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‘Blacklisting’ final rule on the way out

February 6th, 2017  |  Pamela Wolf

The House, on February 2, passed a joint resolution of disapproval that would block the Labor Department’s controversial so-called “blacklisting” rule that implements President Obama’s Fair Pay and Safe Workplaces Executive Order. The 236-187 vote fell mostly along party lines, with three Democrats joining Republicans to approve the resolution and one Republican siding with Democrats who gave it a thumbs-down. Given that the Senate, like the House, is dominated by Republican lawmakers, and President Trump said he would sign it, the final rule is on the way out.

H.J. Res. 37 uses a procedural move under the Congressional Review Act that permits Congress to pass a resolution of disapproval to prevent, with the full force of the law, a federal agency from implementing a rule or issuing a substantially similar rule without congressional authorization.

Disclosing labor violations. The final rule on the chopping block, among other things, requires prospective contractors to disclose violations of 14 basic workplace protections from the last three years, including those addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights protections. It also bars federal contractors from enforcing mandatory pre-dispute arbitration agreements as to workers’ claims of sexual assault or civil rights violations.

Not rewarding violators. House Education and the Workforce Committee Ranking Member Bobby Scott (D-Va.) opposed the resolution, saying that it would dismantle Obama’s Fair Pay and Safe Workplaces Executive Order and its assurance that taxpayer funds are not awarded to government contractors who willfully and repeatedly engage in labor law violations, such as wage theft or maintaining unsafe workplaces.

Scott said it’s imperative that contractors bid on a level playing field when they compete for contracts. “Unfortunately, this Resolution would effectively reward contractors who cut corners, endanger the rights and safety of their workers, and studies show, compromise quality,” Scott said on the Senate floor. “Although most federal contractors obey labor laws, studies by GAO, the Senate HELP Committee and others document that federal contractors with histories of serious, willful, and repeated violations of labor, employment and non-discrimination laws continue to be rewarded with federal contracts.”

Filling the data gap. “The rule implementing the Executive Order on Fair Pay and Safe Workplaces does not add any extra layers of review,” Scott said, “rather it would fill the data gap by requiring contractors to disclose whether they have violations of 14 long-standing labor laws, including the Fair Labor Standards Act, the Occupational Safety and Health Act, the Vietnam Era Veterans Readjustment Assistance Act, and non-discrimination laws.” Scott also noted that the final rule only applies to contracts over $500,000, which are not “Mom and Pop” operations.

Trump vows to sign the resolution. The Trump White House, expressing approval of five joint resolutions now working their way through Congress, including this one, had this to say about the “blacklisting” rule: “The rule would bog down Federal procurement with unnecessary and burdensome processes that would result in delays, and decrease competition for Federal government contracts. Rolling back this rule will also help to reduce costs in Federal procurement.”

The Trump Administration said it is “committed to reducing onerous regulatory burdens on America’s businesses and using existing authorities to continue enforcing the Nation’s workplace laws.”

Number of union-filed election petitions dips in FY 2016

January 31st, 2017  |  David Stephanides

The NLRB reported January 31 that the number of union-filed representation petitions fell to 1299 in FY 2016 (Oct. 1, 2015 to Sept. 31, 2016), down from 1490 in FY 2015. However, unions won 72 percent of the petitioned-for elections, up from 69 percent in FY 2015. Over 73,000 eligible employees voted in FY 2016, down from over 91,000 in 2015.

There were 172 decertification petitions filed over the same period, with employers winning 61 percent of the elections. In FY 2015, there were 176 decertification petitions, with employers winning 59 percent of the elections.

Representation petitions filed by employers rose to 25 in FY 2016 from 21 in FY 2015. Unions won 32 percent of the elections versus 23 percent in 2015.

Once again, it appears that the controversial revised election rules governing representation-case procedures (the “quickie” election rules), which became effective April 14, 2015, are having little impact. With the drop in union-filed petitions and the fall off in eligible voter participation, any possibility for gains evaporated.

