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Hendrick partners with North Texas LGBT Chamber of Commerce

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

Director Janet A. Hendrick joins the North Texas LGBT Chamber of Commerce, supporting the organization for 2019-2020 as a Bronze Partner and taking on a hands-on role.

“I met the President of the Chamber, Tony Vedda, at the Dallas Business Equality Conference a few years ago, where I was asked to speak about evolving rights for LGBT employees in the U.S.,” she said. “We stayed in touch and he later asked me to be a member of the Chamber’s Governance Committee, the role of which is to assist in selection of the Chamber’s Board of Directors.

“I spoke again this year at the Business Equality Conference, which is sponsored by progressive Dallas-based companies like Toyota, Southwest Airlines and American Airlines.”

Janet is an experienced employment litigator who regularly appears in state and federal court to defend employers of all sizes against discrimination, harassment, retaliation, and related claims. She is a frequent speaker and author on topics including gender diversity in the legal profession, workplace accommodations and leave management, evolving workplace protections of LGBT employees, and the rapidly expanding gig economy.

The North Texas Lesbian Gay Bisexual Transgender Chamber of Commerce has been the premier business organization for the LGBT community in north Texas since 2005, working to improve the region’s economic vitality and support the positive attributes of a diverse workplace, supply chain and community.

To learn more about the North Texas LGBT Chamber of Commerce and its mission, click here.

Attorney Lauren Voth leads SmartTalks presentation on medical marijuana in the workplace

SmartTalks Virtual User Group Meeting:
Medical Marijuana in the Workplace

Thursday, Aug. 15
12 PM to 1 PM (CST)

Free to participate with registration

 

Employers can still enforce drug-free workplace policies and implement drug-testing policies even after their state legalizes Medical Marijuana.  However, you must ensure your policies comply with state law.

Phillips Murrah Attorney Lauren Symcox Voth will review what your company can do to ensure the safety and security of your workforce and organization even after the legalization of medical marijuana.

To register, click here.

Presenter:

Lauren Voth

Lauren Symcox Voth

Lauren Symcox Voth is a member of Phillip’s Murrah P.C. Labor and Employment Practice Group. She represents individuals and both privately-held and public companies in litigation, administrative matters, mediations and negotiations. Specifically, Lauren has experience representing large and small corporations in employment-related matters.

Possible Relief for FMLA Administration Pain Points

It’s no secret that employers have found administration of leave under the Family and Medical Leave Act (FMLA) to be a significant pain point. Relief, however, may be on the way.

In a spring regulatory agenda notice, the U.S. Department of Labor announced that it is considering making some changes to the FMLA. The Department has asked the public for feedback on how to:

“(a) better protect and suit the needs of workers; and (b) reduce the administrative and compliance burdens on employers.”

Although DOL has released no specifics, many believe that the White House’s labor policy adviser, James Sherk, will be the driving force behind any upcoming changes.  Sherk’s earlier outspokenness about the shortcomings of the FMLA leave provides good insight into his thoughts about what needs to change.

In his 2007 Heritage Foundation report, Sherk outlined his views on employee FMLA abuse. His report portends changes could be on the horizon that will:

  • narrow the definition of what constitutes “a serious health condition;”
  • provide more power to employers to investigate an employee’s condition;
  • allow employers to require workers to take leave in half-day, rather than smaller, increments; and
  • allow employers to count FMLA leave against attendance bonus policies.

What changes could mean for employers

If Sherk really is the man behind the plan, employers may get the relief they seek.

First, limiting the definition of “a serious health condition” should make it more difficult for employees to abuse the FMLA. In his report, Sherk highlighted several instances where “irresponsible” employees were taking advantage of the current vague definition by calling routine colds, stress, or even an injured toe a “serious health condition”—even when the condition has no impact on the employee’s ability to perform job duties. This would also help to lessen the burden on other employees who are required to pick up the slack when co-workers abuse FMLA leave.

Second, providing employers with more power to investigate employees’ conditions would resolve the communication barrier between employers, employees, and health care providers when issues surrounding the complex and lengthy paperwork arise—satisfying the goal of reducing administrative burdens.

Third, allowing employers to require workers to take leave in half-day increments would decrease the heavy administrative burden of tracking an employee’s leave in minute increments. Rather than tracking the 12-weeks of allowed FMLA leave a minute at a time, a more manageable tracking unit of half-day increments would make what once was a monumental task for employers more manageable.

