Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Comp time bill passes the House

Posted in Wage-Hour

The Working Families Flexibility Act of 2017 passed the House this week, 229-197. I honestly do not understand why Democrats are opposed to this legislation. I discussed the details of the bill in this post in April. For those who are worried that workers will be deprived of their overtime pay, here are a few points to keep in mind:

  1. The worker can always choose to take overtime pay instead of comp time. It is illegal for an employer to try to coerce the worker into taking comp time, and it’s illegal for an employer to retaliate against a worker based on his or her decision about comp time. Comp time cannot be presented to the employee as a “take-it-or-leave-it” deal.
  2. Even if an employee agrees to take comp time, he or she can revoke that decision at any time by giving written notice to the employer.
  3. There are pretty strict rules about timing of payouts of comp time.
  4. New-ish employees have to be paid overtime.
  5. Employers cannot offer more than 160 hours a year of comp time. Anything in excess of that would have to be paid as overtime.

I’m still waiting to hear a good argument against this legislation. What am I missing?

St. Louis minimum wage hike takes effect tomorrow

Posted in Wage-Hour

Employers in St. Louis City must pay their employees a minimum wage of $10 an hourRobert Ortbals beginning tomorrow—Friday, May 5. The Mayor’s Office just announced that the injunction on the minimum wage ordinance has been lifted. Noncompliance with the ordinance subjects employers to prosecution in municipal court along with potentional revocation of business licenses and occupancy permits.

I have covered this issue previously here:

Giant leap in St. Louis city minimum wage is imminent

Missouri Supreme Court reinstates St. Louis city wage

“Ask Amy,” part deux: Amy gets the message

Posted in Harassment, HR

I recently complained that Amy Dickson, author of the “Ask Amy” syndicated advice column, had given some poor (or at least premature) employment law advice to a reader. Apparently, a number of her readers expressed similar concerns, and, to her credit, Amy has corrected herself — twice now.

The first correction appeared this past Monday:

Dear Amy: “Worried Worker” described a toxic work environment. You immediately leapt to the conclusion that this treatment amounted to gender discrimination. To me, it sounded like her boss was a total jerk, but I didn’t see gender discrimination.

Workplace Survivor

Workplace Survivor: You are right. I jumped to a conclusion, with no specific evidence. “Worried” described the environment as “a good ol’ boys club,” but this doesn’t mean that the ill treatment was gender-based.

Well done! Then she did it again today:

Dear Amy: I’m responding to the letter from “Worried Worker.”

Lots of people have to work with jerks, but that’s life. It’s only illegal if it’s discrimination because you’re a woman, or because of your race, etc.

Not all bad behavior is worthy of a lawsuit, and while that boss sounds horrible it should be a learning experience.

My dad always told me, “Don’t leave a job because of someone, because people come and go.” I have found that to be true. Just because people are hostile does not make it a hostile work environment in the eyes of the law.

Sandra

Sandra: You are right. However, “Worried” would learn if this behavior was actionable by researching her legal rights.

Notice this time, Amy said “would learn if this behavior was actionable by researching her legal rights.” In other words, she is no longer assuming that “Worried Worker” has an open-and-shut hostile environment case. Good for Amy. I’d still recommend writing to a real HR advice column for HR advice, but Amy deserves credit for correcting herself, not once, but twice. She has some sharp readers, too!

OFCCP versus Google: The battle continues.

Posted in Affirmative Action, Discrimination, Equal Pay

I posted in January about a lawsuit filed by the Office of Federal Contract Compliance Programs against Google, seeking to force Google to provide detailed information about its equal employment practices and affirmative action program, including compensation information. Google had already provided some information to the OFCCP but contended the information that it withheld was either confidential or subject to overbroad requests.KMS

The battle rages on.

The OFCCP filed a motion for summary judgment, which was denied by Administrative Law Judge Steven B. Berlin on March 15. In essence, ALJ Berlin viewed the Agency’s motion for summary judgment as “akin to a subpoena enforcement proceeding.” Although he denied the motion on procedural grounds (the case was scheduled for expedited hearing, which does not provide for summary judgment motions), he went on to state, “Even were I to reach the merits of the motion, I would deny it.”

