Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

ABA Blawg 100: Please vote!

Posted in ABA Blawg 100, FOCUS

Now, this is bipartisanship! Both Hillary Clinton and Donald Trump agree . . . you should nominate Employment & Labor Insider for the 2016 ABA Blawg 100, sponsored by the American Bar Association.

Hillary Clinton caricature.flickrCC.DonkeyHotey

“I’m with her, and you should be, too! We’re stronger together. Vote for Employment & Labor Insider!”

And while you’re at it, please nominate FOCUS, our women’s leadership blog. (You can nominate more than one blog.)

Donald Trump caricature.flickrCC.DonkeyHotey

“It won’t take more than this much time out of your busy schedule. And, believe me, Employment & Labor Insider is amazing!”

You don’t have to be a lawyer to vote. Just go to the page here and make your nomination, along with a short statement about why you like us. We very much appreciate the support you’ve shown to Employment & Labor Insider in the past and would appreciate your vote again this year if you are so inclined. The deadline to submit nominations is Sunday, August 7.

Gary Johnson Vote for Me.flickrCC.GageSkidmore

“Nothing in this post should be considered an endorsement of any political candidate.”

Image Credits: From flickr, Creative Commons license. Caricatures of Hillary Clinton and Donald Trump by Donkey Hotey. Photo of Gary Johnson by Gage Skidmore.

Sex on TV: Final FAQs for employers about the Roger Ailes case

Posted in Harassment

Well, Gretchen is out, Roger is out, and Megyn is in. Your Magic 8-Ball is here to answer the sexual harassment questions that employers are dying to ask.

No. 1. I thought sexual harassment investigations were supposed to be confidential. Wasn’t it Magic 8-Ball 2.flickrCC.frankieleoninappropriate for all of the Fox on-air talent to be expressing their opinions in public about whether Roger Ailes did it or not? 

“Concentrate and ask again.” I hear what you’re saying, and in a normal employment setting, I would agree. But in this case, everyone was a big name, and Gretchen Carlson and her attorneys were the ones who went public with her allegations. Once they did, I think Mr. Ailes had a right to try to defend himself. So did the Fox people who had opinions (good or bad) based on their experience with him. But, yes, in normal circumstances — which these were not — everyone would be cautioned to keep things confidential, and any media inquiries should have been referred to a public relations person in consultation with the employer’s attorneys, or to the attorneys themselves.

No. 2. Couldn’t all these public defenses of Roger Ailes have a chilling effect on women who were thinking about coming forward?

“Reply hazy try again.” Certainly they might have. On the other hand, the public defenses of Mr. Ailes may have prompted more women to speak out in support of Ms. Carlson. Continue Reading

Weekly catch-up

Posted in Safety

The U.S. Department of Labor and U.S. Steel have settled their OSHA retaliation lawsuit over the suspension Hot Dog Man.flickrCC.JeleneMorrisof two employees who failed to comply with the company’s “Immediate Reporting Policy,” which required employees to report workplace injuries and illnesses . . . immediately. That’s nice, but it’s even nicer that the settlement, which is publicly available, includes a new injury-and-illness reporting policy that U.S. Steel agreed to adopt and, presumably, will pass muster under the Occupational Safety and Health Administration’s “Reasonable Reporting Procedure” Rule, which will take effect November 1. Our OSHA attorneys, as always, have the full story, including practical tips for employers.

(A few readers had trouble downloading the settlement agreement that is linked in the bulletin, so here it is again – I hope this one will work for you. The new, improved, OSHA-compliant policy is Exhibit A.)

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

3, 2, 1, blastoff! OFCCP Final Rule on sex discrimination is about to take effect

Posted in Affirmative Action, Discrimination, Gender Identity Discrimination, Harassment, Pregnancy
Sarah Phaff

Sarah Phaff

The OFCCP’s Final Rule on sex discrimination will take effect August 15. Are you ready?

On June 14, the Office of Federal Contract Compliance Programs issued its Final Rule on sex discrimination. These new substantive regulations align with the latest legal developments and interpretations by the Equal Employment Opportunity Commission. Cara Crotty, the head of our Affirmative Action/OFCCP Compliance Practice Group, has a great in-depth analysis of the changes, but here is a quick summary:

  • What is the purpose? The OFCCP wanted to update its guidelines and provide specific regulations to ensure that federal contractors do not discriminate against applicants or employees because of their sex.
  • What is the gist of the regulations? In the words of the OFCCP, the Final Rule provides “more accurate and relevant guidance to contractors than the [prior] guidelines,” which the OFCCP describes as “outdated,” and keeps pace with recent changes and legal interpretations regarding sex discrimination.
  • What are the protections provided? The Final Rule prohibits discrimination based on pregnancy, childbirth, and related medical conditions, and requires contractors to make workplace accommodations based on these conditions. It addresses equal pay and prohibits sex discrimination in pay and fringe benefits. The rule also prohibits sexual harassment, and disparate treatment based on stereotypical assumptions regarding caregiver responsibilities.
  • Does the Final Rule address LGBT status? Yes, to some degree. The rule prohibits discrimination based on sex stereotypes and gender identity. Consistent with guidance issued by the EEOC and the Occupational Safety and Health Administration, the OFCCP requires contractors to allow employees to use restrooms, changing rooms, showers, and similar facilities consistent with the gender with which the employees identify.

The OFCCP’s fact sheet regarding the Final Rule is available here.

Keep your eyes peeled for more OFCCP updates!

