Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Judge Blocks U.S. Department of Labor “Persuader Rule”

Posted in Labor Relations

U.S. District Court Judge Sam R. Cummings in Lubbock, Texas, has issued a preliminary injunction, which blocks the U.S. Department of Labor’s “Persuader Rule” from going into effect on Friday. I have not had a chance to read the decision yet, but here it is. This is great news for employers. Many thanks to my law partner, Mel Haas, who had the inside scoop and shared it with the rest of us!

We’ll have more as soon as we’ve had a chance to read, analyze, and savor.


School’s out! So what’s with this summer employment law quiz?

Posted in Americans with Disabilities Act, Discrimination, Gender Identity Discrimination

No more pencils, no more books, no more teacher’s dirty looks . . . except for one little quiz on employment law issues that come up during the summer.

Don’t worry about your score – I’m told that Teacher already has her flip-flops packed and is on her way to Cancun.

No. 1. You are the office manager for a conservative accounting firm. Now that the weather is getting warmer, you are having a problem with some womenMan in Skirt.flickrCC.WilPharma wearing skimpy sundresses with insufficient “foundations.” You are not having this problem with your male employees. What can you do?

A. Tell the women to stop dressing like floozies. Then, document it, because you know what they say: “Document, document, document!”

B. Issue a dress code that spells out in detail the requirements for men and women, including that men must wear suits and ties, and that women must wear dresses or skirts, or tailored pants and blouses with sleeves, or a sweater that covers their arms, and pantyhose, and heels. And everyone has to wear gender-appropriate underwear, which for women includes bras, panties, and slips if the dresses are thin.

C. Issue a dress code that says all employees are expected to wear appropriate business attire and that arms and chests should not be “exposed.”

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Your summer labor and employment reading list — for this week, anyway

Posted in Affirmative Action, Discrimination, FOCUS, Gender Identity Discrimination, Labor Relations, Pregnancy

I was on vacation last week, and so we have a lot of catching up to do. Here’s what’s been going on, from most to least recent:


I had pressing legal business last week.

*David Phippen has been keeping us up to date on the U.S. Department of Labor’s Persuader Rule and what that will mean for employers. On Wednesday, a federal judge in Minnesota refused to preliminarily block enforcement of the rule. There are two other challenges pending — in federal courts in Arkansas and Texas — but if someone doesn’t block the rule, it will take effect next Friday, July 1. For background on the rule, see David’s article from last week.

*Amy Beth Dambeck of our Princeton Office has an excellent analysis of the New Jersey Supreme Court’s decision in Rodriguez v. Raymours Furniture, holding that an employer can’t contractually shorten the statute of limitations for claims brought under the state Law Against Discrimination.

*Cara Crotty, head of our Affirmative Action Practice Group, has everything you need to know about the new sex discrimination rule issued last week by the Office of Federal Contract Compliance Programs. The updated rule contains provisions regarding pregnancy and transgender discrimination, similar to the guidance that has already been issued by the Equal Employment Opportunity Commission.

woman in hammock.flickrCC.CristianBortes

Please, please, no new Persuader Rule developments until Monday!

*Last, but never least, be sure to visit FOCUS, our women’s leadership blog, for Heather Owen’s tribute to Miss USA winner Deshauna Barber, the first winner of the pageant who is an active member of the U.S. military.

Image Credits: Photo of beach at Nags Head, North Carolina, by me, last week. Woman praying in hammock from flickr, Creative Commons license, by Cristian Bortes.

The “duty to conciliate” doesn’t mean the EEOC has to be reasonable.

Posted in Discrimination, Settlements

The winner, and still champion!

Just how much of a duty to conciliate does the Equal Employment Opportunity Commission have after the Supreme Court’s decision last year in Mach Mining?

Hardly any, it appears.

In Mach Mining, the Supreme Court decided that courts did have the authority to review the agency’s conciliation efforts (which caused employers to claim it as an “employer’s victory”) but said that the scope of the review was very limited (which caused the EEOC to claim it as a victory).

As it’s shaping up in the lower courts now, it appears that Mach Mining may have been more of a “win” for the EEOC than for employers.

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FLSA morale nightmare: Dealing with the “new non-exempt”

Posted in Wage-Hour

“C’mon! I was on a roll!”

My first job out of college was as a non-exempt clerical, and I wasn’t a very “good fit.” The work aside, I chafed at the rigid rules about start times-stop times-breaks-lunch hours-quitting times. If there was some work that I wanted to finish up and it was “lunch time,” I couldn’t take the extra 15 minutes needed to get it done. I had to stop right then and there, and go to lunch, or at least stop working. I couldn’t start early or stay late, even if I was on a roll.

Well, come December 1, you can take my experience and multiply it by 4.2 million, the number of currently exempt workers in the United States who, according to the Obama Administration, will now become non-exempt under the Final Rule on white-collar exemptions under the Fair Labor Standards Act.

But isn’t becoming non-exempt a good thing? Because now these workers will get overtime whenever they work more than 40 hours in a week?

