications to his attorney. The employer had a computer use policy that stated there was no reasonable expectation of privacy, but it did not preclude personal use. Ultimately, the court concluded that the defendant's communications were confidential under the attorney-client privilege and could not be used by the prosecution.
A recent California case reached the same conclusion as Beth Israel, based upon an employee policy similar to the one at issue in that case. In Holmes v. Petrovich Development Company, LLC (http://tinyurl.com/4j6cglm), the court found an employee had no expectation of privacy on an employer's system when the employee handbook expressly banned personal use. The policy expressly stated that e-mails were not private and that the company could "inspect all files or messages." The court found that because she used a work computer after agreeing to this policy, she had waived the attorney-client privilege, in contrast to if she had used her home computer where third-parties might have had access, but they were incidental to the communication.
Holmes presents a continuation of the prior cases on attorney-client privilege, and is consistent with In Re Asia Global Crossing, Beth Israel, and even Loving Care. These cases are consistent in that, when personal use is banned, employees are found to have waived the privilege, and when personal use is permitted, a privilege can be found at times by courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
