At a Senate Health, Education, Labor, and Pensions (HELP) Committee hearing on May 19, Chairman Lamar Alexander (R-Tenn.) expressed clear discontent not only with the recent direction and strategy of the EEOC, but particularly with its General Counsel, P. David Lopez, who was nonetheless named last year by the National Law Journal as one of America’s 50 Outstanding General Counsels.
Concern over agency’s direction. Alexander, in his opening remarks at the hearing, expressed concern that the EEOC is “pursuing investigations with no complaints while the backlog of complaints grows, receiving embarrassing court rebukes, and seems to be inventing ways to avoid following the law.” The senator also noted that six months ago he voted against Lopez’s re-nomination to serve as EEOC general counsel.
“I said then that I believed he had placed too much emphasis on litigating high-profile lawsuits at a time when there were more than 70,000 complaints of workplace discrimination that hadn’t been investigated,” Alexander said. “Since then the lawsuits have continued, the agency has suffered embarrassing rebukes from the courts, and the backlog has grown. We’re here today to find out why such an important agency with such a critical task has gotten so far afield of its mission.” Alexander outlined four chief concerns about the EEOC:
- The commission is pursuing investigations that may not involve a complaint, while the backlog of complaints has grown to over 75,000.
- The commission is losing lawsuits and receiving strong rebukes from courts, wasting taxpayer dollars and commission resources.
- Instead of following the law, EEOC is focused on “developing the law” and creating regulatory guidance without any notice and comment.
- After the agency initiated litigation against employee wellness programs—creating a conflict with the Affordable Care Act and ignoring the clear intentions of Congress and the president to encourage these programs—the agency’s proposed rule on the plans does not resolve all the issues it created.
Among the many criticisms that Alexander leveled against the agency was that it spends “too much time initiating lawsuits from investigations which were begun without any individual filing a complaint, and with a clear intention by the agency to achieve a maximum amount of publicity.” The Senator cited several examples of this and also revisited the several instances he outlined during Lopez’s confirmation hearing in which courts had strongly rebuked the EEOC.
Alexander also addressed what he thought was the agency’s lack of respect for the law. “…I am concerned that the commission and Mr. Lopez seem to be inventing ways to avoid following the law,” he said.
“In public speeches, Mr. Lopez has admitted that his attorneys take an ‘entrepreneurial approach’ to litigation and work to develop the law.’
“EEOC has pushed the bounds of the law by seeking out what the commission itself described in its fiscal year 2016 budget justification as ‘novel issues’ in the cases it pursues.”
Among other issues, Alexander also criticized the EEOC’s use of guidance, which he said is supposed to be a non-binding way to provide advice to individuals and businesses on how the agency interprets the law. “But twice in the past two and a half years, EEOC has set national workplace discrimination policy through guidance.
“Then they filed lawsuits based on this guidance, which tells me the agency thinks its guidance is binding even if the law says it isn’t.”
Great strides made. Ranking Member Patty Murray (D-Wash.), in her prepared remarks, emphasized what she thought were great strides that have been made by the EEOC. “For five decades, the Commission has made great strides in creating a more fair and more just society,” she said. “In fact, the EEOC’s success rate in litigation has consistently topped 90 percent, including more than 93 percent this past Fiscal Year.
“That success comes despite years of budget cuts and belt tightening that has whittled the agency’s workforce by more than 700 full-time employees since 1995. And it’s one more reason why we need to build on our bipartisan budget deal to continue rolling back the automatic cuts, so we can restore investments that expand opportunities for all families.
“I believe it is time for Congress to step up and give the EEOC the resources it needs to fight discrimination in our nation’s workplaces. That would help the agency reduce its severe backlog.”
