EEOC Updates Guidance on Use of Arrest and Conviction Records in Employment DecisionsBy Brooke Colaizzi
On April 25, 2012, the Equal Employment Opportunity Commission issued its first guidance since the 1990s on the use of criminal arrest and conviction records in employment decisions. At first glance, the new guidance states many obvious legal points and does not appear to differ significantly from the EEOC’s past positions (both official and unofficial) on criminal record usage. However, the guidance stakes some positions as if they are well established under the law, without any supporting authority, and relies far more on academic sociology studies than the case law. The guidance is also significant in that it establishes an official position of the EEOC and probably signals that the agency intends to ramp up pursuit and investigation of employers whose hiring policies conflict with the guidance.
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EEOC says Discrimination on Basis of Transgender Status is Prohibited by Title VIIBy Ted Olsen
The Equal Employment Opportunity Commission decided on April 20, 2012, that discrimination against a federal employee because of transgender status, or gender identity, is prohibited by Title VII. Although Colorado state law has banned such discrimination for years, as the definition of “sexual orientation” discrimination includes discrimination based on “a person’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or an employer’s perception thereof,” federal courts have been divided on the question of whether it is prohibited by Title VII. Part of the difficulty is that sexual orientation discrimination is not covered by the federal law.
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Making Different Severance Benefit Offers to Dismissed Employees May be Unlawful Discrimination
By Ted Olsen
We repeatedly advise clients to adopt a severance pay plan setting forth the amounts of severance pay for departing employees, as well as the terms and conditions of such benefits, and to follow the plan consistently, rather than making different promises and offers of severance pay to different employees. This advice is supported by both logic and law, the latter most recently illustrated by Gerner v. County of Chesterfield.* READ MORE TOP
Wal-Mart Gets Summary Judgment Despite "Healthier" Employees Memo
By Brooke Colaizzi
Despite a memorandum in which executives discussed ways to woo a “healthier” and younger workforce, a federal court in New York granted summary judgment to Wal-Mart and rejected a former employee’s claims that the retail giant discriminated against her on the basis of age.*
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Employee's Opposition to LBGTQ Community: Protected Religious Belief or Unprotected Bigotry?
By Ted Olsen
The lines between employees’ protected religious beliefs and employees’ unprotected opinions on social issues are often blurry. Indeed, such beliefs and opinions may overlap and be both. When they are both, what would otherwise be an unprotected opinion becomes a protected religious belief. This was illustrated recently by a Pennsylvania federal court case in which a university professor refused to support the LBGTQ community, as requested by her employer and other professors as a matter of social policy. Because of her non-support, she was allegedly harassed, denied a tenure-track position (the position being filled by a less-qualified, pro-LBGTQ professor), and constructively discharged.* The Court ruled that the plaintiff professor stated a valid claim of religious discrimination under Title VII.
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Past Education and Experience May Justify Different Pay Rates for New Hires, but Not Later Pay Rates for Employees
By Ted Olsen
In pay discrimination cases – whether raised under the Equal Pay Act or Title VII – employers commonly justify pay disparities among employees by pointing to the differences in their education and work experience. In a recent Seventh Circuit case,* however, the Court held that education and work experience may justify different starting pay rates, but don’t justify different pay raises and different intervals between raises. READ MORE TOP
Is the Scope of Protected "Opposition" Shrinking?By Ted Olsen
Section 704 of Title VII protects an employee from retaliation for “opposing” the employer’s illegal discrimination or for “participating” in a proceeding raising a claim of discrimination banned by Title VII. Other employment discrimination laws have similar protections. Courts have long admonished that an employee who complains about working conditions other than prohibited discrimination is not engaged in protected “opposition.” Although it may be coincidence, in some recent cases, courts have made some surprising, somewhat arbitrary, and pro-business rulings on what is and is not “opposition.”
