3 New HR laws for Texas Employers – A Quick Peek

One nice thing about the Texas Legislature is that it meets only every other year.  (If only Congress would follow that model.)  Despite this biennial schedule, Texas lawmakers found time to enact three laws this year directly affecting employers and which will go into effect in just a couple weeks, on September 1. 

Here’s what’s new.

 “Don’t mess with Texas interns!”

In HB 1151, Texas has said keep your hands off the interns.  This new law amends Chapter 21 of the Labor Code to include unpaid interns as a protected class of individuals who should be free from sexual harassment.  According to the analysis of the bill, the impetus for this law was a court decision in another state that held an intern could not sue a company for sexual harassment because she technically was not an “employee.”  The new law defines sexual harassment consistent with existing law and further defines interns based on the current understanding of common internship practices.  This law makes sense.  Bravo, Texas.           

Atten-hut!  No military posers should report for duty.

Texas passed the “Stolen Valor Act” in SB 664, as a salute to the sanctity of military service.  Since 2011, Texas has classified as a misdemeanor certain conduct where a person falsely represents a military record to obtain benefits or services from the State.  Expanding this rationale into the workplace, Texas will now permit employers to terminate employees who likewise misrepresented their military record to obtain employment or employment-related benefits – even if the employee has an employment agreement. 

Under the law, an employer must have a reasonable basis for concluding that the employee misrepresented his military service.  That’s a no brainer.  And the new law also grants the employee the right to sue in state court for wrongful termination for violating the law, providing as remedies reinstatement, lost wages and benefits, but not attorney’s fees.  (Good luck finding someone to take on that case if attorney’s fees are not recoverable.)

Thank you, vets, for your service.  And thank you, Texas, for recognizing that service.

Hey, franchisors, you deserve a break today!

The NLRB lately has caused more angst and uncertainty in the workplace, going after franchisors and claiming that their franchisees’ employees really are the franchisors’ employees, too.  Why?  Well, duh, to make it easier for unions to organize employees.

Under SB 652, Texas has thumbed its nose at the NLRB.  This new law, according to the drafters’ stated intent, clarifies that “under Texas law, a franchisor is not the employer of a franchisee's employees for the following purposes: employment discrimination law, wage and hour law, minimum wage law, professional employer organization law, unemployment law, workers compensation law, and workplace safety law.”   

And what does the law do?  It basically states that unless a court (read: not a mere agency) finds a franchisor to have exercised the degree of control over a franchisee’s employees necessary to make them employees of the franchisor, there is no employment relationship with the franchisor.

This new law unfortunately does not insulate employers from the NLRB and its latest efforts to hold franchisors as joint employers with franchisees, since the NLRA would likely preempt contrary state law.  But the scope of Texas’ new law draws a bright line between a franchisor and franchisee as far as liability under several Texas labor laws is concerned. 

And that’s a Happy Meal prize if I ever saw one. 

Give these laws a quick look, and maybe you’ll find them helpful.  Good luck.

CAB

Chris Bourgeacq practices labor & employment law in Texas and wherever his clients need him.  You can contact him at Chris@cbqlaw.com or check out his website at cbqlaw.com.  Follow Chris on Twitter @CBQlaw.

Will Neiman Marcus mark down the NLRB’s latest anti-arbitration decision?

“2, 4, 6, 8, we don’t want to litigate.  1, 2, 3, 4, that’s what arbitration’s for!”

If you’ve been following the NLRB the last few years, you probably know that this agency does not like mandatory arbitration agreements containing class action waivers. Not at all.  According to the current labor board, such waivers interfere with (unionized and nonunionized) employees’ right to engage in protected concerted activity.  Class or collective actions are one such type of concerted activity. 

This week, the NLRB issued yet another decision refusing to enforce an arbitration agreement and class action waiver in Neiman Marcus Group Inc., 362 NLRB No. 157 (8/4/15).  In a nutshell, the employee there filed a wage & hour class action lawsuit against Neiman Marcus in (yeah, you guessed it) California.  Neiman raised an affirmative defense that the employee agreed to mandatory arbitration and further agreed to waive class action proceedings in any arbitration.  The trial court sided with Neiman and sent the parties packing to arbitration.

The employee then filed an unfair labor practice charge at the NLRB challenging the validity of the arbitration agreement.  True to form, the board held that the mandatory arbitration agreement and its class action waiver violated section 7 of the National Labor Relations Act, which creates the right to protected concerted activity. 

In doing so, however, the board again ignored the 5th Circuit’s D.R. Horton decision expressly rejecting the NLRB’s identical arguments for refusing to honor arbitration agreements with class action waivers.  More important, the board once again implicitly thumbed its nose at the Supreme Court, which for decades has made crystal clear that it strongly endorses, and enforces, arbitration agreements in virtually every context.  (If you’re interested in the Supreme Court’s view of arbitration, and specifically class action waivers, see its decision in Concepcion.)

