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ALJ orders Google to provide only a portion of information sought by OFCCP in suit over denial of access to compensation records

July 25th, 2017  |  Cynthia L. Hackerott

In an opinion largely favorably to the interests of federal contractors, ALJ Steven Berlin ordered Google to provide only a portion of the information sought by the OFCCP in an administrative action where the agency asserted that Google unlawfully denied it access to requested compensation records. The ALJ found that portions of the OFCCP’s requests were unreasonable, and therefore, failed  Fourth Amendment requirements. These requests, seeking salary history, job history, and related informed “exceed[ed even the considerable deference owed OFCCP on a determination of relevance, and as they create an unreasonable burden on Google and its employees,” the ALJ ruled. He also expressed his concerns about this information being subject to data breeches. As such, the OFCCP will have to do more, specified in the order, if Google is to be ordered to provide this data. Judge Berlin also ordered the parties to engage in further conciliation, noting that the exchange of information provided by witness testimony at the hearing in this matter had occurred earlier, it may have prevented the litigation altogether. (OFCCP v. Google, Inc., DOL ALJ No 2017-OFC-4, July 14, 2017)

Dispute background. Since its formation in 1998, Google has been a federal contractor covered by the requirements of Executive Order (EO) 11246 at various times. Google had its first government contract in 2007, and it was a government contractor at various unspecified times between 2007 and 2012. On June 2, 2014, the General Services Administration (GSA) accepted Google’s bid on a contract for “Advertising and Marketing Solutions” (the AIMS contract). There was no evidence in the record to show that Google was a government contractor or subcontractor in 2013 or any of 2014 prior to being awarded the AIMS contract.

In its administrative complaint, the OFCCP asserted that Google violated the laws enforced by the agency and breached its obligations as a federal contractor when it refused to provide certain requested information as part of a routine compliance evaluation of the multinational company’s Mountain View, California headquarters. The agency initiated the review in September 2015 with its standard audit scheduling letter, and, in November 2015, Google produced information and documentation responsive to the demands in that letter. Google also produced further information in response to the OFCCP’s follow-up demands, both before and after the OFCCP filed its complaint, but it did not produce everything the agency OFCCP requested.

Following Google’s repeated refusal to produce the requested information, the agency issued a Notice to Show Cause on September 16, 2016; the agency’s complaint, signed on December 29, 2016, alleges that, as of that date, Google has "persisted in its refusal" to produce the items at issue.

Still at issue in the case was Google’s refusal to provide the following information:

  • A compensation snapshot (i.e. a moment frozen in time) as of September 1, 2014;
  • Job and salary history for employees in a September 1, 2015 compensation snapshot that Google had already 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.

Hearing and previous rulings in the case. On February 21, 2017, the ALJ granted the OFCCP’s request to apply expedited hearing procedures pursuant to the agency’s regulations at 41 C.F.R. §§ 60-30.31-60-30. On March 15, 2017, the ALJ denied the OFCCP’s motion for summary judgment because the regulations providing for expedited procedures do not permit such motions. Further, the ALJ stated that, even he were to reach the merits, he would deny the motion, finding that much of the OFCCP’s data demands were unduly burdensome. In particular, he pointed out that the cost of meeting the OFCCP’s data demands would greatly exceed the revenue generated from Google’s government contract.

The expedited hearing began on April 7, 2017. ALJ Berlin adjourned the hearing mid-afternoon to allow Google time to file a motion to dismiss. On May 2, 2017, the ALJ denied that motion.  Google’s motion was based on in its claim that statements made to the press by an OFCCP Regional Solicitor indicated that the agency had completed its investigation. However, ALJ Steven Berlin found those statements, although ill-advised, did not carry as much weight as hearing testimony in the matter by OFCCP Pacific Regional Director Janette Wipper due to the differing contexts in which the statements were made. The hearing resumed by stipulation on May 26, 2017, and concluded on that day.

Witness testimony. Over the two hearing days, the OFCCP called as witnesses Regional Director Wipper, Deputy Regional Director Jane Suhr, and contractor Michael Brunetti, Ph.D., who is an economist and statistician. Google called its Vice President of Compensation Frank Wagner and Senior Legal Operations Manager Kristin Zrmhal.

ALJ orders further conciliation. In the present ruling, ALJ Berlin first ordered the parties to engage in further conciliation. While observing that the parties had “exchanged views a number of times before reaching an impasse,” the ALJ found that circumstances had changed by the time of his order such that further conciliation was appropriate.

The primary reason for the parties’ impasse concerned Google’s demand to know what issues OFCCP was continuing to investigate and in what part of Google’s operations these issues arose. Google argued that collaboration with the agency was difficult because the OFCCP had offered no information about the issues it was finding with the information the company had already provided, which prevented Google from evaluating whether OFCCP’s additional requests were relevant to the investigation. As late as its March 2017 motion for summary judgment, the OFCCP maintained that it would not disclose any information about its internal deliberations concerning the ongoing compliance evaluation. Yet, at the hearing, the OFCCP reversed course when Regional Director Wipper testified that the September 1, 2015 snapshot showed systemic compensation disparities against women pretty much across the entire Google headquarters workforce and that the agency sought follow-up information, including earlier compensation data, to understand the cause of the disparity. It appeared that Wipper’s testimony, which  “[o]bviously surprised” Google, nevertheless, provided the contractor with the information it had been requesting, the ALJ stated.

Likely, the OFCCP’s reversal was made in good faith following the denial of the agency’s summary judgment motion, the ALJ concluded. Included in that ruling was the ALJ’s finding that much of the OFCCP’s data demands were unduly burdensome. In particular, he pointed out that the cost of meeting the OFCCP’s data demands would greatly exceed the revenue generated from the AIMS contract.

