I’ve borrowed Garrison Keillor’s sign-off from his Writer’s Almanac as a way of bidding farewell for a while. It’s hard to imagine life without blogging, but I’ll just have to get used to it. I’ve been asked to become General Counsel and Vice President of Human Resources of the newly created CraftWorks Restaurants and Breweries, Inc.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (also known as “financial reform” or “the Wall Street bill”) made headlines when President Obama signed it into law on July 21. However, many employers may still not realize the legislation contains diversity provisions that could affect them if they are contractors, subcontractors, or service providers for certain federal government agencies. More specifically, the diversity requirements found in the bill will affect financial industry organizations and those connected to them.
Once a hot employment law issue, drug testing has been cool for quite some time. Most courts, including the U.S. Supreme Court, have ruled that there’s nothing wrong with testing for unlawful drugs, particularly in the private sector. So, for two decades, an increasing number of employers do drug testing routinely. The types of drug testing most commonly done are pre-employment, for cause or reasonable suspicion (for example, when an employee is involved in an accident at work, seems to be under the influence of something, etc.), and random.
The recent hubbub over Virginia Thomas asking Anita Hill to apologize to her husband, Justice Clarence Thomas, got me to thinking. Almost 20 years had past since the original Hill/Thomas conflict. It’s still referred to occasionally, but it hasn’t been an issue for a long time. After the substantial media coverage of Mrs. Thomas request for an apology, Thomas’ long-time former girlfriend decided to come forward with allegations that her relationship with Thomas made her aware of Thomas’ addiction to pornography. More media coverage.
Having grown up in a small town in middle Tennessee, I wasn’t exposed much to ballet. I can’t remember seeing a ballet, except perhaps on television, until after I was married. Unlike the theatre, to which I also wasn’t exposed much as a boy, I didn’t appreciate ballet for a long time. Men and women jumping around in outfits that would be banned anywhere else. I’m afraid I didn’t get it.
When the 2008 elections were approaching, I surveyed the laws in all 50 states concerning the voting rights of employees. With the mid-term elections a little more than three weeks away, it’s time for another review this subject. I know that some of you have been recently accessing the post I did back in 2008. The state laws remain basically the same, although there are a few changes. The purpose of this post is to make sure that you are up-to-speed on these laws in the state or states where you have facilities or employees.
In the executive ranks, it’s common for a new CEO or other executive to bring in people he or she knows well. They’ve worked together before. A relationship of trust has already been established. Sometimes, a new CEO will bring a whole new team with him or her — a team he or she knows. But this doesn’t happen only in the executive ranks. All kinds of managers and supervisors and HR professionals are likely to do the same thing if the opportunity presents itself.
According to the Equal Employment Opportunity Commission, Muslim employees filed a record 803 religious discrimination charges for the year ended September 30, 2009. That’s up 20% over the year before. That exceeds the number of charges filed in the year after 9/11. There’s little doubt that these charges will set another record for the year ending September 30, 2010. The EEOC has taken this spike in Muslim-related religious discrimination charges seriously, filing several lawsuits on behalf of Muslim workers.
When it was announced this week that the chairman of the Vatican Bank was under investigation for money laundering, the Vatican said it was “perplexed and astonished.” The Vatican also expressed “maximum confidence” in the chairman. Sound familiar? The Vatican was astonished when the child sex abuse scandal first broke. The Vatican expressed confidence that Catholic priests would never engage in such outrageous conduct.
I have done two previous posts to recognize American workers on Labor Day. The first one contained a history of Labor Day provided by the U.S. Department of Labor. The second one focused on a statement about Labor Day issued by Secretary of Labor Hilda Solis. This year’s Labor Day post will be different, since it seems appropriate to look at Labor Day in the context of the ongoing Great Recession.
If an employee files a claim of discrimination and continues to work for an employer, it’s likely that, sooner rather than later, the employee will also file a retaliation claim. Someone in management will say something or do something that the employee believes to be in retaliation for the discrimination claim she initially filed. So, an employer in this kind of situation will end up with two claims, both usually filed under Title VII of the Civil Rights Act. In time, it’s become obvious that it’s easier for an employer to defend the discrimination claim than the retaliation claim. That means the employer can win one and lose the other.
