Remember That New Overtime Rule That Was Going to Happen? Not Any More.

By Kathleen J. Jennings (kjj@wimlaw.com)

Remember that Obama overtime rule that would have required employers to pay overtime to most salaried workers earning less than $47,476 annually (up from the current salary cutoff for overtime pay of $23,660)? Employers were struggling to find ways to deal with what would have been a significant change in wage and hour law. That struggle is over; the rule is effectively dead.

Last week, a federal judge in Texas struck down the rule. In his decision, Judge Amos Mazzant said the DOL overstepped its authority by focusing too heavily on workers’ pay, rather than their job duties, to determine overtime eligibility. Then, on September 5, the Justice Department announced that it will not appeal the previous decision issued by Judge Mazzant that temporarily blocked the rule. However, it is still possible that the Justice Department could appeal the most recent ruling, perhaps to seek clarity on how and when the DOL can use workers’ salaries for overtime eligibility determinations.

It has been reported that the Labor Department is already reconsidering the rule, and has asked for public comment. Labor Secretary Alexander Acosta has signaled that the DOL may issue a new rule with a more moderate salary threshold bump, potentially in the low $30,000 range. We will continue to monitor all developments.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Expanded EEO-1 Form Put on Hold

By Kathleen Jennings (kjj@wimlaw.com)

Human resources professionals at companies with 100 or more employees are breathing a sigh of relief today because the Trump administration has put the implementation of the “expanded” EEO-1 form on hold.

On August 29th, the Office of Management and Budget (OMB) informed the Equal Employment Opportunity Commission (EEOC), (via a memo from Neomi Rao, Administrator, Office of Information and Regulatory Affairs to EEOC Acting Chair Victoria Lipnic) that it is initiating a review and immediate stay of the effectiveness of the pay data collection aspects of the EEO-1 form that was revised on September 29, 2016. Among other things, OMB is concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

[Backstory: EEOC Acting Chair Victoria Lipnic reportedly opposes the “expanded” EEO-1 form, but she does not have enough conservative members on the EEOC to get rid of it. The action by the OMB is basically an “end run” around that problem.]

The “expanded” EEO-1 form was developed during the Obama administration and would have required private employers with 100 or more employees to report annually to the Equal Employment Opportunity Commission summary pay data categorized by sex, race, and ethnicity. The purpose of the revised form was greater pay transparency which was supposed to result in more pay equality. It was strongly opposed by business groups due to concerns about the cost of compliance and the potential litigation risks created by the organization of the pay data.

For now, employers with 100 or more employees and federal government contractors and first-tier subcontractors with 50 or more employees and at least $50,000 in contracts should plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018. The more onerous reporting requirements of Component 2 have been placed on hold.

The EEOC now must decide whether they want to withdraw the “expanded” EEO-1 form altogether or submit a revised form. In the meantime, EEOC Acting Chair Victoria Lipnic expressed the hope that “this decision will prompt a discussion of other more effective solutions to encourage employers to review their compensation practices to ensure equal pay and close the wage gap.”

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

OSHA Reporting Portal Hacked

By Kathleen Jennings (kjj@wimlaw.com)

As if employers were not already uncomfortable enough with electronically filing the OSHA Form 300A, which summarizes incident causes and the number on-the-job deaths, injuries, and illnesses, now we find out that the OSHA portal has been hacked. On August 14, the Department of Homeland Security notified the Department of Labor that there was a “potential compromise of user information” submitted to the website. The site was closed pending a review of security issues. So far, the hacker has not been identified.

The site has now reopened. However, employers should wonder how secure their data will be once uploaded to the site.

As we noted in a previous post, OSHA launched the Injury Tracking Application on Aug. 1, 2017, but the deadline for designated employers to electronically submit 2016 Form 300A has been pushed back to Dec. 1, 2017. Therefore, while those employers who are required to electronically file their OSHA 300As on December 1 should prepare to do so, it seems prudent to wait until we get much closer to that deadline to electronically file anything so the DOL can work out the problems with the portal and (hopefully) make it more secure.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Do Employees of Private Employers Have Any “Free Speech” Rights?

By Kathleen Jennings (kjj@wimlaw.com)

Last week, we addressed how an employer can deal with an employee who poses with Nazi imagery. We noted that the First Amendment does not protect the speech of employees of private (non-government) employers from adverse action by that employer. Do employees of private employers have any “free speech” rights? The answer is Yes.

There are two main categories of protection of employee speech under federal laws. [State laws may offer additional protections, so we advise that employers also check the state laws applicable to their workforce.]