Also reported this month, the union membership rate failed to advance in 2016. The Bureau of Labor Statistics announced January 26 that the rate was 10.7 percent in 2016, down 0.4 percent from 2015. In 2016, the number of wage and salary workers belonging to unions was 14.6 million, down 240,000 from 2015. The public-sector union membership rate (34.4 percent) was more than five times higher than the private-sector rate (6.4 percent).

Perhaps the new administration’s anticipated construction boom will advance these numbers in the unions’ favor. Indeed, labor leaders meeting with President Trump last week came away encouraged. Infrastructure improvements and pipeline construction do point to many long and short-term jobs, and labor leaders are eager to start work.

Access Board issues final rule updating accessibility requirements for technology

January 25th, 2017  |  Deborah Hammonds

Seeking to ensure accessibility and usability of information and communication technology, the Access Board recently released the final rule updating accessibility requirements for information and communication technology (ICT) in the federal sector covered by Section 508 of the Rehabilitation Act. The guidelines for telecommunications equipment subject to Section 255 of the Communications Act are also affected.

Published in the Federal Register on January 18, 2017 (82 FR 5790-5841), the updated requirements specify the technologies covered and provide both performance-based and technical requirements for hardware, software, and support documentation and services. Access is addressed for all types of disabilities, including those pertaining to vision, hearing, color perception, speech, cognition, manual dexterity, and reach. The final rule restructures provisions so that they are categorized by functionality instead of by product type due to the increasingly multi-functional capabilities of ICT products. Revisions have also been made to improve ICT usability, including interoperability with assistive technologies, and to clarify the types of ICT covered, such as electronic documents.

According to the Board, this refresh also harmonizes the requirements of Section 508 and Section 255 with other guidelines and standards both in the U.S. and abroad, including standards issued by the European Commission and with the Web Content Accessibility Guidelines (WCAG), a globally recognized voluntary consensus standard for web content and ICT. In fact, the rule references Level A and Level AA Success Criteria and Conformance Requirements in WCAG 2.0 and applies them not only to websites, but also to electronic documents and software.

Access Board Executive Director David M. Capozzi said the Board worked very hard throughout the process to “ensure consistency with other consensus guidelines and international standards to promote global harmonization and facilitate compliance.”

“This update is essential to ensure that the Board’s Section 508 standards and the Communications Act guidelines keep pace with the ever-changing technologies covered and continue to meet the access needs of people with disabilities,” stated Sachin Pavithran, Chair of the Board’s ICT ad hoc committee. “The Access Board is grateful for the input it received from the public and stakeholders throughout the rulemaking process which greatly enhanced the final product.”

A proposed version of the rule was released for public comment in February 2015. The rule is based on recommendations from an advisory panel the Board chartered, the Telecommunications and Electronic and Information Technology Advisory Committee which included representatives from industry, disability groups, government agencies, foreign countries, and other stakeholders.

The rule becomes effective on March 20, 2017. However, compliance with the section 508-based standards is not required until January 18, 2018. Compliance with the section 255-based guidelines is not required until the guidelines are adopted by the Federal Communications Commission.

The Board will conduct a webinar on the rule on February 2.

For further information, contact Timothy Creagan at (202) 272-0016 (v), (202) 272-0074 (TTY), or visit the Access Board’s website.

Employers should ask 3 questions before piling on work

January 17th, 2017  |  Lorene Park

By Lorene D. Park, J.D.

Normally, employers are pretty free to pile on as much work as they want. If an employee doesn’t like it, that employee can simply leave. Employers may not have happy employees and they may have high turnover rates, but courts won’t usually sit as a “super-personnel” department and find violations of employment laws. There are exceptions, though. For example, a heavy workload may not by itself be an adverse employment action, but it can be evidence of discrimination if only certain individuals are assigned more work or more difficult tasks, particularly if an inability to do the added work leads to discipline or termination. With that in mind, and even if you have legitimate business reasons to add to someone’s to-do list (e.g., recent turnover), it’s a good idea to ask three simple questions first.

