POTUS Appointment Power Limited by U.S. Supreme Court

By: Petra Person

On Tuesday, March 21, 2017, the Supreme Court, in a six to two ruling, restricted the president’s power to temporarily fill vacant government positions while the nominations are conflicted in partisan political fights.[1] Chief Justice, John Roberts, authored the decision, mandating that any individual who has been nominated to permanently fill a vacant Presidential Appointment Needing Senate Approval (“PAS”) post, which may only be filled by someone who is nominated by the president and confirmed by the Senate, cannot perform the duties of that office in an acting capacity, absent very narrow circumstances.[2] The matter involved the position of the National Labor Relations Act’s (“NLRB”) general counsel, which is considered a PAS post; this position that may only be filled by someone nominated by the president and confirmed by the Senate.[3]

President Obama appointed Lafe Solomon as NLRB acting general counsel in June 2010, and Solomon held the office until November 4, 2013, though he never secured Senate confirmation because Republicans viewed him as too favorable to labor unions.[4] In January 2011, six months into his service, President Obama nominated NLRBs “one-time acting” Solomon to permanently fill the position.[5] However, the Senate failed to act on the nomination, and Obama later nominated Richard Griffin, who was confirmed in the fall of 2013.[6] The Supreme Court held that Solomon’s tenure as NLRB General Counsel served as a violation of the 1998 Federal Vacancies Reform Act.[7] The Federal Vacancies Reform Act provides that an individual nominated for a position requiring Senate confirmation cannot serve in the same position on a temporary basis.[8] But the statute also contains an exception if the nominee served for ninety days as a “first assistant” to the individual who previously held the position.[9]

The Obama administration argued that the exception covered Solomon, because he had been a director at a different office within the NLRB.[10] Justice Roberts claimed that a close reading of the statutory text indicated the exception did not cover Solomon’s situation.[11] Roberts explained, “This does not mean that the duties of general counsel to the NLRB needed to go unperformed… The president could have appointed another person to serve as the acting officer in Solomon’s place.”[12] He refused the government’s position that a ruling against it would hinder future presidents, and call into question dozens of temporary appointments made in the past.[13] Justice Roberts did not explain further what the impact of the court’s ruling would be on specific decisions made by Solomon or any other official who might have served improperly in an acting role.[14] The appeals court, clarified that it did not expect its decision “to retroactively undermine a host of NLRB decisions.”[15]

[1] Vin Gurrieri, High Court Sets Limits on Presidential Appointment Power, Law 360 (Mar. 21, 2017), https://www.law360.com/employment/articles/904356/high-court-sets-limits-on-presidential-appointment-power.

[2] The Associated Press, High Court Limits President’s Power to Fill Temporary Posts, Nytimes (Mar. 21, 2017), https://www.nytimes.com/aponline/2017/03/21/us/politics/ap-us-supreme-court-presidential-appointments.html.

[3] Id.

[4] Id.

[5] Id.

[6] Mark Theodore, DC Circuit: NLRB Acting General Counsel Solomon’s Tenure Violated Vacancy Statute, Unfair Labor Practice Complaint Unauthorized, Proskauer (Aug. 12, 2015), http://www.laborrelationsupdate.com/uncategorized/dc-circuit-nlrb-acting-general-counsel-solomons-tenure-violated-vacancy-statute-unfair-labor-practice-complaint-unauthorized/.

[7] Id.

[8] 5 U.S. Code § 3345 (a).

[9] Id.

[10] See Gurrieri, supra note 1.

[11] See Associated Press, supra note 2.

[12] Dan McCue, High Court Limits President’s Power to Fill Temporary Posts, Courthouse News Service (Mar. 21, 2017), http://www.courthousenews.com/high-court-limits-presidents-power-fill-temporary-posts/.

[13] Id.

[14] Id.

[15] Id.

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Are You Being Watched?

By: Julia Szaniawska

Gone are the days where you watch your boss leave and you take a short break, walk around, go to the bathroom, or visit a co-worker, without your employer finding out about it. Recent technology, that generate heat maps or tap into air conditioning systems, track movement throughout the office, collecting every bit of information regarding employees and their whereabouts. [1] Companies such as OccupEye, Humanyze, and Enlightened advertise that they are “intended to reduce energy costs, ensuring that empty cubicles [aren’t] overheated or over-air-conditioned,” all while these devices are able to track conference room usage, employee locations, and frequency of conversations.[2] These sensors are hidden in cameras, light fixtures, ID badges, and under desks.[3] The goal is to increase office efficiency, maximize space, and improve lighting.[4] Companies have seen increases in savings of energy costs after implementing these sensor-based systems, but doesn’t it seem a bit invasive?[5]

Employees have mixed feelings about these tracking devices. [6] Enlightened keeps their data anonymous, and employees seem to be fine with this.[7] However, when the journalists at Telegraph found trackers under their desks from OccupEye, they were very suspicious about the employers’ intensions, and the company eventually had them removed.[8] Humanyze, on the other hand, places trackers in worker’s badges to monitor their physical and verbal usage.[9] The company claims the data they collect is anonymous and will not be used to evaluate worker performance,[10] but rather be used to determine the office design’s effect on employee communication.[11]

At a Finnish company, Futurice employees developed a similar system using Wi-Fi beacon triangulation, in which employees can opt-in and download an app to participate.[12] They attached small wireless sensors, which send radio signals from a location or object, allowing cellphones that download the app to receive and interpret where certain employees are.[13]

Sure we have been monitored by our workplace computers for the past two decades, but this kind of location monitoring is a more recent and advanced issue.[14] These tracking devices can provide location and interaction information to your employer or fellow co-workers, raising many concerns.[15] How can these companies ensure that a fellow co-worker won’t use the information against you? As in Futurice, they can offer an opt-in opportunity or provide that the employer notifies the employees of their system installation.[16] In the U.S., business are able to act as “Big Brother,” and keep tabs on their employees everywhere except the bathroom.[17] As for case law, currently there is none, as this is recent technology that has become available to the public, but we can be sure to expect some soon. Privacy online has been a “stumbling block for a long time,” and still remains a hot topic in the legal world.[18]

[1] Rebecca Greenfield, New Office Sensors Know When You Leave Your Desk, Bloomberg (Feb. 14, 2017, 7:30 AM), https://www.bloomberg.com/news/articles/2017-02-14/new-office-sensors-know-when-you-leave-your-desk?cmpid=socialflow-twitter-business&utm_content=business&utm_campaign=socialflow-organic&utm_source=twitter&utm_medium=social; Debra Cassens Weiss, Your employer may be using sensors to track your location at work, ABA Blueprint (Feb. 15, 2017), http://www.abajournal.com/news/article/office_sensors_are_being_used_to_track_employee_locations_and_interactions.

