Friday, April 18, 2014

Sixth Circuit Goes Hard on EEOC Background Check Litigation

Remember when a district court rejected the EEOC's use of "race raters" in a disparate impact claim against Kaplan? And discovery revealed that the EEOC itself used the same background checks that it based its lawsuit on? Here's a refresher.

For some reason, the EEOC decided to appeal to the Sixth Circuit - you can now read the Sixth Circuit's opinion here. Let's just say it did not go well. You can read the whole thing for yourself, but I think you can get the flavor from my masterful selection of excerpts along with my commentary:
In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses. 
[That's the first sentence!? Oh well, it can only get better for the EEOC from here, right?] . . . . 
The EEOC’s case goes downhill from there. 
[How is that possible?] . . . . 
We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. 
The district court’s judgment is affirmed. 
[Ya don't say.]
The EEOC has targeted criminal and credit background checks as having a disparate impact on racial minorities. It didn't go very well in this case.

Thursday, April 17, 2014

What conduct prompts a $2 million same-sex harassment settlement?

What in the world does an employer have to do to find itself in a position where signing a $2 million settlement is its best option!? Well, according to this EEOC press release:
The EEOC charged a former lot manager, James Gallegos, under the direction of Charles Ratliff, Jr., then general manager, with subjecting a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals.
Wow. Sorry I asked.

I'm guessing almost all employers know not to bite their employees' genitals. But this case serves as a good reminder that same-sex harassment happens, and it can create enormous liability.

Image: EEOC seal used in commentary on EEOC. Not official use.

Wednesday, April 16, 2014

VeepGeek and Tech Issues

A lot of you probably read the title and thought, "what's VeepGeek?" That's @VeepGeek - aka the Twitter handle for Angie Singer Keating, CEO of Reclamere - Data Security Experts in Tyrone, PA (Lawffice Space fun fact: my father grew up in Tyrone). Angie sent me two interesting IT-related articles that I wanted to pass along.

First, a warning from a panel of judges to lawyers to Catch Up with Tech or Lose Your Career. The panel included Judge Shira Scheindlin (of Zubulake fame), and this great line from Judge James Francis: "E-discovery is pervasive. It's like understanding civil procedure." That's an interesting way to look at it. I don't know that e-discovery is as pervasive as the rules of civil procedure quite yet - but it's a point well-taken.

The second article is Does Fourth Amendment protect computer data? Scalia says it’s a really good question. What does the 4th Amendment (search and seizure) have to do with employment law? Glad you asked! First. public employers may face Fourth Amendment claims. And second, privacy expectations often bleed across criminal procedure into invasion of privacy torts.

If you want a good example of tech data searches hitting the workplace and resulting in litigation, then check out the SCOTUS case Quon v. City of Ontario from a few years back. The Court stayed out of some of the thornier issues presented by mobile technology - but did address some overall privacy concerns. Scalia's comments give us some hope that the Supreme Court may be ready to take on some data search issues.

Northwestern's Appeal to NLRB on Football Union

Last week, Northwestern sought review of the NLRB Regional Director's decision that the Northwestern football team could vote on unionization. A few of you have asked me about the brief, so here it is - a fifty-pager!

Northwestern really came out swinging in some of the introductory paragraphs:
In this unprecedented decision, the Regional Director set out to alter the underlying premise upon which collegiate varsity sports is based. By finding that NorthwesternUniversity’s football program is a commercial enterprise and that its football scholarship student-athletes are “employees” within the meaning of the National Labor Relations Act(“Act”), the Regional Director ignored the evidence of Northwestern’s primary commitment to the education of all of its student-athletes, evidence that fully supports that its student-athletes are primarily students, and not employees. Based on the testimony of a single player who admitted that he aspires to play professional football, the Regional Director described Northwestern’s football program in a way that is unrecognizable from the evidence actually produced at the hearing. Northwestern’s football program stands alone as the most successful FBS program for educating athletes to graduation. Whatever one thinks of athletics at other institutions, Northwestern presented overwhelming evidence establishing that its athletic program is fully integrated with its academic mission, and that it treats its athletes as students first. That CAPA’s sole fact witness, Mr. Colter, chose to prioritize his professional athletic aspirations cannot and should not form the basis of any finding about the football program in general and its role in the education of Northwestern’s student-athletes. 
Instead of objectively setting forth the relevant facts, the Regional Director’s decision reads like a brief submitted by an advocate, with the facts he chooses to stress set out in the text of the decision and those which are equally important but which do not support his pre-determined outcome relegated to footnotes or completely ignored. In short, the Regional Director not only ignored much of the record, he also misconstrued, disregarded and misapplied Board precedent and failed to consider, contrary to the dictates of the Act and Supreme Court precedent, the public policy ramifications and practical consequences of his decision to extend the definition of an employee under the Act to collegiate student-athletes at Northwestern.
Tell us how you really feel about the decision!

Tuesday, April 15, 2014

Fired for What!? - Topless McDonald's Rampage

Have you ever seen a woman wearing nothing but a thong trash a McDonald's? Probably not . . . until now. Feel free to check out the video (censored for your protection) here. Wanna guess who got fired? Yup, the McDonald's employees who leaked the surveillance footage with the commentary of everybody cracking up while it goes down.

The link also has bonus footage of a different person assaulting a McDonald's through the drive-through window, if you enjoy McDonald's mayhem.

HT: My colleague Dave Weixel, who heard about a naked McDonald's rampage and thought of me.

Tuesday, April 8, 2014

Coming Today: Obama "Equal Pay" Executive Orders

President Obama is expected to sign two executive orders designed to combat wage inequality today. Based on reports (Washington Post,  U.S. News, Huffington Post, and more), the two executive orders will generally provide that:

  • Federal contractors can not retaliate against employees for sharing salary/wage information; and
  • Federal contractors must report wage-related data to the government (based on Department of Labor regulations to be promulgated under the order).
I should note that the NLRA is generally perceived as covering the issue of employees sharing wage and salary data for private, non-management employees (see general agreement between employee-side Donna Ballman and employer-side Eric Meyer). 

White House executive orders are posted here (as of publication, the orders described above are not up yet).