Phillips Murrah honored as a Top Workplace for a third year by The Oklahoman

For the third year in a row, Phillips Murrah has been recognized as a Top Workplace in Oklahoma. For 2017, P|M was the only law firm listed as a Top Workplace, and was also recognized as the highest year-over-year improver of the list’s category of “Genuine Appreciation” among company employees.

“Our Firm really cares about our work environment and tries to be receptive to requests and issues, which gradually makes our workplace better in ways that are meaningful,” said Tom Wolfe, Phillips Murrah President and Managing Partner. “That these efforts are recognized and appreciated by the people who work at Phillips Murrah is the best outcome.”

From Newsok.com:

Phillips Murrah, an Oklahoma City law firm that employs 111, rose to No. 21 from No. 29 last year. The firm led improvements in the statement area, “I feel genuinely appreciated at this company,” up by 7 percent.

Phillips Murrah spokesman David Rhea attributes his law firm’s gains to the company’s continued responsiveness to requests and issues as they arise.

“Congeniality was literally one of the firm’s founding principles when we started in 1986,” Rhea said. “So that type of culture/atmosphere is just sort of baked into the cake.”

On December 10, The Oklahoman newspaper published their annual Top Workplaces list. In determining the defining criteria of Top Workplaces, The Oklahoman partners with the Philadelphia-based company, Energage, which evaluates companies across the country, pertaining to internal components of healthy workplace dynamics.

Every year, the newspaper encourages local participants in Oklahoma City to nominate businesses for the program. The methodology of candidate evaluation is determined from anonymous surveys, detailing employee satisfaction, company values, internal communication, leadership and other various determinates.

To learn more about the workplace culture and opportunities at Phillips Murrah, visit our Careers page: http://phillipsmurrah.com/careers.

Like a horror movie villain, Obama overtime rule fight won’t die

Published on October 30, 2017

New York — The Obama administration’s 2016 overtime rule was left for dead after a Texas federal judge struck it down, but the controversial regulation started stirring again a day before Halloween when the U.S. Department of Labor decided to appeal, a move experts said is designed to protect the agency’s authority to set a salary threshold for overtime exemption that’s more to the Trump administration’s liking.

The Labor Department notified U.S. District Judge Amos Mazzant on Monday that it would be appealing his August order invalidating the Obama administration’s 2016 rule that greatly expanded the Fair Labor Standards Act’s overtime exemptions for executive, administrative and professional, or EAP, workers. The rule would have doubled the minimum salary required to qualify for the exemption from $23,660 annually to just over $47,000 per year, increased the overtime eligibility threshold for highly compensated workers from $100,000 to about $134,000, and created an index for future increases.

Labor Secretary Alex Acosta has indicated on numerous occasions that the Trump DOL would seek to write a revised version of the rule that sets a salary level somewhere between the one proposed in 2016 and the existing threshold of $23,660, set in 2004 by the Bush administration.

Locke Lord LLP partner Richard Glovsky pointed out that a notice of appeal is a perfunctory step that simply reserves a party’s right to pursue an appeal. “My impression is that the DOL is not 100 percent sure what it wants to do,” Glovsky told Law360. “It wants to keep its options open.”

In a statement shortly after it filed Monday’s notice, the DOL indicated that it will ask the Fifth Circuit to stay the case as soon as the appeal is docketed while the agency “undertakes further rulemaking to determine what the salary level should be.”

But there’s a problem: It’s not clear from Judge Mazzant’s ruling whether the agency has the authority to use salary as a basis for defining the EAP exemption in the first place — leading experts to speculate that affirming that authority is the primary reason behind the DOL’s appeal.

“It’s not the normal [type of case] you see. It has some different twists and turns to it,” said David C. Burton, a partner at Williams Mullen. “The DOL wants to get [its new] rule out without this litigation putting them in the position of having to argue whether or not they have the authority to issue it.”

Christine Owens, executive director of the National Employment Law Project, a workers’ rights group that has remained steadfast in its support of the 2016 rule, said in a statement that the DOL’s appeal “is good news for the millions of workers who need better protections of their right to overtime pay,” and that the agency “is right to defend its authority to issue a robust salary threshold to set the baseline for this exemption.”

The apparent uncertainty over the DOL’s ability to set a salary threshold for overtime exemption stems from Judge Mazzant’s November ruling issuing a preliminary injunction blocking the rule. The judge said then that nothing in the exemption indicates Congress wanted the DOL to define employee classifications with respect to a minimum salary level.

That decision raised enough of a question about the scope of the DOL’s authority regarding the EAP exemptions that the agency addressed it in a brief at the Fifth Circuit in June, after the Trump administration was in place. The agency said that while it “decided not to advocate for the specific salary level” set by the 2016 rule, it nonetheless had the power to use salary as a component for testing whether a worker should be paid overtime.

That appeal, which has since been withdrawn, was challenging Judge Mazzant’s preliminary injunction.

In his August ruling invalidating the 2016 rule outright, Judge Mazzant said the salary level set by the DOL was so high that it flouted Congress’ intention that the overtime exemption apply to employees who perform “bona fide executive, administrative or professional capacity” duties.

He said that by setting the salary level where it did, the DOL effectively eliminated the so-called duties test for determining which workers are eligible for the EAP exemption, which it lacked the authority to do.

Judge Mazzant, however, was careful to note that he wasn’t making any determination regarding the lawfulness of the salary level test or the DOL’s authority to issue one, saying instead that he evaluated only the salary-level test as proffered in the 2016 rule.

Attorneys speculated following that ruling that it still left plenty of room for interpretation as to whether the DOL has the ability going forward to use a salary test when dealing with the overtime exemption.

Steven Pockrass, co-chair of Ogletree Deakins Nash Smoak & Stewart PC’s wage and hour practice, told Law360 on Monday that the DOL is likely trying to “get [Judge Mazzant’s August decision] off the books so there is no longer any ruling that limits the DOL’s authority” still in effect.

“The goal is to get the district court’s decision vacated as if it was never on the books,” Pockrass said, noting that he expects the government to also argue after it issues a new rule that the appeal is moot.

But that approach could also backfire, attorneys say, since the Fifth Circuit may decide not to grant the DOL’s request for a stay.

Burton noted that by filing an appeal, the DOL could be opening the door for the Fifth Circuit to overturn Judge Mazzant’s ruling and uphold the Obama-era rule in full, which would create even greater procedural hurdles for the Trump DOL to justify any changes if it later decides to revisit the regulation and set a salary threshold it considers more appropriate.

In another procedural twist on Monday, the AFL-CIO also filed its own notice of appeal with Judge Mazzant, who had previously denied the union’s bid to intervene in the case.

Glovsky, for one, noted that the union may ultimately present an argument that coincides to some extent with the agency’s position that it has the power to set a salary level threshold.

But the union may go further and “try to get the Obama regulation to be upheld in its entirety” if it has the opportunity to present arguments to the Fifth Circuit, Glovsky said.

The cases are State of Nevada et al. v. U.S. Department of Labor, case number 4:16-cv-00731, and Plano Chamber of Commerce et al. v. R. Alexander Acosta, case number 4:16-cv-00732, in the U.S. District Court for the Eastern District of Texas.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Justices won’t hear Robert Half class arbitration challenge

Published on October 30, 2017

New York — The U.S. Supreme Court refused to hear a case from former Robert Half International Inc. workers challenging a ruling by the Third Circuit that the staffing agency could address overtime claims in individual arbitration rather than on a classwide basis, according to its Monday order list.

The high court denied former staffing managers David Opalinski and James McCabe’s June petition for a writ of certiorari, which identified what they perceived as a circuit split on the issue of who determines the availability of class arbitration — a district court or an arbitrator. The Third Circuit had affirmed a New Jersey district court’s ruling that class arbitration was not permitted under their employment agreements, which Opalinski and McCabe claimed directly contradicted an arbitrator’s prior determination.

Justice Neil Gorsuch did not take part in the high court’s decision.

