Supreme Guts Agencies Like OSHA, DOL, FTC, EEOC, and NLRB

 You may not have been paying attention to the Supreme Court's recent decision about fishing, but it's yuuuge. They overturned a ruling from 1984 saying that courts must defer to federal agencies' reasonable interpretations of federal statutes. This is commonly referred to as "Chevron deference" or the "Chevron defense," in case you hear those terms. And on first blush, you're probably asking yourself what the heck a case about fishing regulations has to do with employment law.

The answer is: a lot.

This year, federal agencies under the Biden administration have actively taken actions that benefit workers. I've written about some of these. NLRB has said that noncompete and nonsolicitation agreements mostly violate the National Labor Relations Act, that many handbooks contain illegal provisions, and that advocating for non-employees is legally protected against retaliation. EEOC has posted updated guidelines on harassment, pregnant workers, and visual disabilities. The FTC has banned most noncompete agreements (litigation pending). OSHA has posted guidelines about wildfire smoke and other workplace safety issues. The Department of Labor has posted guidelines on which employees are independent contractors. Even the Treasury Department got into the act and issued a report blasting noncompete agreements. 

These are just a few of the many pro-employee actions taken by the Biden Administration's federal agencies.

To make things even more difficult the Supremes also gutted the 5 year statute of limitations that Congress passed for challenging agency regulations, so companies that want to challenge old rules just have to form a new entity and sue away. The courts will soon be overwhelmed with these lawsuits.

For workers, this means that every single pro-employee regulation will be challenged, no matter how old. I guess the good news is that unions can step into the fray and start challenging old anti-employee regulations. There will be no settled federal law on many important employment law issues for years to come, thanks to this ruling.

Vote well, friends.

EEOC Posts Guidelines On Harassment

 I can't tell you how many times per week I have to tell people that harassment is not generally illegal. Bullying, general harassment because you're you, just being mean, are not illegal. If they were, I'd be a billionaire.

But some kinds of harassment are illegal. EEOC has posted guidelinesposted guidelines on what kinds of discriminatory harassment are illegal. Here are some key provisions:

Types of harassment: "All laws enforced by the EEOC prohibit workplace harassment that is based on a protected characteristic. The protected characteristics covered by the laws the EEOC enforces are race, color, religion, sex (including sexual orientation; gender identity; and pregnancy, childbirth, or related medical conditions), national origin, disability, age (40 or older), and genetic information (including family medical history)."

When is harassment illegal: "To violate the law, harassment based on a protected characteristic must either:involve a change to the victim’s employment (e.g., an employee is fired, demoted, denied a promotion or transfer, reassigned, or receives reduced hours or pay because the employee rejected a supervisor’s sexual advances); or create a “hostile work environment”"

Examples of illegal harassment: EEOC gives these examples:

• saying or writing an ethnic, racial, or sex-based slur;
• forwarding an offensive or derogatory “joke” email;
• displaying offensive material (such as a noose, swastika, or other hate symbols, or offensive cartoons, photographs, or graffiti); threatening or intimidating a person because of the person’s religious beliefs or lack of religious beliefs;
• sharing pornography or sexually demeaning depictions of people, including AI-generated and deepfake images and videos;
• making comments based on stereotypes about older workers;
• mimicking a person’s disability;
• mocking a person’s accent;
• making fun of a person’s religious garments, jewelry, or displays;
• asking intrusive questions about a person’s sexual orientation, gender identity, gender transition, or intimate body parts;
• groping, touching, or otherwise physically assaulting a person;
• making sexualized gestures or comments, even when this behavior is not motivated by a desire to have sex with the victim; and
• threatening a person’s job or offering preferential treatment in exchange for sexual favors.

I would add that bullies tend to pick on the weak and the different. Who's weak? Pregnant, disabled, and older employees. Who's different? Race, sex, national origin, color, religion, etc. So look at who the bully is targeting and you might find that they are indeed engaging in illegal harassment. 

Do they have to get it right?: No. If the employer assumes you are Muslim, Black, or have some other protected characteristic and are harassing you because of it, that's illegal

Association: If you're being harassed due to your association with someone with a protected characteristic, such as being married to a Hispanic or a person with a disability, that's illegal.

What is a hostile environment: It isn't easy to prove, but EEOC offers this:

A “hostile work environment” exists when harassment is so severe or frequent (called “pervasive” in the law) that a reasonable person in the employee’s position would find the situation to be abusive.

Each claim must be considered on a case-by-case basis and take into consideration all of the circumstances. Some general guidelines to consider include:

• A victim does not need to show that harassment was both severe and frequent – just one or the other.* Sometimes, the more severe the harassment, the less frequent it must be, and vice versa.
• One instance of very serious misconduct may be severe enough. For example, one instance of somebody touching an intimate body part, acting violently, or a supervisor using the n-word can be enough to violate the law.
• The harasser’s status at the employing organization can be important. Harassment by the company’s owner or the victim’s supervisor can sometimes carry more weight than similar behavior by a coworker or customer.
• The victim does not need to show that the harassment led to a change in employment, such as a demotion, reduction of hours or rate of pay, or denial of a promotion. Similarly, the complainant does not need to show that the harassment made them perform worse.

*I'm emphasizing this because management-side lawyers like to argue that it must be both severe and pervasive. That's obviously not the law but it needs to be said. Over and over. SMH

What must employers do: Employers are responsible for preventing and for quickly ending harassing behavior once they learn about it , even if the harassment has not yet been severe enough or frequent enough to create a hostile work environment. But they have to know about it, so report it! EEOC offers this: "An employer typically learns about potential harassment when:Somebody complains. The person who complains does not need to be the victim.

• An owner, manager, or supervisor witnesses the harassing conduct.
• The harassing conduct is so open and obvious that an owner, manager, or supervisor reasonably should have known what was happening."

These are just a few of the key points raised in this new guidance. It might help if you think you are being subjected to illegal harassment. When in doubt, talk to an employee-side employment lawyer in your state employee-side employment lawyer in your state about your rights.

