Labor and Employment Law Weekly Update - March 05, 2012

by Foley & Lardner LLP

[authors: Alan Seagrave, Andrew B. Serwin]

Business Visa Update: New Validity Dates for L-1 Visas
Written by: Alan Seagrave

The U.S. Department of State (DOS) recently issued a new regulation affecting employees who work in the United States on L-1 visas, also known as Multinational Intra-Company Transferee Visas. This visa category is available to foreign national employees of U.S. companies who have worked abroad for at least one year for a branch, parent, subsidiary, or affiliate of the U.S. company. L-1 employees must have worked abroad in either a management capacity or in a position requiring specialized knowledge of the company’s products and practices, and they must work in a similar capacity in the U.S. company.

Like most business visas, L-1 visa status must be approved by U.S. Citizenship and Immigration Services (USCIS) in the United States, but the actual visa that an employee uses to enter the United States to work after international travel is issued after a separate application is filed at a U.S. Consulate abroad according to regulations issued by DOS. Traditionally, the validity period of the consular visa stamp and the validity period of the USCIS status approval were the same. The new DOS regulation delinks these validity periods.

Under the new DOS rule, the validity of the L-1 visa stamp is now based on the validity dates that other countries provide to U.S. citizens when they issue similar visas. These validity dates are found in schedules that DOS provides to consulates based on the reciprocal treatment a visa applicant’s home country affords to U.S. citizens, known as reciprocity schedules.

DOS has explained that the new regulation is designed to assist L visa beneficiaries from countries with reciprocal visa validity dates that are longer than the normal three-year validity period approved by USCIS because these L-1 employees generally will not have to re-apply for L-1 visas with the same frequency as before. They will be able to travel internationally without the need to reapply for a visa for a longer time than the initial validity date of their USCIS-approved L-1 status, as long as they continue to follow all USCIS regulations regarding proper maintenance of status while in the United States.

Understanding Employee Privacy in Internal Investigations
Written by: Andrew B. Serwin

As privacy becomes a front-and-center issue, more and more employees raise privacy concerns in the context of investigations into employee misconduct, and a good example of a case presenting these issues is Warinner v. North American Sec. Solutions, Inc. In Warinner, an employee was investigated as part of an undercover drug investigation at an automobile assembly plant. As a result of the investigation, the employee brought an invasion of privacy claim based on an intrusion upon seclusion theory. The court first examined whether the employee had a reasonable expectation of privacy. In this case, since the conduct at issue was a purported drug transaction with undercover investigators that did not occur at the employees' homes, the court concluded that there was no reasonable expectation of privacy.

The case also addressed whether the reports that were generated regarding the activity were “consumer reports” under the Fair Credit Reporting Act. The court noted that specifically excluded from the definition of a consumer report is any report containing information solely as to transactions or experiences between the consumer and the person making the report. 15 U.S.C.A §1681(a)(d)(2)(A)(i). Reports regarding employees' drug use had been held not to be a consumer report based upon this exception. Salazar v. Golden State Warriors.

Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this week’s issue.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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