Employment Law This Week®: Agencies Release Regulatory Agendas, EEOC’s Anti-Harassment Article, Class Certification Evidence, Philadelphia’s Salary History BanEpisode 118: Week of May 21, 2018 May 21, 2018
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. Spring 2018 Regulatory Agendas Released
The Equal Employment Opportunity Commission (“EEOC”), the National Labor Relations Board (“NLRB” or “Board”), and the U.S. Department of Labor (“DOL”) have published their spring 2018 regulatory agendas, giving some indication as to the priorities of each agency. The NLRB wants to take on the continuing question of how to determine joint-employer status, noting that the agency may engage in rulemaking to set a new standard. The EEOC identified seven different priorities, including employee incentives for workplace wellness programs. And the DOL’s agenda included proposed rulemaking on the salary threshold for white-collar overtime exemptions and a final rule to rescind the "persuader rule." David Garland, from Epstein Becker Green, has more:
“I'd say there are two surprising items in this agenda. The first comes from the Department of Labor, with regard to the proposed overtime rules, the new proposed rules. Those have been a subject of some attention for some time, going back now to the Obama administration; they were the subject of litigation. We expected the Trump administration to be acting sooner than it has in that area. And now ... this agenda tells us not to expect any additional proposed rulemaking until January of 2019. The second surprising area comes from the National Labor Relations Board. Again, particularly with regard to the joint-employer standard. The Board, over the last few years and the past two administrations, has addressed that standard in decision-making, whether it’s the Browning-Ferris decision or, subsequently, the Hy-Brand decision. Now, the Board is telling us, rather than engaging in the process of that fashion, it's going to consider establishing the joint-employer standard through rulemaking. So that's a bit surprising.”
2. EEOC Releases “Promising Practices for Preventing Harassment”
There is more news from the EEOC this week, in response to #MeToo. The agency has published an article on preventing workplace harassment in its quarterly publication, Digest of Equal Opportunity Law. The article identifies best practices, including training supervisors and implementing a harassment complaint system, and contains specific content recommendations for harassment policies. The recommendations come out of a 2016 taskforce report addressing workplace harassment.
For more, click here: https://bit.ly/2Gu7kNs
3. Inadmissible Evidence May Be Considered at Class Certification Stage
The U.S. Court of Appeals for the Ninth Circuit ruled that evidence need not be admissible to support class certification. The Ninth Circuit panel reversed a federal district court decision refusing to certify a class action in a wage-hour matter on the grounds that the relevant evidence was not admissible. The Ninth Circuit held that courts cannot decline to consider evidence solely because it is inadmissible at trial.
4. Philadelphia Federal Judge Partially Nixes Salary History Ban
A salary history ban in Philadelphia? A federal judge says, “Not so fast.” The federal district court has issued a preliminary injunction halting certain provisions of the law, which prohibit employer questions about a candidate’s past wages. The judge found that the ban on such inquiries probably violates the First Amendment. The ruling did not impact another key provision of the law that prevents employers from using salary history to determine compensation.
For more, click here: https://bit.ly/2KyBBgR
5. Tip of the Week
Tracy Van Duston, Senior Recruiter and Account Manager for NRI Staffing, offers advice on hiring for behavior style and cultural fit:
“Are you still asking the old cliché interview questions, ‘What's your greatest strength, and what's your greatest weakness?’ Candidates are ready for these questions and often answer with, ‘My area of development is actually a strength, or I'm a perfectionist.’ To overcome this hurdle, consider asking behavioral interview questions. Not only will behavioral interview questions help you identify high-performing candidates quickly, they will also give you insight on how adaptable they are, how well they collaborate, and what leadership and growth potential traits they possess. When asking behavioral interview questions, listen closely for ‘STAR’ answers. ‘STAR’ is an acronym for situation, task, action, and result. STAR answers will describe the specific situation, what the task or goal was being worked towards, will describe the actions taken to address the situation, and the result achieved.”
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