Were You Harassed At Work? EEOC Issues New Guidance on Workplace Harassment

 I have to say this almost daily, and I'll say it again here: general harassment at work is not illegal. Harassment because you are you is not illegal. Bullying is not illegal. However, bullies tend to pick on the weak and the different, and that may mean the bullying is illegal. EEOC just issued new proposed guidelines on what constitutes illegal workplace harassment and how to prove it. I'll touch on some highlights.

EEOC goes through characteristics that are legally protected and gives examples. Here's what they say about race and color discrimination:

Race and color: Race-based harassment includes harassment based on a complainant’s race, e.g., harassment because the complainant is Black, Asian American, white, or multiracial.Examples of harassing conduct based on race include racial epithets or offensive comments about members of a particular race, or harassment based on stereotypes about the complainant’s race. It also can include harassment based on traits or characteristics linked to an individual’s race, such as the complainant’s name, cultural dress, accent or manner of speech, and physical characteristics, including grooming practices (e.g., harassment based on hair textures and hairstyles commonly associated with specific racial groups). Color-based harassment includes harassment based on skin tone.

Example 1: Color-based Harassment. Shawn, a Pakistani-American with brown skin, files a charge of discrimination alleging that two of his direct supervisors have subjected Shawn to unlawful harassment based on color. Shawn alleges that on a near-daily basis, his supervisors call him “turd” and otherwise make comments to him that suggest his skin is the color of human feces. According to Shawn, one supervisor exited the bathroom, placed a cup containing feces on Shawn’s desk, and stated the feces looked like Shawn. Based on these facts, Shawn has alleged harassment based on color.

They also describe national origin, sex/gender, religion, pregnancy/childbirth/related conditions, sexual orientation and gender identity, age, and disability-based harassment and give examples. 

Here are some other issues they cover:

Erroneous perception: "Harassment based on the perception that an individual has a particular protected characteristic, for example, the belief that a person has a particular national origin or religion, is covered by federal EEO law even if the perception is incorrect.[47] Thus, harassment of a Hispanic person because the harasser believes the individual is Pakistani is national origin harassment, and harassment of a Sikh man wearing a turban because the harasser thinks he is Muslim is religious harassment, even though the perception in both instances is incorrect."

Association: "The EEO laws also cover “associational discrimination.” This includes harassment because the complainant associates with someone in a different protected classor harassment because the complainant associates with someone in the same protected class. Such association may include, but is not limited to, close familial relationships, such as marriage, or close friendship with another individual belonging to a protected group."

Same class: "Harassment that is based on the complainant’s protected characteristic is covered even if the harasser is a member of the same protected class."

Societal expectations: "Harassment based on protected characteristics includes harassment based on social or cultural expectations regarding how persons of a particular protected group, such as persons of a particular race, national origin, or sex, usually act, appear, or behave.This includes, but is not limited to, harassment based on assumptions about racial, ethnic, or other protected characteristics, or sex-based assumptions about family responsibilities, suitability for leadership roles,or sex roles."

Example 9: Causation Established Based on Sex Stereotyping. Eric, an iron worker, alleges he was subjected to sexual harassment from his foreman, Joshua. The investigation reveals that Joshua found a remark Eric made to be “feminine” and then began calling Eric “pu__y,” “princess,” and “fa___t,” often several times a day. Several times a week, Joshua approached Eric from behind and simulated intercourse with him. On about ten occasions, Joshua exposed himself to Eric. Based on these facts, the investigator concludes that Joshua targeted Eric based on his perception that Eric did not conform to traditional male stereotypes and subjected Eric to harassment based on sex.

Causation: The guidance gives many examples of how to prove that it was discrimination that caused the behavior as opposed to something else. 

Example 10: Causation Established by Social Context. Ron, a Black truck driver, finds banana peels on his truck on multiple occasions. After the third of these occasions, Ron sees two white coworkers watching his reaction to the banana peels. An investigation reveals no evidence that banana peels were found on any other truck or that Ron found any trash on his truck besides the banana peels. Based on these facts, an investigator concludes that the appearance of banana peels on Ron’s truck was not coincidental. The investigator further finds that the use of banana peels invokes “monkey imagery” that, given the history of racial stereotypes against Black individuals, was intended as a racial insult. It thus constitutes harassment based on race.

Example 12: Comparative Evidence Gives Rise to Inference that Harassing Conduct Is Based on a Protected Characteristic. Tyler is a manager for an educational services firm. Tyler directly supervises two women, Kailey and Anu, and two men, Sandeep and Levi. Tyler grants Kailey’s request for time off to visit her dying sister. When Kailey returns, Tyler confronts her and yells at her for not reading her “damn email” while she was away. From then on, Tyler regularly hovers over Kailey and Anu as they work to make sure they don’t “mess up.” Tyler also yells and shakes his fist at Kailey and Anu when he is angry at them. This conduct continues, and Kailey and Anu file EEOC charges alleging harassment based on sex. During the investigation, the investigator finds that Sandeep and Levi report that Tyler, although occasionally irritable, generally engages in friendly banter with them that is different from the aggressiveness that Tyler displays toward female employees. Tyler sometimes even allows Sandeep and Levi to relax in his office in the afternoons, doing little or no work. Tyler also permits Sandeep and Levi to leave the office early and does not monitor their work performance. Tyler’s different treatment of women and men who are similarly situated would support an investigator’s conclusion that Tyler’s treatment of Kailey and Anu was based on their sex.

This proposed guidance is pretty comprehensive and is a good resource to review if you think you've been illegally harassed. When in doubt, talk to an employee-side employment lawyer in your state about your rights. 

What To Expect In #Employment Law In 2022

 If you are a regular reader, you've probably noticed that I haven't done any predictions in the past few years. Because how could anything have possibly been predicted? But employment law is becoming more predictable now, and I think it's time to take a deep breath and do my Cassandra bit. Here are my predictions for 2022:

1.    More pro-employee NLRB: We've already seen this with some very pro-employee, pro-union decisions coming down regarding Amazon, Starbucks, and other unionization attempts. As the year progresses, we'll see NLRB cracking down on employer retaliation and union busting efforts. We'll also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation.

2.    EEOC will re-energize: They were cut to the bone in budget and staffing under the last administration, so it's taking a bit for them to bounce back. They'll also focus on issues like sexual orientation that got pushed aside under the last administration. I hope they'll fully staff the mediation divisions, because those folks are really terrific at settling cases.