Finally, allowing employers to count FMLA leave against attendance bonus policies would both help employees with favorable attendance not feel cheated when those with spotty attendance are nonetheless rewarded and incentivize employees not to abuse FMLA. The DOL has found that because an employer may not punish an employee for using FMLA, even workers who miss 50 days a year due to FMLA leave can still be eligible for a perfect attendance bonus, diluting the incentive these bonuses are intended to provide. Correcting this would allow employees with excellent attendance to reap due awards and hit FMLA abusers where it hurts—their bank account.

Conclusion

While employers will have to wait for definite answers as to what changes, if any, we will see, the good news is that it appears that employer concerns about FMLA abuse are not falling on deaf ears. In the meantime, employers should continue to monitor the situation and hope that relief is on the way.


Janet Hendrick Profile portrait

Janet A. Hendrick

By Janet A. Hendrick and Matt Andrus

If you have questions about this decision, contact Janet Hendrick, who represents and counsels employers on issues including proper classification, in the Dallas office of Phillips Murrah at (214) 615-6391 or at jahendrick@phillipsmurrah.com.

Matt Andrus is a second-year law student at Oklahoma City University and works as a law clerk for Phillips Murrah during Summer 2019.

Hendrick to give keynote presentation at Texas Business Equality Conference

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

Janet A. Hendrick, Director and member in the Firm’s Labor and Employment Practice Group, will provide an update on legal developments in LGBTQ workplace protections on June 11 at the 4th Annual Texas Business Equality Conference hosted by the North Texas GLBT Chamber of Commerce.

Her presentation will highlight current state and federal legislation, upcoming Supreme Court cases, and best practices for maintaining compliance and educating employers on navigating areas where potential workplace could arise.

Attendees will network with other business professionals from around the state, hear remarks from national speakers about the importance of diversity in the workplace, and attend breakout sessions designed to help businesses to grow and thrive.

Janet is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach. Whether training managers on employment law compliance to minimize an employer’s legal risk or representing the employer in court or arbitration, she brings years of experience and in-depth legal knowledge to deliver results.

For more information about the conference, visit the North Texas GLBT Chamber’s website here.

Maule to present at nonprofit business seminar

Byrona Maule

Byrona J. Maule is a Director and litigation attorney as well as a member of the Firm’s Labor & Employment and Healthcare practice groups.

Byrona J. Maule, Director and member in the Firm’s Labor and Employment Practice Group, will give a presentation on the current state of human resources on June 4 at a Nonprofit Accounting and Finance Seminar hosted by Arledge & Associates, P.C.

Accounting and finance professionals are invited to attend the seminar which is tailored to address tax and accounting issues specific to the nonprofit sector.

The seminar will cover a wide range of topics including audits, tax law changes and Financial Accounting Standards Board updates. Sessions will also cover employment law issues for nonprofits, donor relations matters and online marketing.

Byrona represents executives and companies in a wide range of business and litigation matters with a strong emphasis on employment matters, ensuring their compliance before various state and federal regulatory boards.

For more information about the seminar, click here.

Director to present employment law lecture for SMU School of Law

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

Janet A. Hendrick, an employment attorney and Director in Phillips Murrah’s Dallas office, will share her insight and expertise with students of Southern Methodist University’s Dedman School of Law later this month.

Hendrick will present on key labor and employment matters for businesses as part of the law school’s Business Law Boot Camp on May 30, 2019.

“I will be teaching the Boot Camp students, who have finished their first or second year at SMU Law School, about labor and employment laws from a business perspective, with the goal of teaching them the different sources and implications of our country’s workplace laws,” she said. “As a SMU Dedman School of Law alum, I am delighted to have this opportunity to share my experience and insight from my years of practicing in this area.”

The Boot Camp is intended to introduce vocabulary, concepts and skills needed to effectively understand how business works so students are able to communicate with and advise business clients, including as regulatory and litigation counsel, according to the law school’s website.

Supreme Court Holds Employees May Not Arbitrate Class Claims Unless Arbitration Agreement Unambiguously Provides for Class Arbitration

It’s been a big week in employment law at the Supreme Court.  Earlier this week, the Court agreed to hear three cases, Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC, to decide whether Title VII’s prohibition against discrimination “because of sex” protects LGBTQ employees.  Today, in Lamps Plus, Inc. v. Varela, the Court held that a party to an arbitration agreement may arbitrate only individual claims, rather than class claims, unless the arbitration agreement explicitly and unambiguously provides for class arbitration.

