Religious dress revisited – is the fuss justified?

“Bosses can ban burkas, scarves, crosses” shouts the front page of last Tuesday’s Metro, followed by a commentary far too short to explain that this is almost always untrue.

This is the resurrection of an old debate concerning the extent of your right to manifest your religion at work through how you dress. When last seen, the European Court of Justice had decided in a Eweida –v- British Airways that it would be religious discrimination to ban an employee from wearing a visible crucifix at work unless there was a good reason for it, for example health and safety. The two cases which led to yesterday’s headline (one of which – spoiler alert – said that bosses couldn’t ban religious dress) were considering slightly separate points. Bougnaoui –v- ADDH considered whether it would be discriminatory for the employer to react to a customer complaint by banning the wearing of a Muslim head scarf, while Achbita –v- G4S asked whether it would still be discriminatory if the employer banned all outward signs of religious or political belief.

Travel Ban Executive Order Update: The Constitutional Tug-of-War Continues

By Gregory A. Wald on March 20, 2017 Posted in Business Immigration, Executive Order, News, Recent Cases

Last week we saw another round in the battle between the Executive and Judiciary branches over the President’s travel ban impacting nationals Syria, Iran, Libya, Somalia, Sudan, and Yemen. Federal District Courts in Hawaii (State of Hawaii v. Trump) and Maryland (International Refugee Assistance Project (“IRAP”) v. Trump) stayed the implementation of the revised Travel/Refugee Ban Executive Order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (EO2). The U.S. District Court for the District of Hawaii issued a temporary restraining order (TRO) enjoining the government, nationwide, from enforcing or implementing Section 2 (90-day travel ban impacting nationals of the 6 countries) and Section 6 (the 120-day suspension of the U.S. refugee program). Concurrently, the U.S. District Court for the District of Maryland issued an injunction barring enforcement, nationwide, of Section 2(c) (90-day travel ban impacting nationals of the 6 countries) of the EO2. Both decisions indicated that the revised EO2 did not include “constitutionally significant” changes from the first EO and the Plaintiffs are likely to prevail on their claims that portions of the EO2 violated the Establishment Clause of the First Amendment of the United States Constitution.

Long Live Grammar Nerds

By Traci Martinez and Jill Kirila on March 20, 2017 Posted in Class Action, Recent Cases, Wage and Hour

A federal appeals court ruling in a case coming out of Maine involving overtime pay and dairy delivery drivers didn’t come down to trucks, milk, or money. Instead, it revolved around one of the biggest debates in the “grammar nerd” world – the “Oxford comma.” Do you remember the Oxford comma from your grammar school days? It is used before the words “and” or “or” in a list of three or more things. Also known as the serial comma, its advocates say it clarifies sentences in which things are listed. Although not all writers or publishers use it, it can make the meaning of a sentence clearer. Nonetheless, the debate over its use is usually pretty inconsequential. So how did it play center stage in a recent class action lawsuit by dairy truck drivers in Maine?

Maine’s wage payment laws say employees engaged in the following activities are not eligible to receive overtime pay: “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.” The drivers argued that the lack of a comma between “shipment” and “or distribution” meant the legislation applied only to the single activity of “packing,” rather than to “packing” and “distribution” as two separate activities. And because the drivers distribute the goods, but do not pack them, they argued they were therefore eligible for several years of unpaid overtime pay.

On March 13, 2017, the First Circuit Court of Appeals agreed, finding the language to be grammatically ambiguous. Because of that lack of clarity, the drivers won their appeal and were held to be eligible for overtime pay. The court observed that labor laws, when ambiguous, are designed to benefit the laborers. “For want of a comma, we have this case,” the court wrote. David Webbert, the lawyer who represents the drivers, declined to take a personal position on the use of the Oxford comma. But he did state, “if there is any doubt, tear up what you wrote and start over.”

They think it’s all over for holiday pay disputes – is it now?

By David Whincup on March 20, 2017 Posted in Holidays, Recent Cases, Working Time

Two weeks ago, the Supreme Court refused British Gas consent to appeal the Lock holiday pay case any further, finally putting an end to the five year saga of whether an element in respect of commission should have been included in Mr Lock’s holiday pay. Mr Lock himself has long lost interest and left British Gas ages ago, but the issue has sailed on regardless, the length and route of its journey unknown but its destination (a compensation ruling in the Leicester Employment Tribunal) pretty much inevitable.

