Posts Tagged ‘Tom Davies’

EEOC Sues 2 Private Employers in Unprecedented Sexual Orientation Discrimination Lawsuits

by HDlawblog Posted: Thursday, 3/3/2016

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) took the long predicted, but unprecedented, step of filing complaints in federal courts against two private companies alleging that sexual orientation discrimination is a violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. For the last several years, the EEOC has been accepting and investigating such allegations involving private employers and last year ruled in a case involving a federal government employee that sexual orientation discrimination was “inherently” a form of sex discrimination under Title VII.  To date, no federal appeals court has reached this conclusion and five Courts of Appeal have flatly rejected extending Title VII in this fashion.

To put this issue in a broader context, on July 21, 2014, President Obama issued Executive Order 13672 which amended Executive Order 11246 (issued in 1965) to include prohibitions against discrimination based on sexual orientation or gender identity, but the Executive Order only governs certain federal contractors. From 1994 through 2014, a version of the Employment Non-Discrimination Act (ENDA) was introduced in every session of Congress except for the 109th Congress (2004-2005.)  Early forms of the legislation would have only prohibited discrimination by private employers of 15 or more employees based on sexual orientation, but beginning in 2007, the proposed legislation would have also prohibited discrimination based upon gender identity.  Each of these versions of the bill included a religious exemption provision.  It was thought that with the election of President Obama in 2008, together with Democrat control of the House and Senate that ENDA would become law in 2009 or 2010, but it seemingly got lost in a crowded legislative calendar.  ENDA was not introduced in the current session of Congress.  Rather, with broad backing from the LGBT community, a more comprehensive Equality Act was proposed which would prohibit discrimination based on sexual orientation and gender identity in employment, public accommodations, housing and a variety of other areas.  Given the current makeup of Congress, its prospects of passage are not favorable.

Critics of the EEOC’s recent action argue that it is another example of the Obama administration’s willingness to use the administrative process to revise existing law. Advocates for the LGBT community argue, however, that the new lawsuits are a natural extension of the EEOC’s efforts to provide broad protection under Title VII.  Persons on both sides of the issue will be carefully following the actions at the district court level.

The case against Scott Medical Center was filed in the Western District of Pennsylvania and alleges that a gay male telemarketing representative was subjected to a sexually hostile work environment based upon numerous offensive comments directed at him by his male supervisor pertaining to his sex life and other personal matters. The employee’s resignation in the face of this conduct is alleged to be a constructive discharge.  The case appears to have been assigned to Judge Cathy Bisson, who was nominated to the Court in 2010 by President Obama.  The other case, which was filed in Maryland, alleges that Pallet Companies d/b/a IFCO Systems violated Title VII by its treatment of a lesbian forklift operator which included comments directed to her by her male supervisor such as, “I want to turn you back into a woman” and “you would look good in a dress.”  She was terminated a few days after registering complaints about this behavior to management and on an employee hotline.  The EEOC alleges that this termination was unlawful.  This case appears to have been assigned to Judge Richard D. Bennett, who was nominated to the Court by President George W. Bush in 2003.  In both cases, in addition to the usual remedies, the EEOC is seeking that punitive damages be awarded to the complainants.  It will be very interesting to watch how the courts handle these cases.

From a practice perspective, however, it is highly recommended that employers get ahead of this issue and modify, if necessary, their existing Discrimination and Harassment policies to include broad prohibitions against discrimination that include sexual orientation and gender identity as protected categories. The attorneys at Harmon & Davies, P.C. are available to discuss these matters with you in further detail.

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Proposed Rule Would Require Employers to Submit Pay Data

by HDlawblog Posted: Friday, 2/5/2016

On January 29, 2016, the seventh anniversary of the Lilly Ledbetter Fair Pay Act, President Obama and the U.S. Equal Employment Opportunity Commission (EEOC) announced proposed changes to the EEO-1 Report which all employers with 100 or more employees and federal contractors with 50 or more employees are currently required to file. The current EEO-1 Report requires employers to submit data on the race/ethnicity and sex of their employees within 10 separate job categories such as senior-level officials and managers, professionals, technicians, office and clerical, and craft workers.

