Wednesday, December 21, 2011
Monday, December 5, 2011
Thursday, December 1, 2011
Member Hayes did not resign from the Board to prevent the vote on the Resolution. During prepared remarks during the meeting, Member Hayes said that his resignation would damage the Board's reputation of the in the same manner that the majority's decision to move toward expedited elections has damaged the Board's reputation as an objective and unbiased government agency.
The changes to election procedures proposed in the Resolution are not employer-friendly and are designed to assist unions in organizing employees. But the changes in the Resolution are far less drastic than the rule proposed by the Board earlier this year.
We will continue to monitor the expedited election rule as it winds its way through the administrative process at the Board.
This agreement is a major development because of the political attention the Boeing case has brought to the Board. Several bills were introduced in Congress in reaction to the Board's Complaint against Boeing. Among them was a bill limiting the Board's remedial authority, which would have applied to all cases before the Board, not just the Boeing case. It remains to be seen whether those bills will move forward without the political momentum generated by the Boeing case.
Wednesday, November 30, 2011
In light of the 2-1 Democratic majority on the Board (Chairman Pearce and Member Craig Becker), it is likely that the Board will approve the Resolution to modify election procedures -- as long as the lone Republican on the Board, Member Brian Hayes, remains on the Board. There were rumblings at the end of last week and the beginning of this week that Member Hayes may resign to prevent the Board from having the quorum necessary to approve the Resolution. As of yet, however, there is no word whether Member Hayes will resign. But many will be paying close attention to his actions leading up to the meeting scheduled for 2:30 p.m. today.
Tuesday, November 29, 2011
Mark Pearce, chair of the NLRB, called for the vote, saying that some provisions of the proposal should be approved before the end of 2011, when the term of member Craig Becker is set to expire. When Becker's term expires, the Board would have only two members and would not have a quorum necessary to take official actions. Member Hayes, the sole Republican member of the Board, has threatened to resign prior to the Board's vote to deprive the Board of the authority to implement the controversial and decidedly pro-labor rules. It remains to be seen whether Member Hayes will actually resign to prevent the Board's action, but you can expect that the bullets at the NLRB Corral will continue to fly for the next several weeks.
Monday, November 28, 2011
The EEOC's new regulation is intended to provide guidance on the definition of what will constitute "reasonable factors other than age." However, the new regulation emphasizes that whether a differentiation is based on reasonable factors other than age must be decided on the basis of all the particular facts and circumstances surrounding each individual situation. In other words, there is no bright line rule for employers to follow. Instead, the regulation provides lists of factors for determining whether an employment practice is reasonable and whether it’s based on a factor other than age. The EEOC said it will look to tort law to determine what is "reasonable."
In voting against the new regulation, Commissioner Constance S. Barker said “I’m concerned about creating a new defense that imposes a more restrictive and more difficult defense for employers to apply,” especially the small business owner. "No matter how well intentioned these regulations may be, when we look at the small business person who is desperately working to just keep his doors open and keep a few Americans employed, … adding this tort law standard … may mean the difference between keeping his doors open or not," she said. Similarly, Commissioner Victoria Lipnic said that “The proposed final rule regulation places a duty on employers to pre-emptively avoid age discrimination and to seek out and assess less discriminatory alternatives,” something that she said neither the ADEA nor the Supreme Court requires.
The "Final Regulation on Disparate Impact and Reasonable Factors Other Than Age" now goes to the U.S. Office of Management and Budget (OMB) for review. Upon OMB approval, the regulation will be published in the Federal Register and become effective a period of time after being published.
We will continue to monitor the progress of the regulation and how courts apply it to employers' everyday practices.
The EEOC also obtained more than $364.6 million in monetary benefits for charging parties through administrative enforcement. This is the highest level of monetary relief obtained in the EEOC's 46-year history.
In a written statement coinciding with the release of the Report, Jacqueline A. Berrien, chair of the EEOC, said “I am proud of the work of our employees and believe this demonstrates what can be achieved when we are given resources to enforce the nation’s laws prohibiting employment discrimination.” She also said that “[t]he EEOC was able to take full advantage of increased resources in the past two fiscal years to make significant progress towards effective enforcement of the nation’s civil rights laws.”
