The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
October 28, 2014
by Laura D. Francis
President Barack Obama's decision to delay taking executive
action on immigration until after the November midterm elections has only given
interested parties time to speculate
about what that action might look like.
But the signs seem to be pointing more toward
some kind of affirmative relief for undocumented immigrants, not unlike the
deferred action for childhood arrivals program.
October 27, 2014
by Patrick Dorrian
A pair of Seventh Circuit judges debate whether the amount of time spent on a job function can dictate whether the task is "essential" for purposes of the
Americans with Disabilities Act.
by Katarina Klenner
Law firms and legal staffing providers no doubt
will be watching the outcome of Fair Labor Standards Act litigation that Manhattan
firm Joseph & Kirschenbaum LLP is pursuing against the legal giant Skadden,
Arps, Slate, Meagher & Flom LLP and Tower Legal Staffing, Inc. The plaintiffs’ firm represents contract attorney
David Lola and claims the legal industry for
years has been exploiting document reviewers who are paid low hourly rates and
no overtime compensation for working long hours on short-term projects.
October 16, 2014
by Larry Swisher
Any day now, American workers should start
to break out of a long rut of low wage growth, according to Bloomberg BNA’s Wage
Trend Indicator™. By early 2015, annual wage and salary
increases in the private sector are expected to consistently exceed 2 percent
for the first time since the early part of the recession.
October 14, 2014
The Equal Employment Opportunity Commission filed at least 60 new cases in September to close its fiscal year, the most noteworthy being a pair of novel lawsuits filed in Michigan and Florida under Title VII of the 1964 Civil Rights Act alleging discrimination by private sector employers against male-to-female transsexual workers.
October 1, 2014
by Louis C. LaBrecque
The Office of Personnel Management is seeking input as it works to update guidance it issued in October 2011 on “onboarding” new members of the Senior Executive Service at federal agencies.
September 29, 2014
A formerly undocumented landscaping worker recently had his human trafficking case dismissed by a federal court in Minnesota on timeliness grounds, in part because he stood up to his employer.
September 17, 2014
Wage and salary increases in the private sector will
improve by early 2015, Bloomberg BNA’s Wage Trend Indicator™ forecasts. The rate of annual wage growth is expected to consistently exceed 2
September 5, 2014
The EEOC's first Americans with Disabilities Act lawsuit directly challenging a corporate wellness plan raises questions regarding how companies can implement such programs and induce employee participation without running afoul of the ADA and other laws.
August 27, 2014
Rather than insisting on legislation to overhaul the U.S. Postal Service, the USPS should consider backing a less ambitious measure that might have a better chance of being approved by Congress during the current legislative session, Rafe Morrissey, vice president of postal affairs at the Greeting Card Association, told Bloomberg BNA in an interview earlier this summer.
August 22, 2014
by Lydell C. Bridgeford
Representatives from the American Association for Access,
Equity and Diversity discuss academic institutions as OFCCP-regulated federal contractors, as well as an affirmative action case that may make a second trip to the Supreme Court. (AAAED was formerly the American Association for Affirmative Action.)
August 21, 2014
Annual wage and salary increases in the private sector will improve by the end of 2014, Bloomberg BNA’s Wage Trend Indicator™ forecasts. The overall rate of wage growth is expected to consistently exceed 2 percent.
August 18, 2014
A Massachusetts pizza parlor and an immigrant worker
recently found out the hard way that saying a pizza maker has to demonstrate "showmanship" like
tossing pizza dough—and then giving conflicting accounts of whether the worker actually could do that—means no
employment-based green card.
August 5, 2014
While everyone was watching the House getting ready to vote,
and then not voting, and then actually voting on immigration bills, a couple of
court decisions flew under the radar that might finally put to rest the long,
drawn-out H-2B wage rule saga. Or not.
August 4, 2014
An intellectually impaired employee’s request for a job accommodation to help manage his condition must specify the particular work rule violation or other problem for which it’s sought in order to trigger the Americans with Disabilities Act’s interactive process.
