Wall Street Journal (01/07/12) Jordan, Miriam

The Obama administration on Jan. 7 announced it will make it easier for illegal immigrants who are related to a U.S. citizen to seek legal U.S. residency, a rule change that could affect thousands of illegal immigrants who might qualify for a green card but have not applied because they feared either not being allowed back into the U.S. or a lengthy separation from family. Currently, an illegal immigrant must apply for and receive a legal visa from his or her country of origin to rejoin a spouse or child in the U.S., a process that can take years. The rule modification will enable the immigrant to remain in the U.S. for much of the process.

WTHR-TV (Indianapolis) (01/09/12)

Fourteen employees of Hospitality Staffing Solutions are filing a lawsuit against the company in Indianapolis, alleging that Hospitality underpays its employees. The suit claims that housekeepers, food service employees, and others in hospitality were not getting paid for the 40 hours they worked, or told they would not be paid overtime even if they worked more than 40 hours. Ten major hotels are expected to be named in the lawsuit, which also alleges that Hospitality interfered with workers’ abilities to find work elsewhere.

Hospitality chief executive Rick Holliday says news of the suit is the first he has heard of any problems employees had with pay, noting the company has a system in place for complaints. He also says the timing of the action is suspect, with the Super Bowl being held in Indianapolis on Feb. 5.

Roll Call (01/09/12) Shiner, Meredith

Republicans are reported to be loath to repeat the fight over an extension of the payroll tax cut in the opening weeks of 2012. The conference committee formed at the behest of House Republicans to deal with a long-term extension of the payroll tax holiday has already begun its work, and members of each faction are working to reach a deal before March. Democrats clearly believe they have the upper hand, emboldened by a serious messaging win on the short-term payroll extension that divided Republicans in December.

Seyfarth Shaw (01/05/12) Ortman, Tripper; McFadden, Robb

The California Court of Appeal recently held in Arnold v. Mutual of Omaha Insurance Company that insurance agents and other types of salespeople with the discretion to determine when, how, and whether to sell a company’s products may properly be classified as independent contractors. A lower court had previously applied the common law test for independent contractor/employee status set forth in S. G. Borello & Sons, Inc. v. Dept. of Industrial Rel. and found that Arnold was properly classified as an “independent contractor,” and granted Mutual’s motion for summary judgment. Arnold appealed.

The Court of Appeal rejected Arnold’s argument that Division Three of the Labor Code provides a statutory definition of the term “employee.” Instead, the court agreed with the trial court and held that the common law Borello test should be used to determine whether Arnold was an employee or an independent contractor. Because the court determined that the common law Borello control test was the appropriate test to analyze employment status in California—and many jurisdictions around the country employ similar control tests—this decision should have far-reaching implications for the insurance and other industries that employ independent contractor salespeople outside California. Post-Arnold, companies that utilize independent contractors to sell their products in such states may apply the analysis in Arnold as a benchmark to assess and review these relationships in order to determine whether changes should be made.

Social Media Law Update (12/29/11) Sherman, Michelle

Michelle Sherman of Sheppard Mullin Richter & Hampton LLP cites a federal case in the Northern District of California where a mobile news and reviews resource company, PhoneDog, is suing a former employee Noah Kravitz over who owns a Twitter account that was started in association with PhoneDog, and is now being used by Kravitz as his own Twitter account. A key issue drawing attention to the case is who owns a social media account—the employee who posts on it, or the employer on whose behalf the employee was posting. The other issue is what value, if any, can be placed on Twitter followers when social media attracts people who are portable and not “owned” by the social media account.

Sherman says that while PhoneDog “does not enter court with the best of facts in order to decide these larger issues of interest to employers and the social media community … the shortcomings in PhoneDog’s case are instructive in terms of steps employers should take to better demonstrate ownership over their social media sites.” She concludes that in general, companies should to the greatest extent possible register social media accounts in their own names or through a senior marketing person and/or social media manager if the account needs to be in the name of a person. The case also highlights the importance of having an agreement with employees concerning their access and use of social media accounts on behalf of the company, according to Sherman, and ensuring that the agreement clearly spells out the relationship and the parameters for it because some courts will literally interpret agreements with employees.