Labor Law

Over-Regulating Overtime? - Podcast

Labor & Employment Law Practice Group Podcast
Tammy D. McCutchen, Elizabeth K. Dorminey June 29, 2016

On May 18, 2016, President Obama and the Secretary of Labor announced new overtime regulations that will increase the number of workers receiving overtime to all those making under $913/week. In doing so, 4.2 million more workers will be eligible for overtime by December 1, 2016. Advocates assert that the new regulation will bring more families closer to a living wage. Businesses argue that the regulations will inflict costs they will not be able to cover without decreasing base salaries or lowering the number of employees. Legislation is pending in the House and Senate that would prevent the Department of Labor from passing the regulation until they have completed “full and complete economic analysis” and worked to “minimize the impact on such employers, before promulgating any substantially similar rule” (H.R. 2016). Business interests are mobilizing to file a complaint as well. Our labor and employment experts discusses the case.


  • Tammy D. McCutchen, Shareholder, Littler Mendelson, PC
  • Elizabeth K. Dorminey, Of Counsel, Wimberly, Lawson, Steckel, Schneider & Stine P.C. 

Disparate Impact: Reducing Innovation in the Workplace? - Event Audio/Video

Fourth Annual Executive Branch Review Conference
Gail Heriot, James P. Scanlan, James Sharf, John S. Irving May 20, 2016

The slogan "Personnel is policy" reflects the principle that hiring the right people is one of the most important things that employers do. An employer with an innovative approach to bringing on board the best people has a critical edge over her competition. But the rise of interpretations of federal employment law that basically give the Equal Employment Opportunity Commission ("EEOC") veto power over nearly any employment decision means that many creative ideas about hiring will be stillborn. Notably, the EEOC interprets federal civil rights law not just to prohibit employers from discriminating on the basis of race, sex, color, national origin, and age, but also on practices that have a "disparate impact" on members of such groups even if the practice is not actually discriminatory.  Because virtually any job qualification has a disparate impact on members of some such group, this interpretation confers extraordinary powers on the EEOC. Disparate impact is widely believed to have led many employers to abandon paper and pencil tests of cognitive ability. More recently, employers have been discouraged from using the Internet to recruit because racial minorities were thought to lack access to the internet relative to members of other racial and ethnic groups. Further, the EEOC also has put pressure on employers to abandon the use of credit and criminal background checks because of their alleged disparate impact on  racial minorities. This panel will discuss how the metastasis of disparate impact has strangled innovative hiring strategies in these areas as well as others and other perverse consequences of disparate impact's growth.

This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.


  • Hon. Gail Heriot, United States Commission on Civil Rights, and Professor of Law, University of San Diego School of Law
  • Mr. James Scanlan, Attorney at Law
  • Mr. James Sharf, Sharf & Associates
  • Moderator: Mr. John Irving, Of Counsel, Kirkland & Ellis

The Mayflower Hotel
Washington, DC

Supreme Court Splits 4-4 on Major Union Case -- Friedrichs v. California Teachers Association - Podcast

Labor & Employment Law Practice Group Podcast
Richard A. Epstein March 29, 2016

On Tuesday, March 29, the U.S. Supreme Court announced a 4-4 decision in Friedrichs v. California Teachers Association. The two questions presented were: (1) Whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. What is the effect of the 4-4 decision? Are there other cases percolating in the circuit courts that might present the same or similar questions to the Court in the near future?


  • Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law

Changes in Markets and Foreign Competitors?

Short Video with Richard Epstein
Richard A. Epstein January 29, 2016

Professor Richard Epstein, Professor of Law at NYU School of Law, continues to give an brief history of unions and collective bargaining -- focusing on changes in markets resulting from globalization and discussing the instance of unions in the Japanese automobile industry.

Labor Unions: History of Unions and Collective Bargaining

Short Video with Richard Epstein
Richard A. Epstein January 29, 2016

Professor Richard Epstein, Professor of Law at NYU School of Law, gives a brief history of unions and collective bargaining - beginning with the New Deal and the industrial age and running through some of the changes in our economy over the last 80 years.