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Suit challenges Facebook, employers using features that may hide job opportunities from older workers

December 21st, 2017  |  Pamela Wolf

The Communications Workers of America (CWA) and three workers have filed a class action in in federal court challenging how Facebook’s paid advertising platform is purportedly used to hide job advertisements and opportunities from older workers nationally. The suit, filed in the Northern District of California, names T-Mobile US, Inc., Amazon.com, Inc., Cox Communications and Media Group, LLC, and similarly situated others. Notably, the plaintiffs are represented by former EEOC General Counsel David Lopez and other attorneys at Outten & Golden.

The complaint alleges that through in-depth investigation the plaintiffs discovered that hundreds of employers and employment agencies are illegally targeting their employment ads on Facebook to exclude older workers who fall outside specified age ranges (such as ages 18 to 40, or ages 22 to 45), purposely blocking older workers from seeing the ads or pursuing job opportunities. This practice violates federal, state, and local laws that bar age discrimination in employment advertising, recruiting, and hiring, according to the complaint.

The plaintiffs seek class certification under Rule 23 to represent what they say are millions of job seekers, age 40 and older, who have been denied the chance to even learn of potential job openings. The defendants are large employers and employment agencies in a variety of industries, including technology, entertainment, retail, health care, energy, real estate, staffing firms and agencies, and others. Identified class members would include Capital One, Citadel, Defenders, Fairfield Residential, Leidos, Sleep Number, Triplebyte, and Weichert Realtors.

Targeted audiences. A significant chunk of large employers and employment agencies “routinely use Facebook’s ad platform to exclude older workers from receiving employment ads, primarily by selecting an age range for the ad population that excludes older workers,” according to the complaint. Many companies also purportedly “use Facebook’s Lookalike Audiences feature to send employment ads to workers who are demographically similar to their younger workforces.”

T-Mobile US, a lead defendant in the case, used Facebook ads to recruit applicants for retail stores and other positions nationwide, stating in its employment ads that T-Mobile “wants to reach people ages 18 to 38,” the complaint asserts. The other lead defendants allegedly sent similar ads: Amazon to reach people ages “ages 22 to 40” and “ages 18 to 50,” and Cox to reach people “ages 20 to 45” and “ages 20 to 50.”

Discriminatory process previously identified. This is not the first time the allegedly discriminatory process at Facebook has surfaced. The complaint points to an investigation by ProPublica, which found that Facebook’s platform made it possible for African Americans, Latinos, and Asian Americans to be excluded from receiving ads for various economic opportunities, including housing and employment advertisements.

Despite what the complaint asserts was the widely known fact that its platform could be used to exclude individuals with other protected characteristics, such as age, from receiving employment ads, Facebook continues to profit from purportedly unlawful employment discrimination by helping employers and employment agencies exclude older workers from receiving job ads and information.

Relief requested. The complaint, among other things, asks the Court to declare that the practice of excluding older workers from receiving job ads on Facebook violates laws that prohibit age discrimination in employment; issue an injunction to stop T-Mobile, Amazon, Cox, and all other large employers and employment agencies from continuing to engage in acts that violate antidiscrimination laws; require the defendants to compensate older workers who have been denied job opportunities; and award punitive damages.

“In decades as a civil rights lawyer, I have never seen job ads like these that expressly target young workers and exclude older workers,” Lopez said in a statement.

The case, Communication Workers of America v. T-Mobile USA, Inc., is No. 5:17-cv-07232.

NLRB’s “quickie election” rule changes are having no impact on union election wins

December 19th, 2017  |  David Stephanides

The NLRB reported in December 2017 that the number of union-filed representation petitions fell to 1193 in FY 2017 (Oct. 1, 2016 to Sept. 31, 2017), down from 1299 in FY 2016. Unions won 71 percent of the petitioned-for elections, down from 72 percent in FY 2016. However, over 92,000 eligible employees voted in FY 2017, up from over 86,000 in 2016.

There were 172 decertification petitions filed over the same period, with employers winning 68 percent of the elections. In FY 2016, there were also 172 decertification petitions, with employers winning 61 percent of the elections.

Representation petitions filed by employers rose to 26 in FY 2017 from 25 in FY 2016. Unions won 30 percent of the elections versus 32 percent in 2016.

In his dissent to the proposed rule published June 22, 2011, Board Member Brian Hayes stated that, “In truth, the ‘problem’ which my colleagues seek to address through these rule revisions is not that the representation election process generally takes too long. It is that unions are not winning more elections.” As these statistics demonstrate, the election rule changes are not driving up the number of election wins, if that was indeed its intended purpose.

Agency calls for federal legislation to protect LGBT employees from workplace discrimination

December 14th, 2017  |  Deborah Hammonds

The U.S. Commission on Civil Rights has released a report calling on Congress to enact legislation addressing workplace discrimination based on sexual orientation and gender identity. The report, “Working for Inclusion: Time for Congress to Enact Federal Legislation to Address Workplace Discrimination against Lesbian, Gay, Bisexual, and Transgender Americans,” examines the main social and economic arguments made for and against enacting federal legislation to provide federal nondiscrimination workplace protections for lesbian, gay, bisexual, and transgender (LGBT) employees.

The report is based on testimony and written materials submitted to the Commission. The report also includes extensive social science research and surveys, and reflects the reality that many LGBT Americans experience prejudice and discrimination in the workplace.

The Commission evaluated rates of LGBT employment and employment-related discrimination, arguments for and against enacting federal legislation to address this discrimination, and the landscape impacting legal protections available to LGBT Americans at work.