Prior to the hearing, the OFCCP’s understanding of Google’s organizational structure and pay policies and practices was lacking, but Wagner’s testimony corrected errors and filled in gaps, the ALJ noted. Wagner “delivered an organized, complete description of those policies and practices”, the judge wrote (and the ALJ’s order included a detailed description of that testimony). ALJ Berlin, clearly impressed with Wagner’s credibility, wrote that his testimony, “reflected Wagner’s extensive, personal knowledge of the matters under discussion that he has derived from his work in Google’s executive leadership on compensation issues over the past ten years.” In the judge’s view, it was evident that the questions OFCCP investigators posed to Wagner during the onsite review failed to elicit the quality of description that Wagner provided at the hearing because “the interviewers did not entirely understand the information that they did elicit.”

“Had OFCCP made its disclosures and had Google presented Wagner’s information earlier, it might have made the present litigation unnecessary,” the ALJ observed.

Fourth Amendment standards. The parties agreed that the OFCCP’s request for information in this case is akin to an administrative subpoena. Under the Supreme Court’s 1984 ruling in Donovan v Lone Steer, the Fourth Amendment requires that an administrative subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. The U.S. District Court for the District of Columbia applied the Lone Steer standard to an OFCCP compliance evaluation dispute in its November 2011 decision in United Space Alliance, LLC v. Solis. For the purposes of this litigation, Google stipulated that it would not dispute that OFCCP based its selection of Google on specific neutral criteria

Government contract does not waive Fourth Amendment rights. Citing the U.S. Supreme Court’s 1946 decision in Zap v. U.S., the OFCCP argued that Google waived its Fourth Amendment rights in their entirety when it agreed in the AIMS contract to give the government access to its records and other material relevant to the investigation and its compliance with EO 11246. Zap was a criminal case involving the FBI’s warrantless seizure of a falsified check that the defendant allegedly used to defraud the Navy on a cost-plus contract. The ALJ found a multitude of deficiencies with the OFCCP’s reliance on Zap. First, the Zap Court vacated its decision on rehearing and ordered the district court to dismiss the indictment. Second, Zap concerned administrative warrants, not administrative subpoenas, and the Court still required that the search be reasonable. Moreover, (1) the Zap Court did not find that the contractual agreement to make records available was a waiver of all Fourth Amendment protection;  (2) the portions of the decision on which OFCCP relies were dicta; (3) Zap was an early application of the exclusionary rule, and the law has changed since 1946; and (4) the Zap decision occurred less than a year after the end of World War II, and thus, the Court had motivation to affirm the conviction of a war profiteer who relied on what the Court viewed as a “technicality” to escape the consequences of defrauding the Navy.

More on point here was the Supreme Court’s 2017 decision in McLane Co., Inc. v. EEOC , where the Court found that Title VII grants the EEOC subpoena authority to obtain evidence “relevant to the charge under consideration.” Still the High Court ruled that relevance alone is not enough; an EEOC subpoena is not enforceable if it is too indefinite, is issued for an improper purpose (e.g., beyond the agency’s authority), or is unduly burdensome, the ALJ explained.

Portions of information requests unreasonable. Although the scope of judicial review in an administrative subpoena enforcement proceeding is quite narrow, the government must still show that: (1) Congress has granted the authority to investigate; (2) the applicable procedural requirements have been followed; and (3) the evidence is relevant and material to the investigation. While finding that the OFCCP was acting within its authority, the ALJ nevertheless found that portions of the agency’s requests were unreasonable, and thus, failed Fourth Amendment requirements.

Because the dispute here was based on an audit, rather than a pending complaint or charge, there was a vast amount of information that could potentially be relevant. “[The] OFCCP must search, not only for causes of the disparity that are actionable, but also those that are lawful. It is difficult to imagine a broader search in the employment law context,” the ALJ observed.

Under the OFCCP’s Directive 307, compensation investigations require an iterative process involving a wide range of experts, tools, sources, steps, and case-by-case adjustments as the OFCCP learns more, and the investigation must be tailored to the contractor’s compensation practices. Here, the agency identified two areas of focus: (1) data on factors relevant to compensation decisions; and (2) information going to a theory of causation for which it contends there are some indicators. This theory is that women, on average, are less successful negotiators that men, and that because Google negotiates starting pay women have entered Google’s workforce with lower pay relative to men. Further, raises during employment are based on existing pay rates, meaning that women’s lower pay at hire leads to ongoing pay disparity even for female employees who have worked at Google since the company was formed in 1998.

Information requests at issue. Turning to the information requests at issue, the ALJ first addressed the request for the September 1, 2014 snapshot, ruling that Google must provide it within 60 days after his order becomes final, with certain limitations described below. The OFCCP argued that an additional snapshot is relevant because it will show whether the same indications of a possible adverse impact violation existed over time, not just on the single day reflected on the September 1, 2015 snapshot. The ALJ found this request sufficiently relevant to meet the deferential standard that applies in the narrow Fourth Amendment review appropriate to administrative subpoenas. The OFCCP showed that Google managers exercise discretion on several compensation decisions. In addition, about 17,000 of the employees working for Google on September 1, 2014, also worked for Google on the date of the snapshot Google already provided for September 1, 2015. Also, the information sought pertained to a time when Google was performing the AIMS contract.

