Category Archives: employment law

Supremes Revive Young v. UPS Case

The reaction to yesterday’s Supreme Court decision to revive a pregnancy-discrimination lawsuit against United Parcel Service has been decidedly swift and, of course, decidedly mixed.

The Supremes based yesterday’s decision on the belief that lower courts had used the wrong standard to determine whether the company had discriminated against one of its drivers, according to the New York Times.

When Peggy Young’s doctor recommended that she avoid lifting anything heavy after she became pregnant, the company refused to give her lighter duties to accommodate her and placed her on unpaid leave, according to the 2006 lawsuit.

(UPS has since changed its policy to offer light duty to pregnant women, the Times reports.)

Barry Hartstein, co-chair of Littler’s EEO and diversity practice in Chicago,  says “the Court  essentially treated pregnancy under the classic disparate treatment theory, finding that discrimination can be inferred by certain employer conduct.”

Meanwhile, Katherine Kimpel, managing partner of Sanford Heisler Kimpel in Washington and co-author of an amicus brief in support of Ms. Young for medical providers and organizations involved in female and infant health and for the National Partnership for Women and Families, says the decision was more than just a victory for Young, who accused the delivery company of violating the federal Pregnancy Discrimination Act:

“The Supreme Court today handed a victory not only to Ms. Young but also to all pregnant women and mothers working in this country.  Ms. Young will have her day in court.  UPS does not get to subject women to a least-favored-nation status.  Other employers should be on notice.  The Supreme Court makes clear that the Pregnancy Discrimination Act has teeth.  Employers who accommodate everyone but pregnant workers will be held accountable.”

Meanwhile, Michael Droke, a Seattle-based partner in the labor and employment practice at the international law firm Dorsey & Whitney, calls the 5-4 decision a “fractured” one, adding that the Court “noted that the expansions to the Americans with Disabilities Act definitions of ‘disability’ might require companies to accommodate employees with temporary lifting restrictions, separate from the Pregnancy Discrimination Act.”

He says employers should beware that federal law, either under the ADA or Pregnancy Discrimination Act, protects disabled employees from discrimination and, in some cases, require reasonable accommodation.

“The Court refused to grant pregnant employees, in the Court’s words, a ‘most favored nations’ status,” he says. “In other words, an employer is not automatically required to give pregnant workers the same accommodations they would offer to others with temporary disabilities.

However, he adds, the Supreme Court required UPS to justify its treatment by establishing a legitimate, non-discriminatory reason for the difference.

“This may prove a very difficult burden for most employers to meet,” he says. “Employers must be very careful when granting leave requests or making job accommodations, because the Company might later be required to justify any difference in treatment for other employees.”

 

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Krawcheck Calls for Greater Diversity

Sallie Krawcheck

Sallie Krawcheck

The second day of SHRM’s Employment Law & Legislative Conference featured a morning talk by Sallie Krawcheck, a former high-profile Wall Street executive who’s now the chair of Ellevate, a New York-based mentoring network for women (formerly known as 85 Broads).

In describing her experiences as one of the few female leaders in an industry that continues to be dominated by white males, Krawcheck paid tribute to HR. “The first young man I had to fire threatened to kill me,” she said. “He said he would hunt me down in a dark alley. The second young man I had to fire insisted that I was doing so because I was actually in love with him. He suggested that I put him up in a love nest. So, I have a great deal of respect for what you in HR have to deal with.”

She also offered her own take on what led to the financial meltdown of 2008: “I don’t think it was greed so much as groupthink,” she said. “And what breaks groupthink? Diversity of thought.”

Krawcheck called on HR to “keep us honest, give us training on this, encourage us to have those courageous conversations where we say, ‘Dave, you interrupted Susie five times during her presentation, but you didn’t interrupt Bill once during his.’ ”

Companies today suffer from a surplus of mentoring opportunities for women but a deficit of sponsoring programs, she said, in which executives actively advocate for women in their careers. “Some companies are actually replacing their mentoring programs with sponsoring programs.”

Companies can demonstrate their commitment to diversity by making it a key developmental milestone, said Krawcheck. “Here’s a thought: Give responsibility for diversity to a high-potential white guy.”

Later on that day, a breakout session featured two board members from the National Labor Relations Board, who sought to explain the Board’s reasoning on controversial matters such as so-called “ambush elections” rule regarding union-certification elections.

“I’m told the best part of the new rule starts on page 500, where [Harry] Johnson and I write our dissent,” said Philip Miscimarra, who is — along with Johnson — one of the two Republican appointees to the five-member Board.

