Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Trump’s EEOC nominations are rocking along – and here’s what we can expect

Posted in Americans with Disabilities Act, Discrimination, Equal Pay, Gender Identity Discrimination, Genetic Information Non-Discrimination Act, GINA, Labor Relations, Politics, Sexual Orientation

With President Trump in office for nine months now, it is hard to believe that none of his people are yet on the Equal Employment Opportunity Commission. The four current Commissioners, including the Acting Chair, Republican Victoria Lipnic, and former Chair Jenny Yang, were all appointed by President Obama.

But that may change soon. The Senate Health, Education, Labor and Pensions Committee held hearings this week on the nominations of Janet Dhillon for EEOC Chair and Daniel Gade for EEOC Commissioner.

(The Senate confirmation vote for William Emanuel, whose nomination as a Member of the National Labor Relations Board has been pending for quite some time, is expected to take place imminently.)

Here’s what we have learned about Ms. Dhillon and Dr. Gade from this week’s HELP Committee testimony, according to an article in Bloomberg BNA’s Daily Labor Report:

Continue Reading

Employers, I’m on your side — so watch out! ;-)

Posted in HR, Lawyers!

At a client seminar that my office presented during the very contentious 2016 campaign season, my law partner John Doyle delivered an introductory disclaimer. Although I may not have his words verbatim, I will never forget the message, which was as follows:

The only thing we’re partisan about is employers. That’s it.

It was a great way to dispel the perception that we were being politically partisan while we had to discuss the positive and negative impacts of the candidates’ proposals on employment law issues.

This morning, I got a comment from the plaintiff in an age discrimination lawsuit that I referenced last year, based on an article that had appeared in The Washington Post. Here’s what the plaintiff, Dale Kleber, said to me:

Well, Robin, I was surprised that although you have formal legal training, the article you wrote contains so many factual assumptions that simply are false. I suspect that your firm primarily represents defendant employers and your “analysis” is tainted with the bias of economic self-interest. In the near future, I expect to obtain an objective review of my case from the the Seventh Circuit. Your article, devoid as it is of even the most basic factual or legal analysis is simply an editorial masquerading as a legal newsletter. But perhaps that is what your clients want to hear.

I admit I did not think Mr. Kleber was a victim of age discrimination based on the information in the WaPo article, and I admit that I said so. Reading between the lines on his comment, it appeared to me that he had lost his case (since he was hoping to be vindicated on appeal), but I read the court filings today and it’s more complicated than that. (I’ll have a separate blog post about the merits of Mr. Kleber’s lawsuit, which I think is pretty interesting.)

As far as writing “editorials” on this blog, I plead guilty. This ain’t, after all, The New York Times.

I also admit that I and my firm represent employers, and that we are always on the employers’ side.

But what I’d really like to talk about is what it means to be “on the employers’ side,” or, as John says, “partisan” on behalf of employers.

Continue Reading

OFCCP offers more hurricane relief

Posted in Affirmative Action

On the heels of the exemption for Hurricane Harvey contractors, and given the additional widespread destruction caused by Hurricane Irma, the federal government has extended a deadline affecting federal contractors and subcontractors.

VETS-4212

The VETS-4212 report, which contractors must file annually between August 1 and September 30, has been extended this year for all contractors, regardless of location.  The Veterans’ Employment and Training Service posted on its website that contractors and subcontractors who file their VETS-4212 reports by November 15 will be considered timely.  This one-time, 45-day extension is due to the needs of those affected by the recent hurricanes.

HURRICANE IRMA NATIONAL INTEREST EXEMPTION FOR NEW CONTRACTS

As it did for Hurricane Harvey contractors previously, on September 7, the Office of Federal Contract Compliance Programs issued a another National Interest Exemption Memorandum providing a three-month exemption on preparing written affirmative action plans for a very specific group of contractors and subcontractors.

According to the FAQs, the exemption applies only to contractors who have signed or will sign a new supply and service or construction contract between September 1 and December 1, 2017, solely for the “specific purpose of providing Hurricane Irma relief” and who do not otherwise have to comply with the regulations.

Does this apply to everyone who has a contract to provide hurricane relief? 

No. The exemption applies only to those companies that become covered contractors by virtue of a new contract aimed solely at providing Irma relief.

Who is not covered?

Any contractor that is required to comply with the regulations based on a non-Irma relief contract (whether that contract be old or new).

Continue Reading

BREAKING: Trump nominates Peter Robb as NLRB General Counsel

Posted in Labor Relations

Law360 just reported that President Trump, as expected, has nominated Peter Robb of Downs Rachlin Martin PLLC to be General Counsel for the National Labor Relations Board. If confirmed by the Senate, Mr. Robb will succeed current General Counsel Richard Griffin, whose term will expire October 31.

I posted here about Mr. Robb not too long ago.

According to the Law360 article, the Senate vote on President Trump’s remaining NLRB nominee, William Emanuel, could be imminent, but now the President will have to find one more nominee — to succeed Republican Chairman Philip Miscimarra, who will be stepping down when his term expires in December.

Employment law quiz: Bizarro edition

Posted in Discrimination, First Amendment, Harassment, Labor Relations, Lawyers!, Retaliation

Has the world gone crazy?

