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‘Blacklisting rule’ torpedoed in Senate and sent to Trump to bury

March 7th, 2017  |  Pamela Wolf  |  Add a Comment

On March 7, the Senate approved a resolution rolling back the Federal Acquisition Regulation and Department of Labor’s related guidance implementing President Barack Obama’s Executive Order on Fair Pay and Safe Workplaces—the so-called “blacklisting rule.” The 49-48 vote fell strictly along party lines, with Republicans favoring the measure and Democrats and two Independents voting against it; three Republicans did not vote. H.J. Res. 37 now heads to President Trump’s desk for signature. While Trump has proven difficult to predict, the fact that the resolution abolishes a regulation lines up with his aggressive deregulation agenda, and so he will likely approve it.

The final rule that will be undone if Trump signs the resolution of disapproval, 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. Additionally, H.J. Res. 37 will prevent implementation of the entire rule, including the paycheck transparency requirements that were not previously enjoined.

Unnecessary and unhelpful? Senators Ron Johnson (R-Wis.), chairman of the Senate Homeland Security and Governmental Affairs Committee and Lamar Alexander (R-Tenn.), chairman of the Senate Committee on Health, Education, Labor, and Pensions (HELP), applauded the passage of the resolution.

“Overturning this harmful rule will reduce the regulatory burden plaguing our economy,” Johnson said in a statement. “This rule could potentially be used to blackmail innocent businesses during labor negotiations. The Obama administration admitted that this rule would cost at least $398 million each year to comply with, but failed to quantify any benefit whatsoever. Repealing this rule is a step in the right direction by providing the regulatory relief that is necessary to unleash the American economy so that it can realize its full potential.”

“The Senate today did the right thing by overturning the harmful Obama Administration ‘blacklisting’ regulation that could have prevented our nation’s federal contractors from receiving a federal contract for an alleged labor violation before any wrongdoing has been proven,” Alexander added. “I’m urging President Trump to sign this legislation as soon as possible.”

Federal contractor violations. Democrats pushed hard against the resolution, noting that in 2013, the HELP Committee conducted an investigation which found that nearly 30 percent of the companies that received the most severe penalties for worker safety and wage law violations were federal contractors.

A report released by Senator Elizabeth Warren (D-Mass.) on the day of the vote showed that 66 of the federal government’s 100 largest contractors have been caught breaking federal wage and hour laws. In addition, more than a third of the 100 largest penalties levied by OSHA since 2015 were issued to companies that held federal contracts.

Senator Patty Murray (D-Wash.), Ranking Member HELP Committee, speaking on the Senate floor, said: “For too long, the government has awarded billions of taxpayer dollars to companies that rob workers of their paychecks and fail to maintain safe working conditions. This rule helps right that wrong. Under this rule, when a company applies for a federal contract, they will need to be upfront about their safety, health, and labor violations over the past three years. That way, government agencies can consider an employer’s record of providing workers with a safe workplace and paying workers what they have earned—before granting or renewing federal contracts.”

“When workers arrive on the job, they deserve to know that they will be treated fairly; they will be provided with safe and healthy workplaces; their right to collective bargaining will be respected; and that they will be paid all of the wages they have rightly earned,” Murray continued. “And businesses that contract with the government should set an example when it comes to each of these concerns—and taxpayer dollars should only go to businesses that respect these fundamental worker protections.”

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.

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Officer had no right to declare that he was too drunk to work

March 2nd, 2017  |  David Stephanides  |  Add a Comment

Police department rules included both call-outs and mandates. A call-out occurs when off-duty officers are called to duty, typically to meet some temporary emergency requiring extra manpower. A mandate occurs to fill an opening, such as when an officer is unable to work a particular shift. The rules also permit officers to self-report to the dispatcher their use of alcohol before a call-out and be excused from the call-out (City of Sparta, Illinois and Policeman’s Benevolent Labor Committee/PBPA Labor Organization. Sep. 27, 2016. Gregory P. Szuter).

