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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“Hiring Hazard” – NY City Employers May Soon Be Prohibited From Asking Applicants About Salary Histories

This post was written by Barbara E. Hoey and Allison Gottlieb and originally posted on Kelley Drye’s Labor Days blog.

On April 5, 2017, the New York City Council approved a bill which – once signed by the Mayor (a virtual certainty) – will prohibit private employers in the City from asking about, relying on, or verifying a job applicant’s salary history. Proponents of the bill argue that this will help to close the wage gap for women.

This bill follows an executive order signed by Mayor DeBlasio in November 2016, which prohibits New York City agencies from inquiring about the pay histories of job applicants for city positions.

Closing the wage gap is a laudable goal, but this bill will clearly make hiring more difficult.  Indeed, when combined with other City laws that prohibit background checks (the Fair Chance Act) and asking about “employment status” – one begins to wonder – what can a prospective employer ask a job applicant?

It is also notable that this bill amends the New York City Human Rights Law, and thus creates a new claim for any disgruntled applicant to now file, which can be pursued at the City Commission on Human Rights, or directly in court. As with other New York City Human Rights Law violations, an employer found to have violated this law could be liable for compensatory damages, punitive damages, and attorneys’ fees and costs. Additionally, if an employer is found to be acting “willfully” or “maliciously,” it may be slapped with a civil penalty of up to $250,000.

Thus, this is an area where employers will need to tread very carefully.

The Bill

The bill prohibits employers from “inquiring about” an applicant’s salary throughout the entire employment process, including when making an offer of employment or during contract negotiations.

The bill even prohibits employers from searching publicly available records to obtain an applicant’s salary history.

So, how do you legally hire and how do you understand an applicant’s salary expectations?  You need to look carefully at the exceptions which the law creates:

(1) An employer may consider an employee’s salary history if the applicant makes a voluntary and willing disclosure.

(2) An employer may discuss salary, benefits and other compensation expectations with the employee as long as the employer does not inquire about salary history.

(3) Further, the definition of “salary history” does not include any “objective measure” of the applicant’s productivity, such as revenue, sales, or other production reports.

The bill also excludes: (1) employers acting pursuant to a law authorizing the disclosure or verification of salary history for employment purposes, (2) current employees applying for internal promotions or transfers, or (3) public employee positions for which compensation is determined pursuant to procedures established by collective bargaining.

So, what do you do?

This is not a law – yet – and will not be a law until 6 months after it is signed by the mayor.  So, you have some time to get ready for it.

Here are some ideas:

  • Review – Start by reviewing your applications, background check documents, and hiring procedures to remove any questions explicitly seeking information about an applicant’s salary history.  This includes a review of any information you may request via online portals.
  • Train – It is essential to inform not just Recruiting and those in HR, but everyone who gets involved in the interview process, to refrain from directly questioning applicants about their salary histories.
  • Inform contractors and vendors – You need to communicate this information to third parties or outside vendors who participate in the hiring process, such as placement firms, temp agencies and recruiters.
  • Look at your online presence – if you are posting on job sites like Monster, etc, make sure there are no requests for salary information on those sites.

The overall takeaway is that while the new law does make it unlawful to request salary information, there are lawful ways that you can talk about salaries during the interview process, just as long as you do not demand or “prompt” the disclosure of the applicant’s salary.  You can explain the salary you are offering and ask if that is acceptable.  If an applicant discloses that it is lower than a current salary that is a voluntary disclosure.

The trick will, of course, be “proving” that disclosure was “voluntary,” especially if you decide not to hire that applicant.  It may be a good idea to ask any applicant who does volunteer salary information to sign a form acknowledging the disclosure was voluntary.  There is nothing in the bill that precludes such a ‘waiver’ form, and it would protect the company from claims or provide a clear defense to a claim.  This would have to be handled carefully to make sure that an applicant does not feel they are under duress.

The Mayor is expected to sign the bill soon. Once signed, the bill will become effective 180 days later.

The Incipient Storm of Stymied Standard Shortcuts for OSHA?

In September 2016, the U.S. Circuit Court of Appeals for the District of Columbia decided that a 2015 OSHA interpretation letter regarding the scope of the Process Safety Management (“PSM”) exemption for the agricultural retailers, was a standard subject to “notice and comment” requirements. So, what does this mean for OSHA?

Well, this landmark decision will allow for some exploration into questions of agency interpretation regarding standards and employers can now challenge OSHA interpretations if they do not follow the traditional rulemaking steps. Historically, OSHA issued letters of interpretation in response to questions from employers or unions seeking clarification, but in recent years the agency has used these guidance and interpretation letters to side-step the Occupational Safety and Health Act (“OSH Act”) rulemaking processes that are costly and time consuming procedures and evidentiary requirements. Employers complained mightily about OSHA’s use of interpretations that looked and felt like new regulatory requirements and they didn’t like how these new requirement would suddenly appear on OSHA’s website with no notice or opportunity to comment. So, big win for OSHA-regulated employers. Although some employers probably will wish this handy regulatory shortcut remained available for President Trump and his deregulatory agenda.

Seventh Circuit Rules Title VII Bars Sexual Orientation

This post was written by Janine N. Fletcher and Matthew C. Luzadder and originally posted on Kelley Drye’s Labor Days blog.

On April 4, 2017, the Seventh Circuit became the first federal appellate court in the country to extend the protections afford by the Civil Rights Act of 1964 to discrimination on the basis of sexual orientation.  The 8-3 decision came after they held a rare en banc hearing on Kimberly Hively’s case (Hively v. Ivy Tech Community College).

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