Posts Tagged ‘EEOC’

Labor and employment roundup

Labor and employment roundup

  • Operator of Jimmy John’s sandwich shops asked low-level employees to sign a noncompete. What would be the point? [Bainbridge, Hyman]
  • GOP Congress might take aim at a range of current union and NLRB practices including political dues spending without member opt-out [Sean Higgins, Washington Examiner]
  • Reminder: turning union activity into a protected category under the Civil Rights Act is one of the very worst ideas around [George Leef, earlier on Ellison-Lewis proposal here and here]
  • Scrutiny of occupational licensure intensifies [Ira Stoll]
  • “House Committee Examines EEOC Transparency and Accountability Legislation” [On Labor]
  • “The Dawn of ‘Micro-Unions': A Scary Proposition for Employers” [John G. Kruchko, Kevin B. McCoy, Ford Harrison, earlier here, etc.]
  • Immigrant status and national origin discrimination: “DOJ Brings Issue of Hiring Documentation to Forefront” [Daniel Schwartz]

Jury finds unlawful bias against one-armed security guard

“MIAMI – In a verdict in favor of U.S. Equal Employment Opportunity Commission (EEOC), a jury has found that a licensed security guard with only one arm was unlawfully discriminated against based on his limb loss when his employer removed him from his post following a customer complaint about his disability, the federal agency announced today.” The agency said it was well-settled under federal anti-discrimination law that employers cannot act on the basis of discriminatory consumer preferences. [EEOC press release]

EEOC to court: never mind whether we use background checks too

Sean Higgins, Washington Examiner:

The Equal Employment Opportunity Commission told a district court that it should not have to reveal its own policies regarding criminal background checks because that information is not relevant to the discrimination cases it files against private companies.

Background from Jon Hyman, Ohio Employer’s Law Blog:

This argument [advanced by automaker BMW, whose policies the EEOC is challenging] is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:

If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.

Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.

And a Sept. 17 House subcommittee hearing on EEOC adventurism, reported at Employee Screen, includes this on possible reforms:

Proposed legislation discussed at the hearing included H.R. 4959, the “EEOC Transparency and Accountability Act”, which would require the EEOC to maintain up-to-date information on its website regarding charges and actions brought by the EEOC; H.R. 5422, “Litigation Oversight Act of 2014”, which would require the EEOC to approve by a majority vote to begin or intervene in litigation involving multiple plaintiffs or systemic discrimination; and H.R. 5423, “Certainty in Enforcement Act of 2014”, which would protect employers from EEOC action in cases that specifically involve criminal background checks required by state or local law. …

[The subcommittee chair, Michigan Republican Rep. Tim] Walberg noted that 19 stakeholders representing a wide variety of constituents signed a letter supporting all three bills, which included the National Association of Professional Background Screeners (NAPBS), SHRM, and other professional, healthcare, retail and food service organizations.

Labor and employment roundup

Excessive zeal for bus passengers’ safety discouraged

The Equal Employment Opportunity Commission has extracted an $85,000 settlement and other relief from Atchison Transportation Services, Inc., of South Carolina on charges that one of its managers terminated two motorcoach drivers who were 75 and 76 years old respectively. As with disability discrimination, federal law on age discrimination generally requires that termination be based only on cause-based individualized determinations of unfitness; in practice, an employer may be well advised to premise such determinations only on evidence that would stand up under legal scrutiny as objective, such as, for example, a driver’s loss of license or involvement in an accident. [EEOC press release, h/t Roger Clegg]

Three more courtroom defeats for EEOC

The federal Equal Employment Opportunity Commission (EEOC) is used to getting its way since most employers would rather settle rather than face the expense and publicity risk of litigating against it. But sometimes, as I note in my new post at Cato, judges get a close look at just how weak the commission’s position is. And then…

More from Bob in comments: “Here’s the problem… major employers have made changes to their severance agreements to comport with the EEOC’s position in CVS. They EEOC has lost the case and still gotten the change they wanted. That’s all they care about. Much like the new Pregnancy Discrimination Act guidance which turns prior guidance and case law on its head. Major employers have already reacted in order to avoid costly litigation though the chances of a neutral court agreeing with the guidance are pretty low.”

