onion-1328465Here’s a seasonally appropriate horror story for employers.

As employers know (I hope), Title VII prohibits discrimination against employees on the basis of religion. That means that employees cannot be subjected to adverse employment actions based on their own religious beliefs, but also because they refuse to submit to an employer’s religious beliefs. But what is “religion” within the meaning of Title VII? The answer to that is incredibly confusing and very broad – encompassing all sorts of non-traditional belief and morality systems. The Supreme Court has said that determining what is a religious belief “is more often than not a difficult and delicate task.” The Equal Employment Opportunity Commission, in its regulations, has provided an expansive definition of religion that includes:

moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. . . . The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.

The effect of this incredibly vague and broad definition means that employers may not always recognize when they’re dealing with a situation involving religion. A striking (perhaps even terrifying) example of this can be found in the recent federal court decision, EEOC v. United Health Programs of America, Inc. Continue Reading Court Finds “Onionhead” Conflict Resolution Program = Religion

Last week, a federal district court in Nevada extended Title VII protections to a transgender employee with respect to bathroom usage by holding that discrimination “because of sex” under Title VII includersghs discrimination based on a person’s gender.

The Plaintiff (Roberts) is a transgender police officer with the Clark County School District (the Department) who identifies as a male officer.  In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man.  He also started using the men’s bathroom at work.  Co-workers in turn complained that a woman was using the men’s bathroom.  A meeting was called with Roberts, and his supervisors told him that he could not use the men’s restrooms and that he should only use the gender-neutral restrooms to “avoid any future complaints.”  When Roberts complained about the bathroom ban, he was informed that he would not be allowed to use the men’s restroom until he could provide official documentation of a name and sex change. Continue Reading Nevada Federal Court Finds that Prohibitions on Transgender Employee’s Bathroom Usage is Discrimination Because of Sex under Title VII

ml_rm_iliw_tm_4cc_d_eAs I mentioned in a recent post, “SEIU Fights Its Own Unionization,” the Service Employees International Union has been behind the push at the National Labor Relations Board to extend joint employer status to franchisors, like McDonald’s (meaning that McDonald’s would be deemed an employer of its franchisees’ employees). And now, it is further extending this push – to the Equal Employment Opportunity Commission. On October 5, 2016, (as first reported by The Guardian) Fight for $15 (which is backed and funded by SEIU) announced that it had helped 15 McDonald’s employees (who are also Fight for $15 activists, unsurprisingly) file charges with the EEOC, claiming that they had been sexually harassed by their employers. Apparently only one of the charges was filed against a corporate McDonald’s store – the rest were filed jointly against franchisee stores and McDonald’s Corporation. Continue Reading SEIU Expands Joint Employment Fight to the EEOC

question-markFollowing my post last week on the EEOC’s latest pronouncement on independent contractor status, it seemed appropriate to follow up with the National Labor Relations Board’s most recent activity on this issue. The Board’s Office of the General Counsel (OGC) released an advice memorandum in which it first reviews the Board’s test for independent contractor status (which is, of course, different than that of the EEOC) and then goes on to assert that the misclassification of employees as independent contractors is a violation of the National Labor Relations Act.  (Curiously, it appears that the OGC actually issued the memo in a pending case, Pacific 9 Transportation Inc., back on December 18, 2015, but it only recently released it to the public on August 26, 2016. I suppose that the Board realized that this is an issue of significant interest to employers!) Continue Reading NLRB on Independent Contractor Status

question-markSo I was trolling through the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law (because, yes, I am that much of an employment law nerd), and came across an article that I thought was of particular interest: “Stating a Claim in the EEO Process: Determining One’s Status as Either an Agency Employee or Independent Contractor.” Now this article is supposed to apply only to the federal government agencies as the employer – but I think the principles set forth in it provide guidance to what the EEOC’s position would be for private employers as well. (This is important because employees are covered by federal anti-discrimination and other employment laws; independent contractors are not). Continue Reading The EEOC on Independent Contractor Status

downloadAs I’ve made clear in past posts, I am increasingly frustrated with the current National Labor Relations Board’s clearly pro-union, anti-employer approach. I find many of their decisions to have little or no relationship to common sense or logic. So I found a concurring opinion by Judge Patricia Millett in the recent case of Consolidated Communications, Inc. v. National Labor Relations Board to be of particular interest, as she expresses her “substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.” Judge Millet goes on to say, “These decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.” (!!!!) Continue Reading Why Does the NLRB Tolerate Racist and Sexist Conduct?

no unionsOne of my partners, Liz Torphy-Donzella, recently sent me an opinion piece from the Wall Street Journal that amused me so much, I had to share it. Entitled “Big Labor’s McDonald’s Defense,” the article remarks on the fact that the Service Employees International Union, one of the most prominent unions in the United States, is fighting efforts to unionize it! (Whaaaat?!!) But wait, there’s more – although the SEIU funds the “Fight for $15” campaign, which seeks to increase the hourly minimum wage rate to $15, it pays its “Fight for $15” staff less than $15 an hour!!! (Let’s pause for a moment to let that sink in, shall we?)

And irony piles upon irony. As you may know, a major target of the “Fight for $15” is McDonalds. On the “Fight for $15” About Us webpage, McDonald’s is the only “low-wage” employer mentioned by name. And according to the Wall Street Journal article, “SEIU claims that it should be able to organize all McDonald’s workers everywhere across the country as a single bargaining unit.” Continue Reading SEIU Fights Its Own Unionization

As many of you may have heard and as we discussed in our August E-Update, last week in The Trustemortar-board-2-1551255es of Columbia University in the City of New York, the National Labor Relations Board reversed a twelve-year precedent in holding that student teaching and research assistants at private universities are statutory employees under the National Labor Relations Act and can therefore unionize.

There has been a flurry of employee-friendly decisions issued by the Labor Board in recent weeks to coincide with – not surprisingly – the conclusion of Member Hirozawa’s three-year term on August 27, 2016. This case, however, irks me more than most.  The Majority stated that preventing graduate assistants the right to unionize “deprived an entire category of workers of the protections of the [NLRA] without a convincing jurisdiction” because, according to the Majority, “even when such an economic component may seem comparatively slight, relative to other aspects of the relationship between worker and employer, the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the Act.” And yet, in 2004, the Labor Board reached a contrary conclusion – that graduate assistants are not statutory employees who have the right to unionize, because the Labor Board acknowledged that graduate assistants have a primarily academic, not economic, relationship with their universities.  So what’s changed? That is a rhetorical question.  Obviously, nothing has changed, but the make-up of the Labor Board and its current desire to expand the reach of the Act. Continue Reading The NLRB Changes Its Mind Again

shadow-dollar-sign-1239535I enjoy those cases where those (sometimes uppity) government agencies get a taste of their own medicine. I previously told you about the EEOC being sued for failing to accommodate its own employee’s disability, for example. Here’s another one – the U.S. Department of Labor, which is the federal agency that enforces the Fair Labor Standards Act (FLSA), including its overtime provisions, just agreed to pay $7 MILLION to settle a claim that it failed to pay overtime to its own employees!!! Continue Reading DOL Settles Its Own Multi-Million Dollar Overtime Suit

FLSA Poster image

The Department of Labor has issued revised versions of its “Employee Rights Under the Fair Labor Standards Act – Federal Minimum Wage” and “Employee Rights – Employee Polygraph Protection Act” posters, which all covered employers are required to post. Employers must post the revised versions as of August 1, 2016. Continue Reading Revised Mandatory Fair Labor Standards Act and Employee Polygraph Protection Act Posters Effective August 1, 2016