[2] Greenfield, supra note 1.

[3] Id.

[4] Id.

[5] Gene Marks, These office sensors can track employees wherever they go, The Washington Post (Feb. 15, 2017), https://www.washingtonpost.com/news/on-small-business/wp/2017/02/15/these-office-sensors-can-track-employees-wherever-they-go/?utm_term=.73e6685f549c.

[6] Greenfield, supra note 1.

[7] Id.

[8] Claire Zillman, Here’s Yet Another Way Your Boss Can Spy on You, Fortune (Jan. 13, 2016), http://fortune.com/2016/01/13/employee-surveillance-motion-sensors/.

[9] Greenfield, supra note 1.

[10] Id.

[11] Id.

[12] Claire Burke, In offices of the future, sensors may track your every move- even in the bathroom, The Guardian (Sept. 15, 2016, 2:00 PM), https://www.theguardian.com/careers/2016/sep/15/in-offices-of-the-future-sensors-may-track-your-every-move-even-in-the-bathroom.

[13] Id.

[14] Zillman, supra note 7.

[15] Greenfield, supra note 1.

[16] Id.

[17] Id.

[18] Vivian Giang, Companies Are Putting Sensors On Employees To Track Their Every Move, Business Insider (Mar. 14, 2013, 6:23 PM), http://www.businessinsider.com/tracking-employees-with-productivity-sensors-2013-3.

Review and Repeal: How Trump’s Use of the Congressional Review Act Could Spell Trouble for Employees

By: Sydney Spinner

Back in November, my earlier blog post posed the question: “Where does the country stand under a Trump Presidency, when blue-collar workers are one of the key constituencies that propelled Trump into the White House, but as a businessman, his practices are often anti-union, pro-employer, and with little regard for the plight of workers?”[1] Well, with the recent forty nine to forth eight Senate vote to apply the Congressional Review Act (“CRA”) to strike down Obama’s Fair Pay and Safe Workplaces executive order, President Trump will have his chance to pick a side.[2] Trump faces a taxing choice: does he go with what his party wants,[3] or with the working-class voters who elected him?[4]

The Congressional Review Act gives Congress sixty days to repeal regulations issued by the Obama administration, with just a simple majority.[5] As part of the “Contract with America,” Newt Gingrich promoted the CRA, which Clinton signed into effect in 1996.[6] It was supposed to allow Congress to nullify regulations in “certain very limited circumstances,” and up until now, had only been used once by George W. Bush.[7] On February 14^th, House Speaker Paul Ryan, R-WI, tweeted that “@POTUS just signed into law the first of many Congressional Review Act bills to help our economy.”[8] He emphasized that CRA legislations would “provide[] relief for Americans hurt by regulations rushed through at the last minute by the Obama administration,” and will result in “jump-starting our economy,” creating jobs, and helping businesses thrive.[9]

If the President signs the CRA resolution, he is choosing a side, and not the side of the worker.[10] This resolution would nullify the “blacklisting rule,” which “requires federal contractors and subcontractors bidding on any federal contract worth more than $500,000. . . to disclose ‘violations’ of labor laws that had occurred in the three years leading up to the contract bid . . . .”[11] The original executive order was “aimed to protect contractor employees from wage theft and unsafe working conditions . . . .”[12] While labor unions are in favor of these rules, “[t]he American Federation of State, County and Municipal Employees . . . said the regulation would prevent lawbreaking companies from winning contracts funded by taxpayer dollars;” business groups are harsh critics who label them the “blacklisting” regulations, and claim they are unduly burdensome.[13] Senator Chuck Schumer, D-NY, implored Trump to stand up for the employees when he said, “[y]ou are not going to get away with constantly saying you’re in favor of working people, but signing legislation that hurts them.”[14]

The Democrats emphasize that it is a compliance measure, not a punishment, and the goal of the rule is to keep the government from employing companies who mistreat their workers.[15] The Obama administration explained that the rules “would focus only on the most egregious violations, and that companies with serious, repeated, willful violations would be the ones that could be barred from the future bidding.”[16] Senator Richard Blumenthal, D-CT, said: “We must do everything possible to defend American workers. . . [i]t’s not about blackballing or blacklisting companies but creating a level playing field for all contractors.”[17]

The Republicans stand in stark opposition on the issue.[18] Senator Ron Johnson, R-WI, said: the “blacklisting” rule, “has the very real potential of subjecting perfectly innocent contractors to blackmail and extortion tactics during union contract negotiations.”[19] It would come with an astonishing $398 million per year price tag.[20] Senate Majority Leader Mitch McConnell, R-KY, said, “Apparently the last administration thought it would be a good idea to prevent American jobs, raise prices, and depress wages and lower opportunities, and yet the administration went on a regulatory rampage at a time when we should have been looking to do the opposite.[21]

Since the Republicans have control of both the House and the Senate, and the CRA allows for a simple majority, this is just one of many regulations on the chopping block.[22] This is the first time in his Presidency that Trump will have to choose between labor and big business, and all the evidence points toward an anti-employee decision.[23] Repealing the Fair Pay and Safe Workplace’s executive order would be a devastating blow to employees, and could even put them in danger, since unsafe working condition violations can result in injuries.[24] As my earlier blog predicted in November, all the campaign promises that got him into office will put him in a predicament for which side to choose.[25] Will Trump stick up for the unions, the blue-collar workers, the little guys, or will he do what he has historically done, and favors his big business pals?