Litigation as a last resort. Among the many points he made in prepared remarks, Lopez stressed that the EEOC sees litigation as a last resort. “While it’s my job as General Counsel to be the Agency’s chief litigator, let me be clear: I believe litigation should be the enforcement tool of last resort,” he said. “I do not believe in suing first, and asking questions later—and our statutory authority does not contemplate or permit this. In FY 2014, for instance, we litigated on the merits only .15 percent of all charges filed. That is about one-and-a-half lawsuits for every 1,000 charges filed. During my tenure as GC, I have focused on developing and filing critical cases, particularly those that further the public interest. We carefully and deliberately vet our potential litigation vehicles to ensure effective enforcement nationwide and across the statutes. And we seek approval from the Agency’s Commissioners—by law, a bipartisan group—consistent with the guidelines the Commission itself has adopted to govern the delegation of litigation authority.”
Non-litigation efforts. Lopez also discussed the EEOC’s non-litigation efforts. “As General Counsel, I, along with those under my direction, actively and enthusiastically support the Agency’s non-litigation enforcement efforts,” he said. “Voluntary compliance is an important component of those efforts and I have proudly defended our agency’s record on this front.”
Lopez noted that April 29, in Mach Mining v. EEOC, “the Supreme Court held in a unanimous opinion that ‘a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before suit[, but] the scope of that review is narrow.’ In particular, judicial review is limited to whether the EEOC has ‘inform[ed] the employer about the specific allegation’ and whether the EEOC has ‘tr[ied] to engage the employer in some form of discussion.’ Lopez stressed that in its decision, the High Court noted that Title VII is about substantive outcomes.
“The Supreme Court’s decision ends confusion in the lower courts about the standard of review and is a step forward for victims of discrimination because we can now focus our attention on the merits of the discrimination allegations in our litigation and ensuring workplace fairness,” Lopez said.
The General Counsel also said that during his tenure the EEOC has “engaged in unprecedented levels of outreach to various stakeholder groups across the country, including to bar and management groups.” The day after his confirmation hearing, he addressed and took questions from the U.S. Chamber of Commerce. “While often their positions, such as in Young v. UPS and EEOC v. Abercrombie and Fitch, express different views than ours, we appreciate and learn from the dialogue we’re able to have,” he said. “Further, although I believe we have a great story to tell in just about any area, we always welcome feedback and constructive criticism as an opportunity to improve our enforcement efforts. This is the only way we will become stronger and more effective.”
Lopez also pointed out that last year, he was named by the National Law Journal as one of America’s 50 Outstanding General Counsels—that award, however, “really belongs to my dedicated colleagues at the EEOC who inspire me every day,” he said. “I have seen up close and personal the unparalleled dedication and skill of these amazing civil servants. This award reflects the tremendous work of the program during an extremely challenging period when we endured a hiring freeze, significant attrition, and furloughs. Still, despite these particularly difficult times, we were able to continue to conduct a successful litigation program.”
As reported in Employment Law Daily on May 7, 2015, the Department of Labor, Wage and Hour Division has submitted its proposed white-collar exemption rule to the Office of Management and Budget (OMB) for review. The DOL has reviewed and made proposed revisions to the FLSA regulations that govern overtime pay eligibility at the direction of President Obama’s March 2014 memorandum to the agency.
Exactly what revisions have been made to the regulations are unknown at this time and will not be publicly available until the OMB completes its review and the DOL releases its proposed rule for public comment. While there is no minimum time period, the OMB’s Office of Information and Regulatory Affairs may take up to 90 days to review a proposed rule, with a one-time extension of not more than 30 days.
In the meantime, Noel P. Tripp, of the law firm Jackson Lewis, has penned an open letter to the DOL concerning its pending revisions. Tripp offers five suggestions that he stresses “would ensure more streamlined compliance with the FLSA’s requirements and reduce litigation and uncertainty for both employers and employees alike. This whole process serves no purpose if clarity is not provided for all stakeholders.”
Of Tripp’s five suggestions, I’ll highlight two here. First, he targets IT workers and suggests that the exempt status of these workers should be addressed “holistically” across the administrative, learned professional and computer professional exemptions. “These regulations desperately need to be modernized. The Department should define the duties test associated with all three of these exemptions to recognize that most information technology work, like the work of other white collar exempt employees, is exempt-level work.”
