Posts from September 2017.

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.

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 Trumpissued 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.

(Not an actual letter from Mr. Kleber.

(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!

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!

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.

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.

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 currentCommissioners, 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:

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.

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).

Law360 just reported that President Trump, as expected, has nominated Peter Robb of Downs Rachlin Martin PLLC to be General Counsel for the National Labor Relations Board. If confirmed by the Senate, Mr. Robb will succeed current General Counsel Richard Griffin, whose term will expire October 31.

I posted here about Mr. Robb not too long ago.

According to the Law360 article, the Senate vote on President Trump’s remaining NLRB nominee, William Emanuel, could be imminent, but now the President will have to find one more nominee — to succeed Republican Chairman Philip Miscimarra, who will be stepping down when his term expires in December.

Has the world gone crazy?

A. No.

B. Yes.

C. The word “crazy” is a microaggression.

ANSWER: B.

Welcome to our world! 

See how you do with these guaranteed true news items from the last week, all relating to employment law. Then tell me whether you agree that we are living in some crazy times. YCMTSU.*

*You Can’t Make This Stuff Up. (I think this cliche has earned an internet acronym ...

All immigration, all the time! Will Krasnow of our Boston Office has been working overtime in 

following the latest developments, and explaining what they mean for employers. Last Friday, he had this Immigration Dispatch on the end of the Deferred Action on Childhood Arrivals under President Trump. (But is the President now close to a DACA deal with the Dems? Could be.) And yesterday, Will had another on the Supreme Court’s temporary stay of an injunction against the Administration’s refugee ban. (A “stay of an injunction of a ban” — triple negative, yay! — means that the Administration can continue, for the time being, to block certain refugees from coming into the United States.) Oral argument on the legal challenge to the President’s March 6 revised travel ban is scheduled for October 10, with a final decision to follow.

Will, thank you for keeping us all up to speed!

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

Laboratory Corporation of America has agreed to pay approximately $200,000 to resolve a matter with Office of Federal Contract Compliance Programs. According to the Conciliation Agreement between the parties, the OFCCP

 found statistically significant adverse impact against females in the selection process for Lab Assistant and that Asians were paid less than similarly situated non-Asian White employees in the Lab Assistant position.

The alleged hiring discrimination resulted in a shortfall of only two females, and the amount of statistical significance was redacted from the Conciliation Agreement posted online by the OFCCP.  To resolve this claim, LabCorp will distribute more than $51,000 to the affected class of female applicants. In addition, the company agreed to revise its selection process, “including the criteria used in each step of the hiring process, any application screens, interviews, tests, credit checks, review of criminal history, reference checks, testing, or other selection procedure;” to review and revise the job description for Lab Assistant “to minimize the potential for gender stereotyping”; and to list the minimum requirements for the Lab Assistant position on all job postings.

To resolve the allegations of compensation discrimination, LabCorp will pay almost $150,000 to Asian Lab Assistants who were allegedly paid less than their White counterparts, even after controlling for legitimate, non-discriminatory factors. In addition, the company must conduct its own regression analysis in six months, and if it reveals statistically significant adverse impact against Asians, LabCorp has agreed to increase their salaries.

Of course, LabCorp’s settlement with the agency is not an admission of liability or wrongdoing.

Based on a recent Senate appropriations bill, it appears that the Trump Administration’s plan to merge the Equal Employment Opportunity Commission with the Office of Federal Contract Compliance Programs has stalled. The

 Senate bill would fund the OFCCP for Fiscal Year 2018 at approximately $103.5 million, which is more than the House’s proposed funding of $94.5 million. Congress would not be proposing funds for the agency if it planned to eliminate it.

This legislative action follows a letter from Acting OFCCP Director Thomas Dowd to the Institute for Workplace Equality on August 24, “acknowledg[ing] that the consolidation proposal includes several challenging transition issues.” Although Mr. Dowd did not expressly state that merger plans were on ice, he noted that any consolidation was unlikely to occur until Fiscal Year 2019 and that the agency would focus on “contemporaneous opportunities to improve effectiveness and efficiency.”

Perhaps Congress is listening to its constituents. The proposed merger was opposed by both civil rights advocacy groups and employer organizations, and my colleague Angelique Lyons cogently summarized the pros and cons here.

We will continue to monitor this issue for further developments.

Image Credit: From flickr, Creative Commons license, by frankie leon.

For all who died that day, in New York, at the Pentagon, and in Pennsylvania . . . we will never forget.

