Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Kaplan confirmed to NLRB – we now have an “R-D” tie

Posted in Labor Relations, Politics

The U.S. Senate yesterday confirmed Marvin Kaplan’s appointment to the National Labor Relations Board, which means that there is now an equal number of Republicans and Democrats on the Board.

William Emanuel, a management-side attorney from Littler Mendelsohn, is the last Trump nominee to the Board. His confirmation vote will not take place until after the Senate’s August recess, but he is expected to be confirmed as well. If and when he is confirmed, the Board will have a Republican majority.

In case you need a scorecard, here is the current makeup of the Board: Chairman Philip Miscimarra (R), Mr. Kaplan (R), Lauren McFerrin (D), and Mark Gaston Pearce (D), who was Board Chairman during most of the Obama Administration.

DOL will coordinate VETS-4212 with new EEO-1 reporting requirements (as much as it can).

Posted in Affirmative Action

As we have reported previously, the EEO-1 filing process is changing. The EEO-1 reports that would have been required by September 30, 2017, now do not have to be filed until March 31, 2018. The “catch” is that the new EEO-1 reports will require compensation data from a workforce “snapshot” taken between October 1 and December 31, 2017.

(The compensation data reporting requirements apply to all employers with 100 or more employees, whether or not they are federal contractors.)

Meanwhile, employers with federal contracts worth more than $150,000 must file annual VETS-4212 reports. The VETS-4212 reports must be filed between August 1 and September 30 of each year. When the “old” EEO-1 reporting deadline was in effect, both reports could be filed at the same time, based on the same employee data.

(The VETS-4212 report shows the number of veterans hired or employed by the contractor for the relevant time period.)

The Institute for Workplace Equality, a non-profit employer group, asked Secretary of Labor Alexander Acosta whether the VETS-4212 deadlines could be changed to coincide with the new EEO-1 deadlines.

They got a “sorta” in response.

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President Trump nominates Iraq veteran Daniel Gade to EEOC Commissioner spot

Posted in Americans with Disabilities Act, Discrimination, Politics

President Trump has nominated Daniel M. Gade to the last vacant slot on the Equal Employment Opportunity Commission. Dr. Gade, who has a Master’s and Ph.D. in Public Administration and Public Policy, is a veteran of the second Iraq War, and lost his right leg in 2005 after an explosion that occurred while he was carrying out a routine patrol.

After spending about a year in recovery, Dr. Gade went on to work for the administration of President George W. Bush on veterans’ issues, military policy, and disability policy. He has also served on the National Council on Disability, having been appointed by then-House Speaker Rep. John Boehner (R-Ohio). He has recently retired from a faculty position at his alma mater, the U.S. Military Academy in West Point, where he taught American politics.

Based on his writings and some articles about him, Dr. Gade appears to be a strong advocate for self-reliance and getting disabled veterans back to work. How this philosophy will apply to issues that arise under the Americans with Disabilities Act, which the EEOC enforces, is not clear. It could mean that he will strongly advocate reasonable accommodation, which allows individuals with disabilities to be gainfully employed to the fullest extent possible. But he has also spoken out against the military definition of “disability,” contending that it is too broad and encourages veterans to stay out of the work force. For this reason, I would not expect him to favor “pushing the envelope” in favor of ever-broader definitions of “disability.”

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Please vote for us for the ABA Web 100: Reason #20

Posted in ABA Blawg 100

Reason No. 20: THIS IS IT!!!!!

(Can both Elvis and the Father of our Country be wrong? No way!)

You don’t have to be a lawyer to vote. Just go to the page here and nominate Employment & Labor Insider, along with a short statement about why you like us. The deadline to submit nominations is — TODAY.

PS – If you add a “social media” vote for our Twitter presence, @RobinEShea or @ConstangyLaw, who are we to complain?

Thank you very much for your support, and for putting up with all of these blog posts!

Please vote for us for the ABA Web 100: Reason #19

Posted in ABA Blawg 100

Reason No. 19: There’s no “threat of reprisal” at this blog — only the “promise of reward.”

“I thought this campaign would never end!”

NOTE: Tomorrow is the last day for voting.

You don’t have to be a lawyer to vote. Just go to the page here and nominate Employment & Labor Insider, along with a short statement about why you like us. The deadline to submit nominations is tomorrow, Sunday, July 30.

Thank you for your support!

PS – If you add a “social media” vote for our Twitter presence, @RobinEShea or @ConstangyLaw, who are we to complain?

Image Credit: From flickr, Creative Commons license, by Richard Leeming.

Please vote for us for the ABA Web 100: Reason #18

Posted in ABA Blawg 100

“Time is running out!”

Reason No. 18: Today is your last chance to vote while you’re “on the clock.”

Sure, you can vote tomorrow or Sunday. But why, when you can do it today?

You don’t have to be a lawyer to vote. Just go to the page here and nominate Employment & Labor Insider, along with a short statement about why you like us. The deadline to submit nominations is Sunday, July 30.

Thank you for your support!

PS – If you add a “social media” vote for our Twitter presence, @RobinEShea or @ConstangyLaw, who are we to complain?

