Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

The Deep Dive: A closer look at the Seventh Circuit’s sexual orientation decision

Posted in Discrimination, Sexual Orientation

Scuba Intro.flickrCC.ScottAs we reported early this morning, the full U.S. Court of Appeals for the Seventh Circuit decided in Hively v. Ivy Tech Community College of Indiana that the prohibition in Title VII against discrimination based on “sex” encompasses discrimination based on sexual orientation. It is the first federal appellate court to do so, although recent decisions from other federal appeals courts – declining to expand Title VII this far – seem “conflicted” about the issue.

The Hively decision is 67 pages long, including the majority opinion (by Chief Justice Diane Wood), two concurring opinions (by Judge Richard Posner and Judge Joel Flaum) and one comprehensive dissent (by Judge Diane Sykes). The opinions in their entirety present what are probably the best arguments for and against extending Title VII to include sexual orientation discrimination.

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BREAKING: Title VII bans sexual orientation bias, court finds

Posted in Discrimination, Sexual Orientation

The full U.S. Court of Appeals for the Seventh Circuit ruled yesterday that sexual orientation discrimination is indeed prohibited “sex discrimination” within the meaning of Title VII.Stove fire.flickrCC.StateFarmIns

The decision was issued in the case of Hively v. Ivy Tech Community College of Indiana. A three-judge panel of the Seventh Circuit had found last year that Title VII did not prohibit sexual orientation discrimination, but that decision was vacated to allow the full court to rehear the case.

This is the first decision by a U.S. Court of Appeal to find that Title VII encompasses sexual orientation discrimination. Recently, a panel of the U.S. Court of Appeals for the Second Circuit declined to so find, as did a panel of the Eleventh Circuit. (I wrote about the Eleventh Circuit decision here.) It is likely that both of these panel decisions will be reheard by the full courts. If the split in the circuits remains, the issue may reach the U.S. Supreme Court.

I’ll have more later today.

Image Credit: From flickr, Creative Commons license, by State Farm Insurance. 

Hiring benchmark for protected veterans is reduced again

Posted in Affirmative Action

The Office of Federal Contract Compliance Programs announced that the annual hiring benchmark under the Vietnam Era Veterans’ Readjustment Assistance Act has been lowered from 6.9 percent to 6.7 percent. This percentage represents the national percentage of veterans in the civilian labor force, which has decreased Stephanie Underwoodeach year since 2014, when the OFCCP began requiring the hiring benchmark.

The new benchmark of 6.7 percent went into effect on March 31. Contractors who completed their affirmative action plans for 2017 before the OFCCP’s announcement of the new benchmark may continue to use the 2016 benchmark.

The VEVRAA prohibits federal contractors from discriminating in employment against protected veterans and requires contractors take affirmative action to recruit, hire, promote, and retain protected veterans. Since March 2014, covered contractors have been required to develop an annual hiring benchmark for protected veterans or adopt the national benchmark. The benchmark is used to assess the effectiveness of the contractor’s outreach and recruitment efforts toward protected veterans.

Additional information regarding the VEVRAA Benchmark Database can be found here.

10 habits of highly effective HR professionals (April Fool’s edition)

Posted in Americans with Disabilities Act, Corporate Culture, Discrimination, Elections, Employment at Will, Equal Pay, Family and Medical Leave Act, Harassment, HR, Labor Relations, Politics, Protected Concerted Activity, Retaliation, Safety, Wage-Hour, Workers' Compensation

DEAR READERS: Before you accuse me of legal malpractice, take a look at tomorrow’s date.  

Habit 1: Discriminate, retaliate, harass — have a ball! There’s a new sheriff in town, with a more employer-friendly, compliance-assistance-oriented U.S. Department of Labor (we think) and the nullification of burdensome regulations like the gone-and-not-lamented Fair Pay and Safe Workplaces Rule. That means you can go wild. What are your employees going to do about it? Well, it’s true that they might be able to sue you under state law, and they might beApril Fool's Day.flickrCC.OneWayStock able to sue you under the federal laws that we’ve had in place since forever, and even an employer-friendly agency may not look kindly upon you if you’re deliberately flouting the law, but apart from that — what?

