- 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]
Posts Tagged ‘EEOC’
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]
Labor and employment roundup
- “House Report criticizes EEOC for litigation before conciliation” [HRM America, attention-stirring Merrily Archer survey and more]
- Do you gripe about upward spiral of executive salaries? Do you want to force employers into fuller pay disclosure? Be aware of the tension between those two positions [Gary Shapiro of CEI, Daily Caller]
- Because the union is all about respect: Laborers/LIUNA brings giant inflatable rat to St. Louis funeral home [KTVI]
- Reality-based: “during five of last six federal minimum wage increases, nation fell into recession” [Thomas Firey, Cato via @scottlincicome] Minimum wage and automation [Ira Stoll, earlier]
- Minnesota legislature expands employer regulation under apple-pie heading of “Women’s Economic Security Act” [Courtney Ward-Reichard guest-posting at Daniel Schwartz’s] How well are state-mandated employee leaves working in California? [Coyote]
- “EEOC continues fight against severance agreements, while employers fight back” [Jon Hyman, earlier on CVS case]
- OSHA targets auto suppliers in South for enforcement crackdown, rationale to be supplied later [Sean Higgins, DC Examiner via Instapundit (“Well, he can’t come right out and say it’s about hurting non-union shops”)]
Labor and employment roundup
- Los Angeles officials push SEIU-backed scheme to fasten unions on nonunion workforce at LAX airport [Brian Sumers, Contra Costa Times]
- Want to empower cities? Reform binding labor arbitration [Stephen Eide, Urbanophile]
- “Explainer: What Does President Obama’s Equal Pay Day Executive Order Change?” [Rachel Homer, On Labor]
- One lawyer’s advice: “when an employee complains about discrimination, or otherwise engages in protected conduct, you must treat that employee with kid gloves” [Jon Hyman on Sixth Circuit retaliation case]
- Detroit juggles pension numbers to fix deficit, papers over the real problem [Dan Kadlec, Time; Shikha Dalmia, Washington Examiner]
- No room left to cut budget, part 245,871: federal grants promote labor unions [Examiner]
- More on EEOC’s campaign to limit employment criminal background checks [Coyote, Daniel Schwartz]
Discrimination law roundup
- Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
- One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
- Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
- Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
- “Religious exemptions — a guide for the confused” [Eugene Volokh]
- Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
- If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]
Courts rebuff EEOC again
I’ve got a new post up at Cato (“Sixth Circuit: You’re Drunk, EEOC, Go Home“) on the Equal Employment Opportunity Commission’s spectacular loss yesterday at the Sixth Circuit in the Kaplan case. As I comment, the victory for the defendant is
all the more impressive because one of the three judges on the opinion is liberal lion Damon Keith, about as sympathetic a judicial ear as the EEOC could normally hope for. It’s a sharp setback for the agency’s dubious “disparate impact” campaign against employer use of credit and criminal records in hiring. And it’s also part of a pattern of rebuffs and defeats the EEOC has been dealt by judges across the country since President Obama turned the agency on a sharp leftward course with his appointments.
The Sixth Circuit has actually been one of the EEOC’s better circuits in recent years. For example, it reversed a Michigan federal judge who in 2011 had awarded $2.6 million in attorneys’ fees to Cintas, the employee-uniform company, and reinstated the lawsuit. In doing so, the appellate panel nullified what had been the lower court’s findings of “egregious and unreasonable conduct” by the agency, including a “reckless sue first, ask questions later strategy.” The commission hailed the reversal as one of its big legal wins — although when one of your big boasts is getting $2.6 million in sanctions against you thrown out, it might be that you don’t have much to brag about.
For some other recent EEOC courtroom setbacks, check our roundup of last month. If you wonder why the commission persists in its extreme aggressiveness anyway, one answer may be that the strategy works: most defendants settle, and the commission hauled in a record $372 million in settlements last year. Yet here and there, as with Kaplan, defendants decide to put up a fight, with instructive results. When will Congress begin to hold the commission accountable? More: Hans Bader, CEI.
