Employment Law This Week®: Judge Neil Gorsuch, New Immigration Orders, EEOC & NLRB Acting Chairs, Philadelphia’s Wage Equity Law

Episode 58: Week of February 6, 2017

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) Trump Taps Judge Neil Gorsuch for Supreme Court

Our top story: President Donald J. Trump nominated Judge Neil Gorsuch to the Supreme Court of the United States. If confirmed, the 49-year-old Tenth Circuit judge would fill the seat left vacant by the death of Justice Antonin Scalia. Gorsuch was appointed to the federal bench by President George W. Bush in 2006, and his opinions have demonstrated his strong textualist views. Notably, in the Hobby Lobby case, he wrote that the First Amendment protected an employer’s religious objections to the Affordable Care Act’s contraception mandate. Stuart Gerson, from Epstein Becker Green, has more:

“You will find that a Justice Gorsuch is much more of a libertarian when it comes to First and Fourth Amendment issues, as the way Justice Scalia was, and would be seen to take what many would call the ‘liberal’ position ... in employment discrimination cases, I think it’s fair to say that, more often than not, he has sided with the employer. One hesitates to read anything special into that, because all of his decisions in those cases are motivated by his views that statutes should be read literally, according to their text, that it’s not the duty or the responsibility of a judge to fill in gaps or interpret the law in ways that Congress might have intended, but didn’t write into the law. And so he is a literalist, and he is not inclined to defer to the views of agencies like the NLRB in many cases. Although, in some of his decided cases, he certainly has gone along with the NLRB’s position.”

Bonus: Watch the extended interview here.

(2) Executive Orders on Immigration Create Uncertainty

During his first week in office, President Trump signed three executive orders on immigration—two broaden the grounds for removal and detention of foreign nationals in this country, while the third bans the entry of foreign nationals into the United States from a list of seven countries. While it’s still unclear exactly to which categories of foreign nationals the third order applies, businesses that employ large numbers of nonimmigrant foreign workers and green card holders are already seeing the effects. Google, Airbnb, and Netflix are among the companies that have expressed concern over how these orders will affect their workforce. Another executive order reportedly is in the works that would prioritize the hiring of American workers and overhaul work-visa programs.

For more, click here: http://bit.ly/2kwZmfE

(3) Trump Appoints New EEOC and NLRB Acting Chairs

Trump appointed acting chairs for two key federal agencies that handle employment issues. The President has appointed Victoria Lipnic as Acting Chair of the Equal Employment Opportunity Commission (EEOC). Lipnic has expressed concern over the EEOC's additions to the EEO-1 report that require significant pay data collection. And the sole Republican on the National Labor Relations Board, Philip Miscimarra, has been appointed Acting Chairman. While still outnumbered by the Democrats, Miscimarra’s appointment signals the beginning of the end of the “Obama Board,” which has taken an expansive view of the National Labor Relations Act and its applications.

For more on the new NLRB Acting Chair, click here: http://bit.ly/2l4tHyY

(4) Philadelphia Bans Wage History Inquiries for Applicants

Inspired by a Massachusetts state law, Philadelphia is now the first city in the country to protect the privacy of a job applicant’s wage history. Philadelphia’s Wage Equity Law is intended to help eliminate one of the possible causes of pay disparities among men, women, and minorities. Philadelphia’s new law is part of a growing trend; similar legislation is being debated by both states and localities.

For more, click here: http://bit.ly/2kp6I2z

(5) Tip of the Week

Andowah Newton, Director of Legal Affairs for LVMH Moët Hennessy Louis Vuitton Inc., has some advice on best practices for website accessibility and the Americans with Disabilities Act:

“As some of you might already know, the Department of Justice has found that, based on the Americans with Disabilities Act and other similar laws, companies must make their websites accessible to individuals with disabilities. ... More so than almost any other type of legal matter, website accessibility matters require a collaboration across a broad spectrum of teams within a company—the legal team, to prevent and respond to lawsuits; the marketing team, to advise on content; [and] e-commerce, IT, and digital teams to implement accessibility features on an ongoing basis. ... Be sure to consult with an attorney who is an expert in website accessibility and who fully understands the web content accessibility guidelines. He or she will be able to explain the nuances of website accessibility.”

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