1. Are you being consistent?

When it comes to consistency, the issue is usually fairness as between employees. For example, in a Title VII suit by a maintenance engineer in New York, the employee claimed his supervisor assigned him a heavier workload because of his Indian descent. The employer allegedly provided him with no assistant, as provided for other engineers, so he did both his job and the work an assistant would do. In the court’s view, this raised a plausible inference of discrimination and, combined with allegations of being yelled at and called names, was also enough to support a hostile work environment claim (Pothen v. Stony Brook University).

Employers should make sure they have a legitimate business reason for assigning new and more difficult tasks to an employee, particularly if the change is substantial (in terms of the effort or time required to do the new tasks). In some cases, if an employee is assigned additional duties but has not received training on how to perform them, courts find a triable question on whether he or she was “set up to fail.”

For example, a federal court in Alabama denied summary judgment against the ADEA and state-law age discrimination claims of a 63-year-old employee who was fired for poor performance despite decades of positive performance reviews. A jury could find that he was methodically set up to fail by a new supervisor who imposed requirements on the employee that were not imposed on others (Hollis v. Southern Co. Services, Inc.).

In another case, an HIV-positive food services manager who also had cancer was denied his request for an uninterrupted lunch and was required to work long hours despite his need for rest. He was also given additional cooking duties when he returned from medical leave and disciplined for a single deficiency found during a survey, while another manager was not disciplined despite several deficiencies. This was enough to have a jury decide whether the employer failed to accommodate his disability and otherwise violated the Washington Law Against Discrimination (Edman v. Kindred Nursing Centers West, LLC).

Similarly, an Iowa appeals court recently revived a state employee’s retaliation claim based on her allegations that a personnel manager assigned her to a demanding supervisor and didn’t provide proper training. If true, a jury could find that her subsequent termination for poor performance was causally linked to, and in retaliation for, her acting as a class representative in a civil rights class action against the state (Couch v. Iowa Department of Human Services).

2. Is the timing suspicious?

Related to consistency is the question of whether a change in workload comes at a suspicious time. Avoid increasing an employee’s workload immediately after he or she has engaged in a protected activity because you do not want the change to appear causally related to protected activity.

In one case, two long-time employees of a Kentucky packaging facility avoided dismissal of their FMLA retaliation claims, and one also advanced his age- and disability-based discrimination claims under state law, based on evidence that upon their return from FMLA leave, they were immediately reassigned from their regular jobs to “the most rigorous and labor intensive job at the company.” They further contended that their superiors laughed while watching the employees struggle with their new duties. Due to their ages and the physically impaired employee’s health condition, they could not perform the rigorous duties and eventually resigned—or were set up to fail and constructively discharged, as a jury might see it (Marcum v. Smithfield Farmland Corp.).

Based on these and similar examples, it is clear that, before substantially increasing an employee’s workload, supervisors should ask whether the employee recently engaged in a protected activity. If so, make sure the change was made for legitimate reasons unconnected to that activity and be able to document those reasons. Examples of protected activities include but are not limited to: requesting or taking FMLA leave; reporting discrimination or harassment; requesting an accommodation for a disability; asking for a religious accommodation; engaging in union-related activities; taking leave for military service; whistleblowing; or participating in an investigation into potential unlawful workplace practices.

Also keep in mind that, while courts vary in how close in time a protected activity and increased workload has to be to appear suspicious, a good rule of thumb is that a month or less is suspicious. Six months is on the outer edge of suspicious temporal proximity, and in such cases there needs to be other evidence suggesting a causal link. Again, though, it depends on the court and the context. In one case for example, a federal court in Tennessee found a causal link between a Sears’ employee’s FLSA-protected activity and her termination even though two years had passed, because during the interim, her supervisor gave her an overwhelming amount of work, put her under increased scrutiny, and put her on an unusually long PIP (Brabson v. Sears, Roebuck and Co.).