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

Experts have estimated that it may cost as much as $180 billion to repair the damage done by Hurricane Harvey. With so much rebuilding to be done, the Office of Federal Contract Compliance Programs is temporarily waiving certain equal employment opportunity requirements to expedite Hurricane Harvey relief efforts. The deputy director has the authority to waive any part of the EEO clause in a specific contract or group of contracts “when he deems that special circumstances in the national interest so require.”  (Scroll down to section (b)(1).)

On August 31, the Deputy Director of the OFCCP issued a memorandumtemporarily exempting contractors providing Hurricane Harvey relief assistance from developing written affirmative action programs. The exemption applies to the affirmative action programs required by Executive Order 11246, Section 503 of the Rehabilitation Act, and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act. According to the memorandum, the EEO clauses in affected contracts may be modified to specify that “the contractor will not be obligated to develop the written affirmative action program required under the regulations implementing [EO11246, VEVRAA, Section 503 of the Rehabilitation Act of 1973, as amended].”

Although federal contractors providing Hurricane Harvey relief assistance will not have to develop written affirmative action programs, they will still be required to comply with other EEO requirements pertaining to record keeping, record retention, employment listings, and posting of the “Equal Opportunity is the Law” notice.

The affirmative action program exemption will last three months, but it may be extended “should special circumstances in the national interest so require.”

It’s been a while since I’ve picked on an advice columnist for leading readers astray on employment law, but we have one, from the usually-sound Work Advice column by Karla Miller of The Washington Post.

Nothing in this blog post shall be construed as legal advice. 

The letter writer complains that her employer is going to start evaluating employees based in part on ...

Yesterday, the U.S. Court of Appeals for the Fifth Circuit granted the unopposed motion of 

the U.S. Department of Labor to dismiss as moot the appeal in the “overtime case” of Nevada v. U.S. Department of Labor. The Fifth Circuit order brings that litigation to an end.

For more details on this litigation, please read our recent bulletin by Jim Coleman and Ellen Kearns, the co-chairs of our firm’s Wage and Hour Practice Group.

The DOL is expected to begin a new rulemaking process and is expected to propose increasing the salary thresholds for the executive, administrative, and (some) professional exemptions to the overtime requirements under the Fair Labor Standards Act — but not by nearly as much as they would have been increased under the Obama Administration rule that has been struck down.

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

Bloomberg BNA reported Friday evening that President Trump has nominated Cheryl Stanton of South Carolina as Administrator of the Wage Hour Division of the U.S. Department of Labor. Ms. Stanton is currently executive director of the S.C. Department of Employment and Workforce, which administers unemployment compensation for the state. She has been a shareholder with the management-side employment firm Ogletree Deakins twice, separated by a period in which she was the principal White House liaison to the U.S. Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission under former President George W. Bush. She is a 1994 graduate of Williams College, and a 1997 graduate of the University of Chicago School of Law. According to the Trump White House, she clerked for Supreme Court Justice Samuel Alito when he was on the U.S. Court of Appeals for the Third Circuit.

Lots going on in the wage-hour area! As noted here, today the USDOL filed a motion to dismiss as moot its appeal of the preliminary injunction blocking the Obama-era overtime rule.

Happy Labor Day Weekend, y’all!

The month of August was not kind to the Equal Employment Opportunity Commission. The EEOC’s wellness regulations were shot down by a federal court in the District of Columbia, and earlier this week the agency was told that it could not require employers to report compensation data on the new EEO-1 Reports.

But the EEOC also scored a big ...

Our thoughts and prayers this holiday weekend go out to our friends and all the people of Texas and Louisiana who have been affected by Hurricane Harvey.

And our thanks to the heroic rescue personnel.

Image Credit: From flickr, Creative Commons license, by Texas National Guard.

NOTE FROM ROBIN: This is a client bulletin by Jim Coleman and Ellen Kearns, co-chairs of our Wage and Hour Practice Group, that went out this afternoon. Because the blog subscription and bulletin subscription lists are not identical, I’m reproducing the bulletin here for our blog readers.

UPDATE (9/5/17): As we expected, today the U.S. Department of Labor filed ...

Just in time for Labor Day . . . the new Executive Labor Summary is out! Our favorite labor 

commentator, David Phippen of our Washington DC-Metro Office, is his usual bad* self, with the latest of President Trump’s nominees and appointees to the National Labor Relations Board, a court’s “joint employer” decision that may indicate where the now-Republican Board will end up on this issue, the UAW defeat at Nissan in Mississippi, union-related scandals at the U.S. Postal Service and between Chrysler and the UAW, and — a pro-union vote at a chain of erotica shops in New York. (Leave it to David to make labor relations sexy.) Oh, and I almost forgot – a herd of goats taking union jobs in Michigan.

*By “bad,” I mean “awesome.”

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

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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