Category Archives: legislative

Mixed Interpretations of Mach Mining Decision

Reactions to last week’s U.S. Supreme Court ruling in Mach Mining v. EEOC are plentiful, and mixed. The decision essentially came down 78805354 -- Supreme Court for left sidein favor of employers and against the U.S. Equal Employment Opportunity Commission, but just who the real winner is — and by how much — is subject to interpretation.

In the case, Mach Mining was accused by the EEOC of discriminating against women who applied for jobs at its Johnson City, Ill., coal mine. The EEOC filed suit in 2008 after an unsuccessful job applicant complained to the agency that the company never hired a female miner.

In response, Mach argued for an intensive federal-court review of conciliation efforts the EEOC should have engaged in, but Mach argued were not carried out — as required under Title VII of the Civil Rights Act — prior to the company being sued.

“In language that is sure to be repeated back to the EEOC for years to come, the Supreme Court held that ‘[a]bsent such review, the commission’s compliance with the law would rest in the commission’s hands alone,’ ” say Seyfarth Shaw attorneys Gerald L. Maatman Jr., Christopher Cascino and Matthew Gagnon in this blog post. “This, the Supreme Court said, would be contrary to ‘the court’s strong presumption in favor of judicial review of administrative action.’ ” They go on:

“While the Supreme Court did not rule that the intensive review that Mach Mining argued for was required, the case nevertheless represents a significant win for employers and resounding defeat for the EEOC. The EEOC will no longer be able to file suit against employers after paying mere lip-service to its conciliation efforts, and to give them the back of the hand in response to requests for fulsome information about liability and exposure in a threatened lawsuit. And employers will, as a result, be in a better position to settle meritorious claims  on reasonable terms before the EEOC files suit, thus saving employers from unnecessary litigation expense.”

But not so fast. According to points raised by Jon Nadler, a Philadelphia-based employment attorney with Eckert Seamans Cherin & Mellott, the ruling is actually a win for the EEOC, despite the prevailing commentary and headlines. Though the court ruled the EEOC’s conciliation efforts are subject to some judicial review, “that review is extremely limited (‘relatively barebones,’ in the court’s words,” his notification says.

On the contrary, it goes on, the “EEOC will merely need to show it provided the employer with notice of the allegations — the specific alleged unlawful practices, and identification of those allegedly harmed — and to engage in some bilateral communication with the employer in an attempt to resolve the matter.”

Nevertheless, Nadler points out, though employers have complained in some instances that the EEOC “failed even to provide this basic information, now [it’s] clearly required.”

Further, in points raised by Don Lewis, shareholder with Nilan Johnson Lewis, the Supreme Court also chose not to adopt a “good faith” standard of review previously adopted by the Fourth, Sixth and Tenth Circuits. “Employers,” his notice reads, “will be pleased that the high court has recognized that the EEOC’s obligation to conciliate is enforceable in court, and that its obligation includes a requirement to disclose and discuss the essential elements of its claims and identify the parties for which it seeks relief.”

Meanwhile, in this posting, the EEOC calls the decision a “step forward for victims of discrimination” in its rejection of the “intrusive review proposed by the company and its supporters.”

The agency goes on to say that the “court recognized … the scope of review is narrow and a sworn affidavit is generally sufficient to meet the statutory requirements. If the employer has concrete evidence that such efforts were not made and the court finds in favor of the employer,” it says, “the remedy is [simply] further conciliation.”

This story on the Inside Counsel site, written in January after oral arguments were presented in the case, offers great background on the history, arguments and questions surrounding all this.

So what does it mean? Obviously, it depends on who you talk to … on whose glass is half full or otherwise. Yes, the scope of judicial review articulated in the decision “is a narrow one,” Maatman and company write, but bottom line, the court “vigorously upheld the fundamental principle that judicial review of administrative action [however slight] is [still] the norm in our legal system.”

Further, they state, “the EEOC now has to present its position in a federal court, and its litigation strategies are apt to be very different when it must justify and show the basis for its conciliation positions before a neutral fact-finder.” In their words,

“Suffice it to say, employers’ defense of ‘failure-to-conciliate’ is still alive and well, and the EEOC’s litigation strategies are now likely to be in need of rebooting.”

Or not …

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Get Set for the NLRB’s ‘Quickie-Election’ Rule!