Labor and employment roundup

  • Court dismisses case against CVS in which EEOC had sought to redefine standard severance confidentiality provisions as unlawful retaliation [Jon Hyman, Daniel Schwartz, earlier here and here]
  • Temp-agency jobs brought in-house: “The NLRB Forces CNN to Rehire Workers Terminated Over a Decade Ago” [Alex Bolt, Workplace Choice]
  • “NLRB may encourage your employees to file OSHA, FLSA claims too” [Eric B. Meyer, Employer Handbook] “You’re NOT Paranoid — The Agencies ARE Ganging Up” [Dabney Ware, Foley & Lardner]
  • “The U.S. Department of Labor claims it can’t come up with the cash to fully reimburse Oregon farmers for the $220,000 it unlawfully coerced from them.” [Capital Press, Oregon] House committee flays department over use of “hot goods” orders to arm-twist growers of perishables on labor issues [committee, CQ via Dunn Carney, The Grower]
  • Sauce for gander: if left can push labor ordinances at county and municipal level, supporters of right-to-work laws might do the same thing [James Sherk and Andrew Kloster, Heritage]
  • “I wonder how large the overlap is between people who want Ray Rice banished from NFL forever and those who want to ‘ban the box'” — @Toirtap
  • Jacob Huebert on the Harris v. Quinn decision [new edition of Cato Supreme Court Review]

Free speech roundup

  • Lawprofs vs. speech: new book by Prof. Danielle Citron (U. of Maryland) urges stepped-up legal penalties for online expression as “harassment” [“Hate Crimes in Cyberspace,” Harvard University Press]
  • European high court’s Google-unindexing folly: “The truth is, you’ve never had the ‘right to be forgotten'” [Jack Shafer; example, WSJ]
  • Feds’ National Science Foundation spending nearly $1 million to create online database monitoring “suspicious memes”, “false and misleading ideas” on Twitter [Free Beacon]
  • Flap over fantasy-art DMCA takedown demand seems to be over, but we can still enjoy Ken’s take [Popehat] More Popehat highlights: 7th Circuit affirms sanctions vs. Team Prenda of copyright troll fame; multi-level marketer threatens blogger; controversial doctor resorts “to threats and legal analysis that are at least as innovative as his cancer theories“; “In 2014, minimal legal competence requires an attorney to anticipate and understand the Streisand Effect“;
  • When occupational licensure laws stifle speech [Dana Berliner (IJ), NYT Room for Debate]
  • Inside a deposition in the Shirley Sherrod defamation lawsuit [J. Christian Adams, earlier here, etc.] Write if you dare about Michael Mann, just hope he doesn’t sue you over it [Trevor Burrus, earlier here, etc.]
  • U.S. Civil Rights Commission member Michael Yaki argues for campus speech codes [Hans Bader, Eugene Volokh] Per EEOC: “Illegal ‘hostile work environment’ harassment for co-workers to wear Confederate flag T-shirts” [Volokh; also]

EEOC roundup

  • “U.S. Chamber of Commerce challenges EEOC over its ‘unreasonable’ enforcement tactics” [Jon Hyman, more on House oversight hearing, earlier on court rebuffs to agency and more]
  • On summary judgment: “EEOC case alleging ADA violations against Womble Carlyle nixed by federal judge” [ABA Journal]
  • By 3-2 commissioner vote, EEOC adopts detailed, restrictive new guidance on pregnancy discrimination [Eric Meyer, Hyman]
  • Commission thinks its investigation, mediation and other pre-litigation procedures should be immune from court oversight and public transparency [Merrily Archer]
  • Survey: “Are Employers Adapting to EEOC Guidance on Employment Background Checks?” [Nick Fishman, Employee Screen, related earlier]
  • Commission sues Wisconsin Plastics, Inc. for terminating employees with low-rated English skills as part of English on the job policy [Scott Greenfield, EEOC, my two cents way back]
  • “Is the EEOC the new NLRB?” [John Holmquist, Michigan Employment Law Connection]