Dear Santa 2018-12-22T09:00:46-07:00

Posted on December 22, 2018

Dear Santa,

We all got together and put together our wish-list for your visit. We realize it’s been a fascinating year on the Labor & Employment front. And we don’t want to seem greedy (and end up on the naughty list) in light of all the recent developments in Labor & Employment law that have started to level the playing field for employers. But much still needs to be accomplished for employers in order to encourage job creation and reinvestment in our workforce. Stemming the tide of frivolous litigation and abuse of agency authority would go a long, long way toward that end. And so, dear Santa, here are just a few things we would like to see in or around our tree next week:

A cooperative Congress that can actually get things done. Employers and employees, alike, suffer from the uncertainty of our current, volatile political climate.
We need more judges. Lots more judges. Federal judicial vacancies are delaying justice for employers and employees at a mind-boggling pace, and the highly politicized process of appointing new judges is a mess.
A national, unified approach to paid leave. For multi-state employers, navigating the hopelessly contradictory state laws governing paid leave is daunting, if not impossible.
An end to certain states “under-turning” the Supreme Court’s arbitration jurisprudence at every opportunity. While some states refuse to believe this, there is a controlling federal policy favoring arbitration agreements even in employment, it’s the law of the land.
Marijuana-induced clarity. As more and more states roll out pro-marijuana laws, employers are increasingly caught between a rock and a hard place given the conflicting state and federal laws governing marijuana use.
An end to EEOC overreach and litigation abuse. Courts have repeatedly called out the EEOC for its over-the-top bullying and litigation abuse. It’s time for something to be done legislatively to curb the agency’s abusive conduct.
Simplified, unified, and practical rules determining the existence or non-existence of independent contractor relationships. The current hodge-podge of separate and distinct contractor tests throughout the states and conflicting tests within the federal government make it nearly impossible to enter into contractor agreements with any assurance that there will not be expensive litigation to follow.
Conclusive guidance on LGBT and related protected categories. Legislative clarity in this arena is long overdue.
A simplified, and realistic approach to FLSA white-collar exemptions, and a less pedantic enforcement strategy from the DOL.
A Senate vote on the countless agency vacancies that remain open but ready to be filled. Positions such as the Assistant Secretary of Labor—OSHA, and many more, could be filled in an instant, but won’t be due to gridlock.

And, for a stocking stuffer, how about amending labor and employment laws to make patently clear that the party who prevails in a lawsuit or agency proceeding shall recover costs and attorneys’ fees. File a bogus unfair labor practice charge, and you pay the price. Initiate a baseless FLSA collective action, and you pay the price. The playing field has been turned on its side in this respect, as employers are forced to settle frivolous or specious claims simply to avoid the costs of litigation. When both sides face the specter of litigation expenses, there will be less abuse and more efficient processing of legitimate claims.

Loss of Trust in Manager Is Good Cause to Fire 2018-03-23T16:47:03-06:00

Posted on March 23, 2018

By Bill Wright

Montana is one of the few states where employers must have good cause to fire an employee. In this recent case, the employer fired its site manager because he had an employee return to work without a medical release and sign a supervisor’s signature on his time cards. The employee’s defense? You let other managers do it too, (although there was no evidence of similar misconduct by any other manager). The federal District Court in Montana ruled that loss of confidence in a manager constitutes good cause under Montana law. This manager operated largely independently, with little oversight. The employer therefore had to trust him. With loss of trust, came loss of responsibility.

Will this ruling affect rulings in other contexts where “good cause” matters? We don’t know, but minimally, it points to language to include in a manager’s employment agreement. Schmidt v. Old Dominion Freight Line, No. 16-cv-00159 (D.. Mont. March 21, 2018)

Equal Pay in a #MeToo World 2018-03-19T09:30:39-06:00

Posted on March 19, 2018

By Elizabeth Chilcoat

A recent case illustrates the perils of paying women less than men – even when there appears to be a good reason to do so. In Bowen v. Manheim Remarketing, Inc., the company promoted the plaintiff, a woman, to replace a more experienced male employee. The plaintiff was paid less than the more experienced male had been, it took six years of raises for her to catch up to him. The plaintiff claimed that she was paid less because she was a woman. The Eleventh Circuit decided that the employee’s Equal Pay Act claim could proceed to trial.