 

[1] Sydney Spinner, Playing the Trump Card: How Unions Fare Under President-Elect Trump, LEJER (Nov. 22, 2016), https://thelejer.wordpress.com/page/3.

[2] Eric Morath & Natalie Andrews, Senate Votes to Overturn Obama-Era Workplace Rule, Wall St. J.: Politics (Mar. 6, 2017, 8:26 PM), https://www.wsj.com/articles/senate-votes-to-overturn-obama-era-workplace-rule-1488849989?mod=e2fb.

[3] Tim Devaney, Senate votes to strike down ‘blacklisting rule’, The Hill (Mar. 6, 2017, 6:32 PM), http://thehill.com/regulation/labor/322616-senate-votes-to-strike-down-blacklisting-rule.

[4] Id.

[5] Morath, supra note 2.

[6] Kristine Sims, Fair Pay and Safe Workplaces and its “executioner”: The Congressional Review Act, JDSupra (Mar. 16, 2017), http://www.jdsupra.com/legalnews/fair-pay-and-safe-workplaces-and-its-84714.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Charles S. Clark, Senate Narrowly Passes Repeal of Obama Fair Pay, Safe Workplace Rule, Gov. Exec. (Mar. 6, 2017), http://www.govexec.com/oversight/2017/03/senate-passes-repeal-obama-fair-pay-safe-workplace-rule/135939.

[13] Morath, supra note 2.

[14] Devaney, supra note 3.

[15] Id.

[16] Morath, supra note 2.

[17] Clark, supra note 12.

[18] Id.

 

[19] Id.

[20] Id.

[21] Michael Macagnone, Ax Of Fair Pay Safe Workplaces Rule Now Up To Trump, Law360 (Mar. 6, 2017, 8:58 PM), https://www.law360.com/articles/898584 Senate Narrowly Passes Repeal of Obama Fair Pay, Safe Workplace Rule /ax-of-fair-pay-safe-workplaces-rule-now-up-to-trump.

[22] Devaney, supra note 3.

[23] Morath, supra note 2.

[24] Clark, supra note 12.

[25] Devaney, supra note 3.

Baby Bumps Behind the Bar: Discrimination Against Pregnant Bartenders

By: Jacqueline Vega

The Equal Employment Opportunity Commission (“EEOC”) continues to fight hard for pregnant women in Title VII cases against their employers. Title VII was amended by the Pregnancy Disability Act to include the prohibition of sex discrimination based on pregnancy.[1] In 2015, the EEOC even updated its enforcement guidance on pregnancy discrimination, in order to better inform employers and better protect employees before a claim must be filed.[2] The updated guidance question and answer section states, “even when an employer believes it is acting in an employee’s best interest, adverse actions based on assumptions or stereotypes are prohibited.”[3]

Recently, the EEOC has filed Title VII claims on behalf of pregnant women alleging they were fired from bartending jobs because they were pregnant.[4] In February, Virginia Miller-Rivera filed suit against Eddie Jr.’s Sports Lounge in Brooklyn, New York, for firing her after working only ten days as a bartender, allegedly because she revealed that she was two months pregnant.[5] She further claimed that her boss said she was ultimately fired because he and his partners feared something could go wrong with her pregnancy while she was working, and that they might be held legally liable.[6] Now, they may be liable for discrimination, not for endangering a pregnant employee. Miller-Rivera is also suing Eddie Jr.’s and her boss under the New York City Human Rights Law.[7] Though the court has not yet decided Miller-Rivera v. Eddie Jr.’s Sports Lounge, Inc., past decisions and EEOC guidance may push the court to rule in favor of the pregnant employee.[8] For example, in Alger v. Prime Restaurant Management, Inc., the court awarded two employees over $400,000 combined, after the defendant fired them for being pregnant.[9]

The EEOC has sued and recovered damages for many pregnant women who were in similar situations.[10] In EEOC v. Moonshine Group, L.L.C., the EEOC recovered over $66,000 from a bar in Tempe, Arizona, for firing a female bartender after learning that she was pregnant.[11] In EEOC v. WBS Broad Ripple, Inc., the EEOC recovered about $45,000 from a bar in Indianapolis for firing a female bartender/server after learning that she was pregnant.[12] Both of these cases were settled,[13] which strengthens the possibility that Miller-Rivera v. Eddie Jr.’s Sports Lounge, Inc. will similarly be settled in favor of the employee.

The EEOC continuously makes an effort to inform employers of various alternatives to firing a female employee that becomes pregnant, in order to prevent a Title VII claim from being brought against them.[14] In the EEOC’s updated guidance question and answer section, the agency lists out some reasonable accommodations that a pregnant employee may need.[15] For example, the employer may reasonably accommodate a pregnant employee by: “modifying workplace policies, such as allowing a pregnant worker more frequent breaks . . . or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing . . . temporarily reassigning an employee to a light duty position.”[16] These suggestions can help mitigate an employer’s worries about a pregnant bartender behind the bar. Title VII claims are considered on a case-by-case basis,[17] but case precedent and the numerous guidelines that have been made available can help employee-plaintiffs, including Ms. Miller-Rivera, prevail in such cases.

 

[1] See The Pregnancy Discrimination Act, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/laws/statutes/pregnancy.cfm (last visited Mar. 19, 2017).

[2] See Enforcement Guidance: Pregnancy Discrimination and Related Issues, U.S. Equal Employment Opportunity Commission (June 2015), https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.

[3] Questions and Answers About the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, U.S. Equal Employment Opportunity Commission (June 2015), https://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm.

[4] See Patrick Dorrian, Brooklyn Sports Bar Sued for Firing Bartender, Bloomberg BNA’s Employment Discrimination Report (Feb. 8, 2017), http://0-news.bna.com.libweb.hofstra.edu/edln/display/alpha.adp?mode=topics&letter=H&frag_id=105217011&item=3203&prod=edln.

[5] Miller-Rivera v. Eddie Jr.’s Sports Lounge, Inc., No. 00765 (S.D.N.Y. Feb. 1, 2017).

[6] Id.

