Friday, October 30, 2009

Could you put that plain language into the law, please?

Isn’t it interesting that there have been so many “plain language” versions and explanatory materials for the various health reform proposals coming out of both chambers of Congress? Perhaps it’s easier to discuss “plain language” intentions rather than actual legislative provisions, especially when the text of the final product will be so massive that only the most determined (or paid to do so) among us would undertake the job of actually reading the text. Politically speaking, there is also obvious utility in providing explanatory material so that health reform can be understood by the general public. Doesn’t that seem a laudable goal for the actual bill text, too?

As pointed out in the Washington Post, there is a movement afoot to get government agencies to use language in the documents that they issue (other than regulations) that will be easily understood by intended audiences. A bill introduced earlier this year (H.R. 946) by Representative Braley (Iowa) attempts to accomplish just that – with regard to executive agencies.

But what about laws – wouldn’t it be better for laws to be written in plain language, also? I suppose that one could argue that laws are written for lawyers, but then again, everyone is presumed to know the law – “ignorance of the law is no excuse,” as they say.

The Affordable Health Care for America Act (H.R. 3962), unveiled by House Democrats on October 29, is a handy example. The 1,990-page bill was supplemented by a host of documents explaining what it says, what it means, how it’s different from earlier proposals and its intended impact.

Descriptions and summaries of this sort are necessary and informative. The average person, even assuming an intense interest in health reform, just doesn’t have time to sit down and read 1,990 pages of text. But, even so, one wonders if the bill text could have been fashioned to be as straight-forward and easily understood as the text of all the materials offered by proponents to explain it.

Section 212 is a great example. Subtitled, “Guaranteed Issue and Renewal for Insured Plans and Prohibiting Rescissions,” it states that:

The requirements of sections 2711 (other than subsections (e) and (f)) and 2712 (other than paragraphs (3), and (6) of subsection (b) and subsection (e)) of the Public Health Service Act, relating to guaranteed availability and renewability of health insurance coverage, shall apply to individuals and employers in all individual and group health insurance coverage, whether offered to individuals or employers through the Health Insurance Exchange, through any employment-based health plan, or otherwise, in the same manner as such sections apply to employers and health insurance coverage offered in the small group market, except that such section 2712(b)(1) shall apply only if, before nonrenewal or discontinuation of coverage, the issuer has provided the enrollee with notice of nonpayment of premiums and there is a grace period during which the enrollee has an opportunity to correct such nonpayment. Rescissions of such coverage shall be prohibited except in cases of fraud as defined in section 2712(b)(2) 15 of such Act.

This particular provision would fall under the “laws are written for lawyers” category – although the subtitle probably qualifies as “plain language.” The problem is that one must trust that the subtitle conveys the general meaning of the provision because there is no way to know what the provision actually means just by reading the text.

But perhaps we shouldn’t worry because, according to the explanatory material provided by the bill’s proponents, “the Affordable Health Care For America Act will stop insurance companies from denying coverage to Americans with pre-existing conditions such as heart disease, cancer or diabetes and from hiking up rates or dropping coverage for those who get sick.” Section 212 probably falls somewhere under this explanation – you just can’t take it to court.

Wednesday, October 28, 2009

Are your federal law postings up to date?

As employers well know, posters aren’t just for teenagers’ rooms. Recent legal developments have required updates to employer’s posting requirements designed to inform employees of their rights under federal EEO and labor laws. On October 22, 2009, the EEOC posted on its website a revised "Equal Employment Opportunity is the Law" poster that reflects current federal employment discrimination law, including two new laws – the Americans with Disabilities Act Amendments Act of 2008 (effective on January 1, 2009) and the Genetic Information Nondiscrimination Act of 2008 (effective November 21, 2009). The revised poster also includes updates from the Department of Labor. The updated EEOC poster is available in English, Arabic, Chinese and Spanish. Up to 10 copies of the poster may be ordered from the EEOC's website at

Employers covered by the Fair Labor Standards Act must post the Department of Labor’s minimum wage poster, WHD Publication 1088, in each of its establishments. The federal minimum hourly wage increased to $7.25 per hour on July 24, 2009, the last of three scheduled increases put in place by The Fair Minimum Wage Act of 2007. Accordingly, the Labor Department’s Wage and Hour Division revised the poster in July 2009 to reflect the latest minimum wage increase. However, the agency has indicated that the July 2007 version of the minimum wage poster, which reflects the 2007 amendments to the Fair Labor Standards Act, is still valid and employers may continue to post that version.