Janet Hendrick Profile portrait

Janet A. Hendrick represents and counsels employers on issues including proper classification

In a 5-4 vote, the Court overturned the Ninth Circuit Court of Appeals’ decision that the arbitration agreement between Lamps Plus and employee Frank Varela allowed him to bring class claims in arbitration even though the arbitration agreement was ambiguous on this point. Varela filed suit in a California federal court on behalf of a putative class of employees after approximately 1,300 employees’ tax information was disclosed as part of a phishing scam.  Because Varela had signed an arbitration agreement at the time of hire, Lamps Plus moved to compel arbitration.  The arbitration agreement was ambiguous on the issue of whether a party may pursue class claims in arbitration. The district court granted Lamps Plus’ motion and sent the case to arbitration, but allowed Varela to pursue his claims on a classwide basis in arbitration.  Lamps Plus appealed to the Ninth Circuit, which acknowledged the arbitration agreement was ambiguous, construed the ambiguity against Lamps Plus as the drafter of the agreement, and affirmed the district court’s decision.  Lamps Plus appealed to the Supreme Court.

Chief Justice Roberts wrote the opinion, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.  The primary question before the Court was “whether, consistent with the [Federal Arbitration Act, which governed the arbitration agreement], an ambiguous agreement can provide the necessary ‘contractual basis’ for compelling class arbitration.”  The majority answered this question in the negative, pointing out that arbitration on a classwide basis “undermines the most important benefits of” traditional individualized arbitration.  In its 2010 decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., the Court held that a court may not compel arbitration on a classwide basis when the arbitration agreement is silent on the availability of class arbitration.  In Lamps Plus, the majority held that “[l]ike silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to ‘sacrifice[] the principal advantage of arbitration,” which is the individualized form of arbitration envisioned by the Federal Arbitration Act.  After all, ultimately, “[a]rbitration is strictly a matter of consent” between the parties.

Today’s decision continues the pro-arbitration trend from the Supreme Court over the past few years and comes nearly a year after Epic Systems Corp. v. Lewis, in which the Court upheld the use of class action waivers in arbitration agreements between employers and employees.


By Janet A. Hendrick
April 24, 2019

If you have questions about this decision, contact Janet Hendrick, who represents and counsels employers on issues including proper classification, in the Dallas office of Phillips Murrah at (214) 615-6391 or at jahendrick@phillipsmurrah.com.

Supreme Court Holds Independent Contractor Drivers Subject to Exemption from Arbitration

In a unanimous opinion (except for Justice Kavanaugh, who was recused from the case) expected to have broad implications for the transportation industry, the Supreme Court delivered a blow to employers that seek to enforce mandatory arbitration agreements for claims filed by drivers and other transportation workers classified as independent contractors.

SCOTUS opinion link

CLICK IMAGE TO VIEW OPINION.

The high court affirmed a decision from the First Circuit Court of Appeals that an exemption in the Federal Arbitration Act for interstate transportation workers applies to all workers, whether classified as employees or independent contractors.  The employer, New Prime Inc., an interstate trucking company, sought to compel mandatory arbitration of claims by one of its drivers, Dominic Oliveira, who filed a class action in federal court alleging New Prime violated the Fair Labor Standards Act by denying its drivers lawful wages.

After the district court and the First Circuit sided with the driver, New Prime petitioned the Supreme Court to overturn the First Circuit’s May 2017 ruling that the term “contracts of employment” in the Section 1 exemption of the FAA includes not only employees, but also independent contractors.  New Prime’s broad mandatory arbitration agreement included a “delegation clause” that gave an arbitrator authority to decide whether the parties’ dispute is subject to arbitration.

The Supreme Court nonetheless agreed with the First Circuit that a court, rather than an arbitrator, should determine whether the contract in question is within the coverage of the FAA, citing the Court’s 1967 Prima Paint decision. Turning to the interpretation of “contracts of employment” in the FAA exemption, the Court employed the “ordinary meaning” analysis of the statute’s language to conclude the term is not limited to employees because at the time Congress enacted the FAA in 1925, “contract of employment” described “any contract for the performance of work by workers.”  Justice Ginsburg filed a short concurring opinion.


Janet Hendrick Profile portrait

Janet A. Hendrick

If you have questions about this decision, contact Janet Hendrick, who regularly represents employers in court and arbitration, in the Dallas office of Phillips Murrah at (214) 615-6391 or at jahendrick@phillipsmurrah.com.

