Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Catholic priest is (allegedly) an equal opportunity offender, court says, dismissing bias suit

Posted in Defamation, Discrimination, Harassment, HR, Sexual Orientation

Father, you kiss your mother with that mouth?

“Father, I’m appalled!”

The recent dismissal of a lawsuit in New York — involving a priest who is principal at a Catholic high school —  illustrates why an (alleged) “equal opportunity offender” is better than a discriminatory one.

But that’s not to say it’s good.

Father Michael Reilly — as well as his school, the Archdiocese of New York, Cardinal Timothy Dolan, and Father Reilly’s two alleged “henchmen” — were sued by a guidance counselor and two teachers for harassment and discrimination based on age and sex under the New York Human Rights Law, and for defamation.

(WARNING: If you expect priests to conduct themselves a certain way, you may be unpleasantly surprised at what follows.)

Among other things, the lawsuit alleged that Fr. Reilly did the following:

*Used the “F” word — all the flippin’ time.

*Referred to individual women as “bi*ches” and “tw*ts,” and to women collectively as a “tw*teria.”

*Said that he would kick an African-American teacher “back to the jungle.”

*Said that he would kick an employee with cancer “to the f***ing curb.”

*Said about an older employee who was ill and later died, “F*** crusty, she’s a vodka-shi**ing bi*ch that we don’t need.”

*Called an administrator a “fat fa**ot.”

There is a change.org petition signed by 2,192 people asking the Archdiocese to remove Father Reilly from his position.

Father Reilly denies having said any of these things.

Because the motion to dismiss was filed at the very beginning of the lawsuit, the court had to assume that everything alleged by the plaintiffs was true.

The defamation claim — based on Fr. Reilly’s loudly asking the guidance counselor whether he was a pedophile — was not valid, the judge said, because the priest was not saying the guidance counselor was a pedophile but only asking. (Long story, but it makes sense in context.)

As far as the harassment and discrimination claims, the court found that there was no evidence that Fr. Reilly discriminated against women or older employees — if the allegations in the lawsuit were to be believed, he treated everybody equally badly. The court said,

Although plaintiffs’ main allegations may demonstrate that Father Reilly has made numerous crude, vulgar, insensitive and prejudiced remarks against all types of people and that he may not always demonstrate the morals and principles aligned with a well-respected Catholic institution [EDITOR’S NOTE: Ya think?], the law does not impose liability upon him based on the allegations set forth in the plaintiffs’ complaints.

Since the defendants won dismissal of the lawsuit, that means Father’s alleged behavior is A-OK, right? Wrong. First, I would hope that employers wouldn’t want anyone in a position of authority conducting himself or herself the way that the plaintiffs alleged. Not so hot for employee morale, and it could make it very difficult for the school to attract and retain good faculty and staff. Second, it’s not good from a purely legal or economic standpoint, either. The alleged behavior dragged Father, his school, his bosses, and two employees who reported to him, through the embarrassment, stress, and expense of a lawsuit. And the plaintiffs say they will appeal the court’s decision, so it may not be over.

In short, “equal opportunity offender” is a good legal defense, but it’s no way to run a workplace.

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

Extended medical leave not a “reasonable” accommodation under ADA, court says

Posted in Americans with Disabilities Act, Discrimination, Family and Medical Leave Act, HR

This week, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit held that a “multimonth leave of absence is beyond the scope of a reasonable accommodation” under the Americans with Disabilities Act.

In doing so, the court rejected longstanding guidance from the Equal Employment Opportunity Commission that a long-term medical leave is a reasonable accommodation when the leave is (1) definite and time-limited (not open ended); (2) requested in advance; and (3) likely to enable the employee to perform the essential job functions on return. Noting that under the EEOC’s position “the length of leave does not matter,” the court characterized it as an “open-ended extension” of leave under the Family and Medical Leave Act.

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“Overqualified,” or just too old?

Posted in Discrimination, HR

(Not an actual letter from Mr. Kleber.)

