Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Tech company sued for alleged hiring bias against Asians, OFCCP’s Shiu to step down

Posted in Affirmative Action, Discrimination

Being part of the “in” crowd with the FBI apparently does not protect you from the Office of Federal Contract Compliance Programs.

Alyssa Peters

Alyssa Peters

To the contrary: It was an FBI contract that subjected a California-based technology company to an OFCCP review that has resulted in an administrative complaint.

Palantir Technologies is a large government contractor with more than $340 million worth of federal contracts with the FBI, the U.S. Special Operations Command, and the U.S. Department of the Army. According to the Wall Street Journal, Palantir assisted the government in finding Osama bin Laden.

But that apparently doesn’t cut any ice with the OFCCP. The Agency Continue Reading

Employer groups try to block “Fair Pay and Safe Workplaces” rule. Will they beat the deadline?

Posted in Affirmative Action

Jon Yarbrough

UPDATE (10/25/16): They did, they did! Judge Marcia Crone has issued a preliminary injunction against the Rule, which blocks it from going into effect. She agreed with the plaintiffs on just about every point (although she declined to block the paycheck transparency provisions). Here is a copy of the Order.

Many federal contractors are on the verge of having to comply with the Obama administration’s Fair Play and Safe Workplaces Executive Order. The FAR Council’s Final Rule and the U.S. Department of Labor’s Final Guidance (I’ll refer to them collectively as “the Rule”) were published on August 25 – all 483 pages totaling nearly 191,000 words — and the effective date is tomorrow, October 25.

But will contractors get a reprieve? Associated Builders and Contractors, Inc., along with one of its Texas chapters and the National Association of Security Companies, have filed suit in federal court in Beaumont, Texas, in an attempt to derail the Rule. Arguments were heard this past Friday on the plaintiffs’ motion for a temporary restraining order and injunction.

The plaintiffs’ challenge to the Rule is many-faceted. They contend that the government did not have legal authority to issue the Rule, that the Rule is preempted by the 14 federal labor and employment laws to which it applies (including the National Labor Relations Act, the Fair Labor Standards Act, the Occupational Safety and Health Act, and all of the federal anti-discrimination laws), that the Rule violates the First Amendment prohibition on compelled speech by requiring federal contractors “to publicly condemn themselves” (even, in some cases, while they are continuing to contest the alleged violations), that the Rule violates federal contractors’ due process rights, that the Rule is arbitrary and capricious, and that the Rule violates the Federal Arbitration Act.

It’s hard to disagree with the plaintiffs in this case. For example, as the lawsuit notes, a WH-56 Summary of Unpaid Wages form is an administrative “merits” determination that would have to be disclosed even though employers often pay only because the cost of litigation may greatly exceed the amounts that the U.S. Department of Labor claims to be due as unpaid wages.

Canary Statue.flickrCC.MichaelSonnabend

“I love to sing, but this is ridiculous!”

In arguing that the Rule is arbitrary and capricious, the plaintiffs’ lawsuit claims, “The Rule and Guidance do not adequately explain other than through sheer speculation how compelled disclosure of ‘administrative merits decisions’ — including those that are still being contested or settled without a hearing — demonstrate any degree of business integrity sufficiently lacking to affect the government’s responsibility determination.” Well said.

The government defendants have not filed answers, but as noted, a hearing was held Friday, and the court asked for more briefing, which was filed on Saturday:

Here is the government’s supplemental brief opposing the injunction,

Here is the plaintiffs’ supplemental brief supporting the injunction,

And here is the plaintiffs’ proposed order.

If the court doesn’t block the Rule, it will take effect tomorrow. For what’s left of 2016, the disclosure requirements will apply to contractors under consideration for federal contracts worth $50 million or more. Beginning in 2017, the requirement will include contractors and subcontractors bidding on government work worth only $500,000 or more. These disclosures will be public record.

Cara Crotty has an excellent comprehensive summary of the Rule here.

Image Credit: Canary from flickr, Creative Commons license, by Michael Sonnabend.

Workplace investigations and the case of the planted peanut butter

Posted in Americans with Disabilities Act, Discrimination, Harassment
Mr. Peanut 2.flickrCC.ChristineMajul

“Who done it?”

I’m a week late with this follow-up. (Sorry.)

Two weeks ago, I posted about an employee (fictionally named “Zoey”) who had a peanut allergy. After she asked a peanut-butter-loving co-worker (“Addison”) to be considerate, Zoey found a big glob of peanut butter smeared under her desk, which caused her to get sick. Addison denied being responsible.

To recap from last time:

*I said I would fire Addison if I determined that she did it out of meanness.

*I said I’d give a final warning to Addison if I determined the she did it as a “test” because she didn’t believe Zoey really had a peanut allergy. (I also said that I thought it would be legal for an stricter employer to terminate Addison.)

*I said if Addison’s workplace nemesis, Mildred, did it to get Addison in trouble, I’d fire Mildred.

