Under Pressure: Bush Administration Reverses Hurricane Prevailing-Wage Cuts

Posted on October 31, 2005 by Christopher McKinney
Undoubtedly acting on our previous articles here and here, President Bush relented late last week and agreed to lift his executive order that had allowed federal contractors on Hurricane Katrina reconstruction projects to pay workers less than the local prevailing wage. Critics had said that waiving the prevailing-wage requirement allowed employers to pay"poverty wages."The White House did not announce the action. Instead, Andrew H. Card Jr., the White House chief of staff, revealed Bush's decision to several House Republicans during a meeting at the executive mansion, and the lawmakers happily disclosed the news afterward on Capitol Hill."It was fundamentally wrong for the Bush administration to hit workers when they were down by slashing wages, exacerbating the very poverty that the hurricanes exposed," said John Sweeney, president of the AFL-CIO. "Reinstating community wage standards will bring stability to the contacting process." The reinstatement of the wage rules will take effect Nov. 8.
Read the full story here.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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Business Ethics Survey Shows No Improvement

Posted on October 25, 2005 by Christopher McKinney

Jottings by an Employers' Lawyer has a post today discussing a national business ethics survey recently completed by the Ethics Resource Center. As Jottings notes, you would think that concerns regarding corporate ethics over the last few years would have companies on their best behavior. Turns out -- not so much.

The survey found that despite rising employee awareness of formal ethics and compliance programs, standards of ethical conduct remained unchanged - or even worsened. More than half American workers (52 percent) observed at least one type of type of misconduct in the past year, with 36 percent of these seeing two or more violations, an increase on the previous survey, conducted in 2003, it found.

The two most common types of misconduct observed were abusive or intimidating behavior towards employees (seen by 21 percent) and lying to employees, customers, suppliers, and the public (seen by 19 percent).

So, for those of us working in the employment law arena, it appears there is still more work to do!

Here is a copy of the report's executive summary. You can order a copy of the complete report here.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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UBS Sued for Systemic Race Discrimination

Posted on October 20, 2005 by Christopher McKinney

Three African-American plaintiffs have filed suit in U District Court in Manhattan alleging the brokerage UBS of racial discrimination in its hiring and promotions. The lawsuit, which seeks class-action status, saying that segregation and discrimination in job assignments and compensation were widespread at the brokerage.According to the lawsuit, UBS as of March 2002 had a workforce of 8,615 brokers but only 1.2 percent were black. The number of non-broker officers stood at 1,728, only 3.1 percent of which were black, the lawsuit alleged.The lawsuit said the attitude "illegally resulted in the creation of two racially segregated offices in New York and Maryland" when the company opened a branch office in Flushing, Queens in 1998 to serve an Asian population and in 2000 opened a branch in large, MD., to serve a black population. The company's management frequently ridiculed the large branch office and its staff, referring to it as a "diversity" office, the lawsuit said.

Here is the AP Story from the Boston Globe and Law.com.

And here is a copy of the Complaint.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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OFCCP Issues Final Affirmative Action Rules Applicable to Internet Applications

Posted on October 18, 2005 by Christopher McKinney

The U.S. Department of Labor's Office of Federal Contract Compliance Programs has just issued its final rule governing federal contractor affirmative action requirements regarding internet job applicants. The agency says that "fundamental shift in the way individuals can apply for jobs and the consequences for employers of receiving potentially thousands of resumes made the existing applicant recordkeeping rules unworkable."
Under the final rule, in order to be an "Internet Applicant", an individual must meet the following four criteria:
  1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
  2. The contractor considers the individual for employment in a particular position;
  3. The individual?s contact or application indicates the individual possesses the basic qualifications for the position; and
  4. The individual does not remove himself or herself from further consideration or otherwise indicates that they are no longer interested in the position at any point during the selection process.
The rule requires employers to solicit race, ethnicity and gender data for such candidates, specifies related recordkeeping and data collection obligations, and also provides that the new internet applicant rules can apply to non-internet job applications in certain circumstances. If the employer will consider applications through the internet or related electronic data technologies, like email, for a particular position, then all applicants for that position (even those submitting hard copies traditionally through the mail or in person) will be treated under the new rules.
The new rules go into effect on February 6, 2006.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Fifth Circuit finds Direct Evidence of Racial Discrimination