For federal contractors, the Beck postings are no longer required, but a new, broader posting requirement is on the way. President Barack Obama issued an Executive Order (EO) on January 30, 2009 revoking an EO issued by former President George W. Bush that required non-exempt federal contractors and subcontractors to post a "Notice of Employee Rights Concerning Payment of Union Dues or Fees." The notice that had been required by Bush's EO 13201 was limited to informing employees of their rights under the decisions of the US Supreme Court in Communications Workers of America v Beck [109 LC ¶10,548, 487 US 735 (1988)], and related cases. In EO 13496, Obama replaced Bush's mandate with a broader obligation requiring federal contractors to inform their employees of all their rights under the under federal labor laws, including the National Labor Relations Act.

On Monday, March 30, 2009, the Department of Labor published a final rule, effective that date, rescinding the Beck posting regulations (74 FR 14045). On August 3, 2009 the Labor Department issued a notice of proposed rulemaking and request for comments on its regulation to implement President Obama's EO 13496 (74 FR 38488). The proposed rule contains the content to be required for the posting. The comment period on the proposed rule ended on September 2, 2009; thus, a final rule should be issued late this year or early next year.

Monday, October 26, 2009

Can workers be required to take the H1N1 vaccine?

With the H1N1 flu widespread in 46 states, and the vaccine lagging, President Obama declared the outbreak a national emergency on Saturday, October 24. The National Law Journal (via, subscription required) is reporting that more lawyers are receiving questions from employers about mandating swine flu shots for workers.

“Employers should not mandate that people get vaccinations, but they should strongly encourage it," said Steve Biddle, who heads San Francisco-based Littler Mendelson's recently formed H1N1 practice group. Yet, John Michels Jr., a partner in Chicago's Baker & McKenzie, said that in private employment, "the law is pretty well established" regarding an employer's right to mandate vaccinations. If an employer can establish the shots are job-related and a business necessity, such vaccinations can be a legitimate job qualification. However, he said, “employees may be able to challenge the newness of the H1N1 vaccine.”

Employers should not forget to review the EEOC’s guidance on pandemic preparedness in the workplace.

Friday, October 23, 2009

It’s a woman’s world? Study shows more women are working, but society’s failed to keep pace

The change ain’t a-comin’, it’s here. At least according to a recent report on working women and society released by the Center for American Progress and California First Lady Maria Shriver, among others. Yes, society has changed. The question is what we do about it. The Shriver Report: A Woman’s Nation Changes Everything reviews the changes working women have caused in society and laments the fact society has not adapted as quickly or completely as needed.

According to the report, the majority of American families no longer follows the traditional male breadwinner, female homemaker model. Today, women are half of all U.S. workers and mothers are the primary breadwinners or co-breadwinners in nearly two-thirds of American families. Quite a change from a generation ago where women made up only one-third of all workers. The report points to a Rockefeller/Time nationwide poll that concluded that the “battle of the sexes” is over and has been replaced by “negotiations between the sexes” about a variety of topics including work, child care and elder care. Seems that, while men have generally accepted women working and making more money, both sexes are concerned that the changes are leaving children behind since there’s no longer a wife staying home to fulfill the traditional homemaker role.

Both sexes “agree that government and business are out of touch with the realities of how most families live and work today. Families need more flexible work schedules, comprehensive child care policies, redesigned family and medical leave, and equal pay,” according to the report that aims to spark conversation about the transformation to society and to get policymakers and political leaders to focus on the implications of those changes.

The report is comprised of essays and reports written by prominent professionals about different facets of women in the workplace and their impact on society. The first chapter, no doubt, also provides some of the “glitz.” Written by Maria Shriver, the chapter plays off her political ties with a historical look at the transformation of American women since President John F. Kennedy, her uncle, asked First Lady Eleanor Roosevelt to chair the first Commission on the Status of Women in 1961.

Among the chapters promising to be provocative are The New Breadwinners, which finds that even though “women are now half of workers and mothers are breadwinners or co-breadwinners in the majority of families, institutions have failed to catch up with this reality;” Invisible Yet Essential: Immigrant Women in America looks at the work once done primarily by unpaid wives of male breadwinners that is now being done by immigrant women (namely, child and parental care, home maintenance, food production and cleaning). Also, there’s Has a Man’s World Become a Woman’s Nation?, which finds that, while most men are on the path to accepting greater gender equality and relish the earnings women bring into the family, some still struggle with the “idea of widespread employment of women and mothers as it has made them question their very notion of masculinity.”

One chapter sure to spark interest is Family Friendly for All Families: Workers and caregivers need government policies that reflect today’s realities. This chapter explores the implications of government policy affecting workers and caregivers. The authors argue for a “reevaluation of the values and assumptions underlying the nation’s workplace policies and social insurance system” so they reflect the actual – not outdated or imagined – ways that families work and care today.

