Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Recent OFCCP settlements remind contractors about importance of recordkeeping

Posted in Affirmative Action

Within the past month, the Office of Federal Contract Compliance Programs has announced two settlements and filed one administrative complaint involving alleged discrimination in the hiring process.

  • Southern Glazer’s Wine and Spirits of Louisiana, LLC, has agreed to pay $175,000 to settle allegations that it discriminated against black applicants for warehouse positions.
  • Hormel Foods Corp. will pay $550,000 to resolve the OFCCP’s claim that it discriminated against female applicants for entry-level production jobs at its hog processing facility in Fremont, Nebraska.
  • The OFCCP filed an administrative complaint against JBS USA Lux S.A. and Swift Beef Co. for allegedly discriminating against all non-Asian applicants for general production jobs.
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Cara Crotty

These contractors deny the OFCCP’s allegations, and in a statement to Bloomberg BNA, JBS responded with harsh criticism:  “This lawsuit from the OFCCP continues a troubling pattern of legal actions that attempt to cast employers in some of our country’s most economically-challenged rural communities as villains via statistically analysis.”

Regardless of whether the OFCCP’s allegations have merit, no company wants to be identified in one of the agency’s press releases as a potential discriminator.  Typically, these matters with the OFCCP arise not from intentional discrimination, but from a failure to maintain sufficient records relating to the hiring and selection process.

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Nitpicking the EEOC’s proposed guidance on harassment

Posted in Discrimination, Gender Identity Discrimination, Harassment, Sexual Orientation

This week, the Equal Employment Opportunity Commission issued a proposed Enforcement Guidance on workplace harassment. It’s 75 pages long, so a little too much to cover in a single blog post. The EEOC is seeking comments from the public until February 9, so I will3231-EEOC_SEAL_2 start with the comment-worthy provisions. Next week, I’ll post about the proposed Guidance more generally. Overall, the EEOC has done a decent job, but here are my five “nits,” some of which are significant.

No. 1. Using the wrong name or pronoun in addressing or talking about a transgender individual is a form of sexual harassment. I get that people may do this to irk, annoy, and – yes – harass a transgender individual. But I also suspect that there are people who might have a hard time adjusting to the transition of a co-worker whom they’d known and worked with Continue Reading

Weekly catch-up

Posted in FOCUS

Hot Dog Man.flickrCC.JeleneMorrisThe latest installment of Mallory Schneider Ricci’s saga, Diary of a Pregnant Lawyer: Second Blogmester, is up at FOCUS, our women’s leadership blog. Is the second trimester really the easiest part of a pregnancy? Well, yeah, probably, but that doesn’t mean it’s easy. We are happy to announce that Mallory had her baby on December 22, and little Margot Eleanor is beautiful! And a future FOCUS blogger, I’ll bet. The last installment of Mallory’s series, written before Margot was born, will be posted later this month.

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

OFCCP sues Google for comp, employee data

Posted in Affirmative Action
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Kristine Sims

Every year, typically in the fall, federal contractors across the nation receive scheduling letters from the Office of Federal Contract Compliance Programs informing them that they have been selected for compliance reviews. The letters request a wide range of information establishing the contractors’ compliance with Executive Order 11246, the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act.

Google’s headquarters received just such a letter on September 30, 2015. Google says that since that time it has provided the OFCCP with “hundreds of thousands of records” showing its compliance with EEO requirements and its affirmative action program. The OFCCP, however, requested more information, including detailed compensation information and names and contact information of Google employees. Google provided job titles and salary histories for the employees as of September 1, 2015, but it refused to provide names and contact information of its employees, or any data for September 1, 2014.

On December 29, 2016, the OFCCP sued Google to get the rest of the information it had requested.

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We have an office . . . in San Francisco . . .

Posted in Constangy News

(You know the tune.) We are delighted to announce our latest expansion into beautiful San Francisco!

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You guys need any help?

