Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

“The freezing trucker” and Gorsuch’s heart of ice: A micro-fiction

Posted in Politics, Transportation Industry

It was a bleak and frigid night on I-88 somewhere in northern Illinois. The icy wind whipped across the flatlands, grazing the endless rows of white, brittle remains of lastScreen Shot 2017-03-23 at 6.09.47 PM year’s corn crop. The only place to be that night was in your house, wrapped in your Snuggie, with a warm glass of brandy, watching videos of past vacations at Daytona Beach.

Alphonse Maddin knew he had to deliver his truckload of stuff, but he was low on gas. Somehow, he had not been able to find his assigned gas station in the vast, treeless midwestern expanse. So he drove and he watched, as the needle slowly but surely slid below the little red “E.”

Some thirty years earlier, in the land of cherry blossoms and the Potomac River, Congress passed the Surface Transportation Assistance Act. The law said (among many other things) that an employer could not take adverse action against a driver because the driver refused to operate a truck for safety-related reasons. (The law was later amended to add security-related reasons.)

Back on I-88, Alphonse Maddin was afraid he was going to run out of gas, so he pulled his rig over to the side of the road. He waited for an inexplicable 15 minutes, and then decided to venture back out in search of a truck stop.

No go. His trailer brakes were frozen.

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Weekly catch-up

Posted in FOCUS, Franchise, Labor Relations, Politics

Franchisors received some encouraging news this week from President Trump’s Hot Dog Man.flickrCC.JeleneMorrisActing Solicitor General, Nicholas Geale. Mr. Geale says that he prefers not to bring enforcement actions based on a theory that franchisors and franchisees are “joint employers.” He also said that he hopes the U.S. Department of Labor will focus on helping employers to comply with the law and less on persecution prosecution. Jeff Rosin, head of our Franchise Industry Group, has more here.

Could it be that the Supreme Court has invalidated two years of actions by the General Counsel of the National Labor Relations Board? Wouldn’t that be fun! But don’t get too excited — chances are that the Court’s decision this week in NLRB v. Southwest Ambulance was rendered too late to be of much help to employers. David Phippen has an excellent analysis of the legal issue — appointments to “acting” positions and the Federal Vacancies Reform Act — the Court’s decision, and the expected impact. (Although the decision involved an Obama appointee, President Trump and his successors are likely to feel the most pain.)

And at FOCUS, our women’s leadership blog, Kacy Coble has a bang-up debut post about Women’s History Month, women in the legal profession, and Constangy’s own “women’s history” — the story of Mildred McClelland, law partner to our founder, Frank Constangy, way, way back in the 1940s.

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

It’s OFCCP audit time! Six questions contractors should ask themselves

Posted in Affirmative Action

Louise Davies is an Affirmative Action Paralegal in Constangy’s Winston-Salem, North Carolina, office. For more than 15 years, she has helped employers develop affirmative action plans and respond to audits and on-site investigations by the Office of Federal Contract Compliance Programs. She also conducts diversity training for employers. Louise is a graduate of Wesleyan College in Macon, Georgia.

Starting February 17, the Office of Federal Contract Compliance Programs began mailing Corporate Scheduling Announcement Letters to approximately 800 contractor establishments. CSALs are notices sent to contractors advising them that they could be selected for a compliance evaluation. They are not SchedulingLouise Letters, which begin a compliance review. Rather, CSALs are intended to give contractors some advance time to prepare for potential audits. They are not required by law and are considered to be a courtesy to the contractor.

The OFCCP also began issuing actual Scheduling Letters on March 17. Are you ready for an OFCCP compliance review? Here are six things that contractors should ask themselves to ensure they are prepared:

  1. Is your data for applicants, hires, terminations, and promotions reconciled and accurate? Have you researched areas of potential adverse impact in these areas?
  1. Have you conducted a compensation analysis, and can you explain pay disparities that may exist? Are you compliant with the current equal pay laws?
  1. Are you able to provide proof of your good-faith efforts to recruit women, minorities, protected veterans, and individuals with disabilities?
  1. Have the Affirmative Action Plan results been communicated to managers and executives, and have they received the required training?
  1. Have you reviewed your company website through the eyes of a potential candidate to ensure its compliance with the current laws and regulations?
  1. Have you updated existing policies and posters to reflect recent regulatory changes?

If you have not done these things to ensure top-to-bottom compliance, now is a good time to begin the process. Let us know if we can be of any assistance.