July 21, 2014
The Supreme Court's grant of certiorari in a pregnancy accommodation case and the EEOC's new enforcement guidance on pregnancy bias grab the spotlight, but two district court rulings involving expectant and new mothers also deserve attention.
July 17, 2014
More federal contractors will start
paying closer attention to the services of third-party vendors that assist them with recruitment efforts because of
the new hiring requirements established by
the Office of Federal Contract
Compliance Programs for veterans and people with disabilities, Rathin
Sinha, president of America's Job
Exchange Inc., told Bloomberg BNA.
House lawmakers, administration witnesses and a former director of the Office of Personnel Management agreed during a recent hearing that the General Schedule pay system for federal employees is broken, but they disagreed on what needs to be fixed.
July 16, 2014
Workers will see bigger pay raises this year, Bloomberg BNA’s Wage Trend Indicator™ predicts, but the large number of unemployed job-seekers eases the pressure on businesses to boost wages to keep and attract employees.
July 7, 2014
Although quite a bit seemed to happen in the immigration world over the past
few weeks, no overhaul bill came to the House floor for a vote, or even a single related measure.
June 20, 2014
W. Carter Younger of McGuireWoods LLP tells Bloomberg BNA why a
recent decision by the U.S. Court of Appeals for the First Circuit
on statistical significance may signal a shift in how the courts
interpret statistical proof of employment discrimination.
June 16, 2014
Bloomberg BNA looks back at the first five years under the 2008 law, and gets the views of several civil rights enforcement officials and employment law practitioners regarding emerging issues
June 11, 2014
Before initiating a self-audit on compensation practices and
systems, federal contractors should first pull together a pay
analysis team, Valerie Hoffman,
a partner with Seyfarth Shaw in Chicago, told Bloomberg BNA during
June 9, 2014
U.S. Citizenship and Immigration Services' Administrative
Appeals Office is back in business after eliminating a nagging case backlog
that had persisted for years. Now the office is focusing on issuing
more precedent decisions—something it hasn't done for the past two years.
June 4, 2014
State and local governments need to consider the full cost of outsourcing public sector jobs--including the expense of providing government assistance to a larger number of citizens--when contractors offer lower wages and reduced benefits to their employees, according to a new report.
May 28, 2014
With nearly a year elapsing since the Democratic-led
Senate passed its comprehensive immigration overhaul bill (S. 744) in June
2013, the focus remains on the Republican-led House and whether it
will act on any immigration legislation at all. The clock is ticking.
May 13, 2014
Employers using the H-2A and H-2B guestworker programs may
see some relief from government-caused delays following a recent decision from a federal district court in North Carolina
holding that the Labor Department has to follow the statutory and regulatory time
frames for issuing notices and certifications.
May 7, 2014
The president of the American Federation of Government Employees asks the Office of Management and Budget not to collect “back retirement taxes” from new federal employees, to avoid placing a large financial burden on them.
April 28, 2014
U.S. Citizenship and Immigration Services will be conducting site visits at the workplaces of L-1 intracompany transferee visa beneficiaries, starting with L-1A executive
or manager visas where the employer is seeking an extension of the worker's
April 23, 2014
In the past few weeks, federal district courts addressed new or rare situations or arguments in lawsuits involving employee hairstyles, disabilities, sexual preferences and marital relations.
April 14, 2014
It's hard to believe that it's been almost two years since
the Obama administration first instituted the deferred action for childhood
arrivals (DACA) program. But here we are, gearing up for the process of
renewing the more than 125,000 two-year deferred action statuses and work
permits granted in 2012.
April 10, 2014
The disability self-identification form issued by the Office of
Federal Contract Compliance Programs comes with a steep learning
curve for federal contractors, says employment law attorney Mark
P.A. Hudson of Shuttleworth & Ingersoll. "We have been taught in human resources to never ask the
question about disability to job applicants and employees. We now
are asking the question three times," Hudson said during this
April 4, 2014
The number of new federal court filings claiming employment discrimination dipped below 1,000 for the first two months of the year for the first time since 2006. Is this an indication of a true trend?