Second, Trip desires a de-emphasis of the duties tests and an increasing reliance on the compensation and salary basis prong in determining exempt status. “The DOL should establish a salary level that if met, qualifies for an exemption, regardless of duties. This standard could be calibrated with compensation levels based on cost of living data, perhaps that used by the federal government.”
For the remaining three insightful suggestions that strive to modernize very antiquated regulations, see Tripp’s post here.
By Lorene D. Park, J.D.
Remember back when the two biggest employment law issues involving social media were “ownership” of accounts and a backlash against requesting access to job applicants’ personal profiles? Times have changed, and legal issues have multiplied. But much like the older generation catches up with teenagers who readily adapt to rapidly changing technology, courts are developing precedent that shows a better understanding of how allegations involving the use of social media fit within long-standing law on trade secrets, labor relations, First Amendment rights, discrimination laws, and more. Below are a few emerging issues and court responses.
Discrimination, harassment, and retaliation. Many employment cases involve allegations of social media being used as a vehicle for harassing a coworker or other individual, and employers can be found liable. Facebook and other posts may also be evidence of unlawful intent:
- Comments lamenting that a “f*cking indian” was made department chair and other racist Facebook posts by two professors who were allowed to vote on an employee’s tenure (which was denied) evidenced hostility that was prevalent in the department, a federal court in Oklahoma found, denying summary judgment on a hostile work environment claim. The employee’s retaliation claim also advanced, partly because the Facebook posts provided a causal link between the denial of tenure and his prior complaints of race discrimination (Hannah v. Northeastern State University).
- A food service director, who complained that graphic sexual images of her drawn on a bathroom wall had been a topic social network sharing for a month and who lost her job soon after complaining, will take her sexual harassment and retaliation claims to a jury. The court found it significant that the supervisor knew workers were passing around cell phones to view the posts but blew off the employee’s complaints. The fact that the drawings were shared on Facebook during work also supported a finding that the alleged harassment was severe enough to create a hostile environment (Meng v. Aramark Corp.).
- A court found a triable issue on whether a male EMT was fired in retaliation for reporting sexual harassment by a male coworker or because he refused to sign a letter agreeing to attend anger management after he wrote Facebook posts (the same day the coworker touched him near his crotch) threatening “the mother f***er who thought today was a joke” and stating he would “knock [that individual’s] f***ing teeth out, break [his or her] jaw [and] every bone in [his or her] left arm.” The employee claimed he told HR he was willing to do the training but refused to sign the letter because it purported to exonerate the company for the harassment (Verga v. Emergency Ambulance Service, Inc.).
Labor relations. Facebook, Twitter, and other social media comments can be protected concerted activity or union activity under the NLRA. An NLRB fact sheet explained that in 2010, the Board started receiving charges in regional offices about employer social media policies and specific instances of discipline for postings. In some cases, the agency has found that the communications were protected and that there was reasonable cause to believe an employer’s policies or disciplinary actions violated federal labor law. For example:
- Although a car dealership cooperated with the NRLB in an investigation over its 2010 handbook provisions on social media, gave the NLRB proposed revisions, and issued a new 2013 handbook after the agency’s review, the Board, in a 2-1 decision found that publication of the new handbook did not effectively repudiate the offending provisions. Merely revising unlawful rules did not remedy unfair labor practices, absent notice to the affected employees that violations occurred and would not be repeated. The overbroad 2010 social media policy prohibited employees from disclosing information about employees or customers; required them to identify themselves when posting comments about the dealership; prohibited them from referring to it in a way that would negatively impact its reputation; prohibited any conduct that even had “the potential to have a negative effect” on the dealership; and allowed the dealership to request access to anything they posted on social media (Boch Imports, Inc. dba Boch Honda).