The ALJ found that the Fourth Amendment applied to the OFCCP’s request for information and therefore that the request had to be “limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” He noted that Google had received only $600,000 under the federal contract in a two-and-a-half-year period. Meanwhile, the cost to Google of gathering the information responsive to only one of the OFCCP’s requests was estimated by Google to be about $1 million. (This was to compile notes from approximately 54,000 job interviews.) The ALJ said that his analysis might have been different if Google had received $60 million under the contract instead of $600,000.

The ALJ’s decision was good for employers, but not completely. ALJ Berlin found that the data requested by the OFCCP was relevant, applying a standard of review that was deferential to the Agency. This highlights the importance for federal contractors to preserve pay history information, and to preserve job applications and interview notes, for the periods prescribed by applicable law.

The denial of summary judgment meant that the issue went to a trial on April 7 before ALJ Berlin. According to testimony by Janette Wipper, a Regional Director for the U.S. Department of Labor, the OFCCP had “found systemic compensation disparities against women pretty much across the entire workforce.” Google’s attorney argued that the OFCCP’s requests were unconstitutional and a “fishing expedition that has absolutely no relevancy to the compliance review.”

That same afternoon, the judge halted proceedings, and gave Google until April 14 to file a motion under seal. According to a post on the Workplace Dynamics, LLC, website, the judge said that an unspecified issue “that was discussed must be settled before continuing.” After the postponement, Google issued the following statement to The Guardian: “Every year, we do a comprehensive and robust analysis of pay across genders and we have found no gender pay gap. Other than making an unfounded statement which we heard for the first time in court, the DOL hasn’t provided any data, or shared its methodology.”

Whatever it was that caused the postponement, it does not appear to be an amicable settlement between Google and the OFCCP. We will keep you updated.

UPDATE (5/4/17): That didn’t take long! Bloomberg BNA reported last night that ALJ Berlin denied a motion by Google to dismiss the OFCCP complaint. Here is a copy of the decision. Google’s motion was based on comments made by Regional Solicitor Janet Herold to the media on April 7, and it turns out that these comments were the reason for the abrupt adjournment on April 7. Ms. Herold was quoted in The Guardian as saying, “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters,” “The government’s analysis at this point indicates that discrimination against women in Google is quite extreme, even in this industry,” and “if the findings are confirmed, this is a troubling situation.” Although the ALJ did not find that Ms. Herold’s media comments should result in dismissal or that Ms. Herold had acted unethically, he was nonetheless critical of her statements, saying, “Public statements such as those here could create obstacles to conciliation, especially when they are unnecessary to protect OFCCP against prejudice and when the language is escalated.” The judge’s decision is worth a more detailed blog post, so I’ll be following up with more.

6 timekeeping practices that reduce your risk of wage-hour liability

Posted in Wage-Hour

Last week, I wrote about a study describing how certain timekeeping systems could create wage and hour liability through, among other things, making it easy to “cheat” and providing no transparency when changes are made. (Which makes it impossible to detect and correct errors.) Having addressed the “problem” last week, I wanted to talk this week about solutions.

But before I do that, I want to mention one more “problem” raised by my law partner Zan Blue, head of our Nashville Office. Here’s what Zan emailed me last Friday (I’ve edited very slightly):

My dear Ms. Shea— (Yes, that’s the way Zan really talks)

Zan Blue

Zan Blue

Some employers use the auto deduct feature on the timekeeping systems. Seriously.

This feature, much like the “reply all” feature on email, should never have been created, and employers should never let it remain active.

Some employers let time sheets read “8-5” for every day. Some employers don’t even show the actual hours worked, just showing a series of “8” hours. Seriously.

Zan

Well said, Zan. Thank you. I was focused on less-obvious timekeeping issues, but automatic deductions, and use of a “paraphrased” work day instead of an actual work day, are huge problems for any employers who are still doing that.