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Impending NLRB Rule on Posting Notices of Employee Rights Stayed By Federal Courts By Patrick Scully and Sarah Peace
In our January 9 update we reported that the National Labor Relations Board (NLRB) had postponed the effective date of its new employee rights notice-posting rule to April 30, 2012. The rule would require more than six million businesses to post an 11 by 17-inch notice in a prominent location explaining the rights of workers to join a union and collectively bargain regarding wages and working conditions. Several groups, including the National Association of Manufacturers, challenged the rule, claiming that the NLRB did not have the authority to adopt the notice-posting regulation. The recent decisions of two federal courts have now blocked the implementation of the NLRB. As a result, employers have no obligation to post the notice of employee labor law rights described in the NLRB’s rule at least until the appellate court’s injunction has been lifted. READ MORE TOP
New NLRB Election Procedures Designed to Help Unions Win More Elections By Patrick Scully and W.V. Bernie Siebert
On April 30, 2012, the National Labor Relations Board’s (“NLRB”) new election rules took effect. In the prior week, on April 26, Acting General Counsel Lafe Solomon issued a guidance memorandum to the Board’s regional offices regarding details of the implementation of the new rules.* The Board has also offered some “frequently asked questions” elaborating on the rules changes.** READ MORE TOP
Agreements Among Employers Not to Poach Others' Employees May Result in Antitrust LiabilityBy Ted Olsen
A federal court has decided that employees of seven well-known Northern California businesses may proceed with their federal antitrust law claims attacking their employers’ alleged conspiracy to fix and suppress employee compensation and to restrict employee mobility.* The defendant employers are Adobe Systems, Apple, Google, Intel, Intuit, Lucasfilm and Pixar. Although these employers are huge and high-profile, the legal claims recognized by the Court could be applicable to lesser-known businesses that agree not to poach each others’ employees.
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Antitrust Challenge to Employers' Exchange of Pay Information ContinuesBy Ted Olsen
In a case that has continued for more than five years, the U.S. District Court for the Eastern District of Michigan recently issued a decision regarding the exchange of detailed, non-public information about the compensation rates of nurses among Detroit-area hospitals.* The decision in this antitrust case is a classic example of “good” news and “bad” news.
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Jury Waiver Signed by Employee Under Threat of Loss of Employment Was Not CoercedBy Ted Olsen
Many employers, for various legal reasons, ask their existing workers to sign assorted documents as a condition of their continued employment. Such documents include non-compete agreements, confidentiality agreements, arbitration agreements, and jury trial waivers. But conditioning continued employment on the execution of such documents raises the question of whether the signatures are coerced, making the documents invalid. After all, the phrase “a new condition of your continued employment is your acceptance of these terms” is just a flowery way of saying, “you’ll be fired if you don’t sign this.” The Texas Supreme Court recently ruled in favor of an employer on this issue, holding that telling an at-will employee that he will be fired if he does not sign a jury trial waiver is not coercive.*
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Sherman & Howard Successes
In a case that lasted over nine years, the Nevada Supreme Court recently upheld summary judgment in favor of our client in a public policy wrongful discharge case involving alleged “whistleblowing.” Glenn Schlabs argued the case before all seven judges of the Supreme Court. The Court's decision clarified that Nevada's public policy wrongful discharge theory requires employee whistleblowers to take some “affirmative action” to contact the appropriate regulatory authorities and reiterated that internal complaints alone are not sufficient. Therefore, in this case, two employees who claimed to have been laid off because of their complaints to management about alleged environmental violations had not experienced unlawful or actionable retaliation. Glenn was successful in persuading the Court that it should not extend the public policy theory to the facts presented.
Bernie Siebert obtained the dismissal of a large wage and hour collective action in the U.S. District Court for the Western District of Michigan. The Court accepted Bernie’s argument that the action was barred by a settlement that the same employer had reached in a separate hybrid class/collective action that had been filed five years earlier.
Rod Smith and Pat Miller recently received a favorable opinion from an Occupational Safety and Health Review Commission Administrative Law Judge in a case of first impression. In 2007, OSHA promulgated a standard that requires employers to pay for the personal protective equipment that they require their employees to wear, with a few exceptions. One exception is for "normal work boots." Our client was cited under this standard for failing to pay for the work boots required to be worn by its employees. The employer's policy required that such boots be "sturdy" and have certain characteristics such as slip-resistance. After a three-day hearing, the ALJ agreed with our client's position that the boots being required are "normal work boots" that are exempt from the payment provision found in the standard. This decision will benefit employers who require that their employees wear standard, off-the-shelf work boots during the course of their duties. Had OSHA prevailed, employers may have been required to pay for all such footwear worn by their employees. This decision is subject to a possible appeal by OSHA.
Bernie Siebert and Sarah Peace recently won a case on a Motion to Dismiss in the U.S. District Court for the District of South Carolina. There, the District Judge affirmed the Magistrate Judge's Report and Recommendation (to which the plaintiff had objected) dismissing the plaintiff's age discrimination, sex discrimination, retaliation, defamation, and negligence claims.
Bernie Siebert successfully negotiated a very favorable collective bargaining agreement with UFCW Local 7 for a specialty meat company.
Bernie Siebert and Sarah Peace also won a motion to dismiss a case alleging wrongful termination, after removing the case from Colorado state district court to the U.S. District Court for the District of Colorado.
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If you have any questions, please contact any member of the Sherman & Howard Labor & Employment Team: |