Transgender and Sexual Orientation Anti-Discrimination Protections — Maybe not yet the Law of the Land, but Your Policies Better Include Them


Though most Americans do not seem to realize it, anti-discrimination legal protections in employment for transgender, gay, bisexual, and lesbian (LGBT) employees are not uniform across the U.S. In fact, the federal Employment Nondiscrimination Act, which would amend Title VII to explicitly include these protected categories, has never passed. Therefore, it is still legal to fire, discipline, or even harass employees in the many states and local jurisdictions that lack these employment law protections.

But does that reasoning really hold true? The ever-evolving state of the law in this area shows this reasoning is weak and provides strong support for employers including protections in equal employment opportunity (EEO), anti-harassment, and anti-retaliation policies for all their LGBT employees. Continue reading this entry

Joint Employer Status for Franchisors Sees Some Reprieve, but not Enough yet for Celebration


We noted last year that, at the behest of its General Counsel Richard Griffin, the National Labor Relations Board was looking to recast the joint employer test under the National Labor Relations Act (NLRA) within the franchise model of business, and make corporate franchisors potentially responsible for alleged unfair labor practices committed by their franchisees. This significant shift was met with no small degree of concern, as a recast joint employer test would not only raise significant issues under the NLRA, but also likely portend bigger concerns in other areas as well. Against this backdrop, one might expect the Board’s next pronouncement in this area would reinforce the position taken by the General Counsel. Yet in a recent Division of Advice statement, the Board acted with some welcomed restraint. However, that advice memorandum should not be seen as cause for celebration, as it is light on analysis and does not necessarily reveal how the Board will continue to approach joint employer questions within the franchise model going forward. Continue reading this entry

Federal Contractors Should Keep Focus on Compliance for Hiring Veterans


While recent United States Department of Labor figures show the unemployment rate of veterans is trending below the national unemployment average, unemployment of younger veterans who have served since 9/11 still exceeds the national average. As such, the Department of Labor continues to focus on affirmative action requirements to promote veterans’ hiring. Federal contractors and subcontractors must ensure they are complying with their affirmative action obligations to employ veterans. Earlier this year, the Office of Federal Contract Compliance Programs (OFCCP) provided additional compliance guidance under the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), including what information contractors must solicit from protected veterans at the pre-offer and post-offer stages of the application process. In addition, OFCCP just released revised hiring benchmarks for veterans’ hiring. Continue reading this entry

Overtime Regulations on the Horizon: What to Start Thinking About Now


Wage and hour issues are oftentimes amongst a company’s least favorite topics of conversation and yet, at the same time, can be the source of major liabilities. And just as the corporate world tries to figure out where the Department of Labor (DOL) and the courts are going with the Fair Labor Standards Act (FLSA) and state wage and hour laws, more change is on the way. We have previously indicated that the Obama administration has charged the DOL with changing the federal regulations governing overtime pay, and newly proposed regulations relating to overtime pay are now one step closer to becoming a reality. On Tuesday, a comprehensive write-up of the regulations was sent to the White House Office of Management and Budget for review. Continue reading this entry

Supreme Court Calls Out the EEOC for Arguing It Alone Can Determine Whether It Followed the Law


We suggested last year that if you felt paranoid that the federal agencies seemed out to get employers, perhaps it was not paranoia at all. The Equal Employment Opportunity Commission’s (EEOC) spate of recent lawsuits — or at least its apparent haste to sue employers and make examples out of them over such things as wellness programs (even before issuing proposed guidance on what was permissible relative to such well-intentioned programs) — clearly did not help with this concern. However, a decision by the Supreme Court last week tightened the reins on the EEOC and reminded it that, in seeking to pursue litigation against employers for violations of law, the Commission must follow the law itself and answer to claims that it has failed to do so. Continue reading this entry