Employment & Labor Insider

Of course he does! Continue Reading ›

This Paneb makes Harvey Weinstein look like a choirboy. Continue Reading ›

One court says yes, but it's complicated. Continue Reading ›

The GOP majority is back, baby! Continue Reading ›

Do it the old-fashioned way. Continue Reading ›

Career interruptions negatively affect pay. Who knew? Continue Reading ›

Yikes. Sounds like Japan is past due for a Pregnancy Discrimination Act. Continue Reading ›

Here are five hot issues that employers ignore at their peril. Continue Reading ›

Don't these columnists read the papers? Continue Reading ›

Sheesh. Continue Reading ›

It's the attorney who won the ground-breaking "pregnancy accommodation" case. Continue Reading ›

The Sixth Circuit decision seems overall correct, although it contains some "woke dicta," too. Continue Reading ›

Watching basketball when you should be working? The March Madness website is here to help you. Continue Reading ›

Are you in the know? Continue Reading ›

Incremental "tweaks" might be the best course for employers. Continue Reading ›

Let's look at the arguments, pro and con, that the Supreme Court is likely to hear someday. Continue Reading ›

Today's decision (all 163 pages of it) is from the Second Circuit (Connecticut, New York, and Vermont). Continue Reading ›

Have I missed any? Continue Reading ›

Interesting. Continue Reading ›

Not a lot to the EEOC's 2018-22 Strategic Enforcement Plan, but that might be good for employers. Continue Reading ›

Life is good. Continue Reading ›

Killin' time with Snapchat and Candy Crush during working hours. Continue Reading ›

Workplace romance in the #MeToo era is so complicated. Continue Reading ›

An injunction of the EEOC's 2012 Guidance on use of criminal background information applies only to the State of Texas . . . but all employers might be able to make use of it. Continue Reading ›

Here are 10 questions to help you think it through. Continue Reading ›

After all, Fiscal Year 2017 ended just about the time that #MeToo began. Continue Reading ›

A residential care provider has settled an EEOC lawsuit alleging failure to accommodate an employee's pregnancy. Continue Reading ›

It's possible to discriminate against someone of your own faith. And illegal. Continue Reading ›

Once again, I wallow in the mud so you won't have to. Continue Reading ›

Employers have until March 31. No comp data required.  Continue Reading ›

Hard to believe, but labor and employment services are generally considered "non-essential."  :-( Continue Reading ›

Just say no! Continue Reading ›

UPDATE (1/26/18): Proposed regulations were published in today's Federal Register. Stay tuned! Continue Reading ›

Not really a surprise. Continue Reading ›

I'm still getting the hang of this new website. Please bear with me! Continue Reading ›

In honor of Martin Luther King day . . .  Continue Reading ›

The proposal to do away with confidentiality in sexual harassment settlements is likely to hurt victims at least as much as it exposes perps. Continue Reading ›

And here you were, reading the business news. Silly you. Continue Reading ›

I do not think "associational discrimination" means what you think it means. Continue Reading ›

I hope everyone's holidays were happy. While I was out . . . Continue Reading ›

We're on holidays/vacation until the new year and will not have any posts next week. We'll be back after New Year's. Continue Reading ›

My apologies to Clement Clarke Moore. Happy holidays! Continue Reading ›

You snooze, you lose, the court said. (In so many words.) Continue Reading ›

This bustin' on HR is gettin' me down, You got to quit kickin' HR around.
 Continue Reading ›

Welcome back to an old friend, and goodbye to one we wish we'd had longer. Continue Reading ›

The issue of whether Title VII prohibits sexual orientation bias will have to be resolved another day. Continue Reading ›

Wishing you a happy Hanukkah and the happiest of new years. Continue Reading ›

Here are some initial thoughts. Continue Reading ›

And did it with such grace! After all, she is Miss Manners. Continue Reading ›

A boss who grabs an employee's breasts without her consent is indeed guilty of sexual harassment. Continue Reading ›

