E-Blasts

We’ve Got the Cart, Now Where’s the Horse?

 By: Rebecca Schach

As we previously reported, California Representative Lofgren introduced the cart for immigration change through the Farm Workforce Modernization Act (originally H.R. 4916 then renamed H.R. 5038) into the House of Representatives last month. Just this past week, the bill moved out of the House Judiciary Committee and is headed to the House floor for a vote. As it stands, advocates are concerned that the bill will not have a horse in the race given the overwhelming focus on impeachment proceedings in the House. We will continue to ride this pony train and provide updates as the Congressional sessions winds down for 2019.

The tech giant Oracle Corporation (Oracle) kicked off the holiday season last week by filing a 50-page complaint against the Department of Labor (DOL) claiming “unprecedented overreach” in the agency’s enforcement practices.

In the lengthy complaint, Oracle claimed that the DOL has created an unauthorized administrative trial system that prosecutes and adjudicates discrimination claims, then awards broad monetary and injunctive relief when the agency finds violations. First, Oracle asserts that the DOL does not have the legal authority to prosecute Oracle, or any federal government contractor for discrimination violations, because the DOL is not the agency responsible for discrimination- that responsibility lies with the Equal Employment Opportunity Commission (EEOC). Oracle calls the agency’s practice a “power grab” that exceeds its Congressional authority.

7th Circuit Weighs in on Obesity

 By: Adrian Hoppes

The Seventh Circuit released a decision to provide clarity regarding when obesity is protected under the Americans with Disabilities Act (“ADA”). The Seventh Circuit held that an employee can only succeed on an ADA claim if the employee can establish one of two things: 1) the obesity is an actual impairment, or 2) the employer believes the obesity is an impairment. This court determined that obesity is only a physical impairment under the ADA if there is an underlying physical impairment.  Please note, this decision only applies to employers within the Seventh Circuit.  Although many courts have sided with this court, a small number of district courts have held the opposite. Until the U.S. Supreme Court tips the scale on this weighty issue, it is imperative for employers to verify the precedent in their jurisdictions.

Trader Joe’s Can’t Trade Liability

 By: Rebecca Schach

This week the California Labor Commissioner’s Office hit Trader Joe’s and Grocery Outlet with fines in excess of $825,000 each for minimum wage and overtime violations. Both Trader Joe’s and Grocery Outlet obtain labor from an Anaheim-based subcontractor Inventory Professional Inc. Through agency investigation, the Labor Commissioner’s Office found unpaid wages for approximately 65 hours during a three-year period and violations of child labor laws. The Labor Commissioner’s Office held the companies responsible per California’s client-employer statute, Labor Code §2810.3, in effect since 2015. In total, the Labor Commissioner’s Office issued citations for wage theft violations totaling $1.6 million. The Labor Commissioner's Office continues to use the client-employer statute to hold employers responsible for violations by labor contractors.

The Department of Labor (DOL) recently issued an Opinion Letter that confirms intermittent leave under the Family Medical Leave Act (FMLA) for certain parent-teacher conferences is an acceptable use of the protected leave. In the Opinion Letter, the DOL addressed a parent who sought leave from work to attend Committee on Special Education (CSE) meetings at school. The child suffered from a serious health condition that required the child to receive special education and related-services under the Federal Individuals with Disabilities Education Act (IDEA). Each quarter, the school district required a CSE meeting with the child’s speech pathologist, school psychologist, occupational therapist and/or physical therapist, school district representative and parent(s) to discuss the child’s Individual Education Programs (IEP), with the participants providing updates, reviewing doctors’ recommendations and test results, and making recommendations for additional pediatrician-prescribed therapy.

DOL & OFCCP Hit Grand Slams

By: Adrian Hoppes

Coming off of an exciting World Series game Wednesday, there are a couple other players in town you should be looking into for next season. This week the Department of Labor’s Wage and Hour Division (“DOL”) announced it had a record year in collecting from business owners who allegedly shorted employees on overtime, minimum wages and other compensation. A separate agency, the Office of Federal Contract Compliance Programs (“OFCCP”), is also doing a lap around the bases as it reported its own grand slam this year, breaking its own record for settling job discrimination suits involving race, gender and pay bias for government contractors.

Both agencies have come under fire for being accused of suing companies rather than helping them understand the complex and ever-changing rules and regulations. Both agencies have increased outreach events to educate employers about their obligations. As technology advances, and more data is available, agencies are better able to identify where to focus their time and energy. Employers should consider being as proactive as possible in evaluating their workforce policies and practices to ensure they do not strike out if the DOL or OFCCP want to play ball.

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