Lawffice Links: COVID-19 guidance still trickling in

The guidance just keeps comin' folks:

• EEOC updated What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws - New Q&A on pregnancy, age discrimination, accommodations, and more; 
  
• DOL OSHA FAQs on face coverings;
• Joint Statement by Treasury Secretary Steven T. Mnuchin and SBA Administrator Jovita Carranza Regarding Enactment of the Paycheck Protection Program Flexibility Act;
• Not agency guidance, but a nice article addressing agency guidance: What to Expect When You’re Expecting OSHA to Visit Your Reopened Workplace;
• If you go to OSHA.gov, you can see a COVID-19 Tip of the Day (subscribe here) - Some nice bite-sized tips, but sometimes a little obvious. For example, today's is "Replace face-to-face meetings with video conferencing." Ohhhhh, hey thanks, never thought of that!

Enjoy!

Lawffice Links - NLRB-mageddon

Wow, the NLRB has been busy. So busy, that I literally can't even keep up. Maybe they'll take a break over the holidays so I can properly digest all of this stuff. Here's my feeble Twitter attempt to hit some highlights.

Here are some Lawffice Links on the subject.

• Gale Force Winds of Change: National Labor Relations Board Reverses Course on Workplace Rules and Joint Employer Standards.
• Have you ever seen the former NLRB Chair and Stone Cold Steve Austin in the same room?
• Big Moves for NLRB Mean Big Shifts for All Employers.
• NLRB Restores Sanity to its Rules on Employee Handbooks and Joint Employment.
• Punching In: What a Week for the Labor Board.

What's truly amazing is that this has largely flown under the radar. I remember when the then-new joint employer standard was a top trending topic on Twitter. That decision has now been overruled, along with several other major reversals, and I hardy hear anything about it (I mean, in the mainstream media and social media trends - obviously, the #emplaw nerds are all over it). I'm sure this is only the beginning. 

Lawffice Links - Title IX Developments

I mostly focus on employment law on this blog, but my practice includes a lot of college and university law too. The law is constantly changing with regard to Title IX obligations to respond to allegations of sexual misconduct. Here are a few Lawffice Links on recent developments:

• Public university students accused of sex assault must get some chance to confront accusers (at least in ‘he said/she said’ cases) (WaPo) by Eugene Volokh;
• Statement from the U.S. Department of Education withdrawing the 2011 Dear Colleague Letter (and subsequent 2014 Q and A);
• The Department issued a new Q and A for interim guidance;
• We're also going back to the Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties from 2001 for now; and
• If you're a NACUA* member, they're doing a great job of holding tele-briefings and maintaining a Title IX resources page. 

Stay tuned because, per the Department's statement, "In the coming months, the Department intends to engage in rulemaking on Title IX responsibilities arising from complaints of sexual misconduct. The Department will solicit comments from stakeholders and the public during the rulemaking process, a legal procedure the prior administration ignored." (ouch, not saying the prior administration doesn't deserve the criticism, but that was a little harsh). 

* NACUA is the National Association of College and University Attorneys. 

Lawffice Links - Wages, Statutory Interpretation, and the Oxford Comma

We hold these truths to be self evident, that paragraph indentations should be reduced from .5 to .3, that one period between sentences is better than two, and that you should always use the Oxford comma.

As I sometimes do with issues that have already been blogged to death, I drop some Lawffice Links instead of re-hash:

• Oxford comma issue benefits drivers in overtime case in ABA Journal;
• Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute in NYT (HT: @nick_reichart via Twitter) (Sidenote: I'm about 95% sure that the author is my high school band director's son); 
• For want of an Oxford comma by Jon Hyman; and
• Employer’s wage and hour defense foiled by a comma. Yep, a damn comma! by Eric Meyer.

Finally, if you're still not quite sure what an Oxford comma is, then I hope this will help:

Lawffice Links - Some labor news

A few labor stories of interest:

• Long-rumored, but official as of yesterday: Andy Puzder withdrew his nomination for Secretary of Labor. He had a slew of problems, including a housekeeper who worked for him illegally, advertising campaigns for his burger joints that were perceived as sexist, many viewpoints that conflicted with those of the prior administration's DOL, allegations (since recanted) of domestic abuse, and he he was reportedly not enjoying the nomination process. 

