HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

“Backlash Discrimination” and “Complex Employment Relationships” at the Heart of the EEOC’s 2017-2021 Strategic Enforcement Plan

Posted in Discrimination, Equal Employment Opportunity Commission

On October 17, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) unveiled the adoption of its 2017-2021 Strategic Enforcement Plan (“SEP”). The SEP, which was approved by a 3-2 vote, outlines the Commission’s goals and strategies for enforcing the anti-discrimination laws under its purview for the next four years. On the whole, the agency’s chief substantive enforcement priorities remain largely unchanged. Similar to the 2012-2016 iteration, the updated SEP reaffirms the Commission’s focus on the following six substantive areas:

  1. Eliminating Barriers in Recruitment and Hiring;
  2. Protecting Vulnerable Workers, Including Immigrant and Migrant Workers, and Underserved Communities from Discrimination;
  3. Addressing Selected Emerging and Developing Issues;
  4. Ensuring Equal Pay Protections for All Workers;
  5. Preserving Access to the Legal System; and
  6. Preventing Systemic Harassment.

Continue Reading

Employer Best Practices For Curbing “Locker Room Talk” At the Office

Posted in Workplace Policies

As you are probably aware, “locker room talk” has become a recent issue in the news. Hopefully, we can all agree that the office is not the place for such crude remarks.  But how can managers effectively curb such offensive language – especially if the office environment is full of banter among co-workers? Continue Reading

Win, Lose or Draw? How will the 2016 Election Impact Your Business

Posted in Fair Labor Standards Act, Immigration, NLRB, Uncategorized, Wage & Hour

Badge with message of USA election 2016On Wednesday, October 26, 2016, Obermayer Rebmann Maxwell & Hippel’s Labor Relations and Employment Department will host a discussion on the upcoming presidential race and what employers can expect from a Democratic or Republican victory.  The stakes are high this year as labor relations, overtime rules, the FLSA, immigration and other areas could all see major changes come the start of the new presidential term in January 2017.  Join us on October 26th as Obermayer’s top employment counsel offer their insights into Election 2016.  Click here for more information or to register.

Blurred Lines: Courts Still Unclear On When Sexual Orientation Discrimination is Illegal

Posted in Sexual Orientation Discrimination

Since its passage in 1964, Title VII of the Civil Rights Act has prohibited discrimination in employment on the basis of race, color, religion, sex and national origin. Title VII, which applies to all employers with 15 or more employees, is one of several major United States employment statutes that is enforced by the EEOC. Despite bills such as the Employment Non-Discrimination Act (which has been introduced in Congress repeatedly), Title VII has never been amended to add workplace protections on the basis of sexual orientation or gender identity. Yet gender remains protected, leaving courts in the position of trying to untangle what is gender discrimination versus sexual orientation discrimination.  In a July 2016 decision, Hively v. Ivy Tech Community College, the Seventh Circuit Court of Appeals delved into this sometimes confusing area of the law in detail. Continue Reading

Without a Box to Stand on: States May Lack Right to Fight EEOC Criminal History Guidance After All

Posted in Ban the Box


Criminal Background check 15244698_LargeAs our readers are likely aware, ordinances have been adopted in recent years in numerous jurisdictions limiting an employer’s ability to inquire about a job applicant’s criminal background. These so-called  “Ban the Box” ordinances prohibit employers from conducting criminal background checks until after giving applicants conditional offers of hire. On Friday, September 23, 2016, the Fifth Circuit weighed in on the matter when it vacated its June 27, 2016 opinion that granted Texas standing to challenge the Equal Employment Opportunity Commission’s enforcement guidance on the timing and consideration of criminal background checks in the hiring process. The appellate panel remanded to the Northern District of Texas to consider whether the recent U.S. Supreme Court decision in U.S. Army Corps of Engineers v. Hawkes Co. dictates otherwise. A copy of the appellate panel’s decision may be viewed here. Continue Reading

One Expensive Bottle of Orange Juice: Denial of a $1.69 Orange Juice Costs Dollar General $277, 565 in Back Pay and Damages

Posted in Americans with Disabilities Act, Discrimination, Equal Employment Opportunity Commission, Workplace Policies

On September 16, 2016, a Tennessee jury awarded Linda Atkins, a former Dolgencorp LLC (“Dollar General” or the “Company”) Sales Associate, $277,565 in back pay and compensatory damages after being fired for drinking orange juice prior to paying the $1.69 cost to prevent a diabetic episode. Continue Reading

EEOC Supports NLRB’s Joint-Employer Standard before DC Circ.

Posted in Equal Employment Opportunity Commission

On September 14, 2016 the Equal Employment Opportunity Commission (“EEOC”) filed an amicus brief in the D.C. Circuit expressing support for the National Labor Relations Board’s (“NLRB”) loosened standard of a joint employer. Under this loosened standard, a joint-employer relationship can exist if an employer exerted “indirect control” over the terms and conditions of employment. The NLRB’s previous joint-employer standard required a business to have “direct and immediate” control over the terms and conditions of employment. However, as explained previously in HR Legalist, this standard was expanded in Browning-Ferris when the NLRB concluded that BFI and a staffing agency were joint employers of workers at a BFI-owned recycling facility in Milpitas, California. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). Continue Reading


Posted in Fair Labor Standards Act, Wage & Hour

iStock_000067070143_FullOn August 4, 2016, the U.S. Department of Labor (“U.S. DOL”) and the Pennsylvania Department of Labor and Industry (“PA DOL”) signed a memorandum of understanding  (MOU) to coordinate efforts, by sharing information and conducting joint investigations on employers who may be violating one or more of the state or federal wage and hour laws that each agency has been charged with enforcing.  (The MOU can be accessed here area of common interest to both agencies has been the misclassification of employees as independent contractors.  The MOU is part of the U.S. DOL’s Misclassification Initiative, the stated goal of which is to “combat employee misclassification and to ensure that workers get the wages, benefits, and protections to which they are entitled.” Continue Reading

NLRB Loses Its Lunch Over Chipotle’s Social Media Policy

Posted in NLRB, Workplace Policies

Burrito PlateOn August 18, 2016, the National Labor Relations Board (NLRB) affirmed an administrative law judge’s (ALJ) March 14, 2016 ruling that Chipotle’s “Social Media Code of Conduct” violated the National Labor Relations Act (NLRA).

By way of background, Chipotle terminated associate James Kennedy in February of 2015 shortly after he made several tweets regarding employee working conditions and wages. During the same time period, Kennedy circulated a petition amongst his coworkers addressing management’s purported denial of break periods. The Pennsylvania Workers Organizing Committee subsequently filed two unfair labor practice charges against Chipotle asserting that Chipotle maintained an unlawful social media policy, enforced unlawful work rules, prohibited Kennedy from engaging in protected concerted activity, and terminated Kennedy because he engaged in protected activity. Continue Reading

NJ Minimum Wage Increase on Hold – For Now

Posted in New Jersey Law, Wage & Hour

As predicted by HR Legalist in May, New Jersey Governor Chris Christie has vetoed a democratic-backed measure that would have gradually increased New Jersey’s minimum wage from $8.38 to $15 per hour over a four-year period.  In today’s veto message from a grocery store in Pennington, NJ, and in a press release, the Governor paraphrased many concerns previously raised by the business community in opposition to the bill, including increased supply and labor costs, potential price increases or layoffs, and pressure on businesses to leave New Jersey. Continue Reading