Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

OFCCP, Google awaiting a decision

Posted in Affirmative Action, Discrimination, Equal Pay

The hearing on the lawsuit filed by the Office of Federal Contract Compliance ProgramsKMS against Google concluded on Friday, May 26, in San Francisco. As I’ve reported here, here, and here, the OFCCP is seeking historical pay data as well as names and contact information of approximately 21,000 employees.

The OFCCP believes that Google has “systemic compensation disparities against women.” Google denies any discrimination, and says that the OFCCP’s request is overbroad to the point of violating the Fourth Amendment prohibitions against unreasonable searches – in addition to violating the privacy rights of the employees.

It appears that the OFCCP may be focusing on Google’s alleged use of salary history in making compensation decisions. Frank Wagner, Google’s director of compensation, testified that Google does not consider salary history in making compensation decisions, but he reportedly acknowledged that Google does ask for the information and will sometimes offer more in certain economic “perks” – including sign-on bonuses or stock options – based on what the candidate was getting in his or her former position.

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In honor of Father’s Day, a look at paid parental leave

Posted in Paid Leave
photo 2

My dad and me . . . a VERY long time ago!

Happy Father’s Day to all of our readers who are dads, who have dads, or who love one or more dads.

As most of our readers know, there has been a movement — for which most of the credit goes to Ivanka Trump — to get some type of paid leave for new parents. The original proposal advanced by President Trump when he was a candidate was for six weeks of paid maternity leave. Presumably, the idea was that this would coincide with the period of actual postpartum medical disability for mothers.

But now the Trump proposal includes fathers, and it will also include new parents by adoption.

The restriction to mothers was criticized on a number of grounds, some without merit and some with. Among the meritless criticisms in my opinion was that exclusion of fathers would somehow violate equal protection under the law. Because mothers have actual biological limitations during the first six weeks after childbirth that fathers don’t have, I do not consider this concern to be well founded. However, there are other arguments that do have merit — most significantly, the need for fathers as well as mothers to bond with their babies (good for the dads, good for the moms, good for the babies, and good for society at large — can’t miss!), and the fear that paid leave for mothers but not fathers could perversely result in employment discrimination against women — because they’d be too expensive to hire relative to men.

A study indicates that new mothers “are damned if they do and damned if they don’t take maternity leave,” as reported in the New York Post. Women who take maternity leave are viewed as “‘significantly less competent’ and ‘less worthy of rewards'” on the job. Although new moms who don’t take maternity leave don’t have this problem, they are viewed as lousy mothers.

The study, conducted by professors at New York University and the University of Exeter in the United Kingdom, was reported in the May 31 edition of the Journal of Experimental Social Psychology.

Recently, the conservative-leaning American Enterprise Institute and the liberal-leaning Brookings Institution issued a joint report on the various leave proposals and made some recommendations. Ivanka seems to be giving the proposal her seal of approval, if this tweet is any indication:

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There aren’t many specifics, but here is what AEI-Brookings proposal looks like right now:

Eight weeks, for both moms and dads. Mothers and fathers, birth or adoptive, would be entitled to a total of eight weeks’ paid leave. The leave would be available to employees of small employers as well as employees of larger employers. Employers would be free to offer additional weeks.

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Weekly catch-up

Posted in Immigration, Labor Relations, Politics, Wage-Hour

And may it die quickly. The U.S. Department of Labor has taken formal regulatory action to rescind the Obama Administration’s “Persuader Rule.” The DOL has been enjoined from enforcing the rule since November 2016, but the latest action will presumably end it for Hot Dog Man.flickrCC.JeleneMorrisgood. Let’s hope. David Phippen of our Washington DC Metro Office has the details in this Client Bulletin.

Mayor de Blasio signs NYC’s “Fair Work Week” legislation. The package of laws imposes fairly stringent scheduling and other requirements on retail and fast food employers in New York City. Jim Coleman, co-chair of our Wage and Hour Practice Group, takes a comprehensive look at the new laws, which will take effect on November 26.

