Earle K. Shawe, the founder of our firm, passed away on June 30, 2017, at age 104. Earle was present during the infancy of the modern labor law movement in the 1930s, and left his mark throughout the subsequent decades of his practice – truly a giant in the field of labor law.

Earle was a graduate of the University of Virginia Law School – an institution to which he remained devoted throughout his life. In 1996, he endowed the Earle K. Shawe Professorship in Employment Law at the school. Continue Reading Earle K. Shawe – The Passing of a Labor Law Pioneer

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

Imagine this: Your cobook 2mpany has policies in your employee handbook determined to be unlawful by the NLRB.  Then, you and the NLRB engage in a line-by-line revision of the policies to ensure compliance with Board law and thereafter you issue a new handbook, with policies approved by the Board, to your employees.  Everything is ok, right? Wrong!  This is exactly what occurred in Boch Imports, Inc. v. National Labor Relations Board.  In affirming the NLRB, the First Circuit determined that the Employer failed to properly repudiate its prior, unlawful handbook policies even though it revised those policies in collaboration with the NLRB Regional Office. Continue Reading Must Employers Repudiate Unlawful Handbook Policies?

2000px-Venus_symbol.svgOn Tuesday (June 14, 2016) of this week, the White House Council on Women and Girls together with the Department of State, Department of Labor, the Aspen Institute, and Civic Nation held the Summit on the United State of Women.   On that same day, the Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule updating the OFCCP’s sex discrimination guidelines.  According to the OFCCP’s Fact Sheet, the revisions were to bring the guidelines, which are from what the OFCCP called the “Mad Men” era (1970’s), up to date.

The OFCCP published a Notice of Proposed Rulemaking on January 30, 2015 and received 553 comments on the proposed rule.   The Final Rule will take effect on August 15, 2016. Continue Reading OFCCP Issues Final Rule Updating Sex Discrimination Guidelines

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.

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

The National Labor Relations Board (NLRB) continues on its journey to try to take over the world. On January 13, 2016, the Board issued a Notice and Invitation to File Briefs in Columbia University, a case that involves Graduate Workers of Columbia-GWU, UAW (the Petitioner), who seeks to represent a unit of students who assist faculty with teaching, research, and other miscellaneous duties.

Specifically, the Board asked the parties and amici to address, among other issues, whether the Board should modify or overrule its 2004 decision in Brown University, in which it held that graduate student assistants who perform teaching services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the National Labor Relations Act (Act). Specifically, the Board found the teaching activities are so closely related to the students’ degree requirements that the students and the University are engaged in more of an educational relationship, rather than an economic one. That meant the Act did not cover those graduate student assistants, and they could not unionize. Notably, Brown University was a reversal of the NLRB’s position in its 2000 New York University case, in which it had held that graduate assistants are employees.  (Also worth noting, New York University was decided by in a Democratic administration, and Brown University in a Republican one). Continue Reading NLRB Overreach: Grad Students as Employees?

Transgender rights have been receiving a considerable amount of media attention this week, most of which has been sparked by the magazine Vanity Fair featuring a cover story about “Keeping up with the Kardashians” star and former Olympian Bruce Jenner as a trans woman (Caitlyn Jenner). On the same day that the cover story was released, the Occupational Safety and Health Administration (OSHA) published a Best Practices Guide to Restroom Access for Transgender Workers.

The OSHA guide estimates that 700,000 adults in the United States are transgender. According to the website for GLAAD (Gay and Lesbian Alliance Against Defamation), transgender is an “umbrella term for people whose gender identity and/or gender expression differs from what is typically associated with the sex they were assigned at birth.” The OSHA guide states that “many transgender people transition to live their everyday life as the gender they identify with.” Transitioning is a different process for everyone and can include social changes (new first name), medical steps, and changing identification documents.

A month ago, OSHA issued a news release stating that it had entered into an alliance with the National Center for Transgender Equality (NCTE) to provide NCTE affiliates and others with information and resources to help foster “safer and more healthful American workplaces.” The restroom guide was developed at the request of NCTE.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. Under OSHA’s Sanitation standard (1910.141), employers under the agency’s jurisdiction are required to provide employees with sanitary and available facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available.

