Employment Law This Week®: EEOC & Disability Discrimination Lawsuits, Arbitration Deferral Case, Statutory Claims for Travel Pay Dismissed, ICE Will Increase Workplace Inspections

Episode 93: Week of October 30, 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) EEOC's Year-End Filings Concentrate on Disability Discrimination

Our top story: Disability discrimination is in the spotlight as the Equal Employment Opportunity Commission (EEOC) files a flood of lawsuits. The EEOC ended its fiscal year with a surge of disability discrimination lawsuits against high-profile companies like Lowe’s and Volvo North America. The agency filed nearly 90 total lawsuits in September, about triple the number from September 2016. We asked Shira Blank, from Epstein Becker Green, what we should take away from the EEOC’s actions:

“Most of what we are seeing is a follow-up from the Obama administration. In 2016 and one of the last acts of the administration, the EEOC released guidance regarding leave laws, and it said that it intended to target employers with inflexible leave policies. So what we are seeing here is the EEOC following up on that initiative. It would be difficult to argue that the EEOC is not trying to send the message here, as it brought lawsuits against major players across a variety of industries, including auto manufacturing, hospitality, and major retailers.”

Watch the extended interview here.

(2) Ninth Circuit Backs NLRB in Arbitration Deferral Case Beneli v. NLRB

The U.S. Court of Appeals for the Ninth Circuit approves the National Labor Relations Board’s (NLRB’s) new standard for deferring to arbitration. The new standard came in a 2014 unfair labor practice dispute involving the discipline of a shop steward at a construction company. The NLRB deferred to an arbitrator’s decision but also changed its standard to make deferring to arbitration less likely. In this appeal, Beneli v. NLRB, the employee argued that the NLRB should have applied the new standard to her case. The employer claimed that the NLRB was right not to apply the new standard retroactively but argued that the standard itself violated the National Labor Relations Act. The court found that the new deferral standard is valid and agreed with the employer that it should not have been applied to this case.

(3) Sixth Circuit Affirms the Dismissal of Statutory Claims for Travel Pay in Abell v. Sky Bridge Resources

Workers alleged that their IT consulting firm violated the Kentucky Wage Hour Law because the company paid them only half their hourly wage for travel time. Like the Fair Labor Standards Act, the Kentucky law states that travel away from home is working time only if it cuts across the employee’s workday. The workers had contracts stating that their workdays began when they arrived at the client’s location and ended when they left. So their travel time could not have cut across the workday, and they could not establish their statutory claims.

(4) ICE to Quadruple Workplace Inspections

The acting director of U.S. Immigration and Customs Enforcement (ICE) has ordered the agency to ramp up immigration enforcement around Forms I-9 at workplaces by four to five times current levels. This action will reverse a slowdown that took place toward the end of President Obama's tenure, when I-9 audits fell from a peak of 3,000 per year in 2012-2013 to just 1,250 in fiscal year 2015-2016. If employees’ I-9s are found to be in violation, a company could face fines of up to $21,000 per undocumented worker. Acting Director Thomas Homan has been floated as a possible nominee for Secretary of Homeland Security.

(5) Tip of the Week

Ana Chapa, Executive Director of the Corporate Work Study program at Don Bosco Cristo Rey, spoke to us about the importance of fostering socioeconomic diversity in the workplace:

“Stereotypes about certain groups of people, especially people from differing economic backgrounds, can carry into the workplace. Corporate work-study programs provide a mixed learning experience. When young people from lower incomes integrate into a corporate environment, they often break down their own views. In addition to other volunteer programs, bringing underserved low-income youth into the corporate environment creates a long-lasting impact on diversity initiatives because it fosters an ongoing culture of acceptance, support, shared learning, and inclusion among your employees.”

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