Neiman should probably appeal the NLRB’s decision for two reasons.  First, it is highly likely that the 9th Circuit Court of Appeals, which could hear this appeal, would refuse to enforce the board’s decision.  Why?  A couple years ago the 9th Circuit in Richards v. Ernst & Young gave a favorable head nod to mandatory arbitration agreements, taking time to specifically call out the NLRB for refusing to enforce class action waivers in arbitration agreements. 

The second reason Neiman may appeal this latest anti-arbitration decision is the NLRB awarded attorneys’ fees and costs against Neiman and in favor of the employee.  The labor board rarely awards fees and costs.  Avoiding such awards in the future is something Neiman and other employers may certainly want to see the 9th Circuit address when and if it handles this appeal. 

And here’s the kicker.  The employee in this case asked to withdraw its charge against Neiman Marcus a couple months ago, and the NLRB refused to allow her to withdraw it!  For an agency that is supposed to act only in response to a filed charge or petition, and not unilaterally, do you think maybe the board has its own agenda to execute regardless what litigants might want to do?

The NLRB frequently speaks about anti-union animus when whacking employers who find themselves embroiled in an unfair labor practice dispute.  This week’s Neiman Marcus decision confirms that the board itself may suffer from anti-arbitration animus. Sooner or later, this issue will make it to the Supreme Court, where you can all but bet the NLRB will lose this one.  Until then, look for a slow, expensive, circuit-by-circuit battle where the outcome has all but been predetermined.

And just in case you missed the parenthetical in my opening paragraph, this NLRB decision applies to unionized and nonunionized employers alike, so don’t think you can ignore the NLRB because you don’t have a union to deal with.  Also, if you’re an employer and don’t have an arbitration program in place – with a class action waiver – you may want to think about doing so.

Good luck.

CAB

Chris Bourgeacq frequently practices before the NLRB and has handled several arbitrations in a variety of areas.  He also can help you design an arbitration program if you don’t have one.  A happy and pleasant fellow, you can reach him at Chris@cbqlaw.com or check out his website at cbqlaw.com.

Are you ready for the DOL’s attack on independent contractor status? 3 tips employers can use now to defend themselves later.

Like a ninja moving through the cover of darkness, the U.S. DOL “announced” in its latest Administrator’s Interpretation on a blog post a couple weeks ago its view of the independent contractor relationship.  In case you missed it, you better catch up … and fast. 

The head of the DOL’s Wage & Hour Division, David Weil, fired a broadside against all employers, proclaiming with incredible bravado that “most workers are employees under the FLSA.”  Independent contractors and employers alike, watch out.  Your relationship is about to go out the window.  (Gee, whatever happened to the constitutional right to freedom of contract?)

In a masterpiece of selective legal research, citing snippets from nearly century-old and decades-old caselaw, the DOL has clearly signaled its intentions to convert independent contractors everywhere into employees.  How does the DOL intend to do this?  Through a largely one-sided, revamped “economic realities” test involving several factors and pushing the envelope on those factors. 

I can’t dissect the DOL’s economic realities test and all of its factors here, but some highlights and examples the DOL cites in its interpretation will give you a flavor of its mindset:

The “integral part” factor.  This one should scare the pants off you.  According to the DOL, if a worker’s activities are integral to the employer’s business, he’s probably an employee.  And, as examples of presumed employees, the DOL points to workers who answer calls at a call center, whose activities the DOL says are integral to the call center’s business.  Another example the DOL offers of a likely employee rather than an independent contractor is a carpenter who frames homes for a construction business.  Seriously, I’m not making these up.  Can you guess who’s in the DOL’s crosshairs now?

The “managerial skill” factor.  This part of the economic realities test can be summarized as follows (with apologies to Jeff Foxworthy):  If the only way to make more money is to work more hours, you’re probably an employee.  According to the DOL, only when there is an opportunity for a loss, as well as a profit, could a worker be characterized as an independent contractor.

The “relative investment” factor.  The DOL says a worker’s investment in her own tools or equipment – “even if that investment is substantial” – is insufficient to prove independent contractor status.  Relying on a 10th Circuit decision with unique oil-field facts, the DOL proclaims that even if a worker spends $35-40,000 on equipment to perform her work, if that investment is smaller in comparison to the employer’s investment, then she’s an employee.  Can you think of many situations where an independent contractor’s investment or capital outlay is the same as the business engaging that contractor’s services?  Sometimes, but not very often.  Which of course is the DOL’s intent.  Heads I win; tails you lose.