In reaching its decision, the court relied on “me too” evidence: evidence that the company had a history of generally paying women less than their male counterparts. The employer first became aware of issues with equal pay in 2007, even mandating an equity pay raise for women in 2009. The court also considered the employer’s history of preferring male employees and engaging in sexual harassment. Based on this evidence, the court ruled, a reasonable jury might conclude that the plaintiff’s sex was a motivating factor in the employer’s decision to pay her less.

Almost as noteworthy is the court’s discomfort with experience as a basis for determining pay. The court questioned the employer’s claim that the plaintiff’s male predecessor merited a higher salary because he was more experienced because the plaintiff was trained by her predecessor and was fully capable of performing the job. If evidence of competence can undermine the explanation that pay was based on experience, then employers need to be prepared to defend themselves in Equal Pay Act cases with clear evidence of the reason that more experience warrants higher pay. In this case, a jury will decide.

EEOC Can’t Mess With Texas (Until Folks Have A Chance To Comment On Substantive Rule) 2018-02-09T13:14:43-07:00

Posted on February 9, 2018

By Chance Hill

The U.S. District Court for the Northern District of Texas has enjoined the Equal Employment Opportunity Commission (EEOC) from enforcing its guidance on background checks against Texas. The guidance, Texas argued, directly interferes with the state’s authority to impose bans on hiring felons and to be able to discretionarily reject felons for certain jobs. The EEOC has asserted that the burden is on the employer to show an absence of disparate impact in the context of these hiring decisions, given that certain racial classes are alleged to be disproportionately impacted by consideration of felony convictions as a barrier to employment. The Court did state in its order that a categorical denial of employment to all job applicants convicted of a prior felony “paints with too broad a brush.” But, ultimately, the Court enjoined the EEOC from enforcing its guidance against Texas until the EEOC has complied with the notice and comment requirements under the Administrative Procedures Act for promulgating a substantive rule.

Click here for case.

No End in Sight – Prepare for Years of Litigation 2018-01-26T14:36:25-07:00

Posted on January 26, 2018

By Beth Ann Lennon

The United States Supreme Court gave plaintiffs an undisputed win on Monday when it decided Artis v. District of Columbia. In a 5-4 decision, the Court held that when a plaintiff brings both state and federal law claims in federal court, state courts must “stop-the-clock” on the statute of limitations for the state law claims. For Artis’s employer, this means that even after it prevailed in federal court, its defense of its November 2010 termination decision is not over. Indeed, seven years later, the employer will be defending against a second lawsuit in state court on the state law claims the federal court declined to decide. While this decision may “give the plaintiff breathing space” it leaves defendants with no end in sight.

Aid-In-The-Accomplishment 2013-06-24T16:51:18-06:00

Posted on June 24, 2013

By Bill Wright

The Supreme Court has staked out a definition for “supervisor” in the context of Title VII. Whether a person is a “supervisor” determines whether the employer can be held strictly liable for the person’s harassing conduct (because “supervisor” status aided in the accomplishment of the harassment), or whether the employer can only be liable if it was negligent.

In defining “supervisor,” the Court refused to follow cases under the National Labor Relations Act and rejected the EEOC’s guidance on the subject of “supervisor” status. According to the Supreme Court, a person is your “supervisor” if that person has authority from the employer to take “tangible employment actions” against you. Unfortunately, “tangible employment action” itself can be hard to define and whether a person has authority from the employer might be open to argument. A “tangible employment action” is a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities. or a decision causing a significant change in benefits.” (Emphasis added.) The Court also cautions that the mere fact that someone else higher in a hierarchy has to approve the decision does not mean that only the higher person is a supervisor. If an employer tries to concentrate authority to hire and fire in a few people, the Court expects that group would rely on effective recommendations from others in the organization and the employer “may be held to have effectively delegated the power to take tangible employment actions” to the individuals making recommendations. Vance v. Ball State Univ., No. 11-556 (June 24, 2013). http://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf

D.C. Circuit Finds NLRB Recess Appointments Unconstitutional 2013-01-25T16:06:33-07:00

Posted on January 25, 2013

The Court of Appeals for Washington D.C. ruled today that the President’s “recess” appointment of three members of the National Labor Relations Board was unconstitutional. Although the Senate was not holding sessions, it was not in “The Recess” either and therefore the President could not make a “recess” appointment. What happens now to all the NLRB rulings since last January?

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