Habit 2: “Opaque” is not just for black tights. It’s good to keep your employees in the dark about things like their how their pay is determined, your company’s business, your criteria for evaluating performance or for bidding on vacant jobs, and other important company information. If they know what’s going on, they’ll just complain and use it against you. On the other hand, what they don’t know may hurt them, but at least they won’t know why they’re hurting.

Habit 3: Play favorites. By all means favor employees based on their race, ethnic group, religion, or age. But don’t stop there. Choose your “pets” based on anything — who they’re related to, who is the best looking, and who sucks up to you the most effectively — and give them all the breaks.

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Weekly catch-up

Posted in ConstangyTV, Harassment, HR, Only in California, Wage-Hour

Hot Dog Man.flickrCC.JeleneMorrisA “print and save” for California employers, to be sure. Richard Bromley and Aaron Rutschman of our Los Angeles-Century City Office have a comprehensive guide to the Golden State’s often-confusing laws on paid meal and rest breaks. If you have operations in California, you need to read this and keep a copy for future reference.

The March 2017 edition of ConstangyTV’s Close-Up on Workplace Law is out, and guess who the guest was? That’s right – your humble blogmistress! Our most excellent host Leigh Tyson was kind enough to have me on her show to talk about Harassment Prevention Best Practices. I’ll save you the trouble of having to go all that long way over to YouTube to watch it. You’re welcome.  :-)

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

Trumpdate: Labor nominee Acosta gets through HELP Committee, Dems support Gorsuch

Posted in Politics

Two big developments of interest to employers:

The Senate Heath, Education, Labor and Pensions Committee approved the nomination of Alex Acosta, President Trump’s nominee for Secretary of Labor, in a 12-11 straight party-line vote. This means that Mr. Acosta’s nomination will be voted on by the full Senate. According to The Washington Post, no date has yet been set for the Senate vote.

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“Not sad!”


And two Democratic Senators have said they will vote in favor of the President’s nomination of Neil Gorsuch to the Supreme Court seat that was made vacant by the death of Justice Antonin Scalia. Sens. Heidi Heitkamp (D-N.D.) and Joe Manchin (D-W. Va.) are both facing reelection in 2018 in states that went heavily for President Trump in the 2016 election. According to The Hill, there are still 33 Democrats who oppose Judge Gorsuch, but there may be a few more “red state Democrats” who will waver. Democrats have threatened to filibuster the vote on Judge Gorsuch’s nomination, and the Republicans have threatened to go for the so-called “nuclear option,” which would change Senate Rules to allow cloture to be invoked on a simple majority vote. (The Democrats did the same thing to stop Republican filibusters of President Obama’s Cabinet and federal court nominees.) Currently, 60 votes are required to invoke cloture.

North Carolina’s HB 2 is history

Posted in Gender Identity Discrimination

The North Carolina General Assembly voted today to repeal the infamous HB 2 “bathroom law,” and Governor Roy Cooper has signed the repeal into law. The law is very short. It repeals HB 2 and provides that local governments, and the state university and community college systems, cannot regulate access to multi-user restrooms, locker rooms, or changing facilities until December 1, 2020. (Which will be here before we know it.)

The repeal is effective immediately.

The employment law provisions of HB 2 — taking away a wrongful discharge cause of action for “EEO” discrimination — were “mostly repealed” in July 2016, except that the statute of limitations on these claims was shortened from three years to one. I believe that the one-year statute of limitations will continue after today’s action, but I’m not sure. If any readers disagree, please feel free to correct me in the comments. UPDATE (Friday, March 31, at 5:25 p.m. Eastern): Of course I was wrong. According to Laura Wetsch, who is on the Legislative Subcommittee of the Labor and Employment Section of the North Carolina Bar Association, the one-year statute of limitations was also repealed, so we’re back to a three-year limitations period for all wrongful discharge claims. Laura, thank you for clearing that up!

Fair Pay and Safe Workplaces: The fat lady has sung!

Posted in Affirmative Action
Valkyrie Lego.flickrCC.NigelWade

“This calls for a high C!”

Game Over. Dunzo. Finito. Bye Felicia. These are things we can now officially say about the Fair Pay and Safe Workplaces Rule.