3. Does the workload prompt employees to work through legally required breaks?

While the FLSA generally does not require meal or rest periods, many states do. Some states also have “day of rest” laws that require employers to provide a certain amount of time off each week. In those states, employers that assign heavy workloads should also ask whether meeting its requirements typically causes employees to skip meals, breaks, or other required rest periods. In a case out of California for example, a federal court found triable questions of fact on whether Comcast knew its schedule forced communications technicians to skip required meal times to keep up with their excessive workloads, in violation of state law. The company had policies requiring techs to take a half-hour meal break for every five hours worked, a second meal break for every 10 hours worked, and a 10-minute rest break for every four hours. It also prohibited them from working off the clock. But testimony by technicians indicated that the policies were not followed and that they had informed dispatchers and supervisors the assignments forced them to miss meal breaks. One supervisor allegedly responded that “the customers come first” (Zimmerman v. Comcast Corp.).

Context is key. As these questions suggest, context is extremely important. For example, even a reduced workload could be considered too much if it doesn’t comply with an employee’s injury-related medical restrictions. In one case, an employer created a “light duty” position for an employee with a shoulder injury, but the new job was still strenuous enough that it did not comply with his medical restrictions. When he complained of pain, he was sent on medical leave, and as his return approached upper management exchanged emails on what to do with him. The CEO allegedly suggested: “Have him paint every wall . . . and then when he’s done with that, have him paint the . . . walls again.” In the court’s view, this was strong evidence of a conscious disregard for the employee’s rights, and he would get to trial on his claims under California law (Latham v. Cambria Co., LLC).

On the other hand, the Eighth Circuit recently affirmed summary judgment against ADA and state law discrimination and retaliation claims by an employee who was a point of contact with patients who used medical devices manufactured by her employer. After she took FMLA leave and requested accommodations for cancer treatment, she was put in a new position carrying difficult responsibilities. She was required to stay until all tasks were complete and she was the only employee required to stay in the queue of answering incoming calls while working on other assignments. Despite the increased difficulty, though, it was clear to the court that there were a myriad of unrelated concerns justifying her eventual termination for poor performance. Indeed, she was the subject of multiple complaints and she gave incorrect and life-threatening advice to one patient about a pacemaker. It was also significant that the employer had granted her multiple accommodations. Thus, the context worked in the employer’s favor (Oehmke v. Medtronic, Inc.).

Given that context can be outcome-determinative in a dispute over whether an employee’s workload is discriminatory or otherwise violates federal or state laws, the three questions above should be considered merely a good starting place. In addition to asking these questions, employers and other decisionmakers should be encouraged to adopt an objective point of view and look at the whole picture. So long as the change is for legitimate reasons and seems fair in context, the employer is not likely to face a challenge in court.

OFCCP suit against Google demonstrates continued aggressive enforcement in waning days of Obama Administration

January 12th, 2017  |  Cynthia L. Hackerott

Last week’s announcement by the OFCCP of its administrative lawsuit against Google, Inc, asserting that the technology giant unlawfully refused to provide certain compensation-related information in a compliance review, has been well-publicized. Citing confidentiality and breadth of scope concerns, Google, Inc provided a statement to multiple news entities, including Employment Law Daily (ELD), asserting that its refusal to provide the information was justified. This administrative action against Google is the latest in an apparent trend of OFCCP suits against major tech companies, noted attorney and former OFCCP official John C. Fox in commentary provided to ELD on January 4.

“We are seeing OFCCP file a large number of administrative complaints in recent weeks, at least compared to OFCCP’s historical averages,” observed Fox. “It very much appears that the Obama OFCCP is ‘spiking the cannons’ as it leaves office and before the incoming Trump Administration can have a chance to see if disputes between government contractors and OFCCP in the audit pipeline are meritorious.”

Fox, currently president of the Silicon Valley area firm, Fox, Wang & Morgan P.C. in Los Gatos, California, also noted that ‘[i]n the San Francisco Regional Office, it is very clear that [OFCCP Pacific Regional Director] Janette Wipper is trying to send a message to the ‘big dogs’ in the tech industry (Microsoft, Oracle, Palantir, and now Google) that she is there and is prowling.”