“Robert Half essentially got two bites at the apple by successfully moving to compel arbitration and then running back to court when it did not like the result it obtained in arbitration (despite not having previously challenged the court’s allowing the arbitrator to decide this issue),” they wrote in the petition. “This case presents a prime example of the gamesmanship in which parties can partake, exploiting the uncertainty of the ‘who decides’ issue to their advantage.”

Opalinski and McCabe had launched their lawsuit in New Jersey federal court against international staffing agencies Robert Half International Inc. and Robert Half Corp. in 2010, claiming that the companies misclassified them as overtime-exempt employees in violation of the Fair Labor Standards Act. Opalinski and McCabe sought to pursue individual claims as well as collective action claims on behalf of thousands of Robert Half staffing managers, according to court filings.

Robert Half, meanwhile, asserted that the employees had signed employment agreements containing arbitration clauses, trying to dismiss their claims and compel arbitration.

An arbitrator held in May 2012 that class arbitration was permitted under the employment agreements but the district court later disagreed, arguing that it was not permitted and dismissing the suit with prejudice. That decision was affirmed by the Third Circuit, which refused to grant Opalinski and McCabe a rehearing in March.

The workers petitioned the high court for a writ of certiorari in June, arguing that an arbitrator — not the district court — has the final say as to the availability of class arbitration. Their petition relies on the high court’s precedent in the 2013 case Oxford Health Plans LLC v. Sutter, in which it upheld a an arbitrator’s decision to permit class arbitration despite the fact that such an option was not mentioned in the class’ agreements but put off resolving the broader question of who has the power to determine class arbitration availability.

The workers identified in their petition a circuit split on the issue, arguing that while the Third Circuit ruled in their case that a district court must determine class arbitration availability, the Fifth Circuit has alternatively found that power lies instead with an arbitrator.

Robert Half countered before the high court that no such circuit split exists, quoting the Third Circuit’s opinion in saying that no other circuit courts have “ruled, or even expressed a view on the issue before us.” Rather, they claimed that the Third, Fourth, Sixth, Eighth and Ninth Circuits have ruled that “determining the availability of class arbitration presents a question of arbitrability that is presumptively for a court to decide,” their reply brief states.

The company also noted that the case involves older arbitration agreements that make no mention of class arbitration, but parties have since evolved to address class arbitration head-on in their employment agreements, meaning the “present issue is headed towards total extinction.”
Counsel for the parties did not immediately respond to requests for comment.

The workers are represented by Shannon Liss-Riordan of Lichten & Liss Riordan PC.

Robert Half is represented by Richard Alfred, Patrick J. Bannon and James M. Hlawek of Seyfarth Shaw LLP.

The case is David Opalinski, et al. v. Robert Half International, Inc., et al., case number 16-1456 in the Supreme Court of the United States.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC won $484 million for workers in 2017, cut backlog

Published on November 9, 2017

New York — The U.S. Equal Employment Opportunity Commission won nearly $500 million for workers in fiscal year 2017 and reduced its inventory of unresolved discrimination charges to its lowest level in a decade, the agency said Thursday, giving a sampling of data from a report due out next week.

The agency said it won $484 million in the last fiscal year. It also resolved 99,109 charges to bring its total charge workload down to 61,621 at the end of September, compared with resolving 97,443 charges to bring its workload down to 73,508 charges at the same time last year, it said.

EEOC acting chair Victoria Lipnic said in a statement Thursday the agency made “addressing the backlog a priority.”

“The pending inventory of private sector charges … has been a longstanding issue for the EEOC and the public it serves,” Lipnic said.

Lipnic added the agency reduced its backlog in part by sharing effective case resolution strategies among its offices “while ensuring we are capturing charges with merit.”

The $484 million total includes $355.6 million secured for private sector and state workers through mediation, conciliation and other administrative enforcement and another $42.4 million secured through litigation. The agency also won $86 million for federal employees and job applicants, it said.

The agency fielded 540,000 phone calls and more than 155,000 contacts with its field offices in fiscal year 2017, with 84,254 new charges filed. It did not break these charges down into types of discrimination alleged on Thursday.

It filed 184 lawsuits in fiscal year 2017, more than double the 86 suits it filed in the same period a year ago, according to a January release. Of those, 124 included individual claims, 30 alleged non-systemic discrimination against multiple individuals and 30 alleged systemic discrimination. The suits include allegations that workers at a California Chipotle locked a coworker in a freezer after he reported their boss for sexual harassment, and that Time Warner Cable violated the Americans with Disabilities Act by firing an account executive with cancer.

On the outreach front, the agency said its educational programs reached 317,000 people across more than 4,000 free events in fiscal year 2017.

The agency also revamped its online offerings, updating a youth-oriented area of its website, launching a resource center aimed at educating small business owners on their legal responsibilities, and rolling out a new online charge reporting system.

The EEOC announced in March that it would start taking initial inquiries and requests for intake interviews online in five cities. The agency rolled the program out nationwide earlier this month, with Lipnic saying at the time she hoped it would “make the EEOC much more accessible to the public.”

The agency said Thursday it will release additional data in its fiscal year 2017 Performance and Accountability Report, which will be available on its website on Nov. 15. The agency will release comprehensive statistics for fiscal year 2017 in January.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Consolidated Edison Co. to pay $800,000 to settle EEOC disability discrimination suit

Published on November 8, 2017

NEW YORK – Consolidated Edison Company of New York, Inc., the utility that provides electrical and gas service to New York City and Westchester County, will pay $800,000 and furnish other relief to resolve a disability discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s complaint, the company’s doctors refused to medically approve qualified applicants to begin employment because of their disabilities, even though they

could perform the jobs for which they applied. The company also performed medical examinations of applicants without giving them a conditional job offer first. Finally, the company’s doctors imposed improper medical restrictions on some existing employees with disabilities that reduced their earnings, and in one case led to termination, the EEOC said.

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination in hiring and terms and conditions of employment based on disability. This includes refusing to hire applicants because of their disabilities when they can perform the essential functions of the job with or without a reasonable accommodation. Additionally, an employer may not ask applicants disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant. The EEOC filed suit in U.S. District Court for the Southern District of New York (EEOC v. Consolidated Edison Company of New York, Inc., Civil Action No.17-cv-7390), after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, the company will pay the job applicants and employees who were discriminated against $800,000 in lost wages and damages. The decree also requires that Con Ed give a written job offer before it conducts any pre-hire medical examination. Under the decree, Con Ed must make an individualized assessment of each applicant’s ability to perform the job and will raise the threshold for its doctors to place disability-related restrictions on applicants and employees.

“The EEOC appreciates Con Ed’s willingness to resolve this case without protracted litigation,” said Jeffrey Burstein, the EEOC’s regional attorney for the New York District Office. “The agency remains committed to enforcing federal law to ensure that people with disabilities do not face discriminatory barriers to full and equal participation in the workforce.”

EEOC New York District Director Kevin Berry said, “Congress passed the ADA to protect Americans with disabilities from adverse employment actions based on fears and myths about their conditions. We applaud Con Ed’s willingness to change its hiring procedures to ensure that disabled applicants are given a fair and equal opportunity to work for them.”

The EEOC’s New York District Office is responsible for processing discrimination charges, administrative enforcement and the conduct of agency litigation in New York, northern New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire and Maine.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC issues 2017 performance report

Published on November 16, 2017 

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) made significant progress in managing the pending inventory of charges during fiscal year 2017, which ended Sept. 30, the agency reported in its annual Performance and Accountability Report published on Nov. 15.

EEOC offices deployed new strategies to more efficiently prioritize charges with merit and more quickly resolve investigations once the agency had sufficient information. Together with improvements in the agency’s digital systems, these strategies produced an increase in charge resolutions and a significant decrease in charge inventory.  As a result, in fiscal year 2017 the EEOC resolved 99,109 charges and reduced the charge workload by 16.2 percent to 61,621, the lowest level of inventory in 10 years.  Additionally, during the fiscal year, the EEOC handled over 540,000 calls to the toll-free number and more than 155,000 contacts about possible charge filing in field offices, resulting in 84,254 charges being filed.