On Monday, President Trump signed a Congressional joint resolution of disapproval into law, officially invalidating the Fair Pay and Safe Workplaces Rule. Congress legislatively vetoed the Rule by using the Congressional Review Act, its new favorite tool to undo regulations promulgated during the Obama Administration. In addition to signing the resolution, the President also revoked the Executive Orders authorizing the rule and instructed all executive departments and agencies to begin rescinding any orders, rules, regulations, guidance, guidelines, or policies implementing or enforcing the rule.

Our previous coverage of the demise of Fair Pay and Safe Workplaces is available here:

Fair Pay & Safe Workplaces Rule is on the chopping block

House votes to disapprove Fair Pay & Safe Workplaces Rule

Fair Pay and Safe Workplaces and its “executioner”: The Congressional Review Act

As we have previously reported, the Fair Pay and Safe Workplaces Rule imposed a number of new requirements on federal contractors. It included a section dubbed by many as a “blacklisting rule,” which required contractors and subcontractors to report “labor law violations” (including various non-final administrative findings) to prove that they were responsible enough to do business with the government. It also required contractors to provide certain information to workers on their pay stubs. Finally, it prohibited pre-dispute arbitration agreements (with some exceptions) for claims arising under Title VII or any tort related to sexual assault or harassment.

Lego execution.PublicDomain

“I guess they were serious!”

Although the “blacklisting” part of the rule had already been preliminarily enjoined by a federal judge in Texas, President Trump’s signing of the resolution puts an end to the entire Rule, including the paycheck transparency and arbitration requirements. Therefore, federal contractors are no longer required to comply with these requirements.

Try not to hurt yourself jumping for joy, federal contractors.

Image Credits: Lego Valkyrie from flickr, Creative Commons license. Lego execution in public domain.

“The freezing trucker” and Gorsuch’s heart of ice: A micro-fiction

Posted in Politics, Transportation Industry

It was a bleak and frigid night on I-88 somewhere in northern Illinois. The icy wind whipped across the flatlands, grazing the endless rows of white, brittle remains of lastScreen Shot 2017-03-23 at 6.09.47 PM year’s corn crop. The only place to be that night was in your house, wrapped in your Snuggie, with a warm glass of brandy, watching videos of past vacations at Daytona Beach.

Alphonse Maddin knew he had to deliver his truckload of stuff, but he was low on gas. Somehow, he had not been able to find his assigned gas station in the vast, treeless midwestern expanse. So he drove and he watched, as the needle slowly but surely slid below the little red “E.”

Some thirty years earlier, in the land of cherry blossoms and the Potomac River, Congress passed the Surface Transportation Assistance Act. The law said (among many other things) that an employer could not take adverse action against a driver because the driver refused to operate a truck for safety-related reasons. (The law was later amended to add security-related reasons.)

Back on I-88, Alphonse Maddin was afraid he was going to run out of gas, so he pulled his rig over to the side of the road. He waited for an inexplicable 15 minutes, and then decided to venture back out in search of a truck stop.

No go. His trailer brakes were frozen.

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Weekly catch-up

Posted in FOCUS, Franchise, Labor Relations, Politics

Franchisors received some encouraging news this week from President Trump’s Hot Dog Man.flickrCC.JeleneMorrisActing Solicitor General, Nicholas Geale. Mr. Geale says that he prefers not to bring enforcement actions based on a theory that franchisors and franchisees are “joint employers.” He also said that he hopes the U.S. Department of Labor will focus on helping employers to comply with the law and less on persecution prosecution. Jeff Rosin, head of our Franchise Industry Group, has more here.

Could it be that the Supreme Court has invalidated two years of actions by the General Counsel of the National Labor Relations Board? Wouldn’t that be fun! But don’t get too excited — chances are that the Court’s decision this week in NLRB v. Southwest Ambulance was rendered too late to be of much help to employers. David Phippen has an excellent analysis of the legal issue — appointments to “acting” positions and the Federal Vacancies Reform Act — the Court’s decision, and the expected impact. (Although the decision involved an Obama appointee, President Trump and his successors are likely to feel the most pain.)

And at FOCUS, our women’s leadership blog, Kacy Coble has a bang-up debut post about Women’s History Month, women in the legal profession, and Constangy’s own “women’s history” — the story of Mildred McClelland, law partner to our founder, Frank Constangy, way, way back in the 1940s.

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