Is Misogyny Protected Activity?

This post was written by Barbara E. Hoey and Steven R. Nevolis and originally posted on Kelley Drye’s Labor Days Blog.

The blogs and networks have been buzzing over the past few days with news that a senior software engineer at Google – James Damore – had taken it upon himself to write and post on an internal Google mailing list a ten page memo, explaining his theory on why Google’s efforts to diversify its workforce were not working. In his words, Google’s “politically correct mononculture” had reached the point where efforts to create diversity by hiring and promoting more women (and other under-represented groups) was actually hurting the company.  Implicit in his criticism was what seemed like an undercurrent that men were somehow better suited than women for many tech jobs, and that Google was hiring or promoting women over men, even when the woman might not be the best person for the role.

In the course of this memo, Damore made a number of openly sexist and stereotypical comments about women, which many employees of both sexes took great offense to.  Most disturbing was his core view, that the reason women did not succeed in tech jobs was “biological”.

For instance, he opined:

  • that women were more apt to have a stronger interest in “people rather than things” and that tech was an industry which focused on things
  • that women had a higher level of “agreeableness”, which is why they had a harder time negotiating salary
  • that women had “higher anxiety/lower stress tolerance”

Finally, he theorized that the reason there were not more women in leadership roles at tech companies was because they did not have the same “drive for status” or to succeed as men did.

Damore also was very critical and dismissive of Google’s diversity programs, training, and other company initiatives aimed at helping women and diverse employees advance.

The memo of course went viral, and was soon circulating outside of Google and all over the world.

Putting aside the fact that Damore’s views were perpetuating stereotypes and that any dialogue with a woman who has risen to a leadership role or managed large projects at work, while also managing a home and family will tell him – a woman’s ability to multi-task, handle stress, and desire for success knows no bounds. However, the immediate question that Google’s senior management had to confront was how to react to this memo. Many employees, male and female, were greatly offended by the memo and felt that it did not accurately reflect the opinions and culture of most people at the company. More fundamentally, many felt that this memo was openly hostile to, and advanced stereotypical views of, women at Google. It also perpetuated the myths and challenges that tech companies like Google face, as they work on bringing more women into senior positions. Moreover, as many who follow this area know, the Department of Labor is currently suing Google for salary discrimination, and there have been rumors of class actions looming against companies in this industry. See Anita Hill, Class Actions Could Fight Discrimination in Tech, THE NEW YORK TIMES (Aug. 8, 2017). Given this backdrop, the company needed a strong response.

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OSHA is Pushing Eight Months Without an Administrator: How Long Can You Survive Without Your Head?

The Occupational Safety and Health Administration (“OSHA”) remains Administrator-less seven months into President Trump’s administration with the recent retirement of the former acting assistant secretary, Dorothy Dougherty, and the absence of a nomination from the White House. Despite the power vacuum, OSHA has been forced to remain active on regulations and standards teed up by the outgoing administration and targeted for revision or rescission by opponents of the prior administration’s actions.  These actions include changing the scope of the beryllium standard, delaying the effective date of the injury and illness rule, and signing off on a Congressional vote overturning the Volks rule (which would have rendered meaningless the statute of limitations for recordkeeping violations).

While we are not surprised that even a rudderless OSHA is managing to tick off a few of the Trump Administration’s key agenda items, what about the rest of the stuff OSHA does?    What do the majority of the 2000+ OSHA employees do under a new President and after seven months without a boss?   According to Mark Konkel (our labor law expert in NY and all around good dude), most OSHA employees are probably still working on what they have always been working on.   “ . . .day to day, a giant administrative bureaucracy with thousands of employee is running—meaning that policy momentum will guide what they do in the absence of new top-down direction under the Trump administration.”  He also notes that “this may have the effect of extending Obama-era policy direction, because there’s nothing new to interrupt the old direction.”  Mark is as wise as he is handsome – and that’s why we hate him…

So what is with the delay in naming a new OSHA Administrator?   Maybe nothing.   President Barack Obama did not appoint an OSHA Administrator (Dr. David Michaels) until late July of his first term and President George W. Bush waited mid-September of his first term to appoint Edwin Foulke.  Given the general slow pace of nominations on other agencies and the fact that President Trump was compelled to “do over” his nomination for Secretary of Labor, we wouldn’t be too surprised to see this nomination delayed well into the fall.  

