Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

That smarts! Porn “sting” operation gets employer “stung” for retaliation

Posted in Retaliation

This should have been an open-and-shut case. For the employer, that is, not the employee.

Lufkin Industries, Inc., had an employee, William Fisher, who was a 55-year-old African-American. One day, Mr. Fisher got into a verbal tiff with his 31-year-old white supervisor, and the supervisor called him “Boy.” Mr. Fisher was offended and complained to the company’s vice president of Human Resources. After an investigation, the company determined that the supervisor did not mean “Boy” in that way, and everybody lived happily ever after.

For about a month.

Then, a white co-worker of Mr. Fisher went to the boss of the supervisor who had called Mr. Fisher “Boy” and complained to the boss about the fact that Mr. Fisher had complained about the supervisor a month earlier. Do you follow me?

Groucho Marx.flickrCC.AKRockefeller

“Well, stop following me, or I’ll have you arrested.”

In the course of the discussion between the co-worker and the boss, it came to light that Mr. Fisher allegedly sold pornographic DVDs out of his lunch box. The boss suggested that the co-worker purchase DVDs from Mr. Fisher in a type of “sting” operation. The co-worker said he wasn’t comfortable doing this, but the boss allegedly told him, “You scratch my back, and I’ll scratch yours.”

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Weekly catch-up

Posted in ConstangyTV, Discrimination, Elections, ERISA, Labor Relations, Politics, Protected Concerted Activity, Safety

Yikes. I hope I haven’t missed anybody. Wild week!

We hope that the immigrant strikes are about over by now, but they may continue into today, and a women’s strike is reportedly set for March 8. Do Hot Dog Man.flickrCC.JeleneMorrisemployers have any recourse when their employees go out on strike? It depends. If the strike is “protected concerted activity” (and it may be), then employers will need to tread carefully and consult with their labor counsel. Mark Flora of our Austin Office has a great concise summary of the issues, and Leigh Tyson of our Atlanta Office (star of ConstangyTV’s Close-Up on Workplace Law) has a handy Q and A for employers that goes into more depth.

Appellate Spotlight is back with the first in a two-part series on discrimination cases. Kim Seten of our Kansas City Office discusses the “cat’s paw” decision from the U.S. Court of Appeals for the Second Circuit in Vasquez v. Empress Ambulance. (Beware: the facts of the case are NSFW!)

And the Winter 2017 edition of Preventive Medicine is out, featuring some ways that healthcare employers can take their own pulse on HR and employment law issues. By – who else? – the prolific Susan Bassford Wilson. We also have the latest charge-filing statistics from the Equal Employment Opportunity Commission, and links to other items of interest to healthcare employers.

If you’re a workplace safety buff, you may remember that in 2013, the Occupational Safety and Health Administration decided that employees in non-union workplaces could designate outside “representatives” to accompany OSHA inspectors on “walkarounds.” Well, earlier this month, a federal judge gave employers a partial victory, saying that OSHA had the right to make that rule but didn’t have the right to do it without following the notice-and-comment procedures in the Administrative Procedure Act. Although National Federation of Independent Business v. Dorothy Dougherty is scheduled to go to trial on the APA issue, the Trump Administration is likely to kill off the interpretation for good by returning to the previous interpretation, which was more protective of employer rights. Our OSHA Practice Group has the details in this OSHA Update.

Where do things stand on President Obama’s “fiduciary rule”? Week before last, President Trump signed an Executive Order, followed by a Presidential Memorandum directing the Secretary of Labor to review the Obama Administration fiduciary rule to determine whether it might adversely affect access to financial advice and to information regarding retirement. Dana Thrasher, chair of our Employee Benefits Practice Group, has an update while we wait for the Department of Labor to (in all likelihood) delay implementation of the rule.

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

Presenting the new nominee for Secretary of Labor: Alexander Acosta

Posted in Elections, Politics

President Trump’s new nominee for Secretary of Labor is R. Alexander Acosta, dean of the law school of Florida International University in Miami. Before he became a law school dean, Mr. Acosta’s experience included heading the Civil Rights Division of the U.S. Department of Justice under President George W. Bush. He was also a member of the National Labor Relations Board for about eight months in 2002-03, and clerked for Samuel Alito when Justice Alito was a judge on the U.S. Court of Appeals for the Third Circuit.

Here is President’s announcement, from earlier today:

The New York Times has a good summary of Mr. Acosta’s background. Let’s hope this confirmation goes more smoothly than the last one did.

BREAKING: Puzder expected to withdraw! (UPDATED: He did.)

Posted in Elections, Politics

Bloomberg BNA reports this afternoon that Andrew Puzder, President Trump’s nominee for Secretary of Labor, IS going to withdraw from consideration. Please stay tuned! UPDATE (4:12 p.m. EST): It’s now official.