No doubt this chapter will spark more discussion on the impact of the enactment of the Lilly Ledbetter Fair Pay Act, the revision of the Family and Medical Leave Act (FMLA), and the EEOC’s decision to recognize discrimination against caregivers under Title VII and the ADA without creating a new protected category. Were these changes enough to reflect or fulfill workers’ needs for child care, elder care, etc., or were they simply the beginning of an onslaught of legislation employers will need to worry about implementing?

Thursday, October 22, 2009

Inouye, defense contractors to assault victims: "Not so fast"

Updating an earlier series of blogs, it has been reported recently that an amendment that would prevent the government from working with contractors who blocked the access of assault victims to the courts may be watered down or ripped out entirely from a larger defense appropriations bill.

According to the Huffington Post, Senator Daniel Inouye, (D-Hi), a career recipient of $294,000 from the same defense and aerospace contractors who would benefit from the Senator's decision, is considering removing or weakening the provision offered by Sen. Al Franken (D-Minn.) and passed by the Senate 68-30.

The report says that the contractors are "putting on a full-court press on this amendment." Why, you ask? Apparently, the contractors are concerned that the language in the Franken amendment would leave them overly exposed to lawsuits and would pose an ongoing risk that their lucrative contracts might dry up.

Rather than attempt to bridge the divide between those who believe that victims of rape should have their day in court, regardless of arbitration agreements they may have signed and those who don't, the Senate is considering removing the Title VII claim provision, thereby preventing victims of assault or rape to bring suit against the employer who may have contributed to their assault.

What could be done to stop this? Well, very little apparently. Since Inouye chairs the committee responsible for the bill, he can simply remove the provision and no one can prevent it. So, chalk up another victory for the power of money in politics and, if you're so inclined, spare a thought for employees who, it appears likely, will be unable to receive their day in court if they happen to be assaulted while in the employ of firms that mandate arbitration agreements.

Make no mistake, in the end, that's what this fight is about. Employers like Halliburton will fight tooth and nail to avoid having to litigate such cases and little wonder why; it's cheaper to arbitrate, the awards are substantially lower and the employee is still the David facing off against the Goliath, only less well-armed. If Inouye strips the provision, it appears that $294,000 goes along way towards taking the slingshot out of David's hand.

Wednesday, October 21, 2009

Colorado minimum wage drops along with cost of living

In an attempt to ensure that wages of low-income workers were kept in line with the cost of living, Coloradoans voted in 2006 to be one of 10 states (the others are Arizona, Florida, Missouri, Montana, Nevada, Ohio, Oregon, Vermont and Washington) that ties its minimum wage to inflation. However, due to a decrease in the inflation rate during the first half of 2009, the Centennial State will become the first to lower its current hourly minimum—from $7.28 to $7.24—on January 1, 2010. For tipped workers in Colorado, the minimum will go from $4.26 per hour to $4.22 per hour, an amount above the federal minimum for tipped income of $2.13 an hour.

The rate is recalibrated each year based on the Denver-Boulder-Greeley Consumer Price Index, which fell 0.6 percent between the first half of 2008 and the first half of 2009. Last year, that index rose 3.9 percent, but it is now on track to record its first annual decline since its start in 1965.

As reported in the New York Times, Rich Jones, director of policy and research at the Bell Policy Center, noted that voters had approved the change because the federal minimum wage had not risen for years and Colorado’s inflation rates had remained relatively steady.

For a full-time worker, going from $7.28 to the federal hourly minimum will result in a loss of $62.40 in income during the course of a year.

Noting that “it’s not a lot of money, but for the people who are working for minimum wage, it means lot to them,” Jones said he hoped employers would focus more on maintaining goodwill with their workers rather than lowering wages because they can.

The state Division of Labor will hold a public hearing on its minimum wage order at 9:30 a.m. November 6 at its offices, 633 17th St., Suite 200 in Denver. The division is also accepting comments until November 9.

Monday, October 19, 2009

Pay-for-Performance program hits the dustbin of history

Another day and another Bush administration program goes out the window.

Congress has decided to repeal the National Security Personnel System as part of a compromise between the House and Senate in their negotiations over the Defense Department authorization bill. Under the bill, the Department of Defense would have six months to start transferring affected employees back to whatever pay system they originally fell under, with the system finally ending on January 1, 2012. The Department would also have to submit proposals for any new pay-for-performance system to Congress for approval.

In true Washington style, the bill calls for the institution of a system that would determine bonuses and other performance-based actions for all Defense employees. Of course, it doesn't offer details on how that system might work. Don't worry, though, federal employee unions are ready to assist. American Federation of Government Employees President John Gage, who said he was “elated” over the program's end, said he would work with the Pentagon to create the new system.