As part of its efforts to eliminate the so-called gender pay gap, the EEOC issued a proposed rule that would expand the reporting requirement to include the numbers of employees, broken down by race and sex, in 12 pay bands within each of the 10 job categories. On a separate form, employers would also have to report the number of hours worked by employees by race and sex within each pay band in each job category.  The EEOC believes that the collection of this data will assist EEOC (and employers) to identify areas of potential pay discrimination.  The regulations leave open, for now, the question as to how to collect the information regarding hours worked.  This part of the report could also present some issues regarding the hours worked by salaried employees.

The proposed regulations state that employers would first be required to report this new information by September 30, 2017. Although the proposed regulations call for use of W-2 forms to report earnings, employers would be required to report actual earnings as of the time of filing of the EEO-1 Report in September.  EEOC assumes that because pay information is cumulative, employers (or their payroll vendors) should be able to efficiently generate pay data at that time.

Whenever a federal agency proposes new regulations, the Paperwork Reduction Act requires it to provide an estimate of the burden imposed by the new regulations on the public. As they frequently do, the EEOC provided what appears to be an unreasonably low estimate that the new report will only require an additional 6.6 hours per year for employers to complete.  The regulations are open for comment until April 1, 2016 but this deadline could get pushed back depending upon the volume of comments received.  It can be expected that virtually every group representing employers will submit comments opposing the new reporting requirement and making it clear that the submission of such detailed information will put an onerous burden on employers.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies attorneys Tom Davies, Esq. or Laura Gallagher, Esq. at 291-2236.

 

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Hospital’s English-Only Rule Declared Unlawful by NLRB – Y Porque ellos? (Who?)

by HDlawblog Posted: Friday, 3/20/2015

Upon my arrival at the office this morning, after getting my coffee, I sat down at my computer and went to read BNA’s Daily Labor Report, as I do first thing almost every morning. After reading about the most recent actions in Congress seeking to block the NLRB’s Ambush Election Rules, I was attracted to an article that was entitled “English-Only Policy for Hospital Workers Violated Rights . . .” Since this is an issue that pops up regularly, I wanted to read the most recent case on the subject, so I opened the article and was surprised to find that this was an NLRB case, not an EEOC case. On March 18, 2015, Administrative Law Judge Lisa D. Thompson found that a Nevada health systems policy that required employees to speak English at all times when on duty violated Section 8(a)(1) of the National Labor Relations Act since it could restrict employees from engaging in discussions regarding terms and conditions of employment. The employer argued that its English only rule was based on guidance from the Equal Employment Opportunity Commission that allowed such rules for reasons of business necessity.

Not surprisingly, ALJ Thompson noted that this was an issue of first impression for the National Labor Relations Board, since no prior Decision of the NLRB had ever addressed the issue. Quoting from the Decision, the rule specifically “requires all employees to speak and communicate only in English ‘when conducting business with each other,’ ‘when patients or customers are present or in close proximity,’ and ‘while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.’” In seeking the finding that the rule was a violation of the National Labor Relations Act, Counsel for the General Counsel (in layman’s parlance – the prosecutor) argued that the rule was overbroad and that it inhibited employees, particularly non-native English speaking employees, from being able to freely communicate (in their native language) about working conditions and/or other terms or conditions of employment. As noted, the employer’s defense was based, at least in part, on current EEOC guidance. Although the Administrative Law Judge gave the appearance of analyzing the potential tension between Section 7 of the National Labor Relations Act and the EEOC Guidance, she dealt with this by quickly concluding that the employer’s rule was not justified by business necessity. With respect to the employer’s arguments that nothing in the rule prohibited employees from speaking in their own language on their own time, the Administrative Law Judge launched into a comparison of this rule with the Board’s traditional no-solicitation rule analysis.

