Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Military employment rights: A recap for the Memorial Day weekend

Posted in Americans with Disabilities Act, Family and Medical Leave Act, Military, USERRA

In honor of Memorial Day weekend, here’s a summary of the rights of employees who take leaves of absence to serve our country, and their family members.


The Uniformed Services Employment and Reemployment Rights Act of 1994 protects employees who leave their jobs to serve in various military capacities.


Five year (or more) rule. An employee’s right of reemployment is good for at least a five-year term of duty, but certain special provisions may extend even that time:

*Initial enlistments that last more than five years

*National Guard and Reserve training duty

*Involuntary extensions of active duty, or recalls, especially during times of national emergency

*Convalescence after a service-related injury, up to two years (see below)

Notice requirements. Employees are required to provide advance notice of the military leave, in writing or orally, unless advance notice is “impossible, unreasonable, or precluded by military necessity.” The employee should provide notice to the employer as early as is “reasonable under the circumstances.”

Continue Reading

This week on FOCUS, our women’s leadership blog

Posted in FOCUS

Administrative partner Teresa Ryder Bult has a guest post this week: “Inverting Views on Networking: How Can You Influence Someone’s Life Today?”

FOCUS masthead

Hint: Don’t make it all about you.

(Teresa is the original founding chair of Constangy’s Women’s Network.)

One more thing: The FOCUS blog was having technical difficulties with email notifications to subscribers. The problem appears to have now been fixed, and if you subscribed, you should be receiving an email within 24 hours of any new post. (If you haven’t subscribed, then just do it!) If you subscribe and did not get an email this week, check your spam filter and make sure that the email isn’t trapped in there, screaming to get out. If it’s in the spam filter, just release and “safelist” it, and you should receive regular notifications from that point on.

Threats, and rumors of threats, enough to overturn union election, court says

Posted in Labor Relations, Violence

Do you know the difference between an idle threat and a serious one?

Your kid plays a joke on you, and you respond, “I’m gonna kill you” while laughing at the joke. Idle threat, or serious?

Cleared for release by Joint Staff Public Affairs

“A good bully communicates threats in the sweetest way.”

A co-worker tells you she will slash your tires if you vote against the union. Idle threat, or serious?

A co-worker tells you that she heard from another co-worker that yet another co-worker said she would slash the tires of anyone who voted against the union. Idle threat, serious threat, or idle gossip?

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned a union election victory last week because two union supporters allegedly threatened physical and property damage to employees who did not support the union. Many of the employees at the facility heard about the alleged threats second-hand. The union won the election by only two votes, and the Court said that the employee threats might have affected the outcome. Accordingly, the employees will get a new election.

Full disclosure: The employer in this case was represented by my law partners Cliff Nelson and Chuck Roberts. (Way to go, guys!)

The employees who heard the threats apparently did not take them seriously at first, but on reflection became concerned that they were genuine. It probably didn’t help that one of the alleged bullies had a scar on her hand from a previous knife fight.

The D.C. Circuit decision overruled two prior decisions from the National Labor Relations Board, which had found that the threats were not enough to warrant a new election and that ManorCare unlawfully refused to bargain with the union after the election. Regarding the threats, the NLRB had also said that it was not going to overturn an election based on a “game of telephone.”

Do you think the NLRB would have been that flip if it had been rumors about threats allegedly made by a supervisor? Doubtful.

Image Credit: From Wikimedia Commons. 

Is sexual harassment training a turn-off for men?

Posted in Harassment

A semi-recent article in the New York Post“The Corporate ‘Cure’ for Sexual Harassment Only Feeds the Disease” — cited a couple of studies that allegedly proved that sexual harassment training is worse than doing nothing because it makes men resentful and more likely to tolerate harassment.

Bored Class.flickrCC.SethCapitulo

“Zzzzzzzzz . . .”

Wow. That’s terrible!

Except that it’s not precisely true. What these studies really say is that bad sexual harassment training may be worse than none.

Stanford study

The article was based in part on a study conducted by Stanford University researchers, which asked freshman males in an experiment to read aloud and sign off on a “no-harassment” policy before they proceeded with the experiment. The control group did not have to read and sign the policy. Men who signed off on the policy tended to be more critical of their female partners in the experiment, and viewed women as being of lower status, than the men who didn’t have to sign the policy.

