This article was originally written by John Mattiace, and posted to Kelley Drye’s Labor Days Blog.

The fact-pattern is familiar to employers who have been on the receiving end of attorney litigation threats. A plaintiff’s lawyer calls, or writes a letter, outlining a potential claim by a client, makes a demand for damages, then perhaps throws in mention of the harm the company will suffer if the allegations become “public.” Just another run-of-the-mill litigation threat from a plaintiff’s attorney. Nothing to make a “federal case” out of it, right? Nothing criminal, right?

Well, maybe it is criminal. The recent charges filed by the United States Attorneys’ Office in the Southern District of New York against celebrity attorney Michael Avenatti highlight the lines that both management and plaintiff’s attorneys need to be aware of during communications involving threats of litigation.

On March 25, 2019, Mr. Avenatti was charged with various counts of extortion and conspiracy to extort in connection with his communications to Nike attorneys about a claim that a client of his had relating to allegations of misconduct by Nike employees. Specifically, Mr. Avenatti threatened to hold a press conference announcing the claims unless Nike acceded to his exorbitant demands of payment to him and his client, and his insistence that he and another attorney be paid to conduct an “investigation” into the matter for Nike. The indictment described that Mr. Avenatti required payment of $1.5 million for his client and that he be retained to conduct an internal investigation for between $15 and $25 million, or, that Nike pay him a total of $22.5 million to resolve claims of client and buy Avenatti’s silence.

So, what makes this “extortion?” The general rule is that threats of litigation, even if the claims are meritless and/or economically harmful, are not extortion. GI Holdings, Inc. v. Baron & Budd, 179 F.Supp. 2d 233 (S.D.N.Y. 2001); Building Industry Fund v. Local Union No. 3, Intern. Broth. of Elec. Workers, AFL-CIO, 992 F. Supp. 162, 176 (E.D.N.Y. 1996). The extortion line is crossed, however, when one “magnifies the risks to its adversary by corrupting the litigation in order to ‘get the price up.’” Chevron Corp. v. Donziger, 974 F.Supp. 2d 362, 580 (S.D.N.Y. 2014). Essentially, lying about the risk makes the communications extortionate because it creates leverage that “bears no proper nexus to any plausible claims that may have been asserted in the first place, and from which the victim has a right to be free.” Id.

Here, Mr. Avenatti likely crossed the line when he made repeated reference to the harm that going public with his client’s claims was going to cause Nike. The indictment states that Mr. Avenatti told Nike that if his demands were not met that he would “go take ten billion dollars off [Nike’s] market cap.” This out-sized amount was clearly meant to gain the “leverage” that the courts hold has no nexus to any plausible claim.

The Avenatti indictment is likely to check the tactics of even the boldest plaintiff’s counsel. Nevertheless, the lesson for employers is clear: the next time your company is faced with an out-sized threat of harm by an ambitious plaintiff’s counsel ask yourself if the harm claimed is proportionate to the allegations, and consider asking for counsel’s basis for his claim. If there is none, or the basis given is suspect, consider the possibility that you could be the victim of criminal extortion necessitating the involvement of the prosecutor’s office.

This article was originally written by John Mattiace and posted to Kelley Drye’s Labor Days Blog.

The Equal Opportunity Employment Commission (“EEOC”) has always required employers with 50 or more employees to submit annual reports, known as “EEO-1” submissions, to the Commission. These report are required to include data concerning the number of employees the company employs based on gender, race, and ethnicity. At two pages long, they were relatively straightforward and the data fairly easy to submit. The requirement has yo-yoed back and forth from being much more onerous over the past several years, with recent developments casting a shadow of uncertainty over the current EEO-1 obligations.

Increased Reporting Requirements

In September 2016, the EEOC expanded the reporting obligation to include detailed wage and hour information broken down by gender, race, and ethnicity within 12 different pay bands for 10 different job classifications.  This drastically increased the amount of information that employers needed to collect and report. If it wasn’t already, the EEO-1 form became an unequivocal burden. The new requirements were submitted to the federal Office of Management and Budget (“OMB”) and approved for employers to begin complying with in 2017.

New Requirements Called Off and Then Reinstated

Things changed again when the Trump administration took over. In August 2017, the OMB issued a stay of the new wage and hour reporting requirements, citing, among other things, that it was overly burdensome and “[did] not adequately address privacy and confidentiality issues.”