Less surprisingly, the ALJ also found Employer rules prohibiting conduct that interferes with the Employer’s operations or brings “discredit” on the Employer, or making negative comments about co-workers or the hospital to be violative of the Act. Even though most Employers would consider these rules to be very reasonable, the Obama NLRB has been striking them down at a rapid rate.  Valley Health System 28-CA-123611

This case appears to represent yet another example of the NLRB’s willingness to expand the scope of its enforcement authority, even if it potentially conflicts with other administrative agencies. Accordingly, employers are advised yet again of the need to thoroughly review all of their existing rules and policies to avoid being found guilty of an unfair labor practice by the National Labor Relations Board.

This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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The Color Purple: An Award Winning Film; A Scary NLRB Decision

by HDlawblog Posted: Wednesday, 1/7/2015

The 1985 film The Color Purple received several awards, but, surprising to many, no Oscars. The recent NLRB Decision in Purple Communications, Inc. may be popular with organized labor, but the employer community would only give it a Razzie.

In this long-expected Decision, the National Labor Relations Board, by a 3-2 vote, reversed its 2007 Decision in Register Guard. In Purple Communications, the Board majority (comprised of the three Democrat members) established a presumption that all employees with email access have a right to use the Company’s email system for any activity protected by the National Labor Relations Act. This includes both union organizing activity and other “concerted” activity involving wages, benefits, or working conditions. Although the majority indicated that this presumption could be overcome if certain “special circumstances” were established, they failed to articulate what might constitute such special circumstances.

At a recent conference, member Harry Johnson (one of two Republican dissenters) commented upon the fact that some of his fellow Board members lacked technological savvy. In reaching their underlying conclusion that restrictions on the rights of employees to use the Company’s email system constituted an unreasonable impediment to their ability to engage in protected activity, the majority demonstrated this lack of tech savvy by failing to properly take into account the numerous alternatives which now exist, such as Facebook, Instagram, Twitter, etc.

Fortunately, the Decision is limited in that it applies only to the Company’s employees, not non-employees, it only applies to the use of the Company’s email system, not other forms of electronic communications maintained by the employer, it only applies to those employees who are already authorized to use the Company’s email system, and is subject to “reasonable” restrictions, such as being used only during “non-work times.”

Members Miscimarra and Johnson, in dissent, criticize not only the legal rationale for the Decision, but also point out the numerous issues which will be created by the presumption established by the majority. For example, they note the difficulty, if not virtual impossibility, of distinguishing between the use of email during work time and non-work time. They also point out that while the majority theoretically recognized the right – and in some cases – the need (such as when there is an allegation of harassment involving the use of email) for employers to monitor its employees’ use of email, they underestimate the risk that such monitoring could lead to unfair labor charges of surveillance.

It is important to note that this Decision applies to all employers, not only those who are unionized. It is incumbent upon every employer to review their current electronic communication policy and consider revising it so that it is in compliance with the new NLRB-established standards. Alternatively, since this Decision will likely be appealed (or reversed by a future Board), employers could wait and see what develops. It would certainly be risky, however, to discipline anyone based upon a policy that was not consistent with Purple Communications.

This article is intended to provide a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact Tom Davies, Esq. or Laura Gallagher, Esq., Harmon & Davies, P.C., at 291-2236.

 

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EEOC Compliance in Pennsylvania

by HDlawblog Posted: Thursday, 5/1/2014

Harmon & Davies is presenting a seminar through Lorman on August 19, 2014, on EEOC Compliance in Pennsylvania.  Attorneys Tom Davies, Laura Gallagher and Kimberly Overbaugh will provide a federal and state overview of employment and labor laws, including new initiatives of President Obama’s administration, and then discuss handling investigations, responding to EEOC/PHRC Charges, social media and the hiring process, and common mistakes and how to avoid them.  Please join us and bring your questions for a panel discussion.  For more information, go to  http://www.lorman.com/training/384528?discount_code=M9763581&p=13389&s=direct or contact us at 291-2236.

