No Protection for Job Applicants Under ADEA, Court Concludes

The 7th U.S. Circuit Court of Appeals, meeting en banc to review an earlier three-judge panel’s decision, has ruled 8-4 that the provisions of the Age Discrimination in Employment Act (ADEA) do not cover job applicants, only those with “status as an employee.”

7th-circuit-says-no-age-discrimination-for-job-applicants

The Dirksen Federal Building in Chicago, seat of the 7th Circuit Court

The Jan. 23 ruling relied on the text of the ADEA — and a dictionary — to reach its conclusion. The relevant text says it is unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee [emphasis added], because of an individual’s age.”

The dictionary was brought out to prove that the word “applicant” does not include “status as an employee” in its definition.

The case being heard was brought by a lawyer named Dale Kleber, who at the age of 58 in 2014 applied for a senior in-house attorney position but was passed over in favor of a 29-year-old applicant, who also possessed the required experience. The district court hearing the case tossed it, but a three-judge panel of the 7th circuit reversed upon review. The recent decision reversed the panel’s determination.

The 7th circuit, seated in Chicago, covers Indiana, Illinois and Wisconsin.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Association Health Plans on the Brink of Extinction

AHPs_challenged_in_court

U.S. District Judge John Bates

A George W. Bush-appointed federal judge seems poised to put the kibosh on the Trump administration’s initiative to widen the use of association health plans (AHPs) by allowing for multi-state and multi-employer AHPs, something not allowed under the Affordable Care Act (ACA, or Obamacare).

This past week in Washington, D.C., U.S. District John Bates heard two hours of arguments about the administration’s plans for AHPs, with the anti-group being led by Blue State attorneys general ranging from California to Kentucky to New York and in between, including the District of Columbia. U.S Justice Department lawyers argued the administration’s side.

When DOJ lawyers argued that the AHP rule, issued by the Department of Labor (DOL), was meant to strengthen the ACA, Judge Bates shot back with the opposite view that the scheme was yet another weapon in the attack on Obamacare. “Isn’t that what this is all about?” he asked the federal lawyers.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Eliminates Electronic Reporting Rule for Large Employers

In a final rule published today in the Federal Register, the Occupational Safety and Health Administration (OSHA) has axed the Obama-era electronic reporting of injury and illness data by employers with 250 or more employees.

Trump-OSHA-axes-electronic-reporting-ruleThe final rule applies only to OSHA Forms 300 and 301. Form 300A must still be filed electronically by all covered employers.

The rule states:

Elimination of the requirement that establishments with 250 or more employees submit information electronically from their OSHA Forms 300 and 301 – a requirement that has not yet been enforced – does not change any employer’s obligation to complete and retain injury and illness records under OSHA’s regulations for recording and reporting occupational injuries and illnesses. The final rule also does not add to or change the recording criteria or definitions for these records.

While the business community is largely on board with the decision to eliminate electronic reporting of the two forms, pro-labor groups are broadly opposed.

The pro-labor element sees the government shutdown as an ally. These groups have expressed concern that, since the reviewing agency — the White House’s Office of Information and Regulatory Affairs (OIRA) — carried out its review on Jan. 18, 2019, the agency may have broken the Antideficiency Law, which prohibits the government from spending if funds have not been appropriated by Congress. Indeed, the same day as the final rule Public Citizen filed suit against the change, but it was not based on a violation of the government shutdown.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Take Me Out to the Ballgame — Just Not at Minimum Wage

Major League Baseball (MLB), which last year got Congress to pass a measure exempting major leaguers from the protections of the Fair Labor Standards Act (FLSA) during the regular season, is now lobbying Arizona legislators for equal protection from the law for spring training ballplayers.

mlb-seeks-exemption-from-FLSAThe federal law — dubbed Save America’s Pastime Act — was buried on page 1,967 of the 2,232-page spending bill Congress approved and President Trump signed this past spring. That bill also exempts MLB from all wage and related lawsuits not only in the present and future, but also from any originating from past events.

