Labor & Employment Law Practice Group Podcast
On March 24, 2016 the DOL’s Office of Labor-Management Standards (OLMS) issued the so-called “persuader rule” that would greatly inhibit the ability of businesses to rely on labor experts and the ability of employers to obtain legal advice in responding to union organizing campaigns. For nearly 50 years the DOL has recognized that advice, including legal advice, is excluded from reporting under federal labor law. The new persuader rule would have forced lawyers and law firms that counsel a business on most labor relations matters to disclose not only their work with that client, but also all fees and arrangements for all clients for all labor-relations services. Several lawsuits were filed challenging this rule on statutory and First Amendment grounds. On June 27, 2016, a district court in Texas issued a preliminary injunction enjoining DOL from implementing the new rule. The district court then made that preliminary injunction permanent in November 2016, and DOL has appealed to the Fifth Circuit. While DOL’s appeal is pending, on June 12 DOL issued a proposal to rescind the rule.
Christopher C. Murray, a shareholder at Ogletree Deakins, represents some of the business groups in the Texas litigation who sued to stop the “persuader rule” from taking effect. He provided an update on the current state of play with regard to the litigation and proposed rulemaking.
Religious Liberties Practice Group Podcast
- Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
- Moderator: Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
On April 4, 2017, the Seventh Circuit handed down a divided en banc opinion in Hively v. Ivy Tech Community College, opening a circuit split on how to interpret Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on "race, color, religion, sex, or national origin[.]" In Hively, the Seventh Circuit became the first Court of Appeals to hold that sex discrimination encompasses discrimination based on sexual orientation. It held that plaintiff Kimberly Hively could pursue a claim against her former employer, Ivy Tech Community College, for her firing, which she claimed was motivated by her sexual orientation. In doing so, the court opened a split with the Eleventh Circuit, which had held just a few months earlier that employer decisions based on sexual orientation were not discrimination prohibited by Title VII. In addition to paving the way for a potential Supreme Court case to resolve the issue, the Seventh Circuit's decision includes an array of opinions demonstrating different methods of statutory interpretation.
SCOTUScast 3-30-17 featuring Karen Harned
- Kenneth A. Klukowski, General Counsel, American Civil Rights Union
- Prof. Anthony Michael Kreis, Visiting Assistant Professor of Law, Chicago-Kent College of Law
Karen Harned March 30, 2017
On February 21, 2017, the Supreme Court heard oral argument in McLane Co. v. EEOC. Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ochoa was required to take a “physical abilities” test, which she failed three times. Ochoa was fired by McLane but then filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that McLane violated Title VII of the Civil Rights Act of 1964. The EEOC opened up an investigation and issued a subpoena for information McLane withheld, including either “pedigree information” for each test-taker or reasons the test-taker’s employment was terminated. When McLane refused, EEOC filed a subpoena enforcement action. The district court granted enforcement of the subpoena with respect to some information (such as the gender and score of each test taker) but declined to require the production of pedigree information or the reasons why others who had failed the test were terminated. The U.S. Court of Appeals for the Ninth Circuit, reviewing the district court’s decision “de novo,” held that the district court had erred in refusing to compel production of the pedigree information, and also needed to consider whether production of the reasons for other terminations would be unduly burdensome.
The question before the U.S. Supreme Court is whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do.
To discuss the case, we have Karen Harned, who is Executive Director of the National Federation of Independent Business Small Business Legal Center. Labor & Employment Law Practice Group Podcast
Karen Harned February 23, 2017
In McLane v. EEOC the Supreme Court is being asked to resolve a circuit split regarding appellate court standard of review of district court decisions to quash or enforce an EEOC subpoena.
Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ms. Ochoa was required to take a “physical abilities” test, which she failed three times. Subsequently, she was fired and Ms. Oschoa brought a gender discrimination claim against McLane. The district court denied part of one of the subpoenas EEOC issued to McLane. The 9th Circuit reversed, reviewing the district court’s decision to limit the scope of the EEOC subpoena “de novo,” which is contrary to the deferential review eight other appellate courts follow. The Supreme Court has been asked to resolve this circuit court split.
Karen Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, attended oral argument and joined us to provide her impressions of argument, examine the case, and explore potential impacts of the upcoming decision on employers, employees, and the EEOC during this Courthouse Steps Teleforum conference call.
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
Short video on the Sharing Economy
February 09, 2017
The sharing economy is changing the nature of work, yet it doesn’t fit clearly within laws governing labor and employment. In this short documentary, policy experts, lawyers, and sharing economy workers weigh in on the debate over "contractors v. employees" and what kind of protections workers need in this new economy.