“The pending inventory of private sector charges (the backlog) has been a longstanding issue for the EEOC and the public it serves,” said EEOC Acting Chair Victoria A. Lipnic. “Early in the calendar year, we made addressing the backlog a priority. A primary point of this effort was to share strategies among our offices that have been particularly effective in dealing with the pending inventory, while ensuring we are capturing charges with merit. I thank EEOC’s employees for their work and congratulate them on this progress.”

Other fiscal year 2017 highlights include:

The EEOC secured approximately $484 million for victims of discrimination in the workplace. This includes $355.6 million in monetary relief for those who work in the private sector and state and local government workplaces through mediation, conciliation and other administrative enforcement, and $42.4 million in monetary relief for charging parties through litigation. The EEOC also secured $86 million in monetary relief for federal employees and applicants.  Importantly, in each of these categories, the agency obtained substantial changes to discriminatory practices to remedy violations of equal employment opportunity laws and prevent future discriminatory conduct.

In fiscal year 2017, the EEOC filed 184 merits lawsuits, including 124 suits on behalf of individuals, 30 non-systemic suits with multiple victims, and 30 systemic suits. This is more than double the number of suits filed in fiscal year 2016. Additionally, EEOC’s legal staff resolved 109 merits lawsuits for a total monetary recovery of $42.4 million and achieved a favorable result in 91 percent of all district court resolutions.  In addition, a number of very significant suits were successfully resolved.

The agency’s outreach programs reached 317,000 people during the year through participation in more than 4,000 no-cost educational, training and outreach events. The EEOC continued to promote the online Small Business Resource Center to provide a one-stop shop to help small businesses easily access information about employer responsibilities. The Small Business Administration Ombudsman’s Report again gave EEOC an “A” rating for responsiveness to small business concerns.

On the technology front, the agency further enhanced its online capabilities for the public and made internal operational improvements. For the public, the EEOC advanced its online services by way of a pilot program which allowed individuals in five EEOC offices to submit inquiries online, schedule interviews, and submit and receive charge information.  This pilot led to the nationwide launch of the EEOC Public Portalin November 2017. Internally, the agency replaced many paper procedures with more efficient online tools.

In our federal sector program, the agency resolved 6,661 hearings complaints and secured more than $72.7 million in relief for federal employees. EEOC also resolved 4,284 appeals of agency decisions on federal sector complaints, a 14 percent increase over the previous year, including 47.3 percent of them within 180 days of receipt, and secured more than $13.3 million in relief. Our federal program also reduced its pending inventory of appeals by 11 percent to 3,658 the lowest level in nine years.

EEOC’s fiscal year 2017 Performance and Accountability Report is posted on the agency’s web site at https://www.eeoc.gov/eeoc/plan/upload/2017par.pdf. Comprehensive enforcement and litigation statistics for fiscal year 2017 will be available on the agency’s website in January 2018.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Dependable Health Services for disability discrimination

Published on September 22, 2017

BALTIMORE – Dependable Health Services, Inc., a health care staffing agency, violated federal law when it fired an employee with sickle-cell anemia instead of reinstating her or reassigning her to a position in another department where she had previously worked, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced Aug. 14.

According to the suit, Sheena Berry started working at Walter Reed National Military Medical Center in Bethesda, Md., as a phlebotomist in March 2016. In September 2016, when Dependable Health Services took over a medical services contract at Walter Reed, Berry was pregnant and experienced complications related to the sickle-cell anemia, including restrictions on her ability to lift and bend. Berry told Dependable Health Services about her pregnancy and disability and requested a reasonable accommodation of no longer working mobile blood drives. Dependable Health Services initially refused to accommodate Berry, the EEOC said.

Shortly thereafter, Berry had premature contractions while working on a mobile blood drive, and was hospitalized. Only then did Dependable Health Services accommodate her by placing her in the Out-Patient Phlebotomy Department, which did not require mobile blood drives, according to the suit. Berry remained working in that department until she gave birth in early November 2016. While on maternity leave, Berry contacted Dependable Health Services on several occasions to update them on her status and hospitals stays.

On Feb. 24, 2017, Berry informed Dependable Health Services that she would return to work on Feb. 28. However, on Feb. 27, Dependable Health Services abruptly terminated Berry, stating it “decided to have [Berry’s] position backfilled effective immediately. Please see the attached notice of your employment termination effective today, 02/27/2017.”

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability. The ADA also requires an employer to provide reasonable accom­modations unless the employer can prove it would be an undue hardship. The EEOC filed suit (EEOC v. Dependable Health Services, Inc., Civil Action No. 8:17-cv-02316) in U.S. District Court for the District of Maryland, Greenbelt Division, after first attempting to reach a pre-litigation settlement through its conciliation process. As part of the suit, the EEOC is seeking back pay and compensatory and punitive damages, as well as injunctive relief prohibiting the company from engaging in any employment practices that dis­criminate based on disability in the future.

“The law is clear — an employer must provide a reasonable accommodation to individuals with a disability,” said EEOC Regional Attorney Debra M. Lawrence. “Instead of reinstating Ms. Berry, or respond­ing to her request to be reassigned to work in the outpatient department, Dependable Health Services abruptly fired her the day before she was set to return to work — and that’s why we filed this suit.”

Spencer H. Lewis, Jr., district director of EEOC’s Philadelphia District Office, added, “Everyone loses when an employer rushes to terminate an employee instead of exploring potential reasonable accommodations, including transfer to a vacant position, that would enable a good worker to remain employed.”

The EEOC’s Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Attorneys in the EEOC Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Life University sued by EEOC for race discrimination, retaliation

Published on September 22, 2017

ATLANTA – Life University, Inc., the largest chiropractic college in the United States, located in Marietta, Ga., violated federal law when it treated two black employees differently because of their race and then fired them for complaining about the discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed recently.

According to the EEOC’s complaint, Life University’s director of the financial aid department violated federal law by subjecting Channon Williams and Shaundy Thomas, two African-American financial aid counselors, to harsher discipline because of their race. The same director failed to discipline Caucasian financial aid counselors for committing the same or similar supposed offenses. After Williams and Thomas took their complaints about racial discrimination to Life University’s human resources department, in or about December 2015, both were fired a short time later, in January 2016.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. Life University Inc., Civil Action No. 1:17-cv-3121) in U.S. District Court for the Northern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking back pay, compensatory and punitive damages for Williams and Thomas, as well as injunctive relief designed to prevent such discrimination in the future.

“An employer should not treat any employee differently simply because of their race,” said Bernice Williams-Kimbrough, director of the EEOC’s Atlanta District Office.

Antonette Sewell, regional attorney for the Atlanta District Office, added, “Employers should never terminate an employee for complaining about discrimination and exercising his or her federally protected rights. Instead, employers should strive to create a culture where discrimination is not tolerated and complaints are welcome.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Ford Motor Co. to pay up to $10.125 million to settle EEOC harassment investigation

Published on September 22, 2017

CHICAGO – Ford Motor Company has agreed to pay up to $10.125 million to settle sex and race harassment for a group of individuals which was investigated by the U.S. Equal Employment Opportunity Commission (EEOC) at two Ford plants, the federal agency announced Aug. 17.

In its investigation, the EEOC found reasonable cause to believe that personnel at two Ford facilities in the Chicago area, the Chicago Assembly Plant and the Chicago Stamping Plant, had subjected female and African-American employees to sexual and racial harassment. The EEOC also found that the company retaliated against employees who complained about the harassment or discrimination.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. Ford chose to voluntarily resolve this issue with the EEOC, without admission of liability, to avoid an extended dispute.

The conciliation agreement provides monetary relief of up to $10.125 million to those who are found eligible through a claims process established by the agreement. The agreement also ensures that during the next five years, Ford will conduct regular training at two of its Chicago-area facilities; continue to disseminate its anti-harassment and anti-discrimination policies and procedures to emp­loyees and new hires; report to EEOC regarding complaints of harassment and/or related discrimination; and monitor its workforce regarding issues of alleged sexual or racial harassment and related discrim­ination.