Yet, the ALJ modified the scope of the data that Google must to produce regarding the other requested information. Specifically, the judge ruled that the following:

  • The categories that the Office of Management and Budget approved and are listed in Item 19 of the scheduling letter are relevant, not burdensome, and must be included.
  • If OFCCP’s request includes categories concerning place of birth, citizenship, and visa status these (which it appeared not be requesting), its request for an order requiring them is denied.
  • Because the OFCCP has withdrawn the request for “any other factors related to compensation,” Google need not provide that information, but it may be in the company’s interest to volunteer it.
  • Google need not include information regarding job and salary histories in the September 1, 2014 snapshot. The OFCCP generally limits compliance review investigations to the two-year period preceding issuance of the scheduling letter, yet the agency here was seeking information that could in some cases go back to Google’s formation in 1998. As stated above, there was no evidence that Google was a government contractor prior to 2007, or that Google even had the requisite number of employees to be covered under Title VII when it first formed. The ALJ also found that the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. and the subsequent Lilly Ledbetter Fair Pay Act of 2009, which revises the statute of limitations as to Title VII compensation claims, had no bearing on the present case. In any event, the provision in the Federal Contract Compliance Manual (Directive 307) allowing OFCCP investigators to look back more than two years only when a potential continuing violation is at issue “does not imply that OFCCP investigators can look back across decades,” the judge wrote. The OFCCP should be able to accomplish its task by looking back three or four years, and if the agency finds discrimination consistent with its theory, it can look back somewhat further if it chooses, again consistent with the iterative approach in Directive 307. “Or perhaps, instead, it could conciliate with Google and arrive at a resolution that will compensate adversely affected employees promptly and correct the unlawful practices discovered,” the judge encouraged.
  • The OFCCP’s request for each employee’s date of birth was not relevant because age discrimination is not an area of enforcement within OFCCP’s authority.
  • The request for locality information is unduly burdensome because the single defining characteristic of all of the employees is that, on the date of the snapshot, the employee worked at Google’s Mountain View headquarters.
  • Google must include in the snapshot for September 1, 2014, responses to each of the other categories on OFCCP’s follow-up June 1, 2016 list for each employee within the headquarters affirmative action plan, to the extent that Google has that information within its possession, custody, or control.

Hacking concerns regarding employee contact information. As to the OFCCP’s request for the names and contact information for employees in the previously produced September 1, 2015 snapshot and the requested September 1, 2014 snapshot, the ALJ was persuaded that anecdotal information obtained from employees was relevant to OFCCP’s systemic adverse impact investigation. Even though ALJ Berlin found Wagner’s testimony credible, he said that Wagner could not know with certainty that Google’s managers were faithfully implementing Google’s policies and practice. In addition, the ALJ noted the Ninth Circuit’s recent decision in EEOC v. McLane Co., Inc. , where the court held as a matter of law that an EEOC subpoena for contact information was relevant to the EEOC’s investigation involving whether an individual charge of discrimination should be expanded to cover systemic disparate treatment.

Still, the ALJ found that OFCCP’s request for contact information to be unreasonable in that it is over-broad, intrusive on employee privacy, unduly burdensome, and insufficiently focused on obtaining the relevant information.

“My concern centers on to extent to which the employee contact information, once at OFCCP, will be secure from hacking, OFCCP employee misuse, and similar potential intrusions or disclosures,” the judge wrote. “OFCCP has already collected for 21,114 employees information such as name, date of birth, place of birth, citizenship status, visa status, salary, and stock grants. That information, if hacked or misused, could subject tens of thousands of employees to risk of identity theft, other fraud, or the improper public disclosure of private facts. Adding contact data, such as personal phone numbers and email addresses, increases the risk of harm to Google’s employees. The contact information could ease the efforts of malicious hackers or misdirected government employees.”

Even though Wipper testified that she was not aware of any data breaches sustained by the OFCCP, and that the agency gives “high priority” to data security, the ALJ pointed out the federal government generally, and the DOL in particular, are not immune to hacking or to the improper release of confidential, private materials about people involved in departmental investigations. Among the examples he cited were data breaches in 2015 at the Office of Personnel Management that resulted in the exposure of private, personally identifiable information (including, for example, fingerprints) for millions of current and former federal employees and applicants for federal employment. Moreover, [a]nyone alive today likely is aware of data breaches surrounding this country’s most recent Presidential election,” he wrote.  Indeed, the Department of Labor, of which OFCCP is a part, was recently attacked with ransomware, and even the DOL’s Office of Administrative Law judges has been hacked, he observed.

In addition, Google would likely have legal exposure to its employees if it unnecessarily revealed their private information. At the least, this intrusion into Google’s employees’ privacy might negatively impact its relationship with the impacted employees as well as Google’s reputation as an employer, and Google’s ability to recruit and retain the best employees.

To address these concerns, the ALJ ordered the OFCCP to: (1) take reasonable steps to protect the information it obtains, and (2) limit the number of employees whose contact information Google will supply. After receiving the Google’s second snapshot, the OFCCP may submit to Google the names of up to 5,000 employees from among those listed on either snapshot. Google must provide the OFCCP with a list organized by name, showing the personal address, personal telephone number, and personal email address for each of the employees whom the agency selected. The judge excused Google from providing any information that it does not have in its records. For follow-up interviews, the OFCCP was allowed to obtain from Google a second list of up to 3,000 additional names.

Adverse impact theory. The ALJ also expressed concern with the OFCCP’s adverse impact theory. Earlier this year, the Ninth Circuit, in Rizo v. Yovino, rejected an assertion that an employer’s use of prior salary in setting starting salaries at hire cannot be justified as a decision based on a factor other than sex and motivated by a legitimate business purpose. In light of this case precedent, the OFCCP’s proffered theory is that research shows that women proportionately are not as effective negotiators as men, and that this (rather than prior salaries) has resulted in the alleged sex-based wage disparity. However, the OFCCP spent two days with a group of investigators interviewing Google’s relevant executives and managers, and it has not established that Google engages in what most would consider negotiation when it sets starting salaries, the ALJ pointed out.  Moreover, the OFCCP essentially conceded, and the record showed, that Google does not negotiate starting salaries at all. Indeed, for many of these hires, the applicant never had a previous job. In cases were starting salaries are based on previous jobs or competing job offers, rates are determined by a compensation team that does not have knowledge of the applicants gender. The evidence on record also showed that promotions and merit increases are determined by non-objective means that do not factor in gender.