The “nature and degree of control” factor.  Traditionally, the amount of control an employer exercises over a worker has been the touchstone in analyzing the issue of employee or independent contractor status in a variety of contexts.  But the DOL doesn’t like that factor, stating “the ‘control’ factor should not play an oversized role” in this analysis.  And one example of workers the DOL uses to downplay lack of control as a defense to employee status is at-home or offsite workers (another warning for employees using call centers or service reps.)  According to the DOL, if employers claim they need to exercise some control over an aspect of a worker’s activities due to the nature of their business, regulatory requirements, or customer satisfaction, control for “any or all of those reasons still indicates that the worker is an employee.”  Looks like the DOL getting ready to jump into the franchisor-franchisee fray, not unlike the NLRB and its joint employer campaign.

3 tips to brace yourself for the DOL’s independent contractor witch hunt

The misclassification crusade by the DOL toward independent contractors is hardly new.  Nor are the factors that make up the economic realities test.  What is new, however, are the broad generalizations the DOL now uses in explaining its multi-factor analysis. 

Either the DOL and its staff have never spent considerable time outside government employment, or at this point they have no fear in revealing their ham-handed regulatory view of the world.  Probably a bit of both in this instance.  The DOL’s view of economic realities simply doesn’t square with social realities in the workplace. 

So what’s an employer to do to protect itself against the imminent audits, enforcement threats, and the inevitable lawsuits from the DOL and private plaintiffs?  A few tips:

·       Treat employees like employees, and contractors like contractors.  While the DOL wants to marginalize the “nature and degree of control” factor, courts still consider that factor an important aspect in analyzing independent contractor issues. That being the case, always instruct your employees (especially supervisors) to observe the distinction between employees and independent contractors:

o   Don’t directly train contractors; have their employer handle the training, if that’s necessary

o   Don’t dress your contractors in your branded or logoed apparel; also, clearly mark a contractor’s vehicle as an agent of the employer

o   Don’t issue company IDs to contractors or include them in your employee contact directory

o   Do not discipline contractors; leave that to the contractor’s employer or terminate the contractor’s project as called for in the contract; avoid “discipline-like” terminology, such as suspension or warning or discharge 

·       The contract still matters.  Have your independent contractor sign an agreement with a provision confirming his independent contractor status, with a possible indemnity provision in case that status is successfully challenged.  Yes, I know, many courts hold that the parties’ contract is not determinative in these situations.  But the mere presence of such language may deter the contractor from pushing the issue.  And some courts take drastically different approaches to interpreting FLSA.  See, for example, Martin v. Spring Break ’83 Productions (upholding private settlement of FLSA claim without DOL supervision). 

·       Space out engagements of the contractor.  Not having the contractor working solely for you, or working for you indefinitely, allows for and may even force the contractor to seek other engagements.  That in turn reduces his economic dependency on you – a factor even the DOL concedes as indicative of an independent contractor relationship.  

Heard enough?  And if all this news wasn’t enough, the DOL’s blog announcement laid another land mine for employers.  In footnote 3 of its interpretation, the DOL stated that its analysis of employee status under FLSA also applies to FMLA (and to a lesser-known law, MSPA, dealing with migrant workers).  So, besides potential liability under FLSA for overtime, payroll taxes, and other employee emoluments, employers may unexpectedly find themselves liable under FMLA for adverse employment actions when letting go independent contractors!  Yes, you should be afraid.  Be very afraid. 

Your tax dollars at work, folks.

Good luck.

CAB

Chris Bourgeacq is a labor attorney who continues to believe in the constitutional right of freedom to contract, in a laissez-faire economy, and in hanging out at the beach whenever possible.  You can reach him at chris@cbqlaw.com or check out his website at cbqlaw.com.  The preceding article is for educational purposes only and not intended as specific legal advice.

Pssst, HR pros . . . stick to the script (and you’ll save thousands)!

This one tip can save your business thousands, if not hundreds of thousands, of dollars.

The most important question when an employee has been fired is, of course, why?  The employee wants (and deserves) to know the reason.  Certain third parties also want to know the answer, too – you know, people like unemployment claim handlers, EEOC investigators, myriad other agencies, union reps, employee attorneys, judges and juries. 

So how does your business communicate the answer to that question?  Orally?  Via HR?  The employee's supervisor?  Or worse, a vendor?     

If your business is missing this one simple "must have" document for every fired employee, you're sitting on a ticking time bomb.  And what is that document? 

The dismissal letter.  

It may go by several other names:  termination memo, separation proposal, discharge summary, or dismissal approval, just to name a few.  Several decades ago, some folks even referred to this ominous document as “the dossier.” Regardless what you call it, here's what your dismissal letter should contain, in no special order: 

  1. All the reasons for dismissal;
  2. If the employee violated specific rules or policies, identify those rules or policies and (this is key) also identify when they were covered with the employee;
  3. Any previous warnings or discipline the employee received, relating not only to the reason for dismissal, but for any reason;
  4. Period of service the employee worked in your company or business;
  5. Effective date of the dismissal; and,
  6. Signature of the decision maker.