“Ford Motor Company has worked with the EEOC to address complaints of harassment and discrimination at these two facilities and to implement policies and procedures that will effectively prevent future harassment or provide prompt action when harassment complaints arise.  Ford has taken its responsibilities seriously and is committed to providing its employees with a work environment free of discrimination and harassment,” said the EEOC’s Chicago District Director, Julianne Bowman.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Lincoln Cemetery sued by EEOC for retaliation

Published on September 22, 2017

ATLANTA – Lincoln Cemetery, Inc., an Atlanta corporation specializing in interment arrangements, violated federal law when it fired an employee because she participated in an EEOC investigation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed.

According to the EEOC’s lawsuit, Peggy Knox had worked for Lincoln Cemetery as an adminis-trative assistant since October 1983. In July 2015, Knox was interviewed by the EEOC during its investi-gation into an EEOC charge filed against Lincoln Cemetery by another employee. On Sept. 17, 2015, Lincoln Cemetery’s owner and president attended a conference at the EEOC’s Atlanta District Office related to the same EEOC investigation. Within hours of attending the conference, Knox was fired be-cause of her cooperation with the EEOC.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Northern District of Georgia, Atlanta Division (Civil Action No. 1:17-cv-3165-ELR-AJB) after first attempting to reach a pre-litigation settlement through its conciliation process. The federal agency seeks back pay, compensatory damages and punitive damages for Knox, as well as injunctive relief designed to prevent such discrimination in the future.

“This suit sends a message that employees should never be punished for speaking to government officials when they investigate discrimination claims,” said Bernice Williams-Kimbrough, director of the EEOC’s Atlanta District Office.

Antonette Sewell, regional attorney for the Atlanta District Office, added, “Trying to take revenge against employees for speaking to government investigators and engaging in protected activity is a clear violation of the anti-retaliation provisions of Title VII and hinders an employee’s ability to work in a discrimination-free environment as well as the government’s ability to do its job.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Illinois Action for Children for disability discrimination

Published on September 22, 2017

CHICAGO – Illinois Action for Children fired an employee who was on leave receiving treatment for breast cancer rather than granting her request for additional leave for more treatment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Aug. 28.

Such alleged conduct violates under the Americans with Disabilities Act (ADA), which prohibits disability discrimination in employment. The EEOC brought the suit (EEOC v. Illinois Action for Children, Civil Action No. 17-cv-6224) in U.S. District Court for the Northern District of Illinois, Eastern Division on Aug. 28, after first attempting to reach a pre-litigation settlement through its conciliation process. The case has been assigned to U.S. District Judge Rebecca R. Pallmeyer.

EEOC Chicago District Director Julianne Bowman said, “Our investigation revealed that Illinois Action for Children fired Myrnie Brown while she was receiving treatments for breast cancer rather than granting her request from her doctor for a short period of additional leave to receive additional treatment. Ms. Brown had been employed with Illinois Action for Children for almost two and half years at the time of her termination. Although Illinois Action for Children eventually rehired Ms. Brown, because of her termination over breast cancer leave, she was denied the opportunity to work at her job for over six months.”

EEOC Chicago District Regional Attorney Greg Gochanour pointed out that employers have a duty to provide reasonable accommodations to people with disabilities that enable them to perform the essential functions of their job. Courts have repeatedly found that in certain circumstances, a leave of absence may constitute a reasonable accommodation under the ADA. EEOC guidance states than an employer may have to accommodate an employee who is unable to work while she is undergoing chemotherapy or other treatments, Gochanour added.

Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness.  When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

The EEOC is seeking full make-whole relief, including back pay, compensatory and punitive damages, and non-monetary measures to correct Illinois Action for Children’s practices going forward.

The EEOC’s Chicago District Office is responsible for processing charges of employment discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Maritime Autowash for race and national origin discrimination, retaliation

Published on September 22, 2017

BALTIMORE – Maritime Autowash, Inc. violated federal law when it subjected a class of workers to a hostile work environment and disparate treatment based on their race and national origin (Hispanic) at its Edgewater, Md., facilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced Aug. 28.

According to the EEOC’s lawsuit, Maritime segregated a class of Hispanic workers into lower-paying jobs as laborers or detailers because of their race and national origin, and did not offer them promotion or advancement opportunities to key employee or cashier positions, despite their tenure and outstanding job performance. Maritime paid many class members only the minimum wage despite years of service, but paid non-Hispanic workers higher wages or promoted them to key employee positions.

The EEOC also charged that Maritime discriminated against the Hispanic class members in their terms and conditions of employment. These discriminatory practices included forcing them to perform other duties without additional compensation and denying them proper safety equipment or clothing. Maritime also required Hispanic workers to perform personal tasks for the owner and managers, such as routinely assigning the female Hispanic class members to clean the houses of the owner or manager and assigning the male Hispanics to perform duties at their homes, such as landscaping, cleaning the pool, picking up dog excrement, painting or helping with moves.

In addition, the EEOC charged that Maritime further violated the law by firing class members for complaining about the harassment and discriminatory working conditions.  In the course of the EEOC’s investigation of this matter, the U.S. Circuit Court of Appeals for the Fourth Circuit enforced the agency’s authority to subpoena evidence, in a published opinion available at:  http://www.ca4.uscourts.gov/Opinions/Published/151947.P.pdf.

All this alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination and harassment based on race and national origin. The EEOC filed suit (EEOC v. Phase II Investments, Inc., formerly known as Maritime Autowash, Inc. and Maritime Autowash, II, et. al, Civil Action No. 1:17-cv-02463) in U.S. District Court for the District of Maryland, Northern Division, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking compensatory and punitive damages on behalf of the class members, as well as broad injunctive relief to prevent discrimination in the future.

“Sadly, more than 50 years after the passage of the Civil Rights Act, this employer thought it could get away with subjecting Hispanic workers to separate and unequal pay, job opportunities and working conditions,” said EEOC Regional Attorney Debra M. Lawrence. “The EEOC is dedicated to protecting vulnerable workers from such discrimination and harassment and ensuring that all employees receive equal pay for equal work.”

Spencer H. Lewis, Jr., district director of the EEOC’s Philadelphia District Office, added, “Exploiting workers based on national origin and race is despicable and unlawful. The class members courageously opposed the harassment and discrimination. Unfortunately, Maritime again failed to do the right thing and made a bad situation worse by firing the discrimination victims. Now the EEOC will take vigorous action to rectify this situation.”

The EEOC’s Baltimore Field Office is one of four offices in the Philadelphia District Office, which has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Attorneys in the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

Eliminating discriminatory practices affecting vulnerable workers who may be unaware of their rights under equal employment laws or reluctant or unable to exercise them, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP). These practices can include disparate pay, job segregation, harassment and human trafficking. Enforcing equal pay laws, including addressing discriminatory compensation systems and practices, is another SEP priority.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Estee Lauder for sex discrimination

Published on September 22, 2017

PHILADELPHIA—Estee Lauder Companies, Inc., one of the world’s leading manufacturers and marketers of skin care, makeup, fragrance and hair care products, violated federal law when it implemented and administered a paid parental leave program that automatically provides male employees who are new fathers lesser parental leave benefits than are provided to female employees who are new mothers, the Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit it announced Aug. 30.

According to the suit, in 2013 Estee Lauder adopted a new parental leave program to provide employees with paid leave for purposes of bonding with a new child, as well as flexible return-to-work benefits when the child bonding leave expired. Under its parental leave program, in addition to paid leave already provided to new mothers to recover from childbirth, Estee Lauder also provides eligible new mothers an additional six weeks of paid parental leave for child bonding.  Estee Lauder only offers new fathers whose partners have given birth two weeks of paid leave for child bonding.  The suit also alleges that new mothers are provided with flexible return-to-work benefits upon expiration of child bonding leave that are not similarly provided to new fathers.