 

 

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Busy Week at the OFCCP – Does it affect your company?

by HDlawblog Posted: Friday, 8/30/2013

          On August 27, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) announced its long awaited Final Rules regarding significant revisions to the affirmative action obligations pertaining to the hiring of veterans and the disabled under the Vietnam Era Veterans Readjustment Assistance Act and Section 503 of the Rehabilitation Act of 1973, respectively.  For many years, most federal contractors have been developing two separate affirmative action plans:  one relating to the employment of Minorities and Women under Executive Order 11246, and the other relating to the employment of the Disabled and Veterans under the two statutes mentioned previously.  Up until now, the AAP for the Disabled and Veterans did not include any numerical goals, but the new Rules establish such goals and include new data collection and analysis requirements for contractors.  Broadly, the goal for employment of the Disabled is 7%, but whether this is looked at in each job group or in the work force as a whole is dependent upon whether the contractor has 100 employees or more.  The goal for the employment of Veterans is 8%, although there is a procedure established that would allow a contractor to develop a different goal based upon the “best available data.”  If your firm does business with the U.S. Government as a contractor or subcontractor, you are probably subject to these new requirements.

           Also, on August 23, the OFCCP announced the rollout of its updated Federal Contract Compliance Manual, a 500 page multi-chapter manual which provides guidance for OFCCP Compliance Officers in areas such as the conducting of desk audits of affirmative action programs, on-site reviews of supply and service contractors, and the appropriate remedial actions to take in the event of demonstrated noncompliance.  This revised manual has been in the works for several years and seeks to incorporate some of the practices of the OFCCP under the Obama administration.  For example, it provides guidance to Compliance Officers as to when and how to seek additional employment data from contractors for further analysis during the desk audit phase of an OFCCP audit.  The Compliance Manual itself does not have the force of law, but it does allow us to anticipate the most likely actions of the OFCCP during any possible audits.

          Harmon & Davies, P.C. has been working with federal contractors (both those providing supplies or services, as well as construction) to assist them with developing Affirmative Action Plans and dealing with the OFCCP during audits or investigations.  Please contact us if you need assistance in these areas.

This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Surveying – A (Not-So) Subtle Change in the Davis-Bacon Act

by HDlawblog Posted: Monday, 7/15/2013

On March 22, 2013, Mary Beth Maxwell, the Acting Deputy Administrator for the Wage and Hour Division of the U.S. Department of Labor, issued Memorandum No. 212 that significantly altered the application of the Davis-Bacon Act to survey crews on federally funded construction projects.  While Acting Deputy Administrator Maxwell characterized the Memorandum as guidance that “supplemented” guidance in Memoranda issued in 1960 and 1962, the fact of the matter is that whereas survey crews were generally excluded from Davis-Bacon Act coverage prior to the issuance of her Memorandum, they are now generally going to be included.

This action was accomplished through a revision to Section 15e20 of the Field Operations Handbook, which is the enforcement “bible” for DOL investigators.  The previous language of Section 15e20(b) included the following:

 “As a general matter, members of the survey party who hold the leveling staff while measurements of distance and elevation are made, who help measure distance with a surveyor chain or other device, who adjust and read instruments for measurement or who direct the work are not considered laborers or mechanics.  However, a crew member who primarily does manual work, for example, clearing brush, is a laborer and is covered for the time so spent.”

 The new language appears designed to reverse this presumption.  It appears that the Operating Engineers Union successfully lobbied the Department of Labor for this change.  Since the Department of Labor has not normally included these classifications in its surveys for purposes of wage determinations, the Memorandum advises that the conformance process will be used until future surveys include these classifications.

By letter dated July 11, 2013, the Chairman of three Congressional committees or subcommittees questioned Acting Deputy Administrator Maxwell on this significant change in long-standing policy and asked for information, including documents relating to the Operating Engineers Union’s request for this change.

