What employers can learn from EEOC's new Enforcement Guidance on Retaliation

Yesterday, the EEOC published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue. After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

An anniversary love story

Thirteen years ago today I married my best friend. I’m happy to report that the thunderstorms that rocked Cleveland on August 29, 2003, were not of the foreshadowing kind. It hasn’t been perfect. No marriage is. But every day is better because I get to experience it holding Colleen’s hand. And that makes us very, very lucky.

So, I thought I’d re-run a post from four years ago today. Enjoy.

WIRTW #427 (the “treat me like your mother” edition)

Someday I am going to convert this legal blog into a full-time dad/music blog. Until then, you get my semi-regular kids/musical posts. Like today’s.

The lot was definitely rocked today for School of Rock Strongsville’s fall show preview. This was my personal fav from Norah’s Jack White set - Treat Me Like Your Mother by The Dead Weather. Full shows on Sept. 17 and 25 @brotherslounge. @schoolofrockcle #sorcle @thirdmanrecordsofficial @thirdmanrecordscasscorridor #jackwhite #thewhitestripes #whitestripes #thedeadweather @thekills @amosshart

A video posted by Jon Hyman (@jonhyman) on Aug 21, 2016 at 6:07pm PDT

Here’s what I read this week:

OSHA's new Whistleblower Investigations Manual creates a huge burden for employers

Image via Lifehack.org
http://goo.gl/sn/VO1H

We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does. In fact, in addition to guarding our nations’ workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes, such as the Sarbanes-Oxley Act, the Affordable Care Act, and the Clean Air Act, and the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (really, that’s a thing).

For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.

A wage/hour primer for employers with tipped employees

Employment Law 360 is reporting that a waitress is suing Walt Disney World for improperly taking a “tip credit” and paying her less than the minimum wage even though she spent significant time performing non-tipped work.

That story got me thinking that in the nine-plus years of this blog, I’ve never discussed how the FLSA impacts tipped employees. If you employ tipped workers, today is your lucky day.

Did the 7th Circuit finally kill McDonnell Douglas?

If you are an employment lawyer, the words “McDonnell Douglas” will bring a sentimental tear to your eye.

For the unfamiliar, the McDonnell Douglas is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this minimal showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination.

It has existed for the past 43 years, until (maybe) last week.

Federal court's rejection of LGBT discrimination claim on religious grounds has scary implications

Last week, a Michigan federal judge rejected the EEOC’s claim that Title VII covers transgender status or gender identity as protected classes.

In EEOC v. R.G. & G.R. Harris Funeral Homes (E.D. Mich. 8/18/16) [pdf], the agency pursued a sex-discrimination claim on behalf of the Funeral Home’s former funeral director, Stephens, who is transgender and transitioning from male to female. The EEOC claimed that the Funeral Home “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.”

The court rejected that claim on several grounds, including the Funeral Homes’s religious beliefs as protected by the Religious Freedom Restoration Act. This basis for the holding greatly troubles me.

WIRTW #426 (the “back to school” edition)

They are responsible for the matching outfits, not me. Norah and Donovan could not be happier to be back @lakeridgeacademy. #backtoschool #firstdayofschool #lakeridgeacademy

A photo posted by Jon Hyman (@jonhyman) on Aug 17, 2016 at 7:00am PDT

Here’s what I read this week:

Hard to believe that overt pregnancy discrimination still exists … yet it does

Pregnancy discrimination has been unlawful under federal law since 1978. You’d think by now employers would have learned their lesson—that women should not have to choose between being pregnant and being employed. Yet, this recent story from the Washington Business Journal suggests otherwise.

DOL wage/hour agreement with Subway raises legitimate joint-employer concerns

The Department of Labor recently unveiled an agreement with Subway through which the fast-food giant has agreed to assist its franchisees in their wage-and-hour compliance.

According to the DOL

the agreement builds upon the division’s ongoing work to provide technical assistance and training to Subway’s franchisees. It also provides an avenue for information-sharing where we will provide data about our concluded investigations with Subway, and they will share their own data with us, generating creative problem solving and sparking new ideas to promote compliance. When circumstances warrant, the franchisor will remind franchisees of the Wage and Hour Division’s authority to investigate their establishments and to examine records. It also specifies that Subway may exercise its business judgment in dealing with a franchisee’s status within the brand, based upon any history of Fair Labor Standards Act violations.