George W. Bush's administration strongly advocated for NSPS, and Congress approved the system for Pentagon employees in 2003. Roughly 30 percent of the Defense Department's civilian employees now fall under NSPS jurisdiction, according to the Pentagon.

The belief was that the program would improve government efficiency. But, as is so often the case with government programs, especially those designed to increase efficiency, the devil was in the details. The kind of details found in, say, agency budgets.

Federal managers found it nearly impossible to truly link pay to performance because their personnel budget cupboards were bare. A manager with 15 employees doing excellent work might only have had money to pay five the raises they deserve.

Other employees complained that the system favored cronyism and punished competence. Some managers were accused of using the system to reward friends, while others were accused of not even knowing how to use the system.

While analysts suggest various options for the Pentagon, John Berry, the OPM director, has said he prefers a single, government-wide pay system, but acknowledges that creating such a plan could be difficult.

Friday, October 16, 2009

Snuffing out smoking…one business at a time

As federal anti-smoking laws have gone into effect, several states have followed suit and banned smoking in many establishments. While many businesses have cried foul over these bans, citing the fact that they will lose customers, the over-arching mantra of backers of these bans is the health benefits. However, these “bans” have had the “unintended” effect of creating a small sect of popular businesses: smoking lounges.

This is not a real shocking occurrence because, as is often the case, when the door of one business opportunity closes, the window to another often seems to open. Yet, now these businesses, their employees and customers are facing closure as localities begin to institute their own set of smoking prohibitions. Take the Village of Worth, Illinois, where board members recently voted to extend Illinois’ anti-smoking laws to include businesses in the “business” of providing smokers a place to congregate. In Worth’s path are four indoor smoking lounges that will be forced to shut their doors, its employees will be out of work, and its customers will be out of a place to go to enjoy tobacco.

Illinois law states that smoking is allowed in retail tobacco stores (410 ILCS 82/35); however these “stores” only include:
an enclosed workplace that…distributes tobacco or tobacco products, when, as a necessary and integral part of the process of making, manufacturing, importing, or distributing a tobacco product for the eventual retail sale of that tobacco or tobacco product, tobacco is heated, burned, or smoked, or a lighted tobacco product is tested, provided that the involved business entity: (1) maintains a specially designated area or areas within the workplace for the purpose of the heating, burning, smoking, or lighting activities, and does not create a facility that permits smoking throughout (410 ILCS 82/10).
So, what’s the big deal? Smoking is bad for our health, right? So why not shut down places that provide a smoking haven? Well, while those sentiments may have some truth, it misses the point. The fact is, just look around at the local strip malls and you will see monuments to our fledgling economy: the empty store. These vestiges once housed businesses, and these businesses made money and employed people, many of the same people that populate unemployment lines. And yet, here we have a new kind of small business that seems to being doing well, but it, too, must shut down, its owners now out of a business, and its employees now to join the ranks of the unemployed—not because of the bad economy or lousy sales but, rather, because of what is being sold and used at the business by its patrons.

Now, for a lot of people, smoking is seen as a deplorable habit, and as a nonsmoker, I might agree. However, it is not illegal to smoke, and shutting down local businesses, especially in these poor economic times, does not seem to make the most business sense. It certainly makes one wonder if this is an unintended net result of the Illinois smoking ban. Yet, officials, like those in the Village of Worth, are in their positions in order to aid and protect its inhabitants, so maybe this ban’s “worth” to its citizens outweighs any detriments.

The fact is, it stands to reason that if one small town can do this, then several others, maybe even whole states, will probably follow suit. Smoking is certainly an important public health issue that needs to be continually dealt with, maybe at all costs, but just don’t tell that to the owners of these smoking lounges, or their out-of-work employees.

Wednesday, October 14, 2009

“I thought my employees had to actually use their FMLA leave before they could sue me…”

If you’re an employer who believes their employees must first “use” their FMLA leave in order to advance an actionable claim…think again. In Erdman v Nationwide Ins Co, a case that broadens the scope of the FMLA, the Third Circuit held that employees invoke their FMLA rights, not at the time their leave begins, but when they request the leave, which means that requests alone can form the basis of an interference or reprisal claim, even if the leave is not yet taken.

The employee, Brenda Erdman, initially requested vacation time to prepare her child with Down Syndrome for school. When her vacation bid was denied, she then requested FMLA leave for that same period. Approximately one month after requesting FMLA leave, but before she took the leave, Erdman was discharged for purported behavioral problems. Her employer, Nationwide Insurance, asserted that she used profanity during a telephone conversation that was monitored for quality control purposes. However, Erdman claimed she made a personal call, and, according to company policy, personal calls were not monitored. Filing suit under the FMLA, Erdman alleged that her employer’s motives for discharging her were pretextual, and she was actually fired for requesting FMLA leave. The district court granted summary judgment to the Nationwide on the grounds that Erdman had not met the 1,250-hour threshold to be eligible for leave under the FMLA.