Image Credit: From flickr, Creative Commons license, by davidd.

Thinking out loud about medical marijuana and reasonable accommodation

Posted in Drug Testing

Just asking.

(When I think out loud, beware.)

Ellen Kearns’ discussion of last week’s decision in Barbuto v. Advantage Sales and Marketing, in which the Massachusetts Supreme Judicial Court ruled that employers may have to accommodate employees who use medical marijuana, got me thinking about whether we need to revisit some of our assumptions about marijuana in the workplace.

A very quick recap of the Barbuto decision: The Court said that an employee with a disability who used medical marijuana in accordance with Massachusetts state law (and off-site and during non-working hours) might be entitled under the state’s disability-rights law to reasonable accommodation of her marijuana use. One exception, among possibly others, would be for the employer to make an exception to its “no drugs” policy.

Before I go on, let me make some disclaimers. First, I’m not talking about jobs where applicable federal law prohibits marijuana use, such as drivers governed by U.S. Department of Transportation regulations, or airline personnel governed by Federal Aviation Administration regulations. Second, I’m not talking about employees in states that either (1) do not allow medical marijuana use or (2) do not have state disability statutes that require reasonable accommodation. Third, I’m not talking about any jobs that are truly safety-sensitive. Fourth, I’m not talking about use of marijuana in the workplace or during working hours. Fifth, I’m not talking about recreational use of marijuana, period.

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Weekly catch-up

Posted in Constangy News, ConstangyTV, FOCUS, Immigration

Constangy is #1 midsize law firm for women! Law360 has ranked us number one among law firms with 150-299 attorneys. Firms were not even eligible to be ranked if they didn’t have at least 49 percent female attorneys, so we are the creme de la creme. Heather Owen, proprietor of FOCUS, our women’s leadership blog, has more here.

Like no business I know . . . In our latest installment of ConstangyTV’s Close-Up on Workplace Law, host Leigh Tyson interviews Nestor Barrero, who came to our firm from NBCUniversal, about employment law issues unique to the entertainment industry. Even if you’re not in “the biz,” you will find it interesting and, dare we say? – entertaining. To save you a long, exhausting trek over to YouTube, I have it here:

PS – If you haven’t already subscribed to ConstangyTV, please do so!

They changed the I-9 – again? The U.S. Citizenship and Immigration Services has issued a new Form I-9, less than a year after the last change. The new version is available now and must be used starting September 18. The most significant change is that the instructions appear to indicate that I-9s should be completed by the time the employee starts work (rather than at the close of the first work day). Elizabeth Joiner has all you need to know.

Medical marijuana use may have to be accommodated under state disability-rights law, Massachusetts court says. Ellen Kearns, head of our Boston Office, has an excellent analysis of the (IMO) groundbreaking decision from the Massachusetts Supreme Judicial Court. Although the court’s decision applies only to Massachusetts employers, it is very possible that courts in other states that both allow the use of medical marijuana and have state disability protections will follow.

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

Trump v. Sessions: Are we witnessing a “constructive discharge” in real time?

Posted in Wrongful Discharge

“I don’t want to fire him. Let’s make him quit instead.”

As anyone who’s been following the news is aware, President Trump has been publicly and repeatedly indicating his displeasure with Attorney General Jeff Sessions. We are a non-partisan blog, so I’m not going to get into who’s right and who’s wrong about the underlying dispute. But it does seem to me that the President is trying to force the Attorney General to quit.

Thus, the situation provides an excellent illustration of an employment law concept: the constructive discharge.

A constructive discharge (as opposed to an actual discharge) occurs when the employee quits — but only because the employer made his or her life a living hell. That’s my non-technical definition. The legal definition is that the employer “deliberately makes working conditions so intolerable that a reasonable person in the position of the employee would feel compelled to resign.”

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Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias

Posted in Discrimination, Sexual Orientation

Whoa.

The U.S. Department of Justice and the Equal Employment Opportunity Commission are at cross purposes in the “gay skydiver” case.

Are they ever.

Do you remember Zarda v. Altitude Express? The U.S. Court of Appeals for the Second Circuit recently signaled that it might overrule its precedent holding that Title VII’s ban on sex discrimination does not include sexual orientation discrimination.

In late June, the EEOC filed a brief in support of the estate of the (now deceased) skydiver, whose lawsuit has been unsuccessful so far. The EEOC argued that Title VII does indeed prohibit discrimination based on sexual orientation.

But then yesterday, the DOJ filed a brief in support of the employer, flat-out saying that the EEOC is wrong and that its authority is limited:

Although the [EEOC] enforces Title VII against private employers and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.

(Emphasis added and legal citations omitted.)

My first reaction was that the DOJ was opposing an Obama Administration position. But the EEOC brief was filed last month. That said, the EEOC still has only one Republican — Victoria Lipnic, who is acting chair until Janet Dhillon is (presumably) confirmed as chair — and three Democrats (Chai Feldblum, Jenny Yang, and Charlotte Burrows). So I guess that’s how this all happened?

I will have a post soon that details the DOJ’s arguments as to why Title VII should not include sexual orientation discrimination, as I’ve done setting forth the arguments for the other side.

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