If you have all this information in a stand-alone document, then you've created "the script" that any person acting on behalf of your business can rely upon when answering that inevitable question why this employee was fired.  You've also created the single source document that any external person can review and fully understand why the termination occurred.  Best of all, employers (and their attorneys) can use this document as "Employer's Exhibit 1" in virtually any legal proceeding where the validity of the termination is in dispute.   

OK, before you naysayers start poking holes, let's explore deeper why you want a dismissal letter with all the recommended information listed above.  The benefits of "the script" will become obvious.  

First, remember HR’s Prime Directive:  "If it ain't documented, it didn't happen."  Pulling this supporting information together requires a bit of careful study and preparation, which allows for a closer look at not only this particular employee's issues, but also the business's practices in general.  That look may confirm good practices or uncover deficient ones.  And you’ve already done the legwork, up front, collecting the necessary supporting information for a termination in case you are asked to provide it later in a legal proceeding.  You don’t need to attach every single bit of supporting paperwork to the dismissal letter, but it’s now readily available whenever you need it.  Sweet. 

In addition, requiring someone to take the time to critically review performance documentation, policy coverage, and other papers necessary to support a termination reveals any flaws now (before the termination decision) and makes more sense than trying to reconstruct the termination years later in a deposition when you're under oath after hours of painful interrogation.  And if you do face a deposition, you’ve got a comprehensive go-to document right in front of you!  Employer attorneys love that. 

Second, having this go-to document as a virtual script will discourage your managers (or consultants) from providing different reasons for termination later. And changing explanations for termination are the quickest way to create a factual dispute over the issue of pretext, which can win you a trip to the witness seat in front of a jury.  See, for example, the Cicero case discussing shifting justifications for adverse employment actions. 

Third, having a decision maker personally sign the dismissal letter requires that individual to consider collectively the employee’s entire work history, any prior discipline and performance reviews, and the specific conduct that raises the specter of termination.  That contextual review gives the decision maker the appropriate facts to make a fully-reasoned choice.  And you know, there’s something special in the quality of a review and subsequent decision when that an individual has to actually sign a document reflecting the decision.  Decisions confirmed in a signed document tend to carry more gravitas than those based on a simple head nod or an oral “OK.” 

For those of you who automate the review and approval process for terminations, yeah, you can use digital signatures.  (By the way, we do still have faxes and scanners to transmit signed documents....)  But in the end, I prefer to see an actual John Hancock on a piece of paper that explains a termination to a third party.  So does a judge or jury.

Note:  I am not a fan of having the employee’s complete chain of command sign off on the dismissal document for a couple reasons.  With each signatory, you increase the number of potential witnesses in later legal proceedings; and you also inject potential “Cat’s Paw” issues into litigation, which can sometimes preclude summary judgment.  For example, see the Staub and Chambers cases.  On the other hand, you might consider adding an extra signature line with “reviewed” or “concurred” on your document, which would allow someone besides the decision maker (perhaps HR, who tend to be more sophisticated witnesses) to testify in certain forums about the circumstances behind a dismissal.  

Fourth, having all the reasons in writing before dismissal commits management to the reasons for dismissal.  It gets everyone on the same page.  It locks down your position.  And that’s a good thing.  Some might argue that putting everything in writing before dismissal removes flexibility later if the reasons for dismissal start looking weak.  But if that’s the case and the stated reasons begin to unravel, maybe you shouldn’t have fired the employee in the first place, right?    

The final reasons for using a comprehensive dismissal letter are an amalgam of all the above.  A stand-alone, factual explanation why you fired an employee suggests that someone took considerable time and effort to make a reasoned decision – even putting it in writing.  It exudes fairness and due process.  Compare that with the one-line letter you sometimes see, “Your employment is hereby terminated effective [insert date] for performance.”  

Which document would you prefer to use to represent your company’s actions? Which document do you think is more persuasive? Which document do you think might dissuade a fired employee or his attorney from pursuing legal action against your business? 

So, the next time you’re asked to weigh in on an employee dismissal in your organization, think how you’d like that decision to be viewed externally.  Is your documentation for dismissal complete?  Does it tell the whole story?  Does that story pass the smell test and appear justified to a casual reader who doesn’t know anything about the employee or your company?  Or is it just a one-liner begging for further explanation? 

If you’ve created “the script,” congratulations!   Be sure anyone needing to explain an employee’s termination knows to stick to that script, too.  You’ll be glad you did.  And that ounce of prevention can save you a pound of aggravation later, as well as potentially thousands of dollars in litigation and other costs. 

CAB 

Chris Bourgeacq is an experienced labor & employment attorney and a seasoned “script writer.”  You can contact him at chris@cbqlaw.com or visit his website at cbqlaw.com.

 

 

 

 

Happy Birthday America! Of thee I sing.

I am proud of my country.  Unabashedly so.  No reservations. 

Just think for a minute how much good this one country has done in its comparatively short existence. 