If you thought April 15 was a date to keep you awake at night, the day before — April 14; that’s tomorrow, folks! — could be worse. 116040122 -- labor unionTomorrow is the day the National Labor Relations Board’s “ambush-election rules,” aka “quickie-election rules,” governing how union representation is voted on by employees, takes effect.

Late last month, I was made aware of this post at LaborUnionReport.com, pointing out (in pretty cryptic terms) that “as President Obama’s union attorneys controlling the National Labor Relations Board push through their so-called ‘ambush-election rules’ … the NLRB is conducting ‘practitioner’ training at NLRB offices and other locations (including a union office) across the country.”

The post says little else, but does include the PowerPoint presentation being used for the practitioners’ education. I found it somewhat interesting. You might too.

Meanwhile, NLRB General Counsel Richard F. Griffin Jr. did release early last week a guidance memo on modifications to organized-labor-representation procedures effective April 14 — specifically, how new cases will be processed from petition filing through certification. In his words,

“I am confident that the guidance provided herein will allow regions to implement the final rule effectively and efficiently.”

What effect these new rules will have remains to be seen, though Joel Barras, employment attorney at Reed Smith, says he’s pretty  confident they’ll “dramatically limit the time employers have to run pro-company campaigns.” As he puts it:

“I believe unions will now wait to file their union representation petitions until the new rules take effect. If I am right, and we see a high number of petitions filed in mid to late April, that would serve as an excellent indication that unions agree with employers that the new rules will dramatically improve the likelihood that employees will vote to join unions.”

In a webinar Friday by several Littler attorneys, addressing what more than one called this “new reality,” Tanja Thompson, Memphis, Tenn.-based office managing shareholder for Littler, confirmed that her office has seen a recent “slowdown” in the number of union petitions filed, indicating many are, indeed, probably waiting to file under the new rules, as Barras predicts.

“Make no mistake; this rule change is designed to see increases in union win rates,” she said. ” … We do anticipate accelerated activity starting April 14.”

She and the others shared cautionary tips for making sure nothing is missed in the new system, such as adhering to deadlines for supplying lists of personal contact and job information of all likely and eligible union members … and remembering that union notices will now be coming via email, not fax, and “unions don’t always get it right in who they email, yet that’s who’s being served,” said Thompson.

They also laid out all kinds of strategies for being proactive and not waiting to take action until a petition is filed under the new system, which is expected to change the current six-week election process to something closer to two-to-three weeks.

Action plans should include putting your employer statement out now on unions and how you view them, ensure supervisors and managers are comfortable talking with employees about that view, and ensuring all workers understand the value of their wages and benefits.

“My fear for employers,” said Jeff Harrison, a Minneapolis-based Littler shareholder, “is they’ll be busy meeting the many requirements [of responding to a petition] at the expense of focusing on their [anti-union] campaign communication strategies.”

For a further frame of reference on what’s coming, here is our most recent post by Michael J. O’Brien on the “current ‘quickie’ kerfuffle,” as he calls it — namely, the vote on March 19 by the U.S. House of Representatives, passing a GOP-led resolution to overturn the rule. With Obama almost certain to veto it, the vote appears to have created hardly a wrinkle in the NLRB’s preparations, as I indicated above.

Here, too, is some good discussion of the GOP’s effect on the NLRB that Tom Starner raised in a January news analysis. Specifically, he writes, “while the NLRB has characterized its actions as ‘modernizing its processes,’ legal experts representing employers say the real impact will deny employers an adequate chance to stage an anti-union campaign prior to employee voting.”

So … “gather your bragging points now,” as Harrison said in the webinar. “Conduct vulnerability assessments,” with special focus on employees being treated fairly, with dignity and respect, and with robust employee-appreciation programs … those catch phrases “you often find in union petitions,” he said.

Bottom line, look closely at your people issues, said Harrison. “Are your people treating your people right?” Because it’s those types of complaints — treatment ones — that “are almost always behind” employees being driven to unionize.

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Hitting the Road to Promote Paid Leave

X-7Last week, Secretary of Labor Thomas Perez told the Washington Post that “so much of what becomes law in Washington starts out as an experiment in different states.”

For the next month or so, Perez will be conducting his own state-to-state experiment of sorts; one that he hopes will result in workers nationwide being afforded greater flexibility in their jobs, including the right to paid leave.