Posted on October 12, 2005 by Christopher McKinney

Cases involving direct evidence of racial discrimination don't come up as much as they used to. Most employers (even very racist ones) are smart enough not to say, "I'm not going to hire you because your black!" during a job interview. But every now and then we see one. Sometimes those cases are interesting in the lengths to which an appellate court will go to hold that the language at issue in a particular case is not direct evidence of discrimination but rather mere "stray-remarks" that do not rise to a sufficient level to indicate discriminatory intent.

Not so in a case this week out of the Fifth Circuit. In Jones v. Robinson Property (5th Cir, October 11, 2005) the Court dealt with a case brought by an African-American plaintiff alleging that the defendant refused to hire him as a casino poker dealer due to his race. The evidence showed that the hiring decision-maker used the "n-word" "without any qualms whatsoever" and once stated in response to why a black job candidate wasn't hired that "these good oldwhite boys don?t want black people touching their cards."In deciding that this evidence was sufficient direct evidence of discriminatory intent to overcome summary judgment, the Court points out that in past decisions, it "has implied that calling an employee a ?nigger? would be direct evidence of race discrimination." citing Kendall v. Block, 821 F.2d 1142, 1145-46 (5th Cir. 1987). Apparently, the Court now wishes to make it more than an implication.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Support for Fair Wages for Hurricane Victims Act Growing

Posted on October 12, 2005 by Christopher McKinney
As we previously noted here, one of President Bush's first acts to address the necessary rebuilding efforts following hurricane Katrina was to suspend Prevailing Wage rules, making it easier for employers to pay below-market wages in the areas hardest hit by the catastrophe. He soon followed this action by suspending all affirmative action requirements for federal contractors in the region designed to see that minorities and veterans get at least a small piece of the business of rebuilding New Orleans and other hard-hit areas. The President's actions have been widely criticized and bills have been introduced in both the House and Senate to overturn the President's actions. The Fair Wages for Hurricane Victims Act - H.R. 3763 & S. 1749 (text here) would reinstate the prevailing wage requirements of the Davis-Bacon Act to federal contracts in areas affected by Hurricane Katrina. Now, in at least a partial split with the President, a group of 37 republicann House members have sent a letter to the president urging him to reconsider his actions. The letter reads in part:

"We stand ready to work with you to help rebuild the Gulf Coast and agree with you that it needs to be done in a fiscally responsible manner, ... However, we disagree with your assertion that Davis-Bacon prevailing wages would somehow undermine that effort."

In addition, the National Employment Lawyers Association has come out in opposition to the suspension of prevailing wages. They have drafted on open letter to the committee heads in the House and Senate where the bill will be handled. In their letter, they list the current prevailing wage requirements for construction positions at issue that the President believes are so high as to need suspension:
Alabama Concrete finisher $ 10.07Pipelayer $ 8.21Carpenter $ 11.18Backhoe operator $ 10.51Louisiana Truck driver $ 8.54Mason tender $ 7.00Pipe layer $ 9.84Carpenter $ 13.75Backhoe operator $ 14.42MississippiDump truck driver $ 11.01Cement Mason $ 8.33Pipelayer $ 7.45Carpenter $ 8.67Backhoe operator $ 7.67Truck driver $ 6.14
To put these wages in context, the letter points out that according to the Economic Policy Institute, a single parent raising a single child in New Orleans needs $27,192 in annual income just to pay for basic needs like food, housing, and transportation to school and work. As such, even with Davis-Bacon prevailing wage rates, many workers like mason tenders, pipe layers, and dump truck drivers would earn far less than the requisite income to support a small family and others like carpenters and backhoe operators would earn barely enough to do so. And, if you wish to contact your legislators regarding this issue, NELA has set up a webpage that will provide you with all the contact information (including email) for all members of congress along with a search feature allowing searches by zip code for those that may not know their current house district.
Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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Articles for in-house lawyers.