He and Johnson disagreed with the new elections rule on a number of different issues, particularly its dramatic compression of the time allowed between when a union files a certification petition and the election. “The [National Labor Relations Act] is silent with respect to timing,” said Miscimarra. “How fast is too fast, or how slow is too slow — it is silent on those issues.” He noted that both houses of Congress have passed a “resolution of disapproval” of the new rule — a resolution that could potentially nullify the rule should a Republican win the next presidential election and sign the resolution into law.

One of the most contentious issues the Board continues to wrestle with, said Miscimarra, is the extent to which companies have the right to restrict concerted activities by employees that could be considered as “disrespectful, discourteous or insubordinate.”

“Employers have been surprised to learn that rules they have in place for a good reason — rules that require employees to show courtesy and respect — are unlawful under our statute,” he said.  “I do hope the Board can do a better job of devising a standard in this area that people will find helpful.”

 

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Another City Tackles Paid Sick Days

The Philadelphia City Council today is debating a hot-button topic with potential HR ramifications that may reach far beyond the city’s limits: whether to enact a paid sick days bill into law.

If passed, the City of Brotherly Love will join San Francisco, Washington, D.C., Seattle, Portland, Ore., New York City, Jersey City, Newark and the state of Connecticut as municipalities with such laws on the books.

While the debate around such laws has been growing over the years, momentum for its passage increased after President Obama’s recent State of the Union Address, which called for cities to ensure paid sick days for millions of Americans. The president is also urging Congress to require companies to give workers up to seven days of paid sick leave a year.

According to the National Partnership for Women & Families, San Francisco became the first locality in the nation to guarantee access to earned paid sick days in 2006.

In 2008, the District of Columbia and Milwaukee passed paid sick days standards that included paid “safe” days for victims of domestic violence, sexual assault and stalking. In 2011, the Connecticut legislature became the first in the nation to pass a statewide paid sick days law, and Seattle became the fourth city, with Portland, Ore., and New York City joining their ranks in 2013.

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Men Need Not Apply?

76161057That’s the message Ruby Tuesday Inc. is sending some of its workers, according to a lawsuit recently filed by the EEOC, which accuses the restaurant chain of excluding male employees from consideration for coveted temporary assignments at a Utah resort.

Brought on behalf of male Ruby Tuesday employees Andrew Herrera and Joshua Bell, the suit claims an internal Ruby Tuesday job posting violated equal opportunity employment laws from the Civil Rights Acts of 1964 and 1991.

More specifically, the EEOC claim alleges that, in the spring of 2013, Ruby Tuesday posted an internal announcement within a 10-state region advertising temporary bartender and server positions in the chain’s Park City, Utah location, with company-provided housing for those selected. Herrera—a Ruby Tuesday employee since 2005 in Corvallis, Ore.—was one of at least two male workers who wanted to apply for one of the positions, “because of the chance to earn more money in the busy summer resort town,” according to an EEOC statement.

The announcement, however, stated that “only females would be considered, and Ruby Tuesday in fact selected only women for those summer jobs, supposedly from fears about housing employees of both genders together,” according to the EEOC.

What may be most surprising about this particular case is “that Ruby Tuesday was pretty upfront about wanting only women to apply for the positions,” according to a recent Washington Post article.

Ruby Tuesday did not immediately respond to the Post’s requests for comment. But if the Maryville, Tenn.-based chain did in fact make clear it would only seriously consider women for these roles, such a move would be a “rare” and “explicit example” of gender discrimination, says William R. Tamayo, a San Francisco-based regional attorney for the EEOC.

“This suit is a cautionary tale to employers,” says Tamayo, “that sex-based employment decisions are rarely justified, and are not consistent with good business judgment.”

This certainly does seem like a unique case, and we’ll have to wait and see if more suits like this one begin to emerge.

But making positions such as those sought by Andrew Herrera and his male colleagues available to men could not only boost overall labor conditions, but may actually help level the playing field for women in some industries, according to UCLA Law Professor Noah Zatz.

“Jobs constructed as being for women pay less [and] have fewer promotional opportunities,” Zatz told TakePart.

“Busting up that single-sex monopoly in waitressing, in-flight service and nursing, for example, could be a strategy for disrupting the ways jobs are disadvantageous to women.”

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Supremes Look at EEOC’s Role in Conciliation

Today the U.S. Supreme Court is hearing oral arguments in Mach Mining v. Equal Employment Opportunity Commission — a key employment case that addresses whether a court may enforce the EEOC’s duty to conciliate discrimination claims before filing suit, legal experts say.