One Sunday, an officer called in to say that he could not report to his 7 pm to 7 am shift because his camper broke down and he was stranded. Under department rules, the least senior officer from the prior shift was mandated to cover the first half of the shift and the least senior officer from the succeeding shift was mandated to cover the second half. Thus, one officer was told that he would remain on duty from 7 pm until 1 am. Efforts to reach by telephone the least senior member of the succeeding shift to tell him that he should report at 1 am, however, failed. An officer, who was dispatched to the least senior officer’s home at 4 pm to inform him of the shift change, reported that the officer would not be starting his shift at 1 am because said that he was too drunk to report to work. The officer who delivered the message reported that the other officer was sitting in his backyard reading a book and did not appear overly drunk to him. The police department suspended him without pay for 30 days, and he filed a grievance.

In an insubordination case, the employee is obligated to “obey now and grieve later.” Thus, the officer should have reported to work, raised the issue of sobriety at that point, and let the chief decide what to do. The arbitrator also rejected the officer’s affirmative defense that he was too drunk to report. The question was not whether he was too drunk at 4 pm but rather he was too drunk at 1 am. The arbitrator noted that a person could eliminate a significant amount of blood alcohol content in the nine hours between 4 pm on Sunday afternoon and 1 am on Monday. Although the officer’s blood alcohol level was never determined, the arbitrator concluded, by applying the other officer’s description of him, that the drunk officer probably could have sobered up by 1 am. In the end, the decision was not the officer’s to make. His decision not to appear constituted insubordination.

As for mitigating factors, the officer had long seniority and had received commendations for his work after this incident occurred. He also, however, had received 15 additional occurrences of discipline since the incident, a shockingly large number in less than a year. Thus, nothing existed to mitigate the penalty. The suspension was appropriate and was reasonably related to the seriousness of the offense. The arbitrator denied the grievance.

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Littler issues latest report on EEOC developments

February 28th, 2017  |  Lisa Milam-Perez  |  Add a Comment

National labor and employment firm Littler Mendelson has just issued a valuable resource for employers: its latest Report on EEOC Developments.

The management-side law firm’s annual report—its sixth installment—is a comprehensive guide to significant EEOC developments in fiscal year 2016. It includes a summary of the year’s case law and litigation statistics, as well as an analysis of the Commission’s achievements and setbacks, and their implications. The aim is intended as a roadmap for employers to where the EEOC is headed in the coming year.

The report opens with a summary, including an overview of key EEOC developments in FY 2016, a review of the EEOC’s systemic enforcement initiative, and a look at the Commission’s current priorities and its progress on its systemic goals.

Detailed sections include:

  • A discussion of EEOC charge activity, litigation and settlements in FY 2016, focusing on the types and location of lawsuits filed by the Commission.
  • An overview of legislative and regulatory activity involving the EEOC—formal rulemaking, informal guidance on new and evolving workplace concerns, and public meetings on agency priorities. The section also highlights recent and emerging trends at the agency level, including the Commission’s efforts to adhere to its strategic enforcement plan.
  • A summary of the EEOC’s investigations and subpoena enforcement actions, particularly where the EEOC has made broad-based requests to conduct class-type investigations; the chapter also discusses case law addressing the EEOC’s authority to do so.
  • A chapter on FY 2016 litigation in which the EEOC was a party, with subsections including: (1) pleading deficiencies raised by employers; (2) statutes of limitations cases involving both pattern-or-practice and other types of claims; (3) intervention-related issues, both when the EEOC attempts to enter a case through intervention and when third parties attempt to join as plaintiffs in EEOC-filed lawsuits; (4) class discovery issues in EEOC litigation, including bifurcation, identification of class members and/or communication with the class, and other discovery in pattern-or-practice litigation; (5) other critical issues in EEOC litigation, including reliance on experts, class litigation, and background check litigation; (6) general discovery issues involving both employers and the EEOC in litigation between the parties; (7) favorable and unfavorable summary judgment rulings and lessons learned; (8) trial-related issues; and (9) circumstances in which courts have awarded attorneys’ fees to prevailing parties.