Posted on October 9, 2005 by Christopher McKinney

Our link research indicates that a significant percentage of our readership are attorneys working as labor counsel or otherwise in the general counsel offices of medium and larger corporations. This, in my humble opinion, is a good thing. I can think of no better way for in-house counsel to keep up with the myriad of issues thrown their way than effective use of RSS and a good newsreader.

I often come across articles on blogs or other web newssites that I think would be of particular interest to those working in an in-house environment. In the past, I have often read them with interest but not blogged about them or linked to them here. From here on out, I will.

And just to show that I am a man of my word, here are a few great links that I think would be of interest to any in-house type: First a short article on alternative fees from Pat Lamb's Blog. As a former "Big Firm" lawyer and now as a small firm lawyer that often works side by side and/or adverse to "big firm" lawyers, I can assure virtually any company that it is in their best interests to at least investigate and discuss the concept of alternative fee structures with their outside counsel. If nothing else, it serves the important purpose of letting outside counsel know you that you do actually read the bills they are sending over every month.

Next is an entire blog called The Wired GC. Wired describes itself as covering "corporate law from the inside out." Don't be fooled by the name, however, the blogger (self-described as a GC for a company in the Midwest) covers all sorts of issues that might be interesting to an in-house attorney and not just tech-related items. Check it out - it's pretty good.

Lastly, here is an article from Law.com last week titled, "In-House Attorneys Become IT Gatekeepers". It discusses the increasing need for in-house attorneys to be deeply involved in their company's IT decisions given the increasing importance of e-discovery in the contemporary litigation environment.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Religious Freedom or Discriminatory Discharge?

Posted on October 4, 2005 by Christopher McKinney

Here is an interesting case out of Alabama that pits The 14th Amendment against the 1st. In Lewis vs. Covenant Classical School of Trace Crossings, Ms. Lewis claims that the Christian school illegally fired her after administrators learned she was unmarried and pregnant. Lewis' suit says she was hired at the school on Dec. 6, 2003, where she was to help teach 12- to 20-month- olds. She was fired four days later after officials learned she was pregnant. The school argues that Lewis was fired not because she was pregnant but because she was pregnant and unwed, which goes against the school's Christian teachings. It stated in court papers that her termination was required because Lewis would not assure the school she would stop her conduct of engaging in sex outside marriage. "Biblically speaking, fornication is immoral," the filing said. (Presumably, the school also does not employ those who lie, covet their neighbor's wife, fail to honor their father and mother or those who have been divorced and remarried.)Her attorney, David Arendall, states that whether she was married or not, the school fired Lewis because she was pregnant, a violation of the federal Title VII, which prohibits discrimination on the basis of gender, race and religion.

The case is currently set for trial in mid-October and we will keep a lookout for the verdict. (Actually, I am a little surprised that this case is going to trial as it appears that the facts are all agreed to by the parties and the only issue remaining is the legal issue of whether the school's relivious protections under the Constitution trump Title VII. Perhaps I am missing something from the brief news article.)In any event, here is the Associated Press story.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Supreme Court Argument Update

Posted on October 2, 2005 by Christopher McKinney

We previously wrote here about today's oral argument in IBP, Inc. v. Alvarez (03-1238); and Turn v. Barber Foods, Inc. (04-66) (Joint Argument), in which the Court will consider whether an employee is also entitled to compensation for time spent waiting at stations where required safety and health equipment is distributed, donned, and doffed, and traveling to and from these stations to work sites at the beginning and end of each workday.

In further preparation for today's argument here are some links to the briefs and prior opinions in the two cases:Brief for Alvarez et al.Brief for IBP, Inc.Brief for Tum et al.Brief for Barber Foods, Inc.Lower Court Opinions:Alvarez v. IBP, Inc. (9th Cir 08/05/2003)Tum v. Barber Foods (1st Cir 03/10/2004)We should have the transcripts of the oral argument up in a couple of weeks.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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