DOL Funding Slashed by 21 Percent Under President’s Proposed Budget

By Lew Clark on March 17, 2017 Posted in Administration, Department of Labor, General

President Trump released his initial budget outline March 16, 2017. It includes $9.6 billion for the Department of Labor (DOL), a reduction of $2.5 billion from its 2017 funding level.

The impact of a cut of more than 20% of the DOL’s budget will necessarily mean that the agency will have to change its focus. What will get pared down or even eliminated as a consequence of this budget cut (if approved) is unclear, although it is likely that the agency’s rulemaking and enforcement efforts will likely take a hit. The administration wants to reduce jobless benefits costs, eliminate the Bureau of International Labor Affairs’ grant funding, and close at least some Job Corps centers. The White House also said it would scrap certain “ineffective, duplicative, and peripheral” DOL job-training grants.

The White House Office of Management and Budget proposal lists several DOL grant programs targeted for cuts, but otherwise says little about how the President plans to cut back the agency charged with administering many of the nation’s labor laws. In the absence of specifics, one question is whether in addition to program cuts, will the agency’s staff also be cut, and if so, by how many employees? The plan at this time is vague on details about specific sub-agencies, which is an indication that the White House may be waiting for advice from a confirmed labor secretary. The confirmation hearing for President Trump labor nominee Alexander Acosta, which was set for March 15, 2017, was pushed back a week because the chairman of the committee overseeing his confirmation was traveling with the President to a rally in Nashville on that date. Mr. Acosta will now appear before the committee on March 22, 2017.

EEOC Pilots New Online Inquiry and Intake Program in Five Major US Cities

By Laura Lawless on March 15, 2017 Posted in Discrimination, EEOC, Harassment, Retaliation

On March 13, 2017, the EEOC launched a new Online Inquiry and Intake System, making it easier for employees to seek assistance from the agency regarding claims of workplace discrimination, harassment, and retaliation. The new system is available to individuals who live within one hundred miles of the EEOC’s offices in Charlotte, Chicago, New Orleans, Phoenix and Seattle. Individuals in these locations can access the system through the EEOC’s Internet “public portal.” Users will answer a few short questions, and then may register with the EEOC, file an online inquiry, and schedule an in-person or telephonic intake interview through the system, which are first steps in filing a charge of discrimination with the EEOC.

Annoucing the new online system, the EEOC’s acting chair, Victoria Lipnic, lauded it as a way to make the EEOC’s services more accessible to the public. The online system also may serve as a front-line screening tool, reducing the number of inquiries handled directly by EEOC personnel. The EEOC reported that it receives approximately 200,000 inquiries about discrimination, but less than 50% of these inquiries result in formal EEOC charges. Many of these inquiries, which are traditionally handled by EEOC personnel telephonically or in-person, relate to an individual’s concerns that are not within the EEOC’s jurisdiction and thus cannot be addressed by the EEOC. Because the new online system provides basic feedback about whether the EEOC is the correct agency to assist an individual, many who access the online system will likely not require further assistance from EEOC personnel. If the online tool determines the EEOC is not the proper agency to address their concerns, the portal will recommend other agencies that might be able to help.

If the system is successful in the five pilot cities, the EEOC indicates it anticipates a national roll-out later this year. This continues the EEOC’s trend toward increasing its online presence and internet-based services. As you may recall, last year, the EEOC introduced an online charge status portal, through which employees and employers can check on the status of pending charges.

New HMRC IR35 status tool reviewed

By Patrick Ford on March 13, 2017 Posted in Employment, News, Tax

Last week HMRC launched an online tool to help decide whether an individual is employed or self-employed for tax purposes (not whether he is a “worker” for employment status purposes, which is a separate question which HMRC isn’t bothered about). The tool is here online tool. You answer some questions, turn a metaphorical handle and out comes a view (NB, not a decision – see below). I have had a look, so here is what I think:

The tool is simplistic as would be expected, but it is just about usable. I think the main difficulty will come where the answer to one or more questions is not completely clear cut – it will then be difficult to know whether the result can be relied upon. I suppose the advice could be to err on the side of caution when answering the questions, particularly if the result still comes up “self-employment”.