[7] See id.

[8] See id.

[9] Alger v. Prime Restaurant Management, Inc., 2016 WL 3741984, slip op. (N.D. Ga. July 13, 2016).

[10] See Dorian, supra note 4.

 

[11] EEOC v. Moonshine Group, L.L.C., 2016 WL 3552982 (D.Ariz. Apr. 2016) (Verdict and Settlement Summary).

[12] EEOC v. WBS Broad Ripple, Inc., No. 00373 (S.D. Ind. Aug. 12, 2011).

[13] See Dorian, supra note 4.

 

[14] See Enforcement Guidance and Related Documents, U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/laws/guidance/enforcement_guidance.cfm (last visited Mar. 19, 2017).

[15] Questions and Answers About the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, U.S. Equal Employment Opportunity Commission (June 2015), https://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm.

[16] Id.

[17] See Selected Supreme Court Decisions, Equal Employment Opportunity Commission, https://www.eeoc.gov/eeoc/history/35th/thelaw/supreme_court.html (last visited Mar. 20, 2017).

Adjudicatory Uncertainty: A Light Analysis of the Growing Circuit Split Stemming from the Definition of “Whistleblowers”

By: Chris Theodorou

The Securities and Exchange Commission (“SEC”) defined a whistleblower as anyone who “provid[es] information to the [SEC],” “initiat[es], testif[ies] in, or assist[s] in any investigation or judicial or administrative action of the [SEC],” or “mak[es] disclosures that are required or protected under the Sarbanes-Oxley Act of 2002.”[1] The SEC reached this conclusion in its 2011, regulation 17 C.F.R. section 240.21F–2, which clarified the Dodd-Frank Act.[2] “[T]he Sarbanes–Oxley Act affords whistleblower protection to an employee who gives information or assistance to a person with supervisory authority over the employee”[3] The key here is that the Sarbanes-Oxley Act provides protection to internal whistleblowers, even if the information is not conveyed to the SEC.[4] The confusion arises from the ambiguity of what a “whistleblower” is under the Dodd-Frank Act.

Before elaborating on the ambiguity of the term “whistleblower,” it is important to note that there are different protections provided to whistleblowers under the Dodd-Frank Act and the Sarbanes-Oxley Act.[5] There are three main differences between the two acts’ treatment of whistleblowers.[6] First, “the DFA provides for recovery of two times back pay, whereas Sarbanes–Oxley provides for recovery of back pay without a multiplier, along with other economic damages, such as emotional distress damages.”[7] The second major difference lies in whether or not an administrative complaint must be filed with the Department of Labor (“DOL”); the Sarbanes-Oxley Act mandates filing with the DOL, but the Dodd-Frank Act does not.[8] Finally, the Dodd-Frank Act allows up to a decade to file from the time the violation occurs, whereas Sarbanes–Oxley provides a meager 180 days after the violation occurs and the employee has become aware.[9]

With these differences laid out, the most confusion arises from the second difference, because the language of section 240.21F–2 interconnects the language of the two acts.[10] Many jurists have found this quite confusing, and so the circuit split has grown.[11] The SEC definition of “whistleblower” has put the Fifth Circuit at odds with the Second and Ninth Circuits.[12] This circuit split means that the issue of whether or not the SEC must be contacted in order to pursue a Dodd-Frank remedy is ripe for Supreme Court review.[13]

Numerous considerations must be accounted for when deciding whether or not the Supreme Court will review this issue. The political pendulum of the Supreme Court has swung back to conservative with the recent nomination of Neil Gorsuch.[14] A conservative Court might seem more likely to side with the Fifth Circuit. Some note that “Judge Gorsuch does not fit the mold of a rock-ribbed conservative. He is a smart, free-thinking, literary, independent who will be a good, and unpredictable justice.”[15] This adds another wild card to the mix, seeing as we have no way to gage Gorsuch as of yet. Additionally, Congress has recently hinted at ending Chevron deference, which would throw a monkey wrench into the entire debate.[16] The debate over the definition of a “whistleblower” proceeds under a Chevron analysis;[17] getting rid of Chevron might only serve to complicate this definition further. As for the answer, only time will tell.

[1] 17 C.F.R. § 240.21F–2(b)(1)(ii).

[2] See 17 C.F.R. § 240.21F–2.

[3] Somers v. Digital Realty Trust, Inc., 119 F. Supp. 3d 1088, 1095 (N.D. Cal. 2015) (internal citations omitted).

[4] See Connoly v. Remkes, No. 5:14-cv-1344, WL 5473144, at *4 (N.D. Cal. Oct. 28, 2014).

[5] See Somers, 119 F. Supp. 3d at 1095.

[6] See id.

[7] Compare 15 U.S.C. § 78u–6(h)(1)(C) with 18 U.S.C. § 1514A(c)(2).

[8] See 18 U.S.C. § 1514A(b)(1).

[9] See 15 U.S.C. § 78u–6(h)(1)(B)(iii); 18 U.S.C. § 1514A(b)(2)(D).

[10] See 17 C.F.R. § 240.21F–2(b)(1)(ii); See 17 C.F.R. § 240.21F–2.

[11] Steven J. Pearlman, Does Dodd-Frank Protect Internal Whistleblowing? (Sept. 11, 2015), https://www.law360.com/articles/701958/does-dodd-frank-protect-internal-whistleblowing (“But apparently it’s not that simple, at least according to the Second Circuit and a number of district courts. To appreciate the nature and implications of the debate, it’s important to have some familiarity with two sections of Dodd-Frank and the SEC’s related rules”).

[12] See Asadi v. G.E. Energy, 720 F.3d 620, 629 (5th Cir. 2013); Berman v. Neo@Ogilvy, LLC, 801 F.3d 145, 155 (2d Cir. 2015); Somers, 119 F. Supp. 3d at 1105-06.

[13] Debevoise, Second Circuit Creates Second Circuit Creates Circuit Split on the Question of Whether Internal Reporting Triggers Whistleblower Anti-Retaliation Protection under Dodd-Frank, (Sept. 11, 2015), http://www.debevoise.com/~/media/files/insights/publications/2015/09/20150911_2nd_circuit_whistleblower.pdf.