As part of the Lead on Leave—Empowering Working Families Across America tour, Perez will meet with workers, state officials and employers in a handful of cities in an effort to “promote best practices and discuss how paid leave and other flexible workplace policies can help support working families and businesses,” according to a Department of Labor statement.

Perez will have company on the coast-to-coast jaunt, which kicks off today with a stop in Seattle. Valerie Jarrett, a senior advisor to the White House, and Tina Tchsen, assistant to President Barack Obama, will join him on the tour, which also includes scheduled visits to Minnesota, California, Oregon, Georgia, Colorado and Pennsylvania.

Currently, just three states—California, New Jersey and Rhode Island—offer paid family and medical leave, while only California and Massachusetts require private employers to provide paid sick leave. Meanwhile, Illinois, Ohio and Virginia provide paid parental leave to state employees, while cities such as Chicago, Austin, Texas and San Francisco do the same for municipal workers.

We may be a ways off, however, from federal legislation that obliges employers to provide paid sick leave. As a recent New York Times article points out, President Obama has urged Congress to pass a bill giving U.S. workers seven days of paid sick leave. But, garnering the necessary support in that same Congress to approve such a bill would be “a tough obstacle” to surmount, the Times article notes.

Some organizations, however, aren’t waiting on government action.

The aforementioned Times piece details Microsoft’s “unusual” method of overcoming the absence of a federal policy, noting the company’s March 26 announcement that it would require many of its 2,000 contractors and vendors to offer their employees who perform work for Microsoft 15 paid days off for sick days and vacation time.

“In some ways, it’s a uniquely American solution,” the article continues. “ … The biggest and wealthiest companies are performing the role of setting workplace policy for other businesses.”

While applauding Microsoft’s approach to providing paid leave, Ruth Milkman told the Times she doesn’t foresee other corporate heavyweights following its lead.

“It’s a moral model, but I don’t think there’s a high probability it’s going to become universal through business initiatives,” said Milkman, a professor and sociologist of labor at the City University of New York Graduate Center. “The public wants this. The resistance is all from employers. The only way is through public policy.”

We’ll see if the Lead on Leave tour takes us any closer to such policy becoming reality.

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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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SHRM Legal Conference Gets Under Way

You’ve probably heard of the best-selling book What To Expect When You’re Expecting. Well, what about what to expect when your employees are expecting? This was, in fact, the title of a session during the first day of SHRM’s 2015 Employment Law & Legislative Conference this Monday, where employment attorney Courtney Perez reminded a packed room that the Equal Employment Opportunity Commission has made targeting pregnancy discrimination one of its top enforcement priorities.

“This topic is personal for me,” said Perez, a working mom of two and the expectant mother of a third. As a senior associate at Dallas-based Carter Scholer Arnett Hamada & Mockler, she advises clients regularly on how to avoid discriminating against employees and ending up on the wrong end of a lawsuit.

Mothers make up a huge chunk of the workforce: 57 percent of women with children 1 years old or younger hold down jobs outside the home, according to the Bureau of Labor Statistics, while 62 percent of women who give birth are in the workforce at the time and 40 percent of U.S. households with children younger than 18 have mothers who are the sole or primary breadwinners, she said.

As the number of women in the workforce has grown, so too has the rate of pregnancy discrimination: The number of pregnancy discrimination charges filed with the EEOC went up by 35 percent between 1997 and 2008, said Perez. One of the biggest areas of contention revolves around the topic of light duty for pregnant workers: The Supreme Court is expected to announce its ruling soon in Young vs. UPS, in which delivery driver Peggy Young filed suit against the package delivery company after it required her to go on unpaid maternity leave instead of providing her with light duty during her pregnancy. UPS said Young didn’t qualify for a program in which temporarily disabled employees were given light duty until they could resume their regular jobs.

Should the Supreme Court rule in favor of Young, “it may expand the definition of the Pregnancy Discrimination Act,” the 1978 law passed by Congress in response to an earlier Supreme Court ruling that employers who discriminated against pregnant employees were not guilty of sex discrimination, said Perez.

Although pregnancy itself is not considered a disability under the law, the EEOC’s guidelines recommend that employers treat pregnant employees whose condition limits their job abilities the same as other temporarily disabled employees, said Perez.

She recommended a set of best practices for HR to follow, chiefly that HR ensure that a company’s policies and practices related to hiring, promotion and pay do not disadvantage pregnant employees or those who plan to take or have taken maternity leave. And beware the “mommy track,” she said, referring to the practice of steering pregnant employees into less-prestigious, lower-paying jobs.