The case arose when a male employee working as a stock person in an Estee Lauder store in Maryland sought parental leave benefits after his child was born.  He requested, and was denied, the six weeks of child-bonding leave that biological mothers automatically receive, and was allowed only two weeks of leave to bond with his newborn child.  Such conduct violates Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Pay Act of 1963, which prohibit discrimination in pay or benefits based on sex.  The suit seeks relief for the affected employee, and other male employees who were denied equal parental leave benefits because of their sex.

The EEOC’s Washington Field Office investigated the charge of discrimination that led to this suit. The EEOC filed suit (EEOC v. Estee Lauder Companies, Inc., Civil Action No. —) in U.S. District Court for the Eastern District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process. As part of the suit, the EEOC is seeking back pay and compensatory and punitive damages on behalf of the aggrieved class members, as well as injunctive relief.

“It is wonderful when employers provide paid parental leave and flexible work arrangements, but federal law requires equal pay, including benefits, for equal work, and that applies to men as well as women,” said EEOC Washington Field Office Acting Director Mindy Weinstein.

EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence added, “Addressing sex-based pay discrimination, including in benefits such as paid leave, is a priority issue for the Commission.”

Enforcement of equal pay laws, including targeting compensation systems and practices that discriminate based on gender, is of one of six national priorities identified by the Commission’s Strategic Enforcement Plan.

The EEOC Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio.  Attorneys in the EEOC Philadelphia District Office also prosecute discrimination cases arising from Washington, D.C. and parts of Virginia.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Pizza Studio restaurant owner for violating Equal Pay Act

Published on September 22, 2017

ST. LOUIS – A Delaware company that until recently operated a Pizza Studio restaurant in Kansas City, Kan., and still owns other restaurants nationwide, violated federal law by withdrawing job offers from two teens after the woman complained about being offered less pay than her male friend, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Sept. 5.

According to the EEOC’s lawsuit, two high school friends, Jenson Walcott and Jake Reed, applied to work at Pizza Studio as “pizza artists” in 2016. After both were interviewed and offered jobs, Walcott and Reed discussed their starting wages. Upon learning that Reed was offered 25¢ more per hour, Walcott called the restaurant to complain about the unequal pay. When she did so, the company immediately withdrew its offers of employment from both Walcott and Reed.

Such alleged conduct violates the Equal Pay Act of 1963, which prohibits companies from paying women and men unequally and retaliating against those who complain about or support a claim of unequal pay.

The EEOC filed its lawsuit (Equal Employment Opportunity Commission v. PS Holding LLC (Pizza Studio), Civil Action No. 2:17-cv-02513 in U.S. District Court for the District of Kansas. The EEOC seeks monetary relief as well as a judgment and order requiring the company to implement policies and practices to prevent future discrimination.

“The federal law requiring equal pay for jobs requiring the same skill, effort, and responsibility is older than the law which protects employees from discrimination based on race, religion, color, sex, and national origin,” said James R. Neely, Jr., director of EEOC’s St. Louis District Office. “Women must absolutely be paid the same as men for equal work.”

Andrea G. Baran, the EEOC’s regional attorney in St. Louis, said, “Perhaps even worse than offering unequal pay is firing employees when they make a good-faith inquiry regarding the possibility of unfair compensation. Employees need to know that the law protects co-workers who talk about their pay and those who complain if they believe the employer is not paying men and woman equally.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois.

The EEOC’s Youth@Work website (at http://www.eeoc.gov/youth/) presents information for teens and other young workers about employment discrimination, including curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Denton County sued by EEOC for discrimination under the Equal Pay Act

Published on September 22, 2017

DALLAS – Denton County, Texas violated the Equal Pay Act by paying lesser wages to a female clinician than it paid to a male physician performing the same job, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Sept. 6.

According to the EEOC’s lawsuit, Dr. Martha C. Storrie worked as primary care clinician in the Denton County Health Department beginning in October 2008. The job duties of the primary care clinician were primarily to provide medical treatment and healthcare for Denton County residents in clinics run by the county, including a clinic in the Denton County jail. According to the EEOC, in August 2015, Denton County hired a male physician to perform the same duties and responsibilities as other staff working as a primary care clinician.

However, when the newly hired clinician was brought onboard as a colleague of Dr. Storrie’s, the county set his starting annual salary at more than $34,000 higher than his experienced female counterpart. The EEOC maintains that during her employment with Denton County, other male physi­cians in the position of primary care clinician and performing the same duties were also paid higher wages than Dr. Storrie.

Such alleged conduct violates the Equal Pay Act (EPA), which prohibits discrimination in compensation based on sex. The EEOC filed suit in U.S. District Court for the Eastern District of Texas, Sherman Division (Equal Employment Opportunity Commission v. Denton County, Civil Action No. 4:17-CV-00614-ALM after first attempting to reach a pre-litigation settlement through its concilia­tion process. The agency seeks back pay to remedy the pay disparity.

The EEOC is also seeking liquidated (double) damages for alleged willfulness on the part of the county, when management refused to correct the matter even after the female physician brought it to their attention. The civil rights agency is also asking for injunctive relief to promote non-discriminatory pay practices in the future.

“Energetically enforcing equal pay laws is a currently one the national strategic priorities for the EEOC,” said EEOC Regional Attorney Robert A. Canino. “In the health care field, just as in any other job market, the best medicine for employers ailing from poor pay practices is to remedy gender-based pay disparities that have been premised on outdated sex stereotypes. With over 1,000 EPA charges received in 2016, we have our work cut out for us in promoting equal economic opportunity in the workplace.”

EEOC Supervisory Trial Attorney Suzanne Anderson added, “Denton County failed to properly pay Dr. Storrie for her important work in providing medical care in the county clinics and the jail. The county’s approach to salaries resulted in a wage gap between Dr. Storrie and the male physicians that persisted throughout her long career with the county. The EEOC will continue to enforce compli­ance with the EPA to ensure that employees are paid equally when they perform equal work.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Blood Bank of Hawaii for disability discrimination

Published on September 22, 2017

HONOLULU, Hawaii – Blood Bank of Hawaii violated federal law when it refused to provide reasonable accommodations for and then fired employees who required additional leave time for their disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Sept. 7.

The EEOC contends that Blood Bank of Hawaii maintained a rigid maximum leave policy whereby employees with disabilities were not granted a leave of absence as a reasonable accommodation beyond the required 12 weeks under the Family and Medical Leave Act, and were required to return to work without limitations at the end of that leave. The EEOC further contends that as a result of its leave policy and requirement to return to work without limitations, Blood Bank of Hawaii terminated employees who exhausted leave or failed to return to work without restrictions.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed its suit in U.S. District Court for the District of Hawaii (EEOC v. Blood Bank of Hawaii, Case No. 1:17-cv-00444) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks back pay and benefits, along with compensatory and punitive damages for the employee and a class of aggrieved individuals, as well as injunctive relief intended to prevent any future discrimination in the workplace.

“Employers have a duty to engage in the interactive process and provide reasonable accom-modations to employees with disabilities,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Hawaii in its jurisdiction. “Employees should never be terminated or forced to resign simply because they need additional leave for their disabilities.”

Glory Gervacio Saure, director of the EEOC’s Honolulu Local Office, added, “We hope this case sends a clear message to employers that they have different obligations under the Family Medical Leave Act and the Americans with Disabilities Act. Employees cannot be denied their protections under the ADA.”

Addressing disability discrimination in the form of inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Tarr and Zenith for pregnancy discrimination

Published on September 22, 2017

SAN DIEGO — Tarr, Inc. and Zenith, LLC, a San Diego-based company that sells dietary supplements, violated federal law when it fired an employee within days of learning of her pregnancy, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a pregnancy discrimination lawsuit filed Sept. 7.

According to EEOC’s lawsuit, an employee who worked at Tarr, Inc. in San Diego informed the company of her pregnancy and was terminated ten days later. The EEOC also contends that the com­pany discharged other pregnant employees or refused their requests to return to work after taking maternity leave. Tarr, Inc. merged with Zenith, LLC in 2016.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. Tarr, Inc., and Zenith, LLC, Case No. 3:17-cv-01660-W-WVG) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks back pay, compensa­tory and punitive damages for the female employee and a class of similarly affected employees, as well as injunctive relief intended to prevent further discrimination at the business.