In any event, the record showed that the OFCCP has not taken sufficient steps to learn how Google’s compensation system works, identify actual policies and practices that might cause the disparity, and then craft focused requests for information that bears on these identified potential causes. Without such information, the requests become unreasonable: unfocused, irrelevant, and unduly burdensome, the ALJ noted.

Cost of Google’s efforts to provide requested information. The ALJ also spent a considerable portion of the order discussing Google’s economic capacity to comply with the OFCCP’s requests. When the audit began, Google had over 21,000 employees covered under its EO 11246-mandated affirmative action plan (AAP) for its Mountain View headquarters establishment, the ALJ noted, adding that “[t]his explains how the Google compliance review became the largest in the OFCCP’s Pacific Region. He also explained that, to collect and produce the information that Google did make available to the OFCCP, the contractor initially relied on its own employees in a litigation support unit. When extra help was needed, the company hired an outside contractor. In all, Google expended about 2,300 person hours on these tasks, with almost half of that time  spent on attorneys, including outside counsel, who reviewed the materials to be certain that private employee information was properly protected. Making this task more complicated was Google’s practice, designed to protect employee privacy, of storing much information about individual applicants and employees in different locations and in ways that are intentionally difficult to access. Indeed, Google engineers had to develop tools to access the information OFCCP wanted. Although the OFCCP offered to do some of the work in accessing this data, the ALJ found that, even with security information from Google, it was not at all certain that OFCCP could have developed the needed scripts. The contractor produced nearly 1.3 million data points about its applicant flow; 400,000 to 500,000 data points on compensation; and 329,000 documents, totaling about 740,000 pages. The project cost Google about $500,000, a significant amount when compared to the $600,000 gross total that GSA paid Google under the AIMS contract from June 2014 through December 29, 2016, the ALJ stated.

Moreover, the burdens at issue were not merely financial; Google’s compliance with the OFCCP’s earlier demands hindered its normal operations, and the additional steps that required in the ALJ’s present order will add to that burden, the judge noted.

Offer of conciliation must accompany any further information requests. Finally, the ALJ ordered that, before re-asserting its requests for job and salary history or any similar request, the OFCCP must offer to engage with Google in meaningful, good faith conciliation to resolve any dispute, including by showing why the information sought is reasonable, relevant, focused, and not unduly burdensome. If Google offers information that tends to show the request is unreasonable, irrelevant, unfocused, or unduly burdensome, the OFCCP must consider Google’s information, determine whether it is accurate, determine how it affects the relevance of the request or the burden of compliance, modify the request if appropriate, and only then may the agency go forward with the request. If Google chooses not conciliate or does not conciliate in good faith, the OFCCP has fulfilled its conciliation obligation under the order.


Eleventh Circuit announces standard for voluntariness of an employee’s resignation

July 20th, 2017  |  Ron Miller

In a case where a police officer alleged that he was “targeted” by a city’s mayor because of his political association with a city councilwoman, who was a “political enemy” of the mayor, the Eleventh Circuit identified the appropriate standard for determining the voluntariness of an employee’s resignation. Applying the new standard in Rodriguez v. City of Doral, the appeals court concluded that the employee was effectively terminated from his position, and had not resigned voluntarily, when he was asked to sign a termination letter with little notice, and with no reason given for his termination.

Political association. After the employee joined the City of Doral’s police department at the encouragement of the councilwoman, the two individuals developed a friendship, and shared a political affinity. However, their association drew the ire of the city’s mayor. The mayor described the employee as a spy in the police department. Thereafter, he was warned that he was being targeted. Further, he was warned by the police chief that he was to only have loyalty for the chief and the mayor.

The employee relied on four incidents to show that he was, in fact, “targeted.” The first two incidents involved investigations that resulted in “bogus” disciplinary action against the employee. In a third incident, the police chief changed an evaluation of the employee by his supervisor to reflect a more negative score. Finally, the employee was given a letter of resignation which offered no reason for his termination. After first attempting to rescind his resignation, the city denied all requests by the employee to appeal his resignation.

While a district court concluded that the employee had engaged in protected activity, it nonetheless granted summary judgment in favor of the city and mayor, finding that the employee had not suffered an adverse employment action because he voluntarily left his position when he agreed to resign instead of being fired.

First Amendment protections. In this instance, the parties agreed that the employee’s political affiliation was irrelevant to his ability to properly execute his responsibilities as a police detective. Thus, the appeals court focused on whether the employee presented sufficient evidence to allow a reasonable jury to conclude that the city discharged or constructively discharged him because of his political affiliation with the councilwoman in violation of his First and Fourteenth Amendment rights.

Voluntariness of resignation. The parties did not dispute the district court’s determination that the employee participated in constitutionally protected activity. Rather, the district court rested its ruling on the employee’s failure to establish that he had suffered an adverse employment action.

The Eleventh Circuit noted that the events that happened after the police chief gave the employee the termination letter necessarily raised the question of whether his resignation was voluntary. However, it had not previously identified the appropriate standard for determining the voluntariness of an employee’s resignation. It concluded that the test for voluntariness that applies in the context of due-process claims should also apply in the context of First Amendment claims. Under the due-process voluntariness framework, it is presumed that a resignation is voluntary unless the employee points to “sufficient evidence to establish the resignation was involuntarily extracted.”

Adverse employment action. In this instance, the employee alleged that he was under duress, and the defendants coerced him to resign. Based on a non-exhaustive list of five factors, the appeals court concluded that under the totality of the circumstances, the defendants’ conduct in obtaining the employee’s resignation deprived him of free will in choosing to resign. First, the employee had no “real alternatives” to termination. He was accused on no wrongdoing, so resignation did not save him from investigation or criminal proceedings. Second, the employee did not learn of his firing until the moment that he received his letter of termination. He was then given a mere five minutes to agree to submit his resignation.

Because a reasonable jury could conclude that the employee’s resignation was not the product of his free will, the appeals court found that he presented sufficient evidence to establish that he suffered an adverse employment action when his employment was abruptly ended.