One more thing to be thankful for, the week after Thanksgiving. Continue Reading ›

What are you grateful for this year? Here is my list. Continue Reading ›

So, you don't want to be a sexual harasser at work? Good for you! Follow these dos and don'ts, and you should be in great shape. Continue Reading ›

The feds are talking about NLRB-EEOC coordination, an end to collection of compensation data, and an inflation-indexed salary test for the overtime exemption. Here's the scoop. Continue Reading ›

Your reviews of your employer may not be as anonymous as you think. Continue Reading ›

I hope you'll join me for one or more of the following events, coming up in the next couple of weeks. Continue Reading ›

We have a new General Counsel at the National Labor Relations Board! Continue Reading ›

According to a Wall Street Journal/NBC News poll published this week, 48 percent of working women believed they had been victims of sexual harassment in the workplace.

My reaction was, “Only 48 percent?” Continue Reading ›

*But were afraid to ask.

Welcome to our new website and media portal, and we appreciate your patience as we've been perfecting it! Here is a quick tour on the ways you can find our media and become a subscriber. Continue Reading ›

How much do you know about an employer’s reasonable accommodation obligations under the law(s)? Take this quiz and find out!

Question 1: Which of the following federal employment laws require reasonable 

accommodation, either by their terms or as courts have interpreted them over the years?

A. The Americans with Disabilities Act

B. The Family and Medical Leave Act

C. Title VII-religion

D. The Nursing Mothers Act

E. The Pregnancy Discrimination Act

F. All of the above

G. A, C, D, and E

ANSWER: G. The FMLA does not require reasonable accommodation, but all of these other laws do. And there is some overlap between the FMLA and pregnancy or disability accommodation because leave for pregnancy or disability can be a form of reasonable accommodation. Continue Reading ›

Well, almost! Our new blog, Affirmative Action Edition, will go live on Friday.

On with the show!

California Streamin’. Gov. Jerry Brown has either signed into law or allowed to take effect a torrent of new employment laws that will take effect January 1. Nestor Barrero of our LA-Century City Office has a summary of the significant ones, with recommendations for employers with operations there. Check it out!

Travel Ban 3 has been blocked. First, a federal court in Hawaii blocked President Trump’s September 24 travel ban Proclamation, which replaced the travel ban Executive Order that he issued on March 6 (“Travel Ban 2”). Continue Reading ›

Words fail me. Let’s just say that I hope he is sincere about getting the help he needs to turn his life around.

Which, among other things, should include trying to make some form of restitution to his alleged victims. (None of this ridiculous “atonement by fighting the NRA.”)

There are more Weinstein stories than I can link to, but here are the two original sources: The article by Jodi Kantor and Megan Twohey in The New York Times is here, and Ronan Farrow’s excellent and very disturbing article in The New Yorker is here.

Mr. Weinstein, through a spokesperson, has denied engaging in any non-consensual sexual relations or retaliating against anyone who refused his advances. The full denial is in the video, below.

Here are my eight takes from an employment law and Human Resources perspective:

No. 1: “Quid pro quo” harassment is just a fancy word for extortion — where the prize is sex, instead of money or property. When an employer threatens to terminate (or otherwise punish) an employee for refusing sexual advances, or promises to hire (or otherwise reward) her for participating, then that is extortion. (I’m using “she” and “her” for convenience, but men can be victims, too.) In the ordinary employment context, an employer is strictly (automatically) liable if a supervisor or manager engages in this type of harassment. Continue Reading ›

Last month, I had the pleasure of speaking to the Federal Bar Association about hot topics under the Americans with Disabilities Act with my blogging buddy Bill Goren, proprietor of the Understanding the ADA blog. If you haven’t visited Bill’s blog, you should — he covers all aspects of the ADA, including Titles II and III, as well as the employment provisions (Title I).

