- Senate Republicans make noises about reining in runaway EEOC [Roger Clegg, Senate minority staff report, Human Resource Executive Online]
- Yes, minimum wage increases hurt many low-skilled workers [NBER via Charles Hughes]
- “Women earn less than men even when they set the pay” [Emma Jacobs, FT, via Tyler Cowen]
- Just a typical fast food worker, except for happening to have a high-powered P.R. firm representing him [Diana Furchtgott-Roth, Economics21]
- Aaargh: “Federal judge wants to bury summary judgment for many reasons, but especially because it harms employment-discrimination plaintiffs” [CL&P]
- “Ideally, someone from Human Resources will join you to meet with the aggrieved employee and inform her that the tree is staying up.” (Well, not up this far into January, but you know.) [Evil Skippy at Work]
- “But”, sic: “Vermont has some of the most progressive wage-and-hour laws in the country, but low-income workers are still struggling.” [Alana Semuels, National Journal]
- Furious over EEOC attack on wellness programs, CEOs threaten to suspend their support for ObamaCare [Reuters] Had it been common knowledge that CEOs covertly support ObamaCare, then? And isn’t the EEOC formally an independent agency not answerable to White House directives?
- If more editors handled situations this way, readers would think better of the press: Annalee Newitz of io9 offers “apology and analysis” for running tendentious, ill-reported article attacking animal-based research;
- Success of personal injury litigation is reshaping nursing home business in some states [WSJ]
- “With the Advent of Mandatory Paid Sick Leave in California, Here are a Few Sick Leave Excuses” [Coyote, related Massachusetts]
- Really, it’s not a shock-scandal that rules for human-subjects research might be written by actual scientists [Zachary Schrag, IRB Blog]
- In combating diseases of poverty, you’d think economic growth would top the list of remedies [Bryan Caplan]
- Judge slices $9 billion punitive Actos award against Takeda and Lilly by 99% [Bloomberg, earlier]
- “Grubergate, the Mini-Series” [Michael Cannon; more from Cannon on Supreme Court’s grant of certiorari in King v. Burwell ObamaCare case]
After receiving a complaint of health-status discrimination from a Royal Caribbean Cruise Lines employee, followed by a response from the company saying that the employee was a foreign national working on a foreign-flagged ship and therefore not subject to EEOC authority, the agency launched a massive fishing expedition:
(1) List all employees who were discharged or whose contracts were not renewed [from August 25, 2009, through the present] due to a medical reason.
(2) For each employee listed in response to request number 1, include the employee’s name, citizenship, employment contract, position title, reason for and date of discharge, a copy of the separation notice and the last known contact information for each individual.
(3) For each employee listed in response to request number 1, include their employment application and related correspondence, any interview notes, the identity of the person who hired the employee, how the employee obtained the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
(4) List all the persons who applied for a position but were not hired within the relevant period due to a medical reason
(5) For each person listed in response to request number 4, include their citizenship, employment application and related correspondence, any interview notes, the identity of the person [who] hired the employee, how the employee learned of the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
The cruise line complied in (massive) part, but not fully, “providing records for employees and applicants who were United States citizens” but not others. The agency took the dispute to court and proceeded to lose at every stage, the Eleventh Circuit being the latest to find its information demands burdensome and irrelevant: “The relevance necessary to support a subpoena for the investigation of an individual charge is relevance to the contested issues that must be decided to resolve the charge, not relevance to issues that may be contested when and if future charges are brought by others.” [Hunton and Williams; Phelps Dunbar]
Meanwhile, the commission has issued its fiscal 2014 performance report; in explaining a drop in resolved complaints, its public statement cites the “lingering effects of sequestration and the government shutdown” but not the marked skepticism that judges repeatedly showed toward EEOC positions through the year.
- I’m quoted dissenting from the seeming ENDA consensus [Caroline Preston, Al Jazeera America; earlier here and here; related, Mark Lee, Washington Blade last year, “ENDA and the Seduction of Symbolic Gestures”]
- EEOC gears up to fight employer wellness programs under ADA [Stephen Miller/SHRM, ABA Journal, John Holmquist/Michigan Employment Law Connection, Robin Shea/Employment and Labor Insider]
- Evidence still points to disemployment effects for low-skilled workers from minimum wage hikes [David Neumark et al NBER working paper via Ira Stoll, related] What’s the right minimum wage? As the NYT correctly perceived in 1987, $0.00. [David Henderson video, Prager]
- “Judge Calls Out NLRB Pro-Union Partisanship” [Labor Pains; document demands levied by agency against Univ. of Pittsburgh Medical Center]
- If you so much as think of declaring me fit for work, my lawyer will make you rue the day [Coyote on employer role in Social Security Disability]
- New Cato research brief, “Labor Market Fluidity and Economic Performance” [Stephen J. Davis and John Haltiwanger]
- Philly councilman wants to reserve city subsidies for unionized hotels [Joel Mathis, Philadelphia mag]
- 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]
“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]
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.
- EEOC investigating claim that personality tests for job applicants discriminate against mentally ill [ABA Journal]
- Many “living wage” ordinances contain a sneaky provision that encourages unionization [Maxford Nelsen, WSJ]
- Sixth Circuit agrees to rehear case suggesting employees can demand telecommuting as accommodation [Jon Hyman, earlier; EEOC v. Ford Motor]
- Should employers give informative references? [Daniel Schwartz, Evil HR Lady]
- EEOC will abuse conciliation process unless judges exercise oversight [Merrily Archer]
- Here is how Politico proposes to cover labor issues as “straight news right down the middle” [The Weekly Standard, RiShawn Biddle/Rare]
- Study: extended jobless benefits prolonged labor market’s woes [Karahan, Kapon, Satar, New York Fed via Tuccille]
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]
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.”