Employment And Labor Law Developments (And A Few Other Things) I’m Thankful For

by Constangy, Brooks, Smith & Prophete, LLP

This has been a weird year for me. (And, no, I’m not even thinking about the election!) But ITurkeyDrawing.flickrCC.LovelornPoets have much to be thankful for, and I hope you do, too.

BREAKING THING TO BE THANKFUL FOR: Yesterday evening, the U.S. Department of Labor’s new rule governing white-collar exemptions under the Fair Labor Standards Act was struck down by a federal judge in Texas. I’ll have more on the decision itself later today.

No. 1. A possibly kinder, gentler EEOC. As I reported last week, the Equal Employment Opportunity Commission released charge-filing/resolution statistics for Fiscal Year 2016, which ended September 30. The statistics (which are incomplete) indicate more charges filed, but less money paid by employers in mediation, settlement, or conciliation, less money recovered through lawsuits, and fewer lawsuits filed, compared with FY 2015. Nice!

No. 2. The ignominious defeat of the new Persuader Rule. In addition to being burdensome for employers, the new rule issued by the U.S. Department of Labor would have seriously infringed on the attorney-client relationship. Last week, a federal judge in Texas issued a permanent, nationwide injunction, which prevents the rule from ever taking effect (subject to the DOL’s right of appeal).

Click here to view video.

No. 3. (*Not a political endorsement*), but if President-Elect Trump gives some regulatory relief to employers, I will be thankful. (Although federal judges in the State of Texas are not leaving him much to do!)

No. 4. “Fair Pay and Safe Workplaces” isn’t dead yet, but it’s pretty darned sick. This Rule would have required federal contractors to report on “labor law violations” to the government, and the information would have been made publicly available and would have been used against federal contractors to debar them from working with the federal TurkeyDrawing.flickrCC.LovelornPoetsgovernment in the future. The worst part of this rule was that “labor law violations” included findings that had not been adjudicated finally. For example, if the EEOC made a “reasonable cause” determination against an employer, then that was a “labor law violation,” even though an employer can still go to court and win a case in which the EEOC has found “cause.” Another example is that the rule would have found a reportable “violation” when a Regional Director of a National Labor Relations Board decided to issue a complaint against an employer. (My blood pressure is rising as I write this!) But a federal judge issued a preliminary injunction in October, which for now blocks the rule from taking effect. Most political observers believe that President-Elect Trump will scrap the rule completely when he takes office. Good riddance.

No. 5. We should get some clarity on LGBT rights under Title VII in the not-too-distant future. As I’ve written numerous times before, the federal law on LGBT discrimination — and, in particular, whether Title VII prohibits discrimination based on sexual orientation — is a muddle right now. But I don’t think that will continue much longer. The issue will be heard November 30 by the U.S. Court of Appeals for the Seventh Circuit, and on January 20 by the Second Circuit. In addition, the Sixth Circuit will be hearing the EEOC’s appeal of the lower court decision in EEOC v. R.G. and G.R. Funeral Homes, in which a federal judge in Detroit found that an employer could lawfully terminate a transgender woman based on a “Hobby Lobby” exception that is available to closely held companies who are forced by the U.S. government to violate the religious beliefs of the owners.

No. 6. Constangy was named the best law firm for women and minorities! In 2016, our firm racked up the recognition for being a great place for female and minorityTurkeyDrawing.flickrCC.LovelornPoets lawyers. First, Law360 ranked us as being in the top 10 in the nation for African-American attorneys, in the top 25 for women partners, and in the top 100 for minority attorneys and women attorneys. Then the National Law Journal named us the fourth best law firm in the nation for women lawyers. But wait! There’s more! In August, vault.com rated us Number One in the nation for women AND minority attorneys.

No. 7. Speaking of women, I’m grateful for FOCUS, our new women’s leadership blog that was launched this year, and for my law partner Heather Owen, who is the proprietor.

No. 8. I’m thankful for my firm, and especially to Neil Wasser and Don Prophete, to Chief Marketing Officer Tori Whitaker, and to Tori’s outstanding team — (in alphabetical order) Stephanie Hendricks, Madeline Holihan, Rebecca Pugh, and Kian Wint. And no less thankful for my assistant, Tina Tucker, for my wonderful clients (you know who you are!), my excellent and fun colleagues, and our newsletter contributors — too many to mention, but there are two stalwarts I must thank by name: David Phippen and Susan Bassford Wilson. And also my law partner Leigh Tyson, who did us all a huge favor by agreeing to be “the hostess with the mostest” on our new ConstangyTV — she is awesome!

Click here to view video.

No. 9. I’m thankful to all the folks who have contributed to the blog this year, especially the members of our Affirmative Action/OFCCP Compliance Practice Group and our Public Sector Industry Group. I counted 17 contributors besides TurkeyDrawing.flickrCC.LovelornPoetsmyself this year! Thanks ever so much to 2016 guest bloggers (in alphabetical order) Ken Carlson, Cara Crotty, Louise Davies (no web page), Tommy Eden, Billy Hammel, Steve Katz, Ellen Kearns, Damon Kitchen, Angelique Lyons, Marcia McShane, Alyssa Peters, Ray Poole, Angela Rapko, Kristine Sims, Stephanie Underwood, Heidi Wilbur, and Jon Yarbrough. Wow!

No. 10. Saving the best for last, I am profoundly thankful for my wonderful family, including my beautiful grandson who was born in April, and my friends, and of course you, my dear readers.

Because of the holiday, there will be no blog post this Friday. I hope you all have a safe and very happy Thanksgiving!

Still Image Credit: From flickr, Creative Commons license, by Lovelorn Poets.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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