Compensation Data Reporting In EEO-1 Reports: The Saga Continues

By Robin Shea

Employers should start gathering their 2018 compensation information if they haven’t already.

My last post covered the court decision issued on March 4 in the case of National Women’s Law Center v. Office of Management and Budget, which directed the Equal Employment Opportunity Commission to require employers to submit compensation data with their annual EEO-1 reports.

The requirement was imposed in 2016 during the Obama Administration, but in 2017, the Trump OMB suspended the requirement before it was to take effect. The plaintiffs in the lawsuit claimed that the OMB suspension was unlawful, and U.S. District Court Judge Tanya Chutkan of the District of Columbia agreed.

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Appellate Update

By Joe Murray

Here are the 4th Circuit and North Carolina Court of Appeals’ latest employment law decisions.

Gomez v. Haystax Technology, Inc., No. 17-2360 (4th Cir. March 5, 2019) (unpublished) (ADA, FMLA, Title VII, ADEA): Defendants, who are private government contractors, hired Gomez in May 2013 to work on various government contracts. During the course of her employment, Gomez was moved to different contracts and locations as defendants lost and won contracts. Also during her employment, Gomez underwent two hip surgeries. In February 2016, defendants lost the contract Gomez was assigned to. As she was not assigned to a contract, Gomez had to find another position with the defendants to remain employed. Defendants terminated her when she failed to obtain another position. Gomez filed suit against defendants alleging (1) disability discrimination in violation of the ADA; (2) sex discrimination in violation of Title VII; (3) age discrimination in violation of the ADEA; and (4) FMLA retaliation. The district court granted summary judgment on Gomez’s claims, and the 4th Circuit upheld the award. [1] On appeal, the issue before the court was whether Gomez had presented evidence that defendants’ reason for termination—the loss of the contract—was pretext. Gomez first alleged that defendants provided shifting justifications for her termination; the 4th Circuit found these alleged shifting justifications were not presented as justifications for the termination but for why Gomez was not transferred to open positions. Next, Gomez alleged that defendants provided inconsistent statements on the positions available to her prior to her termination; the court easily dismissed this allegation by pointing out that Gomez presented testimony out of context to support her case. Finally, Gomez tried to argue that defendants internally transferred some employees without requiring them to apply for open positions; the court rejected Gomez’s contention by showing the alleged comparator employees or situations were different in meaningful ways. Since Gomez could not support her pretext argument, the 4th Circuit upheld summary judgment.

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Submit Nominations For the Labor & Employment Law Harkavy Award

The Jonathan R. Harkavy Award Committee is accepting nominations from now until Friday, May 31. The Harkavy Award exists to recognize an individual for “Outstanding Service, Leadership, and/or Significant Contributions to the Development of Labor and Employment Law in North Carolina.” After completing the nomination form, please submit it, along with any other materials you want the Committee to consider, to Elizabeth Hodges.

Pay ’Em Like Beckham: US Soccer Lawsuit Pushes Gender Discrimination in Athletics to the Forefront

By Sean F. Herrmann

Gender discrimination in international team sports has long been a fraught issue, and US soccer is no exception. The US Senior Men’s National Soccer Team (“MNT”) hasn’t exactly been setting the world on fire. The MNT didn’t even qualify for the most recent World Cup. Yet, year after year, and decade after decade at this point, US soccer enthusiasts promise that the time for men’s soccer in this country lies just ahead. And it remains just ahead. This isn’t changing any time soon.

Meanwhile, the US Women’s National Soccer Team (“WNT”) is in an entirely different place. US women’s soccer has been globally dominant for some time. The WNT won the World Cup in 1991, 1999, and 2015. During that same time period, it never finished worse than third, and was the runner-up in 2011. Moreover, WNT players frequently become media sensations and legitimate stars. Many recognize names like Abby Wambach, Alex Morgan, Hope Solo, Brandi Chastain, and Mia Hamm. Famous US male soccer stars are much more rare.

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Testing Well: Holding Drug Testers Accountable for False Positives

By Kevin P. Murphy

North Carolina law imposes stringent requirements on employee drug testing. But courts have long held that employers who fire employees on the basis of false positives are not liable for the employees’ harms and losses. Last week, the South Carolina Supreme Court changed all that. The Court held that laboratories owe a duty of reasonable care to the employees they are testing. Shaw v. Psychemedics Corp., No. 2017-002538 (S.C. Mar. 20, 2019). Now, wronged employees can recover directly from the labs who got them fired.