“Extreme vetting” by any means necessary. The Trump Administration has issued a new, lengthy visa questionnaire that is expected to be used with approximately 65,000 individuals seeking to enter the country. According to the Administration, the questionnaire will be used with  “immigrant and nonimmigrant visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities.” Jeanette Phelan of our Immigration Practice Group says that the questionnaire “may be more effective than the travel ban at deterring immigration to the United States.”

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

Satanic band is the Diet Coke of evil, employment lawsuit shows

Posted in Lawyers!, Settlements

Just one calorie – not evil enough.

Satanic heavy-metal band Ghost is at risk of having its “evil mystique” ruined by some mundane employment-related disputes with former members of the band, according to an article in The Wall Street Journal. Since WSJ articles are behind a paywall, here is an excerpt:

Ghost, a Swedish heavy-metal band, built a cult following over a decade using demonic pageantry and rhyming lyrics like “hypnotizing horns of ram” and “paralyzing pentagram.”

A Nameless Ghoul

Band members perform in eerie masks and keep their identities secret, adding to the group’s mystique.

It all worked like a charm—until a recent lawsuit unmasked the satanic musicians as a bunch of earthly beings. In court papers and other documents, band members discuss such pedestrian matters as salaries, tour buses, laundry arrangements and how concert venues should prepare the bananas in their backstage spread.

“Don’t put any fast food under our noses,” the band tells venues.


Four Nameless Ghouls are now suing Papa—a 36-year-old whose real name is Tobias Forge —in a Swedish court. They have accused him of financially shortchanging them and reneging on an agreement to make them partners and distribute the band’s profits equally.

The suit identified all the band’s members and has divided fans world-wide. Some have pored over the court documents and soaked up the behind-the-scenes details, while others resent the revelations for ruining Ghost’s spooky image. The dispute “really messed up the whole mythos of the band,” one fan complained online. “The lawsuit reduces them all to boring, flawed people.”

It reminds me of this old Far Side cartoon.

And this:

Maybe Papa should have settled the case to preserve the band’s evil reputation. The agreement could contain a disparagement clause and an admission of liability.

Unconfirmed complaints may be enough to trigger an early OFCCP audit

Posted in Affirmative Action

Can a year-old rumor be enough to bring the OFCCP running? One administrative law judge says it can. Judge Lystra Harris recently ruled that, because of an oral complaint of discrimination, Mega Construction Project subcontractor Baker DC, LLC, must allow an earlyAlyssa Peters on-site by the Office of Federal Contract Compliance Programs.

To understand the problematic nature of the ruling, let’s first look at the ground rules. The Fourth Amendment to the U.S. Constitution prevents the OFCCP, as a federal investigatory agency, from conducting a “search” (or in this case an audit) without probable cause. According to the U.S. Court of Appeals for the Fifth Circuit, for an audit to be reasonable, the OFCCP must show either (1) specific evidence of an existing violation, (2) reasonable legislative or administrative standards for conducting the search that have been met with respect to the particular contractor, or (3) an administrative plan containing specific neutral criteria justifying the search.

In the case of Mega Construction contractors, “specific neutral criteria” is generally a given because it is virtually written into the OFCCP’s Mega Construction Project Program. That is, if the construction project receiving federal funds is worth more than $25 million and lasts longer than one year, the contractor can participate in the MCP, in which the OFCCP provides compliance assistance with equal employment opportunity requirements. But this “assistance” subjects all eligible contractors to auditing by the OFCCP after at least three months of work on a Mega project. According to the OFCCP testimony at the Baker trial, subcontractors are normally scheduled for audits in the order in which they reach the three-month milestone. Seems pretty neutral to me.

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Can you fire an employee for off-duty misconduct? You betcha!

Posted in Off-Duty Conduct

Every now and then, I am told that it’s unfair for employers to take action against employees Rocky Balboawho misbehave off duty.