Hallelujah! 5 things about religion in the workplace that you may not have known

Posted in Discrimination, Harassment
Preacher 2.flickrCC.daliscar1

“Spread the good news!”

Our friends at the Equal Employment Opportunity Commission have issued a Fact Sheet for young workers on religious discrimination in the workplace, which brought me back to the EEOC’s older Q&A and Best Practices on religious discrimination, harassment, and accommodation.

The EEOC’s guidance is solid, reasonable, and consistent with most (if not all) of the court decisions that I’m aware of.

If you’re an employer, I recommend that you read both documents all the way through. But here are five things from the Q&A that you might not have known about Title VII and religion in the workplace:

Continue Reading

Password sharing and “head-slap hacks”: What employers can do

Posted in Data Privacy, eLaw

If you have ever wondered why your company’s data is not as secure as it should be, take a look in the mirror.

St. Louis Cardinals.MattHolliday.MattCarpenter.flickrCC.KeithAllison

“Matt, did you have any idea how easy it was to hack?” “No, Matt, I didn’t, but I do now that I’ve read this fantastic blog post!”

A study by the Ponemon Institute, commissioned by Experian and released in May, found that the majority of data breaches were not due to bad IT but due to bad employees who prey on unwitting or careless employees.

And it doesn’t take a computer science degree to be able to do some major damage.

The latest “regular-guy” hacker to be sent to prison is Chris Correa, formerly of the St. Louis Cardinals ball club, for hacking into the Houston Astros’ system. Last week, my colleagues Billy Hammel and Susan Bassford Wilson wrote about David Nosal, another regular-guy hacker.

The Astros and Nosal hacks were so low-tech that even I could pull them off. If I were that kind of person. Which I’m not. But anyway.

Astros Hack: “Ruh-roh, Reorge”

In Mr. Correa’s case, two employees left the Cardinals organization to go to work for the Houston Astros. Before they left, Mr. Correa told them to turn in their Cardinals-issued laptops and give him their passwords. Very routine stuff with departing employees.

Continue Reading

Weekly catch-up

Posted in FOCUS, Labor Relations

Labor relations go back to the future. Mel Haas and John Weltin of our Macon Office have the rundown on the Hot Dog Man.flickrCC.JeleneMorrisrecent decision by the National Labor Relations Board in Miller & Anderson, Inc. In that case, the Board found that an appropriate bargaining unit can include a mix of contingent workers who are jointly employed by a staffing agency and the primary employer, and the primary employer’s regular employees. The Board is rejecting the rule that has been in place since 2004 and going back to the rule from M.B. Sturges that applied before then.

Pretty in pink, or is your blouse shirt too blue? This week on FOCUS, our women’s leadership blog, Mallory Schneider Ricci of the Nashville Office has a meditation on the expectations for women lawyers. Whether or not you think women ought to be required to wear pantyhose to court, we have no doubt that you’ll find it funny and a great read.

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

NC “bathroom bill” – the latest developments

Posted in Employment at Will, Gender Identity Discrimination

It’s been a while since I’ve written about H.B. 2, the North Carolina “bathroom bill,” and I need to get with it.

Wrongful discharge claim based on discrimination is back. As we expected, on July 18, Gov. Pat McCrory signed into law H.B. 169, which amends H.B. 2 by restoring the cause of action for wrongful discharge in violation of public policy based on the North Carolina Equal Employment Practices Act. But the statute of limitations has been shortened from three years to one, running from the date of discharge.

Preliminary injunction hearing on H.B. 2 is set for August 1. The plaintiffs in one of the many lawsuits challenging H.B. 2 have moved for a preliminary injunction that would temporarily block H.B. 2 from being effective. The motion is scheduled to be heard in federal court in Greensboro on August 1. The assigned judge is Thomas Schroeder, who is very well respected. Bless his heart.

No basketball for N.C.! And, I just saw this evening that the NBA All-Star game will not take place in Charlotte, because of H.B. 2. Boo!

Ailes is out

Posted in Harassment

With only $60 million to call his own?

For my prior coverage of the Gretchen Carlson-Roger Ailes sexual harassment allegations, go here and here. Here is the Fox press release.

Reportedly Megyn Kelly and other Fox News women told an outside law firm that was investigating Ms. Carlson’s allegations that Mr. Ailes had behaved inappropriately with them, too.

I will have a wrap-up post soon.


Is the OFCCP’s take on the internet applicant rule outdated?

Posted in Affirmative Action

A recent Q & A from the “Workologist” column in the New York Times caught my eye.


Cara Crotty

The correspondent was asking how to ensure that a résumé submitted online actually gets reviewed by the hiring company.  That is a legitimate concern – after all, organizations are inundated with job seekers when positions are posted, and recruiters can’t always physically review every application.

It was Rob Walker’s response that piqued my interest:

Lots of employers now rely on computerized systems that scan résumés for particular terms as an initial step in (drastically) narrowing down which candidates they will consider.  “Résumé optimization” is jargon for what has become a routine practice among many job seekers:  creating – or “optimizing” – a résumé with this powerful, nonhuman audience in mind.

From a practical point of view, of course employers should be using whatever technology is available to ensure that the best candidates go to the top of the stack.  Why wouldn’t a rational employer implement such time-saving and “optimizing” resources?

But if the employer is a federal contractor, this kind of technology could land it in hot water during a compliance review by the Office of Federal Contract Compliance Programs.

Continue Reading