Four report appendices cover details on noteworthy EEOC consent decrees, conciliation agreements, judgments and jury verdicts; appellate cases in which the EEOC has filed an amicus or appellate brief (and a discussion of decided appellate cases last year); a companion guide summarizing select subpoena enforcement actions undertaken by the EEOC during the last fiscal year; and a report of summary judgment decisions by claim type.

“We hope that this Report serves as a useful resource for employers in their EEO compliance activities and provides helpful guidance when faced with litigation involving the EEOC,” the authors said in a statement announcing the publication’s release.

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Refusing to allow service animal in workplace was discriminatory

February 23rd, 2017  |  Deborah Hammonds  |  Add a Comment

A Washington truck company discriminated against a longtime employee when it refused to allow her to bring a trained service dog to work. Haney, a Yakima-based heavy haul trucking company that operates in seven states and Canada, prohibited the employee from using her trained service animal, Lucky, who alerts her to dangerous blood sugar drops, according to the Washington Attorney General Bob Ferguson.

The employee worked for over 16 years in the truck company’s payroll and billing department. After her diagnosis, the employee wrote to the human resources manager, requesting her trained service dog be allowed at work as a reasonable accommodation. Her request was denied. During a discussion of the request, the CEO told the human resources manager that allowing the employee’s untrained service animal at work would lead others to want to bring their untrained animals to work. The employer suggested alternative accommodations were available, such as taking extra breaks to check her blood sugar, eat or take medication and giving the employee a designated shady parking space so Lucky could remain in the car while the employee worked inside. After denying her third request, the employer stated it had gone above and beyond what was required and that because the employee’s condition did not limit her ability to perform the essential functions of her job, no accommodation was needed.

The employee provided letters from physicians discussing her condition and noting the necessity of having Lucky by her side at work. She also tried the alternative accommodations suggested by her employer, but ultimately resigned due to deteriorating health and her need to have Lucky nearby. She filed a disability discrimination complaint with the Washington Human Rights Commission.

In concluding the employer violated the Washington Law Against Discrimination, the administrative law judge pointed out that the state’s disability discrimination laws and regulations stated “it is an unfair practice for an employer to request that a trained dog guide or service animal be removed from the workplace, unless that employer can show that the presence, behavior or actions of that dog guide or service animal constitutes an unreasonable risk to property or other persons.” Being annoyed at the presence of a service animal “is not an unreasonable ‘risk to property or other persons’ justifying removal of the dog guide or service animal.” No is not an option for a disabled person’s trained service animal in the workplace when it poses no unreasonable risk of harm to persons or property. Denying Lucky also amounted to denying the employee reasonable accommodation.

Although the employer argued that the employee’s hypoglycemia did not substantially limit her job performance, and that she was still able to successfully perform the duties of her position without Lucky present, especially given the other accommodations it offered, those arguments were rejected. The law does not require an employee to wait to suffer a substantial work limitation in order to obtain a reasonable accommodation. The employer was told, by the employee and her health care providers, of the danger of her condition without reasonable accommodation, specifically Lucky. The employer’s failure to reasonably accommodate the employee by providing her a work environment where Lucky could be regularly near her amounted to a violation of the statute.

The company’s management, including its human resources director, “clearly had insufficient knowledge of Washington disability discrimination law, particularly concerning service animals.”

The employee was awarded nearly $23,000 in damages and costs. The employer was also ordered to stop improper denials of reasonable accommodations, including for service animals, and its management employees must undergo training.

“The Washington Law Against Discrimination contains clear protections for employees who use trained service animals,” Ferguson said. “Employers must allow service animals so employees may properly and safely perform their jobs. My office will continue to enforce our laws prohibiting illegal discrimination at work.”