Here are four ADA (or ADA-related) areas that employers need to watch in the coming year: Continue Reading ›

Asserting that the U.S. Department of Justice “must interpret Title VII as written by Congress,” the DOJ is reversing the Obama-era interpretation of Title VII, taking the position that Title VII does not prohibit discrimination based on gender identity.

In a memorandum issued this week by Attorney General Jeff Sessions, the DOJ formally withdrew a 2014 memorandum by then-Attorney General Eric Holder taking the contrary position.

Attorney General Sessions contends that transgender individuals are protected from discrimination based on sex, but not based on “gender identity per se.” He noted that Title VII refers only to discrimination based on “sex,” which is “ordinarily defined to mean biologically male or female.” He also noted that Congress had specifically referred to gender identity in other contexts, indicating that it would have done so in Title VII had that been its intent. Finally, he said that Title VII did not prohibit treatment “that [took] account of the sex of employees but [did] not impose different burdens on similarly situated members of each sex,” specifically referencing sex-specific bathrooms.

The memorandum concludes as follows:

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections. Nor does this memorandum remove or reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII. . . . The Department of Justice has vigorously enforced [federal laws specifically protecting transgender individuals], and will continue to do so, on behalf of all Americans, including transgender Americans.

The DOJ position is not a surprise, given that it recently submitted a “friend of the court” brief making roughly the same arguments in a sexual orientation discrimination case. Continue Reading ›

The U.S. Customs and Immigration Services has resumed the “priority processing” option for all H-1B applications. Jeanette Phelan of our Jacksonville Office has the details here. Continue Reading ›

The Affirmative Action and OFCCP Compliance Practice Group will be launching its own new blog, Affirmative Action Edition, later this month. During the brief intermission, get yourself a treat! Continue Reading ›

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.) Continue Reading ›

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. Continue Reading ›

(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! Continue Reading ›

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. Continue Reading ›

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: Continue Reading ›

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. Continue Reading ›

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.

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. Continue Reading ›

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! Continue Reading ›

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

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.

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. Continue Reading ›

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! The USDOL filed a motion to dismiss as moot its appeal of the preliminary injunction blocking the Obama-era overtime rule. Continue Reading ›

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. Continue Reading ›

Just in time for Labor Day . . . 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.” Continue Reading ›

I’m reading the decision as we speak, and we’ll be back soon with analysis from our Wage and Hour gurus, Jim 

Coleman and Ellen Kearns. But meanwhile, here is the Opinion and Order from U.S. District Court Judge Amos Mazzant, and here is the Judgment.

The judge granted a motion for summary judgment filed by the business plaintiffs, a group led by the Plano (TX) Chamber of Commerce.

You may recall that Judge Mazzant’s preliminary injunction, issued last November, is on appeal to the U.S. Court of Appeals for the Fifth Circuit.

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

This just in, from Randel Johnson, Vice President of Labor, Immigration, and Employee Benefits at the U.S. Chamber of Commerce:

Members of the Chamber’s Labor Relations and Employee Benefits Committees:

We have just learned that the deadline for compliance with the new EEO-1 form reporting requirement for data on hours and compensation will be stayed indefinitely. According to our sources, [the Office of Information and Regulatory Affairs of the Office of Management and Budget] based their decision on two grounds, one of which was the appeal submitted by the Chamber that highlighted the new form’s problems with cost, utility, and confidentiality. [The Equal Employment Opportunity Commission] will be publishing further details about what actions they will be taking and any future deadlines and timelines in the Federal Register.

This is a victory, not just for the business community, but for common sense in the world of regulations and information collection. As you know, the Chamber was at the forefront throughout the development of the revised form in crafting arguments opposing EEOC’s gross overreach in expanding the existing EEO-1 form to unmanageable proportions without any discernable benefit. . . .

We will provide more details on this important development as they become available.

Hopefully you’ll find this good news as the summer comes to an end!

I was not a fan of this new EEO-1 reporting requirement, so I am happy as a clam. Continue Reading ›