Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

6 ways employers sink their own ships

Posted in HR

It’s not always the employee’s fault when things go bad for an employer. Sometimes the employer has no one to blame but itself. Here are six of the most common ways employers sink their own ships.

No. 1: Pointless workplace rules that just make employees mad. I can’t take credit for this one — I got the idea from this article that recently appeared in Forbes. I don’t agree with the author 100 percent, but I adamantly agree with her on some of them, especially requiring an employee to bring a doctor’s note whenever he is out sick (not requesting leave under the Family and Medical Leave Act, not requesting a reasonable accommodation for a disability, but just “out sick”). Also, amen to No. 5 in the Forbes article.

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Weekly catch-up

Posted in Immigration, Only in California

California Streamin’. Gov. Jerry Brown has either signed into law or allowed to take effect a torrent of new employment laws that will take effect January 1. Nestor Barrero of our LA-Century City Office has a summary of the significant ones, with recommendations for employers with operations there. Check it out!

Travel Ban 3 has been blocked. First, a federal court in Hawaii blocked President Trump’s September 24 travel ban Proclamation, which replaced the travel ban Executive Order that he issued on March 6 (“Travel Ban 2”). Then, before the ink was dry on Will Krasnow’s excellent Immigration Dispatch on the Hawaii injunction, a federal judge in Maryland did likewise. Both injunctions affect the ban only as it applies to Muslim-majority nations. And, of course, the Administration is sure to appeal.

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

Eight takes on sexual harassment and Harvey Weinstein

Posted in Harassment, HR, Sexual Torts

Words fail me. Let’s just say that I hope he is sincere about getting the help he needs to turn his life around.

Which, among other things, should include trying to make some form of restitution to his alleged victims. (None of this ridiculous “atonement by fighting the NRA.”)

There are more Weinstein stories than I can link to, but here are the two original sources: The article by Jodi Kantor and Megan Twohey in The New York Times is here, and Ronan Farrow’s excellent and very disturbing article in The New Yorker is here.

Mr. Weinstein, through a spokesperson, has denied engaging in any non-consensual sexual relations or retaliating against anyone who refused his advances. The full denial is in the video, below.

Here are my eight takes from an employment law and Human Resources perspective:

No. 1: “Quid pro quo” harassment is just a fancy word for extortion — where the prize is sex, instead of money or property. When an employer threatens to terminate (or otherwise punish) an employee for refusing sexual advances, or promises to hire (or otherwise reward) her for participating, then that is extortion. (I’m using “she” and “her” for convenience, but men can be victims, too.) In the ordinary employment context, an employer is strictly (automatically) liable if a supervisor or manager engages in this type of harassment.

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Weekly catch-up

Posted in Immigration

Trump’s travel ban scores one with the SCOTUS. This week, in a victory for the Trump Administration, the U.S. Supreme Court dismissed as moot one of the two pending challenges to the March 6 travel ban issued by the Administration and vacated the lower court decision striking down the ban. (That March 6 travel ban has since been replaced by a September 24 travel ban.) Will Krasnow of our Boston Office has more, with links to the order and the history, in this Immigration Dispatch.

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

Courts uphold law enforcement officer’s discharge for racially insensitive posts

Posted in First Amendment, Public Sector Employment, Social media

The freedom of speech afforded by the First Amendment is remarkably broad. Several categories of speech, including even “hate speech,” are afforded varying degrees of protection.

However, the freedom of speech guaranteed by the First Amendment is not without limits, even for public sector employees. Governmental employees who voice their opinions — even on matters of legitimate public concern – are well served to choose their words, as well as the times and forums in which they communicate those words, very carefully.

Just ask Michael Todd Snipes, a former law enforcement captain for the Beach Safety and Ocean Rescue Department in Volusia County, Florida. Capt. Snipes was fired for making racially insensitive comments on his Facebook page and in group text messages sent to several of his fellow officers.

In freedom of speech cases, the context in which a thought or idea is communicated often matters a great deal. Although there is never a good time to make racially insensitive remarks, Capt. Snipes’ timing was particularly ill-considered.

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The ADA: Four issues to watch in 2018

Posted in Affordable Care Act, Americans with Disabilities Act, Discrimination, Family and Medical Leave Act, GINA, Pregnancy

Last month, I had the pleasure of speaking to the Federal Bar Association about hot topics under the Americans with Disabilities Act with my blogging buddy Bill Goren, proprietor of the Understanding the ADA blog. If you haven’t visited Bill’s blog, you should — he covers all aspects of the ADA, including Titles II and III, as well as the employment provisions (Title I).

Here are four ADA (or ADA-related) areas that employers need to watch in the coming year:

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Title VII does not ban gender identity discrimination, DOJ says

Posted in Discrimination, Gender Identity Discrimination, Politics, Sexual Orientation

Asserting that the U.S. Department of Justice “must interpret Title VII as written by Congress,” the DOJ is reversing the Obama-era interpretation of Title VII, taking the position that Title VII does not prohibit discrimination based on gender identity.

In a memorandum issued this week by Attorney General Jeff Sessions, the DOJ formally withdrew a 2014 memorandum by then-Attorney General Eric Holder taking the contrary position.

Attorney General Sessions contends that transgender individuals are protected from discrimination based on sex, but not based on “gender identity per se.” He noted that Title VII refers only to discrimination based on “sex,” which is “ordinarily defined to mean biologically male or female.” He also noted that Congress had specifically referred to gender identity in other contexts, indicating that it would have done so in Title VII had that been its intent. Finally, he said that Title VII did not prohibit treatment “that [took] account of the sex of employees but [did] not impose different burdens on similarly situated members of each sex,” specifically referencing sex-specific bathrooms.

The memorandum concludes as follows:

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections. Nor does this memorandum remove or reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII. . . . The Department of Justice has vigorously enforced [federal laws specifically protecting transgender individuals], and will continue to do so, on behalf of all Americans, including transgender Americans.

The DOJ position is not a surprise, given that it recently submitted a “friend of the court” brief making roughly the same arguments in a sexual orientation discrimination case.