Here are six timekeeping practices that employers can adopt to keep their risk of wage-hour liability as low as possible (realizing, of course, that there are no guarantees):

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Weekly catch-up

Posted in ConstangyTV, FOCUS, Immigration, Wage-Hour, Work-Life Balance

ConstangyTV’s Close-Up on Workplace Law, April edition, is out! Host Leigh Tyson interviews John MacDonald, head of our Princeton (NJ) Office, about employment law issues unique to the financial and investment industries. If you haven’t already subscribed to our monthly video series, please do so. And, to save you the trouble of trekking all that way over to YouTube, here is the video:

Why the FLSA hurts women, Part II. Heather Owen, proprietor of FOCUS, Constangy’s women’s leadership blog, is back with her second installment on how and why the Fair Labor Standards Act hurts women. Whether or not you agree, Hot Dog Man.flickrCC.JeleneMorrisit’s definitely worth a read and your consideration.

Redesigned green cards and Employment Authorization Documents coming this Monday! The U.S. Customs and Immigration Services is issuing new, more-secure, green cards and EADs starting Monday. But not to worry – the old cards will continue to be valid, and even some of the newly issued cards will be in the old design while the USCIS depletes its inventory of old cards. Barbara Kihumba of our Atlanta Office and our Immigration Practice Group has the details.

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

Giant leap in St. Louis city minimum wage is imminent

Posted in Wage-Hour

Employers in St. Louis City should prepare for an imminent increase in the minimum wage from $7.70 to $10 per hour. On Tuesday, the Missouri Supreme Court issued its direction toRobert Ortbals lift an injunction blocking the City’s minimum wage ordinance from taking effect. The trial court that issued the injunction must now lift the injunction—which can happen at any time. Once the injunction is lifted, the minimum wage will immediately increase to $10. The St. Louis Mayor’s office expects the injunction to be lifted within the next week.

This week’s court action follows a February 2017 opinion from the Missouri Supreme Court reinstating the St. Louis City minimum wage law that hikes the city’s minimum wage to $11 per hour by 2018. Originally enacted in 2015, the law had been invalidated by a trial judge hours before becoming effective.

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OFCCP secures $1.7 million settlement in failure-to-hire case

Posted in Affirmative Action, HR, Settlements

The Office of Federal Contract Compliance Programs and Palantir Technologies, a California-based technology company, have agreed to settle a pending lawsuit for about $1.7Angelique Lyons million.

We first reported on this case in October 2016. In its complaint, the OFCCP alleged that the Company used a discriminatory hiring process that resulted in a low selection rate for Asians, who made up 73 percent to 85 percent of applicants for certain engineering positions. Palantir denied that it engaged in any unlawful discrimination, and contended that the OFCCP’s statistical analysis was “flawed” and “illogical.” The company noted that at least 37 percent of its engineering team based in the United States was Asian, which is above the nationwide availability percentage. The OFCCP, however, was clearly not persuaded by the company’s overall commitment to diversity, and instead focused on one statistical anomaly.

Under the settlement, Palantir will pay $1,659,434 to 1,558 Asian job applicants and will extend job offers to eight applicants as positions become available.

This settlement highlights the importance of conducting adverse impact analysis of all employment activity on an annual basis. Because this is one area that carries with it the potential for monetary damages, federal contractors and subcontractors should routinely examine their processes and outcomes to identify any areas of concern before an OFCCP audit occurs.

Trump names Miscimarra Chairman of the NLRB (no more of this “Acting” stuff!)

Posted in Elections, Labor Relations, Politics
Miscimarra

Philip Miscimarra

According to Politico‘s “Morning Shift,” President Trump on Friday night promoted Philip Miscimarra from Acting Chairman to plain old Chairman of the National Labor Relations Board. Congratulations, Chairman!

As of this morning, the NLRB website is still listing him as Acting Chairman.

There are still two vacant seats on the five-member Board, which the President will be able to fill with Republicans, giving the GOP a three-member majority. With saner decisions to follow, it is hoped.

Image Credit: Official U.S. government photo.