Fired medical marijuana user can sue Massachusetts employer for disability discrimination

July 18th, 2017  |  Joy Waltemath

By Joy P. Waltemath, J.D.

Massachusetts employees who are “qualified handicapped persons” under the state’s disability discrimination law and who legally consume marijuana under the state’s medical marijuana act may now bring a claim against an employer that denies them “the right or privilege” of a reasonable accommodation for their disability. The Massachusetts Supreme Court ruled July 17th that an employee who suffered from Crohn’s disease, a debilitating medical condition for which she had been allowed to use medical marijuana under Massachusetts law, and who was fired under her employer’s policy after she tested positive for marijuana, could maintain a lawsuit against her employer.

Significantly, the fact that possession of medical marijuana violates federal law does not make its use per se unreasonable as an accommodation, reasoned the court, because the risk of federal prosecution belongs to the employee, not the employer. Nor would the court “disrespect” the view of the majority of state legislatures and voters that marijuana has an accepted medical use—contrary to the federal government’s continuing classification of it as a Schedule 1 drug, one that has “no acceptable medical uses.”

Fired after drug test. After being offered an entry-level position with a sales and marketing firm, the employee was required to be drug-tested. She informed her supervisor that she would test positive for marijuana, explaining that she had Crohn’s disease, a debilitating gastrointestinal condition, for which her physician had ordered that she be allowed to use marijuana for medicinal purposes under Massachusetts law. She also said she did not use marijuana daily and would not consume it before work or at work. Although her supervisor allegedly confirmed that her lawful medical use of marijuana “would not be an issue,” after the employee completed a day of training and her first day on the job, the employer’s HR director fired her for testing positive for marijuana, saying “we follow federal law, not state law.”

Massachusetts medical marijuana law. Critical to the state high court’s decision was language in Chapter 369, Section 4 of the state law authorizing medical marijuana, which says: “Any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” The law also specifically does not require “any accommodation of any on-site medical use of marijuana in any place of employment” (emphasis added).

Disability discrimination. The employee claimed she was a “handicapped person” under state disability bias law because of her Crohn’s disease (it was a debilitating medical condition under the medical marijuana law) and that she was “qualified” because she could perform her job’s essential functions with a reasonable accommodation—a waiver of the employer’s policy, which precluded employing anyone who tested positive for marijuana.

Unreasonable accommodation? Because she was being treated with marijuana, which is illegal under federal law, the employer argued that an accommodation to permit the employee to continue medical marijuana treatment “is per se unreasonable.” Plus, because that accommodation would be facially unreasonable, the employer said it had no duty to engage in the interactive process. But the court was not persuaded by either argument.

Not facially unreasonable. First, the court treated “medically prescribed marijuana” like any other prescription medication; if alternative medications that were permitted by an employer’s policy would be less effective, then a policy exception to use an effective medication would be a facially reasonable accommodation. Considering the language of both the state medical marijuana and handicap discrimination statutes, the court said that disabled or handicapped employees have a state statutory “right or privilege” to reasonable accommodation. For it to find that allowing an employee’s use of medical marijuana is a facially unreasonable accommodation would deny the employee this “right or privilege” solely because of the patient’s use of medical marijuana. Plus, because the medical marijuana act specifically does not require any on-the-job “accommodation of any on-site medical use of marijuana,” the court reasoned that the act implicitly recognizes that off-site medical use of marijuana might be a permissible “accommodation,” which is a disability-related term of art.

Federal criminalization not dispositive. That an employee’s possession of medical marijuana is in violation of federal law does not make it per se unreasonable as an accommodation, continued the court, since the risk of federal criminal prosecution belongs to the employee, not the employer. Nor was the state high court going to cede public policy to the federal government’s anti-medical marijuana stance, saying to do so “would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”  (In a footnote, the court pointed out that the employer had waived the argument that federal preemption requires the conclusion that an employee’s use of medical marijuana is facially unreasonable as an accommodation.)

Interactive process. Regardless of the reasonableness of the requested accommodation, the employer here had an obligation, before it fired the employee, to participate in the interactive process to determine whether there was an alternative, equally effective medication she could use that was not prohibited by the employer’s drug policy. This “failure to explore a reasonable accommodation alone” was enough to support her handicap discrimination claim, assuming the employee could show that a reasonable accommodation existed that would have enabled her to be a “qualified handicapped person.”

Violation of company policy. The court made fairly short work of the employer’s argument that it fired the employee not because of her disability but because she violated its policy prohibited the use of marijuana. Terminating an employee who was legally being treated with medical marijuana by a licensed physician and claiming it was only following company policy “effectively denies a handicapped employee the opportunity of a reasonable accommodation, and therefore is appropriately recognized as handicap discrimination,” the court concluded.

Undue hardship defense available. Although it reversed the dismissal of the complaint’s handicap discrimination claims, the court was careful to note this did not necessarily mean that the employee would prevail in proving handicap discrimination, explaining how an employer might show an undue hardship for safety reasons, contractual or statutory obligations, or possibly as a recipient of a Federal grant. But that was not appropriate to determine on a motion to dismiss. Additionally, the court found no implied private cause of action under the medical marijuana act and no reason to recognize a separate cause of action for public policy wrongful termination under these circumstances, so dismissal of those claims was affirmed.

The case is Barbuto v. Advantage Sales and Marketing, LLC.


Draft spending bill would make substantial cuts at DOL and NLRB

July 14th, 2017  |  David Stephanides

The House Appropriations Committee has released its draft fiscal year 2018 Labor, Health and Human Services, and Education funding bill, which includes funding for programs within the Department of Labor, the Department of Health and Human Services, the Department of Education, and other related agencies, including the National Labor Relations Board. The bill, which would make substantial funding cuts at the DOL and NLRB, has moved to subcommittees for further consideration.