As long as the economy continues to struggle and unemployment rates remain high, employers can anticipate that the number of EEOC charges will remain at historic levels.
Thursday, November 3, 2011
The whistleblower provisions of SOX make it unlawful for a publicly traded company (or its subsidiaries) to retaliate against an employee for reporting mail fraud, wire fraud, bank fraud, securities fraud, violations of SEC rules or regulations, or violations of any provision of federal law relating to fraud against shareholders.
According to a DOL news release regarding the interim rule, OSHA Assistant Secretary Dr. David Michaels said that "Fraudulent practices by publicly held corporations have contributed to the economic difficulties currently facing our nation." "The best way to prevent this from happening in the future is to ensure that workers feel free to blow the whistle on corrupt corporate practices without fear of retaliation, and OSHA is committed to protecting the rights of those workers to speak out."
Friday, October 21, 2011
While Tennessee law clearly required employers to provide an employee with the employee's "usual compensation" for serving on a jury, there was a question as to whether the employee was entitled to payment for travel time to and from the court when the employee was not usually compensated for travel to and from work. According to the Attorney General, the statute's reference to "usual compensation" includes the time the employee spends traveling to and from jury duty.
The Attorney General's interpretation of the statute poses a potential trap for the unwary employer who is not accustomed to paying employees for travel time. In fact, in most cases, employers are not obligated to pay employees for travel from their homes to work and back each day. Accordingly, human resources and payroll professionals should note this exception to the general rule and make sure that employees are properly compensated when reporting for jury duty.
Wednesday, October 19, 2011
Continental Breakfast and Lunch will be provided. Registration and breakfast begin at 7:30 a.m. followed by presentations from 8:00 to 12:00 and lunch and questions at 12:00.
Reserve your spot by calling 1-877-552-9928 or e-mail firstname.lastname@example.org.
Friday, October 7, 2011
In a press release, the Board indicated that the rule's effective date was delayed "by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." The Board indicated that it had received a number of questions from business and trade organizations that suggested uncertainty about which businesses are covered by the new requirement.
Other than the effective date, no other changes in the rule, or in the form or content of the notice, will be made.
Monday, September 19, 2011
An employer's failure to post the Notice of Rights is considered an unfair labor practice and may toll the statute of limitations for employees to file unfair labor practices on other grounds while the Notice is not in place. Additionally, the Board's new rule provides that a knowing and willful failure to post the Notice, that may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the Act.
Thursday, August 25, 2011
In addition to physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if other personnel rules and policies are customarily posted there.
Failure to post the notice will be considered an unfair labor practice and an employee may file a charge based on the failure. Additionally, the rule provides that the Board may extend the 6-month statute of limitations for filing a charge involving other, unrelated unfair labor practice allegations during the time the notice is not posted. Finally, if an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.
Board Member Brian Hayes dissented from the rulemaking, asserting that the Board does not have the authority to promulgate the rule or to toll the statute of limitations spelled out in the Act. Member Hayes also commented on the Board’s motivation for creating the posting requirement stating that “Surely, no one can seriously believe that today’s rule is primarily intended to inform employees of their Section 7 right to refrain from or to oppose organizational activities, collective bargaining, and union representation. My colleagues seek through promulgation of this rule to reverse the steady downward trend in union density among private sector employees in the nonagricultural American workforce.” Indeed, employers should expect that the posting the notice will prompt employees to begin asking questions about unions and employers should be prepared to explain to employees the truth about what it means to be unionized.
There is likely to be a legal challenge to the rule in the near future. We will continue to monitor any developments.
Friday, August 12, 2011
In actuality, this is as much about the Form I-9 process as it is E-Verify. Basically, once the law becomes effective for each employment sector (based upon size), an employer is required to either maintain copies of documents provided by the employee to prove employment eligibility - or use E-Verify to verify employment authorization. The document copies or authorization from E-Verify must be kept for either 3 years after the documentation is provided (or 'date of hire' for E-Verify) or 1 year following termination of employment, whichever is longer.