Key findings from a majority of the Commission include:

  • Lesbian, gay, bisexual, and transgender (LGBT) workers have faced a long, serious, and pervasive history of official and unofficial employment discrimination by federal, state, and local governments and private employers.
  • Federal data sources do not effectively capture rates of LGBT employment or rates of LGBT employment discrimination.
  • An inconsistent and irreconcilable patchwork of state laws against anti-LGBT workplace discrimination and federal court decisions interpreting existing law render LGBT employees insufficiently protected from workplace discrimination.

According to the Commission, 28 states offer no sexual orientation or gender identity protections; of the 22 states that do protect LGB employees, two exclude transgender employees from protection. The Commission’s primary recommendation is for Congress to immediately enact a federal law explicitly banning discrimination in the workplace based on sexual orientation and gender identity.

The report also recommended:

  • Federal data sources such as the Census, American Community Survey, and federal agency surveys should include sexual orientation and gender identity questions in population-based surveys of the workforce.
  • Federal agencies should issue and —where relevant—reaffirm specific guidance for federal and private employers outlining protections for LGBT individuals in the workforce, including specifically enumerating protections for transgender persons; federal agencies should also collect workplace discrimination data about LGBT employees.

The Commission’s report was submitted to President Trump, Vice President Pence, Speaker of the House Ryan and Senate Majority Leader McConnell. The report is also available to the public on the Commission’s website, www.usccr.gov.

The U.S. Commission on Civil Rights, established by the Civil Rights Act of 1957, is the only independent, bipartisan agency charged with advising the President and Congress on civil rights matters and reporting annually on federal civil rights. More information can be found on the agency’s website, Twitter or Facebook.

Sexual harassment: beyond the headlines

December 14th, 2017  |  Lorene Park

While sexual harassment is the hottest topic in the media today, courts have long been dealing with a full docket of cases involving a wide range of sexual harassment and related issues, including allegations that policies were non-existent, were not enforced, or were discriminatorily enforced by biased HR reps or other decisionmakers, among other claims. Consider, for example, the array of decisions highlighted in the following blogs from Employment Law Daily:

Top labor and employment developments for November 2017: Sexual harassment takes center stage in media and in court (December 9, 2017)
The green-eyed monster at work: when does jealousy become unlawful discrimination? By Lorene D. Park, J.D. (October 25, 2017)
The heartbreaking sadness of sexual harassment, By Joy P. Waltemath, J.D. (October 18, 2017)
Off-duty police sergeant’s assault of woman at bar justified termination By David Stephanides, J.D. (October 12, 2017)
Sexual harassment is in the news again; this isn’t anything new By Joy P. Waltemath, J.D. (April 11, 2017)
Stretching the boundaries of federal discrimination laws By Lorene D. Park (February 2, 2016)
Missteps in work investigations trip up employers By Lorene D. Park, J.D. (June 15, 2015)

Former DOJ official Ondray T. Harris named as OFCCP Director

December 12th, 2017  |  Cynthia L. Hackerott

Ondray T. Harris, who has previously served as a head employment law litigator for the U.S. Department of Justice and the state of Virginia, has been appointed as OFCCP Director, a DOL spokesperson confirmed to Employment Law Daily on December 11. Since June 2017, Harris has been employed as a Senior Advisor  with the Department of Labor, apparently working with the Employment and Training Administration. As of December 12, Harris was listed on the DOL “Leadership Team” webpage as the OFCCP Director and listed as the agency director on the OFCCP webpage’s listing of personnel, but the department had not posted any press release or other statement regarding his appointment.

According to his LinkedIn profile, Harris previously served as the Director of the Department of Justice’s Community Relations Service (CRS); beginning in the George W. Bush Administration, the Senate confirmed him for that position in March 2008, and he served in that role until October 2010. Before that, Harris was the Deputy Chief of Employment Litigation at the U.S. Department of Justice from June 2005 through May 2007. He was also an Assistant Attorney General for the state of Virginia, performing employment law litigation from March 1999 through February 2004. Aside from his government employment, Harris was a Partner at LeClair Ryan from February 2004 through June 2005, and he has worked as a legal consultant throughout his career.

He earned his J.D. degree at Washington and Lee University School of Law in 1996 and has a B.A. in History from Hampden-Sydney College.

Is Senate confirmation necessary? Whether the current DOL organizational structure requires Senate confirmation of the OFCCP Director is unclear. The Obama Administration eliminated the Department of Labor’s Employment Standards Administration (ESA) in November 2009, but maintained the four component agencies previously under the ESA umbrella – the OFCCP, the Wage and Hour Division, the Office of Labor Management Standards and the Office of Workers’ Compensation Programs. Thus, the heads of the four sub-agencies apparently have the authority to report directly to the Secretary of Labor. If the OFCCP Director does in fact have the authority to report directly to the Secretary, this would mean that the OFCCP Director is an “Inferior Officer” under the Advice and Consent clause of the U.S. Constitution requiring confirmation absent exemption, OFCCP expert John Fox has explained.

It does not appear that the Trump Administration regards the position of OFCCP Director as one that requires Senate confirmation given that the White House website does not, thus far, state that the Administration’s choice for the position has been submitted to the Senate. As of press time, the Department of Labor has not responded to Employment Law Daily’s inquiry regarding its stance on whether the OFCCP Director position requires Senate confirmation.

[Update: Previously, there had been speculation that former Coral Gables, Florida city attorney Craig Leen would be the OFCCP Director. As of December 13, 2017, the OFCCP’s personnel webpage lists Leen as a "Senior Advisor" and Ondray T. Harris as OFCCP Director. Thomas M. Dowd, the agency’s career Deputy Director, had been serving as Acting Director since November 7, 2016, when the Obama Administration’s OFCCP Director, Patricia A. Shiu, stepped down. Dowd remains in his position as Deputy Director.]