That’s right – the Stanford study involved no sexual harassment training at all – just reading, reciting, and signing the policy. The authors concluded in part, “This study provides preliminary evidence that employers’ inclusion of sexual harassment policy as a ‘one-shot learning’ experience out of mere bureaucratic necessity actually has effects that run counter to the policy’s equalizing aims.”

Continue Reading

Too many RULES, man!

Posted in Affordable Care Act, Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA, Only in California, Wage-Hour

“Do this, don’t do that, can’t you read the rules . . .”*

Of course, the mega-topic this week was the U.S. Department of Labor’s Final Rule on white-collar exemptions to the overtime provisions of the Fair Labor Standards Act. Ellen Kearns, co-chair of our Wage and Hour Practice Group, wrote a great Client Bulletin on the Rule, taking a complex subject and explaining it in a pithy and readable way.Rules for Students.flickrCC.MichaelStout

And if you’re looking for a little wage-and-hour humor (does such a thing even exist?), be sure to read Steve Katz’s post on the unique circumstances that the DOL’s Final Rule creates for California employers.

But not everything this week was wage-and-hour related. The Occupational Safety and Health Administration came out with a Final Rule last week that will require employers to post their workplace injuries on a public website and will prohibit employers from having injury-reporting procedures that are not “reasonable.” Our OSHA Practice Group has the story.

Finally, I wrote a bulletin on the Final Rules from the Equal Employment Opportunity Commission concerning wellness programs and the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. I didn’t think the rules were too bad (considering that there is a conflict between the ADA and the GINA — the laws that the EEOC is charged with enforcing — and the wellness provisions of the Health Insurance Portability Accountability and Affordability Act and the Affordable Care Act), but apparently some lawyers think the EEOC could have done better. Let me know what you think.

*Apologies to the Five-Man Electrical Band.

Image Credit: From flickr, Creative Commons license, by Michael Stout.

An open love letter to Justice Clarence Thomas

Posted in Class actions, Discrimination, Harassment, Transportation Industry
Marcia McShane

Marcia McShane

I admit it.  I have a crush on Justice Thomas.  Today’s unanimous Supreme Court opinion in CRST Van Expedited, Inc. v. EEOC – holding that a merit-based dismissal is not necessary for a defendant to qualify as the “prevailing party” in a Title VII case – would make any employment defense lawyer’s heart skip a beat.

But the majority opinion is not what caused me to swoon. Justice Thomas’ badass (am I allowed to use the word “badass” when talking about a SCOTUS Justice?) concurring opinion, with its pointed reminder he’s been right all along, made me fall head over heels. Here is his opinion, in its entirety. Because it’s that good, that efficient, and as Matthew McConaughey would say, it’s “all right, all right, all right”:

Continue Reading

What’s the world coming to? Federal OT rule is more employee-friendly than California law!

Posted in Only in California, Wage-Hour


Well, not exactly.  But some natural phenomena occur only once or twice in a lifetime—like Halley’s Comet, or the turn of the Millennium, or the Mets winning the pennant.  Another one happened today:  the FLSA has become more protective or workers than California law, which is ordinarily the nation’s statistical outlier in the wage-and-hour world.

This morning President Obama announced final publication of the DOL’s new rules on the white-collar exemptions, which will more than double the minimum salary for exempt employees from $455 to $913 per week.  The new regulations will also index the minimum salary to market rates, and permit employers to satisfy up to 10 percent of minimum salary with nondiscretionary bonuses.

Under California law, the white-collar exemptions require employees to be paid a salary of at least two times the minimum wage for full-time work.  At the present state minimum wage of $10 per hour, white-collar employees must earn at least $800 a week.  California will not catch up with the FLSA until 2019, when the state minimum wage goes up to $12 per hour.

Until then, the earth-shattering conclusion that a California employer could satisfy state overtime regulations, but not the FLSA’s, is conceivable.  For years, California employers have been shocked to learn that their compliance with FLSA does not pass muster under state law.  The reverse was, until now, inconceivable.

All California employers should review the compensation of their exempt employees and plan to bring their operations into compliance. The new federal regulations do not go into effect until December. It’s not too late to avert disaster.