March 31, 2014
The birds are chirping, the flowers are blooming, and the
days are getting longer. We all know what season has arrived. That's right: H-1B
March 26, 2014
More private sector than public sector employees were covered by collective bargaining agreements in 2013, a reversal from four years earlier, according to a new Congressional Research Service report.
March 21, 2014
Oral argument before the U.S. Court of Appeals for the Sixth Circuit March 20 and other recent developments show that the use of criminal and other employee background checks is still much on the minds of EEOC representatives and employer advocates.
March 17, 2014
Jose Godinez-Samperio learned the hard way March 6 that
Florida isn't California. Unlike in California, where undocumented immigrant Sergio
Garcia was admitted to the state's bar in January, in Florida the state high court
ruled that undocumented immigrants can't get law licenses in the state.
March 6, 2014
A recent lawsuit filed by the Equal Employment Opportunity
Commission against CVS Pharmacy Inc. over provisions in a severance
agreement has probably garnered the attention of employers who
normally don't pay close attention to EEOC litigation, says
Miles of McQuaide Blasko Law Offices.
March 3, 2014
The same week a House Judiciary Committee held a hearing on the president's apparent failure to enforce immigration laws, the Department of Homeland Security's Office of Inspector General issued a report calling into question one of the administration's key immigration enforcement initiatives—Immigration and Customs Enforcement's work-site enforcement program. The report found discrepancies in the issuance of warnings versus fines, substantial reduction in fines ultimately imposed, and failure to keep accurate and up-to-date information on enforcement actions and outcomes.
February 26, 2014
by Robert Combs
In the wake of its Volkswagen loss, union leaders have vowed to organize workers in Southern states. But statistically speaking, the South is the least union-friendly spot on the U.S. map.
February 25, 2014
The Equal Employment Opportunity Commission in a draft copy issued Feb. 24 is seeking public comment on what it called "significant revisions" to EEOC Management Directive 110 - guidance on the federal sector complaint process that first became effective in November 1999.
February 21, 2014
Is an employee’s friendship with a co-worker who allegedly was subjected to discrimination or harassment and who complained to their employer, grounds for a retaliation claim under Title VII of the 1964 Civil Rights Act?
February 19, 2014
Understanding how military skills can transfer over to the civilian workplace may help federal contractors meet new hiring benchmarks in the Office of Federal Contract Compliance Programs' regulations under the Vietnam Era Veterans' Readjustment Assistance Act, says Lisa Rosser, chief executive officer and founder of Value of a Veteran, a human resources consulting firm.
February 7, 2014
Legislatures at the federal, state and local levels in the past few weeks enacted or proposed new laws aimed at further protecting employees from workplace discrimination
February 6, 2014
Melzer of Sanford
Heisler LLP in New York discusses plaintiff-side tactics emerging
in employment class action litigation, and explains why the
plaintiffs' class action bar is still confident in the class
certification process when pursuing discrimination cases.
February 3, 2014
After much anticipation, House Republican leaders have finally released their "Standards for Immigration Reform," calling for a revamped electronic employment eligibility verification system, a new visa system based on employers' needs, and legal status for undocumented immigrants. Although reviews of the principles have been varied, most observers said the release is a signal that the House is committed to passing immigration overhaul legislation this year.
January 26, 2014
Officials from the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs recently offered some insights into the federal government’s EEO enforcement plans for 2014.
January 21, 2014
House Republicans' chief objection to the provisions of the Senate's comprehensive immigration overhaul bill (S. 744) that address the undocumented population has been the creation of a "special" pathway to citizenship. But Stuart Anderson, executive director of the National Foundation for American Policy, recently authored a report comparing the consequences of S. 744's legalization provisions to those of the “two-stage approach” mentioned by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), potentially opening the door to a compromise.
