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The Labor & Employment Report

The EEOC’s Fact Sheet on Transgender Access to Bathrooms

Posted in Employment Discrimination, HR Compliance, Legislative Developments, Workplace Trends

male-709687_640This week, the EEOC issued a Fact Sheet regarding Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964, which the EEOC has stated prohibits discrimination on the basis of gender identity.  Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.

In siding with other federal government agencies that have released similar guidance (OSHA, the Office of Personnel Management, and the Department of Education), the EEOC stated that an employer should allow an employee to use the bathroom that corresponds with the employee’s gender identity. Continue Reading

NLRB’s Quickie Election Rule Turns One

Posted in Unions

“I’ve known Bob Rumson for years and I’ve been operating under the assumption that the reason Bob devotes so much time to shouting at the rain was that he simply didn’t get it.  Well, I was wrong.  Bob’s problem isn’t that he doesn’t get it.  Bob’s problem is that he can’t sell it.”

President Andrew Shepherd (played by Michael Douglas) in The American President.

The NLRB’s Quickie Election Rule just celebrated its first anniversary and you know what?  The union election win rate remained the same–about 65%.  The total number of union petitions filed to hold elections jumped all the way from 2,141 in the year before the new Rule up to 2,144 last year– a “whopping” gain of 3 elections.   NLRB statistics do confirm that the median time from the filing a petition to the election decreased substantially, from 38 days down to 24 days. Continue Reading

Lying Employee Faces Prison Time

Posted in Laws & Regulations, Litigation, Wage & Hour

As you may know, I enjoy the cases where the tables are turned – like my colleague Jason Usher’s post on “Union Violates Employee’s Labor Rights” or my blog on “EEOC Sued For Failing to Accommodate Employee’s Disability.” Here’s another.

From time to time, my clients have had to deal with lying employees. They lie in an investigation, they lie to the federal agencies like the Equal Employment Opportunity Commission or the Department of Labor, they lie in depositions and at trial. And they’re good at it – it’s often hard to prove that they are lying, which is incredibly frustrating to my clients and to m Continue Reading

“New” Equal Pay Bill for Maryland

Posted in Employment Discrimination, HR Compliance, Labor Law & NLRB, Laws & Regulations, Legislative Developments, Wage & Hour, Workplace Trends

The Maryland 2016 legislative session endedshadow-dollar-sign-1239535 on Monday.  A friend of mine mentioned that she heard the General Assembly passed an equal pay law in Maryland. But guess what? There is already an Equal Pay for Equal Work law in Maryland – it’s been in place for almost 25 years!! The current law already prohibits employers from discriminating against employees of one sex who work in the “same establishment” and perform work of comparable character or work in the same operation, in the same business, or of the same type by paying a lesser wage than an employee of another sex.

The equal pay bill mentioned, House Bill 1003, expands the prohibitions on discriminatory pay practices. It also adds an entirely new pay transparency provision. Specifically: Continue Reading

Bet You Didn’t Know that Your Interior Decorator is a Persuader

Posted in Uncategorized

So, as I said in my last post, we have read this new persuader rule front to back and back to front. Last week, we told you why we are suing the government: the new interpretation is unfair and unlawful. This week, because the DOL went completely off the reservation, I thought we should poke a little fun at it for some of its ridiculous positions, so here goes.

DOL says it is interpreting the “advice” exemption, but it completely reconfigures the definition of persuasive activity. The statute refers to persuasive activity as activity with the direct or indirect object to persuade.  Somehow, DOL tangled itself in knots over this one. It now thinks that direct persuasive activity means the persuader has direct contact with employees and indirect persuasive activity means you do not have direct contact with employees. Do you see anything about that in the statute? Neither do I. That’s because it’s not there. The terms “direct” and “indirect” modify the objective, and have nothing to do with contact with employees. Obviously, you need to have contact with employees to directly or indirectly persuade them regarding their rights.

DOL’s rule conflates a principle put in place by the former rule, that persuaders need only report direct contact with employees, with the language in the statute, that activity with the direct or indirect object to persuade must be reported. In so doing, the DOL’s position is that all advice, which is expressly exempted from the reporting requirement, is now considered indirect persuasive activity that must be reported.

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Shawe Rosenthal and Worklaw Just Sued the DOL

Posted in Labor Law & NLRB, Laws & Regulations, Litigation, Unions

Although the government is often a thorn in the side of many of our clients, it is not every day that we decide to sue the government. Today was a different story.

On March 31, 2016, Shawe Rosenthal, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which we are a member, filed suit against the U.S. Department of Labor to block the Department’s new interpretation of the persuader rule. A copy of the complaint can be viewed here.