- An employer violated NLRA Sec. 8(a)(3) by firing an employee for venting frustration with a manager by posting profanity-filled Facebook comments, ruled a three-member panel of the NLRB. The posting, which was protected and concerted activity, called the manager a “NASTY MOTHER F*CKER” and a “LOSER,” and ended with “Vote YES for the UNION!!!!!!!” His post was visible to Facebook “friends,” including some coworkers. The panel noted that he posted his comments while on break, there was no evidence they interrupted the work environment or relationship with customers, and the comments echoed employees’ prior complaints of disrespectful treatment of employees and encouraged employees to vote for union representation. Disagreeing with Member Johnson’s partial dissent, the majority did not view the use of profanity to be qualitatively different from other profanity regularly tolerated by the employer (Pier Sixty, LLC).
- The D.C. Circuit refused to hold a union liable for failing to remove derisive and allegedly threatening comments on a Facebook page maintained for union members. Denying a non-union employee’s petition for review of the NLRB order dismissing his charge, the appeals court found it significant that there was no indication that union officials or agents posted the comments and only union members could post or view comments on the page. It declined to address whether the postings would be deemed “threatening” if made by union agents and emphasized that the Board was not foreclosed from ever finding a union guilty of unfair labor practices for postings on “closed” Internet sites (Weigand v. NLRB).
Background checks. Back when employers first started viewing the social media accounts of job applicants as a means of evaluating whether they would make good employees, legal experts cautioned that employers might learn information (such as religion, race, or disability) that could form a basis for a claim that they made employment decisions on prohibited bases. Although that remains a concern, other issues have arisen on the use of social media to evaluate applicants or employees.
For example, a federal court in California dismissed a putative class action under the Fair Credit Reporting Act (FCRA) by LinkedIn users who were allegedly rejected from employment after potential employers contacted individuals identified through LinkedIn’s Reference Search Function. The court explained in detail why search results did not constitute a “consumer report.” Among other reasons, the information was derived solely from LinkedIn’s transactions with the plaintiffs and not from third parties, LinkedIn was not a “consumer reporting agency” under the Act, and the list of possible references was not, itself, used or intended to be used for employment purposes (Sweet v. LinkedIn Corp.).
Class Action notice. Interestingly, social media may be considered by some courts to be an effective means of providing notice to potential class members in class actions. In an ongoing class action wage suit by Gawker Media interns, a federal court in New York granted the plaintiffs’ renewed (and revised) bid for approval of a plan to disseminate notice to potential opt-in plaintiffs via social media. The court had rejected their initial notice plan, concluding that it was overbroad and seemed bent on publicizing Gawker’s alleged wage infractions rather than targeting prospective class members. The court was satisfied that these defects were cured but told the plaintiffs they may not “friend” potential opt-ins on Facebook, and must “unfollow” from Twitter those who don’t join during the opt-in period (Mark v. Gawker Media, LLC).
Evidence, discovery issues. Facebook posts are fair game when it comes to discovery, much to the chagrin of individuals whose posts contradict claims they later make in litigation.
- A federal court in Louisiana ordered an employee to produce an unredacted copy of his entire Facebook page, finding that his argument that he had deactivated his Facebook account was not persuasive—that was not the same as deleting it, and it was clear from other evidence that he knew how to reactivate his account. Moreover, the employer was entitled to analyze his Facebook messages, particularly given evidence that he messaged a coworker that he injured himself fishing, rather than in a workplace accident on the employer’s vessel, as he had alleged (Crowe v. Marquette Transportation).
- In the ongoing saga of human-trafficking-related claims against Signal International, which has been accused of trafficking over 500 Indian guestworkers to the U.S. after Hurricane Katrina, a federal court in Louisiana ruled that Signal may not use a previously undisclosed Facebook picture of one plaintiff and his assumed wife as impeachment evidence. Though the picture purportedly conflicted with his deposition testimony that he had not seen his family in over seven years, whether he saw his family was relevant to damages and as such, was substantive. Regardless of its impeachment value, it should have been disclosed to opposing counsel and listed in the proposed pre-trial order; since it was not, it could not be used at trial (David v. Signal International, LLC).