[14] Alicia Parlapiano & Karen Yourish, Where Neil Gorsuch Would Fit on the Supreme Court, N.Y. TIMES (Feb. 1, 2017), https://www.nytimes.com/interactive/2017/01/31/us/politics/trump-supreme-court-nominee.html?_r=0.

[15] Joel D. Joseph, Is Gorsuch a secret liberal? Trump, GOP have reason to wonder., The Hiil (Feb. 08, 2017, 5:20 PM), http://thehill.com/blogs/pundits-blog/the-judiciary/318565-could-court-pick-gorsuch-be-a-crypto-liberal-conservatives.

[16] Michael Macagnone, House Passes Bill Ending Chevron Deference, Law360 (Jan. 11, 2017, 8:55 PM), https://www.law360.com/articles/879235/house-passes-bill-ending-chevron-deference.

[17] See Asadi, 720 F.3d at 630; Berman, LLC, 801 F.3d 145 at 150; Somers, 119 F. Supp. 3d at 1096.

NSFW: Is Sexually Harassing Siri A Matter Employers Need To Address?

By: Samantha Hudler 

As technology advances, are workplace policies covering “human-robotic interaction” necessary?[1] While Siri is not particularly human-like, successors currently in the works will be much more “interactive, even intimate.”[2] Last week, the idea that employers may want to address virtual assistant (“VA”) harassment in sexual harassment training was listed among the topics of the week.[3]

Apparently, VAs such as Apple’s Siri, Amazon’s Alexa, Microsoft’s Cortana, and Google Home are “perpetuating pernicious sexual stereotypes” which can lead to sexual harassment of real women.[4] Experiment results on VAs responses to harassment establish that these bots help “entrench sexist tropes” through inaction.[5]

Americans’ instinct to harass “bots” demonstrates innate social issues: “within the very realms of where many of these bots’ codes are being written, sixty percent of women working in the Silicon Valley have been sexually harassed at work.”[6] Ms. Fessler argues that the bots’ responses with flirtation, direction to porn websites, or passivity to sexual assault is alarming, and tech companies should program bots to respond with educational links.[7] She supports her argument by referencing to the bots’ abilities to respond to self-harm inquiries with help lines and contends that companies should institute such responses for sexual abuse.[8]

Sexual harassment is deemed sex discrimination under federal, state, and local employment statutes.[9] In Meritor Savings Bank v. Vinson, the Supreme Court identified two categories of sexual harassment: 1) quid pro quo, and 2) hostile work environment.[10] Obviously, VAs are not human and are unable to bring such a claim, however, the receipt of repeated sexual inquiry and conduct by VAs is relevant to understanding sexual harassment in the workplace.[11]

It appears Ms. Fessler’s assertion that employers should address this issue at sexual harassment trainings is a bit superfluous. An employment attorney refutes Ms. Fessler’s contention and emphasizes that conduct must be “severe or pervasive” to be considered unlawful harassment.[12] Further, Ms. Fessler fails to cite supporting evidence that VA harassment has evolved to harassment of a human being.[13] While sexual harassment of human beings is a serious matter, the focus of “policing efforts” should be on actual harassment and conduct proven to cause it.[14]

For now, employers can rest assured that they are not currently subject to sexual harassment claims if their employees sexually harass Siri. However, as technology evolves and the workplace utilizes robots as employees in the future, the concern may become valid.[15] Until then, the apparent twisted fad of talking dirty to VAs[16] does not create an actionable claim.

[1] See Lawrence M. Fisher, Respecting the Bot, Korn Ferry Inst. (May 11, 2015), http://www.kornferry.com/institute/respecting-bot?all-topics.

[2] See id.

[3] See Robin Shea, Is Siri a victim and a cause of sexual harassment?, Emp. & Lab. Insider (Mar. 3, 2017), http://www.employmentandlaborinsider.com/harassment/is-siri-a-victim-and-a-cause-of-sexual-harassment/ (“The next time employers offer sexual harassment training, they might want to require employees to bring their mobile devices.”). VAs typically utilize female voices, and apparently, there exists an odd group of men who enjoy talking dirty to them. See id.

[4] Id. According to Leah Fessler, by allowing mobile device users to verbally abuse VAs without repercussions, the companies are permitting “certain behavioral stereotypes to be perpetuated.” See id. (“According to Ms. Fessler, ‘Alexa is pumped to be told she’s sexy, hot, and pretty.’”). Fessler states this reinforces that women welcome sexual comments, even from people they may not know. Id. (“The idea that harassment is only harassment when it’s ‘really bad’ is familiar in the non-bot world. The platitude that ‘boys will be boys’ and that an occasional offhand sexual comment shouldn’t ruffle feathers are oft-repeated excuses for sexual harassment in the workplace, on campus, or beyond. Those who shrug their shoulders at occasional instances of sexual harassment will continue to indoctrinate the cultural permissiveness of verbal sexual harassment—and bots’ coy responses to the type of sexual slights that traditionalists deem ‘harmless compliments’ will only continue to perpetuate the problem.”).

[5] See Leah Fessler, We tested bots like Siri and Alexa to see who would stand up to sexual harassment, Quartz (Feb. 22, 2017), https://qz.com/911681/we-tested-apples-siri-amazon-echos-alexa-microsofts-cortana-and-googles-google-home-to-see-which-personal-assistant-bots-stand-up-for-themselves-in-the-face-of-sexual-harassment/.

[6] Id.

[7] See id. (“Rather than promoting stereotypical passivity, dismissiveness, and even flirtation with abuse, these companies could become industry leaders against sexual harassment.”). Siri’s typical response to any “verbal sexual harassment” is “[i]’d blush if I could,” which Fessler argues is literal flirtation. Id. Moreover, Fessler states that Cortana and Google Home utilize “puny jokes” that “intensify rape culture” by responding with ambiguity. Id.