January 15, 2014
The Office of Personnel Management is proposing to change its current regulations on creditable service for career tenure for federal employees, the OPM said in a recent Federal Register notice outlining the proposed rule.
January 7, 2014
Colorado-based attorney Merrily
Archer explains why she launched a national survey asking
employers whether mediators in the Equal Employment Opportunity
Commission's Alternative Dispute Resolution (ADR) programs made
certain comments and statements during the mediation process.
January 6, 2014
Concluding a process that's taken nearly two years, the California Supreme Court Jan. 2 held that Sergio Garcia, an undocumented immigrant from Mexico, should be admitted to the California Bar. This makes California the first state in the country to take such an action. The court found that California's recently passed A.B. 1024 is enough to get around a federal law banning states from granting public benefits to undocumented immigrants, and said Garcia's unauthorized presence and lack of federal work authorization don't justify withholding of a law license.
January 2, 2014
The Equal Employment Opportunity Commission's recent big win regarding the agency's presuit conciliation requirements may mean the issue is ticketed for eventual U.S. Supreme Court review.
December 23, 2013
Daniel A. Schwartz, an attorney at Shipman & Goodwin in Hartford, Conn., recaps his 2013 noteworthy moments in Equal Employment Opportunity Commission enforcement, and discusses how new and not-so-new mobile apps and social media sites are redefining the employment law landscape.
December 18, 2013
2014 is shaping up to be a lively negotiating year, but some unions will be busier than others. Here’s a preview of who will be brushing up on their bargaining skills for each month.
December 13, 2013
Is an employer justified in firing an employee for swatting a fly too enthusiastically? That's just one of the questions potentially posed by an unusual case involving a Texas apartment leasing manager that recently made its way to the U.S. Court of Appeals for the Fifth Circuit.
December 9, 2013
The Department of Labor has again been dealt a setback in its quest to develop a workable methodology for determining prevailing wages under the H-2B low-skilled, nonagricultural guestworker program. Although the agency's current methodology—derived from an April interim final rule—remains intact, the en banc Board of Alien Labor Certification Appeals has ruled that the DOL can't use its new methodology to issue new prevailing wage determinations to employers that have already had their H-2B labor certification applications approved.
Iván Espinoza-Madrigal, the legal director of the Center for HIV Law &
Policy (CHLP), tells Bloomberg BNA that the Americans with
Disabilities Act plays a major role in protecting the rights of
people with HIV because "employment discrimination against them is
a continuing problem."
December 4, 2013
Sequestration, if it is allowed to continue through fiscal year 2014, will be even more damaging than it was in FY 2013, according to a recent report from the Center for American Progress.
November 25, 2013
An issue is brewing over at the Department of Labor about the steps employers must take before they can hire foreign workers under the permanent labor certification program. In a case set to be heard Dec. 3 before the en banc Board of Alien Labor Certification Appeals, several advocacy groups have argued in amicus briefs that the DOL suddenly, and without warning, is denying labor certification based on a finding that the employer's efforts to notify and consider recently laid off American workers for the open positions didn't meet the regulatory requirements.
At first glance, it looks as if 2013 is shaping up to be a banner year for unions. More workers have been organized through NLRB-sanctioned elections in the first half of the year than over the entire course of 2012. But there’s more to this than meets the eye, because there's one single, gigantic outlier involved.
November 21, 2013
Professor Jonah B.
Gelbach of the University of Pennsylvania Law School talks
about research that shows the U.S. Supreme Court's rulings in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have had little effect on
plaintiffs' win rates in summary judgment motions in employment
November 19, 2013
Federal employees living in the District of Columbia will be able to participate in certain types of local political activities under a recently issued final rule from the Office of Personnel Management.
November 15, 2013
The issue of employee background screening took center stage again earlier this month when the state of Texas sued in federal court, seeking to invalidate and bar the enforcement of 2012 Equal Employment Opportunity Commission guidance on employers' review of arrest and conviction records.