We discussed the new persuader rule in a previous post. To reiterate briefly, a federal law called the Labor-Management Reporting and Disclosure Act requires people who assist employers to fend off union organizing drives to file reports with the Department of Labor. The law contains an “advice exemption” under which employers and their attorneys do not have to report confidential information protected by the attorney-client relationship.  For decades, the Department has correctly held that the “advice exemption” applies to lawyers who advise clients concerning union organizing drives, as long as the lawyers do not communicate directly with employees.  Under the new interpretation, effective July 1, 2016, the Department has substantially narrowed the advice exemption.  (Actually, the Department would say it substantially narrowed the exemption.  I would say the Department completely eliminated it.) Continue Reading

DOL Issues Persuader Rule

Posted in Labor Law & NLRB, Laws & Regulations, Unions

On March 23, 2016, the Department of Labor released the long-pending revisions to the “persuader rule,” drastically expanding employers’ disclosure requirements regarding their use of union avoidance consultants, including attorneys as well as HR consultants and media specialists. Our firm, on behalf of Worklaw, an international management-side network of labor and employment firms, will be filing suit to block implementation of the rule.

Under the “persuader rule” in the Labor-Management Reporting Disclosure Act of 1959 (LMRDA), employers are required to file reports and disclose expenditures to the DOL each time they engage a consultant to persuade employees regarding employees’ rights to organize. However, the LMRDA provides an “advice exception,” which had been interpreted for over 50 years to exclude an employer’s discussions with its labor relations consultants – including legal counsel – regarding opposition to a union organizing campaign, as long as the consultants had no direct contact with employees.

Under the new rule, however, the scope of an employer’s reporting obligations under the LMRDA has been substantially expanded, and will include a broad range of activities beyond “direct contact” provided by labor relations consultants – including attorneys. The intent of this one-sided rule is to discourage employers from retaining such consultants, and thereby promote unionization. Continue Reading

Pet Bereavement Leave?

Posted in Employee Benefits, Employee Leave (FMLA and ADA), HR Compliance, Workplace Trends

RookFollowing up on my last post about menstrual leave, I heard about another odd leave being offered by a few employers – pet bereavement leave (I also saw a reference to “peternity” leave). Unlike menstrual leave, this is not legally required in any country. But apparently it’s not entirely uncommon among those dog-crazy folks in the U.K. In the U.S., however, there are only a few companies that formally offer this type of leave, as a recent CBS Miami news story notes. In particular, Kimpton Hotels and Restaurants allows managers to grant up to three days off for grieving pet parents, while pet insurance company Trupanion grants one day of bereavement leave.

Why is the leave needed? Sandra Grossman, a pet loss counselor, told the Wall Street Journal in an article on “The Challenge of Grieving for a Pet at Work,” most grieving pet owners need up to a week away from work to get over the initial shock. In addition, a survey referenced in that article noted that nearly 1 in 3 people feel grief and sadness for at least 6 months after the pet’s death.

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Menstrual Leave – Really?

Posted in Employee Leave (FMLA and ADA), Employment Discrimination, HR Compliance, Laws & Regulations, Workplace Trends

Last week, I heard about a British company, Coexist, that is planning to develop a “period policy” to provide menstrual leave to its female employees. As a female employment attorney, I’m a strong believer in equal rights for women, but this notion struck me as so very … odd. Initially, I wasn’t quite sure what to make of it, but intuitively it just seemed like a bad idea to me.

So I did a little research, and it turns out that menstrual leave is actually a legal right in certain Asian countries. In 1947, Japan was the first to pass a menstrual leave law. Since then, Indonesia, the Philippines, South Korea and, most recently in 2013, Taiwan, have also enacted such laws. The laws vary as to whether the leave is paid, half-paid, or unpaid, and how much time off may be taken (e.g. as needed each month, X days per month, X days per year). These laws, however, have proven to be controversial, and their effectiveness has been questioned.red-dot

Many argue that the laws perpetuate stereotypes of women as the weaker sex. Some male rights activists (yes, they exist) argue that these laws discriminate against men. One commentator, Tim Worstall at Forbes.com, noted that a new type of paid leave will increase employer costs – and the fact that the paid leave is only available to female employees will likely exacerbate the gender pay gap. Many employers in those countries ignore the laws. And, frankly, it seems that most women are afraid to come forward to ask for menstrual leave, for various reasons – embarrassment, not wanting to burden fellow employees, fear of discrimination or retaliation, etc.

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Political Paraphernalia in the Workplace

Posted in HR Compliance, Labor Law & NLRB, Laws & Regulations, Unions, Workplace Trends

As a follow up to my last post on political discussions in the workplace, I thought it might be helpful to employers to discuss other, material aspects of politics in the workplace – such as campaign posters, flyers, buttons, and clothing.

Given that, as we now know, you can ban (most) political speech in the workplace, most of you will not be surprised that you can ban (most) political paraphernalia in the workplace. There are caveats, of course.donkey-and-elephant

First, you may have a solicitation and distribution policy that would prohibit posters (soliciting political support) in employees’ workspaces, or the distribution of political flyers in working areas. Similarly, your dress code policy may instruct employees that they may not wear clothing with slogans or words (political or otherwise).

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