“That’s the stuff of which discrimination lawsuits are made,” said Perez.

State governments aren’t waiting on the Supreme Court or Congress to give increased protections to pregnant workers, said Jonathan Segal, a partner at Duane Morris in Philadelphia. At least nine states have passed laws that go further than the federal PDA in requiring companies to accommodate pregnant employees, he said, part of a trend in which states are taking a more activist role in workplace matters.

“There may be gridlock at the federal level, but at the state level we’re seeing a lot of action,” said Segal during the session “All Politics is Local: State Law Trends.”

Thirteen states so far (and at least 90 municipalities) have passed so-called “ban the box” laws that prohibit employers from asking job candidates on their initial application whether they’ve ever been convicted of something. Four states have passed laws specifically protecting interns from discrimination and harassment. Twenty one states have passed laws banning discrimination on the basis of sexual orientation, and 19 of those states also have laws banning gender-identity discrimination.

“With the 2016 election, you can expect to see more ballot initiatives pertaining to paid sick leave, raising the minimum wage, gender identity — more Democratic voters tend to participate in presidential elections than mid-term ones, and these issues resonate with them,” said Segal.

Conservative state lawmakers have also been active: Twenty-two states have passed laws protecting the right of employees to store guns in their cars while they’re at work. A new law proposed in Pennsylvania would even allow employees to store guns on the outside of their vehicles, said Segal. Meanwhile, the number of “right to work” states is at an all-time high of 26, having recently been joined by Wisconsin and Michigan.

All of this poses a special burden for multi-state employers, said Segal, who must comply with a patchwork of regulations across the country.

In some cases, he said, the best approach is to keep it simple. With respect to ban-the-box, it might make sense to simply remove the question from all job application forms, rather than having differing forms for different jurisdictions.

“Does it really make sense to have multiple forms for different states?” asked Segal. “This is an area where we’re certainly going to see more states adopt this rule. It’s one thing that actually attracts support from both Republicans and Democrats.”

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Shoring Up Pension Plans

About two-thirds of companies that sponsor defined-benefit plans plan to take steps this year to protect their bottom lines from expected rises in premiums from the Pension Benefit Guaranty Corp.

That’s according to a new survey from Aon Hewitt, which queried 183 DB plan sponsors about their current and future plans. Twenty-two percent said they’re “very likely” to offer terminated vested participants a lump-sum window this year, while 19 percent plan to increase cash contributions to their plans to reduce PBGC premiums in the year ahead and 21 percent will consider purchasing annuities for some of their plan participants.

“A growing number of plan sponsors anticipate increasing pension plan costs due to recent changes to the Society of Actuaries longevity models and rising PBGC premiums,” said Aon Hewitt’s Ari Jacobs, its global retirement solutions leader.

President Obama has once again proposed giving the PBGC the power to raise premiums on single and multiemployer DB plans, a strategy that would raise a projected $19 billion over the next decade (Congress rejected the President’s previous proposal). This move is staunchly opposed by many in the business community, however — including the ERISA Industry Committee –  who say it would “create a direct conflict of interest.”

“This proposal continues to resurface each year, and policymakers appropriately have rejected it as an inappropriate and impractical expansion of government authority that would hurt plan participants and plan sponsors,” ERIC CEO Annette Guarisco Fildes said in a statement.

Although the PBGC is now on sturdier financial footing than in previous years — thanks in part to an improving economy — the agency still faces considerable deficits in its single-plan and multiemployer insurance plans. The annual report estimates that the multiemployer plan has a 90-percent chance of running out of money by 2025.

Late last year Congress passed the Multiemployer Pension Reform Act, which makes it easier for sponsors of plans that are at serious financial risk to reduce payments to retirees, with the intent of reducing the risk that the PBGC will need to take over the plan.

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2014’s Top 10 Posts

Here at The Leader Board, it was another interesting year covering the HR arena, with issues ranging from the controversy surrounding the HR certification, to lawsuits based on a worker’s commute, to HR leaders’ efforts to ensure their organizations’ compliance with the Affordable Care Act and various other legal requirements, just to name a few.

Below are links to the top 10 most-read posts of 2014, according to Google Analytics.

When viewed together, the posts create an accurate mosaic of the issues HR leaders are faced this year and are likely to continue dealing with into the new year.