Labor and employment roundup
- If you imagine the primary goal of occupational licensure is to protect consumers, think again [Donald Boudreaux, Ramesh Ponnuru]
- “U.S. Civil Rights Commissioners Take EEOC to Task on Background Checks” [Nick Fishman, Employee Screen; Seyfarth Shaw]
- Pennsylvania lawmakers consider ending union exemption from stalking laws; Illinois, Nevada and California also shelter them from liability [Washington Examiner]
- “How Disruptive Can an Aggressive NLRB Be in a Non-Union Setting? More Than You Might Think” [Michael Fox]
- “A call for the DOL to fix what is wrong with our wage-and-hour laws” [Jon Hyman]
- Restaurant Opportunities Center, known for staging employee protests, bars own employees from same privilege [Florida Watchdog via Sean Higgins]
- Conference honoring assassinated professor Marco Biagi showcases classical liberal labor law scholarship (or so one would hope) [my comment at Workplace Prof, related call for papers, earlier]
EEOC roundup
- Federal judge in Buffalo “dismisses EEOC’s largest pending pattern or practice lawsuit for failure to investigate” [Gerald Maatman, Jr. and Jennifer Riley, Seyfarth Shaw] U.S. magistrate judge in North Carolina orders sanctions against agency in lawsuit against law firm Womble Carlyle [Mary Kissel, WSJ]
- Commission’s campaign against employer use of criminal background checks meets resistance from nine state attorneys general [Penelope Phillips, Minnesota Employment Law Report] Federal judge in Maryland dismisses EEOC criminal-and-credit-background-check case against Freeman Companies using words like “laughable,” “unreliable,” “mind-boggling” [Nick Fishman, Employee Screen; Eric B. Meyer]
- Is regular attendance an essential job function for ADA purposes? Commission takes a hard line against employers who insist that showing up regularly is essential to a job without building a case individualized to the particular dispute [Jon Hyman, Ohio Employer’s Law Blog]
- Missed this one in October: Cato files amicus brief in lower-court case of EEOC v. Kaplan, on disparate impacts of credit checks in hiring [Ilya Shapiro]
- More epic losses by agency last year (earlier posts on that here and here) include Evans Fruit case [AP/Seattle Times] Defendants disadvantaged by agency’s prejudicial delay [Molly DiBianca on PBM Graphics and Propak Logistics cases; Anastasia Killian, WLF] Federal judge in Iowa orders agency to pay $4.7 million in attorneys fees to defendant trucking company CRST [Gerald Maatman Jr. and Howard Wexler, Seyfarth Shaw, ABA Journal, Wall Street Journal]
- “Does the EEOC Try To Intimidate Employers?” Merrily Archer v. Robert Young [Richard Cohen, Fox Rothschild; more from Merrily Archer on agency incentives; her major 2012 victory in the Picture People case, and a dissent]
- In commission’s view, two “incidents which ended in ambulance trips to the hospital” not enough to classify employee as safety risk absent individualized ADA determination [Joe Lustig]
EEOC challenges “garden-variety” severance terms
To end an employment lawsuit, or more often simply as part of a non-litigious parting, employers often offer a severance package part of which consists of various terms releasing all claims and covenanting not to sue, requiring confidentiality and cooperation in the case of future litigation, and so forth. Now, in a lawsuit against CVS, the Equal Employment Opportunity Commission is taking the position that many such clauses constitute “retaliation” for protected activity and are legally invalid. Jon Hyman of Ohio Employer’s Law Blog notes that the clauses under challenge are generic ones widely used in severance packages and explains why in his view the “case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.” Daniel Schwartz at Connecticut Employment Law Blog also calls the suit “a big deal: “My gut tells me that the courts are not likely to view the government’s arguments with favor. … But for employers, that is of little solace.” More: Ameet Sachdev/Chicago Tribune (“the EEOC brought the suit even though CVS expressly protected employees’ rights under discrimination laws”), Joshua Feinstein, JD Supra (“the potential for havoc is great”), Hope Eastman/Paley Rothman (“a major shock to employers”)