• He wrote a book about job creation. I started reading it to get some insight into the guy I assumed would lead the DOL - Job Creation: How It Really Works and Why Government Doesn't Understand It. Frankly, I found it to be a tough read. The gist is pretty simple... with regard to government regulations we need (1) more certainty; and (2) fewer regulations.

• Also, Boeing Employees Vote Against Unionizing In South Carolina. 

• You may recall some controversy when President Obama's NLRB went after Boeing for allegedly "deciding to transfer a second airplane production line from a union facility in the state of Washington to a non-union facility in South Carolina." The NLRB later dropped the case. 

Lawffice Links - New and entertaining employment law cases

A few entertaining employment law cases for your enjoyment:

• Say it ain't so! Eddie Money is facing sexual harassment (and other discrimination) allegations from his former drummer and the drummer's wife. Confession: I'm a closet Eddie Money fan, and even saw him in concert circa 1996). 

• In another shocking defeat for hot people everywhere: It's not illegal to fire someone for being 'too cute,' Manhattan trial court rules (HT via email from my colleague, Dave Weixel). Geez, first the "irresistible" dental assistant lost, and now this!? Incredibly attractive people just can't catch a break.

• Finally, white Pittsburgh reporter, Wendy Bell, filed a race discrimination lawsuit. She posted something arguably racist on social media and got fired for it. From her attorney: 
"Had an African-American journalist said the same thing, it wouldn't have generated the same quote-outcry-unquote." Does this remind anybody else of the white reporter from Philly who was fired for using the n-word and claimed that black employees used it and were not fired? We know how that turned out . . . .

Lawffice Links - EEOC Issues New Resource Document Addressing Issues Related to Leave and Disability

Well, if you take the day off from blogging you fall behind. The good news is that when you come back you can just link to the best blog entries on yesterday's hot topic without the hassle of writing something yourself! I baked some Lawffice Links for the EEOC's new resource document:

• Here's the document: Employer-Provided Leave and the Americans with Disabilities Act and the EEOC's press release; 
• Jon Hyman: EEOC issues new guidance on leaves of absence under the ADA;
• Dan Schwartz: EEOC Releases Guidance on Employer-Provided Leave Under ADA;
• Eric Meyer: A new EEOC resource is the peanut butter to your Americans with Disabilities Act jelly and  
• Jeff Nowak (FMLA Insights): EEOC Issues New Resource Document Addressing Leave as a Reasonable Accommodation under the ADA. What's the Impact on Employers? 

Enjoy!

Lawffice Links - President Obama on Equal Pay and New EEO-1s

On Friday, President Obama made some announcements regarding his efforts to address pay equity. He timed them to match the 7th anniversary of the Lilly Ledbetter Fair Pay Act"

• From the White House Blog: Taking Action to Advance Equal Pay
• President Obama is once again pushing the Paycheck Fairness Act. Jon Hyman has a good summary of an early version of the bill: Do you know? What is the Paycheck Fairness Act and why should employers be concerned?
• The Council of Economic Advisers released an issue brief: Gender Pay Gap on the Anniversary of the Lilly Ledbetter Fair Pay Act
• Part of the plan is for the EEOC to collect more data via revisions to the EEO-1 form. Eric Meyer has a good (and entertaining) post: Those EEO-1s you love to complete are gonna get more complicated

That should keep you busy for awhile. 