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Attorney misconduct: Four behaviors that lead to sanctions

February 16th, 2017  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

If there is one branch of federal government where rules of ethics and decorum are consistently enforced, it’s the courtroom. Our “so-called judges,” as President Trump has referred to them, are charged not only with upholding the Constitution, but also with enforcing high standards of conduct among attorneys, thereby ensuring the integrity of our system of justice. Sometimes that means imposing sanctions for pursuing frivolous claims, for lying to the court, and for other attorney misconduct. Here are four examples of attorney conduct that often results in sanctions.

1. Pursuing frivolous claims with no basis in law or fact

First, any attorney who passed a bar exam should know not to file frivolous claims or to continue pursuing claims after it has become clear (perhaps through discovery) that they have no basis in law or in fact. Not only will it hurt the attorney’s reputation among peers and judges, but it exposes the attorney and his or her clients to liability for attorneys’ fees and other sanctions. Nonetheless, attorneys regularly get sanctioned over plainly “specious” allegations.

For example, the Third Circuit recently affirmed an order requiring a plaintiff’s attorney to pay nearly $116,000 because he pursued “substantively frivolous” claims under the ADEA and the LMRA, even after it became clear they had no basis. In the opinion of the district court that granted the employer’s motion for Rule 11 sanctions and the union’s Rule 54 motion for attorneys’ fees, the core problem was that the attorney was less than forthright and needlessly kept the action alive at several junctures with “specious filings,” likely with the intent to “coerce the Defendants into settling a meritless claim.” The attorney argued he should not be sanctioned for asserting novel theories, but the district court found nothing novel about his claims

In another case, a federal court in Illinois imposed Rule 11 sanctions against an employee and his attorney because they continued to pursue age discrimination claims even after they learned the employee was actually replaced by someone who was 10 years older than he was. While a mere disagreement on the facts wouldn’t result in sanctions, the court viewed the employee as “assuming the posture of an ostrich and firmly placing his head in the sand.” One would think his attorney would have pulled it out.

In a case out of Connecticut, attorneys for professional wrestlers managed to walk away from a consolidated wrestling case with only a stern warning for “highly unprofessional” misleading statements, including asserting an “unprovable” claim that the wrestlers had chronic traumatic encephalopathy “on information and belief.” Dismissing the case against World Wrestling Entertainment, the court noted that CTE purportedly can only be diagnosed post-mortem through an autopsy of the subject’s brain, and there was no allegation here that the wrestlers had an autopsy that tested for CTE.

2. Needlessly multiplying the proceedings

Along the same lines of asserting baseless claims, some attorneys incur judicial wrath by filing unnecessary motions (that could have been resolved without judicial intervention) or engaging in litigation practices that waste time and resources. For example, an employer’s attorney was called to task for proceeding with a court-ordered mediation in a race discrimination case even though he knew the employee’s communicated settlement demand was “well beyond” what his client was willing to pay. His failure to share that information with the mediator resulted in a largely unproductive mediation that wasted the time and resources of all involved, concluded a federal court in Pennsylvania, imposing sanctions covering the employee’s share of the mediator’s fee. The court did not impose attorneys’ fees, which it reasoned would have been incurred anyway with the attorney’s preparation for an upcoming neutral evaluation proceeding.

In a case out of Missouri, a federal court exercised a great deal of patience with an attorney’s use of “overheated rhetoric” in briefings. Though dismissing his client’s state-law claims for health benefits, the court allowed her to amend her complaint to add an ERISA claim (to preserve it). Instead of amending, the plaintiff filed a notice of voluntary dismissal. Noting that counsel may not understand the procedural posture and the potential for preclusive effect against any future ERISA claims, the court denied the motion and again extended time to amend. Finally, the plaintiff amended to add an ERISA claim before again filing a notice of voluntary dismissal. When the court granted the defendant’s request for time to review that filing, plaintiff’s counsel filed an objection accusing the court of impropriety and attacking opposing counsel with “unprofessional and inappropriate language.” Finally out of patience, the court exercised its inherent authority under 28 U.S.C. §1927 and ordered plaintiff’s counsel to show cause why he shouldn’t be sanctioned for “unreasonably and vexatiously” multiplying the proceedings.

