As I was perusing a recently-released volume of the Equal Employment Opportunity Commission’s quarterly Digest of EEO Law (as I am sadly wont to do – really, I need some new hobbies!), I came across an interesting article, “An Overview of Common Remedies Available in Disparate Treatment Claims of Discrimination.” (Of particular note, while the Digest, as well as the article, covers only federal sector employees, we’d expect the EEOC to take the same position with regard to private sector employees.) The article sets forth the types of remedies sought by the EEOC when it finds that an federal employee or applicant has been subjected to disparate treatment discrimination (meaning that they have been individually targeted). Although the majority of the list is rather routine, it does highlight some rather interesting remedies sought by the EEOC, of which employers should be aware. Continue Reading The EEOC’s Approach to Remedies for Discrimination

Ok, I’ve been practicing law for decades, but there are still things that surprise me. And yesterday I learned something about the Maryland Code – that it actually doesn’t include all the laws! Wait – WHAT?!!!!

Now, I’ve always understood a state’s Code (also known by other names in other states, such as the Statutes or Revised Statutes or General Statutes) to be the official compilation of all the laws in the state. Each year in Maryland, the (majority Democratic) General Assembly passes legislation that is either signed by the (Republican) Governor or allowed to become law without his signature. (Sometimes he vetoes too, but his vetoes often get overridden by an aggressive General Assembly, so the bills still become law). Shortly thereafter, there’s a new version of the Code with the new laws placed into the appropriate section of the Code. Continue Reading Laws That Aren’t In the State Code?

Years ago, I wrote a blog post, “Two or More Genders? Gender Identity and the EEO-1 Form,” in which I discussed what employers should do when an employee refuses to identify as either male or female for purposes of EEO reporting. At that time, I spoke with the Office of Federal Contract Compliance Programs about their approach to this issue (which was to assign a sex based on visual identification), but was never able to get the Equal Employment Opportunity Commission to respond to me, despite multiple phone calls and emails. Well, now, the EEOC has offered some guidance on a related issue – reporting non-binary employees (those who do not identify as either male or female) on the EEO-1 Component 2 report. Continue Reading Non-binary Employees and the EEO-1 Report

In an ironic twist, a manager’s alleged attempt to protect an employee from racism resulted in a discrimination claim by that employee.

In Ikome v. CSRA, LLC, the employee hailed from Cameroon and had very dark skin. He helped his employer, an information technology services company, win a contract in North Carolina with the Environmental Protection Agency and became project manager on the contract. Within weeks, however, he was replaced as project manager by a lighter-skinned African-American coworker. In his lawsuit for color and national origin discrimination, he alleges that his manager told him that people in North Carolina are “rednecks” (The manager denied using the term, but the employee’s allegations are assumed to be true at this point in the litigation, before it goes to a jury). The employee interpreted this to mean that rednecks are racist, and a lighter-skinned person would be more acceptable to them. Continue Reading Attempt to Protect the Employee from Racism Leads to Discrimination Claim!

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The National Labor Relations Board has now addressed the use of mandatory arbitration agreements following the U.S. Supreme Court’s 2018 decision in Epic Systems v. Lewis, which upheld the enforceability of arbitration agreements containing waivers of the right to bring class or collective actions over employment-related disputes, rejecting the NLRB’s then-position that such waivers violate the National Labor Relations Act (NLRA), as discussed in our prior E-lert. Continue Reading NLRB Expands Scope of Mandatory Arbitration Agreements

Hey baseball fans, as well as all you casual observers of the sport.  If you’re like me, you’ve noticed the huge spike in home runs (Commissioner Manfred says the balls are not juiced), some of the unexpected blockbuster trades just before last week’s trade deadline, and the emergence of young second generation stars like Vladimir Guerrero Jr. and Fernando Tatis Jr.  But there’s another significant development that you may have overlooked.  I know I was asleep at the switch and did not see the news over the winter about the renaming of the Disabled List or DL, as it’s been called for over 100 years.  Truth be told, as an employment and labor lawyer, I’ve always wondered about that term.  When a player went on that list with a hamstring pull or a sprained ankle, was I to assume he was really disabled?  Especially as that term is defined under the Americans with Disabilities Act?  Of course not. Even though the ADA can sometimes be expanded to include even transient conditions, a player with a pulled hammy is not disabled. Continue Reading Why Is Giancarlo Stanton on the Injured List, not the Disabled List?

In May of 2013, some Walmart employees boarded buses bound for Bentonville, Arkansas to attend the Company’s annual shareholders meeting. The buses formed a caravan, picking up employees at Walmart locations on the way. The employees handed strike letters to their managers before departing.

The caravan was dubbed the “Ride for Respect.” It was organized by OUR Walmart, a group formed with the assistance of the United Food and Commercial Worker Union (UFCW). Once in Bentonville, the employees held demonstrations, attended the shareholder meeting, and engaged in other activities to publicize their grievances. Continue Reading Ride for Respect: Intermittent “Hit and Run” Strike or Presumptively Protected Work Stoppage?

Last week, I attended a training seminar hosted by the EEOC.  Sharon Rennart, a Senior Attorney Advisor at the EEOC, presented in part on how the ADA may apply to employees with Opioid Use Disorder (“OUD”).  OUD may be diagnosed where there is a problematic pattern of use leading to clinically significant impairment or distress, manifested over a 12-month period by the presence of at least two out of eleven elements, including: Continue Reading What the EEOC Thinks About Opioid Use and the ADA

As promised, today we give you and third and final installment of our three-part series addressing the new opinion letters issued by the U.S. Department of Labor on July 1, 2019.  To read about the other letters issued by the DOL, check out this blog post and this blog post.  The final opinion letter, FLSA2019-9, addresses permissible rounding practices for calculating the number of hours worked by an employee. Continue Reading U.S. Department of Labor Issues New Opinion Letters: Part Three – Rounding Hours