For those of you who work with the Form I-9, this all sounds familiar - but a little 'off'. For example, the Tennessee law limits the acceptable documents to an odd assortment of birth certificates and 'current immigration registration', etc. Although all of the listed documents appear to be on the list of I-9 approved documents, not all I-9 approved documents appear on the list of Tennessee approved documents. Thus, employers are faced with the peculiar problem of getting documents for the I-9 and then possibly seeking different documents for the TLEA requirements. Of course, to avoid a charge of discrimination, you should not request the employee to provide any specific document on either list; (see, recent U.S. Dept. of Justice settlement with Summit Steel Fabricators, Inc. for an idea of fines and penalties).
The alternative is to enroll in E-Verify. This, of course, is what the Legislature hopes you will do. Without going into details about the E-Verify process at this time, ultimately, you should not begin the employment of an employee until you verify that the employee is authorized to work through the E-Verify system, and maintain proof of this verification for 3 years after hire or 1 year after termination, whichever is later. The incentive, however, is that if it turns out that an employee that you have hired is actually not authorized to work, you can avoid the charge of having 'knowingly' hired an illegal alien by using E-Verify. This is the 'Safe Harbor' under the Tennessee law. Conversely, reliance simply upon keeping documents related to the I-9 process is an ineffective defense to the charge. And the distinction between a 'Safe Harbor' and a charge of 'knowingly' hiring an unauthorized employee is very damaging both financially and to your ability to maintain your license to conduct business in the State of Tennessee.
Finally, it should be noted that you are also required to determine work authorization - from non-employees (e.g. independent contractors) who perform services for you!
That will be a discussion for our next blog -
Tuesday, July 26, 2011
Of course, this discussion may be putting the cart before the horse: the FMLA Parental Bereavement Leave bill is in its infancy stages and has yet to secure a sponsor in the House of Representatives. That said, the bill is worth tracking (you can do that here) as companion legislation, or the success of this amendment, is not beyond the realm of possibility.
Thursday, July 14, 2011
The most recent settlement, while eye-popping, is not the first foray by the EEOC into this specific area of ADA enforcement:
- August 2001: The EEOC settles a reasonable accommodation suit against Blood Systems, Inc./United Blood Services for $650,000. The Commission claimed that the employer's medical leave policies "illegally required termination of a class of employees with disabilities after 120 days without consideration of whether an extension would be a reasonable accommodation in accordance with the ADA."
- September 2010: Texas concrete manufacturer Ingram Readymix is sued by the EEOC for allegedly denying periodic leave to an employee for medical treatment.
- October 2010: California company American Apparel is sued by the Commission for terminating an employee who needed additional leave for chemotherapy after he had taken approved leave for the initial treatment.
Thursday, July 7, 2011
The pressure on employers to enforce these immigration laws during the hiring process is getting ready to explode for employers in Tennessee. On June 7, 2011, Tennessee Governor Haslam signed into law new provisions of the 'Tennessee Lawful Employment Act' that will dramatically change the way employers hire new employees - and even independent contractors who provide labor and services for your company.
A new complex layer of state immigration enforcement obligations will supplement (and sometimes overlap) the federal regulations that employers already follow. The new legislation is built around the use of the federal 'E-Verify' system or maintenance of documentation proving legal residency for every employee similar to what is now required with the Form I-9.
Over the next several days, we will focus on 5 different components of the new legislation to help explain the scope of the new law. In summary, the 5 topics will include:
1. E-Verify and Legal Residency documentation; Employer will either have to register and use E-Verify or maintain specific documentation proving lawful residency - even if you do not have internet access;
2. Independent Contractors; new verification requirements now extend to persons who provide labor or services to your company - even if they are not your own employees;
3. Worksite Investigations; a new state office will be created to conduct random audits and inspections at your workplace;
4. Increased Penalties; higher fines and the possible permanent suspension of your license are now among the heightened penalties for violation of these new provisions;
5. Implementation Dates; Employer obligations to comply with this new legislation will be phased in depending upon the size of your workforce. Generally, the law becomes effective on January 1, 2012.