First addressing Erdman’s eligibility for FMLA leave, the Third Circuit held that she presented a genuine issue of material fact as to whether Nationwide had notice that she worked at least 1,250 hours. Erdman had worked extra hours from home, accruing “comp” time, until her supervisor told her that she could no longer do so, determined the Third Circuit, and the district court excluded those hours from the 1,250-hour threshold. The additional hours made her eligible for FMLA leave for the purposes of summary judgment.

As to whether Erdman stated actionable FMLA claims, the Third Circuit held that employees need not begin their FMLA leave to establish interference or reprisals claims under the Act. The court wrote that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.” Reviewing the FMLA’s interference and reprisal provisions, the circuit court interpreted “the requirement that an employee ‘take’ FMLA leave to connote invocation of FMLA rights, not actual commencement of leave.” Therefore, firing an employee for making a “valid request for FMLA leave may constitute interference with the employee’s FMLA rights as well as retaliation against the employee” under the FMLA, held the Third Circuit, remanding the case back to the district court to determine if unlawful interference or retaliation occurred.

The bottom line. The Third Circuit’s decision makes clear that employees don’t have to “begin” their FMLA leave in order to advance actionable interference and reprisal claims under the Act; they need only “request” FMLA leave in order to advance such claims. Of course, there still has to be some sort of causal connection between the employee’s request for leave and the employer’s adverse employment action. It also wouldn’t hurt for employers to state in a written policy whether extra hours worked outside the office count towards the 1,250-hour threshold for employees to be considered an “eligible” employee under the FMLA, or to simply have a policy prohibiting “off-the-clock” work altogether.

Monday, October 12, 2009

In nation’s longest-running labor dispute, hotel fights city hall and wins

Municipalities and elected officials frequently inject themselves into local labor disputes, often to the benefit of unions, who focused much of their advocacy efforts on state and local government in the face of a largely hostile environment at the federal level during the Bush years. Employers have responded by challenging such labor-friendly local impulses on federal preemption grounds, citing the National Labor Relations Act to fend off legislative initiatives closer to home that could prove more advantageous to workers than federal law.

In recent weeks, Chicago’s Congress Plaza Hotel—the site of the longest-running strike in the nation—achieved two solid wins in its ongoing labor dispute with Unite Here, the hotel workers’ union, as the NLRA and preemption concerns foiled the union’s efforts to make some inroads in the battle by way of local politics.

Denial of permit on union’s behalf. On September 28, a federal district court in Illinois, in 520 S. Michigan Ave v Fioretti, held the city of Chicago was vicariously liable for a violation of the NLRA by Robert Fioretti, an alderman who refused to issue a permit to the hotel to operate a sidewalk cafĂ©. The record showed that Fioretti, who had unseated an incumbent in part with union support, made statements both in public and in meetings with union officials suggesting his approval of the operating permit hinged on the hotel's settling the labor dispute.

The record was devoid of the alderman’s reasons for opposing the permit. However, the court cited Fioretti’s “staunchly pro-Union position,” and noted that he had kept the union president apprised of the status of the hotel’s application and displayed great concern about how the union reacted to his actions on the permit. Based on these facts, the court found Fioretti had impermissibly inserted himself into the collective bargaining process, in violation of the Act. “Fioretti is fully committed to supporting the Union in its strike against the Hotel, which he is entitled to do,” the court wrote. “He cannot, however, use his control over the permit process, the existence of which he so forcefully proclaimed at [a] Union rally, to pressure the Hotel to end the strike.”

Moreover, given its complete delegation of policymaking authority over permit applications to its aldermen, the city was deemed liable, too. The court enjoined the city and the alderman from further interference in the hotel’s negotiations with the union, noting that without injunctive relief, “the Hotel’s positions in the labor dispute and the marketplace will continue to erode.”

No on “right to know.” A union-backed “right to know” ordinance, which would require Chicago hotels to notify guests at the time they book hotel rooms if the hotel is affected by a work stoppage, failed to pass the Chicago City Council last week, with aldermen voting by a narrow margin on October 7 to send the measure back to the council's finance committee for possible revisions.