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(PS – I nominate Victoria Lipnic to take his place.)

Is the new EEO-1 form here to stay? Maybe yes, and maybe no . . .

Posted in Affirmative Action, Equal Pay

As we have previously reported, the new EEO-1 Form is set to be used as of March 31, 2018, for the October-December “snapshot” period in 2017. The new form will require federal contractors and employers with 100 or more employees to provide summary compensation data to the Equal Employment Opportunity Commission in eachAngelique Lyons EEO-1 category, divided into 12 “pay bands,” and classified by race, sex, and ethnicity. This new requirement has not been well-received by the employer community for many reasons, including that the manner of reporting does not achieve the goal of identifying pay disparities due to discrimination.

Last week, the Acting Chair of the EEOC, Victoria Lipnic — who voted against the compensation reporting when she was a Commissioner — hinted that there may be some relief in sight. Ms. Lipnic noted that the new requirement is the type of federal agency action that President Trump has indicated he might put on hold and re-evaluate. Ms. Lipnic has said that she believes the new requirement should be re-evaluated, and that the EEOC cannot attempt to use “30-year-old solutions” to “modern-day” workplace problems.

Although this is good news and signals a positive change, it is important to note that the new requirement cannot simply be stopped by Ms. Lipnic. In order to change the new pay data collection plan, the entire Commission would need to vote, and a majority would have to favor revision or revocation. Currently, the Commission has four members, including Ms. Lipnic, and the other three are Democrats who voted in favor of the requirement just last year. President Trump will have the opportunity to appoint two new Commissioners, but these positions will require Senate confirmation and therefore will take time. So although things may change before March 31, 2018, for now, the new EEO-1 Form is still a “go.”

It is important to note that even though Ms. Lipnic has questioned the costs and benefits of the new compensation data collection plan, she has specifically indicated that equal pay remains a priority at the EEOC. For employers, including federal contractors, any new direction that may be taken by the Trump Administration does not lessen the obligation to continue to assess compensation to ensure pay equity for all employees.

Trumpdate: What do you think about Andrew Puzder and his “scandals”?

Posted in Discrimination, Elections, Immigration, Politics, Wage-Hour
Puzder.flickrCC.GageSkidmore 2

Andrew Puzder

The confirmation hearing for Andrew Puzder, President Trump’s nominee for Secretary of Labor, is supposed to take place tomorrow. While we wait to see what happens, I thought it might be fun to open a comment thread so we can opine about the issues that have been raised against him. Do you think they’re legitimate? Do you think he’s a good choice for Secretary of Labor, or a bad choice? Please weigh in. I’ll get things started:

No. 1: As most people know, Mr. Puzder is CEO of CKE Restaurants, Inc., which is the franchisor for Hardee’s and Carl’s Jr. fast food restaurants. Do you think the U.S. Secretary of Labor should come from an industry that he will be regulating?

ROBIN’S TWO CENTS: Generally, this doesn’t bother me. I don’t have a problem with someone with a business background serving as Secretary of Labor. I do think that he should recuse himself from any matters related to CKE companies, though. My understanding is that the plan that was approved by the Office of Government Ethics does not say he has to recuse himself from these matters, but Mr. Puzder has indicated that he might do so voluntarily. I think he should.

No. 2: Mr. Puzder’s ex-wife, Lisa Fierstein, went on Oprah in 1990, wearing a wig and sunglasses, and said that Mr. Puzder physically abused her during their marriage. Not long afterward, they reached an agreement that included child custody provisions, and Ms. Fierstein recanted her allegations. Since Mr. Puzder’s nomination, she has submitted a letter to Congress recanting (again) and saying that she regrets having appeared on Oprah’s show. However, many Democrats (and maybe a few Republicans) believe that these allegations of spousal abuse should disqualify Mr. Puzder. Do you agree?

ROBIN’S TWO CENTS: I don’t see how this can be used to disqualify Mr. Puzder. It’s possible that Ms. Fierstein made false allegations in an attempt to get a more favorable divorce settlement. It’s also possible that she told the truth in 1990, and that she backed down to get a better settlement, retain custody of her children, or both. We will probably never know what really happened, but because she has recanted twice now – including before Congress – essentially saying that she lied on Oprah, I think we have to give Mr. Puzder the benefit of the doubt.