3.    Supremes go anti-employee: Unfortunately, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. Look for really pro-management decisions on the federal level.

4.    Paralysis on noncompetes: Even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there's little the agencies can do without legislation. Congress won't do anything. Neither will the Florida legislature. Maybe some pro-employee states will limit or ban noncompetes. Some have done it already. Will more follow?

5.    Sexual harassment crackdown: With President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. Where the military goes, usually goes the rest of the nation, so we should see some more crackdown on sexual harassers.

6.    COVID, COVID, COVID: The virus will continue to be an issue. OSHA will continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. Florida will continue to be the Wild West. 

7.    More unions: As NLRB becomes more employee-friendly, we'll see more unionization attempts. Once Amazon is forced to allow a union (and it will happen this year), employees of other workplaces previously thought impossible will begin efforts to unionize. Some will succeed. The Great Resignation has made employees more conscious of working conditions. They'll continue to fight to be treated fairly. Union busters will make a fortune this year as employers try to fight back.

8.    Disability discrimination: Now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'll see more disability discrimination cases. Employees who seek remote work as a reasonable accommodation will face resistance, but employers will lose the argument that granting the accommodation is a hardship. After all, they had a year or more of remote work very successfully. 

9.    Zoom: I don't know about you, but I love Zoom. Having to do a 2 - 3 hour round trip for a 5 minute hearing is a huge waste of resources. Judges like it because they have more control. For non-evidentiary hearings, Zoom will remain in many courtrooms. We'll also continue to see more Zoom depositions and mediations, which work very well on that platform. This will make attendance by employees much less onerous. They won't miss as much work, for one. In employment law, it will be a huge benefit. I find that employees are way more likely to settle in a Zoom mediation where they feel comfortable and more relaxed. Employers will also continue to utlize Zoom or similar platforms for meetings rather than having employees commute from remote locations. 

10.    Anti-employee laws: We'll see some extreme anti-employee laws in red states as the right wing pushes to be more and more extreme. Expect some laws attacking LGBT folks, abortion, marijuana, protests, and free speech. Some of these laws will give employers extra protection against lawsuits for terminating employees for their activities outside of work.

Well, that's about all I think I can predict for now. Let's see how I do. It's still crazy out there, but hopefully things will get a bit more normal as 2022 progresses.

Is EEOC Turning Down New Charges of Discrimination?

I've heard from multiple different clients and potential clients that they've contacted Miami EEOC and were either turned away or were unable to get an appointment. Some were told on the phone that EEOC is not taking new cases. Others filled out the form online and the next step is to set an appointment. But when they click on the next step they are unable to get an appointment.

WTH?

Filing a charge of discrimination is required before filing a charge of discrimination. In Florida, it must be filed within 300 days from the date of discrimination. In other states it's either 180 or 300 days. If EEOC is refusing to allow folks to file charges, that means workers who were subjected to discrimination may not be allowed to file a discrimination lawsuit.

Sure, the Supreme Court recently ruled that filing a charge with EEOC is not jurisdictional, meaning that the lack of a charge doesn't automatically mean the courts can't hear the case. But the Supremes also said, "EEOC charge-filing is still a mandatory prerequisite to filing suit and remains a procedural step that a court must enforce if the issue is timely raised . . . ."

I'm sure hoping that the folks telling me that EEOC is refusing to allow them to file charges of discrimination have somehow misunderstood, but I've heard it enough in the past couple weeks to think a pattern is developing.

If filing a charge of discrimination is still a "mandatory prerequisite to filing suit," then EEOC needs to take all charges that workers want to file. Otherwise, it is preventing people from pursuing their legal remedies for race, age, sex, national origin, pregnancy, disability, color, religious, and other discrimination cases.

I hope this is not a new anti-employee policy implemented by this administration to prevent workers from exercising their rights. Say it ain't so EEOC!

New EEOC Miami Policy: No Opportunity For Employees To Respond

In the bad old days, after an employee filed a Charge of Discrimination, employers would file a position statement and then one of two things happened: either the investigator would read a summary of the position statement quickly over the phone, or the investigator would write up a summary of the position statement. Then the employee would have 10 days to respond.

I say the bad old days, because this process really didn't give the employee a full opportunity to understand the employer's response or fully respond.

That all changed when EEOC implemented new Position Statement Procedures on January 1, 2016, entitling employees to a copy of the position statement if they request it. They also gave employees 20 days to respond to the position statement once received. This was way better, because employees had a full opportunity to read and understand what their employer was saying, and then fully respond to and rebut the position statement.

Even at its worst, EEOC gave employees at least some opportunity to respond. At its best, it gave employees a truly full and fair chance to respond.

But not anymore. I have had several cases recently where EEOC got the position statement and then dismissed the charge without giving the employee any chance to respond at all or even tell them they had received it.

When I asked EEOC's General Counsel to look into this, he referred me to the Director, who did not respond to my query at all. When I followed up because it happened again, the Director decided to insult me personally and tell me to take it up with NELA (the National Employment Lawyers Association) and Congress. So I think I will.

I have already directed my concerns about this utter lack of due process for employees to NELA. If you think this new process is terrible and doesn't comply with EEOC's mission to conduct a full investigation of charges of discrimination, contact your member of Congress and tell them you think EEOC should allow employees an opportunity to respond to employer's position statements so that they may conduct a full investigation.

By the way, this isn't the only anti-employee activity EEOC has engaged in since the change in presidential administrations. They have also engaged in dismissing cases immediately upon filing without any investigation (I've seen this happen personally), and I have heard multiple stories of them telling people they don't have a case and refusing to even take their charge (this is particularly awful because filing with EEOC is a prerequisite to filing a lawsuit, and employees have a very short time period to file).

People come to EEOC because they need help, because they think their employer engaged in unlawful discrimination. They also come to EEOC because they are legally required to do so if they even want to think about filing a lawsuit. So why has EEOC suddenly decided that its mission is to only help employers and not employees? Has EEOC been given a new mission to try to discourage or prevent employees from exercising their legal rights?