Unite Here Local 1 lobbied for the ordinance in hopes of gaining some leverage in ongoing negotiations with the city’s unionized hotels. Contracts expired on August 31 for some 6,000 workers at 30 downtown hotels run by several national hotel chains, and contract negotiations are ongoing but remain far from settled. A strike threat would obviously carry more weight (and a lockout would be fraught with greater danger) if hotels were compelled to notify potential guests of a work stoppage.

Still, the Congress Hotel no doubt was a key target of the right-to-know measure. Workers have been picketing the hotel for six years; according to Local 1, more than 1,000 customers have complained about the hotel since the strike began. The proposed ordinance would provide a cause of action against a hotel by guests who were not properly notified of a strike or lockout involving at least 20 employees lasting 15 days or more. Chicago hotels would have to alert guests of the work stoppage before they make reservations, over the phone and in all printed and electronic communications. And notice would have to be made through third parties such as travel agents and online travel reservation websites as well.

Unite Here had campaigned for the ordinance in 2005, but the measure lost by five votes, in part due to concerns over whether the NLRA preempted such legislation. In its most recent round, the proposed ordinance won the backing of the finance committee in August by a 16-3 vote, but it could not get past a deadlocked full city council, at least for now. The Congress Hotel has indicated it will file a lawsuit to challenge the ordinance if it passes.

If the hotel’s recent victories are any measure, employers that are embroiled in labor disputes in union-friendly municipalities increasingly will find they can fight city hall—much to labor’s chagrin.

Friday, October 9, 2009

Real world is in the eye of the age-bias beholder

Testimony heard by the Senate Judiciary Committee on October 7 reveals striking differences as to the “real world” impact of the sharply divided Supreme Court’s decision in Gross v FBL Fin Servs Inc. The Court held that a plaintiff claiming disparate treatment under the Age Discrimination in Employment Act (ADEA) must establish by preponderance of evidence that age was the “but for” cause of the adverse employment action challenged, not just one motivating factor.

This is a tougher standard to meet than that permitted under a “mixed-motive” theory that is applied in cases brought under Title VII of the Civil Rights Act of 1964 for other types of discrimination. In a Title VII “mixed-motive” case, when a plaintiff has produced evidence that a protected category, such as race, sex or religion, was one motivating factor in an employer’s adverse-employment decision, the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of the protected factor. The Court in Gross foreclosed this mixed-motive route to proving bias in ADEA cases.

What is the “real world” impact of the decision? Several witnesses testified during the Judiciary Committee’s hearing on Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination?

Jack Gross, the plaintiff who, at age 54 – after working for his employer for 32 years – was reassigned to a position he considered a demotion, was one of the witnesses who testified. Here’s part of the “real world” scenario he described:

I feel like my case has been hijacked by the [H]igh [C]ourt for the sole purpose of rewriting both the letter and the spirit of the ADEA. I am against activist judges, from either party, who use their personal ideology to misinterpret the law as intended. I am especially mortified when the only people (judges) who are immune from age discrimination vis-a-vis their lifetime appointments, can rewrite laws that are designed to protect people in the “real” world. (Emphasis added)

On the other had, referring to the potential choices facing the Supreme Court in Gross, attorney Michael W. Fox, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, PC, characterized the choice ultimately made by the High Court as one that adopts “a more common sense rule, that in reality does little to alter the real world of age discrimination litigation.” (Emphasis added)

Does Gross change the age-bias landscape? As Jack Gross points out: “Headline after headline [has] proclaimed that it is now easier for employers to discriminate based on age, following the decision in my case.” And he’s not happy about being the person who set the wheels in motion. “I am not at all comfortable with having my name associated with a decision that is now causing pain to other employees in my age bracket simply because I took a stand seven years ago,” he said. “And, as expected, my employer is pushing for a new trial as quickly as possible to take advantage of the new court-made law before it can be corrected.”

That’s the “real world” litigation landscape for Jack Gross.

But the High Court’s decision may have a less than dramatic impact at trial. Fox pointed out that the burden-shifting framework used in mixed-motive cases is confusing for juries. “Lawyers representing plaintiffs rely much more on established pretext doctrines under McDonnell Douglas, rather than try for a mixed-motive analysis,” he observed. “In short, in many respects the dispute engendered by Gross is more academic than real world.” (Emphasis added)

Fox may be right about juries. Showing jurors that the reason given by an employer for an adverse employment action was really just a pretextual ruse to conceal age bias may be easier than relying on a mixed-motive theory that is conceptually difficult for jurors to understand and apply.

But what about the impact at the summary judgment stage of litigation? Employers defending against ADEA claims appear to have a better chance of obtaining summary judgment in their favor in the wake of Gross. Employers can prevail by showing there is no material fact question that the challenged adverse action was motivated by at least one legitimate, nonbiased reason – even when discrimination has been shown. In contrast, since plaintiffs will now be required to produce enough evidence to show that age was the only reason that motivated the action, they seem less likely to make it to trial.