The draft legislation includes $156 billion in discretionary funding—a $5 billion reduction below the FY 2017 enacted level, according to a Committee release. The bill is said to cut funding to lower-priority programs, while targeting investments in medical research, public health, biodefense, and important activities that help boost job growth. The bill also contains several provisions to rein in what the Appropriations Committee considers unnecessary regulations, and to “protect the sanctity of life.”

Labor Department funding. The bill would give the DOL $10.8 billion in discretionary appropriations, $1.3 billion below the FY 2017 enacted level. The measure would provide “robust funding” for job training programs and “sufficient funding” for labor enforcement and benefit protection agencies to fulfill their core missions, according to the Committee, while reducing lower-priority and underperforming programs:

  • The Employment Training Administration would get $8.5 billion, a decrease of $1.5 billion below last year’s enacted level and $848 million above the budget request. Included is $2.6 billion for job training grants, $84.5 million for YouthBuild, and $790 million in mandatory appropriations for Federal Unemployment Benefits and Allowances, which provides job training programs for workers who lose their jobs as a result of international trade.
  • The Job Corps would receive $1.69 billion, a decrease of $16 million over the 2017-enacted level and $239.7 million above the budget request. Funding is included in addition to amounts provided in FY 2017 for physical facility safety and security improvements.
  • The Veterans Employment and Training Service would get $284 million—$5 million above the FY 2017 level, with a $2.5 million increase to expand the Homeless Veterans Reintegration Program.
  • The Mine Safety and Health Administration would be funded at $360 million, $14 million below the FY 2017-enacted level. The funding level reflects the declining need for MSHA inspection activities due to the lower levels of mining across the country, especially in coal production.

Regulatory provisions. The draft appropriations bill would include several provisions that the Committee says are designed to help U.S. businesses create jobs and grow the economy by reducing or eliminating what it considers overly burdensome government regulations. These provisions include:

  • A bar on enforcement of the “Fiduciary” rule;
  • A continuation of provisions providing flexibility in the H-2B program, reducing regulatory requirements, and ensuring that employers that comply with program requirements have access to the temporary, seasonal workers;
  • The continuation of a provision exempting insurance claims adjusters from FLSA overtime requirements in areas that have been hit by a major disaster.

National Labor Relations Board. The draft spending bill would give the NLRB $249 million — a $25 million decrease from last year’s enacted level. The bill also includes a provision that would bar the NLRB from applying its revised “joint-employer” standard in new cases and proceedings. It would also prevent the Board form exercising jurisdiction over Tribal governments.


Top labor and employment developments for June 2017

July 6th, 2017  |  Lisa Milam-Perez

The Supreme Court closed out a rather anti-climactic term, employment law-wise, in June. However, the month offered numerous significant developments, including a steady stream of welcome news for employers from the Department of Labor. We also saw forward movement on solidifying a Trump NLRB and a significant win for the president on his travel ban, thus far the defining issue of his presidency. Here, an overview of June’s biggest developments in labor and employment law:

DOL “guidances” revoked. With new Labor Secretary Alexander Acosta now settled in at the helm, the Department of Labor has set about undoing much of the Obama DOL’s regulatory actions. On June 7, Acosta announced that the DOL has withdrawn its 2015 and 2016 informal guidance on joint employment and independent contractors. Administrator’s Interpretation No. 2015-1, issued on July 15, 2015, took the position that most workers are employees under the FLSA, not independent contractors. Administrator’s Interpretation No. 2016-1, issued January 20, 2016, advised that the test for joint employment uses the same expansive “suffer or permit to work” language found in the FLSA—“the broadest definition that has ever been included in any one act,” as the Supreme Court observed. The DOL said its use of this “ensures that the scope of employment relationships and joint employment… is as broad as possible.” In issuing the documents, the Obama DOL said it was responding to the evolving nature of workplace relationships—the rapidly growing “gig” economy and increasingly “fissured workplace”—and looking to ensure that the nation’s statutory employment protections continue to apply to as broad a swath of workers as intended. However, opponents contended these issuances exceeded the agency’s statutory authority and imposed potential barriers to job growth. The rollback was a welcome relief to employers—and to businesses that found themselves at greater risk of liability under the sweeping definition of “employer” under the Obama DOL.

Opinion letters are back! On June 27, DOL announced that it will reinstate its practice of issuing opinion letters, which had been on hiatus under the Obama administration. Opinion letters are official written opinions issued by the Wage and Hour Division in response to specific requests from employers (and far less so, employees) addressing how the law applies in a particular set of circumstances. The Obama DOL had issued (very) occasional “Administrator’s Interpretations” instead; these were meant to offer broad guidance to the regulated community as to how the agency would apply and interpret the law (see, for example, the now-revoked joint employer and independent contractor guidances). This came as more good news for employers, who have long sought such guidance as to how the law applies in specific circumstances.

Overtime revamp revamped. In a brief filed June 30 in the Fifth Circuit, the current arena for the legal challenge to the DOL’s revised overtime rule, the agency made it clear that it will vigorously defend its right to establish a salary level for purposes of defining who qualifies as exempt from overtime under the FLSA’s “white collar” exemptions. However, the agency indicated that it will not defend the $913 per week salary level ($47,476 annually, for full-time workers) set by the Obama administration, after a federal district court enjoined the rule from taking effect. The DOL has asked the appeals court to resolve only the threshold question of the agency’s statutory authority to set a salary level, “without addressing the specific salary level set by the 2016 final rule.” Days earlier, the DOL on June 27 announced it had sent a pending request for information on the overtime rule to the Office of  Management and Budget for review, giving the public yet another opportunity for comment—and signaling that a significant revamp of the revised regulation was in the works.