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Trumpdate: Court refuses to stay TRO against travel ban, Puzder hearing scheduled

Posted in Elections, Immigration, Politics

Yesterday, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump Administration’s motion to stay the temporary restraining order issued by a federal judge in Seattle. This means that the TRO, which blocks the temporary travel ban from taking effect, will remain in place. The Administration may seek review by all of the judges on the Ninth Circuit or by the U.S. Supreme Court, or it may go back to the court in Seattle for a full hearing on the legality of President Trump’s Executive Order. This tweet last night from the President leads me to believe that option 3 is not likely:

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In other Trump-related news, the confirmation hearing for Andrew Puzder, President Trump’s nominee for Secretary of Labor, has finally been scheduled for next Thursday, February 16. The hearing had been delayed several times while Mr. Puzder’s paperwork was being submitted to the Office of Government Ethics, and then while the OGE reviewed the paperwork. The hearing should be a real donnybrook. Among other things, the mudslinging could include allegations of domestic violence (Mr. Puzder’s ex-wife has since recanted those allegations), his employment of an undocumented worker (he has admitted to this but said he was not aware of her status and took immediate action once he learned of it), and the numerous — possibly, politically motivated — lawsuits filed recently against franchisees of CKE Restaurants, Inc., of which Mr. Puzder is Chief Executive Officer.

5 ways to ensure your workplace Valentine doesn’t break your heart — or get you fired

Posted in HR

This time of year, I am a total bleeding heart.

Unlike most of my fellow employment law bloggers, I love Valentine’s Day, and I don’t have much of a problem with consensual workplace relationships between unmarried people. People spend most of their lives at work, and so I can see how they might (1) have limited relationship Valentine.BreakinHeart.flickrCC.JamesKimberlinoptions outside the workplace, and (2) easily develop an “affinity” with a co-worker through normal everyday contact at work.

A workplace relationship certainly does pose risks — from a legal standpoint and from a career standpoint. But while I’m in this lovey-dovey mood, I’ll give you five ways to have a workplace relationship without the heartbreak of a demotion or a lawsuit.

♥ Look before you leap. If you aren’t already head over heels, in which case it might be too late, think through the ramifications of the relationship before you get too far. Imagine the worst: You get dumped, and can’t even get over it because you have to see your lost love every day at work and maybe even interact with him or her. Or you are the dumper, and the dumpee starts stalking you after hours or bad-mouthing you around the office. Or everything is swell, but one of you has to transfer to another position because you’re in a direct reporting relationship. Will the relationship be worth taking a step back in your career if necessary? Do your best to determine whether you can really deal with what may come.

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New voluntary self-ID (disability) form is now available

Posted in Affirmative Action
Stephanie Underwood

On January 31, the Office of Federal Contract Compliance Programs announced that the voluntary self-identification form for individuals with disabilities has been renewed through 2020. The renewed form remains the same with the exception of the new expiration date of January 31, 2020. Federal contractors should begin to use the renewed form or update their electronic versions immediately.

Below are some important reminders regarding this self-identification process for federal contractors:

  • Contractors must invite applicants and new hires (after an offer, but before work begins) to self-identity as an individual with a disability.
  • Contractors must invite their current employees to self-identify as an individual with a disability every five years. Also, at least once during the years between these invitations, contractors must remind their employees that they may voluntarily update their disability status at any time.
  • There is no particular method that contractors must use to invite their employees to self-identify, so contractors can choose any methods that are reasonable given their circumstances as long the OFCCP’s self-identification form is used to collect the responses.
  • Contractors can create an electronically fillable version of the form provided that the e-form (1) displays the Office of Management and Budget number and expiration date; (2) contains the text of the form without alteration; (3) uses a sans-serif font; and (4) uses at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch). “Pitch” means the number of characters and spaces per inch.
  • Contractors are encouraged to provide additional information about reasonable accommodation at the time that they invite voluntary self-identification of disability. This may include the name and contact information for the individual responsible for processing requests for reasonable accommodation, as well as information about the contractor’s procedures regarding the reasonable accommodation process. However, it is important to remember that contractors cannot alter the content of the form itself. Accommodation information, if provided, would have to be provided with the form, not on it.

Daily* Trumpdate: Live stream the oral argument in Trump “travel ban TRO” appeal

Posted in Elections, Immigration, Politics

*EDITOR’S NOTE: This “daily” stuff has now officially become “more or less — maybe once a week, anyway.”

For background on the immigration issue, please see this bulletin and this follow-up, both by Will Krasnow and Jeanette Phelan of our Immigration Practice Group. The oral argument before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit will take place by telephone today starting at 3 p.m. Pacific Time and 6 p.m. Eastern Time. A half hour per side.

The panel consists of a Carter appointee, a G.W. Bush appointee, and an Obama appointee. Not that that necessarily means anything.

The Ninth Circuit offers live streaming of oral arguments. If you’d like to listen in real time, here is the link – should be interesting!