I think some more investigation is warranted.

My 2018 Predictions

Okay, okay. So I've been promising these for awhile. It has taken me a bit to wrap my head around things that have happened so far since the presidential election. The good news is that the GOP remains the party that couldn't shoot straight (no pun intended). So far, little has been done against employees on the legislative front. It's mostly been done by executive order.

So what can we expect for the rest of 2018? Here are my predictions:

Sexual harassment: Despite all the brouhaha on #MeToo and sexual harassment, no new legislation will pass and we'll see some judicial and jury decisions penalizing sexual harassment victims. There will be backlash, and lots of it.

Agcncy paralysis: With cuts to EEOC, DOJ and NLRB, these agencies will develop backlogs and go into paralysis. Employees can expect little help from the feds this year. The one hopeful thing I see is that EEOC mediations are still going strong. The EEOC mediators, at least down here, are some of the best I've ever seen, government or private. We will still see cases resolved in EEOC mediations unless the mediation program is cut too.

Guns at work: Thanks to high school students down here, we may start to see states revisiting those idiotic guns at work laws that have been all the rage. On the other hand, the orange one is pressing to arm teachers in classrooms. What could possibly go wrong? I think we will actually see some baby steps on common sense gun control for the first time in this country in a long time. It will take awhile, probably years, but there will probably ultimately be a drop in workplace shootings if these laws pass.

Immigration raids: We've already started to see employers being raided to round up illegal immigrants and arrest the bosses for hiring them. We're also seeing traffic stops to round up immigrants. That will continue. Employers  and employees beware.

Antitrust: The Department of Justice has announced it will start cracking down on no-poach agreements between employers. That's a ray of sunshine in what will be an awful year for employees. I would caution employers who threaten to sue competitors for hiring former employees, then quietly settle with a no-poach agreement. The government will come after you as well as my colleagues and me for these illegal arrangements.

LGBT rights: The courts will continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I don't think the Supremes will get to the issue this year, so we'll have a split among circuits on this. So far, the 2nd and 7th Circuits say it's covered. The 11th, which covers my home state of Florida, says no.

Marijuana crackdowns: I've been predicting for awhile that the feds will start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. That handy-dandy card allowing you to buy will be a nice tool for the feds to use to claim probable cause to search your house. They'll probably go after growers and dispensaries first, but if people don't rise up and resist, they'll come after individuals next. I'm guessing the crackdown this year will be on the businesses, not on individuals.

Overall, this won't be a good year for employee rights. But then, you knew that already. Resistance is not futile.

What #Employmentlaw Regulations Will Trump Scrub?

As the inauguration gets closer, the new Trump Administration is making lots of promises about what they intend to do. Apparently number one on the list is undoing as many of the Obama Administration's Regulations and Executive Orders as they can. I already talked about some Executive Orders that benefit employees of federal contractors that are at risk. So what else may disappear or change soon?

Here are some employment-related regulations to keep an eye on:

• OSHA retaliation procedures: OSHA has issued new procedures for handling retaliation complaints under various laws, such as Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act. 
• Federal unemployment rules: DOL implements rules on federal unemployment compensation, which provides extra compensation to the unemployed during periods of high unemployment. The latest, Federal-State Unemployment Compensation Program; Implementing the Total Unemployment Rate as an Extended Benefits Indicator and Amending for Technical Corrections; Final Rule, could be in for a change. Other rule changes on unemployment to watch for will be those relating to drug testing of applicants.
• Overtime regulations: DOL regulates minimum wage and overtime rules. The latest rule changes could be overturned. Watch for changes to, for example, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.
• Safety regulations: OSHA has tightened safety standards on many industries. These include the very recent Occupational Exposure to Respirable Crystalline Silica; Correction and Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems).
• Social Security disability: Whether you qualify for disability benefits can be determined by very specific rules. Some recent ones at risk include Unsuccessful Work Attempts and Expedited Reinstatement Eligibility, Revised Medical Criteria for Evaluating Mental Disorders, and Revised Medical Criteria for Evaluating Neurological Disorders.
• EEOC: The Equal Employment Opportunity Commission issues regulations and guidance for determining whether various types of illegal discrimination have occurred. Some recent changes include Regulations Under the Americans With Disabilities Act and Genetic Information Nondiscrimination Act.
• Federal Employee ethics rules: We just saw the attempt to limit ethics requirements in Congress. Some ethics rules to watch include Standards of Ethical Conduct for Employees of the Executive Branch; Amendment to the Standards Governing Solicitation and Acceptance of Gifts from Outside Sources and Interpretation, Exemptions and Waiver Guidance Concerning the Federal Criminal Conflict of Interest Statute Prohibiting Acts Affecting a Personal Financial Interest; Amendment to Definition of “Employee”.

These are just some examples of the many, many executive branch regulations that could change soon. The truth is that nobody has any idea what the new administration will actually do. Both employers and employees are justifiably nervous about what may happen in the next four years. Stay tuned.

Supremes to Employers: No, We Won't Make EEOC Force You To Settle

In one of the most bizarre employer appeals I've ever seen, a company called Mach Mining asked the Supreme Court to dismiss a suit by EEOC because EEOC didn't engage in sufficient conciliation efforts. Conciliation is a fancy term for trying to settle a case. It's done after EEOC makes one of those rare findings of "cause" for a discrimination charge.*

That's right: this was an employer’s beef about EEOC not trying hard enough to make the employer settle. It was much ado about . . . well, not nothing, but certainly not much. While I’d have been happy if the Supremes had ordered EEOC to beat lawbreaking employers into settling with, say, a cat o’ nine tails, I didn’t expect them to do so.

The Supreme Court in Mach Mining confirmed what EEOC has been saying all along, namely, that the courts can’t involve themselves in the conciliation process. The Supreme Court did say that EEOC does indeed have to inform employers about the specific wrongdoing it has found and which employees suffered from the wrongdoing, and then try to engage the employer in a discussion to give the employer a chance to fix the problem. However, the sole remedy for EEOC’s failure to comply is to stay the proceeding and require EEOC to conciliate. So it will work similarly to a court ordering the parties to mediate before trial.