Last week, I received a scathing comment from Dale Kleber, a Chicago-area lawyer and a plaintiff in an age discrimination lawsuit. Mr. Kleber did not like my gut reaction to his lawsuit, which was based on an article that I’d read in The Washington Post. It appeared to me that Mr. Kleber — then a 58-year-old lawyer with roughly 30 years of experience, including experience as a CEO of a dairy industry trade group, Chief Legal Counsel, and General Counsel — was rejected for a low-level in-house staff attorney position because he was overqualified for the position, not because he was 58 years old.

Prompted by Mr. Kleber’s comment, I have now read the court papers (well, a lot of them, anyway).*

*Mr. Kleber’s case is currently on appeal to the U.S. Court of Appeals for the Seventh Circuit, but it is still in the very early stages. For you procedural nerds, I’ve included a summary at the end of this post. Non-nerds can skip it.

Now that I know more about Mr. Kleber’s lawsuit, I haven’t changed my mind. In other words, I still think he was rejected for being overqualified.

Can’t “overqualified” be a code word for “too old”? Yes, but not necessarily. Read on!

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Weekly catch-up

Posted in ConstangyTV, HR, Immigration, Labor Relations, Politics, Protected Concerted Activity, Social media

Must-see ConstangyTV! The September edition of ConstangyTV’s “Close-Up on Workplace Law” is on YouTube, and you will not want to miss it. Host Leigh Tyson talks with Jon Yarbrough about social media in the workplace, including social media horror stories and what employers can do about them, the restrictions that have been imposed on social media policies by the National Labor Relations Board, and how that might change now that we have a Republican majority on the Board. To save you a long, grueling trip to our YouTube site, here it is:

Trump’s 8 zillionth* travel ban: what employers need to know. President Trump issued a new travel ban “proclamation” on Sunday, and the excellent Will Krasnow of our Boston Office has read it and explains it all for us in this Immigration Dispatch.

*I might be exaggerating.

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

DOL announces 2018 minimum wage for employees of some federal contractors

Posted in Affirmative Action, Affirmative Action Edition, Wage-Hour

NOTE FROM ROBIN: I have bad news and good news. The bad news is that this is the last post from the Affirmative Action and OFCCP Compliance Practice Group that will appear on Employment & Labor Insider. The good news is that the group is starting its own blog, Affirmative Action Edition, in late October. We will let you know as soon as it’s up and running. Thanks very much to Cara Crotty and her team for the excellent guest posts they have contributed over the past year. We will miss you, but we can’t wait to subscribe to and read your new blog!

Stephanie Underwood

On September 15, the U.S. Department of Labor announced the 2018 minimum wage rates for covered federal contractors and subcontractors. Beginning January 1, 2018, federal contractors covered by these requirements will be required to pay a minimum wage of $10.35 an hour. The minimum cash wage for tipped workers will increase to $7.25 an hour.

The current minimum wage for federal contractors is $10.20 an hour, and the current minimum cash wage for tipped workers is $6.80 an hour.

These increases are required by an Executive Order issued by President Obama in February 2014, which mandates that the DOL raise the hourly minimum wage paid by certain federal contractors every year based on inflation. The Executive Order also specifies that the minimum cash wage for tipped workers must increase by 95 cents per year until it reaches 70 percent of the minimum wage paid to other hourly workers under the Executive Order.  This requirement was met with the 2017 wage increase.

Emanuel confirmed to NLRB, and GOP now in the majority

Posted in Labor Relations, Politics

Management-side labor attorney William Emanuel was confirmed by the Senate today as a Member of the National Labor Relations Board. Mr. Emanuel’s confirmation gives the Republicans a 3-2 majority on the Board.

However, Republican Chairman Philip Miscimarra has announced that he will not seek a second term when his current term expires in December, which means the GOP lead will soon return to a tie until the President has a chance to appoint a successor.

Trump’s EEOC nominations are rocking along – and here’s what we can expect

Posted in Americans with Disabilities Act, Discrimination, Equal Pay, Gender Identity Discrimination, Genetic Information Non-Discrimination Act, GINA, Labor Relations, Politics, Sexual Orientation

With President Trump in office for nine months now, it is hard to believe that none of his people are yet on the Equal Employment Opportunity Commission. The four current Commissioners, including the Acting Chair, Republican Victoria Lipnic, and former Chair Jenny Yang, were all appointed by President Obama.