November 12, 2013
The Department of Justice and Infosys Technologies Limited Inc., an international information technology company with headquarters in Bangalore, India, have settled allegations that the company was misusing B-1 business visitor visas in order to skirt the requirements of the H-1B highly skilled guestworker program. The $34 million the company has agreed to pay the federal government is the largest amount ever paid in an immigration case.
November 6, 2013
The Office of Management and Budget is heading a 120-day review of the federal government's security clearance process, including the fitness of federal contractors for conducting such clearances.
November 1, 2013
It is fair to say that the U.S. Supreme Court’s June decision in University of Texas Southwestern Medical Center v. Nassar, which established that workers alleging retaliation under Title VII of the 1964 Civil Rights Act are subject to a heightened "but-for" standard of proof, agitated the plaintiffs’ bar. It may also be fair to say that their agitation was justified.
October 28, 2013
Oxford University professor Martin Ruhs argues that there is a correlation between a country's willingness to admit greater numbers of guestworkers and its reluctance to grant them rights, opining that restricting at least certain rights and focusing on "core rights" could lead to more countries being willing to admit more guestworkers. But that is a question of ethics that has "no one right answer," he says.
October 23, 2013
In addition to receiving retroactive pay for the period of the 16-day partial government shutdown that began Oct. 1, federal civilian employees-whether or not they were told to report to work during the shutdown-will accrue annual and sick leave, retirement credit and other benefits for the shutdown period, according to the Office of Personnel Management.
October 21, 2013
The past few weeks delivered a comparative flurry of key state law changes or near changes, including notable developments and potential developments in New York, California and Massachusetts.
October 16, 2013
Bloomberg BNA spoke with Michael
Petkovich, a partner, and Amanda
Vaccaro, an associate, in Jackson Lewis LLP's
Washington, D.C. area office after they presented a session at a
firm-sponsored workplace law symposium on handling a
charge issued by the Equal Employment Opportunity
October 15, 2013
California has become the first state to affirmatively allow its supreme court to admit undocumented attorneys to the bar as long as they meet all the other admission requirements, addressing one of the key questions that came up during oral arguments before the California Supreme Court in the case of Sergio Garcia. The issue was whether the federal welfare reform law bars the state from granting law licenses to undocumented immigrants. A subsection of the federal law allows states to specifically authorize the granting of benefits, including law licenses, to undocumented immigrants—and that is exactly what A.B. 1024 does.
October 4, 2013
With the partial government shutdown, the end of the Equal Employment Opportunity Commission's fiscal year Sept. 30 in most ways couldn't have come at a more inconvenient time. However, the agency still managed to round off the year with its usual flurry of new lawsuit filings.
October 3, 2013
Avi Kumin, a partner at Katz, Marshall and Banks in Washington, discusses the world of plaintiff-side employment law post-Nassar, judicial reviews of the Equal Employment Opportunity Commission's conciliation efforts, and other topics affecting employment rights litigation.
September 30, 2013
As Congress battles over a funding measure that would prevent the imminent shutdown of the federal government—to be followed by debate over the debt ceiling—the prospect of lawmakers returning to legislation overhauling the nation's immigration system appears uncertain. But despite the loss of momentum at the end of June, advocates remain optimistic that there will be a vote either late this year or early next.
September 25, 2013
If the Obama administration and Congress are unable to agree on a plan for funding the government past the Sept. 30 end of the current fiscal year, the White House should fight to ensure that federal employees who are idled for the period of any partial government shutdown get back pay, a federal employee union official said in a recent letter.
Q&A: Contractors Have No Scapegoat in Third-Party Providers
Long-Awaited, Bigger Pay Raises Are Coming for Most Workers
EEO Roundup: Pregnancy Bias--Two Under-the-Radar Rulings You Might Have Missed
EEO Roundup: How Specific Does an Accommodation Request Need to Be?
Public Sector Roundup: Civil Service System Needs Overhaul, House Panel Told
Employee Background Checks
Adverse Employment Action
Burden of Proof