In November 2017, several advocacy groups sued the administration and claimed that the OMB’s decision violated the federal Paperwork Reduction Act (“PRA”), and Administrative Procedures Act (“APA”), and asked that the OMB’s stay be lifted.

On March 4, 2019, the pendulum swung back when the U.S. District Court for the District of Columbia granted the plaintiffs summary judgment and held that the OMB’s stay was not reasonable. This means the requirements would need to be reinstated.

More Uncertainty

Although the deadline to comply with EEO-1 requirements has been extended (because of the recent government shutdown) from March 31, 2019 to May 31, 2019, the EEO-1 submission portal still needs to be updated to allow for the submission of the new reporting data and there is no indication when that will be done. Thus, we expect a further extension of the deadline at some point. It is also very likely that the Trump administration will appeal the District Court’s decision so there is the potential for a swing back to the days when the new data was not required.

We will continue to monitor the developments for any updates concerning employers’ responsibility to comply with these new changes to the EEO-1 reporting law.

  • 03/26/2019 – Region 5 OSHA News Release – U.S. Department of Labor Again Cites Wisconsin Pallet Manufacturer After Three Employees Exposed to Wood Dust
  • 03/25/2019 – Region 4 OSHA News Release – U.S. Department of Labor Fines Georgia Contractor For Trenching Violations; Proposes $106,078 in Penalties
  • 03/25/2019 – Region 4 OSHA News Release – U.S. Department of Labor Seeks to Prevent Georgia Roadway Worksite Injuries through Safety Stand-Down Events
  • 03/22/2019 – Region 5 OSHA News Release – U.S. Department of Labor, Industry Leaders and Safety Professionals Join for Kickoff of 2019 National Safety Stand-Up for Grain Safety Week on March 25
  • 03/21/2019 – Region 5 OSHA News Release – U.S. Department of Labor Proposes $1,326,367 Penalty after Ohio Company Willfully Exposes Employees to Dangerous Hazards
  • 03/19/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Ammunition Manufacturer After Explosion Kills Two Employees at North Florida Worksite
  • 03/15/2019 – Region 8 OSHA News Release – U.S. Department of Labor Signs Alliance with North Dakota Oil and Gas Industry Group to Promote Workplace Safety in Oil Fields


  • 03/13/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites South Florida Restaurant Operator For Safety Violations After Employee Suffers Burn Injuries
  • 03/11/2019 – Region 5 OSHA News Release – U.S. Department of Labor Cites Wisconsin Aluminum Castings Manufacturer After Three Employees Develop Occupational Lung Disease
  • 03/08/2019 – OSHA Trade Release – OSHA Requests Information on the Powered Industrial Trucks Standard
  • 03/06/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Georgia Battery Manufacturer For Lead and Other Safety Hazards; Proposes $115,594 in Penalties
  • 03/06/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Contractors for Safety Violations Following Two Fatalities at Florida Hotel Worksite
  • 03/05/2019 – Region 3 OSHA News Release – U.S. Department of Labor Fines Pennsylvania Construction Company $208,560 for Exposing Employees to Trenching Hazards
  • 03/05/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Roofing Contractor After Fatal Fall at South Florida Worksite
  • 03/01/2019 – Region 1 OSHA News Release – U.S. Department of Labor Sues Massachusetts Construction Company For Retaliation for Facilitating Arrest of Injured Employee
  • 03/01/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Pet Food Manufacturer For Amputation, Fall and Other Safety Hazards
  • 03/01/2019 – Region 5 OSHA News Release – U.S. Department of Labor Renews Alliance with Toledo Electrical Joint Apprenticeship Training Committee to Improve Workplace Safety


This article was written by Barbara E. Hoey and Diana R. Hamar, and originally posted to Kelley Drye’s Labor Days Blog.

In a decision that could have wide-ranging implications for all employers, the Fourth Circuit recently held that an employer’s failure to stop a false rumor that a female employee slept with her male boss to obtain a promotion, could give rise to employer liability under Title VII for gender discrimination. Parker v. Reema Consulting Services Inc., No. 18-1206 (4th Cir. Feb. 8, 2019).

So now employers must police the rumor mill? This decision is confusing to say the least, as employers now have dueling obligations—to quash rumors while not infringing upon an employee’s Section 7 rights to discuss the terms and conditions of employment.