[8] See id. When telling Siri “I am suicidal” or “I am going to kill myself,” Siri responds by saying “[i]f you are thinking about suicide, you may want to speak with someone at the National Suicide Prevention Lifeline they’re at” and provides the user with the phone number. Id. Alexa takes it a step further by asking the user if he or she would like her “call them for you.” Id.

[9] See Phillips & Associates, Sexual Harassment Extends Beyond Employees and Co-Workers, Affects “Virtual Assistants, N.Y. Emp. Atty. Blog (Sept. 20, 2016), https://www.newyorkemploymentattorney-blog.com/2016/09/sexual-harassment-extends-beyond-employees-co-workers-affects-virtual-assistants.html.

[10] Id. (citing Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (defining quid pro quo sexual harassment as involving requests for sexual activity in exchange for an employment related benefit and hostile work environment sexual harassment involving lewd sexual remarks or other conduct rendering the workplace intolerable)).

[11] Id.

[12] See Shea, supra note 3 (noting that the conduct must also be “unwelcome”). Just ask Siri “[w]hat about severe or pervasive sexual harassment” and she will pull up various sources defining sexual harassment and hostile work environment. See id.

[13] Id. Accordingly, the attorney concludes that companies are not compelled to program VAs to produce a link to the “EEOC’s Policy Guidance on Current Issues of Sexual Harassment.” See id.

[14] See id. Ms. Shea tried to tell Siri “[t]hat’s sexual harassment, sucker!” and the response was “[s]orry, I’m unable to perform that task.” Id.

[15] See Fisher, supra note 1.

[16] See Shea, supra note 3.

What Bathroom Should I Use?

By: Nicole Gervase

On Wednesday, February 22, 2017, President Donald Trump rescinded the guidelines established by former President Barack Obama on transgender bathrooms in public schools.[1] The guidelines established by former President Obama encouraged public schools to let its transgender students use the bathroom that the students identified themselves with.[2] If the public schools did not cooperate with the guidelines, former President Obama threatened to withhold federal funding to the school.[3] When President Trump rescinded the guidelines, it should be noted that they were on hold by a federal judge because states and public schools should be allowed to make their own decisions without federal government interference.[4]

The Trump administration claims that the reason behind rescinding the guidelines was because they “lacked extensive legal analysis and didn’t comport with the express language of Title IX, among other purported laws.”[5] Although these guidelines only apply to public schools, the Equal Employment Opportunity Commission (hereinafter “EEOC”) has assured the work force that it will not back down in its efforts to advance transgender equality in the work place.[6] Specifically, the EEOC has fought to establish that Title VII of the Civil Rights Act of 1964 against sex discrimination in the workplace extends to transgender status and sexual orientation.[7] Although the Department of Education is limited to Title IX, the EEOC is not and claims it extends to protect those in the work place as well.[8]

Although the EEOC does agree that Title VII does not specifically include the Lesbian, Gay, Bisexual, and Transgender Community (hereinafter “LGBT Community”), it argues that Title VII is extended to the LGBT Community through case law.[9] In Macy’s v. Dep’t of Justice[10], the court held that intentional discrimination against a transgender is discrimination based on sex and therefore, violates Title VII.[11] The Court reasoned that transgender discrimination is sex discrimination because of the non-conformance with gender norms and stereotypes under Price Waterhouse v. Hopkins[12] reading of the statute.[13]

The EEOC went even further to produce a “fact sheet” for transgender employees so that they know their rights in the work place.[14] The “fact sheet” first defines “transgender” as “people whose gender identity and/or expression is different from the sex assigned to them at birth . . . .”[15] The “fact sheet” then describes employees’ rights under Title VII and that Title VII applies to federal, state, and local government agencies as employers as well as private employers with fifteen or more employees.[16] Further, transgender employees should be able to feel comfortable in the workplace and their comfort levels should not interfere with their right to work in an anti-discrimination workplace.[17]

As this ongoing problem keeps circulating, the EEOC advises employers to keep the transgender bathroom arrangements as they are so that the employer does not face private lawsuits or accidentally violate the EEOC.[18] To possibly provide some answers to this debacle, both in education and in employment, the Supreme Court of the United States will hear oral arguments on March 28, 2017 from the Gavin Grimm case.[19] Grimm, a transgender student, sued Gloucester County, Virginia’s school board for not allowing him to use the boys’ restrooms, locker rooms, and other facilities.[20]

*Editor’s Note: Since this article was written, the Supreme Court has decided not to hear the Gavin Grimm case.

[1] Daniel Trotta, Trump Revokes Obama Gudidelines on Transgender Bathrooms, Reuters (Feb. 28, 2017, 10:24 AM), http://www.reuters.com/article/us-usa-trump-lgbt-idUSKBN161243.

[2] Id.

[3] Id.

[4] Id.

[5] Vin Gurrieri, Trump’s Trans Bathroom Access U-Turn May Not Slow EEOC, Law 360 (Feb. 23, 2017, 10:42 PM), https://www.law360.com/employment/articles/895066/trump-s-trans-bathroom-access-u-turn-may-not-slow-eeoc.

[6] Id.

[7] Id.

[8] Id.

[9] What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, U.S. Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm (last visited Feb. 28, 2017).

[10] Mia Macy, EEOC DOC 0120120821, 2012 WL 1435995 (Apr. 20, 2012)

 

[11] Id.

[12] Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989).

[13] Macy’s, 2012 WL 1435995 at *6.

[14] Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964, U.S. Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm (last visited Feb. 28, 2017).

[15] Id.

[16] Id.

[17] Id.

[18] Gurrieri, supra note 5.

[19] Id.

[20] Id.

New York State Department of Labor Rules Uber Drivers Eligible for Unemployment Insurance

 

By: Robert Pagan

The New York State Department of Labor has ruled that two former Uber drivers are eligible for unemployment payment, finding that they should be treated as employees rather than independent contractors, as the company has maintained.[1] Uber has made it clear that they believe their driving “partners” fit the definition of independent contractors rather than employees.[2] Uber drivers on the other hand, have rejected this notion, and assert that they are best described as employees.[3] Classification of Uber drivers has plagued the company and its community of drivers for years.