  1. Section 7 Rights under the National Labor Relations Act.

Although many people associate the National Labor Relations Act (NLRA) with union elections, in fact, its reach extends far beyond those matters. Section 7 of the NLRA generally protects employee speech about the “terms and conditions of employment” from adverse action by the employer. “Terms and conditions of employment” encompasses a lot of things, including complaints about wages, hours, working conditions, unfair discipline, and dirty restrooms. However, it does not encompass false or malicious speech about a company or its products. In other words, Section 7 may protect an employee who posts on social media that “I have seen dogs treated better than the employees of this company,” but it may not protect an employee who posts that “The company uses dog meat in their products,” when the latter statement is untrue.

An aggrieved employee can file an unfair labor practice (ULP) charge with the National Labor Relations Board, which will investigate and process the charge. In fact, James Damore, the engineer fired by Google for writing the 10-page memo about women in tech jobs, filed a ULP charge.

2.   Anti-retaliation/Whistleblower Laws

This is broad category of protections provided by various federal antidiscrimination laws, such as Title VII, FLSA, ADEA, and the ADA; laws targeted to health and safety, such as OSHA; and laws governing the disclosure of certain financial information, such as Sarbanes-Oxley. Basically, these laws protect employees who make good faith complaints about discrimination in the workplace (either directed at them or others), safety issues, or financial reporting discrepancies, from retaliation by their employers. As we have discussed in the past, some employees try to use these statutes as a sword rather than a shield to try to protect themselves from an adverse employment action, such as termination, that they knew was coming. This is one reason why documentation of employment decisions can be crucial to establish a timeline to show that an employment decision was made before the employee made a complaint.

Pro tip: If an employer desires to take action against an employee for a social media post or other form of speech, it is important to first establish that the speech does not fall under any protected categories. Those categories exist under both federal and state laws, so it is advisable to consult with experienced employment counsel before taking action.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Can an Employer Fire an Employee for Posing with a Nazi Symbol?

By Kathleen Jennings (kjj@wimlaw.com)

This past weekend, an alt-right rally in Charlottesville, VA featured numerous men (and some women) wearing white hoods, Nazi symbols, and other symbols of what they considered “white pride.” Many others consider these symbols of racial hatred, and there was a movement on social media to identify some of the attendees of the rally and ask their employers to fire them. Of course, that piqued the interest of this employment lawyer.

Can an employer fire an employee for posing with a Nazi symbol or other expression of racial and/or religious animosity? Even though this behavior occurred outside the workplace?

In an at-will employment state such as Georgia, a private employer can terminate an employee who does not have a written contract of employment at any time, for any reason, or no reason at all. So the answer is Yes. This power to terminate is limited by federal law, which means that an employment decision should not violate federal anti-discrimination laws (which generally apply to employers with 15 or more employees). In the case of the employee posing with the Nazi symbol, he will be hard-pressed to a show that his termination is motivated by discrimination. To show discrimination, he would need to show that similarly situated (i.e., posing with a known symbol of racial animosity) non-white employees were not terminated. The answer is still Yes.

Should an employer fire an employee for posing with a Nazi symbol? If the employee is a supervisor or manager, the answer is Absolutely Yes. That picture will forever carry a taint of racial animus that will affect any employment decision that the employee makes, including any decisions in his chain of command, and that taint will be imputed to the company.

If the employee is not a supervisor or manager, the answer is slightly less definitive. Has this employee shown any discriminatory attitudes or beliefs in the workplace? Has he had conflicts with other employees? Are other employees aware of his beliefs, and does that cause disruption in the workplace? Are others likely to associate this employee’s beliefs with the company? If the answer to any of these questions is yes, then he probably needs to go.

If the employer decides not to terminate the employee, it needs to set some ground rules. First, there needs to be a documented conversation with the employee about the company’s EEO policy and a reaffirmation that the company will not tolerate discrimination. Second, the employee needs to be made aware that he will not be considered for any supervisory or managerial positions. If the employee shows any resistance to either of these concepts, then it is not a good idea to keep him around.

Finally, there is no First Amendment “right to free speech” in a private (non-government) workplace. That means an employee may have to choose between posing with a Nazi symbol and keeping his job.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

How An Arbitration Agreement Put A Class Action Lawsuit on Hold—and May Effectively End It

By Kathleen Jennings (kjj@wimlaw.com)

No company wants to be the target of a class action lawsuit. They are expensive, time-consuming, and a public relations nightmare. This week, the 11th Circuit Court of Appeals put the brakes on a class action lawsuit filed against Waffle House by a rejected applicant on behalf of himself and a class of persons affected by background checks when it enforced an arbitration agreement signed by the lead plaintiff. What makes the facts interesting is that the lead plaintiff, William Jones, signed the Arbitration Agreement with Waffle House after he filed his class action lawsuit. (Jones v. Waffle House, Inc., No. 16-15574, 11th Cir., August 7, 2017).