Yes, they will be eligible for overtime, but that won’t not necessarily be viewed as a net “positive.” Studies have shown that many exempt employees who are reclassified to non-exempt view it as a negative change in status equivalent to a demotion. Some may have cuts in their rates of pay to allow the employer to pay overtime without paying more in real dollars. Some may be prohibited from working overtime — in other words, getting all the “penalty” (loss of status) and no reward (overtime pay). Some may lose their flexibility in hours, or their ability to work from home. In addition, the obligation to track their time will be viewed by them (as well as their employers) as a new administrative headache.

In short, the mass reclassification that will have to take effect by December 1 has the makings for an employee morale nightmare.

Here are a few tips for employers to make the transition to “new non-exempt” less painful for the affected employees:

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Look out, employers! The new Class Action Outlook is out!

Posted in Class actions

The Spring 2016 edition features (in order of appearance) Naveen Kabir on the Supreme Court’s Tyson Foods decision, Anna Rothschild on the Supreme Court after Justice Scalia and Merrick Garland’s record on labor and employment cases, Mallory Schneider Ricci on the Supreme Court’s CRST Van Expedited v. EEOC decision (if you haven’t already, please check out Marcia McShane’s very funny take on that decision, too), Susan Bassford Wilson, co-chair of our e-Law Practice Group, with another installment on e-discovery and document preservation obligations, Penni Bradshaw, co-chair of our Immigration Practice Group, on the H-1B lawsuit against Walt Disney World and its IT contractors, Heidi Wilbur on the Supreme Court’s decision in Spokeo v. Robins, and Richard Bromley on the “manageability” defense to lawsuits brought under the California Private Attorneys General Act.

Outstanding. They’ve outdone themselves this time!

25 quick takes (no kidding!) on the EEOC’s proposed national origin guidance

Posted in Discrimination, Harassment, Retaliation

These will be really quick takes, since there are so many of them, on the proposed Enforcement Guidance on National Origin Discrimination issued this week by the Equal Employment Opportunity Commission. (The actual document is 57 pages long, not counting the table of contents.)

I’ll try to focus on the less obvious/more interesting points.NativeAmericans.flickrCC.Lordcolus

Take No. 1: “National origin” includes national origin (you don’t say!), or the “physical, cultural, or linguistic characteristics of a particular national origin group.” It also includes national origin groups such as “Hispanic,” “Arab,” or “Roma.” It also includes Americans, such as Native Americans, and Americans, such as non-Native Americans. Discrimination based on national origin, including perceived national origin (for example, refusing to hire that Italian-American because you mistakenly thought he was from the Middle East) is unlawful.

Take No. 2: “Intersectional” discrimination is unlawful. This would be discriminating against someone because of national origin plus something else. For example, maybe an employer is fine with Mexican men but not Mexican women. This would be unlawful “intersectional” discrimination against Mexican women, and the woman could file a charge alleging both national origin and sex discrimination.

Take No. 3: Labor trafficking can be considered a form of national origin discrimination. I can’t improve on what my colleague Elizabeth Joiner recently wrote on this. If you haven’t read her article yet, you should do so.

Take No. 4: Word-of-mouth recruiting is dangerous, as is recruitment that is targeted at one or more particular national origin groups. However, diversity recruitment is fine as long as no national origin group is excluded.

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The clock starts when? SCOTUS decision in Green v. Brennan

Posted in Discrimination

Clocks.flickrCC.JessicaQuirkBill McMahon, my law partner and next-door neighbor, has a good analysis of the Supreme Court’s recent decision in Green v. Brennan, in which the Court found that the time for filing a constructive discharge claim under Title VII starts to run from the date that the employee tenders his resignation, not the date of the last discriminatory act by the employer.

It’s not that bad for employers, Bill says.

Image Credit: From flickr, Creative Commons license, by Jessica Quirk.

Memorial Day, 2016

Posted in Uncategorized

In Flanders Fields

By John McCrae (1915)

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

Memorial Day.flickrCC.RickyNorris

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

To all those who have given their lives defending our country, thank you, and rest in peace.

Image Credit: From flickr, Creative Commons license, by Ricky Norris.

Military employment rights: A recap for the Memorial Day weekend

Posted in Americans with Disabilities Act, Family and Medical Leave Act, Military, USERRA

In honor of Memorial Day weekend, here’s a summary of the rights of employees who take leaves of absence to serve our country, and their family members.


The Uniformed Services Employment and Reemployment Rights Act of 1994 protects employees who leave their jobs to serve in various military capacities.


Five year (or more) rule. An employee’s right of reemployment is good for at least a five-year term of duty, but certain special provisions may extend even that time:

*Initial enlistments that last more than five years

*National Guard and Reserve training duty

*Involuntary extensions of active duty, or recalls, especially during times of national emergency

*Convalescence after a service-related injury, up to two years (see below)

Notice requirements. Employees are required to provide advance notice of the military leave, in writing or orally, unless advance notice is “impossible, unreasonable, or precluded by military necessity.” The employee should provide notice to the employer as early as is “reasonable under the circumstances.”

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