*I said I’d fire Zoey if it turned out that Zoey herself did it, just to make a scene in the office and to get Addison in trouble.

What I did not say is how the employer should determine which of these things occurred. Or whether it was a complete accident — for example, the night before the incident, a member of the company’s cleaning crew took a dinner break and was eating his PB&J sandwich under Zoey’s desk (his favorite spot) for privacy, got a glob of peanut butter on his hand, realized he had forgotten to pack a napkin that night, and wiped his hand off under Zoey’s desk because it was less uncouth than licking the peanut butter off his hand and anyway he’ll clean it up tomorrow night, having no idea that Zoey had a peanut allergy and might go into anaphylactic shock.

It could happen.

Continue Reading

Weekly catch-up

Posted in Safety

Hot Dog Man.flickrCC.JeleneMorrisThe last Retailer of 2016 is out! With Black Friday approaching, Toby Dykes of our Birmingham Office has a great feature on crowd dynamics and OSHA’s guidance on how retail employers can keep their employees safe during the busiest shopping season of the year.

We also have graphics showing retailers’ projected earnings and hiring plans for the holidays, and “bite-size” legal news of interest to retail employers.

Supplies are limited!* Act now!

*Not really. Unless your internet goes down.

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

Enforcement date of OSHA rule delayed again — until December 1

Posted in Drug Testing, Retaliation, Safety, Workers' Compensation

Tommy Eden

The Occupational Safety and Health Administration has delayed for a second time the enforcement date of its new “Reasonable Reporting Procedure” rule as it pertains to post-accident drug testing and safety incentive programs. The new enforcement date for the rule is December 1.

The rule was scheduled to take effect on August 10, and then OSHA extended the enforcement deadline to November 1.

As this blog has reported previously, employer groups filed suit in July in federal court in Dallas, seeking to enjoin (block) the rule. In an order dated October 14, U.S. District Judge Sam A. Lindsay asked the employer groups and the government to agree to delay the effective date for one more month — until December 1 — so that the parties would have time to fully brief the issues.

OSHA announced on Tuesday that it would agree to the delay.

The delay of enforcement memorandum sent on Tuesday to all OSHA Regional Administrators from Deputy Assistant Secretary Dorothy Dougherty stated as follows:

The final rule to Improve Tracking of Workplace Injuries and Illnesses contains three new employee involvement provisions that address employer conduct that could discourage employees from reporting work-related injuries or illnesses. The final rule clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and therefore must not deter or discourage reasonable employees from reporting work-related injuries or illnesses; requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; and incorporates into Part 1904 the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions became effective on August 10, 2016.

OSHA initially delayed enforcement of these provisions until November 1, 2016, to allow time for additional outreach to the regulated community. On October 14, 2016, the United States District Court, Northern District of Texas, asked OSHA to further delay enforcement through December 1, 2016 to allow additional time to consider a motion pending before the court in a case challenging the new provisions. OSHA has agreed and will delay enforcement of the employee involvement provisions of the final rule until December 1, 2016.

(Legal citations omitted.)

Constangy’s prior coverage of the “Reasonable Reporting Procedures” rule is available below:

*OSHA Rule requires public reporting of injuries by employers, bans “unreasonable” requirements for employees to report

*Don’t Panic! Employers should be able to continue most post-accident drug tests under OSHA’s “reasonable reporting procedure” rule

*The Good News and the Bad News (about the first delay, to November 1)

*OSHA provides guidance on its new “Reasonable Reporting Procedure” rule

*OSHA DELAYS enforcement date for new anti-retaliation rule that would restrict post-accident drug testing and safety incentive programs

EEOC appeals loss in Detroit transgender case

Posted in Discrimination, Gender Identity Discrimination

As we knew it would, the Equal Employment Opportunity Commission has appealed the decision of Judge Sean Cox, who granted summary judgment to a Detroit-area funeral home chain in a transgender discrimination case. Here is my analysis of Judge Cox’s decision.

The case will go to the U.S. Court of Appeals for the Sixth Circuit, which hears appeals from federal courts in Kentucky, Michigan, Ohio, and Tennessee.

Needless to say, we will continue to follow it and will continue to keep you posted!

Disaster Unemployment Assistance available for 23 counties in NC

Posted in Unemployment

In the aftermath of Hurricane Matthew, 23 North Carolina counties have been approved to receive federal Disaster Unemployment Assistance. Gov. Pat McCrory has directed the state Department of Employment Security not to enforce the one-week waiting period that normally applies to unemployment claims.

The eligible counties are as follows: Beaufort, Bertie, Bladen, Columbus, Cumberland, Dare, Duplin, Edgecombe, Gates, Greene, Harnett, Hoke, Hyde, Johnston, Jones, Lenoir, Nash, Pender, Pitt, Robeson, Sampson, Wayne, and Wilson.

Here are a press release from the DES and DUA FAQs.