In a nutshell, Jones applied for a job at a Florida Waffle House in Ormond Beach in December 2014 but was rejected by the store. In October 2015, Jones sued Waffle House and various data-reporting companies in federal district court, claiming that the defendants violated the Fair Credit Reporting Act by failing to give him a copy of the background checks that were run on him in connection with his job application and by failing to give him an opportunity to dispute those background checks. Jones also sought class relief, seeking to represent a class of United States residents who applied for employment or were employed with Waffle House in the preceding five years against whom Waffle House took adverse employment actions based on a background check.

While that lawsuit was pending, Jones continued to seek employment with Waffle House elsewhere. In February 2016, Jones applied for and gained employment at a Waffle House store in Kansas City, Missouri. In connection with his employment, Jones signed an arbitration agreement that covered “all claims and controversies [ ], past, present, or future, arising out of any aspect of or pertaining in any way to [his] employment.” The agreement also included a delegation provision requiring that “[t]he Arbitrator, and not any federal, state, or local court or agency, shall have authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement.”

Jones did not tell the lawyers representing him in the federal lawsuit that he had gained employment with another Waffle House or that he had signed an arbitration agreement. He also did not tell his new employer in Kansas City that he was actively suing Waffle House in Orlando. The situation finally caught up with Jones in March 2016, when Waffle House’s legal team figured out that Jones was working for a Waffle House and therefore had signed an arbitration agreement. At that point, Waffle House moved to compel arbitration pursuant to the agreement. The district court denied the motion and Waffle House timely appealed. The 11th Circuit reversed the district court and held that the motion to compel arbitration should have been granted:

The arbitration agreement contains a broad, valid, and enforceable delegation provision that expresses the parties’ clear and unmistakable intent to arbitrate gateway questions of arbitrability, including questions concerning the interpretation, applicability, enforceability, and formation of the agreement. In the face of the Federal Arbitration Act’s clear preference for and presumption in favor of arbitration, we are obliged to enforce the parties’ clear intent to arbitrate these issues. (Opinion, p. 3)

The enforcement of the arbitration agreement will stay Mr. Jones’ class action lawsuit while the arbitrator decides whether the claims encompassed in that lawsuit should be arbitrated. If the arbitrator concludes that the claims should be arbitrated, then that is where they will go, and Mr. Jones will have to relinquish his role as class representative—all because he took a job with the company he was suing.

The takeaway:

  • A good, enforceable arbitration agreement just might save a company from a world of class action litigation hurt.
  • Always check a plaintiff’s full employment history, up through the present. He or she may be right under your client’s nose.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

The EEOC Frowns on Stereotyping of Older Applicants

By Kathleen Jennings (kjj@wimlaw.com)

A parking management company in Atlanta is facing a discrimination lawsuit filed by the EEOC because an operations manager told a 60-year-old female applicant for a valet job that she would not be successful as a valet because of the “physicality of the job.” Instead, the operations manager told applicant, Valerie Hayden, that she would be perfect for a customer service position and told her to come back the following week to attend orientation.

Then the company made things even worse: the day before she was scheduled to begin her new position, Hayden called to ask what time she should report. However, the operations manager told Hayden that the job had already been filled. The company’s records show that after Hayden was interviewed, it hired several male valets and customer service employees who were substantially younger than Hayden. After this kind of treatment, it is not surprising that Hayden went to the EEOC and filed a charge of discrimination.

The EEOC’s lawsuit asserts that this alleged conduct violates Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). In the press release issued by the EEOC, Antonette Sewell, regional attorney for the Atlanta District Office, stated, “What is most disturbing about this case is that the hiring official automatically assumed that Ms. Hayden was not qualified to work as a valet or customer service parking manager because of her age and the fact that she is a woman. Such managerial behavior is not legal or acceptable in the 21st century.”

Do not make assumptions about a job applicant’s physical ability to perform a job based solely on age or gender. Consider this: Diana Nyad swam from Cuba to Florida at the age of 64. 92-year-old Harriette Thompson completed the San Diego Rock ‘N Roll Marathon in 2015 (and became the oldest person to complete a half-marathon 2 years later).

Pro tip: During the job interview process, an employer can ask an applicant if he/she is able to perform the essential functions of the job. Once a conditional job offer is made, the employer may ask more detailed questions about abilities and disabilities and require medical examinations as long as this is done for all entering employees in that job category.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.