“Pregnancy discrimination continues to be a persistent problem,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, whose jurisdiction includes San Diego County. “Employers should be cognizant of their obligations under federal law to maintain a workplace free of discrim­ination.”

Christopher Green, director of the EEOC’s San Diego local office, added, “Women should not have to choose between their job or having children. Employers need to be aware that the EEOC takes pregnancy discrimination seriously and the agency will continue to protect the rights of pregnant employees.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

JL Schwieters Construction to pay $125,000 to settle EEOC race harassment lawsuit

Published on September 22, 2017

MINNEAPOLIS – A Hugo, Minn., construction company will pay $125,000 to settle a racial harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Sept. 8. The EEOC’s lawsuit charged that JL Schwieters Construction, Inc. violated federal law when it subjected two black employees to a hostile work environment, including physical threats, based on their race.

According to the EEOC’s lawsuit, Willie Staple and Dion Pye worked for JL Schwieters Construction, Inc. from September 2012 to December 2013 as carpenters. Staple and Pye were both subjected to racial harassment during their employment by a white supervisor, which included racially derogatory comments including calling them “n—-r.” The supervisor also made a noose out of electrical wire and threatened to hang Staple and Pye, the EEOC charged.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which protects employees from discrimination and harassment based on race. The EEOC filed suit in U.S. District Court for the District of Minnesota (Equal Employment Opportunity Commission v. JL Schwieters Construction, Inc.; Civil Action No. 16-cv-03823 WMW/FLN) after first attempting to reach a pre-litigation settlement through its conciliation process.

U.S. District Judge Wilhelmina M. Wright signed the Order entering the Consent Decree on Sept. 6.  The decree provides $125,000 in monetary relief to Staple and Pye. It also requires Schwieters to revise its policies in its employee handbook to outline a complaint procedure for complaining of racial harassment. The decree also requires the company to train its management personnel on Title VII including its prohibitions against race discrimination and racial harassment.

Further, the decree requires Schwieters to train its non-management employees on their rights under Title VII, including their right to file discrimination charges with the EEOC. Finally, the company must report complaints of race discrimination and racial harassment to the EEOC during the decree’s two-year term.

“Employees have a right to work in an environment free of racial harassment, particularly the kind of severe and outrageous abuse the EEOC uncovered in its investigation of this case,” said Julianne Bowman, district director of the EEOC’s Chicago District.

Gregory Gochanour, regional attorney for the EEOC’s Chicago District, said, “Nooses and threats are absolutely unacceptable in 21st-century America.  When such terrible treatment is meted out to workers simply because of their race, the EEOC will fulfill its mandate and take action to stop it.”

The EEOC was represented in the case by Trial Attorney Tina Burnside in the EEOC’s Minneapolis Area Office.

The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and litigation in Minnesota, North Dakota, South Dakota, Wisconsin, Illinois and Iowa, with Area Offices in Milwaukee and Minneapolis.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Golden Corral for disability, sexual harassment

Published on September 22, 2017

Jax, LLC, which operates a Golden Corral restaurant in Matthews, N.C., discriminated against an employee with a disability when it subjected him to a hostile work environment based on both his disability and his sex (male), the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on Sept. 8. The lawsuit also alleges that the employee resigned because of the harassment.

According to the EEOC’s complaint, Sean Fernandez worked as a dishwasher at the Matthews Golden Corral. Fernandez has high-functioning autism, which limits his ability to communicate and interact with others. From around March or April 2014 until January 2016, a male assistant manager created a hostile work environment by repeatedly referring to Fernandez as a “retard,” calling him “stupid,” using profanity, requesting oral sex, threatening to sexually assault him, and subjecting him to unwanted physical contact. Fernandez filed a complaint and requested to be moved to a different shift, so that he would not have to work with the male assistant manager.  Fernandez resigned due to the harassment after he was again assigned to work with the same male assistant manager who again sexually harassed him.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities, as well as Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment. The EEOC filed suit in U.S. District Court for the Western District of North Carolina, Charlotte Division (EEOC v. Jax, LLC d/b/a Golden Corral, Civil Action No. 3:17-cv-00535-RJC-DCK) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay and compensatory and punitive damages as well as injunctive relief.

“All employees, men and women alike, are entitled to a workplace free from sexual harassment,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District. “Likewise, all employees have the right to work without being harassed due to their disabilities. It is particularly alarming when harassment is perpetrated by a supervisor.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Massimo Zanetti sued by EEOC for sexual harassment, retaliation

Published on September 22, 2017

ORFOLK, Va. —Massimo Zanetti Beverage USA, Inc. violated federal civil rights law when it failed to stop sexual harassment of a female employee and then fired her because she complained about the harassment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on Sept. 19.

According to the EEOC’s complaint, LaToya Young had been employed at Massimo Zanetti’s roasting facility in Suffolk, Va., about two weeks when a male co-worker began sexually harassing her in February 2015. The harassment included requests for sex and sexual favors, as well as other crude sexual comments and gestures. According to the EEOC, Young reported the harassment to her supervisor on at least three occasions. Despite her complaints, the harassment continued. Shortly after her third complaint about the sexual harassment, Young was fired for an alleged performance issue. The EEOC contends that Young’s performance was not the reason for her discharge, but rather was in retaliation for her complaints about sexual harassment.

The EEOC brought the suit under Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and retaliation against employees who complain about it. The EEOC sued after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. Massimo Zanetti Beverage USA, Inc., Civil Action No. 2:17-CV-00499-HCM-DEM) was filed in U.S. District Court for the Eastern District of Virginia, Norfolk Division on September 18, 2017.

The EEOC is seeking full relief, including back pay, reinstatement, compensatory damages, punitive damages and injunctive relief.

“Employers must remember they are obligated to take prompt remedial action when they learn about sexual harassment in the workplace,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. “This case is also a reminder that a company must not retaliate after receiving a sexual harassment complaint.”

According to publicly available information, Massimo Zanetti, which is headquartered in Portsmouth, Va., is part of the Massimo Zanetti Beverage Group, which does over $1 billion of business annually and claims to be the largest private company in the coffee industry.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Roth: World energy outlook

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on September 18, 2017.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

World energy outlook

The U.S. Energy Information Administration publishes the International Energy Outlook Report, as well as heaps of other important energy data.

An agency of the U.S. Federal Statistical System, the EIA is responsible for collecting, analyzing, and disseminating independent and impartial energy information. Also a part of the U.S. Department of Energy, the EIA strives to promote sound policymaking, efficient markets, public understanding of energy and its interaction with the economy and the environment. And its prognostications are just, well, cool.

The EIA projects a 48 percent increase in world energy consumption by 2040, which is good for an energy state like ours. But the type(s) of energy is what should draw our attention.

Check out this chart to see the projects, where the greatest percentage growth seems to be in natural gas, renewables and liquid fuels (source):

The international report analyzed energy consumption for years 1990-2040. The EIA also publishes an annual Energy Outlook Report for the U.S. with the 2017 iteration projecting data through 2050. The report’s authors aptly warn that the data consist of projections, not predictions.

While the report considers many factors, a few among them technological progress, energy policies and world oil prices, it goes without saying uncertainty exists in every market. The energy industry is no stranger to market fluctuations due to adverse geopolitical events, the advent of new technology, changes at the impetus of the industry, and many other considerations. A current example to watch is the tariff petition solar manufacturers Suniva and SolarWorld brought before the International Trade Commission. ITC is expected to vote at the end of the month. Stay tuned for how that decision, and subsequent action by the president, will affect the solar industry in the U.S. and beyond.

Promisingly, the report revealed renewables are growing faster than any other energy source for the period analyzed, with nuclear tracking closely behind. The projected growth of renewables is attributed to a desire for energy security, the negative effects of emissions on the environment, and long-term high oil prices. Some of the aforementioned rationales support natural gas is the fastest-growing of the fossil fuels.