“No it isn’t,” I reply.

Although I wouldn’t recommend firing everybody who gets in trouble away from work and outside work hours, sometimes the behavior is so awful that you just have to.

Exhibit A: Colleen Campbell, former news production employee and occasional reporter for WPHL17 in Philadelphia. On Sunday night, while she was still employed, Ms. Campbell went to a comedy club and allegedly was whispering really loudly during a comic’s routine. After being told several times to keep it down, she was asked to leave the club and allegedly assaulted the staff as she was on her way out the door.

It gets worse.

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Weekly catch-up

Posted in Franchise, Independent Contractor, Politics, Wage-Hour

Trump DOL removes Obama DOL guidance on independent contractors, joint employment. On Wednesday, Secretary of Labor Alexander Acosta removed two Hot Dog Man.flickrCC.JeleneMorrisAdministrator’s Interpretations on independent contractors and joint employment issued during the Obama Administration. Here is our Client Bulletin, which I wrote with Jim Coleman, co-chair of our Wage and Hour Practice Group. The quick and dirty: this is a hopeful sign for employers, but don’t be expecting radical changes in the DOL’s position on these issues.

Are franchisors liable for their franchisees’ alleged violations of the Massachusetts Tips Act? It’s going to depend on the situation, but a court in Massachusetts recently ruled that a franchisor was not liable for an “administrative fee” where the franchisor did not require the fee, did not control where the fee income went, and received payment only from the franchisee’s general revenues. Jeff Rosin, head of our Franchise Industry Group, and Ellen Kearns, head of our Boston Office and co-chair of our Wage and Hour Practice Group, have a comprehensive discussion of the legal issues here.

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

Is the overtime rule still alive, after all?

Posted in Class actions, Politics, Wage-Hour

On November 23, 2016, we issued a Client Bulletin titled “Employers Can Breathe A Sigh of Relief Come December 1: Court strikes down overtime rule.”  But a new lawsuit in federal court in NewEllen Kearns Jersey puts a gulp in that sigh of relief.


As previously reported, regulations that would have more than doubled the salary threshold for Administrative, Executive and Professional exemptions were scheduled to take effect on December 1, 2016, while President Obama was still in office. On November 22, 2016, eight days before the effective date, a district court judge in Sherman, Texas, issued a nationwide injunction prohibiting the U.S. Department of Labor from “implementing and enforcing [the new regulations].” On December 1, 2016, the DOL appealed to the U.S. Court of Appeals for the Fifth Circuit.  After President Trump took office in January, the Fifth Circuit stayed the appeal at the request of the Trump DOL until June 30 to allow the Trump Administration’s labor secretary to be confirmed. (Secretary of Labor Alexander Acosta was confirmed by the Senate on April 27.)

Alvarez v. Chipotle Mexican Grill, Inc.

This past Wednesday, managers and other exempt employees at Chipotle restaurants in New Jersey filed a class and collective action in federal court, claiming that the company failed to comply with the overtime regulations by failing to pay exempt workers at least $47,476 a year (they also assert claims under the New Jersey Wage and Hour Law). The employees argued that, despite the ruling in Texas, private employers were still required to comply with the overtime regulations because the preliminary injunction applied only to state government employers. (The Texas lawsuit was brought by 21 states on behalf of state employers and not private companies.) The plaintiffs contend that they are owed overtime for all hours worked in excess of 40 hours a week since December 1, 2016.


Is this lawsuit unhinged?

Plaintiffs’ attorney Joseph Sellers was quoted in Bloomberg BNA’s Daily Labor Report as saying that Chipotle wasn’t the only employer “to avoid paying overtime to its employees by illegally hiding behind a rule that doesn’t apply to them.” He added, “this case could benefit millions of hard-working Americans who are being denied money that they’ve earned.”

