EU cases to retain role in UK employment law after Brexit, says new White Paper

Just in case you haven’t seen this from the new White Paper on the Great Repeal Bill (where have you been?), here are a few paragraphs on the intended post-Brexit influence of the European Court of Justice (CJEU) on English employment law:

2.12 The Government has been clear that in leaving the EU we will bring an end to the jurisdiction of the CJEU in the UK. Once we have left the EU, the UK Parliament (and, as appropriate, the devolved legislatures) will be free to pass its own legislation.

2.13 The Great Repeal Bill will not provide any role for the CJEU in the interpretation of that new law, and the Bill will not require the domestic courts to consider the CJEU’s jurisprudence. In that way, the Bill allows the UK to take control of its own laws. We will, of course, continue to honour our international commitments and follow international law.

U.S. Appellate Court Declares That Title VII Prohibits Employment Discrimination Based On Sexual Orientation

By Laura Lawless on April 7, 2017 Posted in Discrimination, EEOC, Employment Policies, Harassment, Legislation, Recent Cases, Sex Discrimination, Sexual Orientation

On April 4, 2017, the United States Court of Appeals for the Seventh Circuit became the first federal appellate court to hold that discrimination on the basis of sexual orientation is a prohibited form of sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). And it did so in no uncertain terms. This en banc decision – a decision made by the entire active bench of Seventh Circuit judges – was the Court’s second time hearing the Hively v. Ivy Tech Community College case. In its initial run at the matter, the Seventh Circuit, by a panel of three judges, expressed that it was bound by the Circuit’s prior precedent that sexual orientation discrimination was not prohibited under Title VII. In its opinion, the panel questioned the ongoing validity of that precedent, but noted that only the full court had the authority to overrule its past decisions. Responding to this seeming invitation, Plaintiff Hively moved the appellate court to rehear the matter en banc, and the Court agreed to do so.

Time to collect your thoughts on gender pay reporting

By Janette Lucas on April 7, 2017 Posted in Discrimination, Equal Pay, Equality, Legislation

So the “new look” 5^th April, how was it for you….?

Did you spend the day on “hold” as you scrabbled to use up your remaining ISA allowance? Were you locked in a room with your payroll provider getting all hot and bothered, or are you saving that for later in the month? Or are you enjoying the spring sunshine, wondering what on earth I am talking about?

As of yesterday, of course, 5 April is no longer a “big day” simply by virtue of being the last day in the tax year. It is now also the annual “snapshot date” for the purposes of the new Gender Pay Gap Reporting obligations. From now on, UK employers having 250 or more employees will have to capture their payroll data for the payroll that includes 5 April each year and then both calculate and report on their gender pay gap statistics. The question is, are you ready?

Treading the thin line between incompetence and discrimination

By David Whincup on April 6, 2017 Posted in Litigation, Race discrimination, Recent Cases

In a boost to the cause of inept line management everywhere, the Employment Appeal Tribunal held last month that it is not permissible to extrapolate without more from conduct which is unreasonable, incompetent and lackadaisical to that which is discriminatory.

The point is not wholly new. Back in 1998 the then House of Lords heard argument on behalf of a Mr Zafar that his treatment at the hands of employer Glasgow City Council had been so grim that it could be no longer a matter of mere ineptitude – to get things wrong on such a sustained and concerted basis, said Mr Zafar, the Council would really have to be putting its back into it, and the only reason for doing so that he could see was his race. The Employment Tribunal had found no evidence that any of the comprehensive procedural Horlicks which the Council had made of the disciplinary process was motivated by Mr Zafar’s race, but nonetheless found that because the Council had been unable to explain the mess on any other grounds, it was obliged to infer racial motives into his dismissal. The Lords disagreed – to shift onto the employer the requirement to explain even the most grievously mishandled termination process there still had to be something, almost however small, to justify the conclusion that it could have been discriminatory. A very bad day for the Council witnesses (“Racially-motivated or olympically incompetent? Do take your time”), but ultimately “acquitted” on the not very attractive but presumably very common grounds that some incompetence is just incompetence and not the manifestation of conscious or unconscious bias.

Supreme Court Says Appellate Courts Must Defer To District Court Decisions Regarding Enforceability of EEOC Subpoenas

By Lew Clark on April 4, 2017 Posted in EEOC, Recent Cases

Title VII of the Civil Rights Act of 1964 (Title VII) bestows upon the Equal Employment Opportunity Commission (EEOC) the right to subpoena records from employers against whom formal charges of discrimination have been filed; the EEOC also can subpoena employer representatives for interviews. The purpose of this subpoena power is to allow the EEOC to determine the validity of charge allegations. The scope of this subpoena power is broad – according to EEOC v. Shell Oil, a 1984 United States Supreme Court decision, the EEOC can subpoena “virtually any material that might cast light on the allegations against the employer.” If an employer fails or elects not to comply with the subpoena, the EEOC can seek an order from a United States District Court enforcing the subpoena. The District Court must apply the “generous” relevance test. If the requested information sought is determined to be relevant, the District Court only can quash the subpoena if it is determined to be “too indefinite,” issued for an “illegitimate purpose,” or is “unduly burdensome.”