Both engineering firms who may do survey work on federal projects and general contractors who may hire survey crews need to be aware of this change so that they are not found in violation of the Davis-Bacon Act.  Please feel free to contact Harmon & Davies if you need additional information.

This article is authored by attorney Tom Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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School District in Hot Water for Following State Law that Had Disparate Impact

by HDlawblog Posted: Monday, 4/29/2013

The recent case of Waldon v. Cincinnati Public Schools, before the Southern District of Ohio, exemplifies the frustration many employers might be feeling over the use of criminal background checks.  For those not in the know, criminal background checks spawn a host of issues.  For example, if you don’t use the checks, will you be sued for negligent hiring?; or if you use the criminal background checks will you be sued for discrimination? It’s enough to make your head spin, and as evidenced below, bright-line rules regarding the use of criminal background checks, simply don’t work.

In the case of Waldon, the Ohio legislature amended a state law to require criminal background checks of all current public school employees, including those not responsible for the care, custody, or control of children and to terminate any employee convicted of any of a certain crimes, no matter how far in the past the crime may have occurred and no matter how little the crime related to the present readiness of the particular employee to provide services safely and with excellence.

In seemingly earnest compliance with the state law, the Cincinnati Public Schools terminated ten employees with criminal convictions based on the state law mandate.  Nine of the ten employees were African American.  Two of the fired employees, Waldon and Britton, sued the school district alleging that the state law had a racially discriminatory impact on African Americans in violation of  Title VII of the 1964 Civil Rights Act and Ohio state law.

Undoubtedly, the broad language of the state law that mandated the termination of employees (even those who had no contact with children) for certain convictions no matter how far in the past and regardless of how the crime related to the employee’s ability to perform his/or her job, would produce absurd results.  And it did.  For example, Walton, one of the terminated employees, had been found guilty of felonious assault in 1977 and incarcerated for two years before the school district’s civil service office wrote in support of his parole and offered him employment in 1980.  For nearly 30 years Waldon worked without incident for the school district before he was terminated from his position as a systems monitor based on his decades old conviction.  Moreover, during his tenure with the school district, he never had contact with children.  Britton, the other plaintiff, was convicted in 1983 for acting as a go-between in the purchase and sale of $5 worth of marijuana.  Despite this conviction, she had worked for the school district as an instructional assistant for 18 years without incident before she was terminated based on her decades old and relatively minor conviction.

In Waldon, the court found that the plaintiffs presented sufficient facts to support their disparate impact claims under Title VII and Ohio state law because the state law disproportionately affected African Americans.  Moreover, the school district failed to demonstrate a business necessity for following the state law requiring the discharge of employees of convicted of certain crimes.

Although the school district argued that the court should dismiss the complaint because the school district merely followed state law in firing Waldon and Britton, in a harsh statement for employers, the court stated that compliance with state law is no defense because a violation is a violation.  A state law cannot trump the purpose of Title VII.

In the Waldon case, it mattered little that the school district was just following the state law and did not intend to discriminate because intent is irrelevant in disparate impact cases where the courts look at whether facially neutral employment practices have a disproportionately negative effect on a certain protected group that cannot be justified by “business necessity.”  In this case, the school district could not show that the plaintiffs posed an obvious risk to school children based on their past convictions and therefore could not establish a “business necessity.”

The court unsympathetically concluded that once the school district saw that nine of the ten employees being fired were African American, it was not compelled to follow the state law because Title VII trumps state mandates, and that the school district should have raised questions with the state board of education regarding the disparity.

This is a harsh case for employers because the court makes it clear that employers cannot blindly rely on state law mandates regarding the use of criminal background checks.  Rather, employers must evaluate whether seemingly neutral state law mandates have a discriminatory impact.  The employment and labor law attorneys at Harmon & Davies, P.C. are here to navigate employers through these sometimes treacherous waters.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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