Enjoy!

  1. SHRM Rolls Out New Certification (May 13)
  2. HR Plaintiffs Build Their Case Against Lowe’s (Jan. 24)
  3. Google Tackles Incentives and Rewards (April 29)
  4. More Restrictions on Criminal-Background Checks (Feb. 10)
  5. Employers Missing ADA Coverage in FMLA Cases (June 30)
  6. Friedman Shakes It Up at SHRM (June 23)
  7. ‘The 27 Challenges Managers Face’ (July 28)
  8. Who’s Leading the Way? (Nov. 13)
  9. Woman Sues Ex-Employer Over Commute (July 2)
  10. Giving HR the Boot (April 9)
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NLRB: Targeting McDonald’s as ‘Joint Employer’

I suspect most of you have been following, to some extent, the fast-food worker protests of the past couple of years. As recently as Dec. 4, fast-food workers from around the country demonstrated in front of their restaurants, continuing their fight for a $15-an-hour wage. 486860229

Well, the latest update in the story came on Friday, when the National Labor Relations Board issued complaints against McDonald’s franchisees and their franchisor, McDonald’s USA, as joint employers, alleging that they violated the rights of employees participating in the protests by making threats and retaliating against them.

Kendall Fells, organizing director of the Fight for 15, a group formed to advance the cause of a $15 living wage, told the Chicago Tribune (registration required) that “McDonald’s exerts such extensive control over its franchised business operations that, for all intents and purposes, McDonald’s is the boss. It’s obvious that the company should share responsibility with franchisees for the treatment of its workers.”

The NLRB’s General Counsel, Richard Griffin, issued 78 charges against McDonald’s and its franchisees. In response to the NLRB announcement, McDonald’s issued the following statement

“McDonald’s is disappointed with the Board’s decision to overreach and move forward with these charges, and will contest the joint employer allegation as well as the unfair labor practice charges in the proper forums. These allegations are driven in large part by a two-year, union-financed campaign that has targeted the McDonald’s brand and impacted McDonald’s restaurants. McDonald’s has taken the appropriate measures, working properly with its independent franchisees, to defend itself against that attack on its business. McDonald’s serves its 2,500 independent franchisees’ interests by protecting and promoting the McDonald’s brand and by providing access to resources related to food quality, customer service and restaurant management, among other things. These optional resources help entrepreneurs operate successful businesses. This relationship does not establish a joint-employer relationship under the law—and decades of case law support that principle.”

On Friday afternoon, I asked Marshall Babson — counsel in the New York and Washington offices of Seyfarth Shaw, who served as a member of the NLRB from 1985 to 1989 — for his take on the board’s move. “I can’t imagine what evidence the general counsel at NLRB has to justify the issuance of the complaints, but for more than 50 years, the general view has been that you can’t be a joint employer unless you’re an employer,” he said.

“My understanding is that if you’re McDonald’s and most [other] franchisors, you don’t become engaged in the hiring and firing of these employees,” he went on. “You don’t set their wages, benefits, and terms and conditions of employment on a day-to-day basis. You don’t say that [someone] should be terminated for this or that. … So [the NLRB complaints] represent an extraordinary departure from the past.”

In the 40 years he’s been doing employment law, Babson said he doesn’t recall a single instance when an otherwise legitimate relationship has been challenged in this manner. Babson said his advice to employers continues to be the same: If you’re a franchisor, keep focusing on brand integrity: What kind of uniforms people should wear and the way products should be prepared; and don’t act in the capacity of an employer.

“If it takes the Supreme Court or Congress to once again remind the board that the common-law definition of employer applies here, then [so be it],” he said. “But, in the meantime, it’s unfortunate that this has the potential to disrupt long-term traditional business relationships.”

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DOJ’s Move to Protect Transgender Individuals

Even if you’re not a state or local public employer, you still might want to make note of the following news out of the Justice Department yesterday.

185232263In a memo to the DOJ’s component heads and United States Attorneys, Attorney General Eric Holder said the DOJ is now taking the position that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status, thereby clarifying the Civil Rights Division’s ability to file Title VII claims against state and local public employers on behalf of transgender individuals. Put another way, it will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination.

According to Holder …

“This important shift will ensure that the protections of the Civil Rights Act of 1964 are extended to those who suffer discrimination based on gender identity, including transgender status. This will help to foster fair and consistent treatment for all claimants.  And it reaffirms the Justice Department’s commitment to protecting the civil rights of all Americans.”