Addressing why restroom access is a health and safety matter, the guide states that when employers restrict employees to use only restrooms that are not consistent with their gender identity or by requiring them to use gender-neutral or other specific restrooms, employees may feel singled out or fear for their physical safety. In some cases, such restrictions can result in employees avoiding using restrooms entirely while at work, which according to the guide, “can lead to potentially serious physical injury or illness.”

The guide establishes the following best practices:

  • Employees should be permitted to use facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.
  • Employers can provide additional restroom options, which employees may choose, but are not required to use. These include: (1) single-occupancy gender-neutral (unisex) facilities; and (2) use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
  • Employees are not required to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.
  • Employers cannot require a transgendered employee to use a segregated facility apart from other employees because of their gender identity or transgender status.

OSHA makes it clear in its publication that the guide is not a standard or a regulation and that it creates no new legal obligations on employers. Notwithstanding OSHA’s disclaimer, the Equal Employment Opportunity Commission has taken the position that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment. And in Maryland, the Fairness for All Marylanders Act of 2014, which added gender identity as a protected class to Maryland’s laws against discrimination in employment, became effective in October of 2014. There are other state and local laws regarding restroom access as well.

Takeaway:  While the guide is not a standard or a regulation, employers should consider employing OSHA’s best practices as a model for their workplace.  This is especially true for employers in states (such as Maryland) or localities that have made gender identity a protected class.

As we said yesterday, this case is outside our labor and employment law area of practice, but I was really so entertained by it that I couldn’t let it go just yet.  So, as inspired by Justice Elena Kagan and with apologies to Dr. Seuss:

The fish on the ship were just too small,

So the federal agent ordered they all

Be kept until the ship reached port.

But the captain threw them overboard.

This put the feds into a state –

“No evidence! We can’t investigate!”

They said, “This is a violation of SOX!”*

And they put the captain in a box

For thirty days. “Not fair!” he cried.

An appeal to the 11th Circuit he tried,

But his plea was rejected out of hand.

He took this to the top court in the land.

The Supreme Court tossed his conviction

By looking at a definition:

A fish is not a “tangible object”

That SOX was intended to protect –

Instead, it’s records and documents.

But the dissent cited as precedent

One Fish Two Fish Red Fish Blue Fish!

A fish not an object? Simply foolish.

 

*The Sarbanes-Oxley Act

OK, I’m finished.  Next time, we’ll be back to labor and employment matters – I promise!

We are delighted to announce that our firm and SEVEN individual attorneys have been recognized by Super Lawyers©, which is a national rating service of outstanding lawyers in multiple practice areas. Shawe Rosenthal was named the top mid-sized employment firm in Maryland in Super Lawyers’ recently-published 2014 Business Edition, which also recognized our 2014 attorney honorees in the areas of Employment & Labor and Employment Litigation: Defense. Attorneys are selected for recognition based on independent research, peer nominations, and peer evaluations. The honorees are deemed to be in the top 5% of practitioners in the state. Our 2014 honorees in the area of Employment & Labor are:

In addition, two of our attorneys were recognized in the area of Employment Litigation: Defense:

Furthermore, Super Lawyers has just issued its 2015 list of honorees. Fiona W. Ong joins the list above of our attorneys recognized by Super Lawyers, in the area of Employment & Labor.

 

It’s fun to be able to toot your own horn. Eight – yes, EIGHT – of our attorneys have AGAIN been listed in The Best Lawyers in America© 2015, the oldest and most-respected peer review publication in the legal field. And our own Gary L. Simpler has been named Best Lawyers’ 2015 Labor Law -Management “Lawyer of the Year” in Baltimore!

Selection to The Best Lawyers in America  is based on an extensive peer-review survey of more than five and half million top attorneys. Our honorees this year are:

Of particular note, Steve has been recognized since 1983, the year that the first Best Lawyers list was created.