This makes perfect sense, since there is absolutely no realistic way for a court to decide if one party is being unreasonable in a settlement discussion. While EEOC has to try to get the employer to voluntarily comply with the law, the courts are not going to tell it how to accomplish that. Employers are calling it a "win," but it's mostly a big ball of nothing.

Employers should be really glad that the Supreme Court didn’t order EEOC to get more forceful with scofflaw employers.  Taxpayers and employees lose out when employers fail to conciliate reasonably and EEOC has to sue employers to enforce the law.

This case will have zero effect on employees who sue on their own. It only applies to cases where EEOC sues on behalf of employees. We already know that this is about as likely as getting hit by lightning. Bottom line: don't worry about it. It probably doesn't apply to your case or you.

* The alternative to a "cause" finding is NOT a "no-cause" finding, although this is what management-side lawyers like to call it. It's an "unable to determine" finding, saying that they can't determine one way or the other whether discrimination occurred, and they issue a right to sue letter.

Odds Of Getting EEOC To File Suit For You? Not Much Better Than Odds Of Getting Struck By Lightning

EEOC has issued its 2014 Performance Report and the big news everyone announced was that the number of charges dropped. What I found disturbing when I read the summary was that there were 88,778 charges filed nationwide, and of those EEOC only filed 133 "merit" suits, that is, suits where they found cause and decided to sue on behalf of an individual or group of employees.

So the odds of having EEOC sue on your behalf are .1% (133/88778=.001), or about 1 in 1000. Now, when I'm telling clients that they shouldn't hold their breath and hope for EEOC to file suit on their behalf, I usually say that the odds are about the same as getting struck by lightning, and I laugh. I thought I was being facetious. So I looked it up.

The odds of getting struck by lightning in your lifetime are about 1/3000. So you're about three times as likely to have EEOC file a suit on your behalf as you are to be struck by lightning. Not great odds.

Here in Florida, the odds of getting struck by lightning in your lifetime are probably higher. There were 7528 EEOC charges filed in Florida in 2014. I've asked for the number of merit suits filed and if it isn't more than 3 (I only found press releases for two) then the odds here are about the same as getting struck.

So, when employers complain that EEOC isn't fair to them, I'll add this to my list of why I'll only play them the world's smallest violin.

Fox Rothschild Responds To My Post About EEOC Mediators

In all fairness, I wanted to provide an update. I posted Friday that Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs. The piece was about a claim made in a survey that EEOC mediators are biased against employers. Fox Rothschild posted the survey in their blog, then posted a guest piece by the author of the survey. I strongly disagreed with this assertion of bias, and explained why.

I then let Richard Cohen, the blog's author, know that I had posted the piece so he could respond. Here's what he said:

Good post. But neither my blog or firm have taken or take that position, or claim to take that position. The blog simply reported, I think faithfully, comments from both sides, without comment from me and without my taking sides. Generally speaking, that's my blog's general tenor.

And Ms. Archer has no association with my firm.

Although your post is likely good PR for us, nonetheless it is inaccurate.

Rich Cohen

In additional communications, Mr. Cohen advised that neither his firm nor he have taken a position on the topic, and that his blog expresses his views, not the firms. I’m delighted to hear that it is not Fox Rothschild’s or Mr. Cohen's position that EEOC mediators are unfairly biased toward employees. I certainly got a different impression from reading their blog posts. It's still concerning to hear these claims made about EEOC mediation, which I think is a worthwhile process.

If a well-respected firm like Fox Rothschild publicizes a study in their blog (and it is in the firm's official blog with Mr. Cohen listed as the author) that claims bias without questioning that study, or stating that their experiences with EEOC mediation were different, I think agreement with the study was implied. If the firm then posts guest a blog reasserting that bias without any positive comment about Fox Rothschild's or Mr. Cohen's own EEOC mediation experiences, I think readers may reasonably assume they agree with their guest's post.

I wonder if their clients and other employers now think that there really is a bias against employers in EEOC mediation. I wonder if employers will hesitate to agree to utilize EEOC's free process, despite the fact that a judge will order them to engage in mediation they'll have to pay for if they are sued. Will Fox Rothschild or Mr. Cohen take an official position as to whether they believe EEOC mediations are biased against employers? Will other management-side firms and lawyers stand up for EEOC?

Stay tuned.

Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs

The law firm Fox Rothschild, LLP has posted a series of blog posts where they complain bitterly about EEOC mediators. They claim the mediators are unfair because they have the nerve (the noive!) to tell employers that EEOC could enter a cause finding in their case. The whining began with a survey by Merrily Archer where she asked management-side folks who participated in EEOC mediations whether or not mediators mentioned "cause" findings as a possibility. She found that they did so in 73.7% of cases. In 70% of cases, mediators mentioned to employers that EEOC could possibly bring a suit against the employer if they found cause.

Other lawyers weighed in and said that EEOC mediations are no different from other employment mediations, in that mediators do mention possible "cause" findings and other worst-case scenarios when trying to bring about settlements. But Fox Rothschild is now claiming that EEOC mediators should not do what every other mediator does.

They make three arguments for why EEOC mediators should be banned from mentioning the dread but rare "cause" finding:

1. Unlike Private Mediators (or Magistrate Judges), EEOC Mediators Represent a Federal Agency that Wields Broad Enforcement Authority and Prosecutorial Discretion
2. Unlike Private Mediators (or even Magistrate Judges), EEOC Mediators Represent a Federal Agency that Measures Its "Efficacy" by Its Employer Collections
3. Unlike Private Mediators (or even Magistrate Judges), MOST EEOC Mediators are Not Lawyers 

So let me get this straight. Other mediators mention worst-case scenarios and that's okay. But EEOC mediators should paint a rosy pro-employer picture because they work for EEOC? All this whining fails to mention that EEOC mediators do not communicate with the investigators. They aren't allowed to discuss what happened at mediation. They can't have any impact on the enforcement decision one way or the other. And as to "efficacy," I'm willing to be that what they measure are the number of settlements, not the amount. As to their not being lawyers, mediators aren't supposed to give legal advice or make legal pronouncements. They don't have to be lawyers. Many EEOC mediators were investigators and know better than anyone how the system works.

