President Donald Trump has officially revoked the so-called “Blacklisting” executive order that was signed by former President Barack H. Obama in 2014 to encourage federal contractors to obey labor laws.
That’s a shame. It’s smart public policy to save federal tax dollars by encouraging voluntary compliance with federal law. However, in truth, Obama’s executive order was needlessly flawed and arguably unconstitutional..
As written, the blacklisting rule required contractors seeking federal contracts over $500,000 to report both alleged labor violations and adjudicated violations to federal agencies. Federal agencies could then use the information to award future contracts, cancel existing contracts, and potentially demand remedial action to address a pattern of violations.
It should be obvious even to a high school student that the federal government can’t penalize a contractor that is merely accused of a labor law violation. What if the contractor is innocent? Contractors have a right to due process of law under the U.S. Constitution. Continue reading “Fix the ‘Blacklisting’ Rule”
As an attorney who specializes in workplace abuse, I read a lot of very bad court decisions. Here’s one from U.S. Supreme Court nominee Judge Neil Gorsuch that rivals the very worst.
Judge Gorsuch wrote a dissent in Transam Trucking, Inc. v. Administrative Review Board, U.S. Department of Labor in which he said a trucker should be fired because he left a big truck rig with frozen brakes that was stranded by the side of the road late at night in frigid weather, three hours after his employer failed to arrive to fix the truck. The cabin was unheated and the trucker was showing signs of hypothermia. He unhooked the trailer and drove the cab to a gas station where he warmed up, and then he returned. He was fired.
“It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that” wrote Gorsuch.”There’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”
Do we really need a law saying you can save your life if its 14 degrees below zero, your torso is numb and your speech slurred, and your employer has failed to rescue you after several hours time?
Why is it left to the Attorney General of Illinois to address the national problem of blatant and destructive age discrimination in hiring?
Illinois Attorney General Lisa Madigan this week warned six national career and job search companies that some of their search functions could violate state and federal age discrimination laws. The job sites are Chicago-based CareerBuilder, Indeed, Beyond, Ladders, Monster Worldwide and Vault.
Yet, for years, the EEOC and members of the U.S. Senate Special Committee on Aging have sat on their hands while older workers have been mired in chronic unemployment due to blatant age discrimination in hiring. Why? The picture became clearer recently when Sen. Robert P. Casey, Jr. of Pennsylvania , a ranking member of the Special Committee on Aging, issued a press release on the committee’s web site that was stunningly uninformed about the ADEA.
Casey announced that he and several other committee members recently “introduced” the Protecting Older Workers against Discrimination Act (POWADA), which would remove the higher burden workers alleging age discrimination currently face in the court system relative to workers alleging discrimination based on race, sex, national origin, or religion. In actuality, the POWADA is a proposed law that literally has been languishing in various Congressional committees since 2009, which was the year that the U.S. Supreme Court issued a ruling establishing the higher burden for age discrimination plaintiffs.
Worse, Sen. Casey says the POWADA would “level the playing field” for older workers. This statement is so profoundly wrong that one must wonder whether the special committee employs any professional staff who know anything at all about the federal law governing age discrimination.
Contrary to what Sen. Casey states, the POWADA would not “level the playing field for older workers.” Not by a long shot.
If you don’t like getting sued for discrimination, just make it harder to sue.
That seems to be the theory underlying a bill pending in Missouri House of Representatives that was recently endorsed by the University of Missouri system.
The proposed bill would make it harder to sue by raising the level of proof in lawsuits alleging discrimination in employment, housing and public accommodations. It also would bar the award of punitive damages against “public entities.”
The University of Missouri Backs the Controversial Measure
The Missouri legislature’s Special Committee on Litigation Reform, which held a hearing on the bill last week, appears to be less than interested in opposing views. Committee Chairperson Bill Lant cut off the microphone of Missouri NAACP President Rod Chapel, who said the measure would expand discrimination and represents a form of “Jim Crow.” Lant, a Republican, also refused to allow a committee member to ask questions of Chapel.
Minutes before Chapel was silenced, the Columbia Daily Tribune reports that Marty Oetting, lobbyist for the University of Missouri, told the committee that UM supports the bill, especially the part barring anyone winning a lawsuit from receiving punitive damages from public entities. The university system is currently facing two discrimination lawsuits,
The university claims workers receive sufficient protection under federal law and do not need the enhanced protections of the state’s anti-discrimination law.