“Free to Be . . . You and Me”: The 11th Circuit’s strange LGBT decision

Posted in Discrimination, Sexual Orientation

This latest decision from the U.S. Court of Appeals for the Eleventh Circuit on sexual orientation discrimination is weird. A panel of the court found 2-1 in Evans v. Georgia Regional Hospital that the plaintiff did not have a valid Title VII claim against her employer for sexual orientation discrimination. Whether you agree with it or not, the panel opinion was fairly straightforward. Judge Jose Martinez, a federal judge from Florida who was sitting by designation, stuck to the case law saying said that sexual orientation is not “sex discrimination” prohibited by Title VII.

Jon Hyman of the Ohio Employer’s Law Blog has a good take on this decision. See “The 11th Circuit’s odd LGBT-discrimination decision.”

But then, Judge William Pryor — a very respected jurist who was on President Trump’s list of 20 candidates to fill the Supreme Court seat made vacant by the death of Justice Antonin Scalia, but who also caught a lot of grief from conservatives when he joined in holding in Glenn v. Brumby that Title VII protected transgender individuals from discrimination — wrote a concurrence that I found unpersuasive.

Man scratching head.flickrCC.RobbieBiller

“Hmmm . . . “

As I’ve reported before, the position taken by the Equal Employment Opportunity Commission is that discrimination based on sexual orientation is a form of unlawful “sex stereotyping.” The “stereotype” is that a woman ought to be sexually attracted to a man, and vice versa. Gay and lesbian people don’t fit that stereotype. Therefore, if an employer takes action against a gay or lesbian employee or applicant because of the individual’s sexual orientation, the employer is doing it because of stereotypical ideas about who men and women should be sexually attracted to.

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Weekly catch-up

Posted in Alternative Dispute Resolution, Immigration, Only in California

You may have heard by now that not one, but two, federal courts have struck Hot Dog Man.flickrCC.JeleneMorrisdown President Trump’s second attempt at a travel ban Executive Order. As always, Will Krasnow and Jeanette Phelan from our Immigration Practice Group have the story, including links to the two court decisions. Last we heard, President Trump is done with rewrites — he plans to take the battle to the Supreme Court.

“It never rains in California, but it pours . . . man, it pours . . .” The U.S. Court of Appeals for the Ninth Circuit has said that an agreement compelling arbitration of a claim under the California Private Attorneys General Act is enforceable. That puts the Ninth Circuit in conflict with the California courts, so that should be interesting. Barbara Antonucci from our San Francisco Office has the analysis here. And retailers with operations in San Jose will want to check out this bulletin by Julius Turman, head of our San Francisco Office, about the city’s new “predictive scheduling” ordinance that took effect this past Monday. Leprechaun.flickrCC.Jeffrey

Oh — and happy St. Patrick’s Day! Don’t drink too much green beer! That stuff’ll kill ya.

Image Credits: From flickr, Creative Commons license. Hot dog man by Jelene Morris; leprechaun man by Jeffrey.

Is paid family leave in employers’ future?

Posted in Benefits
Spring Taylor

Spring Taylor

Robert Ortbals

Bob Ortbals

Bob Ortbals co-wrote this post.

Employers get ready. Paid family leave is coming. The latest move comes from Missouri Governor Eric Greitens (R), who granted paid parental leave to all state executive branch employees by executive order on March 13, 2017. Effective immediately, executive branch employees are entitled to paid leave for the birth or adoption of a child. Notably, since his inauguration in January, Gov. Greitens and Missouri’s legislature have focused on improving Missouri’s business climate, including making Missouri a “Right to Work” state and proposed legislation, expected to be enacted, that would amend the Missouri Human Rights Act to bring it in line with federal standards.

It is telling, therefore, that Gov. Greitens considers paid leave in line with these priorities—the executive order even states that paid leave will help state government to better recruit the best and brightest employees.

Nationally, 72 percent of Americans favor paid family leave. President Trump campaigned on giving six weeks of paid maternity leave to working moms who gave birth. During his recent Congressional speech, the President may have expanded on his campaign proposal by speaking in terms of paid family leave, which would presumably be available to fathers as well as mothers. His paid-leave plan is still being crafted.

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Are your federal contractor employees required to have privacy training?

Posted in Affirmative Action

The Federal Acquisition Regulations were recently updated to include a requirement that certainCara-Crotty.322.jpeg federal contractors provide privacy training to some of their employees. The training obligation does not apply to all employees of contractors who are subject to the requirement, and the requirement does not apply to all federal contractors.