But that may change soon. The Senate Health, Education, Labor and Pensions Committee held hearings this week on the nominations of Janet Dhillon for EEOC Chair and Daniel Gade for EEOC Commissioner.

(The Senate confirmation vote for William Emanuel, whose nomination as a Member of the National Labor Relations Board has been pending for quite some time, is expected to take place imminently.)

Here’s what we have learned about Ms. Dhillon and Dr. Gade from this week’s HELP Committee testimony, according to an article in Bloomberg BNA’s Daily Labor Report:

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Employers, I’m on your side — so watch out! ;-)

Posted in HR, Lawyers!

At a client seminar that my office presented during the very contentious 2016 campaign season, my law partner John Doyle delivered an introductory disclaimer. Although I may not have his words verbatim, I will never forget the message, which was as follows:

The only thing we’re partisan about is employers. That’s it.

It was a great way to dispel the perception that we were being politically partisan while we had to discuss the positive and negative impacts of the candidates’ proposals on employment law issues.

This morning, I got a comment from the plaintiff in an age discrimination lawsuit that I referenced last year, based on an article that had appeared in The Washington Post. Here’s what the plaintiff, Dale Kleber, said to me:

Well, Robin, I was surprised that although you have formal legal training, the article you wrote contains so many factual assumptions that simply are false. I suspect that your firm primarily represents defendant employers and your “analysis” is tainted with the bias of economic self-interest. In the near future, I expect to obtain an objective review of my case from the the Seventh Circuit. Your article, devoid as it is of even the most basic factual or legal analysis is simply an editorial masquerading as a legal newsletter. But perhaps that is what your clients want to hear.

I admit I did not think Mr. Kleber was a victim of age discrimination based on the information in the WaPo article, and I admit that I said so. Reading between the lines on his comment, it appeared to me that he had lost his case (since he was hoping to be vindicated on appeal), but I read the court filings today and it’s more complicated than that. (I’ll have a separate blog post about the merits of Mr. Kleber’s lawsuit, which I think is pretty interesting.)

As far as writing “editorials” on this blog, I plead guilty. This ain’t, after all, The New York Times.

I also admit that I and my firm represent employers, and that we are always on the employers’ side.

But what I’d really like to talk about is what it means to be “on the employers’ side,” or, as John says, “partisan” on behalf of employers.

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OFCCP offers more hurricane relief

Posted in Affirmative Action

On the heels of the exemption for Hurricane Harvey contractors, and given the additional widespread destruction caused by Hurricane Irma, the federal government has extended a deadline affecting federal contractors and subcontractors.

VETS-4212

The VETS-4212 report, which contractors must file annually between August 1 and September 30, has been extended this year for all contractors, regardless of location.  The Veterans’ Employment and Training Service posted on its website that contractors and subcontractors who file their VETS-4212 reports by November 15 will be considered timely.  This one-time, 45-day extension is due to the needs of those affected by the recent hurricanes.

HURRICANE IRMA NATIONAL INTEREST EXEMPTION FOR NEW CONTRACTS

As it did for Hurricane Harvey contractors previously, on September 7, the Office of Federal Contract Compliance Programs issued a another National Interest Exemption Memorandum providing a three-month exemption on preparing written affirmative action plans for a very specific group of contractors and subcontractors.

According to the FAQs, the exemption applies only to contractors who have signed or will sign a new supply and service or construction contract between September 1 and December 1, 2017, solely for the “specific purpose of providing Hurricane Irma relief” and who do not otherwise have to comply with the regulations.

Does this apply to everyone who has a contract to provide hurricane relief? 

No. The exemption applies only to those companies that become covered contractors by virtue of a new contract aimed solely at providing Irma relief.

Who is not covered?

Any contractor that is required to comply with the regulations based on a non-Irma relief contract (whether that contract be old or new).

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