Sure, any of us at any time can find fault in something that our country has done.  But take a take a look around.  The things we openly complain about here or advocate to change can get you imprisoned in many other countries.  Or tortured. Or murdered.

You could do a lot worse, had your birthplace or home ended up in one of those places we see in the news (and I don’t mean just the global hotspots).  For every criticism someone might have about the US, there are dozens of praises from those fortunate enough to have benefited from this country’s charity, support, and protection.

I’ll confess to being a bit of a history nerd, particularly US history.  A family trip last month took me to the Herbert Hoover Presidential Library in Iowa.  What an eye-opener that visit turned into.  I had no idea at all what a great humanitarian President Hoover was or the depth of gratitude he received from nations around the world.  All he usually gets tagged with in our history books, and incorrectly so, is blame for the Great Depression.  His work throughout his lifetime reflect in large part what the US stands for, and should continue to stand for, on the world stage.  

Allright, a long way of saying “Thanks, America, for being there.” 

And here are my top suggestions for honoring all of us Americans in the grand melting pot (let’s drop the hyphenated-American divisiveness, too) this 4th of July weekend.  

  1. Display your US flag. Proudly.
  2. Donate to the Wounded Warriors Project. Our veterans – especially those suffering from grievous injures on our behalf – need your help and a huge thank you besides just one day a year on 11/11.
  3. Watch a movie or read a book or article this weekend about some part of US history.
  4. Tell your children it’s cool to be patriotic and to show it.  Maybe explain to them why this day is also called "Independence Day."
  5. Enjoy a picnic, meal, or other gathering with family and friends and say something nice about our country – regardless of your political bias, ethnicity, economic level, education, or favorite women's soccer team (sorry, I had to throw that last one in).

Happy 4th everyone!  Be safe too.

CAB

This Bud’s not for you. The NLRB chugs Anheuser-Busch.

Reconsidering its many pre-Noel Canning cases, the NLRB in Piedmont Gardens not surprisingly held again this week that employers cannot withhold witness statements from unions as a matter of general practice.  And with that decision so goes nearly 40 years of precedent, in place across both Democratic- and Republican-appointed boards. 

So what happened? 

First, a quick bit of history.  In 1978 the NLRB held in Anheuser-Busch, 237 NLRB 982 (1978), that employers had the general right to refuse to provide witness statements to unions.  The Board based this rule on the reasoning that “the premature release of witness statements risked employer and union intimidation of potential witnesses, as well as the possibility that witnesses might be reluctant to give statements at all absent assurances against prehearing disclosure.”  This bright-line rule made labor practice easy for everyone:  If the union demanded witness statements in a request for information, an employer could decline to produce them, and that was that.  The rule and its rationale made sense.

Overruling Anheuser-Busch, the Board majority in Piedmont Gardens concluded that disclosure or nondisclosure of witness statements now depends on a balancing of interests between the union’s right to information against “legitimate and substantial confidentiality interests established by the employer,” as explained in the Supreme Court’s 1979 Detroit Edison case.  This result of course requires more work by an employer and also exposes the employer to a potential unfair labor practice charge if its balancing of interests differs from the Board's view.

How does this balancing of interests work?  That’s the tricky part. 

Labor law presumes, or at least very strongly encourages, employers having to produce information sought by a union.  Therefore, an employer needs to dig hard and deep for those “confidentiality interests” the Board and Supreme Court hold are worthy of protecting.  

Some practice tips for employers considering whether to withhold witness statements:

1.     Depending on the nature of the investigation generating the witness statements, legal counsel for the employer should either interview the witnesses themselves and create the statement or direct nonlawyers, in writing, to conduct the investigation and create a work-product privilege shield.

2.     If there is a possibility of witness intimidation or retaliation, ask and document the witness’ concern about such conduct and document the witness’ request for protection against disclosure of the statement. Also document any examples of existing harassment or retaliation toward the witness.

3.     With investigations arising from discrimination charges or complaints – especially by a supervisor of a complaining party – rely on the EEOC’s Enforcement Guidance dealing with vicarious liability for supervisor’s conduct. Significantly, that guidance states:

“An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.”        

Dissenting Member Johnson noted in Piedmont Gardens that the EEOC itself in separate guidance requires confidentiality of witnesses in its own internal investigations.  And in an interesting bit of questionable due process, the NLRB itself refuses to turn over its witness affidavits in a complaint hearing until right after the witness testifies.  Why?  Ostensibly, to protect witnesses.

4.     Immediately raise confidentiality concerns in your response to the union’s request for information; don’t assert your concern weeks or months later, as an afterthought, when responding to an unfair labor practice charge from the union.

5.   Consider negotiating a nondisclosure agreement (NDA) with the union to narrowly limit disclosure and use of the witness statement. The Board’s majority in Piedmont Gardens noted that an NDA could be a reasonable accommodation to the union requesting a witness statement.  Alternatively, offer to provide an accurate summary of the witness statement in lieu of the statement itself.