Lawffice Links - SCOTUS Arguments on Mandatory Fees for Public Unions

Yesterday, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association (SCOTUSblog page), a hugely important case for public unions. I baked some Lawffice Links to mark the occasion:

• For a good introduction to the case, check out Justices return to dispute over union fees for non-members: In Plain English, which describes Friedrichs as "a case which asks [the Supreme Court] to overrule a 1977 decision and hold that public employees who don’t want to join the union that represents them also can’t be required to pay a fee to cover the costs that the union incurs in collective bargaining."
• You can read the transcript from yesterday's oral arguments here. 
• Cato Institute thinks it went well from their libertarian perspective: Supreme Court Poised to Free Public-Sector Workers from Compelled Union Fees.
• Adam Liptak from NYT similarly concluded that it did not look good for the public union's side:  Supreme Court Seems Poised to Deal Unions a Major Setback.
• Still not enough? On Labor compiled its own Friedrichs Oral Argument Commentary Round-Up, with even more links. 

So far, the commentators seem to think that SCOTUS is going to overrule Abood (the aforementioned "1977 decision") and strike down mandatory fees. Of course, we never know how the Supreme Court is going to rule until they rule. Stay tuned. 

Lawffice Links - Hodge Podge

I've had a busy week, so please excuse the dearth of blogging. There have been a few interesting employment law developments that deserve some recognition though. Have some Lawffice Links to get caught up:

• $150,000 settlement in "one of the first two lawsuits ever filed by the U.S. Equal Employment Opportunity Commission (EEOC) alleging sex discrimination against a transgender individual."
• The Sixth Circuit applied the "honest belief rule" in an ADEA case - The idea here is that an employer can escape discrimination liability if it has a non-discriminatory reason... "even if its conclusion is later shown to be mistaken, foolish, trivial, or baseless."
• In a separate decision, the Sixth Circuit also held that the ADA did not require an employer to allow an employee to telecommute under the circumstances of that case:
• Sixth Circuit's opinion. 
• Commentary from Jon Hyman.
• Commentary from Dan Schwartz.
• Commentary from Eric Meyer.

Enjoy!

Lawffice Links - Potluck Breakfast

I cooked up some Lawffice Links this morning, but there's no real theme. So, I'll just call this hodgepodge a "potluck breakfast" and get on with the show:

• First up, the Employment Law Blog Carnival (#ELBC) is visiting Eric Meyer's The Employer Handbook this month. It includes a Lawffice Space entry, so be sure to check out The ELBC - Instagram Edition. 
• Bloomberg reports on an unorthodox new employee wellness program. Essentially, employees "wear a fitness-tracking bracelet from Fitbit Inc. to earn points toward cheaper health insurance." HT: Ann Althouse. 
• FoxNews Insider reports that 40% of Americans "leave paid vacation time on the table." I am definitely in that 40% and it's not close. The obvious takeaway here is that employers need to cut way back on the amount of vacation time they give employees (just kidding).

Lawffice Links - HR Fun Facts

Getting back into the swing of things can be tough following a 3-day weekend. So, I cooked up a few Lawffice Links to make it a little more enjoyable:

• In Taiwan, employees get 30 days of half-paid sick leave per year (at this point, I should note that I have been with McQuaide Blasko for almost 6 years and haven't taken anywhere near 30 sick days across all 6 years - in fact, I'll bet it's less than half that . . . but I digress) . As of 2013, female employees get an additional 3 days for menstrual leave. The link discusses the pros and cons, and the possibility for bringing it to the United States.
• Shaquille O'Neal, HR professional? Apparently Shaq (aka Shaq Fu, the Big Aristotle, Shaq Diesel, and about a million other names), has an Ed.D. in Human Resources from Barry University. Who knew?
• An unidentified man, who can only be described as my personal hero, was disciplined for singing "This is How We Glue It" every time he went to the sticking station. I have had that song stuck in my head for about two days now. 
• Finally, a timely link about Memorial Day. Did you know that the birthplace of Memorial Day is Boalsburg, PA, right down the street from me? Okay, it's a bit of a contested fact - but the link is still interesting. 

Lawffice Links - Hobby Lobby SCOTUS Oral Arguments

Last week, the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby (aka the Obamacare Contraceptive Mandate Case). I baked some Lawffice Links for the occasion:

• First, check out the SCOTUSblog page for Sebelius v. Hobby Lobby, and a friendly reminder that there is a companion case straight out of my home state of Pennsylvania, Conestoga Wood Specialties Corp. v. Sebelius.
• You can check out the transcript from oral arguments here. And, the audio is now available here. 
• SCOTUSblog's argument recap.
• The Wall Street Journal live-blogs the craziness. 
• Did I mention that a woman hand-knitted a uterus for Hobby Lobby?