Despite a projected increase in renewables, world-consumption of fossil fuels will still sit at the three-quarter mark of all energy consumed through 2040. Coal is growing the slowest, but will still rise slightly, in part due to China’s vast consumption – it consumes half the world’s coal, add to that India’s consumption, and the number becomes 70 percent. Unlike much of Europe, the U.S., and others, Asia is not a member of the Organization for Economic Cooperation and Development, and, not surprisingly, China and India, are projected to make up more than half of the world’s total energy consumption.

Both countries are working on plans to reduce emissions, although since those country’s demand is tied to economic growth, the mitigation policies being considered will not make a huge difference. If the U.S. and other OECD members can remain focused on encouraging safe, clean, renewable, cost-effective energy sources, perhaps we can force the world consumption trajectory in a sound direction.

But then again, as those who toil in energy know, sometimes we can cause the ripple, but most often we are forced to ride the wave. Be aware of the projections and decide where your efforts lie in the probable path forward in America and the world.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Phillips Murrah partners with KOSU and area Food Banks to help feed hungry children

KOSU logo, Regional Food Bank logo, Community Food Bank of Eastern Oklahoma logoOklahoma’s children are back in school, but not every school kid has reliable access to a sufficient quantity of affordable, nutritious food.

In Oklahoma, one in four children struggle with the detrimental effects of food insecurity. Phillips Murrah set out to be a part of the solution by helping feed hungry school children in our state.

With this aim in mind, Phillips Murrah is proud to announce our Challenge Grant partnership with KOSU Radio, the Regional Food Bank of Oklahoma and the Community Food Bank of Eastern Oklahoma.

With each pledge during KOSU’s Fall 2017 Member Drive on-air fundraiser, Phillips Murrah will donate the cost of a weekend food backpack for a hungry child to the Food Banks serving Oklahoma City and Tulsa, to be distributed by the Regional Food Bank of Oklahoma and the Community Food Bank of Eastern Oklahoma.

“Our Firm is very active in the community, especially with regards to helping children,” said Dave Rhea, Marketing Director at Phillips Murrah. “I’m also well aware of how hard Station Director Kelly Burley works to position KOSU as a leader in supporting education. We are excited for this opportunity to get involved with the Food Banks’ mission to fight the devastating effects of childhood hunger while also supporting the important work of public radio.”

If you would like to support this Phillips Murrah Challenge Grant, starting Wednesday, Sept. 13, call 855-808-5678 or pledge at KOSU.org.

2017 Labor Day Facts

 

We wish you safe travels and a happy 2017 Labor Day weekend!

Summer’s (Unofficial) End?

Although Labor Day is commonly celebrated as the three-day weekend that marks the unofficial end of summer, it originated as a day of recognition of the contributions made by the U.S. labor movement and the men and women of the American workforce.

 

Labor Day’s Origin

The first Labor Day Parade was held in New York City on September 5, 1882 Because of the growing popularity of Labor Day celebrations in various states, in 1893, South Dakota Senator James Kyle introduced a bill in the 53rd Congress to make Labor Day a legal federal holiday on the first Monday of September each year. President Grover Cleveland signed the act on June 28th in 1894.

 

Why No White Clothes??

Traditionally, the most steadfast fashion rule has been a moratorium on wearing white after Labor Day. But why? The custom is said to have its roots in the early 20th century, when the era-typical fashion was to wear dark colors in the workplace. In literal contrast, the summer vacation tradition, for those with financial means, was to trade their dark work suits and dresses for those made of lighter, airy white linen. As those in high-society were natural fashion leaders, and as Labor Day has long been co-opted as the end of summer vacation season, the return to the work world and requisite dark fashions became the customary rule.

 

Hot Dog Season is Over!

It is common to hear that Labor Day is the end of hot dog season. However, that does not mean hot dogs won’t be available at baseball parks during the post-season. In this case, “hot dog season” refers to the hot dog industry’s peak sales season, which lasts from Memorial Day to Labor Day. Between these book-end holidays falls summer grilling season, the majority of baseball season, and the king of all dog days, the 4th of July. During the time between Memorial Day and Labor Day, Americans typically eat 7 billion hot dogs, according to the National Hot Dog and Sausage Council.

UPS to pay $2 million to resolve nationwide EEOC disability discrimination claims

Published on August 15, 2017

The U.S. Equal Employment Opportunity Commission (EEOC) announced Aug. 8 international shipping giant United Parcel Service, Inc. (UPS) has agreed to pay $2 million to nearly 90 current and former UPS employees to resolve a nationwide disability discrimination lawsuit the EEOC filed in 2009, as well as to conciliate related administrative charges.

In the news release, the EEOC announced:

The EEOC charged that UPS violated federal law failing to provide UPS employees with disabilities reasonable accommodations that would enable them to perform their job duties. The EEOC further alleged that UPS maintained an inflexible leave policy, whereby the company fired disabled employees automatically when they reached 12 months of leave, without engaging in the interactive process required by law.

Such alleged conduct violates Americans with Disabilities Act (ADA).  The EEOC filed suit in U.S. District Court for the Northern District of Illinois (Case No. 09-cv-5291) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to providing $2 million in monetary relief, UPS has also agreed to update its policies on reasonable accommodation, improve its implementation of those policies, and conduct training for those who administer the company’s disability accommodation processes. Furthermore, the company has agreed to provide the EEOC periodic reports on the status of every accommodation request for the next three years to ensure the efficacy of its procedures.

“The ADA requires companies to make a real effort to work individually with their employees with disabilities to provide them with the necessary and reasonable accommodations that will allow them to do their jobs,” said Greg Gochanour, regional attorney of the EEOC’s Chicago District Office. “As a result of this lawsuit, UPS now has practices in place to better ensure that this happens.”

Julianne Bowman, the EEOC’s Chicago District director, added, “Having a multiple-month leave policy alone does not guarantee compliance with the ADA. Such a policy must also include the flexibility to work with employees with disabilities who may simply require a reasonable accommodation to return to work. UPS has now made changes which will allow more people to keep their jobs.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Revised Form I-9 now available

Published on August 15, 2017

On Monday, July 17, United States Citizenship and Immigration Services (USCIS) released a revised version of Form I-9, Employment Eligibility Verification.

Instructions for how to download Form I-9 are available on the Form I-9 page. Employers can use this revised version or continue using Form I-9 with a revision date of “11/14/16 N” through September 17.

Beginning September 18, employers must use the revised form with a revision date of “07/17/17 N.” Employers must continue following existing storage and retention rules for any previously completed Form I-9.

Revisions included the Form I-9 instructions, changing the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name—Immigrant and Employee Rights Section, and “the end of” was removed from the phrase “the first day of employment.”

Additional revisions were to the List of Acceptable Documents on Form I-9 including:

  • Addition of the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • All the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) were combined into selection C #2 in List C.
  • All List C documents except the Social Security card have been renumbered. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

USCIS included these changes in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also easier for users to navigate.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

How to Survive a Labor Law Investigation: USDOL offers free compliance assistance seminars for employers

Published on August 15, 2017

The United States Department of Labor (USDOL) is offering free seminars to educate employers about the Wage and Hour Division, its enforcement of federal labor laws, and common violations to avoid.

The USDOL encourages employers and representatives from all industries to attend. This training is provided at no cost to participants.

The seminars will cover issues regarding the Fair Labor Standards Act including minimum wage, overtime, record keeping, youth employment, exemptions, deductions, common violations, and bonuses and other payments.

Participants will be trained on the Family Medical Leave Act and issues regarding coverage, employee eligibility, qualifying conditions, employer/employee rights and responsibilities, maintenance of benefits, and notification and records requirements.

For more information and to register, follow these links:

On-site registration will begin at 12:30 PM for each seminar. Seating will be limited.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

OSHA revises online whistleblower complaint form

Published on August 15, 2017

The Occupational Safety and Health Administration (OSHA) announced revisions its online whistleblower complaint form in July in order to help users file a complaint with the appropriate agency.

