Speaking on July 27 to the Industry Liaison Group’s 29th Annual National Conference to an audience of human resources professionals for the nation’s top companies, the Office of Contract Compliance Director Patricia Shiu emphasized the OFCCP’s top initiatives. She stated that the OFCCP will focus on pay equity and compensation discrimination and affirmative action for military veterans and persons with disabilities. The OFCCP issued proposed rule-making establishing “benchmarks” for recruiting and hiring of veterans in April 2011 and is presently evaluating the comments it received. Shiu characterized those as benchmarks rather than quotas or ceilings.

Continue Reading OFCCP Director Shiu Outlines Agency Objectives

On July 7 and 19, 2011, the NLRB’s Office of the General Counsel issued a series of three advice memoranda recommending the dismissal of unfair labor practice charges filed by employees who were disciplined for comments made on Facebook. In each of these charges, the employee alleged that their discipline violated Section 8(a)(1) of the National Labor Relations Act, but in each the NLRB’s General Counsel’s Office concluded that there was insufficient evidence that the employee engaged in concerted activity.

Continue Reading NLRB General Counsel Recommends Dismissal of Three Charges Contesting Discipline for Facebook Comments, Finding No Concerted Activity

In earlier posts, we discussed the best time to mediate different types of employment or ERISA matters. Although some disagree, selecting a mediator to facilitate a settlement based on a meeting of the minds may be the most important part of the mediation process. Even though mediation is a party-driven process, the mediator’s knowledge, skill, experience, style and ability to handle the type of individuals involved in the dispute has a substantial impact on the resolution of the dispute. With apologies to Kyra Sedgwick, the goal is to find The Closer.

In most private mediations, the parties and their counsel select the mediator, and bear the burden of selecting an appropriate person to mediate the dispute. In making a selection, there are a number of issues the parties may want to consider.

Continue Reading Looking for The Closer for your dispute. . .

Several days ago, I read the New York Times article reporting that the NLRB’s Manhattan Regional Director was threatening to file a complaint against Thomson-Reuters for allegedly reprimanding an employee who had criticized management on Twitter.
Continue Reading An Appeal for Cooler Heads on NLRB’s Social Media Policy Enforcement

On Tuesday, the U.S. Supreme Court heard oral argument on Wal-Mart’s appeal of the Ninth Circuit’s en banc decision upholding the certification of a class action gender discrimination lawsuit in Dukes v. Wal-Mart Stores, Inc. As noted by a number of commentators (among them The Wall Street Journal, Forbes, The Christian Science Monitor, and CNN), the tone of the Court’s questioning indicates that the Court is likely to rule in Wal-Mart’s favor.

This appeal stemmed from a federal court’s certification of a nationwide class of female employees of Wal-Mart who were allegedly subjected to discriminatory pay and promotion policies. The class seeks injunctive relief and money damages (back pay) for all women employed since December 1998 in positions ranging from entry-level hourly employees to salaried managers. The class certified in 2004 included 1.5 million women; it currently is estimated to include 3 million women. The district court and Ninth Circuit certified the class after concluding that statistics and sociological expert testimony could allow Plaintiffs to show that Wal-Mart’s culture, when combined with its decentralized decision-making structure, resulted in discrimination against Wal-Mart’s female employees. Those courts approved class certification despite (1) Wal-Mart’s written policy of anti-discrimination, (2) evidence that there was no gender-based pay disparity at 90% of Wal-Mart’s stores, (3) an admission by plaintiff’s expert that he could not say whether discrimination was happening .05% or 95% of the time, and (4) a class that included at least 544 female store managers who would have been both victim and discriminator, under the plaintiffs’ theory.

Continue Reading A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit

Yesterday, a panel of the Sixth Circuit announced its decision in Lewis v. Humboldt Acquisition Corp, an ADA case in which the court upheld the position of prior panels requiring an ADA plaintiff to establish that his or her disability was the “sole reason” motivating an adverse employment action. As Mark J. Chumley of the excellent Management Rights Blog noted yesterday, this puts the Sixth Circuit in the distinct minority of the appellate courts to consider the standard of proof on causation in an ADA case:

“Of the ten circuits to consider the causation issue, eight apply a ‘motivating factor’ (or ‘substantial cause’) test, under which a plaintiff must only show that a disability was a motivating factor of the adverse employment action.

However, the current law in the Sixth Circuit is that a plaintiff must show that his or her disability was the ‘sole reason’ for the adverse employment action; this is sometimes referred to as the ‘solely’ standard.”

Continue Reading Cat’s Paw Declawed In Sixth Circuit ADA Cases?

In a scenario that frequently occurs in workplaces across the country, Linda Buck, the vice president of human resources at Proctor Hospital, was asked to terminate Vincent Staub based on information contained in a report from his supervisors that accused him of violating the terms of a “corrective action” disciplinary warning. Relying on this accusation and her own review of Mr. Staub’s personnel file, Ms. Buck decided to terminate Mr. Staub’s employment. Mr. Staub protested to Ms. Buck that his supervisors were hostile to his military obligations as a member of the U.S. Army reserves, but rather than follow up on Mr. Staub’s concern with his supervisors, Ms. Buck simply conferred with another human resources staff member and adhered to her termination decision. Mr. Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Ms. Buck had any such hostility but that his supervisors did, and that their actions influenced Ms. Buck’s ultimate employment decision. (This type of case has been referred to as a "Cat’s Paw" case, based on an Aesop’s fable involving a cat, a monkey, chestnuts and fire. Justice Scalia provides more information at footnote 1 of his majority opinion.)

A jury found that Mr. Staub’s “military status was a motivating factor in [Proctor’s] decision to discharge him,” and awarded $57,640 in damages. The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law because Ms. Buck had relied on more than just the supervisors’ advice in making her termination decision.

Continue Reading Supreme Court Upholds “Cat’s Paw” Liability