What is completely missing from all this management-side moaning and groaning is any input from the employee side about what EEOC mediators say when meeting with employees. Mediators are supposed to test both sides with strong questions and doomsday scenarios. EEOC mediators point out to my clients that they could lose their case, that most EEOC cases end up with an "unable to determine" finding (some have even said a "no-cause" finding, even though those no longer exist), that litigation is long and drawn-out and expensive, and that sometimes a losing employee could end up paying fees and costs to the employer. It's the lawyer's job, not the mediator's, to discuss how likely each of these scenarios is with the client and whether settlement is a viable option.

I'd also like to point out my pet peeve from the employee side with EEOC mediators: employers always get the best room. At least here in Miami, EEOC has large, comfy conference rooms with candy and water on the tables, sometimes coffee, where the mediation starts. In every single situation I've encountered, after the initial openings and discussions, when it breaks into caucus, the employee is moved to a different room. That room used to be a tiny and freezing room with a tiny table and no refreshments. Now that they've moved to a different building, employees and their counsel don't even get a table to work on. There's a tiny room with a sofa and some chairs and side tables, and no place to put a laptop or spread out case files.

Does this send a message to employers that they are in disfavor? I think not. I think it sends a terrible message to employees that they are second-class citizens in EEOC mediation, whether it's true or not. I think EEOC mediators should alternate between moving the employer and the employee to the tiny room so it's fair. In a couple of cases, I've insisted upon it and been met with resistance, shock and surprise that I dared shake the status quo.

I'm a huge fan of the EEOC mediation process and EEOC mediators. In Miami at least, they're some of the best mediators I've encountered. That doesn't mean I think they are biased in favor of employees. If they were, they couldn't settle cases. A good mediator tests and pushes both sides, and that's what EEOC mediators do. It would be a travesty if EEOC mediators bowed to management-side pressures by not testing and pushing employers by telling them the worst-case possibilities that maybe their lawyers don't want them to hear.

I challenge Fox Rothschild to survey employee-side firms to find out what worst-case scenarios EEOC mediators are sharing with employees. They won't do it, because it will completely repudiate their claim that EEOC mediators are somehow unfair to employers.

So quit your whining, Fox Rothschild, and enjoy your comfortable large conference room and refreshments while your opponent is stuffed into a tiny room down the hall.

Donna's Employment Law Predictions for 2014

Last week I revealed how I did on my predictions for 2013 (pretty darned good, if I do say so myself). Today, I look into my crystal ball for 2014. Here's what I see on the horizon:

1. Minimum Wage: Raising the minimum wage will be a hot political issue in 2014. We saw some movements in 2013 to make significant increases, and that will continue. Unless something drastic happens in the midterm elections, it's doubtful we'll see anything significant on the national level, but look for more states to increase the minimum wage to the $ 9 - 10 range. Some may go even higher, like Seattle's move toward $15. Raising the minimum wage is great for the economy. Unlike trickle-down economics, it gets money circulating quickly. Henry Ford had the right idea: pay your employees enough so they can buy your products.
2. Legalize It: Legalized marijuana will spread to more states, creating some confusion for employers. Can they fire employees who test positive, like Colorado? Or will their state prohibit firings for legal marijuana use like Connecticut, Arizona, Rhode Island, Maine, Colorado and New York? Colorado has a law, as do other states, prohibiting firing/discrimination for legal off-duty activities, so watch for some litigation over this issue there. Look for marijuana growers and sellers to push for laws like tobacco users have in several states protecting them from discrimination at work. In the meantime, medical marijuana users will seek protection under the ADA and other disability discrimination laws.
3. Health Care: ObamaCare kicked in and it will change the way we look at health insurance. Sure, it isn't ideal. But when a million or so people who've never had health insurance or who haven't had it in years suddenly can get medical treatment, they'll start to expect to be treated like human beings instead of human waste. From here, we'll be very close to an upheaval in the way we deal with health insurance. This year, we'll see some confusion as the regulations kick in, some stupid employers dumping insurance and cutting people to part-time to avoid paying insurance, but the employer mandates have been delayed until 2015, so most of the stupid employer activity will be at the end of the year and into next year. I say that employers who do this are stupid because they'll ultimately lose good employees. With more people covered, there will be more health care jobs available.
4. Internships Cut: With employers under attack for unpaid internship programs that don't actually educate the interns and replace regular employees, some programs will simply disappear. That's not all bad, since the interns-as-slaves programs need to die. We'll see better internship programs cropping up, ones that are truly educational, or paid internships. But most of the new programs will start up after this year. This will be a year of lost programs. We'll also see some attempts to put interns under the protection of discrimination and sexual harassment laws. Some may succeed on the state or local levels, but there's no way that happens on a national level with Congress as it is currently configured.
5. Failed Again: Attempts to pass anti-bullying laws and the Civil Rights Tax Fairness Act will fail just like they do every year.
6. NLRB and EEOC Cut Off By Courts: NLRB and EEOC will continue to try to expand the protections employees have. Courts will continue to stop them. Still, they'll inch forward with some new progress for employees. Baby steps.
7. Lip Service: While the midterm elections kick in, we'll hear lots of big proposals to help employees. Little or nothing will pass due to gridlock. Failures will include the FAMILY Act, Arbitration Fairness Act, and ENDA. However, the fact that each of these bills will be blocked will become fodder to take down some of the more anti-employee members of Congress. Maybe 2015 will see some progress.
8. Background Checks: EEOC's efforts to demonstrate that criminal background checks have a disparate impact on blacks have been pretty well crushed so far. However, there will continue to be efforts to ban credit checks. More states will ban or limit use of credit information in hiring. The federal efforts to do so will fail. More states will pass ban-the-box laws barring many inquiries about arrest and conviction records in job applications. There is zero chance such a law will pass on the federal level this election year.
9. Pregnancy Discrimination: The issue of whether pregnancy is covered under the Florida Civil Rights Act will be resolved one way or the other by the end of the year. I think the Florida Supreme Court will say it is already covered. If not, then the legislature will pass a fix. The difference will be for all those women caught in between. If the Court doesn't rule for employees, lots of new moms who thought they were covered and sued under state law will be out of luck. Rule wisely, Supremes.
10. LGBT Protections: States and local governments will continue to pass discrimination laws banning LGBT discrimination. The feds will fail again, but EEOC will continue to push for application of existing law to LGBT employees.
11. Religious Discrimination: Religious employees will push the limits on their ability to proselytize and pray at work. There will be a disconnect between the right to practice religion vs. the right not to be harassed for not sharing a religion and also LGBT rights. Look for right-wing religious groups to push the argument that religious discrimination laws allow them to speak out against gay rights in the workplace. In an election year, we'll see extreme positions pushed on both sides.

