Michigan prohibits ban-the-box: Michigan law now prohibits local government entities from implementing so-called “ban-the-box” provisions, under a 2015 law (Public Act 105). Governor Rick Snyder signed S.B. 353 on March 26 to extend the restriction to the job interview process, which was not specifically addressed in the 2015 version of the law. Specifically, S.B. 353 provides that a local governmental body “shall not adopt, enforce, or administer an ordinance, local policy, or local resolution regulating information an employer or potential employer must request, require, or exclude on an application for employment or during the interview process from an employee or a potential employee.” Notably, the new law does not bar any ordinance, local policy, or local resolution that would require a criminal background check for an employee or potential employee in connection with the receipt of a license or permit from a local governmental body. S.B. 353 supporters argued that those who have experienced sex-based discrimination in pay would likely be able to make claims under the federal Equal Pay Act and Title VII, which along with state law protections, such as those provided under the Elliot-Larsen Civil Rights Act, should be sufficient to address claims of sex-based discrimination. Source: CCH 3/29/18
The workplace is killing us, literally: Stanford professor Jeffrey Pfeffer doesn't mince words. Workplace stress – the result of conditions like long hours, a lack of health insurance, little autonomy on the job, and high job demands – doesn't just hit productivity or damage morale. They're killing us. "It's pretty clear that the human costs – in terms of death – and the economic costs, in terms of elevated health care spend, are quite substantial," Pfeffer said in a recent interview about his new book, "Dying for a Paycheck." Pfeffer's book is built around a 2015 paper that said more than 120,000 deaths a year and roughly 5-8% of annual health care costs may be attributable to how U.S. companies manage their workforces. Although OSHA has been effective reducing workforce injuries and death, the social environment is not well regulated and is a leading cause of workplace stress and death. Pfeffer also argues that wellness programs are an attempt to remediate the harmful effects of what’s going on in the workplace and what is really needed is prevention. Smoking cessation and eating and exercise programs merely focus on current conditions, but like OSHA, there should be focus on prevention. Source: Washington Post 3/22/18
Working mothers gaining wider acceptance in the workplace: Working mothers have gained widespread acceptance in the U.S. over the last two decades, but there has been little change in the perception of sexism and gender inequities in the workplace, a new Wall Street Journal/NBC News poll has found. In the survey, 78% of U.S. adults said it is a positive development that more women have a career at the same time they raise children, up 32 percentage points since June 2000 – the last time the Journal/NBC News survey asked the question. At that time, 46% believed the increase in working mothers was a good thing. The survey also found a notable increase in the share of working women who say they are their family’s primary wage-earner, with 49% saying they hold that responsibility today, compared with 37% in 2000. But there has been no change in the share of women who say they have experienced sex discrimination, with 44% saying so both then and now. When asked if men accept and treat women as equals, some 61% of women and 43% of men said no—the same as in a September 1999, Journal/NBC News poll. Source: Wall Street Journal 3/22/18
Using arbitration agreements with class action waivers still effective in independent contractor cases: The 6th Circuit Court of Appeals, which includes Michigan, recently ruled in Zawada v. Uber, No. 17-1092 (6th Circuit Court of Appeals, 3/14/18). The Court ruled that two independent contractors wishing to bring a class action alleging independent contractor misclassification were barred from doing so because they had signed arbitration agreements with class action waivers. If they wanted to dispute their status, they had contractually agreed to do so only in arbitration, and only through an individual (not class) claim. Therefore, it is important to recognize that these types of agreements work. Well-written agreements are enforceable in most jurisdictions and can be an effective tool for keeping your business safe from independent contractor misclassification class actions. Source: Baker Hostetler LLP 3/26/18
Humana to pay $2.5 million to settle systemic hiring claims: Humana Inc. will pay $2.5 million in back wages and interest under a conciliation agreement with the Department of Labor to resolve allegations of pay discrimination against 753 women at the health insurance company’s headquarters in Louisville, Kentucky. The move followed a routine compliance evaluation by the DOL’s Office of Federal Contract Compliance Programs. Humana is a federal contractor with the Department of Defense. In 2011-2012, Humana paid women in consulting, project manager, and manager positions less than similarly situated men, according to the OFCCP. The federal agency determined that Humana’s actions violated Executive Order 11246, which prohibits federal contractors from discriminating based on sex. While Humana does not admit liability, it will make pay adjustments and take steps to ensure that its pay practices meet legal requirements. Source: OFCCP 3/23/18
The U.S. DOL fiduciary rule is dead, maybe: The Fifth Circuit handed down a ruling vacating the United States Department of Labor’s “fiduciary rule” for retirement account advisers and has created confusion in the investment arena that will hopefully (likely only) be resolved or clarified when the Department of Labor decides whether to drop the case or pursue it on appeal. The Fifth Circuit panel rejected the so-called DOL Rule in its entirety, with the majority ruling in favor of the United States Chamber of Commerce. The court stated that the Department of Labor overstepped its authority and that its redefinition of "fiduciary" was unreasonable. This ruling conflicts with the narrower Tenth Circuit opinion that upheld the DOL Rule with respect to fixed indexed annuity sales. The case is Chamber of Commerce et al. v. U.S. Department of Labor et al., Case Number 17-10238, in the U.S. Court of Appeals for the Fifth Circuit. Source: Nelson Mullins Riley & Scarborough LLP 3/19/18
I’m French, I’m rude, and I was fired for being French: Guillaume Rey isn’t rude. He’s just French. That’s what the server argued in a discrimination complaint against a Vancouver Milestones chain restaurant in Canada and its parent company, Cara Operations, in the wake of his firing in August. While the manager maintains that Rey was popular among customers, he claimed the French server was “combative and aggressive” toward his co-workers. But Rey alleges the manager’s accusations are a form of “discrimination against my culture,” which “tends to be more direct and expressive,” according to his complaint. He also said he was fired because of his “direct, honest and professional personality,” which he developed during his time in the French hospitality industry. Rey worked as a server at the restaurant from October 2015 to August 2016, and was often the “shift lead,” meaning his duties sometimes involved supervising other servers, according to Cousineau’s decision. The restaurant’s managers had on several occasions talked to Rey about how he treated his co-workers – and mentioned to him that staff members might think he was acting “aggressive” because of his “culture,” according to Rey’s complaint. Rey was ultimately fired after a confrontation. Rey claims it was because he was French. That argument may not fly. “The culture in Canada, it’s a non-conflict culture, particularly in the professional area,” said Julien Mainguy. “Most of the French-speaking people from Europe, they tend to be very direct.” If French workers want to advance in their careers, he said, they must try to adapt to Canada’s workplace culture. “They have to understand how they get perceived by the Canadian people and not just do what they used to do in France or in Europe,” he said. If this situation occurred in the U.S., Rey may try to claim ADA discrimination. It wouldn’t likely fly here either. Source: Washington Post 3/27/18