The Court recognized that these labs should be aware of the harm they cause employees by wrongly reporting positive test results. The Court agreed that these labs need to be incentives to take precautions aimed at eliminating false positives. Under pre-existing South Carolina law a wrongdoer is liable for harm to a third party arising out of his contract with another party, despite the absence of any contract between the wrongdoer and his victim.

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Court Puts EEO-1 Pay Data Back In Play. Now What?

By Robin Shea

A federal judge in the District of Columbia has ordered that the pay data collection component of EEO-1 reports, which never took effect, be restored.

Background

The pay data survey, proposed in early 2016 during the Obama Administration, would require employers to report in their annual EEO-1 reports the number of employees in 12 “pay bands” in each of the 10 EEO-1 categories. (That’s a hundred and twenty “bands.”) The federal Office of Management and Budget initially approved the revised EEO-1 Report form that would have allowed employers to provide this information.

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Appellate Update

By Joe Murray

Time for our regular case roundup. The 4th Circuit issued several important decisions over the past two months, including clarifying the standard for retaliation claims under the False Claims Act, allowing rumors to support a Title VII claim, and providing two clashing opinions on medical exams of current employees.

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4th Circuit’s Dueling Disability Discrimination Decisions Analyze ‘Illegal-Exam’ Claims Under ADA/Rehabilitation Act

By Andrew J. Henson

When can an employer require its employee to undergo a medical exam without running afoul of the Americans with Disabilities Act (ADA) or the Rehabilitation Act? In recent weeks, the Fourth Circuit enriched the case law on illegal-exam claims in two divergent opinions, ruling for the employee in EEOC v. McLeod Health, Inc., — F.3d —-, 2019 WL 385654 (4th Cir. Jan. 31, 2019) and for the employer in Hannah P. v. Coats, — F.3d —-, 2019 WL 664491 (4th Cir. Feb. 19, 2019).

The ADA and the Rehabilitation Act both prohibit covered employers from requiring an employee to undergo a medical exam “unless such examination . . . is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 1112(d)(4)(A). The EEOC’s enforcement guidelines provide that, ordinarily, to meet the “job-related and consistent with business necessity” standard, “the employer must reasonably believe, based on objective evidence, that either (a) the employee’s ability to perform an essential job function is impaired by a medical condition, or (b) the employee can perform all the essential functions of the job, but because of his or her medical condition, doing so will pose a ‘direct threat’ to his or her own safety or the safety of others.” The Fourth Circuit’s recent McLeod and Coats opinions touch on both the “direct threat” and impairment causing a failure to perform the essential functions scenarios, respectively.

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To Protect and Serve . . . and Make a Living: Court Rules Moonlighting Police Officers Are Employees At Second Jobs

By Kevin Murphy

Last week, the U.S. Court of Appeals for the Sixth Circuit recognized that “the way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past.” Acosta v. Off Duty Police Services, Inc., Nos. 17-5995/6071 (6th Cir.  Feb. 12, 2019). Many companies now seek to classify their employees as independent contractors in order to avoid providing them overtime, health insurance, workers’ compensation protections, unemployment benefits, and even minimum wage and social security contributions. In 2017, the Trump Administration reversed Obama-era rules combatting this trend, signaling that the current Department of Labor would throttle back on investigation and enforcement of the Fair Labor Standards Act when it came to misclassified employees. The Fair Labor Standards Act is the federal law that requires employers to pay their employees minimum wage and overtime.

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Top 5 Federal L&E Developments From the Past Year

By Robin E. Shea

With many of President Trump’s agency nominations being held up in the Senate, followed by the longest government shutdown in history, it’s been a relatively quiet year for labor and employment law at the federal level. Nonetheless, here are my picks for the most significant developments of the past year.

No. 1: #MeToo. Although a little of the furor seems to be dying down, the #MeToo movement had a big impact on employment law in 2018. The Equal Employment Opportunity Commission reported an almost 13 percent increase in charges alleging sexual harassment in Fiscal Year 2018, which ended September 30, 2018. Now that the agency is back up and running, it will be interesting to see what happens in FY 2019. Although North Carolina has not yet followed the nationwide trend of banning non-disclosure provisions in sexual harassment settlements or mandating employee harassment training, many employers here are already voluntarily adjusting their policies, procedures, and training.

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