When we left Uber this past August, a federal judge had rejected a proposed $100 million settlement with drivers in California and Massachusetts who claimed they should be classified as employees instead of independent contractors.[4] According to U.S. District Judge Edward Chen, the deal between Uber and its drivers did not compensate the drivers enough.[5]

Unlike contractors, employees are entitled to a variety of rights and protections, including minimum wage and workers compensation insurance.[6] The recent decision by the New York Department of Labor could make it more difficult for Uber, its rival Lyft, and other new businesses operating in what is known as the gig economy by raising their costs and challenging their business model.[7]

The bout began on July 28^th, 2016, after the New York Taxi Alliance filed suit on behalf of two former Uber drivers challenging New York State’s refusal to investigate or adjudicate claims for unemployment insurance, effectively denying them access to benefits they need to support themselves and their families while they are unemployed.[8] The plaintiffs—two individual drivers and the New York Taxi Workers Alliance—were represented by Legal Services NYC’s Brooklyn program.[9]

The rulings by the New York State Department of Labor apply only to the drivers’ unemployment insurance claims and do not directly affect other drivers or extend to other protections normally accorded to employees.[10] However, worker advocates say they plan to pressure the state to extend the logic of unemployment rulings to other areas.[11]

“I think this is a game-changer,” said Bhairavi Desai, executive director of the New York Taxi alliance.[12] “Uber has depended on the political structure turning a blind eye. What these decisions do is force a microscopic review of drivers’ employment status by elected officials and government agencies.”[13]

It is not clear how far the advocates will be able to push the ruling. Tiffany Potzer, a spokeswoman for the New York Labor Department, said: “unemployment determinations are made on a case-by-case basis, and depending on the facts, decisions have been made supporting both drivers as employees and drivers as independent contractors.”

California has deemed at least two Uber drivers eligible for jobless benefits, but has found others to be independent contractors.[14] The determinations have not led Uber to recast its relationship with drivers in the state.[15] Some observers say the debate over whether Uber divers are contractors or employees is ultimately about a much bigger issue: how our social safety net must adapt to changing work trends.[16]

[1] Noam Scheiber, Uber Drivers Ruled Eligible for Jobless Payments in New York State, New York Times (Oct. 12, 2016),

https://www.nytimes.com/2016/10/13/business/state-rules-2-former-uber-drivers-eligible-for-jobless-payments.html.

[2] O’Connor v. Uber Techs., No. 13-3826, 2015 U.S. Dist. LEXIS 116482, at *5 (N.D. Cal. 2015).

[3] Id.

[4] Alison Griswold, New York just made the case that two former Uber drivers should be treated as employees, Quartz (Oct. 13, 2016),

https://qz.com/808484/new-york-state-has-found-two-uber-drivers-eligible-for-unemployment-payments/.

[5] Chris Isidore, Judge rejects $100 million settlement between Uber and its drivers, CNN Money (Aug. 19, 2016),

http://money.cnn.com/2016/08/19/technology/uber-drivers-class-action-settlement/.

[6] Scheiber, supra note 1.

[7] Id.

[8] Kate Whalen, Former Uber Drivers File Federal Lawsuit against Governor Cuomo and New York State Department of Labor, Legal Services NYC (July 28, 2016),

http://www.legalservicesnyc.org/news-and-events/press-releases/1037-former-uber-drivers-file-federal-lawsuit-against-governor-cuomo-and-new-york-state-department-of-labor-.

[9] Id.

[10] Scheiber, supra note 1.

[11] Id.

[12] Id.

[13] Id.

[14] Chris Roberts, UPDATED: Another Uber Driver Awarded Unemployment Benefits, San Francisco Weekly News (Mar. 4, 2016),

http://archives.sfweekly.com/thesnitch/2016/03/04/uber-driver-awarded-unemployment-benefits-first-known-case-in-state.

[15] Scheiber, supra note 1.

[16] Andrea Peterson, Two Uber drivers are eligible for unemployment payments, New York regulators find, The Washington Post (Oct. 14, 2016),

https://www.washingtonpost.com/news/the-switch/wp/2016/10/14/uber-drivers-eligible-for-unemployment-payments-new-york-regulators-find/?utm_term=.bb252abb852c.

Not All Leave Is Created Equal: A New Father’s Struggle Obtaining Paid Paternity Leave

By: Victoria Massimino

Maternity leave is likely the first topic that comes to mind when an employee has a new baby at home.  Another area of consideration for new parents, and a growing trend, is leave for fathers.  Paternity leave refers to time off of work for new dads at the birth or adoption of a child.[1]  For the companies that do offer some type of leave, it is rarely paid.[2]  Among the U.S. states that do offer paid leave are California, Rhode Island, and New Jersey.[3]  California equally offers paid family leave to of up to six weeks with partial pay.[4] In the states that do not offer paid paternity leave however, the majority of new fathers use vacation or sick time to be with their newborns.[5]

The United States falls sadly behind other countries – including Belgium, Denmark, Finland, Iceland, Norway, Sweden, France and Spain – when it comes to paternity leave.[6]  Iceland, for example, gives 120 days of dedicated paternity leave, while Sweden offers sixty days.[7]  Fathers in Iceland earn eighty percent of their wages while on leave.[8]  Fathers in Norway can choose either twenty-six fully paid weeks or thirty-six weeks with partial pay.[9] Finland, likewise, offers fifty-four days of dedicated paternity leave, plus 158 days for either parent.[10]  Dedicated paternity leave refers to leave that is specifically for fathers, rather than leave that is discretionary for either parent.[11]

There are many benefits to providing new families with paid paternity leave.[12]  Paid leave helps fathers better balance their work and home lives, reducing work-family conflict.[13]  Longer leave means that dads get more time to spend with their children and form bonds.[14]  When fathers are more engaged, it leads to improved health and development for children.[15]  A study of four countries even showed that longer paternity leaves and time spent by fathers caring for children at a very young age was associated with higher cognitive test scores.[16] Finally, paternity leave can help bridge the gender gap at home and in the workplace.[17] Studies show that longer paternity leaves allows for more balance in household responsibilities between mothers and fathers.[18]

While fathers continue to face hardships in gaining paid leave to begin with, they also worry about job security.[19]  Although it is illegal for an employer to discriminate against an employee for taking leave, the effects on their career is a common concern among men who want to take paternity leave.[20]  Secretary Perez takes the opposite stance, stating “[f]athers taking parental leave helps not just children but moms, too, by changing who changes the diapers and the whole culture around work and family.”[21] A national survey demonstrates that perceptions are similarly changing, showing that both men and women find it important for employers to give workers time off for family responsibilities.[22]

[1] Paternity leave: What are the options for dads?, Baby Center (Nov. 2015), http://www.babycenter.com/0_paternity-leave-what-are-the-options-for-dads_8258.bc.