Welcome to the New World of Immigration Enforcement!
Wednesday, June 22, 2011
On June 22, 2011, the National Labor Relations Board proposed new rules to “streamline” pre- and post- union election procedures that will have the effect of shortening the time between the filing of an election petition and the election, among other things. If adopted, the Board’s proposed rules would likely:
- reduce the amount of time employers have to respond to a union organizing campaign and
- restrict employers’ opportunities to communicate with employees about what it really means to have a union.
Since organized labor has not been able to pass the Employee Free Choice Act, “by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought- after ‘quickie election’ option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition.” (Member Hayes, dissenting, available here)
The practical effect, and the desired result, of the changes is to :
- implement “quickie elections,” held within a matter of days of filing of a petition,
- severely restrict an employer’s ability to communicate with its employees about the collective bargaining process and what it really means to be unionized,
- require regional directors to schedule an election for the “’earliest date practicable consistent’ with the rules.”
The Board has scheduled a hearing on the proposed rules for July 18, 2011, and will accept written comments for a 60-day period with a 14-day period for reply comments. We will continue to monitor the developments, and tune back in for additional posts on the proposed rules.
Tuesday, June 21, 2011
The Labor Management Reporting and Disclosure Act (“LMRDA”) requires employers to disclose agreements or arrangements between employers and labor relations consultants (including attorneys) when a consultant engages in activities to “persuade” employees in the exercise of their rights under the National Labor Relations Act. Of course, this typically involves activities during a union organizing campaign to persuade employees to vote against a union. The LMRDA includes an exemption to the reporting requirements for “advice” an employer receives. The DOL has traditionally interpreted the “advice” exception to apply when the consultant or attorney advises the employer and provides planning and materials, but does not directly address or interact with the employees. In those cases, the arrangement or agreement did not have to be reported. The DOL’s new rule will change that interpretation.
The DOL’s proposed rule would redefine and significantly narrow the scope of the “advice exemption,” and consequently broaden the scope of activity defined as direct persuader activity that employers must report. The proposal would define the term "advice" as "an oral or written recommendation regarding a decision or course of conduct." Under the DOL’s proposed rule, an agreement would be reportable in any case where the consultant engages in activities to persuade employees that go beyond the more narrow definition of “advice.” Persuader activities would be reportable when a consultant engages in any activity on behalf of an employer that would directly or indirectly persuade workers concerning their rights under the NLRA, even if the consultant does not have any direct contact with employees. According to the DOL’s press release, the rule would also require reporting even where an attorney provides “advice,” where the attorney also “plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort.” It appears that an agreement would be reportable under the revised rule if a consultant or attorney prepared speeches or materials for a union campaign.
The DOL’s press release regarding the proposed rule (available here) suggests that “[b]etter disclosure is critical to helping workers make informed decisions about their right to organize and bargain collectively.” The practical effect of the rule, however, will be to force employers to choose between (1) forgoing assistance during a union organizing campaign (which benefits the union’s chances of winning) or (2) disclosing the employer’s arrangements with the consultant/attorney (which provides a source of material for the union’s campaign).
The DOL’s proposed rule will be published in the Federal Register on June 21, 2011, and the deadline for submitting comments is August 22, 2011. We will continue to monitor the developments on this rule.
Tuesday, June 14, 2011
According to a recent General Counsel Memo, the Board is considering a rule that would require employers to provide information to unions about all transfers of work, even if the employer is not legally obligated to bargain with the union about the transfer. (You can access the memo here.) Currently, employers are not required to bargain with a union about a transfer of work where the transfer involves a change in the scope or direction of the business, or where labor costs were not a factor, or where, even if labor costs were a factor, the union could not have offered labor-cost concessions sufficient to alter the employer’s decision. In a decision from earlier this year, the Board dismissed an allegation that an employer violated the Act by refusing to provide information related to its decision to relocate operations. (You can read the decision here.) The Board found that since the relocation decision in that case was not a mandatory subject of bargaining, there was no obligation to provide information about it. In a concurring opinion, however, Chairman of the Board, Wilma Liebman (former attorney for the Teamsters and the Bricklayers unions) “suggested that she would consider modifying the [existing] framework with regard to information requests if a party were to ask the Board to revisit existing law in this area.” In other words, she would consider changing the law to require employers to provide information to unions about a relocation decision even if the employer is under no obligation to bargain about that decision. The purpose of the General Counsel’s memo is to instruct Regional Directors to identify cases that would be suitable for the Board to use to change the law in this respect.