Your overtime rule news portal for today

Posted in Wage-Hour

Vice President Joe Biden is expected to announce the official release of the U.S. Department of Labor’s new overtime rule this afternoon in an appearance at Jeni’s Splendid Ice Cream in Columbus, Ohio. I’ll post the rule, which will change the white-collar overtime exemptions to the Fair Labor Standards Act, as soon as it’s available. Meanwhile, the DOL has already released the outline of the rule’s provisions (minimum salary to qualify is being raised from $23,660 to $47,476, adjusted for cost of living every three years; no change to duties test).


There has been some good news coverage this morning. Here are some links to whet your appetite while we wait for the official word:

From The Wall Street Journal: Obama Administration Extends Overtime Pay to Millions

From The New York Times: White House Increases Overtime Eligibility by Millions

From Marc Freedman of the U.S. Chamber of Commerce: Icing on Overtime Cake: Plaintiffs’ Bar Getting Ready

Here’s what’s on the DOL website right now: The Overtime Rule

And a Fact Sheet issued by the White House: Growing Middle Class Paychecks and Helping Working Families Get Ahead (RES – We’ll see. I hope so.)

UPDATE (9:03 a.m.): Here’s more from the DOL:

DOL Fact Sheet on the Final Rule

DOL Blog Post on the Final Rule: Plenty of Options with New Overtime Rule

UPDATE!!!!!! (1:12 p.m. EDT): HERE IT IS!!!!!!! Here is the Final Rule.

Meanwhile, attorneys in our Wage and Hour Practice Group are expected to have a client bulletin on the rule today or tomorrow, which I’ll post as soon as it’s ready. UPDATE: Here it is, by Ellen Kearns.

Don’t go away!

Image Credit: From flickr, Creative Commons license, by Rochelle Hartman.

California’s Fair Pay Act: Gender equity beyond compare

Posted in Equal Pay, Only in California

Starting in January, California has rolled out Equal Pay Legislation 2.0—the new generation in equal pay legislation. It has become the first jurisdiction to adopt a true “comparable worth” standard for pay equity.We Can Do It.flickrCC.SBT4NOW

Typically states follow the federal Equal Pay Act to require that employers pay men and woman alike for “equal work” which requires “equal skill, effort or quality” at the same “establishment.” Such laws prohibit discrimination against women doing the same work as men, but do not require employers to guarantee that the value assigned to different types of work by society is fair.

Supporters of “comparable worth” want employers to do exactly that. Although they have been gaining ground in recent years, Congress and the states have been reluctant to expand equal pay laws to require true comparable worth—until now.

Continue Reading

Legal, or Illegal? Employee leaves of absence and the ADA

Posted in Americans with Disabilities Act, Discrimination, Family and Medical Leave Act

The Equal Employment Opportunity Commission came out this week with a fact sheet dealing with leaves of absence and the Americans with Disabilities Act. First, I say kudos to the EEOC for again providing good, readable, not-overly-technical “preventive” guidance for employers. Second, let’s see what you know about the EEOC’s position on leaves and the ADA. (Answers are at the bottom.)


Leaves of absence. Get it?

No. 1: You provide seven days of sick leave a year to your employees. If an employee wants to take a sick day, all he has to do is call in sick. You don’t require a doctor’s note. Mildred, a breast cancer survivor, asks to take a sick day to visit her oncologist for a checkup. Since Mildred isn’t sick, you require her to produce a doctor’s note before you let her take the sick day.

Legal, or illegal?

No. 2: Elbert has been out on Family and Medical Leave Act leave for 12 weeks after having a heart attack. During that 12 weeks, he used up his accrued paid time off, and you don’t offer disability benefits. At the end of the 12 weeks, he brings you a doctor’s note saying that he will be able to return to work without restrictions after two more weeks (14 weeks total). Since Elbert has no more FMLA leave and no more paid leave, and since you don’t offer other types of leave, you administratively terminate him (no-fault termination) after 12 weeks.

Legal, or illegal?

No. 3: Yolanda is a sales representative who has to take a six-week leave because of eye surgery that temporarily prevents her from being able to drive. (Assume that driving is an essential function of this job.) Yolanda returns to work without any issues. On her performance evaluation, you exclude the six weeks she was out of work in measuring her sales volume, which means she does not have six weeks of “zero” averaged in. You measure her sales volume by averaging the sales numbers from the time that she was actually at work.

Legal, or illegal?

Continue Reading