Who’s been naughty and who’s been nice in labor and employment law? Here are my picks for 2015. Feel free to add your own in the comments.
The National Labor Relations Board, for being naughty in too many ways to mention. Its rules on employer handbook policies, including confidentiality and social media, are unrealistic and almost impossible for employers to legally follow. And that Browning-Ferris decision on joint employers? Don’t get me started.
Supreme Court Justice Stephen Breyer, joined by Chief Justice Roberts, and Justices Ginsburg, Kagan, and Sotomayor, for not giving employers enough concrete guidance on pregnancy accommodation obligations in the Young v. UPS plurality opinion. (Justice Alito’s concurring opinion was a lot more helpful. Unfortunately, no one else joined him.)
Attorney Phillip J. Dinhofer of Rockville, N.Y. Mr. Dinhofer’s opposing counsel mistakenly tried to schedule an on-site visit on Rosh Hashanah, the Jewish new year holiday. (Opposing counsel’s name was Bailey, so it’s possible was unaware of the holiday, and the date was apparently a mistake anyway.) Rather than call Attorney Bailey and try to work things out, Mr. Dinhofer fired off a nasty letter, accusing him of “ignominious cowardice” and “racism,” prompting Mr. Bailey to ask the court for sanctions. (The judge said no to sanctions, but he did give Mr. Dinhofer a little slapdown.)
The panel of the U.S. Court of Appeals for the Seventh Circuit that reversed summary judgment for International Monetary Systems, Ltd. IMS was required to disclose pending litigation matters (including charges) in its SEC filings. After a couple of filings that did not mention anyone by name, the company received a professional opinion that it should be identifying litigants and charging parties in its SEC filings. It did so, and a woman who had a pending sexual harassment charge against IMS claimed that her identification was retaliatory. A federal district judge in Illinois granted summary judgment to IMS, but the Seventh Circuit panel reversed, saying that a jury should decide whether the company retaliated by identifying the woman by name and saying that it believed the charge had no merit and that the company would “vigorously defend.”
The U.S. Department of Labor, if it issues a final overtime rule (currently expected in mid-summer) that includes a “duties” test. Although the DOL has given signals that it is considering adopting a “duties” test, it should be required to publish the proposed test and allow public comment.
The Occupational Safety and Health Administration, if it decides to publicly post employer incident investigation reports related to serious injuries or illnesses, which could significantly chill employers’ efforts to honestly examine their own practices and workplace conditions.
The Equal Employment Opportunity Commission, for creating a form letter that employers considering reasonable accommodations can use with employees’ health care providers. I don’t always agree with the EEOC (see entry on Ford Motor Company, below), but I love it when government agencies try to help employers to comply with the law.
Supreme Court Justice Scalia, Alito, Breyer, Ginsburg, Kagan, Kennedy, Sotomayor, and Chief Justice Roberts, for finding that a Muslim job applicant cannot be discriminated against just because she wears a hijab that violates her prospective employer’s appearance policy. (Justice Thomas dissented. Naughty!)
The full U.S. Court of Appeals for the Sixth Circuit, for finding that Ford Motor Company could not have accommodated an employee whose irritable bowel syndrome prevented her from working at the office on any kind of a reliable schedule, and who couldn’t do her job very well from home (due to technological issues). The EEOC had sued Ford. (Naughty!) Telecommuting is a wonderful thing, but it doesn’t work in every situation.
The EEOC, again, for issuing some reasonable (proposed) guidance on employer wellness programs and the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. Yes, the guidelines are more strict than the rules that apply under the Affordable Care Act, but they seem to strike a fairly reasonable balance between employees’ medical privacy rights and the strong push in favor of wellness programs.
Mark Zuckerberg of Facebook, for trailblazing and taking two months of paternity leave to be with his wife and baby daughter, Maxima. It’s great to see a wildly successful CEO, who can afford to set a good example for working parents, actually do it. (Marissa Mayer, are you listening?)