Well, that's it for my predictions. I think this year will be one where employees start to wake up to how few rights they have and start to push for more. Major change will come only with a change in Congress.

Call Me Prescient: How My 2013 Employment Law Predictions Fared

If you are a regular reader, you'll recall that I made predictions at the beginning of 2013 about what I thought we could expect. How did I do? Call me Cassandra.

Here's what I said would happen, and what really did:

1. Even More Active NLRB: Look for stepped up activity against employers on social media restrictions, attempts to suppress worker concerted activities and lopsided agreements. NLRB will do what other government agencies have punted on: help employees.

Sure enough, NLRB didn't disappoint. They were up to full strength by the middle of  the year. They continued to press for employee rights in non-union workplaces. They struck down some overbroad social media policies and policies on confidentiality of investigations. They rolled out an app to inform employees in union and non-union workplaces about their rights. It wasn't all pro-employee. NLRB upheld several Facebook firings. See also here and here for some of 2013's social media cases.

2. EEOC Will Start Stepping Up Not to be outdone by NLRB, EEOC will become more active as well. This year saw the beginnings of activity to address gay rights and retaliatory confidentiality agreements. Look for more activity that actually helps employees, and for an agency that no longer accepts employer position statements as gospel.

EEOC tried to step up with the issuance of a guidance and then a clarification to its guidance on criminal background checks, but was repeatedly shot down in the courts. Let's hope they don't give up on this important issue, which definitely has a disparate impact on minorities. EEOC also stepped up its enforcement of Title VII regarding LGBT employees under the theory of "sexual stereotyping." They also cracked down on overbroad agreements that limit employees' ability to file with EEOC. I still see a tendency to accept employer position statements as gospel, at least here in Florida, but there's definite progress. Baby steps.

3. Marijuana Litigation With flat-out legalization in two states and legal medical marijuana in many more, we’ll start to see litigation on the employment-protection provisions built into many of these new state statutes. The fact that it’s still illegal under federal law will make things complicated. Will the feds finally give up and recognize state’s rights? Probably not this year, but definitely within the next 5 years.

Sure enough, the litigation has begun. See also here and here. Still nothing on the federal front to recognize states' rights, but it's only a matter of time.

4. Gay Rights Expansion Speaking of states’ rights, with gay marriage spreading across the country, the feds can’t be far behind. We probably won’t see Congress adding sexual orientation to Title VII or gay spouses to FMLA this year, but I think it’s going to happen this Presidential term.

Wow! What a year for gay rights. The Defense of Marriage Act was stricken down, which led to the Feds deciding that FMLA and EBSA do protect gay couples in states that legalized gay marriage. While there was no legislation passed to amend Title VII or FMLA, ENDA did pass the Senate (although it is stalled indefinitely in the House).

5. Strikes All of a sudden, workers are waking up. They’ve realized they don’t have to put up with crappy working conditions in silence. We’ll see more non-unionized workforces going on strike. We’ll also see some Wal-Mart and fast food corporations retaliating for the strikes that have happened last year and which will continue in 2013. Fortunately, I think NLRB will take action to slap employers for illegal retaliation.

2013 saw more fast food strikes and Wal-Mart strikes.  As predicted, Wal-Mart retaliated and NLRB slapped them.

6. Federal Courts Become (Slightly) Less Anti-Employee While federal courts have long been a sad place for employees, especially here in the 11th Circuit, some recent cases indicate that the times may be changing. Look for some rulings in favor of employees for a change. All it will take is a couple of Supreme Court appointments over the next four years and it will be a different world for employees. This year, the Supremes will, for the most part, continue to bend toward corporate interests instead of the working people.

There were some baby steps toward becoming more pro-employee in the federal courts. The usually very pro-employer 11th Circuit sided with the NLRB in a recess appointment case.  Several federal courts found that sex discrimination includes sex stereotyping, providing protection for LGBT employees. Some other pro-employee decisions here and here. Still, the Supremes came in overwhelmingly pro-employer this year. Overall, the federal courts remain a relatively unfriendly place for employees in many circuits.

7. Arbitration Under Fire Although arbitration clauses have been the darling of employers, who are sneaking them into applications, handbooks and that giant stack of papers employees sign on their first day, look for some attacks this year coming from government agencies. Watch for NLRB, EEOC, FTC and maybe even DOJ to subject arbitration agreements to extra scrutiny. It’s doubtful Congress will take action this year, but if they do something to help consumers, employees will probably be able to benefit.

Some courts have tossed one-sided pro-employer arbitration agreements. However, the Supremes upheld class action waivers in arbitration agreements. The NLRB lost when it attempted to invalidate an arbitration agreement. Meanwhile, FTC is challenging a consumer arbitration clause. No legislation passed to help consumers or employees this year.

8. Bullies Will Slide Although states periodically consider anti-bullying laws, they always fail to pass. It’s likely 2013 will be no different. Watch for more consciousness-raising but no legal action this year.

Still no anti-bullying laws passed in 2013. Sigh.

9. Privacy Protections More state legislatures will pass laws against demanding employee social media passwords and other egregious employer snooping. Congress might even do something to stop some of the worse invasions of privacy, but I won’t hold my breath. They’re too busy with gridlock to actually do anything that might protect their constituents.

Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington passed laws against demanding social media passwords, with at least 36 states trying to follow suit.

10. Background Check Restrictions More states will place limitations on background checks and what background information employers can use against applicants. Watch for laws limiting use of criminal records, unemployment, and credit history against applicants. EEOC will continue looking for disparate impact of background check information against women and minorities. It’s only a matter of time, say 2013 or 2014, before we see a case arguing that use of criminal records has a disparate impact on men, but it won’t come from EEOC.