You are undoubtedly aware of the tragic workplace violence in Manchester, Connecticut. (Click here, here and here for recent recaps.) A few new facts have emerged but shed little light on this deadly event. As fellow blogger Daniel Schwartz, a lawyer in Connecticut, wrote yesterday, the “awful truth” is that, no matter how right employers do things, there is no absolute way to prevent workplace violence once an employee has crossed the line and decided to kill co-workers. I came to a similar conclusion when I wrote several posts on the Fort Hood violence.
Perhaps the one thing of interest that hasn’t been covered on this blog about Supreme Court nominee Elena Kagan is a one year period of time when she clerked for Justice Thurgood Marshall in the late 1980′s. (For my other posts on Kagan, click here, here, here, here, here, here, here, here, here, here, here, here, here and here.) All of these posts have been designed to predict what kind of Justice Elena Kagan would be when it comes to labor and employment law. As previous posts have pointed out, any prediction is more of a guess because of Kagan’s scant record on this subject.
A closely watched case before the Supreme Court right now is City of Ontario v. Quon. The case deals with the question of how far a government employer can go in monitoring an employee’s email. The case was argued before the Court two months ago. This case gives the Supreme Court its first opportunity to address head-on an issue that’s increasingly a point of conflict in the workplace. Moreover, most employers have some type of Internet usage policy that permits the monitoring of employee email.
The False Claims Act (sometimes called the “Lincoln Law,” as it was passed during President Lincoln’s administration) allows private citizens to file lawsuits, on behalf of the federal government, when there’s evidence that a person has wrongly made a claim for money from the federal government. The citizen who files the suit is entitled to part of any money that’s recovered. The government can bring its own lawsuits, but part of the rationale of the False Claims Act is that private citizens’ assistance in helping recover misspent federal funds should be encouraged and rewarded.
One of the most important employment law cases which will be decided by the U.S. Supreme Court during its next term is Staub v. Proctor Hospital. It involves a theory of discrimination law known as “cat’s paw.” The Supreme Court has accepted cat’s paw cases previously, because the various U.S. Circuit Courts of Appeals are divided on the meaning and application of this theory. However, the cases have always been settled or withdrawn before the Court has had a chance to render a decision. The Court has accepted the Staub case but not before Elena Kagan filed a brief in her role as Solicitor General, requesting that the Court do so.
In an effort to predict what kind of Supreme Court justice Elena Kagan will be when it comes to labor and employment issues, it will be necessary to look at things that don’t fit neatly into that area of the law. I will try not to stretch too far in seeking to uncover her political leanings that could apply to the labor and employment area, but I’ll admit that a little stretching will be done because although a few things are beginning to be revealed concerning her views, about the only thing we know for sure is that she’s a registered Democrat.
A Hooters waitress in Michigan claims that she’s been put on probation and told to lose weight if she wants to keep her job. The server, standing five feet, eight inches, and weighing 132 pounds, says she’s devastated and looking for a lawyer. Hooters says it imposes no weight restriction on its employees. “Our practice of upholding an image standard based on appearance, attitude and fitness for Hooters girls is both legal and fair. It is not unlike the standard used by the Dallas Cowboy Cheerleaders or the Radio City Music Hall Rockettes.”
In Colwell v Rite Aid Corp., the Third Circuit Court of Appeals might provide a preview of what it’s going to be like under the Americans with Disabilities Act Amendments Act (ADAAA), even though the Colwell case arose before the ADAAA became effective and was decided under the old ADA. In deciding this case, the Third Circuit makes it clear that it is applying the old ADA, not the new ADAAA. However, it seems unlikely that any court can decide a disability discrimination case these days, regardless of whether it was filed before or after the ADAAA’s effective date, without at least subconsciously taking into account that a new day has dawned for disability discrimination cases.
I haven’t watched much of the new hit CBS reality show, Undercover Boss. Until last Sunday’s episode, I had watched bits and pieces. Last Sunday, I watched the whole thing, featuring Roto-Rooter’s President and COO. I’m sure this episode was structured like the others: executive goes undercover; works various jobs in the company in different locations; discovers there are some tough jobs; finds good employees who have compelling personal stories; and then is reunited with employees to reveal his true identity.