Happy holiday weekend!
With the Fourth of July approaching, we will go out with a bang.
How much do you know about employment law in the news from this week or so? Take our quiz and find out! As always, the answers appear immediately after each question, so you can cheat all you want. (But you should know that cheating is un-American.)
Ready? Here we go!
No. 1: The U.S. Department of Labor, Wage and Hour Division, issued three opinion letters on Monday. Which correctly summarizes one of the letters?
A. The threshold for “exempt” status under the Fair Labor Standards Act will increase to $33,000 effective August 1.
B. The “8 and 80 rule” will now apply to all employers, and not just those in the healthcare industry.
C. To be exempt as a “highly compensated employee” under the FLSA, a paralegal must be paid at least $100,000 a year (among other things).
D. The Portal-to-Portal Act will be repealed.
ANSWER: C. In addition to the opinion letter about paralegals’ “exempt” status, the Wage and Hour Division issued letters about how to calculate the regular rate when employees receive a non-discretionary bonus and “rounding time.”
No. 2: According to the Daily Mail, an employee in Iowa City pressed criminal charges against her boss for some (alleged) disgusting conduct on his part. What did the boss allegedly do?
A. Left a “spy pen” in the conference room where the employee, a nursing mother, was expressing milk, which allowed him to record her exposing her breasts without her knowledge or consent.
B. Left the seat up in the unisex bathroom.
C. Spit in her coffee while she wasn’t looking.
D. Picked his nose in her presence.
E. All of the above.
ANSWER: A. And, although everyone is presumed innocent until found guilty beyond a reasonable doubt, it doesn’t look good for the owner of this architectural firm. After the female employee found the pen and determined that it had a USB port, the police raided the boss’s office and home, and found 22 secret videos of the employee. The owner reportedly explained that he thought the employee was “very beautiful” and he just wanted to see what was under her shirt. Oh, well, then. Is that all? OK.
No. 3: Last week, the Trump Administration agreed to delay the start of an employment-related initiative that was supposed to take effect soon. What was it?
A. Protection of political conservatives from discrimination.
B. A law prohibiting Congressional Democrats from subpoenaing employees’ income tax returns.
C. Religious conscience protections for employees and students in the healthcare industry.
D. A jobs program for out-of-work Buzzfeed columnists.
ANSWER: C. The U.S. Department of Health and Human Services issued final regulations that would prohibit healthcare employers from discriminating against employees and students who had religious objections to certain medical procedures, such as abortion or gender reassignment. The regulations were scheduled to take effect this month, but last week the DHHS said it was willing to delay the regulations’ implementation until November 22 while various legal challenges to the regulations are pending.
No. 4: The governor of a state in the Ninth Circuit has signed into law legislation that makes it illegal for employers to refuse employment because an applicant tests positive for marijuana. Which state is it?
A. California, of course!
ANSWER: E. OK, the legislation was actually signed into law on June 5, but I didn’t realize it until now. Medical and recreational marijuana use are legal in Nevada. The law will take effect January 1, 2020, and has exceptions for firefighters, emergency medical technicians, and employees who operate motor vehicles and are required by federal or state law to be tested. The statute also has a catchall exception for positions “[t]hat, in the determination of the employer, could adversely affect the safety of others.” The law will not override conflicting provisions in a collective bargaining agreement or employment contract, or federal law (such as DOT regulations).
No. 5: At least 206 employers have filed an amicus curiae (“friend of the court”) brief in connection with a big pending case involving a Title VII issue. What is the issue?
A. Whether sexual harassment must be “severe or pervasive” to be actionable under Title VII.
B. Whether Title VII prohibits discrimination based on sexual orientation or gender identity.
C. Whether discipline is an “adverse employment action” for purposes of a retaliation claim under Title VII.
D. Whether “exhaustion of administrative remedies” is a jurisdictional requirement or, instead, an affirmative defense that can be waived by an employer who fails to raise it in a timely manner.
E. A and D.
F. All of the above.
ANSWER: B. As our regular readers know, the U.S. Supreme Court has agreed to review two sexual orientation cases that will be considered together — Bostock v. Clayton County and Altitude Express v. Zarda — and one transgender case that will be considered separately — R.G. & G.R. Harris Funeral Homes v. EEOC. The amicus brief will be filed today in both cases, and, not surprisingly, the companies want the Court to find that Title VII prohibits discrimination based on LGBT status. Among the companies that have signed on are Amazon, Apple, Coca-Cola, The Hartford, Microsoft, the Tampa Bay Rays, The Walt Disney Company, and Williams-Sonoma.
5 correct: You are George Washington, John Adams, and Thomas Jefferson rolled up into one! Great job!
3-4 correct: Nice work! John Hancock, at the very least!
1-2 correct: Er, uh, someone who once met someone who knew John Hancock’s eighth cousin, twice removed?
0 correct: Eek! Benedict Arnold!
Just kidding! You all did great.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.