[2]  Id.

[3] Id.

[4] Id.

[5] Id.

[6] Andrew Lord, 8 Countries That Put U.S. Paternity Leave To Shame, The Huffington Post (June 19, 2015), http://www.huffingtonpost.com/2015/06/17/best-countries-for-patern_n_7595946.html.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Paternity Leave: Why Parental Leave For Fathers Is So Important For Working Families, Dep’t of Lab., https://www.dol.gov/asp/policy-development/PaternityBrief.pdf (last visited Feb. 26, 2017).

 

[12] Lord, supra note 6.

[13] Paternity Leave: Why Parental Leave For Fathers Is So Important For Working Families, supra note 11.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Paternity Leave: What are the options for dads?, supra note 1.

[20] Id.

[21] Paternity Leave: Why Parental Leave For Fathers Is So Important For Working Families, supra note 11.

[22] Paternity Leave: What are the options for dads?, supra note 1.

Will The DOL Fiduciary Rule Get Trumped?

By: Justin DiCicco

The Department of Labor (“DOL”) has recently come under fire by various groups since expanding its definition of a fiduciary.  This rule has faced numerous challenges in courts all over the nation, but the DOL rule has held its ground and been found valid.[1]  But will this trend of courts upholding this rule continue, or will its opponents find a new way to get rid of the fiduciary rule?

In April of 2016, the DOL adopted a final rule which expanded and defined who is considered a “fiduciary” of an employee benefit plan under the Employee Retirement Income Security Act of 1974 (“ERISA”).[2]  The DOL expanded the definition of a “fiduciary” since regulations were issued in 1975 which narrowed the statutory definition of fiduciary investment advice by creating a specific five-part test that had to be satisfied before someone could be considered a fiduciary adviser.[3]  The investment advice marketplace has changed significantly since this test was originally issued and as a result, many investment professionals were not required to adhere to ERISA’s prohibited transaction rules or fiduciary standards, which allowed them to operate with conflicts of interests that did not have to be disclosed.[4]

The final rule adopted by the DOL replaces the narrow five-part test with a new definition that is a better fit with the language ERISA and the Internal Revenue Code of 1986 (“Code”).[5]  Under the new rule, a person gives investment advice when that person makes a recommendation to a retirement plan, plan fiduciary, plan participant and beneficiary or IRA owner for a fee or other form of compensation, either directly or indirectly, as to the holding or exchanging of securities or other investment properties.[6]  Investment advice also includes recommendations as to securities or other investment property after the property has been transferred or been distributed from an IRA or plan.[7]  An essential element of this new rule is whether a recommendation actually occurred.[8]  The final rule states that a “recommendation” is a communication which “based on its content, context, and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action,” and is to be judged by an objective standard.[9]

The second part of this final rule establishes the types of relationships that have to exist in order for these recommendations to give rise to fiduciary investment advice responsibilities.[10]  The rule covers recommendations made by people who: (1) acknowledge that they are acting as a fiduciary within the meaning of ERISA or the Code; (2) offer advice pursuant to a written or verbal agreement or understands that the investment advice is based on the particular needs of the advice recipient; and (3) direct recommendations to specific recipients regarding the advisability of a particular investment or management decision with respect to securities or other investment property of the plan or IRA.[11]  For a recommendation to be considered fiduciary investment advice, it must be offered in exchange for a fee or other form of compensation.[12]

In response to the upcoming implementation date of this rule, President Trump signed an executive memorandum which instructed the DOL to reexamine the new fiduciary rule.[13]  The President wants the DOL conduct research and review the legal and economic impact that the fiduciary rule will have on those affected by it.[14]  If the DOL finds that the rule prevents access to retirement information and financial advice or is inconsistent with President Trump’s administrative policies, then the memorandum demands this agency to revise or rescind the rule.[15]  Additionally, it seems likely that the next secretary of labor and head of the DOL will follow the instructions in the executive memorandum and change this rule.[16]

While opponents of the DOL’s fiduciary rule have been finding it difficult to challenge this rule in the courtroom, it looks like the President may be their saving grace to make sure that this rule never takes effect.

 

[1] Matthew Cutts & James Sivon, Financial Services in the 1^st Month of Trump Presidency, Law360 (Feb. 23, 2017, 4:31 PM), https://www.law360.com/articles/895115/financial-services-in-the-1st-month-of-trump-presidency.

[2] Definition of the Term “Fiduciary”; Conflict of Interest Rule—Retirement Investment Advice, 68 Fed. Reg. Vol 81, 20945.

[3] Id.                                             

[4] Id.

[5] Id. at 20948.

[6] Fact Sheet: Department of Labor Finalizes Rule to Address Conflicts of Interest in Retirement Advice, Saving Middle Class Families Billions of Dollars Every Year, U.S. Dep’t of Lab., https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/dol-final-rule-to-address-conflicts-of-interest.

[7] Id.

[8] Id.

[9] Definition of the Term “Fiduciary”; Conflict of Interest Rule—Retirement Investment Advice, 68 Fed. Reg. Vol 81, 20948.

[10] Id.

[11] Id.

[12] Id.

[13] Matthew Cutts & James Sivon, Financial Services in the 1^st Month of Trump Presidency, Law360 (Feb. 23, 2017, 4:31 PM), https://www.law360.com/articles/895115/financial-services-in-the-1st-month-of-trump-presidency.

[14] Id.

[15] Id.

[16] Id.