- In an ADA discrimination suit by the EEOC, Bank of America was denied a motion to compel production of all texts, emails, and social media posts by the complaining employee since 1998. Although discovery of the employee’s ability to communicate in writing was a central issue in the case, the request was overly broad (EEOC v. Bank of America).
Trade secrets. Social media contacts and control of groups linking professionals together based on a common interest can be considered trade secrets:
- A former employee’s refusal to cede control of a professional LinkedIn group with a membership restricted to 679 of the employer’s current and potential customers supported his former employer’s breach of noncompete, Illinois Trade Secrets Act, and common law misappropriation claims, all of which survived his motion to dismiss. The federal court in Illinois noted that the names of group members would be “extremely valuable” information to competitors (CDM Media USA, Inc. v. Simms).
- Fact disputes on whether an employee misappropriated trade secrets by maintaining LinkedIn contacts with a company’s clients after his termination precluded summary judgment on his former employer’s claim under California law. Although he argued that LinkedIn contacts do not constitute a trade secret because the employer encouraged employees to use LinkedIn, and because his contacts were viewable by any other contact, the court refused to take judicial notice of LinkedIn’s functions and concluded that a fact issue remained (Cellular Accessories For Less, Inc. v. Trinitas LLC).
- An employer’s claims that its roster of employees who are touchscreen technology specialists was a trade secret misappropriated by a competitor in its effort to poach the employees was made in bad faith, considering the names of the specialists were obtained from publicly available sources, including LinkedIn. The employer was ordered by a California court to pay the competitor $180,000 in attorneys’ fees (Cypress Semiconductor Corporation v. Maxim Integrated Products, Inc.).
First Amendment cases. Social media posts are considered public speech, and in some cases even clicking “like” in response to someone else has been considered speech. Whether First Amendment protections apply, however, depends on the circumstances of each case.
- An EMT/medical helicopter pilot, who repeatedly reported a lack of required federal certification of a Medstar helicopter to his employer before going to the FAA and social media, survived a motion to dismiss his First Amendment retaliation claim based on his termination. His speech was not part of his regular duties, addressed a public concern, and a federal court in Florida found no legitimate government interest in disciplining an employee for disclosing malfeasance, especially where he gave the county a chance to address the issues before going public (McAllister v. Lee County).
- Only one of two police officers disciplined for an off-duty Facebook conversation about rookie cops in leadership positions was protected by the First Amendment. The federal court in Virginia found it significant that there was no showing that his comments created a “reasonable prediction of harm” to police operations. But the police chief was protected by qualified immunity since reasonable officials in his position would not know that disciplining an officer for a Facebook post under department policy would violate constitutional rights. The city was not liable because it never ratified the social networking policy (Liverman v. City of Petersburg).
- A fired assistant attorney general did not engage in protected speech when he embarked on an online and televised crusade against a gay student affairs president, ruled a Michigan appeals court. His interest was outweighed by the employer’s interest, and the First Amendment did not require the Attorney General to “sit idly by” while he insulted those he was hired to serve and protect (Shirvell v. Department of Attorney General).
- Finding that a police officer’s “hot-headed” Facebook posts criticizing the police chief’s leadership for failing to send a patrol car to a fallen officer’s funeral were made as a citizen, and perhaps stemmed from a “genuine desire to inform the community,” the Fifth Circuit refused to allow the “‘mere insertion of a scintilla of speech regarding a matter of public concern’ to ‘plant the seed of a constitutional case.’” Further, the department’s interests in maintaining discipline and preventing insubordination outweighed the officer’s First Amendment interest here (Graziosi v. City of Greenville Mississippi).