Congressional action. Attorney Fox urged lawmakers to refrain from acting too swiftly. “Congressional action to reverse Gross, particularly without waiting to determine if in fact there is any real world impact would be short sighted [a]nd potentially provide a ‘cure’ with adverse consequences that would far outweigh the alleged evils being remedied,” he cautioned. (Emphasis added)

It seems unlikely that Congress will wait for news of any “real world” impact. The day before the Senate Judiciary hearing, Chairmen Tom Harkin (Iowa) of the Senate Health, Education, Labor and Pensions Committee, Patrick Leahy (Vt) of the Senate Judiciary Committee, and Congressman George Miller (Cal) of the House Education and Labor Committee introduced the Protecting Older Workers Against Discrimination Act with the goal of reversing the Gross decision and restoring civil rights protections for older workers.

Wednesday, October 7, 2009

Modernization of OFCCP requirements for federal construction contractors is an emerging concern

After decades of virtual obscurity, the OFCCP compliance obligations of federal construction contractors are receiving renewed attention. Earlier this year, the OFCCP announced that it will place a special emphasis on the construction industry when implementing its initiative to conduct audits of federal contractors in receipt of Recovery Act funds (because the majority, estimated at roughly 80%, of Recovery Act contractors will be recipients of direct or federally assisted funds for construction projects).

This past July, during a presentation at the 27th Annual Industry Liaison Group National Conference in Atlanta, OFCCP expert John Fox (attorney and partner at Manatt, Phelps & Phillips in Palo Alto, California) noted that the OFCCP’s construction program “has not been updated or addressed in 30 years and now is in need of a top to bottom review.” In September, Congressman Pete Stark (D-CA) and Congresswoman Rosa L. DeLauro (D-CT) sent a letter co-signed by 24 of their colleagues urging Secretary of Labor Hilda Solis to re-evaluate the affirmative action goals for women with regard to federal construction contractors set by the OFCCP in the agency's regulations implementing Executive Order 11246. According to a joint September 18, 2009 statement corresponding with the letter, the representatives believe the OFCCP should "modernize" its affirmative action goals "to reflect the realities of female participation in the construction industry today." The representatives pointed out that the current 6.9% participation goal for women was based on data from the 1970 Census and has been left on "indefinite extension" status since 1980.

The EEO and affirmative action obligations of federal contractors and subcontractors who hold construction contracts differ in significant ways from that of supply and service contractors. Covered federal construction contractors must comply with Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), while federally assisted construction contractors must comply with Executive Order 11246 only.

In order to take into account the fluid and temporary nature of the construction workforce, the OFCCP does not require construction contractors to develop written affirmative action programs (which is a requirement for covered supply and service contractors). Instead, the OFCCP has established utilization goals based on civilian labor force participation rates, and has outlined in its regulations (at 41 CFR Section 60-4.3(a) ) 16 good-faith steps that construction contractors must take in order to increase the utilization of minorities and women in the skilled trades. (Note that the goals are not a requirement for quotas, which are specifically prohibited by law.) However, the OFCCP’s regulations on construction contractors obligations have not been updated since 1980, and, likewise, the utilization goals have not been updated for decades.

Thus, updating the equal employment opportunity and affirmative action requirements to reflect the current landscape pertaining to federal construction contractors should be one of many new developments coming from the OFCCP now that Patricia A. Shiu has taken the helm as Director.

Congress legislates against gang rape

Updating an earlier blog, Sen. Al Franken (D-MN) proposed an amendment to the 2010 Defense Appropriations bill that would withhold defense contracts from companies like KBR “if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court.”

This amendment was a clear response to the legal strategy adopted by Halliburton Co, which attempted to claim that sexual assault is related to the employment of its workers. The Fifth Circuit recently rejected that argument in Jones v Halliburton, 5th Circuit, Sepember 15, 2009, ruling that tort claims stemming from a gang rape of a former Halliburton employee were not subject to the binding arbitration clause, utilized by the company, that mandates arbitration of all claims "related to employment."

Franken said: "The constitution gives everybody the right to due process of law ... And today, defense contractors are using fine print in their contracts to deny women like Jamie Leigh Jones their day in court. ... The victims of rape and discrimination deserve their day in court."

The amendment passed 68-30. Of the 40 Republicans in the Senate, 10 voted for the Franken amendment, including all four women in the Senate GOP. Jeff Sessions (R-AL) argued against it, putting the interests of corporate behemoths over individual employees, calling the amendment a political attack against Halliburton. From this perspective, it seems like a political attack against gang rape and a political stand in favor of giving employees their just day in court.

