Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

DOL announces 2017 minimum wages for federal contractors

Posted in Affirmative Action, Wage-Hour

Heidi WilburThe U.S. Department of Labor announced last week that covered federal contractors and subcontractors will be required to pay workers an hourly minimum wage of $10.20 an hour beginning January 1, 2017.  The minimum cash wage for tipped workers will increase to $6.80 an hour.

The annual increases are required by an Executive Order issued in February 2014, which mandates that the DOL raise the hourly minimum wage paid by certain federal contractors every calendar year based on inflation. The Executive Order also specifies that the minimum cash wage for tipped workers must increase by 95 cents a year until it reaches 70 percent of the minimum wage paid to other hourly workers under the Executive Order.

The current minimum wage for federal contractors is $10.15 an hour, and the current minimum cash wage for tipped workers is $5.85 an hour.

Hillary, or The Donald: A voting guide for employers

Posted in Benefits, Class actions, Discrimination, Equal Pay, Family and Medical Leave Act, Independent Contractor, Labor Relations, Lactation, Pregnancy, Sexual Orientation, Wage-Hour
Blind Justice.flickrCC.ValerieEverett

Pretend this is me.

As our regular readers know, Employment & Labor Insider is a non-partisan blog. But with the first Presidential debate coming on Monday night, I thought it would be helpful to look at the two major presidential candidates and their positions on issues of interest to employers.

The following comes from each of the candidates’ websites, supplemented by some news stories, with a dash of speculation and extrapolation from me. I do have one editorial comment, but it’s based on the law, not the relative merits of the candidates.

I am covering the candidates in alphabetical order.

(Have I told you lately that we are non-partisan? Just wanted to make sure I got that point across.)

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There’s a new Sheriff in town: The politics and pitfalls of patronage dismissals (Part 2 of 2)

Posted in First Amendment, Public Sector Employment

NOTE FROM ROBIN: This is the second and final installment in a series on the law regarding patronage dismissals in public sector employment by Damon Kitchen, head of our public sector industry group.

Damon Kitchen

Damon Kitchen

In last week’s installment, I provided an introduction to the issue of patronage dismissals in the public sector, and a discussion of the Supreme Court’s Elrod (1976) and Branti (1980) decisions. In this installment, I’ll talk about how the “Elrod-Branti standard” has been applied by the courts, particularly in the Eleventh Circuit, where I practice.

Since the Elrod and Branti decisions were rendered, many of the United States Courts of Appeals, using the Elrod-Branti standard as a starting point, have developed their own rules and tests for deciding political patronage-based cases. These tests and rules often vary depending upon the federal circuit where one is practicing.

Over the past 30 years, the Eleventh Circuit has developed what it refers to as a “categorical approach” for analyzing First Amendment political patronage cases. If the public employee, under the applicable state or local law, is empowered to act as an “alter ego” of the employer, then that public employee is categorically subject to dismissal based solely on his or her political affiliation or loyalty.

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Contractor settles with OFCCP for more than $250K

Posted in Affirmative Action, Discrimination, Equal Pay, Settlements

Louise Davies

Louise Davies is an Affirmative Action Paralegal in Constangy’s Winston-Salem, North Carolina, office. For more than 15 years, she has helped employers develop affirmative action plans and respond to audits and on-site investigations by the Office of Federal Contract Compliance Programs. She also conducts diversity training for employers. Louise is a graduate of Wesleyan College in Macon, Georgia.

As a result of a compliance review that began in 2013, the Office of Federal Contract Compliance Programs alleged that a federal contractor in the District of Columbia discriminated against African-American applicants who applied for project manager positions. In a recent Conciliation Agreement with the OFCCP, Colonial Parking, Inc., has agreed to distribute $180,194.61 in back pay and interest to 20 rejected African-American applicants, and to offer three project manager positions to rejected African-American applicants. The company must also provide training on recruiting and hiring for all individuals involved in the selection process.

The OFCCP also alleged that African-American valet attendants were paid less than Hispanic workers in the same position. Therefore, as part of the Conciliation Agreement, Colonial Parking will also pay $67,768.21 in back pay and interest to 54 current valet attendants who are African-American. The company has also agreed to adjust the compensation of each class member to ensure they are being paid at an equitable rate.  According to Bloomberg BNA, this is the first OFCCP settlement announced in 2016 that includes allegations of compensation discrimination.

The Conciliation Agreement states that Colonial Parking does not admit to any violations of Executive Order 11246.

Settlements like these serve to remind federal contractors of all of their affirmative action requirements, especially recordkeeping, training, and monitoring of selection procedures and compensation practices.

BREAKING: 21 states sue USDOL about FLSA overtime rule

Posted in Wage-Hour

Thanks to Law360 for alerting us to this!

Straight from the courthouse to you — I haven’t even read this yet, but here is a copy of the lawsuit, which was filed today in federal court in the Eastern District of Texas.

UPDATE (4:41 p.m. EDT): Here’s another one, filed in the same court – this one is some trade groups and a slew of Chambers of Commerce in Texas!


Final rule on FMCSA drug and alcohol clearinghouse will be out before end of October

Posted in Drug Testing, Transportation Industry

A national database of truck drivers who have failed drug or alcohol tests, or refused to take them, will soon be a reality.