I suspect this will be one of the last SCOTUS opinions of the year, sometime in late June.

Lawffice Links - Pending Obamacare Challenges

Oh c'mon, you didn't think NFIB v. Sebelius (opinion here) would be the end of the Obamacare legal challenges did you? Here, digest some Lawffice Links to keep you up to speed:

• The big news from last week was that SCOTUS granted certiorari in two of the "contraception mandate" cases: Sebelius v. Hobby Lobby Stores, Inc. and from the 3d Cir., Conestoga Wood Specialties Corp. v. Sebelius (SCOTUSblog case sites). The cases will generally address the religious rights of closely held corporations versus the ACA's contraception mandate.
• To help you understand the issues in the contraception mandate cases, Eugene Volokh has promised heavy blogging on the subject. He appears to be using the tag "Hobby Lobby" so this link should take you to his posts.
• SCOTUS denied cert in a case seeking review of the employer mandate (and a few other issues).
• WSJ has Obamacare's Next Legal Challenge, a challenge to the IRS's tax penalties in states that did not create their own exchanges (HT: Josh Blackman).
• Still not enough Obamacare litigation? Don't forget to check out the Long-Shot Legal Challenges to Health Care Law in the USA Today.

Phew! That should keep you busy for awhile. 

Lawffice Links - Workplace Vaping (E-Cigarettes)

I have to admit, I have had exactly zero people ask me about this subject. But the Internet assures me it's a hot topic, so I thought some Lawffice Links would be in order:

• For a description of vaping and one user's positive experience, check out I'm a Smoker and I Love e-Cigarettes.
• Not everyone is a fan - The National Business Group on Health released this fact sheet: What Employers Need to Know About Electronic Cigarettes.
• Bloomberg has coverage: E-Cigs Wafting Into Workplace 25 Years After Smoking Ban.
• And Penn-Live: Should Co-Workers be Allowed to Puff on E-Cigarettes at the Office?
• How can employers prohibit vaping in their employee handbooks? - E-cigarettes: A Burning New HR Issue (spoiler alert: just add vaping and electronic cigarettes to your existing no smoking policy). 

Of course, maybe employers don't want to ban e-smoking in the workplace. Other options include: do nothing and let people e-smoke where they want (I have a feeling this will annoy at least one person in every office - but maybe I'm wrong); or designate an area for vaping. If you have a workplace vaping policy you'd like to share, drop a comment.

Lawffice Links - SCOTUS hears "the most significant labor case in a generation.”

Yesterday, the Supreme Court heard oral arguments in Unite Here Local 355 v. Mulhall.Harvard prof. Ben Sachs describes it as potentially "the most significant labor case in a generation." The question presented is:

Whether an employer and union may violate § 302 [of the Labor-Management Relations Act] by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business?

Sounds complicated, so I baked some Lawffice Links to help sort things out:

• SCOTUSblog has a nice argument preview: Unite or disunite - another roadblock to union organizing and collective bargaining.
• How big is this case? Even the NYT is on it: Supreme Court to Take Up Challenges to Union Practices (featuring the Sachs quote above).
• Let's not forget the transcripts from the oral arguments.
• Sachs and fellow Harvard prof. Jack Goldsmith have a blog called On Labor, with extensive coverage of the case and arguments. 
• Reuters also chimed in with coverage of the arguments: Supreme Court weighs employer-union organizing deals.

Now we just sit back and wait for the Supreme Court to drop an opinion on us.

