EEOC announced that it is suing California employer Marquez Brothers, Inc., for failure to hire non-Hispanic applicants based on race. The EEOC alleges that Marquez Brothers discouraged non-Hispanic applicants from applying for jobs, favored less-qualified Hispanic applicants over applicants of other races for unskilled labor positions, and asked applicants if they spoke Spanish when Spanish language skills were not a job requirement. The lawsuit, alleging violations of Title VII, seeks back pay, benefits, compensatory and punitive damages, and injunctive relief.Read More
The Employment Lawyer Blog by John F. Buckley IV
On January 3, 2017, the EEOC published a final rule amending the regulations implementing Section 501 of the Rehabilitation Act. The law covers the obligations of federal agencies towards persons with disabilities; Section 501 requires agencies to create affirmative action plans. The new regulations specify goals for federal agencies: 12% representation for individuals with disabilities and 2% representation for individuals with targeted disabilities (which include blindness, deafness, paralysis, convulsive disorders, and mental illnesses). The regulations also require agencies to provide personal assistance services to employees in some cases, and consolidate several other requirements from various sources (such as requiring agencies to have written reasonable accommodation procedures). The new regulations are effective as of January 3, 2018.
On November 22, a federal district court in Texas granted a preliminary injunction which will prevent the new FLSA overtime regulations from going into effect. Twenty-one states had filed a motion for a preliminary injunction, arguing that FLSA should not apply to the states and that the DOL had exceeded its statutory authority. The court held that it is clear that Congress intended for FLSA to apply to the states, but it agreed with the plaintiffs that the DOL had overstepped its authority. In its ruling, the court noted that the significant increase to the salary level test “creates essentially a de facto salary-only test,” which is impermissible. Nevada v. United States Department of Labor, 2016 WL 6879615 (E.D.Tex., 2016). The court granted a nationwide injunction, which means that no employers will be subject to the rule which otherwise was to go into effect December 1.
The EEOC has released updated enforcement guidance on national origin discrimination. The new guidance replaces the existing 2002 compliance manual material. The guidance covers a variety of topics related to national origin discrimination, including harassment, accent discrimination, English fluency requirements and English-only rules, citizenship issues, and decisions based on customer preference.
The EEOC has announced that Georgia Power Company will settle a class disability discrimination lawsuit for $1,586,500. In the lawsuit, the EEOC alleged that the company automatically disqualified 24 applicants or employees with disabilities without conducting an assessment into whether the employees could do the work. The company refused to hire disabled applicants and refused to return disabled employees to work after they had taken medical leave. In some cases, the company disregarded the opinion of a treating physician who found that the employee could return to work. This settlement demonstrates the need to conduct individual assessments of applicants or employees with disabilities.
For additional information, see the EEOC press release.
In the last few years a number of states have passed legislation aimed at regulating the use of non-compete clauses for certain categories of workers. Recent reforms include the Illinois Freedom to Work Act (effective 1/1/2017), which prohibits non-compete agreements for workers who earn the greater of (1) the federal, state, or local minimum wage or (2) $13.00 an hour. Because the federal and Illinois minimum wage rates are both currently below $13.00 per hour, $13.00 an hour is the operative figure for application of this statute’s prohibition. Hawaii also passed a law which became effective in 2015 and bars high-tech companies in Hawaii from requiring their employees to enter into non-compete and non-solicit agreements as a condition of employment. In 2015, New Mexico passed legislation limiting the enforceability of non-compete agreements for health care practitioners. The restrictions in New Mexico do not apply to agreements between health care practitioners who are shareholders, owners, partners, or directors of a health care practice.
President Obama recently issued a “State Call to Action on Non-Compete Agreements” which calls on state policymakers to implement best practice objectives for non-compete agreements, which include: (1) banning non-compete clauses for certain categories of workers, such as those working for low wages or working in public health and safety fields; (2) improving transparency and fairness of non-compete agreements by disallowing them unless proposed before a job offer and requiring consideration for workers signing agreements; and (3) incentivizing employers to write enforceable contracts by rendering contracts with unenforceable provisions void in their entirety. The paper notes that multiple states have recently considered legislation regulating non-compete agreements. For additional details regarding the position of the White House regarding this trend, see the State Call to Action on Non-Compete Agreements.
Topics: noncompete agreements
The EEOC has announced that Mon General Hospital in West Virginia will settle a charge of sex discrimination filed by an employee who was denied benefits for her same-sex spouse. The female employee was married to another female and sought medical benefits for her spouse. She was informed that the hospital’s policy only provided coverage for opposite-sex spouses. The parties reached a voluntary agreement through EEOC’s conciliation process. The agreement provides monetary relief to the employee for costs incurred due to the discrimination and requires the hospital to communicate its new non-discrimination policy to employees. The hospital must also make reports to EEOC semi-annually as to whether any requests for same-sex spouse benefits have been made and whether they were granted. For more details, see the EEOC’s announcement.
A Salem, Virginia, business owner pleaded no contest to multiple counts of felony wage fraud and received a nine year suspended sentence. Edward Couvrette, owner of Couvrette Building Systems/CJWA, also received probation, and will have to pay restitution of over $200,000. The company failed to pay employees all wages owed over a period of about eight months. The company and Couvrette personally filed for bankruptcy in 2015. Couvrette placed blame on the company’s ex-CFO, who went to prison in 2009 for defrauding the company.
Although this case involved the business owner, under FLSA, a variety of entities can be held responsible for wage payments violations, including supervisors who exercise control related to the violation, corporate officers who exercise operational control, and corporate alter egos and successors.
On May 23 2016, the U.S. Department of Labor (DOL) published its final revisions to the overtime compensation regulations under the Fair Labor Standards Act (FLSA). The Final Rule makes changes to the regulations pertaining to the exemption for salaried executive, administrative, and professional employees (commonly known as the "white-collar" exemption). DOL Final Rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 81 Fed. Reg. 32,391 (May 23, 2016). Among other things, the Final Rule raises the standard salary threshold for the exemption from $455 a week ($23,660 a year) to $913 a week ($47,476 a year) for full-time employees and provides for automatic adjustments every three years based on the weekly earnings of the 40th percentile of full-time salaried workers in the lowest-wage Census region (currently the South). The Final Rule also increases the "highly compensated employee" (HCE) annual salary threshold from $100,000 to $134,004 for full-time employees and provides for three-year automatic adjustments based on the annualized weekly earnings of the 90th percentile of full-time salaried employees nationally. The Final Rule takes effect on December 1, 2016.Read More
John F. Buckley IV
The proposed federal Password Protection Act of 2015 (H.R. 2277), introduced on May 12, 2015, would bar employers from requiring or requesting employees or job applicants to provide password information for their social media and email accounts as a condition of employment. The Act was introduced in order to curb this growing practice, and it was drafted in consultation with major technology companies and legal experts, its proponents stated. A similar measure (H.R. 2077/S. 1426) was introduced but failed in the 113th Congress, which concluded on December 31, 2014.
A similar bill, the Social Networking Online Protection Act (SNOPA) (H.R. 5107), has been introduced this year. SNOPA would prohibit employers from requiring or requesting a username, password, or other access to online content, and it would extend this prohibition to colleges, universities, and K-12 schools. In addition, the bill would prohibit employers from demanding such access in order to discipline, discriminate, or deny employment to individuals, and from punishing individuals for refusing to volunteer such information. This measure was originally introduced in the 113th Congress as H.R. 537, but, like the proposed Password Protection Act, it died in committee.Read More