Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Honor our veterans by recruiting and hiring more of them

Posted in Affirmative Action

Memorial Day is upon us. While the idea of a three-day weekend, cookout, and pool party can be distracting, I encourage everyone to stop and remember those who have lost their lives in theAlyssa Peters service of our country. It’s also a perfect time for us to refresh ourselves on the legal obligations of federal contractors to employ veterans. “We honor the dead best by treating the living well.”

As a quick refresher, the Vietnam Era Veterans’ Readjustment Assistance Act prohibits discrimination on the basis of protected veteran status and requires affirmative measures to employ protected veterans. These requirements apply to any contractor with a federal contract worth $150,000 or more. Contractors that meet the monetary threshold and have at least 50 employees must also develop written affirmative action plans for each establishment. That includes allowing applicants and employees to self-identify as protected veterans, tracking employment activity, and documenting outreach and recruitment activities. All covered contractors are required to develop an annual hiring “benchmark,” a number that reflects the representation of veterans in the civilian labor force. Contractors are allowed to use the national benchmark. As Stephanie Underwood reported in April, the national hiring benchmark was recently reduced from 6.9 percent to 6.7 percent.

To offer another carrot in attempting to increase employment and retention of our veterans, the Department of Labor has recently issued a press release about its new HIRE Vets Medallion Program. This program is designed to recognize employers “who make hiring veterans a priority.” The awards will be presented around Veterans Day (November) to small, medium, and large employers.

So after you return to work from your long weekend, think about ways to increase your veteran workforce. Some ideas include listing job openings with a local veteran advocacy group, contacting a local veteran affairs office, having or participating in a job fair, contacting the transitional office at your nearest military base, chatting with your local colleges to see whether they have veteran representatives on campus, or asking veterans you know for ideas on how to post job opportunities.

Who knows? These Memorial Day brainstorming ideas may help you reach your company’s VEVRAA benchmark or put you on the short list for one of the new DOL awards!

Treat your employees right!

Posted in ConstangyTV, Corporate Culture, HR, Labor Relations

The May edition of ConstangyTV’s Close-Up on Workplace Law has just been released. Host Leigh Tyson — who is now co-chair of our Labor Relations Practice Group in addition to being a YouTube star —  interviews Mel Haas, veteran labor lawyer and head of our Macon Office, about what employers can do to create a satisfied workforce. You will not want to miss this.

Killjoys reject one-hour “sex break” proposal

Posted in Family and Medical Leave Act

What a bunch of cold fish.

Screen Shot 2017-05-22 at 12.00.46 PM

“What else do you expect us to do way up here?”

The town council of Overtornea, Sweden, recently rejected a proposal to give workers one-hour paid sex breaks. According to The New York Times, the council member who made the proposal believed it would help raise the town’s low birthrate. But the town council decided “that if sexual intercourse should be subsidized, then so should many other personal activities, such as gardening or cleaning.”

Moreover, critics said, “it could have stigmatized some employees: those who were single, for example, or who did not feel like having sex.”

Indeed, one sexologist expressed doubt that a single hour was enough — according to Malena Ivarsson, “one hour for sex might not be enough time for women to ‘switch gears and get in the mood.'”

I was thinking the same thing. Plus, commuting time. Should be three hours, minimum.

I wish I could say “you read it here first,” but the NYT has obviously beaten me to it. You read it here second.

Thanks ever so much to my law partner Carl Cannon, who will probably never speak to me again, for this breaking news alert!

Image Credit: Screen shot of Google maps.

9 traits of a bang-up workplace investigation

Posted in HR
FBI Logo.flickrCC.By-Your-Command

For illustrative purposes only. This post is not political – I promise!

What makes a workplace investigation so good that you just can’t wait to show the EEOC investigator what you did? And you’re like, “Plaintiff’s lawyer, take us to court — please!”

All right, maybe nothing would make it that good, but here are nine things employers can do to ensure that they at least won’t be ashamed of their workplace investigations:

No. 1: The investigator is unbiased and ideally doesn’t have extensive, intimate knowledge about all of the personalities involved. An investigator who knows too much may have a hard time keeping an open mind. That’s one reason why larger companies often send in someone from Corporate to investigate. Smaller companies may find it more difficult to find an investigator with that blissful ignorance. But they can consider bringing in someone from outside, like a lawyer or an HR consultant. If that isn’t possible, then the investigator will just have to temporarily put aside what he knows, to the best of his ability, while the investigation takes place.

No. 2: The investigator doesn’t have a “conflict of interest.” In this context, that means the investigator has authority over everyone involved in the alleged incident, including the authority to take appropriate action against whomever is determined to be the wrongdoer. She should be in a position to “let the chips fall” and to recommend corrective action without having to fear retaliation. For example, you don’t want an employee having to investigate allegations against her own boss. No matter how honest and fair she is, she will be inclined to pull her punches, perhaps out of loyalty or to avoid any “awkwardness” when it’s all over.