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Pros and cons of the proposed EEOC-OFCCP merger

Posted in Affirmative Action, Discrimination, Politics

President Donald Trump has proposed to merge two of the primary government agencies focused on equal employment in the workplace – the Equal Employment OpportunityAngelique Lyons Commission and the Office of Federal Contract Compliance Programs.  Robin has discussed this proposed merger here, here, and here.

She’s asked for input from the Affirmative Action team, so here it is.

The President’s proposed line-item budget calls for the merging of these two agencies by the end of fiscal year 2018.

The EEOC. The EEOC is charged with investigating alleged violations of Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Genetic Information Nondiscrimination Act, and the Equal Pay Act. “Protected categories” within the scope of the EEOC’s authority are race, sex (including pregnancy), national origin, religion, color, age, disability, and genetic status. The EEO laws typically apply to employers with a minimum number of employees, regardless of their federal contractor status. The EEOC does not have the authority to issue fines or citations, and can enforce violations only through the court system. The EEOC’s current budget is approximately $364 million.

The OFCCP. The OFCCP, on the other hand, seeks to enforce Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act, and Section 503 of the Rehabilitation Act. The protected categories for which affirmative action is required include race, color, national origin, sex, disability, and protected veteran status. The OFCCP also enforces anti-discrimination prohibitions based on all of those protected categories plus religion, sexual orientation and gender identity. The affirmative action laws apply to certain federal contractors and subcontractors, most typically those with at least 50 employees. The OFCCP can penalize non-compliance through the use of fines and other measures. The OFCCP’s current budget is approximately $105 million.

Is a merger possible?  Back in March, the President signed an Executive Order intended to improve the efficiency, effectiveness and accountability of the executive branch of government, and to eliminate or consolidate unnecessary agencies. In that same vein, the proposed budget submitted by President Trump suggests a merger in which the OFCCP would be subsumed into the EEOC, with the result being one agency and one budget. But it’s not a matter of simply combining the budgets of the two agencies. In order for a merger to happen, Congress would have to transfer enforcement authority under the Rehabilitation Act and the VEVRAA from the Secretary of Labor to the EEOC. (This has happened before. During the Carter Administration, Congress passed legislation authorizing the Administration to move enforcement of the ADEA and the EPA from Labor’s Wage and Hour Division to the EEOC.)

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Gender dysphoria: Is it an ADA-protected disability?

Posted in Americans with Disabilities Act, Gender Identity Discrimination

As our readers know, discrimination against transgender individuals is often treated as sex discrimination under Title VII, as a form of unlawful “sex stereotyping.”

But is it also a “disability” within the meaning of the Americans with Disabilities Act when an individual identifies with a gender other than his or her biological one?

Caitlin Jenner.flickrCC.MikeMozart

Transgender individuals don’t usually invoke the ADA, presumably because they don’t consider themselves to be “disabled.” But more importantly from a legal standpoint, the ADA specifically excludes gender identity disorder as a “disability” within the meaning of the law.

Section 12211 of the ADA contains a number of exclusions, including homosexuality and bisexuality (on the ground that they are not “impairments” at all).

Then it goes on to exclude “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.” (Emphasis added.)

“Transsexualism” and “gender identity disorders not resulting from physical impairments” seem to be 1990s-era terms for the state of being what we call today “transgender.” And based on the other conditions that “transsexualism” and “gender identity disorders” are grouped with, it appears that in 1990 Congress considered these to be anti-social behaviors like peeping, child molestation, compulsive stealing, and compulsively setting things on fire.

(What can I say? 1990 was a long time ago.)

Be that as it may, based on the plain language of Section 12211, I would have believed that an individual with a gender identity disorder not resulting from a physical condition (what we now call “gender dysphoria”) was excluded from ADA protection.

But in Blatt v. Cabela’s, Inc., a federal judge in Pennsylvania found that the plaintiff’s gender dysphoria could be an ADA-protected condition, despite the exclusion in Section 12211.

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