Effective January 19, 2017, contracting officers should be adding FAR 52.224-3 to solicitations and contracts in which a contractor would, on behalf of a federal agency,

  • Have access to a system of records;
  • Create, collect, use, process, store, maintain, disseminate, disclose, dispose, or otherwise handle personally identifiable information; or
  • Design, develop, maintain, or operate a system of records.

Personally identifiable information (“PII”) is defined as “information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other information that is linked or linkable to a specific individual.”

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Fair Pay and Safe Workplaces and its “executioner”: The Congressional Review Act

Posted in Affirmative Action, Elections, Politics

The U.S. Senate has passed, 49-48, a resolution of disapproval of the Fair Pay and Safe Workplaces rule. The resolution ofKMS disapproval passed the House in February, and we’ve reported on it here and here.

If the President signs the resolution, as is expected, then Fair Pay and Safe Workplaces will be dead.

The controversial rule, issued by the Obama Administration in August 2016, was based on a 2014 Executive Order by the same name.

In a nutshell, the rule required federal contractors and subcontractors bidding on any federal contract worth more than $500,000 (with the exception of a few commercial off-the-shelf items) to disclose “violations” of labor laws that had occurred in the three years leading up to the contract bid, and required post-award updates every six months.

Some (mainly Republicans) called it the “blacklisting rule,” and some (mainly Democrats) called it “necessary to discourage labor abuses” by ensuring that federal contracts don’t go to companies that are guilty of “serious, repeated, willful or pervasive” violations.

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“HR Horribles” — collect ’em all!

Posted in HR

Remember the Garbage Pail Kids from the ’80s? I have had an inspiration that will make my fortune! I’m going to create a set of collectible “HR Horribles”™ trading cards, representing the employees who make Human Resources professionals’ lives a living heck.

Here is my first set:


“Hey, baby!”

Randy Romeo. Romeo has never met a woman he didn’t like, especially if she reports to him, because that makes it easier for him to pressure her into situations that she shouldn’t be in, if you catch my drift. LOVES: Back rubs (to women while they’re trying to work), calling women “Dear,” one-on-one margaritas after work, rooms in tawdry motels that charge by the hour, and long walks on the beach. HATES: Prudes, “wet blankets,” other guys, harassment training, HR.

Angry Woman.flickrCC.PetrasGaglias

“Being miserable makes me happy.”

Disgruntled Dora. Dora has worked for the company for 20 years, and she’s hated every minute of it. Her co-workers are all idiots (and don’t even get her started on her boss), her pay is downright insulting when you really think about it, and her benefits are a disgrace. LOVES: To complain. HATES: Good cheer, co-workers, supervisors, her employer, the idea of taking the initiative to find a better job.


“C’mon . . . it was just a JOKE!”

Prankster Pauly. Pauly is a real card. The day he poured blackstrap molasses down Jake’s toolbox will go down in company history. You should have seen Jake trying to unstick his screwdriver when he needed to repair a machine that was down. Comedy gold! Sure, the boss was mad because Jake (really, Pauly) put the department behind on production and everybody had to come in on the weekend to make it up, but it was worth it. Plus, we got overtime. And then there was that time that Pauly went into the women’s restroom and locked all the stalls from the inside. Supposedly, one of the ladies in the plant actually had an “accident.” LOVES: A good joke, being the center of attention. HATES: Sticks in the mud, humorless people, Safety Department, HR.

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Weekly catch-up

Posted in Elections, Immigration, Only in California, Politics, Wage-Hour

President Trump has issued his new and improved “travel ban” Executive Order, which reduces the list of “banned” countries from the original seven to six (Iraq is now off the list), provides more of a rationale for banning foreign nationals from the six countries, makes exceptions Hot Dog Man.flickrCC.JeleneMorrisfor permanent legal residents and others, and otherwise addresses some of the issues that caused so many problems for the original order. Nonetheless, the state of Hawaii has already moved for a temporary restraining order that would stop the new rule from taking effect. (Hearing on the TRO is scheduled for Wednesday, March 15, at 3:30 p.m. EDT.) Will Krasnow and Jeanette Phelan from our Immigration Practice Group had a short “breaking news” bulletin the day that the EO was issued, followed by a more comprehensive review. You will want to read them both.

And employers with employees in California need to be aware of the Vaquero decision from the California Court of Appeals, Second District, which says that non-exempt commission employees must be paid separately for non-selling time and rest periods under California wage and hour law. Barbara Antonucci, a partner in our new San Francisco Office, has the details here. (Welcome to the firm, Barbara!)

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