In the Mach Mining case, the EEOC alleged that Mach Mining had discriminated against a class of female job applicants at its mine near Johnston City, Ill. The EEOC notified the company of its intention to begin informal conciliation, and while the parties discussed possible resolution, they did not reach an agreement.

In the federal case, Mach Mining argued that the suit should be dismissed because the EEOC failed to conciliate in good faith. Then, in 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment-discrimination suit brought by the EEOC.

Gerald Maatman Jr., co-chair of the class action defense group of Seyfarth Shaw, says the Mach Mining case has significant implications for employers that are dealing with the EEOC.

“If the Supreme Court sides with the Seventh Circuit, employers will lose a powerful defense against the EEOC’s aggressive litigation tactics,” he wrote recently in Seyfarth’s Workplace Class Action Blog.

Maatman also says the Seventh Circuit’s decision had “far-reaching, real world significance to the employment community, for it means the EEOC is virtually immune from review in terms of the settlement positions it takes… prior to suing employers.”

In the amicus brief in support of Mach Mining on behalf of the American Insurance Association, Mr. Maatman and Seyfarth Shaw argue that insurers and employers facing EEOC litigation require detailed information in order to accurately set reserves and ensure that any settlement not only promptly and fairly compensates meritorious claims, but also satisfies the interests of insurance regulators.

Their brief contends that the Seventh Circuit’s ruling is “wrong as a matter of policy, since it is fundamental to the litigation process for a party to have fulsome information relative to the claims at issue. The Congressionally-mandated conciliation process was intended to provide that core knowledge;

“This is particularly important in EEOC-initiated litigation, where one of the government’s fundamental mandates is to achieve voluntary and informal compliance with anti-discrimination laws.”

And some of the reasoning behind the Seventh Circuit’s decision, as well as similar reasoning in the briefing the EEOC recently submitted to the U.S. Supreme Court—i.e., that it is essentially “too difficult” to articulate a workable standard for determining whether the EEOC met its good-faith conciliation requirement—defies practical experience, adds Steven Pearlman, partner and member of Proskauer’s employment litigation & arbitration group.

Moreover,  says Pearlman, if no limiting principle is imposed in this context, “the EEOC will be empowered to employ an unreasonable ‘take-it-or-leave-it’ approach to pre-suit settlement negotiations. In fact, courts recently have chided and even sanctioned the EEOC for engaging in such tactics.”

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Marijuana Acceptance Marches On

It’s still highly unlikely that any employer will ever have to allow an employee to work while he or she is stoned, whether there’s a safety 146967521 - smoking dopeor security risk or not, but the chips seem to keep falling away from those sturdy walls that made marijuana unacceptable, illegal and disallowed for years.

The latest indication that pot is going mainstream comes in this Illinois Appellate Court ruling (found on the Canna Law Blog site) affirming a Circuit Court’s ruling that just because a worker was fired for violating his employer’s drug-and-alcohol-free workplace policy doesn’t mean he can’t collect unemployment benefits.

Seems this maintenance worker for the Jefferson County Housing Authority fessed up to his employer — just before a random mandatory drug screening — that he might not pass because he had smoked pot several weeks earlier while on vacation. He was fired, even though his tests results were negative, and was turned down for unemployment benefits because of the nature of his termination.

The Housing Authority’s policy prohibits employees from being under the influence of any controlled substance “while in the course of employment.” Both the Circuit Court and Appellate Court agreed “course of employment” was interpreted too broadly by the Illinois Department of Employment Security to include off-duty hours.

“Among the reasons the Circuit Court found the agency’s interpretation unreasonable,” the blog states, “was the fact that marijuana is now legal in some states and the fact that it unreasonably restricted off-duty time while serving no legitimate public purpose.”

Yes, indeed, marijuana is absolutely now legal in some states, as this news analysis and this blog post by me indicate. But it’s more than going legal, as I also indicate. It’s becoming big business. Make that a huge industry.

Just this month, news releases came across my screen announcing a Cannabis Career Institute opening in San Diego as well as three others in Florida, Illinois and Nevada, all designed, as the releases state, to teach “ganjapreneurs how to succeed in the marijuana industry as the green rush continues.”

Attorneys and experts I’ve talked to assure me employers will always have the legal right — and responsibility — to keep their workplaces safe and drug-free. I just wonder how all this nudging from the “cannabusiness” community and the courts is going to impact how those employers sleep at night.

 

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Looking Ahead at Litigation Trends

looking aheadIf December was the time for workplace experts to parse the year that just went by, then January is when those same experts shift into prediction mode and forecast what may happen in the 12 months ahead.