As much as the Board has already done, employers should expect that the Board will continue to adopt changes to the law that benefit labor organizations. And there is a “money-back guarantee” on that prediction!
Monday, June 13, 2011
Wednesday, June 8, 2011
In 1973, the United States Supreme Court adopted a “burden-shifting” analysis for evaluating claims of racial discrimination claims under Title VII. The burden-shifting analysis was labeled “McDonnell Douglas burden shifting” after the name of the Supreme Court decision that established it. In the years following the Supreme Court’s decision, all federal courts and state courts in nearly every state adopted the McDonnell Douglas burden shifting analysis for all types of discrimination claims under Title VII, other federal laws such as the ADA, ADEA, and state anti-discrimination laws. This analysis was widely accepted and used in nearly every discrimination case for over 35 years – so much so that it rolls off the tongue of every employment lawyer like the pledge of allegiance.
Last September, the Tennessee Supreme Court discarded the McDonnell Douglas burden shifting analysis for common law retaliation claims -- and in all probability, also for all discrimination and statutory retaliation claims in state court. The Court held that the burden shifting analysis adopted by the United States Supreme Court was inconsistent with Tennessee’s standard for summary judgment. (You can read the Supreme Court's opinion here and our post about the case here). In one fell swoop, the Supreme Court fundamentally altered the analysis for claims of discrimination and retaliation in Tennessee state courts. The decision had the practical effect of making it more difficult for employers to obtain summary judgment dismissing meritless claims of discrimination and retaliation.
In its latest session, the legislature reacted by passing a bill that adds new sections to the Tennessee Human Rights Act and the provisions related to retaliation claims. The new sections explicitly reject and legislatively overrule the Supreme Court’s decision, and “establish the McDonnell Douglas framework as the appropriate and legally required framework for the consideration of evidence offered during all stages of the proceedings in employment discrimination and retaliation cases.”
The new statutes bring Tennessee law back in line with federal law and the law of a vast majority of the states. Importantly, the new statutes will eliminate uncertainty that would have resulted from a sea change in the law and will provide a more predictable standard for employers to obtain summary judgment dismissing frivolous discrimination and retaliation claims.
A copy of the bill can be found at http://www.capitol.tn.gov/Bills/107/Bill/SB0940.pdf
Tuesday, June 7, 2011
Summary judgment is a procedural device that allows the judge to dispose of cases prior to trial where there trial is unnecessary because the facts are not disputed and the plaintiff’s claims are legally insufficient. Summary judgment is a tool that employers commonly used to have meritless discrimination, harassment, and retaliation claims dismissed without having to undergo the expense and uncertainty of that accompanies a trial.
(You can read about the cases which led to this legislation here and here.)
With the passage of House Bill No. 1358/Senate Bill No. 1114, the Tennessee legislature has not only reversed the effects of the Hannan decision, but it has required Tennessee courts to apply the same summary judgment procedure as is applied in federal courts. The operative language of the statute states that the moving party shall be entitled to summary judgment if it “[d]emonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” The legislature clearly intended to revive summary judgment as a useful procedural device to weed out the cases that do not deserve to go to trial.
It remains to be seen how courts will interpret this law and whether courts will still feel reluctant to grant summary judgment. From the employer’s standpoint, however, this is a welcome change in the law. It will reduce the risk that meritless lawsuits go further in the process than they should, or that employers feel extorted to settle on unfavorable terms simply to avoid the costs of litigating the case.