A. No.

B. Yes.

C. The word “crazy” is a microaggression.

ANSWER: B.

Welcome to our world!

See how you do with these guaranteed true news items from the last week, all relating to employment law. Then tell me whether you agree that we are living in some crazy times. YCMTSU.*

*You Can’t Make This Stuff Up. (I think this cliche has earned an internet acronym, don’t you? Maybe it already had one.)

Question 1: The City of Everett, Washington, recently enacted ordinances that, among other things, required workers in the city limits to wear at least a tank top and shorts to work (their employers would be subject to penalties for requiring them to wear less than that). Some local bikini baristas did the following in response:

Continue Reading

Weekly catch-up

Posted in Immigration

All immigration, all the time! Will Krasnow of our Boston Office has been working overtime in following the latest developments, and explaining what they mean for employers. Last Friday, he had this Immigration Dispatch on the end of the Deferred Action on Childhood Arrivals under President Trump. (But is the President now close to a DACA deal with the Dems? Could be.) And yesterday, Will had another on the Supreme Court’s temporary stay of an injunction against the Administration’s refugee ban. (A “stay of an injunction of a ban” — triple negative, yay! — means that the Administration can continue, for the time being, to block certain refugees from coming into the United States.) Oral argument on the legal challenge to the President’s March 6 revised travel ban is scheduled for October 10, with a final decision to follow.

Will, thank you for keeping us all up to speed!

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

LabCorp settles with OFCCP for alleged bias in hiring and compensation

Posted in Affirmative Action, Discrimination, Equal Pay, Settlements

Laboratory Corporation of America has agreed to pay approximately $200,000 to resolve a matter with Office of Federal Contract Compliance Programs. According to the Conciliation Agreement between the parties, the OFCCP found statistically significant adverse impact against females in the selection process for Lab Assistant and that Asians were paid less than similarly situated non-Asian White employees in the Lab Assistant position.

The alleged hiring discrimination resulted in a shortfall of only two females, and the amount of statistical significance was redacted from the Conciliation Agreement posted online by the OFCCP.  To resolve this claim, LabCorp will distribute more than $51,000 to the affected class of female applicants. In addition, the company agreed to revise its selection process, “including the criteria used in each step of the hiring process, any application screens, interviews, tests, credit checks, review of criminal history, reference checks, testing, or other selection procedure;” to review and revise the job description for Lab Assistant “to minimize the potential for gender stereotyping”; and to list the minimum requirements for the Lab Assistant position on all job postings.

To resolve the allegations of compensation discrimination, LabCorp will pay almost $150,000 to Asian Lab Assistants who were allegedly paid less than their White counterparts, even after controlling for legitimate, non-discriminatory factors. In addition, the company must conduct its own regression analysis in six months, and if it reveals statistically significant adverse impact against Asians, LabCorp has agreed to increase their salaries.

Of course, LabCorp’s settlement with the agency is not an admission of liability or wrongdoing.

Are the OFCCP and the EEOC merging? Signs point to “No.”

Posted in Affirmative Action, Discrimination, Politics

Based on a recent Senate appropriations bill, it appears that the Trump Administration’s plan to merge the Equal Employment Opportunity Commission with the Office of Federal Contract Compliance Programs has stalled. The Senate bill would fund the OFCCP for Fiscal Year 2018 at approximately $103.5 million, which is more than the House’s proposed funding of $94.5 million. Congress would not be proposing funds for the agency if it planned to eliminate it.

This legislative action follows a letter from Acting OFCCP Director Thomas Dowd to the Institute for Workplace Equality on August 24, “acknowledg[ing] that the consolidation proposal includes several challenging transition issues.” Although Mr. Dowd did not expressly state that merger plans were on ice, he noted that any consolidation was unlikely to occur until Fiscal Year 2019 and that the agency would focus on “contemporaneous opportunities to improve effectiveness and efficiency.”

Perhaps Congress is listening to its constituents. The proposed merger was opposed by both civil rights advocacy groups and employer organizations, and my colleague Angelique Lyons cogently summarized the pros and cons here.

We will continue to monitor this issue for further developments.

Image Credit: From flickr, Creative Commons license, by frankie leon.

Second-guessing the advice columns: Bad HR practices aren’t necessarily illegal.

Posted in Discrimination, HR, Lawyers!, Wage-Hour, Workers' Compensation

Nothing in this blog post shall be construed as legal advice.

It’s been a while since I’ve picked on an advice columnist for leading readers astray on employment law, but we have one, from the usually-sound Work Advice column by Karla Miller of The Washington Post.

The letter writer complains that her employer is going to start evaluating employees based in part on their participation in company-sponsored “social” functions, “such as picnics and athletic events,” and how much they schmooze with management.

First off, although I wouldn’t favor a policy like this, it doesn’t strike me as outrageously bad, as long as it isn’t taken to extremes. I can see how an employer might want to encourage, or even insist upon, some level of interaction among employees, and between employees and their managers.

But for the sake of argument, let’s say it’s a horrible policy. Stupid, coercive, and counterproductive.

Is it illegal? Nah.

Is there any scenario, no matter how remote, in which an employer could violate the law based on such a policy? Of course. This is America!

Continue Reading