Religious accommodations at work

Disability is the most common and well-known basis for workplace accommodation. Although less common, requests for religious accommodations for an employee’s sincerely held religious beliefs or practices, required by Title VII of the Civil Rights Act of 1964, are on the rise. Here is an overview of what employers should know about religious accommodations in the workplace.

Janet Hendrick Profile portrait
Janet A. Hendrick

Under Title VII, “religion” is not limited to traditional, organized religions. Sincerely held religious beliefs are also included, even if not part of a formal church or sect, and even if held by a small number of people. One court found that a belief system known as Onionhead, the motto of which is “peel it-feel it-heal it,” is a religion, looking to the Equal Employment Opportunity Commission’s definition, which includes “moral or ethical beliefs as to what is right and wrong.” In contrast, another court ruled that the Church of the Flying Spaghetti Monster, members of which are known as Pastafarians, is not.

Upon request or notice, an employer must engage in an interactive process with the employee and accommodate the employee’s religious beliefs or practices unless it would pose an undue hardship on the employer. The burden is on the employee to prove notice was provided to the employer. Mere knowledge by the employer does not generally trigger a religious accommodation obligation.

To establish an undue hardship, an employer must provide specific and credible evidence of the expense or hardship the exception would cause. Hypothetical hardships without support will not suffice. A “slippery slope” argument – that accommodating one employee will encourage others to request a policy exception – rarely succeeds.

Although it is an easier standard to meet than the undue hardship exception to a disability accommodation under the Americans with Disabilities Act, there is no bright-line rule and each case will be different. Examples of burdens that are more than minimal are jeopardizing safety or health, more than a minimal cost, and violating a seniority system.

The two most common religious accommodations in the workplace are schedule changes and exceptions to dress and grooming codes. Examples are an employee who is unable to work Saturdays because his religion prohibits working on his Sabbath, a female Muslim employee whose religion requires her to wear a hijab, or a male employee who is prohibited by his religion from shaving his beard.

Janet A. Hendrick is an employment attorney who works in Phillips Murrah’s Dallas office.


By Phillips Murrah Director Janet A. Hendrick

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on December 13, 2018.

Phillips Murrah’s legal team welcomes labor and employment attorney

Lauren Barghols Hanna

Lauren Barghols Hanna

Phillips Murrah law firm is proud to welcome Lauren Barghols Hanna to our downtown Oklahoma City office.

The Firm welcomed Lauren to the Firm’s Labor and Employment Practice Group as an Of Counsel attorney.

As a part of her employment practice, Lauren counsels and represents management in all phases of the employment relationship, including litigation matters involving discrimination, retaliation, harassment and wrongful discharge claims, whistleblower claims, claims related to employment agreements and theft of trade secrets, and other disputes arising from the workplace.

She also works with employers in crafting appropriate employment policies and procedures, employee handbooks, non-disclosure/non-solicitation agreements, and employee severance agreements and releases.

Lauren’s practice in the area of water rights frequently involves the representation of landowners in obtaining groundwater and streamwater permits for irrigation, oil and gas industry production, and other beneficial uses.

Lauren is a contributing author to the Oklahoma Employment Law Letter and has been interviewed by The Oklahoman, served as a guest legal columnist for The Journal Record business newspaper, and spoken at seminars on a variety of employment-related topics. She also authored the Oklahoma chapter of the LexisNexis Waters and Water Rights treatise.

Lauren’s achievements have earned her inclusion in The Best Lawyers in America (employment law—management; labor and employment litigation) and Oklahoma Super Lawyers.

In addition to her legal practice at the firm, she serves as a volunteer attorney for Oklahoma Lawyers for Children, a nonprofit organization that uses the time, talent, and resources of pro bono lawyers to represent and assist children in various matters, including parental termination jury trials before the Oklahoma County District Court (Juvenile Division).

In 2014, the Oklahoma CASA Association honored Lauren with its “Attorney of the Year” award for her work with OLFC. Lauren and her family also work with the Tinker Air Force Base Home Away From Home Program, welcoming Airmen serving their first tour into their family for holiday meals, birthday celebrations, summer cookouts, and other activities to create community and mentorship for young enlisted airmen.

Born and raised in Oklahoma, Lauren lives in Edmond with her husband Adam and her two children. Her hobbies include rowing, camping, and OU sports.