NLRB Will Not Hack Into Prior Decision Regarding Employee Email Use During Non-Work Time

By Daniel Pasternak on April 2, 2017 Posted in Employment Policies, NLRB, Recent Cases, Working Time

Network security and protection of confidential information are among the reasons many companies place limits on how and when employees may use company-provided email. However, the National Labor Relations Board (NLRB or Board) has largely ignored if not outright rejected these legitimate concerns, finding that under certain circumstances, they are outweighed by employees’ right to use email as a means to engage in concerted activity protected by Section 7 of the National Labor Relations Act (NLRA), which includes union organizing. The NLRB’s March 24, 2017 decision in Purple Communications, Inc. reconfirmed the Board’s position, first announced in an earlier 2014 decision, that an employer that provides its employees with access to company email systems must presumptively allow employees to use those systems during non-work time to engage in NLRA-protected activity. Accordingly, under this standard, an employer who maintains a policy prohibiting employees from all use of company email during non-work time presumptively violates the NLRA.

Federal Appeals Court Decision Regarding NLRB Workplace Investigation Confidentiality Policies Fails To Answer Critical Question For Employers

By Daniel Pasternak on March 28, 2017 Posted in Confidentiality, NLRB, Recent Cases, Workplace Investigations

In 2015, we reported to you about the National Labor Relations Board’s (NLRB) decision in the Banner Estrella Medical Center case, which placed significant limits on employers’ ability to request employee confidentiality during workplace investigations. As a reminder, in the Banner case, the NLRB found that Banner Estrella maintained a policy of instructing employees involved in workplace investigations to maintain confidentiality of the investigation. The NLRB further held that this type of blanket policy, or an otherwise universal instruction to employees, to keep workplace investigations confidential, violates Section 7 of the National Labor Relations Act (NLRA), which protects employees’ rights to discuss the terms and conditions of their employment with fellow employees. The NLRB stated that confidentiality instructions during investigations are only valid under the NLRA if, in each particular instance, the instruction is supported by facts showing a legitimate need for confidentiality, established on a case-by-case basis. The NLRB also found that the hospital’s employee confidentiality agreement, which expressly prohibited employees from discussing “private employee information” including information regarding employee pay and disciplinary action, violated Section 7. Following the 2015 decision, Banner Estrella sought review before the United States Circuit Court of Appeals for the District of Columbia, and the NLRB cross-applied for enforcement of its order. The D.C. Circuit issued its decision in this matter on Friday, March 24, 2017.

President Trump Strikes Down Federal Contractor Blacklisting Rule

By Squire Patton Boggs on March 28, 2017 Posted in Administration, Federal Contractors, News

As anticipated, on March 27, 2017, President Trump repealed the so-called “blacklisting” rule that required federal contractors to disclose labor violations when bidding on new or renewed government contracts worth at least $500,000 (we reported on this topic on March 7). The President struck down the blacklisting rule, along with three other regulations aimed at protecting the environment and students, Monday afternoon during a White House signing ceremony.

“The rule simply made it too easy for trial lawyers to go after American companies and American workers who contract with the federal government,” White House press secretary Sean Spicer said.

Dismissing for long-term sickness – when is enough enough?

By David Whincup on March 22, 2017 Posted in Disability Discrimination, Recent Cases, Sickness, Unfair dismissal

Legally-speaking O’Brien – v – Bolton St Catherine’s Academy as reported last week is mostly about how much overlap there is between fairness for unfair dismissal purposes and justification in disability discrimination terms (in brief, very substantial). It is also a fine illustration of how hard it is to overturn an Employment Tribunal judgement on appeal – both the EAT and the Court of Appeal agree that as a matter of good practice and common sense the wrong outcome was reached at the ET, but as they could not show that its decision was legally wrong as opposed to just ordinarily wrong, that outcome could not be disturbed. Most importantly for present purposes, however, O’Brien also contains a number of potential pointers for employers considering a dismissal on grounds of long-term sickness.

In outline, Ms O’Brien was a Head of Department at the Academy. She was assaulted by a pupil there, became ill largely because of her perception that she was not adequately supported by the Academy afterwards and went off sick. The Employment Tribunal found that, for whatever reason, both she and her GP had been much less helpful than her employer had a right to expect in relation to evidencing the nature of her illness and the prognosis for a successful return. Some 17 months after she went off, with no sign of any return on the horizon, Ms O’Brien was dismissed on sickness grounds.

Supreme Court Reins in Administrative Overreaching of NLRB

By Daniel Pasternak on March 21, 2017 Posted in Administration, News, NLRB, Recent Cases

On March 21, the U.S. Supreme Court ruled that one-time acting National Labor Relations Board (NLRB) General Counsel Lafe Solomon improperly served as the agency’s Acting General Counsel while he awaited U.S. Senate confirmation to a permanent appointment, upholding a U.S. Court of Appeals for the D.C. Circuit ruling that most of his three-year tenure violated the Federal Vacancies Reform Act (FVRA). Congress passed the FVRA in 1998 to tighten control over the presidential appointments process. The FVRA requires the executive branch departments and agencies to report to Congress and Government Accountability Office (GAO) information about the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation.

A career NLRB attorney, Lafe Solomon was named the NLRB’s Acting General Counsel on June 21, 2010 by President Obama after Ronald Meisburg’s resignation in June 2010. Six months into Solomon’s service, in January 2011, Obama nominated him to be the agency’s General Counsel on a permanent basis. Solomon’s nomination was returned by the Senate, and Obama later nominated Richard Griffin, who was confirmed in the fall of 2013. But, in the interim, Solomon ended up serving more than three years as the labor board’s chief prosecutor, issuing complaints and litigating unfair labor practice claims against employers (and occasionally unions).