Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

3, 2, 1, blastoff! OFCCP Final Rule on sex discrimination is about to take effect

Posted in Affirmative Action, Discrimination, Gender Identity Discrimination, Harassment, Pregnancy
Sarah Phaff

Sarah Phaff

The OFCCP’s Final Rule on sex discrimination will take effect August 15. Are you ready?

On June 14, the Office of Federal Contract Compliance Programs issued its Final Rule on sex discrimination. These new substantive regulations align with the latest legal developments and interpretations by the Equal Employment Opportunity Commission. Cara Crotty, the head of our Affirmative Action/OFCCP Compliance Practice Group, has a great in-depth analysis of the changes, but here is a quick summary:

  • What is the purpose? The OFCCP wanted to update its guidelines and provide specific regulations to ensure that federal contractors do not discriminate against applicants or employees because of their sex.
  • What is the gist of the regulations? In the words of the OFCCP, the Final Rule provides “more accurate and relevant guidance to contractors than the [prior] guidelines,” which the OFCCP describes as “outdated,” and keeps pace with recent changes and legal interpretations regarding sex discrimination.
  • What are the protections provided? The Final Rule prohibits discrimination based on pregnancy, childbirth, and related medical conditions, and requires contractors to make workplace accommodations based on these conditions. It addresses equal pay and prohibits sex discrimination in pay and fringe benefits. The rule also prohibits sexual harassment, and disparate treatment based on stereotypical assumptions regarding caregiver responsibilities.
  • Does the Final Rule address LGBT status? Yes, to some degree. The rule prohibits discrimination based on sex stereotypes and gender identity. Consistent with guidance issued by the EEOC and the Occupational Safety and Health Administration, the OFCCP requires contractors to allow employees to use restrooms, changing rooms, showers, and similar facilities consistent with the gender with which the employees identify.

The OFCCP’s fact sheet regarding the Final Rule is available here.

Keep your eyes peeled for more OFCCP updates!

Hallelujah! 5 things about religion in the workplace that you may not have known

Posted in Discrimination, Harassment
Preacher 2.flickrCC.daliscar1

“Spread the good news!”

Our friends at the Equal Employment Opportunity Commission have issued a Fact Sheet for young workers on religious discrimination in the workplace, which brought me back to the EEOC’s older Q&A and Best Practices on religious discrimination, harassment, and accommodation.

The EEOC’s guidance is solid, reasonable, and consistent with most (if not all) of the court decisions that I’m aware of.

If you’re an employer, I recommend that you read both documents all the way through. But here are five things from the Q&A that you might not have known about Title VII and religion in the workplace:

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Password sharing and “head-slap hacks”: What employers can do

Posted in Data Privacy, eLaw

If you have ever wondered why your company’s data is not as secure as it should be, take a look in the mirror.

St. Louis Cardinals.MattHolliday.MattCarpenter.flickrCC.KeithAllison

“Matt, did you have any idea how easy it was to hack?” “No, Matt, I didn’t, but I do now that I’ve read this fantastic blog post!”

A study by the Ponemon Institute, commissioned by Experian and released in May, found that the majority of data breaches were not due to bad IT but due to bad employees who prey on unwitting or careless employees.

And it doesn’t take a computer science degree to be able to do some major damage.

The latest “regular-guy” hacker to be sent to prison is Chris Correa, formerly of the St. Louis Cardinals ball club, for hacking into the Houston Astros’ system. Last week, my colleagues Billy Hammel and Susan Bassford Wilson wrote about David Nosal, another regular-guy hacker.

The Astros and Nosal hacks were so low-tech that even I could pull them off. If I were that kind of person. Which I’m not. But anyway.

Astros Hack: “Ruh-roh, Reorge”

In Mr. Correa’s case, two employees left the Cardinals organization to go to work for the Houston Astros. Before they left, Mr. Correa told them to turn in their Cardinals-issued laptops and give him their passwords. Very routine stuff with departing employees.

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Weekly catch-up

Posted in FOCUS, Labor Relations

Labor relations go back to the future. Mel Haas and John Weltin of our Macon Office have the rundown on the Hot Dog Man.flickrCC.JeleneMorrisrecent decision by the National Labor Relations Board in Miller & Anderson, Inc. In that case, the Board found that an appropriate bargaining unit can include a mix of contingent workers who are jointly employed by a staffing agency and the primary employer, and the primary employer’s regular employees. The Board is rejecting the rule that has been in place since 2004 and going back to the rule from M.B. Sturges that applied before then.

Pretty in pink, or is your blouse shirt too blue? This week on FOCUS, our women’s leadership blog, Mallory Schneider Ricci of the Nashville Office has a meditation on the expectations for women lawyers. Whether or not you think women ought to be required to wear pantyhose to court, we have no doubt that you’ll find it funny and a great read.

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

NC “bathroom bill” – the latest developments

Posted in Employment at Will, Gender Identity Discrimination

It’s been a while since I’ve written about H.B. 2, the North Carolina “bathroom bill,” and I need to get with it.

Wrongful discharge claim based on discrimination is back. As we expected, on July 18, Gov. Pat McCrory signed into law H.B. 169, which amends H.B. 2 by restoring the cause of action for wrongful discharge in violation of public policy based on the North Carolina Equal Employment Practices Act. But the statute of limitations has been shortened from three years to one, running from the date of discharge.