In some cases, an attorney may not be outright sanctioned for multiplying the proceedings, but may indirectly have to pay for doing so when a court significantly reduces an award of attorneys’ fees (depending on the fee arrangement, a client may or may not have to make up the difference between the award and what was actually billed). In a race discrimination case out of New York, for example, a federal court reduced what could have been an award of $739,000 in attorneys’ fees to $492,706, finding that the “extreme contentiousness” of the litigation and unreasonably high number of hours billed was largely due to the “abysmal” behavior of the employee’s attorney during the litigation and “self-inflicted wounds” during discovery.

3. Misbehaving in depositions

While most discovery disputes usually involve a failure to fully respond to discovery requests, there are occasionally more serious disagreements over whether an attorney’s behavior during a deposition was so unprofessional as to warrant sanctions. Whether fines or other sanctions are imposed will depend on the context, including the nature of the alleged impropriety and attorney’s past behavior (including any prior warnings from the court to behave).

In one case, a federal magistrate judge in New York fined a plaintiff’s attorney $4,700 for unwarranted objections and interruptions during the deposition of his client, and for baselessly accusing opposing counsel of asking racist questions. Whether the attorney’s disruptive behavior was to frustrate opposing counsel or to assure his client of his zealous advocacy, casting aspersions on opposing counsel’s character had “no place in the litigation process and cannot be tolerated,” wrote the court.

In a case from a federal court in Pennsylvania, both sides’ attorneys misbehaved in an employee’s deposition and both got off with warnings. The employee’s attorney was chastised for strategic interruptions and coaching, including whispering to her and showing her his written notes while she was testifying. This, said the court, frustrated the purpose of the deposition. On the other side, defense counsel was cautioned to avoid obnoxious behavior toward the employee when the prematurely ended deposition resumes. Plaintiff’s counsel accused him of asking inappropriate questions on such matters as whether she viewed porn or had been unfaithful to her husband. He also allegedly mocked the employee and rolled his eyes at her, showing what her attorney claimed was “particular insensitivity” considering this was a sexual harassment case.

4. Presenting “alternative facts” (lying) to the court

Beyond mere discovery violations and misbehavior in depositions, some attorneys have been sanctioned for “massaging” evidence to suit current needs (e.g., “sham affidavits”), or worse, outright lying to the court. Obviously, courts do not treat such behavior lightly. For example, the First Circuit affirmed the imposition of $1,000 in sanctions against an attorney based on the submission of a “sham” affidavit by his client, which the court characterized as an attempt to raise triable issues in a discrimination suit by contradicting the employee’s prior testimony. In imposing sanctions under Rule 11 and 28 U.S.C. §1927, the lower court had emphasized the attorney’s track record of similar tactics, noting he was once “admonished to never again file a sham affidavit before this Court.”

Perhaps he forgot that all attorneys have an ethical duty of candor to the court. Woe to attorneys who get caught lying. For example, the Seventh Circuit affirmed a $5,000 sanction against an attorney who failed to explain how a false sexual assault allegation made it into a 100-paragraph complaint. His client in this sex discrimination suit denied in deposition that there was any sexual assault or that she told her attorney there was an assault. In another case, the Fifth Circuit affirmed a $1,000 sanction against an attorney who violated several court orders, including his attempt to make an “end-run” around a court order denying a motion to enroll him as co-counsel (by filing a second lawsuit that added himself as counsel) and another attempt to “obfuscate his involvement” in a series of three consolidated sexual harassment cases.

Behave yourselves out there!

The take-away from these examples is fairly obvious—at least to those working with the judicial branch—follow the rules, act professionally, and don’t lie. That said, one sub-theme found among these cases is that occasional missteps are forgiven. When reading the opinions, it is clear that courts consistently consider the context and appear to give attorneys multiple warnings and opportunities to correct errant behavior before imposing sanctions.

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