Monday, October 5, 2009

Supreme Court: 2009-10 term begins

The Supreme Court opens its October 2009-10 term today, with rookie Justice Sonia Sotomayor on the bench and several labor and employment cases on the docket. First up: Mohawk Industries Inc v Carpenter (Dkt No 08-678). The Court will consider whether a party may immediately appeal a discovery order to disclose materials that are purportedly covered by the attorney-client privilege, in the case of an employee who was discharged when he refused to recant claims that the employer hired illegal aliens. The employee sought to compel information related to his interview with Mohawk's outside counsel during an internal investigation into a separate RICO class action, as well as information related to the decision to discharge him. The district court ordered Mohawk to provide the information, concluding the company had waived attorney-client privilege when it put the attorney's actions "in issue" in its response. The Eleventh Circuit dismissed Mohawk's interlocutory appeal on the discovery ruling for lack of jurisdiction.

On Wednesday, October 7, the Court hears oral argument in Union Pacific Railroad v B'hood of Locomotive Engineers (Dkt No 08-604). The High Court will consider the scope of federal court review of arbitration rulings under the Railway Labor Act—specifically, whether courts can set aside NRAB arbitration awards based on alleged due process violations. In the ruling below, 156 LC ¶11,053 (2008), the Seventh Circuit held the NRAB violated a union's due process rights when it created a new rule governing the submission of evidence.

Rounding out the docket. The Supreme Court has several other key labor and employment cases on its docket for the coming term (oral argument has not been scheduled):

  • Conkright v Frommert (Dkt No 08-810), an ERISA case in which the court will consider whether a court should give deference to a plan administrator on the availability of remedies under a covered plan, and the amount of discretion a district court has in calculating remedies based on its reasonable interpretation of the plan.
  • Granite Rock Co v Int'l B'hood of Teamsters (Dkt No 08-1214), an LMRA, Section 301 case regarding federal court jurisdiction over the question of whether a collective bargaining agreement had been formed. In the decision below, the Ninth Circuit (156 LC ¶11,110) held the question of contract formation was one for an arbitrator, unless there is a separate challenge to the arbitration provision in an underlying contract that is separate and distinct from a challenge to the contract itself.
  • Lewis v City of Chicago (Dkt No 08-974). Turning once again to employment discrimination matters involving tests used to hire and promote firefighters, the Supreme Court granted certiorari in this case last week to address when the statute of limitations period begins where employers adopt an employment practice that discriminates against African Americans in violation of Title VII's disparate impact provision.

Friday, October 2, 2009

Another state enters the “guns at work” fray

Michigan employers may soon have to add firearms ownership to their “do not ask” list of questions. A bill has been introduced by Michigan State Representative Paul Opsommer to prevent employers from asking potential employees questions about whether they own or know how to use guns. The Firearm Ownership Employee Protection Act (h.b. 5330) is designed to protect citizens exercising their Second Amendment rights, according to Opsommer.

“Unless firearm ownership is directly related to an established and bona fide occupational requirement for the job, there is no reason for an employer to ask questions about whether a potential employee owns or knows how to use a gun,” Opsommer said in a press statement. “We also need to ensure that employers cannot create over-reaching company policies that violate the Constitution and provide an excuse to terminate employees whose political views differ from those of management. People who lawfully own firearms and are following appropriate storage laws should not lose the ability to transport them in privately owned vehicles.”

“A person who legally owns a firearm needs to have a way to store it as they are going to and from work, home, hunting, or any other lawful purpose,” said Opsommer. “People shouldn’t have to feel that their cars are going to be searched just because they told their boss they are going hunting after work.”

If passed, Michigan’s Firearm Ownership Employee Protection Act will prohibit employers from asking certain questions during the hiring process and making employment decisions based on legal ownership or use of a firearm that is unrelated to employment. Employers will also be prohibited from requiring applicants or employees from waiving their rights under the Act, and deem that any agreement which an applicant or employee waives their rights under the Act as invalid and unenforceable. The bill provides for injunctive relief, damages, costs and attorney fees for prevailing plaintiffs. The bill has been referred to the Committee on Labor.

Michigan is just the latest state to take on the issue of employers with policies prohibiting firearms on their premises, including parking lots. Several other states, including Arizona, Florida, Georgia, Louisiana, and Oklahoma have passed similar “guns at work” laws in recent years. Part of the discussion surrounding the passage of these laws has been the newly created tension between an employee’s Second Amendment rights and an employer’s property rights. Do “guns at work” laws impede on employers’ property rights? Have employers been treating gun-owning employees so adversely or discriminatorily that more “guns at work” laws are needed?