Persuader rule purged. In a June 12 Federal Register notice, the Office of Labor-Management Standards formally announced that it intends to rescind its much-maligned “persuader” rule, officially deemed “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act.” The rulemaking “reinterpreted” the advice exemption (which exempts from statutory reporting and disclosure requirements the work of labor relations consultants unless they communicate directly with employees to persuade them concerning union organizing). The rule also revised OLMS Forms LM-10 and LM-20, documents that must be filed when an employer engages a labor relations consultant to undertake efforts to persuade employees regarding whether to vote for union representation. The rule was scheduled to take effect April 2016, but a federal court enjoined the measure last June, calling it “defective to its core.” The court later made the injunction permanent. The DOL appealed that decision to the Fifth Circuit, but on June 2, the agency filed a motion to hold in abeyance its appeal, noting its intention to commence notice-and-comment rulemaking on a move to rescind the rule and adding that it was seeking expedited review at the OMB.

NLRB nominations announced. President Trump nominated two individuals to round out the five-member NLRB. On June 19, he announced his choice of Marvin Kaplan to serve as NLRB member for the remainder of a five-year term expiring August 27, 2020. Kaplan is currently chief counsel of the Occupational Safety and Health Review Commission (OSHRC). Before that, he spent nearly seven years as counsel, first to the House Oversight and Government Reform Committee, and then to the House Education and the Workforce Committee, where he was responsible for labor and employment oversight and policy. Kaplan began his public service in 2007 as a special assistant in the DOL’s Office of Labor-Management Standards. On June 27, the president nominated William J. Emanuel, currently a shareholder at Littler, to fill the final vacancy. Emanuel has extensive experience representing employers in traditional labor matters, including NLRB cases, collective bargaining, labor arbitrations, union election campaigns, strikes and picket lines, and litigation concerning union access to employers’ private property. House and Senate Republicans leaders of the Congressional labor committees lauded the picks. Senate HELP Committee Chair Lamar Alexander (R-Tenn.) promised the committee would move promptly on the nominations.

Undoing “quickie” elections. On June 14, Alexander introduced the Workforce Democracy and Fairness Act, which would amend the NLRA to roll back the Obama-era’s so-called “quickie election” rule. Opponents have taken issue with several aspects of the revised representation election procedures, which took effect in April 2015. The Senate bill, S. 1350, would undo the revised election rule’s problematic features, which sharply curtailed the time in which employers can respond to a union organizing campaign and the extent to which they can raise pre-election challenges. Among other provisions, the bill mandates that no union election will be held in less than 35 days; provides employers at least 14 days to prepare their case to present before a NLRB election officer; requires the NLRB to determine the appropriate bargaining unit and address any questions of voter eligibility before the union is certified; and gives employers at least seven days to provide a list of employee names and one additional piece of contact information chosen by each individual employee, protecting workers’ privacy.

In even bigger news, the House Committee on Education and the Workforce advanced three bills on June 29 that would dramatically alter federal labor law in 22-16 votes. The Workforce Democracy and Fairness Act (H.R. 2776) would roll back the NLRB’s revised election procedures as well as the Board’s new standard for recognizing “micro” bargaining units. (Here: a fact sheet on the bill.) The Employee Privacy Protection Act (H.R. 2775) reverses Obama Board policies giving unions greater access to employee contact information during union organizing campaigns. (The committee released a fact sheet.) The Tribal Labor Sovereignty Act (H.R. 986) would amend the NLRA to clarify that it does not apply to any enterprise or institution owned and operated by an Indian tribe and located on tribal land. (Here, one more fact sheet.)

DOJ switches sides on class waivers. In a rare move, the Justice Department has switched sides in a case pending before the Supreme Court. Here, the flip-flop came in an amicus curiae brief filed by the solicitor general on June 16 in NLRB v. Murphy Oil USA, Inc. (No. 16-307), along with two other cases, Epic Systems Corporation v. Lewis (No. 16-285) and Ernst and Young LLP v. Morris (No. 16-300).  The High Court had granted certiorari in January to address whether arbitration agreements that bar employees from pursuing work-related claims on a collective or class basis in any forum violate the NLRA. The solicitor general represented the NLRB on its petition for certiorari and its reply to Murphy Oil’s response, arguing in favor of the Board’s position on arbitration agreements. In the subsequent amicus brief, however, the solicitor general is now arguing against the Board in Murphy Oil, and in support of the employers in Ernst & Young and Epic Systems. On the same day, the NLRB announced that the acting solicitor general has authorized the Board to represent itself in the Murphy Oil case. How vigorously the reconfigured, Republican-majority NLRB will pursue its case, however, remains to be seen.

Supreme Court lifts travel ban. The Supreme Court on June 26 granted certiorari to review Fourth and Ninth Circuit decisions affirming injunctions against Sections 2(c), 6(a), and 6(b) of President Trump’s second “travel ban,” and also granted in part the Trump administration’s request to stay the injunctions in the meantime. Finding that the balance of equities changes depending on whether a foreign national has a relationship to a person or entity in the United States, the High Court narrowed the injunctions. EO 13780 “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions,” the High Court ruled in its June 26 per curiam decision in Trump v. International Refugee Assistance Project.

Trump initially issued EO 13769, the so-called “travel ban,” on January 27. Among other things, the measure suspended for 90 days admission to the United States by individuals from seven majority-Muslim countries. A federal court in Washington enjoined enforcement in part, and the Ninth Circuit refused to stay that order. On June 12, the Ninth Circuit largely affirmed the nationwide preliminary injunction against Sections 2 and 6 of the revised travel ban. Two weeks later, however, the High Court handed the Trump administration a major win.

DHS rescinds DAPA program. The Trump administration on June 15 rescinded the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, erasing a path for undocumented aliens with a U.S. citizen or lawful permanent resident child to be considered for deferred deportation action. DHS Secretary John F. Kelly signed a memorandum rescinding the November 20, 2014 memorandum that created the DAPA program because, as the administration sees it, there is no credible path forward to litigate the currently enjoined policy. A DHS release announcing the rescission described the details of the DAPA program. In short, the program sought to implement immigration reform measures proposed by President Obama in November 2014 after reform efforts had stalled in Congress. But the program had been blocked by a federal district court. A preliminary injunction also blocked the proposed expansion of a similar program, Deferred Action for Childhood Arrivals (DACA), initially implemented in 2012, which expanded work authorization for recipients for three years versus two years.

