The United States Supreme Court has agreed to resolve a growing split of authority among lower federal circuit courts regarding the requirement under Title VII of the Civil Rights Act of 1964 (“Title VII”) that individuals must file a charge of discrimination with the EEOC before bringing Title VII claims against their employer. Specifically, the Supreme Court is set to decide the following issue: “Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.”
Last week, the National Labor Relations Board (the “NLRB”) approved and released its Strategic Plan for Fiscal Years 2019-2022. Congress requires government agencies like the NLRB to formulate strategic plans every four years and release those plans to the public. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. This iteration of the NLRB’s Strategic Plan largely focuses on the agency’s goals to reduce the processing time for unfair labor practice charges and representation cases, acknowledging the problem that “[o]ver the years, the amount of time it takes for cases to be processed and for resolutions to be reached has increased and backlogs of cases have developed. This initiative has been developed to reverse these trends.”
A memorandum recently released by the Occupational Safety and Health Administration (OSHA) has clarified the agency’s position on whether safety incentive programs and post-accident drug testing would be considered retaliatory pursuant to its controversial recordkeeping rule published on May 12, 2016. This rule prohibits employers from retaliating against employees who report work-related injuries or instituting procedures that could chill employees from reporting work-related injuries. In the accompanying interpretative documents, OSHA specifically identified workplace safety incentive programs and post-accident drug testing policies as procedures that were likely to deter employee reporting, and therefore would be subject to increased scrutiny by the agency.
The #MeToo movement has galvanized many into taking action to fight workplace harassment. Since the movement began in the fall of last year, the Equal Employment Opportunity Commission (EEOC)—tasked with enforcing laws prohibiting sexual harassment—has indicated it has seen an uptick in the amount of traffic to its website. But, it also indicated this increase in website visitors has not translated into an increase in formal complaints to the EEOC filed by employees against their employers. Still, the EEOC has carried the torch of the #MeToo movement, signaling that the lack of an increase in claims will not stop the agency from vigorously enforcing anti-harassment laws.
Last week, the United States Supreme Court released its decision in Digital Realty Trust v. Somers, where the Court unanimously adopted a narrow reading of the Dodd-Frank Act’s anti-retaliation “whistleblower” provision. The Court held that the provision applies only to individuals who report securities violations directly to the Securities and Exchange Commission.
The case involved Paul Somers, a former employee of Digital Realty Trust, who alleged that the company terminated him after he internally reported suspected violations of securities law by the company. Somers, however, never reported any of the suspected securities violations to the SEC.
On February 12, 2018, the Equal Employment Opportunity Commission (the “EEOC”) approved and released its Strategic Plan for Fiscal Years 2018-2022. Congress requires government agencies like the EEOC to formulate strategic plans every four years and post the plans on their website. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. In a press release introducing the plan, the EEOC indicated the plan “will serve as a framework for the Commission in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”
On June 12, 2017, the Office of Labor Management Standards of the Department of Labor (DOL) published a Notice of Proposed Rulemaking that proposes to rescind the controversial “persuader rule” implemented by the DOL under the Obama administration. This rule sought to require disclosure of advice to employers from consultants and attorneys who engage in activities designed to persuade employees not to unionize. This announcement is on the heels of the DOL’s June 7, 2017, press release withdrawing two administrative interpretations issued by the DOL under the Obama administration concerning misclassification of independent contractors and joint employment, as discussed in a previous post. The recent flurry of activity by the DOL indicates that the Trump administration is following through with its promise to loosen many of the onerous restrictions placed on employers by the DOL in the Obama-era.
On June 14, 2017, the Equal Employment Opportunity Commission held a public meeting entitled “The ADEA @ 50 – More Relevant Than Ever,” to commemorate the Age Discrimination in Employment Act’s 50th anniversary and to “explore the state of age discrimination in America today and the challenges it poses for the future.” Participants in the meeting included Victoria Lipnic, newly-appointed Chairman of the EEOC, and various workers’ advocates who provided their thoughts on the perceived increasing prevalence of age discrimination in the workplace. Despite the enactment of the ADEA a half-century ago, the participants cited various statistics demonstrating the difficulty still facing older individuals in the workplace. This discrimination faced by older workers in an aging-American workforce coupled with various statements by Chairman Lipnic regarding the ADEA are signals to employers that ADEA enforcement may receive an increased focus during the Trump administration. In a previous post, we discussed the impact of Chairman Lipnic’s appointment and the direction of the EEOC under her new leadership and highlighted that ADEA enforcement would be one of the agency’s main focuses.
On May 24, 2017, Sen. Johnny Isakson (R-Ga.) and Rep. Francis Rooney (R-Fl.) each introduced the Representation Fairness Restoration Act in their respective Houses of Congress in an attempt to reverse the controversial 2011 ruling by the National Labor Relations Board in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. (2011). As has been discussed in previous posts, the Board in Specialty Healthcare announced a new standard for determining the appropriateness of a bargaining unit. Under the new standard, unless an employer can show that an “overwhelming community-of-interest” exists between the requested unit and some other portion of the workforce, the requested bargaining unit will be approved. This new standard has encouraged the formation of smaller “micro-bargaining units.” These micro-bargaining units have been an administrative and managerial headache for employers, requiring them to bargain with multiple small units in the same workplace, and sometimes in the same department.
In a press release issued this morning, the Department of Labor has announced that it is withdrawing two administrative interpretations issued by the Department of Labor under the Obama administration in 2015 and 2016 relating to misclassification of independent contractors and joint employment. These two administrative interpretations sought to expand the definition of employee, thereby increasing the possibility of misclassification cases, and, as some argued, expanding the concept of joint employer under the Fair Labor Standards Act. While this is a welcomed announcement for employers, the Department emphasized in the release that the withdrawal “does not change the legal responsibilities of employers under the Fair Labor Standards Act.” This is the first effort by the Department of Labor under the Trump administration to dismantle some of the more controversial policies issued by the Department in the Obama-era. The decision to withdraw these administrative interpretations may also signal that the Department intends to return to the opinion letter writing process, making compliance much simpler for employers.