Lawffice Links - Snowden: Whistleblower or Criminal

Employment law doesn't usually entail top secret national surveillance programs, accusations of treason, and international media firestorms . . . so the least I can do is bake some Lawffice Links when it does:

• THE ORDER: The top secret order that kicked off the media coverage (fun fact: the judge who signed the order, Roger Vinson, is the same Florida judge who ruled that Obamacare was unconstitutional and struck down the entire law).
• TREASON: Senator Nelson accuses Edward Snowden of treason.
• DEBATE: New York Times Room for Debate:Leak Case, a Whistle-Blower or a Criminal.
• LEGAL RISKS: CNN Video: Legal Risks for NSA Leaker.
• WHISTLEBLOWER PROTECTION: Loopholes Exclude Intelligence Contractors Like Snowden from Whistleblower Protections.

Lawffice Links - New EEOC Publications Galore!

Wow, I can hardly keep up with all of these new EEOC publications. Here are the links:

• Cancer: Q&A on Cancer in the Workplace and the ADA
• Diabetes: Q&A on Diabetes in the Workplace and the ADA
• Epilepsy: Q&A on Epilepsy in the Workplace and the ADA
• Inetellectual Disabilities: Q&A on Intellectual Disabilities in the Workplace and the ADA
• GINA: What You Should Know: Q&A About Genetic Information Nondiscrimination Act (GINA) and Employment
• The Mental Health Provider's Role in a Client's Request for a Reasonable Accommodation at Work

In case you didn't have any plans for the three-day Memorial Day weekend . . . .

Lawffice Links - Noel Canning Hits SCOTUS

Were President Obama's NLRB recess appointments constitutional? We're one step closer to an answer from SCOTUS! Let's taste some Lawffice Links on the subject:

• The D.C. Circuit Court of Appeals issued this opinion holding that the recess appointments were unconstitutional.
• Now, the NLRB has taken its case to the Supreme Court by filing this petition for writ of certiorari.
• This report indicates that the employer, Noel Canning, will "encourage the court to take the case."
• If you're really interested in the president's recess appointments power, check out the Volokh Conspiracy's Recess Appointments Reading List.
• Meanwhile, the NLRB has work to do, so President Obama has nominated enough members to fill the roster. Even if they're confirmed, the Noel Canning case could still call into question all of the cases decided by the disputed recess appointees prior to confirmation.

I think SCOTUS will take this one, but you never know.

Lawffice Links (plus bonus prediction!) - DOMA and Prop 8

The same-sex marriage cases at the Supreme Court have garnered tons of media coverage. The public is so interested in these cases that #SCOTUS was even a trending topic on Twitter! Let's not get too carried away though . . . "CatsAreSluts" was an even more popular trending topic on Twitter on Tuesday. Nevertheless, I baked some fresh Lawffice Links to catch up on the latest:

• Court to Tackle California's Ban on Same Sex Marriage: In Plain English - SCOTUSblog provides a nice summary of the Prop 8 case.
• Prop 8 Supreme Court oral arguments: Transcript | Audio
• DOMA as a States' Rights Problem: In Plain English - SCOTUSblog tackles the DOMA case.
• DOMA Supreme Court oral arguments: Transcript | Audio
• Scalia Furious he has to Hear About Gay Couples All Week - This is from The Borowitz Report . . . it is *satire* - like The Onion - it is not real. I can't even begin to tell you how many people on Twitter apparently thought this was a real story (some of them even petitioned to have Justice Scalia recuse himself from the case based on this!).

My predictions? I'm going to go with (what I think are) the prevailing predictions amongst court-watchers:

Prop 8 - Majority decision holding the Petitioners lacked standing, resulting in the 9th Circuit District Court (?) opinion striking down Prop 8 being the final word (no nationwide SCOTUS precedent on a right to same-sex marriage).

DOMA - Fractured opinion striking down DOMA with the four-Justice liberal bloc holding that it violates a right to same-sex marriage and Justice Kennedy (who I predict will pick up a buddy or two)  holding that it violates federalism principles (there will probably also be some votes for SCOTUS lacking the authority to hear the case because Obama wouldn't defend it - even though he enforces it. A group of GOP representatives did defend it, but it's questionable whether that's good enough because they're not a real party in the case).

The end result being that there is still no Supreme Court precedent on a right to same-sex marriage . . . but Prop 8 and DOMA both get struck down.