Guesses on who it will be?   Our NSFW rumor mills have heard mention of Tom Galassi (head of the agency’s enforcement directorate), Scott Mugno (vice president of safety, sustainability and vehicle maintenance at FedEx Ground), and James Thornton (safety director at shipbuilder Huntington Ingalls Industries in Norfolk, VA).  Any guesses from our tens of devoted NSFW readers?   (Hi Mom!)  

 

The ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ Exceptions Under The WARN Act

This post was written by David Van Pelt and originally posted on Kelley Drye’s Labor Day Blogs.

Under the federal WARN Act, companies that maintain a facility with 100 or more full-time employees are required to provide no less than 60 days’ written notice to employees affected by a mass layoff or facility closure. Many employers are faced with the difficult task of determining whether or when these notices should be distributed.

The WARN Act contains several affirmative defenses that are designed to address this conundrum, and provide employers with a complete defense to liability under the statute when a company’s exigent condition forces an immediate cessation of operations. These exceptions to the WARN notice obligations are identified as the ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ exceptions. Employers faced with possible pending layoffs or facility closures should consider both of them independently.

Read more in the Employment Law Strategist article, The ‘Faltering Company’ and ‘Unforeseen Business Circumstances’ Exceptions Under The WARN Act, written by David Van Pelt (access may require subscription).

Banning Visible Political, Philosophical or Religious Signs in the European Workplace – Does Your Policy Need Updating?

This post was written by Bert Theeuwes, Mark A. Konkel and Saskia Lemeire and originally posted on Kelley Drye’s Labor Day Blogs.

The highest court of the European Union recently issued two judgments allowing employers to ban the visible wearing of political, philosophical or religious signs at the workplace (Judgment of the Court of Justice of the European Union in case C-157/15 and in case C-188/15). If you have a policy in place for your EU-based employees that touches upon the wearing of political, philosophical or religious signs, you should verify whether that policy is in line with this latest interpretation of the principle of equal treatment.

On 14 March 2017, the European Court of Justice ruled that “an internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination”. The two cases concerned the dismissal of two women for wearing the Islamic headscarf, which was prohibited by the employer. The Court decided that wearing the Islamic headscarf could be banned without constituting discrimination, but only as part of a general policy barring all religious and political symbols. Furthermore, that policy must have a legitimate aim such as, for example, pursuing neutrality in the relation with customers. Lastly, such a policy must be achieved through appropriate and necessary means.

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Department of Labor Chooses Chief of Staff

Labor Secretary Acosta has dubbed Wayne Palmer his new Chief of Staff. Following Acosta, Palmer is the first major political hire at the Department of Labor (“DOL”). Palmer’s considerable experience in Washington includes holding a senior position at the Center for Presidential Transition and his tenure as Chief of Staff to former Senator Rick Santorum. More recently, Palmer served as a temporary political official in the Trump administration. As Chief of Staff, Palmer will have significant influence within the DOL. His ability to oversee managerial operations, and facilitate the Secretary’s stakeholder outreach will allow him the opportunity to push policy and enable the DOL agenda. 

 

Are We Being Taped? – The Second Circuit Weighs in on Workplace Taping

This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Day Blogs.

In the era of the ever-present cell phone, where many people seem to video and record (and then post to social media) virtually everything that goes on in their lives, employers have tried to limit such activity in the workplace with blanket “no recording” policies. These were just dealt a blow last week, when the Second Circuit affirmed a decision by the NLRB, which held that very broad  no-recording policies do violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). See Whole Foods Market Group Inc. v. NLRB, 16-0002 (2d Cir. June 1, 2017).

  • Are all such policies now unlawful?  NO.
  • What should employers do?  Read on. Employers now need to go back and review their policies and, if it can be justified, create a tailored policy designed to protect information that deserves protection, but is not so broad that it can be seen as curbing employee’s rights to organize and bargain collectively.

Background

The employer in the case, national retailer Whole Foods, had a policy that prohibited any sort of recordings of staff meetings or other workplace conversations, without prior supervisor approval or the consent of all involved. In its staff manual, Whole Foods stated that the purpose in having this prohibition is “to eliminate a chilling effect on the expression of views” when people fear that they may be secretly recorded. This rationale was rejected.