Preliminary injunction hearing on H.B. 2 is set for August 1. The plaintiffs in one of the many lawsuits challenging H.B. 2 have moved for a preliminary injunction that would temporarily block H.B. 2 from being effective. The motion is scheduled to be heard in federal court in Greensboro on August 1. The assigned judge is Thomas Schroeder, who is very well respected. Bless his heart.

No basketball for N.C.! And, I just saw this evening that the NBA All-Star game will not take place in Charlotte, because of H.B. 2. Boo!

Ailes is out

Posted in Harassment

With only $60 million to call his own?

For my prior coverage of the Gretchen Carlson-Roger Ailes sexual harassment allegations, go here and here. Here is the Fox press release.

Reportedly Megyn Kelly and other Fox News women told an outside law firm that was investigating Ms. Carlson’s allegations that Mr. Ailes had behaved inappropriately with them, too.

I will have a wrap-up post soon.


Is the OFCCP’s take on the internet applicant rule outdated?

Posted in Affirmative Action

A recent Q & A from the “Workologist” column in the New York Times caught my eye.


Cara Crotty

The correspondent was asking how to ensure that a résumé submitted online actually gets reviewed by the hiring company.  That is a legitimate concern – after all, organizations are inundated with job seekers when positions are posted, and recruiters can’t always physically review every application.

It was Rob Walker’s response that piqued my interest:

Lots of employers now rely on computerized systems that scan résumés for particular terms as an initial step in (drastically) narrowing down which candidates they will consider.  “Résumé optimization” is jargon for what has become a routine practice among many job seekers:  creating – or “optimizing” – a résumé with this powerful, nonhuman audience in mind.

From a practical point of view, of course employers should be using whatever technology is available to ensure that the best candidates go to the top of the stack.  Why wouldn’t a rational employer implement such time-saving and “optimizing” resources?

But if the employer is a federal contractor, this kind of technology could land it in hot water during a compliance review by the Office of Federal Contract Compliance Programs.

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Gretchen Carlson v. Roger Ailes — can he sue her?

Posted in Alternative Dispute Resolution, Defamation, Harassment

Me and my nerdy mind.

Gretchen Carlson.flickrCC.Disney-ABCNews


It’s too soon for me to have an opinion about who’s right and who’s wrong in the Gretchen Carlson-Roger Ailes sexual harassment case. Some very disturbing allegations have been made about Mr. Ailes’ (long before Fox) having a “casting couch” for prospective female talent. If that’s true, then it’s disgusting.

On the other hand, a number of current and former Fox News women have come to his defense, including Greta Van Susteren, Maria Bartiromo, Kimberly Guilfoyle, Judge Jeanine Pirro, and Elisabeth Hasselbeck. Also some Fox men, including Neil Cavuto.

So, for now, I’m reserving judgment on whether Ms. Carlson was, in fact, sexually harassed by Mr. Ailes. Fox News has retained an outside law firm to conduct an investigation, as it should.

But while we wait, this is the question that is gnawing at my nerdy mind: Can Roger Ailes sue Gretchen Carlson?

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Weekly catch-up

Posted in eLaw, FOCUS, Misconduct, Non-Competes, Safety

Is a former employee stealing your data so that he can start competing with you? Can he get around his obligations by borrowing a password, or by having his partnersHot Dog Man.flickrCC.JeleneMorris in crime do it? You may have a friend in the federal Computer Fraud and Abuse Act. Billy Hammel of our Dallas Office and Susan Bassford Wilson of our St. Louis Office have a good breakdown of the recent decision in United States v. Nosal.

Our Workplace Safety Practice Group has good news and bad news from the OSHA front. The good news is that the Agency has decided to delay enforcement of the non-retaliation provisions of the “Reasonable Reporting Procedure” Rule, which was set to take effect on August 1. The bad news is that penalties for OSHA violations are getting ready to increase by 78 percent. (Seriously.)

This week on FOCUS, our women’s leadership blog. I do not deserve this. (Is that a humblebrag?) Anyway, thanks, Heather!

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

EEOC amends its “pay survey” proposal a teensy bit. I still don’t like it.

Posted in Discrimination, Equal Pay

On February 1, the Equal Employment Opportunity Commission issued a proposal that would require employers with 100 or more employees to begin submitting compensation data with their annual EEO-1 reports.


“I still don’t like it.”

I wasn’t crazy about the idea.

After receiving comments on its February proposal, the EEOC issued today a new proposal, which has tweaks to the February proposal but no major changes. Comments on the new proposal (which I’ll call the “July proposal”) will be accepted through August 15. Instructions for submitting comments online, by email, by fax, or by “snail mail” are included on the first page of the proposed rule.

Here’s the quick and dirty:

*Timetable. For 2016, employers would submit their EEO-1 information just like in years past. But in 2017, the timetable would change. The “snapshot” period for which the employer has to provide information for a selected pay period would change to October 1-December 31. And the actual EEO-1 reporting for 2017 — including the newly to-be-required compensation data — would have to be provided by March 31, 2018. The new time periods were proposed to ease the burden for employers by allowing the compensation reporting to coincide with tax reporting deadlines. (The EEOC proposes requiring employers to use “W2” income  information, so having the EEO-1 deadline mesh with IRS deadlines makes sense.)

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