The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
December 9, 2013
by Laura D. Francis
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.
by Lydell C. Bridgeford
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
by Louis C. LaBrecque
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.
by Robert Combs
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
by Patrick Dorrian
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.
September 23, 2013
It's not a small world after all when it comes to crafting anti-discrimination policies and practices for a global workforce, Donald C. Dowling Jr. tells BNA. Dowling is an employment law attorney who advises U.S.-based multinational employers on human resources policies.
September 20, 2013
EEOC Commissioner Chai Feldblum reveals that the commission currently has no plans to revisit the issue of the coverage of obese and overweight workers under the Americans with Disabilities Act.
September 16, 2013
The question of whether states can admit undocumented immigrants to the bar has again risen to the fore with the California Supreme Court considering the case of Sergio Garcia, an undocumented immigrant who worked his way through law school and passed the bar exam. Regardless of the court's ultimate decision, state lawmakers may have a workaround: a bill (A.B. 1024) affirmatively allowing law licenses for individuals who are "not lawfully present in the United States." The measure passed the California Legislature Sept. 12, and Gov. Jerry Brown (D) has until Oct. 13 to sign or veto it.
September 11, 2013
Federal employees would be permitted to earn compensatory time off for religious observances within 26 pay periods (52 weeks) of taking the time off under a new proposed rule from the Office of Personnel Management.
September 3, 2013
Ahead of a likely legislative requirement that the E-Verify
electronic employment eligibility verification system be made mandatory for all
U.S. employers, the National Immigration Law Center recently released a report warning that the
way the system works now could mean that hundreds of thousands of
work-authorized individuals might face negative impacts from mismatches between
their information and what’s contained in government records.
August 28, 2013
President Obama and congressional Republicans are no closer to a broad agreement on budget issues than they were six months ago, but the Sept. 30 end of fiscal year 2013 - and the mid-October date on which the U.S. government is expected to exhaust its ability to borrow funds - are approaching rapidly.
August 23, 2013
If it seems that we are seeing more and more workplace religious discrimination claims lately, the facts bear that out. Although dipping slightly last year, the Equal Employment Opportunity Commission has experienced a significant increase in yearly religious bias charge filings from 1997 to 2012—rising from 1,709 in 1997 to 4,151 in 2012.
August 22, 2013
Many labor and employment indicators are climbing their way up from the rock-bottom levels of the recession, but union strike activity doesn’t appear to be one of them.
August 19, 2013
One year has passed since U.S. Citizenship and Immigration Services implemented the deferred action for childhood arrivals program, and DACA’s Aug. 15 birthday was celebrated as a success for the young, undocumented immigrants who benefited from the program and used as a rallying call for more permanent, legislative changes to the country’s immigration system.
August 14, 2013
The federal government needs to encourage interagency cooperation on a regular basis and not just when it is faced with emergencies, according to a new report from the Partnership for Public Service and management consultant Booz Allen Hamilton.
August 9, 2013
Wal-Mart Stores and trucking company CRST Van Expedited were among the big winners in what was a successful stretch for employers in defending against workplace bias claims.
August 1, 2013
Sen. Tom Coburn (R-Okla.) has announced his intent to put a hold on President Obama's nominee for the position of director of the Office of Personnel Management until the administration provides more details regarding the status of members of Congress and their staffs under the 2010 Affordable Care Act.
July 26, 2013
In a busy few weeks for EEOC, the agency decided that it would not be imposing additional furloughs on its employees, and commission attorneys warned employers about the perils of using criminal background checks and social media information in hiring and other decisions.
July 17, 2013
When Bloomberg BNA recently asked 19 prominent economists to predict the near future of the U.S. economy, they predicted that job growth will continue to help strengthening the economy through 2013 and into 2014.
The Obama administration's proposal for modifying the Federal Employees' Compensation Act program faced a somewhat chilly reception during a recent hearing, with Democrats on a House panel and some hearing witnesses criticizing provisions that would reduce workers' compensation benefits for injured federal and postal employees with dependents.
July 16, 2013
Margaret M. DiBianca, an attorney with Young Conaway Stargatt & Taylor, explains how employers can improve their anti-harassment training sessions for employees and pinpoints the Achilles' heel of most training sessions. She also offers practical advice for employers on avoiding retaliation claims.
July 12, 2013
The U.S. Supreme Court's recent rulings on workplace retaliation, who is a "supervisor" under Title VII of the 1964 Civil Rights Act, and gay marriage have provided legal talking heads with a summertime bounty for enlightening discourse.
July 8, 2013
All eyes are now on the House after the Senate June 27
passed an amended version of S. 744, the comprehensive immigration overhaul
bill introduced in April by the bipartisan “gang of eight.”
