Thursday, January 19, 2017

NEW CHART: EEOC Charge Data from FY 1997-2016

The EEOC just released its enforcement and litigation data for FY 2016. You know what that means... updated chart! Overall, the number of charges increased for the second straight year to 91,503 (still far short of 99,000+ in 2010, 2011, and 2012).

Not included in my chart: Retaliation, which leads the way with 42,018 charges, (45.9% of all charges filed); GINA, with only 238 charges; Color (3,102); and Equal Pay Act (1,075).


Monday, January 16, 2017

SCOTUS on Employee Class Action Waivers in Arbitration Agreements

On Friday, the Supreme Court granted certiorari in a ton of cases (16 for people who prefer precision). The exciting news on the employment law front is that the Court will hear three (now consolidated) cases addressing the issue of class action waivers in the employment context.

As the Petition in NLRB v. Murphy Oil USA puts it, the issue is:
Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under 29 U.S.C. 158(a)(1), because they limit the employees’ right under the National Labor Relations Act to engage in “concerted activities” in pursuit of their “mutual aid or protection,” 29 U.S.C. 157, and are therefore unenforceable under the saving clause of the Federal Arbitration Act, 9 U.S.C. 2.
In other words, can employers enforce agreements that will force employees into individual arbitration and forego collective or class actions?

The Supreme Court has been very arbitration-friendly over the years, but often in closely divided cases. Justice Scalia was one of the voices in the narrow majority. This one could come down to President Trump's appointment (assuming (s)he gets confirmed in time to hear the case).

Thursday, January 12, 2017

Circuit split: 3d Cir. recognizes ADEA subgroup disparate impact claims

The ADEA protects employees over the age of 40 from age discrimination. In Karlo v. Pittsburgh Glass Works, LLC, the Third Circuit analyzed whether a subgroup of employees older than 40 can bring a disparate impact claim:
Disparate-impact claims in ADEA cases ordinarily evaluate the effect of a facially neutral policy on all employees who are at least forty years old—that is, all employees covered by the ADEA. In this case, plaintiffs claim to have identified a policy that disproportionately impacted a subgroup of that population: employees older than fifty.
Not official use.
If you counted the employees older than 40 but younger than 50, it "washed out the statistical evidence of a disparity."

The Court provided in depth analysis of the issue, but one of the primary factors was the specific protection provided by the ADEA. "[T]he ADEA proscribes age discrimination, not forty-and-over discrimination." The Court relied heavily on the Supreme Court's determination that a 56 year old employee could file a discrimination claim if he was fired and replaced by a significantly younger worker... even if that comparitor was over 40. See, O'Connor v. Consolidated Coin Caterers Corp.

Ultimately, the Third Circuit concluded that plaintiffs may bring disparate impact claims where a policy disproportionately impacts a subgroup of employees older than 40 (e.g. employees odler than 50), even if the statistical evidence would not support a disparate impact theory when applied to the entire class of employees over 40. This creates a circuit split, as multiple other circuit courts have reached the opposite conclusion. Circuit splits often draw SCOTUS attention - we'll see if this is the case that gets the issue to SCOTUS.

Thursday, January 5, 2017

Miles on Overtime Regulations Litigation

The shameless self-promotion department directs your attention to the following Pennsylvania Business Central article: Overtime in Limbo - Businesses left to wait for final decision on overtime regulations. The article includes commentary on the future of the (currently enjoined) overtime regs . . . including commentary from yours truly. Enjoy!

Wednesday, December 28, 2016

Hospital Coughs Up $300,000 in Vaccination Lawsuit

We've been here before. Employers (often hospitals) require employees to get vaccines. Some employees object on religious or disability grounds. They get fired. Litigation ensues.

You can read my prior analysis of such issues here, here, or here. To cut to the chase, the employer can prevail by showing that either:

  • The employer cannot accommodate the vaccine-less employees without incurring an undue hardship; or 
  • The lack of vaccine poses a direct threat to health or safety.
This should be relatively easy to establish in a hospital, right? Kids, the elderly, and people with compromised immune systems are all over the place. So, why did a Pennsylvania hospital cough up $300,000 to settle an EEOC lawsuit?

Well, per the Complaint, the hospital did accommodate some people by exempting them from the vaccine requirement so long as they wore a face mask. It becomes harder to argue that an exemption from the vaccine requirement imposes an undue hardship or direct threat when they're handing out accommodations like this. 

For reasons that are not clear, the hospital allegedly declined to grant the accommodation to other employees. Again, per the Complaint, the employees' religions included Russian Orthodox, Baptist, Methodist, Mysticism, and more. One employee allegedly submitted Bible passages and had her priest contact the hospital (this sounds like a sincerely held religious belief, am I right?).

Bottom line: If employers are going to make vaccines mandatory, they need to either hold a hard line (in cases where vaccine-less employees pose a threat to the health or safety or patients or otherwise impose an undue hardship, for example); or, consistently accommodate employees with sincerely held religious beliefs (or disabilities).  

Friday, December 9, 2016

Trump picks Puzder for Labor

Yesterday, President Elect Donald Trump named Andy Puzder (CEO of Carl's Jr. and Hardees) to head the Department of Labor. You can read more about him via Reuters: Trump picks opponent of higher minimum wage for Labor Department. I saw a lot of chatter on Twitter about his comments regarding robots:
Not official use.
On the one hand, I can see why this upsets some people... on the other hand, I'd be more concerned if the new head of DOL did *not* understand the implications of the rapid advances in automation and AI.

I think it's safe to say we'll see some significant changes from the Obama years. The first thing on his plate will likely be the overtime regulations appeal, which just received an expedited briefing schedule at the Fifth Circuit.

Tuesday, December 6, 2016

7th Circuit: NCAA Student Athletes are Not Employees

Yesterday, the Seventh Circuit held that NCAA student athletes are not employees under the Fair Labor Standards Act (FLSA), and therefore they are not entitled to minimum wage. You can read the opinion in Berger v. NCAA here (.pdf).

The Court's opinion really came down to three main points:
Not official use.

  • The Court decided not to apply the standard multifactor tests for analyzing whether an employment relationship existed because the multifactor test "fail[s] to capture the true nature of the relationship";
  • The Court then noted the "long-standing . . . tradition of amateurism" in college sports; and
  • The Department of Labor "Field Operations Handbook" specifically excludes "extracurricular activities" from its definition of employment, with a cross reference to a mention of "interscholastic athletics."
And that's pretty much it. I don't think I'm oversimplifying the Court's opinion here. 

I do think the Court oversimplified the analysis, and some review of the traditional multifactor test would have been informative. That's not to say that I think they reached the wrong result - to the contrary, I suspect this is the correct outcome - it just felt a little underwhelming. In fairness, the Court was deciding this case at the pleadings stage and therefore had virtually no record on which to base such analysis. 

Endnote: In a concurring opinion, Judge Hamilton notes that the plaintiffs were non-scholarship athletes in a non-revenue-generating sport (UPenn Track and Field). The "economic realities" may result in a different outcome for scholarship athletes in revenue-generating sports.