Continue Reading

Proposed merger of EEOC, OFCCP faces opposition from both sides

Posted in Affirmative Action, Discrimination, Elections, Politics

Last week, I wrote about a report in Bloomberg BNA that the Trump Administration was thinking about letting the Equal Employment Opportunity Commission “absorb” the Office of Federal Contract Compliance Programs. The idea had some appeal for me because both agencies enforce variants on federal prohibitions against discrimination. But I admitted that I hadn’t thought it through, and invited discussion from others. So far, silence.  :-(

But in Politico‘s “Morning Shift” from yesterday, there was some more on the pros and cons of such an idea. I’m reproducing it here for your consideration. (By the way, FUBAR is an acronym for “f***ed up beyond all reason/repair/recognition.”)

IS OFCCP TO EEOC FUBAR?: Next week’s Trump budget document may include a proposal to move the Labor Department’s Office of Federal Contract Compliance Programs to the Equal Employment Opportunity Commission. That proposal, if included, won’t sit well with civil rights groups nor with – and here’s a surprise – the U.S. Chamber of Commerce. The Chamber has “very serious concerns” about such a move, Randy Johnson, senior vice president for labor, immigration and employee benefits, told Morning Shift. “OFCCP and EEOC have different primary missions,” Johnson explained. OFCCP’s job is “to advocate affirmative action and diversity,” while the EEOC is focused on non-discrimination.

Like the EEOC, OFCCP pursues discrimination claims, but that’s “a secondary purpose,” Johnson said. Johnson also said OFCCP and the EEOC have “very different procedures and remedies” and that “there is a fear in the business community that this newly formed grouping might result in the worst of all worlds from both agencies.”

Emily Martin, general counsel at the non-profit National Women’s Law Center, also opposes the idea. “EEOC is primarily complaint-driven,” she said, and “OFCCP works with federal contractors on the front end to ensure that they meet higher standards for workplace fairness and opportunity.” Jillian Rogers, a spokesperson for the Labor Department, neither confirmed nor denied whether the merger will be in DOL’s budget.

I still think these two agencies’ missions are similar enough that combining them makes some sense. But I have an open mind. And it’s not too late to give us your two cents!

Here’s more on that Google-OFCCP donnybrook*

Posted in Affirmative Action, Discrimination, Equal Pay

*Donnybrook: Named for the Donnybrook Fair near Dublin, “a notoriously disorderly event, held annually from 1204 until the middle of the 19th century.” Meaning a “free-for-all; brawl; a usually public quarrel or dispute.”

I promised earlier this month to have more detail about that decision by an Administrative Law Judge in the case filed against Google by the Office of Federal Contract Compliance Programs. Here is the deep dive.KMS

As you recall, the OFCCP sued Google in December 2016 to get detailed information about its equal employment practices and affirmative action program, including compensation information. Google had already provided information to the OFCCP but contended that the additional request was overbroad and that some of the information sought was confidential.

A bench trial began on April 7, but was adjourned that same day after Google filed a motion to dismiss the OFCCP lawsuit. The motion was based on an article that had appeared in that day’s edition of The Guardian. The article quoted the testimony of Janette Wipper, the OFCCP Regional Director, which included the following: “We found systemic compensation disparities against women pretty much across the entire [Google headquarters] workforce” and “We want to understand what’s causing that disparity.” The article also quoted Regional Solicitor Janet Herold — who was not a witness at the hearing and was only peripherally involved in the case — as saying, “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters” and “The government’s analysis at this point indicates that discrimination against women in Google is quite extreme, even in this industry.” Ms. Herold was also quoted as saying that the OFCCP was seeking “additional information to ensure the accuracy of the department’s findings, because if the findings are confirmed, this is a troubling situation.”

Continue Reading

Mother’s Day Employment Law Quiz! Pregnancy, lactation, you name it!

Posted in Discrimination, Family and Medical Leave Act, HR, Lactation, Pregnancy

Happy Mother’s Day weekend to all of you who are, or who have, mothers.

Girls Night In.flickrCC.monkeywing

Mrs. Whistler celebrates Mother’s Day with her girls.

(I think that covers everybody.)

I couldn’t think of a better way to start this weekend than with a quiz on pregnancy discrimination, lactation accommodation, “family discrimination,” and the Family and Medical Leave Act. As always, answers are at the end of each question.

Ready? Here we go!

Question 1: By definition, an employer cannot discriminate based on pregnancy after the baby is born.

A. Correct. “Pregnancy” is obviously limited to the nine months (more or less) of gestation. Discrimination that occurs afterward cannot be based on pregnancy, although it may be unlawful for some other reason.

B. Incorrect. “Pregnancy” also includes the postpartum period. (Roughly six weeks after childbirth, assuming no complications.)