Other claims. Social media can be part and parcel of traditional harassment and discrimination claims, but cyber-harassment also can be a stand-alone claim in some cases. In addition, social media posts can be cause for a court to impose remedial measures to prevent abusive litigation tactics or to protect individuals’ privacy rights.
- A California Court of Appeals upheld a restraining order against a CVS manager who allegedly cyber-harassed a former coworker by going through his girlfriend’s Instagram account and posting the coworker’s LinkedIn Profile along with disparaging remarks like “#kickedout” and “#joblessbitch.” The circumstantial evidence amply established that the former coworker was humiliated by the posting and reasonably worried about the impact on her professional reputation (Kwan v. Murcia).
- A federal court in North Carolina found good cause existed to modify a protective order to require the removal of YouTube videos depicting the deposition of a corporate witness, along with commentary mocking her, which were posted by an employee over a year and a half after her employment discrimination suit was dismissed. Such public mockery implicated reputational and privacy interests of litigants and third parties. The court rejected the employee’s jurisdictional and First Amendment challenges (Springs v. Ally Financial, Inc. fka GMAC, Inc.).
- Evidence that an employer suspended, fired, and then sued an employee for defamation because she spoke to the media, was featured on Facebook by the media, and complained to OSHA about workplace exposure to chemicals linked to breathing problems suggested to a federal court in Alabama that the Secretary of Labor was likely to succeed on a retaliation claim filed on the employee’s behalf under the OSH Act. The court enjoined the employer from taking adverse actions against employees who exercise rights under the Act (Perez v. Lear Corporation Eeds and Interiors).
State legislatures are also catching up. While courts are in the trenches dealing with individual disputes over the use and control of social media accounts, legislators have been busy crafting laws that also address emerging issues—though these mainly focus on the privacy rights of employees and job applicants. According to the National Conference of State Legislatures, as of April 14, 2015, legislation restricting employers from requesting passwords to personal Internet accounts and otherwise addressing social media have been introduced or considered in at least 22 states in 2015. For example, Virginia recently enacted a social media privacy law that prohibits employers from requiring current or prospective employees to disclose the username or password of their social media accounts and forbids them from retaliating against those who exercise their rights under the law. Employers also are prohibited from requiring an employee to add an employee, supervisor, or an administrator to the list of contacts associated with the employee’s social media account. Montana enacted a similar law, as have other states.
Social media policies generally. Clearly the proliferation of social media communications and images has given rise to an ever-growing number of employee complaints of harassment, discrimination, defamation, privacy violations, and other claims. Plus, there are employers’ interests in protecting the names of customers and potential customers, and in maintaining a positive public image on social media. Due to the changing legal landscape, variation among state laws, and the need to account for an employer’s unique circumstances, there is no one-size-fits-all social media policy that will protect an employer’s interests while ensuring compliance with applicable laws. As a consequence, employers are well advised to obtain legal advice from a local attorney experienced in both employment law and social media before adopting a social media policy and to regularly review their policies to ensure continued compliance.
By Lisa Milam-Perez
“Raising pay raises us all,” declares the noble voice-over in Walmart’s latest TV ad. Have you seen it? It left me a little verklempt. The retail behemoth, so reflexively maligned in liberal circles, is raising pay for its hourly workers, and boasting about it.
There it is, folks: I’m callin’ it. This “Fight for $15” movement is a resounding success. What other explanation could there be for Walmart’s newest campaign? “Alt” labor’s PR blitz has fixed the public’s attention on the challenges facing low-wage workers and has fostered a sense of urgency, of moral imperative, over remedying their plight. The world’s largest retailer felt the heat, responded accordingly, and is making hay of it.
After Walmart raised its wages, TJ Maxx and Marshall’s quickly followed suit. Then in April, beleaguered “joint employer” McDonald’s Corp. said it would give a raise to workers at company-owned restaurants (i.e., a small fraction of the McDonald’s restaurant universe) to more than $10 an hour by 2016. Sure, we can wonder about motive (See that, NLRB—how few McDonald’s employees actually fall under corporate’s control? We’ve made our point!), but I’m still feeling all warm and fuzzy inside, so let’s not go there.