In its 11th annual Workplace Class Action Litigation Report, Chicago-based labor and employment law firm Seyfarth Shaw does a bit of both.

The 844-page report, an executive summary of which is available here, analyzed 1,219 class-action rulings on a circuit-by-circuit and state-by-state basis to “capture key themes from 2014 and emerging trends facing U.S. companies in 2015,” according to a Seyfarth Shaw press release.

For example, two cases—Wal-Mart Stores Inc. v. Dukes and Comcast Corp. v. Behrend—continued to serve as “the most influential ‘pivot points’ for Rule 23 decisions in 2014, having a wide-ranging impact on virtually all class actions pending in federal and state courts,” the report notes. According to Seyfarth Shaw, Wal-Mart was cited 571 times across lower federal and state courts in 2014, while Comcast was cited 261 times, “which in turn generated a bevy of new case law.”

These decisions have reshaped settlement strategies, according to the report, which found governmental enforcement litigation settlements dropping to their lowest levels in a decade last year, while ERISA settlements shot up nearly tenfold from 2013. (Employment discrimination and wage-and-hour class-action settlements remained flat, however.)

Other key trends the Seyfarth Shaw report sees as poised to continue in 2015 include:

  • Wage-and-hour litigation, which represents the prime litigation risk in the workplace, as case filings increased yet again in 2014.
  • FLSA collective actions and state law wage-and-hour class actions, which produced more decisions than any other area of complex employment litigation in 2014.
  • The Department of Labor and Equal Employment Opportunity Commission continued their aggressive litigation approaches with mixed results in 2014, marked by several losses in the federal courts and their lowest aggregate settlement recoveries since 2006.
  • The Class Action Fairness Act, which experienced a “transformative” year in 2014, solidifying defense strategies to secure removal of class actions to federal courts.

“In response to recent Supreme Court decisions on class-action issues, Rule 23 law is undergoing a major transformation, and as a result, employers litigated an increased number of novel defenses in 2014,” says Gerald L. Maatman Jr., co-chair of Seyfarth Shaw’s class-action defense group and author of this year’s report.

“At the same time, wage-and-hour class actions and collective actions also continued their meteoric rise to new record levels, while the U.S. Department of Labor and U.S. Equal Employment Opportunity Commission advanced their litigation agendas in an aggressive fashion,” continues Maatman. “All told, employers face a much more challenging landscape for defending workplace class-action litigation in 2015.”

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Are You a Minister of Culture?

How’s your company’s mojo supply these days?

According to a new piece by Forbes contributor Liz Ryan, it’s likely lower than it could be because some “leaders can’t imagine treating their employees any better than the law requires.”

And that’s what happens when fear-based leaders tell their HR people to simply focus on employment-law compliance instead of employee engagement and other strategic issues, she writes in a new post titled “Reinventing Human Resources For The Human Workplace.”

In the piece, Ryan calls it “a tragedy when HR people are assigned to spout policies and process performance reviews rather than to serve as the Ministers of Culture every organization needs.”

“HR people who see their job as keeping the firm out of court miss dozens of chances a day to build community and trust.”

In order to do this, she says, HR needs “to actively get out there with our teammates and into the talent market and say ‘How do we make this place the hands-down coolest place to work?’ I’m not talking about slogans and happy talk or even Friday night pizza parties or foosball.”

“I’m talking about grown-up accountability for the trust level in the organization. That’s the fuel tank your HR team is responsible for keeping full to its brim. Your Finance team looks after the money. Your HR people keep the mojo stores full.”

And one of the best ways for HR leaders to maintain a company’s good energy, she says, is actually quite simple: “They have to ask way more questions than they answer.”

Indeed, when it comes to mastering a topic as tricky as mojo, taking a “curious” approach certainly seems to make quite a bit of sense.

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Stopping ‘Sex Stereotyping’

After the Department of Labor announced a Final Rule prohibiting discrimination based on sexual orientation and gender identity by federal contractors and subcontractors, employers are now being urged to revisit their policies to ensure they are in compliance with the new rule.

Connie Bertram, head of Proskauer’s Washington-based labor and employment law practice and co-head of Proskauer’s government regulatory compliance and relations group, says the executive order and implementing rules clarify the protections that the Office of Federal Contract Compliance Programs had been extending, in part, “under a ‘sex stereotyping’ theory.”

“OFCCP’s revised Federal Contract Compliance Manual, which was released last year, instructs compliance officers conducting audits to examine whether contractors policies make prohibited distinctions in the conditions of employment based on sex-based stereotypes,” she says. “OFCCP has issued several notices of violation recently based on this theory.”