6.    Ultimately, you may want or need to produce a witness statement if you intend to use it later in an arbitration, administrative proceeding, or litigation. If you plan on using it later for substantive proof (as opposed to merely impeachment), cough it up now and move on.  You’ll avoid a donnybrook later when you introduce the statement into evidence.

A couple final comments.  If an employer knows or suspects the union has taken witness statements, demand them.  Unions have to respond to relevant requests for information from employers.  The duty to provide information under NLRB precedent is mutual and reciprocal.  Turnabout is fair play.

Also, the Board’s Piedmont Gardens decision arose in a unionized workplace, based on rationale and obligations that apply specifically to unions and employers in their bargaining relationship.  As we know, however, the Board has tremendously expanded the reach of the NLRA to nonunionized workplaces.  While Piedmont Gardens should not apply in a nonunionized context, don’t dismiss that possibility.  We’ve seen more than once this Board’s efforts to forcefully hammer a square peg into a round hole.  Forewarned, therefore, is forearmed.

Good luck.

CAB

A pox on “Ban the Box”

Oregon just became the latest state to join the “ban-the-box” cult. 

This one still ticks me off.  A lot.  Not that I live or work in Oregon.  Not that I’ve ever visited Oregon, though it looks nice in pictures.  Rather, this latest member of the feel-good club simply reminded me of the wrong direction we’re headed.  

Assume you own a business, built from long hours of hard work, lost sleep, lean times, and pride.  The job market, like today, has dozens of applicants for every job you’re opening.  You’re in fact turning applicants away for jobs.  And, as a matter of policy and principle, you don’t hire ex-cons. 

Boom!  How dare you not want to hire convicted murderers, rapists, burglars, child molesters, or embezzlers.  You are now the guilty party.  You're the one breaking the law.  Really.  And I’m not making this up.

A couple years ago, the EEOC in its quest for utopia announced that it would begin whacking employers that have a blanket policy of not hiring criminals.  The EEOC’s “guidance” on this bit of social engineering is here

Are criminals the new protected class?  Maybe, at least according to the EEOC, 18 states, Washington, D.C., and several cities that now prohibit employers from asking anything about criminal records on a job application.*  Save those questions about criminal convictions for later, after you’ve made a conditional job offer and after you’re even further down the hiring road.  Yeah, that makes sense.

“Ban the Box” – the trite name for this bizarre prohibition – is another verse from the old song that any wrongdoing is “society’s fault.”  But criminals make behavioral choices, and those choices carry consequences beyond fines and jail terms. 

Convicts can’t own firearms.  Convicts can’t vote.  Ironically, convicts can’t hold many federal jobs. . . except perhaps in Congress.  (Hmmm, go figure?)  Yet the “ban-the-box” craze would force employers into a role of social agency to see whether or not their new employee is a recidivist.  That's a risk employers should not have to take.

Sure, most employers can satisfy the EEOC’s guidelines or ban-the-box laws by jumping through hoops to assess whether their applicants’ criminal convictions should disqualify them from being hired.  But why put an employer through this process at all?  What the EEOC and other ban-the-box proponents deliberately ignore is that this make-work exercise imposes real costs, wastes time, and unreasonably interferes with an employer’s interest in running its business as it chooses.   

Employers have a right (no, a duty) to ask, at the first instance and on a job application, if the person seeking to join their business, work with fellow employees, enter customer homes, or handle company funds is a convict.  Period.  Any restriction on that gatekeeping function infringes on the business owner’s property and liberty rights.

And how by the way is the EEOC doing in its efforts to gag employers and tie their hands in the hiring process?  Not so good.  Courts have spanked the EEOC for its overreach in this area.  For a few examples, see the district court and Fourth Circuit’s decisions in EEOC v. Freeman Companies, as well as the Sixth Circuit’s decision in EEOC v. Peoplemark.

So what’s an employer to do in light of EEOC or state and local ban-the-box laws? It’s time to get mad.  It’s time to fight back.  It’s time to be as creative as the EEOC is in finding the proverbial bogeyman where none exists.  Howard Beale summed it up quite nicely in the movie “Network.”   

If you or your business face a complaint for your “unlawful” ban against hiring convicts or for failing to “properly” assess a convict’s potential impact on your business, consider some of the following possible defenses and tactics:

  • Argue an improper delegation of powers by the EEOC unilaterally creating criminal behavior as a new protected class if Title VII does not protect criminals, why should the EEOC second guess Congress?
  •  Assert a defense or counterclaim for unlawful taking and deprivation of liberty and property interests and due process rights, in violation of state and federal constitutions – yes, Lochner deserves a revival. 
  • Seek EAJA relief or other remedies providing for reimbursement of litigation costs & attorneys’ fees for defending against administrative and court actions.  In the Peoplemark case, above, the court affirmed an award of $750,000 for costs & fees to an employer that successfully defended a criminal background check lawsuit by the EEOC.  Now there's a tax refund for ya.
  • Send FOIA or open records requests or, if in litigation, seek discovery of the charging agency's own practices in hiring and background checks – for instance, the Sixth Circuit in EEOC v. Kaplan Higher Education Corp. expressly called out the EEOC suing an employer “for using the same type of background check that the EEOC itself uses.” What’s sauce for the goose is sauce for the gander, right?