10 states and almost 60 local governments have passed "ban the box" legislation prohibiting or limiting the use of criminal background checks. Some major employers also announced they'd end the practice. There was one unsuccessful case arguing that criminal background checks had a disparate impact on men. It didn't come from EEOC. As I discussed in 2 above, EEOC lost a number of criminal background cases this year based on racial impact. It is no surprise that it didn't try to expand the theory to include sex discrimination.

Overall, 2013 was a mixed bag for employees. Better than some years, and we definitely saw some activity to protect employees. The biggest surprise was the passage of some minimum wage increases, with 13 states raising the minimum wage.

Stay tuned for my predictions for 2014.

Help! I'm Falsely Accused By My Supervisor. Can EEOC Help?

Hello. I was wrongfully terminated with wild accusations by new management on his first day of working. The assistant manager had said I was getting a verbal warning and that the GM had agreed. The next day on my day off I was let go. It took HR 2 weeks to even answer my calls or emails very rudely. Finally, once they contacted me, they said they were conducting an investigation. This was a month ago. I have yet to hear from them again. I have been leaving all sorts of messages not bombarding but at least one weekly. Please help. Can EEOC do anything? I understand they only seek discrimination cases but I do not know who else to turn to.

Cindy R.

Hi Cindy. I'm so sorry to hear you are being kept in limbo by HR. They probably aren't responding because they don't think the company broke any laws when you were fired. You're right, that EEOC only handles cases involving race, age, sex, national origin, color, genetic information, pregnancy, disability and religious discrimination. They don't handle discrimination based on you being treated unfairly by your boss or falsely accused of something for no reason.

However, before you give up and decide you don't have any claims against your former employer, I'd suggest asking yourself why you think the supervisor singled you out. Are you of a different race, age, sex, national origin or some other legally protected category from your coworkers who weren't singled out? If so, it's possible he was picking on you because of discrimination.

Were you accused of something that other coworkers also did? If so, were they also fired? If not, were they of a different race, sex, national origin, etc. from you? This could also be evidence of discrimination.

Discrimination isn't the only thing to think about in this situation. If you recently made a worker's compensation claim, took Family and Medical Leave, discussed working conditions with coworkers, or objected to something the company is doing that is illegal (examples could be failing to pay overtime, safety violations, anything that is a violation of a law or government regulation), then you might also have been targeted due to a legally protected status. There are all kinds of legally-protected statuses that might apply to your situation (bankruptcy, garnishment, association with a protected person, to name a few).

Other legal protections you might have, depending on your state, could be jury duty, being a witness, domestic violence victim, having a gun in your car, legal marijuana use, marital status, bad credit, and many others.

If your dispute with the manager is purely a personality conflict, then you may be out of luck. But it might be worth talking to an employment lawyer in your state if you think you might fit into a protected category.

Shutdown Doesn't Stop Employment Law Filing Deadlines

Thanks to the government shutdown, EEOC's website is down. NLRB's website is also down. You might assume the fact the government is shut down means your deadline for filing claims against your employer is extended. You'd be wrong (maybe). If you have a deadline coming up soon for filing a charge of discrimination with EEOC or a charge against employer with NLRB, you may still have to (somehow) get your filing done in time.

My latest piece in AOL Jobs tells you what to do if you have a pressing deadline to file with EEOC or NLRB.

Everything Employees Need To Know About Filing With EEOC

EEOC is the United States Equal Employment Opportunity Commission. If you have been the victim of discrimination, this is likely the first step you’ll have to make before filing a lawsuit for discrimination. They’re at http://www.eeoc.gov.

Deadlines: If you work for anyone but the federal government, you have to file a charge of discrimination (this is not a lawsuit) within 180 days from the date of discrimination, except where the state has its own agency that takes discrimination charges. Then the deadline is 300 days. Federal employees have 45 days to see their designated EEO counselor.

            Filing your charge: If you’re represented, your attorney can file the charge for them and you don’t have to wait hours to meet with an investigator and go through the intake process, which can also take an hour or more. EEOC is also doing some intakes by phone and online, so check with your local office.

            Mediation: The EEOC will then either decide to ask the parties if they want to mediate to try to resolve it, or send it straight to the investigator. If they ask you if you want to mediate, you should say yes.

            Investigation: The investigator will send out a standard list of questions to the employer, along with the charge. The employer will answer in what is called a “Position Statement.”  You will then not be given a copy of the position statement, but you still have to respond to it. Some investigators will call your lawyer or you, give a quick summary of a 50 page position statement on the phone, expect the attorney or you to take notes, and then will give 10 days to respond. A nice investigator will agree to summarize the position statement in a letter, and then give 10 days to respond.

            Results: EEOC is, most likely, going to issue a “Notice of Dismissal and Right to Sue.”  This doesn’t mean you don’t have a case. It means EEOC was unable to determine whether or not you have cause for your charge because the evidence is disputed.

The other possibility is a “cause” finding. All you’ll likely get out of this, besides a moral victory, is “conciliation,”  an attempt to get the parties to settle. The other thing you get with a “cause” finding gets is a review by the EEOC’s attorneys. EEOC can bring a lawsuit on behalf of the employee. This almost never happens, so don’t count on it.

Donna’s tips:

a.       You may run into an investigator that will tell you that you don’t have a case. It’s still your right to file there and they have to take the charge if you insist. But they’re right if you’re trying to file for anything other than race, age, sex, national origin, genetic information, disability, religious, color, pregnancy discrimination or retaliation for having objected to one of these.

b.      The EEOC’s mediation program is quite excellent, so I always say yes to it. Many employers and charging parties decline, which is a missed opportunity. If there’s a lawsuit, they have to mediate anyhow, and this is free.

c.       The employer will be given almost infinite extensions in which to respond to your charge, which can cause the EEOC process to drag on about a year (lately, at least in my area, it’s taking around 2 years). You will not be given much more than a one week extension. Whether or not your lawyer or you are hospitalized, dying, on vacation, or kidnapped, the EEOC hates to give charging parties much of an extension to respond to a position statement. The most that is usually granted is 7 – 10 days.