Tommy Eden

That’s according to Juan Moya, Program Manager for the Drug and Alcohol Program of the Federal Motor Carrier Safety Administration, who spoke this week at a conference of the Substance Abuse Program Administrators Association. Mr. Moya said that the final rule establishing a Drug and Alcohol Clearinghouse would be released before the end of October.

The proposed rule, originally published in February 2014, would require motor carriers and other medical personnel to “report verified positive, adulterated and substituted drug test results, positive alcohol test results, test refusals, negative return-to-duty test results and information on follow-up testing.” A final rule was sent to the Office of Management and Budget in May 2016. That is the last regulatory hurdle before issuance of the rule. The DOT also recently updated its definition of “service agent” under 49 CFR Part 40.3 in preparation for the final release.

Here’s what the FMCSA said about the proposed clearinghouse rule in 2014:

Current federal regulations require employers to conduct mandatory pre-employment screening of a CDL driver’s qualifications based upon his or her driving record. However, there has not been a single federal repository recording positive drug and alcohol tests by CDL holders that employers would be able to search to ensure that the driver is able to perform safety-sensitive duties.

The proposed rule announced today would create such a repository and require employers to conduct pre-employment searches for all new CDL drivers and annual searches on current drivers.

After the final rule is issued, motor carriers will need to update their FMCSA policies and forms toolkits, adopt various internal reporting and confidentiality protocols, conduct training, and update their Service Agent contracts. The rule is expected to be the most significant regulatory change since 2001, when the Part 40 Regulations were adopted.

There’s a new Sheriff in town: The politics and pitfalls of patronage dismissals (Part 1 of 2)

Posted in First Amendment, Public Sector Employment

NOTE FROM ROBIN: This is the first in a two-part series on the law regarding patronage dismissals in public sector employment by Damon Kitchen, head of our public sector industry group. Damon, welcome to the blog! 

Damon Kitchen

Damon Kitchen

It’s election season, and each year, like the dead leaves that fall from the trees, many loyal and long-term employees of vanquished incumbents face the prospect of getting cashiered once the newly elected officials, or their appointees, take office.

We do not suggest public officials lack the right to restructure, implement new ideas, or hire new employees, but we do remind public sector employers that many of their employees have constitutional rights that their private sector counterparts do not enjoy.

Additionally, elected officials, or persons appointed by an elected official, should cautiously exercise discretion and judgment when making employment decisions that adversely affect employees who are part of the predecessor’s regime, as employment decisions motivated by political patronage can be extremely risky. The First Amendment to the U.S. Constitution provides public employees with the right to freely associate (to believe, think, join, and belong). And although that right is not unlimited, there are numerous public officials at state and local levels who have lost First Amendment lawsuits because they made employment decisions based on the actual, or perceived, political views or loyalties of their employees.

“To the victor belong the spoils”

The question of when, and under what circumstances, a public official can take adverse employment action against a subordinate employee because of the employee’s partisan political views has significantly changed over time. For the first 200 years of our nation’s history, the subject of political patronage-based employment decisions drew little attention from the courts.

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Will “ban the box” backfire?

Posted in Affirmative Action, Background Checks, Discrimination

Cara Crotty

Ever since the Equal Employment Opportunity Commission updated its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions in 2012, many state and local jurisdictions have adopted laws limiting employers’ ability to inquire about applicants’ criminal histories. And many employers not covered by those laws are voluntarily adopting policies against considering criminal information until after an offer of employment has been made. See this article in the Wall Street Journal explaining why Koch Industries did just that.

The purported rationale for the “ban the box” movement is that employers are less likely to reject candidates if they do not learn about their criminal history until later in the selection process. I have always been skeptical of this theory.

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Employer dos and don’ts for 2016 elections (NLRB-friendly version)

Posted in Harassment, Labor Relations, Protected Concerted Activity, Social media

Labor Day marked the beginning of the “serious” election season. In 2012, I posted on dos and don’ts for employers, but many of my old recommendations aren’t going to work in today’s labor law climate. Here’s an updated guide to help employers and their employees survive to November 8, and beyond, which I think will comply with the latest positions of the National Labor Relations Board . . .

Before we start, a word about the Board. Section 7 of the National Labor Relations Act prohibits employer “interference” with the rights of non-supervisory employees to discuss terms and conditions of employment, or generally to engage in, or refrain from engaging in, union organizing activity. Section 7 applies to non-union as well as union workplaces. That’s my paraphrase; here’s the official NLRB position. For specific practical implications of the NLRB position, you can’t do better than this recent summary from my colleague and labor law guru David Phippen.

As David notes, the current NLRB takes the position that just about any limit on workplace discussion that could have a “chilling effect” on employees’ Section 7 rights normally violates the law. That’s why I had to amend the more employer-friendly guidance I gave in 2012.

Donald Trump caricature.flickrCC.DonkeyHotey

“Things are just a little bit different in 2016 . . .”

DO be careful about the way you talk to employees about talking politics at work. The NLRB may not let you prohibit political discussions, or even arguments, among non-supervisory employees. At least, not if the subject matter arguably pertains to terms and conditions of Continue Reading