Phillips Murrah Director Janet Hendrick mentioned in Power Players: Women Leading in Law

Phillips Murrah Director and employment attorney Janet A. Hendrick was mentioned in the October edition of Power Players: Women Leading in Law newsletter, published by University of Texas at Austin School of Law‘s Center for Women in Law.

Phillips Murrah Women Empowered

Click to view at full size

The mention was regarding Janet’s move to Phillips Murrah’s Dallas office.

Janet is deeply committed to the advancement of women in the legal profession. She has been an active member of the National Association of Women Lawyers and the Dallas Women Lawyers Association, and is a thought leader and sought-after speaker on gender diversity in the legal profession.

With the addition of Janet, over 40 percent of Phillips Murrah’s Directors are women, more than twice the national average for large law firms. A significant number of women fill leadership roles at the Firm, including three of the four positions on the Executive Committee.

“I am impressed with the dynamic people at the Firm, especially the leadership,” Janet said of her motivation to join Phillips Murrah. “I’m also excited about the plans for the Dallas office and thrilled to be a part of building the future of the Firm.”

 

 

Phillips Murrah attorneys present for Construction Financial Management Association

Attorney David Walls addresses construction industry professionals at September's CFMA meeting.

Attorney David Walls addresses construction industry professionals at September’s CFMA meeting.

David A. Walls, Construction Law Attorney, and Byrona J. Maule, Phillips Murrah Director and Employment Law Attorney, addressed construction industry professionals at a September meeting for Construction Financial Management Association.

Walls presented an update regarding American Institute of Architect changes to standard form construction industry contracts. Maule followed, speaking on the impact of Oklahoma’s medical marijuana laws on employment law.

Maule’s presentation focused on drug and alcohol testing, policy impacts on drug and alcohol testing and anti-discrimination, and preemption issues under the Controlled Substance Act, the Drug Free Workplace Act and the Federal Motor Carrier Safety Act.

As a result, she said, testing procedures need to be updated or changes, policies will have to be updated, and training will be needed for managers.

For more information about the Oklahoma chapter of CFMA, please click here.

Phillips Murrah welcomes Janet A. Hendrick to Dallas office

Phillips Murrah welcomes Dallas employment attorney, Janet A. Hendrick, to our Dallas office.

Phillips Murrah welcomes Dallas employment attorney, Janet A. Hendrick, to our Dallas office.

Phillips Murrah P.C. is pleased to announce that Janet Hendrick has joined the Firm in its Dallas-based office. Janet is an employment attorney with nearly 20 years of experience. She brings the number of Phillips Murrah attorneys serving the Texas market to twelve.

“We are excited that Janet has joined Phillips Murrah as we continue to expand our Dallas office,” said President and Managing Partner, Thomas G. Wolfe. “She is a brilliant lawyer with a first-class resume.”

Janet represents employers in several capacities, including proactively counseling clients on best employment practices and compliance, advising on cutting-edge legal issues surrounding the rapidly expanding gig economy, handling audits and investigations, and conducting training. She aggressively defends clients in state and federal courts and in arbitration on a range of matters including employee defection, fair employment practices, and nonsubscriber employee injury defense.

“I like to understand a client’s objectives and what it considers to be a victory,” she said, adding that communicating initially and then often with clients to understand their business needs is fundamental to being a strategic partner.

Janet is deeply committed to the advancement of women in the legal profession. She has been an active member of the National Association of Women Lawyers and the Dallas Women Lawyers Association, and is a thought leader and sought-after speaker on gender diversity in the legal profession. With the addition of Janet, over 40 percent of Phillips Murrah’s directors are women, more than twice the national average for large law firms. A significant number of women fill leadership roles at the Firm, including three of the four positions on the Executive Committee.

“I am impressed with the dynamic people at the Firm, especially the leadership,” Janet said of her motivation to join Phillips Murrah. “I’m also excited about the plans for the Dallas office and thrilled to be a part of building the future of the Firm.”

Janet has been recognized as one of the Texas Diversity Council’s Dallas Top 50 Women in Law and the National Women’s Council’s Top 15 Business Women in Dallas. Additionally, she is a member of the North Texas GLBT Chamber of Commerce Governance Committee, the American Bar Association Labor and Employment Section, the Dallas Bar Association Labor and Employment Section, and the Collin County Bar Association.

Prior to joining Phillips Murrah, Janet practiced with Fisher Phillips, a national labor and employment firm, in Dallas. She also previously practiced with Jones Day in Dallas, New York, Washington DC and London.