When the Department of Labor can’t even figure out the FLSA…

According to Employment Law 360, the U.S. Department of Labor has agreed to pay $7 million to settle claims that it failed to pay overtime to thousands of its employees:

“This is the agency that goes around fining all the private employers for doing the same thing that it just ended up paying $7 million to make go away,” said the union’s attorney.…

AFGE’s collective action-type grievance had accused the DOL of violating the Fair Labor Standards Act by failing to compensate employees eligible under the statute for suffer or permit overtime. Amid the 10-year legal fight, workers who were classified as FLSA exempt were moved back to FLSA-eligible, the union said.

ABA amends model professional conduct rules to prohibit discrimination. What took it so long?

Last week, during its annual meeting, the American Bar Association amended its model rules of professional conduct to incorporate employment discrimination into attorneys’ ethical mandates.

Model Rule 8.4 now reads as follows:

(g) It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

WIRTW #425 (the “tschüss” edition)

The Hymans did not take a vacation this summer. Instead, our vacation came to us.

Three years ago we hosted a foreign exchange student from Germany. Zarah entered our house as a stranger, and 10 months later left as our German daughter. Three weeks ago she and her sister, Alexa (German daughter number two) came for a visit. Today, they leave.

“Tschüss” is the German equivalent of “bye.” It’s light and informal. And, so, today, I say “tschüss” to Zarah and Alexa, because we know we will see them again soon (and even sooner on Skype), and danke to their parents (and our good friends), Michael and Karen, for sharing them with us for a few wonderful weeks.

Being accident free is important for a truck driver, says Ohio court

I love common sense legal decisions. Hartman v. Ohio Department of Transportation is one such case. It's holding—four preventable accidents in nine months disqualifies a truck driver from further employment.

Are your DOL posters up to date?

Are your Department of Labor posters up to date? Unless you’ve updated them in the past 9 days, then the answer is likely “no”.

WIRTW #424 (the “parking lot” edition)

If you are looking for a fun Sunday afternoon of music and food truck, look no further than the Strongsville School of Rock.

On Sunday, August 21, it will hold it’s annual parking lot show, aka, Rock the Lot. It will feature a preview of the school’s upcoming fall shows, including Norah Hyman singing and strumming her way through The Many Faces of Jack White, and Donovan Hyman keyboarding, dancing, and making his singing debut (god help us) with Rock 101. It will also have the Smokin’ Rock n’ Roll Food Truck on hand. There’s no better way to spend an otherwise lazy late-summer Sunday afternoon than watching some cool kids make great music.

The event runs 4 – 6 pm on Sunday, August 21, at 16888 Pearl Rd, Strongsville, Ohio.

Details are here.

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I’m taking a much needed long weekend. New content Wednesday.

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Here’s the rest of what I read this week.

A humane approach of layoffs

In addition to this blog, I also pen a monthly column for Workforce magazine. Today, I thought I’d share my most recent column, entitled A Humane Approach to Layoffs. Enjoy.

	Look inside >
A Humane Approach to Layoffs

I thought we were beyond blaming the victim for sexual harassment

This post will be apolitical. I’d hold the same opinion whether the speaker of the comments I intend to discuss was a D, an R, or a something-else. As it stands, however, the speaker happens to be Donald Trump. So, if you don’t want to read something negative about the Republican nominee for President, click over to something else.

Hey, look, it’s me on the Channel 5 news!

Yesterday, I had the pleasure of an interview with Megan Hickey of Cleveland’s Channel 5. We talked about OSHA’s new fines that took effect yesterday.

 

Employers, ignore 7th Circuit’s rejection of Title VII LGBT protections

In Hivley v. Ivy Tech Community College (7th Cir. 7/28/16) [pdf], the 7th Circuit ruled that Title VII does not prohibit sexual-orientation discrimination. In doing so, this appellate court has taken a position directly contrary to that of the EEOC, which has concluded that Title VII expressly prohibits LGBT discrimination under the rubric of gender non-conformity-as-sex-discrimination.

The entire 42-page opinion is worth your time to read. It is a thorough analysis and summary of the state of the law (pro and con) of LGBT employment discrimination. Do not, however, dismiss this Court’s dismissal of Hivley’s claim as anti-LGBT. Instead of anti-LGBT rights, consider the 7th Circuit as pro-precedent. Indeed, even though the plaintiff loses her case, the Court has a lot to say on whether the result, which the Court believes Title VII mandates, is morally justified: