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SHRM Newsletter: Executive Orders Mean New Rules for Federal Contractors
Posted on Aug. 5, 2014

This is Utah SHRM Legal-mail no. 2014-14 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  EXECUTIVE ORDERS MEAN NEW RULES FOR FEDERAL CONTRACTORS

-  HOUSE TO SUE THE PRESIDENT

-  COURT SAYS REVIEW OF POSSIBLY- FALSE BIAS CLAIM NOT RETALIATORY

-  RECENT INTERESTING SETTLEMENTS AND COURT RULINGS

-  EMPLOYMENT LAW CHALLENGES FOR GENERAL COUNSEL

EXECUTIVE ORDERS MEAN NEW RULES FOR FEDERAL CONTRACTORS: A series of new executive orders from President Obama present some new HR law compliance challenges for federal contractors. The President recently signed an order requiring that federal contractors not discriminate based on sexual orientation or gender identity. About half the states already prohibit such discrimination in one form or another. Another order mandates such contractors pay a minimum wage of id="mce_marker"0.10 per hour. Both rules will take effect after implementing regulations are adopted and finalized later in 2014. Yet another order requires that certain contractors (those with contracts over $500,000) disclose state and federal labor law violations from the past three years and also gather similar information from their subcontractors. Such violations include problems under the Fair Labor Standards Act, the National Labor Relations Act, the Family and Medical Leave Act and the anti-discrimination laws. Repeat offenders may not receive federal contracts. The latest executive order also will prohibit companies holding new contracts of more than id="mce_marker" million from requiring that their employees arbitrate alleged discrimination and harassment claims. The most recent executive order will be implemented on new contracts beginning in 2016.

HOUSE TO SUE THE PRESIDENT: Take heart employers, you are not the only ones who get sued. The House of Representatives recently voted to file suit against President Obama, alleging he has overstepped his powers. Interestingly, in many ways, the lawsuit focuses on workplace issues. One of the House’s central arguments is that the President unlawfully delayed implementation of the Affordable Care Act. Ironically, the House has voted some 50 times to repeal the law it now claims the President has not timely implemented. One news report indicates that the House has particularly objected that Obama has twice delayed the law’s so-called employer mandate. The provision requires companies with 50 or more employees working at least 30 hours weekly to offer health care coverage or pay fines. Companies with 50 to 99 employees now have until 2016; larger companies must comply next year. The lawsuit will take a couple of years to fully play out and Obama likely will be out of office when it is completed.

COURT SAYS REVIEW OF POSSIBLY- FALSE BIAS CLAIM NOT RETALIATORY: A Federal appeals court has ruled that an employer did not commit unlawful retaliation when it investigated employees who had allegedly submitted false claims of discrimination. The case involved white police officers who claimed race discrimination after a black co-worker allegedly started rumors they were ”skinheads” when they shaved their heads. The officers said they had shaved their heads to show solidarity with a co-worker who was undergoing cancer treatment. After the Equal Employment Opportunity Commission (EEOC) dismissed the officers’ initial complaints, the employer investigated whether their claims has been baseless. The employer told the officers it was considering discipline but did not ever discipline them. However, the officers then alleged the investigation was retaliation for their original claims. The EEOC found a basis for the retaliation claims but a court did not. Instead, the court found that because the officers had made conflicting statements about what their black co-worker had actually said, it was within the employer’s rights to try to determine if there was some sort of impropriety related to the original charges. Note that even though this case was resolved in the employer’s favor, it is very risky for an employer to seek to discipline an employee solely because of that employee’s discrimination or harassment claim.

RECENT INTERESTING SETTLEMENTS AND COURT RULINGS: A national airline company has agreed to pay cargo workers id="mce_marker".4 million to resolve claims that the workers did not receive overtime pay and meal breaks under California law. A hotel company will pay almost id="mce_marker" million to settle claims that it improperly retained tips that should have been paid to employees. The federal Tenth Circuit Court of Appeals has dismissed a claim that a Utah county interfered with an employee’s rights under the Family and Medical Leave Act (FMLA). The case involved an employee allegedly fired for failing to complete FMLA forms and timely schedule an independent medical examination and who, according to the court decision, was alleged by the employer to have been untruthful about her injuries and ability to work. Finally, another federal appeals court has ruled that a court, and not an arbitrator, should decide whether or not an arbitration agreement allows a class action to be arbitrated.

EMPLOYMENT LAW CHALLENGES FOR GENERAL COUNSEL: A recent interesting article from Today’sGeneralCounsel.com identified what it called the five key employment law challenges for inside company lawyers. They include: (1) retaliation claims; (2) dealing with pregnancy and disability rights; (3) increased scrutiny of noncompeting agreements; (4) deadline with new regulations on recruitment, such as the EEOC’s focus on credit checks and state laws banning employers from asking recruits about criminal records; (5) changing benefits obligations, including those stemming from the growing recognition of same sex marriage. To deal with the challenges, the article recommends action steps such as employment law compliance audits, supervisor training and policy modifications and updates. Whether you are general counsel or an HR manager, how are you going to deal with these challenges?

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Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition

OBrienAV

OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012