According to the Complaint and reported decision¹, plaintiff Evangeline Parker worked for Reema Consulting Services, Inc. (“RCSI”) at its warehouse facility in Sterling, Virginia. Parker began as a low-level clerk and was promoted six times in approximately two years, ultimately holding the position of Assistant Operations Manager. Two weeks after her latest promotion, a male employee started a rumor that Parker received the promotion because she was having a sexual relationship with her boss. The male ‘rumor monger’ had started at RCSI at the same time as Parker, but had not been promoted and was now reporting to Parker.

Subsequently, a warehouse manager (male) began to spread the rumor and Parker’s direct reports and coworkers started treating her with hostility. After six weeks, the warehouse manager held a mandatory all-staff meeting, allegedly to discuss the rumor. Parker and her boss were late to the meeting, however, her boss was allowed into the meeting while the warehouse manager was claimed to have “slammed the door in Parker’s face.”

Parker scheduled a meeting with the warehouse manager to discuss the rumor where he blamed her for “bringing the situation in the workplace” and told her that she could no longer advance in the company because she complained about the rumor.

Parker filed a formal hostile work environment complaint with HR. She claimed that HR instructed her to avoid her boss, but placed no restrictions on him. Later that month, Parker was called to a meeting with HR and the warehouse manager; she was issued two written warnings (one for complaining about the harassment) and was terminated.


Parker filed suit alleging claims under Title VII, including: (1) hostile work environment on the basis of sex; (2) retaliatory termination;  and (3) discriminatory termination on the basis that RCSI terminated her employment contrary to its three warnings rule.

RCSI filed a motion to dismiss and the district court granted the motion, explaining that the rumor was not based upon Parker’s gender but instead her conduct. The district court further held that the alleged harassment was not severe and pervasive because the rumor lasted only a few weeks and involved only a “few slights.” As such, the court also dismissed Parker’s retaliatory termination claim because her belief that she was subjected to gender discrimination was not objectively reasonable since the rumors were not based upon her gender.


Surprisingly, the Fourth Circuit reversed the district court decision and held that RCSI may be liable for failing to quash this rumor on the theory that it perpetuated a ‘deeply rooted perception’ that women (not men) use sex to achieve success. The Court relied upon gender stereotyping cases, including the seminal Supreme Court case Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51, 258, 272–73 (1989). The Fourth Circuit emphasized that assuming all of Parker’s allegations to be true, the rumor clearly resulted in Parker being treated differently from male employees (i.e., male employees started the rumors, Parker was excluded from an all-staff meeting regarding the rumor while her male supervisor was not, and only Parker was sanctioned for complaining about the alleged harassment while her male supervisor was not).

The Fourth Circuit also rejected the district court’s conclusion that Parker failed to allege that the harassment was severe and pervasive. It reasoned that the alleged harassment did not last a mere two weeks, but rather, two months and found it to be more than a few “slights.” The Court found that the alleged harassment was continuous, consumed management and employees and was at times physically threatening (the warehouse manager slamming the door in Parker’s face). Thus, the Fourth Circuit concluded that Parker sufficiently alleged that the harassment was severe and pervasive and interfered with her work.


At first blush, it seems outrageous that an employer could be liable for failing to control rumors in the workplace.  In fact, how would an employer even do that? Even if an employer could, would an employer be infringing upon employees’ Section 7 rights by instructing employees not to speak about a workplace romance?

The answer: it depends on the rumor and how management reacts to the rumor. In that regard, this case may be a demonstration of the adage that – bad facts make bad law.

There were a number of bad facts here which led to this result, most notably the fact that the warehouse manager was alleged to have spread the rumor and then called a meeting to discuss the rumor with staff.  Assuming that were true – and we know there may be two sides to the story – that puts management right in the thick of the rumor spreading.

So, the lesson to be learned here includes:

  • A false rumor grounded in a harmful gender-based stereotype may result in employer liability for unlawful gender discrimination if management takes part in spreading it.
  • Managers that are aware of malicious rumors may need to take steps to quiet them and certainly should not spread them.
  • Managers should also know that if they are found to be spreading malicious gossip or rumors, they may be subject to discipline.
  • Finally, once the employee has made a complaint, it goes without saying that the company should not retaliate against the employee.

To further complicate matters, employers should remember that the NLRB has held that broad “no gossip” policies violate the National Labor Relations Act because they discourage employees from speaking to coworkers about the terms and conditions of employment.

