On July 1, U.S. Immigration and Customs Enforcement (ICE) initiated a significant new audit initiative by issuing Notices of Inspection (“NOIs”) to 652 businesses, which is more in one day than ICE issued throughout the entire last fiscal year. Continue reading at Littler's Global Immigration Counsel blog.
As we predicted, Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, has announced that he intends to hold a hearing regarding the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, which was issued on June 18. In Gross, the Court held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. An employer does not have to prove that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the Court decided, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.
Although a positive ruling for employers, Miller criticized this decision in a press release, stating: “The Supreme Court’s ruling will make it even more difficult for workers to stand up for their basic rights in the workplace. A narrow majority of the Supreme Court has once again overturned decades of precedent and congressional intent and sided with powerful corporate interests on a workplace discrimination case.” He further warned that “[l]ike with the Lilly Ledbetter case, Congress may be forced to clarify the law’s intent so we can prevent the damage this decision will have on workers’ civil rights.” The Lilly Ledbetter Fair Pay Act – which was signed into law in January – expressly overturned the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. by extending the time period in which employees can assert pay discrimination claims. Therefore, expect the introduction of legislation aiming to amend the ADEA to effectively nullify the Gross opinion, and make it easier for a plaintiff to bring successful disparate impact age discrimination claims against employers.
On Monday, President Obama announced his intent to nominate George H. Cohen to serve as the director of the Federal Mediation and Conciliation Service (FMCS), the independent federal agency charged with, among other things, handling the arbitration and mediation of labor disputes and contract negotiations. If the Employee Free Choice Act passes with its current first contract interest arbitration provisions intact, Cohen presumably would be charged with implementing those provisions as well.
According to biographical information published by the Peggy Browning Fund, a nonprofit corporation dedicated to educating law students and providing work experience in the area of workers' rights, Cohen practiced for 40 years as a well-respected union-side labor lawyer. During this period, he argued five cases before the U.S. Supreme Court involving matters ranging from collective bargaining to workplace safety.
Before being named as Obama’s pick for FMCS Director, Cohen worked as a mediator, and currently is a member of the Mediation Panel of the U.S. Circuit Court of Appeals for the D.C. Circuit. Prior to working in the private sector, Cohen served as an attorney advisor and appellate attorney for the National Labor Relations Board, and – according to the aforementioned bio – is credited with “help[ing] shape the progressive, union and worker friendly agenda of the ‘Kennedy Board.’” Cohen has also served as the Union Co-Chair of the first American Bar Association (ABA) Committee on Sports and Entertainment Law and the first ABA Committee on the Occupational Safety and Health Law. Additionally, Cohen has taught the Art of Collective Bargaining among other labor-related courses as an adjunct professor at Georgetown Law School.
Cohen received his undergraduate and law degrees from Cornell University and its Law School, and an LLM degree from Georgetown Law.
The City of New Haven’s failure to use test results that would have disqualified any African American firefighters from receiving a promotion was discriminatory against the white and Hispanic test takers who received qualifying scores, and was therefore unlawful under Title VII of the Civil Rights Act, according to the U.S. Supreme Court in Ricci v. DeStefano. (pdf) In this closely decided and much-anticipated decision, the Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”
Continue Reading...The following is a summary of the labor- and employment-related regulatory and legislative news for the week of June 21, 2009:
Agency Changes
The Senate confirmed the nomination of Jane Oates to be the assistant secretary of the Department of Labor’s Employment and Training Administration (ETA).
Continue Reading...On Thursday, members of both the House and Senate reintroduced the Federal Oversight, Reform, and Enforcement of the WARN (FOREWARN) Act (H.R. 3042, S. 1374). This legislation would amend the Worker Adjustment and Retraining Notification (WARN) Act by requiring more and smaller employers to notify workers of mass firings or plant closings and increasing employer penalties and enforcement mechanisms.
Continue Reading...By a vote of 29 to 17, the House Committee on Education and Labor on June 24 approved a bill that would mandate certain 401(k) fee disclosure requirements, and require that investment advice provided to employees regarding employer-sponsored retirement plans be independent and free of any conflict of interest. The 401(k) Fair Disclosure and Pension Security Act of 2009 (H.R. 2989) combines provisions of two other bills that were approved by the House Education and Labor’s Subcommittee on Health, Employment, Pensions and Labor on June 17 by votes of 13 to 8 along party lines. Those two bills are the 401(k) Fair Disclosure for Retirement Security Act (H.R. 1984) sponsored by Rep. George Miller (D-CA) and the Conflicted Advice Prohibition Act (H.R. 1988) sponsored by Rep. Robert Andrews (D-NJ).
Continue Reading...Rep. Barney Frank (D-Mass.) has reintroduced the Employment Non-Discrimination Act of 2009 (H.R. 2981), a bill that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. For purposes of this bill, “gender identity” is defined as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” “Sexual orientation” means “homosexuality, heterosexuality, or bisexuality.” The provisions of this bill would impact the private sector as well as local, state and federal government employers.
Continue Reading...On Friday, House Democrats unveiled an 852-page rough draft of a healthcare reform bill prepared by members of the House Ways and Means, Energy and Commerce, and Education and Labor Committees. A copy of the full bill and summaries of its various components can be found here.
Continue Reading...As anticipated, the Senate on Friday confirmed the nomination of Jane Oates as assistant secretary for the Department of Labor’s (DOL) Employment and Training Administration (ETA). The ETA is the DOL’s sub-agency tasked with administering federal government job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits. The Senate approved the nomination by voice vote, as is typical for most nominees once he or she has been approved by the applicable Senate committee. Earlier this month, the Senate Committee on Health, Education, Labor and Pensions sanctioned Oates’s nomination to head the ETA. Oates currently is the executive director of the New Jersey Commission on Higher Education and senior policy advisor to Governor Jon S. Corzine.
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