See post about Law360 coverage here: Dallas employment attorney Janet A. Hendrick tells Law360 why she joined Phillips Murrah 

Phillips Murrah – Dallas Office:
3710 Rawlins Street, Suite 1420
Dallas, Texas 75219

Main: (214) 238-2525
Direct: (214) 615-6391
Fax: (214) 434-1370

NLRB Ditches Browning-Ferris Joint Employer Test

Published on December 14, 2017

NEW YORK — A divided National Labor Relations Board on Thursday erased the landmark expansion of its test for determining joint employment that it had issued in the 2015 Browning-Ferris Industries case, voting along party lines to revert back to its previous standard.

Thursday’s NLRB majority said that while the panel in Browning Ferris Industries was driven by a “well-intentioned” desire to protect employees’ collective bargaining rights with third parties, the standard it created has five “major” problems. (AP)

In the 3-2 vote, the board’s Republican members overturned the standard set in BFI that under the National Labor Relations Act, a company and its contractors or franchisees can be deemed a single joint employer even if the company hasn’t exerted overt control over workers’ terms and conditions.

The majority was composed of NLRB Chair Philip Miscimarra, who penned a dissent in BFI, and the board’s two newest members, Bill Emanuel and Marvin Kaplan. Democratic members Mark Gaston Pearce and Lauren McFerran, who were both in the majority in BFI, issued a joint dissent.

“We return today to a standard that has served labor law and collective bargaining well, a standard that is understandable and rooted in the real world,” the board majority said. “It recognizes joint employer status in circumstances that make sense and would foster stable bargaining relationships.”

In the BFI decision, the majority had determined that Browning Ferris was a joint employer of recycling workers provided by staffing agency Leadpoint Business Services Inc. at a BFI-owned recycling facility in Milpitas, California.

Before the BFI ruling, the NLRB’s test rested on a business having “direct and immediate” control over terms and conditions of employment. In Browning-Ferris, the board revised the standard to include “indirect control” or the ability to exert such control.

In Thursday’s ruling, the board returned to its “direct and immediate” control standard, saying the BFI test confused the definition of a joint employer and threatened to produce “wide-ranging instability” in bargaining relationships.

“A finding of joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine,’” the board majority said. “We think that the Browning-Ferris standard is a distortion of common law as interpreted by the board and the courts, it is contrary to the [National Labor Relations Act,] it is ill-advised as a matter of policy, and its application would prevent the board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations.”

The NLRB majority said that while the panel in BFI was driven by a “well-intentioned” desire to protect employees’ collective bargaining rights with third parties, the standard it created has five “major” problems. Among them are that the BFI test exceeds the board’s statutory authority and that the change the board wrought regarding the NLRA’s definition of “employer” “is solely within the province of Congress.”

The majority also said that to the extent the BFI decision sought to correct a perceived inequality in the amount of bargaining leverage workers had due to complex business relationships, that inequality “was the wrong target, and expanding collective bargaining to an employer’s business partners was the wrong remedy.”

“Business entities enter into a variety of relationships, and they have different interests and varying degrees of leverage in their dealings with one another,” the panel majority said Thursday. “There are contractually more powerful business entities and less powerful business entities, and all pursue their own interests. The board would need a clear congressional command — and none exists here — before undertaking an attempt to reshape this aspect of economic reality.”

Using the pre-BFI test, the board on Thursday upheld a ruling by Administrative Law Judge Robert Ringler that Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., which are construction companies owned by the same individuals, were joint employers and both liable for illegally firing seven employees who had gone on strike to protest their wages and working conditions.

In a joint dissent, Pearce and McFerran said the Hy-Brand ruling brought back a restrictive test, wasn’t the proper vehicle for revisiting the joint employer standard at all since it was really a single employer case and resulted from “a deeply flawed process” meant to achieve a desired result quickly.

The dissenters argued that the board majority failed to examine relevant data and articulate a satisfactory explanation for its action as required under the Administrative Procedure Act, saying the decision “bears little relationship to the facts, which, as explained, do not fairly present a genuine joint-employer issue.”

The board majority also failed to notify the public that a reversal of precedent was under consideration, and didn’t solicit briefs — a process followed before deciding the BFI case, according to the dissent.