Tuesday, May 17, 2011
With USCIS working toward making compliance "easier," it would not be a stretch to think that the expectations of compliance will increase as well. For more information about I-9 audits, check out these previous blog posts.
Friday, May 13, 2011
The bill signed by the governor can be found at: http://state.tn.us/sos/acts/107/pub/pc0178.pdf
Thursday, May 12, 2011
Tuesday, May 10, 2011
This is a development that employers should be aware of and pay attention to. The DOL’s app is really a convenient way for employees to collect evidence to support a wage and hour complaint and/or lawsuit. In fact, the DOL has practically admitted this. In a news release, the DOL stated that “This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” In other words, the DOL would rely on employees’ records where the employer has not maintained accurate records of the hours an employee has worked. Even for those employees who are not as tech savvy, the DOL has developed a printable work hours calendar for employees to use to track rate of pay, work start and stop times, and arrival and departure times
It is easy to imagine a situation where an employee’s records using a smartphone app or paper calendar are different from the employer’s records, and create a conflict as to how much the employee is owed. To lessen the threat of a successful wage and hour lawsuit based on the employee’s independent records, some employers may choose to require employees sign time sheets and pay stubs to verify that the employer’s record of the employee’s hours and wages are accurate. In light of the DOL’s announcement, now is a good time for employers to ensure that they have properly classified employees as exempt or non-exempt, are paying employees properly for all time worked, and are maintaining accurate records related to employees pay.
Wednesday, April 20, 2011
- update your timekeeping policy, e-mail policy, etc. to prohibit unauthorized time worked after hours, and remind employees that any work which might result in overtime should be approved first
- most e-mail programs have a setting that allows you to schedule when particular messages will be delivered. Train your supervisors how to use that setting so that e-mails which are being sent to non-exempt employees are delivered during normal working hours
- prohibit employees (exempt and non-exempt alike) from having remote access to the e-mail accounts without prior permission (which gives you some control over who has the ability to check e-mail during off hours)
- remind non-exempt employees that they are to record ALL time worked, including those seemingly small, incremental periods during off hours when they are accessing e-mail remotely
- perform overtime/timekeeping audits periodically; this will also help you discover any patterns in e-mail usage that you can then use to better control remote access
- if you find an employee has violated your policies and established expectations, counsel the employee on the appropriate conduct.
Thursday, March 17, 2011
This time, it's my speech on dealing with the borderline employee. One of the building blocks I recommend to my audience is the concept of time. More specifically, I encourage the audience to review the calendar before it metes out discipline or informs an employee of his/her termination from the job. It isn't wise to terminate close to a holiday or on an employee's birthday, as examples.
Enter The University of Tennessee Athletic Director Mike Hamilton.
Mr. Hamilton has experienced his share of gray-hair-making moments since he hired Lane Kiffin to be football coach in 2009. Most of those occurred on the football side of operations until men's basketball coach Bruce Pearl was caught in a lie to NCAA investigators during a 17-month investigation of the program.
The AD has done a respectable job of making appropriate comments concerning the future of the basketball program and its big personality coach in Pearl. That all changed on Wednesday, though. During a radio interview on a Knoxville station, Hamilton stated that he was unsure of Pearl's future with the program. This is the first departure from the stoic support received by Pearl since the NCAA investigation was revealed.
Search the words "Mike Hamilton Coach Pearl", and you'll be directed to a page-worth of articles concerning the "uncertainty" of Pearl's future, how it appears that the Vols' foes extend beyond their first-round tournament match-up with Michigan, that the "jury is out" on Pearl's job. . . you get the idea.
Timing really is everything. I can't help but scratch my head and wonder what motivated Mr. Hamilton to make those comments this close to the Vols' NCAA tournament appearance. Many sports analysts stated that the Vols needed to make a deep run in the tournament in order for UT's fans to be appeased (i.e., give Mr. Hamilton any shot at making the case for Pearl to keep his job, regardless of the velocity of sanctions that are forthcoming from the NCAA).