The updated form provides workers with another option for submitting retaliation complaints to the U.S. Department of Labor’s OSHA.

In the news release, OSHA announced:

The updated form guides individuals as they file a complaint through the process, providing essential questions at the beginning so they can better understand and exercise their rights under relevant laws. One significant improvement to the system includes pop-up boxes with information about various agencies for individuals who indicate that they have engaged in protected activity that may be addressed by an agency other than OSHA. The new form is available in English and Spanish.

“Workers who report unsafe conditions and wrongdoing have a range of legal protections from retaliation,” said Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “The revised online complaint form works to ensure whistleblowers file their complaints with the appropriate federal agency for prompt action.”

In addition to the online form, workers can file complaints by fax, mail, or hand-delivery. Complaints may also be filed by contacting the agency at (800) 321-6742 or by calling an OSHA regional or area office.

Read more about whistleblower rights here, and learn more about OSHA’s role in ensuring safe and healthful workplaces at www.osha.gov.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Bass Pro to pay $10.5 million to settle EEOC hiring discrimination, retaliation suit

Published on August 15, 2017

The U.S. Equal Employment Opportunity Commission (EEOC) announced July 26 that Bass Pro Outdoor World, LLC, a leading retailer of fishing, camping, and hunting equipment and apparel, has agreed to pay $10.5 million and provide other significant relief to settle a hiring discrimination and retaliation lawsuit.

The EEOC’s suit charged that the company discriminated in hiring at its retail stores, unlawfully retaliated against employees who opposed practices they believed to be unlawful, and failed to adhere to federal record-keeping laws and regulations.

The nationwide agreement seeks to strengthen and improve Bass Pro’s hiring and recruiting practices of African-Americans and Hispanics, and resolves a pattern-or-practice lawsuit filed by the EEOC on Sept. 21, 2011.

In the news release, the EEOC announced:

A central focus of the agreement is strengthening Bass Pro’s diversity efforts and its commitment to non-discriminatory hiring, including appointment of a director of diversity and inclusion, affirmative outreach efforts to increase diversity in its workforce, updated EEO policies and hiring practices, and annual EEO training for management and non-management employees.

“The EEOC is pleased to have reached what the agency believes to be a fair resolution,” said EEOC Deputy General Counsel James Lee. “We look forward to working with Bass Pro in implement­ing the consent decree.”

EEOC Houston District Office Regional Attorney Rudy Sustaita said, “The EEOC commends Bass Pro for its efforts in bringing the pending litigation to a conclusion, and for its commitment to hiring a diverse workforce.”

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

AM@PM Breakfast Forum – Real Risks in the Virtual World

Every day, businesses face increasingly dangerous challenges as a growing dependence on the Internet, electronic data storage and personal devices prevails. What are business owners and leaders expected to know and do about these digital-related threats?

Phillips Murrah has assembled an expert panel of attorneys who will discuss the following topics and provide insight on how to stay current and secure:

  • Phishing Scams & Cyber Breach – Exposure & Response
  • Data Security – How safe is your information?
  • B.Y.O.D. – Bring Your Own Device Policies
  • Electronically Stored Information & Litigation Holds

DATE & TIME:
Tuesday, August 22, 2017
7:30 – 8:30 a.m.

LOCATION:
V2 Vista Room, Devon Tower, 50th Floor
333 W. Sheridan Ave., Oklahoma City

Please join us for this insightful discussion, enjoy a delicious breakfast, the iconic view from atop the Devon Tower and a chance to win Bedlam tickets!

REGISTRATION:

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PARKING:

Parking is available in the west Devon Parking Garage, located on Harvey Ave. just south of Park Ave. Click the image below to open location in Google Maps.


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United States Department of Labor WHD RFI Questions

The U.S. Department of Labor announced on on Tuesday, July 25, that they will publish a Request for Information for the overtime rule on Wednesday, July 26. (See news release) 

Instructions on submitting public comments are located in the RFI, which you can view here. Comments may also be submitted electronically at http://www.regulations.gov.

RFI QUESTIONS:

1. In 2004 the Department set the standard salary level at $455 per week, which excluded from the exemption roughly the bottom 20 percent of salaried employees in the South and in the retail industry. Would updating the 2004 salary level for inflation be an appropriate basis for setting the standard salary level and, if so, what measure of inflation should be used? Alternatively, would applying the 2004 methodology to current salary data (South and retail industry) be an appropriate basis for setting the salary level? Would setting the salary level using either of these methods require changes to the standard duties test and, if so, what change(s) should be made?

2. Should the regulations contain multiple standard salary levels? If so, how should these levels be set: by size of employer, census region, census division, state, metropolitan statistical area, or some other method? For example, should the regulations set multiple salary levels using a percentage based adjustment like that used by the federal government in the General Schedule Locality Areas to adjust for the varying cost-of-living across different parts of the United States? What would the impact of multiple standard salary levels be on particular regions or industries, and on employers with locations in more than one state?

3. Should the Department set different standard salary levels for the executive, administrative and professional exemptions as it did prior to 2004 and, if so, should there be a lower salary for executive and administrative employees as was done from 1963 until the 2004 rulemaking? What would the impact be on employers and employees?

4. In the 2016 Final Rule the Department discussed in detail the pre-2004 long and short test salary levels. To be an effective measure for determining exemption status, should the standard salary level be set within the historical range of the short test salary level, at the long test salary level, between the short and long test salary levels, or should it be based on some other methodology? Would a standard salary level based on each of these methodologies work effectively with the standard duties test or would changes to the duties test be needed?

5. Does the standard salary level set in the 2016 Final Rule work effectively with the standard duties test or, instead, does it in effect eclipse the role of the duties test in determining exemption status? At what salary level does the duties test no longer fulfill its historical role in determining exempt status?

6. To what extent did employers, in anticipation of the 2016 Final Rule’s effective date on December 1, 2016, increase salaries of exempt employees in order retain their exempt status, decrease newly non-exempt employees’ hours or change their implicit hourly rates so that the total amount paid would remain the same, convert worker pay from salaries to hourly wages, or make changes to workplace policies either to limit employee flexibility to work after normal work hours or to track work performed during those times? Where these or other changes occurred, what has been the impact (both economic and non-economic) on the workplace for employers and employees? Did small businesses or other small entities encounter any unique challenges in preparing for the 2016 Final Rule’s effective date? Did employers make any additional changes, such as reverting salaries of exempt employees to their prior (pre-rule) levels, after the preliminary injunction was issued?

7. Would a test for exemption that relies solely on the duties performed by the employee without regard to the amount of salary paid by the employer be preferable to the current standard test? If so, what elements would be necessary in a duties-only test and would examination of the amount of non-exempt work performed be required?

8. Does the salary level set in the 2016 Final Rule exclude from exemption particular occupations that have traditionally been covered by the exemption and, if so, what are those occupations? Do employees in those occupations perform more than 20 percent or 40 percent non-exempt work per week?

9. The 2016 Final Rule for the first time permitted non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary level. Is this an appropriate limit or should the regulations feature a different percentage cap? Is the amount of the standard salary level relevant in determining whether and to what extent such bonus payments should be credited?

10. Should there be multiple total annual compensation levels for the highly compensated employee exemption? If so, how should they be set: by size of employer, census region, census division, state, metropolitan statistical area, or some other method? For example, should the regulations set multiple total annual compensation levels using a percentage based adjustment like that used by the federal government in the General Schedule Locality Areas to adjust for the varying cost-of-living across different parts of the United States? What would the impact of multiple total annual compensation levels be on particular regions or industries?

11. Should the standard salary level and the highly compensated employee total annual compensation level be automatically updated on a periodic basis to ensure that they remain effective, in combination with their respective duties tests, at identifying exempt employees? If so, what mechanism should be used for the automatic update, should automatic updates be delayed during periods of negative economic growth, and what should the time period be between updates to reflect long term economic conditions?