C. Incorrect. Courts have interpreted “pregnancy” to include not only gestation and childbirth (and postpartum period), but also a period of a few months after the baby is born. Moreover, the Equal Employment Opportunity Commission says that discrimination based on lactation is a form of “pregnancy discrimination.”

ANSWER: C. Employers, treat those new moms right! For a long time.

Continue Reading

Weekly catch-up

Posted in Class actions, FOCUS, Labor Relations, Only in California, Politics, Wage-Hour

Did you know that May is Mental Health Awareness Month? (Neither did I, but I do now.) Our beloved blogger Mallory Schneider Ricci is back at FOCUS, our women’s Hot Dog Man.flickrCC.JeleneMorrisleadership blog, with a post about mental health issues that affect women — and men — in the legal profession, and what they can do to take care of themselves.

The March-April Executive Labor Summary is out! David Phippen of our Washington D.C. Metro Office has the good, bad, and ugly (now, where did I come up with that?) of the labor relations world, including an antitrust challenge to an attempt to unionize drivers at Uber and Lyft, three cases involving students who either are, or claim to be, legal “employees,” a hunger strike that may involve pizza and cheeseburgers, Scabby the Rat balloon’s ignominious surrender to a cat balloon (we kid you not), and much more.

Our new edition of Class Action Outlook is also out! Alyssa Peters of our Macon Office leads off with an analysis of Justice Neil Gorsuch’s opinions in employment and class cases. Heidi Wilbur of our Denver Office discusses the Supreme Court’s recent decision in McLane, Inc. v. EEOC, addressing the standard of review that applies to enforcement of subpoenas issued by the Equal Employment Opportunity Commission. (Both Alyssa and Heidi are frequent contributors to this blog, as well.) Sean Kramer of our Los Angeles-Century City Office discusses the See’s Candy “rounding” decision (applying California wage and hour law). Then Alyssa is back with one on the Fairness in Class Action Litigation Act, which has passed the U.S. House but may have more difficulty making it through the Senate.

California Supreme Court clarifies “day of rest” laws. Last, but by no means least, Nestor Barrero and Regina Musolino of our Los Angeles-Century City Office have an excellent analysis of this Monday’s decision by the state Supreme Court that clarified some (unfortunately, not all) of the questions related to California’s “day of rest” laws. Any employer with operations in the Golden State will want to become familiar with this decision.

Don’t go to brunch this Mother’s Day — curl up at home with our latest publications instead!

Trumpdate: NLRB finalists, EEOC to swallow up OFCCP?

Posted in Affirmative Action, Elections, Labor Relations, Politics

NLRB candidates being vetted. Bloomberg BNA reported last night that President Trump has settled on two candidates to fill the two vacant seats on the National Labor RelationsTrump Caricature Board. One is William Emanuel, a shareholder in the Los Angeles Office of the management-side law firm Littler Mendelsohn. Here is a link to his firm bio. The other is Marvin Kaplan, counsel to a Commissioner on the Occupational Safety and Health Review Commission. Before his OSHRC appointment, Mr. Kaplan was Republican counsel for the House Education and Workforce Committee and the House Oversight and Government Reform Committee (both during the Obama Administration) and served at the Office of Labor-Management Standards under President George W. Bush. Before that, he was an associate in a Kansas City law firm. Mr. Emanuel and Mr. Kaplan have not been nominated yet but are reportedly undergoing the background check process as we speak.

EEOC to suck up OFCCP? Also from Bloomberg BNA last night – the Trump Administration is reportedly mulling the idea of a “restructuring” in which the functions of the OFCCP would be absorbed by the Equal Employment Opportunity Commission. Because both agencies enforce anti-discrimination laws, this kind of makes sense to me, but I’d love to hear what Cara Crotty and our other Affirmative Action gurus (not to mention our readers) think about it. (Don’t get too excited — according to the article, this proposed “restructuring” is not likely to actually occur.)

Image Credit: From flickr, Creative Commons license, by DonkeyHotey.

Gender pay gap is primarily a result of personal choices — so, what can employers do?

Posted in Affirmative Action, Equal Pay, Work-Life Balance

Cara-Crotty.322.jpegA number of studies are showing that most, if not all, of the gender pay gap is explained by personal choices made by men and women. But how can employers protect themselves from claims of discrimination?

The U.S. Bureau of Labor Statistics reports that, in 2015, women working full-time had median earnings that were 81 percent of the median earnings of their male counterparts. That is up from 79 percent in 2014.

In the same 2014 study linked above, the U.S. Department of Labor acknowledged that a variety of factors have contributed to the differences in earnings between men and women:

  • Women historically had lower levels of college education
  • Fewer women historically participated in the labor force
  • Women are more likely to work in lower-paying jobs
  • Women are more likely to shoulder caregiving responsibilities, diminishing their time spent working.

Continue Reading