The head of our new office is Julius Turman, an experienced employment litigator practicing in all areas of employment law. Julius has a varied background – he was an Assistant U.S. Attorney, litigation and crisis counsel, a police commissioner, and a partner in a large general practice firm, before joining us.

Julius will be working with Phillip Smith, also an employment litigator with a breadth of experience in EEO, wage and hour, and unfair competition issues, as well as tort claims and contract disputes.

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“Clear the way! Constangy is coming!”

Julius and Phillip, welcome to the firm!

Image credits: From flickr, Creative Commons license. Golden Gate bridge by Nicolas Raymond, cable cars by Mike Beales.

Kentucky goes right-to-work

Posted in Labor Relations

Kentucky became the 27th right-to-work state on Saturday. The legislation was passed by the Republican majority in the legislature, with no Democratic support. Republican Gov. Matt Bevin signed the bill on Saturday, and he’s even made a video:

(What’ll they think of next?)

“Right to work” means that an individual cannot be required to join a union or pay union dues as a condition of employment.

The legislature also voted to repeal the state’s prevailing wage law, which required wages for construction workers on public projects to be based on a community survey. The surveys normally resulted in union-scale wages. Gov. Bevin is expected to sign the repeal legislation imminently.

Fact Check: Does Labor nominee Puzder really want to put people out of work?

Posted in Elections, Politics
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Andrew Puzder (center)

The Senate confirmation hearing for Andrew Puzder, President-Elect Trump’s nominee for Secretary of Labor, will reportedly take place this Wednesday, January 12. (UPDATE (1/10/17): According to Politico, Mr. Puzder’s confirmation hearing will now take place on Tuesday, January 17.) Mr. Puzder’s nomination is vigorously opposed by employee advocates, unions, and Democrats. (He is still expected to be confirmed by the Republican majority.)

Sen. Patty Murray (D-Wash.) was recently quoted in Bloomberg BNA as calling Mr. Puzder “uniquely unqualified” and says, “workers deserve a secretary of labor whose priority is higher wages and good jobs for workers — not profits for big corporations that come at workers’ expense.”

AFL-CIO President Richard Trumka said Mr. Puzder’s “values are completely out of step with America’s workers” and called him “a man whose business record is defined by fighting against working people.”

It’s beyond dispute that Mr. Puzder, Chief Executive Officer of CKE Restaurants, Inc. (Hardee’s and Carl’s Jr.), opposes raising the salary level for overtime “exempt” status and Continue Reading

Weekly catch-up

Posted in Only in California

Hot Dog Man.flickrCC.JeleneMorrisI hope you saw this before the holidays. Richard Bromley and Kacy Coble have a very helpful summary of the most significant new employment laws that took effect or will be taking effect in 2017 in California.

If you have operations in the Golden State or are thinking about moving there, you will not want to miss it.

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

Court won’t block EEOC’s wellness rules — for now.

Posted in Americans with Disabilities Act, Benefits, Genetic Information Non-Discrimination Act, GINA

A federal judge in the District of Columbia has denied the AARP’s request for a preliminary injunction against the wellness rules issued by the Equal Employment OpportunityThumbs Down.flickrCC.CharlesLeBlanc Commission last May. As a result, the EEOC rules — which establish when participation in an employer-sponsored wellness program is “voluntary” within the meaning of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act — become applicable to health plans with anniversary dates that occur on or after January 1, 2017.

I have covered the wellness rules here, and the AARP lawsuit here.

Judge John D. Bates found that the AARP had standing to sue on behalf of its members but failed to meet its burden of establishing any of the other grounds for a preliminary injunction: (1) irreparable injury to its members, (2) likelihood of success on the merits, (3) that the “balance of equities” weighed in favor of the AARP, or (4) that a preliminary injunction would serve the public interest.

The most important part of the court’s decision is the finding that the AARP had not shown that it was likely to succeed on the merits of its challenge to the EEOC rules. Judge Bates noted that the AARP was not objecting to all wellness incentives but arguing only that the Continue Reading