Thanks very much to John Hoomani, chief counsel of the DES, and to Jessica Leaven, chair of the Labor and Employment Section of the North Carolina Bar Association, for sharing this information.

(If DUA is available in counties of other states affected by the hurricane, please let me know. I’ll add your information to this post.)

A Boss’s Day letter from . . . The Boss.

Posted in Corporate Culture

DISCLAIMER: The Boss in this blog post is fictional. Any similarity to actual bosses, living or dead, is purely coincidental. No bosses were harmed in the writing of this post. If you’d prefer something warmer and fuzzier, try this.

Hey, Underling:

On this Monday, October 17, 2016, I thought it would be an opportune time to let you know that your efforts are appreciated!

You finished those TPS reports long before anyone else in the department did, and I got such a pat on the back from Mr. Smith for getting them in early! He told me that I was a “wunderkind.” No one has ever called me that before! Good thing he didn’t realize that it was you who did them instead of me. But I am a born delegator. That’s what bosses do, right? LOL.

Smarmy man.flickrCC.ScottGarner

World’s Worst Boss.

And then there was that time Corporate decided that it couldn’t afford pay increases for anyone at your level or below. I heard a lot of people complaining about that, but never a peep out of you. Thanks to your sacrifice, I was able to make a down payment on my beach house. As somebody once said (pardon the pun!), “A rising tide lifts all boats.”

Speaking of rising tides and boats, I’m planning to have a get-together at my new beach house in a few weeks. Can you come over and serve and clean up after everybody leaves? Gas prices aren’t too bad right now, and there are some budget motels nearby, so it shouldn’t be cost-prohibitive for you. Plus, THE BEACH!!!!!  :-D 

Of course, you can take the leftovers home, and you won’t have to bring back the dishes until Monday. Just a suggestion, but those Cascade pellets work really well.


These are the ones I’m talking about. Eight times the power!

Well, anyway, you are an asset to this company, and I’d like to think that I deserve the credit for being such an awesome mentor. That is why it surprised me when I got to work today and didn’t see golf clubs, or a “World’s Best Boss” mug, or even a card at my desk. In fact, when I passed you in the hallway, all you said was, “Hi.” I would never have expected you to forget that this is Boss’s Day what day this is.

But I think it was officially yesterday (Sunday), so maybe that’s why. Maybe you were confused because today wasn’t the official day, but it was the first business day after the official day, making it the day. But it doesn’t matter. Water under the bridge. (Boy, I must have “water on the brain” today!)

All kidding aside, can you call HR and find out the deadline for me to complete your performance review? I can’t remember the exact date, but I think it’s coming up pretty soon.

The Boss

Image Credits: World’s Worst Boss by Scott Garner, flickr, Creative Commons license. Cascade pellets by me.

Court sets aside Title VII sexual orientation decision, agrees to rehear

Posted in Discrimination, Gender Identity Discrimination, Sexual Orientation

The full U.S. Court of Appeals for the Seventh Circuit has vacated Hively v. Ivy Tech Community College, which found that Title VII did not protect against sexual orientationStove fire.flickrCC.StateFarmIns discrimination. I wrote about the decision, issued by a three-judge panel of the Seventh Circuit, in August. The court will rehear the case with all of the judges participating.

Here is a copy of the order.

Ms. Hively’s request for rehearing was supported by the Equal Employment Opportunity Commission and U.S. Senators Jeffrey Merkley (D-Or.), Tammy Baldwin (D-Wis.), and Cory Booker (D-NJ), and U.S. Representatives David Cicilline (D-RI) and Mark Takano (D-Calif.). The Congresspersons are co-sponsors of the Equality Act, proposed legislation that would provide federal protection against discrimination to LGBT individuals.

The other big sexual orientation/Title VII case — Christiansen v. Omnicom Group, Inc. — is still pending at the U.S. Court of Appeals for the Second Circuit, but the plaintiff filed his reply brief this week, so it may not be too long before we get a decision.

Things are heating up!

Image Credit: From flickr, Creative Commons license, by State Farm Insurance.

Heresy! Is “flexibility at work” overrated?

Posted in Corporate Culture, Telecommuting, Work-Life Balance

“Yeah, yeah – I don’t care about that flexibility stuff. I’ll take the green, thanks.”

Or is it loved as much as ever, as long as it doesn’t cost employees money?

Interesting questions are raised by a study conducted and recently published by Alexandre Mas, a Professor of Economics and Public Affairs at at Princeton University, and Amanda Pallais, a Paul Sack Associate Professor of Political Economy and Social Studies at Harvard University.

The professors conducted a study based on an actual recruitment for call center jobs. The jobs were advertised through a national job-search source, and 7,000 people applied. The applicants were racially diverse, predominantly female with an average age of 33, and half had some college but no degree. (The other half was evenly divided between high school only and college degree.)

The ad for the job did not say anything about the work schedule. But when applicants clicked on the link to more detailed information, they were offered a choice between a standard Monday-through-Friday/9-to-5 schedule, and one of the following “alternatives”:

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