The Equal Employment Opportunity Commission requires that employers state their account of a dispute at an early stage. Combined with a new policy of automatic hand-over of the information to plaintiff’s lawyers, it amounts to you-go-first discovery and an unreciprocated peek at the opposition case [Merrily Archer; Parker Poe]
I’ve got a new post at Cato summarizing four recent cases in which judges have rebuked the Equal Employment Opportunity and Department of Labor, awarding attorneys’ fees against the agencies in two cases (Gate Guard and Freeman Cos.) and rejecting two major EEOC initiatives against wellness programs (Flambeau) and severance package language (CVS). Excerpt:
Why are independent, strong-minded courts so important to a free society? One reason is that they – and often only they – are the ones who can stop government agencies from trampling on the rights of the citizens….
Imagine what these agencies and others would be getting away with were our judiciary someday reduced to a spirit of subservience to the executive branch of government.
- A good labor economics class lets you see through society’s secular religion [Bryan Caplan first, second, and third (“Why labor fallacies have replaced industrial organization fallacies in society’s secular religion”) posts]
- “Meet The Obama Czars Who Decide How Your Workplace Runs” [Connor Wolf/Daily Caller, and thanks for quote]
- Welcome news for employers: Seventh Circuit signals it isn’t buying EEOC’s attack on severance offers in CVS case [Jon Hyman, background]
- Can a unionized Uber or Lyft driver file a grievance over your negative comment as a customer? “It’s not at all clear how union job protection policies can jibe with a community-rating economy.” [Brian Doherty, Reason]
- Riffling through just one day’s BNA Labor Report, Michael Fox finds headlines like Firing After FMLA Request Raises Triable Issues, Recommendation Letter Saves Fired Professor’s Bias Suit, and Commission Seeks Comment on Workplace Murder Case [Employer’s Lawyer]
- Disney exec: here’s our plan to engage in racial discrimination in hiring journalists [Ira Stoll, Future of Capitalism] Have they compared notes with BuzzFeed Canada? [Mediaite]
- On minimum wage, New York Times editors find Hillary Clinton overly tethered to economic reality, urge cutting of final moorings [Charles Hughes, Cato] “The Evidence Is Piling Up That Higher Minimum Wages Kill Jobs” [David Neumark, WSJ]
President Obama wants to compel many companies to begin reporting salary information to the federal government. Thaya Brook Knight comments.
Correction: The proposal would not require companies to provide the information as part of their own tax filings, but would require them to use the information from employees’ Forms W-2 to compile the required disclosure, which would be made to the EEOC.
Earlier on the pay-gap mythos here (Hanna Rosin, Slate: “You Know That ‘Women Make 77 Cents to Every Man’s Dollar’ Line? It’s Not True.”) as well as past links to articles such as this, this, and this.
“Under a new rule proposed by the Equal Employment Opportunity Commission, all companies with more than 100 employees would be required to submit summary pay data each year. Since 1966, large companies have reported to the EEOC the number of their employees by sex, race, ethnicity and job group. The new proposal would add to that list pay data in 12 salary ranges, [with individual salaries] grouped together to protect privacy.” [USA Today, EEOC press release] “The data will be used to identify employers that may be engaging in pay discrimination so that the agency can target its enforcement resources where problems may be likeliest to exist. The proposal would cover more than 63 million U.S. workers, according to the White House. The plan… won’t require legislative approval.” [WSJ]
Aside from driving a high volume of litigation by the EEOC itself, the scheme will also greatly benefit private lawyers who sue employers, including class action lawyers. An employer might then weather the resulting litigation siege by showing that its numbers were good enough, or not. Would today’s Labor Department and EEOC policies look much different if the Obama administration frankly acknowledged that it was devising them with an eye toward maximum liability and payouts?