Church-affiliated plans dodge ERISA oversight. A pension plan maintained by a church-affiliated hospital qualifies as a church plan even if not established by a church, and, therefore, is exempt from ERISA regulation, the U.S. Supreme Court ruled, reversing decisions by the Third, Seventh, and Ninth Circuits. The decision addressed a recent wave of litigation challenging the view of the federal agencies responsible for administering ERISA (Advocate Health Care Network v. Stapleton, June 5, 2017). The petitioners before the Court were church-affiliated nonprofits that run hospitals and other healthcare facilities, and offer defined benefit pension plans to their employees. Those plans were established by the hospitals themselves—not by a church—and are managed by internal employee benefits committees. The federal agencies read the ERISA provisions at issue as exempting such plans from the statute’s mandates. However, the district courts handling the cases agreed with the employees’ position that a church plan must be established by a church for the plan to be exempt from ERISA. Three courts of appeals affirmed those decisions. But the Supreme Court reversed. It was not disputed that under ERISA, a “church plan” need not be maintained by a church; it may instead be maintained by a principal-purpose organization. At issue, however, was whether a plan maintained by that kind of organization must still have been established by a church to qualify for the church-plan exemption. The High Court agreed with the hospitals that the relevant statutory provision intended to bring within the church-plan definition all pension plans maintained by a principal-purpose organization, regardless of whether a church first established them.

Appellate jurisdiction over class cert denials. In a non-employment class action lawsuit, a unanimous Supreme Court ruled that circuit courts lack jurisdiction under 28 U.S.C. §1291 to review orders denying class certification (or an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice. The High Court held that the voluntary dismissal did not qualify as a “final decision” within the meaning of Section 1291, and that allowing the use of the tactic by plaintiffs would undermine Section 1291’s firm finality principle, which was designed to guard against piecemeal appeals. It also would subvert the balanced solution that FRCP 23(f) put in place for immediate review of class action orders. (Microsoft Corp. v. Baker, June 12, 2017). Plaintiffs in putative class actions cannot transform a tentative interlocutory order into a final judgment within the meaning of Section 1291 simply by dismissing their claims with prejudice while preserving the right to “revive” those claims if the denial of class certification is reversed on appeal, the High Court held. Even more than the “death-knell” doctrine discussed in detail in its opinion, the Court found that the voluntary-dismissal tactic invites protracted litigation and piecemeal appeals. Therefore, it reversed and remanded the Ninth Circuit’s judgment.

Circuit scuffle over representative proof. Responding to a Supreme Court order that vacated its prior opinion and remanded for further consideration in light of Tyson Foods, Inc., v Bouaphakeo, the Sixth Circuit found that the High Court’s Tyson decision did not compel a different resolution in this case, and that Tyson’s ratification of the Mt. Clemens legal framework and validation of the use of representative evidence supported its original decision. Once again, the appeals court affirmed the certification of an FLSA collective action, and agreed with the lower court that sufficient evidence supported jury verdicts in favor of cable company technicians who challenged the employer’s time-shaving policy (Monroe v. FTS USA, LLC, June 21, 2017). A vigorous dissent by Judge Stranch called into question the use of representative evidence, particularly here, where there were ostensibly “three different ways in which the employer violated the FLSA.” In her view, the plaintiffs should have broken their suit into subclasses. Instead, the court took an “all-or-nothing approach to certifying the collective in this case,” and forced the jury to deliver a classwide verdict—to decide whether the employer was liable to everyone in the class or no one, “when the truth lies somewhere in the middle.”

Deepening split on tip credits. The Eleventh Circuit, in an unpublished decision, held that a class of valet parking employees whose tips were diverted could not sue their employer under FLSA, Section 203(m) because the employer did not avail itself of the tip credit. The plaintiff alleged that the employer illegally diverted a portion of the tips. However, she did not contend that the employer used tips as a credit against the minimum wage, or that it failed to pay minimum wage or overtime. She argued, nonetheless, that tips are the property of employees—regardless of whether the employer takes a tip credit—and so the tips were not the employer’s to divert. However, the appeals court held that Section 203(m) does not require employers to return tips to employees if it does not take the tip credit. Therefore, the FLSA provided no relief for the tip diversion (Malivuk v. Ameripark, LLC, June 9, 2017). Weeks later, the Tenth Circuit weighed in, agreeing with the Eleventh Circuit and rejecting the Ninth Circuit’s contrary holding. More emphatically, the Tenth Circuit held the DOL exceeded its authority when it implemented a regulation categorically prohibiting employers from retaining tips regardless of whether they avail themselves of the tip credit. The underlying suit was brought by a catering employee whose employer pocketed the gratuities added by customers when paying the final bill after catering events. Here, too, the caterer did not take the tip credit—in fact, the server earned well above the minimum wage—so the tip-credit provision did not apply, and she had no beef. The DOJ had filed an amicus brief in the case to defend the DOL regulation, to no avail (Marlow v. The New Food Guy, Inc., June 30, 2017).

A circuit split is deepened as to the DOL’s authority to regulate tips when the tipped employees earn more than the minimum wage. Currently a petition for certiorari is pending in the Supreme Court in a challenge to the DOL’s policy brought by the National Restaurant Association and several state associations. “It is becoming clearer that the Supreme Court will need to step in to declare what the law is (and is not),” said Paul DeCamp, a Principal in the Washington, D.C., office of Jackson Lewis (and the DOL’s Wage and Hour Administrator during the Bush administration). DeCamp is lead counsel for the National Restaurant Association in the case.