“Even a cursory glance at today’s decision reveals that the majority’s policy basis for overruling BFI is entirely speculative: pages upon pages bemoaning the changes supposedly wrought by BFI and their potential catastrophic effects, but no real-world examples or even remotely plausible hypotheticals,” Pearce and McFerran said. “It is reasonable to infer that our colleagues do not want to engage the public for fear of what they might learn — namely, that none of the predicted effects of BFI have actually come to pass.”

The respondents were represented by Stanley Niew of the Law Offices of Stanley E. Niew PC.

The NLRB general counsel was represented by Patricia Hollis McGruder.

The case is Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., case numbers 25–CA–163189, 25–CA–163208, 25–CA–163297, 25–CA–163317, 25–CA–163373, 25–CA–163376, 25–CA–163398, 25–CA–163414, 25–CA–164941, and 25–CA–164945, all before the National Labor Relations Board.

EEOC seeks input on FY 2018-2022 strategic plan

Published on December 8, 2017

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) has released for public comment a draft of its Strategic Plan for Fiscal Years 2018-2022, the agency announced today. The draft plan can be found at Regulations.gov.  Comments must be submitted by 5:00 pm ET on Jan. 8, 2018. This draft plan has not been approved by the Commission and is still under review.

The Strategic Plan serves as a framework for the Commission in achieving its mission through the strategic application of the EEOC’s law enforcement authorities, preventing employment discrim­ination and promoting inclusive workplaces through education and outreach, and organizational excel­lence. The EEOC has been the leading federal law enforcement agency dedicated to preventing and remedying employment antidiscrimination laws and advancing equal opportunity for all in the work­place since 1965. Every four fiscal years, Congress requires executive departments, government corporations, and independent agencies to develop and post a strategic plan on their public website. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future. The EEOC is currently operating under the Strategic Plan for Fiscal Years 2012 – 2016, as amended through 2018.

The process for developing this plan has been highly inclusive and collaborative. The plan was created by working groups comprised of staff from the EEOC’s headquarters and field offices, with a broad range of internal and external expertise and understanding of the programs and activities con­ducted within the agency. We are now continuing this inclusive effort by soliciting comments from our public partners, including advocacy groups and individuals. Public input is vital to our efforts to ensure accountability to our nation’s workers, employers, and taxpayers in general.

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.

Sharp spike in EEOC lawsuits

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on October 5, 2017.


Byrona J. Maule is a Director and litigation attorney as well as Co-Chair of the Firm’s Labor & Employment practice group. She represents executives and companies in a wide range of business and litigation matters with a strong emphasis on employment matters.

By Phillips Murrah Director Byrona J. Maule

Fall is a time of change. But this fall, the transition from summer isn’t the only change we’re experiencing. This fall has also brought extraordinary action from the Equal Employment Opportunity Commission. Starting in July, the EEOC has filed a flurry of federal lawsuits against both private and public employers.

In July 2017, the EEOC filed 20 lawsuits, compared to eight in July 2016, according to EEOC.gov’s announcements. At first, I thought this was some type of anomaly, but it continued into August 2017 with another 20 lawsuits filed, compared to eight last August. In September, they filed a whopping 69 lawsuits, as opposed to 22 in September 2016. To date, the EEOC has filed 241 lawsuits in 2017, compared to 86 in all of 2016. With three months left in 2017, there is no reason to believe the rest of 2017 will trend any differently.

Other changes in the EEOC’s activity include an inclination to file suit against an employer in a single plaintiff case, as opposed to lawsuits in which the outcome would have a broad impact on society. The EEOC’s 2012-2016 Strategic Plan emphasized using litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination. This emphasis seems to have waned.

Considering the life cycle of an EEOC lawsuit from charge to the EEOC’s decision to file a lawsuit takes multiple years, this sharp spike in the number of merit lawsuits being filed does not indicate that workplace behavior has drastically changed in recent months. Rather, the change appears to be in the decision-making process of the EEOC when deciding if it is going to file a lawsuit and what types of lawsuits the EEOC pursues. In one recent case involving Home Depot, the EEOC filed charges despite the company’s position it had reached agreement with the EEOC on the major terms of a settlement.

What does it all mean? It is difficult to know at this point. The real significance for employers is there are significantly more lawsuits being brought by the EEOC in 2017 than at any time between 2012 and 2016. Employers need to be very aware of this, and approach EEOC charges with increased attention.

Byrona J. Maule is a partner and co-chair of the labor and employment practice group at Oklahoma City-based law firm Phillips Murrah.