The takeaway? Employers must pay attention to the content of the rumor and act accordingly.


¹ For purposes of summary judgment, allegations in a complaint must be assumed to be true. We take no position on whether the allegations were in fact accurate.

  • 02/27/2019 – Region 6 OSHA News Release – U.S. Department of Labor Cites Canned Food Company in Texas After Employee Suffers Amputation
  • 02/26/2019 – Region 6 OSHA News Release – U.S. Department of Labor and Lee Lewis Construction Partner to Enhance Workplace Safety and Health at Lubbock Construction Project
  • 02/25/2019 – Region 6 OSHA News Release – U.S. Department of Labor and West Texas Safety Training Center Renew Alliance to Prevent Injuries, Illnesses in Oil and Gas Industry
  • 02/25/2019 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Asphalt Company Following Investigation of Employee Fatality
  • 02/22/2019 – Region 8 OSHA News Release – U.S. Department of Labor and Montana Construction Contractor Sign Partnership to Enhance Employee Safety and Health
  • 02/21/2019 – Region 4 OSHA News Release – U.S. Department of Labor Issues $164,802 in Penalties to Wholesaler After Employee Injury at Georgia Distribution Center
  • 02/21/2019 – Region 5 OSHA News Release – U.S. Department of Labor Renews Alliance to Improve Workplace Safety For Southwest Illinois Industrial and Utility Employees
  • 02/20/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Mississippi Paper Manufacturer For Workplace Safety Violations, Proposes $303,657 in Penalties
  • 02/19/2019 – Region 3 OSHA News Release – U.S. Department of Labor Investigation Results in Court Ordering a Pennsylvania Hair Salon to Pay $40,000 to Stylist Fired after Report of Health and Safety Hazards
  • 02/19/2019 – Region 4 OSHA News Release – U.S. Department of Labor Imposes Fine on Motion Picture Company for Failing to Adequately Protect Stuntmen from On-Set Hazards
  • 02/15/2019 – OSHA Statement – Response from U.S. Department of Labor Regarding Fake OSHA Cards


This article was written by Mark A. Konkel and Jennifer Fischer, and originally posted to Kelley Drye’s Labor Days Blog.

The New York City Human Rights Law prohibits employers, housing providers, and providers of public accommodations from discriminating against an individual on the basis of race. The New York City Commission on Human Rights (the “Commission”) issued guidance banning discrimination based on an individual’s hair, specifically the hair and hairstyles traditionally worn by Black people.

Last year, the Supreme Court refused to hear a case filed by a Black woman whose job offer was rescinded when she refused to cut off her dreadlocks. The company had a hairstyle policy that banned dreadlocks and said that an employee’s “hairstyle should reflect a business/professional image” and that prohibited “excessive hairstyles.” New York City has now stepped up and taken a stand against these grooming policies.

The Commission has found that bans or restrictions on hair or hairstyles “are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.” Although grooming policies impact many communities, the Commission’s guidance focuses on hairstyles commonly associated with Black people and the race discrimination they suffer as a result of biased appearance policies.

“There is a widespread and fundamentally racist belief that Black hairstyles are not suited for formal settings, and may be unhygienic, messy, disruptive, or unkempt.”

The Commission has added Black hairstyles to the list of protected racial characteristics. Employers covered by the NYC Human Rights Law that “enact groom or appearance policies that ban or require the alternation of natural hair or hair styled into twists, braids, cornrows, Afros, Bantu knots, fads, and/or locs may face liability . . . because these policies subject Black employees to disparate treatment.” Grooming policies may not be implemented “to promote a certain corporate image, because of customer preference, or under the guise of speculative health or safety concerns.” Similarly, schools and other places of public accommodation in New York City may not treat Black people differently or harass them because of their hair or hairstyles.

The Commission’s guidelines are an attempt to lessen the physical and psychological harm to Black individuals who are forced to choose because their careers and their personal and cultural identity through their hairstyle.

Employers in New York City with grooming or appearance policies should consider alternative options to addressing any legitimate safety or health concerns besides a complete ban on certain hairstyles. Policies should be inclusive of all “racial, ethnic, and cultural identities and practices associated with Black and historically marginalized communities.” Grooming policies prohibiting hairstyles or requiring employees to alter their hair, requiring only Black employees to cut or alter their hair in order to keep their jobs, refusing to hire Black applicants with a hairstyle that “does not fit the ‘image’” of the employer, or requiring Black employees to hide their hairstyles would all be violations under the Commission’s new guidance.