The key to the legislation is to exploit the “seasonal employee” exemption of the FLSA. Though it guarantees at least the minimum wage for each week of the regular season, it caps wages at 40 hours per week with no overtime available.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Oracle Shorted Its Workers $400M, DOL Alleges

The Department of Labor (DOL) has revised a lawsuit against Oracle it filed in 2017 to now claim that the tech company underpaid its employees by some $400 million over a four-year period, while at the same time discriminating against females and Asians (who make up the bulk of its workforce). The department began investigating Oracle in 2014.

oracle-sued-for-back-payIn its compliant DOL alleges that Oracle created two “potential pathways” for discrimination: First, it based employee’s initial pay rates on prior salary; second, it channeled these employees into less lucrative career paths.

Oracle, DOL investigators found, largely hires Asian visa-holders, explaining:”This preference for a workforce that is dependent on Oracle for authorization to work in the United States lends itself to suppression of that workforce’s wages.”

The tech giant also destroyed personnel records as its investigators moved forward in discovery process, DOL claims.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Fines Increase Today

The Occupational Safety and Health Administration (OSHA), which is not part of the partial government shutdown, is raising its violation penalties today in accordance with the Civil Penalties Inflation Adjustment Act.

The unfunded Department of the Federal Register was able to publish the new fines yesterday, so that they can go into effect today.

The 2019 maximum penalties are as follows:

  • Other-than-Serious: $13,260
  • Serious: $13,260
  • Repeat : $132,589
  • Willful: $132,589

NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Government Shutdown May Force Delay in EEO-1 Reporting

Nominally due March 31 (though it was delayed in 2018), the Employer Information Report EEO-1 could face delays this year since the team responsible for the portal and the whole reporting process is on furlough while the federal government faces a partial shutdown.

eeoc-report-could-be-delayedThe EEO-1 Report is a compliance survey mandated by federal statute and regulations. The survey requires company employment data to be categorized by race/ethnicity, gender and job category. The online portal is operated by the Equal Employment Opportunity Commission (EEOC), and  is the primary means for filing Standard Form 100.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Ouch! Hotel on Hook for $21.5 Million for Religious Discrimination

A jury has awarded $21.5 million* in damages and front and back pay after finding the plaintiff, a former dishwasher and housekeeper for the Conrad Hotel in Miami, suffered religious discrimination.

eeoc-releases-performance-reportMarie Jean Pierre, a devout member of the Soldiers of Christ Church, told her employer when she started that her religious beliefs required that she not work on Sundays. For a few years, this request was honored. In 2009, however, she resigned when she was informed she would have to work Sundays. The hotel relented and put her back on a Sunday-free schedule, but in 2015 her supervisor put her back on a Sunday schedule and demanded she obtain a letter of explanation from her pastor.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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NLRB Takes Aim at ‘Protected Concerted Activity’ Definition

The National Labor Relations Board (NLRB), now with a 3-1 Republican majority, is seeking to limit the uses of the “protected concerted activity” clause of the National Labor Relations Act (NLRA).

nlrb-protected-concerted-activity-definitionIn a decision rendered Jan. 11, the majority members noted that, through the years, previous boards have “blurred the distinction between protected group action and unprotected individual action.” Further:

The applicable standard [for protected concerted activity] should not sanction an all-but-meaningless inquiry in which concertedness hinges on whether a speaker uses the first-person plural pronoun in the presence of fellow employees and a supervisor. In addition, the protection afforded by the Act to engage in protected concerted activity requires a clear standard that can be relied upon by employees who seek to engage in such activity and by employers who must determine whether particular employee conduct is within or outside the protection of the Act.

According to the decision in Allstate Maintenance, no longer will an individual employee, venting a personal gripe, be able to use the “protected concerted activity” defense just because he airs his complaint in front of other employees and a supervisor. In general, the phrase applies to truly group complaints, the board emphasized.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Judge Blocks Trump Contraceptive Rule Nationwide

After a California judge blocked it in 13 western states, a federal judge in Philadelphia on Monday put the full kibosh on the slated implementation of the Trump administration’s new contraceptive rule for Obamacare, which would allow businesses to opt out of the act’s birth control requirement based on “moral convictions.”

The Affordable Care Act (ACA, or Obamacare), which mandates free birth control as part of any health insurance policy, already made provision for religious groups to opt out of the requirement, but the Trump rule would extend the opt-out privilege to those businesses that found contraception morally objectionable.

U.S. District Judge Wendy Bettlestone ruled that the regulation — slated to go into effect the same day — would deprive up to 127,000 women of their access to no-cost contraceptives, while at the same time shifting the financial burden to the states to fill in the void.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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