But House Judiciary Committee Chairman Bob Goodlatte
(R-Va.) is continuing to press forward with his “step-by-step approach” to
overhauling the immigration system despite repeated calls from Democratic
committee members to tackle the issue comprehensively, and House Speaker John Boehner (R-Ohio)
has said he doesn’t plan on addressing the Senate bill.
by Michael Rose
Congress returned July 8 from its week-long recess for the July
Fourth holiday, and already a number of labor- and
employment-related issues are cropping up on Capitol Hill. With the
two chambers set to take a month off in August, lawmakers will
certainly stay busy through July.
July 3, 2013
Blue-collar Federal Wage System employees working in the same locations as their white-collar federal General Schedule counterparts would be treated as being in the same locality pay areas under legislation introduced by Rep. Matt Cartwright (D-Pa.).
July 1, 2013
Proskauer Rose attorney Leslie
E. Silverman shares her views on how 2013 is shaping up, so
far, for the Equal Employment Opportunity Commission and its
stakeholders. The Washington, D.C.-based lawyer served as
the vice chair of EEOC and a commissioner from 2002 to 2008.
June 28, 2013
While the U.S. Supreme Court issued significant decisions that likely will change the legal landscape for employment discrimination attorneys and their clients, there is the risk that important lower federal court rulings may fly under the radar.
June 24, 2013
A year after Homeland Security Secretary Janet Napolitano announced the launch of the deferred action for childhood arrivals program, over 360,000 young, undocumented immigrants have been approved out of a total of close to
But DACA hasn’t made it through the past year without some bumps
along the way.
June 19, 2013
The Presidential Rank Awards Program, which provides monetary awards for federal career executives, has been suspended for fiscal year 2013, an administration official said last week.
Attorney Shafeeqa Watkins Giarratani of Norton Rose Fulbright tells Bloomberg BNA
what she thinks are key developments to emerge in 2013 from the
Office of Federal Compliance Programs. She also discusses OFCCP's budget justification for fiscal year 2014, which outlines the
agency's funding proposals and enforcement priorities.
June 18, 2013
Legal scholarship sometimes gets a
bad rap for being too theoretical to address the complexities of
modern society, but this isn't the case for legal scholarship on
employment discrimination law, explains law professor
Paul M. Secunda.
June 14, 2013
I recently suggested that the long-established gap between the wages earned by union workers and those earned by nonunion workers may be narrowing a bit. BLS has just released a report indicating that the gap in benefits, on the other hand, is showing no such sign of diminishing.
The U.S. Supreme Court was a lead player the past two weeks in shaping the legal landscape for employment discrimination lawyers and their clients, issuing a decision in the ultra-hot area of class arbitration that carries clear implications for employers and employees, and declining to review a pair of employment discrimination cases that presented weighty questions seemingly warranting further consideration.
June 10, 2013
The Maricopa County, Ariz., Sheriff’s Office—headed by Sheriff Joe Arpaio—and the League City, Texas, Police Department recently learned the hard way that targeting day laborers does not comport with the U.S. Constitution. A federal judge in Arizona ruled that MCSO deputies could not base decisions of whether to stop a car for a traffic violation and to investigate passengers’ immigration status on the Hispanic race of the car’s occupants, while a federal magistrate judge in Texas ruled that League City police violated day laborers' free speech rights by using a state law against roadway solicitation to crack down specifically on their activity.
June 6, 2013
Federal employees who are retirement-eligible would be able to transition from full-time to part-time status, while continuing to earn additional retirement benefits, under a new proposed rule from the Office of Personnel Management.
May 31, 2013
Let's catch up with the significant developments out of the Equal Employment Opportunity Commission over the past few weeks, including testimony before a House subcommittee, the nomination of Feldblum to a new five-year term, and the filing of a class action suit under the Genetic Information Nondiscrimination Act.
May 30, 2013
A new Bloomberg BNA special report, Collective Bargaining in the Health Care Industry, has just been released. As I edited the report I found a lot of interesting facts. Here are some of my favorites.
May 28, 2013
After five long markup sessions, the Senate Judiciary
Committee May 21 sent the “gang of eight’s” comprehensive immigration overhaul
bill (S. 744) to the Senate floor. But as momentum continues for the bill, House Republicans are saying not so fast--S. 744 could make the same mistakes as the
last law that, like the current legislation, was supposed to solve the country’s
immigration problems once and for all: the Immigration Reform and Control Act.
May 23, 2013
Legislation (H.R. 568) that would require the Office of Personnel Management to provide annual reports to Congress on the use of "official time" by federal employees who also serve as union officers was approved by the House Oversight and Government Reform Committee by voice vote.
May 17, 2013
A common issue in employment discrimination cases is what value should be placed on the plaintiff's claim. Bloomberg BNA's enhanced Employment Discrimination Verdicts & Settlements Navigator can help.
May 16, 2013
The gradual, decades-old decline in the ranks of union workers is typically discussed in terms of attrition. But what about the more overt and abrupt act of decertification? How often does a unit of already-unionized workers actually decide to say goodbye to their union—and is it happening more often now than in the past?