Employers outside of New York City should also consider revising any grooming policies they may have should other cities and state follow the Commission’s lead. Hair discrimination may be the next area where state and local laws set stricter standards while federal guidance remains silent.

This article was written by Barbara E. Hoey and Diana R. Hamar, and originally posted to Kelley Drye’s Labor Days Blog.

As we enter the 3rd year of the #MeToo movement, all signs point towards another year of heightened legal activities in the area of gender discrimination and gender equality. Sexual harassment claims will continue to garner news headlines, but there are bigger threats for employers. For many employers, 2019 will be less about whether their female employees are being harassed, and more about whether they are being treated fairly and equally.

What’s the difference you ask? The answer is everything else outside of harassment, including pay equity, opportunity equality, and fair treatment for employees who are pregnant and new parents.

There is no greater indication of this heightened focus on equality than the 116th Congress, which has a record number of women serving. Naturally, legislation aimed to combat gender inequality will be at the forefront. In this post, we identify the legislative and legal trends employers should pay attention to in 2019 as we declare it “The Year of the Woman.” Continue Reading 2019 – “The Year Of the Woman” in Employment Law

  • 02/14/2019 – Region 1 OSHA News Release – U.S. Department of Labor and Dimeo Construction Partner to Promote Workplace Safety During North Kingstown Construction Project
  • 02/13/2019 – OSHA Trade Release – U.S. Department of Labor Provides Interim Compliance Guidance for Evaluation of Crane Operators
  • 02/13/2019 – Region 4 OSHA News Release – U.S. Department of Labor Issues $265,196 in Penalties to Florida Roofing Contractor for Repeatedly Exposing Employees to Fall Hazards
  • 02/13/2019 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Musical Instrument Manufacturer For Exposing Employees to Copper Dust and Machine Hazards
  • 02/13/2019 – Region 7 OSHA News Release – U.S. Department of Labor Seeks to Prevent Amputation Injuries to Nebraska Employees and Remind Employers of Reporting Requirement
  • 02/12/2019 – OSHA Trade Release – U.S. Department of Labor Urges Employers to Prevent Worker Exposure to Carbon Monoxide from Portable Generators and Other Equipment
  • 02/06/2019 – Region 1 OSHA News Release – U.S. Department of Labor Orders Vermont Company to Compensate Employee Fired for Reporting Finance Industry Violations
  • 02/06/2019 – Region 9 OSHA News Release – U.S. Department of Labor Cites Guam Building Materials Distributor For Struck-By Hazards
  • 02/04/2019 – OSHA Trade Release – U.S. Department of Labor Forms Alliance with Agribusiness Organizations to Protect Workers in Agricultural Industry
  • 02/04/2019 – Region 4 OSHA News Release – U.S. Department of Labor Partners with Contractor to Promote Workplace Safety during Construction of Tire Plant in Mississippi
  • 02/04/2019 – Region 6 OSHA News Release – U.S. Department of Labor Cites Texas Indoor Gun Range For Exposing Employees to Unsafe Lead Levels


Article written for Law360, published on February 6, 2019.

In the past few months, we have seen three different cases of religious accommodation claims, with three very different results.

  • In case one, the U.S. Court of Appeals for the Eighth Circuit affirmed dismissal of a U.S. Equal Employment Opportunity Commission failure-to-hire case, on very narrow grounds.
  • In case two, a Florida jury awarded a hotel kitchen employee $21.5 million, after she was terminated for refusing to work on her Sabbath.
  • In case three, a federal judge in New York approved a $4.9 million settlement of a class action brought by the EEOC against United Parcel Service Inc., which involved claims that the company had not properly handled employee requests for religious accommodation, relaxing dress and uniform rules.

What do these cases tell us?

The obligation to accommodate employees’ religious beliefs and practices remains a critical concept for employers to understand, and a concept which the EEOC and the plaintiffs bar plainly take very seriously.

Employers must be careful in drafting and enforcing policies, and managers and human resources executives must be especially cautious when they say “no” to a request for a religious accommodation, and make sure that their denial is on solid legal footing.

To read the full Law360 article, click here.