The rule implements Executive Order 13672, which was signed by President Obama on July 21, and is the first federal action to specifically address LGBT workplace equality in the private sector. It will become effective 120 days after its publication in the Federal Register and will apply to federal contracts entered into or modified on or after that date. More information is available at http://www.dol.gov/ofccp/LGBT/.

“Americans believe in fairness and opportunity. No one should live in fear of being fired or passed over or discriminated against at work simply because of who they are or who they love,” said U.S. Secretary of Labor Thomas E. Perez. “Laws prohibiting workplace discrimination on the bases of sexual orientation and gender identity are long overdue, and we’re taking a big step forward today to fix that.”

While 18 states, the District of Columbia and many businesses, large and small, already offer workplace protections to lesbian, gay, bisexual and transgender employees, but this rule first federal action to ensure LGBT workplace equality in the private sector, according to the press release announcing the rule.

“This rule will extend protections to millions of workers who are employed by or seek jobs with federal contractors and subcontractors, ensuring that sexual orientation and gender identity are never used as justification for workplace discrimination by those that profit from taxpayer dollars,” says Patricia A. Shiu, director of the department’s Office of Federal Contract Compliance Programs, which will enforce the new requirements.

Bertram says it will be critical for contractors to update their internal and external policies, third-party notifications and affirmative action plans to include these new protected categories.

And, as with any protected category, she says, “it is critical to train managers concerning their non-discrimination obligations and to monitor compliance with the contractor’s anti-discrimination policies.

“It is not enough to ‘talk the talk,’ ” Bertram says. “[Y]ou have to ‘walk the walk’ to ensure compliance and avoid claims.”

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EEOC Adds Pregnancy Cases to Controversy

Just an update for those who are following the recent pregnancy-discrimination guidelines issued by the Equal Employment 490128943 -- pregnanct employeeOpportunity Commission — despite the controversy some think the agency created amidst the pending U.S. Supreme Court consideration of Young v. United Parcel Inc.:  The EEOC isn’t waiting on the high court before filing or settling pregnancy-discrimination lawsuits either.

According to the EEOC’s website, press releases were issued on nine lawsuits filed and two settlements since the agency issued its updated Enforcement Guidance on Pregnancy Discrimination and Related Issues on July 14.

Here, for your information — should you choose to venture into this much reading — are all the cases the EEOC has filed and listed on its website against employers accused of pregnancy discrimination since the guidance was issued, from most recent to oldest:

All the suits in question accuse the businesses of violating Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

“I am surprised that this issue continues to be a recurring theme in the workplace in this day and age,” says Robert Canino, regional attorney for the EEOC’s Dallas District Office, which filed the Pharmacy Solutions lawsuit. “We hope that by continuing to increase public awareness through our law-enforcement efforts, we will see more of an awakening by some companies about the right of a woman to hold on to her job and to earn a living when she is expecting and during her maternity leave.”

But critics of the EEOC’s assertiveness and timing in issuing its guidance — which was the focus of this HREOnline news analysis I wrote back in July — say adding cases to the pregnancy-discrimination docket only clutters an already-cluttered legal landscape.

“With its new pregnancy enforcement guidance still in its first trimester, the EEOC has set about vigorously pursuing companies that do not comply,” thereby filling the courts with more to work on as the Supreme Court hearing has yet to be scheduled,  says Philip Voluck, managing partner in the Blue Bell, Pa., office of Kaufman Dolowich & Voluck.

“Since the EEOC first gave birth [pun intended, no doubt] to the guidance in July, it has inserted itself as plaintiff in at least nine federal-court lawsuits against employers [allegedly] discriminating against pregnant employees,” he says. “Each decision is accompanied by rather strong remarks from the [agency], which state quite clearly its intent to induce an ‘awakening’ by employers and erase ‘archaic prejudices’ still held by companies toward pregnant women.”

The issue up for consideration in Young v. UPS is whether an employer — in this case, UPS —  is required under the PDA to offer light-duty work to pregnant employees with restrictions, even if light-duty work is available for certain categories of nonpregnant employees.

“This is precisely the issue the Supreme Court has yet to take up,” Voluck told me back in July, “and that decision won’t come out until next year some time. “I honestly have no idea why this was issued at this time,” he said then. “A power move? I have no idea.

“It’s like the Perfect Storm, these two entities colliding,” he said, referring to the 2000 movie, “though my crystal ball tells me there’s no doubt the Supreme Court will expand the rights of pregnant women.”

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