The EEOC has given no sign of relenting in its enforcement of guidelines protecting convicts. But the silver lining so far is the courts also aren’t buying this ban-the-box silliness.  Courts instead are calling the EEOC’s disparate impact arguments underlying this prohibition “laughable” and “unreliable” – their words, not mine.

There may indeed be a pox on ban the box.  We can only hope.

CAB

 

* States with some flavor of ban-the-box laws include California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Ohio, Oregon, Rhode Island, Vermont, and Virginia.

 

Bruce(Caitlyn) & Rachel: Is this the end of "identity"? And if so, is that a bad thing?

What do Bruce/Caitlyn Jenner and Rachel Dolezal have in common? (Dolezal by the way is the purportedly white [black, both, neither?] president of the NAACP chapter in Spokane, Washington.)  Both perhaps have inadvertently signaled the end of identity in America or at least have launched a discussion questioning the intellectual foundation of identity in politics, law, business, and so on.

Unless you've been living under a rock the last several months, you know that Jenner is today's cause célèbre because of his public disclosure that he is now, or on his way to becoming, a she.  Whatever.  While I can appreciate Bruce's accomplishments as a male Olympian, I could care less about his choice in his sex identity or sexual practice, or his recent sensational appearance in the entertainment media.  Frankly, I include Jenner with the rest of his narcissistic family responsible for sapping countless hours of otherwise productive time from catatonic fans. 

Dolezal presents a more fascinating story to me.  Outed by her own parents no less, NAACP leader Dolezal is guilty of a serious identity crime:  she's not black enough.  Hell, she's not even black.  But wait.  Her defense is intriguing.  She's a wannabe black. She identifies with black. She is the new black. 

Before you think I'm ridiculing Dolezal, I'm not.  Her choice to identify with blacks, despite her parents' claim that she's white as rice (and, really, wouldn't they know?),    is no less legitimate than Jenner's sex conversion.  Yet the latter is elevated to near deity status, while the former is criticized, reviled, and quite likely soon to be ejected from her NAACP position.  To quote a true champion of identity politics, what difference does it make? 

None. 

If you believe Jenner's decision transcends judgment and is unassailable, then intellectually you must hold the same belief about Dolezal's decision to "become" black. Therein lies this new "identity" paradox for some.

So how do Jenner and Dolezal intersect?  Both illustrate that those little EEO or demographic boxes we are required to check on paperwork from birth to death are,     in effect, meaningless.  After all, if you can ignore your DNA, genetics, physiology, and any other characteristic that (presumably) defines your identity, then can identity have a permanent meaning?  

When I was studying civil rights and employment law in law school, courts found that a critical requirement of "protected class" members' status was their "immutable characteristics" – i.e., their race, sex, ethnicity, age, etc.  Things you were born with and could not change.  Jenner and Dolezal's conduct throws "immutability" out the window.  And as a result, if everyone is part of a protected class, or a potentially protected class member, then logically no one is part of a protected class.  At some point, your identity simply will be "human."  And maybe it should.

Think about it.  If you apparently can choose to move into or out of an identity, what purpose does identity ultimately serve?

None, at least not in the Jenner-Dolezal world.

If Jenner and Dolezal haven't opened the door to ending the senseless, identity-centric focus on all things in our society, they've at least cracked it a bit.  Can affirmative action or hate crimes exist if the beneficiary or victim can change identity at will?  Can defendants establish defenses to civil or criminal liability by changing their identity?

Chief Justice Roberts recognized the folly of identity litmus tests in the Seattle School District case when he stated, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  And so MLK's wish for us to judge people by the content of their character rather than by the color of their skin (or by some other immutable characteristic) may come true even sooner. 

Jenner and Dolezal’s actions suggest that identity – whether sex, race, or whatever – may have lost a significant part of its utility in the political-legal sense.  Who'd have thought, however, the Kardashians would be partially responsible?

CAB

Congratulations, Grads! …Now get to work.

Although not invited to give a commencement speech anywhere, I’ve sometimes thought what words of advice I’d give to kids and young adults about to embark on a journey into that scary place called “work.”  So, in a couple minutes (the ideal length for a commencement speech IMHO), here we go:

Ok, Graduate. You did it.  

Whether finishing high school or college, you, the Class of 2015, have completed a major chapter in life.  Congratulations! 