Of course, in concrete terms, the Fight for $15 is far from won. The world’s largest employer can boost its wages and its competitors can follow suit, but the majority of low-wage workers are still left behind. The most tangible solution is a sharp increase in the lagging federal minimum wage, currently a woeful $7.25 an hour. The Obama administration has doggedly pressed the matter of late, leading the charge in his 2013 State of the Union address and raising the rate to $10.10 for federal contract workers by executive fiat. Late last month, lawmakers proposed an audacious $12 an hour federal minimum wage by 2020—$110 billion in raises for affected U.S. workers—in the form of the Raise the Wage Act. No doubt their lofty ambitions were fueled by the Fight for $15 battle cry. Given the consistent failure over the years to move the needle in far more modest increments, though, their quest seems a Quixotic one.
Yet where Congress has lollygagged, the states have stepped in, a solid majority of which have minimum wages that exceed the federal rate. A number of those jurisdictions have raised their minimums still higher since 2013. In the 2014 election, voters handily approved increases in all five states where the minimum wage was on the ballot. Meanwhile, Democratic lawmakers are taking novel approaches to boost workers’ wages even further: Connecticut is pondering legislation that would charge $1 an hour to private companies with at least 500 employees (in an alternate bill: 250 workers) for each worker who is paid $15 an hour or less. Last week, New York Governor Andrew Cuomo called upon the state’s labor commissioner to convene a wage board to enact a wage-hike for fast-food workers specifically. And city governments have begun to take action too, with still higher local wage floors in Seattle, San Francisco, and Chicago, among others.
Alas, with progress comes pushback, as Republican legislators maneuver with equal fervor to undo wage gains already won. In January, on the heels of a citizen-mandated minimum-wage jump, South Dakota passed a measure to exclude workers under age 18 from enjoying the newly enacted pay raise, and a similar initiative is currently afoot in Nebraska. Last week the Missouri Senate voted to bar municipalities in the state from enacting local wage hikes; such legislation has been floated in several other states as well. Bids to eliminate longstanding prevailing-wage laws, which typically apply to public construction and service contracts, are in play in more than a dozen states too. Living wage ordinances also face court challenges by private employers; last week, for example, an airport contractor urged the Ninth Circuit to strike down LA’s Living Wage Ordinance, enacted in 1997. Of course, at the federal level, the GOP continues to dig in its heels. Senate Republicans in 2014 blocked a minimum wage increase. And in the House? Suffice to say that John Boehner once pledged to kill himself before he’d vote for a minimum wage hike.
They’ve won the PR battle, the Fight for $15 folks. But on the political front, the wage war rages on.
A bill that would add pregnancy as a protected category under the Florida Civil Rights Act (FCRA) is waiting for Governor Rick Scott’s approval.
SB 982 would prohibit public and private employers from discriminating in employment based on pregnancy. The measure’s prohibition against discrimination based on pregnancy would extend to labor organizations, joint labor-management committees, employment agencies, and in occupational licensing, certification, and membership organizations. The bill also would protect against discrimination based on pregnancy in public lodging and food service establishments and in places of public accommodation.
According to a legislative analysis of the bill, the fact that the FCRA is modeled after Title VII but yet did not include this provision has caused divisions among federal and state courts as to whether the Florida Legislature intended to provide protection on the basis of pregnancy status. As a result, the ability to bring a claim based on pregnancy discrimination varied among jurisdictions within the state until the Florida Supreme Court recently ruled that by prohibiting discrimination based on sex, the FCRA also prohibits discrimination based on pregnancy.
The prohibition against discrimination applies to all private and public employers at the state and local level. In the public sector, the bill will apply to state agencies, counties, municipalities, political subdivisions, school districts, community colleges, and state universities.