This year was kind of meh from an employment law standpoint. But if Tiny Tim could be grateful despite all that he had to go through, then, by golly, I can be grateful for a mediocre year! So, here is what I'm thankful for in 2019:
No. 1: The new overtime regulations could have been worse. Yes, the salary threshold for the Executive, Administrative, and some Professional exemptions under the Fair Labor Standards Act is going to increase significantly come January 1 (from $455 a week to $684 a week), but it would have been a lot worse if President Obama's regulations -- which would have increased the threshold from $455 a week to a whopping $913 a week -- had ever taken effect. (I expressed my gratitude that they didn't in Thanksgiving 2016.)
Speaking of the new overtime regulations, you won't want to miss our latest edition of ConstangyTV's Close-Up on Workplace Law. Host Leigh Tyson interviews Jim Coleman, co-chair of our Wage and Hour Practice Group, about the new regulations and what employers need to do to be ready when the regulations take effect on January 1:
Click here to view the video
No. 2: The Equal Employment Opportunity Commission is trying hard to scrap the EEO-1 compensation reporting requirement. They haven't succeeded yet, but they're working on it, and for that I am grateful. On Wednesday, the EEOC held a public hearing, a good step toward eventually rescinding the requirement. Although a federal judge in Washington, D.C., has ordered the EEOC to continue collecting the data until further notice, the case is on appeal. You go, EEOC!
(Pecan by a knockout!) No. 3: The President's nominees for key positions are finally in place. During the past year, Eugene Scalia became Secretary of Labor, Janet Dhillon became Chair of the EEOC, Sharon Fast Gustafson became General Counsel of the EEOC, and Cheryl Stanton became head of the DOL's Wage and Hour Division. It remains to be seen whether the regulatory landscape will become more hospitable to employers, but the outlook is good.
No. 4: Discrimination charges are down. The EEOC's Fiscal Year 2018 statistics (October 1, 2017-September 30, 2018) showed an overall decline in most charges. In fact, EEOC charges during that Fiscal Year were at the lowest level since 2006. The only categories that had increases were sexual harassment (probably because of #MeToo, which I think is now past its prime) and LGBT discrimination. Probably next spring, the U.S. Supreme Court will decide whether sexual orientation and transgender discrimination are prohibited by Title VII.
No. 5: Bonnie O'Daniel lost her "heterosexual discrimination" case, and her loss was upheld on appeal. Ms. O'Daniel was an HR manager who posted a picture and made a very ugly comment on Facebook about a transgender woman she encountered in a store dressing room. Word of the post got back to Ms. O'Daniel's bosses, she fell out of favor at work, and she was fired after she allegedly took too long to undergo mandatory sensitivity training. She sued the employer, alleging that she was retaliated against for threatening to file a complaint of "heterosexual discrimination." The EEOC, the American Civil Liberties Union, and some LGBT rights organizations filed amicus curiae (friend of the court) briefs, supporting Ms. O'Daniel's position that "heterosexual discrimination" violated Title VII. (There was a method to their madness: they wanted a ruling that discrimination based on sexual orientation -- any sexual orientation -- violated Title VII.) But Ms. O'Daniel lost, and then her loss was upheld on appeal by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit. And then her petition for rehearing by all of the judges on the Fifth Circuit was denied.
No. 6: This guy is not employed by any of our clients. Gross!
No. 7: This employer is not one of our clients. Although we'd certainly have plenty of billable hours defending all the lawsuits from employees . . .
These last three ain't no ways "meh":
No. 8: Our newest blog, California Snapshot! Launched last April, the blog, run by our three California offices -- Los Angeles, Orange County, and San Francisco -- has been a big hit with employers seeking to comply with the laws of this strange and exotic land.
No. 9: My firm. I am very thankful for my firm, and for its support of this blog. I'd like to give special thanks to Neil Wasser and Don Prophete, and to my office head, Kristine Sims; to our excellent Marketing team led by Tori Whitaker, along with Kian Cheng, Stephanie Hendricks, Christine Johnakin, and Rebecca Pugh; and to my awesome assistant, Tina Tucker. I'd also like to thank all of the attorneys who have contributed posts to this blog since Thanksgiving 2018 (in alphabetical order): Jim Coleman, Steve Katz, Ellen Kearns, John MacDonald, Bob Ortbals, David Phippen, Katie Rhoten, Sarah Sepasi, Stephen Stecker, and Susan Bassford Wilson. And even though not blog-related, a huge thank-you to Leigh Tyson, the lovely and talented host of ConstangyTV's Close-Up on Workplace Law, and to the attorneys who've committed their time and expertise to being Executive Editors of our legal bulletins -- Will Krasnow (immigration), David Phippen (labor), and Susan Bassford Wilson (retail industry). I'm also thankful for my fellow Constangy blog editors Cara Crotty (Affirmative Action Alert), Carolyn Sieve (California Snapshot), and Mallory Schneider Ricci and Heidi Wilbur (FOCUS).
No. 10: My family (that grandson of mine is cuter and smarter than ever!), my friends, my clients, and you, dear readers! Thank you all for your support, and I hope you have a very safe and happy Thanksgiving!