Ninth Circuit Expands Reach of Dodd-Frank Anti-Retaliation Protections

By Michael Kelly and Jill Kirila on March 9, 2017 Posted in Recent Cases, Retaliation, Whistleblowing

Adding to an existing split among the federal appeals courts, the US Court of Appeals for the Ninth Circuit ruled on March 8, 2017 that employees who make internal reports about suspected violations of the federal securities laws and other anti-fraud statutes are covered by the “whistleblower” protections of the Dodd-Frank Act (Dodd-Frank), even if they never report the suspected violations to the Securities and Exchange Commission (SEC or Commission). Somers v. Digital Realty Trust, 2017 U.S. App. LEXIS 4079 (9th Cir. 2017). The Ninth Circuit decision reinforces the importance of proceeding carefully before taking any adverse action against an employee who has made an internal complaint that might trigger Dodd-Frank’s protections.

Federal District Court Order Suggests It May Put Out To Pasture California’s Law Preventing Internet Publication of Hollywood Actors’ Ages

By Daniel Pasternak on March 8, 2017 Posted in Age Discrimination, California, Recent Cases

In a recent decision, United States District Court Judge Vince Chhabria issued a preliminary injunction, temporarily suspending AB 1687, a California law requiring certain online entertainment websites to remove ages of Hollywood actors, upon request by those individuals. The law’s stated purpose is to prevent age discrimination in the entertainment industry. IMDb.com, Inc., owned by Amazon, filed suit against the California Attorney General, arguing that AB 1687 inhibits its First Amendment rights (US District Court Case No. 16-cv-06535-VC). In his February 22, 2017 Order Granting Motion For Preliminary Injunction, Judge Chhabria stated that it was “difficult to imagine how AB 1687 could not violate the First Amendment.” Judge Chhabria further indicated that the law, which prevents IMDb “from publishing factual information … on its website for public consumption,” was likely an unlawful restriction of non-commercial speech.

Lobbyists for the law included the Screen Actors Guild-American Federation of Television and Radio Artists (“SAG-AFTRA”), which has also intervened into IMDb’s lawsuit, to defend the law. SAG-AFTRA argues that age discrimination in Hollywood has long been a problem, and that casting directors frequently rely on internet sites like IMDb Pro, a paid subscription website where actors can upload resumes and other information, when making casting decisions. IMDb Pro and its free sister website, IMDb.com, display a variety of content about Hollywood actors, including their dates of birth and ages. Proponents of AB 1687 argue that preventing the disclosure of this information on these websites will limit its availability, and therefore, reduce the likelihood that age will be considered in hiring decisions. However, Judge Chhabria found that the State of California “presented nothing to suggest” that the law would actually prevent age discrimination in Hollywood. The Court further held that other methods, such as stronger enforcement of existing anti-discrimination laws, would be more effective to combat age discrimination in Hollywood than AB 1687, and would also be less restrictive of United States Constitutional First Amendment rights.

Entities such as First Amendment Scholars and Legal Organizations and The First Amendment Coalition have filed briefs in support of IMDb’s First Amendment argument. With the Court’s ruling that IMDb is “likely to succeed on the merits” of its case, the future of AB 1687, is at the very least, uncertain. At this point, the law remains on hold pending a final determination by the Court on the merits of the lawsuit.

If at First You Don’t Succeed: New Executive Order Replaces January Travel Ban

By Samuel Mudrick on March 7, 2017 Posted in Business Immigration

On March 5, 2017, the White House issued a revised Executive Order (New EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The New EO revokes and replaces the President’s prior EO of the same name, which which was issued on January 27, 2017 (January 27 EO) to significant consternation and confusion and remains stayed by court order.

Essentially, the New EO is a do-over, a mulligan, the adult version of the haphazard January 27 EO, which is now officially revoked. The New EO is a scaled back version of the January 27 EO and seeks to avoid the various constitutional and logistical issues that plagued its predecessor. The New EO still contains toned-down versions of the two major components of the original ban: (1) a multi-country visa issuance and travel ban and (2) the temporary halting of the refugee resettlement program.