Wednesday, August 31, 2016

EEOC Publishes New Enforcement Guidance on Retaliation and Related Issues

Last week, the Equal Employment Opportunity Commission (EEOC) issued its new "Enforcement Guidance on Retaliation and Related Issues," which supersedes its Compliance Manual Section 8: Retaliation, issued in 1998.  New Guidance.
According to the EEOC, the purpose of the new Enforcement Guidance is to set forth the Commission's interpretation of the law of retaliation and related issues, and to advise employers that the EEOC's interpretations may differ from courts' interpretations. 
Not surprisingly, the EEOC takes broad views of the definitions of  "participation" and "opposition," "materially adverse actions," and causation, and employers should familiarize themselves with these positions, particularly where they differ from those established by case law.
The EEOC reiterates that employers can minimize retaliation claims by implementing comprehensive written policies, training managers and staff, proactively following up with employees and managers during investigations, and scrutinizing employment actions, such as performance reviews, to ensure they are free from unlawful motivations.

Thursday, August 25, 2016

NLRB Reverses Itself in Back-to-Back Decisions Related to Jointly Employed Employees and Student Assistants’ Rights to Organize

During the past few weeks, the National Labor Relations Board (NLRB) issued two significant decisions reversing prior Board law.  In Miller & Anderson, Inc., Case 05-RC-079249 (July 11, 2016), the NLRB dumped the more than a decade old precedent established by Oakwood Care Center, 343 NLRB 659 (2004), and decided that employer consent is not necessary for bargaining units that combine jointly employed and solely employed employees of a single user employer. 
Jointly employed employees are those who, for example, are supplied by a temporary staffing agency to work at an employer’s worksite.  Under Oakwood, employees of the “user” employer and the staffing agency employees who worked together could not be represented for purposes of collective bargaining in a single unit, even if they shared a community of interest with one another, unless they obtained their employers’ consent.  Under Miller, consent by the employers is no longer required, and the user employer has an obligation to bargain over all the employment terms of the employees it solely employs, and the obligation to bargain over its jointly employed employees’ terms and conditions when it possesses the authority to control them. 
In Trustees of Columbia University in the City of New York, Case 02-RC-143012 (Aug. 23, 2016), the NLRB similarly dumped more than ten years of precedent established by Brown Univ., 342 NLRB 483 (2004), and held that “student assistants who have a common-law employment relationship with their universities are statutory employees under the Act.”
In Brown, the NLRB held that graduate assistants cannot be statutory employees because they are “primarily students and have a primarily educational, not economic, relationship with their university.”  In its new decision, the NLRB dismissed any distinction between educational and economic relationships, and found that student assistants, including assistants engaged in research funded by external grants, had a common-law employment relationship with the university, and were therefore entitled to the protections of the Act, including the right to organize.
Both decisions reflect the NLRB’s ongoing efforts to expand the scope of the Act.  

Wednesday, August 24, 2016

Highlights of Austin's Organics Diversion Program for Restaurants Effective October 1, 2016

Following the completion of a pilot program, the City of Austin is ready to implement its Organics Diversion Program for restaurants, the goal of which is to decrease the amount of organic materials sent to the landfills.  Here are the highlights:
  • Beginning on October 1, 2016, restaurants that are 15,000 square feet or larger are required to establish an organics diversion program.
  • By October 1, 2017, restaurants between 5,000 square feet and 14,999 square feet are subject to the requirement.
  • By October 1, 2018, all restaurants will need to establish an organics diversion program.
  • Businesses will be required to submit an online Organics Diversion Plan; on a weekly basis, reduce or divert organic material generated onsite;  post informational signs; educate employees; and strategically place exterior organics collection receptacles.  
  • The City of Austin will enforce the program through the inspection process.

Monday, August 22, 2016

Seventh Circuit Begrudgingly Affirms Dismissal of Sexual Orientation Discrimination Claim and Implores Other Branches to Act

In a recent decision explaining its dissatisfaction with the current distinction between gender non-conformity claims, which are cognizable in the private employment context, and sexual orientation discrimination claims, which federal appellate courts have held are not,  a Seventh Circuit panel affirmed the dismissal of an adjunct professor’s sex discrimination claim based solely on sexual orientation discrimination.  Hively v. Ivy Tech Cmty. Coll., No. 15-1720 (7th Cir. July 28, 2016).
Noting that almost all discrimination on the basis of sexual orientation can be traced back to some form of discrimination on the basis of gender non-conformity, the Court made several, surprisingly candid observations about the current state of the law.

First, the existing distinction between gender non-conformity claims and sexual orientation claims has created an “odd state of affairs” in the law in which Title VII protects gay, lesbian, and bisexual people, but usually only to the extent that they meet society’s stereotypical norms about how gay men or lesbian women look or act (i.e., that gay men are effeminate or lesbian women have masculine mannerisms).  In contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms lose their claim.
Second, case law has created a “paradoxical legal landscape” in which a person can be married on a Saturday and then fired on a Monday, because although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, allows employers to fire employees for doing so. 

Third, both Congress and the Supreme Court have had opportunities to consider the question of whether Title VII’s prohibition on sex-based discrimination extends to protect against sexual orientation discrimination, but “in addition to the Supreme Court’s silence, Congress has time and again said ‘no,’ to every attempt to add sexual orientation to the list of categories protected from discrimination by Title VII.”
Undeniably frustrated by the decision it felt compelled to reach based on the principle of stare decisis, the Court concluded its opinion with the following:

Perhaps the writing is on the wall.  It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they love, date, or marry…this court undoubtedly does not condone it…but writing on the wall is not enough.  Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent…"
If Congress or the Supreme Court were to act, the Seventh Circuit has provided a blueprint for change.

Wednesday, August 17, 2016

Another Federal Court Invalidates the DOL's Tip Credit Regulation

At the end of July, the United States District Court for the Northern District of Georgia joined a number of other federal courts, including the Fourth Circuit, the Northern District of Illinois, the Southern District of New York, and the District Courts in Maryland and Utah, in holding that the United States Department of Labor’s regulation, which provides that, [t]ips are the property of the employee whether or not the employer has taken the tip credit under section [20]3(m) of the FLSA,” is invalid.  See Malivuk v. Ameripark, LLC, No. 1:15-cv-2570-WSD (N.D. Ga. July 26, 2016).

In Malivuk, the plaintiff, a valet, alleged her employer violated the FLSA by collecting tips given to the valets, distributing them in accordance with a formula among various valets working on a particular shift, and using a portion of the tip money to offset other business expenses, including valet employee hourly wages.  Notably, the plaintiff did not allege that she was not paid minimum wage or overtime, or that the defendant used tips as a credit against the minimum wage. 

Analyzing the plain text of Section 203(m) of the FLSA, the court explained that this provision provides that an employer: (1) must pay a tipped employee a cash wage, but if the cash wage is less than the federal minimum wage, the employer can make up the difference with the employee’s tips (take the tip credit); and (2) may take a partial tip credit toward its minimum wage obligations.   Put another way, the employer may take a partial tip credit toward its minimum wage obligations.

Agreeing with other courts, the Malivuk court held that, “The Court agrees…that if Congress wanted to articulate a general principle that tips are the property of the employee absent a valid tip pool, it could have done so without reference to the tip credit…the DOL Regulation violates the plain language of Section 203(m).”  (Additional citations and quotations omitted). 

The Malivuk decision provides further support for employers to argue that tips are not the sole property of the employee where the employer does not take the tip credit.