As most of you already know, the move follows a final rule released by the Department of Labor earlier this month that implements President Obama’s July 21 Executive Order 13672 prohibiting federal contractors and subcontractors from discriminating in employment practices on the bases of gender identity and sexual orientation.

As might be expected, Mara Keisling, executive director of the National Center for Transgender Equality, told the Associated Press she welcomed the news. But she also noted that, rather than breaking new ground, “it mainly affirms a position the Equal Employment Opportunity Commission has been taking since 2012.”

Earlier today, I asked Thomas B. Lewis, shareholder in the Princeton, N.J., office of law firm Stevens and Lee, to share his thoughts on the move.

Lewis suggested private employers should pay attention to this, because the “natural progression” will be for these protections to be applied to the private sector.

“These protections already [exist now in some states, such as New Jersey] and I think it’s only natural that other states will follow suit with expanding discrimination protections involving transgender individuals,” he said.

“So if you’re a private-sector employer,” he added, “you have to look at this with an eye toward following the directives of the federal government and stopping any form of discrimination based on somebody’s gender identity and orientation, because it’s not healthy for the workplace environment.”

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Unemployment Discrimination Rears Head Again

76806723 -- unemployedHaven’t seen one of these for awhile.

With the economy slowly, but surely making its way back (at least for now), cases involving unemployment discrimination have taken a back seat to recruiting and talent management, as stories go.

But as this New York Post piece from earlier this month suggests, the issue appears alive and well in a Manhattan-based staffing agency. In her recent lawsuit filed with the Supreme Court State of New York, County of New York, Valerie White claims she was turned down for an HR-coordinator position with Solomon Page Group in late July of this year because she’d been out of work for more than a year.

Here is the actual lawsuit filed, alleging that the company’s director of accounting operations, who joined White and Solomon’s recruiting director for the interview, told White, ” ‘I don’t think you can do this because you have been out of work for a year.’ ”

White claims in the lawsuit she was “extremely humiliated, degraded, victimized, embarrassed and emotionally distressed” by what happened — sentiments echoed in other stories about this issue that we’ve written and come across.

I wrote a news analysis earlier this year about the push from the White House against long-term-unemployment discrimination, including President Obama’s vow during his Jan. 2014 State of the Union address to give more long-term-unemployed Americans a “fair shot” at a job.

At the time of that story, New York was one of 10 states mulling a state law banning such discrimination. New York City, meanwhile, had already enacted, in June of 2013, one of the nation’s most aggressive bans, creating “the first law in the United States that defines a job applicant’s unemployed status as a protected class along with age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation and alienage/citizenship status,” according to this report from the Society for Human Resource Management.

The SHRM piece says the NYC law is broader in scope than other laws (and bills being considered in some states) by providing plaintiffs with the right to pursue private civil claims and by treating unemployed applicants in the same way members of other protected classes are treated under nondiscrimination laws.

I was hoping to get something from Solomon about all this — about its view of the case and about doing business in New York with this law on the books — but Paul Coller, vice president of human resources at Solomon and the company’s chief human resource officer, could only say he and his colleagues “are confident the facts will show that these allegations lack any merit and, due to pending litigation, we have no further comment at this time.”

I guess it remains to be seen just how aggressive this anti-unemployment-discrimination push will be in the months and years to come. I guess it will be economy-driven. For now, my story and this subsequent column from our legal columnist, Paul Salvatore, spell out some things HR should be thinking about and doing around the push .

Salvatore’s reminder:

“HR leaders should consider the best practices released by the White House [during that State of the Union] and signed on to by many large employers. They include:

* Making sure advertising does not discourage or discriminate against the unemployed,

* Reviewing screens or procedures used in recruiting and hiring processes so individuals are not disadvantaged based solely on their unemployment status,

* Reviewing current recruiting practices to ensure a broad net is cast and to encourage all qualified candidates to consider applying, and

* Sharing best practices.”

Granted, the rate of unemployment is lower now than earlier this year, and much lower now than in the five previous years, according to the Bureau of Labor Statistics. But it’s also well above the years just preceding the Great Recession and there’s really no telling how many people out there have been out of work for so long they’ve essentially given up hope.

Best to remain vigilant, not to mention compassionate and fair, whichever way the legislative and administrative winds are blowing.

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