- Supreme Court agrees to review CRST Vans Expedited v. EEOC (Eighth Circuit) on standard for prevailing-party fee awards in EEOC cases, could mean help for defendants against overzealous government lawyering (and thanks for quote) [Sean Higgins, Washington Examiner, earlier here and here]
- 6-3 win for arbitration and freedom of contract in DirecTV case [Deborah LaFetra/PLF, Daniel Fisher, ABA Journal] WSJ editorial: Bravo to Justice Breyer for upholding as precedent what he’d earlier dissented from on substance [Texans for Lawsuit Reform reprint]
- OK to choke off legal defense by freezing all assets before trial, even if not criminally obtained? [Radley Balko]
- South Carolina $124 million penalty against Risperdal maker should be recognized as violating Excessive Fines clause [Ilya Shapiro and Randal John Meyer, Cato]
- “Supreme Court will review state laws making it a crime to refuse blood-alcohol tests” [ABA Journal, Reason]
- Helpless against the administrative state: revisiting SCOTUS’s awful 1944 Yakus case [James Conde and Michael Greve, SSRN via Michael Greve, Law and Liberty]
- New Akron Law Review symposium on class action jurisprudence of Roberts Court [Paul Karlsgodt]
No warrant needed: “administrative subpoenas” or “civil enforcement demands” allow the Equal Employment Opportunity Commission and other federal agencies to demand “everything from Social Security numbers to medical records without a judge’s prior approval, so long as the information is “relevant” to the agency’s work.” Courts have allowed the maneuver although it bypasses the protections of the Fourth and Fifth Amendments. [Kathryn Watson, Daily Caller]
- Now watch out for the next phase of the “ban the box” effort, which will demand that private employers not be allowed to ask about applicants’ criminal records [Open Society via @georgesoros]
- “We have one restaurant in Seattle, and we probably won’t be expanding there. That’s true of San Francisco and Los Angeles, too.” [Buffalo Wild Wings CEO Sally Smith via David Boaz]
- New York Times reporting vs. nail salons: the video [Reason, earlier] The other Greenhouse effect, in this case Steven: Times “sees the labor beat as having essentially an advocacy mission.” [Adam Ozimek]
- The lawsuits of September: “the EEOC has once again rushed to file a blitz of federal court complaints just under the fiscal year wire” [Matthew Gagnon, Christopher DeGroff, and Gerald Maatman, Jr., Seyfarth Shaw]
- I was a guest on Ray Dunaway’s morning drive time show on WTIC (Hartford) talking about cop fitness tests and the blind barber suit, you can listen here:
- NYC Commission on Human Rights — with an assist from Demos and New Economy Project — runs public ads saying “There’s no evidence that shows a link between credit reports and job performance. That’s why NYC made it illegal to use credit reports in employment decisions.” The “Suburbanist” responds: “We will punish those who depart from our null hypotheses regarding their business. Human rights indeed.”
- What are the biggest legal questions facing employers? “What is work?” and “Who is an employee?” are a start [Jon Hyman]
We’ve reported earlier on the case of EEOC v. Star Trucking, in which two Muslim employees alleged that their employer, a trucking firm, was obliged under federal religious-discrimination law to accommodate their wish not to haul beer. The case had gotten less press attention than the later, similar case of a flight attendant who asserts religious scruples against serving alcoholic beverages to passengers. Now an Illinois federal jury has agreed with the EEOC and awarded the workers $240,000. [EEOC press release (updated to replace earlier paywalled link)]
More: Eugene Volokh noting that Title VII as long enforced requires employers to accommodate employees’ religiously-based requests when the burdens of doing so are small, and that Star Transport — which has since reportedly gone out of business — did not put forth a showing otherwise in this case.
- “Requiring Employees to Return 100% Healed Costs Trucking Firm $300K in EEOC Suit” [Thompson’s HR Compliance Expert]
- Update: Oregon appeals court upholds $400,000
finejudgment against Portland owner who asked transgender club to stop holding meetings at his nightclub [Oregonian, earlier]
- Fire Department of New York commissioner: yes, we lowered fitness bar so more women could join the force [Matthew Hennessey/City Journal, my take in The Excuse Factory back when]
- From May: “Oversight of the Equal Employment Opportunity Commission: Examining EEOC’s Enforcement and Litigation Programs” [Senate HELP committee via Workplace Prof]
- Lengthy HUD battle: 2nd Circuit notes “no finding, at any point, that Westchester actually engaged in housing discrimination” [WSJ editorial, earlier here and here]
- In 1992 Delaware settled an employment discrimination lawsuit by agreeing to assign prison guards “without regard to the gender of prisoners….A disaster ensued.” [Scott Greenfield on Cris Barrish, Wilmington News-Journal coverage]
- NYC council speaker pushing “very bad bill to extend special employment protections to caregivers” [N.Y. Daily News editorial]