The driving force behind the bill is Missouri State Sen. Gary Romaine, the owner of a “rent-to-own” furniture business that is currently a defendant in a race discrimination lawsuit. Romaine couched the bill as a way of “reforming Missouri’s legal climate and improving our ability to grow existing businesses and attract new employers.”
The proposed bill would essentially adopt the current standard of the federal Age Discrimination in Employment Act of 1967 for all victims of race and sex discrimination. Workers would have to show that discrimination occurred “because of” discrimination rather than meeting the lesser standard of showing that discrimination was a motivating factor.
Note: Andrew Puzder withdrew his nomination for Labor Secretary on 2/15/17. He also admitted to hiring an undocumented housekeeper and his ex-wife appeared on Oprah in 1990 in disguise and accused him of domestic violence. She later recanted. PGB
For all of his supposed business acumen, President Donald Trump is doing some really dumb things.
For one thing,Trump has proposed Andrew (Andy) Puzder, CEO of CKE Restaurants, as the next Secretary of Labor.
CKE operates the “fast food” restaurants Carl’s Jr. and Hardees and has been sued multiples times for discrimination, failing to pay overtime and firing workers who protest poverty wages.
And it is not insignificant that CKE sells burgers with advertising that many of Trump’s middle class voters would rightly consider to be soft-core porn. One controversial ad features Paris Hilton wearing a skin-tight bikini while soaping up a Bentley and crawling all over it before taking a long, lingering bite of a juicy burger. This ad drew the ire of the Parents Television Council and was banned in New Zealand. According to CNN Money, Puzder was less than sympathetic to the concerns of parents, telling them to “get a life … there is no nipple in this. There is no nudity, there is no sex acts — it’s a beautiful model in a swimsuit washing a car.” One suspects that Puzder does not have his finger on the pulse of Trump’s voter base. Continue reading “Trump’s Short-Sighted Pick for Labor”
In 2016, the EEOC filed 34% fewer lawsuits than it filed in 2015, and there were drastic declines in some areas, notably an 85.7% decline in age discrimination lawsuits.
This is not good news for victims of discrimination in employment. Without the gravity and resources of the EEOC behind them, many individual discrimination victims are puny “Davids” facing international corporate “Goliaths.”
It appears the steep litigation decline – from 174 lawsuits in 2015 to 114 in 2016 – is the result of the EEOC’s new emphasis on resolving individual complaints through voluntary mediation. However, mediation is a far better deal for employers than workers. For employers, mediation is a form of free dispute resolution that gets the EEOC off their back and eliminates the risk of massive damages and fees in a jury trial. For workers, mediation generally results in a modest financial settlement at best.
Many workers, especially those without counsel, do not fully understand their rights and the employer’s potential liability, or they cannot realistically fight for their rights because they have no money to wage a protracted court battle.
Mediation is a far better deal for discriminatory employers than it is for discrimination victims.
Here are the types and number of lawsuits filed by the EEOC in 2016 compared to 2015 and the percentage increase/decrease.
Age Discrimination in Employment Act of 1967; Two lawsuits in 2016, compared to 14 in 2015 (a decrease of 85.7%).
Title VII of the Civil Rights Act of 1964 (race, sex, religion, color and national origin): 46 lawsuits in 2016 compared to 83 in 2015 (a decrease of 44.5%).
Americans with Disability Act: 36 lawsuits in 2016 compared to 53 in 2015 (a decrease of 32%).
Equal Pay Act: Five lawsuits in 2016 compared to 7 in 2015 (a decrease of 28%).
Genetic Information Non-Discrimination Act Two lawsuits in 2016 compared to one in 2015 (an increase of 50%).
The U.S. Department of Labor is challenging long-standing and overt discriminatory employment practices in the high-tech industry by threatening to cancel the alleged violators’ federal contracts.
In recent months, the DOL has sued Oracle America, Inc., Google Inc. and the startup, Palantir, for alleged discriminatory conduct. This follows years in which the DOL and the EEOC appeared to have adopted a “hands off” policy with respect to high-tech employers.