The NLRB had found that Whole Foods’ policy violated the National Labor Relations Act, because it could be “reasonably construed” to discourage employees from exercising their rights under the Act to engage in “concerted activities,” in order to further their interest in “mutual aid or protection,” known as the Lutheran Heritage test. Under this test, a policy is unlawful if employees can “reasonably construe” the policy as discouraging them from exercising the rights protected by the NLRA.  The Board has found in prior cases that policies prohibiting employee recording and photographing of picketing, unsafe working conditions, or other perceived unequal treatment were unlawful.

Notably, the Second Circuit observed in the decision that the defendant did not try to challenge the Lutheran test.

The Board and the Second Circuit held that the fatal flaw in Whole Foods’ policy was its breadth – that it banned ALL employee recordings, of any type, absent supervisor approval.

Neither the NLRB nor the Second Circuit was persuaded by Whole Foods’ argument that the policy helps to foster the open dialogue between staff members that it considers a cornerstone of its company culture. The Second Circuit found that, in the absence of any evidence of “weighty” countervailing interests in protecting the confidentiality of information, like protecting patients’ privacy rights. Whole Foods’ no-recording policy was overbroad and unlawful. Continue Reading

New York City Bans Employers From Making Inquiries Into Salary Histories

This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Day Blogs.

Private employers in New York City will soon be prohibited from asking about, relying on, or verifying a job applicant’s salary history. On May 4, Mayor Bill de Blasio signed the measure, which will go into effect on October 31, 2017.

Proponents of the legislation argue that this will help to close the wage gap for women. Read more in our prior post, “’Hiring Hazard’ – NY City Employers May Soon Be Prohibited From Asking Applicants About Salary Histories.”

Environmental Organization Challenges Constitutionality of the Congressional Review Act

As we previously reported on this blog, Congress and the Trump administration have revived the Congressional Review Act (CRA) and set about rescinding a series of regulations promulgated during the Obama presidency.  Congress’ authority to invalidate an executive agency rule is rooted in Article I of the Constitution, which vests “[a]ll legislative Powers [t]herein granted” in Congress.  While Congress has delegated rule-making or quasi-lawmaking authority to executive agencies, Congress ultimately retains all legislative power, and thus any power delegated to the executive by Congress can later be restricted or withdrawn.

But according to a new lawsuit filed by the Center for Biological Diversity, the CRA amounts to congressional invasion of executive branch authority.   At issue in Center for Biological Diversity v. Zinke, Case No. 3:17-cv-00091-JWS (D. Alaska Apr. 20, 2017), is Public Law No. 115-20, which invalidated a rule adopted by the Interior Department near the end of President Obama’s second term. See Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska,” 81 Fed. Reg. 52,248 (2016). The rule prohibited certain methods of predator control within Alaska’s national wildlife refuges.

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Acosta No Longer Awaits

Finally, on April 27th, after months of waiting, President Trump’s second nominee for the position of US Secretary of Labor and only Latino cabinet member, Alexander Acosta, was confirmed. Acosta, dean of Florida International University College of Law and former US attorney, received the nomination in mid-February after the first nominee, Andrew Puzder, withdrew his name due to a potential conflict of interest. Acosta has patiently waited over the last few months as other nominees including, Justice Neil Gorsuch and Secretary of Agriculture, Sonny Perdue, took priority. Acosta is no stranger to the confirmation process, as he was nominated and confirmed for three positions during the George W. Bush administration. The road to a successful confirmation can often be long and winding, however Acosta’s patience clearly paid off, and now he can get to work.

 

Now You, Too, Can Call Your Boss a Nasty Motherf****r

This post was written by Mark A. Konkel and originally posted on Kelley Drye’s Labor Days blog.

 

Maybe we’ve all thought it at some point in our careers. But according to the Second Circuit Court of Appeals, you might actually be able to get away with saying it—that is, calling your boss a nasty mother****r—if you’re saying it because you care about your coworkers, and if you all swear a lot at work anyway.

So has demonstrated Hernan Perez, a former server at New York catering company Pier Sixty, and now a foul-mouthed trailblazer for questionable employee rights.  His plight, and verbatim reprints of his lurid, social media-based profanities, can be found in a decision just published by the Second Circuit Court of Appeals in National Labor Relations Board v. Pier Sixty, LLC, Nos. 15‐1841‐ag (L), 15‐1962‐ag (XAP) (April 21, 2017).

[Warning: explicit vulgarities will appear below. Not that your kids read this blog, anyway.]

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