Dueling narratives. Google’s federal contracts include one with the General Services Administration, awarded in June 2014, for “Advertising and Integrated Marketing Solutions,” under which Google has received over $600,000, according to the OFCCP’s complaint (DOL OALJ No 2017-OFC-4). In a January 4, 2017 press release announcing the suit, the OFCCP asserts that Google violated the laws enforced by the agency and breached its obligations as a federal contractor when it refused to provide the requested information as part of a routine compliance evaluation of the multinational company’s Mountain View, California headquarters. However, in the statement provided by a Google spokesperson to ELD, also on January 4, the company states that “the handful of OFCCP requests” which are the subject of the lawsuit by the agency “are overbroad in scope, or reveal confidential data,” and that the company has attempted to make this clear to the agency.

Information sought. The complaint asserts that the OFCCP initiated the review in September 2015, and on June 1, 2016, the agency requested the following information:

  • A compensation snapshot as of September 1, 2014;
  • Job and salary history for employees in a September 1, 2015 compensation snapshot that Google had produced and the requested September 1, 2014 snapshot, including starting salary, starting position, starting “compa-ratio,” starting job code, starting job family, starting job level, starting organization, and changes to the foregoing; and
  • The names and contact information for employees in the previously produced September 1, 2015 snapshot and the requested September 1, 2014 snapshot.

Approximately on June 17, 2016, “Google communicated its refusal to produce” the above items, among others, the complaint alleges, adding that “[i]n the months that followed, OFCCP repeatedly attempted to obtain Google’s agreement to produce” the items at issue.

On September 16, 2016, the agency issued a Notice to Show Cause regarding the items at issue, but the complaint alleges that, as of the date it was filed with the DOL’s Office of Administrative Law Judges, Google has “persisted in its refusal” to produce the items at issue.

“Like other federal contractors, Google has a legal obligation to provide relevant information requested in the course of a routine compliance evaluation,” said OFCCP Acting Director Thomas M. Dowd in the agency’s statement. “Despite many opportunities to produce this information voluntarily, Google has refused to do so. We filed this lawsuit so we can obtain the information we need to complete our evaluation.”

Google statement. Contesting these allegations in the statement provided to ELD, the Google spokesperson said the following:

“We’re very committed to our affirmative action obligations, and to improving the diversity of our workforce, and have been very vocal about the importance of these issues. As a federal contractor, we’re familiar with our obligations and have worked collaboratively with the OFCCP. We’ve worked hard to comply with the OFCCP’s current audit and have provided hundreds of thousands of records over the last year, including those related to compensation. However, the handful of OFCCP requests that are the subject of the complaint are overbroad in scope, or reveal confidential data, and we’ve made this clear to the OFCCP, to no avail. These requests include thousands of employees’ private contact information which we safeguard rigorously. We hope to continue working with OFCCP to resolve this matter.”

Complications with ‘just writing the check.’ “The question remains whether the Google filing is merely an OFCCP publicity stunt designed to test the resolve of the big tech companies to defend themselves and see whether they will simply ‘write the check’ to move on (‘fly biting the leg of the elephant’ problem),” Fox noted. “Thus far, the tech industry has shown no interest to ‘just write the check’ (other than in a recent Qualcomm compensation lawsuit unrelated to OFCCP).”

“The problem with ‘just writing the check’ in compensation cases (as opposed to hiring cases where OFCCP’s expertise lies) is that the at-issue government contractor must be fair to all employees,” he explained. “The contractor cannot just willy-nilly raise the salaries of some employees OFCCP chooses to exalt without creating both legal liability to other similarly situated employees and wreaking havoc on morale as side-by-side colleagues now rankle that others in their work group are now suddenly paid more for doing the same work based simply on their race, sex or ethnicity. Unthoughtful ‘write the check’ resolutions lacking proper technical foundations for changing the pay of some employees while not all similarly situated employees in compensation cases have often recently resulted in successful lawsuits by those employees not favored in a ‘quick and dirty’ settlement entered into to simply to appease ‘political’ and shareholder unrest.”