Legal Watch - November 16, 2016
November 16, 2016
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
From 2012 to 2015, Family and Medical Leave Act (FMLA) private lawsuits filed in federal court tripled, according to statistics published by the Administrative Office of the United States Courts. During the same time period, the number of complaints filed with the Labor Department (DOL)’s Wage and Hour Division, the federal agency charged with jurisdiction to investigate such complaints, fell by 20 percent. During those three years, DOL filed suit to enforce the complaints it received only eight times.
Commentators conclude that both employees and plaintiff-side employment counsel have become more sophisticated, understanding that they do not have to deal with the Labor Department to protect their rights under the FMLA like they do in a Title VII discrimination case (where they have to file a charge before proceeding to litigation). This could explain the meteoric rise in FMLA litigation.
Striking food workers at Harvard University ended a 22-day walkout (which disrupted food service on campus) when they ratified a new labor contract on October 26. The parties had been in negotiations, which erupted into a strike, since May. The employees, represented by UNITE HERE Local 26, voted almost unanimously (583 to 1) to approve the five-year deal.
The negotiated settlement included wage increases, and the university issued a statement saying that the new contract is “a reasonable solution to negotiations.” The agreement set an annual wage of $35,000 for food workers, according to Bloomberg BNA. The contract contains a $3,000 stipend if a worker is laid off during the slow summer months.
The Equal Employment Opportunity Commission (EEOC) recently filed suit against an automotive parts manufacturer who refused to hire a Pentecostal applicant because her faith required her to wear skirts rather than pants (the employer had a pants-only rule). The EEOC alleged in its complaint filed in federal court that the rule constituted religious discrimination (EEOC v. Akebono Brake Co., (D. SC. No. 3:16-cv-03545, complaint, 11/2/16)).
The applicant, a practicing member of the Pentecostal Church who had never worn pants, sought an accommodation to wear an ankle-high skirt. The employer refused to grant her request. The EEOC alleged that the employer had an obligation to discuss an accommodation that would have led to her employment.
Recently released results from Bloomberg BNA’s HR Department Benchmarks and Analysis 2016-17 study found that of the organizations surveyed, half had HR officials (either vice president of HR or director of HR) who report directly to the organization’s chief executive. Another 20 percent of the organizations surveyed reported that the HR head reports to the organization’s chief operating officer or senior vice president. Seventy percent of respondents characterized their HR department as fully or substantially involved in the key business decisions of their organization.
The study also found that the median ratio of HR staff to total employee headcount climbed to an all-time high of 1.4 FTE HR employees per 100 workers. Sixty percent of those surveyed had HR departments with at least one specialist in their HR group. Common specialties included benefits, employment and recruiting, training and development and compensation.
The survey included more than 550 organizations covering a broad cross-section of U.S. industries.
Another federal district court judge has ruled, this time in Pittsburgh, Pennsylvania, that the EEOC’s position that Title VII of the Civil Rights Act of 1964 protects employees and applicants from workplace discrimination on the basis of sexual orientation (EEOC v. Scott Medical Health Center (W. Pa. No. 16-225, 11/4/16)).
Although a number of federal trial courts have agreed with the EEOC’s position that Title VII covers sexual orientation discrimination under its sex discrimination provisions, no federal appeals court has so ruled; in fact, a number of federal appeals courts have ruled that Title VII does not cover sexual orientation. A number of states have amended their workplace discrimination statutes to include sexual orientation as a protected class, so it is important to check your state law even in the absence of clear coverage under the federal statute.
Three federal appeals courts will look at this issue in the coming months — oral arguments are scheduled before the Seventh Circuit on November 30, before the Eleventh Circuit on December 15, and before the Second Circuit on January 5. Ultimately, the question will be decided by the Supreme Court.