May 14, 2013
The Senate Judiciary
Committee May 9 began what will likely be a long process of marking up the
proposed Border Security, Economic Opportunity, and Immigration Modernization
Act (S. 744), considering that more than 300 amendments have been offered.
Chairman Patrick Leahy (D-Vt.) has set aside May 14, 16, and 20 for more
consideration, and it appears likely that the time will be used, and perhaps
more, despite the committee’s fairly rapid pace.
May 10, 2013
While the Senate has been busy focusing on comprehensive immigration legislation, the House on Wednesday passed an employment-related bill that
garnered a bit less attention.
May 8, 2013
Federal employees in many agencies are facing furloughs--or the possibility of furloughs--in fiscal year 2013 due to sequestration. What's ahead in FY 2014?
May 7, 2013
S. Fortney, a management lawyer with Fortney & Scott in Washington,
D.C., talks about the pros and cons of commencing litigation against the Office
of Federal Contract Compliance Programs because of a compliance review.
May 3, 2013
As the Supreme Court considers yet another retaliation case, companies should again be reminded of the continued prevalence—and relative success—of such claims by employees, as well as their obligation as employers to protect workers against the retaliatory acts of managers.
April 30, 2013
One of the most basic maxims in labor relations is that union members earn more than nonunion members. That was true again in 2012. But within that fact are some interesting exceptions and trends that are worth examining more closely.
April 29, 2013
The immigration world has been all aflutter since the wee
hours of April 17 when the Senate’s “gang of eight” introduced its long-awaited
comprehensive immigration overhaul bill. But House Republicans wanted to make sure that they weren’t
forgotten amidst all the hubbub in the Senate. And they have a different approach to immigration legislation--a "step by step approach."
April 24, 2013
The Federal Retirement Thrift Investment Board during a joint meeting with its Employee Thrift Advisory Council, which represents federal employee unions and managers' groups, explored the idea of changing to a new default fund in the Thrift Savings Plan.
April 22, 2013
Etcubañez, director of programs at the Asian American
Justice Center, discusses how implicit bias and
stereotypes of Asian Americans can hinder their career advancement
in the workplace.
April 19, 2013
Is it the intent of Title VII of the 1964 Civil Rights Act to make it more difficult for managers and supervisors, than for rank-and-file employees, to prove protected activity?
April 16, 2013
President Obama in his fiscal year 2014 budget request proposed a 1 percent pay increase for federal employees, but also called on federal workers hired prior to Jan. 1, 2013, to contribute an additional 1.2 percent of their salaries toward their retirements.
April 15, 2013
U.S. Citizenship and Immigration Services April 12 for the first time posted
figures on how many deferred action for childhood arrivals applications have
been denied on the merits. The denials started trickling in last October, starting with
six and leaping up to 841 in March of this year; the total number of denials since
August 2012 is 1,377.
Bloomberg BNA has polled 110 employers whose contracts are set to expire this year, asking them about their plans and expectations for their upcoming negotiations. Here are some highlights.
April 8, 2013
Legal issues surrounding whether and when class claims may be arbitrated has only added to the longstanding fight between employers and employees over the mandatory arbitration of employment discrimination claims. The U.S. Court of Appeals for the Second Circuit is the latest court to weigh in on the hot topic of class arbitration.
Moore, a director at the NAACP Legal Defense &
Educational Fund, Inc., offers an overview of pending litigation and hiring policies that have gained the
attention of the legal advocacy group.
April 3, 2013
Congress has been away from Washington for the past week and a
half for its annual spring recess coinciding with Easter and
Passover. But despite the legislative slowdown, a major milestone
was reached this week in the ongoing immigration debate: the
AFL-CIO and the U.S. Chamber of Commerce reached an agreement in
principle on a contentious part of a potential immigration
March 29, 2013
Federal government employees with "seriously delinquent tax debt" could be fired by their agencies and federal job applicants forced to withdraw their applications under legislation (H.R. 249) approved by voice vote March 20 by the House Oversight and Government Reform Committee.
A recent decision by the U.S. District Court for the District of New Jersey raises the question of whether the Americans with Disabilities Act requires employers to distinguish between disabled workers.
March 26, 2013
Jones Day attorney Alison B.Marshall weighs
in on the renewed focus by the Equal Employment Opportunity Commission
and the Office of Federal Contract Compliance Programs to combat pay
discrimination based on race, gender, and ethnicity.
Labor Stats and Facts: Unionization Is Up in 2013, For One Very Big Reason
EEO Roundup: Background Checks Still Front Page News
Q&A: Do Tougher Pleading Standards Affect Plaintiffs’ Summary Judgment Results?
Public Sector Roundup: Sequestration Will Be Worse in FY 2014, Center for American Progress Report Says
Public Sector Roundup: Federal Workers in D.C. Can Participate in Certain Political Activities, OPM Says