Now, the bad news.  You’re just getting started with “real life.” 

For those of you going out into the workforce, the fact you’ve got a job is terrific.  That result in itself is a major cause for celebration these days.  And as you get ready for work, a few helpful hints:

· Leave Mom and Dad at home. They aren’t welcome at work. They can’t help you there.  Your boss doesn’t need or want their input.  There’s no such thing as “Bring your parent to work day.”  Your employer hired you and is counting on you to do the job you were hired for.

· There’s no trophy for doing your job. That’s what you were hired for in the first place and what you’re expected to do.  All the sociological preaching about catering to Millennials and their “special” way of getting them to work, while a great cottage industry for former EST promoters, is utter hogwash.  You’re no more special than those who’ve been here before you.  Just do what’s expected.  Work. Contribute.  Show appreciation for your boss and coworkers. Volunteer for extra work. Go above and beyond what you’re asked to do.

· Above all, show up to work.  The days of sleeping late are pretty much over.  If your schedule is 8 to 5, that means be at work no later than 8 and leave no sooner than 5.  Pretty simple concept, right?  Do it.

If you are graduating from high school or college and don’t have a job yet, unfortunately you’re not alone.  The economic recovery out there, despite what political spin doctors would have you believe, is a wobbly colt at best.  And it’s really an employer’s market.  So how can you distinguish yourself from your competition?   Some positive ways to do so:

· Time to grow up on social media.  Though prospective employers generally have no need to read your social media posts, many probably do.  Clean up your posts. Take down your beer pong profile picture.  You’re not in high school or in college Greek life anymore.  Put some clothes on.  And get rid of those words you don’t want your grandmother to know that you either know or use.

· First impressions do matter.   Please save the gauges, horns, septum posts, serpent tongues, and other unusual studs or piercings for National Geographic. Too many visible tattoos are an unnecessary distraction – yes, just my opinion, but not unlike the opinion of many potential employers you are asking to invest in hiring you.  If you have overindulged somewhat in body modifications, cover up when you interview.  And if you’re thinking of getting congratulatory ink for graduation, think again.  Look at your uncle who was in the Army or Navy back in the 60s or 70s to see what your tattoo will look like years from now.  Nice, eh?

· Past jobs count.  Work on your references to give potential employers.  A really good reference could make a crucial difference in a hiring decision.  Now is the time to perfect, or start perfecting, the art of schmooze.  Find some reliable, good references from your prior jobs and use them.  And don’t forget to thank them regardless whether or not you land that new job.  Manners matter, too.

· Master the art of networking.  Related to the previous point:  Network. Network. Network.  Merit and ability do matter, but so does knowing friends in high places.  In many situations – whether landing a job or getting a promotion – it frequently is who you know and not what you know that helps you succeed.  Perhaps not fair, but that’s the fact Jack.  Work your connections.  Develop new ones.  Always be networking throughout your educational and working career.  For professional and personal reasons, you need a network.

· Never, never, ever lie on a job application.  Last but not least is the First Commandment of the workplace:  "Thou shall not lie on your job application."  Break that rule and it will come back to bite you sooner or later.  And it can get you fired, even years into a job.  If you are asked about an issue you think could be a problem with your getting hired, discuss it with your interviewer.  Ask for clarification.  Provide an explanation at the end of the application.  But don’t fib.

And that, folks, is the end of the short commencement speech I’ve never given.        Now go enjoy some BBQ, bubbly, friends and family. 

I wish the Class of 2015 all the best!

CAB

The First Step....

Well here we go.  First blog post.

This is a special day for me.  For some time I've wanted to start my own law practice.  My former employer, AT&T, recently made that possible with an early retirement offer I couldn't refuse.  Fortunately, I leave that job with many friends, no regrets and, in fact, my sincere thanks to an employer that let me support my wonderful family.  I appreciate AT&T for the many exciting jobs I handled there and for exposure to a breadth of legal matters rivaling that of most lawyers in private practice. 

But I'm too young to "retire."  I stink at golf and have no patience for fishing.  And I still enjoy my chosen profession. So once again and decades later, I'm back in private practice.  Solo.  The buck stops here. 

I must admit that starting a solo practice has given me an enormous respect for persons before me, lawyers and nonlawyers alike, who build a business from scratch.  There's a lot of work and planning involved, more than I expected, just to be able to ply your profession.  But now we're finally ready and the digital "shingle" is out -- see my website here, compliments of my daughter the graphic designer.  We're open for business.

Besides practicing law, I enjoy writing.  Hopefully, this blog will let me combine parts of both. 

So what can you expect here in the future?  Well, of course commentary about workplace law.  That's my bread and butter.  Some observations about the legal profession.  Maybe some humor.  Sarcasm galore.  A pinch of politics.  And maybe an occasional personal tidbit. 

I welcome your comments, critique, debate, and dialogue.  

Stay tuned.

CAB