The DOL filed a lawsuit on Jan. 17 charging Oracle with allegedly paying white males more than other workers at its Redwood Shores, CA, headquarters. The DOL reported finding “gross disparities in pay even after controlling for job title, full-time status, exempt status, global career level, job specialty, estimated prior work experience and company tenure.”
The DOL also charged Oracle, which has 45,000 employees across the country, with heavily favoring Asian Indians in hiring and recruitment. The lawsuit alleges that 82 percent of new hires in a professional technical group at Oracle’s headquarters were Asian during a six-month period in 2013, even though only 75 percent of job applicants were Asian. The DOL noted that Oracle targeted Asian Indians in recruitment efforts that including referral bonuses.
Oracle allegedly discriminated against White, Hispanic, and African-American applicants.
One baffling aspect of the Healthy Workplace Bill (HWB), a model state law proposed by the Workplace Bullying Institute (WBI), is that it continues to require bullying victims to establish a higher degree of harm than is required under U.S. law.
The HWB was drafted by Suffolk University Law Professor David Yamada and proposed by the WBI a decade ago for adoption by individual states. It would address status-blind workplace bullying and cover targets whether or not they are protected under federal discrimination laws. Though no state has yet adopted it, the bill has been considered by more than two dozen states.
Last week, it was again shown that the HWB is oddly out of step with respect to the degree of proof that it requires bullying victims to provide to establish employer liability.
The EEOC released a proposed enforcement guidance addressing unlawful workplace harassment under federal anti-discrimination laws enforced by the agency. The EEOC essentially rejects the HWB requirement that targets of workplace bullying establish “proof of health harm by licensed health or mental health professionals.”
The EEOC’s proposed guidance states that “actionable harassment can be established in the absence of psychological injury, though evidence of psychological harm from the harassment may be relevant to demonstrating a hostile work environment.” Furthermore, the proposed guidance states the harassing conduct “need not harm the complainant’s work performance” provided the evidence establishes that the harassment was sufficiently severe or pervasive to create a hostile work environment. The EEOC standard reflects long-standing U.S. law established in decisions by the U.S. Supreme Court and federal appeals courts. Continue reading “EEOC: Proof of Psychological Harm Should Not be Required to Show Workplace Harassment”
How does a discrimination victim get evidence of discrimination when his or her case is summarily dismissed without a hearing?
This was the issue in a case before the EEOC where a Maintenance Mechanic filed a complaint against the U.S. Postal Service in Pontiac, Michigan that alleged race (white), sex (male) and age discrimination (age 59). The EEOC upheld the dismissal of the case by an Administrative Law Judge (ALJ) without a hearing.
The mechanic said he was rated ineligible for promotion following a pair of interviews by two three-member panels on July 18, 2012. (At least two panelists served on both panels.)
According to the EEOC:
“When asked by the investigator why he believed that the panels took his race, sex, and age into account when interviewing him, Complainant responded with generalized assertions, such as “I was told that all white males were passed over,” “most of the women passed but none of the men,” and “all employees that passed were younger than me.”
The EEOC ruled the mechanic failed to provide evidence “of any of the indicators of pretext described above. He has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by the four panelists or which call their veracity into question.”
Fox News has gone from being the stolid and leading voice of conservatism in the United States to a network wracked with turmoil.
This week, it was announced that Fox is losing it’s leading on-air female personality, Megyn Kelly, 46, who is moving to NBC. Her 9 p.m. show, “Kelly File,” was the second-highest rated in cable news. Kelly reportedly eschewed an offer from Fox for more than $20 million per year to extend her contract and stay.
Fox’s turmoil began last Fall when its parent company, 21st Century Fox, paid $20 million to former Fox News anchor Gretchen Carlson to settle a sexual harassment suit filed against Roger Ailes, 76, who led the Fox News network for 20 years. Since then, more than 20 former and current female employees at Fox News, including Kelly, came forward to complain about sexual harassment by Ailes dating back to the 1960s.
Whether or not sexual harassment spurred Kelly’s departure, it played a role in destabilizing the network and made Fox appear vulnerable to other networks in search of top talent.
Clearly, 21st Century Fox was the major loser in this debacle.