Prior to those comments, most would have thought that UT was more than fair to Pearl in extending him the grace it has thus far. Mr. Hamilton might have timed his comments well enough to now place the martyr crown on Pearl's head. And those who attended my presentation today know that doing that serves to take away power from the employer and give it to the borderline employee.
It will be interesting to see what unfolds from all of this. The possible gains from the timing of this statement are lost on this employment counselor, but that doesn't mean they don't exist. I just can't imagine what they are (save from someone already informing Mr. Hamilton that he has lost his job and he feels that he has nothing to lose). Mr. Hamilton has given the predictable, "My comments were misinterpreted" explanation for the internet wildfire that surrounds him. Maybe I'll send an invite to Mr. Hamilton next time I give the presentation. It's the least I owe him after he provided me with such fine material.
Monday, February 28, 2011
I read about this shortly after giving a presentation to a client's workforce about social networking, the workplace, and the blurry line that defines who they are professionally from who they are personally.
Tuesday, February 1, 2011
Wednesday, January 26, 2011
Tuesday, January 25, 2011
Monday, January 24, 2011
The district court in Kentucky disagreed, dismissing Thompson's case on summary judgement. The Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky and Tennessee) affirmed the decision of the district court.
The U.S. Supreme Court said two questions needed to be answered:
- Did the Defendant's firing of Thompson constitute unlawful retaliation?
- If it did, does Title VII grant Thompson a cause of action?
The Court held unanimously that:
- Title VII's anti-retaliation provision, which is more broadly construed than its anti-discrimination provision, prohibits more than conduct which only impact the terms and conditions of employment.
What are the take-away points?
- The Court ruled unanimously. This means that the Court wants to send a clear message about its holding and the intended consequences of the same. (Justice Kagan, the newest Justice, did not participate in the deliberations.)
Thursday, January 13, 2011
Tuesday, January 4, 2011
Lack of confirmation could have resulted in more of a shift in the EEOC's ideology than has already occurred with a Democratic majority on the Commission. Lipnic and Constance Barker are the two Republican commissioners. Stuart Ishimaru, a Democrat, rounds out the panel.
Now that we know who's going to be leading the EEOC's agenda for a while, let's take a look at the background of those on the Commission:
Jacqueline Berrien (Chair, Democrat): Berrien came to the EEOC from the NAACP Legal Defense and Educational Fund, where she had worked for the last 5 1/2 years. Her previous employment roles, including some time at the American Civil Liberties Union, allowed her to represent voters on issues of representation and voting rights, and for women's rights.
Stuart J. Ishimaru (Commissioner): Ishimaru started his service on the Commission under George W. Bush in 2003 as a Democratic appointment. Ishimaru was acting Chair during the last few years when the EEOC saw its budget increased significantly in order to ramp up its enforcement efforts and staffing. The drive to investigate and litigate systemic discrimination cases began under Ishimaru's tenure as acting Chair. He testified before Congress in support of the Employment Nondiscrimination Act (which, if passed, would have prohibited discrimination on the basis of gender identity and sexual orientation).
Constance S. Barker (Commissioner): Barker was nominated by President George W. Bush and confirmed by the Senate in 2008. Prior to joining the Commission, she worked for a private firm in Alabama defending businesses in cases of harassment and discrimination. She also worked as an assistant district attorney and has spent her time on the Commission focusing on issues involving worksite rape and sexual assault.
Chai Feldblum (Commissioner): Feldblum has previous legislative experience in playing major roles in the drafting of the Americans With Disabilities Act of 1990 and the Amendments which were passed in 2008. She worked for the American Civil Liberties Union as legislative counsel for its AIDS project and played a significant role in drafting the Employment Nondiscrimination Act. Feldblum has been perhaps the most controversial of President Obama's appointments given her particularly strong views on advancing the rights of gays, lesbians and transsexuals.
Victoria A. Lipnic (Commissioner): Lipnic came to the EEOC from private practice with a Washington, D.C. law firm. She previously worked in government, having oversight responsibilities for the Wage and Hour Division of the U.S. Department of Labor when it overhauled its overtime and exemption standards, as well as playing a role in the issuance of revised Family and Medical Leave Act regulations.